Findings Of Fact The Respondent owns and operates the Heart of Florida Truck/Auto Plaza ("Truck-Stop"), on U.S. 27 North, Haines City, Florida. When he purchased the truck-stop in October of 1978, he had no prior experience in the operation of such facilities. (Stipulation, Testimony of Respondent) During September of 1979, the Respondent's fuel supplier notified him that premium gasoline would no longer be delivered. Respondent decided, therefore, to convert his 6,000 gallon premium gasoline tank into a diesel fuel storage tank. (Stipulation, Testimony of Respondent) In order to convert the tank to diesel fuel usage, Respondent pumped out all but a residual consisting of approximately 100 gallons of gasoline and 200 gallons of water. Even with the use of an auxiliary electric pump, the Respondent could not succeed in removing the remaining 238 gallons of residual. (Stipulation, Testimony of Respondent) He, then, sought advice from others on ways to empty the tank, including his jobber, diesel mechanic, truck drivers and trucking firms served by his truck-stop. While no one could suggest a method of removing the residual, they assured Respondent that truckers and diesel mechanics preferred a fuel mixture of 1 gallon of gasoline per 100 gallons of diesel fuel because of improved engine performance. (Testimony of Respondent) Based on such advice, the Respondent filled the tank in question with diesel fuel No. 2 and sold the resulting diesel/gasoline mixture to truckers as diesel fuel No. 2. Because of the presence of gasoline, this diesel fuel had a flash point at 440 F. (Testimony of Respondent, John Whitton, and petitioner's exhibit 3) In mixing the diesel with the gasoline in the tank, Respondent reasonably believed, in good faith, that the resulting mixture would not be hazardous or dangerous to its users. He did not know, and had not been previously notified, that the Department had set standards which strictly regulated the quality of gasoline and diesel fuel sold in Florida. Nor did he know that gasoline and diesel fuel sold in violation of such standards would be subject to confiscation and sale by the Department. (Testimony of Respondent) Although the Department regularly mails freight surcharge information every two weeks to retail gasoline outlets such as Respondent's, it does not periodically disseminate information on its petroleum regulatory program. Copies of the Department's rules, and gasoline standards, are available only on request. (Testimony of Lois W. Thornton and John Whitton) Each month, the Department issues approximately 100 Stop Sale Notices to gasoline retailers in Florida. Approximately 12 percent of these Notices are based on unlawful sale of fuel with flash points below Department standards. In such cases, the Department has consistently followed a practice of allowing the retailer to continue ownership of the fuel (in lieu of Department confiscation) only upon the posting of a bond equal to the value of the substandard fuel. However, notwithstanding the value of the substandard fuel, the Department does not require posting of a bond in excess of $1,000.00. Upon resolution of the administrative enforcement actions in favor of the Department, the bonds are forfeited to the Department, in lieu of confiscation. (Testimony of John Whitton) Since, in this case, the value of the offending fuel far exceeded $1,000.00, the Department allowed, and Respondent willingly posted a $1,000.00 bond with the Department. (Testimony of Respondent and John Whitton, and Petitioner's exhibit 2)
Conclusions Respondent violated the Department's gasoline and oil standards. He should, therefore (in lieu of confiscation) forfeit the cash bond he previously posted.
The Issue The issue presented here concerns the alleged violation of the Antiknock (Octane) Index, Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. In particular, tide Respondent is accused of having gasoline in a pump labeled as "premium leaded" which carried an octane reading of 91.9 at a time when the registration for "premium leaded" on file with the Department of Agriculture and Consumer Services indicated a rating of 95 octane. FINDINGS OF FACT 1/ On April 14, 1981, an employee of the Petitioner went to the Sunshine- Jr. Stores, Inc.'s, Store No. 335, located at Highway 40 and Interstate 75, in Marion County, Florida, for purposes of inspecting gasoline products being dispensed from that facility. One of the pumps at the store was labelled "premium leaded" gasoline and carried an octane rating on the pump as 91.5. (This octane rating was the same as was displayed on February 26, 1981, the date of the last inspection, when a sample test revealed a rating of 94.4.) The April 14, 1981, sample of fuel taken from the pump marked premium leaded," 91.5 octane, was analyzed, and the octane rating was shown to be 91.9. On April 14, 1981, the date of the more recent test, the Antiknock Index (Octane) in the sworn registration by the Respondent on file with the Petitioner, indicated that the "premium leaded" gasoline being dispensed was 95 octane. In view of the fact that the difference between the test reading taken on April 14, 1981, from the "premium leaded' pump, and that reading registered with the Petitioner exceeded the factor (1), to the extent of being a (3.1) factor, a claim was brought against the Respondent by the Petitioner based upon the alleged violation of Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. The action was in the form of a Stop Sale Notice. The fuel was then released to the Respondent upon the basis of a Release Notice or Agreement, by which the Petitioner received a $1,000.00 bond in the form of a cashier's check, in lieu of the confiscation of the gasoline in the "premium leaded" pump. Subsequent to the inspection of April 14, 1981, in which the gasoline was sampled in the pump marked "premium leaded," that dispenser has been relabelled to reflect "oremium unleaded" fuel and the octane rating displayed on the pump continues to be 91.5.
Recommendation The facts presented in this cause show that the customers of the Respondent were not being told that the "premium leaded" fuel that they were being sold carried a 95 octane rating, instead, the rating shown was 91.5, which was less than the 91.9 reading found in testing the fuel extracted. In addition, the Respondent eventually took steps to identify for the public the fact that the fuel in the tank was unleaded and not leaded fuel. The reason for delay is explained in comments by the Respondent's representative offered in mitigation of any penalty to be imposed. He stated that the problem with labe11ing had occurred after an attempt on the Respondent's part to switch from "premium leaded" fuel to premium unleaded" fuel had been delayed, causing a concern that the amount of "premium leaded" remaining in the tank when the transition period occurred not contaminate the "premium unleaded" fuel that was being used to replace the former "premium leaded" and mislead a customer by causing him to believe that he was receiving "premium unleaded," when he was in fact receiving a blend of premium fuel containing lead. Technically, the Respondent dispensed fuel from a pump labelled "premium leaded" which was below standards when contrasted with the sworn registration Antiknock Index (octane); however, in view of the fact that the pump indicated an octane rating lower than the test rating on April 14, 1981, it is, RECOMMENDED: That no assessment be made and that the bond amount of $1,000.00 be returned to the Respondent. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981.
Findings Of Fact Prior to July 10, 1984, Son-Mar Propane, Inc. (Son-Mar) was licensed by the Department as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. Virgil Berdeaux was the president of Son-Mar and he and his wife were the sole stockholders. Virgil Berdeaux passed the competency exam which qualified Son-Mar for licensure. Sonny Wade Berdeaux Virgil Berdeaux's son, was the manager of Son-Mar. Son- Mar's business address and place of operation was 16034 U.S. Highway 19 North in Hudson, Florida. Virgil Berdeaux and his wife owned the property located at that address and leased it to Son-Mar. A propane pumping station and a building was located on the property at 16034 U.S. Highway 19. The building housed a pawn shop and supply store for mobile home and RV equipment. Son-Mar operated the pumping station and the stores. It also installed tanks and delivered gas to customers. 1/ On July 10, 1984, a final order was entered by the Department which ordered "[t]hat any and all of [Son-Mar's] licenses issued by the State Fire Marshal Division of Liquefied Petroleum Gas and eligibility to hold said licenses are hereby revoked." The revocation of Son-Mar's licenses was due to its violation of certain safety standards and rules. Specifically, it was found that an employee of Son-Mar, Mr. John Delham, filled a cylinder that had not been recertified, that he lay it horizontally in the customer's van, and that he failed to secure the tank in the van. While the van was still parked at Son-Mar an explosion occurred which destroyed the van and killed its occupant. On July 19, 1984, nine days after Son-Mar's licenses were revoked, Virgil Berdeaux submitted an application for licensure as a dealer in appliances and equipment for use of liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida, and listing the business name as Son- Mar Pawn Shop. On August 3, 1984, twenty-four days after the revocation of Son- Mar's licenses, Sonny Wade Berdeaux submitted an application for licensure as a dealer in liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida. The Department issues several different types of liquefied petroleum gas licenses. A Type 06, Class 02 license, known as a 602 license, is issued to a dealer in appliances and equipment for use of liquefied petroleum gas. The 602 license allows the holder to sell propane appliances and equipment, such as stoves, heaters, and gas grills but it does not permit the holder to install appliances or sell propane gas. A competency examination is not required for this type of license, and there is no inspection of the place of business prior to issuance of the license. Virgil Berdeaux applied for a 602 license. He completed the application and submitted the required fee. The application listed W. C. Johnson, Virgil Berdeaux's son-in-law, as the manager of the business. Bill Johnson had run the pawn shop for Son-Mar. Sonny Wade Berdeaux applied for a Type 06, Class 04 license known as 604 license, which is issued to a dealer in liquefied petroleum gas. This type of license permits the holder to pump liquefied petroleum gas for sale to the public. An applicant for this type of license must pass a competency test and file a surety bond or certificate of insurance. Further, if the licensee has a dispensing station, an inspection of the business location must be performed to ensure that it is in compliance with all safety regulations. Sonny Wade Berdeaux passed the competency examination, filed a certificate of insurance, and submitted the proper fee. Son-Mar held a Type 06, Class 01 license (a 601 license) as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. A 601 license permits the holder to pump liquefied petroleum gas for sale to the public, to sell appliances and equipment for use of liquefied petroleum gas, and to install such appliances and equipment. In essence, it is a combination of a 602 license, a 604 license, and a license to install equipment. Both Sonny Wade Berdeaux and Virgil Berdeaux received letters dated October 8, 1984, which informed them that their applications for licensure had been denied. Both letters referred to the revocation of Son-Mar's licenses and pointed out that the applicants would be operating on the same premises and employing the same staff as Son-Mar. Both letters concluded as follows: Thus, it would appear that your application is seeking licensure for essentially the same entity that has only recently had its liquefied petroleum gas licenses revoked. Therefore, in the interest of public safety, this Bureau cannot permit an Order of Revocation to be obviated by a mere procedural reapplication in your name. The applications for licensure both list the business address as 16034 U.S. Highway 19 in Hudson, Florida. At the time of application Virgil Berdeaux owned that property and Sonny Wade Berdeaux had leased the pumping station. However, on July 1, 1985, the property at 16034 U.S. Highway 19 was sold. The pumping station was moved out along with the inventory that remained in the pawn shop. Neither Virgil Berdeaux or Sonny Wader Berdeaux retained any interest in the property, and at this time neither could operate a business at that location. Although there was testimony concerning the manner in which the business would have been operated and controlled had licensure been granted at the time of applications there was no testimony indicating where or how the business would now be operated. There was no attempt to amend either application to reflect a current business address, and the certificate of insurance entered into evidence lists 16034 U.S. Highway 19, Hudson, Florida, as the location covered. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that a Final Order be entered denying petitioners' applications for licensure. DONE and ENTERED this 21st day of May, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1986.
Findings Of Fact On July 14, 1982, Jimmy Haywood Nixon, an employee of petitioner, took samples of gasoline offered for sale at respondent's Beacon Store No. 7 in Milton, Florida, including a sample of regular gasoline mixed with alcohol, known as "regularhol." Pat Flanagan, a chemist employed by petitioner, performed various tests on the sample of regularhol, including ASTM method 86, and determined that the 50 percent evaporated distillation temperature of the mix as a whole was 150 F. His testimony to this effect was uncontroverted. When he learned the test results, Mr. Nixon locked the regularhol pump at respondent's store in Milton, only unlocking the pump to release the mixture when a thousand dollar bond was posted on July 16, 1982. Respondent began mixing regular gasoline with ethanol and selling it as regularhol in 1978 at the same price as regular gasoline. Until recently, Mocar made less on regularhol sales than on sales of regular gasoline. It originally offered regularhol as its way of helping to reduce the national consumption of petroleum. The Phillips' terminal in Pensacola was respondent's source of the regular gasoline it mixed to make regularhol. This gasoline reached Pensacola by barge, and petitioner's employees sampled and tested each barge's cargo. The 50 percent evaporated distillation temperature of the regular gas Mocar bought from Phillips varied over a range of more than 30 degrees Fahrenheit upwards from 180 F. Mixing ethanol with the gasoline lowered its distillation temperature, but until the batch sampled on July 14, 1982, Mocar's regularhol had passed the testing petitioner has regularly conducted.
Recommendation Respondent has not been shown to be more blameworthy than any of the fuel owners involved in the cases cited above, each of whom regained part of the bond that had been posted. It is, accordingly, RECOMMENDED: That petitioner retain four hundred dollars ($400.00) and return six hundred dollars ($600.00) to the respondent. DONE and ENTERED this 19th day of December, 1982, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 513 Mayo Building Tallahassee, Florida 32301 James Milton Wilson, Esquire 201 East Government Street Pensacola, Florida 32598 The Honorable Doyle Conner Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32301
Findings Of Fact Petitioner deals in fuel oil. It buys fuel oil from several wholesalers and sells it at retail, mainly to people who use fuel oil for heating purposes. Petitioner operates a low pressure pump on its premises for pumping fuel oil from a ten thousand gallon tank into five gallon cans and similar containers brought to the pump by its customers. At peak demand, the ten thousand gallon tank supplying this pump had to be refilled twice a week. In general, however, during the cold season, the tank was refilled only every other week or less often still. No fuel oil was ever pumped from the low pressure pump into any motor vehicle. Petitioner also maintained two big dispersing pumps for filling its tank trucks with fuel oil and a gasoline pump for fueling the truck engines. The trucks were equipped with pumps for emptying their fuel oil tanks, which pumped at the rate of forty gallons per minute. Petitioner advertised home delivery of fuel oil in the newspaper, and dispatched its trucks in response to the resulting telephone calls. In addition to delivering fuel oil for home heating purposes, petitioner occasionally sold larger quantities to fellow fuel oil dealers and to other commercial concerns. In February, March and April of 1974, petitioner sold particularly large quantities of fuel oil to Tampa Electric Company. During the period covered by the audit, petitioner sold from 50,000 to 70,000 gallons to other fuel oil dealers. Petitioner did not get resale certificates from its commercial customers, but Mr. Hayes, until recently petitioner's proprietor, required dealers to show him their dealer's licenses and he copied the dealers' license numbers onto the invoices. In March of 1976, Mr. Donald E. Snyder, a tax examiner in respondent's employ, began auditing petitioner's books. At this time most of petitioner's records were in Orlando in the custody of the Federal Energy Administration. Subsequently, some, but not all, of these records were returned to petitioner. In an effort to reconstruct records which were unavailable, Mr. Snyder contacted petitioner's suppliers and examined their records of sales to petitioner. On January 2, 1977, Mr. Hayes and Mr. Snyder took an inventory of petitioner's fuel oil. Mr. Snyder used this information as well as what records petitioner was able to furnish him, and concluded that petitioner had sold, during the audit period, two thousand four hundred seventy-nine (2,479) gallons of fuel oil to persons or concerns who were users of fuel oil for non-exempt purposes. Written on the invoices evidencing these sales, however, was the phrase "non-road use" or words to that effect. The limited materials with which he worked gave Mr. Snyder no indication as to the disposition of an additional two hundred fifty- eight thousand three hundred forty (258,340) gallons of fuel oil. Although Mr. Snyder approximated petitioner's sales month by month, these figures were unreliable because of certain erroneous assumptions, notably the assumption that petitioner never used additional storage facilities.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent abandon its notice of proposed assessment, as revised. DONE and ENTERED this 10th day of January, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. James P. LaRussa, Esquire Flagship Bank Building, Suite 416 315 East Madison Street Tampa, Florida 33602 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
Findings Of Fact On July 31, 1986, Petitioner Chevrolet World, Inc. (hereinafter "Chevy World"), filed an application for licensure with the Department of Highway Safety and Motor Vehicles (hereinafter "Department"), seeking to become a licensed Chevrolet dealer in Orlando, Orange County, Florida. Chevy World is owned by Don Mealey, who also owns another Chevrolet dealership in Orlando known as Don Mealey Chevrolet, Inc. The new dealership would be located in a development known as "Lee Vista Center," immediately north of the Orlando International Airport. The Jacksonville Zone for the Chevrolet Division of General Motors (hereinafter "GM"), is divided by GM into MDAs (Multiple Dealer Areas) and SDAs (Single Dealer Areas). There are five MDAs in the Jacksonville Zone: West Palm Beach, Miami, Orlando, Jacksonville, and Tampa. The Orlando MDA consists of all of Orange and Seminole Counties plus two census tracts in the extreme southern portion of Volusia County which are immediately adjacent to Seminole County. There are four Chevrolet dealers currently operating within the boundaries of the Orlando MDA as established by GM: (a) Roger Holler Chevrolet in Winter Park, (b) Don Mealey Chevrolet in Orlando (owned by the owner of the applicant in this case), (c) Century Chevrolet (hereinafter "Century"), in Winter Garden, and (d) Ken Rummel Chevrolet in Sanford. Within each MDA, GM further subdivides the area into AGSSAs (areas of geographic sales and service advantage) and places one dealer in each AGSSA. GM designates five (5) AGSSAs for the Orlando MDA. The open point is located in AGSSA 5. Theoretically, each dealer is supposed to have the greatest opportunity for sales and service in his own AGSSA when compared to other Chevrolet dealers. Although GM lists only four Chevrolet dealers in the Orlando MDA, it is undisputed that more than those four dealers advertise in and serve the Orlando market area. For example, the Southern Bell telephone directory yellow pages for Orlando lists six Chevrolet dealers who advertise in Orlando, and this list does not include Ken Rummel's Chevrolet dealership, which GM does include in the Orlando market area. Additionally, John Larkin, the owner and president of Century and one who is familiar with the competition among dealers in Orlando, testified that there are ten Chevrolet dealerships which advertise in and serve the Orlando market. These include Bill Seidel Chevrolet in Clermont, Florida; Vanganoway Chevrolet in Eustis, Florida; Cecil Clark Chevrolet in Clermont, Florida; Fred Bonson Chevrolet in Deland, Florida; Ken Rummel Chevrolet in Sanford, Florida; Roger Holler Chevrolet in Winter Park, Florida; Don Mealey Chevrolet in Orlando, Florida; Burchfield Chevrolet in St. Cloud, Florida; Sterling Chevrolet in Kissimmee, Florida; and Century in Winter Garden, Florida. This evidence was not disputed by GM. Given this large number of dealers which impact the Orlando market, the market in Orlando for Chevrolet cars is highly competitive. The critical substantive question in this case is whether the existing dealers are adequately serving the market. A proper definition of the market is obviously important. GM failed to prove that its MDA properly defines the relevant market area for this proceeding. It offered no explanation as to why the relevant market is not the Orlando statistical metropolitan area which encompasses a three-county area: Seminole, Orange, and Osceola Counties. In fact, one of GM's own witnesses, Dr. Ronald Rubin, testified that the boundaries of the Orlando statistical metropolitan area would be appropriate parameters for the Orlando market area. Dr. Rubin could not state that the Orlando MDA accurately defines or describes the Orlando market or that AGSSA 5 would actually be the marketing area or community with respect to a new dealer located therein. Given the facts that GM offered no explanation other than its own discretion why its MDA should be smaller in area than the Orlando statistical metropolitan area and that many Chevrolet dealers outside the boundaries of GM's MDA have a significant impact on Chevrolet sales in Orlando, the relevant territory or community is the Orlando statistical metropolitan area and not only the Orlando MDA. The smaller artificially-configured market areas established by GM (Orlando MDA and AGSSA 5) are specifically rejected because they are only a portion of the market area impacted by the Chevrolet dealers in the Orlando statistical metropolitan area and because there was no competent showing by GM that the Orlando MDA and AGSSA 5 bear scrutiny. While an MDA or AGSSA might in an appropriate case be the proper area of scrutiny, GM has not carried its burden of proving that this is such an appropriate case. Because the relevant community or territory is the Orlando statistical metropolitan area, the sales performances and penetration rates for the Chevrolet dealers in Kissimmee, St. Cloud, Eustis, Deland, and Clermont, in addition to the four dealers located in the Orlando MDA, must all be considered in determining whether the existing dealers in the Orlando statistical metropolitan area are adequately representing Chevrolet in that market. GM presented no credible evidence as to the penetration rates in the Orlando statistical metropolitan area by all the dealers who compete there. Consequently, GM has not carried its burden of proving that the existing Chevrolet dealers are not providing adequate representation for GM in the relevant market area. GM's evidence that there were 552 new car in-sells within the Orlando MDA by outside Chevrolet dealers supports a conclusion that the MDA is not the real or relevant market; it does not prove the propositions for which it is cited--(a) that the Chevrolet dealers within the Orlando MDA are not adequately serving the market and/or (b) that the customers are or were dissatisfied with those dealers. There is no evidence in the record to support a conclusion that these 552 customers, or any one of them, were displeased with the Orlando MDA dealers; for example, there was no polling data or other information from those customers offered by GM which would have indicated such displeasure. The number of in-sells into the MDA is more likely the result of dealers within the metropolitan statistical area but outside GM's artificial MDA (e.g., the Chevrolet dealer in Kissimmee, Florida) competing with MDA dealers. Thus, the number of in-sells is probative of a conclusion that GM's artificially- drawn MDA boundaries are skewed and are not indicative of the relevant territory or community for purposes of this proceeding, thereby casting doubt on substantially all of GM's studies and conclusions that penetration rates in the Orlando market area are disproportionately low. Additionally, as proven by the uncontroverted testimony of Dr. Ostlund, the AGSSAs established by GM for the Orlando MDA were not drawn in accordance with GM's own established guidelines. First, AGSSAs are supposed to be determined by and drawn in accordance with natural and man-made barriers or boundaries; however, none of the AGSSAs in the Orlando MDA are divided by or established in accordance with natural or man- made boundaries or barriers. Second, the AGSSAs established by GM are supposed to account for and be established in accordance with shopping patterns; however, there is no analysis in the AGSSA documents for the Orlando MDA concerning non-automotive shopping patterns, and the information concerning automotive shopping patterns does not support the AGSSA lines drawn by GM. Third, contrary to GM's own guidelines, there is no evidence that any of the AGSSA boundaries have been drawn with the factor of traffic flow taken into account. Moreover, the evidence presented by GM clearly indicates that the statistical relationship between the residence of each dealer's customers and the AGSSA boundaries is weak. In other words, each dealer is located within an AGSSA and, according to GM's AGSSA guidelines, is expected primarily to impact the sales area within that AGSSA; however, the actual sales figures for each of the dealers reveal little if any correlation between the location of its customers and the AGSSA boundaries. Again, the appropriateness of the AGSSAs is contraindicated. An AGSSA could, of course, in an appropriate case be a submarket appropriate for scrutiny. The burden of showing the appropriateness is on GM. In a case such as this where GM not only fails to meet its burden but the evidence shows that GM's own standards for drawing AGSSAs have not been followed, it cannot be concluded that the use of any particular AGSSA suggested by GM is appropriate. Consequently, GM's calculations and conclusions, premised upon these AGSSAs, are not supported by credible evidence. Aside from this failure by GM to prove that it properly analyzed the relevant market area, GM failed to take other factors into account in assessing the adequacy of the existing dealers' representation. One of these factors was the closing of one of the four Orlando MDA dealers for most of 1985. From February 1, 1985 to November 1, 1985, Chevrolet was without a dealership in Sanford, Florida, because Ken Rummel was in the process of moving the Chevrolet dealership located there to a new location. While Mr. Anderson admitted that he was aware of Ken Rummel's closure and the probable negative effect this closure would have on market penetration efficiency, his studies did not account for this fact. As testified by Dr. Matthews, a primary flaw in GM's use of national penetration rates to conclude that inadequacy exists in the Orlando market is the lack of any comparative analysis of the different MDAs to determine whether factors peculiar to the Jacksonville Zone or the Orlando MDA are causing the alleged shortfall in penetration rates. The closure of Ken Rummel Chevrolet for most of 1985 illustrates that a comparative analysis of markets was not performed by Mr. Anderson or GM. The closure of one of the four Chevrolet dealers in the Orlando MDA for most of 1985 would have a significant negative impact on market penetration for that year, but GM apparently made no correction or adjustment in its analysis to take this important fact into account. Another factor which GM did not take into account before asserting that poor penetration efficiency of the Orlando MDA dealers indicated that an additional Chevrolet dealer was needed in the Orlando market is the extensive leasing of new Chevrolets which occurs in Orlando and the heavy sales of "brass- hat" cars by the Chevrolet dealers and current-model, low-mileage fleet cars by fleet rental companies. As defined by GM for sales and registration purposes, a fleet customer is any person or company who purchases ten or more cars or trucks of any brand anywhere in the country during a twelve-month time period. In 1985, 29.9 percent of industry car registrations in the Jacksonville Zone were fleet registrations. The national rate was 17 percent. For Chevrolet, 49 percent of all car registrations in the Jacksonville Zone in 1985 were fleet registrations, while nationally the rate for Chevrolet was only 21.8 percent. Stated differently, the dealers in the five MDAs in the Jacksonville Zone (3 percent of the total of all MDAs) accounted for over sixteen percent of all fleet sales in the United States. It is uncontroverted that the Orlando market has significantly higher levels of fleet sales than other parts of the country. GM has itself concluded that the extraordinary number of passenger car and truck fleet sales into the Orlando market area has a negative effect on passenger car and truck sales and registration effectiveness. In spite of this, none of the studies presented by GM took this into consideration. GM cannot properly do what it seeks to do here, that is, compare Orlando to national or regional or so called "typical" markets while admitting this difference without accounting for the impact of these fleet sales in the market. Additionally, many of these fleet companies who purchase new fleet cars from the dealers and manufacturers (e.g., Avis, Hertz, National, Budget, etc.) in turn sell those cars to consumers in the Orlando area. Typically, these rental cars sold by the large fleet companies are current-model, low- mileage cars, many of which are Chevrolets. Because there is no difference in the profile of a typical new car customer and a customer who will buy a current- model, low-mileage car from a fleet company, the sale of these fleet rental cars in Orlando diminishes the market demand for new retail Chevrolets. The reason for this deleterious effect on market demand for retail Chevrolets is that the current-model, low- mileage rental units can be sold by the rental companies for lower prices. This fact was admitted by Jacksonville Zone Manager Hall when he testified that sales of current model rental cars by rental companies has an adverse impact on new car sales. As further evidence that the heavy concentration of fleet sales by Chevrolet dealers and sales of current-model, low-mileage rental cars by fleet companies negatively affect new car retail penetration rates, Century introduced a letter from Don Mealey to R. J. Bresnahan (the former Jacksonville Zone Manager for Chevrolet) dated May 29, 1984. In this letter, Don Mealey, an existing dealer in the Orlando MDA and the owner of the applicant herein, delineated the problems of market penetration caused by fleet companies selling current-model, low-mileage rental cars. Mr. Mealey stated in his letter that prospective new car customers in Orlando have a "multitude of options available to them. They can shop a franchised new car dealer or they may choose from one of many outlets retailing low mileage, current models at a price considerably less than normal dealer invoice. The net effect of this second level system on the total market is incalculable." This observation by Mr. Mealey is consistent with GM's own admissions and the testimony of Century's officials during this hearing. Mr. Mealey further highlighted in his letter the large number of Chevrolet cars operating in Orlando which are registered elsewhere but which do not appear on the sales and registration reports for Orlando. "[C]ertain major rental companies purchase or lease Chevrolet's [sic] which are registered in Dade, Broward, or other Florida Counties. These vehicles are rented in Orlando, serviced in Orlando, and most often are sold in Orlando but do not appear as new vehicle sales or registrations. If these phantom units appeared on the R.L. Polk report, the overall Chevrolet market share would improve Again, Mr. Mealey's observations are consistent with other evidence adduced in this case. Despite these admissions by Petitioner GM and Mealey (an agent of Petitioner Chevy World), regarding fleet sales, Mr. Anderson denied that the large volume of fleet sales in the Orlando market has had a negative impact on the retail car penetration rates for Chevrolet dealers in the Orlando MDA. He offered no evidence in support of his conclusion. Mr. Anderson's position is unsupported by the facts in the record and belies common sense. Mr. Anderson's and GM's failure to properly account for and to factor into their analysis the impact of fleet sales on Chevrolet penetration rates discredits their contention that the present dealers are inadequately representing the market. Initial fleet sales impact retail penetration, as do resales of current model cars. Potential new car purchasers will generally not view current-model, low-mileage rental cars sold by fleet companies as distinguishable from new cars offered for sale by a Chevrolet dealer. Perceiving these two groups of automobiles as essentially similar, a customer in the new car market would ignore industry labelling differences between these groups of cars. In short, as established through GM's own witnesses, the Orlando market area, given its heavy concentration of fleet sales, is significantly different from the national market viewed as a whole. This heavy influx of fleet sales into the Orlando market area is strong evidence why penetration rates in the artificial Orlando MDA are lower than the national average. The typical customer is most interested in low prices. To attract these customers, Century advertises for sale "brass-hat" cars, which are vehicles used previously by GM officials and sold at GM auctions. There is no difference in the profile of a typical new car customer and a customer who will, and often does, buy a brass-hat vehicle. Brass-hat vehicles are purchased by Century at GM auctions to serve as price leaders in advertisements and sticker sales to encourage customers to visit Century's facilities. During 1986, Century sold an average of forty-three brass-hat vehicles per month, a large portion of which were Chevrolets. The local Chevrolet dealers in the Orlando market buy a large number of the brass-hat vehicles sold at the auctions conducted by GM in Orlando. Brass-hat vehicles, regardless of the model or mileage, are not treated as new cars by GM; thus, Chevrolet dealers, such as Century, do not get credit from GM for a new car sale when a customer purchases a brass-hat vehicle. Moreover, the Chevrolet dealers do not receive credit with respect to R. L. Polk registrations for the sale or registration of brass-hat vehicles. As is the case with current-model, low-mileage rental cars sold by fleet companies, it is unlikely that, if the physical attributes of the brass- hat vehicle are the same or substantially similar to the attributes of a new car, a potential customer will view those two classes of cars differently. Consequently, brass-hat vehicles are competitive with new retail cars in the marketplace and decrease the sales rates for the new cars because the brass-hat vehicles are priced lower. GM did not account for the significant levels of brass-hat vehicles sold in the Orlando market. No study was performed by GM to analyze what effects brass-hat sales had on new car sales effectiveness and penetration rates. Accordingly, GM's studies and conclusions are flawed insofar as they attempt to support a finding that the present Chevrolet dealers are providing inadequate representation in the Orlando market. Century and other Chevrolet dealers lease a large number of new cars. The leasing of new Chevrolets in Orlando diminishes the demand for the sales of new Chevrolets because the same profile of customers is involved, and at times leasing has financial advantages over purchasing. GM does not regard the lease of a new car as a retail sale. Again, Mr. Anderson's studies are flawed because they did not assess the negative effects which extensive leasing (as occurs in the Orlando market) has on penetration rates for new Chevrolet cars. In addition to the failure of GM to analyze the negative impact which Ken Rummel's closure in 1985 and the heavy concentration of leasing, fleet sales, brass-hat sales, and sales of current-model, low-mileage cars by fleet companies had on Chevrolet retail penetration rates in Orlando, the studies actually performed by GM were statistically and quantitatively suspect in many respects. Because the thrust of GM's proof focused on Mr. Anderson's five-point test, the five-point test must be analyzed in order to determine whether it is an accurate, reliable, and statistically proper analysis of the Orlando market, in general, and the adequacy of the existing dealers' representation, in particular. First, nearly every witness agreed that the mere fact that new car registrations in a particular market area fall short of national or Zone registration rates does not indicate, without further examination, that the existing dealers are not providing adequate representation in that market area. In determining whether the Orlando market is being adequately represented, Mr. Anderson testified that he would first ascertain whether the market penetration for Chevrolet in the Orlando MDA exceeded or fell below Zone and national retail penetration rates. Then, Mr. Anderson employs a five-point test to determine what is a reasonable level of market penetration for the particular market area. The first two steps in this five- point test entail a comparison of the demographic characteristics in terms of age and household income of the Orlando market area vis-a-vis the nation as a whole. The third step in the five- point test is an analysis of product popularity, i.e., an analysis which seeks to determine whether the particular line- make is popular in a certain market area. The fourth step is an assessment of the market to determine whether national or Zone penetration rates are being achieved or exceeded in certain defined areas within that market. Finally, the penetration rates for the areas surrounding the market in question are analyzed to determine whether national penetration rates are being achieved in these outlying areas. This five-point test for assessing local market penetration effectiveness is flawed in several respects and thus is an unreliable and inaccurate analysis. While GM did present demographic evidence that Orlando, compared to national statistics, was underrepresented in the 0-15 and 65-over age categories, there was no proof offered by GM that this population age data proved that Chevrolet sales potential was in any way enhanced. There were no Chevrolet customer age profiles submitted by GM, or any quantitative analyses performed by GM indicating that Chevrolet penetration rates varied in accordance with the age of the customers. Accordingly, GM's demographic evidence concerning age distributions in Orlando vis-a-vis the nation is statistically unpersuasive and proves nothing. The same finding is compelled with respect to the income levels in the Orlando market area. There was no evidence offered by GM that income levels relate in any way to Chevrolet retail penetration or can be analyzed as a determinant of interbrand competition. GM's use of product popularity statistics is not persuasive because it also failed to consider line-make popularity by model. Without such additional studies it cannot be accurately concluded that the Orlando market area can be compared, in a statistically acceptable manner, to the national market in terms of product popularity. The fourth factors analyzed by Mr. Anderson--whether certain census tracts within the Orlando MDA have retail Chevrolet penetration rates which meet or exceed the national average--is likewise a statistically unacceptable test for adequacy of representation or for the use-of national figures to demonstrate inadequacy. As established by the uncontroverted testimony of Drs. Ostlund and Matthews, this condition will undoubtedly exist in any market. Given the small total penetration numbers present in any census tract, it is not unrealistic to expect that some census tracts might have Chevrolet penetration rates which exceed a national average. Random penetration rates of one or two cars could mean the difference between exceeding or falling below national rates in a given census tract. Thus, the mere fact that one or more tracts have Chevrolet penetration rates above the national average does little to address the question whether there is adequate representation throughout a defined market area encompassing numerous census tracts. Stated otherwise, it would not be unusual to find census tracts in any defined market which exceed or fall below national penetration averages. Customers living in different census tracts are not homogeneous in terms of age, income, line- make preference, etc. Thus, the fact that there may be some census tract areas within a defined market area where penetration rates exceed some national penetration average is not a proper basis to infer that the entire market area should be able to achieve or exceed the same penetration rates. The fifth and final factor analyzed by Mr. Anderson and GM to support their assertion that the existing Chevrolet dealers in the artificial Orlando MDA are not providing adequate representation because they are not achieving national retail penetration rates is whether the market area outside the MDA but inside the Orlando metropolitan statistical area has higher penetration rates than the rates in the MDA. GM has concluded that higher penetration rates have been achieved in the areas outside the MDA boundaries. The inference which GM seeks to draw from this fact is that the Chevrolet dealers, located within the MDA, are not making adequate sales. The flaw in this argument is that such a shortfall will ordinarily (if not always) exist where the MDA is not coextensive with the SMSA, irrespective of whether the existing dealers within the MDA are adequately representing Chevrolet in the market. The reason for the discrepancy in the penetration rates is twofold. First, the SMSA is generally larger than the MDA and encompasses more rural and semi-rural areas. Historically, customers from rural or semi-rural areas have favored traditional domestic line-makes like Chevrolet over other line-makes. Second, import manufacturers do not have as extensive a dealer organization as traditional domestic manufacturers such as GM and have tended to concentrate their sales efforts in larger urban areas, thereby increasing the options of urban customers and decreasing the penetration rates for domestic line-makes such as Chevrolet. Consequently, the fact that Chevrolet may have achieved greater market penetration within the Orlando SMSA but outside the Orlando MDA proves little if anything about the adequacy of representation of Chevrolet by the existing dealers. In addition to the flaws existing in each of Mr. Anderson's five factors, the entire five-point test is significantly flawed and statistically unreliable. Curiously, this is not disputed by GM. The question of-the propriety of the five-point test arose as follows. Mr. Anderson testified first, saying not that this is a proper test but only that this is the test he used, admitting he knew of no authoritative text which supported its use. Drs. Ostlund and Matthews testified the test was inappropriate to judge the question presented. Mr. Anderson never denied this conclusion, and GM by offering no rebuttal evidence on this point and chose to leave the inappropriateness of the five-point test unrebutted. Thus, no conclusion can be reached except that it is inappropriate. Moreover, the test was not applied to the other Chevrolet MDAs in the United States to determine the accuracy and relevancy of the test. Neither in the five-point test nor in any of his other studies did Mr. Anderson address the quantity of dealer facilities that already exist in the Orlando market, a factor which is highly important on the adequacy-of representation issue. Finally, Mr. Anderson did not testify that he had used this test consistently in his testimony in other Florida cases before the Division of Administrative Hearings. To support its contention that an additional Chevrolet dealer is needed in Orlando, GM placed great emphasis on the fact that the population in Orlando had experienced significant growth over the years. However, the mere fact that Orlando has experienced a population growth is not evidence that an additional Chevrolet dealer is needed in the market, nor does it explain alleged low penetration rates. In fact, rapid growth in a market indicates that many people are moving to the market area. People who have recently arrived in the market area may have less desire to purchase a new car, or less income available for a new car purchase because of moving and new dwelling expenses. Nowhere in the testimony of, or the studies and reports prepared by, Mr. Anderson or any other GM witness is it indicated that this condition in the Orlando market was examined. Indeed, while Mr. Anderson testified that the Orlando area has experienced a high rate of migratory growth, he admitted that he did not analyze the question whether people who recently moved into the Orlando area would more or less likely be in the market for a new car. Moreover, the mere fact that population in the Orlando area has increased while the number of Chevrolet MDA dealers has remained the same (four) does not necessarily indicate the need for an additional dealer. Mr. Anderson's testimony was offered by GM to prove that the population growth in Orlando over the last fifty (50) years has been so large that four dealers can no longer adequately serve the increased number of customers. However, no analysis was conducted whether there exists a corresponding increase in sales and service facilities and operating investments. Moreover, an equally plausible inference to be drawn is that there were too many Chevrolet dealers in 1930. No analysis or study was performed by GM to account for this equally plausible inference. GM also presented evidence concerning the location of the existing dealers and the effectiveness of those dealers to attract customers residing at varying distances from the dealerships, seeking to prove that a dealer's market penetration success bears an inverse relationship with the distance a potential customer must drive to reach that dealership. However, GM's analysis is flawed in several respects. First, this analysis does not take into account the specific geographical location of a dealer in the Orlando market area, and particularly with respect to whether the dealer location is close to areas where few or no customers reside. For example, a dealer like Century is near farmland and a large lake, thereby reducing the possibility that cars will be sold to or registered by customers living in a geographical area closer to that dealership. Furthermore, all MDA dealers will be partial servants of a geographical area because there will always be other same line-make dealers serving that market. Thus, the analysis used by GM does not address the question whether the existing dealers are adequately serving the market. Finally, GM's position in this proceeding that the location of a dealership is not relevant leaves it little room to complain of locations. GM .offered no persuasive evidence that any traffic patterns or congestion in the Orlando market area indicated the need for an additional Chevrolet dealer. In fact, the evidence was to the contrary; there is no significant traffic congestion in the vicinity of the proposed new dealer point location to justify the addition of a dealer. In any event, traffic congestion is generally not an important factor in determining whether an additional dealership is needed in a market because traffic congestion usually occurs during rush hours; typically, potential customers do not shop for new cars during rush hour. GM presented evidence in the form of graphs and charts which allegedly established that the dealers in the Orlando MDA must service a higher number of potential customers than dealers in other Jacksonville Zone MDA's. The inference sought to be established by GM from this data is that there are too few Chevrolet dealers in the Orlando MDA to properly service the larger number of potential customers. However, GM's evidence does not support this inference. First, this analyis is fundamentally flawed because it is premised upon there being only four Chevrolet dealers in the Orlando market area; the evidence presented in this case establishes that ten Chevrolet dealers compete heavily in the Orlando area market. Second, the population/dealer data actually supports Century's position. According to Dr. Matthews' statistically correct computations, each dealer in the Orlando MDA services a population of 206,542; however, the average population serviced by the dealers in the entire Jacksonville Zone is 209,691. Consequently, the Orlando MDA dealers service less population than the average of the other Chevrolet dealers in the Jacksonville Zone. This fact obviously does not compel the conclusion that a new dealer is needed in the Orlando MDA; in fact, it is strong evidence that the present dealers are adequate in number to represent the Orlando market. Mr. Anderson's conclusions regarding registration rates per dealer in the Jacksonville Zone suffer from similar statistical flaws. After removing the Pensacola registration figures from this study and adjusting the Tampa MDA figures to accurately reflect the number of existing Chevrolet dealers, the average number of registrations per dealer point is 9,658. Thus, because the Orlando MDA Chevrolet dealers' registrations per dealer point (8,587) are below average Jacksonville Zone figures, this study also does not prove the need for an additional Chevrolet dealer in Orlando. If another Chevrolet dealer were added in Orlando, the number of registrations per dealer in the Orlando MDA would fall to 6,869, or only 72 percent of the average registrations per dealer in the Jacksonville Zone. Therefore, the studies performed by Mr. Anderson and GM reveal that an additional dealer in Orlando is contraindicated. In this proceeding, Mr. Anderson admitted that the total registrations for the Orlando MDA might vary by nearly twenty percent from the reported sales by the Orlando MDA Chevrolet dealers. Mr. Anderson conceded that this variation could have resulted from an error in R. L. Polk statistics. At no time has Mr. Anderson investigated to determine whether R. L. Polk actually used statistically proper and reliable procedures to gather and verify the registration data. Additionally, Anderson testified that he has personally found R. L. Polk data to be unreliable. Accordingly, the R. L. Polk registration reports and computations utilized by GM throughout its studies and reports have not been proven to be reliable. GM sought to establish that Chevrolet truck penetration rates in the Orlando MDA fell below national penetration rates. From this premise partially flowed GM's argument that an additional dealer was needed to increase Chevrolet penetration rates in the Orlando market area. However, as illustrated by Dr. Ostlund, the use of truck penetration statistics is not probative of inadequacy- of the existing dealers. Commercial customers of trucks, even those purchasing less than ten units per year (thereby not qualifying as a fleet customer by GM's standards) are a substantial portion of the truck market. Generally, these multi-unit, commercial truck customers are not concerned about the location of a dealer. Dr. Ostlund's testimony on this issue was not controverted by GM. The last full year from which GM evaluated sales and registration data was 1985, the year during which one Orlando MDA dealer was closed. GM only used nine-month data in 1986. However, GM's use of nine-month data for calendar year 1986 did not take into account any seasonal factors which could indicate that year-end sales figures would be significantly different. Proper statistical tools, such as regression analysis and exponential smoothing, could have been used to properly interpret the nine-month data and to extrapolate that data over a twelve-month time frame; however, no such commonly accepted statistical devices were used by Mr. Anderson or GM, thereby raising serious doubts as to the statistical accuracy of their conclusions. Moreover, no showing was made by GM that Mr. Anderson could provide competent testimony on such statistical techniques. Furthermore, it does not appear that Mr. Anderson or GM even considered the effect which any seasonal factors had on market penetration in 1986. There was no evidence offered by GM that seasonality patterns of Chevrolet sales were stable from year to year, particularly 1985 to 1986. Therefore, GM's failure to analyze seasonality factors renders unworthy its interpolation of 1985 data to determine annualized 1986 sales figures and penetration rates. In many of its comparative evaluations of the Orlando market and the Orlando dealers' sales and penetration effectiveness, GM utilized data obtained from the Pensacola MDA which is not a part of the Jacksonville Zone. However, it is clear that neither Mr. Anderson nor anyone else at GM performed any studies to determine whether the Pensacola market area was comparable to the Orlando market area or other multi-dealer markets in the Jacksonville Zone. The only justification for utilizing Pensacola MDA data was that Pensacola was in the State of Florida. Dr. Matthews, based on GM's own evidence, concluded that the inclusion of Pensacola in any of the studies was inappropriate. This was not disputed by GM. In the absence of any showing by GM that Pensacola is a comparable market to Orlando, any conclusions or inferences made by GM which in whole or in part are based upon Pensacola MDA data are unsound. GM offered no evidence that the sales and service facilities of the existing Chevrolet dealers in the Orlando market area are inadequate to represent Chevrolet in that market. In fact, Mr. Anderson admitted that he did not evaluate the sales and service facilities of any of the Orlando MDA Chevrolet dealers prior to concluding that they were not providing adequate representation. GM premised its entire case on a comparison between Chevrolet penetration rates in Orlando and Chevrolet penetration rates nationwide and in the Jacksonville Zone. The flaw in GM's presentation was the complete failure to determine whether the Orlando market is a typical market area from which conclusions as to low penetration rates and inadequacy of representation could be so simplistically drawn. More significantly, GM presented no evidence that other manufacturers, domestic or import, were achieving or exceeding their national or Zone penetration rates in the Orlando market. The absence of any evidence concerning penetration rates for other line-makes is particularly damaging to GM's contention that the Orlando area Chevrolet dealers should be achieving higher penetration rates. GM ranked each MDA in terms of market penetration for passenger cars and trucks. The Orlando MDA ranked 129 in passenger car sales penetration effectiveness and 130 in truck sales penetration effectiveness. The inference GM wishes to be drawn from these rankings is that the Chevrolet dealers in the Orlando MDA are ineffective in terms of market penetration and, thus, are not providing adequate representation for Chevrolet in Orlando. However, GM's rank-ordering of the 157 MDAs in the United States in terms of market penetration is statistically unsound because there is no explanation offered for the penetration discrepancies. There was no statistical analysis performed by Mr. Anderson to explain what factors exist in each of these markets, individually or collectively, to cause the penetration rate variations. The evidence is undisputed that there was no showing by GM that any of these markets were comparable, and, in fact, no adjustments were made for the lack of comparability. The placement of all Florida and California dealers in the bottom portion of the rankings suggests a comparability problem not addressed by GM. The evidence established that Century is not optimally located in the Orlando market area. Century is the only automobile dealership of any line-make in Winter Garden, Florida. All other dealerships, domestic and import, have gone out of business due to poor market demand. In order to attract customers in the Orlando market area, Century purchases advertisements in the Orlando Sentinel and on four Orlando television stations. All told, Century spent in excess of $1.1 million in 1986 on advertising. The amount spent on advertising per retail unit by Century was the highest of any dealers in Orlando and double the Zone average. This high degree of advertising was necessitated by depressed industries and low population figures in Century's assigned area of sales responsibility. Ultimately, there is no reason to disagree with the conclusion of GM's own evaluation done in the ordinary course of its business. As found by GM itself on its most recent evaluation of Orlando dealers, all dealers rated (Rummel was too new) were found to be doing an effective job with respect to car sales. Even accepting GM's MDA as the market, during the last full year, Orlando MDA car sales by Chevrolet were 14.1 percent of industry, which exceeded the Zone's rate of 11.9 percent significantly and was statistically indistinguishable from the national average of 14.35 percent. During the same year (1985) the so-called AGSSA 5 out-performed the MDA by posting a 21 percent share of total. In fact, total penetration by GM in AGSSA 5 during that year was better than in 3 of the 4 other AGSSAs. Chevrolet retail share in AGSSA 5 during the last full year for which statistics were presented was nearly the same as the Zone average of 11.5 percent. Because the evidence is uncontroverted that dealerships are not appropriately added solely based on truck penetration, (this being a small percentage of overall sales and numbers of dealers and location being relatively unimportant), GM's own evidence of better than adequate car sales by the Orlando MDA Chevrolet dealers for the last full year of dealership operations, along with GM's own admitted findings that all the Orlando MDA Chevrolet dealers were effective with respect to car sales during the 1985 ratings, compels the conclusion that GM's case was simply not proved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, A RECOMMENDED THAT a Final Order be entered denying the application of Chevrolet World, Inc., for licensure as a dealer of Chevrolet vehicles in Orlando, Florida. DONE and RECOMMENDED this 5th day of June, 1987, in Tallahassee, Florida. LINDA M RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1987.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties and the evidence presented: During a routine inspection on June 11, 1986 at Ron's Chevron #4, 1790 North Hercules, Clearwater, Florida, samples of all grades of gasoline were taken. A sample was taken from each side of a pump labeled "Chevron Unleaded". Using a field method for measuring lead content, it was determined that both samples contained more than 0.11 grams of lead per gallon, which exceeds the standard of 0.05 grams per gallon. The results of the field measurement were confirmed at the Department's main laboratory by Nancy Fischer on June 16, 1986. A stop sale notice was issued on June 12, 1986, and the contaminated product was withheld from sale to the public. On June 17, 1986, Petitioner was required to post a bond in the amount of $1,000 in lieu of the Department confiscating 5,850 gallons of fuel. The product was released for sale as Chevron Regular, a leaded fuel. New product was placed in the tank and proved lead free. Lead in gasoline is detrimental to a car designed to run on unleaded fuel. The lead can cause serious damage to the emission system and possibly the engine by stopping up the catalytic converter. The parties stipulated that the sole issue in this case is the amount of the bond. There is no evidence that Petitioner intentionally contaminated the fuel for financial gain. The cause appears to have been carelessness at some point between, or at, wholesale and retail. The Department accepted a bond of $1,000 and allowed Petitioner to retain the fuel for relabeling and sale as leaded fuel. The Department's penalty imposed in this case is consistent with its past practice in factually similar cases.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order requiring Petitioner to post a $1,000 refundable bond. DONE AND ENTERED this 23rd day of October 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October 1986. COPIES FURNISHED: Ronald Trimm Ron's Chevron #4 1790 North Hercules Clearwater, Florida 33515 William C. Harris, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
Findings Of Fact On November 5, 1987, a customer at Cowarts 66 service station complained of suspected water in the premium unleaded gasoline the customer had purchased at Cowarts 66 service station. Pursuant to the complaint, William Ford, an inspector for the Department, examined the premium unleaded gasoline storage facility at Cowarts 66 service station. The inspector obtained a sample of gasoline from the premium unleaded gasoline tank. The sample was examined by a Department of Agriculture chemist. There was no water found in the sample. However, the sample showed an end point of 455 degrees Fahrenheit which exceeded the maximum end point of 437 degrees Fahrenheit allowed by the Department under its rules governing petroleum products. Rule 5F-2.001(c)(4), F.A.C. The high end point was caused by the gasoline stored in the tank being mixed with or contaminated by another petroleum product with a high end point such as diesel fuel, thereby raising the end point of the premium unleaded. The contamination was caused by Clay Oil when their delivery driver accidentally mixed two fuels together and delivered the contaminated fuel to Cowarts 66. On November 6, 1987, the inspector issued a stop sale notice. The Department then has the right to confiscate the contaminated gasoline. However, the Department may elect to allow the station to post a bond in lieu of confiscation. In this case, the Department allowed Cowarts 66 to post a $1,000.00 bond in return for replacing the contaminated gasoline with gasoline meeting the Department's standards. The bond was posted the same day as the stop sale notice. The gasoline was likewise replaced either the same day or the morning after by Clay Oil. Cowarts 66 was later reimbursed by Clay Oil for the $1,000.00 cash bond. William Ford testified that he had been an inspector for Petitioner in the Jacksonville area for 16 years and had been familiar with Clay Oil Corporation and its operation for the past 10 or 15 years. He knew the corporation to be a reputable company. Prior to the instant case, he had never had any dealings with Clay Oil Corporation regarding dispensing of contaminated fuel. He had never had an occasion to require Clay Oil Corporation to post a bond. Ford, also, testified that the violation was clearly inadvertent and not representative of the normal business practices of Clay Oil Corporation. Furthermore, Ford testified that Clay Oil Corporation had been totally cooperative with the Department and had made immediate efforts to correct the violation regarding the contaminated fuel. Clay Oil Corporation's representative, Peter T. Eyrick, testified that upon being advised that contaminated fuel had been delivered to Cowarts' service station, he immediately instigated measures to replace the contaminated fuel with fuel that met Department standards. Furthermore, he testified that he had no knowledge that contaminated fuel had been delivered or that illegal sales had occurred until being informed by Cowarts' owner and the Department's inspector. The evidence clearly establishes that this violation was inadvertant and isolated. The violation is not representative of the normal business practice of Respondent. The evidence, also, clearly demonstrated that Respondent had no intent to sell adulterated fuel.
Recommendation Based upon the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED that the Department refund to Clay Oil Corporation $750.00 of the $1,000.00 bond. DONE and ORDERED this 11th day of May, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX CASE NO. 88-0181 Petitioner, Clay Oil Corporation, did not number its paragraphs in its recommended order. I, therefore, have numbered the paragraphs in its recommended order sequentially and utilize those numbers in this appendix. Petitioner's proposed findings of fact contained in paragraphs 1, 2, 3, 4 and 5, have been adopted, in substance, in so far as material. Respondent's proposed findings of fact contained in paragraphs 1, 2 and 3, have been adopted, in substance, in so far as material. Respondent's proposed findings of fact contained in paragraph 4 has been adopted, in substance, in so far as material, except for the finding regarding the number of gallons sold. The number of gallons sold was not shown by the evidence. Respondent's proposed findings of fact contained in paragraph 5 was not shown by the evidence. COPIES FURNISHED: Peter T. Eyrick Clay Oil Corporation Post Office Box 8 Doctors Inlet, Florida 32030 Harry Lewis Michael, Esquire Florida Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Paul S. Boone, Esquire 1221 King Street Jacksonville, Florida 32204 Honorable Doyle Connor Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650
