Findings Of Fact On February 16, 1981, John Flanagan, a Graduate Chemist and Inspector for the Petitioner, Department of Agriculture and Consumer Services, (hereafter "Department") took a gasoline sample (R-247) from an unleaded pump identified as 45321" at the June Avenue Service Station, 1109 West U.S. 98, Panama City, Florida. This sample was field tested and then forwarded to the lab in Tallahassee where it was again tested on February 20, 1981 and found to be contaminated with leaded gasoline. (Testimony of Whitton, Flanagan, Petitioner's Composite Exhibit 1). As a result of the field test the Department issued a stop sale notice to Mr. Al Barry on February 16, 1981. The laboratory analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials ("ASTN") for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 0.088 gram of lead per gallon and therefore violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. 4 The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of the remaining 1,600 gallons of illegal gasoline for sale as leaded regular. The Respondent has no knowledge as to how the unleaded gasoline was contaminated. The gasoline was purchased from the Hill Petroleum Company and supplied by the Respondent to the June Avenue Service Station as unleaded gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its 1,000 bond which was required to be posted in lieu of confiscation of approximately 1,600 gallons of contaminated unleaded gasoline. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 21st day of September, 1981. COPIES FURNISHED: Les McLeod, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 William D. Dickens Dickens Oil Company 1706 Maple Avenue Panama City, Florida 32405 John Whitton, Chief Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner is licensed as a dealer of special fuel pursuant to Florida Statutes 206 and has been assigned license Number 1627. The pertinent sections of Florida Statutes which are applicable to this case are ss206.86(1), (6), (8), 206.87, 206.89, 206.93, 206.94 and Ch. 212. The pertinent rules of the Department of Revenue applicable to special fuels sales involved herein is 12A-2.03. The deposition of Albert Colozoff and all answers to interrogatories and responses to requests for admissions are admissible as evidence and are to be made a part of the record in this cause. The Petitioner sold special fuels to Zamora Truck and Car Services, Roberts Equipment Company and Florida Petroleum, Inc. Petitioner was assessed by the Respondent for tax on 1,979,201 gallons of special fuel sold by it and paid tax and interest as set forth in the letter attached hereto as Exhibit A. That no penalty paid on any of the tax paid pursuant to that letter. That Petitioner did not remit taxes that were due during the month the sales of special fuel were reported on any of the sale to Zamora, Roberts or Florida Petroleum or the remaining 1,417,263 gallons sold. Zamora and Roberts represented to Belcher that they were purchasing all special fuel from Belcher for exempt agricultural use. Due to past dealings and delivery of the special fuel to a farm, Belcher believed and relied upon the facts represented to it by Zamora and Roberts. However, Belcher did not obtain written documentation of this agricultural use from Zamora or Roberts and did not furnish the Department with any such written documentation. Belcher did not obtain resale certificates or exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. Nor did the report forms filed by Belcher contain resale certificates, exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. An employee of the Department advised Belcher that Zamora and Roberts were under investigation for fraudulent failure to report taxes. Belcher paid sales tax on sales of special fuel in the amount of $18,589.53 on the sale of 538,030 gallons of special fuel. Zamora is not a licensed dealer of special fuels. Florida Petroleum is not a licensed dealer of special fuel. Roberts is not a licensed dealer of special fuel. Belcher did not fraudulently file incorrect monthly special fuels reports. The Department of Revenue audited Belcher and computed tax, penalty and interest due as set forth in the documents attached hereto as Exhibit B. The Department of Revenue advised Belcher of its duties regarding reporting requirements in the letters from L. N. Thomas attached as Exhibit C.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent's assessment be upheld with respect to Petitioner's tax deficiency, penalty and interest as set forth in the assessments with adjustments to be made for payments paid by Petitioner under the "sales tax" theory. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James R. McCachren, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William D. Townsend, Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32301
Findings Of Fact The Golden Lariat is a service station in the business of selling regular, regular unleaded, and unleaded premium gasoline to the public. Each type of gasoline is stored in separate underground tanks by the Golden Lariat at its place of business at the intersection of State Road 69 and Interstate 10 in Jackson County, Florida. On July 23, 1987, James Hall visited the station to do an unannounced routine inspection of the premises. When he pulled up in his vehicle, he saw a hose running from the unleaded regular tank to the unleaded premium tank. The hose was connected to a small pump which in turn was hooked to Respondent's 12 volt battery. The pump was not running at the time Mr. Hall conducted his inspection. In view of what he had witnessed, Mr. Hall decided to check the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Hall was particularly interested in the results the lab would obtain on the premium-unleaded gas. He took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline. The antiknock index or octane rating that the premium unleaded gasoline tested at was 88.6 or 2.4 units lower than departmental requirements. The premium unleaded should have had an octane rating of 91 or higher in order to meet departmental standards. The results strongly indicated that the unleaded premium had been mixed with a lower octane gas such as regular unleaded, thereby yielding a lower average octane rating for the premium unleaded. The regular unleaded gasoline had an octane rating of 87.3. When Mr. Hall questioned one of the owners of the Golden Lariat, Mr. Bowan, Mr. Bowan indicated he was pumping water with the pump. Mr. Hall testified that pumping water would not be unusual since the station had had problems with water infiltration into its gasoline storage tanks in the past. However, an owner would not pump water from one tank into another tank as was indicated by what Mr. Hall had seen. The evidence clearly establishes that the Golden Lariat intentionally mixed its unleaded premium with its unleaded regular gasoline. This was done in an attempt to sell an otherwise cheaper and lower grade gasoline to the consuming public compared to the gasoline the Golden Lariat represented the consumer was buying. In light of the above facts the Department elected to allow the Golden Lariat to post a $1,000 bond in lieu of confiscation of the 1,700 gallons of gas in the unleaded premium tank. The bond was posted on August 24, 1987, and the gasoline was subsequently removed. No evidence was presented by petitioner as to the amount of gasoline sold by respondent out of the unleaded premium gasoline tank. However, Respondent did not appear at the hearing after notice was mailed to him on March 22, 1988. The notice was mailed well in advance of the hearing and afforded Respondent adequate warning of the upcoming hearing. By failing to appear at the hearing after adequate notice, Respondent is deemed to have abandoned its claim to a refund; and therefore, Respondent is not entitled to a refund of any portion of the bond it posted in lieu of confiscation. Rule 22I-6.022, Florida Administrative Code.
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 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 At a routine inspection conducted on December 27, 1978 at Suncoast's Fine Station 45 at 825 49th Street, St. Petersburg, Florida, a sample of gasoline taken from the unleaded pump was returned to the mobile laboratory for testing. This test showed the lead content to exceed .110 grams per gallon. A stop sale order was placed on the pump from which the sample was taken and the sample was forwarded to Tallahassee for further testing to ascertain the exact lead content. The laboratory test conducted at Tallahassee showed the sample to have a lead content of .312 grams per gallon. In lieu of having the gasoline, on which the stop sale order was entered, confiscated, Respondent posted a bond in the amount of $1007.68 and the gasoline was released to be sold as regular gasoline. At the time the stop sale was placed on the tank it was determined that some 1441 gallons of excess lead gasoline had been sold from this tank since the tank was last filled. In lieu of confiscating the remainder of the gasoline in this tank, Petitioner was given the option of posting a bond in the amount of $1007.68, which represented the retail price of the gasoline sold from that tank. It is the forfeiture of this bond which Petitioner is contesting, and no evidence was submitted by Petitioner why the bond should not be forfeited.
Findings Of Fact On July 6, 1982, Jimmy Haywood Nixon, an employee off petitioner, took a sample of gasohol offered for sale as "super unleaded ethanol enriched" (by pumping it through a nozzle) at the 7-11 food store, 111 West Burgess Road, Pensacola. He delivered the sample to Pat Flanagan, a chemist with petitioner's mobile lab No. 2. According to Mr. Flanagan, there was a third again too much alcohol in the mixture. He was of the opinion that the high alcohol content accounted for the low (1590F.) "50 percent evaporated temperature." Being advised by Mr. Flanagan that the gasohol was nonstandard, Mr. Nixon returned on July 7, 1982, to lock the pump. Later that day, after posting bond, respondent's Mr. Cooper tried to figure out how much unleaded gasoline to add to the 4,589 gallons in the 7-11 tank in order to reduce the fraction of alcohol to one-tenth. To this end, samples taken, not from the nozzle, but from deep in the tank were analyzed. Mr. Flanagan performed the same procedure on the tank sample as he had run on the nozzle sample. He added dyed ethylene glycol to the sample, shook the mixture and waited for it to stratify. Then he measured the amount by which the dyed layer had grown. This increment was assumed to be pure alcohol. The tank sample test indicated that the mixture was 12.3 percent alcohol, a full point less than the nozzle sample's ethanol component. The difference is presumably attributable to slight stratification in the tank. Mr. Cooper also performed a test. This test employed the same methodology as Mr. Flanagan's test, but the reagent was distilled water rather than ethylene glycol, and the result was 9.8 or 9.9 percent alcohol. It may be that additives other than ethanol dissolved in the ethylene glycol. On July 9, 1982, Mr. Cooper arrived in a compartmented truck with an empty chamber for blending, 100 gallons of alcohol, and 1500 gallons of unleaded gasoline. He added 1300 gallons of unleaded gasoline to the tank and blended the mixture. This resulted in 5889 gallons that tested at 7.5 percent alcohol, so all 100 gallons of alcohol were added. The resulting mixture tested at 9.167 percent alcohol.
Recommendation This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 29, 1982. Respondent was unrepresented at the hearing, but Mr. Donald P. Robinson, respondent's treasurer, was oresent and was, without objection, called as a hearing officer's witness. Petitioner was represented by counsel: Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32301 In order to secure the release of certain gasohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gasohol was nonstandard when impounded and what disposition to make of the bond respondent posted.
Findings Of Fact On January 14, 1981, Normandy Texaco received a load of product consisting of 4,900 gallons of regular, 1,500 gallons of hi-test unleaded, and 2,350 gallons of regular unleaded gasolines. Samples were taken on January 16, and by report issued on January 23 the hi-test unleaded tested at 88.4 octane. This is 2.6 octane less than the registered octane level of 91.0. A stop-sale Notice was issued on January 23. After posting a bond in the amount of $1,000.00, the hi-test gasoline was released to Normandy Texaco, and pumped into the regular unleaded tank on January 27. Mr. Obi made a claim with Texaco, Inc., whose tanker delivered the gasoline, for mis-delivery by cross pumping the product into his tanks. This claim was settled by payment of $36.16 to Obi by Texaco. These facts are not disputed by the parties.
Recommendation Based upon the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED that the Petition of William J. Obi for return of the $1,000.00 bond posted in lieu of confiscation of substandard unleaded gasoline, be denied. THIS RECOMMENDED ORDER entered on this 2nd day of April, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1981. COPIES FURNISHED: Mr. William John Obi 1766 Jones Road Jacksonville, Florida 32220 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
Findings Of Fact On June 2, 1983, Petitioner Department of Agriculture and Consumer Services' Inspector James Gillespie conducted an inspection of Respondent Gas Kwick, Inc.'s service station located at 8401 North Armenia Avenue, Tampa, Florida. He took samples of all petroleum products and observed that the Super Unleaded Ethanol contained suspended matter. He thereupon took the sample for analysis to the Department's portable laboratory for analysis on the same date. The field analysis disclosed that the product contained more than 14.2 percent of ethanol (ethylene alcohol) which exceeded the maximum allowable amount of 10 percent. Further, the 50 percent evaporated temperature of the product was 164 degrees which was less than the minimum allowable 170 degrees. The product sample was also sent to Petitioner's main laboratory for confirmation of the findings, and it was there determined that the super unleaded sample contained 25.2 percent of ethanol. Excessive ethanol in gas9line can be corrosive and cause damage to plastic parts of the engine. It can also cause phase separation of the contents in the gas tank producing layers which can get into the carburetor and cause the vehicle to stop. Excessive ethanol also diminishes driveability of the automobile and can damage fuel pumps. (Testimony of Gillespie, Fisher, Petitioner's Exhibit 1) Inspector Gillespie issued stop sale notices to Respondent on June 2 and June 3, 1983, which notified Respondent to immediately stop the sale of the super unleaded product and hold the same subject to further instructions. In order to obtain release of the product, Respondent elected to post a bond in the amount of $614.25 which represented the retail price for 394 gallons of the product that had been sold. One of the stop sale notices had been released by the installation of a new filter by Respondent to eliminate suspended matter. The release notice by which Respondent elected to post a cash bond in lieu of confiscation of the product provided that the gasoline in question should be removed from the tank and replaced by a new product. (Testimony of Gillespie, Petitioner's Exhibit 1) Respondent's representative testified that the firm had tried to be careful in the use of ethanol enriched gasoline and had immediately taken corrective action with respect to the super unleaded product in question by replacement. He pointed out that the amount of gasoline found to be defective represented only about 3 percent of the total amount located at the firm's 20 service stations and that this was a first offense which was unintentional. (Testimony of Perrone)
Recommendation That the bond posted by Respondent in the amount of $614.25 be retained by Petitioner as an assessment under Section 525.06, Florida Statutes. DONE and ENTERED this 8th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 8th day of November, 1983. COPIES FURNISHED: Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Tony Perrone, Comptroller Gas Kwick, Inc. Post Office Box 5751 Tampa, Florida 33675 Honorable Doyle C. Conner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
