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 During a routine inspection on March 30, 1983, a sample diesel fuel taken from Respondent's place of business in Clearwater, Florida, was tested and was found to have a flash point of 660F. Normal flash point for diesel fuel is 1000F. A Stop Sale Notice was issued March 30, 1983, and sales from this tank were stopped. On March 31, 1983, Respondent posted a $1,000 bond in lieu of having the fuel confiscated. Before the Stop Sale Notice, 1,282 gallons of contaminated diesel fuel had been sold from this tank at a price of $1.099 per gallon.
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, MAYO BUILDING TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Respondent, Hudson Oil Company, is the owner of a retail gasoline outlet located at 1000 Ninth Street North, St. Petersburg, Florida. John H. Newburn is the manager of Respondent's retail station. On August 25, 1989, Petitioner, Department of Agriculture and Consumer Services' inspector, Henry J. Crafa, made a routine inspection of Respondent's retail gasoline station and took a sample of the unleaded, regular and premium unleaded gasolines. Inspector Crafa submitted the samples taken from Respondent's facility to Petitioner's laboratory for analysis. The results of Petitioner's laboratory analysis revealed that the unleaded and premium gasoline contained ethanol. Additionally, the lab analysis revealed that Respondent's regular gasoline contained water. The lab analysis revealed that Respondent's premium unleaded had an Antiknock Index of 91.6, whereas the posted Antiknock Index was 93.0. This indicates that the Antiknock Index of the premium unleaded fuel was 1.4% less than the Antiknock Index which was displayed on the dispensing tank. The lab analysis also revealed that the Respondent's unleaded gasoline contained 10.5% ethanol and the premium unleaded gasoline contained 8.8% ethanol. At the time of Petitioner's inspection on August 25, 1989, there were approximately 8,000 gallons of unleaded gasoline and approximately 2,000 gallons of premium unleaded gasoline in Respondent's dispensing tanks, and for both grades of gasoline, the retail price per gallon was in excess of $1.00. More than 2,000 gallons of gasoline was sold to retail customers at a price in excess of $1.00 per gallon. At the time of Inspector Crafa's inspection, Respondent's fuel tanks failed to display on the upper one-half of the front panel, in a position clear and conspicuous from the driver's position, that its unleaded and premium unleaded gasoline contained ethanol. On August 31, 1989, Petitioner issued a "Stop Sale Notice" for Respondent's unleaded and premium unleaded gasoline. In lieu of confiscation, and in order to gain release and possession of its unleaded and premium unleaded gasoline, Respondent entered into a release notice and/or agreement with Petitioner whereby Respondent posted a $1,000.00 bond in lieu of confiscation of its gasoline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's request for a refund of the $1,000.00 bond that it posted in lieu of confiscation or its fuel products.1 DONE and ENTERED this 2nd day of November, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1990. Copies furnished: Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 John H. Newburn 1000 Ninth Street North St. Petersburg, Florida 33705 Mary Hudson Hudson Energy Corporation Post Office Box B Kansas City, Kansas 66103 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact On June 8, 1982, a super ethanol enriched regular gas sample taken from Car-Go station No. 9840 owned by Respondent was subsequently tested and found to be below the 50 percent distillation temperature specified by the regulations. A Stop Sale Notice was issued on June 11, 1982, and on June 14, 1982, Respondent posted a $1,000 bond and the gasoline was released to Respondent to be upgraded and again offered for sale. On June 9, 1982, a similar sample taken from Eastern station No. 2108 was tested, with similar results. Again a Stop Sale Notice and bond followed. On June 11, 1982, similar samples taken from Eastern station No. 2104 and San Ann No. 171981 were tested, with similar results. As a result of these samples showing nonconformity with prescribed standards, Respondent posted a $1,000 bond for each station. Accordingly, a total of $4,000 was posted for the four stations so the gasoline could be returned to the plant for upgrading to meet requirements. Respondent does not contest any of the above facts and contends only that it was ignorant of the requirements and did not intend to violate the law.
Findings Of Fact On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville, Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline. On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons. On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida. There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case. Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
Recommendation It is recommended that upon payment by the Petitioner of $507.91 and $206.70, respectively, the bond of the Petitioner be cancelled and this case be closed DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979. COPIES FURNISHED: Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304 James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512 Mr. John Whitton Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 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. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
The Issue Whether the assessment of $767.27 as a bond was proper.
Findings Of Fact On May 21, 1986, the samples of fuel were taken at Hicks' Gulf Station, U.S. 19 South and Hicks' Gulf Station, U.S. 19 North in Perry, Florida. Using ASTM D86, it was determined that the samples of Good Gulf regular leaded gasoline taken at the Hicks' Service Stations contained contaminants that caused their evaporative end points to exceed 437/0F, the acceptable maximum set by Florida Statute and Rule 5F-2.01, Florida Administrative Code. These results were confirmed at the main laboratory in Tallahassee on June 5, 1986. Stop sales notices were issued on May 21, 1986. On May 23, 1986, a bond of $767.27 was posted by Morris Petroleum, Inc., in lieu of the Department confiscating 1,754 gallons of the contaminated fuel. Delivery and sales records allowed the Department to determine that 791 gallons of contaminated fuel had been sold to the public at the two stations at 97 per gallon since the last delivery from the wholesaler. Nancy Fischer, chemist for the Department of Agriculture and Consumer Services, testified regarding the Department policy. The Department tests motor fuels at terminals and wholesalers. However, the Department does not levy fines against wholesalers and terminals. In cases where fuels being held by terminals and wholesalers are found to be contaminated, the Department issues a stop sale order. When establishing the amount of bond to be paid by a retailer for contaminated fuel, the Department uniformly bases the bond on the retail value of the substandard product sold to retail customers at the retail price. The Respondent, Morris Petroleum, Inc., is a wholesale distributor of motor fuels. Morris Petroleum sold the motor fuels in question in this case for 81.5 per gallon to Hicks' Service Stations in Perry, Florida. It is common practice for wholesalers to pay the bonds levied against retailers in order to maintain the business of the retailers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department be affirmed and the bond of $767.27 be retained. DONE and ORDERED this 1st day of December 1986 in Tallahassee, Florida. STEPHEN F. DEAN 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 1st day of December 1986. COPIES FURNISHED: William C. Harris, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32301 John M. Morris, Jr. Morris Petroleum, Inc. Post Office Box 495 Monticello, Florida 32344 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301
