Findings Of Fact Sunshine Jr. Stores, Inc., #214 is a service station in the business of selling regular leaded, regular unleaded, and unleaded premium gasoline to the public. Store # 214's place of business is located at the intersection of East Avenue and U.S. Highway 98 in Panama City, Florida. On August 6, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood 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 Departmental testing revealed that the regular-leaded gasoline did not contain any lead. The pumps had been mislabeled at the station and the station was in fact selling regular leaded gasoline as regular-unleaded gasoline. Since the leaded gasoline did not contain any lead, it fell below Departmental standards for leaded gasoline. The store had sold 2467 gallons of the mislabeled product. In light of the above facts, the Department elected to allow the Sunshine-Jr. Store, #214, to post a $1,000 bond in lieu of confiscation of the gasoline. The bond was posted on August 9, 1990. The Department assessed Sunshine-Jr. Stores, Inc., #214 the retail value of the product sold, which is equal to the posted bond. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.
Recommendation It is accordingly, RECOMMENDED: That the request of Sunshine Jr. Food Stores, #214 for refund of the bond posted be DENIED and that the assessment by the Department of Agriculture and Consumer Services in the amount of $1,000 be sustained. DONE and ORDERED this 16th day of March, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1991. COPIES FURNISHED: Milton Lawrence P. O. Box 2498 Panama City, Florida 32402 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
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
The Issue The parties stipulated that the quality of the gasoline was not at issue and that the sole issue was the reasonableness of the amount of the bond. The amount of the bond is based upon the price of the mislabeled gasoline sold or estimated to have been sold, not to exceed $1,000.00. The factual issue became how much gasoline had been sold since the tanks were mislabeled by IGS.
Findings Of Fact On June 4, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Lil General Food Store, 2099 S. Goldenrod Road, Orlando, Florida. This inspection revealed that the regular unleaded gasoline had a 10.3 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. On June 5, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Circle K Store, 29495 S.W. 152nd Avenue, Homestead, Florida. This inspection revealed that the regular unleaded gasoline had a 9.6 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. IGS refurbishes gasoline pumps, painting and replacing the labels on the pumps. IGS was engaged in this activity for Circle K in May 1985 and during that month refurbished both of the pumps subsequently cited by the Department of Agriculture. The Respondent was given the opportunity to present evidence regarding the date the signs on the pumps were refurbished and the amount of gasoline pumped after that date. The Respondent was unable to present evidence on the amount of gasoline actually pumped. The pumps in question had been refurbished nearly a month before the inspections.
Recommendation The bonds of $1,000.00 in the two instances above were reasonable and justified, given the violations of Section 5F-2.03(7), Florida Administrative Code (1875 Supp.) and Section 525.06, Florida Statutes. DONE AND ORDERED this 10th day of December 1985 in Tallahassee, Florida. STEPHEN F. DEAN 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 10th day of December, 1985. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building - Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Patrick J. Donnelly, President IGS - Identification and Graphic Services Company, Inc. 3331 W. Main Tampa, Florida 33607
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 here presented concerns the alleged violation of Rule Subsection 5F-2.01(1)(j) , Florida Administrative Code, related to allowable amounts of lead per gallon in gasoline which is dispensed under the distinctive name "Unleaded Gasoline." This alleged violation of the Rule potentially subjects the Respondent to the penalty set forth in Section 525.06, Florida Statutes (1980). The particular facts of this allegation are that on September 15, 1981, a sample of gasoline from the pump at the Respondent's station marked "Unleaded Premium Gasoline" was extracted and a test conducted revealing .31 grams per gallon of lead content and a further test was conducted on September 25, 1981, at the same station and pump revealing .23 grams of lead per gallon, in violation of the maximum allowable .05 grams per gallon. FINDINGS OF FACT 1/ This case was presented for hearing based upon the request for a formal Subsection 120.57(1), Florida Statutes, hearing, made by the Respondent, Emmett C. Wever. The matters to be considered are as set forth in the Issues provision of this Recommended Order. The hearing was conducted on December 14, 1981, in keeping with the Respondent's request. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State Government which has the obligation of gasoline and oil inspection pursuant to the provisions of Chapter 525, Florida Statutes. The Respondent is the proprietor of a station which dispenses gasoline, at 1204 Ocean Shore Boulevard, Ormond Beach, Florida. On September 15, 1981, an employee of the Petitioner made a check of the unleaded premium gasoline pump from which the Respondent had been selling that product. The sample extracted was analyzed on September 22, 1981, and this analysis revealed a lead content in the sample of .31 grams of lead per gallon. The results of that report were made known to the Petitioner's employee on September 25, 1981, and a further check of the aforementioned gasoline pump was made on that same date. Subsequent testing of that sample revealed .23 grams of lead per gallon. In the face of these revelations of lead content in the gasoline, a Stop Sale Notice was given to the station owner. The effect of the Stop Sale Notice would allow the confiscation of gasoline remaining in the unleaded premium tank at the Respondent's station or in lieu of the posting of a bond, not to exceed $1,000.00. The Respondent elected to post a bond of $953.30 which was equal to the 657 gallons which had been dispensed from the subject gas pump during the questioned period. The Respondent was allowed to sell the remaining 1,046 gallons in the tank, which was associated with the gasoline pump, as regular gasoline. Excessive lead, when introduced into those automobiles which are required to use unleaded gasoline, can damage the catalytic converter, and it is estimated that this damage would occur after burning approximately five (5) tanks of contaminated unleaded gasoline. In addition, lead in the fuel tends to foul the engine. There was no showing in the course of the hearing that the Respondent had knowledge of the lead content discovered on September 15 and 25, 1981, which amounts were in excess of the standards set forth in Rule Subsection 5F- 2.01(1)(j), Florida Administrative Code, calling for no more than .05 grams of lead per gallon in gasoline sold as unleaded fuel.
The Issue There are two issues presented in this proceeding. One, whether Respondent and/or its employees or agents possessed, sold or served on its licensed premises alcoholic beverages labeled as and represented to be a specific alcoholic beverage(s), but the containers did not contain the alcoholic beverage(s) as stated on the labels of the bottles (misrepresentation), in violation of Section 562.061, Florida Statutes (2004).1 Two, whether Respondent reused or refilled with distilled spirituous liquors for the purpose of sale bottle(s) or other containers which once contained spirituous liquors, misrepresented or permitted to be misrepresented the brand of distilled spirits being sold or offered for sale in or from any bottle or containers for the purpose of sale in violation of Section 565.11, Florida Statutes.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, depositions filed, documentary materials received into evidence, stipulations by the parties, and evidentiary rulings made pursuant to Section 120.57, Florida Statutes, the following relevant, substantial, and material facts are determined: Petitioner, Department of Business and Professional Regulations, by and through the Division of Alcoholic Beverages and Tobacco (DABT), is the state agency responsible for supervision of the conduct, management, and operation of the manufacturing, packaging, distribution, and sale within the state of all alcoholic beverages and the enforcement of the provisions of the Beverage Law, the Tobacco Law, and rules and regulations of DABT in connection therewith. It is the express legislative intent that the state retains primary regulatory authority over the activities of licensees under the Beverage Law within the power of the state and DABT. At all times material hereto, Respondent, Robert Joseph Molitor, d/b/a Oar House Bar and Liquors (Oar House), was the licensee holder of license number 62-00683, Series 4-COP, issued by DABT, and owner of the licensed premises located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927. This facility consists of a bar with an open doorway into the adjoining liquor store. The Series 4-COP license allows Respondent to make sales of beer, wine, and liquors at the liquor store adjoining the bar for off-premises consumption and allows sales of beer, wine, and liquor for on-premises consumption at the bar. John Molitor, son of Respondent, Robert Joseph Molitor, at all time pertinent was the operational manager of the Series 4-COP licensed business premises. Oar House and the owner of the licensed premises are subject to the regulatory jurisdiction of DABT because of having been issued license number 62-00683, Series 4-COP, by DABT. DABT received an unsolicited telephonic compliant from Robert Boyle, a former Oar House bartender and customer. Mr. Boyle complained that Oar House was "refilling" brand-named bottles of liquor with cheaper brands of liquor. Mr. Boyle also mentioned that a green funnel, believed to have been used to refill the liquor bottles, could be found in the storeroom behind the bar at the licensed premises. Unsolicited telephonic complaints from customers are but one source alerting DABT to those bars where there are suspicions and questions regarding liquors sold and served to its customers. Having received a complaint that Oar House was refilling liquor bottles, DABT initiated an investigation and on July 24, 2003, DABT special agents, Jim Dykes and DiPietro (no first name in the record), entered the premises of Oar House. During the July 24th visit, the agents identified themselves to John Molitor and requested he "stick around" for any questions they might have upon completion of their investigation. John Molitor ignored the agents' request and departed the premises before the agents concluded their investigation. The agents found a green funnel on the storeroom shelf behind the bar as reported by Mr. Boyle. The agents photographed the green funnel. Agents Dykes and DiPietro observed and identified a bottle of expensive liquor with a worn, stained label in a speed rack behind the bar. The expensive liquor identified with the worn label was (by brand name) Johnnie Walker Black Label Scotch Whiskey (Johnnie Walker Whiskey). The speed rack was located in the middle of the bar for easy and equal access from either end of the bar. The brand labels on liquor bottles stored in speed racks are visible from the customer side of the bar. DABT Agents Dykes and DiPietro performed the Williams Reagent Field Test on the seized bottle of Johnnie Walker Whiskey. The Williams Reagent Field Test consists of comparing the "color" of a suspect brand bottle of liquor to an original unopened bottle of the same brand product taken from the adjoining package store. The "subject" bottle showed a visual difference of color from the original same brand product. Because the Williams Reagent Field Test is not as reliable as the chemical analysis testing processes, all suspect bottles of alcohol tested using the Williams Reagent Field Test are submitted for additional chemical analysis testing. The agents seized the suspect bottle of Johnnie Walker Whiskey and issued to Respondent Evidence Receipt No. 53528. For this suspected violation (refilling), DABT issued a Notice of Warning to Respondent dated July 24, 2003. Six days later, July 30, 2003, DABT agents again visited the Oar House bar and again found Respondent in possession of three liquor bottles suspected of containing liquor different from the specific brand labeled. The three suspect bottles of liquor were Chivas Regal Scotch Whiskey (Chivas Regal Whiskey), J & B Blended Whiskey (J & B Whiskey), and Canadian Club Blended Whiskey (Canadian Whiskey). The Williams Reagent Field Test performed on the three seized bottles on July 30, 2003, showed a difference of color of the suspect bottles compared to the original unopened products of the same brand. The agents seized, corked, and photographed the suspect bottles of liquors and issued Respondent Evidence Receipts for the seized liquor. The four bottles of liquor found on Respondent's licensed premises that were field-tested, seized, and photographed were: (1) Johnnie Walker Whiskey, (2) Chivas Regal Whiskey, (3) J & B Whiskey, and (4) Canadian Club Whiskey. Each of the above four bottles was taped, sealed, and marked for identification, by initials of the agent, in preparation for shipping, testing, and chemical analysis by the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms (BATF), National Laboratory, in Ammendale, Maryland. On or about November 3, 2003, BATF senior alcohol analysis chemist, James Jagonathan, Ph.D., caused to be performed, four alcohol chemical analysis tests on each of the four suspect bottles of liquor (Findings of Fact 10) sent under seal by DABT. The four chemical alcohol analysis tests performed by Dr. Jagonathan are standard tests approved by the Association of Official Analytical Chemists (AOAC). These tests establish the objective criteria for determination of whether an open bottle of alcohol contains the requisite "qualitative" and "quantative" brand alcohol and the amount of alcohol therein as stated on the label, minus allowable lost. The four tests performed were: (1) the solids test, which measures the quantity of nonalcoholic materials in the suspect bottle compared to the permissible quantity of nonalcoholic materials in the original manufactured brand bottle; (2) the lovibond test, which measures the difference in the color of the alcohol in the suspect bottle compared to the color of the alcohol in the original manufactured brand bottle and is performed by use of a color UV Spectrometer; (3) The alcohol-density meter test, which measures the "volume" of alcohol in the suspect bottle compared to the "permissible volume" of alcohol in the original manufactured brand bottle; and (4) the fusel oils test, which measures the quantity of "fusel oils" in the suspect bottle compared to the "permissible quantity of fusel oils" in the original manufactured brand bottle. The fusel oils test is a "comparative measurement" test, and the comparison is made by use of the Gas Chromatography meter. In each of the above test, objective predetermined deviation "allowances" for losses due to manufacturing and processing are permissible (i.e. Findings of Fact 14, 17, 18, and 19). There is no legal requirement that DABT identify the specific type/brand of alcohol ("refilled" or added to the original); identify the specific type or name of the solids ("added" to the original); or provide explanation for alcoholic "evaporation" resulting from exposure or open pourers found in a suspect bottle(s). Dr. Jagonathan informed DABT that two of the suspect bottles (Sample No. 120030859, J & B Whiskey, 50 ml, 40 percent by volume and Sample No. 120030862, Johnnie Walker Whiskey, 750 ml, 40 percent by volume) were "refilled" with an alcoholic product other than as listed on the respective labels. The alcohol content of the "suspect" bottle of J & B Whiskey was 39.10 percent. The alcohol content of the original manufactured J & B Whiskey product was 39.95 percent. This 0.85 percent variation of alcohol content from the original manufactured product conclusively demonstrated "refilling" with an alcoholic product other than as listed on the respective label. The alcohol content of the "suspect" bottle of Johnnie Walker Whiskey was 39.15 percent. The alcohol content of the original manufactured bottle of Johnnie Walker Whiskey product was 39.90 percent. This 0.75 percent variation of alcohol content from the original manufactured product conclusively demonstrated "refilling" with an alcoholic product other than as listed on the respective label. Dr. Jagonathan informed DABT that the suspect bottle (Sample No. 3120030861, Chivas Regal Whiskey, 50 ml, 40 percent by volume) contained liquid other than the original product (i.e. "probably refilled"). Dr. Jagonathan advised DABT that the suspect bottle (Sample No. 120030860, Canadian Club Whiskey, 50 ml, 40 percent by volume) was consistent with an original manufactured authentic product. Dr. Jagonathan gave uncontroverted testimony that producers/distillers are required to have in sealed, unopened bottles the alcohol content (i.e. 40 percent) stated on the label, per volume. DABT acknowledges that the escape of a minuscule amount of alcohol evaporation during the distilling and bottling processes permits producers/distillers a 0.15 percent deviation from the 40 percent required alcohol standard (i.e. 40.15 percent high and 39.85 percent low are permissible). Possession of bottles of an alcoholic beverage with alcohol content above and/or below the permissible 0.15 percent deviations from the required 40 percent alcohol content per volume is illegal. Regarding the lovibond (color) test, Dr. Jagonathan gave uncontroverted testimony that a 0.10 percent (+ or -) deviation from the normal color, as measured by color UV Spectrometer, is allowed for loss during manufacturing, distilling and bottling processes. As an example, with the J & B Whiskey, the "suspect" bottle had a 7.7 percent lovibond color test result, and the "original" product a 3.0 percent lovibond color test result (7.7 percent - 3.0 percent = 4.7 percent). The Johnnie Walker Whiskey "suspect" bottle had a 2.8 percent lovibond color test result and the original a 10.9 percent lovibond color result( 10.9 percent - 2.8 percent = 7.2 percent). By testimony of an expert alcohol chemist of the National Alcohol and Tobacco Tax and Trade Bureau (ATTB) Laboratory in Ammendale, Maryland, based upon the accepted methods of standard tests approved by the AOAC, the established objective criteria for determining whether an open bottle of alcohol contains the requisite qualitative and quantative brand alcohol and amount of alcohol therein, minus allowable loss as stated on the label, are determined by the four tests stated above. DABT proved by clear and convincing evidence that the J & B Whiskey (Sample No. 120030859) and Johnnie Walker Whiskey (Sample No. 120030862) were "refilled" with liquids other than the original liquid from the manufactures. The testing results conclusively established that the alcoholic chemical contents of the above samples tested were not the same as the content of what an original product label would have been for each respective sample. DABT, by uncontroverted clear and convincing evidence, proved that Chivas Regal Whiskey (Sample No. 120030861) "probably" contained a refilled liquid other than the original liquid sent from the manufactures. The test results conclusively established that the chemical content of the sample tested was not the same as the content of what an original product would have been for this sample. DABT, by uncontroverted clear and convincing evidence proved that the Canadian Club Whiskey's (Sample No. 120030860) liquid contents were consistent with and within allowable deviation with the authentic product sent from the manufacturer. The test result conclusively established that the chemical content of the sample tested was the same as the content of an original product. DABT proved clearly and convincingly that Respondent possessed the three bottles herein above labeled as "authentic" whiskey. Those three suspect (i.e. "refilled") bottles seized from Respondent's bar did not have the same chemical content as Respondent's original whiskey of the same brand brought from Respondent's adjoining liquor store. Respondent argues that the standard tests approved by AOAC do not: (1) take into consideration or make allowance that "explain" alcohol evaporation loss due to room (heat) temperature and (2) make an allowance for alcoholic loss due to length of time bottles were left with open pourers in the speed rack. Also, the established objective criteria (plus or minus 0.15 percent) for determination of whether an open bottle of alcohol contained the requisite qualitative and quantative brand alcohol and amount of alcohol therein, minus allowable loss as stated on the label are "arbitrary," are each contrary to existing case law establishing legal precedent and, thus, should be disregarded for want of legal foundation. These arguments, contrary to law, are rejected. The opinion testimony of Respondent's witness, Irwin L. Adler, Ph.D., engineer and professional wine taster, who was not qualified as an expert in chemical alcohol analysis, was neither relevant nor material to the "refilling" issues in this proceeding. DABT agents seized four bottles from the licensed premises that were sent to the ATTB's laboratory for testing. The results show that three of the four bottles were materially altered in some fashion that is inconsistent with the Florida Beverage Law. Respondent was clearly negligent and did not exercise a "reasonable standard of diligence" by allowing materially altered refilled bottles of scotch to be present (sold) on his licensed premises.2 DABT proved by clear and convincing evidence that Respondent, Robert Joseph Molitor, d/b/a Oar House Bar and Liquors, holder of license number 62-00683, Series 4-COP, and owner of the licensed premises located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927, violated Section 565.11, Florida Statutes, by and through Section 561.29, Florida Statutes, as alleged in the Amended Administrative Complaint, and is, therefore, subject to appropriate penalty.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: Finding that Respondent, Robert Joseph Molitor, licensee holder of license number 62-00683, Series 4-COP, d/b/a Oar House Bar and Liquors, located at 4807 22nd Avenue, South, St. Petersburg, Florida 33711-2927, as a first-time offender, violated Sections 562.061 and 565.11, Florida Statutes, as charged in the Amended Administrative Complaint; Imposing an administrative penalty against Robert Joseph Molitor, licensee holder of license numbered 62-00683, Series 4-COP, and suspending his license numbered 62-00683, Series 4-COP, for a period of 20 consecutive days; and Imposing a civil penalty against Robert Joseph Molitor, licensee holder of license numbered 62-00683, Series 4-COP, of an administrative fine in the amount of $1,000.00, payable to the Department. DONE AND ENTERED this 23rd day of November, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2005.
The Issue The sole issue to be resolved in this proceeding is whether the materials commonly known as mineral spirits, xylene and naphtha fall within the definition of "petroleum product" in Section 376.301(10), F.S. The Department asserts that mineral spirits, xylene and naphthas are not "petroleum products" as that term is defined in the statute. If mineral spirits, xylene and naphthas are within the scope of the definition, then monies from the Inland Protection Trust Fund will be available under the EDI Program to fund a site sponsored clean up of Petitioner's property. If mineral spirits, xylene and naphtha are not within the scope of the definition, then Petitioner will be responsible for cleaning up the contamination emanating from its property. If Petitioner is financially unable to clean up the contamination, monies from the Water Quality Assurance Trust Fund would be available to clean up the site. In any case involving the expenditure of Water Quality Assurance Trust Fund money, it is the duty of the Department to seek cost recovery. Section 376.307, F.S. In order to decide whether the Department was correct in excluding mineral spirits, xylene and naphtha from the definition of petroleum product, I must determine whether the Department has construed the statute in a permissible way under Administrative Procedures Act disciplines. See Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1982). The standard of review in this case is whether the Department's interpretation of the statute, which it has been charged with the duty to administer, is within the range of possible interpretations. If it is, the Department's interpretation must be upheld. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); Nelson, supra, at 858.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, to provide for the expeditious cleanup of property contaminated with petroleum or petroleum products. The Act recognizes the vulnerability of Florida's groundwater to contamination and provides several mechanisms by which cleanups of contamination resulting from the storage of petroleum and petroleum products may be funded. See sections 376.30(1), and 307.3071(a), F.S. The purpose of the SUPER Act cleanup programs is to avoid delays in cleanups resulting from litigation and determinations of liability. As part of the SUPER Act, the legislature created the program which is of direct relevance in this litigation. In Section 376.3071(9), the Early Detection Incentive (EDI) Program was created. That program provides for cleanups of sites contaminated with discharges from petroleum storage systems. The cleanups are to be conducted by the state at its expense, with no recourse for restitution of the costs against the site owner. In order to be eligible, one must have a discharge from a "petroleum storage system" which was reported to the Department after July 1, 1986, and before the termination of the incentive period. A "petroleum storage system," as that term is defined in Section 376.301(11), F.S., is a stationary tank with its integral piping and dispensing units which is used for the storage of petroleum product. In order to become eligible for participation in the EDI Program, a site must have been contaminated with "petroleum product." Owners of sites which are not eligible for participation in the EDI program must clean up their sites at their own expense, just as the owners of sites contaminated with a myriad of other pollutants not classified as "petroleum product" must do. Section 376.305(5), F.S. Reasons for EDI Program ineligibility can include the nature of the substance discharged, the statutory ineligibility criteria contained in Section 366.3071(9)(b)3, F.S., and the date of the discharge report. Section 376.3071(9), F.S. Petitioner, Commercial Coating Corporation, is a paint manufacturer located at 3501 N.W. 74th Street, Miami, Florida (T/77; P2). It primarily makes trade sales paint, commonly referred to as house paint, but also produces some specialized paints. (T/77-78). The petitioner's facility consists of eleven (11) underground tanks (T/37; P4). Two of the tanks contained mineral spirits (T/39,41), six of the tanks contained resins (T/42), one tank contained VM&P naphtha (T/42), and one tank was not in use. It is not known what the eleventh tank contained. VM&P naphtha is an acronym for Varnish Makers and Painters naphtha, which is commonly used as a solvent in paints and varnishes (D2 at p.51). As a result of a discharge from one or more of the tanks, Petitioner's site has become contaminated. The contamination consists primarily of mineral spirits, xylene and naphtha. (T/38-41; P22 at p.2-5). The only type of naphtha for which competent substantial evidence exists of storage at the site is VM&P naphtha. Other contaminants at the site include toluene, benzene, and ethyl benzene (T/39-40; P2 at p.2-5). The contamination was discovered on or about December 5, 1986 (P2). A consulting firm was hired and began assessment work at the site on December 22, 1986 (T/43). The results of the assessment were compiled on April 6, 1987 (P22). The Petitioner filed its EDI Program Notification Application on or about April 21, 1987 (P2). The application was denied by the Department on May 21, 1987. The basis of the denial was that mineral spirits, naphtha and xylene are not "petroleum products" as that term is used in Chapter 376, F.S. (P3). "Petroleum product" is defined in Section 376.3071(10), F.S., as follows: "Petroleum product" means any liquid fuel commodity made from petroleum, including, but not limited to, all forms of fuel known or sold as diesel fuel, kerosene, all forms of fuel known or sold as gasoline, and fuels containing a mixture of gasoline and other products, excluding liquefied petroleum gas and American Society for Testing and Materials (ASTM) grades no. 5 and no. 6 residual oils, bunker C residual oils, intermediate fuel oils (IFO) used for marine bunkering with a viscosity of 30 and higher, asphalt oils, and petrochemical feedstocks. Sites which are contaminated with substances other than "petroleum product" are ineligible to participate in the EDI Program. In determining whether mineral spirits, xylene and naphtha are petroleum products, it must first be determined whether they are a liquid, a fuel, and a commodity. Mineral spirits, xylene and naphtha are clearly liquids (T/57). As far as their physical composition, they are not dramatically different from gasoline. Mineral spirits and naphthas are distillates of crude petroleum oil and, in terms of boiling point, exhibit similarities to gasoline (T/52-54. They are also similar in terms of boiling point to "a variety of common solvents" (T/53). There is no evidence on the record regarding the boiling point of xylene or its physical nature. As will be discussed in greater detail herein, mineral spirits, xylene and naphthas are commonly classified as solvents. Pure mineral spirits, xylene and naphthas are, in the common usage of the term, commodities. The term commodity is defined as "anything useful or that can be turned to commercial or other advantage." The American Heritage Dictionary (1981). Mineral spirits is a common solvent which can be purchased at many retail establishments. Although there is no evidence on the record that pure xylene or naphtha is a commodity, it may be presumed that it has value. While pure, unadulterated mineral spirits have some value, there is no evidence on the record that "spent" mineral spirits have any value. "Spent" mineral spirits are mineral spirits which have become contaminated to the point they cannot be used for their intended purpose (T/74). There is no record foundation to support a finding that spent mineral spirits have any value or worth, or otherwise may be considered to be commodities. Had the legislature limited its definition of "petroleum product" to "any liquid commodity...," it is quite possible that mineral spirits, xylene and naphthas would fall within the ambit of the definition. However, the legislature did not limit its definition in that manner. In making the determination as to the types of materials to be covered under the SUPER Act, the legislature provided that the material must be a fuel. It is that condition which eliminates mineral spirits, xylene and naphthas from inclusion under SUPER Act. In establishing the type of materials which would be "petroleum products," the legislature provided that the term would include "liquid fuel commodities" including, but not limited to diesel fuel, kerosene and gasoline. Section 376.301(10), F.S. Diesel fuel is commonly recognized as a fuel which is burned in an engine or in industrial service. (T/70; D2 at pp.13). Kerosene is commonly recognized as a fuel commonly used for lighting and heating and as a fuel in internal combustion engines (T/70; D2 at p.27). Although kerosene may have some specialized use in the paint industry as a solvent (T/80), it is generally known as a "thin oil...used as a fuel" American Heritage Dictionary (1981). Gasoline is a fuel used as motor fuel and aviation fuel (T/70; D2 at p.21). The term "petroleum product" may, by the use of the inclusive term "including but not limited to...", include substances which are not identical to the listed substances but which are similar in terms of nature and use. Therefore, "petroleum product" may be construed to include products such as ASTM Grade No. 1 fuel oil (a kerosene type substance used as a fuel [T/70; D2 at p.20]); ASTM Grade No. 2 fuel oil (substantially equivalent to diesel fuel, T/70; D2 at p.20]); jet or turbo fuel (a kerosene type fuel [D2 at p.49]); and aviation gasoline (a high quality gasoline based fuel [T/53; D2 at p.5]). Each of these substances are commonly known and used as fuel, either for internal combustion engines, jet engines, industrial processes or for heating. Mineral spirits are a type of naphtha commonly recognized as a solvent rather than a fuel. In the Encyclopedia for Users of Petroleum Product, mineral spirits are defined as "naphthas... widely used as solvents or thinners in the manufacture of cleaning products, paints, lacquers, inks, and rubber. Also used uncompounded for cleaning metal and fabrics." (D2 at p.30). That definition was specifically determined to be an accurate representation of the nature and use of minerals spirits by Petitioner's expert witness (T/20-71). The use to which mineral spirits are put has also been commonly recognized as being "used extensively as a thinner for paints and varnishes." Webster's New International Dictionary, 2d Edition (1957). Of the mineral spirits stored at Petitioner's site, "99.9999" percent is used exclusively as a solvent (T/79). It is clear that from a petroleum context and a plain meaning context, mineral spirits are not thought of as fuels but rather as solvents. Naphthas are also commonly regarded as solvents. "Naphtha" is a very broad term which refers generally to a mixture of hydrocarbons (T/62). In the Handbook of Toxic and Hazardous Chemicals, naphthas are characterized and generally known "as organic solvents for dissolving or softening rubber, oils, greases, bituminous paints, varnishes, and plastics...." (D1 at p.477). That characterization was specifically found to be accurate by Petitioner's expert witness (T/67). In addition, VM&P Naphtha, which is the type of naphtha stored at Petitioner's site, is defined as "Varnish Makers and Painters Naphtha: term for a naphtha commonly used as a solvent in painting and varnishes." There is no evidence on the record that VM&P naphtha, or any naphtha other than that particular grade of naphtha known as mineral spirits, is ever burned for the production of energy. Therefore, Petitioner has not demonstrated that naphthas are ever used as a fuel. It is clear that from a petroleum and chemical context and a plain meaning context, naphtha is thought of as a solvent rather than a fuel. Xylene is commonly regarded as "any of three isomeric, colorless, oily hydrocarbons.... Commercial xylene is a mixture of the three and is used as a solvent." Webster's New International Dictionary (1957). "It is used as a solvent in the manufacture of synthetic rubber products, printing inks for textiles, coatings for paper and adhesives, and serves as a raw material in the chemical industry" (D2 at p.53). It is clear that in common use and in use from a petroleum sense, xylene is exclusively a solvent and is never used as a fuel. "Solvent" has been defined as a "compound with a strong capability to dissolve a given substance. The most common petroleum solvents are mineral spirits, xylene, toluene, hexane, heptane and naphthas" (D2 at p.44). Mineral spirits, naphthas and xylene are so universally regarded as solvents that they form the very definition of that term. The Department has a rational basis for construing the term "petroleum product" to mean those fuels which are of the same type as those enumerated. The types of fuels enumerated are $ those which, in the common and ordinary meaning of the terms, are used as fuels in engines, industrial processes and heating units. Other than for some minor usage as a component of outboard motor oil (T/62), the only use in which mineral spirits is burned is as charcoal lighter. There is no competent substantial evidence on the record which demonstrates any other use as a burnable substance. There is also no competent substantial evidence on the record that xylene or naphthas, particularly VM&P naphthas, are ever used as fuel, with the exception of approximately 0.00001 percent of the naphtha at Petitioner's site which was used at some time in a fork lift. Had the legislature intended for all flammable petroleum distillates to come within SUPER Act, it would simply have had to phrase its definition of "petroleum product" in that manner. It did not do so, and instead defined "petroleum product" through the commonly understood term "fuel" and used, as examples, three substances which are universally regarded as fuels. The use of mineral spirits as charcoal lighter is sufficiently different from uses of commonly regarded fuels to allow a permissible distinction to be made between those substances. In addition, there is no evidence that charcoal lighter is ever stored in a petroleum storage system. I find that the use of mineral spirit-type substances as charcoal lighter does not take away from the ordinary and commonly regarded use of mineral spirits as a solvent. It is clear that in its common meaning, and in its technical meaning, mineral spirits, xylene and naphtha are regarded as solvents and not fuels, notwithstanding the use of a mineral spirit-like petroleum distillate as charcoal lighter. An examination as to the nature of any use of mineral spirits as a fuel substance other than charcoal lighter demonstrates that it is dissimilar to commonly known fuels like diesel fuel, kerosene and gasoline. It was shown that it may be possible for certain waste materials, including "non-pure" or "distressed" mineral spirits to be used to fire industrial boilers. However, Petitioner has never used its spent or non-pure mineral spirits for any purposes other than paint manufacture (T/79-80). Mineral spirits which are "spent" have been contaminated to the point beyond which it cannot be used for its intended purpose (T/73-74). These non-pure waste materials meet the Federal definition for "spent material" in 40 CFR Section 2671.1(c)(1) which defines that term as "... any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing." Pursuant to 40 CFR 261.2(c)(2), "spent materials" are solid waste (even though physically, they are liquids) when they are burned to recover energy. Pursuant to 40 CFR Sections 261.20 and 261.21(a)(1), any solid waste which is a liquid and which has a flash point of less than 140 degrees Fahrenheit is a hazardous waste. Mineral spirits have a flash point of between 108 degrees and 132 degrees Fahrenheit (P23 at p.1). Therefore spent mineral spirits are hazardous wastes pursuant to Section 261 of the Code of Federal Regulations. The provisions of 40 CFR Section 2761, have been specifically adopted by the state in Florida Administrative Code Rule 17- 30.030. These spent solvent materials, when used as a fuel, are referred to as hazardous waste fuels and are burned as an alternative to disposal. 40 CFR Section 266.30. They may only be burned in specialized industrial furnaces and kilns. 40 CFR Sections 266.31, 366.35. These hazardous waste materials are not commonly known, bought or used as fuels in the same manner as diesel fuel, kerosene and gasoline. The legislature has established a statutory program for the regulation of hazardous wastes. See section 403.73 et seq. It is not realistic to conclude, in light of the specific regulatory program established for hazardous waste, that the legislature would include a potentially hazardous waste by implication as a fuel in the definition of petroleum product. Not only do the common, ordinary, and the technical meanings of the terms "mineral spirits,", "xylene" and "naphtha" demonstrate that those materials are not "liquid fuel commodities" similar in use to diesel fuel, kerosene and gasoline, but an examination of other related statutes confirms that mineral spirits, xylene and napthas are thought of by the legislature as something other than fuel. Of primary regard in this respect is the definition of "pollutant" in Section 376.301(12), F.S. Pursuant to the provisions of Section 376.307, sites contaminated with "pollutants", other than those subsequently defined as "petroleum" or "petroleum products" for purposes of the Inland Protection Trust Fund, may be cleaned up with monies from the Water Quality Assurance Trust Fund. The term "pollutants" is defined in Section 376.301(12) F.S. as "any `product' as defined in S.377.19(11), pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas". The term "product" in Section 377.19(11), F.S. is defined as follows: "Product" means any commodity made from oil or gas and includes refined crude oil, crude tops, topped crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, naphtha, distillate, condensate, gasoline, waste oil, kerosene, benzine, wash oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, and blends or mixtures of two or more liquid products or byproducts derived from oil or gas, whether hereinabove enumerated or not. (e.s.) The legislature specifically listed "naphtha", and the related substance "benzine", under the definition of product along with fuels, i.e., gasoline, kerosene and fuel oil, and other non-fuel substances, i.e., residuum, waste oil, lubricating oil. Benzine is "used in the petrochemical industry as a chemical intermediate and reaction dilutent and in some applications as a solvent" (D2 at p.5). It is, from a chemical standpoint, often thought of as synonymous to "naphtha" (D1 at p.477). The legislature, by specifically listing naphtha under the definition of "product", evidenced the clear intent to treat it as a separate and distinct material. When the legislature uses certain language in one instance and wholly different language in another, it is presumed that the legislature meant for those terms to mean different things. 49 Fla. Jur. 2d Section 133. Had the legislature intended for naphthas and related solvents (with which mineral spirits may be grouped) to be included within the definition of "petroleum product" it would have specifically listed them as it did in the definition of "product." Based on the examination of the legislative treatment of mineral spirits and naphtha in related statutes, I find that the Department had a reasonable and rational basis for excluding mineral spirits and naphthas from the definition of "petroleum product". Also persuasive in determining the types of materials included in the Chapter 376 definition of "petroleum product" is an examination of the taxing statute which authorizes the taxing mechanism for the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund. Section 206.9935, F.S. (1986) provides that the Coastal Protection Trust Fund, the Water Quality Assurance Trust Fund and the Inland Protection Trust Fund may be funded by taxes imposed "for the privilege of producing in, importing into, or causing to be imported into this state pollutants for sale, use, or otherwise." Included within the definition of "pollutant" in Chapter 206, F.S., are "petroleum products." Mineral spirits are taxed as "petroleum products", as that term is defined in Section 206.9925, F.S., for purposes of funding both the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund (P20). A very important distinction was made by the legislature between the definition of "petroleum product" in Chapter 376, F.S., and the definition of "petroleum product" for purposes of the taxing statute, Chapter 206, F.S. Unlike the legislative emphasis of fuels in the Chapter 376 definition, Chapter 206, F.S. defines "petroleum product" as: Any refined liquid commodity made wholly or partially from oil or gas, or byproducts derived from oil or gas, or blends or mixtures of two or more liquid products or byproducts derived from oil or gas, and includes, but is not limited to, motor gasoline, gasohol, aviation gasoline, naphtha-type jet fuel, kerosene-type jet fuel, kerosene, distillate fuel oil, residual fuel oil, naphtha or less than 400 degrees Fahrenheit for petroleum feed, special naphthas, road oils, still gas, unfinished oils, motor gas blending components, and aviation gas blending components. The legislative emphasis in this definition is not whether the material is a fuel, but whether it is refined. Mineral spirits are taxed as special naphthas (P20). The reason mineral spirits are taxed is not because it is a fuel, but because it is refined. The proceeds from the tax on mineral spirits goes into both the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund (P20). Due to the definition of "pollutant" in Chapter 376, F.S., funds from the Water Quality Assurance Trust Fund may be used to clean up solvents such as mineral spirits and naphtha. Because those materials are commonly regarded as solvents rather than fuels, the Inland Protection Trust Fund is not available as a source of cleanup funds. There is no inconsistency in the Department of Revenue including mineral spirits and naphthas as refined liquid commodities and therefore as "petroleum product" under Chapter 206, F.S., and the Department of Environmental Regulation excluding mineral spirits and naphthas as liquid fuel commodities and therefore as "petroleum products" under Chapter 376, F.S. It is recognized that the taxing provision of Chapter 206 and the cleanup provisions of Chapter 376, both of which deal with various aspects of the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund, should be read in pari materia. See, Ferguson v. State, 377 So.2d 709 (Fla. 1979). In construing statues in pari materia, the statutes should be construed together and in a manner which will avoid absurd results. Moore v. State, 343 So.2d 601 (Fla. 1977). In this case, the Department's construction of its statute does not lead to an absurd result. Mineral spirits, although not eligible for one fund for which they are taxed, are eligible for the other. While it may be argued that it would have been wiser or more equitable to the storers of mineral spirits to have allowed them the benefits of the Inland Protection Trust fund, rather than limit their use to the Water Quality Assurance Trust Fund, it is not the province of this Hearing Officer to make that determination. Had the legislature intended for these terms, which are set forth in the same Act, to have the same meaning, it would have used the same language. Also relevant in determining the substances which the legislature regards as fuels are the other statutory provisions which utilize that term Chapter 206, Parts I, II and III, F.S., speak respectively to motor fuels, special fuels and aviation fuels. A review of those definitions clearly indicates that mineral spirits and naphthas are not considered to be fuel. The related statutes, e.g., Chapter 212, Part II, F.S., which deals with the tax on the sale of motor fuel and special fuels, and Chapter 527, Part I, which deals with the sale of liquid fuels, do not specifically deal with naphthas of any kind and it is clear from a review of those statutes that they did not include mineral spirits, xylene and naphthas by implication. A review of the relevant statutory provisions demonstrates that the legislature does not consider mineral spirits, xylene and naphthas to be fuels. The Department's determination that mineral spirits and naphthas are not "petroleum products" since they are not fuels has a reasonable and rational basis. Also relevant in determining the meaning to be given a statutory term is the legislative history. The term under consideration here is "petroleum product". In order to determine what was meant by that term, one may examine the legislative history, including committee reports, and the conditions existing in the state at the time of enactment. 49 Fla. Jur. 2d, Statutes, Sections 159-160. The evidence on the record reveals that immediately prior to the passage of the SUPER Act, there was a proliferation of leaking underground gasoline storage tanks around the state. These incidences of contamination were increasing and, due to the volume of leaking gasoline tanks, the ability of the Department to adequately address them was being threatened (T/92-93). The number of sites contaminated with gasoline and contaminants from service station sites grew from "a few" in 1983, to 300 in spring of 1986 to almost 700 by the time the bill passed in June 1986 (T/92-93). The primary and most obvious environmental concern at the time of the passage of the SUPER Act was the volume of fuel spills from service stations, and the inability of the Department to deal with the volume of incidents (T/93). An examination of the staff analyses of the draft Act by the Senate confirms that materials such as gasoline, diesel fuel, kerosene and similar retail fuels were the only; materials contemplated or intended by the legislature for inclusion in the Act. Importantly, the reports go through the bill, section by section, and describe the contents of each section as it existed on the date of the report. The last report was prepared on April 29, 1986. The bill was approved on June 26, 1986. See, Chapter 86-159, Laws of Florida. The analysis of the meaning of the report is limited by the failure to include a copy of the draft bill which was being analyzed by the committee staff. Without the draft bill, it is difficult to determine the draft language which was before the legislature at the time of the report. However, some insight into the language being analyzed may be gleaned by looking at the language used in the report. In Section 6 of the reports, the definitions which ultimately appear in SUPER Act are discussed. The definitions given in the report for "facility", "petroleum", "petroleum storage system", "response action", and "response action contractor" are virtually the same as they ultimately appeared in the final Act. In contrast, a very significant change from the final language appears in the draft bill analysis of the definition of "petroleum product." It may be presumed from the dramatic change in that definition that the language was amended from the time of the last report's preparation in April to the time the bill was passed in June. The report lists the definition of "petroleum product" in the draft bill as "aviation gasoline and fuels, jet fuel, motor fuel, distillate oils and kerosene." Each of those terms except distillate oils is adequately covered by the final definition of "petroleum product" as passed. The exclusion of the term "distillate oils" from the final version of the Act clearly indicates that some distillates of crude oil would not be covered under SUPER Act. Also contained in the reports are analyses of the conditions leading to the passage of the Act. The report refers to incidences of discovery of contamination through smelling gasoline in groundwater. The report references the Department's regulatory program for tanks which requires compliance with certain standards. It is important to note that the Department's tank regulation program, as established in Chapter 17G-1, F.A.C., only applies to vehicular fuels, i.e., diesel fuel, kerosene, and gasoline. Rule 17-61.040, Florida Administrative Code. The report also references the fact that many of the problems which justified passage of the SUPER Act were the result of improper installation of "fuel oil and gasoline piping, tanks and pumps". (e.s.)(P22(a)(b) and (c) at p.2). The conditions existing in Florida at the time of the passage of SUPER Act and the legislative history of SUPER Act indicate that the primary purpose of the Act was to alleviate problems associated with the storage of gasoline, kerosene and diesel fuel. I find that based upon the conditions in the state and the legislative history of the Act, the Department had a reasonable and rational basis for the exclusion of solvents such as mineral spirits and naphtha from the definition of "petroleum product." In summary, I find that the Department has demonstrated that mineral spirits and naphtha, particularly VM&P naphtha, are commonly regarded not as fuels, but as solvents. The fact that these solvents may be classified as "refined liquid commodities" for purposes of the taxing statute is not inconsistent with their failure to be classified as "liquid fuel commodities, for purposes of the cleanup statute, particularly when they are eligible under the other tax and cleanup fund, the Water Quality Assurance Trust Fund. From a physical standpoint, these solvents, since they are petroleum distillates, are not greatly physically different from materials which are ordinarily regarded as fuels. However, the legislature chose to condition its definition of petroleum product on the common use of the product as a fuel. It is not the function of the undersigned hearing officer to question the wisdom of the legislature's enactments, but rather to determine if the Department has construed the enactment in a permissible manner. Given the totality of the circumstances, as such, I find the Department's interpretation of petroleum and petroleum product as excluding mineral spirits, naphthas and other solvents to be permissible and within its authority.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that: The substances known as mineral spirits and naphtha be found not to be "petroleum products" within the scope of Section 376.301(10), F.S., and that the Petitioner, Commercial Coating Corporation, be determined to be ineligible for participation in the Early Detection Incentive Program. RECOMMENDED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 13th day of July, 1988. COPIES FURNISHED: Richard A. Pettigrew, Esquire Luis R. Figeredo, Esquire 5300 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
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 March 21, 1990, the School Board of Broward County issued an invitation to bid, No. 90-597T (ITB). The ITB sought to purchase a computerized fuel system, less trade-in. The general conditions of the ITB are common to all purchasing by the School Board and are contained on a single green cover sheet; the remainder of the ITB is made up of the special conditions applicable to the specific purchase. According to page 3, paragraph 1 of those special conditions, the School Board solicited bids on a "new on-line automated fuel dispensing and accounting system, less trade-in." The bidders were required to include in their proposals "all software, hardware (except an IBM Series/1 computer, if used), installation, labor, and training to complete the following objectives:" improve the efficiency and control of the Board's existing automated fuel system; improve fuel inventory management by intergrating in-tank monitoring and leak detection into the automated fuel dispensing system. Monitoring and leak detection devices were to be completely integrated using the same communication lines and computer hardware; record the acquisition, transfer and disposal of equipment; automate the collection and transfer of data to the Board's equipment management and financial accounting systems in the same format as the Board's current data and require no additional support or action by the Board; make appropriate reports available to user departments, and schedule and notify remote sites when preventive maintenance is due for a vehicle. Specifications for the system begin at page 10 of the ITB. Section I of the Specifications is a General System Description which fills pages 10-13 of the ITB. Section II at the bottom of page 13, describes a Fuel Dispensing Procedure. Section III, on page 14 describes Operating Procedures. Section IV on pages 15 and 16 specifies Hardware; the system is to include a computer, remote terminals, and actuator cards, installation criteria are also given for power and wiring. Section V, at pages 16-22 of the ITB, specifies Software and Programming. Its subsection I describes tank level monitors and says: The system will provide for in-tank level monitoring devices which are fully incorporated into the system. The tank level system will be as follows: The fuel island terminal will monitor the tank sensoring devices and generate and send a separate transaction each time it calls the Central Control Processor. This transaction will include fuel in inches and in gallons (gaged balance), water level in inches and temperature in degrees Fahrenheit. The most current readings will be stored in the system and will be available on the fuel inventory and receipts report. The calculated balance will continue to be the "primary balance." The Central Control Processor will generate a special transaction (unique transaction code) indicating sudden loss when the gauged balance drops more than the calculated balance by 1%. A special transaction or flag will be generated when more than 1/2 inch water exists in the tank (high water). Deliveries will be captured through the fuel monitor at sites so equipped. All/any manual delivery input will be recorded and flagged, but will not change the tank files. At sites without the monitor, manual readings will still be accepted. The PFR report will show water level, temperature, sudden loss and low inventory (re- order point). The fuel island terminal will also be equipped to monitor hydro-carbon wells. When hydro-carbon is detected the Fuel Infringement Circuit (FIR) will open and the pumps will be shut down. A FIR transaction will also be generated and sent to the Central Control Processor. Hydro-carbon probes will be included for all listed monitoring wells. The School Board received bids from three bidders which were open on April 26, 1990, at 2:00 p.m.. According to the bid tabulation, Tel-Star Systems bid $59,616, Cherokee group bid $882,924 and E. J. Ward, Inc. bid $106,816. Although Tel-Star was the low bidder, board staff believed that its bid did not meet the minimum advertised specifications. Staff intended to solicit bids for hardware for automatic in-tank fuel level monitoring and hydro-carbon well monitoring (i.e., leak monitoring) capabilities, and all software necessary to perform these functions. In reviewing the literature which accompanied Tel- Star's bid, staff had found no mention of hardware to automatically monitor the level of the fuel tanks or to monitor hydro-carbon wells. The marketing director for Tel-Star told staff that the necessary hardware for in-tank fuel level monitoring or hydro-carbon well monitoring was not included in the bid because Tel-Star did not interpret the ITB to require that hardware. Board staff determined the bid should be awarded to E. J. Ward, Inc., as the lowest bidder who met all advertised specifications. To companies dealing in computerized fuel systems, a computerized fuel dispensing and accounting system is separate from a system which provides in- tank monitoring and leak detection, although these two functions can be and are commonly integrated. No single manufacturer makes a system which will provide both computerized fuel dispensing, and in-tank monitoring and leak detection. Separate systems from different manufacturers can be combined to achieve both functions. The sales manager for Tel-Star Systems, Inc., who first reviewed the ITB noted the very brief reference to tank level monitors and hydro-carbon well monitors on page 22 of the ITB. He was unsure whether the bid called for that type of hardware. He discussed the matter with the president of Tel-Star, Mr. DeVoll. It was determined that because the reference to the in-tank monitoring and leak detection (hydro-carbon monitoring) was made only in the portion of the ITB dealing with Software and Programming (Part V), the School Board only wanted an automated fuel system which was capable of being integrated with fuel tank monitors and leak detection (hydro-carbon well) monitors. Based upon the structure of the ITB, this interpretation by Tel-Star and its officers was reasonable. It is also consistent with an objective reading of the bid made by one of Tel-Star's competitors, which also received the Board's invitation to bid and contemplated submitting a bid. According to Mr. Busbee, had he submitted a bid on behalf of his firm, based on the language of School Board's ITB, he would not have included hardware for in-tank level monitoring or leak detection (hydro-carbon well) monitoring. The bid from E. J. Ward, Inc., did include hardware for in-tank monitoring and leak detection, but this was not the result of the wording of the ITB. E. J. Ward, Inc., is the manufacturer of the present fuel dispensing system which the School Board of Broward County uses. Through servicing the account, representatives of E. J. Ward knew exactly what the School Board of Broward County had on site, and what it sought to acquire through its ITB. While E. J. Ward enjoyed no undue advantage by reason of its long association with the School Board, it was able to read the ITB with the gloss of its own experience, and knowledge of what staff intended to procure through the ITB. Its response to the ITB was not solely the product of a reading of the special conditions. The School Board believes that Tel-Star should have taken steps to determine whether the ITB was intended to include fuel level monitoring and leak detection monitoring, and points to page 7 of the Special Conditions, paragraph 30 which states: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. George Toman, Buyer, Purchasing Department, (305) 765-6119, who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. Toman nor any employee of the School Board of Broward County is authorized to interpret any portion of the bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 8 of the General Conditions states: Any questions concerning conditions and specifications should be submitted in writing and received by the Department of Purchasing no later than three (3) working days prior to the Bid opening. Tel-Star and its officers made no inquiry of Mr. Toman to attempt to determine whether the Board expected bids responding to the ITB to include hardware for in-tank monitoring and leak detection. Under the wording of paragraph 30, however, it is doubtful that any such inquiry would have been enlightening. Nothing in that paragraph states that if an inquiry is made, anyone at the School Board will attempt to interpret the bid or provide additional information which all bidders will receive through a written addendum. It merely advises potential bidders should any interpretation of the ITB be made by the School Board, it will be communicated through a written addendum. Paragraph 30 does not describe a procedure which Tel-Star should have followed in order to receive a clarification of what the School Board wished to purchase through its ITB. Paragraph 8 also fails to state that requests for interpretations will be answered, or that failure to submit a written question precludes a bidder from relying on the structure and language of an ITB. The references to hardware for monitoring are found only in the specifications for software. The interpretation made by Tel-Star, that its equipment would have to be capable of integration with monitoring hardware which would be separately procured was reasonable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Broward County upholding the protest of Tel-Star Systems, Inc., rejecting all bids for the computerized fuel system less trade-in, Bid No. 90-597T, ordering that the bid specifications be clarified, and that a new invitation to bid be circulated. DONE and ENTERED this 13th day of September, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 13th day of September, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on the proposed findings by the School Board of Broward County: Adopted in Finding 1. Adopted in Finding 3. Implicit in Finding 4. 4.-5. Rejected as unnecessary. No party disputes that Tel-Star Systems, Inc., followed the appropriate protest procedures. Discussed in Findings 6 and 7. Rejected as recitation of testimony rather than a finding of fact. Adopted in Finding 9. Discussed in Finding 6. Generally adopted in Finding 10. Copies furnished: Norris J. DeVoll, President Tel-Star Systems, Inc. Post Office Box 791753 San Antonio, Texas 78279-1753 Edward J. Marko, Esquire Marko & Stephany Suite 201 Victoria Park Centre 1401 East Broward Boulevard Post Office Box 4369 Fort Lauderdale, Florida 33338 John K. Featherston Vice President E. J. Ward, Inc. 6410 Southwest Boulevard Suite 224 Fort Worth, Texas 76109 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Fort Lauderdale, Florida 33312 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
