Findings Of Fact The Respondent, J. C. Penny Company, Inc., operates an automobile service center at its store in the Sunshine Mall in Clearwater, Florida. The service center has a gas station which sells gasoline products to the general public. On or about February 4, 1981, a petroleum inspector of the Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of unleaded gasoline from the Respondent's gasoline station at the Sunshine Mall. This sample was tested in the Tallahassee laboratory and was found to contain lead contents in the amount of 0.60 gram per gallon in the no- lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on February 5, 1981 (Petitioner's Exhibit 1) The station manager was informed that he had several alternatives, including confiscation of the product, with the Respondent posting a bond in the amount of $1,000 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on February 5, 1981 (Petitioner's Exhibit 1). Petitioner received a bond in the amount of $1,000 from Respondent and this amount was deposited into the Gasoline Trust Fund.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be required to forfeit $500 of the $1,000 bond posted and the unforfeited $500 be returned to Respondent. DONE and ENTERED this 1st day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire Room 513 June, 1981. Mayo Building Tallahassee, Florida 32301 Donald E. Ford J. C. Penny Company, Inc. 27 Sunshine Mall Clearwater, Florida 33516
Findings Of Fact Respondent, Big "S" Oil Company, operates a gasoline station at 4002 North Pace Boulevard, Pensacola, Florida. The station sells gasoline products to the general public. On or about December 9, 1981, a petroleum inspector of Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of regular gasoline from the Respondent's storage tanks during the course of a routine inspection. This sample was tested in Petitioner's mobile laboratory and was found to have an elevated End Point of 494 degrees Fahrenheit 1/ Department regulations provide that the End Point for leaded gasoline offered for sale in Florida shall not exceed 446 degrees Fahrenheit. A second test conducted in a private laboratory confirmed the initial testing results. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on December 9, 1981. (Petitioner's Exhibit 2). Petitioner determined that prior to the issuance of the notice, approximately 1,900 gallons of contaminated gasoline had been sold to the public. A bond of $1,000 was paid by Respondent to Petitioner in lieu of confiscation of the remaining leaded or regular gasoline in the storage tanks (Petitioner's Exhibit 1). The hearing was requested to contest the forfeiture of the bond.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be required to forfeit the $1,000 bond posted with Petitioner. DONE and ENTERED this 24th day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
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 On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
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 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
The Issue Are test results skewed by the use of sample bottles containing residue from earlier samples?
Findings Of Fact The Department of Agriculture and Consumer Services took unleaded gasoline samples from the Union Service Station No. 166191 located on US Highway 29 North in Century, Florida. The petroleum products provided this station were supplied by Northrop Oil Company, Inc., whose president is James W. Ash. The Department analyzed the samples taken in its mobile laboratory. The unleaded gasoline samples were found to have an elevated End Point, i.e. the maximum boiling point allowed by the rules of the Department for unleaded gasoline, which is 437 degrees Fahrenheit. Sample No. 1 had an End Point of 482 degrees Fahrenheit, and Sample No. 2 had an End Point of 464 degrees Fahrenheit. 4 The elevated End Point means that the samples contained contaminants in excess of the amounts permitted by the Department's rules. A Stop Sale Notice was issued by the Department. A bond of $1,000 was paid by Petitioner in lieu of confiscation of the remaining unleaded gasoline and as a precedent for the formal hearing. Petitioner requested and received a formal hearing. It was agreed that the contaminant did not contain lead and was most probably diesel fuel or kerosene. Mr. Ash testified concerning deliveries to the station in question and other deliveries made by the same truck. On the Monday the samples were taken, the gasoline transport delivered unleaded gasoline to Davis' Grocery, the Union Service Station, and Ross', in that order. The Department also tested the unleaded gasoline at Davis' and Ross' but found no contaminants in their unleaded gasoline tanks. On the preceding Friday, the truck delivered unleaded gasoline to the Union Service Station and two Alabama stations. The Alabama authorities checked the unleaded gasoline at those stations and found no contaminants; however, Mr. Ash did not know how much additional gasoline had been delivered to those stations before their testing. The Union Service Station in question keeps its unleaded gasoline tanks locked, and its diesel fuel tank is located on the opposite side of the station. Petitioner uses separate trucks to deliver diesel fuel and gasoline and does not mix loads. It would have been highly unlikely that the diesel truck driver and the station's operators would have permitted the introduction of diesel fuel into the unleaded gasoline storage tanks. The percentage of contaminant necessary to raise the End Point the amount it was raised in this instance would have been three to five percent of the total volume. The sample bottles used by the Department are approximately the size of a quart milk bottle. The inspector separates the bottles he uses to take diesel fuel samples from those he uses to take gasoline samples. He stores the bottles upside dawn. This was the procedure he followed in taking the samples involved in this case. Tests conducted by the Department to determine the effects of residue in sample bottles indicated that the residue from earlier samples is an insignificant factor in elevating the End Point test results. An inverted sample bottle could not retain the three-to-five percent of the bottle's total volume necessary to raise the test, results of the samples in question approximately 40 degrees Fahrenheit. The contaminant was not introduced into the samples from the bottles used to take the samples. The Department calculated that 570 gallons of contaminated unleaded gasoline were sold at $1.40 per gallon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends release of the contaminated fuel in question and return of the $1,000 bond by the Department of Agriculture and Consumer Services upon payment by Petitioner to the Department of $722.84. DONE and ORDERED this 30th day of July, 1981, in Tallahassee, Leon County, 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 30th day of July, 1981. COPIES FURNISHED: Mr. James W. Ash, President Northrop Oil Company, Inc. c/o Union Service Station US Highway 29 North Century, Florida 32535 Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner, the State of Florida, Department of Agriculture and Consumer Services, is an agency of state government charged, among other responsibilities, with establishing and enforcing standards related to quality of motor fuels, as pertinent hereto, the standard for volatility contained in Rule 5F-2.01(1)(c) 2, Florida Administrative Code. The Petitioner has charged that the Respondent has technically not met this standard with fuel sold at the two stores, one in Tampa and one in Winter Haven, Florida, because the subject product (which contained ethanol) does not comply with that standard which states that the fuel should be 50 percent evaporated at a temperature of not less that 1700. There is no dispute that the fuel involved did not meet this standard because it was ethanol enriched and was intended to be sold as such by the Respondent. The notice of stop sale was filed herein because this product, which did not comply with the standard for regular or unleaded gasoline, was not labeled to disclose that it was other than unleaded gasoline, that is gasoline containing ethanol. The Petitioner however withdrew its allegation that "super unleaded gasoline" enriched with ethanol was sold in an unlabeled fashion. The Respondent is a corporation authorized to do business in Florida, headquartered in Dallas, Texas. It recently elected to convert many of its gasoline outlets to sell ethanol enriched gasoline, which is characterized by a higher per gallon profit-margin and a higher octane than regular unleaded gasoline. Thus, a memorandum was sent from the Respondent's home office in Dallas, Texas, to all the Respondent's district managers and zone managers providing them with detailed instructions for conversion of stations from selling non-enriched unleaded gasoline to ethanol enriched gasoline, including detailed instructions on preventing adulteration by water in underground tanks, as well as detailed instructions regarding proper labeling and disclosure of the contents of the new type fuel to consumers. Some 130 retail outlets in Florida were converted to sell the ethanol product and booklets were published and distributed to be provided to customers to explain the characteristics of the ethanol fuel to customers. There is no dispute that a good faith effort was consistently followed to adequately disclose the characteristics of the fuel to customers and to properly label the pumps. The Respondent's Tampa store converted to ethanol product on March 26, 1983, and received its first load of ethanol enriched gasoline that day. It was cited or notified to stop sale by the Petitioner on March 29, 1983, because the pumps through which the product was dispensed were mislabeled. The parties agree that this was due to a communication failure between the regional office in Orlando and that station and that the clerk at that Tampa store simply did not get notified to change the labeling on the pumps before the Petitioner observed the violation some two days later and ordered sale of the product stopped. A similar situation is true of the Winter Haven retail outlet which sold ethanol enriched products without disclosure labeling on the pumps. In this instance the labeling had been placed on the pumps, but had been torn off by person unknown and the notice to stop sale was issued against the Respondent with regard to that store before new labeling could be properly placed on the pumps. There is no question, and indeed the parties have stipulated, that the two violations which occurred were inadvertent, and due, with regard to the Tampa instance, to a lack of communication between the Respondent's regional management office and the retail outlet involved, such that proper labeling did not get placed on the pumps timely. With regard to the Winter Haven facility, there is no dispute that the labeling was timely and properly done when the first load of fuel was placed in the underground tanks for sale, but that persons unknown wrongfully removed the labeling. There is no evidence to establish that any such violations have been committed by the Respondent in the past. There is no question that enough of the product was sold to the public to exceed the $1,000 bond posted in lieu of confiscation. It was also established that the violations were inadvertent and were not perpetrated through any intent or scheme to defraud the consuming public.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be required to forfeit $250 of the $1,000 bond posted and that the remaining $750 be returned to the Respondent. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 28th day of October, 1983. COPIES FURNISHED: Frank Graham, Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32301 Debbie Hunn, Esquire 5500 Diplomat Circle Suite 105 Orlando, Florida 32810 The Honorable Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
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
Findings Of Fact Respondents operating as a Majik Market, sells gasoline at 415 West Tennessee Avenue, Lynn Haven, Florida. On October 30, 1981 Mr. Haywood Nixon who is a petroleum inspector with the Department of Agriculture and Consumer Services took a sample of regular leaded gasoline from Respondent's fuel pump designated "WAY 1232" at the above location. The sample was deposited in a glass bottle and delivered to Mr. Patrick Flannigan who is a chemist for the Petitioner. On October 30, 1981 Mr. Flannigan performed certain prescribed tests on the gasoline sample. The final boiling point temperature of the sample was found by Mr. Flannigan to be 484 degrees Fahrenheit. This figure does not comply with the standards set out in Section 5F-2.01(1)(c)4. Florida Administrative Code which provides that the end point (final boiling point) of leaded gasoline shall not exceed 446 degrees Fahrenheit. The high end boiling point reading of the sample indicates that it was probably contaminated by another fuel such as diesel oil. The exact nature of the contaminant is however impossible to determine from the tests made. After receiving the results of the analysis made-by Mr. Flannigan Mr. Nixon returned to the Majik Market and issued a stop-sale notice. This notice prohibited the sale of the 4,435 gallons of contaminated gasoline remaining in Respondent's storage tank. As a result of that stop-sale notice Respondent posted a bond in the amount of $1,000. Subsequently the Petitioner issued a release notice allowing the contaminated gasoline to be removed from the State of Florida and disposed of by Respondent. Prior to the issuance of the stop- sale notice Respondent had sold 2063 gallons of gasoline from that tank since the last fuel delivery. There is no indication that the contamination discovered by the Department's test was the result of any willful or deliberate act by Respondent of Respondent's agents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department remit to the Respondent $500 of the $1,000 bond required to be posted in lieu of confiscation of 4,435 gallons of substandard gasoline. DONE and RECOMMENDED this 20th day of January, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 20th day of January, 1982. COPIES FURNISHED: Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Jack G. Williams, Esquire Post Office Box 426 Panama City, Florida 32401
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
