The Issue The issue presented is whether Petitioner's application for licensure as a retail installment seller should be granted.
Findings Of Fact John K. Moyant is the president and secretary of Petitioner Lifestyle Builders, Inc. He has also been a licensed general contractor in the state of Florida since 1973. He was formerly licensed by the state of Florida as a real estate broker. In July of 1986, the Florida Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Moyant and others. Moyant subsequently decided that he would voluntarily surrender his real estate broker license rather than defend the administrative action filed against him. On November 12, 1987, he executed an Affidavit for the Voluntary Surrender of License for Revocation. That Affidavit read, in part, as follows: That in lieu of further investigation and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commis- sion of the Department of Professional Regulation to issue a Final Order revoking any and all licenses and permits issued to or held by the undersigned. That effective date of the revocation shall be 11-12-87. That I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation. * * * 8. That I waive any right to appeal or other- wise seek judicial review of the Final Order of revocation to be rendered. The Florida Real Estate Commission entered a Final Order on December 10, 1987, ordering that Moyant's license "be revoked, effective November 12, 1987." On May 16, 1994, Moyant completed, on behalf of Petitioner, an Application for Retail Installment Seller License. That application identified Moyant as one of the principals in the business in that he is the president and secretary and further listed Moyant as the corporation's resident agent. Question numbered three on that application reads as follows: 3. Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Moyant answered that question in the negative. Respondent received the application of Lifestyle Builders, Inc., on May 19, 1994. In reviewing that application, Respondent checked Moyant's name in the Department's computer system known as CREAMS. The computer check revealed that Moyant had been the subject of a Final Order of Revocation by the Florida Real Estate Commission. Respondent verified the accuracy of that information by obtaining from the Commission a copy of the Administrative Complaint, the Affidavit for the Voluntary Surrender of License for Revocation, and the Final Order. Based upon that information, Respondent advised Petitioner that its application was denied. Moyant's answer to question numbered three was a material misstatement of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a retail installment seller. DONE and ENTERED this 27th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 27th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Recommended Order did not contain any clearly- identified proposed findings of fact. It is assumed that the un-numbered paragraphs contained in the section entitled "Preliminary Statement" are intended to be Petitioner's proposed findings of fact. Rulings on those un- numbered paragraphs are as follows: Petitioner's first through third un-numbered paragraphs in the Preliminary Statement portion of Petitioner's Proposed Recommended Order have been adopted in substance. Petitioner's fourth un-numbered paragraph in the Preliminary Statement portion of Petitioner's Proposed Recommended Order has been rejected as not being supported by the credible evidence in this cause. COPIES FURNISHED: Robert D. Lettman, Esquire 8010 North University Drive, Second Floor Tamarac, Florida 33321-2118 Tobi C. Pam, Esquire Department of Banking and Finance 201 West Broward Boulevard, Suite 302 Ft. Lauderdale, Florida 33301-1885 Honorable Robert F. Milligan Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact On October 7, 1982, petitioner's employee took samples of gasoline offered for sale at respondent's Beacon Store No. 7 in Milton, Florida, including a sample of regular gasoline mixed with alcohol, known as "regularhol." The regularhol sample reached petitioner's laboratory in Tallahassee on October 11, 1982, and tests done the following day revealed that the 50 percent evaporated distillation temperature of the mix as a whole was 151 degrees Fahrenheit. Otherwise the tests revealed no problem with any of the gasolines sampled. A stop sale notice issued on October 13, 1982, and, after bond in the amount of one thousand dollars ($1,000.00) was posted, in lieu of confiscation of 3,865 gallons, the "regularhol" was released on November 8, 1982. Respondent began mixing regular gasoline with ethanol and selling it as regularhol in 1978 at the same price as regular gasoline. Until recently, Mocar made less on regularhol sales than on sales of regular gasoline. It originally offered regularhol as its way of helping to reduce the national consumption of petroleum. It has now discontinued sales of regularhol. The Phillips' terminal in Pensacola was respondent's source of the regular gasoline it mixed to make regularhol. This gasoline reached Pensacola by barge, and petitioner's employees sampled and tested each barge's cargo. The 50 percent evaporated distillation temperature of the regular gas Mocar bought from Phillips varied over a range of more than 30 degrees Fahrenheit upwards from 181 degrees Fahrenheit. Mixing ethanol with the gasoline lowered its distillation temperature, but with the single exception of the batch sampled on July 14, 1982, Mocar's regularhol had passed the testing petitioner has regularly (once every three or four months) conducted. There had also been a problem with gasohol once before.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner retain five hundred dollars ($500.00) and return five hundred dollars ($500.00) to the respondent. DONE and ENTERED this 2nd day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of June, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 James Milton Wilson, Esquire 201 E. Government Street Pensacola, Florida 32598 Doyle Conner, Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida
The Issue The issue in this case concerns whether the Respondent Florida Lime Growers, Inc., is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact On May 29, 1991, Petitioner entered into an agreement with Florida Lime Growers, Inc., for the handling of the sale of his fruit on consignment. The terms of that agreement included the following: Florida Lime Growers, Inc., agreed to grade Petitioner's fruit, pack that which met quality standards, and use its best efforts to sell the packed fruit for the benefit of Petitioner on a pooled basis at market price. No specified price was guaranteed by or agreed to be paid to Petitioner by Florida Lime Growers, Inc. Florida Lime Growers, Inc., was entitled to charge a fee for packing Petitioner's fruit and a commission on the sale of the fruit. Florida Lime Growers, Inc., agreed to pay to Petitioner that portion of the sale proceeds received attributable to Petitioner's share of the pool, less all expenses of sale. Florida Lime Growers, Inc., also agreed to pay Petitioner a portion of the anticipated return prior to actual receipt of payment by Florida Lime Growers, Inc., from the ultimate purchaser. At no time did Petitioner contract with Florida Lime Growers, Inc., for the outright purchase by it of all of Petitioner's mangos and avocados, regardless of quality. The terms of Petitioner's agreement with Florida Lime Growers, Inc., are substantially similar to the agreement he entered into with another packing house, Limeco, Inc., on May 28, 1991. When Petitioner or his employees delivered mangos or avocados to Florida Lime Growers, Inc., the load of fruit would be weighed and a receiving ticket would be given to the Petitioner or to his employee showing the date, type of produce, number of bin boxes brought, and the total weight expressed in pounds and bushels (55 pounds per bushel). Florida Lime Growers, Inc., would then take the fruit and grade it, that is, separate out the fruit of good enough quality to be packed and sold. Petitioner was offered the opportunity to pick up the culls (the fruit not good enough to be packed), so that he might attempt to sell them on his own, but he declined to do so as he felt it was too much of a bother to be worth the effort. Florida Lime Growers, Inc., would then sort Petitioner's fruit by size and pack it for sale. Florida Lime Growers, Inc., kept a record of the quantity of Matthews' fruit, by type and size, as well as the proportion of the pool of fruit available for sale which Petitioner's fruit represented. Florida Lime Growers, Inc., sold Petitioner's mangos and avocados at market price. Market prices fluctuate, which is why Florida Lime Growers, Inc., as well as Petitioner's other dealer, Limeco, did not guarantee a rate of return or agree to pay a specified price. Petitioner's rates of return per bushel for sales of his packed mangos and avocados by Florida Lime Growers, Inc., can be determined by dividing the net return by the total weight packed (in pounds) to get a per pound return, then multiplying the result by 55 to arrive at the per bushel return. Applying this formula to the information contained in the account sales reports contained in Respondent's Composite Exhibit 8, the rates of return to Petitioner were as follows: Type of Fruit To be Packed Receipt # Total Weight Packed Total Net Return Per Bushel Return Mango 610 8,280 2,584.58 17.05 Mango 617 4,600 1,435.88 17.05 Mango 623 8,987 3,303.23 20.35 Mango 630 3,102 1,073.95 19.25 Mango 635 2,629 935.79 19.80 Mango 641 3,597 1,311.14 19.80 Mango 651 3,680 1,201.16 15.40 Mango 654 6,083 1,138.35 10.45 Mango 676 1,540 340.14 12.10 Avocado 689 3,800 2,783.91 40.15 Mango 692 220 50.44 12.65 Avocado 696 925 692.56 41.25 Mango 727 15,455 1,666.98 6.05 Mango 740 13,728 2,002.61 8.25 Mango 747 10,021 1,399.91 7.70 Mango 753 7,953 1,159.16 8.25 Petitioner presented no evidence to show that the prices obtained for his fruit by Florida Lime Growers, Inc., were below the market. The only evidence of price other than Respondents' sales was the net return paid to Petitioner by Limeco for mangos delivered by him to that dealer on May 28 and 29, 1991, and after July 1, 1991. That evidence shows that there was a substantial decrease in sales price between May 28, 1991, and July 1, 1991. For instance, Exhibit 2 reflects a net return for mangos delivered at the end of May of $17.85 per bushel. Exhibit 5 reflects a net return for mangos delivered on July 3, 1991, of $9.78 per bushel, with $6.20 per bushel for "No. 2's." Exhibit 4 reflects a net return for mangos delivered between July 5 and July 11 of $6.08 per bushel, with $4.59 per bushel for "No. 2's." The last sale of mangos by Florida Lime Growers, Inc., which included those of the Petitioner, was to Amerifresh, a broker. Amerifresh selected and arranged for the trucking company to transport the shipment to Seattle, Washington. Upon arrival, the shipment of mangos was rejected as a "failed" shipment. The shipment was inspected by a U.S.D.A. inspector and a copy of the U.S.D.A. inspection certificate was obtained by Florida Lime Growers, Inc., maintained in its records, and offered to Petitioner. Florida Lime Growers, Inc., received payment for only the small portion of the shipment which was salvageable. The funds received representing that portion of the shipment comprised of Petitioner's mangos, less his proportionate share of the expenses of sale, were paid to Petitioner. Petitioner presented no evidence to show that Florida Lime Growers, Inc., received any money for his mangos and avocados that it did not pay to him, after deducting the costs of sale and the advances or prepayments made in accordance with their agreement. Petitioner was provided with an accounting with the final check issued for payment from each pool. With respect to the final payment on September 10, 1991, in the amount of $233.07, Matthews received an accounting, including a letter of explanation, and the opportunity to review the records of Florida Lime Growers, Inc. Petitioner spoke with both William Planes and Rachel Trant of Florida Lime Growers, Inc., at unspecified times, but he was not satisfied with the information that either of them provided. The computerized accounting system used by Florida Lime Growers, Inc., is also used by several other businesses in the produce industry. Florida Lime Growers, Inc., employees have offered to explain the printed reports to its customers and have done so on request. 2/ Although he had the opportunity to do, Petitioner never requested assistance or an explanation from the employee of Florida Lime Growers, Inc., who ran the computerized accounting system and who calculated the adjustments and final return to be made on the Amerifresh shipment. Petitioner made no attempt to communicate with anyone from Florida Lime Growers, Inc., after he received his final payment on September 10, 1991. July 1, 1991, was the last date on which Petitioner brought mangos to Florida Lime Growers, Inc., which were accepted by the latter. The last load of Petitioner's mangos brought to Florida Lime Growers, Inc., was refused due to the poor quality. Petitioner's first effort at filing a complaint was on November 18, 1991, when he filed a complaint against "Bill Planes d/b/a Florida Lime Growers, Inc." William "Bill" Planes is the president of, and is one of two directors of, Florida Lime Growers, Inc. Mr. Planes is the person with whom the Petitioner had most of his dealings involving Florida Lime Growers, Inc. Mr. Planes, in his individual capacity, was not a dealer pursuant to Chapter 604, Florida Statutes. Petitioner was notified by the Department of Agriculture and Consumer Services by letter dated January 7, 1992, that his complaint could not be processed until he amended it to name Florida Lime Growers, Inc., as the Respondent. The actual date Petitioner filed the amendment to his complaint is unclear from the documents, but it was not until some time after March 2, 1991, the date on which it was notarized. The first notice of Petitioner's complaint that the Department of Agriculture and Consumer Services sent to Respondent, Florida Lime Growers, Inc., was on March 11, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order in this case dismissing the Petitioner's complaint, as amended, and denying the relief requested by the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September 1992.
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 issue presented is whether Petitioners are responsible for unpaid taxes as alleged in the Notices of Final Assessment issued in this cause.
Findings Of Fact At all times material hereto, Petitioner Nana's Petroleum, Inc. (hereinafter "Nana's"), has been licensed by the Department to sell special fuel (diesel) and gasoline. At all times material hereto, Emilio Perez has been the vice president of Nana's, and Edilia Perez has been the secretary. At all times material hereto, Nana's has been required to file with the Department on a monthly basis, and Nana's did so file, Special and Alternative Fuel Tax Returns, including Local Option Tax Schedules, and Refiner, Importer and Jobber Gasoline Tax Returns. Although the Department cannot locate its copy of Nana's May 1988 return, the Department does have copies of the other returns for the six years in question. If the Department had not received the May 1988 return from Nana's, it would have sent a delinquency notice at that time, and no delinquency notice was sent to Nana's. Nana's purchased its fuel from two suppliers at Port Everglades: Belcher Oil Co., n/k/a Coastal States Refinery and Marketing, and Union Oil Co. of California under the same procedures. Nana's sent its trucks to Port Everglades. The driver used a loading card (similar to a credit card) which carried the identification number of the purchaser. The driver put the loading card in the loading rack and received a manifest, which the driver signed and dated, noting the time on it. After the truck was loaded and left the Port, an invoice was issued by the supplier, referencing the manifest and specifying the amount of fuel obtained and when, and whether the fuel was diesel or gasoline. The invoice also specified the amount and kind of taxes charged, or if the purchase was tax exempt, and provided a total purchase figure. The invoices were then sent by the suppliers to Nana's, and Nana's paid those invoices within ten days in order to obtain a 1 percent discount. Nana's kept each invoice, using each to provide the detailed information required on its monthly tax returns. Also, when the Department audits a license holder such as Nana's, the Department audits the invoices against the invoice numbers shown on the tax returns. Each Special and Alternative Fuel Tax Return filed by Nana's itemized fuel acquired or received in Florida by invoice number, the date received, the point of origin, the point of delivery, the name and license number of the supplier, and the invoiced gallonage. Nana's computed any tax due by county for local option taxes. It itemized any gallonage exempt from taxes and why. It further included an itemization of the number of gallons sold, the purchaser's name and license number, the point of delivery, and the invoice number and date. The Refiner, Importer and Jobber Gasoline Tax Returns filed by Nana's were similar and contained a detailed listing of fuel acquired or received in Florida tax paid, specifying the county of origin, the county of destination, the supplier's name and license number, the date, the invoice number, and the number of gallons. Nana's was audited by the Department in 1987, with the audit running through November of that year. As a result of that audit, Nana's hired an accountant in January of 1988 in order to assure that its books and records were properly kept. In 1992, the Department began another audit by sending an employee to the office of Nana's for one day. The Department then contacted Nana's and advised that it was too far for them to come from Ft. Pierce to the office of Nana's in Pahokee and told Nana's to bring its books and records to the Department. Nana's took boxes of records to the Ft. Pierce office. Two weeks later, the Department contacted Nana's, advising that the Department would not be completing the audit and that Nana's should come and pick up its records. In April of 1994, pursuant to a subpoena, Nana's supplied 35 or 36 boxes of records to the Department. Those boxes contained Nana's original invoices from 1987 forward and the original certificates it had obtained from its purchasers reflecting tax exempt status. On April 25, 1994, the Department issued to Edilia Perez as secretary of Nana's its Notice of Final Assessment for Fuel Tax, Penalty and Interest Due for the period of December 1987 through June 1990 in the amount of $414,714.67. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings. On April 25, 1994, the Department issued to Emilio Perez as vice president of Nana's its Notice of Final Assessment for the period of December 1987 through June 1990 in the amount of $515,240.25. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings. On April 25, 1994, the Department issued to Nana's its Notice of Final Assessment for the period of April 1992 through August 1993 in the total amount of $27,947.84. That total figure represented tax due in the amount of $18,083.17, interest of $2,786.23, and penalty of $7,078.44. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings. On September 13, 1990, the Department had previously issued to Nana's its Notice of Final Assessment for the period of December 1987 through June 1990 in the total amount of $573,988.67. That total figure represented tax due of $414,714.67, penalty of $97,201.36, and interest of $62,072.64. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings. On September 13, 1990, the Department had previously issued to Emilio Perez d/b/a Nana's Stations its Notice of Final Assessment for the period April 1988 through June 1989 in the amount of $147,291.20. That total figure represented tax due of $100,625.58, penalty of $25,156.43, and interest of $21,509.19. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings. On May 23, 1994, an evidentiary hearing was conducted by the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County on a Petition for Review of the Jeopardy Findings filed by the Petitioners in this cause. In a detailed Order Reversing the Department of Revenue's Jeopardy Findings and Releasing Seizure of Assets, entered June 2, 1994, Circuit Judge Lucy Brown analyzed the deficiency of the notice given by the Department in its two groups of Jeopardy Findings and accompanying Notices of Final Assessments: the September 13, 1990, group and the April 25, 1994, group. In her factual determinations, Judge Brown determined that the Department had not provided notice as required of the Department as to its September 13, 1990, Notices of Final Assessment and Notices of Jeopardy Findings issued to Nana's and to Emilio Perez d/b/a Nana's Stations in that the Department knew at the time that Emilio Perez was the principal of Nana's and that Perez was not at the time present at the address used by the Department to serve notice on him and on Nana's, that no officer or director or employee of Nana's was shown to have received notice of the issuance of the Notices of Final Assessment and Notices of Jeopardy Findings, and that the Department made no attempt to effectuate personal service. It was further found that no notice or knowledge of the outstanding September 19, 1990, Notices of Final Assessment and of Jeopardy Findings was received prior to April 1994. After concluding that the Department did not fulfill its obligation to provide notice of its September 13, 1990, Notices of Final Assessment and Notices of Jeopardy Findings, and after concluding that the Department had not shown the existence of jeopardy upon which its April 25, 1994, Notices of Jeopardy Findings were based, Judge Brown reversed both groups of Notices of Jeopardy Findings and further set aside and vacated the Department's seizure of Petitioners' assets. The Department did not file an appeal from that Order. Accordingly, the Circuit Court determination that Petitioners were not notified that the Department was seeking additional taxes from them until April 1994 cannot be disputed herein. The Special and Alternative Fuel Tax Returns filed with the Department by Nana's for the months of February 1990 through June 1990 each declared that money was due from Nana's to the Department. The Department has no record of payment being received with each of those returns or thereafter. The Department's summary sheet itemizes the tax due with penalty and interest computed through August 1990 as follows: Nana's Petroleum 10011605 DATE TAX DUE AS REPORTED PENALTY THRU 8/19/90 INTEREST THRU 8/14/90 TOTAL DUE 2/90 26,376.57 6,594.14 1,274.75 34,245.46 3 16,459.04 3,291.81 627.70 20,378.55 4 8,287.07 1,243.06 234.31 9,764.44 5 11,339.26 1,133.93 205.04 12,678.23 6 11,822.56 591.13 97.17 12,510.86 74,284.50 12,854.07 2,438.97 89,577.54 Accordingly, Nana's is responsible for unpaid taxes in the amount of $74,284.50, together with the increasing penalty and interest until date of payment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Petitioners' contest of the assessments issued against them but for that portion of the September 13, 1990, Notice of Final Assessment issued to Nana's encompassing the months of February 1990 through June 1990 wherein Nana's reported tax due in the total amount of $74,284.50 but failed to pay that amount to the Department, together with the statutory penalty and interest on that amount through date of payment. DONE and ENTERED this 16th day of May, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER Petitioners' six un-numbered paragraphs in that portion of its proposed recommended order entitled "Factual Findings" have been adopted to the extent that they include any findings of fact which were intermingled with Petitioners' conclusions of law and argument of counsel contained within those un-numbered paragraphs. Respondent's proposed findings of fact numbered 1-6, 8, 9, 12, 21, and 34 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 7, 10, 13-18, 20, 22- 27, 29, 39-47, 49, and 50 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 11 has been rejected as being irrelevant. Respondent's proposed findings of fact numbered 19, 28, 30-33, 35-38, and 48 have been rejected as being subordinate to the issues in this cause. COPIES FURNISHED: Andrew Helgesen, Esquire Harris, Kukey, and Helgesen 11380 Prosperity Farms Road, Suite 201 Palm Beach Gardens, Florida 33410 Dean L. Willbur, Jr., Esquire 319 Clematis Street, Suite 600 Post Office Box 6917 West Palm Beach, Florida 33405-0917 Lealand L. McCharen, Esquire Francisco M. Negron, Jr., Esquire Office of the Attorney General Capitol Building - Tax Section Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact On July 6, 1982, Jimmy Haywood Nixon, an employee off petitioner, took a sample of gasohol offered for sale as "super unleaded ethanol enriched" (by pumping it through a nozzle) at the 7-11 food store, 111 West Burgess Road, Pensacola. He delivered the sample to Pat Flanagan, a chemist with petitioner's mobile lab No. 2. According to Mr. Flanagan, there was a third again too much alcohol in the mixture. He was of the opinion that the high alcohol content accounted for the low (1590F.) "50 percent evaporated temperature." Being advised by Mr. Flanagan that the gasohol was nonstandard, Mr. Nixon returned on July 7, 1982, to lock the pump. Later that day, after posting bond, respondent's Mr. Cooper tried to figure out how much unleaded gasoline to add to the 4,589 gallons in the 7-11 tank in order to reduce the fraction of alcohol to one-tenth. To this end, samples taken, not from the nozzle, but from deep in the tank were analyzed. Mr. Flanagan performed the same procedure on the tank sample as he had run on the nozzle sample. He added dyed ethylene glycol to the sample, shook the mixture and waited for it to stratify. Then he measured the amount by which the dyed layer had grown. This increment was assumed to be pure alcohol. The tank sample test indicated that the mixture was 12.3 percent alcohol, a full point less than the nozzle sample's ethanol component. The difference is presumably attributable to slight stratification in the tank. Mr. Cooper also performed a test. This test employed the same methodology as Mr. Flanagan's test, but the reagent was distilled water rather than ethylene glycol, and the result was 9.8 or 9.9 percent alcohol. It may be that additives other than ethanol dissolved in the ethylene glycol. On July 9, 1982, Mr. Cooper arrived in a compartmented truck with an empty chamber for blending, 100 gallons of alcohol, and 1500 gallons of unleaded gasoline. He added 1300 gallons of unleaded gasoline to the tank and blended the mixture. This resulted in 5889 gallons that tested at 7.5 percent alcohol, so all 100 gallons of alcohol were added. The resulting mixture tested at 9.167 percent alcohol.
Recommendation This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 29, 1982. Respondent was unrepresented at the hearing, but Mr. Donald P. Robinson, respondent's treasurer, was oresent and was, without objection, called as a hearing officer's witness. Petitioner was represented by counsel: Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32301 In order to secure the release of certain gasohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gasohol was nonstandard when impounded and what disposition to make of the bond respondent posted.
The Issue The issue here presented concerns an alleged violation of Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code, related to the permissible ten percent (10 percent) evaporated temperature for which gasoline shall not exceed 140F, and penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 3411 U.S. 19 North, Pasco County, Tarpon Springs, Florida. On November 23, 1981, a sample of the petroleum product, super unleaded gasoline (which was offered for sale) was taken from the Respondent's facility as indicated above. A subsequent analysis of that product by Petitioner's mobile laboratory revealed that the ten percent (10 percent) evaporated temperature was 153F. This reading exceeded the ten percent (10 percent) evaporated temperature of 140F as set forth in Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code. Petitioner's inspector, Jamie Gillespie, advised Respondent's agent that the premium unleaded gasoline was illegal due to its "stale" condition and the Respondent was given an option of either confiscation of the product or posting of a bond. The product is presently under a Stop Sale Notice and is under seal. (Petitioner's Composite Exhibit No. 1.) A subsequent analysis by Petitioner's laboratory in Tallahassee revealed that the evaporation level of the product was found to be approximately 163F. Ben Bowen, Petitioner's Assistant Bureau Chief in charge of petroleum inspection, indicates that the discrepancy in the evaporation levels as analyzed by the two laboratories was most probably due to the seal which was on the product and the approximate seven (7) day delay in the transfer of the product from Tarpon Springs to the laboratory in Tallahassee. Respondent's supervisor, Mark Ordway, 1/ was shown how the product could possibly become stale due to a "venting" problem from the roof of the storage tank where the product was stored. Sam Puleo, a lab technologist employed in Petitioner's mobile laboratory, analyzed the sample of the product taken from Respondent's facility. According to Mr. Puleo, "stale" products such as that taken from Respondent's tanks would make it difficult to start an automobile engine.
