Findings Of Fact The Respondents, Douglas S. Melvin and Janice Melvin, operate a motel under the name The Islander at 4300 Ocean Beach Boulevard, Cocoa Beach, Florida. This motel is licensed by the Florida Division of Hotels and Restaurants under license number 15-182H. In answer to the complaint of a guest, Wesley A. Blom went to The Islander motel to inspect it on September 10, 1981. The complaining guest was not present, but the complaint related in part to the lack of cleanliness of room 217. Wesley A. Blom is a state qualified and certified sanitarian and inspector of fire extinguisher devices. He has had nine years experience in such work with the State of Florida. When Wesley A. Blom inspected The Islander on September 10, 1981, its owners, Douglas S. Melvin and Janice Melvin, were not present. During this inspection Wesley A. Blom was shown room 217 by motel personnel, and he inspected the motel generally for compliance with all applicable Florida Statutes and rules relating to safety, sanitation, and maintenance of public lodgings. During the September 10, 1981, inspection of The Islander motel, Wesley Blom observed the following conditions: The fire extinguishers available to the public and occupants of The Islander were of the soda-acid type, requiring periodic service checks and recharging to remain in safe, reliable, and useable condition. These fire extinguishers did not have un- expired service tags, as required, but the service tags affixed showed that these fire extinguishers had been last inspected and recharged more than one year previously. Paint was peeling on the walls of the bathroom in room 217. The bed cover on the bed in room number 217 was torn and stained in several places with tar residue. The floor In room 217 was dirty, and trash was scattered about the floor of this room. At the time when the dirt and trash was discovered on the floor in room 217, the bed had been made up, indicating that the room had been serviced by the motel staff. No room rate notice of any kind was posted in room 217. On September 30, 1981, Wesley A. Blom returned to The Islander motel to determine whether the conditions observed there on September 10, 1981, had changed or been corrected. He did not reinspect room 217 at this time because it was occupied, but the fire extinguishers available at The Islander motel had not been serviced or recharged since February of 1979, as evidenced by their expired State Fire Marshal service tags. On February 22, 1982, Wesley A. Blom again returned to The Islander motel to determine if the conditions discovered on September 10, 1981, had been corrected or changed. He was not able to inspect room number 217 because it was occupied, but he did observe that previously available soda-acid fire extinguishers were no longer present. The only fire extinguishers available at The Islander motel on this occasion were different models of an undetermined type which were located in the lobby of the motel. This lobby is more than 100 feet from many of the rooms of the motel. The Respondents contend in their own behalf that room 217 had not been made up, and was not ready for occupancy when it was inspected; that the bed cover with the tar on it was being cleaned by the maid, and was not finished when inspected; that the carpet was not dirty, but simply had not been vacuumed when it was inspected; that rate sheets are usually posted, but the one in room 217 had been missing and was found in another room; and that a maintenance man responsible for painting the rooms was fired for using inferior paint which might have peeled off. However, both the Respondents were in Michigan on September 10, 1981, when the first inspection took place; thus, without testimony from motel personnel who were present at the time, the testimony of the Respondents is not of sufficient quality to support a finding of fact. The expired date on the fire extinguishers is admitted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner enter a Final Order finding the Respondents guilty of violating Section 509.221(2) and (6), and 509.201, Florida Statutes, and Sections 7C-1.04(1), 1.03(1), 3.01 and 3.02, Florida Administrative Code. And it is further RECOMMENDED that the Final Order of the Petitioner suspend license number 15-182H held by Douglas S. Melvin and Janice Melvin, authorizing them to operate The Islander motel, for a period of one year from the date of the Final Order, and that The Islander motel be closed pursuant to this suspension for one year. And it is further RECOMMENDED that the Final Order of the Petitioner provide that the suspension period of one year may be lifted upon a satisfactory demonstration to the Petitioner that approved fire extinguishers are maintained on the premises of The Islander motel in accordance with all applicable laws. And it is further RECOMMENDED that, in addition to the foregoing, the Final Order of the Petitioner assess an administrative fine of $200 for each of the four violations not relating to fire extinguishers, as enumerated above, for a total fine of $800 payable no later than 30 days after the date of the Final Order. THIS RECOMMENDED ORDER entered on this the 24th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Douglas S. Melvin and Janice Melvin 4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931
Findings Of Fact This case was presented for hearing based upon the request for formal Subsection 120.57(1), Florida Statutes, hearing, made by Arnold S. Rogers, President, One Stop Oil Company. The matters to be considered are as generally indicated in the Issues statement to this Recommended Order. The hearing was conducted on March 10, 1982. 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 1238 Broward Road, Jacksonville, Florida. On November 25, 1981, a sample of the petroleum product kerosene was taken at the aforementioned location operated by the Respondent, which is known as Station No. 10. A subsequent analysis on December 3, 1981, revealed a "flash point" of 78F. This reading was below the 100F minimum "flash point" as set forth in Rule Subsection 5F-2.01(2)(b), Florida Administrative Code. The results of the analysis were made known to the Respondent on December 3, 1981. Prior to that date, the Respondent was unaware of this reading below standard related to the "flash point." (A second kerosene sample was taken on December 3, 1981. That sample continued to reveal a "flash point" below 100F.) In view of the results of the November 25, 1981, test related to the kerosene at the Respondent's station, a "Stop Sale Notice" was issued to the Respondent. This was issued in keeping with Section 525.06, Florida Statutes (1980). In lieu of confiscation, a bond was posted in an approximate amount, $4,900.00. This bond amount had been prescribed by an employee for the Petitioner by mistake and subsequent to that time, all of the bond amount, with the exception of $1,000.00 was refunded to the Respondent. It is the $1,000.00 amount that remains in dispute at this time. In excess of 1,800 gallons of the contaminated kerosene had been sold prior to the discovery of this problem. The kerosene in the sample tank in question had been contaminated with gasoline and this combination lowered the "flash point." Kerosene with a low "flash point" is a hazardous substance, particularly when burned in kerosene stoves. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, makes it a violation to offer for sale kerosene which has a "flash point" of less than 100F. The Respondent offered and in fact did sell kerosene whose "flash point" was established to be 780F, and in the face of such action, violated the aforementioned Rule. This violation would subject the Respondent to the confiscation of the kerosene remaining in the tank in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02 (2)(c) , Florida Administrative Code. In lieu of such confiscation, the Petitioner could accept a bond, not to exceed $1,000.00 which could be converted into a fine, in the face of a finding of a violation of the petroleum standards law. Respondent posted the $1,000.00 bond and that bond amount can be taken as a fine levied against the Respondent for the violation as found. The Petitioner being found in violation, the only matter to be determined is the proper amount of fine to be imposed. The Petitioner is of the persuasion that the full fine should be levied in view of the clear violation; the hazard posed by offering for sale and selling kerosene with a substandard "flash point," and the cost of prosecution to include appearances by consul and witnesses in Jacksonville, Florida, when counsel and those officials were required to travel from Tallahassee, Florida. Respondent, through its representative, detailed the steps that were taken to ensure against a violation of the "flash point" standards related to kerosene. The rendition of facts establishes that the tank in which the subject kerosene had been placed had immediately prior to that placement, contained unleaded premium gasoline. That gasoline had been pumped out; the tank tilted to allow the residue to collect in one confined area and the tank flushed out by water. The delivery tanker, which belonged to the Respondent and which delivered the kerosene, had been used to transport gasoline before that delivery; however, that tanker had been subjected to a purging to remove the gasoline. Respondent was unsure about the condition of the kerosene which had been sold to the Respondent by an outside source and transported by the Respondent's tanker, as this relates to a "flash point" violation prior to delivery. Notwithstanding the efforts by the Respondent to protect against such a violation of "flash point," Respondent concedes that as much as one quarter inch of gasoline residue could have remained in the storage tank at the time kerosene was offered for sale and sold. While Respondent recognizes that the violation established herein is one which does not require proof of "intent" in order to be found responsible for such violation, Respondent, nonetheless, asks that the fine be less than the full $1,000.00, particularly so in the face of the depressed market conditions related to its business. Finally, Respondent, in answering Petitioner's argument related to the cost of prosecution, states that it would have attended a hearing in Tallahassee, Florida, if necessary. Based upon a full consideration of the facts, conclusions of law and matters in aggravation and mitigation, it is RECOMMENDED: That a final order be entered finding the Respondent in violation of Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, and subjecting Respondent to the penalties set forth in Section 525.06, Florida Statutes (1980), and imposing a fine of $750.00, with $250.00 of the bond amount to be refunded to the Respondent. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th March, 1982.
The Issue Whether the Respondent, Florida Public Utilities Company, established the natural gas account for Mother's Kitchen Restaurant in compliance with all applicable statutes, and Florida Public Service Commission (PSC) rules concerning establishment of service and customer deposits, specifically Rule 25-7.083(4)(a), Florida Administrative Code. Whether Petitioner, Mother's Kitchen, Ltd., provided a deposit of $500 to Respondent at any time to establish a new account for Mother's Kitchen Restaurant. Whether Respondent administered the account of Mother's Kitchen Restaurant in compliance with all applicable statutes and PSC rules concerning refusal or discontinuance of service, specifically Rules 25-7.089(2)(g), (3), (5), (6)(a) and (e), Florida Administrative Code. Whether Respondent should be required to provide a refund of all or any part of any deposit made to establish an account for Mother's Kitchen Restaurant or any amounts paid for natural gas usage, service charges, returned check charges, or other fees charged to that account.
Findings Of Fact Petitioner, Mother's Kitchen, Ltd., is a partnership formed to operate a restaurant under the name of Mother's Kitchen Restaurant. The partners consist of Anthony Brooks, II; Daniele M. Dow-Brooks; Eddie Hodges; and Arthur L. Brooks. Mr. Alford Byrd was an original partner, but has since withdrawn from the partnership. At all times in dispute, Mother's Kitchen Restaurant was physically located at 1744 West Airport Boulevard, Sanford, Florida 32772-0134. Respondent, Florida Public Utilities Company, is a natural gas utility regulated by the Florida Public Service Commission (PSC) pursuant to Chapter 366, Florida Statutes, and Chapter 25-7, Florida Administrative Code. On March 21, 1996, Mr. Alfred Byrd (Byrd), a partner in Mother's Kitchen Ltd., signed a Job-Work Contract authorizing Respondent to prepare and connect appliances at Mother's Kitchen Restaurant to receive natural gas service. On March 21, 1996, Byrd provided, in person at Respondent's Sanford Office, a $200 deposit on behalf of the partnership to Respondent in order to establish a gas account for Mother's Kitchen Restaurant. Byrd received a deposit receipt from Respondent dated March 21, 1996, in the amount of $200. On March 21, 1996, Respondent established account number 0131-07252 in the name of "Alfred Byrd, d/b/a Mother's Kitchen" with a mailing address of "P. O. Box 134, Sanford, Florida 32772- 0134." This was based on the information provided by and the instructions of Byrd. On March 22, 1996, Respondent's serviceman prepared and connected a range and a fryer at Mother's Kitchen Restaurant for gas service, pursuant to the March 21, 1996, Job-Work Contract, and turned on the gas supply to Mother's Kitchen Restaurant. On March 31, 1996, Respondent billed Byrd $126.59 for the labor and materials required to prepare and connect the appliances under the March 21, 1996, Job-Work Contract. On April 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $67.32, consisting of $46.32 for gas usage from March 22, 1996, through April 2, 1996, and a $21.00 turn on charge from March 22, 1996. On April 23, 1996, Respondent credited $126.59 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1013, dated April 22, 1996. On May 8, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $297.07, consisting of $229.75 for gas usage from April 2, 1996, through May 1, 1996, and $67.32 in arrears. On May 23, 1996, Respondent credited $150.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1074, dated May 20, 1996, and signed by Anthony Brooks (Brooks). Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On June 3, 1996, Byrd signed a Job-Work Contract authorizing Respondent to clean the pilot light on the gas oven at Mother's Kitchen Restaurant. Respondent's serviceman completed this work the same day. On June 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $391.72, consisting of $244.65 for gas usage from May 1, 1996, through May 31, 1996, and $147.07 in arrears. On June 7, 1996, Mother's Kitchen check No. 1074 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On June 11, 1996, Respondent credited $170.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on June 10, 1996, as reimbursement for the $150.00 returned check No. 1074 and the corresponding $20.00 service charge. Respondent issued a receipt in the name of "A. Byrd" for this payment. On July 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $657.36, consisting of $265.64 for gas usage from May 31, 1996, through July 1, 1996, and $371.72 in arrears. On July 11, 1996, Respondent credited $160.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on July 11, 1996. Respondent issued a receipt in the name of "A. Byrd" for this payment. No person paid a $500.00 deposit on behalf of Petitioner to establish a new gas account with Respondent for Mother's Kitchen Restaurant on July 11, 1996. At no time during the month of July did any person pay such a deposit. On July 15, 1996, Respondent added a service charge of $30.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account for service performed pursuant to the June 3, 1996, Job-Work Contract. On July 25, 1996, Respondent credited $211.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1131, dated July 24, 1996, and signed by Alfred Byrd. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On August 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $540.04, consisting of $224.40 for gas usage from July 1, 1996, through July 31, 1996, $285.64 in arrears, and the $30 service charge added on July 15, 1996. On August 8, 1996, Mother's Kitchen check No. 1131 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On August 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $285.64 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On August 12, 1996, Brooks hand-delivered a $290.00 cash payment to Respondent's Sanford Office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. This payment was not credited to the account until August 28, 1996. The delayed crediting of this payment had no effect on any notices or bills concerning the account. On August 12, 1996, Brooks, in person at Respondent's Sanford office, requested that the mailing address for the "Alfred Byrd d/b/a Mother's Kitchen" account be changed to the physical address of Mother's Kitchen Restaurant. Respondent made the requested change that same day. On August 13, 1996, Respondent's serviceman reconnected gas service to Mother's Kitchen Restaurant based on the August 12, 1996, cash payment of $290.00. On August 28, 1996, Respondent credited $521.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account. This credit consisted of the $290 cash payment made August 12, 1996, and a $231.72 payment made August 28, 1996. The $231.72 payment was made as reimbursement for the $211.72 returned check No. 1131 and the corresponding $20 service charge. Respondent prepared an in- house receipt for this credit. No person made a $521.72 payment to Respondent for the "Alfred Byrd d/b/a Mother's Kitchen" account on August 28, 1996. On August 30, 1996, Respondent mailed a disconnect notice for the "Alfred Byrd d/b/a Mother's Kitchen" account to the physical address of Mother's Kitchen Restaurant. This notice stated that gas service to the restaurant would be discontinued if payment of $230.04 in arrears on the account was not made by September 10, 1996. On September 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $471.29, consisting of $221.25 for gas usage from July 31, 1996, through August 29, 1996, and $230.04 in arrears. This bill was mailed to the physical address of Mother's Kitchen Restaurant. On September 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $230.04 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On September 12, 1996, Harry Johnson, an employee of Petitioner, hand-delivered a $261.04 cash payment, consisting of payments for the $230.04 in arrears and a $31 reconnect fee, to Respondent's Sanford office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On September 13, 1996, Respondent's serviceman was dispatched between 8:30 a.m. and 9:00 a.m. to reconnect gas service to Mother's Kitchen Restaurant. On September 13, 1996, between 8:30 a.m. and 9:00 a.m., Byrd, in person at Respondent's Sanford office, spoke to Diane Keitt (Keitt) and requested that gas service be discontinued on the "Alfred Byrd d/b/a Mother's Kitchen" account. Keitt contacted the serviceman by radio as he was en route to Mother's Kitchen Restaurant and instructed him to tell someone at the restaurant to call Keitt at Respondent's Sanford office. The serviceman arrived at Mother's Kitchen Restaurant at approximately 9:00 a.m. Upon entering the restaurant's kitchen, the serviceman told the occupants that someone needed to call Keitt immediately at the Respondent's Sanford office. Next, he inspected the restaurant's natural gas appliances to make sure there were no open gas lines then exited the building to perform a meter test to check for the possibility of a gas leak on the customer's side of the meter. After natural gas service has been discontinued on any existing account, Respondent performs a meter test before reestablishing service in order to determine if there is a leak on the customer's side of the meter. The serviceman's meter test revealed a gas leak on the customer's side of the meter. He searched for the leak by inspecting the gas appliances and applying a soapy solution used to detect leaks to the gas connections on each appliance. The serviceman located the leak on a worn pilot adjustment screw on the range. The leak could not be repaired without replacing the pilot adjustment screw. Brooks was present at the restaurant and called Keitt while the serviceman was performing the meter test. Keitt informed Brooks that Byrd had requested discontinuance of service to the restaurant. Keitt also told Brooks that Respondent would continue providing service on a temporary basis, in order to provide Petitioner time to pay a $500 deposit to establish a new account. Keitt then called Respondent's Vice President Darryl Troy (Troy) at Respondent's home office in West Palm Beach, Florida, to inform him of the situation. Brooks called Troy, who confirmed Keitt's statements concerning Byrd's desire to have service discontinued and the necessity of providing a new deposit to establish a new account. The serviceman interrupted this phone conversation to tell Brooks that there was a gas leak on the restaurant's range. Brooks was upset that the serviceman had not yet restored gas service. Brooks refused to authorize or pay for repairs to the range. The serviceman prepared a Report of Hazardous Condition or Corrective Action Required to document the gas leak on the range and inform the customer of the necessary repairs. Brooks refused to sign this form. The serviceman capped the gas connection to the range, plugged the range, and placed the Report of Hazardous Condition or Corrective Action Required and a red tag on the range. He determined that the fryer could be operated safely, so he lit its pilot before exiting the restaurant. The serviceman spoke with Keitt by radio and told her that he had located a gas leak and that Brooks refused to authorize its repair. Keitt then called Troy for instructions on how to handle the account. Troy felt that Brooks did not believe a gas leak was present on the range. Troy was concerned that someone at the restaurant may attempt to reconnect the range, so he instructed Keitt to have the meter turned off and locked. The meter was turned off and locked due only to safety concerns; Byrd's request to discontinue service to the restaurant played no part in Troy's decision. Keitt contacted the serviceman by radio and instructed him to turn the meter off and lock it. The serviceman turned off the meter and locked it. He then notified Brooks that he had turned off the meter and locked it upon instructions from Keitt. The serviceman left the restaurant at approximately 10:00 a.m. That afternoon, Brooks, in person at Respondent's Sanford office, requested that Keitt provide him a refund of the $261.04 payment made September 12, 1996. Keitt refused to refund this amount. No record evidence exists to show that Petitioner paid a $500 deposit, or a deposit of any amount, to establish a new account with Respondent after gas service to Mother's Kitchen Restaurant was disconnected on September 12, 1996. On September 16, 1996, a serviceman took a final reading from the gas meter at Mother's Kitchen Restaurant and officially turned off the meter. On September 16, 1996, Respondent charged $100.50 to the "Alfred Byrd d/b/a Mother's Kitchen" account for gas usage from August 29, 1996, through September 16, 1996, to finalize the account. On September 19, 1996, Respondent applied Petitioner's $200.00 deposit from March 21, 1996, to the outstanding, final balance of $310.75 on the "Afred Byrd d/b/a Mother's Kitchen" account. No record evidence exists to show that any person paid a $500 deposit, or a deposit of any amount, on behalf of Petitioner to establish a new account with Respondent for gas service to Mother's Kitchen Restaurant since the "Alfred Byrd d/b/a Mother's Kitchen" account was established on March 21, 1996.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found to have acted in compliance with Public Service Commission rules concerning the establishment of new service and management of customer deposits when service was established in the name of Alfred Byrd, d/b/a Mother's Kitchen on March 21, 1996. It is further RECOMMENDED the Respondent be found to have properly administered the account at issue here at all times leading up to its disconnection on September 13, 1996, and that Respondent be found to have acted in compliance with all Commission rules regarding that disconnection and refusal to reconnect. It is further RECOMMENDED that Respondent not be required to provide a refund of any part of the deposit made on this account or any amounts paid for service or fees on the account. DONE AND ENTERED this 11th day of June, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1998. COPIES FURNISHED: Anthony Brooks, II Qualified Representative Mother's Kitchen, Ltd. Post Office Box 1363 Sanford, Florida 32772 Kathryn G. W. Cowdery, Esquire Gatlin, Schiefelbein & Cowdery, P.A. 3301 Thomasville Road, Suite 300 Tallahassee, Florida 32312 Wm. Cochran Keating, IV, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Blanca Bayo, Director of Records Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399
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
The Issue On February 24, 1987, the Petitioner posted a bond in the amount of $844.80 in lieu of confiscation of 1600 gallons of diesel fuel that was found to be below standard. The ultimate issue in this case is whether some or all of the bond should be refunded to the Petitioner. At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses and did not offer any exhibits. The Respondent presented the testimony of two witnesses and offered one composite exhibit which was received in evidence without objection. Neither party requested a transcript of the hearing and both parties waived the right to file proposed recommended orders. Several days after the hearing, the Petitioner mailed to the Hearing Officer a copy of a letter written by an employee of the Department of Agriculture and Consumer Services regarding this matter. I have not based any findings of fact on the information in that letter because it was not received in evidence at the time of the hearing
Findings Of Fact Based on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. On November 17, 1986, an employee of the Department of Agriculture and Consumer Services (hereinafter "Department") inspected various fuels offered for sale at the Mobile Service Station located at 1-75 and State Road 236. The inspection revealed that a quantity of diesel fuel offered for sale at that service station was below standards. On November 18, 1986, an employee of the Department returned to the service station described above and issued a Stop Sale Notice regarding the substandard diesel fuel, placed a seal on the pump to prevent further retail sale of the substandard diesel fuel, and took a second sample of the diesel fuel for the purpose of confirmation testing. The second sample of the diesel fuel was also found to be below standards. The service station described above is owned by the Petitioner. The Petitioner leases the station to an operator and delivers the fuel that is sold at the service station. On November 18, 1987, when the Stop Sale Notice was issued, the person on duty at the service station called Petitioner's office to advise Petitioner that the Stop Sale Notice had been issued and that the diesel pump had been sealed. Mr. Glenn Jones, the president of Petitioner, was not at the office at the time of that call, but was informed about the Stop Sale Notice within the next few days. On February 24, 1987, another representative of the Department visited the subject service station and on that day Mr. Glenn Jones signed a Department form titled Release Notice or Agreement and posted a bond in the amount of $844.80. The terms and conditions of the bond are not part of the evidence in this case. Thereupon, the Department removed the seal from the diesel pump at the subject service station and the 1600 gallons of diesel fuel were released to the Petitioner. During the period between November 18, 1986, and February 24, 1987, diesel fuel could not be sold to retail customers at the subject service station because the diesel fuel pump was sealed. This inability to sell diesel fuel to retail customers for over 90 days caused the service station to lose a substantial amount of business. In the normal course of events, within no more than one week from the time a Stop Sale Notice is issued the owner of substandard fuel can arrange to post a bond and have the seal removed from the fuel pump. It is very unusual for it to take more than 90 days as it did in this case. Several circumstances contributed to the unusual delays in this case. Among those circumstances were the fact that during the period from November 18, 1986, to February 24, 1987, both Mr. Glenn Jones and the Department employee who was supposed to follow up on this matter suffered from serious illnesses. The matter was further complicated by the fact that the fuel samples were taken by a mobile testing unit and the mobile testing unit moved on to another area shortly after the samples in this case were taken. There is no competent substantial evidence in the record of this case regarding the retail price of the substandard diesel fuel which was the subject of the Stop Sale Notice on November 18, 1986, nor is there any evidence as to the amount of such fuel, if any, that was sold to the public.
Recommendation Based on all of the foregoing, it is recommended that the Department of Agriculture and Consumer Services issue a final order in this case to the effect that the petitioner, Glenn I. Jones, Inc., is entitled to a refund of the full amount of the bond it posted on February 24, 1987, in the amount of $844.80. DONE AND ENTERED this 9th day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 9th day of June, 1987. COPIES FURNISHED: Mr. Glenn I. Jones Glenn I. Jones, Inc. Post Office Box 549 Lake City, Florida 32055 Harry Lewis Michaels, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32399-0800 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
The Issue Does Petitioner owe Respondent sales tax for customer charges associated with the inspection/recertification of fire extinguishers, which activities were reported on invoices involving charges for parts, maintenance, recharge of fire extinguishers, provision of new fire extinguishers, pick-up and delivery, and maintenance, where the latter categories of activities included the payment of sales tax?
Findings Of Fact Petitioner does business in northeast Florida. Principally it inspects fire extinguishers at customer locations that must undergo inspection on an annual basis in accordance with Chapter 633, Florida Statutes. Petitioner also sells and services fire extinguishers to and for its customers. When performing an inspection, Petitioner's employee removes the fire extinguisher from its location, makes sure the powder in the fire extinguisher floats, checks the pressure gauge, makes sure that the pressure is acceptable in the extinguisher and examines the hose attached to the fire extinguisher; if these items are in good operating order the fire extinguisher is returned to its location and certified as operable for the upcoming period. The certification is evidenced by a tag placed on the fire extinguisher. That tag reflects a serial number, the name of the person who inspected and certified the extinguisher as acceptable, the permit number for the certifying person, and the kind of fire extinguisher that is under inspection. Beyond that point, if someone wishes to verify the status of the fire extinguisher that has been found acceptable, the tag evidences that acceptability. For the basic inspection, Petitioner charges its customers a fee depending on the number of fire extinguishers that are being inspected at a given location. If there is a problem with one of the fire extinguishers that has been inspected, Petitioner's employee will tell the customer the nature of the service that needs to be performed to assure that the fire extinguisher is in proper operating condition. In the event that a fire extinguisher has a problem which the customer wishes fixed, that fire extinguisher is removed from the customer's location and brought back to Petitioner's facility to be repaired. When the defective fire extinguisher is removed, an operable substitute fire extinguisher is provided to the customer pending repairs to the defective fire extinguisher. In effecting repairs, the customer is charged the cost of tangible items involved with the repair and for labor costs associated with the repair. The records which Petitioner maintained in the period in question in this case, reflect charges for the inspections of customer fire extinguishers and other activities and charges but not in the detail that has been set forth in the preceding paragraphs. The records are sales invoices. The invoices produced at the hearing are a fair representation of the experience associated with all invoices under question. In this case, Respondent intends to impose sales tax, penalties, and interest and an affiliated tax charge referred to as the Chartered Transit Systems Assessment, in relation to those items invoiced under the categories fire extinguisher inspected/fire extinguisher recertification/automatic fire extinguishing system inspected. These descriptions all refer to the process of fire extinguisher inspection. The invoices that are examples of this process show that sales tax and the associated charter tax have been collected for those other charges made by the Petitioner to its customers. Petitioner sought the advice of a CPA in establishing the manner in which its invoices reflect the collection of sales tax. This advice was sought through Mr. Schaefer. The audit period for which the Respondent has assessed additional tax, penalties, and interest is November 1, 1989 through October 31, 1994. The intent to impose tax penalties and interest resulted from an audit performed by the Respondent on Petitioner's business. An audit report was rendered on October 2, 1995; Petitioner objected to the findings in that audit report. Respondent affirmed the assessment in a Notice of Decision dated July 22, 1996. Petitioner sought reconsideration of that notice of decision. Respondent again upheld the assessment through its Notice of Reconsideration dated April 18, 1997. On June 19, 1997, Petitioner petitioned for formal hearing to contest the decision to impose the tax penalties and interest. The sample invoices by their terms state the following: FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49217 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1613804 BR TO: Ramada Inn 6237 Arlington Expressway prices per contract Jacksonville, Fl 32211 Quantity Description Unit Price Total 24 Fire extinguisher inspected 65.00 2 5 lb. abc maintenance 20.00 3 Fire extinguisher inspected-unserviceable 9.00 3 5 lb. abc new fire extinguisher 114.00 2 10 lb. abc maintenance 28.00 2 Valve repair 10.40 1 Handle repair 3.95 1 Syphon tube 3.10 3 O rings 2.70 7 Pick up and delivery 8.00 After 15 days pay $282.09 264.15 QUADRUPLICATE Thank You Tax on 199.15 12.94 277.09 FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49210 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1148265 JW TO: Clark Trailer Sales Serv. Mgr Linden Beane 5201 W. Beaver St prices per contract Jacksonville, Fl 32236 Quantity Description Unit Price Total 10 Fire extinguisher recertification 42.00 1 10 lb. abc hydrotest and recharge 38.00 1 Pick up and delivery 80.00 Tax on 38.00 2.47 82.47 After 15 days pay $87.47. QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street JACKSONVILLE, FLORIDA (904) 731-0244 32217 49208 DATE ORDER NO TO: 4/12/91 1851144 JW Walmart 6767 103 rd St Jacksonville, Fl 32216 annual inspection prices per contract Quantity Description Unit Price Total 25 Fire extinguisher recertification 75.00 4 5 lb. abc maint 40.00 2 5 lb. abc recharge 20.00 2 Valve repair 8.90 3 Locking pin 6.00 1 Syphon tube 3.10 2 O ring 1.85 6 Pick up and delivery 8.00 After 15 days pay $173.56 162.85 Tax on 87.85 5.71 168.56 QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49203 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1592203 EF TO: Poultry Health Service 5695 Stuart Ave prices per contract Jacksonville, Fl 32205 Quantity Description Unit Price Total 20 Fire extinguisher inspected 65.00 1 Fire extinguisher inspected-unserviceable 3.00 1 5 lb. abc maintenance 10.00 1 5 lb. abc recharge 10.00 1 2 3/4 lb. abc complete maintenance 8.00 New 10 lb. abc fire extinguisher 58.00 Valve repair 8.90 Syphon tube 3.10 O ring 2.45 4 Pick up and delivery 8.00 1 Fire extinguisher installed 7.50 183.95 Tax on 118.95 7.73 191.68 After 15 days pay $ 196.98 QUADRUPLICATE Thank you FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49202 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1363891 PV TO: Holiday Inn 14670 Duval Rd (I 95 & Airport) Dan Zuhowski Jacksonville, Fl 32218 741-4404 Quantity Description Unit Price Total 4 30 lb. automatic fire extinguishing 225.00 system inspected 1 10 lb. automatic fire extinguishing system inspection 1-hood 1 10 lb. automatic fire extinguishing 50.00 system inspected 2-hood 11 Fusible links 93.50 2 10 lb. abc maintenance F/X's 24.00 418.40 Tax on 143.40 9.32 427.72 After 15 days pay $436.30 QUADRUPLICATE Thank You 10 lb. CO2 maintenance 12.00 O rings 1.90 Pick up and delivery 12.00 Standing alone, the invoices do not sufficiently distinguish which, if any, of the fire extinguishers being inspected are receiving other attention, or whether the invoices refer to an entirely different set of fire extinguishers than those that had been inspected. The distinctions described in prior paragraphs between the inspection process and other business pursuits have been based upon extrinsic evidence, outside the invoices, as offered by Louis Schaefer, Petitioner's owner. More specifically, Mr. Schaefer's description of invoice 49217 concerning the entries on that document is extrinsic evidence concerning the meaning of that invoice. Again without the extrinsic evidence one cannot reasonably ascertain the relationship, if any, between the fire extinguishers inspected and other activities involving fire extinguishers for which charges were made on the invoice. Moreover, without extrinsic evidence one cannot ascertain the number of fire extinguishers for which Petitioner has replaced or repaired parts, performed other forms of maintenance, etc., aside from the inspection. The invoice alone does not make clear which of the fire extinguishers described in the inspection line received no tangible personal property which was incorporated or attached to a repaired item, as opposed to those that may have had tangible personal property incorporated into or attached to a fire extinguisher that had been inspected. The same problem exists with other sample invoices. Related to invoice 49217, Mr. Schaefer points out that twenty-four fire extinguishers were inspected at a charge of $65.00. Two five-pound fire extinguishers needed maintenance. That maintenance was the recharge of the two five-pound fire extinguishers at the cost of $20.00. Three fire extinguishers were found to be unserviceable following the inspection. For the determination of the unservicability the customer was charged $9.00. The next line refers to the provision of three five-pound abc new fire extinguishers. The charge for the new fire extinguishers was $114.00. Mr. Schaefer explained that the new fire extinguishers were sold to the customer to replace the unserviceable fire extinguishers. Two fire extinguishers needed valve repairs. The invoice shows a $10.40 charge for the valve repairs. One of the fire extinguishers had a bent handle that had to be replaced. The charge on the invoice for the handle repair was $3.95. One fire extinguisher had a siphon tube repair. The invoice reflects that the charge for that repair was $3.10. Three O rings were replaced for a charge to the customer of $2.70. Mr. Schaefer explains that seven fire extinguishers were picked up and delivered for a cost of $8.00 that was in relation to removal, repairing, and returning fire extinguishers and hanging them back in place at the customer's business. Mr. Schaefer pointed out what can be ascertained by a mathematical exercise, that is, that all charges, with the exception of the $65.00 for inspecting twenty-four fire extinguishers, had sales tax imposed as part of the charges. That tax is in relation to the $199.15 for items other than inspection of the fire extinguishers. The total of the tax is $12.94. Mr. Schaefer explained that the inspection process itself involved an estimate of whether the fire extinguisher was serviceable and whether it met the date codes required. Further, in relation to invoice 49217, Mr. Schaefer explained the total number of fire extinguishers that received some service or were replaced. The two five-pound abc maintenance for $20.00 referred to two of the twenty-four inspected. The three fire extinguishers inspected unserviceable and the three five-pound abc new fire extinguishers refers to the removal of three fire extinguishers and replacement of those three fire extinguishers with new ones. The total of the two five-pound maintained and the three replaced brings the count to a subtotal of five fire extinguishers of the twenty-four inspected. The reference to two ten-pound abc maintenance brings the total to seven fire extinguishers repaired or replaced. The two valve repairs, the handle repair, and the O rings described in the invoice, according to Mr. Schaefer, were in relation to the two five-pound abc maintenance and the two ten-pound abc maintenance mentioned earlier in the invoice. The seven pick-up and delivery refers to three fire extinguishers that had to be replaced as unserviceable by the provision of new fire extinguishers and four fire extinguishers that could be repaired and returned to the customer by Mr. Schaefer's explanation. Therefore, seven of the twenty-four fire extinguishers inspected needed to be repaired or replaced. In summary, without Mr. Schaefer's explanation one can not reasonably discern the meaning of invoice 49217, whether the fire extinguishers inspected were part of the fire extinguishers repaired or replaced, and beyond that consideration how many fire extinguishers were repaired and replaced.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered upholding of sales tax, penalty, and interest, and related Chartered Transit System Assessment of tax, penalty, and interest for the audit period November 1, 1989, through October 31, 1994. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric J. Taylor, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William B. McMenamy, Esquire Donahoo, Donahoo, and Ball, P.A. 50 North Laura Street, Suite 2925 Jacksonville, Florida 32202 Marie A. Mattox, Esquire Mattox and Hood, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Linda Lettera, General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
