Findings Of Fact Early on the morning of September 3, 1982, Mr. Robert W. Taylor, a driver for Fleetwing Petroleum Company, loaded his truck at the Marathon Oil Company Refinery terminal in Tampa, Florida, for the Triangle Refineries, Inc., with 2,001 gallons of super-unleaded gasoline, 2,000 gallons of unleaded regular gasoline, and 3,501 gallons of regular leaded gasoline. The super-unleaded was loaded into Compartment 1 of four compartments on the trailer, which holds a maximum of 2,500 gallons. On the previous day, this trailer had been used by another driver, Floyd Mills; and before loading the trailer at the terminal, he, Taylor, personally flushed out the tanks to insure no contamination. After completing the loading procedure, Mr. Taylor drove directly to the Hardee's station at 24203 Highway 60 E, Lake Wales, Florida, where it was loaded into the station's tanks. The delivery consisted of 3,501 gallons of regular gas, 2,000 gallons of unleaded gas, and 2,001 gallons of super-unleaded gas, as reflected on the delivery log for that date. This was somewhat unusual, since it was the first time Mr. Taylor had ever taken super-unleaded to that station. The receipt for delivery, executed by Walter Winslett, Jr., on September 3, 1982, shows that the quantities and qualities described above were received. During a routine inspection of the Hardee station on September 29, 1982, Mr. Willis Aldridge, an inspector with the Florida Department of Agriculture, took samples of all the gas at the station, including the regular, the unleaded, and the Super-unleaded. These samples, taken in the normal manner, were sealed inside a case with a lead wire seal, identified, and sent off to the lab at Tallahassee. Several days later, on October 5, 1982, Mr. Aldridge received a phone call from the Department of Agriculture laboratory in Tallahassee advising him that the super-unleaded product taken from the Hardee station exceeded the lead tolerance and that he should immediately stop its sale. Thereafter, the following day, he went back to the Hardee station, where talking with the manager, Mr. Winslett, he told him what the problem was, issued a stop sale notice for that grade gas, and sealed the pump dispensing it. Mr. Winslett stated this one load of super-unleaded was the only one he had ever received. The Stop Sale Notice identifies, inter alia, the product, the brand name, the pump number, and the amount still in the tank. This last figure is determined by sticking a gauging stick into the tank. Since this was the first time the station had carried super-unleaded, 2,001 gallons had been delivered, and 998 gallons remained, that meant that slightly over 1,000 gallons had been sold of that product. At this point, Mr. Aldridge advised the station operator he could either give up what was in the ground or pay a penalty on the amount sold to a maximum of $1,000. Since this grade gasoline was selling at that time for $1.32 a gallon, the value of the gasoline still in the ground was greater than the penalty. When the Stop Sale Notice was issued on October 6, 1982, Fleetwing officials requested a few days to consider their options, and on October 14, 1982, advised Mr. Aldridge that they elected to post bond in the penalty amount ($1,000) and would meet him at the station the next morning. When he arrived, Mr. Aldridge met with Mr. C. W. May, Jr., a representative of Fleetwing Petroleum, who posted the required bond, and the remaining 998 gallons of super- unleaded were released. The product in question was tested at the Florida Department of Agriculture Lab Complex in Tallahassee under the supervision of Mr. Ben W. Bowen, of the Lab Testing Section. The tests seen on the super-unleaded sample, utilizing the American Society of Testing and Materials standards adopted by the State of Florida, revealed this particular sample contained 0.15 gram of lead per gallon. Two tests were utilized. An initial field test was used to scrutinize the samples as they came in. If any sample failed this test, a second test utilizing the X-ray florescence method is used. Since the maximum allowed is 0.05 gram per gallon, this sample had three times the lead limit and was therefore subject to confiscation. The effects of using excessively leaded gasoline in cars designed to burn unleaded gas are: (1) the calalytic converter will be ruined, and (2) damage to the engine with continued use. Replacement of a catalytic converter could run to several hundred dollars. The contaminated gasoline was the property of, and offered for sale by, the Respondent, Fleetwing Corporation. The pumps used for dispensing were identified as to type of gasoline and bore the Fleetwing logo.
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 the Respondent. RECOMMENDED this 25th day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Richard C. May, Esquire 4110 South Florida Avenue Suite B Lakeland, Florida 33803 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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 The Respondent owns and operates the Heart of Florida Truck/Auto Plaza ("Truck-Stop"), on U.S. 27 North, Haines City, Florida. When he purchased the truck-stop in October of 1978, he had no prior experience in the operation of such facilities. (Stipulation, Testimony of Respondent) During September of 1979, the Respondent's fuel supplier notified him that premium gasoline would no longer be delivered. Respondent decided, therefore, to convert his 6,000 gallon premium gasoline tank into a diesel fuel storage tank. (Stipulation, Testimony of Respondent) In order to convert the tank to diesel fuel usage, Respondent pumped out all but a residual consisting of approximately 100 gallons of gasoline and 200 gallons of water. Even with the use of an auxiliary electric pump, the Respondent could not succeed in removing the remaining 238 gallons of residual. (Stipulation, Testimony of Respondent) He, then, sought advice from others on ways to empty the tank, including his jobber, diesel mechanic, truck drivers and trucking firms served by his truck-stop. While no one could suggest a method of removing the residual, they assured Respondent that truckers and diesel mechanics preferred a fuel mixture of 1 gallon of gasoline per 100 gallons of diesel fuel because of improved engine performance. (Testimony of Respondent) Based on such advice, the Respondent filled the tank in question with diesel fuel No. 2 and sold the resulting diesel/gasoline mixture to truckers as diesel fuel No. 2. Because of the presence of gasoline, this diesel fuel had a flash point at 440 F. (Testimony of Respondent, John Whitton, and petitioner's exhibit 3) In mixing the diesel with the gasoline in the tank, Respondent reasonably believed, in good faith, that the resulting mixture would not be hazardous or dangerous to its users. He did not know, and had not been previously notified, that the Department had set standards which strictly regulated the quality of gasoline and diesel fuel sold in Florida. Nor did he know that gasoline and diesel fuel sold in violation of such standards would be subject to confiscation and sale by the Department. (Testimony of Respondent) Although the Department regularly mails freight surcharge information every two weeks to retail gasoline outlets such as Respondent's, it does not periodically disseminate information on its petroleum regulatory program. Copies of the Department's rules, and gasoline standards, are available only on request. (Testimony of Lois W. Thornton and John Whitton) Each month, the Department issues approximately 100 Stop Sale Notices to gasoline retailers in Florida. Approximately 12 percent of these Notices are based on unlawful sale of fuel with flash points below Department standards. In such cases, the Department has consistently followed a practice of allowing the retailer to continue ownership of the fuel (in lieu of Department confiscation) only upon the posting of a bond equal to the value of the substandard fuel. However, notwithstanding the value of the substandard fuel, the Department does not require posting of a bond in excess of $1,000.00. Upon resolution of the administrative enforcement actions in favor of the Department, the bonds are forfeited to the Department, in lieu of confiscation. (Testimony of John Whitton) Since, in this case, the value of the offending fuel far exceeded $1,000.00, the Department allowed, and Respondent willingly posted a $1,000.00 bond with the Department. (Testimony of Respondent and John Whitton, and Petitioner's exhibit 2)
Conclusions Respondent violated the Department's gasoline and oil standards. He should, therefore (in lieu of confiscation) forfeit the cash bond he previously posted.
Findings Of Fact On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville, Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline. On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons. On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida. There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case. Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
Recommendation It is recommended that upon payment by the Petitioner of $507.91 and $206.70, respectively, the bond of the Petitioner be cancelled and this case be closed DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979. COPIES FURNISHED: Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304 James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512 Mr. John Whitton Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304
Findings Of Fact On July 10, 1980, Respondent's fuel inspector took a sample of gasoline being sold as unleaded from Respondent's service station in Mascotte, Florida. This sample was subsequently analyzed at Petitioner's mobile laboratory in Mineola and at its permanent facility in Tallahassee. Both tests indicated a lead content in excess of .084 grams per gallon, which exceeds the maximum permissible lead content of .05 grams per gallon established by Rule 5F- 2.01(1)(j), Florida Administrative Code. Petitioner's inspector then returned to Respondent's service station where he issued a stop-sale order on the substandard gasoline. The inspector offered the station manager the option of losing the 1,500 gallons of remaining fuel through confiscation or the posting of a $1,000 cash bond. The $1,000 figure was based on station records which indicated that over $1,000 of the substandard fuel had been sold. Respondent's station manager elected to post the $1,000 cash bond and retain the substandard fuel, which was subsequently pumped into another tank and sold as leaded regular gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $1,000 bond posted in lieu of confiscation of substandard gasoline. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of October, 1980. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 M. H. McNeilly, President Saveway Oil, Inc. 2605 N. 50th Street Tampa, Florida 33619 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner William Lineberger, doing business as Jet Oil Company, has, since 1950, continuously used the brand name "Jet" for identifying gasoline sold by him in the State of Florida. At one time, petitioner owned or operated some thirteen stations in various locations in Florida. Since 1980, he has operated only three stations, all located in Pinellas County-- two in St. Petersburg and one in Pinellas Park. Pursuant to Chapter 525, Florida Statutes, the respondent Florida Department of Agriculture and Consumer Services first issued petitioner a liquid fuel brand name registration for the name "JET" in 1973. Pursuant to Chapter 495, Florida Statutes, the Florida Secretary of State issued petitioner mark registration number 922,820 on August 11, 1980, for the mark "JET" as a trademark and a service mark to be used in connection with gasoline and oil product convenience store items. Kayo Oil Company (Kayo) is a Delaware corporation and a wholly-owned subsidiary of Conoco, Inc. Kayo operates a chain of retail gasoline and convenience stores in 22 states. It has approximately 465 locations concentrated mainly in the southeast portion of the country, with 38 locations in Florida, including one in Pinellas Park. Kayo currently has plans for further expansion in Florida. It's fixed asset base in Florida is approximately $10 million. The typical Kayo retail gasoline outlet in Florida has four multiple product dispensers, sells 500 to 600 different convenience items inside an 800 to 1600 square foot building, markets fast food products and employs a color scheme of black on yellow on its signage and building facade. Conoco, Inc. first began using the "JET" trade name in Europe in the 1960's when it acquired a large chain of European retail gasoline outlets selling under that brand name. It currently operates about 2,000 units under the brand name "JET" in Europe. In the United States, Kayo has used various trade names in the operation of its outlets, including "Kayo" and "JET". In the early 1980's, Kayo made the decision to standardize the name it traded under throughout the United States, and selected the name "JET". In most instances, it accomplished the conversion of its stations from "Kayo" to "JET", with the black on yellow color scheme, during the period from the early 1980's through 1984. The intervenor initially sought to obtain from the Florida Department of Agriculture and Consumer Services the liquid fuel brand name "JET". That request was denied for the reason that "JET" had been previously registered to the petitioner. Thereafter, the Department issued to the intervenor the liquid fuel brand name registration, "JET +" on April 27, 1981. Kayo is required to display the "JET +" liquid fuel brand name on its dispensers or pumps. 1/ With the exception of two of its Florida locations, Kayo uses the word "JET" on its street and building signage. At its Pinellas Park and Clearwater stations, it has retained the name "Kayo". Being an independent brand marketer, Kayo attempts to dedicate the majority of its signage to display the price of gasoline, as opposed to the gasoline brand name. It is Kayo's marketing philosophy that the consumer is more influenced by low prices and location than by the fuel brand name. In 1984, the physical appearance of petitioner's three stations did not resemble the physical appearance of the typical Kayo station in Florida. Subsequent to 1984, petitioner did some remodeling work at its Pinellas Park station which included yellow and black signage and the name "JET" in black block letters on a yellow background, resembling Kayo's style of lettering on both its pump decals and its signage in areas outside Pinellas County. The yellow pages of the St. Petersburg telephone directory lists both Kayo's Pinellas Park station and petitioner's Pinellas Park station under the heading of Jet Oil Company. In February or March of 1987, a local cigarette supplier attempted to deliver and present an invoice for cigarettes ordered by Kayo to one of petitioner's facilities. This occurred again with the same supplier in March of 1987. In January of 1987, a Motor Fuel Marketing Complaint against the "Jet" business at 7091 Park Boulevard was filed with the Division of Consumer Services, Department of Agriculture and Consumer Services. Although this is the address of the Kayo station in Pinellas Park, the Consumer Services Consultant, Division of Consumer Services, forwarded the complaint to "Jet Oil Company" at 7879 - 49th Street North, the petitioner's station, for a response. Petitioner presented evidence that other instances of confusion between its stations and Kayo stations had occurred with respect to bills, bank inquiries, and a newspaper article. Also, on one occasion, petitioner was ordered by the Pinellas Park police to close its stations because a bomb threat had been made against Jet Oil. Petitioner did not produce any evidence that the source of any of the incidents related was attributable to the liquid fuel brand names utilized by it or the intervenor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's request for a hearing challenging the issuance of the "JET +" registration to the intervenor be DISMISSED. DONE and ORDERED this 16th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of July, 1987.
Findings Of Fact On October 6, 1987, a petroleum inspector from the Department of Agriculture and Consumer Services conducted a routine inspection of the gas pumps at Balm Grocery at Balm, Florida. When a sample was taken from the Chevron unleaded, the inspector immediately noticed an unusual color for unleaded gasoline. A subsequent analysis of this sample showed the sample contained 3.3 grams of lead per gallon. Upon receipt of the lab report, the inspector placed a stop sale order on the pump and locked the pump. Shortly thereafter, the owner of Balm Grocery posted a bond of $1000 to get the stop sale lifted and commenced selling gas from this tank as leaded gasoline. Prior to the stop sale posted on this pump, more than 1000 gallons of polluted gasoline had been sold by Respondent as unleaded plus gasoline.
The Issue Whether the Department properly issued a warning letter for selling gasoline that failed to meet state standards regarding end point temperature contrary to Section 525.037, Florida Statutes.
Findings Of Fact Respondent is the state agency authorized to regulate the petroleum products (fuel) offered for sale in Florida for illuminating, heating, cooking, or power purposes. It does so by randomly sampling fuels offered for sale by vendors throughout the state to determine if the fuel meets standards set by the state pursuant to law. Petitioner operates a marina in central Florida where it offers gasoline for sale to its customers. Respondent's inspectors conducted a random sampling of Petitioner's gasoline. Subsequent testing revealed that the end point temperature of the gasoline was not in conformity with the standards for premium gasoline, the only grade sold by Petitioner. On this basis Respondent issued Petitioner a warning letter. It is undisputed that the gasoline sample failed to meet standards. The end point temperature of gasoline is not apparent from its color, smell, or appearance and can only be determined by testing in a laboratory equipped for that purpose. Petitioner has approximately 1,000 gallons of storage for gasoline and reorders when they have approximately 500 gallons on hand. The wholesaler will not hold Petitioner harmless for product that it sells. In order to assure the quality of the gasoline it sells, Petitioner would have to test each delivery. The cost to test a sample is approximately $100. This would add approximately 20 cents to the cost of each gallon sold on a 500-gallon order, and Petitioner asserts that it now loses 10 to 15 cents per gallon on the fuel it sells as a convenience to boaters at its marina. Respondent does free quality testing of gasoline for vendors as a service based upon the availability of its facilities and time. It takes at least 24 hours to test the fuel. These are unofficial, miscellaneous samples, and the results are reported to the person who provided the sample without follow up. The end point temperature of gasoline is typically altered by the addition of another type of petroleum product to the fuel being sold. This can occur at any point during the chain of delivery from the manufacturer to the ultimate vendor. While the standards of the depots have improved, contamination can and does occur there. Similarly, petroleum transporters have improved their standards, but contamination does occur by inadvertently mixing products when filling tank trucks. Lastly, contamination also occurs at the vendors where there are cases of unscrupulous vendors mixing waste oil with product to get rid of the waste oil. There is no evidence of the cause of the contamination in this case. The Department talked with the wholesaler of the gasoline that provided the gasoline to Petitioner, but that wholesaler was reticent to provide documentation for the fuel and to discuss the matter with representatives of the Department. The operation of engines with fuels that have the wrong end point can result in serious damage to a vehicular or marine engine. If Respondent finds Petitioner selling substandard fuel again, Petitioner will be liable to a fine up to $5,000. After three years, warning letters are expunged if there are no other violations, and Petitioner would receive a warning letter for another violation after three years.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department should enter its final order confirming the issuance of its warning letter. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2004. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Suite 520 Tallahassee, Florida 32399-0800 Joseph T. Lewis Mount Dora Marina Company, Inc. 148 Charles Avenue Mount Dora, Florida 32757 Eric R. Hamilton, Chief Bureau of Petroleum Inspection Division of Standards Department of Agriculture and Consumer Services 3125 Conner Boulevard, Building 1 Tallahassee, Florida 32399-1650
Findings Of Fact The Petitioner is licensed as a dealer of special fuel pursuant to Florida Statutes 206 and has been assigned license Number 1627. The pertinent sections of Florida Statutes which are applicable to this case are ss206.86(1), (6), (8), 206.87, 206.89, 206.93, 206.94 and Ch. 212. The pertinent rules of the Department of Revenue applicable to special fuels sales involved herein is 12A-2.03. The deposition of Albert Colozoff and all answers to interrogatories and responses to requests for admissions are admissible as evidence and are to be made a part of the record in this cause. The Petitioner sold special fuels to Zamora Truck and Car Services, Roberts Equipment Company and Florida Petroleum, Inc. Petitioner was assessed by the Respondent for tax on 1,979,201 gallons of special fuel sold by it and paid tax and interest as set forth in the letter attached hereto as Exhibit A. That no penalty paid on any of the tax paid pursuant to that letter. That Petitioner did not remit taxes that were due during the month the sales of special fuel were reported on any of the sale to Zamora, Roberts or Florida Petroleum or the remaining 1,417,263 gallons sold. Zamora and Roberts represented to Belcher that they were purchasing all special fuel from Belcher for exempt agricultural use. Due to past dealings and delivery of the special fuel to a farm, Belcher believed and relied upon the facts represented to it by Zamora and Roberts. However, Belcher did not obtain written documentation of this agricultural use from Zamora or Roberts and did not furnish the Department with any such written documentation. Belcher did not obtain resale certificates or exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. Nor did the report forms filed by Belcher contain resale certificates, exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. An employee of the Department advised Belcher that Zamora and Roberts were under investigation for fraudulent failure to report taxes. Belcher paid sales tax on sales of special fuel in the amount of $18,589.53 on the sale of 538,030 gallons of special fuel. Zamora is not a licensed dealer of special fuels. Florida Petroleum is not a licensed dealer of special fuel. Roberts is not a licensed dealer of special fuel. Belcher did not fraudulently file incorrect monthly special fuels reports. The Department of Revenue audited Belcher and computed tax, penalty and interest due as set forth in the documents attached hereto as Exhibit B. The Department of Revenue advised Belcher of its duties regarding reporting requirements in the letters from L. N. Thomas attached as Exhibit C.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent's assessment be upheld with respect to Petitioner's tax deficiency, penalty and interest as set forth in the assessments with adjustments to be made for payments paid by Petitioner under the "sales tax" theory. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James R. McCachren, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William D. Townsend, Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32301
Findings Of Fact On June 2, 1983, Petitioner Department of Agriculture and Consumer Services' Inspector James Gillespie conducted an inspection of Respondent Gas Kwick, Inc.'s service station located at 8401 North Armenia Avenue, Tampa, Florida. He took samples of all petroleum products and observed that the Super Unleaded Ethanol contained suspended matter. He thereupon took the sample for analysis to the Department's portable laboratory for analysis on the same date. The field analysis disclosed that the product contained more than 14.2 percent of ethanol (ethylene alcohol) which exceeded the maximum allowable amount of 10 percent. Further, the 50 percent evaporated temperature of the product was 164 degrees which was less than the minimum allowable 170 degrees. The product sample was also sent to Petitioner's main laboratory for confirmation of the findings, and it was there determined that the super unleaded sample contained 25.2 percent of ethanol. Excessive ethanol in gas9line can be corrosive and cause damage to plastic parts of the engine. It can also cause phase separation of the contents in the gas tank producing layers which can get into the carburetor and cause the vehicle to stop. Excessive ethanol also diminishes driveability of the automobile and can damage fuel pumps. (Testimony of Gillespie, Fisher, Petitioner's Exhibit 1) Inspector Gillespie issued stop sale notices to Respondent on June 2 and June 3, 1983, which notified Respondent to immediately stop the sale of the super unleaded product and hold the same subject to further instructions. In order to obtain release of the product, Respondent elected to post a bond in the amount of $614.25 which represented the retail price for 394 gallons of the product that had been sold. One of the stop sale notices had been released by the installation of a new filter by Respondent to eliminate suspended matter. The release notice by which Respondent elected to post a cash bond in lieu of confiscation of the product provided that the gasoline in question should be removed from the tank and replaced by a new product. (Testimony of Gillespie, Petitioner's Exhibit 1) Respondent's representative testified that the firm had tried to be careful in the use of ethanol enriched gasoline and had immediately taken corrective action with respect to the super unleaded product in question by replacement. He pointed out that the amount of gasoline found to be defective represented only about 3 percent of the total amount located at the firm's 20 service stations and that this was a first offense which was unintentional. (Testimony of Perrone)
Recommendation That the bond posted by Respondent in the amount of $614.25 be retained by Petitioner as an assessment under Section 525.06, Florida Statutes. DONE and ENTERED this 8th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983. COPIES FURNISHED: Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Tony Perrone, Comptroller Gas Kwick, Inc. Post Office Box 5751 Tampa, Florida 33675 Honorable Doyle C. Conner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
