The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue Whether the assessment of $767.27 as a bond was proper.
Findings Of Fact On May 21, 1986, the samples of fuel were taken at Hicks' Gulf Station, U.S. 19 South and Hicks' Gulf Station, U.S. 19 North in Perry, Florida. Using ASTM D86, it was determined that the samples of Good Gulf regular leaded gasoline taken at the Hicks' Service Stations contained contaminants that caused their evaporative end points to exceed 437/0F, the acceptable maximum set by Florida Statute and Rule 5F-2.01, Florida Administrative Code. These results were confirmed at the main laboratory in Tallahassee on June 5, 1986. Stop sales notices were issued on May 21, 1986. On May 23, 1986, a bond of $767.27 was posted by Morris Petroleum, Inc., in lieu of the Department confiscating 1,754 gallons of the contaminated fuel. Delivery and sales records allowed the Department to determine that 791 gallons of contaminated fuel had been sold to the public at the two stations at 97 per gallon since the last delivery from the wholesaler. Nancy Fischer, chemist for the Department of Agriculture and Consumer Services, testified regarding the Department policy. The Department tests motor fuels at terminals and wholesalers. However, the Department does not levy fines against wholesalers and terminals. In cases where fuels being held by terminals and wholesalers are found to be contaminated, the Department issues a stop sale order. When establishing the amount of bond to be paid by a retailer for contaminated fuel, the Department uniformly bases the bond on the retail value of the substandard product sold to retail customers at the retail price. The Respondent, Morris Petroleum, Inc., is a wholesale distributor of motor fuels. Morris Petroleum sold the motor fuels in question in this case for 81.5 per gallon to Hicks' Service Stations in Perry, Florida. It is common practice for wholesalers to pay the bonds levied against retailers in order to maintain the business of the retailers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department be affirmed and the bond of $767.27 be retained. DONE and ORDERED this 1st day of December 1986 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of December 1986. COPIES FURNISHED: William C. Harris, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32301 John M. Morris, Jr. Morris Petroleum, Inc. Post Office Box 495 Monticello, Florida 32344 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, MAYO BUILDING TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
Findings Of Fact Petitioner deals in fuel oil. It buys fuel oil from several wholesalers and sells it at retail, mainly to people who use fuel oil for heating purposes. Petitioner operates a low pressure pump on its premises for pumping fuel oil from a ten thousand gallon tank into five gallon cans and similar containers brought to the pump by its customers. At peak demand, the ten thousand gallon tank supplying this pump had to be refilled twice a week. In general, however, during the cold season, the tank was refilled only every other week or less often still. No fuel oil was ever pumped from the low pressure pump into any motor vehicle. Petitioner also maintained two big dispersing pumps for filling its tank trucks with fuel oil and a gasoline pump for fueling the truck engines. The trucks were equipped with pumps for emptying their fuel oil tanks, which pumped at the rate of forty gallons per minute. Petitioner advertised home delivery of fuel oil in the newspaper, and dispatched its trucks in response to the resulting telephone calls. In addition to delivering fuel oil for home heating purposes, petitioner occasionally sold larger quantities to fellow fuel oil dealers and to other commercial concerns. In February, March and April of 1974, petitioner sold particularly large quantities of fuel oil to Tampa Electric Company. During the period covered by the audit, petitioner sold from 50,000 to 70,000 gallons to other fuel oil dealers. Petitioner did not get resale certificates from its commercial customers, but Mr. Hayes, until recently petitioner's proprietor, required dealers to show him their dealer's licenses and he copied the dealers' license numbers onto the invoices. In March of 1976, Mr. Donald E. Snyder, a tax examiner in respondent's employ, began auditing petitioner's books. At this time most of petitioner's records were in Orlando in the custody of the Federal Energy Administration. Subsequently, some, but not all, of these records were returned to petitioner. In an effort to reconstruct records which were unavailable, Mr. Snyder contacted petitioner's suppliers and examined their records of sales to petitioner. On January 2, 1977, Mr. Hayes and Mr. Snyder took an inventory of petitioner's fuel oil. Mr. Snyder used this information as well as what records petitioner was able to furnish him, and concluded that petitioner had sold, during the audit period, two thousand four hundred seventy-nine (2,479) gallons of fuel oil to persons or concerns who were users of fuel oil for non-exempt purposes. Written on the invoices evidencing these sales, however, was the phrase "non-road use" or words to that effect. The limited materials with which he worked gave Mr. Snyder no indication as to the disposition of an additional two hundred fifty- eight thousand three hundred forty (258,340) gallons of fuel oil. Although Mr. Snyder approximated petitioner's sales month by month, these figures were unreliable because of certain erroneous assumptions, notably the assumption that petitioner never used additional storage facilities.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent abandon its notice of proposed assessment, as revised. DONE and ENTERED this 10th day of January, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. James P. LaRussa, Esquire Flagship Bank Building, Suite 416 315 East Madison Street Tampa, Florida 33602 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
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.
Findings Of Fact On June 19, 1990, samples of leaded regular gasoline were taken from Chiefland Oil Company, a/k/a Grandma's Pantry ("Grandma's"), at two different locations in Chiefland, Florida. Analysis of these samples revealed that there was less than .01 percent lead additive in the product. In each instance, the Respondent accepted a $1,000.00 bond in lieu of confiscation of the product. Grandma's subsequently was cited for violation of the product labeling laws and noticed that the Respondent intended to assess a fine on this case for the lesser of the amount of the product sold at retail or $1,000.00. The notice of violation advised Grandma's of its right to a formal hearing on the allegations. Grandma's made a timely request for hearing and these cases resulted. At hearing, the Respondent admitted the allegations but stated in explanation that the offense arose during the changeover by manufacturers from leaded to unleaded regular gasoline. The dealer had attempted to contact the Respondent's local representative without success in an effort to determine how to handle this problem, which was common to all dealers at this time. In locations where it could, the dealer pumped the leaded gasoline out of the storage tanks and consolidated it in one tank at one station where it sold the product as leaded until the tank was almost empty and then added unleaded to the leaded gasoline until it met unleaded standards and then changed the labeling. The dealer was attempting to dilute leaded with unleaded gasoline but had not yet replaced the leaded labels with unleaded labels when the sample was taken. The dealer could not pump these tanks dry because of the nature of their construction. The gasoline tested met the octane requirements but did not contain the lead additives. The lead additives lubricate the valves of older cars designed to burn leaded fuels. Modern unleaded fuels do not provide such additives. The law prohibits the sale of leaded products as unleaded products imposing sizeable fines for this violation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent exercise discretion as requested by the dealer and return the two bonds in the amount of $1,000.00 each. DONE AND ENTERED this 5th day of December, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 5th day of December, 1990. COPIES FURNISHED: The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, FL 32399-0810 Mallory Horne, Esq. General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Charles E. Lineberger Grandma's Pantry of Florida, Inc. P.O. Box 8189 Lakeland, FL 33802 Clinton H. Coulter, Jr., Esq. Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact On June 3, 1982, William Cate, an inspector for Petitioner Department of Agriculture and Consumer Services, obtained a sample of the product identified as 500 Ethohol from a pump at the United 500 station owned by Respondent in Brooksville, Florida. The sample was shipped to Petitioner's laboratory in Tallahassee where it was analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, using standard methods, and found to be in violation of Petitioner's Rule 5F-2.01(c)2 in that the 50 percent evaporated temperature of the product was 1580F which did not comply with the rule's requirement that such temperature not be less than 1700F. On June 11, 1982, a stop sale notice was issued against Respondent directing it to immediately stop the sale of the product listed below pending further instructions from Petitioner. Inspector Cate sealed the pump in question, and Respondent elected to post a $1,000 cash bond in order that he could return the product for upgrading in lieu of confiscation and sale. The stop sale notice was directed to 2475 gallons of the product which had a value of over $1,000. "Ethohol" is a blend of regular leaded gasoline which contains a percentage of alcohol, and sometimes is known as "gasohol." (Testimony of Cate, Whitton, Petitioner's Composite Exhibit 1) On June 14, 1982, Curtis E. Hardee, an inspector for Petitioner, took samples of 500 Ethohol from a pump located at Respondent's United 500 station at 6815 Sheldon Road, Tampa, Florida. The samples were sealed and shipped to Petitioner's laboratory in Tallahassee where they were analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, and found to be in violation of Rule 5F-2.01(-1)(c)2, Florida Administrative Code, in that the 50 percent evaporated temperature of the product was l520F, and therefore violated the rule's requirement that such temperature not be less than l700F. A stop sale notice was issued against sale of the product on June 17, 1982, and Respondent elected to post a cash bond in lieu of confiscation or sale of 3,449 gallons of the product. The amount of the bond was $625 which represented 481 gallons of the product that had been sold since the last time a load of gas had been delivered to the station. Under the provisions of the release notice, Respondent agreed to pump the remaining product out of its storage tank and return it to their bulk plant for upgrading. (Testimony of Hardee, Whitton, Petitioner's Composite Exhibit 2) Although Respondent's representative did not dispute the foregoing facts, he maintained that forfeiture of the entire amount of the cash bonds would be excessive. (Testimony of McRae)
Recommendation It is recommended that a Final Order be issued assessing Respondent the sum of $625 to be effected by forfeiture of the bond posted in the same amount pursuant to stop sale notice issued on June 17, 1982 at Tampa, Florida, and that the $1,000 bond posted by Respondent to gain release of the gasoline product which was the subject of the stop sale notice of June 11, 1902 at Brooksville, Florida also be forfeited. DONE and ENTERED this 24th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 T.D. McRae, President United Petroleum, Inc. 680 South May Avenue Brooksville, Florida 33512 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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 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.
