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 Prior to July 10, 1984, Son-Mar Propane, Inc. (Son-Mar) was licensed by the Department as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. Virgil Berdeaux was the president of Son-Mar and he and his wife were the sole stockholders. Virgil Berdeaux passed the competency exam which qualified Son-Mar for licensure. Sonny Wade Berdeaux Virgil Berdeaux's son, was the manager of Son-Mar. Son- Mar's business address and place of operation was 16034 U.S. Highway 19 North in Hudson, Florida. Virgil Berdeaux and his wife owned the property located at that address and leased it to Son-Mar. A propane pumping station and a building was located on the property at 16034 U.S. Highway 19. The building housed a pawn shop and supply store for mobile home and RV equipment. Son-Mar operated the pumping station and the stores. It also installed tanks and delivered gas to customers. 1/ On July 10, 1984, a final order was entered by the Department which ordered "[t]hat any and all of [Son-Mar's] licenses issued by the State Fire Marshal Division of Liquefied Petroleum Gas and eligibility to hold said licenses are hereby revoked." The revocation of Son-Mar's licenses was due to its violation of certain safety standards and rules. Specifically, it was found that an employee of Son-Mar, Mr. John Delham, filled a cylinder that had not been recertified, that he lay it horizontally in the customer's van, and that he failed to secure the tank in the van. While the van was still parked at Son-Mar an explosion occurred which destroyed the van and killed its occupant. On July 19, 1984, nine days after Son-Mar's licenses were revoked, Virgil Berdeaux submitted an application for licensure as a dealer in appliances and equipment for use of liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida, and listing the business name as Son- Mar Pawn Shop. On August 3, 1984, twenty-four days after the revocation of Son- Mar's licenses, Sonny Wade Berdeaux submitted an application for licensure as a dealer in liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida. The Department issues several different types of liquefied petroleum gas licenses. A Type 06, Class 02 license, known as a 602 license, is issued to a dealer in appliances and equipment for use of liquefied petroleum gas. The 602 license allows the holder to sell propane appliances and equipment, such as stoves, heaters, and gas grills but it does not permit the holder to install appliances or sell propane gas. A competency examination is not required for this type of license, and there is no inspection of the place of business prior to issuance of the license. Virgil Berdeaux applied for a 602 license. He completed the application and submitted the required fee. The application listed W. C. Johnson, Virgil Berdeaux's son-in-law, as the manager of the business. Bill Johnson had run the pawn shop for Son-Mar. Sonny Wade Berdeaux applied for a Type 06, Class 04 license known as 604 license, which is issued to a dealer in liquefied petroleum gas. This type of license permits the holder to pump liquefied petroleum gas for sale to the public. An applicant for this type of license must pass a competency test and file a surety bond or certificate of insurance. Further, if the licensee has a dispensing station, an inspection of the business location must be performed to ensure that it is in compliance with all safety regulations. Sonny Wade Berdeaux passed the competency examination, filed a certificate of insurance, and submitted the proper fee. Son-Mar held a Type 06, Class 01 license (a 601 license) as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. A 601 license permits the holder to pump liquefied petroleum gas for sale to the public, to sell appliances and equipment for use of liquefied petroleum gas, and to install such appliances and equipment. In essence, it is a combination of a 602 license, a 604 license, and a license to install equipment. Both Sonny Wade Berdeaux and Virgil Berdeaux received letters dated October 8, 1984, which informed them that their applications for licensure had been denied. Both letters referred to the revocation of Son-Mar's licenses and pointed out that the applicants would be operating on the same premises and employing the same staff as Son-Mar. Both letters concluded as follows: Thus, it would appear that your application is seeking licensure for essentially the same entity that has only recently had its liquefied petroleum gas licenses revoked. Therefore, in the interest of public safety, this Bureau cannot permit an Order of Revocation to be obviated by a mere procedural reapplication in your name. The applications for licensure both list the business address as 16034 U.S. Highway 19 in Hudson, Florida. At the time of application Virgil Berdeaux owned that property and Sonny Wade Berdeaux had leased the pumping station. However, on July 1, 1985, the property at 16034 U.S. Highway 19 was sold. The pumping station was moved out along with the inventory that remained in the pawn shop. Neither Virgil Berdeaux or Sonny Wader Berdeaux retained any interest in the property, and at this time neither could operate a business at that location. Although there was testimony concerning the manner in which the business would have been operated and controlled had licensure been granted at the time of applications there was no testimony indicating where or how the business would now be operated. There was no attempt to amend either application to reflect a current business address, and the certificate of insurance entered into evidence lists 16034 U.S. Highway 19, Hudson, Florida, as the location covered. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that a Final Order be entered denying petitioners' applications for licensure. DONE and ENTERED this 21st day of May, 1986, in Tallahassee, Florida. DIANE A. GRUBBS 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 21st day of May, 1986.
The Issue At issue in this proceeding is whether Respondent, a tool company, should be required to repay funds that the Department of Labor and Employment Security, Division of Workforce and Employment Opportunity (the "Department") alleges were erroneously paid under a North American Free Trade Agreement- Transitional Adjustment Assistance ("NAFTA" or "NAFTA-TAA") job training program for equipment that Respondent provided to two NAFTA-TAA trainees.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: The Department administers NAFTA-TAA, a job training program established under the provisions of the North American Free Trade Agreement and funded by the federal government. The program provides vocational training for employees adversely affected by trade agreements made by the United States with Canada and Latin America. Once a business is certified as "NAFTA eligible" based upon diminished employment opportunities attributable to international trade, the affected employees are referred to the Department for evaluation by a local NAFTA coordinator. In consultation with the Department's local NAFTA coordinator, a participant chooses from training programs taught at various public and private educational institutions and vocational training facilities. The student is provided a training allowance that includes the cost of tuition, books and fees. The Department arranges to pay training costs directly, and to pay vendors for the required books, tools and supplies. In this case, the Department alleges that two students participating in the NAFTA program purchased tools from Respondent that were not required for their training as automotive technicians. The Department alleges that, by providing tools not required for training and obtaining reimbursement therefor from the Department, Respondent acted in violation of the "rules and practices" of the NAFTA program. The Department offered no evidence that it has promulgated rules related to its administration of the NAFTA- TAA program, and offered no evidence of a Florida statute or of federal statutes, rules or policies governing the Department's administration of the program. The Department produced no documentation to indicate that it has developed official written policies regarding its administration of the NAFTA-TAA program. Henry Broomfield, the Department's statewide TAA coordinator, testified as to the actual operation of the program. Mr. Broomfield stated that the program pays for tuition, books and supplies for up to 104 weeks. He testified that the participating schools are required to present a list of the books, tools and supplies that the student will need during training, and that reimbursement is limited to the items on that list. Mr. Broomfield testified that the list is limited to items required for training, and does not include tools that students may need in the field after they complete their training. The student and the Department's local TAA coordinator are provided with copies of the list. Charles Thackrah, an instructor at P-Tech, testified as to the development of the approved book, tool and supply list at his institution. The list was developed over time by Mr. Thackrah and his fellow instructors, and includes the minimum basic hand tools required to complete the objectives of the program. The list was not developed specifically for the NAFTA program, but is the minimum tool list for all students enrolled in the automotive service technology course. Mr. Thackrah stated that P-Tech does not require the purchase of tools outside the list. Mr. Broomfield testified that when a student needs particular items on the list, the student must contact the local TAA coordinator, who authorizes the purchase from a third party vendor. When the student receives the tools, the third party vendor sends the bill to the local TAA coordinator, who then forwards the invoice to the state office for final approval. Mr. Broomfield testified that a request for an unlisted tool must be made in writing by the student's instructor. The student brings the written request to the local TAA coordinator, who forwards it to Mr. Broomfield's office for final approval. The instructor must verify that the requested tool is necessary for training. The evidence established that, aside from one incident in which a student obtained approval for a special pair of welding shoes, neither of the students in question followed the approval procedure for unlisted tools set forth by Mr. Broomfield. On February 13, 1998, Howard Spangler of Largo was enrolled in the NAFTA-TAA program by the Department's local coordinator for the Clearwater area, Margaret Brewer. Mr. Spangler was enrolled for training as an automotive technician. Also on that date, Mr. Spangler received a letter approving his request for training. The letter stated that his training would be provided by P-Tech "at a cost not to exceed $4,400.00." The letter stated that this amount "includes tuition, books, supplies and fees." Also on February 13, 1998, Ms. Brewer provided Mr. Spangler with an "Applicant Acknowledgement Form" stating that $2,400 would be allotted for "books, equipment, supplies and/or tools. This is the total amount allowed for the entire length of your training, be it a one-week, or a two-year course." The form stated that "books, special equipment, tools and uniforms will be limited to those items required by the school for every student." The form also stated that when the amount allotted for training materials has been exhausted, any additional costs must be borne by the student. Mr. Spangler signed the form, acknowledging that its contents had been "fully discussed" with him. The evidence established that Mr. Spangler obtained from Respondent tools that were not on the approved list at a total price of $4,336.92, and that the Department paid Respondent for those purchases. Mr. Spangler testified that he was aware of the limits set forth in the letter and acknowledgement form, and of the approved list of tools, but also testified that Ms. Brewer told him that he could purchase items not on the list with his instructor's approval. He stated that Ms. Brewer never told him that her approval was required for purchases of tools not on the list. Mr. Spangler testified that he approached Ms. Brewer about a pair of special shoes for his welding course. Although the welding shoes were on the approved list, Mr. Spangler wanted Ms. Brewer's approval for his purchase because he paid more for them than the price shown on the list. Mr. Spangler testified that during this conversation he also asked Ms. Brewer about purchasing tools not on the list, and that Ms. Brewer told him that he needed only his instructor's signature to obtain tools he would need in the field. Mr. Spangler understood the $4,400 limit on tuition, books, supplies and fees. Notwithstanding the limit, he purchased over $4,000 in tools alone from Respondent. He stated that he relied on Ms. Brewer's advice in making these purchases. Mr. Spangler testified that it would be difficult to hold a job in the field with only the tools included on the approved list, and that Ms. Brewer clearly imparted the understanding to him that he would be allowed to purchase whatever he needed for the field, if his instructor approved. Ms. Brewer testified that she always told the students that the state would not pay for tools outside of those on the list. She told the student that if he needed something special that the instructor believed was necessary to complete the course, then the student would have to bring her a letter from the instructor. She would then send the letter to Mr. Broomfield in Tallahassee for approval. Ms. Brewer recalled Mr. Spangler approaching her about approval for the welding shoes, but did not recall telling him that he could get approval for items outside the approved list. She testified that she would not have approved purchases of items not on the list without writing a letter of explanation to Mr. Broomfield and obtaining his final approval. The facts that Mr. Spangler approached Ms. Brewer for approval of the welding shoes, and that Ms. Brewer submitted this request to Tallahassee for final approval, tend to support Ms. Brewer's testimony as to what transpired between her and Mr. Spangler regarding the necessity of Department approval for items not on the approved list. Ms. Brewer testified that, as far as she knew, she had no independent authority to approve purchases outside the list. She stated that it was her understanding that the NAFTA program dealt strictly with the tools needed to complete the coursework, not with tools that students might need in the field after completing the courses. Ms. Brewer had no direct contact with the vendors, but relied on the students to convey the information regarding the NAFTA program to the vendors and to their instructors. Mr. Thackrah was Mr. Spangler's instructor, and testified that he did not tell Mr. Spangler that the NAFTA program would pay for tools that he would need in the field after completing his coursework. Mr. Thackrah stated that he did not have the responsibility to track the various programs that provided funding to his students, and that he did not know what the NAFTA program would provide. Mr. Thackrah testified that he was provided no written guidelines as what the NAFTA program would or would not pay for. He stated that anything he knew about the NAFTA program was conveyed to him by his students, who told him that NAFTA would cover anything they would need in the field. Mr. Thackrah recalled helping the students put together lists of tools they would need in the field. He assumed that NAFTA would pay for these tools, based on his students' explanation of the program. Mr. Thackrah testified that he might have passed along this understanding of the NAFTA program information to Keith Williams, Respondent's employee in charge of the P-Tech account. Mr. Thackrah did not believe he told Mr. Williams that the students were allowed to buy anything they wanted, but that Mr. Williams may have heard that from the students. Mr. Williams testified that he had an informal meeting with instructors at P-Tech, and that they told him that the NAFTA students were entitled to any tools that they would need in the field to perform an automotive technician's job. The instructors gave him no dollar limit on those purchases, and told him that the students needed only the instructors' approval to purchase the tools. Mr. Williams testified that these students must have "thought it was Christmas." Mr. Williams recalled that Mr. Thackrah was "probably" the person who gave him the information about NAFTA reimbursements. Mr. Williams testified that he took the P- Tech instructors at their word, because he had been dealing with them over the course of five years and never had a problem with reimbursements. On September 1, 1998, Robert Dennison of Pinellas Park was enrolled in the NAFTA-TAA program by the Department's local coordinator for the St. Petersburg area, Sylvia Wells- Moore. Mr. Dennison was enrolled for training as an automotive technician. Also on that date, Mr. Dennison received a letter approving his request for training. The letter stated that his training would be provided by P-Tech "at a cost not to exceed $3,950." The letter stated that this amount "includes tuition, books, supplies and fees." Also on September 1, 1998, Ms. Wells-Moore provided Mr. Dennison with an "Applicant Acknowledgement Form" stating that $450 would be allotted for "books, equipment, supplies and/or tools. This is the total amount allowed for the entire length of your training, be it a one-week, or a two year course." The form stated that "books, special equipment, tools and uniforms will be limited to those items required by the school for every student." The form also stated that when the amount allotted for training materials has been exhausted, any additional costs must be borne by the student. Mr. Dennison signed the form, acknowledging that its contents had been "fully discussed" with him. The evidence established that Mr. Dennison obtained from Respondent tools that were not on the approved list at a total price of $8,046.79, and that the Department paid Respondent for those purchases. Mr. Dennison testified that he looked at the list of approved tools and concluded that no one could do a mechanic's job with those tools. He asked Ms. Wells-Moore if other tools would be provided, and she said they would. Mr. Dennison did not recall whether Ms. Wells-Moore told him that he would need her approval for purchases outside the list. He testified that, as he understood the NAFTA program, he believed all the tools he purchased were authorized. Ms. Wells-Moore testified that her practice was to tell students that all their tools and supplies had to come from the approved list. She stated that students were required to come to the Department and obtain a voucher before making any purchases. The student would then take the voucher to the merchant and obtain the approved tools. The merchant is then responsible for sending the invoice to the Department of Labor for reimbursement. Documents entered into evidence at the hearing indicate that Ms. Wells-Moore provided written instructions to Jason Hoch, a salesman working for Respondent on the P-Tech account. These instructions were consistent with her description of the vouchering process. She sent these instructions by facsimile transmission on October 2, 1998, prior to the purchase of any of the unlisted tools by either Mr. Spangler or Mr. Dennison. Ms. Wells-Moore testified that she never told Mr. Dennison that he could purchase items that he would need in the field after completing his coursework. She stated that she was not authorized to approve such purchases. Ms. Wells-Moore testified that if a student approached her about a tool not on the list, her first step would be to contact the instructor to ask whether the student really needed the tool to complete the coursework. She recalled such a conversation with one of Mr. Dennison's instructors, and the instructor telling her that the unlisted tools in question were not required for the course. Richard Knight was Mr. Dennison's instructor at P- Tech. Mr. Knight provided Mr. Dennison with a copy of the approved list and told him that these were the minimum tools. Mr. Knight testified that he had no direct knowledge of the NAFTA program and was unaware of any authority he had to approve the purchase of tools not on the list. He never told Mr. Dennison that NAFTA would provide tools for use in the field. Mr. Knight stated that he never "approved" any tool purchases, but he did recall signing a list of tools that Mr. Dennison brought to him. He understood that his signature was to verify that these were tools that the student would find useful in the field. Mr. Knight never received any written guidelines from the Department as to allowable purchases under the NAFTA program. He recalled a former student in the NAFTA program who said that NAFTA would pay the students for anything they needed in the field. Mr. Knight testified that both Mr. Dennison and Mr. Spangler appeared to assume that NAFTA would pay for tools they would need in the field. Mr. Knight also conceded that he may have relayed the students' understanding to the Respondent's salespeople. Mr. Broomfield testified that he became aware of problems when a representative of Respondent called to complain that some of its invoices were not being paid. Mr. Broomfield could find no record of the invoices at issue. He investigated and discovered that Respondent was bypassing the local TAA coordinators and sending its invoices directly to Tallahassee, some to the wrong division within the Department. Mr. Broomfield testified that this explained why so many unauthorized purchases were reimbursed by the Department. When an invoice arrives at the Tallahassee office, it is assumed that the local TAA coordinator has investigated and approved the purchase. Under ordinary circumstances, the Tallahassee office does not conduct an item-by-item review; it merely processes the invoices and writes the checks. In summary, the evidence established that Mr. Spangler and Mr. Dennison purchased tools not on the approved P-Tech list valued at a total of $12,383.71. The evidence established that these students were provided written notice of the firm limits on the allotted costs for their training. The evidence established that Ms. Wells-Moore gave Respondent written notice of the proper procedure for processing its invoices, prior to any of the unauthorized purchases. The evidence established that Respondent bypassed this procedure, and was reimbursed for purchases that had not been approved at the local level. The evidence established that the Department was remiss in its administration of the NAFTA program. It has promulgated no written rules or policies setting forth the reimbursement limits of the NAFTA program. It provided no written guidelines to either the schools or the vendors regarding allowable purchases. Ms. Brewer frankly stated that she relied on the students to inform their schools and vendors as to the purchasing limits. Whether Messrs. Spangler and Dennison honestly believed their purchases were allowed, or whether they were manipulating the system, they might not have obtained the unauthorized items had the Department directly informed P-Tech of its reimbursement practices. The evidence supports the finding that Respondent at the least was aware that the NAFTA program appeared to be unusually liberal, and that Respondent should have made further inquiry. Mr. Williams likened the program to "Christmas" for its participants. He testified that the instructors explained that the students were entitled to tools they would need in the field. However, the instructors credibly testified that, if they told Mr. Williams such a thing, they were merely relaying what the students told them. At best, Respondent was content to rely on the information provided by the students rather than contacting the Department to seek confirmation. The fact that Respondent bypassed the local TAA coordinators, and offered no explanation for this breach of the billing procedure, supports an inference that Respondent's failure to inquire was not entirely innocent. The evidence established that Respondent knew or should have known that the purchases in question were not covered by the NAFTA program, absent prior approval from the local TAA coordinators and the central office in Tallahassee. The Department's failure to establish a system of informing schools and vendors of the program's requirements was sufficiently obviated in this case by Ms. Wells-Moore's contacts with Respondent's representative. Ms. Wells-Moore directly placed Respondent on notice of the Department's reimbursement practices, prior to the purchases by Messrs. Spangler and Dennison. At the hearing, Respondent asserted a claim that the Department still owes Respondent $14,119.59 for tools provided to Messrs. Spangler and Dennison. Given the findings of fact above, it is unnecessary to address this claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department enter a final order providing that Respondent is indebted to the Department for NAFTA-TAA program overpayments in the amount of $12,383.71, and that Respondent shall repay the aforesaid amount within six months following entry of the final order. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Jacqueline Corbett, Credit Manager Nestor Sales Company, Inc. 7337 Bryan Dairy Road Largo, Florida 34647 Sonja P. Mathews, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
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 February 27, 1980, Respondent converted one of its service station fuel tanks from gasoline to diesel. The tank was cleaned by Garrison Petroleum Equipment Company at Pinellas Park. Respondent paid $67.08 for this service. That same day, Respondent received 5,176 gallons of No. 2 diesel fuel from Jack Russell Oil Company, Inc., of Clearwater, a Union 76 dealer. On March 18, 1980, a standards inspector employed by Petitioner took samples from the Respondent's gasoline and diesel pumps. These samples were delivered to Petitioner's portable laboratory in Clearwater where they were analyzed. The gasoline was found to be satisfactory, but the diesel sample showed fuel contamination. The tests were conducted in accordance with the methods and standards established by Rule 5F-2.01(4)(b), Florida Administrative Code. Specifically, the "flash point" of the diesel sample was 88 degrees F, but must be 125 degrees F or above to meet the established standard. Petitioner's inspector then returned to the Pronto Car Wash station where he issued a stop-sale order to Respondent. Subsequently, the inspector accepted Respondent's cash bond in lieu of fuel confiscation. This procedure, agreed to by both parties, allowed Respondent to pay $865.36 to the State of Florida and retain the contaminated fuel. Respondent originally paid $5,286.25 for 5,176 gallons of diesel fuel. He had sold 736 gallons of this amount at the time of the stop-sale order on March 18, 1980. Total sales of this diesel fuel amounted to $865.36, which was the amount of bond demanded by Petitioner. Respondent paid $200 to Patriot Oil, Inc., to remove the contaminated fuel, but received a $3,225 credit for this fuel. Respondent does not deny that the fuel was contaminated, but seeks to establish that he acted in good faith. Respondent had the tank cleaned prior to the diesel changeover and dealt with established tank cleaning and fuel wholesaling companies. In addition, he kept the tank locked at all times after delivery of the fuel. Respondent does not contest forfeiture of his bond, but seeks refunds of state and federal taxes paid on the unsold fuel. However, Respondent was correctly informed that refund of tax payments will require him to communicate with agencies which are not parties to this proceeding.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $865.36 bond posted in lieu of confiscation of contaminated diesel fuel. RECOMMENDED this 7th day of August, 1980, in Tallahassee, Florida. COPIES FURNISHED: Stephenson Anderson Pronto Car Wash 220 34th Street North St. Petersburg, Florida 33713 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-8584
The Issue The issue in this case is whether the Florida Renewable Energy Production Tax Credit (“Tax Credit”) application filed by Petitioner, Florida Power Development, LLC, A Florida Limited Liability Company (“Florida Power”), was eligible for consideration by Respondent, Department of Agriculture and Consumer Services, Office of Energy (“DACS” or the “Department” or “Office of Energy”).
Findings Of Fact Florida Power is a company which produces power by way of burning biomass materials, primarily wood chips, at its energy plant at 10311 Cement Plant Road, Brooksville, Florida. Most of the energy it produces is sold to Duke Energy. The plant had previously been a coal fired power plant, but Florida Power spent $196 million converting it into a renewable energy facility utilizing biomass fuel. JP Morgan is the parent company of Florida Power. The Office of Energy is the state agency responsible for overseeing the Tax Credit program authorized under section 220.193, Florida Statutes (2016).2/ The Department is empowered to review and approve (or disapprove) all Tax Credit applications which it receives. The Office of Energy is located at 600 South Calhoun Street, Suite 251, Tallahassee, Florida 32399-0001. Applications for a Tax Credit are available on the DACS website, as are the statutes and rules governing the Tax Credit program. The rules specify the date applications are due in each “production year” and set forth the process for filing the applications. Applications addressing the production year at issue in this proceeding of January 1, 2016, through June 30, 2016, were due at the Office of Energy no later than August 15, 2016. Florida Power’s application was not received by the Office of Energy until August 17, 2016, two days after the deadline. As a result, the Department deemed Florida Power’s application ineligible for consideration. Florida Power believes that circumstances surrounding the filing of its application for a Tax Credit excuse or make moot its failure to meet the deadline. Florida Power had filed applications for Tax Credits in prior production years. In 2015, its application was prepared by Tateswood, a company located in Houston, Texas. Tateswood provides management services to several power plants, including several owned by Florida Power. The application was submitted via overnight delivery, i.e., FedEx, from Houston, Texas, to the Office of Energy in Tallahassee, Florida. A senior official from Tateswood, Jeff Winkler, signed the application and had it overnighted to the Department. The application was received timely and approved by the Office of Energy.3/ Florida Power received a tax credit that year of approximately $1.49 million. Around July 28, 2016, Florida Power received the data it needed from Duke Energy to file the Tax Credit application for the 2016 production year (which was less than a full year as the Tax Credit program was expiring). Florida Power’s accountant, Lashauna Filo, also worked for Tateswood in Houston, Texas. She prepared the 2016 application for Mr. Winkler’s signature. Mr. Winkler was traveling, but he was expected to be in Brooksville prior to the application submission deadline. Ms. Filo emailed the application to the Brooksville plant on August 10, 2016, five days prior to the date it was due in Tallahassee. Mr. Winkler signed the application and gave it to Ms. Brown, plant administrator, who was given the task of submitting the application to the Office of Energy.4/ She noted verbiage on the face of the application form which says it can be submitted to the Department via “certified mail or hand delivery.” The due date of August 15 also appeared on the face of the application. Ms. Brown had not been involved with filing a Tax Credit application previously. After conferring with one of her supervisors, Dave Hermanson, she selected the first option--certified mail–-for submitting the application. She typed an envelope, filled out a Certified Receipt form, and put the application into a post office box at the Brooksville, Florida, post office. Ms. Brown did not consider literally hand-delivering the application to DACS because Tallahassee is roughly a four-hour drive from Brooksville, and it seemed there was enough time for the package to get to the Department. Ms. Brown did not understand that “hand delivery” allowed for delivery by overnight courier. Neither Florida Power nor Tateswood have attorneys on staff to provide guidance or assistance in matters such as these. Instead, Ms. Brown relied upon the advice given her by Mr. Hermanson. Unfortunately, the application did not sail smoothly through the USPS system. It was received by a Tampa USPS facility at 8:00 p.m., on August 10, was “coded” for Tallahassee, and departed that facility at 9:43 p.m., the same evening. It arrived at the Adams Street USPS facility in Tallahassee at 1:19 p.m., on August 11. However, the package had been improperly “coded” in the Tampa USPS facility to zip code 32301, rather than to zip code 32399. The 32399 zip code is used for state agencies in Tallahassee. This mis-code by the Tampa office caused the package to be erroneously sent from the Adams Street office to the downtown Tallahassee facility, rather than being processed for a “state agency” delivery. Thereafter, it went to another USPS site, the Lake Jackson facility, where it arrived on August 12. The package did not make it back to the Adams Street facility where it belonged until 5:36 a.m. on August 16-–one day after the submission deadline. The application was delivered to DACS on August 17, 2016, at 9:08 a.m., two days after the deadline. Clearly, Florida Power’s application for a Tax Credit was not timely received by the Office of Energy. However, Florida Power raises several facts which may relate to whether equitable tolling or equitable estoppel principles apply to this situation. Florida Power points out that verbiage on the face of the application itself does not specifically use the words “overnight express” as a means of submitting the application. Florida Power maintains, therefore, that it was misled into believing that physical hand-delivery or certified mail were its only options. Inasmuch as Florida Power had submitted their prior year’s application via FedEx, their claim lacks credence. Furthermore, the rule addressing application submission defines “hand delivery” as “any physical submission of an application to the Office [of Energy] from a representative of an applicant, courier, or a private delivery service.” Fla. Admin. Code R. 5O-2.003(3)(b)2. Florida Power was very familiar with the Tax Credit program, but could not say why it was not familiar with the rules governing that program. Unfortunately, certified mail, Florida Power’s delivery option for the application at issue, does not guarantee delivery by a date certain. Rather, certified mail-–which is processed exactly the same way as non-certified mail-–is merely a means for tracking a letter or package. Thus, a person who mails a letter by way of certified mail assumes the risk that the letter may not be delivered on or before a desired date. It appears that the risk is quite high. A USPS employee testified at final hearing that there are 50 to 70 complaints per day in Tallahassee concerning certified mail and several hundred certified letters may be misdirected each week. Florida Power further argues that the Department has seen several applications submitted via certified mail arrive at DACS late, i.e., after the “received by” deadline. Florida Power asserts that this fact has put DACS on notice that allowing an applicant to submit an application via certified mail constitutes a flaw in the system. The Department maintains that the use of certified mail is a valid way of tracking applications and is feasible. During the development of the rule governing submissions of the applications, no interested party voiced any objection to the use of certified mail as a delivery option. There is no evidence in the record that DACS was previously aware of the magnitude of errors by USPS so that it (DACS) should not include certified mail as an option for submitting applications. One must wonder, as does Florida Power, why there needs to be tracking of the applications at all since the operative date is the date of receipt by DACS. But the Department must deem it necessary for some reason and it is the current state of the law. Florida Power contends in its PRO that there are numerous fallacies in the Department’s rule regulating Tax Credit applications. This proceeding, however, is not a rule challenge brought pursuant to section 120.56, Florida Statutes. The validity or propriety of the rule is not in question. At issue in the instant proceeding is whether Florida Power complied with the duly promulgated and existing rule. DACS is one of the few state agencies which await delivery of its mail from the post office, rather than sending someone to retrieve it from USPS. DOAH is also one of those agencies. While awaiting delivery may delay an agency’s receipt of mail at times, it would not have affected Florida Power in this case because the package was not available for pick-up until August 16, one day after the deadline. There is no requirement in law or rule that any state agency opt to pick up its mail from USPS rather than have it delivered. Florida Power’s lament that DACS could have chosen to have its mail delivered is of no consequence. Some government agencies use the postmark on letters or packages as evidence that the item was timely mailed out; think IRS and April 15, for example. However, the DACS rule requires receipt of the application by the Department; the rule does not currently employ a “submitted by” compliance date. See Fla. Admin. Code R. 5O-2.003(b). When the Tax Credit program was originally initiated, the Department undertook regular rule development. The first rule promulgated by the Department was drafted in July 2012 and was ultimately adopted in the spring of 2013. That version of the rule stated that all applications must be “submitted” by a date certain. Upon receipt of one application after the due date, but which had been “submitted” by the applicant before the deadline, the Department decided it needed to re-think that provision. Rulemaking was recommended in order to amend the language relating to timely filing of applications. During the rulemaking process, which was duly noticed and advertised, DACS received no input from interested parties concerning the proposed amendment to the rule. The amended rule requires applications to be “received by” DACS on or before the deadline established by rule. This amendment eliminated any disputes concerning when an application was “submitted” by an applicant. The current, duly promulgated rule utilizes “received by” rather than “submitted” as the operative date. Florida Power points out that DACS has missed some of its own statutorily mandated deadlines concerning the reporting of Tax Credit information to the governor’s office. Florida Power does not cite to any authority which relieves an applicant from the requirements of a rule when an agency misses its own deadlines. So, that DACS was not timely in carrying out its own mandated duties is irrelevant to whether Florida Power satisfied its required actions. Nonetheless, the Department provided a legitimate rationale for its tardiness, though such reasons are irrelevant to the issue in this case. DACS employees utilize a checklist when reviewing Tax Credit applications. The checklist is just that, a matrix that can be checked off as each element or requirement of the application is reviewed, i.e., date of receipt, signature, application form, etc. The first question on the checklist asks whether the application “was submitted by” the requisite due date. April Groover Combs, who reviewed the Florida Power application using the checklist, simply interpreted the “was submitted by” language as “was received by.” Mrs. Combs had authored the rule and was involved in its amendments, so she understood what was required regardless of how the checklist referred to the items. Florida Power suggests that the internal checklist error somehow invalidates the Department’s actions; it does not. An internal document used by employees is not meant to provide rights to the public. It is not a rule. Thus, any errors within such a document are immaterial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services upholding its rejection of the Tax Credit application filed by Florida Power as ineligible for consideration. DONE AND ENTERED this 6th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2017.
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 January 13, 1983, an inspector from the Department of Agriculture and Consumer Services drew a sample of the gasoline in one of the pumps at the station of K & S Imports, Inc., in Fort Lauderdale, Florida, and submitted the sample for laboratory testing. This test determined that the evaporation rate for the sample was too high, having a 10 percent evaporated temperature of 155 degrees, instead of less than the allowable 140 degrees. Based on these test results, the Petitioner issued its stop-sale order to the Respondent on January 14, 1983. The tested sample came from a tank containing Cam 2 racing fuel. This is a special product distributed by Sun Oil Company, and it is not generally available to the public at gasoline stations. Cam 2 racing fuel performs well in engines designed for racing because racing cars often are pushed off in order to start the engines. However, the high evaporation rate of this fuel lessens the starting power of ordinary engines. The racing fuel tested at the Respondent's station came from a pump which was in the same location as the pumps containing other gasolines for sale to the public, and there was no obvious identification on the pump notifying purchasers that the product was a racing fuel not generally suitable for use in standard-use cars. Subsequent to the issuance of the stop-sale order, Sun Oil Company delivered another load of product, and added to the subject tank enough gasoline with a lower evaporation temperature to bring the sample at the pump down to an acceptable level. During the two to three month period prior to the issuance of the stop- sale order on January 14, 1983, the Respondent had sold 645 gallons of the Cam 2 racing fuel at a price of $3.50 per gallon. The Respondent contends that it informed the office of Consumer Services when it decided to market the Cam 2 fuel, and was advised that this fuel could be sold if the pump dispensing it was separated from other pumps, and if this pump was clearly marked to show that the fuel therein was sold as racing fuel not generally suitable for use in ordinary engines. However, there is not sufficient credible evidence to support a finding of fact that this instruction was implemented.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the request of K & S Imports, Inc., for a return of the $1,000 bond posted by it to secure the release of the fuel confiscated by the Department, be DENIED. THIS RECOMMENDED ORDER ENTERED this 24 day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 24 day of May, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mark Klein, President K & S Imports, Inc. 3955 North Andrews Avenue Fort Lauderdale, Florida 33309 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
