The Issue Whether the Department properly issued a warning letter for selling gasoline that failed to meet state standards regarding end point temperature contrary to Section 525.037, Florida Statutes.
Findings Of Fact Respondent is the state agency authorized to regulate the petroleum products (fuel) offered for sale in Florida for illuminating, heating, cooking, or power purposes. It does so by randomly sampling fuels offered for sale by vendors throughout the state to determine if the fuel meets standards set by the state pursuant to law. Petitioner operates a marina in central Florida where it offers gasoline for sale to its customers. Respondent's inspectors conducted a random sampling of Petitioner's gasoline. Subsequent testing revealed that the end point temperature of the gasoline was not in conformity with the standards for premium gasoline, the only grade sold by Petitioner. On this basis Respondent issued Petitioner a warning letter. It is undisputed that the gasoline sample failed to meet standards. The end point temperature of gasoline is not apparent from its color, smell, or appearance and can only be determined by testing in a laboratory equipped for that purpose. Petitioner has approximately 1,000 gallons of storage for gasoline and reorders when they have approximately 500 gallons on hand. The wholesaler will not hold Petitioner harmless for product that it sells. In order to assure the quality of the gasoline it sells, Petitioner would have to test each delivery. The cost to test a sample is approximately $100. This would add approximately 20 cents to the cost of each gallon sold on a 500-gallon order, and Petitioner asserts that it now loses 10 to 15 cents per gallon on the fuel it sells as a convenience to boaters at its marina. Respondent does free quality testing of gasoline for vendors as a service based upon the availability of its facilities and time. It takes at least 24 hours to test the fuel. These are unofficial, miscellaneous samples, and the results are reported to the person who provided the sample without follow up. The end point temperature of gasoline is typically altered by the addition of another type of petroleum product to the fuel being sold. This can occur at any point during the chain of delivery from the manufacturer to the ultimate vendor. While the standards of the depots have improved, contamination can and does occur there. Similarly, petroleum transporters have improved their standards, but contamination does occur by inadvertently mixing products when filling tank trucks. Lastly, contamination also occurs at the vendors where there are cases of unscrupulous vendors mixing waste oil with product to get rid of the waste oil. There is no evidence of the cause of the contamination in this case. The Department talked with the wholesaler of the gasoline that provided the gasoline to Petitioner, but that wholesaler was reticent to provide documentation for the fuel and to discuss the matter with representatives of the Department. The operation of engines with fuels that have the wrong end point can result in serious damage to a vehicular or marine engine. If Respondent finds Petitioner selling substandard fuel again, Petitioner will be liable to a fine up to $5,000. After three years, warning letters are expunged if there are no other violations, and Petitioner would receive a warning letter for another violation after three years.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department should enter its final order confirming the issuance of its warning letter. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2004. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Suite 520 Tallahassee, Florida 32399-0800 Joseph T. Lewis Mount Dora Marina Company, Inc. 148 Charles Avenue Mount Dora, Florida 32757 Eric R. Hamilton, Chief Bureau of Petroleum Inspection Division of Standards Department of Agriculture and Consumer Services 3125 Conner Boulevard, Building 1 Tallahassee, Florida 32399-1650
Findings Of Fact 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
The Issue The issue here presented concerns the alleged violation of Rule Subsection 5F-2.01(1)(j) , Florida Administrative Code, related to allowable amounts of lead per gallon in gasoline which is dispensed under the distinctive name "Unleaded Gasoline." This alleged violation of the Rule potentially subjects the Respondent to the penalty set forth in Section 525.06, Florida Statutes (1980). The particular facts of this allegation are that on September 15, 1981, a sample of gasoline from the pump at the Respondent's station marked "Unleaded Premium Gasoline" was extracted and a test conducted revealing .31 grams per gallon of lead content and a further test was conducted on September 25, 1981, at the same station and pump revealing .23 grams of lead per gallon, in violation of the maximum allowable .05 grams per gallon. FINDINGS OF FACT 1/ This case was presented for hearing based upon the request for a formal Subsection 120.57(1), Florida Statutes, hearing, made by the Respondent, Emmett C. Wever. The matters to be considered are as set forth in the Issues provision of this Recommended Order. The hearing was conducted on December 14, 1981, in keeping with the Respondent's request. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State Government which has the obligation of gasoline and oil inspection pursuant to the provisions of Chapter 525, Florida Statutes. The Respondent is the proprietor of a station which dispenses gasoline, at 1204 Ocean Shore Boulevard, Ormond Beach, Florida. On September 15, 1981, an employee of the Petitioner made a check of the unleaded premium gasoline pump from which the Respondent had been selling that product. The sample extracted was analyzed on September 22, 1981, and this analysis revealed a lead content in the sample of .31 grams of lead per gallon. The results of that report were made known to the Petitioner's employee on September 25, 1981, and a further check of the aforementioned gasoline pump was made on that same date. Subsequent testing of that sample revealed .23 grams of lead per gallon. In the face of these revelations of lead content in the gasoline, a Stop Sale Notice was given to the station owner. The effect of the Stop Sale Notice would allow the confiscation of gasoline remaining in the unleaded premium tank at the Respondent's station or in lieu of the posting of a bond, not to exceed $1,000.00. The Respondent elected to post a bond of $953.30 which was equal to the 657 gallons which had been dispensed from the subject gas pump during the questioned period. The Respondent was allowed to sell the remaining 1,046 gallons in the tank, which was associated with the gasoline pump, as regular gasoline. Excessive lead, when introduced into those automobiles which are required to use unleaded gasoline, can damage the catalytic converter, and it is estimated that this damage would occur after burning approximately five (5) tanks of contaminated unleaded gasoline. In addition, lead in the fuel tends to foul the engine. There was no showing in the course of the hearing that the Respondent had knowledge of the lead content discovered on September 15 and 25, 1981, which amounts were in excess of the standards set forth in Rule Subsection 5F- 2.01(1)(j), Florida Administrative Code, calling for no more than .05 grams of lead per gallon in gasoline sold as unleaded fuel.
Findings Of Fact Respondents operating as a Majik Market, sells gasoline at 415 West Tennessee Avenue, Lynn Haven, Florida. On October 30, 1981 Mr. Haywood Nixon who is a petroleum inspector with the Department of Agriculture and Consumer Services took a sample of regular leaded gasoline from Respondent's fuel pump designated "WAY 1232" at the above location. The sample was deposited in a glass bottle and delivered to Mr. Patrick Flannigan who is a chemist for the Petitioner. On October 30, 1981 Mr. Flannigan performed certain prescribed tests on the gasoline sample. The final boiling point temperature of the sample was found by Mr. Flannigan to be 484 degrees Fahrenheit. This figure does not comply with the standards set out in Section 5F-2.01(1)(c)4. Florida Administrative Code which provides that the end point (final boiling point) of leaded gasoline shall not exceed 446 degrees Fahrenheit. The high end boiling point reading of the sample indicates that it was probably contaminated by another fuel such as diesel oil. The exact nature of the contaminant is however impossible to determine from the tests made. After receiving the results of the analysis made-by Mr. Flannigan Mr. Nixon returned to the Majik Market and issued a stop-sale notice. This notice prohibited the sale of the 4,435 gallons of contaminated gasoline remaining in Respondent's storage tank. As a result of that stop-sale notice Respondent posted a bond in the amount of $1,000. Subsequently the Petitioner issued a release notice allowing the contaminated gasoline to be removed from the State of Florida and disposed of by Respondent. Prior to the issuance of the stop- sale notice Respondent had sold 2063 gallons of gasoline from that tank since the last fuel delivery. There is no indication that the contamination discovered by the Department's test was the result of any willful or deliberate act by Respondent of Respondent's agents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department remit to the Respondent $500 of the $1,000 bond required to be posted in lieu of confiscation of 4,435 gallons of substandard gasoline. DONE and RECOMMENDED this 20th day of January, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 20th day of January, 1982. COPIES FURNISHED: Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Jack G. Williams, Esquire Post Office Box 426 Panama City, Florida 32401
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Respondent, Hudson Oil Company, is the owner of a retail gasoline outlet located at 1000 Ninth Street North, St. Petersburg, Florida. John H. Newburn is the manager of Respondent's retail station. On August 25, 1989, Petitioner, Department of Agriculture and Consumer Services' inspector, Henry J. Crafa, made a routine inspection of Respondent's retail gasoline station and took a sample of the unleaded, regular and premium unleaded gasolines. Inspector Crafa submitted the samples taken from Respondent's facility to Petitioner's laboratory for analysis. The results of Petitioner's laboratory analysis revealed that the unleaded and premium gasoline contained ethanol. Additionally, the lab analysis revealed that Respondent's regular gasoline contained water. The lab analysis revealed that Respondent's premium unleaded had an Antiknock Index of 91.6, whereas the posted Antiknock Index was 93.0. This indicates that the Antiknock Index of the premium unleaded fuel was 1.4% less than the Antiknock Index which was displayed on the dispensing tank. The lab analysis also revealed that the Respondent's unleaded gasoline contained 10.5% ethanol and the premium unleaded gasoline contained 8.8% ethanol. At the time of Petitioner's inspection on August 25, 1989, there were approximately 8,000 gallons of unleaded gasoline and approximately 2,000 gallons of premium unleaded gasoline in Respondent's dispensing tanks, and for both grades of gasoline, the retail price per gallon was in excess of $1.00. More than 2,000 gallons of gasoline was sold to retail customers at a price in excess of $1.00 per gallon. At the time of Inspector Crafa's inspection, Respondent's fuel tanks failed to display on the upper one-half of the front panel, in a position clear and conspicuous from the driver's position, that its unleaded and premium unleaded gasoline contained ethanol. On August 31, 1989, Petitioner issued a "Stop Sale Notice" for Respondent's unleaded and premium unleaded gasoline. In lieu of confiscation, and in order to gain release and possession of its unleaded and premium unleaded gasoline, Respondent entered into a release notice and/or agreement with Petitioner whereby Respondent posted a $1,000.00 bond in lieu of confiscation of its gasoline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's request for a refund of the $1,000.00 bond that it posted in lieu of confiscation or its fuel products.1 DONE and ENTERED this 2nd day of November, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1990. Copies furnished: Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 John H. Newburn 1000 Ninth Street North St. Petersburg, Florida 33705 Mary Hudson Hudson Energy Corporation Post Office Box B Kansas City, Kansas 66103 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, Esquire General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of License & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact The Respondent, J. C. Penny Company, Inc., operates an automobile service center at its store in the Sunshine Mall in Clearwater, Florida. The service center has a gas station which sells gasoline products to the general public. On or about February 4, 1981, a petroleum inspector of the Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of unleaded gasoline from the Respondent's gasoline station at the Sunshine Mall. This sample was tested in the Tallahassee laboratory and was found to contain lead contents in the amount of 0.60 gram per gallon in the no- lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on February 5, 1981 (Petitioner's Exhibit 1) The station manager was informed that he had several alternatives, including confiscation of the product, with the Respondent posting a bond in the amount of $1,000 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on February 5, 1981 (Petitioner's Exhibit 1). Petitioner received a bond in the amount of $1,000 from Respondent and this amount was deposited into the Gasoline Trust Fund.
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 Respondent. DONE and ENTERED this 1st day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire Room 513 June, 1981. Mayo Building Tallahassee, Florida 32301 Donald E. Ford J. C. Penny Company, Inc. 27 Sunshine Mall Clearwater, Florida 33516
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. On January 15, 1980, Nick Pappas, a petroleum inspector with respondent's Division of Standards, took samples of regular and no lead gasoline from petitioner's station No. 582 located at 3130 Gulf to Bay Boulevard in Clearwater, Florida. An analysis of the samples was performed in the Tallahassee lab showing lead contents in the amount of 0.56 grams per gallon in the no lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. A second sampling and analysis was performed approximately eleven days later because more gasoline had been dumped into the tank since the first sampling. Test results indicated essentially the same level of lead content in the unleaded gasoline. The respondent thereupon issued a "stop sale notice" on January 26, 1980, due to the high content of lead in the product. Tom Nestor, the station manager, was informed that he had several alternatives, including confiscation of the product, with the petitioner posting a bond in the amount of $1,000.00 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on January 28, 1980. Respondent received a bond in the amount of $1,000.00 from Petitioner, and this amount was deposited into the Gasoline Trust Fund. Tom Nestor admitted the truth of the above facts and admitted that he did not check the product after it was dumped into the tank. He stated that the driver of the delivery truck delivered the product to the wrong gasoline tank. According to Mr. Nestor, the tanks at his station were not properly marked at the time the delivery was made. The "premium" tank was being used to dispense "unleaded" gas, and the deliverer dumped "regular" gasoline into the "unleaded" tank.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request for a return of the cash bond be DENIED. Respectfully submitted and entered this 28th day of July, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301
Findings Of Fact On June 28, 1978, the respondent Department of Environmental Regulation gave notice that the Environmental Regulation Commission would consider the adoption of an emergency rule at their regularly scheduled meeting on July 12, 1978. The impetus for such an emergency rule was apparently the results of the Florida Sulfur Oxides Study which were orally presented to the Commission at a meeting held on June 20-22, 1978. The study is an eleven volume text, parts of which were separately submitted to the Commission in January, February, and April of 1978, involving the environmental effects of sulfur dioxide and related matters. The written final report was submitted in May of 1978. Pursuant to the provisions of Florida Statutes, Section 120.54(4), petitioner Florida Lung Association filed with the Division of Administrative Hearings its "petition for determining the validity of a proposed emergency rule" on July 7, 1978. The emergency rule was approved by the Environmental Regulation Commission at its meeting on July 12, 1978, and said rule was filed with the Secretary of State on July 14, 1978. On the same date, July 14th, Florida Power and Light Company and Jacksonville Electric Authority filed their motion to intervene in the rule challenge proceeding. On July 16, 1978, Jacksonville Electric Authority filed its motion to dismiss the petition. The cause was noticed for hearing on July 19, 1978. On July 20th, Florida Power and Light filed its motion to dismiss. On July 26, 1978, the Division of Administrative Hearings received petitioner's amendment to the petition seeking relief pursuant to the provisions of Florida Statutes, Section 120.56, should relief under Florida Statutes, Section 120.54 be deemed improper. The petitioner and the Department of Environmental Regulation entered into a Stipulation prior to the hearing agreeing as to certain factual matters and stipulating that the Florida Lung Association is a substantially interested party in the proceeding and had standing to bring this action. The undersigned was duly designated by the Director of the Division of Administrative Hearings as the Hearing Officer in this proceeding. It was determined by her that all pending motions would be heard and ruled upon at the time of the scheduled hearing inasmuch. as the time constraints imposed upon rule challenge proceedings did not allow for all parties to respond in writing to all motions within the seven day period specified by Rule 28-5.25(3), F.A.C., and inasmuch as the Hearing Officer was to be out of town on the three days prior to the hearing. At the beginning of the hearing on July 28, 1978, the undersigned granted the motions to intervene. The motions to dismiss were based upon the allegations that petitioner lacked standing to challenge the emergency rule in question; that the Environmental Regulation Commission, rather than the Department of Environmental Regulation, was the agency whose rule was being challenged and that an emergency rule cannot be contested under Florida Statutes, Section 120.54(4) The undersigned denied both motions to dismiss. It was and is concluded from the pleadings, the evidence adduced at the hearing and the stipulation between petitioner and respondent that the petitioner herein does have standing to challenge the emergency rule in question. Respondent the proper agency to be named in this proceeding, inasmuch as the Environmental Regulation Commission (ERC) is simply a part of that agency and sits as the agency head on certain specified matters. While Chapter 120 does not appear to make adequate provision for a challenge to a proposed emergency rule, that issue is now moot in light of the presently existing status off the challenged rule and the amendment to the petition alleging a cause of action under Florida Statutes, Section 120.56. As amended by Chapter 78-425, Laws of Florida (SB 860) Section 120.56 now provides explicitly for challengers to the validity of emergency rules before the Division of Administrative Hearings. Turning now to the merits of the petition, as amended, it is contended that the rule in question is an invalid exercise of legislative authority because no immediate danger to the public health, safety or welfare existed which would justify the enactment of an emergency rule pursuant to Florida Statutes, Section 120.54(9). The factual background of the emergency rule is not in dispute. On April 7, 1977, respondent adopted a rule which permitted Florida Power and Light and Jacksonville Electric, the intervenors herein, to burn a higher sulfur content fuel at their respective plants in Manatee and Duval Counties until August 1, 1978. On that date, those plants would be required to burn fuel with a lower sulfur content. On June 15, 1977, the ERC considered a proposed rule which would extend the time within which the intervenors herein could burn the higher sulfur content fuel from August 1, 1978, to February 1, 1979. The Commission refused to approve this proposed rule and it was not enacted. On June 20-22, 1978, the Commission was given an oral presentation of the results of the Florida Sulfur Oxides Study. As a result of this meeting, the Commission gave notice on June 28, 1978, of its intent to consider an emergency rule allowing the intervenors to extend the date for burning higher content fuel from August 1, 1978, until October 1, 1978. The Commission considered the emergency rule at its meeting held on July 12, 1978, approved it and filed it with the Secretary of State on July 14, 1978. The ERC gave the following "specific reasons for finding an immediate danger to public health, safety and welfare": If the emergency rule is not immediately adopted and Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., amended, the cost to Florida Power & Light Company and Jacksonville Electric Authority to use lower sulfur fuel between August 1, 1978 and October 1, 1978 will be $1,373,000.00. This cost will be directly passed on to the customers of these utilities through fuel adjustment provisions. The additional cost would be paid to foreign countries for the purchase of oil. These passed on costs are not warranted in light of the fact that the Environmental Regulation Commission is presently considering to permanently amend by October 1, 1978 Section 17-2.p.5(6), Table II, Item E(1)(c), F.A.C., so that both of these power plants may use at least the higher sulfur fuel allowed by the emergency rule. As a result of the Florida Sulfur Oxides Study, the presentations made pursuant thereto at the June 20, 21 and 22, 1978 Environmental Regulation Commission Hearing, and the bearing held on this emergency rule on July 12, 1978, the Commission finds no significant environmental benefits to be gained by using the lower sulfur fuel during the two months period. (Copies of the monitoring data for these two power plants modeling data for the Manatee power plant and the Florida Sulfur Oxides Study may be inspected at the address below.) Both of these power plants have been using the sulfur content fuel proposed in the emergency rule since June of 1977 without violating any of the applicable ambient air quality standards. Also because of the large amounts of oil purchased at one time by the utilities and the lead time required for such purchases, it would not be economical for the utilities involved to order a different sulfur content fuel for only a two month period. Accordingly, unless the emergency rule is enacted the customers of these utilities will be charged $1,373,000.00 without obtain- ing any significant environmental benefits and the utilities will be unable to economically purchase fuel. These facts present an immediate danger to the public health, safety and welfare which can only be remedied by the enactment of the emergency rule and by making this emergency rule effective as of the date of filling (sic) or July 13, 1978 whichever is earliest. It was further stated, as "reasons for concluding that procedure used is fair under the circumstances" that the emergency rule procedure was the only procedure available to grant the relief required in that a permanent rule could not be promulgated in time. The Commission noted that the emergency rule was only effective for a two-month period "at which time the Commission will decide on a permanent rule pursuant to Chapter 120 Florida Statutes, for these two power plants." The transcript of the hearing held by the ERC on July 12, 1978, makes it abundantly clear that the Commission did not consider the adoption of the emergency rule to be a commitment to adopt a similar permanent rule which would be effective subsequent to October 1, 1978. Indeed, it was stated by several Commissioners that the entire matter would be dealt with anew and on its merits in September. Were there no emergency rule in effect permitting the intervenors to burn the higher sulfur content fuel, it would cost Florida Power and light $680,000.00 to purchase the lower content fuel for the two month period of August, and September. This cost would be passed on the the consumer. The cost to the average residential customer using one thousand kilowatt hours of electricity would be thirteen cents ($.13) per month. For the average utility bill, this would result in an increase of .03 percent. For Jacksonville Electric, the same costs are $693,000.00 or approximately $1.65 per month per average residential consumer, or a 3.5 percent increase in the average utility bill. The higher sulfur content fuel results in an additional discharge of from 2.4 to 2.6 tons of sulfur dioxide per hour into the air. Neither the Jacksonville nor the Manatee County plants have violated the State's ambient air quality standard during the one and a half years they have been permitted by rule to burn the higher content fuel. Section 120.54(9), Florida Statutes, permits agencies to avoid the formalities of proper rulemaking procedures only when there is a bona fide finding that "an immediate danger to the public health safety, or welfare requires emergency action." Thus, in order to sustain the exercise of emergency action, there must be a clear showing of danger to the public health, safety or welfare and that danger must be shown to be an immediate danger. As recognized in Fuller v. Gardner, 190 So. 442 (Fla. 1939), an agency's assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power. A review of the testimony and the record of this proceeding does not support respondent's finding of either a danger to the public health, safety or welfare or an immediacy necessitating emergency action. The substance of the emergency rule -- permission to burn a higher sulfur content fuel than would otherwise be permitted -- certainly does not alleviate or obviate some immediate danger to the public health or safety. Petitioner's only witness on this subject testified that any ingested particles of sulfur dioxide could cause damage to the human lung. However, there was no testimony as to whether the higher sulfur contents allowed by the rule, as opposed to the lower content which would be binding upon the intervenors in the absence of a rule, would present a definite health hazard to residents of Duval or Manatee Counties. Nevertheless, the respondent's own statement of specific findings and reason's of immediate danger do not illustrate an emergency situation with regard to public health or safety. These findings are that there are "no environmental benefits to be gained by using the lower sulfur fuel during the two months period." A mare showing of no harm is not sufficient to satisfy the statutory test for the adoption of emergency rules. The statute requires an immediate danger to the public health. The fact that there may be no significant environmental benefit if a rule is not enacted simply does not justify noncompliance with proper rulemaking procedures. This then leaves the issue of whether there is an immediate danger to the public welfare absent the enactment of the emergency rule. The concept of public welfare is broad and embraces a variety of interests, including monetary and economic interests. It was the testimony of petitioner's expert witness on this subject that the costs involved if the intervenors were required to burn the lower sulfur content fuel would be passed on to the average consumer at the rate of increases in their utility bills of .03 and 3.5 percent. This witness opined that such an increase would not be significant for a two-month period and that the impact on the Florida economy would be inconsequential. There simply is no evidence in the record herein to illustrate that the situation was of such a nature that normal rulemaking procedures were precluded. Even if it were conceded that the total expenditure of $1,373,000.00 could have an adverse impact upon the Florida economy, where is the urgency or immediacy which must exist prior to the exercise of emergency rulemaking procedures? The rule sought to be amended has been in effect since April of 1977. It was to self-destruct on August 1, 1978. The agency was aware of this, as were the intervenors. When confronted in June of 1977 with a request to extend the rule's operation to February 1, 1979, the Environmental Regulation Commission refused the request and failed to so amend the rule. The first three volumes of the Florida Sulfur Oxides Study came in to the Commission in January, 1978. Six volumes were received in February, and the remaining two volumes were received in April, 1978. In May, the ERC received the final written report. Apparently, the summarizing results were orally presented to the Commission at a meeting held on June 20, 21 and 22, 1978. The transcript of the Commission's - July 12, 1978, hearing on the emergency rule, as well as the findings and reasons attending the emergency rule, indicate that the Commission still has not reached a decision as to whether the rule's contents will be repromulgated to be effective after October 1, 1978. 1/ Thus, it appears that any immediate danger in July of 1978 was not created by newly acquired knowledge concerning the effect of the emission of certain levels of sulfur dioxide into the air or by some sudden change which would adversely affect Florida's economy. The emergency was therefore not created by considerations of the public health, safety or welfare. Rather, if there was an emergency at all, it was created by an avoidable administrative failure to properly amend the existing rule to provide an extension for the desired time period. As clearly held in Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. App. 1st 1977), an emergency created wholly by an agency's failure to take timely action cannot justify extraordinary measures. The emergency rule provisions of Florida Statutes, Section 120.54(9) constitute an extraordinary means of adopting a rule when a true emergency exists which makes compliance with normal rulemaking procedures impossible. The record in this case is barren of evidence that, in mid-July of 1978, there was an immediate danger to the public health, safety or welfare requiring emergency action. IT IS THEREFORE ORDERED THAT the respondent's emergency rule 17ER78-1, which purports to amend Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., by extending the date from August 1, 1978, to October 1, 1978, constitutes an invalid exercise of legislative authority. Done and entered this 7th day of August, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact On July 10, 1980, Respondent's fuel inspector took a sample of gasoline being sold as unleaded from Respondent's service station in Mascotte, Florida. This sample was subsequently analyzed at Petitioner's mobile laboratory in Mineola and at its permanent facility in Tallahassee. Both tests indicated a lead content in excess of .084 grams per gallon, which exceeds the maximum permissible lead content of .05 grams per gallon established by Rule 5F- 2.01(1)(j), Florida Administrative Code. Petitioner's inspector then returned to Respondent's service station where he issued a stop-sale order on the substandard gasoline. The inspector offered the station manager the option of losing the 1,500 gallons of remaining fuel through confiscation or the posting of a $1,000 cash bond. The $1,000 figure was based on station records which indicated that over $1,000 of the substandard fuel had been sold. Respondent's station manager elected to post the $1,000 cash bond and retain the substandard fuel, which was subsequently pumped into another tank and sold as leaded regular gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $1,000 bond posted in lieu of confiscation of substandard gasoline. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of October, 1980. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 M. H. McNeilly, President Saveway Oil, Inc. 2605 N. 50th Street Tampa, Florida 33619 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
