90-008030 Shell Oil Company vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Thursday, April 25, 1991.

Summary: Agency`s burden of proof for standard of sulfur in kerosene shifted to seller to establish entitlement to refund on bond in lieu of fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELL OIL COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8030

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 22, 1991 in

Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer

of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: No appearance

FOR RESPONDENT: Clinton H. Coulter, Jr., Esquire

Department of Agriculture and

Consumer Services

510 Mayo Building

Tallahassee, FL 32399-0800

STATEMENT OF THE ISSUE

Whether or not the agency may, pursuant to Section 525.06 F.S., assess

$390.04 for sale of substandard product due to a violation of the petroleum

inspection laws and also set off that amount against Petitioner's bond.

PRELIMINARY STATEMENT

Because the letter-petition herein challenged the agency's assessment, the

Notice of Hearing issued January 25, 1991 placed the burden of proof and duty to

go forward upon the agency. See, Sunshine-Jr. Food Stores, Inc., 214 v. Dept.

of Agriculture and Consumer Services, DOAH Case No. 90-5316 (Recommended Order

entered March 18, 1991) which established a converse burden of proof.

The Department of Agriculture and Consumer Services presented the oral

testimony of John Whitton and had 4 exhibits admitted as business records.

Although the undersigned waited ten minutes before beginning the hearing

and ten minutes after the agency rested, the party requesting hearing did not

appear and presented no evidence.

No transcript was provided. No post-hearing submittals were filed.

FINDINGS OF FACT

1. Coleman Oil Co., Inc. d/b/a Shell Oil Co. at I-75 and SR 26

Gainesville, Florida, is in the business of selling kerosene, among other

petroleum products.

2. On November 15, 1990, Randy Herring, an inspector employed with the

Department of Agriculture and Consumer Services and who works under the

direction of John Whitton, Chief of its Bureau of Petroleum, visited the seller

to conduct an inspection of the petroleum products being offered for sale to the

public.

3. Mr. Herring drew a sample of "1-K" kerosene being offered for sale,

sealed it, and forwarded it to the agency laboratory in Tallahassee where Nancy

Fisher, an agency chemist, tested it to determine whether it met agency

standards.

4. The testing revealed that the sampled kerosene contained .22% by weight

of sulfur. This is in excess of the percentage by weight permitted by Rule 5F-

2.001(2) F.A.C. for this product.

5. A "Stop Sale Notice" was issued, and on the date of that notice

(November 20, 1990) the inspector's comparison of the seller's delivery sheets

and the kerosene physically remaining in his tanks resulted in the determination

that 196 gallons of kerosene had been sold to the public. Based on a posted

price of $1.99 per gallon, the retail value of the product sold was determined,

and the agency accordingly assessed a $390.04 penalty. The agency also

permitted the seller to post a bond for the $390.04 on November 21, 1990. The

assessment is reasonable and conforms to the amount of assessments imposed in

similar cases.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction of the parties

and subject matter of this cause. See, Section 120.57(1) F.S.

7. Section 525.05 F.S. states:

All oils . . . that shall fall below the

standard fixed by the Department of Agriculture

and Consumer Services, are declared illegal and

shall be subject to confiscation and sale by order

of the Department. Instead of confiscation, a

refundable bond in cash or by certified check in

the amount of the value of the product subject to

confiscation may be accepted by the Department,

pending legal disposition. The amount of this bond

shall be limited to $1,000. If any of the product

has been sold to retail customers, the department

is authorized to make an assessment equal to the

retail value of the product sold, not to exceed $1,000.

8. Rule 5F-2.001(2) F.A.C. sets the standard for sulfur in kerosene as

.04% by weight. The seller here was clearly in violation of that standard, and

the assessment and bond were reasonable. The agency has borne its initial

burden to prove the legitimacy and amount of the assessment.

9. Therefore, the burden shifted to the seller to prove that it was

entitled to a refund of the bond it had posted.

10. The agency has met its burden of proof. The seller, which did not

appear, did not object to any exhibits, and did not present any evidence.

Therefore, the seller has not met its burden to prove its entitlement to a

refund of the bond. The Department is entitled to retain the bond posted.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a

final order approving the $390.04 assessment and offsetting the bond against it.

DONE and ENTERED this 25th day of April, 1991, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 25th

day of April, 1991.

COPIES FURNISHED TO:

CLINTON H. COULTER, JR., ESQUIRE

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES

510 MAYO BUILDING

TALLAHASSEE, FL 32399-0800

MR. RANDAL W. COLEMAN

COLEMAN OIL COMPANY

POST OFFICE BOX 248

GAINESVILLE, FL 32602

HONORABLE BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

THE CAPITOL, PL-10

TALLAHASSEE, FL 32399-0810

RICHARD TRITSCHLER, GENERAL COUNSEL

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES

515 MAYO BUILDING

TALLAHASSEE, FL 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.