96-001428 Department Of Agriculture And Consumer Services vs. National Petroleum Packers, Inc. Status: Closed Recommended Order on Thursday, June 12, 1997.

Summary: Anti-freeze did not meet minimum corrosion standards and penalties should be $3000 fine for each of the seven lots violating standards and one year suspension of brand registration.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NOS. 96-1428

) 96-1689

NATIONAL PETROLEUM PACKERS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 27, 1997, at Tallahassee, Florida, before Patricia

Hart Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Isadore Rommes, Esquire

Department of Agriculture and

Consumer Services

515 Mayo Building, Legal Office

Tallahassee, Florida 32399-0800

For Respondent: Daren Green, Chief Chemist

National Petroleum Packers, Inc.

3501 Gribble Road

Matthews North Carolina 28105

STATEMENT OF THE ISSUES

Whether the respondent committed the violations of the

Antifreeze Law alleged by the petitioner in letters dated January

16, 1996, March 6, 1996, and July 12, 1996, and, if so, the

penalties which should be imposed.

PRELIMINARY STATEMENT

In a letter dated January 16, 1996, the Department of

Agriculture and Consumer Services ("Department") notified

National Petroleum Packers, Inc., that its product "Supreme Hi

Performance Antifreeze," offered for sale at Summit Texaco,

violated the corrosion standard set out in section 501.921,

Florida Statutes, and in rule 5F-10.001, Florida Administrative

Code. National Petroleum Packers timely requested a formal

hearing, and the Department forwarded the case to the Division of

Administrative Hearings for assignment of an administrative law

judge. This case was assigned DOAH Case No. 96-1428.

In a Notice of Intent to Impose an Administrative Penalty

and to Revoke Brand Registration dated March 6, 1996, the

Department notified National Petroleum Packers, Inc., that its

product "Supreme Full Strength Antifreeze and Summer Coolant,"

offered for sale at Conway Auto Parts, violated the corrosion

standard set out in section 501.921, Florida Statutes, and in

rule 5F-10.001, Florida Administrative Code. National Petroleum

Packers timely requested a formal hearing, and the Department

forwarded the case to the Division of Administrative Hearings for

assignment of an administrative law judge. This case was

assigned DOAH Case No. 96-1689. In an order entered April 26,

1996, this case was consolidated for hearing with DOAH Case No.

96-1428, and the cases were set for formal hearing on July 16,

1996.

In correspondence dated July 10, 1996, National Petroleum

Packers requested a continuance of the hearing on the grounds

that it had been informed that the Department was preparing to

charge it with addition violations of the Antifreeze Law and that

it would be more efficient to address all of the violations in

one proceeding. During the hearing on the motion, the Department

confirmed that National Petroleum Packers would be charged with

additional violations, and the parties agreed that all of the

pending violations should be tried together. On November 13,

1996, the parties filed a stipulation to this effect and attached

the additional notices of violation.

The formal hearing in this case was conducted on January 27,

1997, on the following Notices of Intent to Impose Administrative

Penalty and to Revoke Brand Registration issued to National

Petroleum Packers: January 16, 1996, Summit Texaco, "Supreme Hi

Performance Antifreeze," Sample No. MA1726; March 6, 1996, Conway

Auto Parts, "Supreme Full Strength Antifreeze and Summer

Coolant," Sample No. MA1736; July 12, 1996, Bennett Auto Supply,

"Formula 1 Antifreeze Summer Coolant," Sample No. MA1776; July

12, 1996, Tula/Amoco, "Supreme Full Strength Antifreeze Summer

Coolant," Sample No. MA1788; July 12, 1996, Automotive Supply

Stores, "Supreme Full Strength Antifreeze Summer Coolant," Sample

No. MA1791; July 12, 1996, New Jersey Auto Parts, "Supreme Hi

Performance CS-34 Prediluted Antifreeze Summer Coolant," Sample

No. MA1799; July 12, 1996, Bennett Auto Supply Number 21,

"Formula 1 Antifreeze Summer Coolant," Sample No. MA1811; and

July 12, 1996, Bennett Auto Supply, "Formula 1 Antifreeze Summer

Coolant," Sample No. MA1813. In each of these notices, the

Department sought to impose an administrative fine and to suspend

or revoke the license of the various antifreeze products for a

period of one year.

At the hearing, the Department presented the testimony of

three witnesses: Eric Hamilton, Bureau Chief of the Department's

Bureau of Petroleum Inspection; John Anderson, a Chemist III with

the Department's Bureau of Petroleum Inspection; and Ben W.

Bowen, Environmental Manager for the Department's Bureau of

Petroleum Inspection. Petitioner's exhibits 1 through 26 were

offered and received into evidence at the hearing. A two-page

document marked for identification as petitioner's exhibit 27 was

filed as a late-filed exhibit at the request of National

Petroleum Packers, but was not offered into evidence. At the

petitioner's request, official recognition was taken of sections

501.90-.923, Florida Statutes (Antifreeze Act of 1978), and of

rule 5F-10.001, Florida Administrative Code. Finally, at the

hearing, the Department dismissed the violation alleged in the

July 12, 1996, letter relating to the sample of Supreme Full

Strength Antifreeze and Summer Coolant acquired at Tula/Amoco

because it came from the same lot of Supreme Full Strength

Antifreeze and Summer Coolant as the sample acquired from

Automotive Supply Stores.

At the hearing, National Petroleum Packers offered the

testimony of Eric Hamilton and Daren Green, its chief chemist.

Respondent's exhibit 1 was offered and received into evidence at

the hearing. At the close of the hearing, National Petroleum

Packers requested that the record be kept open so it could take

the deposition of its expert witness, Dick Geib, who was unable

to be present to testify at the hearing. The Department did not

object to this request, the request was granted, and the parties

were given until February 10, 1997, to take the deposition, with

the transcript to be filed within a reasonable time thereafter.

On March 13, 1997, the petitioner filed a Motion to Close Record

since the deposition of Mr. Geib had not been taken in spite of

numerous efforts on the part of the petitioner to do so. The

respondent did not file a response to the motion within the time

specified in rule 60Q-2.016(1), Florida Administrative Code, and

the motion was granted by order entered March 31, 1997.

A transcript of the hearing was filed with the Division of

Administrative Hearings, and the petitioner timely filed its

Proposed Recommended Order, which has been duly considered. The

respondent did not file proposed findings of fact and conclusions

of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Agriculture and Consumer Services is

the state agency charged with administering the state's

Antifreeze Act of 1978, sections 501.91-.923, Florida Statutes,

including the registration of brands of antifreeze for sale in

the state and the inspection, sampling, and analysis of

antifreeze offered for sale in the state to ensure that it is not

adulterated and that it meets the minimum standards established

by statute and rule. Sections 501.913, .915, .917, and .921,

Fla. Stat., rule 5F-10.001, Fla. Admin. Code.

2. National Petroleum Packers distributes antifreeze in the

State of Florida and has registered its antifreeze brands with

the Department in accordance with section 501.913.

3. Samples of antifreeze distributed in Florida by National

Petroleum Packers were collected by representatives of the

Department in the normal course of inspection and sampling.

These samples were taken from different lots of several brands of

antifreeze distributed in Florida by National Petroleum Packers.

The samples were sent to the Department's laboratory in

Tallahassee in accordance with the normal procedures of the

Department and were assigned Sample Numbers MA1726, MA1736,

MA1776, MA1788, MA1799, MA1811, and MA1813.

4. These seven antifreeze samples were analyzed by the

Department's Bureau of Petroleum Inspection in accordance with

the methodologies specified by the American Society for Testing

and Materials. None of the seven samples met the minimum

antifreeze corrosion standards established by the American

Society for Testing and Materials.

5. The evidence presented is sufficient to establish that

National Petroleum Packers committed seven violations of the

Antifreeze Law.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

thereto pursuant to section 120.569 and .57(1), Florida Statutes

(Supp. 1996).

7. Because the Department is seeking to impose

administrative fines on National Petroleum Packers and to suspend

several of its brand registrations, the Department has the burden

of proving the allegations in the notices of violation by clear

and convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996).

8. One of the prohibited activities set out in section

501.918 is the distribution of antifreeze which does not meet the

minimum standards established by statute and rule. Section

501.918(2), Fla. Stat.

9. The Department uses the "standards, definitions, and

test procedures for antifreeze" established by the American

Society for Testing and Materials. Section 501.921, Fla. Stat.;

rule 5F-10.001, Fla. Admin. Code.

10. Based on the facts found herein, the Department has met

its burden of proving by clear and convincing evidence that seven

lots of antifreeze distributed in Florida by National Petroleum

Packers did not meet the minimum corrosion standards for

antifreeze established by the American Society for Testing and

Materials. National Petroleum Packers is, therefore, guilty of

seven violations of section 501.918(2).

11. Section 501.922 provid es in pertinent part:

The registration with the department of any

person who violates this act or fails to

comply with any of the provisions of this act

may be subject to suspension or revocation.

Any suspension shall not exceed 1 year. In

addition to any suspension or revocation, for

each violation, the department may levy a

fine which shall not exceed $5,000 per

violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Agriculture and

Consumer Services issue a Final Order finding that National

Petroleum Packers is guilty of seven violations of the Antifreeze

Law of 1978, imposing a fine for each violation in the amount of

$3,000, and suspending for one (1) year the brand registrations

for National Petroleum Packers' Supreme High Performance

Antifreeze, Supreme Full Strength Antifreeze and Summer Coolant,

and Formula 1 Antifreeze and Summer Coolant. 1

DONE AND ENTERED this 12th day of June, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 1997.

ENDNOTE

1 Although the sample of Supreme Hi Performance CS-34 Prediluted

Antifreeze and Summer Coolant was found to be in violation of the

Department's minimum corrosion standards for antifreeze, the

Department did not request in its notice of violation that the

registration for this product be suspended.

COPIES FURNISHED:

Daren Green, Chief Chemist

National Petroleum Packers, Inc.

3501 Gribble Road

Matthews, North Carolina 28105

Isadore Rommes, Senior Attorney

Department of Agriculture &

Consumer Services

515 Mayo Building, Legal Office

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel

Department of Agriculture &

Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Hon. Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.

1 Although the sample of Supreme Hi Performance CS-34 Prediluted

Antifreeze and Summer Coolant was found to be in violation of the

Department's minimum corrosion standards for antifreeze, the

Department did not request in its notice of violation that the

registration for this product be suspended.