87-005568
Balm Grocery vs.
Department Of Agriculture And Consumer Services
Status: Closed
Recommended Order on Tuesday, February 16, 1988.
Recommended Order on Tuesday, February 16, 1988.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE )
12AND CONSUMER SERVICES , )
16)
17Petitioner , )
19)
20vs. ) CASE NO. 87-5568
25)
26BALM GROCERY , )
29)
30Respondent. )
32______________________________)
33RECOMMENDED ORDER
35Pursuant to notice, the Division of Administrative Hearings, by its duly
46designated Hearing Officer, K. N. Ayers, held a public hearing in the above-
59styled cause on February 4, 1988, at Tampa, Florida.
68APPEARANCES
69For Petitioner: Robert A. Chastain, Esquire
75Department of Agriculture and
79Consumer Services
81Mayo Building
83Tallahassee, Florida 32399-0800
86For Respondent: Respondent was not present or
93represented.
94Prior to the commencement of the hearing, and at the request of the Hearing
108Officer, a representative of Petitioner's telephoned Respondent to inquire if a
119representative would be present at the hearing. During that conversation,
129Respondent disclaimed receiving notice that the time of the hearing had been
141changed from 1 p.m. to 9 a.m. on February 4, 1988.
152The file in this case reveals that on December 28, 1987, this case was
166scheduled for hearing to commence at 1 p.m. on February 4, 1988, and was
180forwarded by U.S. Mail to the address given by Respondent in its request for
194hearing. Respondent acknowledged receipt of this notice. On January 15, 1988,
205an Amended Notice of Hearing was issued which changed only the time of day for
220which the hearing was scheduled from 1 p.m. to 9 a.m. This Amended Notice of
235Hearing was sent by U.S. Mail to the same address the original Notice of Hearing
250was sent, and was not returned by the post office as undelivered. Respondent
263contends that this Amended Notice was not received and, when asked on the
276morning of the hearing if a representative could come to the hearing forthwith,
289Respondent said that no representative could arrive before noon.
298Thereafter the hearing was commenced, Petitioner called one witness, and
308three exhibits were admitted into evidence. No transcript of the proceedings
319was ordered, and Petitioner waived the right to submit a proposed recommended
331order.
332FINDINGS OF FACT
3351. On October 6, 1987, a petroleum inspector from the Department of
347Agriculture and Consumer Services conducted a routine inspection of the gas
358pumps at Balm Grocery at Balm, Florida.
3652. When a sample was taken from the Chevron unleaded, the inspector
377immediately noticed an unusual color for unleaded gasoline. A subsequent
387analysis of this sample showed the sample contained 3.3 grams of lead per
400gallon.
4013. Upon receipt of the lab report, the inspector placed a stop sale order
415on the pump and locked the pump. Shortly thereafter, the owner of Balm Grocery
429posted a bond of $1000 to get the stop sale lifted and commenced selling gas
444from this tank as leaded gasoline.
4504. Prior to the stop sale posted on this pump, more than 1000 gallons of
465polluted gasoline had been sold by Respondent as unleaded plus gasoline.
476CONCLUSIONS OF LAW
4795. The Division of Administrative Hearings has jurisdiction over the
489parties to, and the subject matter of, these proceedings.
4986. Section 525.06, Florida Statutes, provides that various oils and
508gasolines used or intended to be used for power sold under a distinctive name
522which falls below standards fixed by the Department of Agriculture and Consumer
534Services shall be subject to forfeiture. Rule 5F-2.001(1)(j), Florida Statutes,
544provides unleaded gasoline may not contain more than .05 grams of lead per
557gallon, and leaded gasoline may contain lead compounds not to exceed 4.2 grams
570of lead per gallon.
5747. Since the sample taken from Respondent's tank contained a lead content
586associated with leaded gasoline, the product clearly was subject to forfeiture.
597In lieu of confiscating the gasoline, Petitioner, pursuant to an agreement with
609Respondent, accepted a bond in the amount of $1000 and thereafter allowed
621Respondent to sell the product as unleaded gasoline.
6298. From the foregoing, it is concluded that Respondent sold more than 1000
642gallons of contaminated unleaded gasoline from the Chevron unleaded plus tank at
654Balm Grocery before the stop sale notice was posted. It is Recommended that
667Balm Grocery be required to forfeit the $1000 bond posted.
677ENTERED this 16th day of February, 1988, in Tallahassee, Florida.
687___________________________________
688K. N. AYERS
691Hearing Officer
693Division of Administrative Hearings
697The Oakland Building
7002009 Apalachee Parkway
703Tallahassee, Florida 32399-1550
706(904) 488-9675
708Filed with the Clerk of the
714Division of Administrative Hearings
718this 16th day of February, 1987.
724COPIES FURNISHED:
726Robert A. Chastain, Esquire
730Department of Agriculture and Consumer Services
736Mayo Building
738Tallahassee, Florida 32399-0800
741Mrs. Tom Winglong
744Balm Grocery
746Post Office Box 646
750Balm, Florida 34253
753Honorable Doyle Conner
756Commissioner of Agriculture
759The Capitol
761Tallahassee, Florida 32399-0810
764Ben Pridgeon, Chief
767Bureau of Licensing & Bond
772Department of Agriculture
775Lab Complex
777Tallahassee, Florida 32399-1650
780=================================================================
781AGENCY FINAL ORDER
784=================================================================
785STATE OF FLORIDA
788DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
794DEPARTMENT OF AGRICULTURE
797AND CONSUMER SERVICES,
800Complainant,
801vs. Case No. 87-5568
805BALM GROCERY,
807Respondent.
808___________________________/
809FINAL ORDER
811This matter came before the Department for a determination upon submission
822of the Hearing Officer's Recommended Order on February 2, 1988. No exceptions
834to the Recommended Order were filed. Having fully considered the matter, the
846undersigned hereby adopts the Recommended Order, a copy of which is attached, as
859the Department's Final Order in this matter; except for the typographical error
871in the last line of Page 3 where the word "unleaded" should be "leaded" and is
887amended to read same.
891Based upon the foregoing, it is
897ORDERED that the respondent, Balm Grocery, pay as penalty the sum of $1,000
911and that the $1,000 bond is hereby applied to payment of the penalty.
925DONE AND ORDERED this 17th day of March, 1988.
934_________________________
935DOYLE CONNER
937Commissioner of Agriculture
940COPIES FURNISHED TO:
943K.N. Ayers, Hearing Officer
947Division of Administrative Hearings
951The Oakland Building
9542009 Apalachee Parkway
957Tallahassee, Florida 32399-1550
960Mrs. Tom Wingler Harry L. Michaels
966Palm Grocery Department of Agriculture and
972Post Office Box 66 Consumer Services
978Balm, Florida 324253 Room 513, Mayo Building
985Tallahassee Florida 32399-0800
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