90-001145 Department Of Agriculture And Consumer Services vs. Hudson Oil Company Status: Closed Recommended Order on Friday, November 2, 1990.

Summary: Whether respondent's bond posted in lieu of confiscation of polluted petroleum should be refunded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1145

)

HUDSON OIL COMPANY, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a public hearing in this

case on July 20, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Clinton H. Coulter, Jr., Esquire

Department of Agriculture

and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: John H. Newburn

1000 Ninth Street North

St. Petersburg, Florida 33705

STATEMENT OF THE ISSUE

Whether or not Respondent's $1,000.00 bond posted in lieu of confiscation

of its petroleum products should be refunded.

PRELIMINARY STATEMENT

On August 31, 1989, Petitioner charged Respondent with selling polluted

gasoline and failing to prominently display on its pumps the fact that its

unleaded and premium unleaded gasoline contained ethanol. Petitioner and

Respondent entered into a release agreement whereby Respondent posted a

$1,000.00 bond in lieu of confiscation of its gasoline. Respondent here seeks a

refund of its bond contending that the fine is excessive and/or was

inappropriately levied.

At the hearing, Petitioner presented the testimony of its inspector, Henry

J. Crafa and Respondent presented the testimony of John H. Newburn.

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:

1. i s t h e o w n e r o f a r e t a i l g a s o l i , n y a  R e s p o n d e n t , H u d s o n O i l C o m p n e

outlet located at 1000 Ninth Street North, St. Petersburg, Florida. John H.

Newburn is the manager of Respondent's retail station.

2. r t m e n t o f A g r i c a u t u r e a n d C o n s u m l e p D  O n A u g u s t 2 5 , 1 e 9 9 , P e t i t i o n e r , 8 r

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.

3. s t a k e n f r o m R e s e p n d e n t ' s f a c i l i o l p m  I n s p e c t o r C r a f a s u b m i t t e d t h e s a t y

to Petitioner's laboratory for analysis.

4. a t o r y a n a l y s i r s e v e a l e d t h a t t r h o a  T h e r e s u l t s o b f e t i t i o n e r ' s l P e

unleaded and premium gasoline contained ethanol.

5. e a l e d t h a t R e s v p n d e n t ' s r e g u l o e r s  A d d i t i o n a l l y , t h e l a b a n a l y s i a r

gasoline contained water.

6. o n d e n t ' s p r e m p i m u n l e a d e d h a d u s e R  T h e l a b a n a l y s i s r e v e a l e d t h a t a n

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.

7. h e R e s p o n d e n t ' t s n l e a d e d g a s o l i u n t h  T h e l a b a n a l y s a i a l s o r e v e a l e d t s e

contained 10.5% ethanol and the premium unleaded gasoline contained 8.8%

ethanol.

8. i o n o n A u g u s t 2 t 5 1 9 8 9 , t h e r e w e , c e p  A t t h e t i m e o f P e t i t i o n e r ' s i n s r e

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.

9. p e c t i o n , R e s p o n d e n t ' s f u e l t a n s k n s  A t t h e t i m e o f I n s p e c t o r C r a f a ' i s

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.

10. s s u e d a " S t o p S a l e N o t i c e " f i r e n  O n A u g u s t 3 1 o , 9 8 9 , P e t i t i o 1 r

Respondent's unleaded and premium unleaded gasoline.

11. e r t o g a i n r e l e d a e a n d p o s s e s s i s o r n  I n l i e u o f c o n o f s c a t i o n , a n d i i n

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.

CONCLUSIONS OF LAW

12. a r i n g s h a s j u r e i d i c t i o n o v e r t s h H v  T h e D i v i s i o n e o A d m i n i s t r a t i f e

subject matter of and the parties to this action pursuant to Section 120.57(1),

Florida Statutes.

13. e r i v e d f r o m C h d a t e r 5 2 5 , F l o r i p s i r  T h e a u t h o r i t y o f t h e P e t i t i o n e d a

Statutes and Rule Chapter 5F-2, Florida Administrative Code.

14. e s , a u t h o r i z e t s h e D e p a r t m e n t t u t a  S u b s e c t i o n 5 2 5 . 0 6 , F l o r i d a S t t o

confiscate and/or sell gasoline fuels which are declared to be illegal or

substandard.

15. v i n c i n g e v i d e n c e w h i c h i n d i c a t n e o d  P e t i t i o n e r p r e s e n t e d c l e a r a n c d

that Respondent sold or offered for sale, gasoline which was below standard

because it was found to have an Antiknock Index more than 1% below the posted

specification. By so doing, Petitioner engaged in proscribed conduct within the

purview of Subsection 5F-2.002(1)(b), Florida Administrative Code.

16. r a n d c o n v i n c i n g e v i d e n c e , t h a a e c  P e t i t i o n e r e s t a b l i s h e d , b y l t

Respondent failed to properly display the fact that its unleaded and premium

unleaded gasoline contained ethanol. Respondent thereby engaged in conduct in

violation of Subsections 5F-2.003(7)(a) and (b), Florida Administrative Code.

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

[phone]

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

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 contact 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.