DATE:	July 8, 2004
TO:	Director, Division of the Commission Clerk & Administrative Services (Bayó)
FROM:	Office of the General Counsel (Gervasi) Division of Economic Regulation (Kummer)
RE:	Docket No. 040208-EI – Consumer complaint against Florida Power & Light Company by Leticia Callard.
AGENDA:	07/02/04 – Regular Agenda – Interested Persons May Participate
CRITICAL DATES:		None
SPECIAL INSTRUCTIONS:		None
FILE NAME AND LOCATION:		S:\PSC\GCL\WP\040208.RCM.DOC

 

Case Background

On October 4, 2002, Mr. Jorge Callard filed a complaint with the Commission’s Division of Consumer Affairs (CAF) on behalf of his wife, Mrs. Leticia Callard (customer of record) against Florida Power & Light Company (FPL or utility). According to Mr. Callard, FPL has  inappropriately backbilled the Callard residence at 7860 SW 18th Terrace, Miami, Florida, in the amount of $9,398 for alleged unbilled energy, when the Callards had not diverted or otherwise tampered with the meter.  In response to the complaint, FPL stated that upon finding physical evidence of meter tampering, it backbilled Mrs. Callard’s account from January 2, 1997, when a noticeable and sustained drop in consumption began, until July 24, 2002, when a new meter was installed.  The original billing for this period, totaling $8,660.82, was canceled and rebilled at $17,591.79, showing a difference of $8,930.97, plus investigation charges of $348.21.  The total backbilled amount in dispute is $9,279.18 ($8,930.97 + $348.21).

Upon review of the complaint and FPL’s documentation and calculations provided in response thereto, by letter dated December 24, 2002, CAF advised Mrs. Callard that it appeared that FPL had backbilled her account in compliance with Commission rules, and that no adjustment was appropriate.  An informal conference was requested, and was held on June 25, 2003. Mrs. Callard asserted that she has paid FPL what she owes the company and that she will not pay any additional amount.  No agreement was reached.

By Proposed Agency Action Order No. PSC-04-0397-PAA-EI, issued April 16, 2004 (PAA Order), the Commission found there to be sufficient cause to determine that meter tampering occurred at the Callard residence to allow FPL to backbill the Callard account for unmetered kilowatt hours, and that because the account was in Mrs. Callard’s name during the entire period, she should be held responsible for a reasonable amount of backbilling.  The Commission determined the reasonable amount of backbilling to be in the amount of $9,279.18 plus investigative costs of $348.21.  Moreover, the Commission encouraged the customer to contact FPL immediately to make payment arrangements for that amount in order to avoid discontinuance of service without notice, which is authorized pursuant to Rule 25-6.105(5)(i), Florida Administrative Code. Finally, the Commission placed the customer on notice that pursuant to Rule 25-6.105(5)(f), Florida Administrative Code, FPL is also authorized, upon sufficient notice, to refuse or discontinue service for neglect or refusal to provide safe and reasonable access to the utility for the purpose of reading meters or inspection and maintenance of equipment owned by the utility.

The deadline for the filing of a petition for a formal proceeding in protest of the PAA Order was May 7, 2004.  On May 5, 2004, Mrs. Callard faxed a letter of protest to the Division of the Commission Clerk and Administrative Services.  Although the facsimile was received within the protest period, the Commission does not accept filings by facsimile.  On May 12, 2004, five days after the protest period expired, Mrs. Callard filed a copy of the letter of protest in the docket file.  A copy of the letter of protest is appended to this recommendation as Attachment A.  This recommendation addresses whether the late-filed request for hearing should be granted.

            The Commission has jurisdiction pursuant to Sections 366.05, 120.569, and 120.57, Florida Statutes, and administers consumer complaints pursuant to Rule 25-22.032, Florida Administrative Code.

Discussion of Issues

Issue 1:  Should the late-filed request for formal hearing on  PAA Order No. PSC-04-0397-PAA-EI be granted?

Recommendation:  Yes, the doctrine of equitable tolling should be invoked to grant the late-filed request for hearing.  Moreover, the request substantially complies with the requirements of Rule 28-106.201(2), Florida Administrative Code.  (Gervasi, Kummer)

Staff Analysis:  As stated in the case background, the deadline for the filing of a petition for a formal proceeding in protest of the PAA Order was May 7, 2004.  On May 5, 2004, Mrs. Callard faxed a letter of protest to the Division of the Commission Clerk and Administrative Services.  Although the facsimile was received within the protest period, the Commission does not accept filings by facsimile.[1]  Staff telephoned the Callard residence on May 5, 2004, to advise of same, but was told that Mrs. Callard is generally not available during the work day and that she returns home at approximately 8 p.m.  The staff attorney telephoned the residence at 9 p.m. that same evening, but there was no answer.  Therefore, a detailed voice mail was left advising that the protest period would end on May 7, 2004, and suggesting that Mrs. Callard should send her letter of protest via overnight mail.  On May 11, 2004, Mrs. Callard telephoned the staff attorney to advise that she did not access her voice mail until that day and that she would place her letter of protest in overnight mail immediately.  The next day, on May 12, 2004, five days after the protest period expired, a copy of the letter of protest was filed in the docket file.  FPL has not filed any type of responsive pleading to the request for hearing.

            This matter is governed by Section 120.569(2)(c), Florida Statutes, which covers administrative decisions affecting substantial interests, and provides, in pertinent part, that a petition or request for hearing shall be dismissed if it has been untimely filed.[2]  Additionally, Rule 28-106.111(4), Florida Administrative Code, states that “[a]ny person who receives written notice of an agency decision and who fails to file a written request for a hearing or mediation within 21 days waives the right to request a hearing or mediation on such matters.”

Equitable Tolling

            Florida courts have consistently held that the late filing of a request for an administrative hearing is not a jurisdictional defect.[3]  Failure to comply with a protest filing deadline is not an absolute bar to a hearing, but is more analogous to statutes of limitation, which are subject to equitable considerations such as tolling.[4]  “The doctrine [of equitable tolling] serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules.”[5]  The doctrine “is used in the interests of justice to accommodate . . . a plaintiff’s right to assert a meritorious claim when equitable circumstances have prevented a timely filing.”[6]  “Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.”[7]  The application of the doctrine is dependent, in part, upon a showing that the litigant has not “slept on its rights.”[8]

            The Commission has invoked the doctrine of equitable tolling in the past to allow a late-filed objection to stand,[9] and staff believes that the doctrine should be invoked to allow the late-filed protest to stand in this case. Mrs. Callard attempted to timely file her letter of protest by way of facsimile transmission.  She placed her letter of protest in overnight mail on the same day that she learned that the Commission does not accept filings by facsimile.  Therefore, she cannot be said to have “slept on her rights.”  Moreover, although the Notice of Further Proceedings or Judicial Review” attached to the PAA Order did not contain misleading language concerning her right to request a hearing, it also did not advise her of the Commission’s policy of not accepting filings by facsimile.

            Finally, staff notes that in prior cases, the Commission has accepted other late-filed protests when good cause has been demonstrated as to why the protest was untimely.[10]  An example most on point is contained in Order No. PSC-95-0630-FOF-TC.[11] In that case, Vocal Motion attempted to file a petition for a formal proceeding via facsimile transmission on the due date.  After learning that Commission Rules do not allow for such filings, Vocal Motion sent its pleading to the Commission via overnight mail.  In allowing the protest, the Commission stated that it was fair and appropriate to exercise its discretion in granting Vocal Motion's petition.

Rule 28-106.201(2), Florida Administrative Code

            Rule 28-106.201(2), Florida Administrative Code, requires petitions to contain, in pertinent part::

 

(b) The . . . telephone number of the petitioner . . .;

                                    * * *

(d) A statement of all disputed issues of material fact.  If there are none, the petition must so indicate;

(e) A concise statement of the ultimate facts alleged as well as the rules and statutes which entitle the petitioner to relief; . . .

            Although the request for hearing does not contain the petitioner’s phone number, Mrs. Callard has been contacted by Commission staff on numerous occasions and her phone number is on record at the Commission.  The request contains numerous statements of disputed issues of material fact.  Although there is not a concise statement of the ultimate facts alleged, or of the rules and statutes which entitle the petitioner to relief, it is obvious from the face of the petition that Mrs. Callard ultimately does not agree that she owes any backbilled amount.  Moreover, the rules and statutes which govern the proceeding and which would entitle Mrs. Callard to relief if she prevails are the same rules and statutes which vested the Commission with the jurisdiction to preliminarily rule on her complaint; namely Sections 366.03 and 366.05(1), Florida Statutes, and 25-6.104, Florida Administrative Code.

 

Summary

 

            For the foregoing reasons, staff recommends that the doctrine of equitable tolling should be invoked to grant the late-filed request for hearing, and that the late-filed request for hearing is in substantial compliance with Rule 28-106.201(2), Florida Administrative Code.

            Staff notes that general denials and nonspecific allegations contained in petitions are no longer sufficient, and that “agencies are to review petitions for completeness before forwarding them on to DOAH.”[12]  If the Commission concludes that the request for hearing in this case is not in substantial compliance with the rule, it should dismiss the request without prejudice to petitioner’s filing a timely amended petition curing the defect, pursuant to Rule 28-106.201(4), Florida Administrative Code. Staff further notes that Rule 28-106.201(5), Florida Administrative Code, requires the Commission to promptly give written notice to all parties of the action taken on the petition, state with particularity its reasons if the petition is not granted, and state the deadline for filing an amended petition if applicable.  Therefore, if the Commission finds that the request for hearing does not substantially comply with Rule 28-106.201, staff suggests that Mrs. Callard be given 21 days from the date of the Order to amend her petition to comply with Rule 28-106.201(2)(b), (d), and (e), Florida Administrative Code.

Issue 2:   Should Docket No. 040208-EI be closed?

Recommendation:  No, Docket No. 040208-EI should be kept open pending resolution of the protest to PAA Order No. PSC-04-0397-PAA-EI.  (Gervasi)

Staff Analysis:  Docket No. 040208-EI should be kept open pending resolution of the protest to PAA Order No. PSC-04-0397-PAA-EI.