DATE:	March 4, 2010
TO:	Office of Commission Clerk (Cole)
FROM:	Office of the General Counsel (Jaeger) Division of Economic Regulation (Kummer) Division of Service, Safety & Consumer Assistance (Hicks)
RE:	Docket No. 090083-GU – Complaint of Sun City Center Community Association, Inc. against Peoples Gas System for alleged improper billing.
AGENDA:	03/16/10 – Regular Agenda – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			Edgar, Skop, Klement
PREHEARING OFFICER:			Klement
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\GCL\WP\090083.RCM.DOC

 

Case Background

            On February 16, 2009, the Sun City Center Community Association, Inc. (Customer or SCCCA) filed its formal complaint in this docket.  In the formal complaint, the Customer stated that the usage for the common areas of SCCCA was improperly switched in August 2005 from the GS-2 Service rate (commercial rate) to the Residential Service rate.  The Customer requested that it be moved back to the Commercial GS-2 Service rate (tariff), and that it receive a refund with interest of the difference between the two rates from the time the switch occurred in August 2005.

 

            In its response, the Peoples Gas System (Peoples or Company) alleged that it switched SCCCA to the Residential Service rate to comply with Commission Order 19365.[1]  Quoting that Order, Peoples stated that the Commission found “that gas utilities should consider service to commonly owned areas of condominium associations, cooperative apartments, and homeowner associations as residential service.”  In the case at hand, Peoples is providing gas for the heating of the community pool. 

 

            By Proposed Agency Action Order No. PSC-09-0661-PAA -GU (PAA Order), issued October 5, 2009, the Commission proposed to dispose of the formal complaint.  However, SCCCA timely protested the PAA Order and the PAA Order never became effective.  The protest was assigned to a panel of Commissioners and set for a formal hearing.  Order No. PSC-09-0853-PCO -GU (Order Establishing Procedure), issued December 30, 2009, set the controlling dates for the events in this proceeding.

 

            Stating that a settlement has been reached, the Customer filed its Revised Notice of Voluntary Withdrawal of Complaint on February 16, 2010, and requested that the hearing dates be canceled and the controlling dates be deleted.[2]  Pending the Commission’s consideration of the withdrawal, the request to cancel the hearing and delete the controlling dates was granted.[3]

 

            This recommendation addresses the Customer’s withdrawal of its complaint and whether this docket may now be closed.  The Commission has jurisdiction pursuant to Sections 366.04 and 366.05(1), Florida Statutes (F.S.).

           

Discussion of Issues

Issue 1: 

 Should the Commission acknowledge Sun City Center Community Association, Inc.’s (SCCCA’s) Revised Notice of Voluntary Withdrawal of Complaint?

Recommendation: 

 Yes, the Commission should acknowledge SCCCA’s voluntary withdrawal of its complaint.  With this withdrawal of the complaint, the Commission is divested of jurisdiction and the Proposed Agency Action Order No. PSC-09-0661-PAA-GU is a nullity. (Jaeger)

Staff Analysis: 

 It is a well established legal principle that the plaintiff’s right to take a voluntary dismissal is absolute.[4]  Once a voluntary dismissal is taken, the trial court loses all jurisdiction over the matter, and cannot reinstate the action for any reason.[5]  Both of these legal principles have been recognized in administrative proceedings.[6]  In Saddlebrook Resorts, Inc. v. Wiregrass Ranch, Inc., 630 So. 2d 1123, 1128 (Fla. 2d DCA 1993), the court concluded that “the jurisdiction of any agency is activated when the permit application is filed . . . . [and] is only lost by the agency when the permit is issued or denied or when the permit applicant withdraws its application prior to completion of the fact-finding process.”  In this case, the hearing has not yet occurred, so the fact-finding process is not complete.  Staff therefore recommends that the Commission acknowledge SCCCA’s withdrawal of its complaint as a matter of right, which is in accord with past Commission decisions.[7]  With this withdrawal of the complaint, the Commission is divested of jurisdiction and the Proposed Agency Action Order No. PSC-09-0661-PAA-GU is a nullity.  The Commission should further find that with the voluntary withdrawal of the complaint, there are no further actions required. 

            A voluntary dismissal does not affect the Commission’s jurisdiction as granted by the Legislature to protect Florida ratepayers.[8]  Staff notes that the problems raised in SCCCA’s complaint have been corrected in Peoples’ most recent rate case.[9]  Prior to the last rate case, all of Peoples residential customers initiating service after January 1988 took service under the RS rate, pursuant to Order No. 19365, even though the characteristics of the load could be similar to use by larger GS customers.  In its most recent rate case, the General Service classes were restructured to expand the eligibility of the GS-1 through GS-5 rate schedules to include residential use.  This allows the largest residential customers to be included with similarly-situated non-residential customers for pricing purposes based on their therm usage levels.  An additional benefit of this approach is that it clarifies the rights of condominium units to purchase their gas supply from a third-party pursuant to the Company’s transportation service program because all commercial customers must be offered the right to take transportation-only services under federal law.[10]  The deposit terms and conditions associated with residential service continue to apply to condominium customers that are reclassified to a GS rate schedule.[11]
Issue 2: 

 Should this docket be closed?

Recommendation: 

 Yes.  There are no further actions required in this docket and the docket should be closed.  (Jaeger)

Staff Analysis:  There are no further actions required in this docket and the docket should be closed.