DATE:	March 25, 2010
TO:	Office of Commission Clerk (Cole)
FROM:	Office of the General Counsel (Brown) Division of Economic Regulation (Lee) Division of Regulatory Analysis (Matthews, Ellis)
RE:	Docket No. 090146-EQ – Petition by Tampa Electric Company for approval of extension of small power production agreement with City of Tampa.
AGENDA:	04/06/10 – Regular Agenda – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Edgar
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\GCL\WP\090146.RCM.DOC

 

 Case Background

Tampa Electric Company (TECO) filed a petition on March 23, 2009, requesting Commission approval of an extension to a small power production agreement with the City of Tampa.  The power is produced at the City’s McKay Bay Refuse to Energy Facility, a municipal solid waste-fired steam turbine generator, located in Hillsborough County, Florida.  At its September 15, 2009, Agenda Conference, the Commission deferred consideration of TECO’s petition upon the assertion by TECO that the parties would review the proposed contract and attempt to renegotiate some of its terms.  Those additional negotiations were not successful, and on March 16, 2010, TECO filed its Notice of Withdrawal of Petition for Approval of Extension of Small Power Production Agreement, in which it voluntarily withdrew its petition without prejudice to refile at a later date.

This recommendation addresses TECO’s voluntary withdrawal.  The Commission has jurisdiction over this matter pursuant to Sections 366.051 and 366.81, Florida Statutes (F.S.).

 

Discussion of Issues

Issue 1: 

 Should the Commission acknowledge Tampa Electirc Company’s withdrawal of its petition for approval of extension of small power production agreement?

Recommendation: 

 Yes, the Commission should acknowledge Tampa Electric Company’s voluntary withdrawal of its petition for approval of extension of small power production agreement as a matter of right.  (Brown)

Staff Analysis: 

 The law is clear that a plaintiff's right to take a voluntary dismissal is absolute if the dismissal is taken before the fact-finding process is completed and the matter is not yet before the decision-maker for final resolution.  Fears v. Lunsford, 314 So. 2d 578, 579 (Fla. 1975).  It is also established civil law that once a timely voluntary dismissal is taken, the trial court loses its jurisdiction to act and cannot revive the original action for any reason.  Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68, 69 (Fla. 1978).  Both of these legal principles have been recognized in administrative proceedings.[1]  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 Commission has not reached a final decision on whether to approve TECO’s extension of its small power production agreement with the City of Tampa.  Thus, TECO can dismiss its petition as a matter of right.  This is consistent with past Commission decisions.[2]  Staff recommends that the Commission acknowledge TECO’s voluntary withdrawal of its petition.  That withdrawal divests the Commission of further jurisdiction in this docket.

Issue 2: 

 Should the docket be closed?

Recommendation: 

 Yes.  If the Commission approves staff’s recommendation in Issue 1, the docket should be closed.  (Brown)

Staff Analysis: 

 If the Commission approves staff’s recommendation is Issue 1, the docket should be closed.