DATE:	September 22, 2011
TO:	Office of Commission Clerk (Cole)
FROM:	Division of Economic Regulation (Draper) Office of the General Counsel (Crawford, Barrera)
RE:	Docket No. 100358-EI – Investigation into the design of Commercial Time-of-Use rates by Florida Power & Light, pursuant to Order No. PSC-10-0153-FOF-EI.
AGENDA:	10/04/11 – Regular Agenda – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Balbis
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\ECR\WP\100358.RCM.DOC

 

 Case Background

On May 11, 2011 the Commission issued Order No. PSC-11-0216-PAA-EI (PAA Order), Notice of Proposed Agency Action Order Declining To Require Florida Power & Light Company to File a New Commercial Time-Of-Use Rate, which found that there was not enough evidence that would support a new TOU rate for Florida Power & Light’s (FPL), commercial customers and declined to require FPL to file a new commercial TOU rate.  The Commission further ordered FPL to investigate whether fuel TOU factors based on marginal costs and/or summer and winter differentiation would benefit customers and provide system benefits and report back in testimony filed in the 2011 fuel proceeding.

On June 1, 2011 the Association For Fairness In Rate Making (AFFIRM) filed a Petition on Proposed Agency Action (Petition).  On June 21, 2011, FPL filed a Motion to Dismiss Affirm’s Petition on Proposed Agency Action, or in the alternative, Motion for a More Definite Statement.   On July 1, 2011, AFFIRM filed a Response to FPL’s motion.  On July 15, 2011, AFFIRM filed a Clarification of AFFIRM’S Response To Florida Power & Light Company’s Motion To Dismiss and Motion For More Definite Statement.

On September 8, 2011, AFFIRM filed a Notice of Voluntary Dismissal Without Prejudice (Notice), dismissing its Petition.  

This recommendation addresses AFFIRM’s Notice dismissing its protest and the appropriate disposition of this docket.  The Commission has jurisdiction over the subject matter pursuant to Sections 366.041, 366.05, 366.06 and 366.075, Florida Statutes (F.S.). 

  

 

Discussion of Issues

Issue 1:  Should the Commission acknowledge affirm’s Notice of Voluntary Dismissal Without Prejudice?

Recommendation: Yes, the Commission should acknowledge AFFIRM’s voluntary dismissal of its Petition and make Order No. PSC-11-0216-PAA-EI final and effective.  (Barrera)

Staff Analysis:  It is a well established legal principle that the plaintiff’s right to take a voluntary dismissal is absolute.[1]  Once a voluntary dismissal is taken, the trial court loses all jurisdiction over the matter, and cannot reinstate the action for any reason.[2]  Both of these legal principles have been recognized in administrative proceedings.[3]  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 AFFIRM’s Notice of Voluntary Dismissal Without Prejudice as a matter of right, which is in accord with past Commission decisions.[4] 

AFFIRM was the only entity that filed a protest of the PAA Order issued May 11, 2011.  The protest period for that order expired June 1, 2011.  There were no other protests to the PAA Order.  AFFIRM has now dismissed its protest.  As such, Order No. PSC-11-0216-PAA-EI should now become final and effective. 

Staff recommends that the Commission should acknowledge AFFIRM’s voluntary dismissal of its Petition and make Order No. PSC-11-0216-PAA-EI final and effective.

Issue 2:  Should this docket be closed?

Recommendation:  Yes.  No further action by the Commission is required in this docket and the docket should be closed.  (Barrera)

Staff Analysis:  No further action by the Commission is required in this docket and the docket should be closed.