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DATE: |
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TO: |
Office of Commission Clerk (Cole) |
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FROM: |
Office of the General Counsel (Brown) Office of Consumer Assistance and Outreach (Plescow) Division of Economics (Daniel) |
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RE: |
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AGENDA: |
09/25/13 – Regular Agenda – Interested Persons May Participate |
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COMMISSIONERS
ASSIGNED: |
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PREHEARING
OFFICER: |
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SPECIAL
INSTRUCTIONS: |
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In May 2006, Mr. Frederick Smallakoff filed an informal complaint against Florida Power & Light Company (FPL) alleging overbilling, improper levying of penalties and harassment by the utility. This informal complaint was assigned Case Number 696236E. After an investigation Commission staff found no evidence that the utility had acted improperly and notified Mr. Smallakoff of its findings on July 17, 2006. On December 1, 2006, the Office of Public Counsel forwarded a letter from Mr. Smallakoff filing a formal complaint concerning this matter. By Proposed Agency Action Order No. PSC-13-0123-PAA-EI, issued March 13, 2013, the Commission denied Mr. Smallakoff’s complaint on the grounds that after a thorough investigation by Commission staff there was no evidence that the utility had improperly billed the customer or improperly assessed any penalties or other fees.
Any person whose substantial interests were affected by the proposed action could file a petition for a formal proceeding, in the form provided by Rule 28-106.201, Florida Administrative Code (F.A.C.). On April 3, 2013, the Commission Clerk received a hand-written letter from Mr. Smallakoff purporting to request a formal proceeding. Order No. PSC-13-0183-PCO-EI was issued on April 30, 2013, denying Mr. Smallakoff’s request for a hearing, and allowing Mr. Smallakoff leave to refile his request in compliance with the requirements of the rule. On May 21, 2013 the Commission Clerk received a second hand-written letter from Mr. Smallakoff purporting to request a formal proceeding.
This recommendation addresses Mr. Smallakoff’s filing and the appropriate disposition of Order No. PSC-13-0123-PAA-EI. The Commission has jurisdiction pursuant to Chapter 366.04, Florida Statutes (F.S.)
Issue 1:
Should the Commission grant Mr. Smallakoff’s request for a hearing pursuant to Rule 28-106.201, F.A.C.?
Recommendation:
No. Mr. Smallakoff’s letter received May 21, 2012 does not meet the requirements outlined in Rule 28-106.201, F.A.C., particularly with regard to paragraphs 2(c), 2(d), 2(e), 2(f) and 2(g). Therefore Mr. Smallakoff’s request for a hearing should be denied with prejudice and Order No. PSC-13-0123-PAA-EI should be made final. (Lawson)
Staff Analysis:
When the Commission issues an order as a proposed agency action any person whose substantial interests are affected by the action proposed in the order may file a petition for a formal hearing, provided it meets the requirements outlined in Rule 28-106.201, F.A.C. Any substantially affected person generally has twenty-one days from the issuance of the order to file a petition with the Commission Clerk.
Rule 28-106.201(2), F.A.C., states that any request for a hearing must meet certain requirements including:
(a)
The
name and address of each agency affected and each agency’s file or
identification number, if known;
(b)
The
name, address, any e-mail address, any facsimile number, and telephone number of
the petitioner, if the petitioner is not represented by an attorney or a
qualified representative; the name, address, and telephone number of the
petitioner’s representative, if any, which shall be the address for service
purposes during the course of the proceeding; and an explanation of how the
petitioner’s substantial interests will be affected by the agency
determination;
(c)
A
statement of when and how the petitioner received notice of the agency
decision;
(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, including the specific facts
the petitioner contends warrant reversal or modification of the agency’s
proposed action;
(f)
A
statement of the specific rules or statutes the petitioner contends require
reversal or modification of the agency’s proposed action, including an
explanation of how the alleged facts relate to the specific rules or statutes;
and
(g)
A
statement of the relief sought by the petitioner, stating precisely the action
petitioner wishes the agency to take with respect to the agency’s proposed
action.
Mr. Smallakoff’s first letter received on April 3, 2013 did not meet the requirements outlined in Rule 28-106.201, F.A.C., particularly with regard to paragraphs 2(c), 2(d), 2(e), 2(f) and 2(g) as described above. Therefore, Mr. Smallakoff’s request for a hearing was denied pursuant to Order No. PSC-13-0183-PCO-EI, with leave for him to re-file a petition for a formal proceeding by May 21, 2013. That order also instructed Mr. Smallakoff that any such petition must substantially conform to the requirements of Rule 28-106.201, F.A.C., a copy of which was attached to the Order.
On May 21, 2013, the Commission Clerk received a second letter from Mr. Smallakoff purporting to request a formal proceeding. This second letter again failed to materially comply with the requirements outlined in Rule 28-106.201, F.A.C., particularly with regard to paragraphs 2(c), 2(d), 2(e), 2(f) and 2(g) as described above.
Since Mr. Smallakoff has had two opportunities to submit a petition for a formal proceeding and neither request substantially or materially complies with Rule 28-106.201, F.A.C., his request for a hearing should be denied. Since the opportunity to refile his petition for a hearing effectively extended the time for filing well past the twenty-one days normally afforded individuals who wish to protest a proposed agency action, Mr. Smallakoff has had more than ample opportunity to properly file a request for formal hearing and the time for filing such a request has expired. Therefore, Mr. Smallakoff’s request for a hearing should be denied with prejudice. Order No. PSC-13-0123-PAA-EI should accordingly be issued as final agency action.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If the Commission agrees with staff’s recommendation on Issue 1, this docket should be closed. (Lawson)
Staff Analysis:
If the Commission agrees with staff’s recommendation on Issue 1, this docket should be closed.