DATE:	December 5, 2013
TO:	Office of Commission Clerk (Stauffer)
FROM:	Office of the General Counsel (Lawson) Office of Consumer Assistance and Outreach (Plescow) Division of Economics (Daniel)
RE:	Docket No. 060774-EI – Complaint of Frederick Smallakoff against Florida Power & Light Company concerning alleged improper bills, Case No. 696236E.
AGENDA:	12/17/13 – Regular Agenda – Decision on Motion for Reconsideration – Oral Argument Not Requested – Participation is at the Commission’s discretion
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Brisé
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None

 

 Case Background

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. Upon review of this second letter, the Commission issued Order No. PSC-13-0467-FOF-EI on October 14, 2013, denying Mr. Smallakoff’s second request for a formal hearing with prejudice and stating that Order No. PSC-13-0124-PAA-EI shall be effective and final.

 

On October 29, 2013, the Commission Clerk received a hand written letter from Mr. Smallakoff titled as a motion for reconsideration of Order No. PSC-13-0467-FOF-EI.  No request for oral argument was filed as required by Rule 25-22.0022, F.A.C.

 

This recommendation addresses Mr. Smallakoff’s filing and the appropriate disposition of Order No. No. PSC-13-0467-FOF-EI.  The Commission has jurisdiction pursuant to Section 366.04, Florida Statutes (F.S.).

 

Discussion of Issues

Issue 1: 

 Should Mr. Smallakoff’s motion for reconsideration in this matter be granted?

Recommendation: 

 No, the Commission should deny Mr. Smallakoff’s motion for reconsideration, as it does not identify any point of fact or law that was overlooked, or that the Commission failed to consider in rendering any of its decisions in this matter. (Lawson)

Staff Analysis: 

 

Standard of Review

The standard of review for a motion for reconsideration is whether the motion identifies a point of fact or law that the Commission overlooked or failed to consider in rendering its order.[1]  The alleged overlooked fact or law must be such that if it were considered, the Commission would reach a different decision than the decision in the order.[2]  In a motion for reconsideration, it is not appropriate to reargue matters that have already been considered.[3]  Furthermore, it is not necessary to respond to every argument and fact raised by each party, and “[a]n opinion should never be prepared merely to refute the arguments advanced by the unsuccessful litigant.”[4]

Analysis

 

            In his Motion for Reconsideration, Mr. Smallakoff asserted that final Order No. PSC-13-0467-FOF-EI did not address his complaints.  He stated he wished to re-apply the facts and evidence presented in his previous pleadings and provided a summary thereof.  He also stated that he believed that he had complied with Rule 28-106.201, F.A.C., in his two prior requests for a rehearing.  Mr. Smallakoff’s motion does not identify any point of fact or law that was overlooked, or that the Commission failed to consider in rendering any of its decisions in this matter.  Furthermore, Mr. Smallakoff’s letter does not allege any legal basis or argument of any kind in support of his motion.

 

A Motion for Reconsideration must demonstrate an omission in facts or law which, had they been considered, would have resulted in a different ruling by this Commission.[5]  Here, Mr. Smallakoff’s Motion for Reconsideration did not allege or show any omission of fact or law that could have resulted in a different ruling than that in Order No. No. PSC-13-0467-FOF-EI or any other ruling in this docket.  By explicitly repeating the exact same arguments that he presented at the September 25, 2013 Agenda Conference, Mr. Smallakoff is merely rearguing his position, rather than pointing out a matter of fact or law the Commission overlooked in rendering its decision.

Therefore, staff recommends that Mr. Smallakoff’s motion for reconsideration should be denied.

 

 

Issue 2: 

 Should this docket be closed?

Recommendation: 

 Yes.  If the Commission approves staff’s recommendation on Issue 1, this docket should be closed. (Lawson)  

Staff Analysis: 

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