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 Case Background

On May 6, 2013, Brian Ricca purchased an unfinished, residential home in North Port, Florida.  At the time Mr. Ricca purchased the home, Mr. Ricca was aware the structure was neither substantially complete nor possessed electric utility service.[1]  After purchasing the home, Mr. Ricca contacted FPL and began discussions for the installation of new electric service to the home.  FPL initially advised Mr. Ricca that the installation costs for providing electric service to the home would be approximately $60,000. 

On July 8, 2013, Mr. Ricca contacted the Commission’s Consumer Assistance Bureau and lodged a complaint against Florida Power & Light Company (FPL) concerning the estimate of contribution-in-aid-of-construction (CIAC) required by FPL to provide new overhead electric service to the unfinished home.  Mr. Ricca stated that FPL’s quote of $60,000 was excessive and that, because FPL was the only electric utility and his home was the first and only structure built in the neighborhood, he should not have to pay the cost of providing electric service to the home.[2]

On or about July 11, 2013, FPL provided the Commission and Mr. Ricca with a written estimate in the amount of $55,325.59, for the CIAC cost for installing new overhead electric service to the home.[3] Mr. Ricca was not satisfied with FPL’s estimate, believing the estimate to be excessive.[4]  Mr. Ricca requested Commission staff review the estimate and assist him in getting FPL to reduce the CIAC costs, and continued to dispute the estimates with FPL.[5] 

On or about August 5, 2013, FPL provided Mr. Ricca with two additional written estimates for the CIAC costs of installing new electric service to the home.  One estimate was a revised estimate for the CIAC cost for installing new overhead electric service to the home using a different route than the route previously estimated by FPL in July 2013.  The CIAC estimate for the alternate overhead route was $40,706.16.[6]  The second estimate was for the CIAC cost for installing new underground electric service to the home in the amount of $31,850.85.[7] 

After receiving three different estimates for the cost of installing new service, Mr. Ricca continued to be dissatisfied with FPL’s estimates, asserting that the estimates were obviously erroneous, and requested the Commission review the estimates.  In addition, Mr. Ricca consulted with Mr. William D’Onofrio, a Certified Public Accountant in Ohio with utility experience, concerning the FPL estimates.[8]  Based on his utility experience in Union County Ohio, Mr. D’Onofrio concurred with Mr. Ricca that FPL’s estimates were “excessive.”[9]  Commission staff reviewed the three estimates provided by FPL and determined the estimates were calculated in accordance with Commission rules and applicable tariffs.[10] Despite Commission staff’s review, Mr. Ricca continued to believe the estimates were erroneous, FPL had committed a violation by providing an erroneous estimate, and requested Commission staff order FPL to waive or drastically reduce the CIAC costs.[11] 

At Mr. Ricca’s request, a formal review of Mr. Ricca’s complaint was also performed by Commission staff, pursuant to Rule 25-22.032, Florida Administrative Code (F.A.C.).  During the formal review, staff discovered no evidence FPL violated any rule or statute and that the CIAC estimates provided to Mr. Ricca were calculated in accordance with Rule 25-6.064, F.A.C., and FPL’s Commission-approved tariff.[12] A copy of Rule 25-6.064, F.A.C., “Contribution-in-Aid-of-Construction for Installation of New or Upgraded Facilities” and FPL’s Tariff Sheet 6.199 Section 11 CIAC are attached hereto as Attachments 1 and 2.

On December 2, 2013, Mr. Ricca’s informal complaint was closed.  Mr. Ricca was advised that, if he remained unsatisfied with staff’s findings on his informal complaint, he could file a formal complaint with the Commission, pursuant to Rule 25-22.036, F.A.C.  On December 5, 2013, Mr. Ricca filed a formal complaint against FPL and requested a formal hearing.[13]

The Commission has jurisdiction over this matter pursuant to Chapter 366, Florida Statutes.
Discussion of Issues

Issue 1: 

 Should Florida Power & Light Company's Motion to Dismiss be granted?

Recommendation: 

 Yes. Staff recommends that the Commission grant FPL’s Motion to Dismiss and dismiss the complaint without prejudice because the complaint fails to demonstrate a cause of action upon which relief can be granted. (Corbari, Forsman, Graves)

Staff Analysis: 

Standard of Review

A motion to dismiss challenges the legal sufficiency of the facts alleged in a petition to state a cause of action.[14]  In order to sustain a motion to dismiss, the moving party must show that, accepting all allegations as true, the petition still fails to state a cause of action for which relief may be granted.[15]  The moving party must specify the grounds for the motion to dismiss, and all material allegations must be construed against the moving party in determining if the petitioner has stated the necessary allegations.[16]  A sufficiency determination should be confined to the petition and documents incorporated therein, and the grounds asserted in the motion to dismiss.[17]  Thus, “the trial court may not look beyond the four corners of the complaint, consider any affirmative defenses raised by the defendant, nor consider any evidence likely to be produced by either side."[18] All allegations in the petition must be viewed as true and in the light most favorable to the petitioner in order to determine whether there is a cause of action upon which relief may be granted.[19]  Finally, pursuant to Section 120.569(2)(c), F.S., a petition shall be dismissed at least once without prejudice unless it conclusively appears from the face of the petition that the defect cannot be cured.[20]  

Mr. Ricca’s Complaint

On December 5, 2013, Mr. Ricca filed a one-page letter requesting a formal hearing, alleging FPL violated Section 366.03, F.S., by providing “inefficient service due to internal errors within the original quote for CIAC charges.”[21]  Mr. Ricca asserts that he discovered a shorter and cheaper route for providing service to his home.  Mr. Ricca claims that, had he not discovered the shorter and cheaper route and paid the original quote provided by FPL, he would have “overpaid by a large sum,” which is an unacceptable error.[22]  Mr. Ricca argues the “law requires the utility to provide reasonable efficient service which would not only mean the shortest route but also timely service . . . [and] such a large delay and the risk of overpayment” is not reasonable.[23]  Therefore, Mr. Ricca seeks “compensation such that the utility company’s requested CIAC charges be waived or drastically reduced.”[24]

FPL’s Motion to Dismiss with Prejudice

            On January 7, 2014, FPL filed a motion to dismiss Mr. Ricca’s complaint, seeking dismissal of Mr. Ricca’s request for formal hearing with prejudice.[25]  In its motion, FPL asserts several grounds for dismissing Mr. Ricca’s complaint.

First, FPL argues that Mr. Ricca’s complaint fails to meet the pleading requirements of a complaint, pursuant to Rule 25-22.036, F.A.C.[26]  Specifically, FPL asserts that Mr. Ricca’s complaint: (1) “fails to identify, with any specificity, the rule, order, or statute that allegedly has been violated or the actions that constitute the violation;” (2) fails to “provide any statement, or include any documentation that shows an act or omission [by FPL] that violates any” statute, rule or order; (3) “fails to show any injury suffered as a result of the alleged actions or omissions by FPL;” and (4) is “vague as to both the operative facts and the law” for which relief is sought that it is impossible for FPL to formulate a response and “would be impossible for the Commission to properly render a decision on the complaint.”[27]

Second, FPL argues that Mr. Ricca’s complaint fails to state a cause of action upon which relief can be granted.[28]  Specifically, FPL asserts that the relief sought by Mr. Ricca is not such that can be granted by the Commission.  Mr. Ricca’s complaint requests that the Commission order FPL to drastically reduce or waive the CIAC cost that FPL has calculated, in accordance with Rule 25.6.064, F.A.C., and its CIAC Tariff, in order to extend service to Mr. Ricca’s home.  FPL asserts Mr. Ricca’s complaint does not cite any “statute, rule, or tariff that requires FPL to reduce or waive the CIAC” because there is “no such statute, rule or tariff.”[29]

Finally, FPL argues that Mr. Ricca’s complaint should be dismissed with prejudice because re-pleading could not state a cause of action for which relief could be granted.[30]  FPL asserts that, because the relief sought by Mr. Ricca is not available, Mr. Ricca’s complaint “cannot be re-plead in a way that states a cause of action for which such relief can be granted.”[31]

Mr. Ricca’s Response to FPL’s Motion to Dismiss

On January 8, 2014, Mr. Ricca filed a response to FPL’s motion to dismiss.[32]  Mr. Ricca argues his complaint is sufficient based on “the docket being established” by the “PSC filing clerk . . . according to the law and their jurisdiction.”[33]  Mr. Ricca asserts that FPL told him that “if the PSC finds that a violation has occurred, and the PSC makes the recommendation for the ciac [sic] charges to be waived, they would likely comply.”[34] Mr. Ricca claims FPL violated the law by providing estimates for new service that were “so outrageous and obviously incorrect” because FPL is required to provide service.[35]  As a result of FPL’s actions, Mr. Ricca has suffered “unnecessary hassle, loss of time and financial consequences within daily business activities . . . [and] took way from my family time and daily business routine.”[36]  Finally, Mr. Ricca argues the “FPSC is fully within their right and jurisdiction to hear cases in which excessive fees are being charged, and also to grant relief for such cases” because the “FPSC is in place for providing relief to the public amongst utility matters . . ..”[37]

Analysis

            The Commission grants a motion to dismiss upon a finding that the pleading failed to state a cause of action upon which relief can be granted.[38]  Rule 25-22.036(2), F.A.C., outlines the procedure for filing a formal complaint.[39]  A pleading that conforms to this rule outlines the act or omission that constitutes the violation, the statute that is violated, injury suffered, and remedy or penalty sought.[40]  Here, Mr. Ricca’s complaint fails to comply with the requirements of Rule 25-22.036(2), F.A.C., as there was no assertion of an act or omission by FPL that resulted in a violation affecting Mr. Ricca’s substantive interest. 

Mr. Ricca asserts that FPL violated Section 366.03, F.S., by failing to provide him with efficient service “due to internal errors within the original quote for CIAC charges.”[41]  Section 366.03, F.S., provides for the “General Duties of Public Utility,” requiring public utilities to furnish “reasonably sufficient, adequate, and efficient service upon terms as required by the commission” to each person applying for service.[42] The statute does not require utilities to install new service free of charge.  The statute only requires the service be sufficient, adequate and efficient and comply with Commission requirements. 

Commission Rule 25-6.064, F.A.C., outlines the procedures and terms utilities must follow in determining CIAC costs for providing new service. Subsection 6 provides that CIAC cost calculations are “based on estimated work order jobs” and “each utility shall use its best judgment . . ..”  Per Mr. Ricca’s request and pursuant to Rule 25-6.064(9), F.A.C., Staff reviewed all the CIAC estimates provided by FPL and believed the estimates were calculated in accordance with Commission rules and FPL’s Commission-approved, tariff provision. Furthermore, staff notes that both Rule 25-6.064(6), F.A.C., and FPL’s Tariff provide for a true-up procedure for determining the actual CIAC costs. Rule 25-6.064(6), F.A.C., and FPL’s Tariff permit a customer to request a review of CIAC costs paid for new or upgraded service within “12 months following the in-service date of the new or upgraded facilities.”[43]  FPL’s Tariff Sheet 6.199, Section 11.1.2, provides that “if the true-up calculation result is different from the paid CIAC amount, the Company will either issue a refund or an invoice for the difference.”[44]

            In Order No. PSC-99-1054-FOF-EI, this Commission determined that a petitioner must show the elements of the substantive law violated and properly allege the cause of action.[45]  Here, Mr. Ricca states that FPL violated Section 366.03, F.S., by providing “inefficient service due to internal errors within the original quote for CIAC charges;” however, his complaint fails to describe or provide documentation of what errors occurred or describe how the errors violated any requirement.  As a result, staff believes Mr. Ricca’s complaint fails to state the required elements of a cause of action.

            Staff is sensitive to Mr. Ricca’s circumstances, and despite the lack of a legally sufficient pleading, has attempted to determine whether amendment of the complaint could lead to a situation where the Commission would have jurisdiction to grant Mr. Ricca some relief.  Commission Rule 25-6.064, F.A.C., outlines the procedures and terms utilities must follow in determining CIAC costs for providing new service. In particular, subsection 7 provides that a utility “may elect to waive all or any portion of the CIAC for customers . . ..” (emphasis added).[46]  The Rule provides the utility with discretion to waive CIAC costs for a customer. While the Commission has authority under 366.03 and 366.05, F.S., to ensure that all rates and charges are fair and reasonable, there is no provision in Rule 25-6.064, F.A.C., or any other statute or rule that provides the Commission with authority to order a utility to waive CIAC costs for a customer. In this instance, staff believes that Mr. Ricca’s requested relief, of a waiver or “drastic” reduction of the CIAC costs as damages for the alleged violation and delay of service, is not within the Commission’s jurisdiction.[47]  Finally, Rule 25-6.064, F.A.C., reflects the “Commission’s long-standing policy that, where practical, the person who ‘cause’ costs to be incurred should bear the burden of those costs.”[48]  As a result, staff believes Mr. Ricca’s complaint seeks relief that is not within the Commission’s authority to grant.

Staff recommends that the Commission grant FPL’s motion to dismiss because when viewed within the “four corners of the complaint” exclusive of all affirmative defenses/responses, assuming all alleged facts are true, and in a light most favorable to Mr. Ricca, the complaint fails to state a cause of action that would invoke the Commission’s jurisdiction or permit the Commission to grant the relief requested.  Mr. Ricca has not plead specific facts or produced documentation to support FPL violated any Commission statute, rule or order.  In addition, Mr. Ricca requests relief that cannot be granted by the Commission.

Staff recommends, however, that Mr. Ricca’s complaint be dismissed without prejudice in accordance Section 120.569(2)(c), F.S., and Mr. Ricca be permitted to file an amended complaint.  Should Mr. Ricca choose to file an amended complaint, staff recommends that the complaint conform to the pleading requirements of Rule 28-106.201, F.A.C., and seek relief within the Commission’s jurisdiction.

Conclusion

Staff recommends that the Commission grant FPL’s Motion to Dismiss and dismiss the complaint without prejudice because the complaint fails to demonstrate a cause of action upon which relief can be granted.

Issue 2: 

 Should the docket be closed?

Recommendation: 

 No.  If the Commission agrees with staff regarding Issue 1, then Mr. Ricca’s request for formal hearing complaint should be dismissed without prejudice, and Mr. Ricca be permitted to file an amended complaint.  Should Mr. Ricca fail to timely file an amended complaint, the docket should be administratively closed.  (Corbari)

Staff Analysis: 

 If the Commission agrees with staff regarding Issue 1, then Mr. Ricca’s request for formal hearing complaint should be dismissed without prejudice, and Mr. Ricca be permitted to file an amended complaint.  Should Mr. Ricca fail to timely file an amended complaint, the docket should be administratively closed.