Case Background
Section 366.03,
Florida Statutes (F.S.), states that each public utility shall furnish to each
person applying for service, reasonably sufficient, adequate, and efficient
service. The Commission has jurisdiction
as set forth in Section 366.04, F.S., to regulate and supervise each public
utility with respect to its rates and service.
Rule 25-22.032,
Florida Administrative Code (F.A.C.), implements Chapter 366, F.S., and
establishes informal customer complaint procedures that are designed to address
disputes, subject to the Commission’s jurisdiction, that occur between
regulated companies and individual customers.
Pursuant to this rule, any customer of a Commission-regulated company
may file a complaint with the Commission’s Office of Consumer Assistance and
Outreach whenever the customer has an unresolved dispute with the company
regarding electric, gas, water, or wastewater service.
On
May 1, 2017, Mr. Malcolm filed a petition for initiation of formal
proceedings. In the formal complaint,
Mr. Malcolm claimed that FPL has been “unjustly” awarded for allegedly “stolen”
electric services. Mr. Malcolm also
stated that he is not responsible for the services because he has never opened
an account with FPL or conducted business with FPL on his own behalf.
On
October 13, 2017, the Commission issued PAA Order No. PSC-2017-0389-PAA-EI,
Notice of Proposed Agency Action Order Denying Complaint by Richard Malcolm
Against Florida Power & Light Company (PAA Order), that established
November 3, 2017, as the date by which any protest to the PAA Order must be
made. On October 13, 2017, Commission
staff electronically provided Mr. Malcom a copy of Rule 28-106.201, F.A.C.,
Initiation of Formal Proceedings, to clarify the requirements for filing a
protest of the Commission’s PAA Order.
Mr.
Malcolm filed a protest of the PAA Order on October 13, 2017. In his “Protest Against Agency Ruling,” Mr.
Malcolm restates the arguments that he made in his petition for initiation of
formal proceedings. He seeks “equitable
relief” from FPL’s unjust award of alleged stolen revenue. He states that FPL’s bill is unreasonable,
the Commission has failed in its duty to regulate FPL’s charges, and FPL abused
its monopoly power by refusing to open an account in his name.
This
recommendation addresses the appropriate disposition of Mr. Malcolm’s petition
for formal hearing. The Commission has
jurisdiction over this matter pursuant to Section 366.04, F.S.
Discussion
of Issues
Issue 1:
Should the Commission dismiss on its own motion Mr.
Malcolm’s petition for failure to comply with the pleading requirements of Rule
28-106.201, F.A.C.?
Recommendation:
Yes, Mr. Malcolm’s petition for formal hearing on
his complaint against FPL should be dismissed for failure to comply with the
pleading requirements of Rule 28-106.201, F.A.C., without prejudice to file a
timely amended petition pursuant to Section 120.569(2)(c), F.S. Mr. Malcolm
should be given 10 days after the issuance of the Commission order dismissing
his petition to file an amended petition. (Page)
Staff Analysis:
Rule 28-106.201(2), F.A.C., prescribes the criteria
that must be included in a petition for an evidentiary proceeding:
(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;
(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 petitioner, stating
precisely the action petitioner wishes the agency to take with respect to the
agency’s proposed action.
The Commission has previously held pro se litigants such as Mr. Malcolm to a relaxed pleading standard
in order to prevent delay and promote resolution of parties’ disputes. However,
FPL needs to be put on notice by Mr. Malcolm as to what tariff, rule or statute
or Commission order it has allegedly violated.
As discussed in more detail below, Mr. Malcolm’s petition should be
dismissed for failure to meet the pleading requirements of subparagraphs (d),
(e), (f), and (g) of Rule 28-106.201(2), F.A.C.
Mr. Malcolm states
that he is “seeking equitable relief from this unjust Awarding to FPL 3 years
of alleged stolen revenue in the amount of $3,580.99.” The Commission does not
have jurisdiction to grant Mr. Malcolm’s request for equitable relief. See In
re: Amended Complaint of Qwest Communications Company, LLC against
MCImetro Access Transmission Services (d/b/a Verizon Access Transmission
Services) et al., Order No. PSC-13-0185-FOF-TP, Docket
No. 090538-TP, issued May 1, 2013.
Because this request for relief is not within the Commission’s
jurisdiction, the petition for formal hearing does not comport with Rule 28-106.201(g),
F.A.C.
He further states that he “has not
opened an account with FPL or conducted business with FPL on his behalf.” Mr.
Malcolm states “the bill is unreasonable and that FPL had a legal duty to
mitigate their loss.” These allegations do
not comply with the requirements of Rule 28-106.201 (d), (e), and (f), F.A.C.,
as they are not a statement of disputed issues of material fact or 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.
Mr. Malcolm’s petition cites to the Florida Supreme Court’s
opinion in Citizens of State of Florida
v. Graham, 191 So. 3rd 897 (Fla. 2016), which addressed the Commission’s
jurisdiction to consider FPL’s Woodford Project. The opinion has no relevance to Mr. Malcolm’s
complaint against FPL. Although he does cite
to certain sections of Chapter 366, F.S., these citations are not a statement
of the specific rules or statutes he contends require reversal or modification
of the PAA Order. This language fails to meet the requirements of Rule 28-106.201,
F.A.C.
Nowhere in his petition does Mr. Malcolm make reference to
the PAA Order that denied his complaint on the basis that FPL properly handled
his account in accordance with Commission
rules, statutes, and orders and FPL’s tariffs. Mr. Malcolm makes no statement
of the specific rules or statutes he contends require reversal or modification
of the PAA Order. He does not explain
how the alleged facts relate to the specific rules or statutes he contends
require reversal or modification of the PAA Order. Because of these
deficiencies, the petition does not comply with Rule 28-106.201(f), F.A.C.
Mr. Malcolm also states “the Public Service Commission has
failed in their duty to regulate FPL charges that are patently unfair and
unreasonable.” Pursuant to Section 366.05(1)(a), F.S., the Commission has the power
to prescribe “fair and reasonable rates and charges.” However, the PAA Order regarding Mr.
Malcolm’s complaint in no way addresses the establishment of rates and charges
for FPL. Thus, this allegation also
fails to meet any requirement of Rule 28-106.201, F.A.C.
In concluding his petition for formal hearing, Mr. Malcolm
states, “FPL abused its monopoly Power in demanding 3 years alleged revenue
loss and demanding payment within 48 hours even after being advised that a
complaint had been filed.” He further alleges,
“[i]n addition FPL abused its monopoly power by refusing to open an account in
my name after by[sic] dad had died on 10/20/2017 at 6:15 am.” The allegations of abuse of monopoly power
are not within the Commission’s jurisdiction pursuant to Chapter 366, F.S. Although
the claim that FPL refused to open an account in Mr. Malcolm’s name is within
the Commission’s jurisdiction, this allegation does not comply with any of the
required elements of a petition for formal hearing pursuant to Rule 28-106.201,
F.A.C.
Mr. Malcolm’s petition for formal hearing does not meet
the requirements of Rule 28-106.201, F.A.C.
Section 120.569(2)(c), F.S., states that the dismissal of a petition
that does not substantially comply with the requirements of Rule 28-106.201, F.A.C., shall, at least
once, be without prejudice:
Upon receipt of a petition or a
request for hearing, the agency shall carefully review the petition to
determine if it contains all of the required information. A petition shall be dismissed if it is not in
substantial compliance with these requirements or it has been untimely
filed. Dismissal of a petition shall, at
least once, be without prejudice to a petitioner’s filing a timely amended
petition, unless it conclusively appears from the face of the petition that the
defect cannot be cured.
Thus, Mr. Malcolm’s petition
should be dismissed with an opportunity to cure the defects in the petition.
Conclusion
Mr. Malcolm’s petition for formal hearing on his complaint
against FPL should be dismissed for failure to comply with the pleading
requirements of Rule 28-106.201, F.A.C., without prejudice to file a timely
amended petition pursuant to Section 120.569(2)(c), F.S. Mr. Malcolm should be
given 10 days after the issuance of the Commission order dismissing his
petition to file an amended petition.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. This docket should be closed if Mr. Malcolm
does not file an amended petition within 10 days of the issuance of the
Commission’s order dismissing his petition. (Page)
Staff Analysis:
This docket should be closed if Mr. Malcolm does not
file an amended petition within 10 days of the issuance of the Commission’s
order dismissing his petition.
