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.
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
September 8, 2016, Devonson Walker filed an informal complaint with the
Commission against Florida Power & Light Company (FPL). In his complaint, Mr. Walker stated that he
wanted FPL to return his deposit for electric service because his electric
service was being provided by solar panels only since February 2016. Later, on September 13, 2016, Mr. Walker
filed a second complaint stating that he was trying to establish service with
FPL but the service was being denied because of an unpaid final balance. He states that FPL billed and overbilled him
for “services not rendered.” FPL backbilled him due to meter tampering at his
premises and billed him for investigative costs related to FPL’s investigation
of the meter tampering.
On
May 1, 2017, staff advised Mr. Walker that his informal complaint had been
reviewed and that staff found that FPL had made a total credit adjustment of
$322.61 to his account. Staff also
informed Mr. Walker that he had an opportunity to file a petition for formal
proceedings.
Mr.
Walker filed a petition for initiation of formal proceedings on May 26,
2017. In the formal complaint, Mr.
Walker claims that he notified FPL that electric service was no longer needed
at his address. Mr. Walker further
alleges that on three separate occasions FPL entered his property without
provocation or probable cause and that FPL did not have a permit to enter his
property in violation of the Fourth Amendment to the U.S. Constitution and Article
I, Section 12 of the Florida Constitution.
He also charges that FPL “billed and overbilled” for electric service
not provided by FPL.
On
June 16, 2017, FPL filed a Motion to Dismiss the Complaint. FPL asserts that the complaint does not
comply with Rule 25-22.036, F.A.C., because it fails to state the rule, order,
or statute that has allegedly been violated by FPL and does not state any cause
of action for which relief could be granted by the Commission. Mr. Walker has not filed a response to the Motion
to Dismiss the Complaint or provided any other information in support of his
complaint.
This
recommendation addresses whether FPL’s Motion to Dismiss the Complaint should
be granted and the appropriate disposition of Mr. Walker’s complaint against
FPL. The Commission has jurisdiction
over this matter pursuant to Section 366.04, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant FPL’s Motion to Dismiss
the Complaint?
Recommendation:
The Commission should grant in part and deny in part
FPL’s Motion to Dismiss the Complaint. (Page)
Staff Analysis:
In its Motion to Dismiss the Complaint, FPL asserts
that Mr. Walker’s formal complaint should be dismissed because it fails to
follow the pleading requirements of Rule 25-22.036, F.A.C. FPL states that the Complaint fails to contain
the rule, order, or statute that FPL has violated, and does not state a cause
of action for which relief could be granted by the Commission.
To sustain a motion to dismiss, the moving party must show
that, accepting all allegations as true, the petition fails to state a cause of
action for which relief may be granted. Varnes
v. Dawkins, 624 So. 2d 349, 350 (Fla. 1st DCA 1993). 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. Matthews v. Matthews,
122 So. 2d 571 (Fla. 2d DCA 1960). A
sufficiency determination is confined to the petition and documents
incorporated therein and the grounds asserted in the motion to dismiss. Varnes
at 350. 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.” Id. 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. See, e.g.,
Ralph v. City of Daytona Beach, 471
So. 2d 1173 (Fla. 4th DCA 2000); Kest v.
Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1986); Ocala Loan Co. v. Smith, 155 So. 2d 711, 715 (Fla. 1st DCA 1963).
Section 120.569(2)(c), F.S., states that the Commission
shall dismiss a petition for failure to substantially comply with the uniform
rules. Section 120.569(2)(c), F.S.,
provides that the dismissal of a petition should, at least once, be without
prejudice to the petitioner to allow the filing of a timely amended petition curing
the defect, unless it conclusively appears from the face of the petition that
the defect cannot be cured. However, the
Commission has previously held pro se
litigants such as Mr. Walker to a relaxed pleading standard in order to prevent
delay and promote resolution of parties’ disputes.
Rule 25-22.036, F.A.C., prescribes the criteria that must
be addressed in a petition for initiation of formal proceedings:
1.
The rule, order, or statute that has been violated;
2.
The actions that constitute the violation;
3.
The name and address of the person against whom the
complaint is lodged;
and
4. The
specific relief requested, including any penalty sought.
In his petition for initiation of formal proceedings, Mr.
Walker alleges that FPL has billed and overbilled him for services not
rendered. He also states that he
notified FPL that electric service was no longer required and requested that
his meter be removed.
Staff believes that the petition states a cause of action
within the Commission’s jurisdiction as provided in subsection 366.04(1), F.S.,
and should not be dismissed. Mr. Walker’s allegations concern FPL’s billing and
overbilling him for electric service not provided. As stated by FPL in its Motion to Dismiss the
Complaint, the petition is about Mr. Walker’s disagreement with FPL’s billing
of his account for services rendered.
Staff believes that these allegations relate to FPL’s rates and service
for Mr. Walker’s electric account.
Staff also believes the facts and law in this docket are
sufficiently developed and a complaint in strict compliance with Rule
25-22.036, F.A.C., is not required for the Commission to make a determination
on Mr. Walker’s petition. The informal
complaint files, Mr. Walker’s formal complaint, FPL’s Motion to Dismiss the
Complaint, and the record correspondence between staff and Mr. Walker provide
relevant information about Mr. Walker’s arguments, factual assertions, and requested
relief. Staff believes this information
is sufficient to allow the Commission to make a decision on the substance of
Mr. Walker’s complaint and does not believe it would be an effective use of the
parties’ and the Commission’s resources to require Mr. Walker to amend his
complaint to comply with technical pleading rules.
In his formal complaint, Mr. Walker also alleges that his
Fourth Amendment rights have been violated. Staff agrees with FPL’s Motion to
Dismiss the Complaint in this regard and recommends that this allegation be
dismissed with prejudice because the Commission is without jurisdiction under
Chapter 366, F.S., to adjudicate Fourth Amendment complaints.
Therefore, staff recommends that the Commission grant in
part and deny in part FPL’s Motion to Dismiss the Complaint
as discussed above.
Issue 2:
What is the appropriate disposition of Mr. Walker’s
complaint?
Recommendation:
Mr. Walker’s formal complaint should be denied. FPL
properly handled Mr. Walker’s account in compliance with Commission rules,
statutes, and orders and FPL’s tariffs. (Page)
Staff
Analysis:
Mr. Walker alleges that FPL
backbilled and overbilled for services not rendered. As discussed in more detail below, staff
believes that FPL backbilled Mr. Walker’s account on the basis of a reasonable
estimate for electric service provided for which he did not pay due to
unauthorized conditions at the meter site.
Meter Tampering
On March 7, 2016, based upon a reduction in service usage,
FPL’s Revenue Protection Department initiated an investigation of meter
tampering on Mr. Walker’s premises. On
April 4, 2016, an FPL service crew, accompanied by police, went to the service
address and determined that at this time meter tampering had occurred. The FPL service crew observed that there was
no meter in the meter can and unauthorized jumpers were providing unmetered
electric service.
On April 22, 2016, FPL billed Mr. Walker’s account $284.17
for current diversion investigative costs as provided in FPL’s tariffs. The FPL
service crew observed that the meter was missing and unauthorized jumpers were
present at Mr. Walker’s premises. However, FPL’s current diversion
investigation did not result in any photographs of the tampering. On October
10, 2016, staff notified FPL that because there were no photographs of the meter
tampering, FPL should credit Mr. Walker’s account balance for $284.17 in
investigative costs. On October 17,
2016, FPL issued a credit adjustment to Mr. Walker’s account in the amount of
$284.17.
Backbilling
Staff believes the FPL service crew’s observation of the state
of the meter is sufficient to conclude that unauthorized use of energy occurred
at Mr. Walker’s premises. Pursuant to
Rule 25-6.104, F.A.C., FPL backbilled Mr. Walker’s account based on an estimate
of the energy used and not paid for because of the unauthorized use. Staff reviewed the backbilling calculations
and notified FPL of a mathematical error on the estimated calculation of kWh
used from March 21, 2016, through April 4, 2016, when the unauthorized use was
discovered by FPL. On November 4, 2016, FPL issued a credit adjustment on the
account in the amount of $38.44 due to FPL’s miscalculation of the estimated
kWh used from March 21, 2016, through April 4, 2016. Staff believes that with the credit
adjustment issued by FPL on November 4, 2016, FPL’s backbilling of Mr. Walker’s
account comports with Rule 25-6.104, F.A.C.
Account Balance
Staff notes that Mr. Walker has a
zero balance on his FPL account. On February 25, 2017, Mr. Walker requested
that his account be closed and FPL closed the account. FPL’s final bill for Mr. Walker’s account was
$102.67. On March 1, 2017, Mr. Walker’s $450.00 deposit was applied to this
final bill, which yielded a credit balance on the account in the amount of
$347.33. On March 9, 2017, Mr. Walker
cashed FPL’s refund check for $347.33, bringing his account to a zero balance.
Conclusion
Mr. Walker alleges that FPL billed and overbilled him for
services not rendered and he is due an additional refund or credit from FPL. Staff identified two areas of concern in the
billing of Mr. Walker’s account. As
discussed above, when staff notified FPL regarding the current diversion
investigative costs, FPL made a credit adjustment to Mr. Walker’s account. FPL also issued a credit to Mr. Walker’s account
when advised by staff that a mathematical error had been made in FPL’s
calculation of backbilling for unauthorized use of energy. Staff believes that FPL has properly handled
Mr. Walker’s account in compliance with Commission rules, statutes and orders
and FPL’s tariffs and that no additional refunds to Mr. Walker are required. Therefore, Mr. Walker’s formal complaint should
be denied.
Issue 3:
Should this docket be closed?
Recommendation:
If no person whose substantial interests are
affected by the proposed agency action in Issue 2 files a protest within 21
days of the issuance of the order, this docket should be closed upon the
issuance of a consummating order. (Page)
Staff Analysis:
If no person whose substantial interests are
affected by the proposed agency action in Issue 2 files a protest within 21
days of the issuance of the order, this docket should be closed upon the
issuance of a consummating order.
