Case Background
K W Resort
Utilities Corporation (KWRU or Utility) is a Class A utility providing
wastewater service to approximately 1,865 customers in Monroe County. Water
service is provided by the Florida Keys Aqueduct Authority (FKAA). During
KWRU’s 2015 rate case, the Commission found that KWRU had engaged in billing
practices that appeared to be inconsistent with its tariff. Subsequently, in that rate case docket,
the Commission ordered this docket opened and ordered Commission staff to
conduct a full audit of KWRU’s billing practices to determine if KWRU had
violated any of the Commission’s orders, rules, or statutes. Staff subsequently conducted an audit and
investigation of KWRU’s billing practices for the period of April 2013 through
March 2017. This audit found several instances where
KWRU charged rates inconsistent with its tariff.
On May 17, 2017,
Commission staff sent KWRU a Notice of Apparent Violation (NOAV). The NOAV
identified several instances where KWRU was in apparent non-compliance with
regard to Commission statutes, rules, and orders. Specifically, the Commission
staff identified instances where it appeared KWRU charged an unauthorized flat
rate, charged unauthorized pool charges, and violated base facility charge (BFC)
billing practices. In KWRU’s response to the NOAV, filed July 17, 2018, KWRU stated that it mistakenly believed
that its revision to a bulk wastewater rate had been accepted by the
Commission, similar to a developer’s agreement for service. Additionally, in
its response, KWRU pointed out that at the end of 2009, management was moved
in-house and has since routinely brought all matters before the Commission.
Further, KWRU indicated it believed the pool charges were implemented
reasonably under the tariff and were only implemented after consulting with
Commission staff. KWRU responded to the apparent violation of BFC billing
practices by admitting it had billed several general service customers
incorrect BFCs and stated it was an error that occurred in switching KWRU’s
billing system after the 2009 rate case. KWRU also asserted that “KWRU did not
over earn based on this error.” KWRU also addressed the billing discrepancy
with Roy’s Trailer Park in its response, and explained that KWRU had engaged in
numerous discussions to mitigate the customer’s outstanding balance owed to the
Utility consistent with KWRU’s approved tariffs.
Proposed
Agency Action Order and Order to Show Cause
On August 31,
2018, the Commission issued its Proposed Agency Action Order and Order to Show
Cause No. PSC-2018-0444-PAA-SU. The Order had two portions, the first was a
Show Cause Order directing KWRU to show cause why it should not be fined a
penalty in the amount of $10,000.00 for its apparent violation of Sections
367.081(1) and 367.091(3), Florida Statutes (F.S.). The PAA portion of the
Order (PAA Order) found that (1) the April 2013 through March 2017 audit period
utilized by Commission staff was reasonable; (2) the appropriate time period
for the refunds was April 2013 through March 2016; (3) KWRU should refund Safe
Harbor $26,408 with interest in accordance with Rule 25-30.360, Florida
Administrative Code (F.A.C.); (4) KWRU should refund Sunset $41,034 with
interest in accordance with Rule 25-30.360, F.A.C.; (5) KWRU was not required
to refund rates charged for pools because KWRU believed that an approved tariff
for pools the Utility had for Key West
Golf Club–HOA “was applicable to any additional customers with pools;” (6) KWRU did not have to refund general service
customers that were billed BFCs based on units instead of Florida Keys Aqueduct
Authority (FKAA) metered rates because KWRU had corrected its billing practices
following the implementation of Order No. PSC-16-0123-PAA-SU issued March 23,
2016, in Docket No. 150071-SU, In re:
Application for increase in wastewater rates in Monroe County by K W Resort
Utilities, Corp.; and (7) that KWRU’s settlement with Roy’s Trailer Park
was a reasonable solution to address that customer’s corrected outstanding balance
from being billed by KWRU based on units instead of FKAA meters.
In the PAA Order,
the Commission also discussed a letter, sent by the Office of Public Counsel
(OPC) on June 12, 2018, which argued that the audit of KWRU did “not go back to
the final order issued in the 2009 rate case when KWRU started incorrectly
billing” customers. In its order, the Commission disagreed and
stated that it found the “time period covered by the audit is a reasonable
remedy to mitigate the Utility’s incorrect billing practices” and that KWRU had
already corrected its billing practices.
Motions Subsequent to Proposed Agency
Action Order and Order to Show Cause
On September 21, 2018, OPC filed a petition requesting an evidentiary hearing protesting
portions of the PAA Order (OPC Petition). Specifically, OPC protested the
portions of the order limiting the time period for the audit of KWRU and the
time period for which KWRU would be responsible for issuing refunds. OPC argues
that KWRU should have been required “to issue refunds for the entire time
period that KWRU incorrectly billed customers” and that Rule 25-30.350, F.A.C.,
“requires that customers shall be refunded the full amount of unauthorized
billing.”
In response,
on October 1, 2018, KWRU filed a Motion to Dismiss, or in the Alternative to
Strike, OPC’s Petition (Motion to Dismiss or Strike) arguing, in part, that OPC
lacks standing in this case and is not entitled to a hearing. Also, on October
1, 2018, KWRU filed a cross-petition seeking a formal administrative hearing
protesting the PAA Order (KWRU Cross-Petition). KWRU’s Cross-Petition argues
that (1) while the PAA Order required refunds to certain customers, it failed
to require other customers to pay back over-refunds previously made by KWRU, thus
such customers erroneously benefitted from the PAA Order, (2) the Commission
failed to consider mitigating circumstances in imposing on KWRU an unreasonably
high penalty, and (3) the rate KWRU charged to Safe Harbor was in compliance
with the intent of KWRU’s approved tariff and the negotiated amount between the
KWRU and Safe Harbor (of which the Commission was aware in 2009) evidenced that
intent. KWRU’s argument disputing the amount of
the penalty addresses the show cause portion of this docket, which will be
addressed at a later date and is not part of this recommendation.
On
November 19, 2018, OPC filed a Motion for Partial Summary Final Order to the
Protested Portions of the PAA Order and a Memorandum in Support of the Motion
(OPC Motion for Partial Summary Final Order).
In its Motion, OPC asserts that because its protest of the PAA Order
hinges on a straightforward legal issue, the resolution of that issue may be
dispositive of OPC’s Petition of the PAA Order.
On
November 29, 2018, KWRU filed its response in opposition to the OPC Motion for Partial
Summary Final Order, included its own Cross-Motion for Summary Final
Order, and separately filed a request for oral argument on the OPC Motion
for Partial Summary Final Order, KWRU’s own Cross-Motion for Summary Final
Order, and KWRU’s Motion to Dismiss or Strike.
Issue
1 addresses KWRU’s request for oral argument. Issue 2 addresses KWRU’s Motion
to Dismiss or Strike. Issue 3 addresses OPC’s Motion for Partial Summary Final
Order, and KWRU’s Cross-Motion for Summary Final Order. The Commission has
jurisdiction over these matters pursuant to Sections 367.081, 367.091, and 367.161,
F.S.
Discussion
of Issues
Issue 1:
Should KWRU’s request for oral argument be granted?
Recommendation:
Yes. KWRU’s Request for Oral Argument should be
granted. The parties should be allowed 5 minutes, total, per side, to argue all
of the motions at issue in Issues 2 and 3. (Schrader)
Staff Analysis: Rule 25-22.0021(3), F.A.C.,
specifies that informal participation is not permitted on dispositive motions
and participation on such is governed by Rule 25-22.0022, F.A.C. Rule
25-22.0022(7), F.A.C., states that oral argument at Agenda Conference will only
be entertained for dispositive motions, such as a motion for summary final
order.
Rule 25-22.0022(1), F.A.C., provides that a request for
oral argument should be timely filed and must state with particularity why oral
argument would aid the Commission in understanding and evaluating the issues to
be decided. The request must also state the amount of time requested for oral
argument. Failure to file a timely request for oral argument constitutes waiver
of that request. Rule 25-22.0022(3), F.A.C., provides that granting or denying
a request for oral argument is within the sole discretion of the Commission.
KWRU’s Request for Oral Argument on OPC’s Motion for
Partial Summary Disposition and KWRU’s Cross-Motion for Summary Disposition
(Request for Oral Argument) was timely filed and did state why oral argument would
aid the Commission in understanding the issues to be decided in this case.
However, the request does not specify the amount of time requested for oral
argument. KWRU also acknowledges that neither party timely requested oral
argument regarding KWRU’s Motion to Dismiss or Strike, but KWRU “believes the
Commission can benefit for oral argument on that Motion as well.”
Staff recommends that, due to the complexity of this case,
oral argument would be helpful for the Commission to better understand the
entirety of the series of events and legal issues. Thus, staff recommends that
the Commission allow 5 minutes per side for oral argument on all outstanding
motions in this case (OPC’s Motion for Partial Summary Final Order, KWRU’s
Cross-Motion for Summary Final Order, and KWRU’s Motion to Dismiss or Strike).
Issue 2:
Should the Commission grant KWRU’s Motion to Dismiss
or Strike?
Recommendation:
No. The Commission should deny KWRU’s Motion to
Dismiss or Strike. (Schrader)
Staff Analysis:
Motion to Dismiss
From KWRU’s Motion to Dismiss or Strike it is unclear what
type of dismissal KWRU seeks. KWRU argues that OPC’s Petition “fail[s] to state
claims upon which relief may be granted as OPC lacks standing and should not be
provided an evidentiary hearing, and should be dismissed.”
KWRU’s Motion also cites Huet v. Mike
Shad Ford, Inc., 915 So. 2d 723, 725 (Fla. 5th DCA 2005). Huet involves the dismissal of a claim
that fails to sufficiently state a cause of action. KWRU also cites Ginsberg v. Lennar Fla. Holdings Inc.,
645 So. 2d 490, 501 (Fla. 3d DCA 1994), to support the idea that “a party does
not state a cause of action by asserting bare legal conclusions without
supporting factual allegations.” Despite
its citations to Huet and Ginsberg, KWRU’s main arguments are
based upon OPC allegedly lacking standing, and KWRU seeks the dismissal of OPC
on those grounds. Given these circumstances, staff is unclear whether KWRU
asserts a Motion to Dismiss for Failure to State a Cause of Action or if KWRU
asserts a Motion to Dismiss for Lack of Jurisdiction. Therefore, staff analyzed
KWRU’s Motion on both bases below.
Motion to Dismiss for Failure to State a
Cause of Action
In making a Motion to Dismiss for Failure to State a Cause
of Action, the burden is on the moving party to show that even if the facts in
a complaint (in this case, OPC’s Petition) are true, the complainant would not
be entitled to the relief requested.
In ruling on such a motion, the well-pled allegations of the complaint (or the petition
in this case) must be taken as true, and any allegations must be construed in
the light most favorable to the non-moving party. A
motion to dismiss is not a substitute for a motion for summary judgment and a
ruling on a motion to dismiss should be based solely upon the “four corners” of
the complaint. Such a
ruling may not be based upon any speculation of what is true or may be
ultimately proven.
KWRU, by citing to Ginsberg
and Huet, appears to argue that OPC’s
Petition failed to properly allege facts to support its legal conclusions; thus
KWRU is arguing that OPC’s allegations are not “well-pled.” However, KWRU does
not specify which legal conclusions of OPC are not supported by alleged facts.
OPC responded to KWRU by stating that all of the requisite facts at issue are
clearly outlined in OPC’s Petition.
OPC alleges the Commission arbitrarily cut off the time frame covered by its
audit, rather than including the full time frame of the incorrect billing, arguing
that Rule 25-30.350, F.A.C., requires that the entirety of any incorrect
charges must be refunded.
In reviewing OPC’s petition, OPC’s primary legal
conclusion is that the Commission should have conducted an audit of KWRU that
covered a longer period and that Rule 25-30.350, F.A.C., required additional
refunds from KWRU. OPC supports this conclusion by alleging that KWRU’s
irregular billing practices were for a longer period than what was covered in
the audit and refunds. Therefore, staff recommends that the Commission find
that OPC has alleged sufficient facts to support its legal conclusions.
Given that OPC has alleged sufficient facts to support its
legal conclusions, the next question is whether, if OPC’s allegations are true,
it would be entitled to the relief it requests. In this case, if, as OPC
asserts, the time frame of the audit of KWRU should have been longer, and if OPC’s
application of Rule 25-30.350, F.A.C., is correct, then it is possible that
KWRU could owe additional refunds to customers. Therefore, staff recommends
that KWRU’s Motion to Dismiss should not be granted on the basis of OPC failing
to state a cause of action.
Motion to Dismiss for Lack of Standing
As with motions to dismiss for failure to state a cause of
action, review of motions to dismiss for lack of standing must be confined to
the four corners of the complaint, all inferences must be drawn in favor of the
party pleading the complaint, and all well-pled allegations in the complaint
must be accepted as true.
Florida’s Administrative Procedure Act, in Section 120.52(13),
F.S., defines “party,” in part, as:
(a) Specifically named persons whose substantial
interests are being determined in the proceeding.
(b) Any other person who, as a matter of constitutional right, provision
of statute, or provision of agency regulation, is entitled to participate in
whole or in part in the proceeding, or whose substantial interests will be
affected by proposed agency action, and who makes an appearance as a party.
KWRU argues that OPC lacks standing in this case because
it does not meet the two-part “substantial interest” test as established in Agrico Chem. Co. v. Dep't of Envtl.
Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). However,
as Section 120.52(13)(b), F.S., indicates, one may be a party to an
administrative proceeding simply by provision of statute.
OPC is entitled to party status in Commission proceedings
by statute. Section 350.0611(1), F.S., states that OPC has the power “to
appear, in the name of the state or its citizens, in any proceeding or action
before the commission...and urge therein any position which he or she deems to
be in the public interest.” Therefore, staff recommends that KWRU’s Motion to
Dismiss should not be granted on the basis of lack of standing.
Conclusion
KWRU’s Motion to Dismiss
OPC from this case should be denied because OPC has not failed to state a cause
of action and because OPC has statutory authority under Section 350.0611(1),
F.S., to appear in any proceeding or action before the Commission.
Motion to Strike
In the alternative to its Motion to Dismiss, KWRU asserts
that OPC’s Petition should be stricken as immaterial.
KWRU also alleges that OPC (1) has no right to an evidentiary hearing, (2) does
not require an evidentiary hearing, (3) has petitioned for one without consulting
the relevant ratepayers, and (4) is requesting this evidentiary hearing without
the approval of the affected ratepayers.
In its Motion to Strike, KWRU alleges that “there is
neither a need nor a requirement for an evidentiary hearing, and OPC’s demand
for an evidentiary hearing should be stricken as it does not comport with basic
elements of due process and the Florida Supreme Court has stated that there is
no need for an evidentiary hearing.”
In support of this allegation, KWRU relies on S. Fla. Hosp. & Healthcare Ass’n v. Jaber, 887 So. 2d 1210,
1212 (Fla. 2004), for the proposition that the Commission “is not required to
hold an evidentiary hearing for a negotiated settlement,” and Citizens of State v. Fla. Public Srvc.
Com’n., 146 So. 3d 1143, 1150 (2014), for the proposition that the
Commission “can approve settlement without evidentiary hearings, and
non-unanimous settlements.”
Staff believes KWRU’s reliance on these cases is not
relevant to the matter at hand. Both S.
Fla. Hosp. & Healthcare Ass’n v. Jaber and Citizens of State v. Fla. Public Srvc. Com’n. involve settlement
agreements presented to, and approved by, the Commission. KWRU’s argument on
dismissing OPC from this case is primarily based upon the allegation that KWRU
has privately settled with the “only two affected ratepayers” in this
case—Sunset and Safe Harbor.
In support of this, on October 26, 2018, KWRU filed a copy of settlement
agreements it had reached with Sunset and Safe Harbor.
These settlements purport to resolve any disputes regarding service availability
fees and charges, and prior invoices for wastewater service with Sunset and
Safe Harbor. Unlike in S. Fla. Hosp.
& Healthcare Ass’n v. Jaber and Citizens
of State v. Fla. Public Srvc. Com’n., the settlements with Sunset and Safe
Harbor have not been presented for approval by the Commission. Furthermore, OPC
alleges in its Petition that more ratepayers than Sunset and Safe Harbor are
due refunds in this case. Thus, even if the KWRU “settlements” with Sunset and
Safe Harbor were approved by the Commission, OPC’s Petition raises the argument
that additional ratepayers may be affected.
As to KWRU’s allegation that OPC does not require an
evidentiary hearing, while OPC does ask for a ruling on a preliminary legal
issue, OPC also states in its petition that it protests the determination of
the refund amounts ordered in the PAA Order and the appropriate amounts to be
refunded to all affected customers. OPC also argues that refunds may also be
due to customers other than Sunset and Safe Harbor.
Finally, KWRU’s assertion that OPC has petitioned for an
evidentiary hearing without consulting with, or being approved by, the relevant
ratepayers is irrelevant. Under Section 350.0611, F.S., the Legislature has
vested the Public Counsel with broad powers “to carry out the duties of his or
her office.” None of this authority is predicated upon seeking prior approval
of the state or its citizens in carrying out those duties. For all the reasons
stated above, Commission staff recommends that KWRU’s Motion to Strike OPC’s Petition
should be denied.
Issue 3:
Should the Commission grant the Office of Public
Counsel's Motion for Partial Summary Final Order or KWRU’s Cross-Motion for
Summary Final Order?
Recommendation:
No, OPC’s Motion for Partial Summary Final Order and
KWRU’s Motion for Summary Final Order should be denied. (Schrader)
Staff Analysis:
Standard for Motion for Summary Final
Order
Section 120.57(1)(h), F.S., requires that, in order to
grant a motion for summary final order, it must be determined from “pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, that no genuine issue as to any material fact exists and
that the moving party is entitled as a matter of law to the entry of a final
order.” The Commission has previously stated that “the standard for granting a
summary final order is very high.”
In general, “a summary judgment should not be granted
unless the facts are so crystalized that nothing remains but questions of law,”
and “must show conclusively the absence of any genuine issue of material fact
and the court must draw every possible inference in favor of the party against whom
a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668
(Fla. 1985); see also City of Clermont,
Fla. v. Lake City Util. Servs. , Inc., 760 So. 2d 1123, 1124 (Fla. 5th DCA
2000), and Wills v. Sears, Roebuck &
Co., 351 So. 2d 29 (Fla. 1977). If the record "raises even the
slightest doubt" that an issue of material fact may exist, a summary final
order would not be appropriate.
Even if the parties agree as to the facts, “the remedy of summary judgment is
not available if different inferences can be reasonably drawn from the
uncontroverted facts."
The Commission has also previously found that “it is premature to decide
whether a genuine issue of material fact exists when [a party] has not had the
opportunity to complete discovery and file testimony.”
Issues of Law in Dispute
The disputed issues of law raised in the parties’ Motions relate
to the application of Rule 25-30.350(2), F.A.C., to the Commission ordered
refunds under Rule 25-30.360, F.A.C. OPC argues that Rule 25-30.350, F.A.C., Underbillings
and Overbillings for Water and Wastewater Service, is controlling in this case.
Rule 25-30.350(2), F.A.C., states that “in the event of an overbilling, the
utility shall refund the overcharge to the customer based on available records.
If the commencement date of the overbilling cannot be determined, then an
estimate of the overbilling shall be made based on the customer's past
consumption.”
KWRU argues that Rule
25-30.360, F.A.C., Refunds, is controlling in this case. Rule 25-30.360, F.A.C.,
states, in part, that:
With the exception of deposit
refunds, all refunds ordered by the Commission shall be made in accordance with
the provisions of this Rule, unless otherwise ordered by the Commission....Where
the refund is the result of a specific rate change, including interim rate
increases, and the refund can be computed on a per customer basis, that will be
the basis of the refund. Where the refund is not related to specific rate
changes, such as a refund for overearnings, the refund shall be made to
customers of record as of a date specified by the Commission. In such case,
refunds shall be made on the basis of usage. Per customer refund refers to a
refund to every customer receiving service during the refund period. Customer
of record refund refers to a refund to every customer receiving service as of a
date specified by the Commission.
OPC asserts that by electing not to audit the full time
period for which the Commission determined unauthorized billing occurred, and
instead choosing to audit a shorter time period of April 2013 through March
2016, the Commission failed to comply with its own Rule 25-30.350(2), F.A.C.
Instead, the Commission should have made an effort to determine what, if any,
overbilling was committed by KWRU from 2009 through March 2013.
OPC also asks whether
it was correct for the Commission to “interpret [Rule 25-30.350, F.A.C.] in a
way that allows KWRU to refund its customers an amount which is less than the
full amount KWRU overcharged said customers.” OPC
argues that the plain language of the rule does not afford the Commission with
discretion to “arbitrarily” order refunds for a shorter period and contends
that Rule 25-30.350, F.A.C., requires the Commission to order KWRU to refund
all overcharges to its customers from the date overbilling began to the date
overbilling ended.
KWRU argues that the Commission has the discretion to
determine the proper time frame for an audit and the amount of refunds. KWRU
further argues that Rule 25-30.350, F.A.C., would not apply to this case since
it is a rule that applies to overbilling in regards to individual complaints
and customer service, and not Commission ordered refunds issued pursuant to
Rule 25-30.360, F.A.C.
KWRU states that the 2013 revisions to Rule 25-30.350, F.A.C., that added the
new provisions for overbilling, were part of a number of rule amendments
related to individual customer service
and that Rule 25-30.360, F.A.C., states that “all refunds ordered by the
Commission shall be made in accordance with the provisions of this Rule.”
Finally, KWRU argues that Florida Supreme Court found in Citizens of State v. Fla. Public Srvc. Com’n., 146 So. 3d 1143
(Fla. 2014), that the Commission “acts in the public interest, and is accorded
deference.” Thus, KWRU argues, based on this deference, the Commission is
allowed to determine the relevant time period for an audit.
Facts in Dispute or in Need
of Further Development
In its Motion for Partial Summary Final Order, OPC asserts
that there are no material facts in dispute as whether KWRU overbilled
customers. OPC further states that the utility admitted in its
response to Commission staff’s NOAV that KWRU began its unauthorized billing in
2009. OPC
also disputes the appropriate amount to be
refunded to KWRU customers and that the Commission “may have deprived numerous
customers of the opportunity for refunds of the entire amounts overbilled” by
limiting the audit and refund period.
OPC states that the Commission acknowledged that the available information
during the Commission’s investigation showed KWRU engaged in unauthorized
billing from 2009 through March 2016.
In its Cross-Motion for Summary Final Order, KWRU asserts
that “there are no issues of material fact now that OPC has identified [its]
legal theory” in regards to the application of 25-30.350, F.A.C., and that this
case does not involve “a claim by customers seeking a refund of alleged
[overbillings].” In its
Cross-Petition for hearing, KWRU states that while the PAA Order required
refunds to certain customers, it failed to require other customers to pay back
over-refunds previously made by the Utility. Further, KWRU asserts that the
rate charged to Safe Harbor Marina was in compliance with the intent of the
approved Tariff, and the negotiated amount between the Utility and Safe Harbor
Marina (of which the Commission staff was aware back in 2009) evidenced that
intent.
KWRU also states that one of the purposes of its Cross-Petition is for the Commission
to acknowledge by order that no refund is owed to Safe Harbor Marina. Finally, KWRU
asserts that there are only two parties, Sunset and Safe Harbor, which should
be due refunds in this case (and KWRU asserts that it has already resolved
these refunds).
As shown above, both KWRU and OPC argue that no issues of
material fact exist in regards to the issues identified in OPC’s Motion for
Partial Summary Final Order.
However, staff cannot concur with this opinion. Staff agrees that KWRU has
admitted to improper billing in KWRU’s billing of Safe Harbor and some of
KWRU’s general service customers in KWRU’s response to Commission staff’s NOAV.
However, there does appear to be some dispute between the parties over whether overbilling, as opposed to improper
billing, occurred, and when and how much overbilling may have occurred. KWRU
does not appear to have clearly admitted that it overbilled customers during
the time period of 2009-2013 (the time period in question prior to the audit
conducted by Commission staff). KWRU and OPC also appear to disagree as to the effect
of KWRU’s private settlements reached with Sunset and Safe Harbor, and whether
additional refunds are due to those customers. Arguably, the purported settlements entered into by KWRU with Sunset
and Safe Harbor may have some impact on amounts that may or may not be due to
KWRU customers—the parties appear to have disagreement as to, at the very
least, what inferences may be drawn from these settlements. KWRU’s belief that it
should not have to pay any additional amounts to Sunset and Safe Harbor is
based, at least in part, on the settlements KWRU reached with these customers.
Finally, there appears to be disagreement between OPC and
KWRU as to whether there are any additional customers who may be owed refunds,
and what the amount of those refunds should be.
In the current docket, parties have not yet conducted, let
alone completed, discovery in regards to the PAA Order. Furthermore, staff
believes, despite the parties’ assertions, that neither party has carried its
burden to demonstrate, conclusively, the absence of any genuine issue of
material fact in regards to whether Rule 25-30.350, F.A.C. would require
additional audits or refunds in this case. Staff also believes that additional
facts may be developed at hearing that would help the Commission determine if
KWRU “overbilled” pursuant to Rule 25-30.350, F.A.C.
In regards to whether any
issues have been stipulated to in this case from the PAA Order, Section
120.80(13)(b), F.S., states that “notwithstanding ss. 120.569 and 120.57, a
hearing on an objection to proposed action of the Florida Public Service
Commission may only address the issues in dispute. Issues in the proposed
action which are not in dispute are deemed stipulated.” Further, Rule
25-22.029, F.A.C., provides that issues in a proposed action that are not
identified in the petition or cross-petition protesting the proposed action are
deemed stipulated. In this case, OPC states that it protests (1) whether the
Commission properly followed its rules in setting the time period for refunds,
and (2) the amount for refunds due to KWRU customers. As such, staff interprets
OPC’s protest of the PAA Order to be every issue in the PAA Order. The issues
in the PAA Order set out the appropriate time period for refunds and identify
any refunds that may be due to KWRU customers.
Thus, pursuant to 120.80(13)(b), F.S., and Rule 25-22.029, F.A.C., the
Commission should find that the entirety of the PAA Order has been protested,
and none of the issues in the PAA Order have been stipulated.
OPC Lack of Standing and Right to a
Hearing
KWRU reiterates in its Cross-Motion for Summary Final
Order the argument raised in its Motion to Dismiss or Strike that OPC lacks
standing in this case and is not entitled to a hearing.
For the reasons set forth in Issue 2, staff recommends that OPC does have
standing in this matter and is entitled to request a hearing. Therefore, staff
recommends that the Commission deny this part of KWRU’s Cross-Motion.
Conclusion
For the reasons stated above, staff does not believe that
the facts of this case are “so crystalized” that it is clear that no genuine
issue as to any material fact exists in regards to potential overbilling by
KWRU. A review of KWRU’s and OPC’s pleadings indicates that neither party has
conclusively demonstrated, at this point, that no issues of genuine fact remain
in regards to overbilling in this case. Furthermore, staff believes that additional
facts may be developed at hearing that would help the Commission decide the
matter of whether KWRU overbilled pursuant to Rule 25-30.250, F.A.C. Therefore,
staff recommends that the granting of a partial summary final order is
premature at this time, and OPC’s and KWRU’s motions should be denied.
Issue 4:
Should this docket be closed?
Recommendation:
If the Commission denies KWRU’s Motion to Dismiss or
Strike, and denies both parties’ Motions for Summary Final Order, this docket
should remain open to address OPC’s and KWRU’s respective requests for hearing
on their protests of the PAA Order. (Schrader)
Staff Analysis:
If the Commission denies KWRU’s Motion to Dismiss or
Strike, and denies both parties’ Motions for Summary Final Order, this docket
should remain open to address OPC’s and KWRU’s respective requests for hearing
on their protests of the PAA Order.
