Case Background
On November 5,
2019, Utilities, Inc. of Florida (UIF or Utility) filed a Petition for Partial
Variance or Waiver of Rule 25-30.030(5)(b), Florida Administrative Code
(Petition). UIF is a Class A water and wastewater utility currently serving
approximately 34,000 water and/or wastewater customers throughout 27 systems in Charlotte,
Highlands, Lake, Lee, Marion, Orange, Pasco, Pinellas, Polk, and Seminole
Counties. UIF is a wholly owned subsidiary of Utilities, Inc., and its rates
and charges were last approved by the Florida Public Service Commission
(Commission) in Docket No. 20160101-WS. UIF is seeking a waiver of Rule 25-30.030(5)(b),
Florida Administrative Code (F.A.C.), in connection with UIF’s Application for
Quick Take Amendment of Certificates 278-W and 225-S in
Seminole County (Application). The Utility is seeking to add 24 single family
connections to UIF’s water and wastewater systems in Seminole County, and is
seeking a waiver of the rule requirement to notify its current 34,000 customers
of the quick-take amendment.
Pursuant
to Section 120.542(6), Florida Statutes (F.S.), notice of this rule waiver
Petition was Published in the Florida Administrative Register on November 20,
2019. In accordance with Rule 28-104.003(1), F.A.C., interested persons were
given 14 days after the publication of the notice to submit written comments.
No written comments were received, and the time for such has expired. On
December 26, 2019, Commission staff sent a data request to the Utility, to
which responses were received on that same day.
This
recommendation addresses the Utility’s Rule Waiver Petition; issues relating to
the Utility’s Application will be addressed in a subsequent recommendation. The
Commission has jurisdiction in this matter pursuant to Sections 367.071 and
120.542, F.S.
Discussion
of Issues
Issue 1:
Should the Commission approve Utilities, Inc. of
Florida’s request for a partial waiver of Rule 25-30.030(5)(b), F.A.C.?
Recommendation:
Yes, the Utility has demonstrated that the
underlying purpose of the statute will be or has been achieved by other means,
and that strict application of Rule 25-30.030(5)(b), F.A.C., would place a
substantial hardship on the Utility. Therefore, staff recommends that the
Commission approve Utilities, Inc. of Florida’s request for a partial waiver or
waiver of Rule 25-30.030(5)(b), F.A.C. Staff further recommends that the
Utility should be required to place a notice of its quick take application on
its website to provide all UIF customers notice of the Utility’s proposed
actions. (Lherisson)
Staff Analysis:
On November 5, 2019, UIF filed a Petition seeking a
partial waiver of Rule 25-30.030(5)(b),
F.A.C., which requires that notice of the quick take amendment be provided by
regular mail or personal service to each customer and owner of property located
within the existing service area and the service area to be served, extended,
deleted, or transferred. The waiver is sought in connection with UIF’s
application for a quick take amendment of UIF’s Certificates 278-W and 225-S in
Seminole County, Florida, to add 24 single family connections to UIF’s water
and wastewater systems. On December 9, 2019, UIF provided notice by regular
U.S. mail to water and wastewater utilities in Seminole County, governmental
agencies in Seminole County, the Office of Public Counsel, and the Commission. On
December 30, 2019, UIF filed an affidavit that notice of UIF’s Application was
published twice weekly in the Sanford Herald, a newspaper of general
circulation within Seminole County, Florida. UIF seeks to waive Rule 25-30.030(5)(b),
F.A.C., that requires notice to be provided to all customers and property
owners within its existing service area.
Section 120.542(2), F.S., authorizes the Commission to
grant variances or waivers from agency rules where the petitioner subject to
the rule has demonstrated that the purpose of the underlying statute will be or
has been achieved by other means, and that a strict application of the rule
would cause the applicant substantial hardship or would violate the principles
of fairness. “Substantial hardship” as defined in this section means
demonstrated economic, technological, legal, or other hardship. A violation of
the “principles of fairness” occurs when the literal application of a rule
affects a particular person in a manner significantly different from the way it
affects other similarly situated persons who are subject to the rule.
The underlying statutory provision pertaining to the
above-mentioned rule is Section 367.045, F.S. This statute requires, in part,
that notice of the Utility’s application be provided to its consumers who would
be substantially affected by the requested amendment. This provision has the
effect of alerting current customers of the Utility that additional customers
may be added to the system, and of potential impacts that could affect their
current rates or quality of service. It also prescribes how and in what manner
utility customers may submit objections or request a formal evidentiary hearing
on the merits of the application.
In its response to Commission Staff’s First Data Request,
the Utility states that its water and wastewater systems consist of over 34,000
customers and the application would only add 24 single family residences to the
systems. UIF asserts that the impact of adding only 24 single family residences
would be de minimis, and would have an insignificant impact on existing
customers of UIF. Additionally, UIF has already provided all other notices
required by Rule 25-30.030, F.A.C., including providing notice by regular mail
to the affected governing body of Seminole County and municipalities therein,
and the Office of Public Counsel.
UIF also asserts that strict application of Rule
25-30.030(5)(b), F.A.C., would place a substantial economic hardship on the
Utility. UIF contends that the personnel, paper, printing, envelopes, and
postage required to mail individual notices to its approximately 34,000
customers would cost over $16,000. The customers to be added to UIF’s customer
base if its Application is approved would be a de minimis percentage of the
Utility’s customer base. UIF argues that the economic cost far outweighs any
benefit that the Utility’s 34,000 existing customers would receive.
Based on the foregoing analysis and the information
provided within UIF’s petition and its response to Staff’s First Data Request,
staff believes that UIF has met the requirements of Section 120.542, F.S., and
has demonstrated that the purpose of the underlying statute will be or has been
achieved by other means, and that the strict application of Rule
25-30.030(5)(b), F.A.C., would place a substantial hardship on the Utility.
However, given the number of customers within UIF’s
customer base, staff believes it is important to maintain transparency and
ensure that all customers receive full notice of the Utility’s proposed
actions. Therefore, staff recommends approval of the Utility’s request for partial
waiver of Rule 25-30.030(5)(b), F.A.C., with the following conditions: UIF
should place a notice of its Application on its website, which should provide a
date certain by when substantially affected persons may timely file an
objection to the quick take amendment. This date should be 30 days from the
date the notice is published on the website. This notice should remain on the
Utility’s website for a period of 30 days, and customers should have the right
to file an objection with the Office of Commission Clerk until the date
specified within the notice. Prior to posting, Commission staff should approve
the location and wording of the notice to be published.
Issue 2:
Should this docket be closed?
Recommendation:
If no person whose
substantial interests are affected by the proposed agency action files a
protest within 21 days of the issuance of the order, a consummating order
should be issued. This docket should remain open pending the Commission’s final
decision regarding the Utility’s Application for quick take amendment of
Certificate Nos. 278-W and 225-S to add territory in Seminole County. (Lherisson)
Staff Analysis:
If no person whose substantial interests are affected
by the proposed agency action files a protest within 21 days of the issuance of
the order, a consummating order should be issued. This docket should remain
open pending the Commission’s final decision regarding the Utility’s
Application for quick take amendment of Certificate Nos. 278-W and 225-S to add
territory in Seminole County.
