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State of Florida
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Public Service Commission Capital Circle Office Center ● 2540 Shumard
Oak Boulevard -M-E-M-O-R-A-N-D-U-M- |
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DATE: |
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TO: |
Office of Commission Clerk (Teitzman) |
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FROM: |
Office of the General Counsel (Cowdery) Division of Economics (Coston) |
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RE: |
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AGENDA: |
07/07/20 – Regular Agenda – Rule Proposal – Interested Persons May Participate |
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COMMISSIONERS ASSIGNED: |
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PREHEARING OFFICER: |
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SPECIAL INSTRUCTIONS: |
Place immediately prior to Docket No. 20180142-WS |
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This docket concerns whether the Commission should propose the adoption of a new rule that would define the terms “landlord” and “tenant” for purposes of Section 367.022(5), Florida Statutes (F.S.), which addresses exemptions from Commission water and wastewater utility regulation. Section 367.022(5), F.S., exempts from Commission jurisdiction “[l]andlords providing service to their tenants without specific compensation for the service.”
The genesis of this docket was staff’s recommendation in Docket No. 20180142-WS that the Commission should issue an order to show cause Palm Tree Acres Mobile Home Park (Palm Tree Acres) for allegedly providing water and wastewater services without a certificate of authorization.[1] Palm Tree Acres provides water and wastewater service to residents who lease their lots and residents who own their lots. The core issue in the show cause docket is whether Palm Tree Acres is a utility subject to the Commission’s jurisdiction. Palm Tree Acres argued that it is an exempt landlord under Section 367.022(5), F.S. Staff and certain residents of Palm Tree Acres argued that Palm Tree Acres and its residents that own their lots were not in a landlord-tenant relationship, so Palm Tree Acres is not exempt from the Commission’s jurisdiction under Section 367.022(5), F.S. The staff recommendation was scheduled to be heard at the January 8, 2019 Commission Conference.
On January 4, 2019, Palm Tree Acres sent the Commission a letter requesting that the Commission defer consideration of the show cause recommendation until the Commission adopts a rule defining landlord and tenant for purposes of Section 367.022(5), F.S., or until the issue is addressed by the Florida Legislature. Palm Tree Acres argued that staff’s interpretation of “landlord” and “tenant” in Section 367.022(5), F.S., constituted a rule of general applicability that was not adopted pursuant to the requirements of the Chapter 120, F.S., the Administrative Procedure Act. Palm Tree Acres argued in its letter and at the January 8, 2019 Commission Conference that if the Commission pursued enforcement action under staff’s interpretation of Section 367.022(5), F.S., Palm Tree Acres would initiate an unadopted rule challenge.
At the January 8, 2019 Commission Conference, the Commission voted to defer consideration of staff’s recommendation to issue a show cause order and initiated rulemaking to explore the possibility of adopting a rule defining “landlord” and “tenant” as used in Section 367.022(5), F.S. Notice of initiation of rulemaking was published in the February 15, 2019 edition of the Florida Administrative Register.
On March 4, 2019, a staff rule development workshop was held. The workshop was attended by representatives from the Florida Manufactured Housing Association, Inc.; the Goss family, who owns several mobile home parks in Florida, including Palm Tree Acres; and the Office of Public Counsel. All three filed post-workshop comments on March 18, 2019.
At the October 3, 2019 Commission Conference, staff recommended that the Commission propose Rule 25-30.0115, F.A.C., to define the terms “landlord” and “tenant” as used in Section 367.022(5), F.S. The Commission voted to defer its decision in order to give the Goss family time to pursue legislation to resolve the issue during the 2020 Florida Legislative session.
On March 13, 2020, the Florida Legislature passed HB 1339, which among other things, creates a new exemption from Commission jurisdiction for owners of mobile home parks that operate both as a mobile home park and a mobile home subdivision (as defined in Section 723.003, F.S.) and provide water and/or wastewater services to a combination of both tenants and lot owners within the park/subdivision. The Governor signed the bill into law on June 9, 2020, and the law takes effect on July 1, 2020. The Goss family is no longer requesting rulemaking.
This recommendation addresses whether the Commission should close this docket because rulemaking is unnecessary. The Commission has jurisdiction pursuant to Sections 120.54, 367.121(1)(f), and 367.022, F.S.