Case Background
On June 13,
2019, Ms. Juana Del Rosario filed an informal complaint with the Florida Public
Service Commission (Commission) against Florida Power & Light Company (FPL
or Utility).[1] In her informal complaint, Ms. Del Rosario
alleged that she was improperly backbilled for up to 48 months of usage, for a
total of $2,351.23. Although FPL had found that her meter had been tampered
with, Ms. Del Rosario alleged that she did not tamper with the meter.
By letter dated
December 17, 2019, staff advised Ms. Del Rosario that her informal complaint
had been reviewed by the Commission’s Process Review Team, in accordance with
Rule 25-22.032, Florida Administrative Code (F.A.C.), and it appeared that FPL
had not violated any applicable statutes, rules, company tariffs, or Commission
orders. Staff advised Ms. Del Rosario that if she disagreed with staff’s
complaint conclusion, she could file a petition for initiation of formal
proceedings for relief against FPL.
Ms. Del Rosario
filed a formal complaint against FPL on January 17, 2020, pursuant to Rule
25-22.036, F.A.C. In her complaint Ms. Del Rosario stated that she did not
tamper with her meter. During the investigation of Ms. Del Rosario’s complaint,
staff learned that Ms. Del Rosario established an account for electric service
with FPL at her residence on April 18, 2003. On September 14, 2010, FPL
installed smart meter ACD0735 at Ms. Del Rosario’s residence. On February 25,
2019, FPL reviewed the communication from smart meter ACD0735 and found a drop
in consumption occurred on May 22, 2014. On May 16, 2019, FPL found that Ms.
Del Rosario’s smart meter was missing the outer and inner seals, which were an
indication that someone other than utility staff accessed the meter enclosure
and internal meter workings. On June 12, 2019, FPL provided notice to Ms. Del
Rosario that her service would be disconnected due to meter tampering. FPL restored
Ms. Del Rosario’s service pending the resolution of her complaint.
On March 20,
2020, staff sent a letter to Ms. Del Rosario requesting any additional
information or documentation that might assist the Commission in addressing her
complaint. Staff did not receive a response from Ms. Del Rosario.
In Ms. Del
Rosario’s formal complaint she requested the Commission find that FPL
incorrectly backbilled her account and to require FPL to give Ms. Del Rosario a
credit adjustment of $2,351.23. At the June 9, 2020 Commission Agenda
Conference, Ms. Del Rosario asserted that she denies all of FPL’s allegations
and she did not engage in meter tampering.
By Proposed
Agency Action Order No. PSC-2020-0219-PAA-EI, issued June 29, 2020 (PAA Order
2020-0219), the Commission denied Ms. Del Rosario’s formal complaint. In PAA Order
2020-0219 the Commission placed the customer on notice that pursuant to Rule
25-6.104, F.A.C., in the event of unauthorized or fraudulent use, or meter
tampering, the utility may bill the customer based on a reasonable estimate of
the energy used. The Commission found that there was sufficient cause to
determine that meter tampering occurred at the Del Rosario residence to allow
FPL to backbill the Del Rosario account for unmetered kilowatt hours, and that
because the account was in Ms. Del Rosario’s name during the entire period, she
should be held responsible for a reasonable amount of backbilling. Finally, the
Commission found that it was reasonable for FPL to backbill the account for 48
months in the amount of $2,351.23.
On July 20,
2020, Ms. Del Rosario timely filed with the Commission Clerk a letter of
protest titled Notice of Request of An Appeal (Protest Petition) reiterating
her claims set forth in her formal complaint. On July 31, 2020, FPL filed a
Motion to Dismiss Petition asserting that the Protest Petition failed to meet
the established pleading requirements and states no cause of action for which
relief can be granted. Ms. Del Rosario did not file a response to FPL’s Motion.
FPL did not
request oral argument regarding its Motion to Dismiss. Pursuant to Rule
25-22.0022, F.A.C., the Commission may hear argument from the parties at its
discretion.
This
recommendation addresses whether FPL’s Motion to Dismiss should be granted and
the appropriate disposition of Ms. Del Rosario’s Protest Petition. The
Commission has jurisdiction over this matter pursuant to Sections 366.04 and
120.569, Florida Statutes (F.S.), and Rule 25-22.032, F.A.C.
Discussion
of Issues
Issue 1:
Should the Commission grant FPL’s Motion to Dismiss
Ms. Del Rosario’s Protest Petition?
Recommendation:
Yes. The Commission should grant FPL’s Motion to
Dismiss Ms. Del Rosario’s Protest Petition. (Lherisson)
Staff Analysis:
Rule 25-22.036(2), F.A.C., states that a complaint
is appropriate when an act or omission of a person subject to the Commission’s
jurisdiction affects the complainant’s substantial interest and violates a
statute, rule or Commission order. A
complaint is dismissed with prejudice if no cause of action is stated and an
amended pleading will not cure the deficiency.
Ms. Del Rosario’s Protest Petition
By PAA Order 2020-0219 the Commission denied Ms. Del
Rosario’s formal complaint. On July 20, 2020, Ms. Del Rosario filed with the
Commission Clerk a letter of protest. In Ms. Del Rosario’s Protest Petition,
she reiterates the information that the parties provided which led to the
Commission taking a proposed agency action on Ms. Del Rosario’s formal
complaint. The only new information that Ms. Del Rosario provided in her Protest
Petition is that she considers herself “a victim of this situation” and that
she is “a Christian woman with moral principles and values, [she] work[s] for
[her] local church, and [she] would not jeopardize those principles in
violation of [her] integrity and commitment to God.” Ms. Del Rosario requests
that her case be “thoroughly reviewed, revised, and corrected.”
FPL’s Motion to Dismiss
FPL alleges that Ms. Del Rosario’s Protest Petition fails
to meet pleading requirements for a formal proceeding under Rule 28-106.201,
F.A.C., because it does not provide a statement of all disputed issues of
material fact or a statement of ultimate facts alleged requiring reversal or
modification of PAA Order 2020-0219. FPL contends that Ms. Del Rosario fails to
state any rule or statutes that FPL has allegedly violated. As such, FPL
contends that Ms. Del Rosario’s Protest Petition must be dismissed because it
does not give FPL or the Commission adequate notice of what facts would give
rise to an alleged violation of rule or statute requiring reversal or
modification.
Analysis
A motion to dismiss challenges the legal sufficiency of
the facts alleged in a petition to state a cause of action. Meyers v. City of Jacksonville, 754
So. 2d 198, 202 (Fla. 1st DCA 2000). The
standard to be applied in disposing of a motion to dismiss is whether, with all
the allegations in the petition assumed to be true, the petition states a cause
of action upon which relief can be granted. Id. 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). When making this determination, only the petition and
documents incorporated therein can be reviewed, and all reasonable inferences
drawn from the petition must be made in favor of the petitioner. Varnes v. Dawkins, 624 So. 2d 349, 350
(Fla. 1st DCA 1993); Flye v. Jeffords, 106 So. 2d 229 (Fla. 1st DA
1958), overruled on other grounds, 153 So. 2d 759, 765 (Fla. 1st DCA
1963); and Rule 1.130, Florida Rules of Civil Procedure. When “determining the sufficiency of the
complaint, 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.” Varnes v. Dawkins at 350.
For formal administrative proceedings authorized by
Chapter 120, F.S., the Uniform Rules of Procedure contained in Chapter 28-106,
F.A.C., apply. Section 120.569(2)(c), F.S., states that the Commission shall
dismiss a petition for failure to substantially comply with the Uniform Rules.
Pursuant to this statute, the dismissal of a petition shall, 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 Ms. Del Rosario to a relaxed pleading
standard, in order to prevent delay and promote resolution of parties’ claims.
Staff is sensitive to Ms. Del Rosario’s circumstances, and
despite the lack of a legally sufficient pleading, staff has attempted to
determine whether amendment of the complaint could lead to a situation where
the Commission would have jurisdiction to grant Ms. Del Rosario some relief.
The facts and arguments alleged in Ms. Del Rosario’s Protest Petition are the
same facts and arguments that the Commission considered when taking proposed
agency action on Ms. Del Rosario’s formal complaint. She fails to allege a
statement of ultimate facts that would require reversal or modification of PAA
Order 2020-0219. Ms. Del Rosario’s Protest Petition fails to make any new
allegations or assertions that could be framed differently that would give the
Commission the opportunity to consider and grant her relief.
Upon review of information provided to staff, there is no
evidence that FPL backbilled Ms. Del Rosario incorrectly. Meter tests performed
by FPL on smart meter ACD0735 revealed a registration below the allowable
tolerances due to the tampered CT wires. Ms. Del Rosario has presented no
documentation or evidence that supports her contention that she was improperly
backbilled or that the meter tampering occurred before she became owner of the
property. In the Protest Petition, Ms.
Del Rosario fails to state how any of her claims relate to a specific rule or
statute that she contends would require reversal or modification of Commission
PAA Order 2020-0219. Staff believes that FPL properly handled Ms. Del Rosario’s
account in compliance with FPL’s tariffs, statutes, rules or Commission Order. Staff
recommends that the Commission grant FPL’s motion to dismiss without prejudice.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If the Commission agrees with staff regarding
Issue 1, then Ms. Del Rosario’s Protest Petition should be dismissed without
prejudice, and the docket should be closed. (Lherisson)
Staff Analysis:
If the Commission agrees with staff regarding Issue
1, then Ms. Del Rosario’s Protest Petition should be dismissed without
prejudice, and the docket should be closed.
