Case Background
On June 2, 2021,
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 that 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. 20200139-WS.[1] UIF is seeking a partial waiver of Rule
25-30.030(5)(b), Florida Administrative Code (F.A.C.), in connection with UIF’s
application for an amendment of UIF’s Certificate Nos. 496-W and 465-S in Lake
County, Florida (Application). UIF is seeking to add 92 recreational vehicle (RV)
lots (approximately 73 water and wastewater Equivalent Residential Connections
(ERCs) to UIF’s water and wastewater systems, which consist of approximately 35,894
water ERCs, and approximately 32,955 wastewater ERCs. The 92 RV lots will be
added on to an existing park already served by UIF, Orlando RV Resort Thousand
Trails. Due to the small number of increased ERCs sought by the Utility in its Application,
UIF is seeking a waiver of the rule requirement to notify its more than 30,000
customers of the amendment to add 73 ERCs at the substantial cost of
approximately $16,000.
Pursuant to
Section 120.542(6), Florida Statutes (F.S.), notice of this rule waiver
Petition was published in the Florida Administrative Register on June 8, 2021.
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.
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 UIF’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 post notice of its Application on its website to provide all UIF
customers notice of the Utility’s proposed actions. (Trierweiler)
Staff Analysis:
On June 2, 2021, UIF filed a Petition for Partial
Variance or Waiver of Rule 25-30.030(5)(b), F.A.C., which requires that notice
of an amendment application 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. UIF seeks
to waive the portion of Rule 25-30.030(5)(b), F.A.C., that requires notice to
be provided to all customers and property owners within its already existing
service area. The Commission granted
substantially similar requests for waiver by UIF in Order Nos.
PSC-2017-0387-PAA-SU and PSC-2020-0054-PAA-WS.
In its Application, UIF acknowledged its responsibility under
the rule to provide notice to governmental entities and other utilities (Rule
25-30.030(5)(a), F.A.C.), the property owner who UIF is requesting to add to
its service area (Rule 25-30.030(5)(b), F.A.C.), and to publish the notice in a
newspaper of general circulation in the proposed service area (Rule
25-30.030(5)(c), F.A.C.). Staff is working with UIF to make necessary
corrections to its notice, maps of the proposed service territory, and the
accompanying legal description. Further, UIF has asserted that it will post
notice of its Application on its website for a period of not less than 30 days,
and the notice shall provide a date certain by when substantially affected
persons may timely file an objection to the Application.
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.
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 30,000
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 existing customers would receive.
Based on the foregoing analysis and the information
provided within UIF’s Petition, staff believes that UIF has met the
requirements of Section 120.542, F.S. UIF has demonstrated that strict
application of Rule 25-30.030(5)(b), F.A.C., would place a substantial hardship
on the Utility, through the cost it would incur to notice its existing customers
of the de minimis addition of ERCs in its Application. UIF has further
demonstrated that the purpose of the underlying statute will be or has been
achieved by other means, because notice of UIF’s Application will be provided
to its existing customer base via its website, and notice will be provided to
all other entities through the traditional means required by the rule. Therefore,
staff recommends that UIF’s Petition for a partial rule waiver of Rule
25-30.030(5)(b), F.A.C., should be granted.
Pursuant to other provisions of Rule 25-30.030, F.A.C.,
UIF is required to provide notice of its Application to governmental entities,
other utilities, the property owner who UIF is requesting to add to its service
area, and to publish the notice in a newspaper of
general circulation in the proposed service area. In order to promote
awareness of the Utility’s Application to UIF’s existing customers without
requiring the expense of traditional noticing, 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 Application. 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 an amendment of UIF’s Certificates 496-W and 465-S in
Lake County, Florida. (Trierweiler)
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 an amendment of UIF’s Certificates 496-W and 465-S in
Lake County, Florida.
