Discussion
of Issues
Issue 1:
Should the Utility’s request for oral argument be
granted?
Recommendation:
No, staff recommends that the pleadings are
sufficient on their face for the Commission to render a decision on the Motion
for Partial Summary Final Order (Issue 2) and Motion to Dismiss (Issue 3).
However, if oral argument would aid the Commission in evaluating the issues to
be decided, the parties should be allowed five (5) minutes each for oral argument
for the respective pending motions. (Osborn, Crawford)
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 an Agenda Conference will only
be entertained for dispositive motions, such as a motion
for summary final order or a
motion to dismiss. The Commission may grant oral argument if the request:
1) is contained in a separate document; 2) is filed concurrently with the motion
on which argument
is requested; and 3) states
with particularity why oral argument would aid in understanding and evaluating the issues to be
decided. Rule 25-22.0022(3), F.A.C., provides
that granting a request for oral argument
is solely at the Commission’s discretion.
Motion for Partial Summary Final Order
On August 9, 2021, EU timely requested oral argument concurrent with its Motion for Partial Summary Final Order. EU states that since granting Summary Final Orders are uncommon
but are granted in appropriate circumstances, the Commissioners would benefit
by hearing oral argument on the issue from the various parties. EU requests oral argument of ten (10) minutes for each party be permitted.
Staff believes
that the pleadings are sufficient on their face for the Commission to
render a decision on EU’s Motion, and recommends that oral argument is not
necessary in this case. However, if oral argument would be helpful
for the Commission to better evaluate EU’s Motion, staff believes that 5
minutes for each party is sufficient.
Motion to Dismiss
Staff
notes that there was no request made for oral argument on the Motion to
Dismiss. While participation is at the discretion of the Commission, staff
believes that the Motion to Dismiss is sufficient on its face for the Commission
to render a decision. If the Commission would like to hear from the parties,
staff believes that 5 minutes for each party is sufficient.
Issue 2:
Should EU’s Motion for Partial Summary Final Order
be granted?
Recommendation:
No. Based on staff’s review of EU’s Motion, it
appears that the Motion does not establish an absence of any genuine issue of
material fact as to the need for service. Therefore, EU’s Motion for Partial
Summary Final Order should be denied. (Osborn, Crawford)
Staff Analysis:
Standard of Review
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. Albelo v. S. Bell (Albelo), 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996). 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.” Albelo, 682 So. 2d at 1129. 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.”
In addition, the Commission has acknowledged that the purpose
of summary final order is to
avoid the expense and delay of trial when no dispute exists concerning the material facts. The
record is reviewed in the light most favorable toward
the party against
whom the summary judgment is to be entered. The movant carries a heavy burden to present a showing that there is no genuine issue as to any material
fact. Subsequently, the burden shifts to the party
against whom summary judgment
is sought to demonstrate the falsity of the showing.
If they do not do so,
summary judgment is proper and should be affirmed. Even if the facts are not disputed,
a summary judgment is improper if different conclusions or inferences
can be drawn from the facts.
EU’s Motion for Partial Summary Final Order
On August 9, 2021, EU filed a Motion for Partial Summary
Final Order. Attached to its Motion is a copy of the Charlotte County Sewer
Master Plan (Sewer Master Plan). EU states that per Section 367.045(1)(b), F.S.,
and Rule 25-30.033(1)(k), F.A.C., the threshold issue in a certificate
proceeding is a need for service. EU claims that the Sewer Master Plan
satisfies the determination for need for service. EU argues that the Sewer
Master Plan “concluded that the septic tanks in [the] proposed service area are
having significant adverse environmental impacts and recommended that the
proposed service area be converted to central wastewater by 2022.” According to
EU, the Sewer Master Plan is the basis for the County entering into a Bulk
Wastewater Agreement with the Utility to convert septic tanks to central sewer.
EU argues that as recently as January of this year,
the Commission discussed a motion to strike, a motion for summary final order,
and a motion for partial summary final order; that those pleadings were decided
on the merits and not dismissed on procedural grounds; and that each of those
pleadings can be an appropriate vehicle for resolving issues to which no
outstanding facts attach. EU states that in that referenced docket, the
Commission also acknowledged “the purpose of summary final order is to avoid
the expense and delay of trial when no dispute exists concerning the material
facts.” EU claims that absent a partial summary finding that the Sewer Master
Plan satisfies a determination of need for service in the proposed service
area, there would be substantial time, and expense in testimony and evidence by
the parties as to the underlying facts behind the Sewer Master Plan.
EU contends that its Motion is not dependent upon the
resolution of any question of fact, but rather only requests an acknowledgment
that the Commission will accept and follow the Sewer Master Plan in determining
the need for service for this application. EU claims that the Sewer Master Plan
“sets forth the substantial environmental evaluation that
took place before deciding that certain areas of the County required converting
septic tanks to central sewer including EU’s proposed service area,” and that
the facts substantiating the Sewer Master Plan do not need to be litigated.
EU contends that while it may be
premature to decide whether genuine issues of material fact exist before
testimony and discovery have been filed, acknowledging the Sewer Master Plan as
controlling on the issue of need for service does not require that delay. The Utility
maintains that granting the Motion would not end the case or deprive the
parties a hearing on the merits of the application, and would benefit the
parties and the Commission.
Ms.
Cotherman’s Response in Opposition to EU’s Motion
On August 16,
2021, Ms. Linda Cotherman filed a response to EU’s Motion, requesting the
Motion be denied. She asserts that there are several threshold issues for the
Commission to consider in a certificate proceeding, not just the need for
service.
Ms. Cotherman
argues that the Sewer Master Plan is not controlling on the issue of the need
for service. She claims that the Sewer Master Plan was developed using “outdated
data, sourced from outside organizations whose criteria cannot be verified,”
and that the County actually continues to issue permits for septic systems in
the proposed service area. Ms. Cotherman contends that the sewer connection
recommendations in the plan only refer to two existing wastewater treatment
plants, and does not reference individual connections. The Sewer Master Plan
states that, “the priority and sequencing of connecting utilities to the CCUD [Charlotte
County Utilities Department] sewer systems depend on the desire of the utility owner and the CCUD to
connect their systems and the cost
associated with connecting the systems,” which Ms. Cotherman believes
indicates that the conversions are only for consideration, not mandatory.
Ms. Cotherman
contends that there is a material dispute of fact regarding the need for
service. She argues that the Sewer Master Plan refers only to connecting two
existing wastewater treatment plants to the CCUD and the connection was
recommended to be considered within five years, but only when the owners of
those plants request connection to CCUD. She also claims that the applicant’s
proposed service area is already in the CCUD-certificated area.
Palm
Island’s Response in Opposition to EU’s Motion
On August 26,
2021, Palm Island filed a response to EU’s Motion, requesting the Motion be
denied.
Palm Island first points to Rule 28-106.204(3) which states that “Motions, other
than a motion to dismiss, shall include a statement that the movant has
conferred with all other parties of record and shall state as to each party
whether the party has any objection to the motion." Palm Island was not
consulted prior to the filing of the Motion and the referenced statement does
not exist. Palm Island also asserts that there not has not been enough time to
complete discovery and file testimony, so the Motion is premature.
Palm Island argues
that the Sewer Master Plan “is a flawed document, making untrue assumptions, inappropriately
designating the barrier islands within the Urban Service Area and making recommendations
that are inconsistent with Charlotte County’s Comprehensive Plan.” Palm Island
included affidavits from Ms. Ellen S. Hardgrove, a certified planner, and Mr.
Robert H. Weisberg, a professor of physical oceanography.
Ms. Hardgrove
opines that the proposed service area is not within the Urban Service Area, as
the Sewer Master Plan designates, and that the County’s Comprehensive Plan prohibits
the provision of sewer infrastructure outside the Urban Service Area unless
there is clear and convincing evidence that a health problem exists, for which
there is no other feasible solution. Palm Island contends that the record shows
no such health problem. According to Ms. Hardgrove, the County’s Comprehensive
Plan states that the County will continue to primarily rely upon individual
on-site septic systems in areas outside the Urban Service Area. She claims that
the Comprehensive Plan establishes that the County prohibits sewer extension
into the Barrier Island Overlay District, which includes the proposed service
area, and that the County shall not expand the scope of sanitary sewer service
to the bridgeless barrier islands. She also claims that the County’s Sewer
Master Plan’s five, ten, and fifteen year priorities did not include the
conversation of septic tanks on the barrier islands.
Dr. Weisberg notes
that there is no evidence in the Sewer Master Plan that septic tanks contribute
to the degradation of water quality. According to Dr. Weisberg, “EU’s
application cites no scientific or other data which would amount to a ‘Need for
Service’ on any environmental basis.”
Palm Island
concludes that accepting the Sewer Master Plan as definitive and dispositive
would be to allow infrastructure in violation of the County’s Comprehensive
Plan, and that the County’s Sewer Master Plan is not authoritative since its
premise is flawed. Palm Island argues that EU has not demonstrated an absence
of any genuine issue of material fact, that consideration of the Motion would
require an impermissible weighing of the evidence, and that it is premature to
grant summary final relief because discovery has not sufficiently been
developed for a determination to be made that no genuine issue of material fact
exists. Palm Island maintains that, “[a]s a general rule, ‘a court should not
enter summary judgment when the opposing party has not completed discovery.’” Anson Street, LLC v. Rosado, 100
So. 3d 1270, 1271 (Fla. 4th DCA 2012).
Staff
Analysis and Conclusion
A.
Need for
Service
Per Section
367.045(1)(b), when a utility applies for an initial certificate of
authorization from the Commission, it shall provide all information required by
rule or order of the commission, which information may include a detailed
inquiry into the ability of the applicant to provide service, the area and
facilities involved, the need for service in the area involved, and the
existence or nonexistence of service from other sources within geographical
proximity to the area in which the applicant seeks to provide service.
Per Rule
25-30.033(1)(k), F.A.C.:
(k) To demonstrate the need for service in the
proposed area, the applicant shall provide:
1. The number of customers currently being served and
proposed to be served, by customer class and meter size, including a
description of the types of customers currently being served and anticipated to
be served, i.e., single family homes, mobile homes, duplexes, golf course
clubhouse, or commercial. If the development will be in phases, this
information shall be separated by phase;
2. A copy of all requests for service from property
owners or developers in areas not currently served;
3. The current land use designation of the proposed
service territory as described in the local comprehensive plan at the time the
application is filed. If the proposed development will require a revision to
the comprehensive plan, describe the steps taken and to be taken to facilitate
those changes, including changes needed to address the proposed need for
service; and,
4. Any known land use restrictions, such as
environmental restrictions imposed by governmental authorities[.]
EU’s Motion for
Partial Summary Final Order asks that the Commission find that, based upon
Charlotte County’s Sewer Master Plan, there is a need for central wastewater
service in the proposed service area. Rule 25-30.033(1)(k), F.A.C., lists four
factors that must be met to demonstrate the need for service in a proposed
service area. EU’s Motion did not address all of these factors: it did not
address the number of customers currently being served and proposed to be
served, by customer class and meter size, including a description of the types
of customers currently being served and anticipated to be served; a copy of all
requests for service from property owners or developers in areas not currently
served; the current land use designation of the proposed service territory as
described in the local comprehensive plan at the time the application is filed;
and, any known land use restrictions, such as environmental restrictions imposed
by governmental authorities.
A Motion for Partial Summary Final Order 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.” As shown in the conflicting
interpretations of the Sewer Master Plan in the Motion and responses, different
inferences can be drawn from the Sewer Master Plan, and there is not an absence
of any genuine issue of material fact.
The Commission has 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.” The parties have not had the
opportunity to complete discovery and file testimony. The Order Establishing Procedure
for this docket was issued on August 25, 2021. Intervenor Testimony is not due
until November 2021, and discovery actions are not complete until January 21,
2022. The Utility is the only party who has filed testimony, and the only discovery
that has been served in the case thus far is a set of requests for admissions
served by EU on the parties on June 30, 2021, prior to the issuance of the
Order Establishing Procedure.
B. Conclusion
The standard for granting
a summary final order is very high. For
the reasons stated above, staff recommends that EU’s Motion be denied.
Issue 3:
Should Mr. Hurst’s Motion to Dismiss be
granted?
Recommendation:
No. Based on staff’s review of Mr. Hurst’s Motion to
Dismiss, it appears that the Motion to Dismiss does not address whether EU’s application states a cause of action upon which
relief may be granted. There is also already an administrative hearing
scheduled in this docket. Therefore, Mr. Hurst’s Motion to Dismiss should be
denied. (Osborn, Crawford)
Staff Analysis:
Standard of Review
for Motion to Dismiss
The function of a motion to dismiss is to raise as a
question of law the sufficiency of the facts alleged to state a cause of
action. Varnes v. Dawkins, 624 So. 2d 349, 350 (Fla. 1st DCA 1993). The
applicable standard for disposing of a motion to dismiss is whether, with all
factual allegations in the petition taken to be true, the petition states a
cause of action upon which relief may be granted. Id. In making this
determination, all reasonable inferences drawn from the petition must be made
in favor of the petitioner. Id. Consideration of a motion to dismiss
“may not properly go beyond the four corners of the complaint in testing the
legal sufficiency of the allegations set forth therein.” Stubbs v.
Plantation Gen. Hosp. Ltd. P'ship, 988 So. 2d 683, 684 (Fla. 4th DCA 2008)
(internal quotation omitted). All of the elements of a cause of action must be
properly alleged in a pleading to seek affirmative relief. If the elements are
not properly alleged, the pleading should be dismissed. Kislak v. Kreedian,
95 So. 2d 510 (Fla. 1957).
Mr. Hurst’s Motion
to Dismiss the Application
On January 20, 2021, Mr. Hurst filed a Motion to Dismiss
the Application or Alternatively to Hold This Matter in Abeyance Until the
Applicant Serves Proper Notices and Copies of the Application on all Property
Owners. Mr. Hurst claims that residents in the proposed service area did not
receive proper and adequate notice. He asserts that mail is not delivered to
the physical addresses on Little Gasparilla Island. He argues that the notice
does not comply with agency rules because it was sent as junk mail, was not
post-marked, was not signed, appears to be just another mass mailing of an
unknown advertiser, and provided no physical return address. According to Mr.
Hurst, the notice has no caption, does not clearly inform the reader that there
is a legal matter pending before the Commission and that the resident may be a
party, and does not include a certificate of service. He claims there has been
a violation of due process. Mr. Hurst also argues that EU’s application is
incomplete and does not state any costs or tariffs.
EU’s Response to
Mr. Hurst’s Motion to Dismiss
On January 21, 2021, EU filed a response to Mr. Hurst’s
Motion to Dismiss, requesting that the Motion to Dismiss be denied. EU asserts
that the notices were mailed to property owners at the mailing addresses as
reflected on the records of the Charlotte County Property Appraiser, the
envelopes clearly had the name of EU in the return address, and notices were even
mailed to out of state addresses and out of the country. EU states that because
over 1,300 notices were mailed, the notices were sent by a third party as bulk
mail and there are no prohibitions against sending notices in
this manner. EU further states that the notice was prepared in accordance with
the requirements of Rule 25-30.030, F.A.C., and was approved by staff as
required by Rule 25-30.030(4), F.A.C. Mr. Hurst complained in his Motion to
Dismiss of lack of notice of EU’s Motion to Bifurcate, but EU claims that there
is no requirement that such notice be provided, and EU contends that no such
notice has been required or provided in any prior case in which bifurcation has
been considered by the Commission. Also, because EU’s request for bifurcation
was denied, EU refiled its application with the rates and charges.
Staff
Analysis and Conclusion
In his Motion to
Dismiss, Mr. Hurst does not address whether, with all factual allegations in
EU’s application taken to be true, the application does or does not state a
cause of action upon which relief may be granted. Mr. Hurst argues that notice
was insufficient in this case. However, pursuant to notice, he, and a number of
others, timely filed objections to EU’s application, and requested an
administrative hearing, which has been scheduled for February 8-9, 2022. Mr.
Hurst’s concerns that other individuals may have not received notice, or may
have not understood the notice they received, are speculative in nature, and
Mr. Hurst is further not authorized to represent any such others’ interests in
this proceeding. The essence of due process is notice and the opportunity to be
heard, to which Mr. Hurst clearly has availed himself. Finally, the notice was
prepared in accordance with the requirements of Rule 25-30.030, F.A.C. and was
approved by staff as required by Rule 25-30.030(4), F.A.C. On December 18,
2021, EU filed an Affidavit of Mailing of the Notice of Application to all
property owners in the proposed service area.
For the reasons
stated above, staff recommends that Mr. Hurst’s Motion to Dismiss be denied.
Issue 4:
Should this docket be closed?
Recommendation:
No. The docket should remain open pending the
Commission’s action on the Utility’s application for an original wastewater
certificate. (Osborn, Crawford)
Staff Analysis:
The docket should remain open pending the
Commission’s action on the Utility’s application for an original wastewater
certificate.
