Discussion
of Issues
Issue 1:
Should the Commission grant Duke's Motion to Dismiss
Ms. Rosa’s formal complaint?
Recommendation:
No, the Commission should deny Duke’s Motion. (Sandy)
Staff Analysis:
Legal Standard
To sustain a motion to dismiss, the moving party must show
that, accepting all allegations as true, the petition fails to state a cause of
action for which relief may be granted.
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. A sufficiency
determination is confined to the petition and documents incorporated therein
and the grounds asserted in the motion to dismiss. All
allegations in the petition must be viewed as true and in the light most
favorable to the petitioner in order to determine whether there is a cause of
action upon which relief may be granted.
Duke’s Motion to Dismiss
Ms. Rosa alleges that her account was
wrongfully billed when Duke did not remove her account from Budget Billing
status after renewable generation equipment was installed at her home on June
17, 2019.
Duke alleges that Ms. Rosa’s complaint fails to meet the
pleading requirements for a formal complaint because it does not “identify the
rule, order, or statute that Duke allegedly violated, nor does she describe any
actions taken on behalf of Duke that constitute a violation of any rules,
statutes, company tariff, or Commission Orders.” As such, Duke contends that it cannot
“adequately research, prepare and formulate a defense.” For formal administrative proceedings
authorized by Chapter 120, F.S., the Uniform Rules of Procedure contained in
Chapter 28-106, F.A.C., apply. In
addition to the Uniform Rules which govern all administrative proceedings, the
Commission has adopted specific procedural rules to govern proceedings before
it, which are contained in Chapter 25-22, F.A.C. As cited by Duke, Rule 25-22.036, F.A.C.,
requires that a formal complaint must contain:
1.
The rule, order, or statute that has been violated;
2.
The actions that constitute the violation;
3.
The name and address of the person against whom the
complaint is lodged; and
4.
The specific relief requested, including any penalty
sought.
Duke’s
Motion alleges that between June 2019 and March 2021, Ms. Rosa and Duke were in
regular communication regarding a number of billing charges, billing statements
reflecting those charges, and outstanding balances that had allegedly gone
unpaid, i.e., an unpaid balance of $370.04 as of April 2021. Ms. Rosa appeared
to believe that her account would be automatically removed from Budget Billing
after her net metering started in June 2019. When Ms. Rosa contacted Duke
regarding the bills still showing her Budget Billing status, she alleges that a
Duke representative advised her not to remove the account from Budget Billing
because she would eventually have a credit deferred balance. Duke has no record
of this conversation. Duke’s records show Ms. Rosa made a request to remove her
account from Budget Billing on December 31, 2019. The account was removed from
Budget Billing that same day and the deferred credit balance was applied to the
account balance.
Duke’s Motion further alleges that the CAO staff has
reviewed the substance of Ms. Rosa’s complaint during an informal complaint
process and concluded that Duke did not violate any Commission rules or its
tariffs in the handling of this matter. However, Duke’s Motion acknowledges Ms.
Rosa’s disagreement with how Duke characterizes the material facts that are the
basis of Ms. Rosa’s formal complaint. Further, it appears as if Ms. Rosa also disagrees
with CAO staff’s characterization of the material facts that are the basis of
her complaint in this matter.
Analysis and Conclusion
The Commission has previously held pro se litigants such
as Ms. Rosa to a relaxed pleading standard, in order to prevent delay and
promote resolution of litigants’ claims. Staff
believes that the petition states a cause of action – a dispute with respect to
Duke’s billing – that is within the Commission’s jurisdiction as provided in Section
366.04(1), F.S.
Staff believes the facts and law in this docket are
sufficiently developed and a complaint in strict compliance with the rule is
not necessary in order for the Commission to make a decision at this time. The extensive documentation in this docket,
including the informal complaint files, Ms. Rosa’s formal complaint, Duke’s
Motion to Dismiss, and the documented correspondence between staff and Ms. Rosa
provides significant information about Ms. Rosa’s factual assertions and
requested relief. Staff believes this
information is sufficient to allow the Commission to make a decision on the
substance of Ms. Rosa’s complaint, and does not believe it would be an
efficient use of the parties’ resources to require Ms. Rosa to amend her
complaint merely to comply with the technical pleading rules. Therefore, staff recommends that the
Commission deny Duke’s Motion to Dismiss.
Instead, staff recommends that the Commission proceed to make a decision
on the substance of Ms. Rosa’s complaint, as discussed in Issue 2.
Issue
2:
What
is the appropriate disposition of Ms. Rosa's complaint?
Recommendation:
Ms. Rosa’s formal complaint should be denied and she
should pay any outstanding account balance.
It appears that Ms. Rosa’s account was properly billed in accordance
with Duke’s tariffs along with Commission rules and statutes. Furthermore, it does not appear that Duke has
violated any jurisdictionally applicable provision of the Florida Statutes, the
Florida Administrative Code, or its tariff in the handling of Ms. Rosa’s
account. (Sandy)
Staff Analysis:
Formal Complaint
In her formal complaint, Ms. Rosa asserts that she “does
not owe any ‘past due’ amounts. Every single month Duke has been paid for the
actual kwh and taxes used by the undersigned.”
Analysis
The following list is a summary of all of the
investigative activity that has been performed on behalf of Ms. Rosa in an
effort to address the substance of her complaint.
1.
On or about September 29, 2020, Ms. Rosa filed a
complaint with the Commission, stating her account had been removed from the
Budget Billing Program (“Budget Billing”), and Duke continued to bill her
account for past-due amounts. Ms. Rosa believed the unpaid balance is a result
of Duke keeping her account in Budget Billing after her renewable generation
equipment was installed. Ms. Rosa further claimed Duke provided incorrect
information while her account was on Budget Billing and requested a bill
clarification. Ms. Rosa disputed the bill dated September 25, 2020 for the
amount of $507.01 and sought a credit adjustment for that amount. Ms. Rosa’s
complaint was assigned No. 1349979E.
2.
On June 17, 2019, Duke installed a bi-directional meter
at Ms. Rosa’s address. At the time, Ms. Rosa was participating in Budget
Billing. The billing statements from June 2019 – December 2019 were estimated
due to a locked gate but were updated once actual readings were received.
During this time period, Duke only received three (3) payments to Ms. Rosa’s
account, and her account had not had a zero balance since August 7, 2019. Ms.
Rosa remained on Budget Billing until December 31, 2019, when she contacted
Duke regarding the estimated bills and requested to be removed from Budget
Billing.
3.
On January 9, 2020, Duke issued a re-billed final
Budget Billing/net metering statement, which included $61.71 in current
charges, $8.36 in late fees, $701.29 past due balance, and a Budget Billing
deferred credit balance of $212.59. The Budget Billing credit balance was
applied to Ms. Rosa’s account and resulted in a new account balance of $558.77.
Duke received payments from Ms. Rosa during the first six (6) months of 2020;
however, those payments only included the current charges on the account which
resulted in a balance forward on each statement. An additional four (4) late
fees in the amount $28.03 were waived.
4.
On June 18, 2020, Duke and Ms. Rosa entered into an
agreement for the $365.04 balance due that allowed Ms. Rosa to pay 12 monthly installments
of $30.42. No payment for the monthly installment was received for July and
August 2020, so the agreement was canceled and the entire past due balance of
$365.04 was charged back to Ms. Rosa’s account along with an unpaid balance of
$12.53 for a total balance of $377.57.
5.
On December 28, 2020, three (3) more late fees were
waived, and on April 7, 2021 Duke waived two (2) additional late fees incurred
for February and March 2021. Duke advised the Commission it was willing to
create an agreement for payment of the remaining unpaid balance, which at the
time was $370.04.
6.
On April 8, 2021, CAO staff mailed a letter to Ms. Rosa
that included five (5) tables with data reflected on the billing statements
from January 2019 through March 2021 to clarify the information regarding the
unpaid balance of $370.04. Ms. Rosa responded to CAO staff’s letter and
indicated she never asked for nor agreed to an installment plan and she was
never advised to request Duke to terminate Budget Billing after the
bi-directional meter was installed. Additionally, Ms. Rosa claimed she was
advised by Duke to stay on Budget Billing because she would eventually receive
a credit because her consumption was lower due to net metering. Ms. Rosa claims
on December 31, 2019, a Duke representative suggested she be removed from
Budget Billing, and another representative told her to only pay current charges
on her account.
7.
CAO staff reviewed the 23 months from June 2019 (when
net metering billing commenced), to April 2021, and found Ms. Rosa’s account
had been billed for the difference between energy used and energy received. Ms.
Rosa made 16 payments, and Duke waived 11 late fees for a total of $69.73. Duke
has no record of advising Ms. Rosa to remain on Budget Billing. Based on the
information available for review, CAO staff determined that Duke did not
violate any Commission rules or its tariff in the handling of Ms. Rosa’s issue.
Although Ms. Rosa’s formal complaint was filed after CAO
staff closed Complaint No. 1349979E, she provided no new evidence for the
Commission’s consideration in this matter. Therefore, the only evidence
currently available to support Ms. Rosa’s complaint has already been reviewed
by CAO staff who determined that Duke did not violate any Commission rules or
its tariff in the handling of Ms. Rosa’s issue.
Conclusion
Staff believes it conducted a thorough and complete
investigation of this matter and that Duke has complied with its tariff and all
applicable statutes and Commission rules.
Based on the information obtained by staff, it appears that Ms. Rosa was
properly billed in accordance with Duke’s tariffs along with Commission rules
and statutes. Ms. Rosa has presented no documentation or evidence that supports
her contention that she was improperly billed by Duke. Furthermore, it does not appear that Duke has
violated any jurisdictionally applicable provision of the Florida Statutes, the
Florida Administrative Code, or its tariff in the handling of Ms. Rosa’s account. Therefore, staff recommends that the
Commission deny Ms. Rosa’s formal complaint, and find that she should pay any
outstanding account balances currently owed to Duke.
Issue 3:
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, this docket should be closed upon the issuance of a
consummating order. (Sandy)
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, this docket should be closed upon the issuance of a
consummating order.
