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State of Florida |
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 (Dike,
Sapoznikoff) SMC Division of Economics
(Hampson, Kelley) EJD |
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RE: |
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AGENDA: |
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COMMISSIONERS ASSIGNED: |
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PREHEARING OFFICER: |
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SPECIAL INSTRUCTIONS: |
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On November 8, 2023, 1150 WHG, LLC (WHG) filed a petition for declaratory statement (Petition), asking the Commission to declare that, based on the facts presented, “the property qualifies for the grandfather exception set forth in [R]ule 25-6.049, [Florida Administrative Code (F.A.C.)], since the Property was constructed pursuant to a permit issued prior to January 1, 1981 and has received continuous master-metering since January 1, 1981.” Tampa Electric Company (TECO) provides electric service to the property.
Rule 25-6.049, F.A.C., sets forth electric metering requirements to measure energy use. For ease of reference, a copy of Rule 25-6.049, F.A.C., is appended to this recommendation as Attachment A.
The rule requires individual electric metering for each occupancy unit in new commercial, residential, and other buildings. This rule provides limited exemptions from the individual metering requirement for hotels, motels, hospitals, nursing homes, and other facilities for which billing for individual metering is impractical due to the nature of the facility’s operation.[1] The rule also avoids retroactive application of the individual metering requirement for residential units in buildings constructed before 1981, allowing older properties to remain master-metered.[2]
Staff notes that individual electric metering is typically defined as measuring electric service for each occupancy unit of an establishment on an individual basis, using utility-owned meters for billing. In contrast, master-metering is typically used to describe situations in which electric service for multiple occupancy buildings is measured using a single, utility-owned meter for billing. TECO defines sub-meters, in tariff sheet No. 4.110, as a meter used to check electric usage on a particular electrical load for a non-billing purpose. Sub-meters are installed behind the utility-owned master-meter by the property owner or third party.
The Commission has stated that the purpose of Rule 25-6.049, F.A.C., is to implement the Florida Energy Efficiency and Conservation Act (FEECA) and encourage customers to conserve electricity.[3] As this Commission has noted, “when unit owners are responsible for paying for their actual consumption, they are more likely to conserve to minimize their bills.”[4]
Law Governing Petitions for
Declaratory Statement
Section 120.565, Florida Statutes (F.S.), sets forth the necessary elements of a petition for declaratory statement. This section provides:
(1) Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.
(2) The petition seeking a declaratory statement shall state with particularity the petitioner’s set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances.
Rule 28-105.001, F.A.C., states the purpose of a declaratory statement:
A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person.
If a petitioner meets the filing requirements provided by Rule 28-105.002, F.A.C., an agency must issue a declaratory statement. Rule 28-105.003, F.A.C., provides the requirements for how agencies must dispose of declaratory statements and states that an agency may rely on the statements of fact set out in the petition without taking any position with regard to the validity of the facts. A declaratory statement enables members of the public to resolve ambiguities of law and obtain definitive, binding advice as to the applicability of agency law to a particular set of facts.
Procedural Matters
Pursuant to Section 120.565, F.S., and Rule 28-105.0024, F.A.C., a Notice of Declaratory Statement was published in the November 13, 2023, edition of the Florida Administrative Register to inform substantially affected persons of the Petition. TECO was granted intervention into this docket by Order No. PSC-2023-0360-PCO-EU, issued November 28, 2023. Pursuant to Order No. PSC-2023-0360-PCO-EU, TECO filed its response to the Petition on December 6, 2023, and WHG filed its reply to TECO’s response on December 13, 2023.
This
recommendation addresses whether the Commission should grant WHG’s Petition.
Pursuant to Section 120.565(3), F.S., a final order on a request for a
declaratory statement must be issued within 90 days of the filing of the
Petition. This docket was set for the January 10, 2024, Agenda Conference.
WHG requested that the docket be deferred to the February 6, 2024, Agenda
Conference, and waived the statutory deadline for the Commission to issue its
final order until February 26, 2024. The Commission approved WHG’s deferral
request and, as such, the statutory deadline to issue a final order on the
Petition is February 6, 2024 February 26, 2024. The Commission
has jurisdiction to consider this matter pursuant to Section 120.565 and
Chapter 366, F.S.
Issue 1:
Should the Commission grant WHG’s Petition for Declaratory Statement?
Recommendation:
No. The Commission should deny WHG’s Petition for Declaratory Statement and instead declare that WHG does not qualify for the grandfather exception under Rule 25-6.049, F.A.C., and that WHG must use individual metering on its property. (Dike, Hampson, Kelley)
Staff Analysis:
Facts
and Legal Analysis from the Parties
Under Rule 28-105.003, F.A.C., in considering the facts set forth in the pleadings, “[t]he agency may rely on the statements of fact set out in the petition without taking any position with regard to the validity of the facts.” Therefore this recommendation relies on the facts as presented by WHG and TECO, without taking a position with regard to the validity of the facts.
WHG’s Statement of
Facts
In its Petition and accompanying affidavit, WHG states it purchased the property at issue in November 2022. The property was originally constructed in 1973 and has continuously operated with a master-meter electrical system since then. In December 2022, the City of Winter Haven issued permits for WHG to renovate the property, converting it into individual, residential units.
WHG asserts that it informed TECO in January 2023 that it planned to install a sub-metering system for electrical use on the property. Sometime after that, WHG alleges it began the process of installing sub-metering in the residential units on the property. Under its plan, WHG states that tenants will pay for their electricity at the same rate at which WHG is billed by TECO, based on their individual energy usage recorded by the sub-meter in each unit. WHG sets forth that an independent third party will then invoice and collect these amounts from the tenants as reimbursement for WHG. WHG states that it will ultimately be billed by TECO for the energy usage recorded by the master-meter for the entire property. WHG further contends that in July 2023, TECO objected to the plan.
WHG claims that it has changed all of the wiring in the building and installed half of the sub-meters in the individual units already. WHG estimates that it would cost $1.5 million to install individual meters. Moreover, WHG opines that the installation of solar panels—which it states would also further the purposes of FEECA—is not justifiable if the property cannot use master-metering. WHG states that its ultimate goals are to avoid retrofitting costs, upgrade the property for tenants, and achieve the conservation and sustainability goals of FEECA.
TECO’s Statement of
Facts
In its response to the Petition, TECO states that the property at issue included multiple motel structures and an office building. TECO sets forth that the company provided electric service to the motel from its construction in 1973 until November 2022, when Petitioner became the customer of record. TECO asserts that in January 2023, an energy auditor from TECO visited the property to perform a Commercial Energy Audit.
TECO also alleges that on June 16, 2023, WHG advised TECO that it intended to master-meter the property with sub-metering in the individual apartments. TECO contends that on June 18, 2023, TECO informed WHG that master-metering is not consistent with Rule 25-6.049, F.A.C. TECO further claims that when WHG sent construction design plans to TECO in June 2023, the plans did not include sub-metering of the residential units. TECO states that the company sent letters to WHG in July and August of 2023, informing Petitioner that the property did not qualify for master-metering.
In August 2023, WHG made an informal complaint to the Commission. TECO states that WHG subsequently informed TECO that it would begin renting out apartments in September 2023. On September 27, 2023, Commission staff issued a complaint resolution, finding that TECO had not violated any Commission rules and, therefore, could interrupt electric service after giving WHG proper notice.
The
Parties’ Legal Arguments
WHG maintains its property is exempt from the individual metering requirement
of Rule 25-6.049, F.A.C., because its buildings were permitted and constructed
prior to 1981 and the property has had continuous master-metering since its
construction. WHG also argues the requirement for new residential buildings to
use individual meters does not apply in this matter because the buildings on
the property are not new, despite the renovations.
In response, TECO argues that WHG’s property does not qualify for the grandfather exception in Rule 25-6.049, F.A.C. TECO opines that the grandfather exception has limited applicability to occupancy units built prior to 1981, not motels and other overnight occupancy buildings. TECO claims its interpretation follows the plain language of Rule 25-6.049, F.A.C., and Commission precedent.
In its reply to TECO’s response, WHG now asserts that the grandfather exception in Rule 25-6.049, F.A.C., applies because the property has occupancy units in a new residential building. WHG states the property is a new residential building because of the renovations. WHG posits that it is irrelevant whether its exemption from individual metering came from the motel exception or the grandfather exception. WHG contends that it follows the plain language of the rule and TECO misrepresents Commission precedent.
WHG further asserts that its use of the grandfather exception is a continuation of a prior, non-conforming use, rather than the creation of a new, non-conforming use. It contends that substantial upgrading of the property does not create a new use and that the rule does not require that the property’s use remains continuous to rely on the grandfather exception. WHG also argues that it has already incurred substantial costs by sub-metering some of the units, and that it would be burdensome to switch to individual metering.
Next, WHG claims that its use of sub-meters will achieve the purpose of FEECA—the statute that Rule 25-6.049, F.A.C., implements—as residents would be responsible for their individual electric consumption, thus incentivizing conservation. In response, TECO alleges the Commission should declare that individual metering is required because WHG’s master-metering approach undermines the purposes of FEECA. TECO cites to the intent of Rule 25-6.049, F.A.C., arguing that the rule implements FEECA by having individual residents pay for their electric, so that they are more likely to conserve energy and lower their bills. Here, TECO states that the tenants will be paying a portion of WHG’s commercial rate under WHG’s master-metering plan. TECO argues that since the cost of electricity differs for residential and commercial customers, the tenants would be paying a potentially lower commercial rate than they would under individual metering. TECO claims this would be inapposite to the policy goal of conservation under FEECA, as customers would not see their conservation efforts reflected in their bills, unless the units are individually metered.
TECO further states that WHG’s proposed plan raises other issues outside the requested declaratory statement. TECO points out that WHG has not requested a declaratory statement regarding whether the proposed plan would be consistent with Rule 25-6.065, F.A.C., Net Metering (which allows a customer to offset its electricity costs via customer-owned renewable generation). TECO asserts that if the Commission grants the requested declaratory statement, WHG will be offsetting the costs of electricity usage of all the residents on the property, not just WHG’s usage, with the planned solar array.
Additionally, TECO argues that if the Commission grants the requested declaratory statement, then WHG may be considered an “electric utility” and a “public utility” under Chapter 366, F.S. In its reply, WHG posits that TECO’s argument is not based in fact. WHG argues that it would agree to any limitations the Commission may impose, so that WHG would not operate as a public or electric utility.
Staff’s
Analysis of WHG’s Petition for Declaratory Statement
WHG’s Requested Declaratory Statement
WHG asks the Commission to issue the following affirmative declaratory statement:
The Property qualifies for the “grandfather exception” set forth in [R]ule 25-6.049[, F.A.C.,] since the Property was constructed pursuant to a permit issued prior to January 1, 1981 and has received continuous master-metering since January 1, 1981.
Threshold Requirements
of Petition
As stated in the case background, the purpose of a declaratory statement is to address the applicability of statutory provisions, orders, or rules of an agency to the petitioner’s particular circumstances.[5] Under Section 120.565(1)-(2), F.S., a petition must “state with particularity the petitioner’s set of circumstances” and specify the statute, order, or rule that the petitioner believes is applicable, as well as show the petitioner is substantially affected. WHG’s Petition contains specific details about the property at issue and electric service concerns and identifies Rule 25-6.049, F.A.C., as the rule that applies to its set of circumstances. WHG alleges that it and TECO have different interpretations of the rule and seeks a declaration to establish the proper interpretation of the rule as it applies to WHG’s property. WHG is substantially affected because of the costs associated with metering its property and the disagreement with its electric service provider. In sum, WHG has satisfied the threshold requirements for issuance of a declaratory statement.
Application of Rule 25-6.049, F.A.C.
Staff believes that WHG’s property does not fall under the grandfather exception of Rule 25-6.049, F.A.C., and it never has. In statutory interpretation, courts “follow the supremacy-of-text principle—namely, the principle that [t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”[6] Thus, the plain language of the rule must be examined to determine how the rule should be applied to WHG’s particular circumstances.
Under Rule 25-6.049(5), F.A.C., properties with occupancy units—e.g., rented or leased portions of residential and commercial buildings—can avoid retroactive application of individual metering requirements if (1) the construction permit for the property was issued before 1981 and (2) the property has been using master-metering continuously since that time.[7] Here, the property was originally constructed to be a motel, which meets the definition of “overnight occupancy” in Rule 25-6.049(8)(b), F.A.C. As the property was used as a motel, rather than residential units, there has never been a requirement for individual metering from which the property needed exception. Staff believes that since there was no grandfather exception in the first place, the Commission cannot extend an exception to WHG now via a declaratory statement.[8]
Assuming for the sake of argument, even if the property originally qualified for the grandfather exception under Rule 25-6.049, F.A.C., its use has changed fundamentally from overnight occupancy to occupancy units, which would negate the exception. Subsection (5) of the rule states that “[i]ndividual electric metering by the utility shall be required for each separate occupancy unit of [a] new . . . residential building.” Although the building structures are not new, WHG obtained a new construction permit in 2022 to renovate the buildings, turning motel rooms into apartment units. In its Petition, WHG first argued that the building was not new. Then, it subsequently argued that the building was considered a new residential building in its reply to TECO’s response. Regardless, staff believes this renovation generates a new residential building.
Even if the outer structures remain the same, the renovation changes the nature of the property from commercial to residential. The 2022 permit and subsequent conversion creates a new, nonconforming use when WHG installs sub-metering rather than individual metering, which is opposite to Commission precedent. As this Commission has stated, “[t]he concept of grandfathering simply tolerates pre-existing non-conforming uses, it does not condone the creation of new ones.”[9] Not only does the creation of a new grandfather exception go against Commission precedent, but the creation of sub-metering does too. This Commission has previously stated that, “[w]e are concerned that if non-utility entities become responsible for metering and billing of electricity, we will no longer have the statutory authority to [e]nsure that the protections currently afforded by the Commission statutes and rules are provided to sub-metered customers.”[10]
Additionally, the cost associated with changing the property from master-metering to individual metering is not sufficient reason to depart from the plain language of Rule 25-6.049, F.A.C., and Commission precedent.[11] There is no mention of cost considerations in Rule 25-6.049, F.A.C. Here, WHG asserts it has incurred substantial costs in wiring and installation of half of the sub-meters on the property, and the subsequent installation of individual meters would be burdensome. While WHG sets forth this cost argument, Rule 25-6.049, F.A.C., does not allow the Commission to grant exceptions from individual metering solely based on cost.
The potential consequences of approval of the requested declaratory statement also indicate that WHG’s interpretation of Rule 25-6.048, F.A.C., runs counter to the intent of the rule. TECO states that it bills WHG’s property at a commercial rate, so WHG’s plan may circumvent rate design. Rates purposefully differ for commercial and residential customers, because “[a] large proportion of the production costs of electricity are allocated to the rate classes based on their contribution to the system's peak demand.”[12] If WHG does bill individual tenants for their contribution to the overall energy usage of the property, then the tenants will be paying a portion of a commercial rate, instead of the residential rates, under WHG’s plan. If the Commission grants the requested declaratory statement, then it may implicitly allow WHG to bypass rate design and use a commercial rate. This potential consequence of WHG’s interpretation supports staff’s interpretation of Rule 25-6.049, F.A.C.
The
Purpose of FEECA
WHG’s statement that it is purporting to meet the purpose of FEECA through other means does not override the plain language and purpose of the rule. Under Rule 25-6.049, F.A.C.,
The primary objective of [the] individual metering requirement is to promote energy conservation. When unit owners are directly responsible for paying for their electricity consumption, they are more likely to conserve in order to minimize their bills.[13]
Here, WHG seeks to use a solar panel array and master-metering with sub-meters to lower tenants’ bills and offset their usage. While WHG asserts that sub-metering its units alongside the solar array will achieve the same conservation goals encapsulated in FEECA as individual metering, these two methods are not interchangeable under the plain language of the rule. Despite its assertion otherwise, WHG’s plan to use solar panels under a cogeneration agreement does not obviate the requirement for individual metering. Thus, approval of the requested declaratory statement would actually run counter to the purpose of FEECA.
Other Regulatory Concerns
Furthermore, staff agrees with TECO that WHG’s plan raises other potential legal issues beyond those identified in its Petition. Staff believes that WHG’s interpretation of Rule 25-6.049, F.A.C., runs counter to the legislative intent of Chapter 366, F.S., and Commission rules. In statutory construction, the doctrine of in pari materia “requires that statutes relating to the same subject . . . be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” E.A.R. v. State, 4 So. 3d 614 (Fla. 2009) (citing Fla. Dep't of State v. Martin, 916 So.2d 763, 768 (Fla.2005)).
If the Commission grants WHG’s declaratory statement, then WHG may become a “public utility” or “electric utility” under Florida law, by maintaining and operating solar panels and supplying electric generation to its tenants. Section 366.02(8), F.S., defines a “public utility” as “every person, corporation, partnership, association, or other legal entity and their lessees, trustees, or receivers supplying electricity . . . to or for the public within this state.” Under Section 366.02(4), an “electric utility” is defined as “any municipal electric utility, investor-owned electric utility, or rural electric cooperative which owns, maintains, or operates an electric generation, transmission, or distribution system within the state.” Here, WHG plans to install solar panels and sub-meters and distribute that solar power to the sub-metered tenants. The Commission should harmonize the provisions of Chapter 366, F.S., and Rule 25-6.049, F.A.C., by following the plain language interpretation of Rule 25-6.049, F.A.C. In doing so, the Commission can avoid these extraneous consequences of the requested declaratory statement.
Rule 25-6.065, F.A.C., the Commission’s net metering rule, should also be read in pari materia. Under Rule 25-6.065, F.A.C., customers with their own renewable generation can “interconnect to the investor-owned utility’s electrical grid . . . to net meter.” Through this regulatory scheme, a customer can offset their energy usage with their own renewable generation. TECO argues that WHG’s plan could cause WHG to offset electricity usage of the 200+ residents on the property, not just WHG’s electricity, which it argues is opposite to the purpose of Rule 25-6.065, F.A.C. The Florida Legislature’s intent is to promote renewable energy generation for individual customers, not to allow net metering for businesses on behalf of others.[14] In order to give effect to the Legislature’s intent regarding net metering, and interpret the rules in pari materia, the Commission should deny the requested declaratory statement.
To clarify, WHG has not asked for any declaration on whether WHG’s plan to provide service to its property will make it an electric company or public utility under Chapter 366, F.S., or whether the manner of electric service is consistent with Rule 25-6.065, F.A.C., nor is staff recommending the Commission make such declarations. Staff is only pointing out that the declaration WHG is requesting is inconsistent with other parts of Chapter 366, F.S., and other Commission rules and, thus, indicates the requested declaration is an incorrect interpretation of Rule 25-6.049, F.A.C.
Conclusion
For the reasons stated above, staff recommends the Commission deny WHG’s Petition for Declaratory Statement and should instead declare that (1) WHG’s property does not fall under the grandfather exception of Rule 25-6.049, F.A.C., and (2) WHG must use individual metering for its property.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If the Commission votes to either grant or deny the Petition for Declaratory Statement, a final order will be issued and the docket should be closed. (Dike)
Staff Analysis:
Whether the Commission grants or denies WHG’s Petition, a final order will be issued. Upon issuance of the final order, the docket should be closed.
25-6.049 Measuring Customer Service.
(1) All energy sold to customers shall be measured by
commercially acceptable measuring devices owned and maintained by the utility,
except where it is impractical to meter loads, such as street lighting,
temporary or special installations, in which case the consumption may be
calculated, or billed on demand or connected load rate or as provided in the
utility’s filed tariff.
(2) When there is more than one meter at a location,
the metering equipment shall be so tagged or plainly marked as to indicate the
circuit metered. Where similar types of meters record different quantities,
(kilowatt-hours and reactive power, for example), metering equipment shall be
tagged or plainly marked to indicate what the meters are recording.
(3) Meters which are not direct reading shall have the
multiplier plainly marked on the meter. All charts taken from recording meters
shall be marked with the date of the record, the meter number, customer, and
chart multiplier. The register ratio shall be marked on all meter registers.
The watt-hour constant for the meter itself shall be placed on all watt-hour
meters.
(4) Metering equipment shall not be set “fast” or
“slow” to compensate for supply transformer or line losses.
(5) Individual electric metering by the utility shall
be required for each separate occupancy unit of new commercial establishments,
residential buildings, condominiums, cooperatives, marinas, and trailer, mobile
home and recreational vehicle parks. However, individual metering shall not be
required for any such occupancy unit for which a construction permit was issued
before, and which has received master-metered service continuously since
January 1, 1981. In addition, individual electric meters shall not be required:
(a) In those portions of a commercial establishment
where the floor space dimensions or physical configuration of the units are
subject to alteration, as evidenced by non-structural element partition walls,
unless the utility determines that adequate provisions can be made to modify
the metering to accurately reflect such alterations;
(b) For electricity used in central heating,
ventilating and air conditioning systems, or electric back up service to
storage heating and cooling systems;
(c) For electricity used in specialized-use housing
accommodations such as hospitals, nursing homes, living facilities located on
the same premises as, and operated in conjunction with, a nursing home or other
health care facility providing at least the same level and types of services as
a nursing home, convalescent homes, facilities certificated under Chapter 651,
F.S., college dormitories, convents, sorority houses, fraternity houses, and
similar facilities;
(d) For lodging establishments such as hotels, motels,
and similar facilities which are rented, leased, or otherwise provided to
guests by an operator providing overnight occupancy as defined in paragraph
(8)(b);
(e) For separate, specially-designated areas for
overnight occupancy, as defined in paragraph (8)(b), at trailer, mobile home
and recreational vehicle parks and marinas where permanent residency is not
established;
(f) For new and existing time-share plans, provided
that all of the occupancy units which are served by the master meter or meters
are committed to a time-share plan as defined in Chapter 721, F.S., and none of
the occupancy units are used for permanent occupancy.
(g) For condominiums that meet the following criteria:
1. The declaration of condominium requires that at
least 95 percent of the units are used solely for overnight occupancy as
defined in paragraph (8)(b) of this rule;
2. A registration desk, lobby and central telephone
switchboard are maintained; and
3. A record is kept for each unit showing each
check-in and check-out date for the unit, and the name(s) of the individual(s)
registered to occupy the unit between each check-in and check-out date.
(6) Master-metered condominiums.
(a) Initial Qualifications – In addition to the
criteria in paragraph (5)(g), in order to initially qualify for master-metered
service, the owner or developer of the condominium, the condominium
association, or the customer must attest to the utility that the criteria in
paragraph (5)(g) and in this subsection have been met, and that any cost of
future conversion to individual metering will be the responsibility of the
customer, consistent with subsection (7) of this rule. Upon request and
reasonable notice by the utility, the utility shall be allowed to inspect the
condominium to collect evidence needed to determine whether the condominium is
in compliance with this rule. If the
criteria in paragraph (5)(g) and in this subsection are not met, then the utility
shall not provide master-metered service to the condominium.
(b) Ongoing Compliance – The customer shall attest
annually, in writing, to the utility that the condominium meets the criteria
for master metering in paragraph (5)(g). The utility shall establish the date
that annual compliance materials are due based on its determination of the date
that the criteria in paragraphs (5)(g) and (6)(a) were initially satisfied, and
shall inform the customer of that date before the first annual notice is due. The
customer shall notify the utility within 10 days if, at any time, the
condominium ceases to meet the requirements in paragraph (5)(g).
(c) Upon request and reasonable notice by the utility,
the utility shall be allowed to inspect the condominium to collect evidence
needed to determine whether the condominium is in compliance with this rule.
(d) Failure to Comply – If a condominium is master
metered under the exemption in this rule and subsequently fails to meet the
criteria contained in paragraph (5)(g), or the customer fails to make the
annual attestation required by paragraph (6)(b), then the utility shall
promptly notify the customer that the condominium is no longer eligible for
master-metered service. If the customer does not respond with clear evidence to
the contrary within 30 days of receiving the notice, the customer shall
individually meter the condominium units within six months following the date
on the notice. During this six month period, the utility shall not discontinue
service based on failure to comply with this rule. Thereafter, the provisions
of Rule 25-6.105, F.A.C., apply.
(7) When a structure or building is converted from
individual metering to master metering, or from master metering to individual
metering, the customer shall be responsible for the costs incurred by the
utility for the conversion. These costs shall include, but not be limited to,
any remaining undepreciated cost of any existing distribution equipment which
is removed or transferred to the ownership of the customer, plus the cost of
removal or relocation of any distribution equipment, less the salvage value of
any removed equipment.
(8) For purposes of this rule:
(a) “Occupancy unit” means that portion of any
commercial establishment, single and multi-unit residential building, or
trailer, mobile home or recreational vehicle park, or marina which is set apart
from the rest of such facility by clearly determinable boundaries as described
in the rental, lease, or ownership agreement for such unit.
(b) “Overnight Occupancy” means use of an occupancy
unit for a short term such as per day or per week where permanent residency is
not established.
(9)(a) Where individual metering is not required under
subsection (5) and master metering is used in lieu thereof, reasonable apportionment
methods, including sub-metering may be used by the customer of record or the
owner of such facility solely for the purpose of allocating the cost of the
electricity billed by the utility. The term “cost” as used herein means only
those charges specifically authorized by the electric utility’s tariff,
including but not limited to the customer, energy, demand, fuel, conservation,
capacity and environmental charges made by the electric utility plus applicable
taxes and fees to the customer of record responsible for the master meter
payments. The term does not include late payment charges, returned check
charges, the cost of the customer-owned distribution system behind the master
meter, the customer of record’s cost of billing the individual units, and other
such costs.
(b) Any fees or charges collected by a customer of
record for electricity billed to the customer’s account by the utility, whether
based on the use of sub-metering or any other allocation method, shall be
determined in a manner which reimburses the customer of record for no more than
the customer’s actual cost of electricity.
(c) Each utility shall develop a standard policy
governing the provisions of sub-metering as provided for herein. Such policy
shall be filed by each utility as part of its tariffs. The policy shall have
uniform application and shall be nondiscriminatory.
Rulemaking Authority 350.127(2), 366.05(1) FS. Law
Implemented 366.05(1), 366.06(1), 366.81, 366.82 FS. History–New 7-29-69,
Amended 11-26-80, 12-23-82, 12-28-83, Formerly 25-6.49, Amended 7-14-87,
10-5-88, 3-23-97, 10-10-06.
[1] Rule 25-6.049, F.A.C.; see also Order No. PSC-01-0626-PAA-EU, issued March 14, 2001, in Docket No. 001543-EU, In re: Petition for Variance from or Waiver of Rule 25-6.049(5)(a), F.A.C., by Sundestin International Homeowners Association, Inc.
[2] Rule 25-6.049(5), F.A.C.
[3] Order No. PSC-15-0363-PAA-EU, issued September 8, 2015, in Docket No. 150142-EU, In re: Petition by Wiscan, LLC for waiver of Rule 25-6.049(5), F.A.C.
[4] Id.
[5] Rule 28-105.001, F.A.C.
[6] Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).
[7] The Commission has identified the purpose of the grandfather clause to be “advancing conservation, while at the same time, avoiding the retroactive imposition of individual metering retrofit costs on buildings constructed as master-metered buildings prior to the adoption of the rule.” Order No. PSC-00-1802-FOF-EU, issued October 2, 2000, in Docket No. 981104-EU, In re: Proposed Amendment of Rule 25-6.049, F.A.C., Measuring Customer Service.
[8] Even in rule waivers, which this Petition is not, “[t]he types of facilities that are exempted from the individual metering requirement are those in which, due to their nature or mode of operation, it is not practical to attribute usage to individual occupants. For example, hotels and motels are commercial enterprises in which the occupants of the units are not billed for their use of electricity, but rather pay a bundled rate for the use of a room for a limited time.” Order No. PSC-01-0626-PAA-EU, issued March 14, 2001, in Docket No. 001543-EU, In re: Petition for Variance from or Waiver of Rule 25-6.049(5)(a), F.A.C., by Sundestin International Homeowners Association, Inc.
[9] Order
No. PSC-98-0449-FOF-EI, issued on March 30, 1998, in Docket No. 971542-EI, In re: Petition for Declaratory Statement
Regarding Eligibility of Pre-1981 Buildings for Conversion to Master Metering
by Florida Power Corporation.
[10] Order No. PSC-97-0074-FOF-EU, issued on January 24, 1997, in Docket No. 951485-EU, In re: Petition to Initiate Changes Relating to Rule 25-6.049, F.A.C., Measuring Customer Service, by MicroMETER Corporation.
[11] While substantial hardship is considered in rule variances, it is not a factor to consider in the rule at hand. See Order No. PSC-01-0626-PAA-EU, issued March 14, 2001, in Docket No. 001543-EU, In re: Petition for Variance from or Waiver of Rule 25-6.049(5)(a), F.A.C., by Sundestin International Homeowners Association, Inc.
[12] Order No. PSC-97-0074-FOF-EU, issued on January 24, 1997, in Docket No. 951485-EU, In re: Petition to Initiate Changes Relating to Rule 25-6.049, F.A.C., Measuring Customer Service, by MicroMETER Corporation (“In its petition, Micrometer cited as an advantage to its proposal the ability of apartments, condominiums, and other multi-occupancy residential buildings to take service under a commercial rate through a master meter, in lieu of the residential rate billed through individual meters. We do not believe that this would be appropriate. The rates charged to the various classes of customers are based on the unique usage characteristics of each class. We do not believe it would be appropriate to allow customers whose usage is residential in nature to take service under a commercial rate.”).
[13] Order No. PSC-01-0626-PAA-EU, issued March 14, 2001, in Docket No. 001543-EU, In re: Petition for Variance from or Waiver of Rule 25-6.049(5)(a), F.A.C., by Sundestin International Homeowners Association, Inc.
[14] See § 366.91, F.S. (using a statutory scheme wherein customers can offset their own energy use via renewable energy, not others); see also Florida Senate Bill 1718 (2021) (showing a proposed bill that the Legislature did not pass which would have expressly authorized businesses to net meter and use renewable generation in the same manner that WHG plans).