Case Background
Duke Energy
Florida, LLC (DEF or Utility) provides electric service to approximately 2
million customers across the state. DEF filed its Petition for Rate Increase,
minimum filing requirements (MFRs), and testimony on April 2, 2024. DEF filed
its MFRs based on three projected test years, from January 1 to December 31,
2025; January 1 to December 31, 2026; and January 1 to December 31, 2027.
The Office of
Public Counsel’s (OPC’s) intervention in this docket was acknowledged by Order
No. PSC-2024-0041-PCO-EI, issued February 26, 2024. On April 19, 2024,
intervention in this proceeding was granted to Florida Rising and the League of
United Latin American Citizens of Florida (FR/LULAC); Florida Industrial Power
Users Group (FIPUG); Florida Retail Federation (FRF); and Sierra Club. On April
24, 2024, intervention was granted to White Springs Agricultural Chemicals,
Inc. d/b/a PCS Phosphate - White Springs (PCS Phosphate); and Nucor Steel
Florida, Inc. (Nucor). On May 13, 2024, intervention was granted to the Southern
Alliance for Clean Energy (SACE). Petitions for Intervention are pending for
Americans for Affordable Clean Energy, Inc.; Circle K Stores, Inc.; RaceTrac
Inc.; and Wawa, Inc. (Fuel Retailers), and for EVgo Services, LLC as of the date of filing of this
recommendation.
Order
Establishing Procedure No. PSC-2024-0092-PCO-EI, issued April 11, 2024,
established controlling dates and procedures for this proceeding, including for
a technical hearing to be held in Tallahassee, Florida for August 12–16, 2024,
with August 19–23, 2024, reserved for the continuation and conclusion of the
technical hearing, if necessary. In addition to the technical hearing, the
Chairman’s office scheduled four service hearings for the purpose of taking
testimony from Duke’s customers regarding Duke’s provision of service and its
requested rate increase. Notice of the service hearings was issued by the
Commission on May 23, 2024, and published in the Florida Administrative
Register on May 24, 2024. By notice, virtual
and in-person service hearings are scheduled for June 11 and 18, 2024, in
Tallahassee, Florida. In-person customer service hearings will be held on June
12, 2024 in Inverness, Florida, and June 12, 2024 in Largo, Florida. Spanish language
interpreters were noticed for the June 11 virtual and in-person service
hearing, and at the June 12 service hearing in Largo, Florida.
On
April 17, 2024, OPC filed a Motion for Additional Service Hearings (OPC’s
Motion). On that same date, FR/LULAC filed a Notice of Joinder in Citizens’
Motion. In the Motion, OPC requested, in part, that the Commission establish
three additional in-person service hearings and provide a Spanish language
interpreter at an in-person service hearing in the Orlando area. On May 8,
2024, the Prehearing Officer issued Order No. PSC-2024-0147-PCO-EI, denying
OPC’s request for additional service hearings, noting that the current service
hearing schedule affords multiple opportunities and choices for customers who
wish to participate.
On
May 17, 2024, FR/LULAC filed a Motion for Reconsideration of Order No.
PSC-2024-0147-PCO-EI, which OPC, Sierra Club, and FRF support. FR/LULAC
contends that Order No. PSC-2024-0147-PCO-EI overlooked the fact that the
Orlando portion of Duke’s territory has more customers than any other portion
of Duke’s territory and Spanish language customers do not have access to a
service hearing with translation services. On the same day, FR/LULAC filed a
request for oral argument. On May 20, 2024, OPC filed a Notice of Joinder of
FR/LULAC’s Motion for Reconsideration.
On
May 24, 2024, DEF filed a Response in Opposition (Response) to FR/LULAC’s
Motion for Reconsideration. DEF contends that FR/LULAC’s arguments fail to
identify a mistake of law or a fact that was overlooked by the Prehearing
Officer. DEF argues that OPC raised the same points in OPC’s Motion that
FR/LULAC’s have raised in this Motion for Reconsideration. Therefore, DEF
argues that FR/LULAC’s Motion should be denied.
This
recommendation addresses FR/LULAC’s Motion for Reconsideration, and the Joinder
and Response thereto. The Commission has jurisdiction over this matter pursuant
to Chapter 366, Florida Statutes (F.S.), including Section 366.06, F.S.
Discussion
of Issues
Issue 1:
Should FR/LULAC’s Request for Oral Argument on its
Motion for Reconsideration of Order No. PSC-2024-0147-PCO-EI be granted?
Recommendation:
No. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and rule on the Motion. However, if
the Commission wants to exercise its discretion to hear oral argument, staff
recommends that 5 minutes per side is sufficient. (Thompson)
Staff Analysis:
Law
Rule 25-22.0022(1), Florida Administrative Code (F.A.C.),
allows a party to request oral argument before the Commission for any
dispositive motion (such as motions for reconsideration) by filing a separate
written pleading filed concurrently with the motion on which argument is
requested, and stating with particularity why oral argument would aid the
Commission. Granting or denying oral argument is within the sole discretion of
the Commission under Rule 25-22.0022(3), F.A.C.
FR/LULAC’s Position
FR/LULAC requests the opportunity to provide oral argument
on the Motion to speak directly to the Commission about why FR/LULAC places
such importance on there being an Orlando-area service hearing as well as
answer any questions the Commission may have.
DEF’s Position
In its Response, DEF argues that oral argument is not
necessary as the Commission can make its decision based on the written filings.
However, if oral argument is permitted, DEF will participate.
Conclusion
Granting or denying oral argument is within the sole
discretion of the Commission. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and decide FR/LULAC’s Motion.
However, if the Commission wants to exercise its discretion to hear oral
argument, staff recommends 5 minutes per side is sufficient.
Issue 2:
Should Reconsideration of Order No. PSC-2024-0147-PCO-EI
be granted?
Recommendation:
No. Reconsideration should be denied because the Motion
for Reconsideration and Joinder fail to raise a point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering their decision. (Thompson)
Staff Analysis:
Law
The appropriate standard of review for reconsideration of
a Commission order is whether the motion identifies a point of fact or law that
the Commission overlooked or failed to consider in rendering the order under
review. See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315
(Fla. 1974); Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962); and Pingree
v. Quaintance, 394 So. 2d 162 (Fla. 1st DCA 1981). It is not appropriate to
reargue matters that have already been considered. Sherwood v. State,
111 So. 2d 96 (Fla. 3d DCA 1959) (citing State ex. rel. Jaytex Realty Co. v.
Green, 105 So. 2d 817 (Fla. 1st DCA 1958)). Furthermore, a motion for reconsideration
should not be granted “based upon an arbitrary feeling that a mistake may have been
made, but should be based upon specific factual matters set forth in the record
and susceptible to review.” Stewart Bonded Warehouse, Inc., 294 So. 2d at 317.
FR/LULAC’s Motion for Reconsideration
In its Motion for Reconsideration, FR/LULAC requests the
Commission to reconsider the denial of an Orlando service hearing because the
Orlando portion of the DEF service territory has more Duke customers than any
other service area with no service hearing.
Orange County has 419,517 Duke customers, behind only Pinellas County.
FR/LULAC notes that this is “nearly ten times” as many Duke customers as Citrus
County
(51,361 customers), which was selected for a service hearing.
FR/LULAC maintains the need for an in-person service
hearing despite the virtual hearing opportunities because many people can struggle with the technology to participate
in a virtual service hearing and neither of the virtual service hearings
include a Spanish interpreter. In contrast, the Orlando service area includes a
large Spanish-speaking population.
Joinder by OPC
On May 20, 2024, OPC filed a Notice of Joinder of FR/LULAC’s
Motion for Reconsideration. OPC noted that, in addition to the request made by FR/LULAC,
the Commission should also have at least one more in-person service hearing in
Madison, Suwannee, and/or Lafayette County region for the same purpose of
mitigating the distance that any of those customers would have to travel to
attend an in-person service hearing.
Sierra Club and FRF also stated their support of FR/LULAC’s
motion. No other parties provided comment.
DEF’s Response in Opposition
On May 24, 2024, DEF filed its
Response in Opposition. DEF argues FR/LULAC has not identified a mistake of law
or fact that would justify reconsideration of the hearing locations. Duke
contends that while Order No. PSC-2024-0147-PCO-EI did not specifically set
forth the rubric by which service hearings for this docket were established, it
is fair to assume that the Commission is familiar with the population
dispersion of the state and took that into consideration along with other
relevant factors when scheduling service hearings in this proceeding.
Analysis
Motion for Reconsideration
The Commission
has held that a mistake of fact or law standard applies to reconsideration by
the Commission of a Prehearing Officer’s order.
The Prehearing Officer is the procedural administrator of a
hearing-track case. They rule on motions and procedural matters and conduct
prehearing conferences, prior to referral of such cases to the Commission for
final decision. Pursuant to Rule 28-106.211, F.A.C., the Prehearing Officer may
issue any orders necessary to effectuate discovery, to prevent delay, and to
promote the just, speedy, and inexpensive determination of all aspects of the
case. “The Prehearing Officer has wide discretion in balancing the interests of
parties in the furtherance of the orderly administration of justice.”
The service hearings set by a Prehearing Officer are controlled in part by the
selection of hearing dates by the Chairman, which is in turn based upon the
availability of the Commission’s calendar and many other factors.
Much of FR/LULAC’s argument on
reconsideration repeats matters raised in OPC’s Motion for additional service
hearings, which the Prehearing Officer considered when denying the request.
OPC’s Motion specifically requested, amongst other things, an Orlando-area
service hearing in order for the in-person service hearings to be “distributed
more evenly throughout DEF’s service territory.” FR/LULAC’s Motion for
Reconsideration reargues this same point. Order No. PSC-2024-0147-PCO-EI denying
OPC’s Motion considered these arguments and held that “[e]xperience indicates
that overall participation may increase if customers are allowed the option to
participate in service hearings virtually, and that customers may actually
prefer virtual to in-person participation.” Finally, while not specifically
referenced in Order No. PSC-2024-0147-PCO-EI, as a matter of clarification,
Spanish language interpretation will be available at several of the service
hearings.
It is not appropriate to reargue
matters on reconsideration that have already been considered. FR/LULAC has not
clearly identified any specific mistakes of fact or law the Prehearing Officer
made in denying OPC’s Motion for Additional Service Hearings. Without a
specific mistake of fact or law, a motion for reconsideration must be denied,
even if the reviewing body would have reached a different decision.
Based on the above, FR/LULAC’s Motion should be denied.
OPC’s
Notice of Joinder and Request for Additional Service Hearing
In OPC’s Notice of Joinder, OPC indicates
support for FR/LULAC’s Motion for Reconsideration but also goes further in
requesting a service hearing in the Madison, Suwannee, or Lafayette County
region. OPC’s original Motion for Additional Service Hearings requested a
hearing be held in Live Oak, Florida, which is located in Suwannee County. This
request was denied in Order No. PSC-2024-0147-PCO-EI, and no mistake of fact or
law is even alleged to have been overlooked in OPC’s Joinder. Therefore, OPC’s
request for a service hearing in the Madison, Suwannee, or Lafayette County
region should also be denied.
Conclusion
For the reasons discussed above, staff recommends that
FR/LULAC’s Motion for Reconsideration and OPC’s Joinder should be denied.
Issue 3:
Should this docket be closed?
Recommendation:
No. This docket should remain open pending the
Commission’s final resolution of DEF’s requested permanent base rate increase.
(Thompson)
Staff Analysis:
This docket should remain open pending the
Commission’s final resolution of DEF’s requested permanent base rate increase.
