Case Background
On October 17,
2025, Mr. Justin Gage (Mr. Gage) filed Informal Complaint No 1488062E, alleging
that a PME-4 switchgear unit administered by Duke Energy Florida, LLC
(DEF) located near his house was out of compliance with the National Electrical
Safety Code (NESC). In particular, Mr. Gage alleged that the PME-4 unit had
missing or improper safety stickers, was improperly sealed at the base, and
that the door of the unit was too close to nearby bushes to be fully
opened.
Mr. Gage had previously
been in contact with DEF regarding the PME-4. On September 4, 2025, Mr. Gage
reported that a loud boom had come from the PME-4. A DEF technician arrived
onsite and confirmed that Mr. Gage had power. At that time Mr. Gage raised his concerns
with the PME-4 with the technician. The technician told Mr. Gage that his
concerns would be investigated and put a safety sticker on the unit. A DEF
investigation found that the PME-4 was in compliance with the NESC and that Mr.
Gage was not served by that PME-4 but by a nearby transformer. Mr. Gage then
filed an informal complaint with the Commission under Rule 25-22.032, Florida
Administrative Code (F.A.C.).
While the informal
complaint was being processed at the Commission, Mr. Gage also filed a
complaint with the Occupational Safety and Health Administration (OSHA). OSHA
reached out to DEF about the complaint and a DEF Supervisor and Safety
Professional examined the PME-4 on November 25, 2025. They found no OSHA or NESC
violations. On or about that date, DEF removed the bushes that were near the PME-4.
In early December OSHA informed Mr. Gage that his case was being closed because
the bushes were removed.
On January 6, 2026,
Commission engineering safety staff examined the PME-4 unit and found no
violations of the NESC. Mr. Gage was unsatisfied and the matter was referred to
the Commission’s Process Review Team (PRT) for review. In March, Commission
staff advised Mr. Gage that his informal complaint had been reviewed by the
PRT, and it did not appear that DEF had violated any Commission statutes, rules,
orders, or its tariff in its handling of the matter, and that the Commission
did not have jurisdiction to award damages.
On March 27,
2026, Mr. Gage filed a formal complaint against DEF under Rule 25-22.036(3)(b),
F.A.C., alleging the same material facts contained in his informal complaint.
The formal complaint asserts that the PME-4 unit was out of compliance with the
NESC from September 2025 to December 2025. Mr. Gage further alleges that DEF
made false or misleading statements to the Commission regarding the PME-4’s
compliance, and that Commission staff failed to properly review his informal
complaint.
On April 3,
2026, DEF filed a Motion to Dismiss the Complaint. DEF asserts that the
complaint does not comply with Rule 25-22.036, F.A.C., because the complaint
fails to contain competent substantial evidence that any action taken by DEF
constitutes a violation of any applicable statute, rule, Commission order, or
the company tariff. Further, DEF denies that it made any false statements to
the Commission. On April 6, Mr. Gage filed a response, asserting that the
complaint sets forth photographic evidence of NESC violations.
This
recommendation addresses whether DEF’s Motion to Dismiss the Complaint should
be granted and the appropriate disposition of Mr. Gage’s complaint against DEF.
The Commission has jurisdiction over this matter pursuant to Section 366.04.,
Florida Statutes (F.S.).
Discussion
of Issues
Issue 1:
Should the Commission grant DEF’s Motion to Dismiss?
Recommendation:
No, the Commission should deny DEF’s Motion.
(Newman, Crawford)
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. Varnes
v. Dawkins, 624 So. 2d 349, 350 (Fla. 1st DCA 1993). 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 determination of the petition’s sufficiency
is confined to the petition and the documents incorporated therein and the
grounds asserted in the motion to dismiss. Id.
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. Id.
Rule 25-22.036., F.A.C., prescribes the elements that must
be contained in a formal complaint:
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.
Formal Complaint
Mr. Gage’s formal complaint states that DEF violated three
Rules: Rule 25-6.0345, F.A.C., which adopts the 2023 NESC as the applicable
safety standards for transmission and distribution facilities; Rule 25-6.039,
F.A.C., which requires utilities to establish safe work practices; and Rule
25-6.0346, which requires utilities to submit quarterly reports certifying work
order compliance with all applicable safety standards. To support these claims,
Mr. Gage supplied photographs purporting to show the violations with
explanatory text.
DEF’s Motion to Dismiss
DEF’s Motion to Dismiss states that the complaint “fails
to provide competent or substantial evidence” that any of DEF’s actions violate
any rule. DEF states that it has repeatedly inspected the PME-4 and have found
no NESC violations. DEF further states that it has never made false or
misleading statements to the Commission regarding the inspections of the PME-4.
Mr. Gage’s response to DEF’s Motion to Dismiss reiterates the claims made in
the formal complaint about the physical condition of the PME-4.
Analysis
The Commission has previously held pro se litigants such
as Mr. Gage to a relaxed pleading standard, in order to prevent delay and
promote resolution of litigants’ claims. Staff believes the petition states a
cause of action related to the safety compliance of DEF facilities, which is under
Commission jurisdiction as provided under Section 366.04(6), F.S. Staff
believes that the factual allegations contained in Mr. Gage’s complaint are
sufficiently clear to show which of DEF’s actions Mr. Gage believes violated Commission
rules. The complaint and accompanying photographs show how Mr. Gage believes
the PME-4 was out of compliance with the NESC. Mr. Gage alleges insufficient clearance for
the PME-4’s door and improper safety labelling.
Staff believes that these allegations relate to DEF’s
compliance with Commission safety standards and that the facts and
documentation in the docket sufficiently state a cause of action for the
Commission to make a determination on the formal complaint, as discussed in
Issue 2. Therefore, staff recommends that DEF’s Motion to Dismiss should be
denied.
Issue 2:
What is the appropriate disposition of Mr. Gage’s
complaint?
Recommendation:
Staff recommends that Mr. Gage’s formal complaint
should be denied. It does not appear that DEF violated its Commission-approved
tariff or any statutes, rules, or orders of the Commission in the condition or
maintenance of the PME-4 unit. (Newman, Crawford)
Staff Analysis:
Pursuant to Rule 25-22.036(2), F.A.C., a complaint
is appropriate when a person complains of an act or omission by a person
subject to Commission jurisdiction that affects the complainant’s substantial
interests and that is in violation of a statute enforced by the Commission, or
of any Commission rule or order. As discussed below, Mr. Gage’s petition fails
to show that DEF violated any rules, statutes, orders, or its tariff in the condition
or maintenance of the PME-4 unit.
Formal Complaint
Mr. Gage’s formal complaint states that DEF violated three
rules: Rule 25-6.0345, F.A.C., which adopts the 2023 NESC as the applicable
safety standards for transmission and distribution facilities; Rule 25-6.039,
F.A.C., which requires utilities to establish safe work practices; and Rule
25-6.0346, F.A.C., which requires utilities to submit quarterly reports
certifying work order compliance with all applicable safety standards. Mr. Gage
alleges the PME-4 unit was not in compliance with the NESC in three ways: the
unit lacked the proper safety stickers, the base was improperly sealed, and the
door had insufficient clearance. Mr. Gage claims that DEF was aware of the
noncompliance on September 4, 2025, but denied the fact to the Commission and
refused to bring the unit into compliance. Mr. Gage states the PME-4 was
noncompliant from September 2025 to December 2025, at which point DEF brought
the unit into compliance under pressure from OSHA. Mr. Gage further states that
Commission staff failed to properly review his complaint.
Analysis
Based on the information provided, it does not appear that
DEF violated a statute, rule, order, or applicable provision of DEF’s
Commission-approved tariff. Section 25-6.0345, F.A.C., states that “[t]he
safety standards prescribed by the 2023 National Electrical Safety Code (NESC)
C2-2023, are adopted and incorporated by reference into this rule as the
applicable safety standards for transmission and distribution facilities
subject to the Commission’s jurisdiction.” The other potential rule violations,
including DEF’s alleged false statements to the Commission, depend on finding
that DEF violated the NESC.
The PME-4 unit was inspected at least three times. First,
on September 4, 2025, a DEF technician responded to Mr. Gage’s report of a loud
boom coming from the unit, and Mr. Gage raised his concerns with the DEF
technician. At that time, the technician examined the unit, logged Mr. Gage’s
complaints, and placed a new safety sticker on the unit. DEF’s
investigation at that time found no NESC violations; in particular, it found
that the unit was properly sealed and that the unit could be safely accessed.
Second, on November 25, 2025, a DEF Supervisor and Safety Professional
inspected the PME-4 and found no NESC or OSHA violations. At that time DEF put
new safety stickers on the unit and notified the HOA that the bushes near the
unit were being removed “to satisfy Mr. Gage’s complaint.” Third, on January 6,
2026, Commission staff inspected the unit and found that it was in good
condition and well maintained. Commission staff found no NESC violations.
Staff does not believe that DEF violated the NESC. Multiple
inspections by DEF technicians and Commission staff failed to find any
violations of the NESC. In his complaint, Mr. Gage fails to identify which
provisions of the NESC he believes were violated. DEF put new safety stickers
on the unit and removed the nearby bushes to satisfy Mr. Gage; staff believes these
actions appear to resolve Mr. Gage’s concerns with the PME-4, as the formal complaint
acknowledges the unit was brought into compliance in December. OSHA did not
conclude that DEF violated the NESC, merely closing its case after the
conditions Mr. Gage complained about were removed. Mr. Gage also alleges that
Commission staff improperly investigated his complaint. Mr. Gage does not
explain how Commission staff improperly reviewed his complaint or how
Commission staff improperly used its discretion. Staff does not believe that
DEF violated a statute, rule, order, or applicable provision of DEF’s
Commission-approved tariff in the condition or maintenance of the PME-4 unit;
therefore, the complaint should be denied.
Conclusion
Staff recommends that Mr. Gage’s formal complaint should
be denied. It does not appear that DEF violated its Commission-approved tariff
or any statutes, rules, or orders of the Commission in the condition or maintenance
of the PME-4 unit.
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. (Newman, Crawford)
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.
