Case Background
On December 15,
2025, Ms. Karen Kostantis (Ms. Kostantis) filed Informal Complaint No. 1491428E
with the Commission under Rule 25-22.032, Florida Administrative Code (F.A.C.),
against Duke Energy Florida, LLC (DEF). Ms. Kostantis alleged that DEF
installed an AMI meter without authorization, improperly billed for an opt-out,
non-AMI meter, and misclassified her service as RS-1 (residential).
In or about
March 2022, Ms. Rita DeCola (Ms. DeCola), mother of Ms. Kostantis, obtained a
non-AMI meter for 4425 Rutledge Drive, Palm Harbor, Florida. An Advanced
Metering Infrastructure (AMI) meter, also known as a “smart” meter, transmits meter
specific information electronically to DEF. A non-AMI meter does not transmit
information electronically and requires a technician to visit the site monthly
to read the meter and to connect or disconnect electrical service. DEF’s
standard meter is an AMI meter. However, DEF Tariff Sheet 6.400 gives customers
the ability to opt-out from using the standard AMI meter and instead use a
non-AMI meter. To opt-out under Tariff Sheet 6.400, a customer must pay an
initial set-up fee and an additional monthly fee to cover the monthly site
visits. The customer must also allow physical access
to the meter so that it can be read monthly by DEF personnel.
On October 29,
2025, Ms. Karen Kostantis (Ms. Kostantis) filed Informal Complaint No. 1488824E
alleging improper billing and payment handling against Duke Energy Florida, LLC
(DEF). The dispute began after the death of Ms. DeCola on July 25, 2025. Ms.
DeCola was the prior account holder at 4425 Rutledge
Drive and the dispute was about whether DEF properly credited payments to that
account. That informal complaint was closed on December 29th, 2025, finding no
violations by DEF.
Over the course
of that dispute, DEF sought to close the original account held by Ms. DeCola,
because company policy does not permit accounts to remain open in a deceased
person’s name. After receiving Ms. Kostantis’s request for electric service on
October 30, 2025, DEF set up account number XXXXXXXX5339 (Account 5339).
However, DEF was unable to verify the identification number Ms. Kostantis
provided, so the account was placed on hold. DEF nevertheless initiated
electrical service due to a technical issue in its system.
Throughout
November 2025, DEF attempted to obtain a valid form of identification. On or
about December 2, 2025, Ms. Kostantis provided a valid passport to DEF. DEF
closed Account 5339 and opened account number XXXXXXXX2470 (Account 2470) with
the rate classification for residential service (RS-1).
On November 19,
2025, DEF technicians removed the non-AMI meter at 4425 Rutledge Drive and
installed the standard AMI meter. DEF removed the non-AMI meter because no customer
was paying the required monthly fee. Ms. Kostantis did not request an opt-out
under Tariff Sheet 6.400 in any communication with DEF before this point.
On December 15, 2025, Ms. Kostantis discovered that the
AMI meter was installed and filed Informal Complaint No. 1491428E. Ms.
Kostantis alleged that DEF installed the AMI meter without authorization,
improperly billed for an opt-out, non-AMI meter, and misclassified her service
as RS-1. Commission staff reviewed the complaint and found no violations by
DEF. Ms. Kostantis was unsatisfied and the matter was referred to the
Commission’s Process Review Team (PRT) for review.
On February 6,
2026, while the complaint was under review, Ms. Kostantis attempted to pay the
initial set-up fee to obtain a non-AMI meter, characterizing her payment as
“under protest.” However, the initial set-up fee was sent
to the inactive Account 5339, and not the active Account 2470. After DEF
discovered the payment, it mailed a refund check to Ms. Kostantis on February
27, 2026, and informed her that any payment for the opt-out must be sent to the
active Account 2470 and that DEF could not transfer the funds directly between
the accounts because the two accounts were not associated. Ms. Kostantis has
stated that she has not received the check, and DEF has stated that the check
has been neither returned nor cashed.
On March 24, 2026,
Commission staff advised Ms. Kostantis that her 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.
On May 8, 2026,
Ms. Kostantis filed a formal complaint against DEF under Rule 25-22.036(3)(b),
F.A.C., alleging the same material facts contained in her informal complaint. The
formal complaint asserts that DEF installed the Smart/AMI meter improperly and
without authorization, improperly billed for the AMI Opt-Out meter, and
misclassified her service as RS-1.
On May 21, 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 any rules violated or actions taken by DEF that constitute a violation
of any applicable statute, rule, Commission order, or the company tariff.
This
recommendation addresses whether DEF’s Motion to Dismiss the Complaint should
be granted and the appropriate disposition of Ms. Kostantis’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 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
Ms. Kostantis’s formal complaint states that DEF violated
Tariff Sheet 6.400 in its handling of the non-AMI meter removal and the billing
to obtain an opt-out. The formal complaint further alleges that DEF misclassified
her service as RS-1.
DEF’s Motion to Dismiss
DEF’s Motion to Dismiss states that the complaint “fails
to identify the rule, order, or statute that DEF allegedly violated, nor does
she describe any actions taken on behalf of DEF that constitute a violation of
any rules, statutes, company tariff, or Commission Orders.”
Analysis
The Commission has previously held pro se litigants such
as Ms. Kostantis 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 DEF’s operation and billing practices under Tariff
Sheet 6.400 and the classification of service, which are under Commission
jurisdiction as provided under Section 366.04, F.S. Staff believes that a
complaint in strict compliance with the rule is not necessary for the
Commission to make a decision at this time. Staff believes that the factual
allegations contained in Ms. Kostantis’s complaint and the extensive
documentation in this docket are sufficiently clear to show which of DEF’s actions
Ms. Kostantis believes violated Commission rules. The complaint shows that
DEF’s actions related to the AMI meter and its classification and billing
practices are the actions to which Ms. Kostantis objects.
Staff believes that these allegations sufficiently
identify the rule and actions at issue 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. Further, staff
does not believe it would be an efficient use of the parties’ resources to
require Ms. Kostantis to amend her complaint merely to comply with the
technical pleading rules. Therefore, staff recommends that DEF’s Motion to
Dismiss should be denied.
Issue 2:
What is the appropriate disposition of Petitioner’s
complaint?
Recommendation:
Staff recommends that Ms. Kostantis’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.
(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, Ms. Kostantis’s petition
fails to show that DEF violated any rules, statutes, orders, or its tariff in
its dealings with the AMI meter, its billing practices, or its classification
of service.
Formal Complaint
Ms. Kostantis’s formal complaint states that DEF violated
Tariff Sheet 6.400 by removing the previous non-AMI meter and installing a standard
AMI meter without authorization. The complaint further states that DEF
improperly classified her electric account at RS-1. The complaint alleges that
DEF installed the AMI meter without consent, that the AMI meter is causing
medical harm to a resident at the service location, and that DEF has refused to
accept the opt-out fee for a non-AMI meter under Tariff Sheet 6.400. Further,
the complaint alleges that the RS-1 rate schedule is inapplicable because the
service location is not an eligible residence, and that therefore the General
Service (GS-1) rate schedule should apply. Ms. Kostantis seeks the
reclassification of her account to GS-1 and for DEF to install a non-AMI meter
at DEF expense.
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. Tariff Sheet 6.400 provides that:
Customers wishing to take service under this Rider and
relocating to a premise where an existing approved non-communicating meter is
already in place, will not be required to pay the Initial Set-Up Fee. Customers
who cancel service under this Rider and then later re-enroll for this service
at any location would be required to submit another Initial Set-Up Fee.
DEF removed the previous non-AMI meter after the account
associated with it and paying monthly fees for it was closed. Ms. Kostantis did
not request a non-AMI meter when she opened either Account 5339 or Account
2470, thus, she was never billed the required monthly fees for a non-AMI meter.
To obtain a non-AMI meter, Ms. Kostantis must pay the set-up fee and the
monthly fees to her active Account 2470. Further, she must allow DEF personnel physical
access to the meter so it can be read monthly. There is no medical exemption to
the initial or monthly fees in Tariff Sheet 6.400. Therefore, staff recommends
that DEF has not violated the provisions of Tariff Sheet 6.400.
Tariff Sheet 6.120 sets the applicability of the RS-1 rate
classification as “residential customers taking service exclusively for
domestic purposes in a single dwelling house, a mobile home, or individually
metered single apartment unit or other unit having housekeeping facilities,
occupied by one family or household as a residence.” Tariff Sheet 6.150 sets
the applicability of the GS-1 rate classification as “any customer, other than
residential, for light and power purposes for which no other rate schedule is
specifically applicable.” Tariff Sheet 6.150 also states that the rate is “Closed
to New Customers as of 01/01/2022.” Staff recommends that DEF correctly applied
the RS-1 rate classification to Ms. Kostantis’s account associated with 4425
Rutledge Drive. Thus, Staff does not believe that DEF violated a statute, rule,
order, or applicable provision of DEF’s Commission-approved tariff in its
application of Tariff Sheet 6.400 or in classifying Ms. Kostantis’s account as
RS-1; therefore, the complaint should be denied.
Conclusion
Staff recommends that Ms. Kostantis’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.
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.
