86-000819 Kenneth Tuch vs. Florida Power And Light Company Status: Closed Recommended Order on Thursday, January 29, 1987.

Summary: Petitioner to pay Florida Power & Light $1,829.57 for diverting electrical current due to meter tampering.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH TUCH , )

)

Petitioner , )

)

vs. ) CASE NO. 86-0819

)

FLORIDA POWER AND LIGHT COMPANY , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

This matter was heard on June 24 and July 28, 1986, in Broward County,

Florida. Both parties submitted proposed recommended orders and closing

arguments. Rulings on the findings of fact contained in the proposed

recommended orders are found in the Appendix to this Recommended Order.

For Petitioner : Christopher C. Cloney, Esquire,

Ft. Lauderdale, Florida

For Respondent : Susan Roeder Martin, Esquire,

Miami, Florida

BACKGROUND

This matter was referred to the Division of Administrative Hearings by the

Florida Public Service Commission for hearing on the petition to initiate formal

complaint which Mr. Tuch filed with the Clerk of the Florida Public Service

Commission on January 17, 1986. Florida Power and Light Company rendered a bill

to Mr. Tuch in the amount of $1,987.45 for unmeasured electric energy which it

maintains Tuch received through meter tampering and current diversion. The bill

is the subject of his complaint. Florida Power and Light Company had proposed

to disconnect the electrical service of Mr. Tuch on November 19, 1985, unless

the amount of the bill rendered to him was paid, but disconnection was withheld

pending the outcome of this proceeding.

ISSUES

The issue in this case is whether Kenneth Tuch is liable to Florida Power

and Light Company for receipt of unmeasured electric energy and if so, what

amount is due?

FINDINGS OF FACT

1. Kenneth Tuch resides alone at 1924 N.E. 25th Street, Ft. Lauderdale,

Florida. He receives his electric current from Florida Power and Light Company.

2. In June of 1985, an employee of American Cable Company went to Mr.

Tuch's home to investigate a complaint about the quality of cable television

reception at the Tuch residence. The employee noticed that the air conditioning

was on in the Tuch residence while he was investigating the complaint. When

following the cable lines outside the home, he noticed the electric meter was

not operating. He provided this information to Florida Power and Light which

sent two employees to the Tuch residence on June 20, 1985. They found the air

conditioning and swimming pool pump were on, but the electric meter disk did not

turn. The meter seal was opened and the meter was removed from its socket, and

photographed. The photographs demonstrate that the potential clip of the meter

was open.

3. The potential clip is used when testing a meter. When it is open no

registration of electric current is made.

4. The meter was originally placed at the Tuch residence in 1960. The

potential clip could not have been open then, for it never would have registered

any electric consumption were that the case. The potential clip would not have

fallen into the open position on its own. There was tampering with the

potential clip because a screw in the slot in the center of the clip had been

tightened to keep the clip in the open position. In addition, the picture of

the potential clip and the screws (FP&L Exhibit 5) show wear and tear on the

screw. Marks on the area around the screw slot in the center of the potential

clip show that the clip has been slid back and forth. These facts prove a

deliberate attempt to divert unmeasured electricity.

5. The meter seal consists of a wire bail of a horseshoe shape which fits

into a rectangular base body approximately 1 and 1/4 inches by 3/4 inch by 1/8

inch. The seal removed from Tuch's meter bears the inscription on one side "77

FP&LS" and on the other side, the numbers "0379126". The condition of the seal

was such that by tugging on the wire bail, it would loosen from the body of the

seal, and open, but the bail could be replaced into the seal body giving the

impression on casual observation that the seal was intact. While the

inscription on the seal indicates that it is a genuine Florida Power and Light

seal, it is not in the condition in which seals are originally placed. It is

not possible to open the wire bail of a seal and thereby gain access to the

meter canopy without tampering with the seal.

6. The billings for consumption of electricity at the Tuch residence show

an erratic pattern of monthly electric consumption during the period for which

Florida Power and Light has records available, January 1982 through June 1986.

For the years 1982 through 1984, Mr. Tuch was billed for an average of 11,022.33

kilowatts per year.

7. On June 20, 1985, the meter at the Tuch residence was replaced with a

new meter which was locked in place. Readings were taken from the new meter on

June 21, June 27, July 2 and July 9. During those 19 days, 1,063 kilowatts had

been consumed for an average use of 55.9 kilowatts per day. This equals 1,677

kilowatts for a 30 day period.

8. An average percentage of use chart was introduced into evidence as the

basis for distributing the total yearly kilowatt consumption based upon seasonal

variations in consumption. According to the chart 9.8 percent of the total

kilowatts used by Florida Power and Light customers in 1985 were consumed in the

July billing period. That being so, the total estimated annual usage given a

July bill of 1,677 kilowatts would be 17,112 kilowatts. The total additional

billing on that basis for 1982, 1983, 1984 and 1985 (through the date of the

discovery of the tampering) would be $1,829.57.

9. A potential problem with this methodology for determining annual usage

is that it extrapolates a bill for a one year period based on readings taken

over only 19 days. As a check on the method Florida Power and Light also placed

in evidence the readings for approximately six months actual usage after

replacement of the meter which had been tampered with. Mr. Tuch used 7,865

kilowatts during the 172 day period from June 20 through December 31, 1985.

This was an average use of 45.72 kilowatts per day. When multiplied by 365 days

the estimated yearly usage is 16,690 kilowatts. This results in a billing

$17.52 lower than the extrapolation and shows the reasonableness of using the 19

day period to project annual usage.

10. The electric meter removed from Mr. Tuch's residence was tested, but

due to its age was then destroyed. Florida Power and Light rendered its

additional bill two months later. Mr. Tuch therefore did not have the

opportunity to inspect or test the meter. Florida Power and Light tested the

meter appropriately before it was destroyed and it was accurately registering

current flow when the potential clip was closed. If this case involved

questions about the accuracy of the registration on the meter which had been

removed, Mr. Tuch's inability to test the meter would have seriously impaired

the fairness of this proceeding. The testimony and photographic evidence, which

is accepted, is that the potential clip was open, and thus the meter would

register no use of current at all. Essentially the meter had been turned on and

off. This tampering caused the underregistration, not inaccuracy of the meter's

measurement ability. In this case, the inability to test the old meter did not

prejudice Mr. Tuch.

11. Florida Power and Light is not entitled to recover $157. 88 in

investigative costs. The witness proffered to testify about investigative costs

was listed in interrogatories as a witness on matters of corporate policy. See

Notice of Serving Answers to Interrogatories filed April 21, 1986. While it may

be corporate policy to bill those who divert current for investigative charges,

the exhibit purporting to set out the costs incurred in the Tuch investigation

was admitted to show the corporate form for recording charges. No evidence of

the charges in this specific case was admitted (Transcript 196-97). 1/

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction in this

matter. Section 120.57(1), Florida Statutes (1985).

13. The petition to initiate formal complaint was filed by Mr. Tuch

pursuant to Section 25-22.36(5), Florida Administrative Code. He disputed the

assertion by Florida Power and Light that he had tampered with his electric

meter and therefore was subject to back billing. The rules which control the

outcome of this proceeding are Rules 25-6.104 and 25-6.105(5)(i) and (j),

Florida Administrative Code. They read:

25-6.104. Unauthorized use of energy.

In the event unauthorized or fraud-

ulent use, or meter tampering, the

utility may bill the customer on a

reasonable estimate of the energy used.

25-6.015(5) ... [E]ach utility

may refuse or discontinue service

under the following conditions:

(i) without notice in the event of

tampering with meters or other

facilities furnished and owned by

the utility;

(j) without notice in the event of

unauthorized or fraudulent use of

service. Whenever service is dis-

continued for fraudulent use of

service the utility may, before

restoring service, require the

customer to make at his own expense

all changes in facilities or

equipment necessary to eliminate

illegal use and to pay an amount

reasonably estimated as the loss in

revenue resulting from such

fraudulent use.

These are consistent with the general duties imposed on public utilities in

Section 366.03, Florida Statutes (1985), which provides in part:

No public utility shall make

or give any undue or unreasonable

preference or advantage to any

person or locality, or subject the

same to any undue or unreasonable

prejudice or disadvantage in any

respect.

To fail to charge those who tamper with their electric meters and receive free

electric power would give those persons an unreasonable preference or advantage.

Mr. Tuch relies on Rule 25-6.106, Florida Administrative Code, which allows a

utility to back bill for only one year, to claim he cannot be back billed to

1982. That rule does not apply because this case does not involve a back-

billing due to Florida Power and Light's mistake. Rule 25-6.106(1) specifically

provides that "this rule shall not apply to underbillings provided for in Rules

25-6.103 or 25-6.104 [Unauthorized use of energy]."

14. The burden of proof in this matter is upon Florida Power and Light

Company. The status quo is that Mr. Tuch has electrical service and Florida

Power and Light, claiming he has tampered with his electric meter by opening the

seal and opening and closing the potential clip, proposes to back bill him for

service received and certain investigative costs. Although Mr. Tuch filed the

complaint, which is the initial pleading described in Rule 25-22.36(2), Florida

Administrative Code, the burden is on Florida Power and Light Company to prove

that he did in fact tamper with his meter, and if it establishes that fact, to

establish a reasonable estimate of the value of the energy Mr. Tuch received.

Cf. Florida Department of Health and Rehabilitative Services vs. Career Service

Commission, 209 So.2d 412 (Fla. 4th DCA 1974)(party initiating proceeding is not

necessarily party with burden of proof).

15. Florida Power and Light Company has net its burden and is entitled to

receive from Mr. Tuch $1,829.57 for electric current used. If this amount is

not paid, electrical services for Mr. Tuch may be discontinued pursuant to Rule

25-6.105, Florida Administrative Code.

RECOMMENDATION

It is RECOMMENDED that a final order be entered by the Public Service

Commission requiring Kenneth Tuch to pay Florida Power and Light $1,829.57 for

current diverted. If such payment is not made, electric service to Mr. Tuch's

residence at 1924 N.E. 25th Street, Ft. Lauderdale, Florida, should be

discontinued.

DONE AND ORDERED this 29th day of January, 1987, in Tallahassee, Florida

_________________________________

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 1987.

ENDNOTE

1/ This witness also testified about the amount due to Florida Power and Light

for the electricity diverted. Any prejudice to Mr. Tuch's presentation on that

point was cured by the break in the hearing from June 24, 1986, when the

testimony was offered to July 28, 1986, when the hearing reconvened. Mr. Tuch

had the opportunity to investigate the testimony on the amount due between the

two hearings. (Transcript 156-57). Florida Power and Light did not move to

admit Exhibit 15, Current Diversion Investigative Costs Summary, for more than

the limited purpose for which it had been admitted on June 24 (Transcript 196-

197) when the hearing reconvened on July 28.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0819

The following constitute my specific rulings pursuant to Section 120.59(2),

Florida Statutes (1985), on the proposed findings of fact submitted by the

parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Sentences 1 and 2 covered in Finding of Fact 2. Sentences 3 and 4 are

rejected as irrelevant.

2. Sentences 1 and 2 covered in Finding of Fact 2. Sentences 3 and 4

rejected because regardless of the color of the seal, the seal is a Florida

Power and Light seal. See Finding of Fact 5. Final sentence rejected because

while no records may connect the exhibit to the Tuch meter, its presence on the

meter is sufficient connection.

3. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as

unnecessary. Sentence 3 rejected as inconsistent with the more credible

evidence.

4. Covered in Finding of Fact 5.

5. Rejected because the question "how the seal was tampered with" is

unimportant. The seal had been tampered with.

6. Rejected for the reasons stated in 5, above.

7. Sentences 1 and 2 covered in Finding of Fact 2. Sentence 3 rejected as

unnecessary.

8. Covered in Finding of Fact 3.

9. Rejected as a recitation of testimony, not a finding of fact.

10. Rejected as a recitation of testimony, not a finding of fact;

moreover, contrary testimony from Mr. Vulpis has been accepted.

11. Sentence 1 covered in Finding of Fact 7. Sentence 2 is not accepted

because there is no reason to believe the replacement meter was not accurate.

It is reasonable to infer in the absence of countervailing evidence that a new

meter is properly calibrated. Mr. Tuch introduced no evidence of any test of

that meter, which was available to him, to overcome that inference.

12. Rejected because over the course of the hearing all meter readings

were introduced into evidence.

13. Generally rejected as a recounting of testimony rather than findings

of fact. Such findings as are appropriate on the issue of the position of the

potential clip and its movement are found in Finding of Fact 4. With respect to

the accuracy of the new meter, see the rulings in paragraph 11, above.

14. The significance of the inability of Mr. Tuch to test the meter

removed from his residence is dealt with in Finding of Fact 9. When that meter

was tested, it was tested properlyeating the next to the last paragraph of

proposed finding of fact 14 as a motion to strike the testimony of Mr. Evans, it

is denied.

15. The proposals in finding of fact 15 are generally rejected because

they constitute arguments rather than findings of fact. As to the use of Mr.

Bateman's testimony to establish the amount of the bill, see the footnote in

Finding of Fact 11. The meter readings received into evidence are found to be

correct because there is no countervailing evidence. With respect to the

charges for investigative costs, see also the footnote in Finding of Fact 11.

Mr. Bateman's testimony concerning the reasonable estimate of the charge to be

made for unmeasured electricity has been accepted in Finding of Fact 9.

16. Rejected as irrelevant. Florida Power and Light explained its method

to calculate the rebilling in detail at the hearing.

17. Rejected as inconsistent with the more credible evidence.

Rulings on Proposed Findings of Fact Submitted by Respondent (Treating the

proposals as if they had been serially numbered, but ending at page 7, Roman

Numeral V, which begins legal argument.)

1. Covered in Finding of Fact 2.

2. Accepted in Finding of Fact 2.

3. Accepted in Finding of Fact 3.

4. Accepted in Finding of Fact 4.

5. To the extent relevant, accepted in Finding of Fact 1.

6. Rejected as argument.

7. Accepted in Finding of Fact 7.

8. Accepted in Finding of Fact 7.

9. Generally accepted in Finding of Fact 8.

10. Accepted in Finding of Fact 9.

11. Rejected because the better methodology is that discussed in Finding

of Fact 10.

12. Rejected as unnecessary.

13. To the extent relevant, covered in Finding of Fact 6.

14. To the extent relevant, covered in Finding of Fact 6.

15. Covered in Conclusions of Law.

16. Covered in Finding of Fact 11.

17. Rejected as unnecessary.

18. Rejected as argument, covered in Conclusions of Law.

19. Rejected as unnecessary.

COPIES FURNISHED:

Christopher C. Cloney, Esquire

315 Southeast 7th Street, Suite 200

Ft. Lauderdale, Florida 33301

Susan Roeder Martin, Esquire

Florida Power & Light Company

Post Office Box 029100

Miami, Florida 33102

David Swafford, Executive Director

Florida Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32301

William Bilenky, General Counsel

Florida Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32301