91-000331 Arturo Taboada vs. Florida Power And Light Company Status: Closed Recommended Order on Monday, July 22, 1991.

Summary: Where meter tampering occurred, backbilling properly calculated based upon reasonable estimate of amount of electricity consumed by customer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTURO TABOADA, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0331

)

FLORIDA POWER & LIGHT COMPANY, )

)

Respondent, )

)

and )

)

FLORIDA PUBLIC SERVICE COMMISSION, )

)

Intervenor. )

)

____________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on April 16, 1991,

in Miami, Florida.

APPEARANCES

For Petitioner: Mr. Arturo Taboada, pro se

981 S.W. 137th Court

Miami, Florida 33184

For Respondent: Steve Feldman, Esquire

Florida Power & Light Company

Post Office Box 029100

Miami, Florida 33102-9100

For Intervenor: Robert V. Elias, Esquire

Florida Public Service

Commission

101 East Gaines Street

Fletcher Building - Room 226

Tallahassee, Florida 32399

ISSUE PRESENTED

The issue presented is whether Respondent has correctly billed Petitioner

in the amount of $5,070.51 for additional electricity consumed between January

of 1983 and September 30, 1986.

PRELIMINARY STATEMENT

After Respondent Florida Power & Light Company backbilled Petitioner for

additional electricity consumed, Petitioner filed a complaint regarding that

backbilling with the Florida Public Service Commission. The Commission issued

its Notice of Proposed Agency Action/Order Approving Backbilling of Estimated

Usage of Electric Consumption, and Petitioner timely requested a formal hearing

regarding that preliminary determination. This cause was thereafter transferred

to the Division of Administrative Hearings for the conduct of that formal

proceeding. The Florida Public Service Commission's Petition for Leave to

Intervene was subsequently granted.

The Petitioner testified on his own behalf. Respondent presented the

testimony of Kevin J. Burke, Emory B. Curry, Martha Liin, and Curtis J. Batman.

Additionally, Respondent's Exhibits numbered 1-15 and Petitioner's Exhibit

numbered 1 were admitted in evidence.

Petitioner and Respondent submitted proposed findings of fact. The

Intervenor waived its right to do so. A specific ruling on each proposed

finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent's meter #5C50349 was installed at 11145 N.W. 3rd Street,

Miami, Florida, in February of 1969.

2. Petitioner connected electrical service at that address on March 18,

1977, when he, his wife, and his daughter moved into a mobile home located at

that address. They continued to reside there until approximately January 31,

1987. Petitioner was the customer of record during that time period and

benefitted from the use of electricity at that address.

3. On September 30, 1986, Kevin Burke, a meter man employed by Respondent,

inspected meter #5C50349 at Petitioner's residence. His physical inspection

revealed that there were drag marks on the meter disc and that the disc had been

lowered. Drag marks and a lowered disc indicate that energy consumption is not

being accurately registered on the meter. In addition, the customer's air

conditioner was on, but the disc was not rotating.

4. It was clear to Burke that the customer's meter had been physically

altered. He replaced the tampered meter with a new meter on that same date. He

carefully positioned the tampered meter in a foam-bottom meter can container and

transported it to Respondent's storage room for safekeeping. The physical

alterations to the meter were not, and could not have been, caused by improper

handling by Burke.

5. On November 18, 1986, Petitioner's tampered meter was tested by

Respondent's employee Emory Curry. He performed a physical inspection of the

meter which revealed that the inner canopy seal had possibly been glued back

together, the bearings had been tampered with, the disc had been lowered, and

drag marks appeared on the bottom of the disc.

6. Curry then performed a watt-hour test. The full load portion of the

test registered only 41.4%, and the light load registered 0. Each test should

have resulted in a reading of 100%, plus or minus 2%. The mathematical weighted

average for Petitioner's meter was 33.1%. This means that only 33.1% of the

electricity actually used in the Taboada household was being recorded on the

meter. In effect, Petitioner was not being charged for 66.9% of the energy

being consumed at the household.

7. Respondent verifies the accuracy of its watt-hour test weekly in

accordance with industry standards. The watt-hour test has been sanctioned by

the Florida Public Service Commission.

8. A veri-board test was also performed on the meter. The results of that

test were 20 over 8. This means that Petitioner's meter was only registering 8

kw when 20 kw was placed on the meter. The meter should have registered 20 kw.

9. Using the weighted average registration of 33.1% from the meter test

card, Respondent backbilled Petitioner's account for the 66.9% of the energy

consumed that the meter was not registering. The as-billed amount was

subtracted from the computer-generated rebilled amount to determine the amount

to backbill. The rebilled amount was determined by a computer program which

takes into account the varying franchise fees, fuel adjustment rates, taxes, and

other rates in effect for each month of the rebilled period. Based upon that

computer program, Respondent backbilled Petitioner for an additional 61,379

kilowatt hours consumed. Respondent's methodology for calculating rebillings is

a reasonable estimate for determining the amount of energy consumed where there

has been meter tampering.

10. Petitioner's account was backbilled $5,070.51 from January, 1983, to

September 30, 1986, the date on which the new meter was set. The January, 1983,

date was selected because Respondent had not retained Petitioner's billing

records prior to January, 1983.

11. Since Respondent's investigation did not determine whether Petitioner

physically altered the meter or whether it was altered by someone else,

Respondent treated Petitioner's account as an inherited diversion. Accordingly,

Respondent seeks no relief from Petitioner other than payment for the estimated

electrical usage.

12. A comparison of Petitioner's bills after the new meter was set on

September 30, 1986, with past bills shows that Petitioner's electric consumption

almost doubled. Since electrical usage varies throughout the year, a comparison

is done by comparing the same month for consecutive years. For example, January

bills are compared to January bills, and February bills are compared to other

February bills. A valid comparison cannot be done by comparing November to

December and December to January.

13. In response to Petitioner's complaint that his tampered meter had been

accurate but the new replacement meter was running fast, Respondent removed the

replacement meter, replacing it with yet another. The replacement meter was

then tested by Respondent and was determined to be 100% accurate.

14. Although Petitioner had some gas appliances, the electrical appliances

which existed in his mobile home were capable of consuming the kilowatt hours

per month which were rebilled by Respondent.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof and the parties hereto. Section 120.57(1), Florida

Statutes.

16. Section 366.03, Florida Statutes, provides, in part, that "No public

utility shall make or give any undue or unreasonable preference. . .to any

person. . . ." In the case of Corp. De Gestion Ste-Foy, Inc., v. Florida Power

& Light Co., 385 So.2d 124 (Fla. 3rd Dist. 1980), this statute was interpreted

to mean that a public utility shall charge the same rates to all customers, that

a public utility is required to collect undercharges from established rates even

if the undercharges result from the public utility's own negligence, and that

the customer of a power company has no defense to charges for electricity which

was actually furnished but which had previously been underbilled.

17. The Florida Public Service Commission has promulgated rules which

govern this situation. Rule 25-6.104, Florida Administrative Code, provides

that "In the event of. . .meter tampering, the utility may bill the customer on

a reasonable estimate of the energy used." This Rule does not consider the

guilt or innocence of the party who may be benefiting from the meter tampering.

It does, however, authorize Florida Power & Light Company to recover lost

revenues using a reasonable estimate when a tampering condition has been

identified. The methodology used by Respondent to calculate the amount to be

rebilled to Petitioner is a reasonable estimate of the amount of energy consumed

by Petitioner. Further, the one-year limitation on backbilling for undercharges

does not apply in the case of meter tampering. Rule 25-6.106(1), Florida

Administrative Code. Finally, Original Sheet No. 6.061, Section 8.3 of

Respondent's approved tariff authorizes Respondent to adjust prior bills for

services rendered due to meter tampering.

18. Respondent presented competent, substantial evidence to show that

Petitioner's meter had been tampered. A visual inspection alone was sufficient

to reveal that the meter had been tampered. Further, Respondent properly tested

the meter in accordance with the rules of the Florida Public Service Commission

and the manufacturer's instructions. The tampered meter registered a weighted

average of 33.1% of the electricity consumed, which is well below the 98%

weighted average standard for a properly functioning meter required by Rule 25-

6.052(1), Florida Administrative Code.

19. Respondent used a reasonable methodology for computing the amount of

energy which had been consumed at Petitioner's household for which Petitioner

had not been billed. Since Respondent had not retained records prior to January

of 1983, it was unable to determine when the tampering occurred. It therefore

assumed that Petitioner had inherited the tampered meter and limited the relief

it sought against Petitioner to the undercharged amount only and only back to

January of 1983.

20. Further, in pursuing its claim against Petitioner, Respondent noted

that Petitioner's energy consumption increased when his tampered meter was

replaced with a new meter. In response to Petitioner's claim that his tampered

meter was correct and that his new meter was running fast, Respondent removed

the new meter and tested it. Those test results indicated that the new meter

was accurately registering the amount of electricity being consumed. Respondent

also verified that the amount of electrical equipment contained in Petitioner's

mobile home was sufficient to use the amount of energy for which Respondent is

seeking payment.

21. Petitioner contends that Respondent has made a mistake, that the

alterations to his meter occurred after the meter was removed from his

residence, that he did not have sufficient electrical equipment at home to

justify Respondent's billing, and that Respondent's testing was incomplete.

Petitioner presented no competent evidence in support of his allegations, and

Respondent has presented competent, substantial evidence to clearly refute

Petitioner's allegations. Respondent tested Petitioner's meter and calculated

his rebilling in accordance with Florida Statutes, the Rules of the Florida

Public Service Commission, and Respondent's approved tariff regarding tampered

meters, and Petitioner has presented no competent evidence to the contrary.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding that Respondent has

correctly backbilled Petitioner in the amount of $5,070.51 for additional

electricity consumed between January of 1983 and September 30, 1986.

DONE and ENTERED this 22nd day of July, 1991, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposals labeled introduction and evidence #3 have been

rejected as not being supported by the weight of the evidence in this cause.

2. Petitioner's proposal labeled evidence #1 has been rejected as not

being supported by any evidence in this cause.

3. Petitioner's proposal labeled evidence #2 has been rejected as not

constituting a finding of fact but rather as constituting argument.

4. Petitioner's proposal labeled evidence #4 has been rejected as being

unnecessary for determination of the issues herein.

5. Respondent's proposed findings of fact numbered 1-19 and 22 have been

adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 20 and 21 have been

rejected as being unnecessary for determination of the issues herein.

7. Respondent's proposed findings of fact numbered 23 and 24 have been

rejected as not constituting findings of fact but rather as constituting

conclusions of law or argument of counsel.

COPIES FURNISHED:

Mr. Arturo Taboada

981 S.W. 137th Court

Miami, Florida 33184

Steve Feldman, Esquire

Florida Power & Light Company

Post Office Box 029100

Miami, Florida 33102-9100

Robert V. Elias, Esquire

Florida Public Service Commission

101 East Gaines Street

Fletcher Building - Room 226

Tallahassee, Florida 32399-0863

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.