91-002755 Larry Timm vs. Florida Power And Light Company Status: Closed Recommended Order on Monday, December 2, 1991.

Summary: Reasonable estimate of unmetered electricity consumed is proper calculation for backbilling in meter tampering situation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY TIMM, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2755

)

FLORIDA POWER & LIGHT COMPANY, )

)

Respondent. )

)

________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda n g i s s a e h t , t o g i R  . M  e d

Hearing Officer of the Division of Administrative Hearings, on September 20,

1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Larry Timm, pro se

P.O. Box 494

Loxahatchee, Florida 33470

Larry Timm, pro se

2943 "B" Road

Loxahatchee, Florida 33470

For Respondent: K. Crandal McDougall, Esquire

Florida Power & Light Company

P.O. Box 029100

Miami, Florida 33102-9100

For Public Martha Carter Brown, Esquire

Service Commission: Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32399-0870

STATEMENT OF THE ISSUE

The issue presented is the amount of money Petitioner owes Respondent as a

result of unmetered electrical consumption.

PRELIMINARY STATEMENT

Florida Power & Light Company sent Petitioner a bill in the amount of

$3,856.28 for his unmetered consumption of electricity together with

investigative costs incurred by Florida Power & Light Company, and Petitioner

filed a complaint with the Florida Public Service Commission. After the Public

Service Commission issued its Order Denying Complaint Regarding Backbilling,

Petitioner timely requested a formal hearing regarding that proposed agency

action. This matter was thereafter transferred to the Division of

Administrative Hearings for the conduct of that formal proceeding.

Petitioner Larry Timm testified on his own behalf. Respondent Florida

Power & Light Company presented the testimony of Debra K. Zaleuke.

Additionally, Florida Power & Light Company's Exhibits numbered 1-5 were

admitted in evidence.

Only the Respondent submitted post hearing proposed findings of fact in the

form of a proposed recommended order. A specific ruling on each proposed

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

FINDINGS OF FACT

1. On September 21, 1989, Debra K. Zaleuke, a current diversion

investigator for Respondent, received an anonymous telephone call advising that

Petitioner had been bragging about his illegal underground tap located somewhere

on Petitioner's 10-acre property. She went to that property located at 2943 "B"

Road, Loxahatchee, Florida. When she arrived at the trailer located at that

address, she could hear that the air conditioning unit was operating. She shut

off the main breaker, but the air conditioning system continued to run.

2. She returned to the property on September 22, 1989. Petitioner was

there on that occasion. When he saw her, he ran inside his trailer and shut off

the air conditioning. She asked him to turn the air conditioning system back

on, and he advised her that it had just "burned up."

3. Zaleuke pulled the electric meter and used a Wiggins tester, which

showed amperage still being pulled through the meter can. She summoned a crew

with a Dimatel underground fault locator, and they started digging. Petitioner

told them that they "would not be able to find it."

4. They continued digging and eventually found the underground location of

the illegal tap. The tap went directly to an above ground breaker system so the

tap could be turned off and on at will.

5. Petitioner's electrical service was discontinued that day. The illegal

underground tap was taken to Florida Power & Light Company's evidence room. The

meter which was removed from Petitioner's property was subsequently tested and

found to be operating properly.

6. Petitioner has been the customer of record since 1981. In August,

1987, the house located on the property burned, along with Petitioner's electric

meter. In August of 1987, Florida Power & Light Company set a new meter at

Petitioner's property.

7. Even after Petitioner's home burned down, Petitioner continued to

consume electricity at that address. He testified that he used electrical tools

and ran water pumps for irrigation purposes even while tearing down the burned

structure that had once been his residence. The property also has on it a

structure where Petitioner houses his helicopter. Eventually, a trailer was

moved onto the property, in which trailer Petitioner resided at the time that

Florida Power & Light discontinued electrical service to him.

8. Since a new meter was installed in August of 1987, and since

Petitioner's electric bill during the month of September, 1987, dropped to "0"

even though Petitioner was using, by his own admission, electrical equipment at

the time, Zaleuke chose the month of September, 1987, as the starting date for

recomputing the backbilling to be rendered to Petitioner for his unauthorized

and unmetered electrical consumption. Using the seasonal average method

approved by the Florida Public Service Commission, she estimated the energy

consumed through the illegal underground tap. She also computed the amount of

expense Florida Power & Light Company had incurred in locating and terminating

the illegal condition.

9. Florida Power & Light Company rendered to Petitioner its backbilling in

the amount of $3,856.28 representing the unauthorized, unmetered consumption of

electricity from September, 1987, to September, 1989, together with its

investigative costs. Petitioner has continued to refuse to pay the bill

rendered to him, and his electrical service at that address remains

disconnected.

10. Zaleuke's calculations for both unmetered electrical consumption and

investigative costs are reasonable, and the billing rendered to Petitioner is

reasonable.

11. Florida Power & Light Company has notified Petitioner of the

conditions required for the restoration of service to his property. Those

conditions are as follows: (1), Petitioner will provide a meter can on a pole

anywhere on his property outside of a three-foot diameter from the existing yard

pole; (2), Florida Power & Light Company will provide an overhead service drop

to the meter can at no charge; and (3), Petitioner will pay whatever the Public

Service Commission deems Petitioner's final bill to be. These conditions are

reasonable.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

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

Statutes.

13. Petitioner does not dispute that he owes Florida Power & Light "some"

money. The only issue remaining between the parties in this proceeding is the

amount of money which Petitioner owes. Rule 25-6.104, Florida Administrative

Code, provides that in the event of unauthorized use, the utility may bill the

customer on a reasonable estimate of the energy used. Florida Power & Light

Company has done so. Section 3.3 of Florida Power & Light Company's Tariff

Sheet No. 6.030 provides that in the event of unauthorized use, the customer's

service is subject to discontinuance until full payment is made of the bill for

service and the Company has been reimbursed in full for all extra expenses

incurred. Additionally, Rule 25-6.105(5)(j), Florida Administrative Code,

provides that whenever service is disconnected for fraudulent use, the utility

may, before restoring service, require the customer to make all necessary

changes at his own expense and to pay an amount reasonably estimated as the loss

in revenue.

14. In August of 1987, Petitioner's house burned down, and Florida Power &

Light Company installed a new meter. Petitioner commenced using electricity

again, by his own admission, utilizing electrical equipment and tools in tearing

down the burned structure, and used electric water pumps to operate an

irrigation system. Yet, Petitioner's electrical usage in September of 1987

registered at "0". Accordingly, using September of 1987 as the start date for

calculating the amount of backbilling was a reasonable date to select. The

calculation of the backbilling from September of 1987 through September 22,

1989, when Petitioner's electrical service was discontinued, was done in

accordance with the seasonal average approach approved by the Florida Public

Service Commission. The calculation of the rebilled amount is reasonable, and

the investigative charges are reasonable. Additionally, the conditions required

by Florida Power & Light Company before Petitioner's electrical service to that

address can be restored are reasonable.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Petitioner owes

Florida Power & Light Company the backbilled amount of $3,856.28.

DONE and ENTERED this 2nd day of December, 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 2nd day of December, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Respondent's proposed findings of fact numbered 1-4, 6-10, and 12-15

have been adopted either verbatim or in substance in this Recommended Order.

2. Respondent's proposed findings of fact numbered 5 and 11 have been

rejected as being unnecessary.

3. Respondent's proposed findings of fact numbered 16-19 have been

rejected as not constituting findings of fact but rather as constituting

statements of Petitioner's position which position is not supported by the

weight of any credible evidence.

COPIES FURNISHED:

Steve Tribble, Director of

Records and Recording

Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32399-0850

David Swafford, Executive Director

Public Service Commission

101 East Gaines Street, Room 116

Tallahassee, Florida 32399-085

Rob Vandiver, General Counsel

Public Service Commission

101 East Gaines Street, Room 212

Tallahassee, Florida 32399-0850

K. Crandal McDougall, Esquire

Florida Power & Light Company

P.O. Box 029100

Miami, Florida 33102-9100

Martha Carter Brown, Esquire

Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32399-0870

Larry Timm

P.O. Box 494

Loxahatchee, Florida 33470

Larry Timm

2943 "B" Road

Loxahatchee, Florida 33470

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.