93-005713 Jory Bricker vs. Florida Power Corporation Status: Closed Recommended Order on Thursday, January 13, 1994.

Summary: Petitioner did not prove utility's bills were unduely high or that services were substandard. Electrical problems were on petitioner's side of meter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORY BRICKER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5713

)

FLORIDA POWER CORPORATION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On December 8, 1993, a formal administrative hearing was held in this case

in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ted E. Karatinos, Esquire

James D. Jackman, P.A.

4608 26th Street West

Bradenton, Florida 34207

For Respondent: Rodney E. Gaddy, Esquire

Corporate Counsel

Florida Power Corporation

Post Office Box 14042

St. Petersburg, Florida 33733-4042

STATEMENT OF THE ISSUE

The issue in this case is validity of the complaint of the Petitioner, Jory

Bricker, that the Florida Power Corporation charges for the provision of

electric service to the Petitioner, Jory Bricker, were not consistent with the

utility's tariffs and procedures, with applicable state laws, and with Florida

Public Service Commission rules, regulations, and orders.

PRELIMINARY STATEMENT

On or about March 1, 1993, the Petitioner, Jory Bricker, filed with the

Florida Public Service Commission (PSC) Division of Consumer Affairs a complaint

against the Respondent, Florida Power Corporation (FPC), alleging that FPC has

been charging her unduly high electric bills. As done on previous complaints,

FPC investigated. On or about March 22, 1993, FPC responded to the complaint by

stating essentially that the electric bills were correct and that they were high

because of high electric use by various appliances in the home and various

inefficiencies inside the home. FPC alleged essentially that the Petitioner did

not want to, or could not, pay the bills and that the complaint was part of the

Petitioner's strategy for negotiating a reduction in the amount owed and more

time to pay. On or about March 26, 1993, the PSC staff advised the Petitioner

in writing that her electric bills appeared to be correct. After further

investigation, the PSC staff against advised the Petitioner in writing on or

about April 23, 1993, that her electric bills appeared to be correct and that

electric service could be terminated if the bills were not paid.

On or about April 30, 1993, the Petitioner faxed a letter to the PSC

disputing the staff findings and determinations. The PSC treated the letter as

a request for informal conference on the dispute. The PSC also assigned a staff

member to determine what portion of the outstanding electric bills was actually

in dispute. On or about May 12, 1993, the PSC sent the Petitioner a letter

advising her that an interim determination had been made under F.A.C. Rule 25-

22.032(10) that $619.12 of the outstanding bills was undisputed and should be

paid by May 27, 1993, to avoid discontinuation of electric service. The

Petitioner did not make any payment, and electric service was terminated.

On or about June 2, 1993, FPC learned that an unauthorized connection of

electric service had been made and that power had been restored to the

Petitioner's home without FPC's authority or permission. FPC again terminated

electric service.

An informal conference was held in Largo, Florida, on or about June 16,

1993, but no agreement was reached, and the PSC docketed the Petitioner's

complaint.

On or about August 11, 1993, the PSC entered a Notice of Proposed Agency

Action Order Denying Complaint. It gave the Petitioner until September 1, 1993,

in which to request formal administrative proceedings. On or about September 3,

1993, the Petitioner filed a Notice of Appeal requesting formal administrative

proceedings. On or about September 28, 1993, the PSC decided to not to dismiss

the request for formal administrative proceedings as being untimely but rather

to refer the matter to the Division of Administrative Hearings (DOAH). DOAH

received the referral on October 7, 1993. By Notice of Hearing issued on

November 8, 1993, final hearing was scheduled for December 8, 1993, in Largo,

Florida.

At the final hearing, the Petitioner testified and called one other

witness. The Petitioner also had Petitioner's Exhibits 1, 2, 4 through 6, 9 and

10 admitted in evidence. FPC called three witnesses and had Respondent's

Exhibit 1 admitted in evidence.

Ruling was reserved on FPC's objections to Petitioner's Exhibits 3, 7 and

8. FPC's objections are now sustained. All of these exhibits contain

uncorroborated hearsay; none are properly authenticated, and the expert

qualifications of those giving the opinions contained in them were not

demonstrated.

FPC ordered the preparation of a transcript of the final hearing. The

transcript was filed on December 20, 1993. Explicit rulings on the proposed

findings of fact contained in the parties' proposed recommended orders may be

found in the attached Appendix to Recommended Order, Case No. 93-5713.

FINDINGS OF FACT

1. The Petitioner, Jory Bricker, began using the electric utility services

of the Respondent, Florida Power Corporation (FPC), at her home at 2952 Webley

Drive, Largo, Florida, in approximately March, 1988.

2. In approximately June, 1989, she had a hot tub installed. Some wiring

was required to be done when the hot tub was installed, and the hot tub wiring

was not done properly. It could not be determined from the evidence who did the

wiring.

3. From the time of its installation, the hot tub has been used daily.

Initially, it was not on a timer, and it did not have a thermal cover. It

immediately began using a great deal of additional electricity, and the

Petitioner's electric bills went up accordingly.

4. In approximately August, 1989, the Petitioner's appliances began to

burn out. It was determined that a frayed FPC service drop line was the cause

of the damage to the appliances. FPC repaired the drop line and reached a

settlement with the Petitioner for the damages to the appliances. The

Petitioner also made and was paid an insurance claim for the damages to the

appliances.

5. The Petitioner bought used appliances to replace those that had burned

out. When they were installed, they were not grounded properly, causing the

Petitioner and her housemate, John Wall, to receive electric shocks when they

used the appliances. The Petitioner hired an electrician, who advised her of

the cause of the shocks and properly grounded the appliances within the home.

It is found that, once the appliances were properly grounded, the Petitioner and

her housemate ceased to receive electric shocks when they used the appliances,

contrary to their testimony at the hearing.

6. In November, 1989, the Petitioner complained to the Florida Public

Service Commission (PSC) regarding the amount of her electric bills. In

response to the complaint, FPC conducted an inspection and recommended several

energy conservation measures. The PSC notified the Petitioner that it

considered the complaint to have been resolved.

7. In September, 1990, the Petitioner made another high bill complaint to

the PSC. When FPC investigated, it found that none of the energy conservation

measures recommended ten months ago were being followed. Energy conservation

measures were recommended again, and FPC extended the time for payment of the

outstanding bills. The PSC notified the Petitioner that it also considered this

complaint to have been resolved.

8. In December, 1990, the Petitioner made another high bill complaint to

the PSC. FPC verified that all FPC facilities were correct and met

specifications. FPC again made energy conservation recommendations. FPC also

placed a meter on the hot tub and refrigerator to ascertain how much electricity

they were using. It was determined that the hot tub was using 26 kilowatt hours

a day and that the refrigerator was using 5 kilowatt hours a day. The hot tub

in particular was using more electricity than it should have. The two

appliances contributed substantially to the Petitioner's high use of

electricity. FPC recommended that the Petitioner hire an electrician to inspect

for electrical problems.

9. The Petitioner made no further complaints until April, 1992, although

the electricity bills remained high (in some months exceeding the levels about

which the Petitioner previously complained.) In April, 1992, the Petitioner

asked FPC to conduct another energy audit. FPC complied with the request and

again made energy conservation recommendations.

10. In September, 1992, the Petitioner filed another high bill complaint

with the PSC. FPC responded to the complaint and ultimately conducted an on-

site test of the Petitioner's meter, which proved to be accurate.

11. In November, 1992, the Petitioner mentioned to FPC for the first time

that she was receiving electric shocks when she used her appliances. Once

again, FPC advised her to hire an electrician. It is not clear whether the

Petitioner was referring to past occurrences, whether she was intentionally

trying to mislead FPC into thinking she was still receiving electric shocks, or

whether the electric shocks were starting again.

12. In March, 1993, the Petitioner hired an electrician, who inspected the

residence for electrical problems and replaced a ground clamp on the

Petitioner's side of the meter. There was no evidence that can support a

finding as to when the ground clamp came loose.

13. A loose ground clamp could increase electric bills, but only slightly.

The Petitioner's bills for March through June, 1993, show a reduction, but not

substantially compared with the bills for those months in prior years, and not

enough to demonstrate substantial reduction from the repair of the ground clamp.

14. As of March 12, 1993, there were still several electrical problems in

the residence that could result in voltage drops, including: "flying splices,"

double lugging on circuit breakers, loose wiring, reversed polarity in some

outlets and improper wiring of the hot tub.

15. FPC's approved tariffs and procedures include its Requirements for

Electric Service and Meter Installations, 1991 Edition (the FPC Requirements.)

Section I of the FPC Requirements provides in pertinent part:

Except for the installation and maintenance

of its own property, Florida Power

Corporation does not install or repair wiring

on the customer's premises and, therefore, is

not responsible for the voltage beyond the

point of delivery and does not assume any

responsibility for, or liability arising

because of the condition of wires or

apparatus on the premises of any customer

beyond this point.

16. Section III A. of the FPC Requirements, setting out the general

requirements for the provision of services, provides in pertinent part:

11. GROUNDING

a. All services shall have a grounded

neutral.

b. Grounds shall be established as

required by the "National

Electrical Code" and local

authority. All grounds should have

a maximum resistance of 25 ohms

when measured at the point of

delivery and at the meter location.

(Emphasis added.)

17. Section IV A.of the FPC Requirements, setting out the general

requirements for meter installations, provides in pertinent part:

8. The Company will perform routine

maintenance on meter sockets and related

facilities which the Company supplied to the

Customer. If, however, it can reasonably be

determined that the Customer has caused or is

responsible for damage to the facilities,

then the Customer will be solely responsible

for all repairs.

(Emphasis added.)

18. Taken together, the FPC Requirements are clear that FPC's responsibity

for facilities stops at the meter. FPC is not responsible for proper wiring,

grounds and other related matters on the customer's side of the meter and inside

the home.

19. FPC repaired the frayed service drop wire in August, 1989, and the

matter was resolved. There was no evidence from which a finding could be made

that any subsequent problems were caused by or, except for the Petitioner's

incorrect installation of some of the replacement appliances, even related to

the frayed service drop line. There was no evidence from which a finding could

be made that FPC did not meet its responsibilities under its Requirements for

Electric Service and Meter Installations. Any subsequent electrical problems

arose from faulty wiring or other problems on the customer's side of the meter.

20. The Petitioner owes FPC $1,157.24 for past due electric bills. On or

about May 12, 1993, the PSC sent the Petitioner a letter advising her that an

interim determination had been made under F.A.C. Rule 25-22.032(10) that $619.12

of the outstanding bills was undisputed and should be paid by May 27, 1993, to

avoid discontinuation of electric service. The Petitioner did not make any

payment, and electric service was terminated.

21. After FPC discontinued service, the Petitioner's housemate reconnected

the electricity without FPC's authority or permission. When FPC learned that an

unauthorized connection of electric service had been made and that power had

been restored to the Petitioner's home without FPC's authority or permission,

FPC again terminated electric service.

CONCLUSIONS OF LAW

22. Under Section 366.04(1), Fla. Stat. (1993), the Florida Public Service

Commission (PSC) has jurisdiction to regulate the service provided by public

utilities in the state.

23. F.A.C. Rule 25-22.032(1) authorizes a consumer to file a complaint

with the PSC's Division of Consumer Affairs when the consumer has an unresolved

dispute with a regulated utility regarding the service provided to the consumer.

In response to such a complaint, the utility is required to "explain the

utility's actions in the disputed matter and the extent to which those actions

were consistent with the utility's tariffs and procedures, applicable state

laws, and Commission rules, regulations, and orders."

24. Under F.A.C. Rule 25-22.032(2) and (3), a PSC staff member is required

to investigate the matter and "propose a resolution of the complaint based on

his findings, applicable state laws, the utility's tariffs, and Commission

rules, regulations, and orders."

25. F.A.C. Rule 25-22.032(8) provides that, if the dispute resolution

mechanisms of the preceding sections of the rule are not successful, the PSC

acts on the staff recommendation and either issues a notice of proposed agency

action or sets the matter for hearing pursuant to Section 120.57, Fla. Stat.

(1993).

26. F.A.C. Rule 25-6.034 provides:

(1) The facilities of the utility shall be

constructed, installed, maintained and

operated in accordance with generally

accepted engineering practices to assure, as

far as is reasonably possible, continuity of

service and uniformity in the quality of

service furnished.

(2) The Commission has reviewed the

American National Standard Code for

Electricity Metering, 6th edition, ANSI C-12,

1975, and the American National Standard

Requirements, Terminology and Test Code for

Instrument Transformers, ANSI 57.13, and has

found them to contain reasonable standards of

good practice. A utility that is in

compliance with the applicable provisions of

these publications, and any variations

approved by the Commission, shall be deemed

by the Commission to have facilities

constructed and installed in accordance with

generally accepted engineering practices.

(Emphasis added.) There was no evidence from which a finding could be made that

FPC violated F.A.C. Rule 25-6.034.

27. F.A.C. Rule 25-6.040 provides:

(1) Unless otherwise specified by the

Commission, each utility shall effectively

ground the neutrals of all its multigrounded

distribution circuits so as to render them

reasonably safe to person and property.

Conformance with the applicable provisions in

the publications listed in Rule 25-6.034(2)

shall be deemed by the Commission that the

system is grounded so as to be reasonably

safe to person and property.

(2) Each utility shall establish a program

of inspection to insure that its artificial

grounds are in good mechanical condition.

1

(Emphasis added.) There was no evidence from which a finding could be made that

FPC violated F.A.C. Rule 25-6.040.

28. F.A.C. Rule 25-22.032(10) provides:

During the pendency of the complaint

proceedings, a utility shall not discontinue

service to a customer because of an unpaid

disputed bill. However, the utility may

require the customer to pay that part of a

bill which is not in dispute. If the parties

cannot agree as to the amount in dispute, the

staff member will make a reasonable estimate

to establish an interim disputed amount until

the complaint is resolved. If the customer

fails to pay the undisputed portion of the

bill the utility may discontinue the

customer's service pursuant to Commission

rules.

29. The Petitioner contends that the interim determination of the

undisputed amount was incorrect for two reasons: first, it incorrectly assumed

that the Petitioner was not disputing bills incurred before July, 1992; and,

second, it was based on an incorrect assumption for the September, 1989, bill.

On those grounds, the Petitioner contends that she has been wronged by the

discontinuation of electrical service by FPC for failure to pay the undisputed

amount.

30. F.A.C. Rule 25-22.032(10) is reasonably clear that, absent the

utility's intentional misrepresentations or fraud, a utility should be entitled

to rely on the staff member's interim determination of the undisputed amount and

should not be subject to liability for acting in accordance with the interim

determination, as FPC did in this case. There was no evidence of intentional

representations or fraud on the part of FPC.

31. At worst, the evidence proved that the September, 1989, bill may have

been in error. (The proof was that there were two versions of the September,

1989, bill. It was not clear which one was correct.) But the Petitioner did

not prove that subsequent bills did not correct any error that may have

occurred. Besides, since all bills before July, 1992, were presumed undisputed

for purposes of the interim determination, any error in the September, 1989,

bill had no impact on the interim determination. Finally, the July, 1992, cut-

off was reasonable. All high bill complaints prior to April, 1992, appeared to

have been resolved, and a review of the bills for March, April, May and June,

1992, reflect that they were not particularly high.

RECOMMENDATION

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

recommended that the Florida Public Service Commission enter a final order

dismissing the complaint of the Petitioner, Jory Bricker, against the

Respondent, Florida Power Corporation, and upholding the validity of FPC's

outstanding bill in the amount of $1,157.24 for unpaid electric services.

RECOMMENDED this 13th day of January, 1994, in Tallahassee, Florida.

___________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5713

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),

the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2. Rejected as not proven that the settlement with FPC was only for a

portion of the damages. It also does not account for the insurance claim that

the Petitioner made and was paid. Otherwise, accepted and incorporated.

3. First sentence, rejected as not proven. The rest, accepted and

implicitly incorporated.

4. Rejected in part as not proven and as contrary to facts found (in that

some wiring was necessary to install the hot tub.) Otherwise, accepted and

incorporated.

5. First sentence, accepted and incorporated. Second sentence, rejected

as as not proven and as contrary to facts found. Third sentence, accepted and

incorporated, but there was no evidence from which it can be determined when the

ground clamp came loose.

6. "Full use of the hot tub" rejected as not proven. Otherwise, accepted

but not necessary. Comparison of the April and May, 1993, bills with the bills

for those months in prior years does not indicated a substantial reduction in

the bills for those months in 1993.

7. Rejected as not proven, and as contrary to facts found: (1) that the

shocks were continuous through March, 1993; (2) that the Petitioner "perpetually

complained" to FPC and the PSC about electric shocks; or (3) that the Petitioner

was relying on FPC to discover and correct electrical problems on the

Petitioner's side of the meter (instead, FPC repeatedly advised the Petitioner

to hire an electrician for that purpose.) Otherwise, accepted to the extent not

subordinate or unnecessary.

8. Rejected as not proven and as contrary to the facts found that the

Petitioner implemented all of the FPC's energy saving recommendations. To the

contrary, the evidence indicated that most were not followed consistently or for

long.

9. First two sentences, accepted and incorporated. The rest, rejected as

not proven and as contrary to the facts found.

10. First sentence, not proven. (It would seem to depend on where the

open neutral was located.) Second sentence, rejected as not proven and contrary

to facts found (assuming it refers to the frayed service drop line.)

11. Rejected as not proven and contrary to facts found.

12. Accepted and incorporated.

13. Accepted but unnecessary.

14. Rejected as not proven and contrary to facts found.

15. "Valid convictions" rejected as not proven and contrary to facts

found. Otherwise, accepted and incorporated.

16. Rejected as not proven and as contrary to facts found. (It is not

clear from the evidence that the Petitioner was receiving electric shocks up to

March, 1993, and the evidence was that any increase in electricity usage from a

loose ground clamp would not be significant.)

Respondent's Proposed Findings of Fact.

1. Accepted and incorporated.

2. Rejected as contrary to the greater weight of the evidence, and to

facts found, that Wall wired the hot tub. Otherwise, accepted and incorporated.

3.-33. Accepted and incorporated to the extent not subordinate or

unnecessary.

COPIES FURNISHED:

Ted E. Karatinos, Esquire

James D. Jackman, P.A.

4608 26th Street West

Bradenton, Florida 34207

Jory Bricker

2952 Webley Drive

Largo, Florida 34641

Rodney E. Gaddy, Esquire

Corporate Counsel

Florida Power Corporation

P. O. Box 14042

St. Petersburg, Florida 33733-4042

Martha Carter Brown, Esquire

Staff Counsel

Public Service Commission

101 East Gaines Street

Suite 216

Tallahassee, Florida 32399-0863

Steve Tribble

Director of Records and Recording

Public Service Commission

101 East Gaines Street

Tallahassee, Florida 32399-0850

William D. Talbott

Executive Director

Public Service Commission

Room 116

101 East Gaines Street

Tallahassee, Florida 32399-0850

Rob Vandiver, Esquire

General Counsel

Public Service Commission

Room 212

101 East Gaines Street

Tallahassee, Florida 32399-0850

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Public Service Commission written

exceptions to this Recommended Order. All agencies allow each party at least

ten days in which to submit written exceptions. Some agencies allow a larger

period within which to submit written exceptions. You should consult with the

Public Service Commission concerning its rules on the deadline for filing

exceptions to this Recommended Order.