95-002514 Globe International Realty And Mortgage Corporation, Matthew Renda And Kenneth V. Hemmerle vs. Florida Power And Light Corporation Status: Closed Recommended Order on Monday, December 4, 1995.

Summary: Utility justified in refusing applicant's with request for service based on unpaid past-due bills for service provided previous customer at same location

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLOBE INTERNATIONAL REALTY )

AND MORTGAGE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2514

)

FLORIDA POWER & LIGHT COMPANY, )

)

Respondent, )

and )

)

PUBLIC SERVICE COMMISSION, )

)

Intervenor. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on

September 27, 1995, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly

designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth V. Hemmerle, II, Esquire

Klein, Hemmerle & McCusker

1322 Northeast Fourth Avenue, Suite E

Fort Lauderdale, Florida 33304

For Respondent: Robert E. Stone, Esquire

Post Office Box 029100

Miami, Florida 33102

For Intervenor: Robert V. Elias, Staff Counsel

Florida Public Service Commission

Gerald L. Gunter Building

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

STATEMENT OF THE ISSUE

Whether Florida Power & Light Company (hereinafter referred to as "FPL")

properly refused the request of Globe International Realty & Mortgage, Inc.

(hereinafter referred to as "Globe") to supply electric service to the premises

located at 808 Northeast Third Avenue, Fort Lauderdale, Florida?

PRELIMINARY STATEMENT

On January 31, 1995, the Florida Public Service Commission (hereinafter

referred to as the "PSC") issued a Notice of Proposed Agency Action in which it

announced its intention to find that "FPL was in compliance with applicable

Commission rules and its tariffs in refusing to establish service in the name of

Globe" at the premises located at 808 Northeast Third Avenue in Fort Lauderdale,

Florida. On February 20, 1995, Globe, through its President, Matthew Renda,

filed a petition requesting a Section 120.57 formal hearing on the PSC's

proposed action. On May 16, 1995, the matter was referred to the Division of

Administrative Hearings for the assignment of a hearing officer to conduct the

formal hearing Globe had requested.

On July 21, 1995, the PSC filed a petition for leave to intervene in the

instant case. By order issued August 9, 1995, the petition was granted.

The formal hearing was held, as scheduled, on September 27, 1995. A total

of eleven witnesses testified at the hearing: Matthew Renda; Kenneth V.

Hemmerle, Sr.; Bonnie Ammons; Philip Martin; Sandra Lowery; Gigi Marshall;

Carol Sue Ryan; Longina Berti; Joy Wimberly; Linda Hart; and Thomas Eichas.

In addition to the testimony of these eleven witnesses, twenty-eight exhibits

(Respondent's Exhibits 1 through 28) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the Hearing

Officer, on the record, advised the parties of their right to submit post-

hearing submittals and established a deadline (30 days from the date of the

Hearing Officer's receipt of the transcript of the hearing) for the filing of

these submittals.

The Hearing Officer received the hearing transcript on October 16, 1995.

On November 15, 1995, Globe, FPL and the PSC each timely filed proposed

recommended orders. FPL's proposed recommended order was accompanied by a

pleading entitled "Summary of Argument." These post-hearing submittals have

been carefully considered by the Hearing Officer.

The parties' proposed recommended orders each contain what are labelled as

"findings of fact." These "findings of fact" proposed by the parties are

specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. Kenneth V. Hemmerle, Sr., is a real estate developer.

2. Matthew Renda is a real estate and mortgage broker.

3. Hemmerle and Renda have known each other since about 1986.

4. At the suggestion of Hemmerle, in February of 1993, Renda, along with

Hemmerle, formed Globe. At the time, Hemmerle was involved in a development

project on the west coast of Florida and he wanted Renda, through Globe, to

handle "the selling and so forth for the project."

5. Globe was incorporated under the laws of Florida.

6. The articles of incorporation filed with the Department of State,

Division of Corporations (hereinafter referred to as the "Division of

Corporations") reflected that: Renda was the president of the corporation;

Hemmerle was its secretary; Renda and Hemmerle were the incorporators of the

corporation, owning 250 shares of stock each; they also comprised the

corporation's board of directors; and the corporation's place of business, as

well as its principal office, were located at 808 Northeast Third Avenue in Fort

Lauderdale, Florida (hereinafter referred to as the "808 Building").

7. Globe is now, and has been since its incorporation, an active Florida

corporation.

8. Annual reports were filed on behalf of Globe with the Division of

Corporations in both 1994 (on April 19th of that year) and 1995 (on March 23rd

of that year).

9. The 1994 annual report reflected that Renda and Hemmerle remained the

officers and directors of the corporation.

10. The 1995 annual report reflected that Renda was still an officer and

director of the corporation, but that Hemmerle had "resigned 9-2-93."

11. Both the 1994 and 1995 annual reports reflected that the 808 Building

remained the corporation's place of business and its corporate address.

12. The 808 Building is a concrete block building with a stucco finish

housing eight separate offices. The entire building is served by one electric

meter.

13. At all times material to the instant case, Southern Atlantic

Construction Corporation of Florida (hereinafter referred to as "Southern")

owned the 808 Building.

14. Southern was incorporated under the laws of Florida in June of 1973,

and administratively dissolved on October 9, 1992. Hemmerle owns a majority of

the shares of the corporation's stock. The last annual report that Southern

filed with the Division of Corporations (which was filed on June 10, 1991)

reflected that: Hemmerle was the corporation's president and registered agent;

he also served on the corporation's board of directors; Lynn Nadeau was the

corporation's other officer and director; and the corporation's principal

office was located in the 808 Building.

15. From 1975 until September 6, 1994, FPL provided electric service to

the 808 Building. Charges for such service were billed to an account

(hereinafter referred to as the "808 account") that had been established by, and

was in the name of, Hemmerle Development Corporation (hereinafter referred to as

"HDC").

16. HDC was incorporated under the laws of Florida in 1975, and

administratively dissolved on October 9, 1992. At the time of HDC's

incorporation, Hemmerle owned 250 of the 500 shares of stock issued by the

corporation. The last annual report that HDC filed with the Division of

Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was

the corporation's president and registered agent; he also served on the

corporation's board of directors; Lynn Nadeau was the corporation's other

officer and director; and the corporation's principal office was located in the

808 Building. Following the administrative dissolution of the corporation,

Hemmerle continued to transact business with FPL in the corporation's name,

notwithstanding that he was aware that the corporation had been administratively

dissolved.

17. At no time has Renda owned any shares of HDC's stock or served on its

board of directors.

18. He and Hemmerle have served together as officers and directors of only

two corporations: Globe and Hemmerle's Helpers, Inc. The latter was

incorporated under the laws of Florida as a nonprofit corporation in March of

1992, and was administratively dissolved on August 13, 1993. Its articles of

incorporation reflected that its place of operation, as well as its principal

office, were located in the 808 Building.

19. Pursuant to arrangements Renda and Hemmerle had made (which were not

reduced to writing), Globe occupied office space in the 808 Building from March

of 1993, through September 6, 1994 (hereinafter referred to as the "rental

period"). Renda and Hemmerle had initially agreed that the rent Globe would pay

for leasing the space would come from any profits Globe made as a result of its

participation in Hemmerle's Florida west coast development project. Renda and

Hemmerle subsequently decided, however, that Globe would instead pay a monthly

rental fee of $300 for each office it occupied in the building. 1/ Globe

(which occupied only one office in the building during the rental period) did

not pay in full the monies it owed under this rental agreement.

20. The office Globe occupied in the 808 Building was the first office to

the right upon entering the building. It was across the lobby from the office

from which Hemmerle conducted business on behalf of his various enterprises.

21. Globe voluntarily and knowingly accepted, used and benefited from the

electric service FPL provided to its office and the common areas in the building

during the rental period.

22. Under the agreement Renda and Hemmerle had reached, Globe was not

responsible for making any payments (in addition to the $300 monthly rental fee)

for such service.

23. On July 26, 1994, the 808 account was in a collectible status and an

FPL field collector was dispatched to the service address. There, he

encountered Hemmerle, who gave him a check made out to FPL in the amount of

$2,216.37. Hemmerle had noted the following on the back of the check: "Payment

made under protest due to now [sic] owning [sic] of such billing amount to

prevent discontinuance of power." The check was drawn on a Sunniland Bank

checking account that was in the name of Florida Kenmar, Inc., (hereinafter

referred to as "Kenmar"), a Florida corporation that had been incorporated in

May of 1984, 2/ and administratively dissolved on November 9, 1990. (The last

annual report that Kenmar filed with the Division of Corporations, which was

filed on June 10, 1991, reflected that: Hemmerle was the corporation's

president and registered agent; he also served on the corporation's board of

directors; and the corporation's principal office was located in the 808

Building.) Hemmerle told the field collector, upon handing him the check, that

there were no funds in the Kenmar checking account. Nonetheless, the field

collector accepted the check.

24. FPL deposited the check in its account at Barnett Bank of South

Florida.

25. The check was subsequently returned due to "insufficient funds."

26. On the same day that he was visited by the FPL field collector,

Hemmerle telephoned Sandra Lowery, an FPL customer service lead representative

for recovery, complaining about, among other things, a debit that he claimed had

been improperly charged to the 808 account.

27. As a result of her conversation with Hemmerle, Lowery authorized the

removal of the debit and all late payment charges associated with the debit from

the 808 account.

28. Following the July 26, 1994, removal of the debit and associated late

payment charges, the balance due on the account was $1,953.91, an amount that

Hemmerle still disputed.

29. In an effort to demonstrate that a lesser amount was owed, Hemmerle

sent Lowery copies of cancelled checks that, he claimed, had been remitted to

FPL as payment for electric service billed to the 808 account.

30. Some of these checks, however, had been used to pay for charges billed

to other accounts that Hemmerle (or corporations with which he was associated)

had with FPL.

31. As of August 29, 1994, the 808 account had a balance due of $2,387.47.

These unpaid charges were for service provided between March of 1993 and August

10, 1994.

32. On August 29, 1994, Hemmerle showed Renda a notice that he had

received from FPL advising that electric service to the 808 Building would be

terminated if the balance owing on the 808 account was not paid within the time

frame specified in the notice. Hemmerle suggested to Renda that, in light of

FPL's announced intention to close the 808 account and terminate service, Renda

should either apply for electric service to the 808 Building in Globe's name or

relocate to another office building.

33. Renda decided to initially pursue the former option.

34. Later that same day, Renda telephoned FPL to request that an account

for electric service to the 808 Building be opened in Globe's name. Gigi

Marshall was the FPL representative to whom he spoke. She obtained from Renda

the information FPL requires from an applicant for electric service.

35. During his telephone conversation with Marshall, Renda mentioned,

among other things, that Globe had been a tenant at the 808 Building since the

previous year and that it was his understanding that FPL was going to

discontinue electric service to the building because of the current customer's

failure to timely pay its bills. Renda claimed that Globe was not in any way

responsible for payment of these past-due bills.

36. From an examination of FPL's computerized records (to which she had

access from her work station), Marshall confirmed, while still on the telephone

with Renda, that the 808 account was in arrears and that FPL had sent a

disconnect notice to the current customer at the service address.

37. Marshall believed that, under such circumstances, it would be

imprudent to approve Globe's application for electric service without further

investigation. She therefore ended her conversation with Renda by telling him

that she would conduct such an investigation and then get back with him.

38. After speaking with Renda, Marshall went to her supervisor, Carol Sue

Ryan, for guidance and direction. Like Marshall, Ryan questioned whether

Globe's application for service should be approved. She suggested that Marshall

telephone Renda and advise him that FPL needed additional time to complete the

investigation related to Globe's application. Some time after 12:30 p.m. on

that same day (August 29, 1994), Marshall followed Ryan's suggestion and

telephoned Renda. Ryan was on the line when Marshall spoke with Renda and she

participated in the conversation. Among the things Ryan told Renda was that a

meter reader would be dispatched to the 808 Building the following day to read

the meter so that the information gleaned from such a reading would be available

in the event that Globe's application for service was approved.

39. At no time did either Marshall or Ryan indicate to Renda that Globe's

application was, or would be, approved.

40. Ryan referred Globe's application to Larry Johnson of FPL's

Collection Department, who, in turn, brought the matter to the attention of

Thomas Eichas, an FPL fraud investigator.

41. After completing his investigation of the matter, which included an

examination of the Broward County property tax rolls (which revealed that

Southern owned the 808 Building), as well a search of the records relating to

Globe, HDC and Southern maintained by the Division of Corporations, Eichas

determined that Globe's application for service should be denied on the basis of

the "prior indebtedness rule." Eichas informed Johnson of his decision and

instructed him to act accordingly.

42. Electric service to the 808 Building was terminated on September 6,

1994.

43. As of that date, the 808 account had a past-due balance that was still

in excess of $2,000.00.

44. Although he conducted his business activities primarily from his home

following the termination of electric service to the 808 Building, Hemmerle

continued to have access to the building until March of 1995 (as did Renda). 3/

During this period, Hemmerle still had office equipment in the building and he

went there on almost a daily basis to see if any mail had been delivered for

him. It was his intention to again actively conduct business from his office in

the building if electric service to the building was restored. Hemmerle (and

the corporations on whose behalf he acted) therefore would have benefited had

there been such a restoration of service.

45. After discovering that electric service to the 808 Building had been

terminated, Renda telephoned FPL to inquire about the application for service he

had made on behalf of Globe. He was advised that, unless FPL was paid the more

than $2,000.00 it was owed for electric service previously supplied to the

building, service to the building would not be restored in Globe's name.

46. Thereafter, Renda, on behalf of Globe, telephoned the PSC and

complained about FPL's refusal to approve Globe's application for service.

47. FPL responded to the complaint in writing. In its response, it

explained why it had refused to approve the application.

48. On or about November 15, 1994, the Chief of PSC's Bureau of Complaint

Resolution sent Renda a letter which read as follows:

The staff has completed its review of your

complaint concerning Florida Power & Light's

(FPL) refusal to establish service in the

name of Globe Realty, Inc. at the above-

referenced location. Our review indicates

that FPL appears to have complied with all

applicable Commission Rules in refusing to

establish service. Our review of the customer

billing history indicates that the past-due

balance is for service at this location and

not attributable to the judgment against Mr.

Hemmerle for service at another location.

The interlocking directorships of Globe

International Realty & Mortgage, Inc. and

Hemmerle Development, Inc. suggest that the

request to establish service in the name of

Globe Realty is an artifice to avoid payment

of the outstanding balance and not a result

of any change in the use or occupancy of the

building. Thus, FPL's refusal to establish

service is in compliance with Rule 25-6.105(8)(a),

Florida Administrative Code.

Please note that this determination is subject

to further review by the Florida Public

Service Commission. You have the right to

request an informal conference pursuant to

Rule 25-22.032(4), Florida Administrative

Code. Should that conference fail to resolve

the matter, the staff will make a recommenda-

tion to the Commissioners for decision. If

you are dissatisfied with the Commission

decision, you may request a formal Administrative

hearing pursuant to Section 120.57(1), Florida

Statutes.

49. After receiving this letter, Renda, on behalf of Globe, requested an

informal conference.

50. The informal conference was held on November 30, 1994.

51. At the informal conference, the parties explained their respective

positions on the matter in dispute. No resolution, however, was reached.

52. Adopting the recommendation of its staff, the PSC, in an order issued

January 31, 1995, preliminarily held that there was no merit to Globe's

complaint that FPL acted improperly in refusing to provide electric service to

the 808 Building pursuant to Globe's request.

53. Thereafter, Renda, on behalf of Globe, requested a formal Section

120.57 hearing on the matter.

CONCLUSIONS OF LAW

54. "Any customer of a utility regulated by [the PSC] may file a complaint

with the [PSC's] Division of Consumer Affairs whenever he has an unresolved

dispute with the utility regarding his electric . . . service. The complaint

may be communicated orally or in writing. Upon receipt of the complaint a staff

member designated by the Director of the Division [is required to] notify the

utility of the complaint and request a response . . . . [which] explain[s] the

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

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

laws, and [PSC] rules, regulations, and orders." Rule 25-22.032(1), Fla. Admin.

Code.

55. It is the responsibility of the designated staff member to

"investigate the complaint and attempt to resolve the dispute informally" by

"propos[ing] a resolution of the complaint based on his findings, applicable

state laws, the utility's tariffs and [PSC] rules, regulations, and orders."

Rule 25-22.032(2) and (3), Fla. Admin. Code.

56. "If a party objects to the proposed resolution, he may file a

[written] request for an informal conference on the complaint . . . within 30

days after the proposed resolution is mailed or personally communicated to the

parties. Upon receipt of the request the Director of the Division may appoint a

staff member to conduct the informal conference or the Director may make a

recommendation to the Commission for dismissal based on a finding that the

complaint states no basis for relief under the Florida Statutes, Commission

rules or orders, or the applicable tariffs." Rule 25-22.032(4), Fla. Admin.

Code.

57. If an informal conference is held and settlement is not reached

"within 20 days following the informal conference or the last post-conference

filing, the appointed staff member [is required] to submit a recommendation to

the [PSC] and . . . mail copies of the recommendation to the parties. The [PSC

will] dispose of the matter at the next available agenda meeting by issuing a

notice of proposed agency action or by setting the matter for hearing pursuant

to section 120.57." Rule 25-22.032(8), Fla. Admin. Code.

58. In the instant case, Globe, through Renda, filed a complaint against

FPL, a PSC-regulated electric utility, contesting FPL's refusal to provide

electric service to the 808 Building pursuant to Globe's request. Although the

PSC has issued a Notice of Proposed Agency Action announcing its preliminary

determination to find Globe's challenge without merit, there has been no final

resolution of the matter. A dispute still exists which must be resolved by

final agency action.

59. In responding to Globe's complaint, FPL has taken the position that

the complained-of refusal to provide service was justified in light of Rule 25-

6.105(8)(a), Florida Administrative Code, 4/ which provides as follows:

The following shall not constitute sufficient

cause for refusal or discontinuance of service

to an applicant or customer:

(a) Delinquency in payment for service by a

previous occupant of the premises unless the

current applicant or customer occupied the

premises at the time the delinquency occurred

and the previous customer continues to occupy

the premises and such previous customer shall

benefit from such service.

60. The preponderance of the record evidence supports FPL's position. It

establishes that: at the time FPL refused Globe's request for service, the 808

account had a past-due balance in excess of $2,000; the monies owed were for

electric service supplied to the 808 Building during Globe's occupancy of the

building; as a director, officer and agent of HDC who had actual knowledge of

HDC's administrative dissolution, but nonetheless purported to act on HDC's

behalf in his post-dissolution dealings with FPL in connection with the 808

Account, Hemmerle was personally liable, under Section 607.1421(4), Florida

Statutes, 5/ for payment of this debt; and Hemmerle continued to have access

to the 808 Building until March of 1995, and thus would have benefited had the

electric service requested by Globe been provided. Under such circumstances,

FPL was authorized, pursuant to the provisions of Rule 25-6.105(8)(a), Florida

Administrative Code, 6/ to refuse to provide such service.

61. Accordingly, Globe's complaint contesting such action 7/ should be

dismissed. 8/

RECOMMENDATION

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

hereby

RECOMMENDED that the PSC enter a final order dismissing Globe's complaint

that FPL acted improperly in refusing to provide electric service to the 808

Building pursuant to Globe's request.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of

December, 1995.

___________________________________

STUART M. LERNER

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 4th day of December, 1995.

ENDNOTES

1/ There was a possibility that Globe would soon expand its operations and

therefore need more than one office in the building.

2/ At the time of Kenmar's incorporation, Hemmerle owned 50 of the 100 shares

of stock issued by the corporation.

3/ Both Hemmerle and Renda had keys to the building.

4/ This is a Section 120.57 consumer complaint proceeding, not a Section 120.56

rule challenge proceeding. Accordingly, the validity of Rule 25-6.105(8)(a),

Florida Administrative Code, is not at issue. See City of Palm Bay v.

Department of Transportation, 588 So.2d 624, 628 (Fla. 1st DCA 1991)("duly

promulgated agency rules . . . will be treated as presumptively valid until

invalidated in a section 120.56 rule challenge"); Decarion v. Martinez, 537

So.2d 1083, 1084 (Fla. 1st DCA 1989)("[u]ntil amended or abrogated, an agency

must honor its rules").

5/ Section 607.1421(4), Florida Statutes, provides as follows:

A director, officer or agent of a corporation

dissolved pursuant to this section, purporting

to act on behalf of the corporation, is

personally liable for the debts, obligations,

and liabilities of the corporation arising

from such action and incurred subsequent to

the corporation's administrative dissolution

only if he has actual notice of the

administrative dissolution at the time such

action is taken; but such liability shall be

terminated upon the ratification of such

action by the corporation's board of directors

or shareholders subsequent to the reinstatement

of the corporation under ss. 607.1401-607.14401.

6/ It need not be determined, and therefore the Hearing Officer will not

address, whether, as FPL claims, its refusal to provide service was also

authorized by Rule 25-6.105(5)(j), Florida Administrative Code, which allows a

regulated utility to refuse service where there has been an "unauthorized or

fraudulent use of service."

7/ In addition to contending that FPL improperly refused its request for

service, Globe further argues in its proposed recommended order that FPL also

acted improperly by failing to notify Globe in writing of the reason for such

refusal, as required Rule 25-6.105(5) and (7), Florida Administrative Code. No

such allegation, however, was made in the complaint that Globe filed with the

PSC and that is the subject of this Section 120.57 consumer complaint

proceeding. Accordingly, the allegation warrants no further discussion.

8/ Globe makes the argument in its proposed recommended order that "[t]his case

is controlled by the decision of Williams v. City of Mt. Dora, 452 So.2d 1143

(Fla. 5th DCA 1984)," wherein the Fifth District Court of Appeal held that an

electric utility acted improperly in "requir[ing] an applicant for service to

pay a delinquent bill for service previously rendered to some other occupant or

owner of [the] premises as a condition to continuing or reinstating service to

the new applicant at the same premises," where the "new applicant" was not

"legally liable on any theory to the [utility] for the utility service

represented by the delinquent bill." Globe's reliance on Williams is misplaced.

Unlike the situation present in the instant case, in Williams, the "new

applicant" had not "occupied the premises at the time the delinquency occurred"

and the "previous customer" would not have benefited had service been supplied

to the premises pursuant to the "new applicant's" request. The two cases are

therefore factually distinguishable.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-2514

The following are the Hearing Officer's specific rulings on the "findings

of facts" proposed by the parties in their proposed recommended orders:

Globe's Proposed Findings

1. Accepted and incorporated in substance, although not necessarily

repeated verbatim, in this Recommended Order.

2. First sentence: Accepted and incorporated in substance; Remaining

sentences: Rejected as findings of fact because they are more in the nature of

summaries of testimony adduced at hearing than findings of fact. See T.S. v.

Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st

DCA 1995)(hearing officer's factual findings which "merely summarize[d] the

testimony of witnesses" were "insufficient").

3-4. Rejected as findings of fact because they are more in the nature of

summaries of testimony adduced at hearing than findings of fact.

5-6. Accepted and incorporated in substance.

7. Rejected as a finding of fact because it is more in the nature of a

summary of testimony adduced at hearing than a finding of fact.

8. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Second sentence: Accepted and incorporated in substance.

9. First and last sentences: Rejected as findings of fact because they

are more in the nature of summaries of testimony adduced at hearing than

findings of fact; Remaining sentences: Accepted and incorporated in substance.

10. First sentence: Rejected as a finding of fact because it is more in

the nature of a summary of testimony adduced at hearing than a finding of fact;

Remainder: Accepted and incorporated in substance.

11-12. Rejected as findings of fact because they are more in the nature of

summaries of testimony adduced at hearing than findings of fact.

13. To the extent that this proposed finding states that there was a

dispute between Hemmerle (purporting to act on behalf of HDC) and FPL concerning

the amount owed for electric service provided to the 808 Building, it has been

accepted and incorporated in substance. Otherwise, it has been rejected as a

finding of fact because it is more in the nature of a summary of testimony

adduced at hearing than a finding of fact.

14. Rejected as a finding of fact because it is more in the nature of a

summary and recitation of, and commentary upon, testimony adduced at hearing

than a finding of fact.

FPL's Proposed Findings

1-11. Accepted and incorporated in substance.

12. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

13-14. Accepted and incorporated in substance.

15. Rejected as a finding of fact because it is more in the nature of a

summary of testimony adduced at hearing than a finding of fact.

16-17. Accepted and incorporated in substance.

18. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

19. Accepted and incorporated in substance.

20. First sentence: Not incorporated in this Recommended Order because it

would add only unnecessary detail to the factual findings made by the Hearing

Officer; Second sentence: Accepted and incorporated in substance.

21-22. Not incorporated in this Recommended Order because they would add

only unnecessary detail to the factual findings made by the Hearing Officer.

23. Accepted and incorporated in substance.

24-25. Rejected because they lack sufficient evidentiary/record support.

26. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

27-31. Accepted and incorporated in substance.

32. To the extent that this proposed finding refers to telephone calls

made on September 6, 1994, by Hemmerle and a Mr. Williams, it has not been

incorporated in this Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer. Otherwise, it has

been accepted and incorporated in substance.

33-34. Accepted and incorporated in substance.

35. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

36. Accepted and incorporated in substance.

37-38. Not incorporated in this Recommended Order because they would add

only unnecessary detail to the factual findings made by the Hearing Officer.

39-42. Accepted and incorporated in substance.

43. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

44-45. Accepted and incorporated in substance.

46. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

The PSC's Proposed Findings

1-9. Accepted and incorporated in substance.

10-11. Not incorporated in this Recommended Order because they would add

only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Kenneth V. Hemmerle, II, Esquire

Klein, Hemmerle & McCusker

1322 Northeast Fourth Avenue

Suite E

Fort Lauderdale, Florida 33304

Robert E. Stone, Esquire

Post Office Box 029100

Miami, Florida 33102

Robert V. Elias, Staff Counsel

Florida Public Service Commission

Gerald L. Gunter Building

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

William D. Talbott, Executive Director

Florida Public Service Commission

121 Fletcher Building

101 East Gaines Street

Tallahassee, Florida 32399-8153

Rob Vandiver, General Counsel

Florida Public Service Commission

121 Fletcher Building

101 East Gaines Street

Tallahassee, Florida 32399-8153

Blanco S. Bayo, Director of Records and Recording

Florida Public Service Commission

121 Fletcher Building

101 East Gaines Street

Tallahassee, Florida 32399-8153

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 of time 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.