97-002485RU Aloha Utilities, Inc., And Florida Waterworks Association, Inc. vs. Florida Public Service Commission
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Wednesday, April 21, 1999.


View Dockets  
Summary: PSC audit procedures chllged as unpromulg. rules. FO: not generally applicable statements. Procedures req. professional judgment; some are internal memos. Chllged promulg. rule states statutory authority; not invalid for not covering all aspect of audit.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ALOHA UTILITIES, INC., and FLORIDA )

14WATERWORKS ASSOCIATION, INC., )

18)

19Petitioners, )

21)

22vs. ) Case No. 97-2485RU

27)

28PUBLIC SERVICE COMMISSION, )

32)

33Respondent, )

35)

36and )

38)

39CITIZENS OF THE STATE OF FLORIDA, )

46OFFICE OF PUBLIC COUNSEL, )

51)

52Intervenors. )

54___________________________________)

55FINAL ORDER

57On January 5-6, 1998, a formal administrative hearing was

66held in this case in Tallahassee, Florida, before J. Lawrence

76Johnston, Administrative Law Judge, Division of Administrative

83Hearings.

84APPEARANCES

85For Pet itioner: Steven T. Mindlin, Esquire

92Darren L. Shippy, Esquire

96Rose, Sundstrom & Bentley

1002548 Blairstone Pines Drive

104Tallahassee, Florida 32301

107For Respondent: Richard C. Bellak, Esquire

113Patricia Merchant, Esquire

116Florida Public Service Commission

1202540 Shumard Oak Boulevard

124Tallahassee, Florida 32399-0950

127For Intervenor: Stephen C. Burgess, Esquire

133Deputy Public Counsel

136111 West Madison Street

140812 Claude Pepper Building

144Tallahassee, Florida 32399-1400

147STATEMENT OF THE ISSUES

151The issues in this case are: (1) whether various statements

161regarding the Florida Public Service Commission's ( PSC's)

169financial audit procedures and practices--including statements in

176the PSC Audit Manual, in various Standard Operating Procedures

185( SOP's), in the PSC's Audit Services Request (ASR) form, and the

197PSC's form letter notifying utilities of an impending audit--are

206invalid unpromulgated rules; and (2) whether Florida

213Administrative Code Rule 25-30.145 is an invalid rule.

221PRELIMINARY STATEMENT

223On May 23, 1997, Aloha Utilities, Inc. (Aloha) and the

233Florida Waterworks Association (FWA) filed a Petition for

241Administrative Determination of Invalidity of Agency Non-Rule

248Policies and Existing Rules. An Amended Petition for

256Administrative Determination of Invalidity of Agency Non-Rule

263Policies and Existing Rules was filed on May 30, 1997.

273The case initially was scheduled for final hearing on

282June 24, 1997, but the parties stipulated to waive the 30-day

293statutory deadline for scheduling final hearing and jointly moved

302for a continuance. The motion was granted, and final hearing was

313continued until October 13, 1997.

318On June 17, 1997, the PSC filed a Motion for Summary Final

330Order. Based on the written arguments, an Order Denying Summary

340Final Order was entered on August 12, 1997.

348On September 29, 1997, the Petitioners filed an Unopposed

357Motion for Continuance. It was granted, and final hearing was

367rescheduled for January 5-6, 1998.

372On October 6, 1997, the Citizens of the State of Florida,

383Office of Public Counsel, petitioned to intervene. An Order

392Granting Leave to Intervene was entered on October 8, 1997.

402The PSC filed a Motion to Request Official Recognition on

412December 31, 1997.

415The parties filed a Joint Prehearing Stipulation on

423January 2, 1998.

426At final hearing, the PSC's Motion to Request Official

435Recognition was granted without objection. The Petitioners

442called two witnesses and had Petitioners' Exhibits 1 through 42

452admitted in evidence. The PSC called two witnesses and had

462Respondent's Exhibits 1 through 9 admitted in evidence. The

471Intervenor cross-examined the witnesses, but called none of its

480own, and had Intervenor Exhibit 1 admitted in evidence.

489After presentation of the evidence, the Petitioners ordered

497the preparation of a transcript of the final hearing and

507requested 30 days from the filing of the transcript for filing

518proposed final orders. The request was granted without

526objection. The transcript was filed on January 21, 1998.

535FINDINGS OF FACT

538The Petitioners

5401. Aloha Utilities, Inc. (Aloha) is a privately-owned

548utility company providing water and wastewater services to its

557customers. Aloha provides potable water, wastewater treatment and

565disposal services to approximately 12,000 customers in Pasco

574County, Florida.

5762. Aloha operates two separate water systems and two

585separate wastewater systems. Aloha's four systems are separated

593geographically, and are separately treated for various regulatory

601purposes by the Florida Public Service Commission (PSC).

6093. Aloha is a member of the Florida Waterworks Association,

619Inc. (FWA). The FWA is a voluntary trade association whose members

630are regulated water and wastewater utility companies. The FWA is

640the Florida Chapter of the National Association of Water Companies.

650The FWA's members are privately-owned water and wastewater utility

659companies, like Aloha, subject to environmental and economic

667regulation by the Florida Public Service Commission and other state

677and federal governmental agencies. The overall mission of the FWA

687is to act on behalf of its members in regulatory matters including

699policies, procedures, rules or proposed rules. The FWA has been

709actively involved in rulemaking and rule challenges on matters

718involving the PSC in the past.

7244. A substantial number of the FWA's members are subject to

735PSC audits, including Aloha. The FWA's Board directed by unanimous

745vote that the FWA join Aloha in filing the petition in this case.

758PSC Financial Audits

7615. The Florida Public Service Commission (PSC) has

769jurisdiction over the rates and revenues that PSC-regulated

777utilities can collect from their customers. Revenues and rates

786charged and collected must be fair, reasonable, compensatory and

795not unfairly discriminatory. One important role of the PSC is to

806set revenues needed to operate the utility, including a fair rate

817of return.

8196. The PSC sets revenues in one of two situations. One is a

"832file-and-suspend" rate case initiated by a utility to raise its

842rates. The other situation can arise when the PSC initiates an

853earnings investigation and decides that a utility's revenues are

862too high.

8647. In order to assist the PSC in determining whether a

875utility's rates are fair, the PSC's staff performs financial

884audits. (Other kinds of audits are performed for other purposes,

894as well.)

8968. Sometimes, the PSC requests that its staff conduct an

906audit; sometimes, the PSC's staff decides on its own that an audit

918is appropriate; sometimes, the staff's decision to audit is

927influenced by expressions of interest by the PSC or its members.

938Burden Imposed on Utility by a PSC Financial Audit

9479. PSC financial audits require that utilities present

955financial information using the Uniform System of Accounts

963developed by the National Association of Regulatory Utility

971Commissioners (NARUC). Original documentation supporting the

977accounts--including canceled checks, invoices, contracts, cash

983receipt journals, and tax returns--also would have to be made

993available to the PSC's auditors.

99810. In addition to making the required financial information

1007available to the PSC's auditors, a PSC audit often requires that

1018the utility create schedules, calculations and reconciliations not

1026kept in the normal course of a utility's business in order to

1038establish that the test year is representative.

104511. A utility can incur substantial costs in responding to a

1056financial audit by PSC staff. While not required by the PSC, it is

1069typical for utility accountants with regulatory experience to be

1078present at the PSC audit of their utility clients. Lawyers and

1089engineers sometimes are also paid for services related to a PSC

1100audit.

1101Burden of the Aloha Audit

110612. By letter dated March 5, 1997, the PSC informed Aloha

1117that it would "compile and audit [ Aloha's] rate base, capital

1128structure and net operating for the test year ended December 31,

11391996 in accordance with Commission audit procedures."

114613. As of March 5, 1997, Aloha's 1996 financial books had not

1158been closed, and Aloha's 1996 Annual Report had not been prepared.

1169It is unusual for the PSC to initiate an overearnings audit before

1181reviewing the Annual Report for the test year to be reviewed.

1192Aloha informally requested that the audit be delayed until after

1202the closing of Aloha's financial books for 1996 and the filing of

1214the Aloha's 1996 Annual Report. The PSC granted the request.

122414. Since Aloha had not been audited in 19 years , the audit

1236letter would require that Aloha present 19 years of financial

1246information using the NARUC Uniform System of Accounts and make the

1257original supporting documentation available to the PSC's auditors.

126515. To comply with the audit letter, Aloha also would be

1276required to spend a substantial amount of time preparing and

1286providing support for a great many proforma adjustments which would

1296be necessary to attempt to make the 1996 test year representative.

1307Aloha was involved in a complex reuse case in 1996. This reuse

1319case was one of the first such cases filed in the State of Florida.

1333During 1996, Aloha had more than $500,000 in interim rates in

1345escrow which it could not use. Because of the escrowed funds,

1356Aloha's cash flow for 1996 was very tight, and normal operating and

1368maintenance expenses were held to a minimum. In 1996, Aloha had

1379high capital costs related to the reuse system, and it had more

1391than $4 million of construction work in progress, relating

1400primarily to the reuse facility construction and to the relocation

1410of water and wastewater lines necessitated by order of the

1420Department of Transportation.

142316. Each of Aloha's four systems has its own rate base.

1434Several of these systems have their own authorized rates of return.

1445The existence of four separate systems complicates the proposed

1454Aloha audit, and increases the cost to be incurred by Aloha for

1466this audit.

146817. The proposed audit of Aloha would involve a minimum of

1479two or three PSC auditors being present on site at Aloha's offices

1491for a period of six to eight weeks or longer.

150118. The total estimated direct cost to Aloha of the proposed

1512audit is $132,580. These estimated costs are relatively high,

1522owing in part to the characteristics of the Aloha audit. In

1533particular, the engineering and legal fees appear to be unusually

1543high.

1544Recovery of Costs of a PSC Financial Audit

155219. Utilities generally can recover the costs of an audit.

1562If the audit results in a determination that the utility is over-

1574earning, these costs are taken into consideration, as appropriate,

1583when the utilities new rates are established in a separate PSC

1594proceeding for this purpose. (The Petitioners characterize the

1602results of such a proceeding as "indirect costs" of an audit.) If

1614the audit results in a determination that the utility's rates are

1625reasonable, or that the utility is under-earning, the utility can

1635initiate a limited proceeding to recover the costs of the audit.

1646For various reasons, a utility may choose not to initiate such a

1658proceeding. Likewise, if the audit results in a determination that

1668the utility is under-earning, the utility may initiate a rate case

1679to establish higher, reasonable rates, but the utility may or may

1690not choose to do so.

1695PSC Audit Manual and DAFA SOP's

170120. The PSC has an Audit Manual to guide its auditors in

1713conducting financial audits of regulated companies. The Audit

1721Manual has been in existence since at least 1983. The August 1996

1733version was introduced into evidence in this case. The Audit

1743Manual contains the "Commission audit procedures" referred to in

1752the audit letters sent out by the PSC to inform utilities that an

1765audit will be conducted.

176921. The audit procedures in the Audit Manual set out a format

1781for PSC financial audit reports. They also cover audit topics,

1791including: compliance with the NARUC Uniform System of Accounts;

1800rate base; utility plant; accumulated depreciation expense;

1807contributions in aid of construction (CIAC); CIAC and amortization;

1816working capital (formula method and balance sheet method); revenue

1825and expense; capital structure and cost; related party

1833transactions; review of tax returns; review of proforma

1841adjustments; review of officers' compensation. Not all of these

1850audit topics are applicable to each audit; their applicability

1859depends on the requirements of the audit, which vary from audit to

1871audit.

187222. By its own terms, the Audit Manual "supplements the

1882[Division of Auditing and Financial Analysis] DAFA Standard

1890Operating Procedures Manual (SOP)." Staff is expected to follow

1899them or "be prepared to justify deviations." The Petitioners did

1909not put the DAFA SOP Manual in evidence, but the PSC did.

1921(Respondent's Exhibit 9)

192423. Neither the Audit Manual nor the DAFA SOP Manual has been

1936adopted as a rule by the PSC, appears in the Florida Administrative

1948Code, or has been incorporated by reference as a rule by the PSC in

1962the Florida Administrative Code.

196624. The PSC has not officially notified utilities that the

1976Audit Manual and DAFA SOP Manual exist and has not notified

1987utilities when changes have been made. It is not clear from the

1999evidence whether utilities commonly know of their existence. The

2008documents are not confidential, and the PSC would willingly furnish

2018copies to any utilities that ask for them.

202625. PSC auditors are expected to reference the Audit Manual

2036and the DAFA SOP Manual and to use them in guiding their decisions

2049in the field. These Manuals instruct the auditors in how to

2060conduct an audit for the PSC and how to produce an audit report in

2074the form desired by the PSC. As such, they do not implement,

2086interpret, or prescribe law or policy or describe the procedure

2096or practice requirements of the PSC. Rather, they are the

2106equivalent of a compendium of "[ i] nternal management memoranda

2116which do not affect either the private interests of any person or

2128any plan or procedure important to the public and which have no

2140application outside the agency issuing the memorandum."

2147The Decision to Audit

215126. The Audit Manual specifically incorporates Chapter 1630

2159of the PSC Generic Standard Operating Procedure ("SOP") regarding

2170the process for requesting the initiation of an audit. This SOP is

2182part of the Commission's 1600 Series Standard Operating Procedures,

2191which have not been adopted as rules.

219827. Under Generic SOP 1630, the Division of Water and

2208Wastewater completes and sends to the Division of Auditing and

2218Financial Analysis a form known as an Audit Service Request

2228("ASR"). When an ASR is issued, an audit will occur in most cases.

224328. Although not presented by th e Petitioners, the PSC put

2254in evidence its Division of Water and Wastewater SOP's relating

2264to auditing utilities. (Respondent's Exhibit 1) SOP No. 2101, on

2274File-and-Suspend Rate Case Procedures, would suggest that some

2282kind of audit is done in response to all utility filings for rate

2295increases; nonetheless, the evidence indicates that it is

2303sometimes decided, for various reasons, that no audit is

2312necessary. SOP No. 2102, on Overearnings Procedures, suggests

2320that audits follow overearnings investigations and states simply

2328that a formal investigations are initiated when overearnings are

"2337clearly evident," while informal investigations are initiated

2344when overearnings are not "clearly evident," but only

"2352suspected." Again, the evidence indicates that it is sometimes

2361decided, for various reasons, that no audit is necessary for an

2372overearnings investigation.

237429. A review of the evidence reveals that neither the Audit

2385Manual, the SOP's, nor the ASR address the manner in which it

2397should be decided whether to initiate an audit. Rather, they

2407describe the internal procedures within the PSC for initiating an

2417audit once the decision to audit has been made. As such, they do

2430not implement, interpret, or prescribe law or policy or describe

2440the procedure or practice requirements of the PSC. Rather, they

2450are the equivalent of "[ i] nternal management memoranda which do

2461not affect either the private interests of any person or any plan

2473or procedure important to the public and which have no

2483application outside the agency issuing the memorandum."

249030. The decision whether to initiate an audit is made on a

2502case-by-case basis which does not lend itself to statements of

2512general applicability. The PSC usually performs an audit in

"2521file-and-suspend" rate cases, but not always. Likewise, the PSC

2530usually performs an audit in earnings investigations, but not

2539always. The decision to initiate an audit depends on the facts

2550of the particular case and the application of professional

2559judgment to those facts. The PSC has made no statements of

2570general applicability on the subject; nor should it or could it

2581do so.

258331. Usually, the decision whether to initiate an

2591overearnings audit is made after review of a utility's annual

2601report, but not always. In the case of Aloha, the decision to

2613audit the 1996 test year was made before Aloha filed its 1996

2625annual report. The decision to audit Aloha was made for several

2636reasons: (1) a separate, unaudited PSC reuse docket involving

2645Aloha was pending; (2) the PSC received sworn testimony in a

2656quality of service investigation docket that was consolidated

2664with the reuse docket asserting that Aloha was overearning

2673(together with conflicting testimony that Aloha was not

2681overearning), and the PSC expressed interest in the issue; (3)

2691the PSC's staff was aware that Aloha was involved in

2701approximately $280,000 of related-party transactions that created

2709numerous possibilities for Aloha to subsidize operations of the

2718related parties; and (4) Aloha (and, in particular, its rate

2728base) had not been audited in 19 years.

273632. The decision to audit includes the decision what to

2746audit. As with the decision to audit, the decision what to audit

2758depends on the facts of the particular case and the application

2769of professional judgment to those facts. As such, this decision

2779also must be made on a case-by-case basis, which does not lend

2791itself to statements of general applicability. The PSC has made

2801no statements of general applicability on the subject; nor should

2811it or could it do so.

2817Notice of Audit

282033. When it d ecides to audit a utility, the PSC sends a

2833letter notifying the utility of the impending audit. The letters

2843are basic form letters which are adapted to show the name of the

2856utility and the type of audit.

286234. The PSC expects utilities to comply with requests to

2872initiate an audit. If a utility does not comply with an audit

2884request, it can be subject to fine or face other administrative

2895actions. Compliance with PSC audit requests is mandatory.

290335. The form of the letter notifying utilities of an

2913impending audit does not implement, interpret, or prescribe law

2922or policy or describe the procedure or practice requirements of

2932the PSC. Rather, it merely gives a utility notice of the PSC's

2944decision to conduct an audit.

2949Materiality Standards

295136. A review of the evidence reveals that neither the Audit

2962Manual, the SOP nor the ASR includes any statement of general

2973applicability that implements, interprets, or prescribes law or

2981policy on the subject of quantitative materiality standards. The

2990Petitioners contend that there should be rules establishing

2998quantitative materiality standards so that the costs of unnecessary

3007audits can be avoided. But the evidence is that, while materiality

3018is considered in PSC financial audits, quantitative standards of

3027materiality are not applied. The evidence is that materiality is a

3038question of judgment determined on a case-by-case basis in the

3048context of the particular audit being conducted.

305537. A statement of general applicability that implements,

3063interprets, or prescribes law or policy on the subject of

3073quantitative materiality standards would not be appropriate.

3080After first explaining the related concepts of materiality and

3089relevance, the Financial Accounting Standards Board states:

3096Magnitude by itself, without regard to the

3103nature of the item and the circumstances in

3111which the judgment has to be made, will not

3120generally be a sufficient basis for a

3127materiality judgment. The Board's present

3132position is that no general standards of

3139materiality can be formulated to take into

3146account all of the considerations that enter

3153into an experienced human judgment.

3158Quantitative materiality standards for PSC audits, as suggested

3166by the Petitioners, would not be appropriate.

317338. It also is not clear that quantitative materiality

3182standards would avoid the costs of an audit. It would seem that

3194an audit of some kind would have to be conducted in order to

3207determine the magnitude of an audit finding before it could be

3218determined whether the finding is material, even using a

3227quantitative standard.

3229Audit Exit Conference Procedures

323339. The PSC Audit Manual sets out procedures for audit exit

3244conferences that afford utilities an opportunity for input into the

3254audit process. (Policy 2200, Audit Planning, p. 2202) However,

3263these procedures are not promulgated as rules.

327040. Until recently, as part of the audit exit conference,

3280utilities were given an opportunity to review and discuss

3289preliminary draft audit findings and exceptions. In the current

3298version of the Audit Manual, this is not permitted, and no

3309opportunity for input is afforded until after the audit report is

3320prepared. ( Id. )

332441. The current version of the PSC Audit Manual provides

3334that, after the audit report is prepared, the audited utility will

"3345have a 10-15 day time period to respond with comments." ( Id. ) The

3359PSC decides whether to accept the audit report after considering

3369the utility's response.

337242. Unlike the other alleged unpromulgated rules, the audit

3381exit conference procedures allowing for utility input into the

3390audit process implement, interpret, or prescribe law or policy or

3400describe the procedure or practice requirements of the PSC. As

3410such, they affect the private interests of the utilities and are

3421procedures important to the public.

342643. It is both feasible and practicable to promulgate the

3436audit exit conference procedures as a rule, including the

3445statement that the audited utility will "have a 10-15 day time

3456period to respond with comments."

3461Use Made of Audits

346544. It is up to the PSC to decide wha t to do with an audit

3481report and the utility's response. The PSC could accept the

3491audit report or reject it, or it could accept the audit report

3503with modifications.

350545. Next, the PSC decides what do with the report it has

3517accepted. If the report was generated in the context of a "file-

3529and-suspend" rate case, the case proceeds. If the report was

3539generated in the context of an earnings investigation, it could

3549lead to PSC action to reduce the utility's rates; if so, the

3561utility's due process rights will be defined in the context of

3572that proceeding. In either case, findings will be made based on

3583the evidence adduced in the new proceeding, not on the basis of

3595the audit report itself. The subsequent proceeding, which would

3604be governed by Florida Administrative Code Rules Chapter 25-22,

3613affords the utility a full opportunity to defend against the

3623audit findings. The defense can include presentation of a case

3633that the test year adjustments were incorrect, or that another

3643test year is more appropriate. It can also include presentation

3653of a case that certain audit findings are irrelevant or

3663immaterial.

3664Questionable Pre-Challenge Inquiry

366746. The PSC contends that sanctions should be imposed on

3677the Petitioners because, as the evidence makes clear, the

3686Petitioners challenged the PSC Audit Manual as being an

3695unpromulgated rule without ever having taken any action to obtain

3705a copy of it and read it.

3712CONCLUSIONS OF LAW

3715Audit Exit Conference Procedures

371947. The law is clear that: "Each agency statement define d

3730as a rule by s. 120.52 shall be adopted by the rulemaking

3742procedure provided by this section [120.54, Florida Statutes] as

3751soon as feasible and practicable." Section 120.54(1)(a), Florida

3759Statutes (1997). "Any person substantially affected by an agency

3768statement may seek an administrative determination that the

3776statement violates s. 120.541(1)(a)." Section 120.56(2), Florida

3783Statutes (1997).

378548. Section 120.52(15), Florida Statutes (1997), provides

3792in pertinent part:

3795(15) "Rule" means each agency statement of

3802general applicability that implements,

3806interprets, or prescribes law or policy or

3813describes the procedure or practice

3818requirements of an agency and includes any

3825form which imposes any requirement or

3831solicits any information not specifically

3836required by statute or by an existing rule.

3844. . . The term does not include:

3852(a) Internal management memoranda which do

3858not affect either the private interests of

3865any person or any plan or procedure important

3873to the public and which have no application

3881outside the agency issuing the memorandum.

388749. The statement in the Audit Manual setting out audit

3897exit conference procedures and affording utilities an opportunity

3905to respond to audit findings is a "statement of general

3915applicability that . . . describes the procedure . . . of" the

3928PSC. This procedure is not contained in existing statute or

3938rule. As such, it is a rule under Section 120.52(15), Florida

3949Statutes (1997).

395150. The PSC argues that none of the statements in the PSC

3963Audit Manual, the SOP's or the ASR have to be promulgated as

3975rules because no utility is substantially affected by any audit,

3985in that agency action affecting the utility's substantial

3993interests is not taken until subsequent PSC proceedings take

4002place under Florida Administrative Code Rules Chapter 25-22. But

4011nothing in Section 120.52(15) supports this argument. To the

4020contrary, under Section 120.52(15), any "agency statement of

4028general applicability that . . . describes the procedure or

4038practice requirements of an agency" is a rule, whether or not the

4050statement affects substantial interests. (On the other hand, the

4059effect on the Petitioners' interests is pertinent to the standing

4069issue under Section 120.56(2), Florida Statutes (1997). See

4077Conclusion 71, infra .)

408151. As found, it is both feasible and practicable to

4091promulgate a rule setting out audit exit conference procedures,

4100including the statement affording utilities an opportunity to

4108respond to an audit report. See Section 120.54(1)(a), Florida

4117Statutes (1997).

4119Other Statements in PSC Audit Manual, SOP's and ASR

412852. It is concluded that the other statements in the PSC

4139Audit Manual, SOP's and the ASR are not rules under the Section

4151120.52(15) definition.

415353. The ASR is nothing more than a form used internally to

4165notify the DAFA that audit services are being requested.

417454. The form letter notifying utilities of an impending audit

4184does not implement, interpret, or prescribe law or policy or

4194describe the procedure or practice requirements of the PSC.

4203Rather, it merely gives a utility notice of the PSC's decision to

4215conduct an audit.

421855. Statements in the Audit Manual and SOP's relating to

4228the decision to initiate an audit make it clear that those

4239decisions are made on a case-by-case basis. The PSC has made no

4251statements of general applicability on the subject; nor should it

4261or could it do so. The decision to initiate an audit depends on

4274the facts of the particular case and the application of

4284professional judgment to those facts. For that reason, the PSC's

4294decision to audit Aloha for the 1996 test year before Aloha filed

4306its 1996 annual report (like other similar audit decisions) was

4316not a departure from procedure, as the Petitioners assert;

4325rather, there is no rule for deciding whether and when to

4336initiate an audit.

433956. The other statements in the Audit Manual and SOP's also

4350neither implement, interpret, or prescribe law or policy, nor

4359describe the "procedure or practice requirements" of the PSC,

4368since they only apply internally to the manner in which the PSC

4380staff conducts audits.

438357. As to the latter part of the statutory definition, to

4394the extent that some statements in the Audit Manual might impose

4405requirements on utilities or solicit information from them, those

4414requirements are "specifically required by statute or by an

4423existing rule." See also Section 120.74(1)(d), Florida Statutes

4431(1997)(requiring agencies to "[d] elete rules redundant of

4439statutes").

444158. Section 367.121(2), Florida Statutes (1997), already

4448authorizes the PSC to, "during all reasonable hours, enter upon

4458any premises occupied by any utility and set up and use thereon

4470any necessary apparatus and appliance for the purpose of making

4480investigations, inspections, examinations, and tests and

4486exercising any power conferred by this chapter." This is

4495statutory authorization to conduct an audit. "Such utility shall

4504have the right to be notified of and be represented at the making

4517of such investigations, inspections, examinations, and tests."

4524Id. No other statutory rights are conferred upon the utility

4534with respect to the conduct of an audit. Section 367.121(1)(c),

4544Florida Statutes (1997), already authorizes the PSC to "require

4553such regular or emergency reports from a utility, including, but

4563not limited to, financial reports, as the commission deems

4572necessary . . .." Section 367.156(1), Florida Statutes (1997),

4581already gives the PSC "reasonable access to all utility records

4591and records of affiliated companies, including its parent company

4600. . ." Contrary to the arguments of the Pet itioners, Section

4612367.156(1) is not limited to records reflecting transactions

4620among the utility and affiliated companies (although those

4628records clearly also are covered by the statute.) Florida

4637Administrative Code Rule 25-30.110(2) already requires utilities

4644to maintain all information requested in any of the statements

4654under challenge. Florida Administrative Code Rule 25-30.115

4661already requires utilities to maintain their accounts and records

4670in conformity with the 1966 NARUC Uniform Systems of Accounts.

4680Florida Administrative Code Rule 25-30.145, which also is under

4689challenge, already defines "the reasonable access to utility and

4698affiliate records provided for in § 367.156(1) for the purposes

4708of management and financial audits." Section (1)(b) of the rule

4718provides:

4719Reasonable access means that company

4724responses to audit requests for access to

4731records shall be fully provided within the

4738time frame established by the auditor. In

4745establishing a due date, the auditor shall

4752consider the location of the records, the

4759volume of information requested, the number

4765of pending requests, the amount of

4771independent analysis required, and reasonable

4776time for the utility to review its response

4784for possible claims of confidentiality or

4790privilege.

479159. In reaching these conclusions, the decision in Dept. of

4801Revenue vs. Vanjaria Enterprises , 675 So. 2d 252 (Fla. 5th DCA

48121996), must be addressed. In Vanjaria , the Department of Revenue

4822(DOR) assessed taxes, and the taxpayer brought a proceeding to

4832challenge the assessment in circuit court. The trial court made

4842a "finding that DOR's procedure for assessing taxes on multiple-

4852use properties, as set forth in the Training Manual, was an

4863unpromulgated rule." Id. at 254. On appeal, the DOR contended

"4873that the audit method contained in the Training Manual is not an

4885unpromulgated rule, in that it merely represents a direct

4894application of the statute." Id. at 255. The Fifth District

4904Court of Appeal disagreed. The court held:

4911A review of the effect of the tax assessment

4920procedure in the instant case reveals that

4927the procedure is a rule in that it is a

"4937statement of general applicability that

4942implements, interprets, or prescribes law or

4948policy." § 120.52(16), Fla. Stat.

4953Furthermore, the tax assessment procedure

4958creates DOR's entitlement to taxes while

4964adversely affecting property owners. The

4969Training Manual was created to be used as the

4978sole guide for auditors in their assessment

4985of multiple-use properties. In determining

4990exempt versus nonexempt uses of multiple-use

4996properties, DOR's auditors strictly comply

5001with the procedure set forth in the Training

5009Manual for all audits performed. Moreover,

5015DOR auditors are not afforded any discretion

5022to take action outside the scope of the

5030Training Manual.

5032Id. To the contrary, the PSC Audit Manual and SOP's are merely

5044guides to auditors in the effective conduct of audits and

5054preparation of audit reports. The Audit Manual and SOP's do not

5065contain statements of general applicability; to the contrary,

5073they permit the PSC's auditors to exercise professional judgment.

5082In addition, and more importantly, the Audit Manual and SOP's do

5093not in themselves implement, interpret, or prescribe law or

5102policy; they only serve to guide the auditors. If law or policy

5114is to be implemented, interpreted, or prescribed, this would

5123occur in subsequent PSC proceedings governed by Florida

5131Administrative Code Rules Chapter 25-22.

513660. In these respects, the statements in the Audit Manual

5146and SOP's are more akin to the statements held not to be rules in

5160Dept. of Highway Safety and Motor Vehicles vs. Schluter, et al. ,

517123 Fla. L. Weekly D192 (Fla. 1st DCA Dec. 31, 1997). In that

5184case, six policies were challenged as being unpromulgated rules.

5193Three of the policies were applicable only "in certain

5202circumstances." The Schluter court held those three policies

5210were not rules:

5213We agree with appellant that the first three

5221of the six policies do not constitute rules.

5229They cannot be considered statements of

5235general applicability because the record

5240establishes that each was to apply only under

"5248certain circumstances." Consequently, as in

5253Department of Highway Safety & Motor Vehicles

5260v. Florida Police Benevolent Ass'n, 400 So.2d

52671302 (Fla. 1st DCA 1981), these statements

5274should be considered effective merely as

5280guidelines, in that their application was

5286subject to the discretion of the employee's

5293supervisor. The Department's first three

5298declarations cannot be said to have been

"5305intended by their own effect to create

5312rights, or to require compliance, or

5318otherwise to have the direct and consistent

5325effect of law." McDonald v. Department of

5332Banking & Fin., 346 So.2d 569, 581 (Fla. 1st

5341DCA 1977) (emphasis added). We therefore

5347reverse the ALJ's determination that they

5353constituted rules under section 120.52(15).

5358Except for statements that simply reiterate statutory or rule

5367requirements (such as the maintenance of records or production of

5377records for inspection during an audit), rather than being rules,

5387the statements are more like internal management memoranda under

5396Section 120.52(15)(a). Statements simply reiterating statutory

5402or rule requirements also are not rules under Sections 120.52(15)

5412and 120.74(1)(d), Florida Statutes (1997).

5417Notice of Audit

542061. The letters the PSC sends to utilities to notify them

5431of impending audits do not implement, interpret, or prescribe law

5441or policy; nor do they describe the "procedure or practice

5451requirements" of the PSC. Rather, they merely give utilities

5460notice of the PSC's decision to conduct an audit. To the extent

5472that they are forms that impose requirements on utilities or

5482solicit information from them, those requirements are

"5489specifically required by statute or by an existing rule." See

5499Conclusions 57-58, supra . They are not rules under Section

5509120.52(15), Florida Statutes (1997).

5513Rules of Other Agencies

551762. The Petitioners cite the rules of other agencies

5526setting out audit standards as supporting the conclusion not only

5536that rulemaking in the area is feasible and practicable under

5546Section 120.54(1)(a), Florida Statutes (1997), but also that the

5555statements in the PSC Audit Manual, SOP's, and ASR form should be

5567promulgated as rules. But, as to the latter, the mere

5577promulgation of statements by other agencies does not make the

5587statements rules under the Section 120.52(15) definition. In

5595addition, all of the rules of the other agencies were promulgated

5606to impose audit responsibility on regulated entities, not to

5615govern the agency's own internal audit functions.

5622Validity of Rule 25-30.145

562663. Florida Administrative Code Rul e 25-30.145 provides:

5634(1) This rule addresses the reasonable

5640access to utility and affiliate records

5646provided for in § 367.156(1) for the purposes

5654of management and financial audits.

5659(a) The audit scope, audit program and

5666objectives, and audit requests are not

5672constrained by relevancy standards narrower

5677than those provided by § 367.156(1).

5683(b) Reasonable access means that company

5689responses to audit requests for access to

5696records shall be fully provided within the

5703time frame established by the auditor. In

5710establishing a due date, the auditor shall

5717consider the location of the records, the

5724volume of information requested, the number

5730of pending requests, the amount of

5736independent analysis required, and reasonable

5741time for the utility to review its response

5749for possible claims of confidentiality or

5755privilege.

5756(c) In those instances where the utility

5763disagrees with the auditor's assessment of a

5770reasonable response time to the request, the

5777utility shall first attempt to discuss the

5784disagreement with the auditor and reach an

5791acceptable revised date. If agreement cannot

5797be reached, the utility shall discuss the

5804issue with successive levels of supervisors

5810at the Commission until an agreement is

5817reached. If necessary, a final decision

5823shall be made by the Prehearing Officer. If

5831the audit is related to an undocketed case,

5839the Chairman shall make the decision.

5845(d) The utility and its affiliates shall

5852have the opportunity to safeguard their

5858records by copying them or logging them out,

5866provided, however, that safeguard measures

5871shall not be used to prevent reasonable

5878access by Commission auditors to utility or

5885affiliate records.

5887(e) Reasonable access to records includes

5893reasonable access to personnel to obtain

5899testimonial evidence in response to inquiries

5905or through interviews.

5908(f) Nothing in this rule shall preclude

5915Commission auditors from making copies or

5921taking notes. In the event these notes relate

5929to documents for which the company has

5936asserted confidential status, such notes

5941shall also be given confidential status.

5947(g) Form PSC/AFA 6 (2/95), entitled "Audit

5954Document and Record Request/Notice of Intent"

5960is incorporated by reference into this rule.

5967This form is used by auditors when requests

5975are formalized. This form documents audit

5981requests, the due dates for responses, and

5988all Notices of Intent to Seek Confidential

5995Classification.

599664. The Petitioners contend that Rule 25-30.145 is invalid

6005because Section (1)(a) of the rule provides: "The audit scope,

6015audit program and objectives, and audit requests are not

6024constrained by relevancy standards narrower than those provided

6032by § 367.156(1)." It is not at all clear why this should make

6045the rule invalid. Section (1)(a) of the rule actually does

6055nothing more than reference Section 367.156(1). This does not

6064make the rule invalid. In addition, Rule 25-30.145(1)(a)

6072essentially codifies part of the decision in Southern Bell vs.

6082Deason , 632 So. 2d 1377, 1388-1389 (Fla. 1994)(rules of discovery

6092do not limit PSC access to documents during audits conducted as

6103part of the PSC's exercise of its regulatory function).

611265. The Petitioners also contend that Rule 25-30.145 is

6121invalid because it does not include standards to govern the PSC's

6132decision making in the initiation, conduct or use of financial

6142audits. But, as found, rulemaking is not appropriate to the

6152initiation or conduct of audits, and the use of audits is

6163determined in subsequent proceedings governed by Florida

6170Administrative Code Rules Chapter 25-22.

617566. The Petitioners also contend t hat Rule 25-30.145(b) is

6185invalid because it enlarges, modifies, and contravenes the law

6194implemented by the rule. See Section 120.52(8)(c), Florida

6202Statutes (1997). Specifically, the Petitioners contend that the

6210rule enlarges the scope of audits authorized by statute in that

6221it requires the preparation of schedules, calculations, and

6229reconciliations not kept in the ordinary course of a utility's

6239business. But that rule itself only requires that utilities

6248provide "access to records"; it does not require the utilities to

6259prepare schedules, calculations, or reconciliations not kept in

6267the ordinary course of a utility's business.

627467. Even if Rule 25-30.145 did require the preparation of

6284schedules, calculations, and reconciliations not kept in the

6292ordinary course of a utility's business, the rule implements

6301Section 350.117(1), Florida Statutes (1997), which provides:

6308The commission may require such regular or

6315emergency reports, including, but not limited

6321to, financial reports, as the commission

6327deems necessary to fulfill its obligations

6333under the law.

6336A rule authorizing the PSC to require the preparation of

6346schedules, calculations, and reconcilitations in connection with

6353a financial audit would not enlarge, modify, or contravene

6362Section 350.117.

636468. The Petitioners contend that subsection (2) of Section

6373350.117 places due process limitations on the authority conferred

6382by subsection (1). But, by its terms, subsection (2) only

6392applies to "management and operation audits," not financial

6400audits. Besides, subsection (2) only requires that, if the PSC

6410considers the results of management and operation audits in

6419establishing rates, "the company shall not be denied due process

6429as a result of the use of any such management or operation

6441audit." The company's due process rights are protected in the

6451subsequent proceeding, governed by Florida Administrative Code

6458Rules Chapter 25-22, in which rates would be established.

646769. In addition, it is noted that Florida Administrative

6476Code Rule 25-30.110(2) already requires:

6481Each utility shall furnish to the Commission

6488at such time and in such forms as the

6497Commission may require, the results of any

6504required tests and summaries of any required

6511records.

6512This rule has not been challenged.

651870. The Petitioners also contend that the PSC's Rule 25-

652830.145 and the alleged rules regarding the PSC's auditing

6537practices and procedures are invalid because they do not include

6547quantitative materiality standards. In support of this

6554contention, they cite Section 120.52(8)(g), Florida Statutes

6561(1997)(a rule is invalid if it "imposes regulatory costs on the

6572regulated person . . . which could be reduced by the adoption of

6585less costly alternatives that substantially accomplish the

6592statutory objective"). But, as found, quantitative materiality

6600standards would not be appropriate for PSC audits. It also is

6611not clear that such standards would avoid the costs of an audit.

6623Finally, Section 120.52(8)(g) only is a ground for invalidating a

6633rule under certain circumstances that are not present in this

6643case. See Section 120.541(1)(c), Florida Statutes (1997).

6650Standing

665171. The PSC and the Public Counsel argue that the

6661Petitioners have no standing because they are not substantially

6670affected by the agency statements being challenged. Their points

6679are well-taken as to the statements that are not rules but rather

6691are essentially internal management memoranda. As for the

6699statements regarding Audit Exit Conferences, they argue instead

6707that the Petitioners' interests are not implicated until

6715subsequent PSC proceedings take place under Florida

6722Administrative Code Rules Chapter 25-22 and that the costs of an

6733audit can be recovered in those or other subsequent PSC

6743proceedings (such as limited proceedings to recover the direct

6752costs of an audit that does not establish overearnings.) But,

6762notwithstanding those arguments, it is concluded that an audited

6771utility is substantially affected by PSC statements regarding

6779Audit Exit Conferences.

6782Attorney Fees

678472. Section 120.595(4)(a), Florida Statutes (1997 ),

6791provides:

6792Upon entry of a final order that all or part

6802of an agency statement violates s.

6808120.54(1)(a), the administrative law judge

6813shall award reasonable costs and reasonable

6819attorney's fees to the petitioner, unless the

6826agency demonstrates that the statement is

6832required by the Federal Government to

6838implement or retain a delegated or approved

6845program or to meet a condition to receipt of

6854federal funds.

6856Since the PSC did not make the latter showing with respect to the

6869audit exit conference statements in its Audit Manual, the

6878Petitioners are entitled to reasonable costs and reasonable

6886attorney's fees. However, the reasonable costs and reasonable

6894attorney's fees for challenging just the audit exit conference

6903statements in the Audit Manual may well not be the same as (but,

6916rather, significantly less than) the reasonable costs and

6924reasonable attorney's fees for unsuccessfully challenging the

6931validity of other statements and Rule 25-30.145.

693873. Reasonable expenses, including a reasonable attorney's

6945fee, also are available under Section 120.569(2)(c), Florida

6953Statutes (1997), which provides:

6957All pleadings, motions, or other papers filed

6964in the proceeding must be signed by the

6972party, the party's attorney, or the party's

6979qualified representative. The signature

6983constitutes a certificate that the person has

6990read the pleading, motion, or other paper and

6998that, based upon reasonable inquiry, it is

7005not interposed for any improper purposes,

7011such as to harass or to cause unnecessary

7019delay, or for frivolous purpose or needless

7026increase in the cost of litigation. If a

7034pleading, motion, or other paper is signed in

7042violation of these requirements, the

7047presiding officer shall impose upon the

7053person who signed it, the represented party,

7060or both, an appropriate sanction, which may

7067include an order to pay the other party or

7076parties the amount of reasonable expenses

7082incurred because of the filing of the

7089pleading, motion, or other paper, including a

7096reasonable attorney's fee.

7099The evidence in this case is that the Petitioners challenged the

7110PSC Audit Manual as being an unpromulgated rule without ever

7120having taken any action to obtain a copy of it and read it. This

7134may not have been a reasonable inquiry. But the evidence did not

7146prove that the challenge was filed for an improper purpose, or

7157for frivolous purpose or needless increase in the cost of

7167litigation. (Inconsistent and weak positions are not necessarily

7175improper or frivolous.) Absent such proof, no sanction may be

7185imposed under Section 120.569(2)(c). See Final Order, E.S. vs.

7194Dept. of Health, etc. , DOAH Case No. 89-6262F, entered July 10,

72051990 ("in addition to demonstrating that the Department did not

7216conduct a reasonable inquiry, Petitioner must show that the

7225Department's claim of abuse was both factually and legally

7234without merit" under Section 120.57(1)(b)5, as it then was

7243worded)(at Conclusion 70).

7246DISPOSITION

7247Based on the foregoing Findings of Fact and Conclusions of

7257Law, the Amended Petition is granted to the extent that the audit

7269exit conference procedures set out in Policy 2200, Audit

7278Planning, on page 2202 of the PSC Audit Manual are held to be

7291invalid unpromulgated rules under Section 120.54(1)(a), Florida

7298Statutes (1997), but otherwise the Amended Petition is denied.

7307Jurisdiction is reserved for purposes of determining the

7315Petitioners' reasonable costs and reasonable attorney's fees

7322under Section 120.595(4)(a), Florida Statutes (1997), for

7329challenging just the audit exit conference procedure statements

7337in the PSC Audit Manual.

7342DONE AND ORDERED this 9th day of March, 1998, in

7352Tallahassee, Leon County, Florida.

7356___________________________________

7357J. LAWRENCE JOHNSTON

7360Administrative Law Judge

7363Division of Administrative Hearings

7367The DeSoto Building

73701230 Apalachee Parkway

7373Tallahassee, Florida 32399-3060

7376(850) 488-9675 SUNCOM 278-9675

7380Fax Filing (850) 921-6847

7384Filed with the Clerk of the

7390Division of Administrative Hearings

7394this 9th day of March, 1998.

7400COPIES FURNISHED:

7402Steven T. Mindlin, Esquire

7406Brian L. Doster, Esquire

7410ROSE, SUNDSTROM & BENTLEY

74142548 Blairstone Pines Drive

7418Tallahassee, Florida 32301

7421Richard C. Bellak

7424Associate General Counsel

7427Public Services Commission

74302540 Shumard Oak Boulevard

7434Tallahassee, Florida 32399-0850

7437Stephen C. Burgess

7440Deputy Public Counsel

7443c/o the Florida Legislature

7447111 West Madison Street

7451812 Claude Pepper Building

7455Tallahassee, Florida 32399-1400

7458Carroll Webb, Executive Director

7462Administrative Procedures Committee

7465120 Holland Building

7468Tallahassee, Florida 32399-1300

7471NOTICE OF RIGHT TO JUDICIAL REVIEW

7477A party who is adversely affected by this Final Order is entitled

7489to judicial review pursuant to Section 120.68, Florida Statutes.

7498Review proceedings are governed by the Florida Rules of Appellate

7508Procedure. Such proceedings are commenced by filing one copy of

7518a notice of appeal with the Clerk of the Division of

7529Administrative Hearings and a second copy, accompanied by filing

7538fees prescribed by law, with the District Court of Appeal, First

7549District, or with the District Court of Appeal in the Appellate

7560District where the party resides. The notice of appeal must be

7571filed within 30 days of rendition of the order to be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/21/1999
Proceedings: Other
Date: 04/21/1999
Proceedings: Order on Remand sent out. CASE CLOSED.
Date: 04/15/1999
Proceedings: Petitioners` Response to Motion for Award of Attorney`s Fees and Costs filed.
Date: 03/31/1999
Proceedings: Second Order Granting Extension of Time sent out.
Date: 03/29/1999
Proceedings: Letter to Judge Johnston from J. Wharton Re: Petitioner`s Second Stipulated Motion for Extension of Time to Respond to Motion filed.
Date: 03/26/1999
Proceedings: Petitioners` Second Stipulated Motion for Extension of Time to Respond to Motion filed.
Date: 03/19/1999
Proceedings: Order Granting Extension of Time sent out. (response due by 4/2/99)
Date: 03/19/1999
Proceedings: CASE REOPENED, Per Judge Johnston.
Date: 03/18/1999
Proceedings: Letter to Judge Johnston from J. Wharton Re: Office of Public Counsel does not oppose Petitioners` Motion filed on 3/15/99 (filed via facsimile).
Date: 03/15/1999
Proceedings: Petitioners` Stipulated Motion for Extension of Time to Respond to Motion filed.
Date: 03/11/1999
Proceedings: Respondent Florida Public Service Commission`s Motion for Award of Attorneys Fees and Costs Pursuant to Section 120.569(2)(e), Florida Statutes (1998 Supp.) filed. (NOTE: Fees case established (99-1168F) & closed out)
Date: 02/11/1999
Proceedings: Respondent Florida Public Service Commission`s Case Status Report and Notice of Further Proceedings filed.
Date: 02/01/1999
Proceedings: First DCA Mandate rec`d
PDF:
Date: 01/29/1999
Proceedings: Mandate
Date: 01/14/1999
Proceedings: First DCA Opinion (Affirmed in Part, Reversed in Part and Remanded in Part) filed.
PDF:
Date: 01/13/1999
Proceedings: Opinion
Date: 07/28/1998
Proceedings: Order for Status Reports sent out. (parties to file status of appeal within 180 days)
Date: 07/23/1998
Proceedings: (Petitioners) Status Report filed.
Date: 06/30/1998
Proceedings: Index, Record, Certificate of Record sent out.
Date: 06/10/1998
Proceedings: Payment in the amount of $258.00 filed.
Date: 06/01/1998
Proceedings: Invoice in the amount of $258.00 for indexing sent out.
Date: 05/29/1998
Proceedings: Index sent out.
Date: 05/13/1998
Proceedings: Payment for filing of second notice of appeal $50.00 filed.
Date: 04/22/1998
Proceedings: Invoice (to Richard Bellak Cross-Appeal) sent out.
Date: 04/21/1998
Proceedings: Certificate of Notice of Cross-Appeal sent out.
Date: 04/20/1998
Proceedings: Notice of Cross-Appeal (PSC) filed.
Date: 04/14/1998
Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-98-1398.
Date: 04/09/1998
Proceedings: Certificate of Notice of Administrative Appeal sent out.
Date: 04/08/1998
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 03/09/1998
Proceedings: DOAH Final Order
PDF:
Date: 03/09/1998
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 01/05-06/98.
Date: 02/20/1998
Proceedings: (Respondent) Proposed Final Order filed.
Date: 02/20/1998
Proceedings: Joint Proposed Findings of Fact, Conclusions of Law and Final Order of Petitioners, Aloha Utilities, Inc., and Florida Waterworks Association, Inc.; Disk filed.
Date: 02/20/1998
Proceedings: Respondent Florida Public Service Commission`s Proposed Final Order filed.
Date: 01/21/1998
Proceedings: Notice of Filing; (Volumes 3 and 4 of 4) DOAH Court Reporter Final Hearing Transcript filed.
Date: 01/20/1998
Proceedings: (2 Volumes) Transcript filed.
Date: 01/05/1998
Proceedings: CASE STATUS: Hearing Held.
Date: 01/02/1998
Proceedings: Joint Prehearing Stipulation filed.
Date: 12/31/1997
Proceedings: Final Order filed.
Date: 12/31/1997
Proceedings: Respondent Florida Public Service Commission`s Motion to Request Official Recognition filed.
Date: 12/24/1997
Proceedings: Respondent`s Notice of Taking Deposition filed.
Date: 11/14/1997
Proceedings: Petitioners` First Request for Production of Documents From Public Counsel; Notice of Service of Interrogatories filed.
Date: 10/08/1997
Proceedings: Order Granting Leave to Intervene sent out. (for Citizens of the State of Florida, Office of Public Counsel)
Date: 10/06/1997
Proceedings: (Citizens of the State of Florida) Petition to Intervene filed.
Date: 09/30/1997
Proceedings: Order Continuing Final Hearing sent out. (hearing set for Jan. 5-6, 1998; 9:00am; Tallahassee)
Date: 09/29/1997
Proceedings: (Petitioner) Unopposed Motion for Continuance filed.
Date: 09/24/1997
Proceedings: Petitioners` Supplemental Response to PSC`s First Set of Interrogatories filed.
Date: 09/22/1997
Proceedings: Respondent`s Notice of Taking Deposition filed.
Date: 09/16/1997
Proceedings: Respondent`s Supplemental Response to Petitioners` First Set of Interrogatories; Respondent`s Notice of Service of Supplemental Response to Interrogatories filed.
Date: 09/15/1997
Proceedings: (2) Petitioners` Notice of Taking Deposition filed.
Date: 08/12/1997
Proceedings: Order Denying Summary Final Order sent out.
Date: 06/25/1997
Proceedings: Order Continuing Final Hearing sent out. (hearing set for 10/13/97; 9:00am; Tallahassee)
Date: 06/24/1997
Proceedings: (Petitioners) Response in Opposition to PSC`s Motion for Summary Final Order filed.
Date: 06/23/1997
Proceedings: Petitioners Notice of Service of Response to Interrogatories; Petitioners` Response to Respondent`s First Request for Production of Documents; Petitioners` Response to Response to Respondent`s First Request for Admissions filed.
Date: 06/17/1997
Proceedings: Respondent Florida Public Service Commission`s Motion for Summary Final Order; Answer of Respondent Florida Public Service Commission filed.
Date: 06/13/1997
Proceedings: Joint Motion to Continue Case and Notice of Waiver filed.
Date: 06/12/1997
Proceedings: Respondent Florida Public Service Commission`s First Set of Interrogatories to Aloha Utilities, Inc., and Florida Waterworks Association, Inc. filed.
Date: 06/12/1997
Proceedings: Respondent`s First Request for Admissions to Aloha Utilities, Inc., and Florida Waterworks Association, Inc.; Respondent`s First Request for Production of Documents From Aloha Utilities, Inc., and Florida Waterworks Association, Inc. filed.
Date: 06/11/1997
Proceedings: Petitioners Aloha Utilities, Inc. and Florida Waterworks Association, Inc. and Respondent Florida Public Service Commission`s Joint Motion for Continuance filed.
Date: 06/09/1997
Proceedings: Florida Public Service Commission`s Response to Petitioners` First Request for Production of Documents filed.
Date: 06/09/1997
Proceedings: Florida Public Service Commission`s Response to First Request for Admissions; Petitioners` First Set of Interrogatories to Public Service Commission filed.
Date: 05/30/1997
Proceedings: (From S. Mindlin) Notice of Service of Interrogatories filed.
Date: 05/30/1997
Proceedings: Petitioners` First Request for Admissions to the Public Service Commission; Petitioners` First Request for Production of Documents From Public Service Commission filed.
Date: 05/30/1997
Proceedings: (Petitioners) Amended Petition for Administrative Determination of Invalidity of Agency Non-Rule Policies and Existing Rules filed.
Date: 05/29/1997
Proceedings: Notice of Final Hearing sent out. (hearing set for 6/24/97; 9:00am; Tallahassee)
Date: 05/29/1997
Proceedings: Prehearing Order sent out.
Date: 05/28/1997
Proceedings: Order of Assignment sent out.
Date: 05/27/1997
Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
Date: 05/23/1997
Proceedings: Petition for Administrative Determination of Invalidity of Agency Non-Rule Policies and Existing Rules filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
05/23/1997
Date Assignment:
05/28/1997
Last Docket Entry:
04/21/1999
Location:
Tallahassee, Florida
District:
Northern
Agency:
Public Service Commission
Suffix:
RU
 

Related DOAH Cases(s) (2):

Related Florida Statute(s) (11):

Related Florida Rule(s) (3):