04-002758 Leticia Callard vs. Florida Power &Amp; Light Company Status: Closed Recommended Order on Friday, May 13, 2005.

Summary: Petitioner tampered with her electricity meter; therefore, Respondent is entitled to retroactively bill Petitioner based on a reasonable estimate of the unmetered electricity consumed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LETICIA CALLARD, )

)

Petitioner, )

)

vs. ) Case No. 04-2758

)

FLORIDA POWER & LIGHT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van

Laningham for final hearing on November 29, 2004, and on

December 30, 2004. The first day of hearing was conducted by

video teleconference at sites in Tallahassee and Miami, Florida.

The second and final day of hearing was held at the courthouse

in Miami, Florida.

APPEARANCES

For Petitioner: Leticia Callard, pro se

7860 Southwest 18th Terrace

Miami, Florida 33155

For Respondent: David M. Lee, Esquire

Florida Power & Light Company

Law Department

700 Universe Boulevard

Juno Beach, Florida 33408

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner tampered

with her electricity meter and, if so, whether Respondent has

established a reasonable estimate of the un-metered electricity

consumed, for which Petitioner could be retroactively billed.

PRELIMINARY STATEMENT

On April 16, 2004, the Florida Public Service Commission

("PSC") issued a Notice of Proposed Agency Action Order

Approving Billing Due to Meter Tampering ("Proposed Agency

Order") wherein it made the following pertinent findings of

fact:

[M]eter tampering occurred at Mrs. Leticia

Callard's address, . . . [which] warrant[s]

backbilling. . . . [T]he amount of

reasonable backbilling of Mrs. Callard's

account is $9279.18 for unbilled consumption

from January 2, 1997, to July 24, 2002,

including $348.21 for investigative charges.

The PSC "encouraged [Mrs. Callard] to contact [Respondent]

Florida Power & Light Company immediately to make payment

arrangements . . . in order to avoid discontinuance of

[electricity] service without notice."

Petitioner Leticia Callard disputed the aforementioned

fact-findings and timely requested a formal hearing. On

August 4, 2004, the PSC referred the case to the Division of

Administrative Hearings for further proceedings. An

Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on November 29, 2004, and

December 30, 2004. Petitioner called her husband, Jorge

Callard, as her only witness and introduced Petitioner's

Exhibits A, B, D, G-1, G-2, and I into evidence. Respondent

presented the testimony of its employees Chase Vessels, Edward

List, Bert Cunill, James Bartlett, and Linda Cochran. In

addition, Respondent offered Respondent's Exhibits 1 and 2,

which were received in evidence.

The final hearing transcript, comprising three volumes, was

filed on March 9, 2005. Each party filed a proposed recommended

order ahead of the enlarged deadline, which was April 5, 2005.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. Respondent Florida Power & Light Company ("FPL") is a

utility that sells electricity to residential and commercial

customers in Florida; as such, FPL is subject to the PSC's

regulatory jurisdiction.

2. FPL measures the amount of electricity used by its

residential customers in kilowatt-hours ("kWhs"). A customer's

cumulative electricity usage is recorded on a meter. Each

month, a meter reader looks at a customer's meter and records

the current cumulative total of kWhs consumed. From the current

cumulative total of kWhs is subtracted the previous month's

cumulative total, which equation produces the number of kWhs

used during the preceding month, for which amount the customer

is then billed.

3. For example, if a meter read on May 5, 2005, shows a

current cumulative total of 6950 kWhs, and if the same meter,

when read on April 5, 2005, had shown 5750 kWhs, then the

customer's usage, for the 30-day period from April 5, 2005, to

May 5, 2005, is 1200 kWhs. The customer will then be sent a

bill for May 2005 reflecting the cost of 1200 kWhs of

electricity.

4. Petitioner Leticia Callard ("Callard") is one of FPL's

residential customers. Years before the present dispute arose,

FPL installed meter #5C35633 at the house in Miami, Florida,

where Callard resides.

5. Meter #5C35633 has five dials on its face that display

kWhs. The dials are protected under a glass canopy, which is

sealed to the meter to guard the meter's integrity. The dials

cannot be accessed without breaking the seal.

6. On July 5, 2001, a meter reader conducted a regularly

scheduled reading, for billing purposes, of meter #5C35633. (A

customer's monthly invoice from FPL tells which day the meter

reader will next look at the customer's meter.) He recorded a

cumulative total of 5361 kWhs. This was a red flag because the

previous reading, taken on June 5, 2001, had been 5733 kWhs.

Thus, the meter appeared to have run backwards . This is known

as a "regressive reading." A regressive reading is suspicious

because the dials on a properly functioning meter should move in

only one direction——forward. When a regressive reading is

taken, FPL investigates further to determine if meter tampering

has occurred.

7. Accordingly, FPL sent an investigator named Chase

Vessels to the Callard residence to conduct an unscheduled

reading of meter #5C35633. (An unscheduled reading——that is,

one taken between the normal monthly meter-read dates——is called

a "check reading." Check readings are useful in investigating

possible meter tampering because they occur without advance

warning to the customer.) Mr. Vessels read the meter on July 6,

2001, which then showed 5497 kWhs. This, too, was a regressive

reading relative to that taken on June 5, 2001.

8. Mr. Vessels discovered that the seal on meter #5C35633

was broken and had been "rigged" to appear intact. Mr. Vessels

also noticed that there were smudges on the face of the meter

around the dials, suggesting that someone might have been

manipulating the dials.

9. Another check reading was taken on July 16, 2001, at

which time Callard's meter showed 6515 cumulative kWhs.

Thereafter, Mr. Vessels attempted to make additional check

readings but was unable to access the meter without alerting the

customer. He finally saw the meter again on June 27, 2002. On

that date, Mr. Vessels again noted the rigged seal and the

smudges on the meter's face, near the dials.

10. Believing that tampering likely had taken place, FPL

directed Edward List to remove meter #5C35633 and replace it

with another one, which he did on July 24, 2002. Mr. List also

observed the rigged seal and the smudges around the dials on

meter #5C35633. When he removed the meter, Mr. List placed a

sticker on the canopy, which he initialed, identifying the date

of removal and the location from which the meter was taken. Mr.

List then sent meter #5C35633 back to FPL for testing.

11. At FPL's Meter Technology Center, James Bartlett

inspected and tested meter #5C35633. He confirmed that the seal

was broken, and that the meter's face was scratched and smudged.

Further, when Mr. Bartlett tested the meter, he found that it

was "off scale," meaning that it was not measuring kWhs as

accurately as it should have been.

12. Based on the above facts, which are established by

credible and persuasive evidence in the record, the undersigned

finds and determines that, more likely than not, meter #5C35633

was tampered with, preventing FPL from fully charging Callard

for her actual electricity consumption. Specifically, it is

determined that Callard (or someone) physically manipulated the

meter's dials, rolling them backwards to reduce the cumulative

total of kWhs used and hence understate usage.

13. More difficult to determine is when this tampering

occurred. As FPL acknowledges, tampering of this sort is

episodic, and affects only the instant billing cycle. That is,

if a customer were to tamper with his meter on, say, May 15,

2005, then the bill covering the period that includes May 15,

2005, would be inaccurate, but future bills would be correct

(assuming no further tampering), just as bills covering earlier

periods would be accurate or not depending on whether tampering

had previously occurred during those periods. To come up with a

reasonable estimate of the energy used but not paid for, then,

it is necessary to establish, in some reasonable fashion, the

period(s) affected by the tampering.

14. FPL estimates that from the billing cycle which ended

on January 2, 1997, 1 until July 5, 2002, Callard used a total of

101623 kWhs for which she was not billed, due to meter

tampering. The cost of this amount of electricity, according to

FPL, is $8,930.97.

15. For reasons that will be discussed later, it is

determined that FPL's estimate of the amount of "un-metered"

electricity significantly overstates Callard's probable actual

usage and hence is not reasonable. FPL has introduced enough

data into the record, however, for the fact-finder to make a

reasonable determination of the amount of un-metered electricity

that Callard used.

16. As a starting point, the evidence shows the total kWhs

for which Callard was actually billed each month from January

1997 to July 2002. Thus, Callard's annual "as billed"

electricity usage for each of the years in question, expressed

in kWhs, can easily be ascertained. The figures are as follows:

1997: 23899

1998: 27483

1999: 13383

2000: 14840

2001: 14134

In addition, from January 2002 to July 2002, Callard was billed

for 8395 kWhs, according to readings taken from meter #5C35633.

17. It does not take a trained eye to spot the dramatic

difference between the years 1997 and 1998, on the one hand, and

1999 through 2001 (and 2002) on the other. Based on these

figures, the undersigned made the tentative determination that

the tampering probably began in 1999.

18. To confirm or falsify this preliminary determination,

the undersigned considered the concept of Percentage of Annual

Usage, Monthly ("PAUM"). PAUM shows what part of a customer's

annual energy consumption occurred in a given month; it is

calculated by dividing the year's total usage (in kWhs) into the

subject month's usage. Thus, for example, if a customer

consumed 30000 kWhs in 2004, and if his usage in May 2004 was

3000 kWhs, then the customer's PAUM for May 2004 would be 0.10,

or 10 percent.

19. PAUM is a useful datum because residential customers

tend to use more or less energy depending on the time of year.

As Floridians know from common experience, for example,

electricity usage in this state tends to increase in the hot

summer months, when air conditioners are running, and decrease

in the milder autumn or winter months, when windows are open.

20. To estimate un-metered electricity usage, FPL employs

a methodology that factors in the PAUMs of an average customer

for each of the months during which tampering is suspected to

have occurred. Thus, in this case, FPL produced numbers that

purportedly are the average customer's PAUMs for every month

from January 1997 through July 2002. The following table shows

the PAUMs of an average customer, according to FPL.

1997 1998 1999 2000 2001 2002

JAN 6.84 6.88 7.51 6.57 7.43 7.43

FEB 6.59 5.75 6.32 5.79 6.48 6.48

MAR 7.03 5.82 5.72 6.13 6.78 6.78

APR 6.96 6.23 7.04 6.73 7.08 7.08

MAY 7.65 7.38 8.12 9.44 7.26 7.26

JUN 9.41 9.90 9.06 10.09 9.24 9.24

JUL 10.35 10.93 9.77 10.54 10.14 10.14

AUG 10.59 10.71 11.23 10.54 10.20

SEP 10.26 10.82 10.81 10.43 11.01

OCT 9.50 9.99 9.70 9.54 9.15

NOV 7.82 8.08 7.78 7.29 7.73

DEC 7.00 7.52 6.94 6.91 7.50

21. Using an average customer's PAUMs, it is possible to

calculate an actual customer's estimated annual usage ("EAU")

even if there is a paucity of reliable data concerning the

actual customer's true usage. Suppose, for example, that FPL

suspects Smith is tampering with his meter and, as a result,

conducts check readings on May 10, 2000, and May 20, 2000,

recording cumulative totals of 7250 kWhs and 8420 kWhs,

respectively. This tells FPL that Smith used 1170 kWhs in 10

days, or 117 kWhs per day. The June 2000 billing cycle is 30

days, so FPL can estimate that Smith's actual usage for that

month should be approximately 3510 (30 x 117). 2 If the average

customer's PAUM for June 2000 is 10.09 percent, then FPL can

calculate an EAU for Smith, based on the two check readings.

The formula is:

EAU = kWhs(JUN2000)

PAUM(JUN2000)

In this example, therefore, EAU would be 3510 ÷ 0.1009, which

equals 34787. If Smith were billed for only 27500 kWhs in 2000,

then the estimated amount of un-metered electricity for that

period, based on an EAU of 34787, would be 7287 kWhs (34787 –

27500).

22. Here, FPL failed to introduce any evidence explaining

how the average customer's PAUMs were derived, or by whom.

Moreover, there is no evidence shedding light on whether the

average PAUMs were based on usage data collected in a particular

county or counties, or throughout the state. Nor does the

evidence show whether the usage data from which the average

customer's PAUMs were derived reflect the consumption patterns

of FPL customers specifically, or some other, broader group of

electricity consumers. 3 The undersigned therefore has determined

that it would be unreasonable to apply these average PAUMs

against Callard to determine EAUs for the years in question,

except as a last resort, in the absence of better data.

23. As it happens, there might be better data concerning

Callard's usage patterns. Using the kWhs for which Callard was

actually billed for each of the months in issue, it is possible

to calculate Callard-specific PAUMs.

24. Based on the number of kWhs for which Callard was

billed each month from January 1997 through July 2002, Callard's

PAUMs were as follows:

1997 1998 1999 2000 2001 2002

JAN 5.10 5.27 10.16 4.10 18.25 6.88

FEB 5.04 3.21 4.86 4.55 0.06 6.91

MAR 4.23 3.60 4.55 5.16 10.26 6.30

APR 4.14 3.60 6.55 4.75 6.86 9.75

MAY 4.47 4.78 7.96 5.60 6.19 10.68

JUN 11.00 10.09 8.13 7.96 7.33 10.57

JUL 14.40 15.14 9.86 11.93 4.05 8.37

AUG 14.75 14.68 22.54 8.42 11.70

SEP 15.25 14.73 5.75 23.09 9.67

OCT 10.24 11.51 5.56 10.16 8.98

NOV 6.59 8.32 5.51 7.94 8.79

DEC 4.78 5.07 8.57 6.34 7.87

25. Once again, the figures show a marked difference

between the years 1997 and 1998, on the one hand, and 1999

through July 2002 on the other. The PAUMs for 1997 and 1998 are

consistent with one another and indicate practically identical

seasonal usage patterns. In contrast, from 1999 forward, the

PAUMs are punctuated with several facially anomalous figures, as

well as a number of irregular seasonal figures.

26. Beginning with the facial anomalies, note the

extremely high PAUMs for August 1999 and September 2000——22.54

percent and 23.09 percent, respectively. These numbers are

plainly out of line with the corresponding PAUMs for 1997 and

1998. Further, it seems unlikely that a customer would consume

nearly one quarter of her entire annual electricity demand in

one month. The same observations can be made about January

2001, whose PAUM, at 18.25 percent, is not only inconsistent

with the corresponding PAUMs for 1997 and 1998, but also

suggests, implausibly, that Callard used nearly one-fifth of a

year's worth of electricity in one month. The PAUM for February

2001 is facially anomalous, too, but for the opposite reason:

it is highly unlikely that a customer would use so little

electricity (just 1/1667th of a year's supply) in a given month.

27. The seasonal abnormalities are nearly as striking.

Take the PAUMs for January 1999; July 1999; September 1999;

October 1999; August 2000; March 2001; July 2001; April 2002;

May 2002; and July 2002. None of these is consistent with the

putatively normal seasonal use patterns reflected in the PAUMs

for 1997 and 1998. Plus, the undersigned considers it highly

improbable, for example, that Callard used just 4.04 percent of

her annual energy demand in the hot summer month of July 2001

or, conversely, consumed a heavy 10.26 of her annual usage that

year in the usually mild month of March. These figures, in

short, are not believable.

28. The likeliest explanation for the anomalous PAUMs

during the years 1999 through 2002 is that meter tampering

skewed the usage percentages. Thus, the undersigned believes

that Callard's PAUMs, as calculated based on "as billed" kWhs,

buttress his preliminary determination that the tampering began

in 1999, raising the inference that Callard's PAUMs for 1997 and

1998, as shown in the table above, likely reflect her actual

seasonal usage patterns for those years.

29. To verify the validity of such an inference, the

undersigned compared the average of Callard's PAUMs for 1997 and

1998 to the average of the average customer's PAUMs for the same

years as reported by FPL. The table below shows the numbers.

Callard FPL

JAN 5.19 6.86

FEB 4.13 6.17

MAR 3.92 6.43

APR 3.87 6.60

MAY 4.63 7.54

JUN 10.55 9.66

JUL 14.77 10.64

AUG 14.72 10.65

SEP 14.99 10.54

OCT 10.88 9.75

NOV 7.46 7.95

DEC 4.93 7.26

30. Comparing one column to the other reveals that

Callard's seasonal usage patterns mirror those of FPL's average

customer; the energy consumption of both rises and falls in

tandem throughout the year. Indeed, the PAUMs for January,

June, October, and November are quite close (within about one

percentage point, on average). To be sure, these figures reveal

that Callard used about four percent more electricity than the

average customer during the hottest summer months (July, August,

September) and approximately two-and-a-half percent less during

the milder winter and spring months. But the undersigned

considers such disparities to be of far less consequence than

the identity of the usage patterns. 4

31. In sum, the comparison of Callard's average PAUMs for

1997 and 1998 to the average of FPL's average customer's PAUMs

for those same years persuades the undersigned that the average

PAUMs for Callard reasonably reflect her true usage patterns.

32. Thus, the undersigned finds and determines that, more

likely than not, the tampering began in 1999——and that Callard

is not liable for un-metered electricity usage during 1997 and

1998.

33. From the foregoing determination it is possible to

home-in on a reasonable EAU for Callard. A good starting point

is the average of Callard's total kWhs for 1997 and 1998, which

is 25691. 5 As an average of true annual usage figures (i.e.

numbers untainted by tampering), this number should be a

reasonably accurate predictor of Callard's probable annual

usages in the years 1999 to 2002. Comparing this average figure

to the EAUs that can be derived from meter readings taken in

subsequent years at times when tampering is not suspected should

either confirm the reliability of 25691 as a valid predictor of

subsequent annual usage, or invalidate it.

34. Recall the check readings of 5497 and 6515,

respectively, that were taken on July 6, 2001, and July 16,

2001. These readings show that Callard consumed 1018 kWhs in 10

days, or 101.8 kWhs per day during the August 2001 billing

cycle. Since that was a 29-day billing period, it is reasonable

to infer that Callard should have been billed for approximately

2952 kWhs in August 2001 (29 x 101.8). Because Callard's

average PAUM for August is 14.72 percent, the EAU based on these

check readings is 20054 (2952 ÷ 0.1472).

35. Next, there is a reading of 1774 kWhs, which was taken

on August 5, 2002, from the replacement meter that had been

installed on July 24, 2002. This reading demonstrates that

Callard used 1774 kWhs in 12 days, or 147.8 kWhs per day during

the August 2002 billing cycle. This was a 31-day cycle, so it

is reasonable to infer that Callard should have consumed 4582

kWhs in August 2002. 6 Because Callard's average PAUM for August

is 14.72 percent, the EAU based on this initial reading from the

replacement meter is 31128 (4582 ÷ 0.1472).

36. The average of the respective EAUs based on the check

readings from July 2001 and the reading of the replacement meter

on August 5, 2002, is 25591 kWhs 7 ——which is remarkably similar to

the average of Callard's total kWhs for 1997 and 1998. (The

latter figure, again, is 25691.) That these averages are so

close not only reconfirms the undersigned's determination that

no tampering occurred in 1997 and 1998, but also persuades him

that in any month where the number of Callard's "as billed" kWhs

produces an EAU within the range of 20054 kWhs to 31128 kWhs,

tampering is unlikely to have occurred.

37. Using the "as billed" kWhs for each month from January

1999 to July 2002, and applying the average of Callard's PAUMs

for 1997 and 1998 as shown in paragraph 29 above, the

undersigned calculated an EAU for every month in which tampering

might have occurred. The results are set forth in the table

below.

1999 2000 2001 2002

JAN 26204 11715 49692 18728

FEB 15738 16344 194 23632

MAR 15536 19541 36990 22679

APR 22661 18217 25065 35556

MAY 23002 17948 18098 32570

JUN 10313 11204 9820 14142

JUL 8937 11984 3873 8003

AUG 20489 8485 11230

SEP 5137 22855 9119

OCT 6838 13860 11664

NOV 9879 15804 16662

DEC 23266 19087 22556

38. It is easy to spot, in the above figures, the months

where tampering likely occurred: they are the months whose "as

billed" kWhs number produces an EAU of less than 20054 (usually

quite a bit less). Likewise, the months where tampering

probably did not occur are readily distinguished: they are the

ones where the EAU is greater than 20054. As it happens, there

are not many close calls. The figures for most months either

reflect obvious tampering or clearly appear to be legitimate.

39. Based on the above data, the undersigned finds and

determines that, in all likelihood, tampering did not occur in

the following 14 months: January, April, May, August, and

December 1999; September 2000; January, March, April, and

December 2001; and February, March, April, and May 2002. 8

40. The average EAU for these 14 months is 27658.

Therefore, the undersigned finds and determines that a

reasonable EAU for 1999, 2000, and 2001 is 27658 (a figure,

incidentally, that differs little from Callard's actual annual

usage in 1998).

41. To determine an EAU for the first seven months of

2002, the undersigned added Callard's average PAUMs for those

months and found that Callard used, on average, 47.06 percent of

her annual electricity consumption during the months from

January to July. Thus, it is found and determined that a

reasonable EAU for the first seven months of 2002 is 13016

(27658 x 0.4706).

42. With these numbers in hand, the reasonable amount of

un-metered electricity consumption for which Callard is liable

can now be ascertained, as shown in the following table:

EAU "As Billed" Difference (Un-

Usage Metered Usage)

1999 27658 13383 14275

2000 27658 14840 12818

2001 27658 14134 13524

2002 13016 8385 4621

It is found and determined that from January 1999 to July 2002,

Callard consumed a total of 45238 kWhs of electricity for which

she was not billed, due to meter tampering.

43. The value of 45238 kWhs of electricity, delivered

during the period at issue, is $3,975.66. 9

44. It was previously found that FPL's estimate of the

amount of Callard's un-metered electricity usage was

unreasonable. The undersigned will now summarize the reasoning

behind this determination.

45. FPL's first methodological flaw was assuming, without

proving, that the meter tampering began in January 1997. In

this regard, FPL offered no evidence——at least none that was

persuasive——that Callard's meter was tampered with that year, or

in 1998 for that matter. In fact, contrary to FPL's assumption,

the data in evidence persuasively establish that no meter

tampering occurred during 1997 and 1998. Thus, it would be

unreasonable to retroactively bill Callard for the months from

January 1997 through December 1998, as FPL proposes to do.

46. FPL's second methodological flaw was assuming, without

proving, that the average customer's PAUMs (which figures were

not really properly proved, either) could reasonably be applied

to Callard. The unreasonableness of this particular assumption

is magnified by the fact that there exists reliable data (from

1997 and 1998, when no tampering occurred) about Callard's

actual PAUMs, making resort to the average customer's PAUMs

unnecessary.

47. These two flaws led FPL to derive an EAU for Callard

for the years in question (including, erroneously, 1997 and

1998) that significantly and unreasonably overstated her

probable usage. To calculate an EAU, FPL first assumed that

tampering had not occurred in July 1998, September 1998,

November 1998, or during the initial 12 days' service of the

replacement meter, from July 24, 2002 to August 5, 2002. (FPL

did not persuasively explain its selection of the particular

months of 1998, but for reasons already detailed, the

undersigned agrees and has found that no tampering occurred

then——or at any other time in 1998.)

48. Next, FPL calculated an EAU for each of the foregoing

periods, using the "as billed" kWhs for the chosen months of

1998 and a projected monthly total for August 2002, to each of

which was applied the average customer's PAUM for the respective

period. The following table shows the numbers.

Month/Year KWhs Avg. FPL EAU

Customer's PAUM

July 1998 4160 10.93 38060

September 1998 4048 10.82 37412

November 1998 2286 8.08 28292

August 2002 4440 10 10.20 43529

49. Taking the average of the foregoing EAUs, FPL

concluded that Callard's true annual usage from January 1997 to

July 2002 averaged 36824 kWhs. (This figure is substantially

greater than the amount the undersigned ultimately has

determined reflects Callard's average annual usage——27658.)

50. As an aside, the undersigned observes that if accurate

PAUMs are applied to reliable figures for monthly kWhs

consumption, then the resulting EAUs, as calculated from the

periodic readings, should be fairly close to one another. With

this in mind, notice what happens when Callard's average PAUMs

(based on 1997 and 1998 usages) are substituted for the average

customer's PAUMs in FPL's equations:

Month/Year KWhs Callard's Avg. EAU

PAUM

July 1998 4160 14.77 28165

September 1998 4048 14.99 27005

November 1998 2286 7.46 30643

August 2002 4440 14.72 30163

51. Using Callard's average PAUMs for the periods in

question produces EAUs that are, more so than FPL's numbers,

fairly close to one another, which outcome persuasively

reestablishes that Callard's average PAUMs are true numbers, and

hence more reasonably applied in this case than the average FPL

customer's PAUMs. 11

52. Indeed, a comparison of the two preceding tables

underscores the unreasonableness of FPL's methodology. Notice

that FPL happened to pick the three peak summer months (July,

August, and September), when Callard's usage exceeds the average

customer's by 4.2 percent on average. FPL's approach has a

built-in bias against Callard and is guaranteed to produce

inflated EAUs.

53. At any rate, once FPL had concluded that Callard's

average annual usage should be 36824 kWhs, it multiplied that

figure times the average customer's PAUM for each of the 67

months from January 1997 to July 2002, producing monthly "re-

bill" amounts of kWhs. For example, the average customer's PAUM

for December 2001 is 7.5 percent. Thus, FPL contends that

Callard should have been billed for 2762 kWhs that month (36824

x .075); it refers to this figure (2762) as the "re-bill" amount

for December 2001. FPL then added together all the "re-bill"

figures, subtracted therefrom the aggregate of the "as billed"

numbers, and came up with a difference of 101623 kWhs, for which

FPL contends Callard is liable.

54. This amount, however, exceeds a reasonable estimate of

the un-metered energy consumed, by 56385 kWhs. The undersigned

therefore rejects FPL's calculation.

55. As a final point, FPL claims that it is entitled to

recover from Callard $348.21 as reimbursement for investigative

costs. FPL failed to offer any proof, however, concerning the

goods and/or services upon which it spent this sum.

Consequently, while the amount requested is neither shocking nor

unreasonable on its face, there is no evidential basis on which

the undersigned can make a finding that the sum of $348.21 is

reasonable in this case.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

57. Florida Administrative Code Rule 25-6.104 provides as

follows:

In the event of unauthorized or fraudulent

use, or meter tampering, the utility may

bill the customer on a reasonable estimate

of the energy used.

58. The burden of proving meter tampering and a reasonable

estimate of the un-metered energy used was on FPL. See

Rodriguez v. Florida Power and Light Co., et al. , DOAH Case No.

96-4935, 1997 WL 1052759, *3 (Fla.Div.Admin.Hrgs. May 21, 1007).

59. Rule 25-6.104, under which FPL is traveling, plainly

does not authorize the utility to recover investigative costs,

as FPL has sought to do here. In support of this particular

claim, FPL relies on In Re: Complaint of Mrs. Blanca Rodriquez

against Florida Power & Light Company regarding alleged current

diversion/meter tampering rebilling for estimated usage of

electricity , Docket No. 960903-EI, Order No. PSC-96-1216-FOF-EI

(PSC Sept. 24, 1996), where the PSC proposed that FPL recover a

sum for investigative charges. In Rodriguez , however, the PSC

did not cite any law supporting its award.

60. Based on the unambiguous language of Rule 25-6.104,

the undersigned concludes that no legal basis exists for

awarding investigative costs to FPL in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a final order

authorizing FPL to retroactively bill Callard $3,975.66 for the

un-metered energy she used from January 1999 through July 2002.

DONE AND ENTERED this 13th day of May, 2005, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2005.

ENDNOTES

1 / The evidence shows that FPL generally took its regular

reading of Callard's meter during the first week of each month,

typically on or before the fifth day. For convenience, the

undersigned henceforth will refer to the billing cycle that

ended on January 2, 1997 (or February 4, 1998, etc., as the case

may be), simply as the "January 1997 bill" (or "February 1998

bill," etc.), or words to that effect, even though, in reality,

the time period covered by the January 1997 bill was mostly

December 1996. Similarly, references herein to electricity used

in a particular month, say January 1997, are intended to mean

electricity used during the billing cycle that ended that month,

even though, given the usual meter-read date, most of that

electricity likely would have been consumed in the immediately

preceding month.

2 / The assumption here is that tampering has not occurred

between the check readings, on the theory that the customer, who

would not be expecting the unscheduled meter-reads, would fail

to roll back the meter dials ahead of the check readings.

3 / Detailed information about the usage data underlying the

average PAUMs, which is not available in the instant record,

might have provided a basis for determining whether the average

customer's PAUMs could fairly be applied in calculating

Callard's un-metered energy consumption. This is because the

more the average customer resembles Callard, the likelier the

average customer's PAUMs will match Callard's. But the converse

is true as well. It is commonly known in this state, for

example, that the climate of North Florida differs from that of

South Florida. One would expect, therefore, that the seasonal

usage patterns of a Jacksonville resident would differ from

those of a Miami resident, reflecting the climatic differences

between the two regions. Thus, if the average customer's PAUMs

were based on data collected statewide, then the average

customer probably lives in a somewhat less tropical environment

than Callard, and accordingly probably has somewhat different

seasonal usage patterns.

4 / As mentioned previously, FPL offered no evidence in support

of its average PAUMs, and consequently the undersigned does not

know what the profile of the average customer is. As a result,

there is no reason for the undersigned not to assume that the

average customer enjoys somewhat milder summers (which would

tend to reduce energy consumption) and faces somewhat colder

winters (which would tend to increase energy consumption) than

Callard typically experiences in Miami, Florida. Consequently,

the undersigned does not view Callard's deviations from the

average percentages as evidence of meter tampering.

5 / This figure was obtained by adding 23899 and 27483 and

dividing the resulting sum by two.

6 / Basing the EAUs on, say, a 30-day billing cycle, instead of,

as above, 29 and 31 days, respectively, would obviously produce

different numbers from the ones shown——but not materially

different numbers. Because the outcome is not affected one way

or the other, the undersigned has opted simply to use the actual

number of days in the relevant cycle for his calculations.

7 / This figure was obtained by adding 20054 and 31128 and

dividing the resulting sum by two.

8 / It is noted that the EAUs for January 2001, March 2001, April

2002, and May 2002 are greater than 31128 and hence out of the

range established by the July 2001 check readings and the

initial reading of the replacement meter in August 2002. The

undersigned considers it possible that Callard tampered with the

meter during these months and (whether by accident or design)

overstated her true usage. Because there is no evidence

suggesting that such occurred, however, the undersigned has

decided that treating the "as billed" kWhs for these months as

true and correct figures is more reasonable than any

alternative.

9 / This dollar amount was arrived at by multiplying the known

cost of one kilowatt-hour, which is approximately 8.8 cents

($8,930.97 ÷ 101623) times the amount of un-metered usage (45238

kWhs).

10 / The figure of 4440 kWhs was based on the assumption that

Callard had used 148 kWhs per day throughout the August 2002

billing cycle. See paragraph 35 in the text, supra . FPL

multiplied 148 kWhs/day times 30 days to arrive at an estimate

of 4440 kWhs for the month of August 2002.

11 / As well, the average of these EAUs is 28994——an amount

reasonably close to the number of kWhs (27658) the undersigned

has determined reasonably reflects Callard's true average annual

usage.

COPIES FURNISHED :

Leticia Callard

7860 Southwest 18th Terrace

Miami, Florida 33155

David M. Lee, Esquire

Florida Power & Light Company

Law Department

700 Universe Boulevard

Juno Beach, Florida 33408

Richard D. Melton, General Counsel

Public Service Commission

Capital Circle Office Center

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

Blanco Bayo, Director of Records and Reporting

Public Service Commission

Capital Circle Office Center

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

William D. Talbott, Executive Director

Public Service Commission

Capital Circle Office Center

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.