96-004935 Blanca Rodriguez vs. Florida Power And Light Corporation Status: Closed Recommended Order on Wednesday, May 21, 1997.

Summary: Utility account properly was backbilled for investigation costs and unmetered electrical energy where meter had been tampered with.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLANCA RODRIGUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4935

)

FLORIDA POWER and LIGHT COMPANY, )

)

Respondent, )

and )

)

FLORIDA PUBLIC SERVICE COMMISSION, )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 6, 1997, at Miami, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mayra Trinchet, Esquire

42 Northwest 27th Avenue, No. 323

Miami, Florida 33125

For Respondent: Robert E. Stone, Esquire

Florida Power and Light Company

Post Office Box 029100

Miami, Florida 33102-9100

For Intervenor: Vicki Johnson, Esquire

Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The amount that Respondent, Florida Power and Light Company

(FPL), is entitled to bill the electrical account for the

property located at 3151 S.W. 84 Court, Miami, Florida, owned by

Petitioner, Blanca Rodriguez, and her husband, Juan A. Rodriguez,

for electricity used but not metered because of meter tampering,

and the amount that Respondent is entitled to bill for the

reasonable costs of its investigation.

PRELIMINARY STATEMENT

FPL determined that someone had tampered with the meter for

the electric service account 3151 S.W. 84 Court, Miami, Florida.

This property has, at all times pertinent to this proceeding,

been owned by Petitioner, Blanca Rodriguez, and her husband,

Juan A. Rodriguez. Thereafter, FPL conducted an investigation

and determined what it considered to be a reasonable estimate of

the amount of electricity that had not been billed because of

the meter tampering. The methodology used by FPL in making this

estimate was based on a methodology that has been approved by

the Florida Public Service Commission. Thereafter, FPL

determined the value of the electricity that it estimated had

been used but not billed and submitted a bill for that amount

plus an amount which FPL considered to be the reasonable

expenses it incurred in conducting the investigation.

Thereafter, Petitioner, Blanca Rodriguez protested the proposed

billing to the Florida Public Service Commission (FPSC). After

review, the FPSC entered a proposed order approving the billing

by FPL. Petitioner timely requested a formal hearing to

challenge the proposed action of the FPSC, the matter was

referred to the Division of Administrative Hearings, and this

proceeding followed.

Prior to the beginning of the formal hearing, the

Petitioner and the Respondent stipulated that meter tampering

had occurred. They did not stipulate when the tampering

occurred and they did not stipulate who tampered with the meter.

The issue left for resolution was whether the billing for

unmetered electricity and investigative costs was reasonable

within the meaning of Rule 25-6.104, Florida Administrative

Code.

At the formal hearing, Petitioner testified on her own

behalf and presented one exhibit, which was accepted into

evidence. Respondent presented the testimony of one witness,

Helen Lubert, an employee of FPL who determined the amount of

the billing at issue in this proceeding. Respondent presented

five exhibits, each of which was accepted into evidence. FPSC

presented no testimony or exhibit. At the request of the FPSC,

official recognition was taken of Rule 25-6.105(8)(a), Florida

Administrative Code. At the request of Respondent, official

recognition was taken of Rule 25-6.104, Florida Administrative

Code.

A transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty

days after the transcript is filed. Rule 60Q-2.031, Florida

Administrative Code. The Petitioner and Respondent filed

proposed recommended orders, which have been duly considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On January 30, 1987, the FPL electric service account

at 3151 S.W. 84 Court, Miami, Florida, was opened under account

number 20770-66450 in the name of Juan A. Rodriguez. The

account was in the name of Juan A. Rodriguez at all times

pertinent to this proceeding. At the request of the Petitioner,

the account was changed into her name on October 9, 1996.

2. The residence located at 3151 S.W. 84 Court, Miami,

Florida, has, at all times pertinent to this proceeding, been

owned by Petitioner and her husband, Juan A. Rodriguez.

3. At all times pertinent to this proceeding, Petitioner

has lived in the subject residence and has received the benefit

of FPL electrical service.

4. Petitioner’s husband, Juan A. Rodriguez, lived in the

residence from 1987 until he and Petitioner separated in 1994.

Thereafter he moved back into the residence in February 1996,

and he was living at the residence at the time of the formal

hearing.

5. In August 1995, FPL became suspicious that someone had

tampered with the electrical meter for the subject residence.

An investigation was instigated and assigned to Helen Lubert, a

senior revenue protection investigator employed by FPL.

Petitioner stipulated to the experience and expertise of Ms.

Lubert. Based on that investigation, which included a review of

the public records, spot checks of electrical usage during times

there was no meter tampering, and an interview with Petitioner

and her husband, Ms. Lubert projected the amounts of electricity

that had been actually used at the subject residence. This

projection made use of charts referred to as seasonal average

percentage of usage charts. These charts and the methodology

used by FPL have been approved by the Florida Public Service

Commission.

6. FPL’s records retention policy is to purge billing

records that are more than six years old. When Ms. Lubert

attempted in March 1996 to determine how long the meter

tampering had been going on she could not locate the billing

records for the subject property prior to April of 1990. In

comparing the amounts that were billed with the amounts that she

had projected had been actually used, Ms. Lubert found the

amounts billed were substantially lower than the amounts she had

projected had been used. Ms. Lubert reasonably determined that

meter tampering had been occurring at the subject residence

since at least April 1990.

7. Ms. Lubert testified that the projected amount of

electricity actually used was reasonable and that the amount of

the billing for the electricity that had been used but not

billed because of meter tampering was reasonable. She also

testified that the billing for the investigative costs was

reasonable. In forming her opinion that the projected amount of

electricity actually used was reasonable, Ms. Lubert considered

that the methodology used has been approved by the FPSC, the

approximate size of the residence, the type water heater and

appliances in the residence, the fact that there is a swimming

pool with an electrical pump, the number of occupants in the

residence, the manner in which Respondent reported she used air

conditioning, and the fact that there was an apartment added to

the house in 1994.

8. Ms. Lubert calculated that since April 1990 and the

date of the billing, the value of the unmetered electricity that

had been used by the subject account was $7,453.12. This

calculation is a reasonable estimate of the unmetered energy

used. Ms. Lubert also calculated that the reasonable costs of

the investigation was $349.38. This amount is reasonable.

9. On April 5, 1996, FPL billed the subject account the

sum of $7,802.50 based on Ms. Lubert’s calculations. Although

her name was not on the account with FPL prior to October 1996,

neither the FPSC or FPL has challenged her right to contest this

billing.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

11. Rule 25-6.104, Florida Administrative Code, 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.

12. Petitioner does not dispute that FPL is entitled to

bill for its reasonable costs of investigation in addition to

the reasonable value of the estimated energy used.

13. There was a dispute between the parties as to whether

Petitioner or Respondent has the burden of proof in this

proceeding. That dispute should be resolved by finding that the

Respondent, as the party asserting that its determination that

its billing is reasonable, has the burden of proof. See, Rule

28-6.08(3), Florida Administrative Code. In this type

proceeding, it would be patently unfair to place the burden on a

consumer that the billing by FPL is unreasonable. The burden

should be on the utility company to prove by a preponderance of

the evidence that its billing is reasonable.

14. FPL established by a preponderance of the evidence

that someone tampered with the meter for the subject account and

that as a result of that tampering, both Petitioner and her

husband obtained the benefit of unmetered electricity. FPL also

established that it reasonably estimated the value of that

unmetered electricity. FPL also established that the amount

charged this account for investigative costs was reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Public Service

Commission enter a final order that denies Petitioner’s

challenge to this billing, thereby upholding the billing to the

subject account.

DONE AND ENTERED this 21st day of May, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative

Hearings

this 21st day of May, 1997

COPIES FURNISHED:

Mrs. Blanca Rodriguez

3151 Southwest 84th Court

Miami, Florida 33155

Mayra Trinchet, Esquire

42 Northwest 27th Avenue, Suite 323

Miami, Florida 33125

Robert E. Stone, Esquire

Post Office Box 029100

Miami, Florida 33102

Vicki Johnson, Esquire

Public Service Commission

Division of Legal Services

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

Blanca Bayo, Director of Records

Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

Rob Vandiver, General Counsel

Public Services Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399-0850

William D. Talbott, Executive Director

Public Services Commission

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.