SC13-160 Answer Briefs - Florida Supreme Court

Filing # 9283320 Electronically Filed 01/17/2014 11:56:57 AM
RECEIVED, 1/17/2014 12:39:20, John A. Tomasino, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
EDWARD MCDONALD,
Appellant,
CASE NO.: SC13-160
L.T. NO.: 110305-EI
v.
FLORIDA PUBLIC SERVICE
COMMISSION, ET AL.,
Appellees.
APPEAL FROM THE FLORIDA PUBLIC SERVICE COMMISSION
ANSWER BRIEF OF APPELLEE
FLORIDA PUBLIC SERVICE COMMISSION
S. CURTIS KISER
General Counsel
Florida Bar No. 0123700
[email protected]
SAMANTHA M. CIBULA
Attorney Supervisor
Florida Bar No. 0116599
[email protected]
PAMELA H. PAGE
Senior Attorney
Florida Bar No. 0250481
[email protected]
FLORIDA PUBLIC SERVICE COMMISSION
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0862
(850) 413-6199
TABLE OF CONTENTS
PAGE NO.
TABLE OF CITATIONS ......................................................................................... ii
STATEMENT OF THE CASE AND FACTS ..........................................................1
I. STATEMENT OF THE CASE ...........................................................................1
II. STATEMENT OF THE FACTS.........................................................................1
SUMMARY OF ARGUMENT ................................................................................3
ARGUMENT .............................................................................................................4
I.
THE COMMISSION PROPERLY DISMISSED MCDONALD’S
AMENDED PETITION ..................................................................................4
CONCLUSION..........................................................................................................9
CERTIFICATE OF SERVICE ................................................................................11
CERTIFICATE OF COMPLIANCE.......................................................................12
i
TABLE OF CITATIONS
CASES
PAGE NO.
Brookwood Extended Care Ctr. Of Homestead, LLP, d/b/a Brookwood
Gardens Convalescent Ctr. v. Agency for Healthcare Admn.,
870 So. 2d 834 (Fla. 4th DCA 2003)...........................................................6, 7
City of Cape Coral v. GAC Utilities, Inc. of Florida,
281 So. 2d 493, 495 (Fla. 1973) ......................................................................9
Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co.,
752 So. 2d 582, 584 (Fla. 2000) ......................................................................5
Fla. Bar v. Richard Phillip Greene,
926 So. 2d 1195, 1199 (Fla. 2006) ..................................................................5
Fla. Bar v. Rubin
362 So. 2d 12 (Fla. 1978) ................................................................................5
Sarasota County v. National City Bank of Cleveland, Ohio,
902 So. 2d 233 (Fla. 2d DCA 2005)................................................................8
Southern Alliance for Clean Energy v. Graham,
113 So. 3d 742, 752 (Fla. 2013) ......................................................................4
Southern States Utilities v. Fla. Public Svc. Comm.,
714 So. 2d 1046, 1051 (Fla. 1st DCA 1998) ...................................................9
FLORIDA STATUTES
Administrative Procedure Act................................................................................3, 5
Chapter 95, Fla. Stat. (2011)..............................................................................2, 5, 8
Chapter 120, Fla. Stat. (2011)............................................................................4, 8, 9
ii
§ 95.011, Fla. Stat. (2011)..........................................................................................8
§ 120.54(5)(b), Fla. Stat. (2011). ...............................................................................5
§ 120.569, Fla. Stat. (2011)........................................................................................5
§ 120.569(2)(c), Fla. Stat. (2011). .........................................................................5, 7
§ 366.04, Fla. Stat. (2011)..........................................................................................8
§ 366.04(1), Fla. Stat. (2011).....................................................................................8
FLORIDA ADMINISTRATIVE CODE
Rule 28-106.201.....................................................................................................6, 7
Rule 28-106.201(2) ....................................................................................................7
Rule 28-106.201(2)(f) ................................................................................................6
FLORIDA PUBLIC SERVICE COMMISSION ORDERS
In re: Petition for approval of renewable energy tariff standard offer contract by
Florida Power & Light Company,
2007 Fla PUC Lexis 517 (2007)......................................................................7
iii
STATEMENT OF THE CASE AND FACTS
I. STATEMENT OF THE CASE
By Florida Public Service Commission (Commission) Order No. PSC-12
0485-FOF-EI (dismissal order), the Commission dismissed Edward McDonald’s
(McDonald) amended petition for failure to state a cause of action. (R. Vol.1, 182
186)1 Although McDonald’s Notice of Appeal states that this is an appeal from
Commission Order No. PSC-12-0668-FOF-EI (reconsideration order), denying
Edward McDonald’s (McDonald) motion for reconsideration of Commission
Order No. PSC-12-0485-FOF-EI (R. Vol.2, 294-299), this Answer Brief is
submitted in defense of the dismissal and reconsideration orders.
II.
STATEMENT OF THE FACTS
On May 3, 2011, McDonald filed an informal complaint with the
Commission against Tampa Electric Company (TECO). (R. Vol.1, 16-25)
McDonald alleged in the informal complaint that the amount of $915.94 for
electric service claimed by TECO was incorrect and that he did not owe this
amount to TECO. (R. Vol.1,17). McDonald also demanded $3,500 from TECO
which he alleged TECO had improperly returned to the bank. (R. Vol.1, 22) This
complaint was fully investigated by the Commission’s Consumer Assistance
Division. (R. Vol.1, 16-25) The result of this investigation was that TECO had
1
References to the record on appeal are designed: (R. Vol. [Volume #], [Page #]).
1
violated no law, rule or regulation in attempting to collect McDonald’s bill in the
amount of $915.94. Id. The investigation also resulted in the finding that TECO
had violated no law, rule or regulation within the authority of the Commission
when TECO returned $3,500 to McDonald’s mother’s bank account after TECO
was informed that McDonald was not authorized to withdraw funds from that
account. Id.
McDonald filed a petition with the Commission against TECO requesting a
formal review of his complaint by the Commission. (R. Vol.1, 6-7) McDonald
alleged that he did not owe TECO $915.94, that this amount was barred by the
statute of limitations, and that TECO owed McDonald $3,500. Id. McDonald
cited Chapter 95, Florida Statutes (Fla. Stat.), which provides the statute of
limitations for civil actions. Id.
Subsequently, TECO made a settlement offer to McDonald. (R. Vol.1, 89
94) On December 12, 2011, McDonald publicly disclosed TECO’s proposed
settlement offer and flatly rejected it. (R. Vol.1, 38-45)
TECO filed a motion to dismiss McDonald’s petition for failure to state a
cause of action for which relief may be granted. (R. Vol.1, 99-102) By Proposed
Agency Action Order No. PSC-12-0252-PAA-EI, the Commission granted
TECO’s motion to dismiss without prejudice. (R. Vol.1, 89-94) When the
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Commission dismissed McDonald’s petition, it gave McDonald a full opportunity
to cure the deficiencies of the petition. Id.
McDonald filed an amended petition. (R. Vol.1, 128-142) McDonald’s
allegations were substantially identical to those in the original petition, i.e., that he
had properly paid the $915.94, that receipt of this debt was barred by the statute of
limitations, and that TECO owed him $3,500. Id. TECO filed a motion to dismiss
the amended petition with prejudice. (R. Vol.1, 143-146) Upon consideration of
the motion to dismiss and McDonald’s amended petition, the Commission
dismissed the amended petition with prejudice by Order No. PSC-12-0485-FOF
EI. (R. Vol.1, 128-142; 143-146; 182-188)
McDonald filed a motion for reconsideration of Order No. PSC-12-0485
FOF-EI. (R. Vol.2, 195-208) After full review by the Commission, McDonald’s
motion for reconsideration was denied in Commission Order No. PSC-12-0668
FOF-EI. (R. Vol.2, 294-299)
McDonald filed a notice of appeal of Commission Order No. PSC-12-0668
FOF-EI, and this appeal followed. (R. Vol.2, 308)
SUMMARY OF ARGUMENT
Pursuant to the Administrative Procedure Act (Act), all petitions for relief in
administrative proceedings must comply with the requirements of the Act and its
implementing rules. McDonald failed to identify any facts supporting reversal or
3
modification of the Commission’s Proposed Agency Action Order, failed to allege
a violation of statute or rule, or to raise any matter within the statutory jurisdiction
of the Commission.
McDonald was given a full opportunity to comply with Chapter 120, Fla.
Stat. After due consideration, the Commission properly dismissed his amended
complaint for failure to state a cause of action.
McDonald’s motion for reconsideration was properly denied because it did
not demonstrate any omission of fact or law that would have resulted in a different
ruling than that in the order granting TECO’s motion to dismiss with prejudice.
ARGUMENT
I.
THE COMMISSION PROPERLY
AMENDED PETITION
DISMISSED
MCDONALD’S
Standard of Review
In Southern Alliance for Clean Energy v. Graham, 113 So. 3d 742, 752 (Fla.
2013), this Court stated that “[a]s we have repeatedly held: the [Florida Public
Service] Commission’s orders, and concomitant interpretations of statutes and
legislative policies that it is charged with enforcing, are entitled to great
deference.” Moreover, “[t]o overcome these presumptions, a party challenging an
order of the Commission on appeal has the burden of showing a departure from the
essential requirements of law and the legislation controlling the issue. . . .” Id.
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A ruling on a motion to dismiss based on a question of law is subject to de
novo review. Fla. Bar v. Richard Phillip Greene, 926 So. 2d 1195, 1199 (Fla.
2006) (citing Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582,
584 (Fla. 2000)). “Dismissal may be based on various grounds, including failure
of the complainant to abide by the applicable rules of procedure.” Id. (citing Fla.
Bar v. Rubin, 362 So. 2d 12 (Fla. 1978))
The Administrative Procedure Act
Section 120.569, Fla. Stat., states that any person whose substantial interests
are to be determined by an agency may institute proceedings by filing a petition or
request for hearing with the agency responsible for making the determination.
Section 120.569(2)(c), Fla. Stat., mandates that a petition or request for hearing
include “those items required by the uniform rules adopted pursuant to
s.120.54(5)(b).”
McDonald failed in both his petition and amended petition to satisfy the
requirements of the uniform rules. (R. Vol.1, 6-7; 128-142)
In his petition,
McDonald asserts that TECO cannot discontinue his electric service in that he has
paid for it, and that TECO’s collection is barred because the statute of limitations,
Chapter 95, Fla. Stat., “renders the seven year old bill null and void.” (R. Vol.1, 7)
McDonald alleges that TECO owes him $3,500 “for an overpayment in 2004.” (R.
Vol.1, 6) The allegations in the amended complaint were essentially the same, that
5
McDonald had paid the $915.94 bill and that TECO was liable to him in the
amount of $3,500. (R. Vol.1, 6-7; 128-142) Moreover, McDonald’s motion for
reconsideration did not demonstrate any omission of fact or law that would have
resulted in a different ruling than that in the order granting TECO’s motion to
dismiss with prejudice. (R. Vol.2, 294-299)
Rule 28-106.201(2)(f), Florida Administrative Code (F.A.C.), states that all
petitions filed under the uniform rules shall contain “[a] statement of the specific
rules or statutes the petitioner contends require reversal or modification of the
agency’s proposed action, including an explanation of how the alleged facts relate
to the specific rules or statutes.” In his petition and his amended petition
McDonald does not comply Rule 28-106.201(2)(f), F.A.C. He repeatedly fails to
cite to a specific rule or statute that has been violated or to the facts on which such
a violation has occurred. Id.
In Brookwood Extended Care Ctr. Of Homestead, LLP, d/b/a Brookwood
Gardens Convalescent Ctr. v. Agency for Healthcare Admn., 870 So. 2d 834 (Fla.
4th DCA 2003), the Court reviewed the Agency for Healthcare Administration’s
denial of a nursing home’s request for an administrative hearing. Rather than
amending the petition to satisfy the requirements of Rule 28-106.201, F.A.C.,
counsel took issue with the agency’s request for more specificity. The Court held
that this pleading:
6
failed to satisfy the requirements of Rule 28-106.201(2) of the Florida
Administrative Code, which requires that formal hearing requests
contain a ‘statement of all disputed issues of material fact’ and a
‘concise statement of the ultimate facts...including the specific facts
the petitioner contends warrant reversal or modification of the
agency’s proposed action.’
Id. at 837.
Moreover, Section 120.569(2)(c), Fla. Stat., requires that an administrative
agency dismiss a petition for failure to substantially comply with the uniform rules.
The section specifically states that “a petition shall be dismissed if it is not in
substantial compliance with these requirements.” §120.569(2)(c), Fla. Stat.
(emphasis supplied). See also In re: Petition for approval of renewable energy
tariff standard offer contract by Florida Power & Light Company, 2007 Fla PUC
Lexis 517 (2007) (Commission dismissed petition without prejudice for failure to
meet the pleading requirements in Rule 28-106.201, F.A.C.) Having determined in
Commission Order No. PSC-12-0485-FOF-EI that McDonald’s amended petition
was not in substantial compliance with the administrative rules of procedure, the
Commission was required to dismiss his amended petition. (R. Vol.1, 182-186)
The Commission conducted a full review of McDonald’s claims and
determined that McDonald’s amended petition failed to substantially comply with
Rule 28-106.201, F.A.C. Id. McDonald’s mere statement that he does not owe
TECO $915.94 for electric service is not an allegation of specific facts showing a
violation of rule, order or statute or the actions that constitute the violation. The
7
repetition of this bare assertion fails to state a cause of action under Chapter 120,
Fla. Stat.
Chapter 95, Fla. Stat.
In his petition and his amended petition, McDonald alleges that TECO’s
collection of the past due amount of $915.94 is barred by Chapter 95, Fla. Stat. (R.
Vol.1, 6-7; 128-142) The limitations set forth in Chapter 95, Fla. Stat., have no
application to administrative proceedings. See Section 95.011, Fla. Stat.
In Sarasota County v. National City Bank of Cleveland, Ohio, 902 So. 2d
233 (Fla. 2d DCA 2005), the Court reviewed limitations applicable to the county’s
administrative code enforcement proceeding against the bank and held that the
limitations set forth in Chapter 95, Fla. Stat., have no application to administrative
proceedings. Id. at 234-5. Further, even if Chapter 95, Fla. Stat., were applicable,
the record shows TECO never commenced any civil proceeding against
McDonald. (R. Vol.1, 1-194; Vol.2, 195-352) Thus, McDonald’s allegation that
Chapter 95, Fla. Stat., bars TECO’s collection of the $915.94 debt is plainly
erroneous.
Jurisdiction of the Commission
Section 366.04, Fla. Stat., sets forth the jurisdiction of the Commission.
Section 366.04(1), Fla. Stat., provides generally that “the Commission shall have
jurisdiction to regulate and supervise each public utility with respect to its rates and
8
service.” The Legislature delegated no authority to the Commission to make an
award of damages.
In City of Cape Coral v. GAC Utilities, Inc. of Fla., 281 So. 2d 493, 495
(Fla. 1973), this Court held that all legislatively created administrative agencies are
not constitutional bodies, but rather, “mere creatures of statute.” Florida courts
have followed this rule of law. See, e.g., Southern States Utilities v. Fla. Public
Svc. Comm., 714 So. 2d 1046, 1051 (Fla. 1st DCA 1998) (the Commission’s
powers and authority are only those that are conferred expressly or impliedly by
statute).
McDonald’s charge that TECO was negligent when it returned $3,500 to his
mother’s bank (R. Vol.1, 128-142) not only fails to state a cause of action in
compliance with Chapter 120, Fla. Stat., but also fails to allege a matter within the
jurisdiction of the Commission. The allegation that TECO took wrongful actions
denotes a claim for damages, which the Commission properly determined it was
without jurisdiction to award. (R. Vol.1, 182-186)
CONCLUSION
McDonald’s petition failed to comply with Chapter 120, Fla. Stat., or to
allege any matter within the jurisdiction of the Commission.
After affording
McDonald a full opportunity to amend his petition, the Commission properly
9
dismissed the amended petition for failure to state a cause of action and properly
denied his motion for reconsideration.
Wherefore, Appellee the Florida Public Service Commission respectfully
requests that this Court affirm the Commission’s orders dismissing McDonald’s
amended petition and denying McDonald’s motion for reconsideration of such
dismissal.
Respectfully submitted,
/s/ Pamela H. Page
PAMELA H. PAGE
Senior Attorney
Florida Bar No. 0250481
[email protected]
SAMANTHA M. CIBULA
Attorney Supervisor
Florida Bar No. 0116599
[email protected]
FLORIDA PUBLIC SERVICE COMMISSION
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0862
(850) 413-6199
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to the individuals listed below by electronic mail delivery and U.S. Mail
this 17th day of January, 2014.
Edward McDonald
7203 N. 41st Street
Tampa, Florida 33604-2425
[email protected]
James Beasley, Esquire
Ausley & McMullen
P.O. Box 391
Tallahassee, Florida 32302
[email protected]
/s/ Pamela H. Page
PAMELA H. PAGE
Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, Florida 3299-0850
[email protected]
(850)413-6199
11
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY, pursuant to Rule 9.210(a)(2), Florida Rules of
Appellate Procedure, that this brief was prepared using Times New Roman
14-point typeface, a font that is proportionally spaced.
/s/ Pamela H. Page
PAMELA H. PAGE
12