STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PUBLIC SERVICE )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1197

) FLORALINO PROPERTIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, an administrative hearing was held before Donald R. Alexander, Hearing Officer with the Division of Administrative Hearings, on August 12, 1980, in Tampa, Florida, on Public Service Commission Show Cause Order No. 9320 issued to Floralino Properties, Inc. for failure to comply with the mandates of Commission Order No. 7494.

APPEARANCES

For Petitioner: M. Robert Christ, Esquire

Bruce W. Renard, Esquire

101 East Gaines Street Tallahassee, Florida 32301

For Respondent: Herman B. Blumenthal, III, Esquire

10401 Seminole Boulevard (Alt. 19)

Seminole, Florida 33542

On April 9, 1980, the Public Service Commission issued Order No. 9320 requiring Floralino Properties, Inc. to show cause why it should not be fined for failure to comply with the provisions of Order No. 7494, dated November 2, 1976. At the outset of the hearing the respondent entered a plea of nolo contendere. The parties stipulated to the facts set forth in Order No. 9320 and agreed that the violation was not wilful or intentional and a nominal fine should be imposed. The sole issue remaining for determination is the amount of penalty to be assessed upon respondent.

FINDINGS OF FACT

1. Floralino Properties, Inc. is a small utility providing water and sewer service in Pasco County. During the period May 30, 1978 until March 12, 1979, it purchased a substantial portion of its water from the Pasco Water Authority, Inc. (PWA) for resale to its customers. In order to recoup the costs of those purchases, the Public Service Commission authorized the utility to assess a surcharge upon each customer's bill. (See Order No. 7494). However, because the surcharge exceeded the actual charges for water purchased, the utility was required to escrow all excess revenues. Respondent failed to do so thereby precipitating the issuance of Order No. 9320. A subsequent Commission audit

   reflected the excess revenues to be $2,228.05. Prior to the hearing, but after the issuance of Order No. 9320, the respondent escrowed the funds in a Pinellas County bank. The utility now agrees to make an appropriate refund with interest within 30 days to all customers who received service during the period in question.

   
   

   CONCLUSIONS OF LAW

   
   

2. The DOAH has jurisdiction of the parties and the subject matter of this proceeding.

   
   

3. Section 367.161(2), Florida Statutes, provides in part that:

   
   

   If any utility knowingly refuses to comply with, or wilfully violates any provisions of this chapter or any lawful rule or order

   of the commission, such utility shall incur a penalty for each such offense of not more than $5,000, to be fixed, imposed, and collected by the commission.

   
   

4. Having considered the nature of the charges, the agreement by the respondent to refund with interest all excess revenues collected, and its willingness to promptly accomplish such refund, the Hearing Officer concludes that a fine of $250 is warranted given the circumstances of the proceeding.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that respondent be found guilty of violating Order No. 7494, dated November 2, 1976; that a fine of $250 be imposed upon respondent; that respondent make an appropriate refund of $2,228.05 with 6 percent interest to those customers entitled to such refund within 30 days; and that a final report setting forth the disposition of such monies be submitted to the Public Service Commission within 90 days.

DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

M. Robert Christ, Esquire

101 East Gaines Street Tallahassee, Florida 33542

Floralino Properties, Inc. 2320 East Bay Drive Clearwater, Florida 33516

Steve Tribble Commission Clerk

101 East Gaines Street Tallahassee, Florida 32301

Herman B. Blumenthal, III, Esquire 10401 Seminole Boulevard (Alt. 19)

Seminole, Florida 33542

Docket for Case No: 80-001197

Orders for Case No: 80-001197