STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE VILLAS CONDOMINIUM )

ASSOCIATION, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 81-227

) PSC Docket No. 800770-EU

FLORIDA POWER CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 30, 1981, in the Eastmont Civic Center, Altamonte Springs, Florida. A transcript of the proceeding was received by the Division of Administrative Hearings on May 22, 1981. The parties were afforded the opportunity to file with the Hearing Officer proposed findings of fact, proposed conclusions of law and a proposed recommendation within ten (10) days of the receipt of the transcript. No such proposed recommended orders were filed.

APPEARANCES

For Petitioner: James D. Mapp

Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340

Winter Park, Florida 32790

For Respondent: Blair W. Clark

Assistant Counsel Post Office Box 14042

St. Petersburg, Florida 33733

For the Public Arthur Shell

Service 101 East Gaines Street Commission: Tallahassee, Florida 32301

INTRODUCTION

By a petition filed with the Florida Public Service Commission on December 17, 1980, the petitioner, Lake Villas Condominium Association, Inc., alleged that it was entitled to a refund from respondent Florida Power Corporation in the amount of $10,266.76 for the reason that Florida Power Corporation, from January of 1976, through May of 1979, incorrectly charged commercial rates, as opposed to residential rates, for eight electrical meters which served common areas and elements on condominium properties. The Florida Public Service Commission transferred the petition to the Division of Administrative Hearings on January 27, 1981, and the undersigned Hearing Officer was designated to conduct the proceedings.

The respondent Florida Power Corporation moved to dismiss the petition on various grounds. Due to the facts that the memorandum of law in support of the motion to dismiss was not received by the undersigned until the morning of the hearing, certain grounds for the motion were subject to evidentiary proof and certain grounds were more in the nature of a motion for more definite statement, a ruling on the motion to dismiss was reserved.

At the hearing, the petitioner presented the testimony of four witnesses and petitioner's five exhibits were received into evidence. The respondent presented no oral or documentary evidence at the hearing. Respondent's request that the Hearing Officer take official notice of the Florida Public Service Commission's Order No. 4150 (Docket No. 7697-EU, March 2, 1967) was granted.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium.

   
   

2. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977.

   
   

3. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of

   First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters.

   
   

4. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs.

   
   

5. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters.

   
   

6. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units.

   
   

7. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate.

   
   

8. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.

   CONCLUSIONS OF LAW

   
   

9. The issue for determination in this proceeding is whether petitioner is entitled to a refund or reimbursement of all monies paid to Florida Power Corporation from July of 1976 through May of 1979 for electricity billed for seven or eight common element meters in excess of the residential electric rate. The evidence adduced by the petitioner in this proceeding wholly fails to demonstrate petitioner's entitlement to such a refund or reimbursement.

   
   

10. Neither the statutes nor the rules and regulations which govern public utilities and the Florida Public Service Commission with regard to electric service appear to address themselves to the criteria or standards which would qualify a customer for the application of a residential, as opposed to a commercial, electric rate. The Florida Public Service Commission's Order No. 4150, which bears the caption "In Re: Show Cause Order to All Electric Utilities on Application of Rates for Energy used in Commonly-owned Facilities in Condominium and Cooperative Buildings" (Docket No. 7697-EU, March 2, 1967), does set forth four criteria for the application of residential rates for energy used in commonly-owned facilities in condominium and cooperative apartment buildings. These criteria are as follows:

    
    

    "1. One hundred percent of the energy is used exclusively for the co-owners' benefit.

    1. None of the energy is used in any endeavor which sells or rents a commodity or provides service for a fee.

    2. Each point of delivery will be separately metered and billed.

    3. A responsible legal entity is established as the customer to whom the company can render its bills for said service.

       
       

11. In this proceeding, the petitioner has failed to adduce facts which would demonstrate that it would have qualified for the application of residential rates at any given point in time. Construed in a light most favorable to the petitioner, the evidence does indicate that the seven or eight subject meters registered energy which was used in commonly-owned facilities, that the meters were separately billed and that petitioner is and was a responsible legal entity to which the respondent could render its bills for service. Thus, the third and fourth criteria listed in Order No. 4150 have been met. However, the evidence is wholly insufficient to illustrate compliance at any given point in time with the first and second criteria. Indeed, to the contrary, the evidence supports the conclusion that petitioner would not have qualified for a residential rate at least through 1977, when the property was being used to the commercial benefit of First Federal Savings and Loan of Orlando to sell property. The only other evidence concerning the use of electricity from the subject meters came from Mr. O. K. Armstrong who testified that from the time he became the manager of the condominium, in April of 1979, through the time that he left, in October of 1980, no commercial activity occurred in any of the condominium units. No evidence was offered as to events which occurred from January of 1978 through March of 1979 regarding the use of the condominium properties.

    
    

12. The petitioner seems to base its claim for an entitlement to a refund or retroactive application of the residential electric rate on the fact that respondent was notified on two separate occasions that the main customer was a condominium association. As the four criteria enumerated in Florida Public

    Service Commission Order No. 4150 illustrate, it is the use to which the electricity is put which is the determinative qualifying factor for a residential rate, and not the nature of the customer. The respondent would have no method of independently determining from its own records whether or when a customer would qualify for a residential rate absent a request by the customer supported by factual data which would show compliance with the criteria enabling the application of such a residential rate. Neither the statutes nor the Florida Public Service Commission rules place a burden upon a utility to change a rate classification of a customer upon a simple request for a change of account name and address. Indeed, the rules governing electric service specifically place the initial burden upon the customer to make the request for a specific rate classification. Florida Administrative Code, Rule 25-6.93, provides as follows:

    
    

    25-6.93 Information to customers.

    1. Each utility shall, upon request, give

       its customers such information and assistance as is reasonable, in order that the customer may secure safe and efficient service. The

       utility shall, when requested, provide any customer information as to the method of reading meters and derivation of billing information therefrom.

    2. Upon request of any customer, it shall be the duty of the utility to provide to the customer a copy and/or explanation of the utility's rates and provisions applicable to the type or types of service furnished or to be furnished such customer, and to assist him in obtaining the rate schedule which is most advantageous for his service requirements.

    
    

    It is undisputed in this case that no request was made by petitioner, or anyone in its behalf, for a rate adjustment or change in rate classification until May of 1979. The discussions which occurred prior to May of 1979 involved only a change in the account name and address. There is no explicit, legally imposed duty upon a utility to take the initiative to make rate adjustments for the benefit of a customer.

    
    

13. Absent a demonstration of a violation on the part of the respondent Florida Power Corporation of the Florida Public Service Commission statutes or rules and absent a positive demonstration by petitioner that it both qualified for and requested a residential rate at any period of time prior to May of 1979, petitioner is not entitled to a refund of monies from respondent.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED.

Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981.

COPIES FURNISHED:

James D. Mapp

Hunter, Pattillo, Marchman, Mapp and Davis

Post Office Box 340

Winter Park, Florida 32790

Blair W. Clack Assistant Counsel Post Office Box 14042

St. Petersburg, Florida 33733

Arthur Shell

Public Service Commission Legal Department

101 East Gaines Street Tallahassee, Florida 32301

Steve Tribble, Clerk

Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301

Docket for Case No: 81-000227

Orders for Case No: 81-000227