STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH TUCH, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0819

) FLORIDA POWER AND LIGHT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard on June 24 and July 28, 1986, in Broward County, Florida. Both parties submitted proposed recommended orders and closing arguments. Rulings on the findings of fact contained in the proposed recommended orders are found in the Appendix to this Recommended Order.

For Petitioner: Christopher C. Cloney, Esquire,

Ft. Lauderdale, Florida

For Respondent: Susan Roeder Martin, Esquire,

Miami, Florida

BACKGROUND

This matter was referred to the Division of Administrative Hearings by the Florida Public Service Commission for hearing on the petition to initiate formal complaint which Mr. Tuch filed with the Clerk of the Florida Public Service Commission on January 17, 1986. Florida Power and Light Company rendered a bill to Mr. Tuch in the amount of $1,987.45 for unmeasured electric energy which it maintains Tuch received through meter tampering and current diversion. The bill is the subject of his complaint. Florida Power and Light Company had proposed to disconnect the electrical service of Mr. Tuch on November 19, 1985, unless the amount of the bill rendered to him was paid, but disconnection was withheld pending the outcome of this proceeding.

ISSUES

The issue in this case is whether Kenneth Tuch is liable to Florida Power and Light Company for receipt of unmeasured electric energy and if so, what amount is due?

FINDINGS OF FACT

1. Kenneth Tuch resides alone at 1924 N.E. 25th Street, Ft. Lauderdale, Florida. He receives his electric current from Florida Power and Light Company.

   
   

2. In June of 1985, an employee of American Cable Company went to Mr. Tuch's home to investigate a complaint about the quality of cable television reception at the Tuch residence. The employee noticed that the air conditioning

   was on in the Tuch residence while he was investigating the complaint. When following the cable lines outside the home, he noticed the electric meter was not operating. He provided this information to Florida Power and Light which sent two employees to the Tuch residence on June 20, 1985. They found the air conditioning and swimming pool pump were on, but the electric meter disk did not turn. The meter seal was opened and the meter was removed from its socket, and photographed. The photographs demonstrate that the potential clip of the meter was open.

   
   

3. The potential clip is used when testing a meter. When it is open no registration of electric current is made.

   
   

4. The meter was originally placed at the Tuch residence in 1960. The potential clip could not have been open then, for it never would have registered any electric consumption were that the case. The potential clip would not have fallen into the open position on its own. There was tampering with the potential clip because a screw in the slot in the center of the clip had been tightened to keep the clip in the open position. In addition, the picture of the potential clip and the screws (FP&L Exhibit 5) show wear and tear on the screw. Marks on the area around the screw slot in the center of the potential clip show that the clip has been slid back and forth. These facts prove a deliberate attempt to divert unmeasured electricity.

   
   

5. The meter seal consists of a wire bail of a horseshoe shape which fits into a rectangular base body approximately 1 and 1/4 inches by 3/4 inch by 1/8 inch. The seal removed from Tuch's meter bears the inscription on one side "77 FP&LS" and on the other side, the numbers "0379126". The condition of the seal was such that by tugging on the wire bail, it would loosen from the body of the seal, and open, but the bail could be replaced into the seal body giving the impression on casual observation that the seal was intact. While the inscription on the seal indicates that it is a genuine Florida Power and Light seal, it is not in the condition in which seals are originally placed. It is not possible to open the wire bail of a seal and thereby gain access to the meter canopy without tampering with the seal.

   
   

6. The billings for consumption of electricity at the Tuch residence show an erratic pattern of monthly electric consumption during the period for which Florida Power and Light has records available, January 1982 through June 1986. For the years 1982 through 1984, Mr. Tuch was billed for an average of 11,022.33 kilowatts per year.

   
   

7. On June 20, 1985, the meter at the Tuch residence was replaced with a new meter which was locked in place. Readings were taken from the new meter on June 21, June 27, July 2 and July 9. During those 19 days, 1,063 kilowatts had been consumed for an average use of 55.9 kilowatts per day. This equals 1,677 kilowatts for a 30 day period.

   
   

8. An average percentage of use chart was introduced into evidence as the basis for distributing the total yearly kilowatt consumption based upon seasonal variations in consumption. According to the chart 9.8 percent of the total kilowatts used by Florida Power and Light customers in 1985 were consumed in the July billing period. That being so, the total estimated annual usage given a July bill of 1,677 kilowatts would be 17,112 kilowatts. The total additional billing on that basis for 1982, 1983, 1984 and 1985 (through the date of the discovery of the tampering) would be $1,829.57.

9. A potential problem with this methodology for determining annual usage is that it extrapolates a bill for a one year period based on readings taken over only 19 days. As a check on the method Florida Power and Light also placed in evidence the readings for approximately six months actual usage after replacement of the meter which had been tampered with. Mr. Tuch used 7,865 kilowatts during the 172 day period from June 20 through December 31, 1985.

   This was an average use of 45.72 kilowatts per day. When multiplied by 365 days the estimated yearly usage is 16,690 kilowatts. This results in a billing

   $17.52 lower than the extrapolation and shows the reasonableness of using the 19 day period to project annual usage.

   
   

10. The electric meter removed from Mr. Tuch's residence was tested, but due to its age was then destroyed. Florida Power and Light rendered its additional bill two months later. Mr. Tuch therefore did not have the opportunity to inspect or test the meter. Florida Power and Light tested the meter appropriately before it was destroyed and it was accurately registering current flow when the potential clip was closed. If this case involved questions about the accuracy of the registration on the meter which had been removed, Mr. Tuch's inability to test the meter would have seriously impaired the fairness of this proceeding. The testimony and photographic evidence, which is accepted, is that the potential clip was open, and thus the meter would register no use of current at all. Essentially the meter had been turned on and off. This tampering caused the underregistration, not inaccuracy of the meter's measurement ability. In this case, the inability to test the old meter did not prejudice Mr. Tuch.

    
    

11. Florida Power and Light is not entitled to recover $157. 88 in investigative costs. The witness proffered to testify about investigative costs was listed in interrogatories as a witness on matters of corporate policy. See Notice of Serving Answers to Interrogatories filed April 21, 1986. While it may be corporate policy to bill those who divert current for investigative charges, the exhibit purporting to set out the costs incurred in the Tuch investigation was admitted to show the corporate form for recording charges. No evidence of the charges in this specific case was admitted (Transcript 196-97). 1/

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this matter. Section 120.57(1), Florida Statutes (1985).

    
    

13. The petition to initiate formal complaint was filed by Mr. Tuch pursuant to Section 25-22.36(5), Florida Administrative Code. He disputed the assertion by Florida Power and Light that he had tampered with his electric meter and therefore was subject to back billing. The rules which control the outcome of this proceeding are Rules 25-6.104 and 25-6.105(5)(i) and (j), Florida Administrative Code. They read:

    
    

    25-6.104. Unauthorized use of energy.

    
    

    In the event unauthorized or fraud- ulent use, or meter tampering, the utility may bill the customer on a reasonable estimate of the energy used.

    
    

    25-6.015(5) ... [E]ach utility may refuse or discontinue service under the following conditions:

    1. without notice in the event of tampering with meters or other facilities furnished and owned by

       the utility;

    2. without notice in the event of unauthorized or fraudulent use of service. Whenever service is dis- continued for fraudulent use of service the utility may, before restoring service, require the customer to make at his own expense all changes in facilities or equipment necessary to eliminate illegal use and to pay an amount reasonably estimated as the loss in revenue resulting from such fraudulent use.

       
       

       These are consistent with the general duties imposed on public utilities in Section 366.03, Florida Statutes (1985), which provides in part:

       
       

       No public utility shall make

       or give any undue or unreasonable preference or advantage to any person or locality, or subject the same to any undue or unreasonable prejudice or disadvantage in any respect.

       
       

       To fail to charge those who tamper with their electric meters and receive free electric power would give those persons an unreasonable preference or advantage. Mr. Tuch relies on Rule 25-6.106, Florida Administrative Code, which allows a utility to back bill for only one year, to claim he cannot be back billed to 1982. That rule does not apply because this case does not involve a back- billing due to Florida Power and Light's mistake. Rule 25-6.106(1) specifically provides that "this rule shall not apply to underbillings provided for in Rules 25-6.103 or 25-6.104 [Unauthorized use of energy]."

       
       

14. The burden of proof in this matter is upon Florida Power and Light Company. The status quo is that Mr. Tuch has electrical service and Florida Power and Light, claiming he has tampered with his electric meter by opening the seal and opening and closing the potential clip, proposes to back bill him for service received and certain investigative costs. Although Mr. Tuch filed the complaint, which is the initial pleading described in Rule 25-22.36(2), Florida Administrative Code, the burden is on Florida Power and Light Company to prove that he did in fact tamper with his meter, and if it establishes that fact, to establish a reasonable estimate of the value of the energy Mr. Tuch received. Cf. Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 209 So.2d 412 (Fla. 4th DCA 1974)(party initiating proceeding is not necessarily party with burden of proof).

    
    

15. Florida Power and Light Company has net its burden and is entitled to receive from Mr. Tuch $1,829.57 for electric current used. If this amount is not paid, electrical services for Mr. Tuch may be discontinued pursuant to Rule 25-6.105, Florida Administrative Code.

RECOMMENDATION

It is RECOMMENDED that a final order be entered by the Public Service Commission requiring Kenneth Tuch to pay Florida Power and Light $1,829.57 for current diverted. If such payment is not made, electric service to Mr. Tuch's residence at 1924 N.E. 25th Street, Ft. Lauderdale, Florida, should be discontinued.

DONE AND ORDERED this 29th day of January, 1987, in Tallahassee, Florida

WILLIAM R. DORSEY, JR.

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 29th day of January, 1987.

ENDNOTE

1/ This witness also testified about the amount due to Florida Power and Light for the electricity diverted. Any prejudice to Mr. Tuch's presentation on that point was cured by the break in the hearing from June 24, 1986, when the testimony was offered to July 28, 1986, when the hearing reconvened. Mr. Tuch had the opportunity to investigate the testimony on the amount due between the two hearings. (Transcript 156-57). Florida Power and Light did not move to admit Exhibit 15, Current Diversion Investigative Costs Summary, for more than the limited purpose for which it had been admitted on June 24 (Transcript 196-

197) when the hearing reconvened on July 28.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0819

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Sentences 1 and 2 covered in Finding of Fact 2. Sentences 3 and 4 are rejected as irrelevant.

2. Sentences 1 and 2 covered in Finding of Fact 2. Sentences 3 and 4 rejected because regardless of the color of the seal, the seal is a Florida Power and Light seal. See Finding of Fact 5. Final sentence rejected because while no records may connect the exhibit to the Tuch meter, its presence on the meter is sufficient connection.

3. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 3 rejected as inconsistent with the more credible evidence.

4. Covered in Finding of Fact 5.

5. Rejected because the question "how the seal was tampered with" is unimportant. The seal had been tampered with.

6. Rejected for the reasons stated in 5, above.

7. Sentences 1 and 2 covered in Finding of Fact 2. Sentence 3 rejected as unnecessary.

8. Covered in Finding of Fact 3.

9. Rejected as a recitation of testimony, not a finding of fact.

10. Rejected as a recitation of testimony, not a finding of fact; moreover, contrary testimony from Mr. Vulpis has been accepted.

11. Sentence 1 covered in Finding of Fact 7. Sentence 2 is not accepted because there is no reason to believe the replacement meter was not accurate. It is reasonable to infer in the absence of countervailing evidence that a new meter is properly calibrated. Mr. Tuch introduced no evidence of any test of that meter, which was available to him, to overcome that inference.

12. Rejected because over the course of the hearing all meter readings were introduced into evidence.

13. Generally rejected as a recounting of testimony rather than findings of fact. Such findings as are appropriate on the issue of the position of the potential clip and its movement are found in Finding of Fact 4. With respect to the accuracy of the new meter, see the rulings in paragraph 11, above.

14. The significance of the inability of Mr. Tuch to test the meter removed from his residence is dealt with in Finding of Fact 9. When that meter was tested, it was tested properly. Treating the next to the last paragraph of proposed finding of fact 14 as a motion to strike the testimony of Mr. Evans, it is denied.

15. The proposals in finding of fact 15 are generally rejected because they constitute arguments rather than findings of fact. As to the use of Mr. Bateman's testimony to establish the amount of the bill, see the footnote in Finding of Fact 11. The meter readings received into evidence are found to be correct because there is no countervailing evidence. With respect to the charges for investigative costs, see also the footnote in Finding of Fact 11. Mr. Bateman's testimony concerning the reasonable estimate of the charge to be made for unmeasured electricity has been accepted in Finding of Fact 9.

16. Rejected as irrelevant. Florida Power and Light explained its method to calculate the rebilling in detail at the hearing.

17. Rejected as inconsistent with the more credible evidence.

Rulings on Proposed Findings of Fact Submitted by Respondent (Treating the proposals as if they had been serially numbered, but ending at page 7, Roman Numeral V, which begins legal argument.)

1. Covered in Finding of Fact 2.

2. Accepted in Finding of Fact 2.

3. Accepted in Finding of Fact 3.

4. Accepted in Finding of Fact 4.

5. To the extent relevant, accepted in Finding of Fact 1.

6. Rejected as argument.

7. Accepted in Finding of Fact 7.

8. Accepted in Finding of Fact 7.

9. Generally accepted in Finding of Fact 8.

10. Accepted in Finding of Fact 9.

11. Rejected because the better methodology is that discussed in Finding of Fact 10.

12. Rejected as unnecessary.

13. To the extent relevant, covered in Finding of Fact 6.

14. To the extent relevant, covered in Finding of Fact 6.

15. Covered in Conclusions of Law.

16. Covered in Finding of Fact 11.

17. Rejected as unnecessary.

18. Rejected as argument, covered in Conclusions of Law.

19. Rejected as unnecessary.

COPIES FURNISHED:

Christopher C. Cloney, Esquire

315 Southeast 7th Street, Suite 200 Ft. Lauderdale, Florida 33301

Susan Roeder Martin, Esquire Florida Power & Light Company Post Office Box 029100

Miami, Florida 33102

David Swafford, Executive Director Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301

William Bilenky, General Counsel Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301

Docket for Case No: 86-000819

Orders for Case No: 86-000819