STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK RUBENFELD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2226

) FLORIDA POWER & LIGHT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 25, 1986, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Jack Rubenfeld, pro se

10466 Sunrise Lake Boulevard Building 220, Apartment 201

Sunrise, Florida 33322

For Respondent: Susan Roeder Martin, Esquire

Post Office Box 029100 Miami, Florida 33102

BACKGROUND

This matter arose on March 3, 1986, when petitioner, Jack Rubenfeld, requested a formal hearing (by letter) to contest an electric bill rendered by respondent, Florida Power and Light Company (FPL). The electric bill related to service rendered during the period from July 22, 1985 through September 20, 1985. According to his letter, Rubenfeld contended it was "absolutely impossible" to use the amount of electricity reflected on the bill, and that there was "something very wrong" in the calculations. The letter was filed with the Florida Public Service Commission, the agency that regulates respondent's rates and charges.

The matter was referred to the Division of Administrative Hearings by the agency on June 19, 1986, with a request that a Hearing Officer be assigned to conduct a formal hearing. By Notice of Hearing dated July 17, 1986, the final hearing was scheduled on August 25, 1986, in Fort Lauderdale, Florida.

At final hearing, petitioner testified on his own behalf and offered petitioner's exhibit 1 which was received into evidence. Respondent presented the testimony of Al Montgomery, district general manager for the central Broward district of FPL, and offered respondent's exhibits 1-6. All were received into evidence. A ruling on respondent's motion to dismiss was reserved and will be dealt with in the conclusions of law portion of this order.

The transcript of hearing was filed on September 26, 1986. 1/ Proposed findings of fact and conclusions of law were filed by respondent on September 25, 1986. A ruling on each finding has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent correctly calculated the charges on petitioner's electric bill for the period July 22 through September 20, 1985.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Jack Rubenfeld, resides at Apartment 201, Building 220, 10466 Sunrise Lake Boulevard, Sunrise, Florida. He leases the apartment from Sol Berman, who is the owner of the apartment. Berman is the person who made application for electric service at Apartment 201 with respondent, Florida Power and Light Company (FPL), and all electric bills are sent in Berman's name to the Sunrise address. However, under the Berman-Rubenfeld lease, Rubenfeld is required to pay all electric bills for service rendered by FPL to the apartment, and has done so since moving into the apartment in January, 1985.

   
   

2. FPL is subject to the regulatory jurisdiction of the Florida Public Service Commission (FPSC or agency). As such, it is required to file a tariff with the agency setting forth its approved rates and charges, and pertinent regulations governing election service. Paragraph 7.3 of FPL Tariff Sheet 6.060 provides that:

   
   

   When service used is measured by meters, the company's accounts thereof shall be accepted and received at all times, places and counts as prima facie evidence of the quantity of electricity used by the customer unless it is established that the meter is not accurate within the limits specified by the commission.

   
   

3. For the first seven months of 1985, Rubenfeld received bills from FPL reflecting the following meter readings, kilowatt hours (KWH) and charges:

only occupants of the apartment, left the State to visit New York City. While

he was gone, he left the central air-conditioning unit on at 80 degrees, and his dehumidifier unit at an undisclosed setting. It is not known when Rubenfeld returned to Florida.

1. On or about August 21, 1985, Rubenfeld's meter was read by an FPL meter reader who recorded a meter reading of 11,418 KWH and consumption during the prior thirty days of 216 KWH. A bill for $25.54 was thereafter sent to Rubenfeld who paid it on August 26, 1985. However, a subsequent examination of Rubenfeld's account, as discussed hereinafter, led FPL to believe that the meter reader misread a "1" for a "2" on the meter, and the correct meter reading should have been 12,418 (and not 11,418), or 1,000 KWH more than Rubenfeld's bill reflected. According to FPL testimony, such an error is not an unusual occurrence in its business.

   
   

2. On or about September 20, 1985, a meter reader checked Rubenfeld's meter and noted a reading of 13,463, or a consumption of 2,045 K since the meter was last read on August 21. This equated to a bill of $201.12 for the thirty day consumption period. It is this bill that is in dispute.

   
   

3. At the same time, FPL accounting personnel noted that Rubenfeld's consumption on the September 20 reading was outside the normal range and accordingly directed that Rubenfeld's meter be reread on September 30 to verify the accuracy of the September 20 reading. The check reading found the earlier reading to be correct. The bill was then mailed to Rubenfeld who understandably became irate and questioned its accuracy. After Rubenfeld complained to FPL personnel, a second check reading was performed on October 8, and a third on October 14. In addition, at Rubenfeld's request, FPL removed Rubenfeld's meter for testing on October 21 and found it to be within allowable guidelines set forth in Rule 25-6.52, Florida Administrative Code.

   
   

4. The three check readings made on September 30, October 8 and October 14 were also used as a cross-check to determine whether Rubenfeld's consumption during that period of time was comparable to what he had supposedly used during August and September. The check reading on September 30, or ten days after the meter was last read on September 20, revealed consumption of 354 KWH during the ten day period, or 35.4 KWH per day. The second check reading on October 8 revealed that during the preceding eight day period, Rubenfeld had used 241 KWH, or 30.1 KWH per day. The final check reading on October 14 reflected that Rubenfeld has used 232 KWH over the preceding six days, or 38.6 KWH per day. By annualizing those amounts over a full thirty day period, which is comparable to the billing cycle, Rubenfeld's monthly consumption would have been approximately 1062, 903 and 1158 KWH, respectively, based upon his consumption during that twenty-four day period.

   
   

5. Based upon the above checks and testing, FPL concluded that the meter reader had erred on the August 21 reading, and substantially understated Rubenfeld's actual consumption on that bill. However, in an effort to give Rubenfeld the benefit of the lower cost per KWH charged on the first 750 KWH used by a customer during each billing cycle, FPL rebilled the account over a two month period, thereby spreading the high consumption over two billing periods.

   
   

6. Rubenfeld contended that he could not have used around 1000 KWH per month during July-August and August-September, particularly since he gas gone during a part of that time. However, he conceded he left two major appliances (air- conditioner and dehumidifier) operating while he was absent from the

   state, and uncontradicted testimony established that the apartment unit and appliances could have easily used the consumption in question.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

8. Requiring resolution at the outset is whether Rubenfeld has standing to contest the electric bill. The issue arose when FPL filed a motion to dismiss Rubenfeld's "petition for hearing" (letter) alleging that Berman, and not Rubenfeld, is FPL's customer of record, and that only a customer of record has standing to challenge the accuracy of a bill. To demonstrate standing to bring this action, Rubenfeld must, of course, prove that his substantial interests are affected in this proceeding. Subsection 120.57(1), Florida Statutes (1985). However, to gain access to a 120.57(1) proceeding, a person may also become a party by virtue of an "agency regulation" allowing him to do so. See, Subsection 120.42(11)(b), Florida Statutes (1985). The issue will be considered within this framework.

   
   

9. The record reveals that Rubenfeld has a written lease with Berman, which requires that Rubenfeld assume responsibility for payment of all electric bills rendered by FPL to Berman's apartment. Should he not pay the bill, the electricity will be cut off, and Rubenfeld will be without one of the practical necessities of life. FPL argues that this is immaterial, and that Rule 25- 6.03(2), Florida Administrative Code, is controlling. That rule defines a customer as follows:

   
   

   (2) "Customer". Any person . . . who makes application for and is supplied with electric service by the utility for its ultimate use and not use by, or through any other person or entity unless specifically authorized by the commission.

   
   

   Rule 25-6.04, Florida Administrative Code, is also relevant and provides as follows:

   
   

   In the event of any dispute involving the interpretation of any of these rules and regulations, any party in interest may refer the matter to the Commission for adjudication. (Emphasis added.)

   
   

   Under the terms of Rule 25-6.03(2), Rubenfeld is obviously not a "customer" of FPL. However, Rule 25-6.04 is not limited to customers, and allows a "party in interest" to seek adjudication of disputes involving PSC rules and regulations. Here Rubenfeld questions the validity of certain electric charges and whether they were properly assessed under the utility's tariff, a matter clearly involving an interpretation of agency rules and regulations. Therefore, Rubenfeld is entitled to access in a formal proceeding if he can demonstrate he is a "party in interest" in a dispute over an interpretation of agency regulations. Because he is legally obligated under the terms of his lease to pay all electric bills rendered to the premises, and to his detriment is subject to termination of service if he fails to do so, it is concluded his substantial

   interests are affected by this proceeding. Accordingly, he has standing to request a hearing. 2/ The motion to dismiss is therefore denied.

   
   

10. In this proceeding, the undersigned, over objection by FPL, has placed the burden on the utility to go forward initially and make a prima facie case as to the accuracy of the rendered bills. This is because utility personnel have read the meter, calculated the charges under FPL's tariff, and then rendered a bill to the user, all matters to which the utility (and not the customer) has special access. However, the establishment of a prima facie case is not difficult, for Paragraph 7.3 of FPL's Tariff Sheet 6.060 provides that:

    
    

    When service used is measured by meters, the company's accounts thereof shall be accepted and received at all times, places and counts as prima facie evidence of the quantity of electricity used by the customer unless it is established that the meter is not accurate within the limits specified by the commission.

    
    

    The evidence will accordingly be viewed in this context.

    
    

11. The evidence reflects that FPL, through meter readings, check readings and the meter test report, clearly established that Rubenfeld's bill for electric service in the amount of $201.00 was proper and in accordance with its tariff. This was not credibly contradicted. Accordingly, it is concluded that the bill was properly assessed and should be paid by Rubenfeld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a Final Order be entered finding that the electric bill in the amount of $201.00 was properly assessed and that it be paid by petitioner.

DONE AND ORDERED this 15th day of October, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 15th day of October, 1986.

ENDNOTES

1/ The transcript of hearing was filed with the agency on September 15, 1986, but was not forwarded to the undersigned until September 26, 1986.

2/ It is noted that even though Rubenfeld is not a "customer", FPL nonetheless investigated his complaint and even tested his meter, remedies supposedly available only to Berman under Rules 25-6.94 and 25-6.59, Florida Administrative Code, respectively.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2226 RESPONDENT:

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2.

3. Partially covered in Findings of Fact 5-8.

4. Covered in Finding of Fact 7.

5. Covered in Finding of Fact 7.

6. Covered in Finding of Fact 10.

COPIES FURNISHED:

Mr. Jack Rubenfeld

10466 Sunrise Lake Boulevard Building 220, Apartment 201

Sunrise, Florida 33322

Susan Roeder Martin, Esquire Post Office Box 029100 Miami, Florida 33102

M. Robert Christ, Esquire

101 East Gaines Street Tallahassee, Florida 32301-8153

Steve Tribble, Clerk

Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301-8153

David Swafford Executive Director

Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301-8153

William Bilenky General Counsel

Florida Public Service Commission

101 East Gaines Street Tallahassee, Florida 32301-8153

Docket for Case No: 86-002226

Orders for Case No: 86-002226