Findings Of Fact Anna Juanita and Bernard W. Mannon live together in an apartment on Madison Street in Marianna, Florida. He is 62 and she is 56 years of age. The two of them make up the household. Her health is not good, and certain respiratory problems might be alleviated by air conditioning. Mrs. Mannon has no income. Mr. Mannon has gross income of $298.40 biweekly from the hospital where he works. His own health may preclude his working there much longer. Monthly, the Mannons repay loans from their daughter ($50.00) and from a finance company, Associates Financial Services ($57.00). They also have substantial medical bills.
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
Findings Of Fact On July 17, 1981, Petitioner, Lora Henderson, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Santa Rosa County, Florida, which is part of the North Cooling Climatic Region for purpose of determining the level of assistance to be given claimants. Although the application required that applicant furnish a Medical Certification for Cooling Form, she initially failed to do so. On the same date, the Department requested the claimant furnish the omitted information no later than July 30, 1981, in order to void denial of the application. Because the Department's records indicated she did not meet the July 30 deadline, her application was denied on August 24, 1981. Applicant's household includes herself and one other person. Their total monthly countable income in July, 1981, was $265.87 which falls within acceptable income limitations prescribed by the Department. Except for the omitted form, applicant was otherwise qualified to receive $143 in cooling assistance benefits. Petitioner visited the office of Dr. Rufus Thames in Milton on the afternoon of July 29, 1981, to obtain the necessary certification on the medical form. Her visit was confirmed by a copy of the patient's medical records introduced as Petitioner's Exhibit 1. Henderson then claimed she carried the form that same afternoon in the presence of her daughter to Ken Horton, a Department caseworker employed on a temporary basis at its Milton office. Horton's position was eliminated on July 31, 1981, and he is no longer employed by the Department. He was not present at the final hearing to either confirm or deny Henderson's claim. If indeed the form was actually filed, it was done so on a timely basis; however, it was either lost or misplaced and never reached Henderson's permanent file. There was no testimony concerning the findings of the doctor relative to any "life-threatening" medical conditions that Henderson might have. After Henderson's file was transmitted from Milton to Pensacola, a review of the application indicated that it contained no medical form. For that reason, the application was denied. Respondent could neither confirm or deny Petitioner's purported filing of the form. Although the Department processed approximately 3,500 similar applications in a four-county area, including 300 in Milton alone, its Energy Program Specialist recalled only one of those being temporarily misplaced, and no documents being lost.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Lora Henderson, be given thirty days from date of this order to file a Form 137 with a designated Department employee at its Milton office. If such form indicates eligibility, her application should be granted and she be given $143 in cooling assistance benefits; otherwise the application should be denied. DONE and ENTERED this 3rd day of December, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1981. COPIES FURNISHED: Mark K. Haydu, Esquire Post Office Box 1551 Pensacola, Florida 32597 Jon W. Searcy, Esquire Department of HRS 160 Governmental Center Pensacola, Florida 32522 Mrs. Lora Henderson Post Office Box 51 Bagdad, Florida 32530
Findings Of Fact On March 11, 1982, Petitioner, Eva Cox, filed a household application for energy assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Based upon a review of the information submitted by Petitioner, the application was denied by letter dated March 23, 1982, on the ground Cox had an excessive monthly income. A subsequent oral explanation as to the reason for the denial was given Petitioner on May 11, 1982. Thereafter, Petitioner requested an administrative hearing to appeal the decision of the Department. Petitioner resides in her household with one other person. The total countable monthly income for the household is $548. This amount exceeds the monthly income limitation of $474 for households having two persons. Therefore, Cox was ineligible for assistance. Applicant did not dispute the Department's determination that her total monthly countable income exceeded acceptable income limitations prescribed by the Department. However, she contended that because of a recent heart attack which has limited her ability to work, she is in need of financial assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Eva Cox for energy assistance be DENIED. DONE and ENTERED this 2nd day of July, 1982, 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 2nd day of July, 1982. COPIES FURNISHED: Ms. Eva Cox 1601 East Alabama Street, Apt. 114 Plant City, Florida 33566 Amelia Park, Esquire Department of HRS 4000 West Buffalo Avenue Tampa, Florida 33614
Findings Of Fact The Petitioner, Jory Bricker, began using the electric utility services of the Respondent, Florida Power Corporation (FPC), at her home at 2952 Webley Drive, Largo, Florida, in approximately March, 1988. In approximately June, 1989, she had a hot tub installed. Some wiring was required to be done when the hot tub was installed, and the hot tub wiring was not done properly. It could not be determined from the evidence who did the wiring. From the time of its installation, the hot tub has been used daily. Initially, it was not on a timer, and it did not have a thermal cover. It immediately began using a great deal of additional electricity, and the Petitioner's electric bills went up accordingly. In approximately August, 1989, the Petitioner's appliances began to burn out. It was determined that a frayed FPC service drop line was the cause of the damage to the appliances. FPC repaired the drop line and reached a settlement with the Petitioner for the damages to the appliances. The Petitioner also made and was paid an insurance claim for the damages to the appliances. The Petitioner bought used appliances to replace those that had burned out. When they were installed, they were not grounded properly, causing the Petitioner and her housemate, John Wall, to receive electric shocks when they used the appliances. The Petitioner hired an electrician, who advised her of the cause of the shocks and properly grounded the appliances within the home. It is found that, once the appliances were properly grounded, the Petitioner and her housemate ceased to receive electric shocks when they used the appliances, contrary to their testimony at the hearing. In November, 1989, the Petitioner complained to the Florida Public Service Commission (PSC) regarding the amount of her electric bills. In response to the complaint, FPC conducted an inspection and recommended several energy conservation measures. The PSC notified the Petitioner that it considered the complaint to have been resolved. In September, 1990, the Petitioner made another high bill complaint to the PSC. When FPC investigated, it found that none of the energy conservation measures recommended ten months ago were being followed. Energy conservation measures were recommended again, and FPC extended the time for payment of the outstanding bills. The PSC notified the Petitioner that it also considered this complaint to have been resolved. In December, 1990, the Petitioner made another high bill complaint to the PSC. FPC verified that all FPC facilities were correct and met specifications. FPC again made energy conservation recommendations. FPC also placed a meter on the hot tub and refrigerator to ascertain how much electricity they were using. It was determined that the hot tub was using 26 kilowatt hours a day and that the refrigerator was using 5 kilowatt hours a day. The hot tub in particular was using more electricity than it should have. The two appliances contributed substantially to the Petitioner's high use of electricity. FPC recommended that the Petitioner hire an electrician to inspect for electrical problems. The Petitioner made no further complaints until April, 1992, although the electricity bills remained high (in some months exceeding the levels about which the Petitioner previously complained.) In April, 1992, the Petitioner asked FPC to conduct another energy audit. FPC complied with the request and again made energy conservation recommendations. In September, 1992, the Petitioner filed another high bill complaint with the PSC. FPC responded to the complaint and ultimately conducted an on- site test of the Petitioner's meter, which proved to be accurate. In November, 1992, the Petitioner mentioned to FPC for the first time that she was receiving electric shocks when she used her appliances. Once again, FPC advised her to hire an electrician. It is not clear whether the Petitioner was referring to past occurrences, whether she was intentionally trying to mislead FPC into thinking she was still receiving electric shocks, or whether the electric shocks were starting again. In March, 1993, the Petitioner hired an electrician, who inspected the residence for electrical problems and replaced a ground clamp on the Petitioner's side of the meter. There was no evidence that can support a finding as to when the ground clamp came loose. A loose ground clamp could increase electric bills, but only slightly. The Petitioner's bills for March through June, 1993, show a reduction, but not substantially compared with the bills for those months in prior years, and not enough to demonstrate substantial reduction from the repair of the ground clamp. As of March 12, 1993, there were still several electrical problems in the residence that could result in voltage drops, including: "flying splices," double lugging on circuit breakers, loose wiring, reversed polarity in some outlets and improper wiring of the hot tub. FPC's approved tariffs and procedures include its Requirements for Electric Service and Meter Installations, 1991 Edition (the FPC Requirements.) Section I of the FPC Requirements provides in pertinent part: Except for the installation and maintenance of its own property, Florida Power Corporation does not install or repair wiring on the customer's premises and, therefore, is not responsible for the voltage beyond the point of delivery and does not assume any responsibility for, or liability arising because of the condition of wires or apparatus on the premises of any customer beyond this point. Section III A. of the FPC Requirements, setting out the general requirements for the provision of services, provides in pertinent part: GROUNDING All services shall have a grounded neutral. Grounds shall be established as required by the "National Electrical Code" and local authority. All grounds should have (Emphasis added.) a maximum resistance of 25 ohms when measured at the point of delivery and at the meter location. Section IV A.of the FPC Requirements, setting out the general requirements for meter installations, provides in pertinent part: 8. The Company will perform routine maintenance on meter sockets and related facilities which the Company supplied to the Customer. If, however, it can reasonably be determined that the Customer has caused or is responsible for damage to the facilities, then the Customer will be solely responsible for all repairs. (Emphasis added.) Taken together, the FPC Requirements are clear that FPC's responsibity for facilities stops at the meter. FPC is not responsible for proper wiring, grounds and other related matters on the customer's side of the meter and inside the home. FPC repaired the frayed service drop wire in August, 1989, and the matter was resolved. There was no evidence from which a finding could be made that any subsequent problems were caused by or, except for the Petitioner's incorrect installation of some of the replacement appliances, even related to the frayed service drop line. There was no evidence from which a finding could be made that FPC did not meet its responsibilities under its Requirements for Electric Service and Meter Installations. Any subsequent electrical problems arose from faulty wiring or other problems on the customer's side of the meter. The Petitioner owes FPC $1,157.24 for past due electric bills. On or about May 12, 1993, the PSC sent the Petitioner a letter advising her that an interim determination had been made under F.A.C. Rule 25-22.032(10) that $619.12 of the outstanding bills was undisputed and should be paid by May 27, 1993, to avoid discontinuation of electric service. The Petitioner did not make any payment, and electric service was terminated. After FPC discontinued service, the Petitioner's housemate reconnected the electricity without FPC's authority or permission. When FPC learned that an unauthorized connection of electric service had been made and that power had been restored to the Petitioner's home without FPC's authority or permission, FPC again terminated electric service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Public Service Commission enter a final order dismissing the complaint of the Petitioner, Jory Bricker, against the Respondent, Florida Power Corporation, and upholding the validity of FPC's outstanding bill in the amount of $1,157.24 for unpaid electric services. RECOMMENDED this 13th day of January, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5713 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not proven that the settlement with FPC was only for a portion of the damages. It also does not account for the insurance claim that the Petitioner made and was paid. Otherwise, accepted and incorporated. First sentence, rejected as not proven. The rest, accepted and implicitly incorporated. Rejected in part as not proven and as contrary to facts found (in that some wiring was necessary to install the hot tub.) Otherwise, accepted and incorporated. First sentence, accepted and incorporated. Second sentence, rejected as as not proven and as contrary to facts found. Third sentence, accepted and incorporated, but there was no evidence from which it can be determined when the ground clamp came loose. "Full use of the hot tub" rejected as not proven. Otherwise, accepted but not necessary. Comparison of the April and May, 1993, bills with the bills for those months in prior years does not indicated a substantial reduction in the bills for those months in 1993. Rejected as not proven, and as contrary to facts found: (1) that the shocks were continuous through March, 1993; (2) that the Petitioner "perpetually complained" to FPC and the PSC about electric shocks; or (3) that the Petitioner was relying on FPC to discover and correct electrical problems on the Petitioner's side of the meter (instead, FPC repeatedly advised the Petitioner to hire an electrician for that purpose.) Otherwise, accepted to the extent not subordinate or unnecessary. Rejected as not proven and as contrary to the facts found that the Petitioner implemented all of the FPC's energy saving recommendations. To the contrary, the evidence indicated that most were not followed consistently or for long. First two sentences, accepted and incorporated. The rest, rejected as not proven and as contrary to the facts found. First sentence, not proven. (It would seem to depend on where the open neutral was located.) Second sentence, rejected as not proven and contrary to facts found (assuming it refers to the frayed service drop line.) Rejected as not proven and contrary to facts found. Accepted and incorporated. Accepted but unnecessary. Rejected as not proven and contrary to facts found. "Valid convictions" rejected as not proven and contrary to facts found. Otherwise, accepted and incorporated. Rejected as not proven and as contrary to facts found. (It is not clear from the evidence that the Petitioner was receiving electric shocks up to March, 1993, and the evidence was that any increase in electricity usage from a loose ground clamp would not be significant.) Respondent's Proposed Findings of Fact. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence, and to facts found, that Wall wired the hot tub. Otherwise, accepted and incorporated. 3.-33. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ted E. Karatinos, Esquire James D. Jackman, P.A. 4608 26th Street West Bradenton, Florida 34207 Jory Bricker 2952 Webley Drive Largo, Florida 34641 Rodney E. Gaddy, Esquire Corporate Counsel Florida Power Corporation P. O. Box 14042 St. Petersburg, Florida 33733-4042 Martha Carter Brown, Esquire Staff Counsel Public Service Commission 101 East Gaines Street Suite 216 Tallahassee, Florida 32399-0863 Steve Tribble Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 William D. Talbott Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0850 Rob Vandiver, Esquire General Counsel Public Service Commission Room 212 101 East Gaines Street Tallahassee, Florida 32399-0850
Findings Of Fact Quality of Service At the end of the test year (calendar year 1979), the utility provided water and sewer service to approximately 2,577 customers, most of whom reside in two mobile home parks. Of that number, seven testified at the hearing. Two were concerned with the magnitude of the increase sought by the utility, one complained of an odor emanating from the sewage treatment plant, and the remainder described the water as being discolored and having a bad taste. There were no complaints about poor water pressure or interruptions in service. At present, there are no citations or corrective orders with regard to the utility's water plant. Its sewage treatment facility is being operated pursuant to a temporary operating permit granted by the Florida Department of Environmental Regulation. The effluent from the sewage treatment facility is meeting all applicable standards. Rate Base Petitioner has proposed an average water rate base of $311,028 and a year-end sewer rate base of $426,373 (Exhibit No. 4). However, it proposes to include in water rate base additional costs associated with the construction of a water storage tank. This increases the utility's proposed average water rate base to $376,118. The Commission urges a number of adjustments to rate base which collectively have the effect of reducing the amounts proposed by the utility. These adjustments affect plant in service, construction work in progress, accumulated depreciation and working capital allowance, and should be accepted. First, a reduction in water plant and an increase in sewer plant are required to correct certain costs recorded in the wrong system account. It is also necessary to increase water plant and sewer plant to reflect the capitalization of certain costs that were improperly expensed. Second, the proposed inclusion in rate base of costs associated with the (1) automatic switching for chlorine feed and chlorine scale, (2) chlorine emergency repair kit, and (3) a 500,000 gallon concrete storage tank is improper because these expenditures are substantially beyond the scope of the test period and are not "required by (a) duly authorized governmental authority." Section 367.081(2), Florida Statutes. Third, because of the adjustment to plant in service, it is also necessary to adjust accumulated depreciation. Finally, revisions to the operation and maintenance expenses discussed hereinafter necessitate a mechanical adjustment to the utility's working capital allowance. The following schedules portray the adjusted rate bases for water and sewer operations, and a brief description of each of the adjustments made in arriving at those amounts. Ferncrest Utilities, Inc. Average Water Rate Base Year Ended December 31, 1979 COMPANY ADJUSTMENTS ADJUSTED BALANCES Utility Plant in Service $ 625,030 (1) $ 625,030 Construction Work in Progress 209,985 (200,375) (2)9,610 Accum. Depreciation (95,911) - (3) (95,911) CIAC (376,191) - (376,191) Working Capital Allowance 13,205 (244)(4) 12,961 Income Tax Lag -0- (234) (234) Adjusted Rate Base $ 376,118 $ 175,265 During the hearing, the utility revised its rate base exhibit to reflect the changes in plant in service discussed in the main body of this order (Exhibit No. 4). Accordingly, no adjustment is shown on the schedule. Reduces construction work in progress by eliminating the expected costs associated with the automatic switchings for chlorine feed and chlorine scale, chlorine emergency repair kit, and a 500,000 gallon concrete storage tank. During the hearing, the utility agreed with the change in accumulated depreciation occasioned by the revisions in plant in service in item (1)(Exhibit No. 4). Therefore, no adjustment is shown on this schedule. Restates the working capital allowance to reflect one-eighth of operation and maintenance expenses. Ferncrest Utilities, Inc. Year End Sewer Rate Base Year Ended December 31, 1979 COMPANY ADJUSTMENTS ADJUSTED BALANCES Utility Plant in Service $1,373,224 - (1) $1,373,224 Construction work in Progress 2,285 (2,285)(2) -0- Accum. Depreciation (180,902) - (180,902) CIAC (780,457) - (780,457) Working Capital Allowance 12,223 (428)(3) 11,795 Income Tax Lag -0- (603) (603) Adjusted Rate Base $ 426,373 $ 423,057 The utility revised its rate base exhibit during the hearing in accordance with the plant in service adjustments discussed above (Exhibit No. 4). Accordingly, no adjustment is reflected on the schedule. Reduces construction work in progress by eliminating those expected costs associated with the automatic switchings for chlorine feed and chlorine scale and a chlorine emergency repair kit. Restates the working capital allowance to reflect one-eighth of operation and maintenance expenses. Net Operating Income On Exhibit No. 13, the utility shows an operating loss of $39,241 for its water operations and an Operating loss of $14,857 for its sewer operations for calendar year 1979. The utility then adjusts its results of operations by including the additional revenues required to earn a fair rate of return, and additional operating and maintenance expenses that it contends should be recognized. As adjusted, Ferncrest portrays an operating income of $54,236 and $61,483 for its water and sewer operations respectively. Certain adjustments are required, however, which affect revenue, operation expense, maintenance expense, depreciation expense, taxes other than income and income taxes. Revenues must first be reduced to reflect only that amount which is being recommended hereinafter. Operation expense should be restated to (1) reflect the expenses in the proper system account, (2) show the proper accrual, (3) remove expenses that should be capitalized, (4) recognize additional expenses not reflected in test year operations, and (5) correct improper amortization periods and pro forma adjustments. Maintenance expense must necessarily be corrected to transfer out charges improperly recorded therein. Depreciation expense should be recalculated using an average depreciable base for water operations and a year-end depreciable base for sewer operations in accordance with the rate bases used above. Finally, an adjustment to gross receipts taxes and income taxes is required to conform such taxes to the appropriate amount of revenues being recommended herein. The adjusted operating incomes of the utility and a description of the adjustments made in arriving at those amounts are shown on the following schedule. FERNCREST UTILITIES, INC., Operating Income - Water Year Ended December 31, 1979 ADJUSTED COMPANY ADJUSTMENTS BALANCE Operating Revenues Operating Expenses: 178,221 (33,349) (1) $144,872 Operation $ 98,298 (2) 98,298 Maintenance 7,342 (1,957) (3) 5,385 Depreciation 3,367 - (4) 3,367 Taxes other than Income 12,211 (833) (5) 11,378 Income Taxes 2,766 (1,595) (6) 1,171 Total Operating Expenses $ 123,985 119,599 Operating Income $ 54,236 $ 25,273 Revenues are adjusted downward to reflect only that amount being recommended herein. The utility has agreed to utilize the amount of operation expenses reflected above (Exhibit No. 13) . Therefore, no adjustment is shown on the schedule. Reduces maintenance expense by eliminating the pro forma annual cost of motor maintenance, and amortizing certain repairs over a 3-year period (Exhibit No. 15, Schedule 1; Exhibit No. 17, Schedule B) Because the utility has agreed to the revision of depreciation expense stated above, the actual adjustment is not reflected on the schedule (Exhibit No. 13). Restates gross receipts taxes owed by the utility to conform with the recommended revenue increase (Exhibit No. 13) Conforms income taxes with increase in revenues. Ferncrest Utilities, Inc. Operating Income - Sewer Year Ended December 31, 1979 ADJUSTED COMPANY ADJUSTMENTS BALANCE Operating Revenues $ 181,672 (4,109) (1) $ 177,563 Operating Expenses Operation 90,312 (273) (2) 90,039 Maintenance 7,474 (3,150) (3) 4,324 Depreciation 7,478 - 7,478 Taxes other than Income 11,006 (102) (4) 11,704 Income Taxes 3,119 (105) (5) 3,014 Total Operating Expenses 120,109 116,559 Operating Income $ 61,493 $ 61 004 Adjusts revenues to reflect the actual amount being recommended heroin (Exhibit No. 13) Reduces operation expenses by using a 2-year amortization period for recalibration of a motor in lieu of charging all expenses to test year operations alone, and reclassifying STP deodorant costs to A/C 704 (Exhibit No. 15, Schedule 2). Revises maintenance expense by eliminating the pro forma annual cost of motor maintenance (Exhibit No. 17, Schedule A) Adjusts taxes other than income to reflect the appropriate amount of gross receipts taxes related to the recommended increase in revenues (Exhibit No. 13). Conforms income taxes with increase in revenues. COST OF CAPITAL The utility's application reflects it had a deficit in its equity accounts and no outstanding long-term debt as of the end of the test period. It did have approximately $600()00 in short-term debt which it characterized as "demand monies." It intends to roll over the short-term debt by borrowing $600,000 from The Dania Bank at 14 percent interest rate. The utility's capital structure would then consist of 100 percent debt at a cost rate of 14 percent. It was this return that was initially used by the utility in developing its revenue requirements. However, Commission approval is required in order to consummate that loan agreement. Such approval was denied by Order No. 9539, dated September 15, 19-30, in Docket No. 800577-US. On reconsideration the Commission approved the application by Order No. 9665, dated November 26, 1900, provided the utility use $120,000 of the proceeds as cumulative preferred stock. Accordingly, the pro forma capital structure will consist of 16.65 percent equity and 83.15 percent long term debt, By agreement of the parties, a cost rate of 14 percent should be assigned to the debt component and a 16 percent cost rate assigned to equity. The overall resulting cost of capital is 14.42 percent, and that rate should be used in determining the utility's revenue requirements. REVENUE REQUIREMENTS Given the above cost of capital, a grant of $68,540 in additional annual water revenues and $83,663 in additional annual sewer revenues should enable Ferncrest to earn a fair return on its utility operations. RATE STRUCTURE Residential water customers are now assessed a minimum monthly charge which includes a minimum number of gallons and a one-sept excess rate over that minimum gallonage. A declining block type of rate structure is used for general service water customers. Residential sewer customers with 5/8" x 3/4" meters pay a flat rate each month irrespective of usage, while those with larger meter sizes have the same structure as do residential water customers. General service sewer rates are based upon a declining block rate structure. The base facilities charge advocated by the Commission is superior to the rate designs presently used. Under this type of structure, a minimum charge will be assessed to recover the fixed or base costs of providing service, such as depreciation, taxes and a portion of billing and collecting expenses. Thereafter, a variable charge will be made for the gallons actually consumed. Because this type of rate structure offers greater control to the customer as to the amount of his bill, and allocates costs in a more equitable manner, it should be adopted. During the test year, a $5.50 fee was collected from approximately 50 customers per month who did not pay their bills in a timely fashion. This revenue ($3,300 on an annual basis) should be treated as miscellaneous revenue in designing the new rates. The utility reguests approval of a new tariff provision that governs the use of oversized lines and facilities constructed for developers (Exhibit No. 10) This provision is necessary in order to prescribe the deposit requirements for main extensions, and should be approved. The utility owns and operates a sewage collection and sewage treatment system which provides sewage treatment and disposal services to an adjacent travel park. As a result of this discharge, Ferncrest incurs chemical costs that exceed its applicable tariff rates. It proposes to amend its tariff to permit the recovery of such costs from the travel park (Exhibit No. 1) . Without this provision, the general body of ratepayers would be required to subsidize a portion of the operations. Accordingly, it should be accepted. The Commission proposes that language be added to the tariff which states: "During the period that service is not being furnished to the premises, a monthly standby charge equivalent to the base facility charge will be made. If service is terminated and resumed at the same address to the same customer within twelve months from the date of termination, an amount equal to the base facility charge for the period of the service termination will be collected as a condition precedent to the restoration of service." This change is necessary in order for the utility to recoup the fixed costs incurred in maintaining service to the customers, and it should be incorporated into the tariff. Finally, because an average rate base has been used for water operations and a year-end rate base for sewer operations, rate allocations for the systems should be based upon average and year-end customers and consumption respectively.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Ferncrest Utilities, Inc. be granted in part and that the utility be authorized to file new tariffs to be approved by the Florida Public Service Commission that will generate $68,540 and $83,663 in additional annual gross revenues for the utility's water and sewer operations. It is further RECOMMENDED that the utility file appropriate tariff sheets in conformity with the Rate Structure portion of this Order. It is further RECOMMENDED that the bond or letter of credit filed by the utility be returned for cancellation. This Recommended Order entered on this 12th day of December, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1980. COPIES FURNISHED: R.M.C. Rose, Esquire Suite 103, 1020 E. Lafayette Street Tallahassee, Florida 32301 Jerome L. Hall, Esquire Suite 304, 200 S.E. 6th Street Fort Lauderdale, Florida 33301 Marta M. Crowley, Esquire 101 East Gaines Street Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual amounting to conduct unbecoming an ECUA employee; theft; and violation of ECUA rules or policies concerning outside employment, by allegedly securing outside employment without completing a proper form and receiving advance approval for such outside employment.
Findings Of Fact The Petitioner Emerald Coast Utilities Authority (formerly Escambia County Utilities Authority) is an Agency of local government established pursuant to an enabling act of the Florida Legislature at Chapter 81-376 Laws of Florida, as amended. It is a Regional Water Supply Authority for purposes of Sections 163.01 and 373.1962, Florida Statutes (2006). It is thus given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water utility service. It is authorized in that Act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That Manual was adopted in accordance with Part 3, Chapter 112, Florida Statutes. The Respondent, at times pertinent hereto, was a utility service technician employed by the ECUA. During his tenure with the ECUA he worked for a number of different supervisors and essentially every district of the ECUA's service area. On April 1, 2006, the Respondent, John Crosby and his wife Patricia Crosby, took title by deed to residential property at 319 West Clay Street, in Pensacola, Florida. They begin renovating that house located at that address for use as a residence. Sometime during the next several months, either because work was being performed on the plumbing or because of inability to pay the water bill, the Respondent had the water service temporarily stopped. The account remained open, however, and was not closed or inactivated on the records of the ECUA. There was an amount billed and outstanding which was unpaid. On or about November 28, 2006, due to the unpaid water bill becoming significantly delinquent, a "cut-off order" to stop water service to the address at 319 West Clay Street was issued and an employee of the ECUA, Donald George, was sent to that address to cut-off the water service. When Mr. George went to 319 West Clay Street and opened the meter box, he saw a "straight pipe" device installed in the meter box and connected to the water line from the street to the house. This straight pipe, thus connected, had the effect of bypassing the water meter so that any water used at that address or residence would not be registered on the water meter and, therefore, it would be impossible to bill for that water. Mr. George called his supervisor, Joe Creary, and asked for instructions concerning this situation. Mr. Creary ordered him to remove the water meter and leave the premises. The next day he was sent back to those premises to turn the water off and to take the straight pipe out of the water line and utility box. He did so and gave the straight pipe device to Mr. Creary. Joel Roberts does Risk Management investigations, as well as performing as a work place Safety and Training Specialist for the ECUA. He received a report regarding the use of the straight pipe at 319 West Clay Street from Mr. Creary. He went to that address and observed the straight pipe installed in the water meter box in the water line to the house at that address and took pictures of it and the residence. He prepared an incident report and then made an investigation to establish who the last customer of record was. The last customer of record was the Respondent, John Crosby, who was still a customer of record on November 28, 2006, when the straight pipe was discovered. The photos of the straight pipe installed were taken November 29, 2006, before it was removed by Mr. George. The Respondent acknowledged that he had a straight pipe device in his possession. He kept it in his personal tool box. He maintained that he used it for making emergency service calls in the area near his home, using his own personal vehicle. He stated during the course of the investigation that he did not know how his straight pipe device became installed at the meter box at the subject property. He speculated that someone was trying to cast him in a bad light or playing a joke possibly, but he did not know who could have done it. During the investigatory phase of this proceeding, he acknowledged that the straight pipe device was his own. Later, he changed his story, to the effect that although he possessed a straight pipe device kept in his personal tool box, that the one placed in the meter box on his water line was not the same one. He maintained that later contention through his testimony at hearing. Several of the ECUA regional supervisors testified, essentially all of whom who had previously supervised the Respondent. Uniformly they established that there was no policy which permitted employees, such as the Respondent, to use their personal vehicles to make service calls after regular working hours or otherwise. They also established that there was no policy which allowed employees to keep or maintain company equipment in their personal possession away from the employment premises of the ECUA as, for instance, a straight pipe device such as the Respondent had possessed at times pertinent to this proceeding. During a February 9th, 2007, hearing conducted by the Petitioner, the Respondent denied placing the straight pipe in the meter box and denied knowledge of who may have done so. He did admit that the straight pipe was property of ECUA which he had previously used in the performance of official duties after hours when responding to "dirty water complaints." He admitted that the straight pipe, ECUA property, had been kept in his personal tool box, but later he changed his story to say that the straight pipe in the meter box was not his own because he had since found his own straight pipe device in another tool box. The fact remains, however, that the Respondent has had difficulty in his ability to keep his water service account current for the above address, and there is a delinquent outstanding balance on that account. The Respondent was the only person who could have benefited from installing the straight pipe in place of his water meter in order to obtain water free of charge, which he did. While it is possible that another person installed the straight pipe in place of the Respondent's water meter and that the testimony of the Respondent's fellow employees is untruthful, the preponderant, persuasive evidence reflects that the Respondent had the greatest motive and the best opportunity to install the straight pipe device and to thus wrongfully obtain free water service at his property. His explanations of how the straight pipe device might have been theoretically placed by some unidentified third party is self-serving testimony. It is testimony which defies logic and which is out- weighed by that of his co-workers to the contrary. The Respondent's testimony in these particulars is thus discounted and not accepted because of insufficient credibility. It has thus been established by preponderant, persuasive evidence that the Respondent is the party who installed the straight pipe device in the water meter box at the property at 319 West Clay Street, Pensacola, Florida, in order to divert un-metered water to the use of persons at that property which belonged to the ECUA. Such water has not been paid for in accordance with the approved rate structure of the ECUA for metered water. The testimony of Tina Shelton establishes that the Petitioner has adopted a code of ethics and a body of personal rules and regulations. These are incorporated in its Human Resources Policy Manual. She established that the current Manual is supplied to all employees; and also established, through Petitioner's Exhibit 11 and her testimony, that the Respondent received the Manual on July 20, 1999. She also established that the Respondent's outside employment with Tom Thumbs Stores, Inc., has not been the subject of any approval form submitted by the Respondent. She established that outside employment had not been approved by the Petitioner and that therefore the Respondent has violated Section A-9(5), of the referenced manual concerning outside employment.
Findings Of Fact Petitioner, Harry M. Noland, Jr., learned of the low income energy assistance program through a notice received with his telephone bill. That program is administered by respondent, Department of Health and Rehabilitative Services (HRS). On December 6, 1983 Noland filled out an application for low income energy assistance at the Cocoa office of HRS. He did so after being advised by HRS personnel that he was qualified to do so. The application indicated that Noland resided with his wife at 3915 Indian River Drive, Cocoa, Florida. It also reflected that he and his wife had no income whatsoever at the time the application was filed, but that he had applied for food stamps. The application was reviewed by a Ms. J. Bunch, an HRS temporary worker, who sent Noland a "request for information" on December 6, 1983. It read as follows: Needed is your income for the month of December, 1983. If you receives (sic) Social Security or SSI a letter from the Social Security office is needed, if you are working a verification of income form is enclosed to be filled out by employer and return it to this office. If you are unemployed a statement is needed explaining how you (are) paying expenses. The statement has to (be) signed and dated and (send) it to this office. The notice stated that the above information had to be brought or mailed to the office no later than December 20, 1983 or the application would be denied. Noland received the above notice and on December 15 prepared the following written reply: This is to verify that I have been unemployed since September 30, 1983, and presently have no prospects for employment. He hand-delivered his reply to Ms. Bunch the same day. She asked how he was paying his current expenses, and Noland told her he had no funds and was therefore unable to pay any current bills and expenses. Bunch accepted this oral reply, told Noland it was "okay", and gave him the impression that no further information was needed to comply with the notice mailed on December 6. In December, 1983 HRS policy was for the program workers to make a written notation in an applicant's file when any clarifying information was obtained by telephone or when the applicant (Noland) was personally interviewed. For some unexplained reason, no written notation was made by Bunch in Noland's file. Noland was not told by Bunch that his application was still incomplete, and she did not request him to put his oral reply in writing. Had she done so, Noland would have provided further written information on a timely basis. Except for the "incomplete" written reply, Noland otherwise qualified for assistance. At a later undisclosed date, Noland's application was reviewed and found to be deficient because he had not fully responded to the "request for information". Thereafter, it sent a notice of denial to Noland on February 15, 1984. That prompted the instant proceeding. HRS processed some 3,287 applications at its Cocoa office between November 1 and December 16, 1983, the last day for filing the same. Only three temporary workers were employed to perform this task. The HRS representative testified that workers were extremely busy during the time Noland visited the Cocoa office due to the manpower shortage and time constraints imposed on that office.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Harry M. Noland, Jr. for low income energy assistance be approved and that he be given the appropriate benefits under Rule 10C-29.19, Florida Administrative Code. DONE and ENTERED this 3rd day of April, 1984, 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 3rd day of April, 1984. COPIES FURNISHED: Mr. Harry M. Noland, Jr. 3915 Indiana River Drive Cocoa, Florida 32922 Gary L. Clark, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 David H. Pingree, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent has correctly billed Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986.
Findings Of Fact Respondent's meter #5C50349 was installed at 11145 N.W. 3rd Street, Miami, Florida, in February of 1969. Petitioner connected electrical service at that address on March 18, 1977, when he, his wife, and his daughter moved into a mobile home located at that address. They continued to reside there until approximately January 31, 1987. Petitioner was the customer of record during that time period and benefitted from the use of electricity at that address. On September 30, 1986, Kevin Burke, a meter man employed by Respondent, inspected meter #5C50349 at Petitioner's residence. His physical inspection revealed that there were drag marks on the meter disc and that the disc had been lowered. Drag marks and a lowered disc indicate that energy consumption is not being accurately registered on the meter. In addition, the customer's air conditioner was on, but the disc was not rotating. It was clear to Burke that the customer's meter had been physically altered. He replaced the tampered meter with a new meter on that same date. He carefully positioned the tampered meter in a foam-bottom meter can container and transported it to Respondent's storage room for safekeeping. The physical alterations to the meter were not, and could not have been, caused by improper handling by Burke. On November 18, 1986, Petitioner's tampered meter was tested by Respondent's employee Emory Curry. He performed a physical inspection of the meter which revealed that the inner canopy seal had possibly been glued back together, the bearings had been tampered with, the disc had been lowered, and drag marks appeared on the bottom of the disc. Curry then performed a watt-hour test. The full load portion of the test registered only 41.4%, and the light load registered 0. Each test should have resulted in a reading of 100%, plus or minus 2%. The mathematical weighted average for Petitioner's meter was 33.1%. This means that only 33.1% of the electricity actually used in the Taboada household was being recorded on the meter. In effect, Petitioner was not being charged for 66.9% of the energy being consumed at the household. Respondent verifies the accuracy of its watt-hour test weekly in accordance with industry standards. The watt-hour test has been sanctioned by the Florida Public Service Commission. A veri-board test was also performed on the meter. The results of that test were 20 over 8. This means that Petitioner's meter was only registering 8 kw when 20 kw was placed on the meter. The meter should have registered 20 kw. Using the weighted average registration of 33.1% from the meter test card, Respondent backbilled Petitioner's account for the 66.9% of the energy consumed that the meter was not registering. The as-billed amount was subtracted from the computer-generated rebilled amount to determine the amount to backbill. The rebilled amount was determined by a computer program which takes into account the varying franchise fees, fuel adjustment rates, taxes, and other rates in effect for each month of the rebilled period. Based upon that computer program, Respondent backbilled Petitioner for an additional 61,379 kilowatt hours consumed. Respondent's methodology for calculating rebillings is a reasonable estimate for determining the amount of energy consumed where there has been meter tampering. Petitioner's account was backbilled $5,070.51 from January, 1983, to September 30, 1986, the date on which the new meter was set. The January, 1983, date was selected because Respondent had not retained Petitioner's billing records prior to January, 1983. Since Respondent's investigation did not determine whether Petitioner physically altered the meter or whether it was altered by someone else, Respondent treated Petitioner's account as an inherited diversion. Accordingly, Respondent seeks no relief from Petitioner other than payment for the estimated electrical usage. A comparison of Petitioner's bills after the new meter was set on September 30, 1986, with past bills shows that Petitioner's electric consumption almost doubled. Since electrical usage varies throughout the year, a comparison is done by comparing the same month for consecutive years. For example, January bills are compared to January bills, and February bills are compared to other February bills. A valid comparison cannot be done by comparing November to December and December to January. In response to Petitioner's complaint that his tampered meter had been accurate but the new replacement meter was running fast, Respondent removed the replacement meter, replacing it with yet another. The replacement meter was then tested by Respondent and was determined to be 100% accurate. Although Petitioner had some gas appliances, the electrical appliances which existed in his mobile home were capable of consuming the kilowatt hours per month which were rebilled by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Respondent has correctly backbilled Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986. DONE and ENTERED this 22nd day of July, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposals labeled introduction and evidence #3 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposal labeled evidence #1 has been rejected as not being supported by any evidence in this cause. Petitioner's proposal labeled evidence #2 has been rejected as not constituting a finding of fact but rather as constituting argument. Petitioner's proposal labeled evidence #4 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1-19 and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 20 and 21 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 23 and 24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. COPIES FURNISHED: Mr. Arturo Taboada 981 S.W. 137th Court Miami, Florida 33184 Steve Feldman, Esquire Florida Power & Light Company Post Office Box 029100 Miami, Florida 33102-9100 Robert V. Elias, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building - Room 226 Tallahassee, Florida 32399-0863
Findings Of Fact The Petitioner completed an application for home energy assistance benefits in mid-November, 1983. The application was not submitted to the Respondent until December 12, 1983, but the information contained in the application was correct as of the date the Petitioner signed it, November 10, 1983. Shortly after completing the application, the petitioner was laid-off from his employment with McDowell Concrete. Specifically, Petitioner was unemployed from the end of November until the end of January, 1984. In December, 1983 Petitioner applied for and received food stamps and he began receiving unemployment benefits. On December 22, 1983, Respondent mailed a letter to Petitioner requesting income verification. However, the Petitioner and his family went out-of-state for the Christmas Holidays, departing approximately December 23, 1983 and returning approximately December 31, 1983. During this time period, mail was delivered to Petitioner's residence and was allowed to accumulate in the mailbox. Petitioner denies ever having received the letter which was admitted as Respondent's Exhibit 1. Additionally, Respondent presented evidence that the usual practice of the agency is to mail such letters in envelopes with returned addresses, but Respondent was unable to present any direct evidence that the letter requesting income verification was ever actually mailed to Petitioner. The HRS worksheet which was submitted with the Petition for Hearing further fails to indicate any other attempts to contact the Petitioner prior to denial of benefits. In fact, the HRS office in Fort Walton Beach, which accepted the application from Petitioner, was only a temporary office and was closed on December 23, 1983. Because Petitioner did not supply income verification by January 5, 1984, his application was denied. Petitioner was notified of the denial in February, 1984, and immediately wrote to the Respondent, questioning the denial. See Respondent's Exhibit 2. The income verification which Respondent sought had in fact been supplied to another office of Respondent in December, 1983, when Petitioner's household qualified for food stamps. As indicated on the application, the Petitioner authorized the Respondent to use the records from any other HRS program to determine eligibility for home energy assistance. Had Respondent checked its computer prior to denying this benefit, Respondent would have determined that the Williams household was eligible for home energy assistance based on a zero income for a family of four.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, and the candor and demeanor of the witnesses, it is, hereby RECOMMENDED that Petitioner, Nathaniel Williams, be declared eligible for participation in the Low Income Energy Assistance Program and that the appropriate benefits for which he is financially entitled be awarded to him. DONE and ENTERED this 5th day of April, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5 day of April, 1984. COPIES FURNISHED: Nathaniel Williams 116 Shell Avenue Fort Walton Beach, Florida 32548 Maureen McGill, Esquire District I Legal Counsel Department of Health and Rehabilitative Services Post Office Box 12836 Pensacola, Florida 32576 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
