|
State of Florida
|
Public Service Commission
Capital Circle Office Center ● 2540 Shumard
Oak Boulevard
Tallahassee, Florida 32399-0850
-M-E-M-O-R-A-N-D-U-M-
|
|
DATE:
|
July 24, 2025
|
|
TO:
|
Office of Commission Clerk (Teitzman)
|
|
FROM:
|
Office of the General Counsel (Sapoznikoff)
SMC
Division of Economics (Hampson,
Kelley) EJD
|
|
RE:
|
Docket No. 20250081-EU – Petition for
declaratory statement, or in the alternative, petition for variance from or waiver
of the individual metering requirement of Rule 25-6.049(5) and (6), F.A.C.,
by 20 North Oceanside Owner, LLC.
|
|
AGENDA:
|
08/05/25 – Regular Agenda – Decision on Declaratory Statement as
to Issue No. 1 – Proposed Agency Action as to Issue No. 2 – Participation is at the Discretion of the
Commission as to Issue No. 1 –
Interested Persons May Participate as to Issue No. 2
|
|
COMMISSIONERS ASSIGNED:
|
All Commissioners
|
|
PREHEARING OFFICER:
|
Graham
|
|
CRITICAL DATES:
|
08/21/25 (Final Order on Request
for Declaratory Statement Must be Issued by this date, pursuant to Section
120.565(3), Florida Statutes, and Request for Variance or Waiver is Deemed
Approved if Not Granted or Denied by this date, pursuant to Section
120.542(8), Florida Statutes)
|
|
SPECIAL INSTRUCTIONS:
|
None
|
|
|
|
|
Case Background
On May 23, 2025,
20 North Oceanside Owner, LLC (20 North), filed a petition for declaratory
statement (Petition), asking the Commission to declare that based on the facts
presented “20 North is not required to individually meter the 296 condo-hotel
units in Tower 2 because it meets the exceptions to the individual meter rule
found in Rule 25-6.049(5), [Florida Administrative Code (F.A.C.)].” In the
alternative, 20 North seeks a variance from or waiver of the individual
metering requirements of Rule 25-6.049, F.A.C., thereby allowing it to master-meter
the Tower 2 condo-hotel units. 20 North is in the service territory for Florida
Power & Light Company (FPL).
The
Commission rule addressing metering requirements, Rule 25-6.049, F.A.C., generally
requires individual metering of electricity use for individual occupancy units
in residential and commercial buildings. However, the rule also establishes
certain exemptions to the individual metering requirement and sets forth the
criteria for those exemptions. For ease of reference, a copy of Rule 25-6.049,
F.A.C., is appended to this recommendation as Attachment A.
20 North asserts
that although Tower 2 is a condominium, it will operate in a manner similar to
that of a resort hotel. 20 North’s Petition seeks exemption from the individual
metering requirement under either of the exceptions provided in paragraphs
(5)(d) or (5)(g) of Rule 25-6.049, F.A.C.
·
Paragraph (5)(d) of the rule indicates that
individual electric meters are not required “[f]or lodging establishments such
as hotels, motels, and similar facilities which are rented, leased, or
otherwise provided to guests by an operator providing overnight occupancy as
defined in paragraph (8)(b).”
·
Paragraph (5)(g) of the rule indicates that
individual electric meters are not required for condominiums that meet the
following criteria:
1. The
declaration of condominium requires that at least 95 percent of the units are
used solely for overnight occupancy as defined in paragraph (8)(b) of this
rule;
2. A
registration desk, lobby and central telephone switchboard are maintained; and
3. A
record is kept for each unit showing each check-in and check-out date for the
unit, and the name(s) of the individual(s) registered to occupy the unit
between each check-in and check-out date.
Paragraph (8)(b)
of Rule 25-6.049, F.A.C., defines overnight occupancy as “use of an occupancy
unit for a short term such as per day or per week where permanent residency is
not established.”
In addition, if
the development is a condominium, subsection (6) of the rule requires both an
initial and on-going annual attestations from the owner or developer (customer)
to the utility provider that:
[T]he
criteria in paragraph (5)(g) and in this subsection have been met, and that any
cost of future conversion to individual metering will be the responsibility of
the customer, consistent with subsection (7) of this rule.
Finally,
Rule 25-6.049(9)(a), F.A.C., states, in pertinent part:
Where
individual metering is not required under subsection (5) and master metering is
used in lieu thereof, reasonable apportionment methods . . . may be used by the
customer of record or the owner of such facility solely for the purpose of
allocating the cost of the electricity billed by the utility.
20 North’s Statement of
Facts
In its Petition,
20 North states that although the planned development includes two connected
towers, it only seeks the declaratory statement, or variance/waiver, for Tower
2. Tower 1 is to be developed as a residential condominium project with
individual metering, whereas Tower 2 is to be developed as a condo-hotel for
which 20 North seeks master-metering. 20 North states that ownership of both
parcels will be pursuant to Chapter 718, Florida Statutes (F.S.), which
pertains to Condominiums. However, according to 20 North, operation of Tower 2
will be pursuant to Chapter 509, F.S., which pertains to Lodging and Food
Service Establishments. According to the Petition, Tower 2 must be registered
with Department of Business Regulation as a hotel under Section 509.242(1)(a), F.S.
Because it asserts that “[t]he Florida Department of Revenue and the Department
of Business Regulation will treat Tower 2 like a commercial hotel based on its
method of operation,” 20 North seeks master-metering for Tower 2 as that is
available to “other similar resort hotels.”
20 North asserts
that the Purchase Agreement for the Tower 2 units specifies that none of the
units “may be occupied as a permanent dwelling unit or residence.” The Petition
asserts that Tower 2 is zoned for 303 units, but will only contain 296 units,
none of which are allowed to be used as a permanent residence. The Petition
further states that the owners of the Tower 2 units may not occupy their units
for more than 30 consecutive days and no more than a total of 180 days in any
consecutive 12 month period, and that the primary purpose of the Tower 2 units
is a “visitor accommodation use.” The Petition also states that the Tower 2
units will be used for “transient” occupancy.
The Petition also
states that the applicable zoning requirements for Tower 2 require it to be
managed pursuant to a unified management operation plan for rental activities. The
Petition states that the management company “will be responsible for staffing
24 hour per day operations, including front desk personnel.” According to the
Petition, the telephone service within Tower 2 will operate through a central
switchboard controlled by management. The Petition asserts that Hotel
management will also be responsible for “record keeping . . . for each unit
showing the check-in and check-out date along with the name(s) of the
individual(s) registered to occupy the unit.”
The Petition
asserts that all utilities (water, sewer, and electrical) will be billed
directly to the condominium association and paid for through assessments and
that those “costs will be apportioned as common expenses in the same manner as
other common expenses on a pro-rata share based on square footage of the unit
as compared to the total square footage of all units.”
Procedural Matters
The Petition was filed on May 23, 2025. Pursuant to
Sections 120.542 and 120.565, F.S., and Rule 28-105.0024, F.A.C., a Notice of
Declaratory Statement and a Notice of Variance or Waiver were published in the
May 29, 2025, edition of the Florida Administrative Register to inform
substantially affected persons of the Petition, and notify them of the right to
intervene or submit comments.
Pursuant to Section 120.565(3), F.S., a final order on a
request for a declaratory statement must be issued within 90 days of the filing
of the Petition. Pursuant to Section 120.542(8), F.S., a request for a variance
or waiver must be granted or denied within 90 days after receipt of the original petition, the last item of
timely requested additional material, or the petitioner’s written request to
finish processing the petition. Thus, the Commission must issue an order
on the petition for declaratory Statement, or either grant or deny the
alternative petition for a rule waiver/variance by August 21, 2025.
No one moved to intervene in this docket and no one filed
comments.
This recommendation addresses whether the Commission
should grant 20 North’s Petition for Declaratory Statement or, in the
alternative, grant the petition for variance or waiver of Rule 25-6.049, F.A.C.
The Commission has jurisdiction to consider this matter pursuant to Sections
120.542 and 120.565, and Chapter 366, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant 20 North’s Petition for
Declaratory Statement?
Recommendation:
No. The Commission should deny 20 North’s Petition
for Declaratory Statement. Under the facts presented by 20 North, Tower 2 does
not satisfy either of the applicable exceptions to the individual meter rule found
in Rule 25-6.049(5), F.A.C.
Staff Analysis:
Law Governing Petitions for Declaratory
Statement
Section 120.565,
F.S., sets forth the necessary elements of a petition for declaratory statement
and provides:
(1) Any
substantially affected person may seek a declaratory statement regarding an
agency’s opinion as to the applicability of a statutory provision, or of any
rule or order of the agency, as it applies to the petitioner’s particular set
of circumstances.
(2) The petition
seeking a declaratory statement shall state with particularity the petitioner’s
set of circumstances and shall specify the statutory provision, rule, or order
that the petitioner believes may apply to the set of circumstances.
Rule
28-105.001, F.A.C., states the purpose of a declaratory statement:
A declaratory
statement is a means for resolving a controversy or answering questions or
doubts concerning the applicability of statutory provisions, rules, or orders
over which the agency has authority. A petition for declaratory statement may
be used to resolve questions or doubts as to how the statutes, rules, or orders
may apply to the petitioner’s particular circumstances. A declaratory statement
is not the appropriate means for determining the conduct of another person.
If a petitioner meets the filing requirements provided by
Rule 28-105.002, F.A.C., an agency must issue a declaratory statement.
Rule 28-105.003, F.A.C., provides the requirements for how
agencies must dispose of declaratory statements and states that an agency may
rely on the statements of fact set out in the petition without taking any
position with regard to the validity of the facts. Staff recommends that the
Commission rely on the facts as presented by 20 North, without taking a
position with regard to the validity of the facts it presented.
20 North’s Requested
Declaratory Statement
20 North asks the Commission to issue the following
affirmative declaratory statement:
20 North is not required to individually meter the 296
condo-hotel units in Tower 2 because it meets the exceptions to the individual
meter rule found in Rule 25-6.049(5), F.A.C.
Threshold Requirements of Petition
Under Section 120.565(1)-(2), F.S., a petition must “state
with particularity the petitioner’s set of circumstances” and specify the
statute, order, or rule that the petitioner believes is applicable, as well as
show the petitioner is substantially affected. 20 North’s Petition contains
specific details about the property at issue and identifies Rule 25-6.049(5),
F.A.C., as the rule that applies to its set of circumstances. 20 North’s Petition
also alleges it is substantially affected because if it is required to
individually meter its condo-hotel units in Tower 2 it will incur 20 to 30
percent more in electric costs than what resort hotels would incur. 20 North
asserts this would place it at a competitive disadvantage as compared to other
public lodging establishments. Accordingly, 20 North meets the threshold
requirements to seek a declaratory statement.
Application of Rule 25-6.049, F.A.C.
The purpose of a declaratory statement is to address the
applicability of statutory provisions, orders, or rules of an agency to the
petitioner’s particular circumstances. A
declaratory statement enables members of the public to resolve ambiguities of
law and obtain definitive, binding advice as to the applicability of agency law
to a particular set of facts. Accepting the facts alleged by 20 North to be
true, staff does not believe that those facts entitle 20 North to the requested
declaratory statement.
Although the
Petition refers to the units in Tower 2 as a condo-hotel, that term is not used
in Rule 25-6.049, F.A.C., to reference which types of occupancy units are
subject to individual electric metering and which ones may have
master-metering. Rather, pertinent to this case, application of the exceptions
to individual metering under Rule 25-6.049(5), F.A.C., depends on whether the
property is a hotel, motel, or similar facility providing overnight occupancy, or
a condominium in which at least 95 percent of the units are used solely for
overnight occupancy, there is a central registration desk, lobby and telephone
switchboard, and records are kept showing the check-in and check-out dates for
the unit, along with the name(s) of the individual(s) registered to occupy the
units during those times. 20
North asserts it is entitled to an exemption either as a hotel (or similar
facility) or as a qualifying condominium. Integral to both exceptions is the
requirement that occupancy of the residential units be for “overnight occupancy.”
Based on the facts presented by 20 North, staff finds that the Tower 2 units
are not used for “overnight occupancy,” which is defined by paragraph (8)(b) of
the rule as “use of an occupancy unit for a short term such as per day or per
week where permanent residency is not established.”
The Petition makes several assertions that the Tower 2
units cannot be used as a permanent residence. The Petition further states that
owners of the Tower 2 units may not
occupy their units for more than 30 consecutive days and no more than a total
of 180 days in any consecutive 12 month period. With regard to the occupancy of
non-owners, the Petition and its accompanying documents use terms like “visitor
accommodation use” and “transient” occupancy. Neither of those terms are used
in Rule 25-6.049, F.A.C., and neither the Petition, its attachments, nor the
responses from 20 North define those terms nor make even a cursory assertion
that the Tower 2 units will be provided for “overnight occupancy” only. Given
that 20 North asserts it will be registered as a hotel under Chapter 509, F.S.,
staff notes that Section 509.013(4)(a)1., F.S., defines a “transient public
lodging establishment” as one is which occupancy is limited to periods of less
than which is 30 days or 1 calendar month, whichever is shorter.
The
Florida Supreme Court has explained that the “words of a governing text are of
paramount concern, and what they convey, in their context, is what the text
means.” Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022).
“Under the whole-text canon, proper interpretation requires consideration of
‘the entire text, in view of its structure and of the physical and logical
relation of its many parts.’” Id. (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts (2012)). Accordingly,
for purposes of determining whether the Commission should provide the requested
declaratory statement, staff finds that the Petition does not support the
determination that Tower 2 of 20 North meets an exception to the individual
metering requirement contained in Rule 25-6.049(5)(d) and (g), F.A.C.,
regardless of whether 20 North is a hotel (or similar facility) or a
condominium, because occupancy of Tower 2 is not limited to “overnight
occupancy.”
Moreover, under the provisions of
the rule applicable to condominiums, Rule 25-6.049(5)(g)1., F.A.C., requires
the declaration of condominium itself to state “that at least 95 percent of the
units are used solely for overnight occupancy as defined in paragraph (8)(b) of
this rule.” The Declaration of Condominium, which is attached as an exhibit to
the Petition, fails to make such an assertion. Moreover, the Declaration of
Condominium also states that “[s]ubject to applicable zoning, as it may exist
from time to time, the Unit may be used as a private temporary or permanent
residence, as such use may be limited by applicable zoning.” In addition to
limiting occupancy to “a short term such as per day or per week,” the
definition of “overnight occupancy” also precludes “permanent residency.”
The Petition
itself acknowledges that Tower 2 does not satisfy all the requirements of Rule
25-6.049(5)(g), F.A.C. The Petition alleges facts which, if true, would satisfy
prongs 2 and 3 of Rule 25-6.049(5)(g), F.A.C. (pertaining to centralized
telephone switchboard, registration desk, lobby, and check-in/check-out
records). In
describing the attributes of Tower 2, the Petition merely states, “[t]hese are part of the criteria found in the
exclusions to the individual metering requirement of Rule 25-6.049(5)(g).” (Emphasis
added.) As such, the Petition acknowledges that Tower 2 does not meet all the
criteria required to avoid individual metering.
For these reasons, staff recommends that the Commission
should deny 20 North’s Petition for Declaratory Statement. Under the facts
presented by 20 North, Tower 2 does not satisfy either of the applicable exceptions
to the individual meter rule found in Rule 25-6.049(5), F.A.C.
Issue 2:
Should the Commission grant 20 North’s alternative
Petition for Variance or Waiver?
Recommendation:
Yes. 20 North has demonstrated that the purpose of
the underlying statutes will be achieved by other means and that application of
the rule would create both a substantial hardship and be a violation of the
principles of fairness. However, should the Commission grant the waiver or
variance, 20 North should be put on notice that the waiver/variance is only
effective under the following conditions: (1) 20 North allocates the cost of
electricity for Tower 2 to the individual condominium unit owners using an
apportionment method consistent with subsection (9) of Rule 25-6.049, F.A.C.; (2)
Tower 2 of 20 North continues to operate and is licensed as a transient public
lodging facility; and (3) in the event that Tower 2 of 20 North ceases to
operate and be licensed as a transient public lodging facility such that a
conversion to individual metering is required, 20 North will be solely
responsible for the cost of such conversion, pursuant to Rule 25-6.049(7),
F.A.C.
Staff Analysis:
Law Governing Petitions for Waiver or Variance
The Legislature allows agencies to grant variances or
waivers of their rules because “[s]trict application of uniformly applicable
rule requirements can lead to unreasonable, unfair, and unintended results in
particular instances.” Section 120.542(1), F.S. Section 120.542(5), F.S., sets
forth the necessary elements of a petition for waiver or variance. Each
petition shall specify:
(a) The rule from which a variance or waiver is requested.
(b) The type of action requested.
(c) The specific facts that would justify a waiver or variance for
the petitioner.
(d) The
reason why the variance or the waiver requested would serve the purposes of the
underlying statute.
Rule 28-104.002, F.A.C., governs what a petition for
variance or waiver must include. Rule 25-6.049, F.A.C., requires individual
metering of electricity use for individual occupancy units in residential and
commercial buildings, unless they meet one of the exemptions set forth in the
rule. If granted, the rule waiver would allow 20 North to install a single
master meter to measure usage for all of the residential units in Tower 2.
Purpose of the Underlying Statutes
Pursuant to Section
120.542(5)(d), F.S., a petitioner seeking a rule waiver must demonstrate that
the purpose of the underlying statute will be or has been achieved by other
means. The underlying statutes of Rule 25-6.049, F.A.C., are Sections
366.05(1), 366.06(1), 366.81, and 366.82, F.S. Section 366.05(1), F.S., grants
the Commission the authority to prescribe rate classifications, and service
rules and regulations, to be observed by the investor-owned electric utilities.
Sections 366.81 and 366.82, F.S., are known collectively as the Florida Energy
Efficiency and Conservation Act (FEECA), and direct the Commission to adopt
goals and approve plans related to the conservation of electric energy.
The Commission
has stated that the purpose of Rule 25-6.049, F.A.C., is to implement the
Florida Energy Efficiency and Conservation Act (FEECA) and encourage customers
to conserve electricity. As this
Commission has noted, “when unit owners are responsible for paying for their
actual consumption, they are more likely to conserve to minimize their bills.” Typically,
the requirement that individual occupancy units be individually metered serves
the conservation goals of FEECA because if unit owners are responsible for
costs based on their actual electricity consumption, they are more likely to
conserve energy in order to minimize the cost of energy. However, in situations
in which the people occupying the residential units don’t see a direct
financial impact for the energy they consume, such as hotels or rental
condominium units, individual metering defeats the purpose of the statute. This
is the reason for the exceptions to individual metering contained in Rule
25-6.049, F.A.C. In such situations, the property manager, who has
responsibility for cost control, can most effectively implement conservation measures
to reduce the overall electricity consumption of the facility. 20 North has
indicated that management will ensure that the HVAC equipment is maintained to
operate a peak efficiency and that the curtains will be closed and the
thermostat set at a higher temperature when the units are unoccupied.
If master-metering
is implemented, Rule 25-6.049(9)(a), F.A.C., provides that the cost of
electricity may be allocated to individual occupancy units using “reasonable
apportionment methods.” According to the Petition, costs for electric (as well
as water and sewer) “will be apportioned as common expenses in the same manner
as other common expenses on a pro-rata share based on the square footage of the
unit as compared to the total square footage of all units.” Staff believes that
this apportionment method is reasonable and meets the purpose of Section
366.05(1), F.S.
Substantial Hardship or Violation of Principles
of Fairness
Pursuant to Section 120.542, F.S., a petition for variance
or waiver must also demonstrate that application of the rule would create a
substantial hardship or violate principles of fairness. Substantial hardship is
defined as a demonstrated economic, technological, legal or other type of
hardship to the person requesting the waiver. Principles of fairness are
violated when the literal application of a rule affects a particular person in
a manner significantly different from the way it affects other similarly
situated persons who are subject to the rule. Staff believes that 20 North has
demonstrated that when the rule is applied to it as concerns Tower 2, a substantial
hardship occurs and there is a violation of the principles of fairness.
In prescribing
fair and reasonable rates and rate classifications under Sections 366.05(1) and
366.06(1), F.S., the Commission considers, among many other things, load
characteristics and usage patterns. Differences in usage patterns and load
justify different rates between customer classes. See Florida Power Corp. v. Mayo, 203 So. 2d 614,
615 (Fla. 1967). Staff agrees with 20 North that load characteristics and usage
patterns of Tower 2 will be more like a hotel rather than a residential
condominium, and that it would be a violation of the principles of fairness to
require 20 North to individually meter Tower 2.
According to 20 North, Tower 2 must be registered with
Department of Business Regulation as a hotel under Section 509.242(1)(a), F.S. Because
it asserts that “[t]he Florida Department of Revenue and the Department of
Business Regulation will treat Tower 2 like a commercial hotel based on its
method of operation,” 20 North seeks master-metering for Tower 2 as that is
available to “other similar resort hotels.” Because motels and hotels are
exempt from the individual metering requirement under paragraph (5)(d) of Rule
25-6.049, F.A.C., they benefit from the lower electricity costs of master-metering.
20 North states that if it is required to individually meter Tower 2, it will
incur higher energy costs than its competitors. 20 North asserts that
application of the rule will cause a substantial hardship because it will place
Tower 2 of 20 North at a competitive disadvantage in regard to the motels and
hotels with which it will compete for guests. Staff believes that the application
of the rule in this instance will result in substantial economic hardship for 20
North.
Section 120.542(2), F.S., states that principles of
fairness are violated when the literal application of a rule affects a
particular person in a manner significantly different from the way it affects
other similarly situated entities who are subject to the rule. 20 North asserts
that Tower 2 will operate in a manner similar to other hotels and motels in the
area. Staff believes that applying the rule to Tower 2 of 20 North in this
particular instance will result in treatment that is disparate. Staff believes
that the different treatment of similar facilities resulting from the
application of Rule 25-6.049(6), F.A.C., to Tower 2 of 20 North constitutes a
violation of the principles of fairness as defined in Section 120.542(2), F.S.
Conclusion
Even though Tower 2 does not limit guests to “overnight occupancy,” staff
recommends that the Commission grant the waiver/variance. 20 North has
demonstrated that the purpose of the underlying statutes will be achieved by
other means, and that application of the rule would create both a substantial
hardship and be a violation of the principles of fairness. However, should the
Commission grant the waiver or variance, 20 North should be put on notice that
the waiver/variance is only effective under the following conditions: (1) 20
North allocates the cost of electricity for Tower 2 to the individual
condominium unit owners using an apportionment method consistent with
subsection (9) of Rule 25-6.049, F.A.C.; (2) Tower 2 of 20 North continues to
operate and is licensed as a transient public lodging facility; and (3) in the
event that Tower 2 of 20 North ceases to operate and be licensed as a transient
public lodging facility such that a conversion to individual metering is
required, 20 North will be solely responsible for the cost of such conversion,
pursuant to Rule 25-6.049(7), F.A.C.
Issue 3:
Should this docket be closed?
Recommendation:
Yes. With regard to the Petition for Declaratory
Statement, regardless of whether the Commission votes to grant or deny the
Petition, a final order will be issued and the docket should be closed. With
regard to the alternative Petition for Variance or Waiver, if no person whose
substantial interests are affected by the proposed agency action files a
protest within 21 days of the issuance of the order, this docket should be
closed upon the issuance of a consummating order. (Sapoznikoff)
Staff Analysis:
With regard to the Petition for Declaratory
Statement, regardless of whether the Commission votes to grant or deny the
Petition, a final order will be issued and the docket should be closed. With
regard to the alternative Petition for Variance or Waiver, if no person whose
substantial interests are affected by the proposed agency action files a
protest within 21 days of the issuance of the order, this docket should be
closed upon the issuance of a consummating order.
EXHIBIT “A”
25-6.049 Measuring
Customer Service.
(1) All energy sold to
customers shall be measured by commercially acceptable measuring devices owned
and maintained by the utility, except where it is impractical to meter loads,
such as street lighting, temporary or special installations, in which case the
consumption may be calculated, or billed on demand or connected load rate or as
provided in the utility’s filed tariff.
(2) When there is more
than one meter at a location, the metering equipment shall be so tagged or
plainly marked as to indicate the circuit metered. Where similar types of
meters record different quantities, (kilowatt-hours and reactive power, for
example), metering equipment shall be tagged or plainly marked to indicate what
the meters are recording.
(3) Meters which are not
direct reading shall have the multiplier plainly marked on the meter. All charts
taken from recording meters shall be marked with the date of the record, the
meter number, customer, and chart multiplier. The register ratio shall be
marked on all meter registers. The watt-hour constant for the meter itself
shall be placed on all watt-hour meters.
(4) Metering equipment
shall not be set “fast” or “slow” to compensate for supply transformer or line
losses.
(5) Individual electric
metering by the utility shall be required for each separate occupancy unit of
new commercial establishments, residential buildings, condominiums,
cooperatives, marinas, and trailer, mobile home and recreational vehicle parks.
However, individual metering shall not be required for any such occupancy unit
for which a construction permit was issued before, and which has received
master-metered service continuously since January 1, 1981. In addition,
individual electric meters shall not be required:
(a) In those portions of
a commercial establishment where the floor space dimensions or physical
configuration of the units are subject to alteration, as evidenced by
non-structural element partition walls, unless the utility determines that
adequate provisions can be made to modify the metering to accurately reflect
such alterations;
(b) For electricity used
in central heating, ventilating and air conditioning systems, or electric back
up service to storage heating and cooling systems;
(c) For electricity used
in specialized-use housing accommodations such as hospitals, nursing homes,
living facilities located on the same premises as, and operated in conjunction
with, a nursing home or other health care facility providing at least the same
level and types of services as a nursing home, convalescent homes, facilities
certificated under Chapter 651, F.S., college dormitories, convents, sorority
houses, fraternity houses, and similar facilities;
(d) For lodging
establishments such as hotels, motels, and similar facilities which are rented,
leased, or otherwise provided to guests by an operator providing overnight
occupancy as defined in paragraph (8)(b);
(e) For separate,
specially-designated areas for overnight occupancy, as defined in paragraph
(8)(b), at trailer, mobile home and recreational vehicle parks and marinas
where permanent residency is not established;
(f) For new and existing
time-share plans, provided that all of the occupancy units which are served by
the master meter or meters are committed to a time-share plan as defined in
Chapter 721, F.S., and none of the occupancy units are used for permanent
occupancy.
(g) For condominiums that
meet the following criteria:
1. The declaration of
condominium requires that at least 95 percent of the units are used solely for
overnight occupancy as defined in paragraph (8)(b) of this rule;
2. A registration desk,
lobby and central telephone switchboard are maintained; and
3. A record is kept for
each unit showing each check-in and check-out date for the unit, and the
name(s) of the individual(s) registered to occupy the unit between each
check-in and check-out date.
(6) Master-metered
condominiums.
(a) Initial
Qualifications – In addition to the criteria in paragraph (5)(g), in order to
initially qualify for master-metered service, the owner or developer of the
condominium, the condominium association, or the customer must attest to the
utility that the criteria in paragraph (5)(g) and in this subsection have been
met, and that any cost of future conversion to individual metering will be the
responsibility of the customer, consistent with subsection (7) of this rule.
Upon request and reasonable notice by the utility, the utility shall be allowed
to inspect the condominium to collect evidence needed to determine whether the
condominium is in compliance with this rule.
If the criteria in paragraph (5)(g) and in this subsection are not met,
then the utility shall not provide master-metered service to the
condominium.
(b) Ongoing Compliance –
The customer shall attest annually, in writing, to the utility that the
condominium meets the criteria for master metering in paragraph (5)(g). The
utility shall establish the date that annual compliance materials are due based
on its determination of the date that the criteria in paragraphs (5)(g) and
(6)(a) were initially satisfied, and shall inform the customer of that date
before the first annual notice is due. The customer shall notify the utility
within 10 days if, at any time, the condominium ceases to meet the requirements
in paragraph (5)(g).
(c) Upon request and
reasonable notice by the utility, the utility shall be allowed to inspect the
condominium to collect evidence needed to determine whether the condominium is
in compliance with this rule.
(d) Failure to Comply –
If a condominium is master metered under the exemption in this rule and
subsequently fails to meet the criteria contained in paragraph (5)(g), or the
customer fails to make the annual attestation required by paragraph (6)(b),
then the utility shall promptly notify the customer that the condominium is no
longer eligible for master-metered service. If the customer does not respond
with clear evidence to the contrary within 30 days of receiving the notice, the
customer shall individually meter the condominium units within six months
following the date on the notice. During this six month period, the utility
shall not discontinue service based on failure to comply with this rule.
Thereafter, the provisions of Rule 25-6.105, F.A.C., apply.
(7) When a structure or
building is converted from individual metering to master metering, or from
master metering to individual metering, the customer shall be responsible for
the costs incurred by the utility for the conversion. These costs shall
include, but not be limited to, any remaining undepreciated cost of any
existing distribution equipment which is removed or transferred to the ownership
of the customer, plus the cost of removal or relocation of any distribution
equipment, less the salvage value of any removed equipment.
(8) For purposes of this
rule:
(a) “Occupancy unit”
means that portion of any commercial establishment, single and multi-unit
residential building, or trailer, mobile home or recreational vehicle park, or
marina which is set apart from the rest of such facility by clearly
determinable boundaries as described in the rental, lease, or ownership
agreement for such unit.
(b) “Overnight Occupancy”
means use of an occupancy unit for a short term such as per day or per week
where permanent residency is not established.
(9)(a) Where individual
metering is not required under subsection (5) and master metering is used in
lieu thereof, reasonable apportionment methods, including sub-metering may be
used by the customer of record or the owner of such facility solely for the
purpose of allocating the cost of the electricity billed by the utility. The
term “cost” as used herein means only those charges specifically authorized by
the electric utility’s tariff, including but not limited to the customer,
energy, demand, fuel, conservation, capacity and environmental charges made by
the electric utility plus applicable taxes and fees to the customer of record
responsible for the master meter payments. The term does not include late
payment charges, returned check charges, the cost of the customer-owned
distribution system behind the master meter, the customer of record’s cost of
billing the individual units, and other such costs.
(b) Any fees or charges
collected by a customer of record for electricity billed to the customer’s
account by the utility, whether based on the use of sub-metering or any other
allocation method, shall be determined in a manner which reimburses the
customer of record for no more than the customer’s actual cost of electricity.
(c) Each utility shall
develop a standard policy governing the provisions of sub-metering as provided
for herein. Such policy shall be filed by each utility as part of its tariffs.
The policy shall have uniform application and shall be nondiscriminatory.
Rulemaking
Authority 350.127(2), 366.05(1) FS. Law Implemented 366.05(1), 366.06(1),
366.81, 366.82 FS. History–New 7-29-69, Amended 11-26-80, 12-23-82, 12-28-83,
Formerly 25-6.49, Amended 7-14-87, 10-5-88, 3-23-97, 10-10-06.