Discussion
of Issues
Issue 1:
Should the Commission grant the Office of Public
Counsel’s Request for Oral Argument?
Recommendation:
No. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and rule on the Motion for
Reconsideration. However, if the Commission wants to exercise its discretion to
hear oral argument, staff recommends that 5 minutes per side is sufficient.
(Thompson, Crawford)
Staff Analysis:
Law
Rule 25-22.0022(1), F.A.C., allows a party to request oral
argument before the Commission for any dispositive motion (such as motions for
reconsideration) by filing a separate written pleading filed concurrently with
the motion on which argument is requested, and stating with particularity why
oral argument would aid the Commission. Granting or denying oral argument is
within the sole discretion of the Commission under Rule 25-22.0022(3), F.A.C.
Positions of the Parties
OPC asserts that this case represents the first time in
recent memory that standing has been considered in depth through a bifurcated
process, and requests the opportunity to provide details, context and argument
concerning this issue through oral argument.
FIPUG counters that OPC’s Request for Oral Argument fails
to detail how oral argument would aid the Commission, noting that the issues
presented in OPC’s Motion for Reconsideration are not novel or uniquely
complex, nor do they fall outside the Commission’s ordinary expertise.
Analysis and Conclusion
Granting or denying oral argument is within the sole
discretion of the Commission. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and decide the Motion for
Reconsideration. The movants have not shown with particularity a reason why
oral argument would assist the Commission in understanding and evaluating the
issues to be decided. Staff therefore recommends the Request for Oral Argument
be denied. However, if the Commission exercises its discretion to hear oral
argument, staff recommends that 5 minutes per side is sufficient for oral
argument.
Issue 2:
Should the Commission grant the Office of Public
Counsel’s Motion for Reconsideration?
Recommendation:
No. The motion for reconsideration should be denied
because it fails to raise a point of fact or law that the Prehearing Officer
overlooked or failed to consider in rendering his decision. (Thompson,
Crawford)
Staff Analysis:
The appropriate standard of review for
reconsideration of a Commission order is whether the motion identifies a point
of fact or law that the Commission overlooked or failed to consider in
rendering the order under review. See Stewart Bonded Warehouse, Inc. v.
Bevis, 294 So. 2d 315 (Fla. 1974); Diamond Cab Co. v. King, 146 So.
2d 889 (Fla. 1962); and Pingree v. Quaintance, 394 So. 2d 162 (Fla. 1st
DCA 1981). It is not appropriate to reargue matters that have already been
considered. Sherwood v. State, 111 So. 2d 96 (Fla. 3d DCA 1959) (citing State
ex. rel. Jaytex Realty Co. v. Green, 105 So. 2d 817 (Fla. 1st DCA
1958)). Furthermore, a motion for reconsideration should not be granted “based
upon an arbitrary feeling that a mistake may have been made, but should be
based upon specific factual matters set forth in the record and susceptible to
review.” Stewart Bonded Warehouse, Inc., 294 So. 2d at 317.
OPC’s Motion raises five issues (Section I-V of the
Motion), each of which will be addressed in turn below.
1.
Whether the Prehearing Officer Overlooked Facts
and Law by Allowing FIPUG Intervention in the DEF Large Load Docket for an
Improper Purpose
For associational standing, intervenors must meet the
three-prong standing test set forth in Florida Home Builders Association v.
Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982).
The test is based on the Agrico
test but requires that (1) the association demonstrates that a substantial
number of an association’s members may be substantially affected by the
Commission’s decision in a docket, (2) the subject matter of the proceeding is
within the association’s general scope of interest and activity, and (3) the
relief requested is of a type appropriate for the association to receive on
behalf of its members. Fla. Home Builders, 412 So. 2d at 353-54. FIPUG
intervened in its associational capacity; its intervention was granted under
the Florida Home Builders test.
Positions of the Parties
In the Motion, OPC contends that FIPUG failed to establish affected members
under Florida Home Builders because FIPUG did not identify any member by
name, and FIPUG does not represent the existing 50 MW large-load customer
taking service from DEF. OPC further asserts that FIPUG’s prehearing position
and its “lack of substantive testimony” and “lack of substantive engagement in
discovery” as facts the Prehearing Officer should have considered.
FIPUG argues that OPC’s motion fails to identify any
material point of fact or law that was overlooked or not considered by the
Prehearing Officer when reaching his decision. FIPUG further asserts that OPC’s
disagreement with the Prehearing Officer’s determination that FIPUG satisfied
the Florida Home Builders test for associational standing in this docket
is not a sufficient basis for reconsideration. FIPUG identifies its affected
interests as the cost, reliability, and terms of electricity service to
industrial and commercial members, including members that may expand
operations. It relies on Sections 120.52(13), 120.52(14), and 1.01(3), F.S.;
Chapter 366; Agrico; and Florida Home Builders.
Analysis and Conclusion
The standard used to consider a party’s associational
standing, and corresponding case law, was clearly set out in the Order Granting
FIPUG’s Petition to Intervene
and the Order on Standing, as
it has been laid out in numerous orders issued by this Commission.
Regarding the first and second prong of the Florida
Home Builders test, FIPUG asserted in its Petition to Intervene that its
members are commercial and industrial electric customers of DEF who will be
affected by the Commission’s decision in the DEF Large Load Docket, and that
the subject matter of the docket appears to be within FIPUG’s general scope of
interest and activity as an association whose members are commercial and
industrial customers who receive service from DEF.
FIPUG provided testimony that its members will be directly and substantially
affected by the outcome of the docket. At the standing hearing, FIPUG witness
Pollock testified that a substantial number of FIPUG members purchase
electricity from DEF, and such members will be affected by the outcome of this
docket.
OPC’s characterization of FIPUG’s purpose does not
establish that FIPUG failed to satisfy the associational standing test. FIPUG
seeks a determination concerning the rates and terms of service applicable to
its members, which is appropriate for the association to request. Whether
FIPUG’s proposed interpretation of Section 366.043, F.S., is correct concerns
the merits of the tariff proceeding, rather than whether FIPUG has standing to
participate. Moreover, OPC’s argument appears to take issue with FIPUG’s substantive
position or requested outcome in the case; it does not identify facts on
standing showing that electricity rates and service fall outside FIPUG’s
general interests and activities. The Prehearing Officer applied the standard
for associational standing when he determined that FIPUG established standing.
Because OPC failed to identify a point of fact or law
overlooked by the Prehearing Officer in rendering his order, staff recommends
that Section I of OPC’s Motion be denied.
2.
Whether the Prehearing Officer Overlooked and
Failed to Consider Sections 120.57, 120.569, 90.604, 90.608(5), 90.608(6),
90.701, and 90.703, F.S.
Positions of the Parties
OPC asserts that the Prehearing Officer failed to address
any type of credibility determination under
Chapter 90, F.S., or whether the Commission inappropriately relied on
hearsay evidence as prohibited by Sections 120.57 and 120.569, F.S.
Particularly, OPC takes issue with the reliability of FIPUG witness Jeffry
Pollock’s testimony, alleging witness Pollock relied upon uncorroborated
hearsay and had a lack of personal knowledge of FIPUG’s membership. OPC notes
that the Prehearing Officer focused on witness Pollock’s testimony when he
asserted that a substantial number of FIPUG’s members purchase electricity from
DEF and that such members are among the largest DEF customers. Ultimately, OPC
claims that the sole evidence of FIPUG’s standing is witness Pollock’s
testimony, which it claims is unreliable because it is uncorroborated hearsay,
and the witness had a lack of personal knowledge of FIPUG’s membership.
FIPUG responded by arguing that it is ultimately the trier
of fact who judges the credibility of witnesses, and deference is provided to
the trier of fact. FIPUG asserts that witness Pollock testified from personal
knowledge that he knew FIPUG’s members, which supported participation in this
case, including testimony that the majority of FIPUG’s members are taking DEF
service. FIPUG’s argument is that witness Pollock affirmed the petition’s
factual allegations. FIPUG also cites its response to interrogatories served by
OPC, which were entered into the record for the hearing on standing. The
responses indicate that FIPUG has 15 members, a majority of whom purchase
electricity from DEF.
Analysis and Conclusion
OPC’s argument raises both witness credibility of witness
Pollock and the legal sufficiency of the evidence by raising hearsay issues.
The Prehearing Officer held a hearing on standing. Evidence was presented in
the form of live testimony by witness Pollock. Section 120.57(1)(c), F.S.,
permits hearsay evidence to supplement or explain other evidence, but not to
support a finding by itself unless it would be admissible over objection in
civil actions. FIPUG’s argument is that witness Pollock affirmed the petition’s
factual allegations is supported by the record.
As OPC points out in its Motion, a hearing officer’s
function is to “consider all the evidence presented, resolve conflicts, judge
credibility of witnesses, draw permissible inferences from the evidence, and
reach ultimate findings of fact based on competent, substantial evidence."
Staff believes the Prehearing Officer exercised his
judgment by weighing all the evidence before him via prefiled testimony, live
testimony and cross examination, presentation of evidence and exhibits, and
briefs filed by the parties directly related to the issue of FIPUG’s standing
in this docket. OPC’s disagreement with the Prehearing Officer’s decision is
not a legitimate basis for reconsideration of his decision to grant FIPUG
intervention in this docket. It is reargument, which is not a sufficient bases
for a motion for reconsideration.
Because OPC failed to identify a point of fact or law
overlooked by the Prehearing Officer in rendering his order, staff recommends
that Section II of OPC’s Motion be denied.
3.
Whether the Prehearing Officer Improperly Found
Associational Standing for a Group Numbering Less than One
Positions of the Parties
OPC asserts that the Prehearing
Officer failed to appropriately apply the Florida Home Builders test in
his determination that FIPUG has standing in the DEF Large Load Docket. OPC
argues that without identifying any members, FIPUG cannot establish that any
affected members exist, much less a substantial number. OPC distinguishes the
absence of a fixed numerical threshold from an absence of proof of affected
members.
FIPUG argues its
testimony shows that a substantial number of its members purchase DEF
electricity. FIPUG also responds by citing to its responses to interrogatories
served by OPC, which were entered into the record for the hearing on standing.
The responses indicate that FIPUG has 15 members, a majority of whom purchase
electricity from DEF.
Analysis and Conclusion
As the Order on Standing stated, the Prehearing Officer
determined that:
FIPUG’s prefiled testimony established that it
represents members who are DEF customers and whose interests could reasonably
be affected by the Prehearing Officer’s decision in this proceeding. Although
FIPUG did not identify individual members by name, the Florida Home Builders
test does not impose a specific numerical threshold or require that affected
members be individually identified in every case.
Staff believes the Prehearing Officer granted FIPUG
standing based on the evidence presented by all of the parties. OPC has not
provided support that FIPUG was required to provide a specific number of its
affected customers in this proceeding. OPC has not provided authority
establishing that FIPUG was required to identify individual affected members by
name to prove associational standing in this proceeding. OPC raised that
argument in its post-hearing brief, and the Prehearing Officer considered and
rejected it. OPC’s disagreement with the Prehearing Officer’s decision is
reargument on this point and is not a legitimate basis for reconsideration.
Because OPC failed to identify a point of fact or law
overlooked by the Prehearing Officer in rendering his order, staff recommends
that Section III of OPC’s Motion be denied.
4.
Whether there was Insufficient Evidence to
Support FIPUG’s Standing
Positions of the Parties
OPC argues that the Prehearing Officer
bears responsibility for weighing evidence and assessing witness credibility
when resolving disputed factual matters. Further, an intervenor cannot satisfy its
burden of proof on standing merely by offering testimony from a purportedly
qualified witness. If a witness is impeached, it does not automatically require
rejection of a witness's testimony. However, the Prehearing Officer remains
responsible for determining what weight that testimony deserves, weighing the
testimony by considering the evidence as a whole. OPC contends that “an
unweighted impeached fact witness cannot carry that burden to establish that
FIPUG, in this docket had established in the record that ‘… a substantial
number of its members, although not necessarily a majority, are substantially
affected…’”
FIPUG agrees that the trier of fact judges the credibility
of witnesses and that deference is provided to the trier of fact. However,
FIPUG argues that OPC’s disagreement with a finding of fact is not a proper
basis to seek reconsideration. Further, FIPUG states that OPC fails to consider
Exhibit 49, admitted without objection during the standing hearing, which state
that a majority of FIPUG’s 15 members receive electric service from Duke Energy
Florida, LLC.
Analysis and Conclusion
As addressed in point three above, the Prehearing Officer
determined that FIPUG established that it represents members who are DEF
customers and whose interests could reasonably be affected by the proceeding.
Although FIPUG did not identify individual members by name, the Florida Home
Builders test does not impose a specific numerical threshold or require
that affected members be individually identified in every case.
The absence of a fixed numerical threshold does not
eliminate FIPUG’s obligation to establish that a substantial number of its
members may be substantially affected. Here, the Prehearing Officer considered
Pollock’s testimony together with FIPUG’s admitted interrogatory responses
identifying 15 members, a majority of whom purchase electricity from DEF. OPC
has not identified an overlooked requirement that those affected members also
be individually named under the circumstances of this proceeding.
Staff believes the Prehearing Officer granted FIPUG
standing in the DEF Large Load Docket by reaching ultimate findings of facts,
based upon weighing evidence presented by all of the parties. OPC’s
disagreement with the Prehearing Officer’s findings of fact is not a legitimate
basis for reconsideration of its decision to allow FIPUG intervention in this
docket. It is reargument, which is not a sufficient basis for a motion for
reconsideration.
Because OPC failed to identify a point of fact or law
overlooked by the Prehearing Officer in rendering his order, staff recommends
that Section IV of OPC’s Motion be denied.
5.
Whether the Commission Failed to Give Parties
Due Process
Positions of the Parties
OPC argues that the Commission violated due process by
having insufficient cause to deviate from the originally-established hearing
procedures in order to allow the Prehearing Officer to conduct an evidentiary
hearing to rule on the standing of intervenors in the Duke Large Load Docket.
OPC also alleges that statements and arguments made by FIPUG at the Prehearing
Conference regarding a possible stipulation between FIPUG and DEF regarding
standing established improper bias by the Prehearing Officer. Finally, OPC
argues that FIPUG’s “disruptions” at the Prehearing Conference resulted in the
Prehearing Officer’s decision to conduct a bifurcated hearing to address
standing prior to the full evidentiary hearing in the Duke Large Load Docket.
FIPUG responds by noting OPC’s statement in its response
to FIPUG’s Petition to Intervene, within which OPC stated that FIPUG’s
intervention is a factual controversy that may necessitate a preliminary
evidentiary hearing before the Commission or Prehearing Officer on issues
surrounding FIPUG’s standing. FIPUG asserts that OPC did not object to or seek
reconsideration of the order establishing the bifurcated hearing. Separately,
OPC’s original opposition had contemplated a preliminary evidentiary hearing
before either the Commission or the Prehearing Officer.
Analysis and Conclusion
In the prehearing conference when the parties’ raised
their issues with standing, DEF specifically advocated that a better process
would be to have a separate standing hearing, rather than take standing up
during the evidentiary hearing. The Prehearing Officer asked for staff’s
response to that position and gave the parties an opportunity to respond well.
FR’s position was that the Prehearing Officer could have a bifurcated process
to have an evidentiary hearing on statement earlier than the hearing on the
merits. OPC’s response was:
I do think that the General Counsel’s Office is on to
something when they talk about bifurcating. I think that no time is lost, no
effort is lost-- many efficiencies are gained if you make that determination
before you do everything else that we are going to do in that hearing. And at
most, we are looking at two witnesses.
No party timely objected to this process, nor timely filed
a request for reconsideration of the order scheduling the standing hearing. As
such, staff believes the Prehearing Officer’s decision to have a separate
hearing on standing prior to the evidentiary hearing was consistent with the
parties’ preferences, and that OPC waived its opportunity to object to that
process.
Moreover, even if the issue was not deemed to be waived,
staff believes the Prehearing Officer acted within his authority to bifurcate
the hearing process and conduct an evidentiary hearing regarding standing. It
is well established in Florida law that “[t]he fundamental requirements of due
process are satisfied by reasonable notice and a reasonable opportunity to be
heard.” Citizens of State v. Fla. Pub. Serv. Comm'n, 146 So. 3d 1143,
1154 (Fla. 2014). In administrative hearings where substantial interests of a
party are determined by an agency and where there are disputed issues of
material fact, an agency must provide parties “an opportunity to respond, to
present evidence and argument on all issues involved, to conduct
cross-examination and submit rebuttal evidence, to submit proposed findings of facts
and orders, to file exceptions to the presiding officer's recommended order,
and to be represented by counsel or other qualified representative.” Sections
120.569 and 120.57(1)(b), F.S. The standing hearing was noticed, all parties
made opening statements, presented witnesses and exhibits, conducted cross
examination of witnesses, and briefed the issues of standing for all the
relevant intervenors.
OPC’s allegations concerning the discussion of a possible
stipulation and FIPUG’s conduct at the Prehearing Conference do not, without
more, establish that the Prehearing Officer prejudged standing or denied OPC an
opportunity to contest it. OPC’s disagreement with FIPUG’s participation does
not, by itself, establish a denial of due process. The relevant question is
whether the procedure employed deprived OPC of a meaningful opportunity to
present its objections, rather than whether the Prehearing Officer ultimately
accepted those objections. Staff believes there was no due process error. The
Prehearing Officer ruled upon FIPUG’s standing after reaching ultimate findings
of facts based on the evidence presented. Therefore, OPC’s disagreement with
the Prehearing Officer’s findings of fact is not a legitimate basis for
reconsideration of its decision to allow FIPUG intervention in this docket.
Because OPC failed to identify a point of fact or law
overlooked by the Commission in rendering its order, staff recommends that
Section V of the Motion for Reconsideration be denied.
Conclusion
OPC’s Motion should be denied in its entirety because it
consists of reargument and fails to raise a point of fact or law that the
Prehearing Officer overlooked or failed to consider in rendering his decision.
Issue 3:
Should this docket be closed?
Recommendation:
This docket should remain open pending the
Commission’s final resolution of DEF’s petition for a large load tariff.
(Thompson, Crawford)
Staff Analysis:
This docket should remain
open pending the Commission’s final resolution of DEF’s petition for a large
load tariff.
