Citizens of State v. Florida Public Service Com'n
| Decision Date | 29 April 1986 |
| Docket Number | No. BI-491,BI-491 |
| Parties | 11 Fla. L. Weekly 985 CITIZENS OF the STATE of Florida, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION and Prima Vista Utility Company, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Jack Shreve, Public Counsel, and Suzanne Brownless, Associate Public Counsel, Tallahassee, for appellant.
William S. Bilenky, Gen. Counsel, and Robert D. Vandiver, Associate Gen. Counsel, Tallahassee, for appellee/Florida Public Service Com'n.
Martin S. Friedman of Myers, Kenin, Levinson & Richards, Tallahassee, for appellee/Prima Vista Utility Co., Inc.
Citizens of the State of Florida, represented by the Office of Public Counsel (OPC), appeals two orders of the Florida Public Service Commission (PSC) granting a rate increase to appellee Prima Vista Utility Company, Inc. (Prima Vista). The OPC contends that the PSC improperly relied on certain testimony in rendering its decision. 1 We affirm.
Prima Vista sought permission from PSC in May 1983 to increase the rates it charged for sewer service provided to customers in Ocoee, Florida. The PSC subsequently issued a "proposed agency action" order in March 1984, granting this request to the extent of allowing Prima Vista to increase its annual revenues by approximately $295,000. Before this order by the PSC became final, appellant, through the OPC, filed a notice to intervene in the proceedings below. This motion was granted by PSC, with the result that hearings were held on the proposed rate increase in December 1984.
Among the issues raised by appellant below was the proper used and useful percentages to apply to two sewage treatment plants operated by Prima Vista at the time of its application, known as the Prima Vista and Twin Lakes plants. 2 Kirk Borowsky, accepted by all parties as an expert in regulatory accounting, testified that, in his opinion, Prima Vista's Twin Lakes plant had a used and useful percentage of 60%, to which he added a "margin of reserve" for anticipated future service capacity to arrive at a final used and useful percentage for that plant of 85%. The PSC accepted the 60% figure, but arrived at a final figure of 78.5%. Borowsky testified that his methodology in arriving at this figure, known as the "five to ten day peak flow method," was based on his past experiences in prior PSC rate cases; that is, Borowsky testified, he believed this methodology had been accepted as proper by the PSC. In arriving at his conclusions, Borowsky used undisputed flow figures for the two facilities furnished to him by Prima Vista's engineers.
As below, appellant argues in this court that the selection of a used and useful methodology is an opinion that may only be rendered by a qualified engineering expert. Appellant contends that, contrary to the PSC's finding, Borowsky's testimony could not be a mere "implementation" of recognized PSC policy since, according to appellant, no such policy has yet emerged from previous PSC rate making decisions. Furthermore, appellant asserts, absent consideration of Borowsky's testimony,...
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