Florida Public Service Com'n v. Bryson, 75575

• Decision Date: 08 November 1990
• Docket Number: No. 75575,75575
• Citation: 569 So.2d 1253
• Parties: 15 Fla. L. Weekly S583 FLORIDA PUBLIC SERVICE COMMISSION, Petitioner, v. Fred L. BRYSON, Judge, et al., Respondents.
• Court: Florida Supreme Court

Page 1253

569 So.2d 1253

15 Fla. L. Weekly S583

FLORIDA PUBLIC SERVICE COMMISSION, Petitioner, v. Fred L. BRYSON, Judge, et al., Respondents.

No. 75575.

Supreme Court of Florida.

Nov. 8, 1990.

Susan F. Clark, General Counsel, and Michael A. Palecki, Staff Counsel, Florida

Public Service Com'n, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Harry F. Chiles, Asst. Atty. Gen., Tallahassee, and David B. McEwen of Stolba, Verona, Shames, McEwen & Driscoll, P.A., St. Petersburg, for respondents.

BARKETT, Justice.

We have before us an original proceeding in which the Public Service Commission ("PSC") petitions this Court to issue a writ of prohibition against judges of the Sixth Judicial Circuit, Pinellas County, to bar further proceedings in the matter of H. Geller Management Corp. v. Public Service Commission, No. 89-18332-13. The petition poses the question of whether the circuit court had jurisdiction to enjoin the PSC from reviewing a consumer's complaint that a management company overcharged a condominium unit owner for gas and electricity. We hold that the circuit court had no jurisdiction to proceed in this matter. ¹

H. Geller Management Corp. ("Geller") contracted a service and maintenance agreement with Terrace Park of Five Towns, a condominium association. John F. Falk ("Falk") owns a condominium unit at Terrace Park and pays Geller for its management services, including the provision of gas and electricity. In August 1988, Falk filed a complaint with the PSC alleging that Geller overcharged him. Falk claimed that Geller bought gas and electricity from public utilities and then, contrary to law, resold those resources to individual customers at a profit. The PSC apprised Geller of the complaint and said it intended to hold an informal conference pursuant to the Florida Administrative Code. Geller denied the allegation, claiming that it did not resell the resources--it merely used indices to determine maintenance fee increases. After some delay, the PSC scheduled an informal conference to be held on November 27, 1989, in St. Petersburg, Florida.

Before the conference could be held, Geller filed a complaint in the circuit court seeking an injunction to stop the PSC from proceeding on the ground that the PSC had no jurisdiction. Geller also sought a writ of prohibition against the PSC and a declaratory judgment to declare that Geller is not a utility within the PSC's jurisdiction. Over the PSC's objection, the circuit court entered a temporary injunction on November 17, 1989, and denied a subsequent motion to dissolve the injunction. The PSC then filed a petition for a writ of prohibition in this Court to prohibit the circuit court from conducting further proceedings, and to order the circuit court to dismiss the complaint. ² The PSC also filed an interlocutory appeal in the Second District Court of Appeal, but it moved that court to stay its proceedings pending the outcome here. ³

The PSC derives its authority solely from the legislature, which defines the PSC's jurisdiction, duties, and powers. See, e.g., United Tel. Co. v. Public Serv. Comm'n, 496 So.2d 116, 118 (Fla.1986). In section 366.04(1) of the Florida Statutes (1987), the legislature granted the PSC exclusive jurisdiction over matters respecting the rates and service of public utilities:

[T]he commission shall have jurisdiction to regulate and supervise each public utility with respect to its rates and service.... The jurisdiction conferred upon the commission shall be exclusive and superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages, or counties, and, in case of conflict therewith, all lawful acts, orders, rules, and regulations of the commission shall in each instance prevail.

Id. (emphasis supplied). The legislature defined "public utility" as "every person, corporation, partnership, association, or other legal entity ... supplying electricity or gas ... to or for the public within this state." § 366.02(1), Fla.Stat. (1987).

The parties in interest agree that the PSC has no jurisdiction if Falk's complaint does not concern the (1) rates and service of (2) a public utility. The question is who decides whether Falk's complaint is within the PSC's jurisdiction. The PSC argues that it alone is obliged to make that jurisdictional determination, subject to appeal to this Court, and that the circuit court may not intervene. Geller argues that the PSC's own order in In re Sale Of Electricity To Be Resold, Order No. 4874, 34 Fla.Supp. 40 (F.P.S.C.1970), precluded it from asserting jurisdiction.

The PSC has the authority to interpret the statutes that empower it, including jurisdictional statutes, and to make rules and issue orders accordingly. See PW Ventures, Inc. v. Nichols, 533 So.2d 281 (Fla.1988) (approving the PSC's determination that the sale of electricity to a single customer makes the provider a "public utility" subject to PSC jurisdiction pursuant to section 366.02(1), Florida Statutes (1985)); Fletcher Properties, Inc. v. Florida Pub. Serv. Comm'n, 356 So.2d 289, 292 (Fla.1978) (approving the PSC's determination that a management company is a "utility" within the PSC's regulatory jurisdiction). It follows that the PSC must be allowed to act when it has at least a colorable claim that the matter under consideration falls within its exclusive jurisdiction as defined by statute. If the PSC is alleged to have acted without jurisdiction, it is the duty of the appellate court to review the allegation and to correct the PSC's error if one was made. See United Tel. Co., 496 So.2d at 118 (quashing PSC orders because no statutory authority permits the PSC to interfere with a contract between private parties). Neither general law nor the constitution provides the circuit court concurrent or cumulative power of direct review of PSC action. Public Serv. Comm'n v. Fuller, 551 So.2d 1210, 1213 (Fla.1989); State ex rel. McKenzie v. Willis, 310 So.2d 1, 3 (Fla.1975). Hence, the circuit court may not intervene where there is at least a colorable claim that the PSC properly asserted jurisdiction over a cause. See Fuller, 551 So.2d at 1210 (the circuit court had no jurisdiction to invalidate an electric power territorial agreement that had been approved by the PSC as an exercise of its exclusive jurisdiction); Willis, 310 So.2d at 1 (the circuit court had no jurisdiction to entertain lawsuits concerning noncompetitive agreements between common carriers regulated by the PSC).

The PSC in this case relied on the language in sections 366.04(1) and 366.02(1) as the basis of its jurisdiction. The PSC found additional support in Fletcher Properties, Inc. where the Court approved the PSC's conclusion that the managing agent and part owner of a private...