Hernando County v. Florida Public Service Com'n, 95-2935

• Citation: 685 So.2d 48
• Decision Date: 12 December 1996
• Docket Number: No. 95-2935,95-2935
• Parties: 21 Fla. L. Weekly D2625 HERNANDO COUNTY, Collier County, Sarasota County, Polk County and the Board of County Commissioners of Hillsborough County, Florida, Appellants, v. The FLORIDA PUBLIC SERVICE COMMISSION and Southern States Utilities, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 48

685 So.2d 48

21 Fla. L. Weekly D2625

HERNANDO COUNTY, Collier County, Sarasota County, Polk County and the Board of County Commissioners of Hillsborough County, Florida, Appellants, v. The FLORIDA PUBLIC SERVICE COMMISSION and Southern States Utilities, Inc., Appellees.

No. 95-2935.

District Court of Appeal of Florida First District.

Dec. 12, 1996.

Rehearing Denied Jan. 22, 1997.

Robert Bruce Snow, Hernando County, Brooksville; Mary Elizabeth Harlan, Polk County, Bartow; Donald R. Odom, Hillsborough County, Tampa; Thomas C. Palmer, Collier County, Naples; and Kathleen F. Schneider, Sarasota County, Sarasota, for Appellants.

Robert D. Vandiver, General Counsel; Christiana T. Moore, Associate General Counsel, Tallahassee, for Appellee/Florida Public Service Commission.

Arthur J. England, Jr. of Greenberg, Traurig, Hoffman, Lipoff, Rosen and Quentel, P.A., Miami; Brian P. Armstrong, Apopka; and Kenneth A. Hoffman and William B. Willingham of Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A., Tallahassee, for Appellee/ Southern States Utilities, Inc.

DAVIS, Judge.

Appellants Hernando County, Collier County, Sarasota County, Polk County, and the Board of County Commissioners of Hillsborough County, Florida, appeal a final order of the Public Service Commission (PSC), rendered July 21, 1995, determining that the PSC has jurisdiction over existing facilities and land of Southern States Utilities, Inc. (SSU) in Florida. The PSC decided that SSU's facilities constitute a "functionally related" statewide "system" whose "service" "transverses county boundaries," and that the PSC therefore had exclusive jurisdiction to regulate all of the facilities involved in this proceeding under the authority of section 367.171(7), Florida Statutes (1995). Because we conclude that the PSC misinterpreted the plain and unambiguous meaning of the terms "service" and "transverses" as used in the statute, and erred in concluding that the evidence presented was sufficient to establish that SSU's facilities form a "system," we reverse.

Under Chapter 367, the various counties of Florida retain jurisdiction to regulate water and wastewater utilities providing service to customers within the boundaries of each county. Such counties are called "non-jurisdictional counties," because the PSC does not have jurisdiction to regulate the utilities within their boundaries. A county, however, may elect to divest itself of jurisdiction and confer jurisdiction on the PSC. Such counties are called "jurisdictional counties," because the PSC has jurisdiction to regulate utilities in those counties. Under section 367.171(7), the PSC may exercise exclusive jurisdiction over utility facilities located in non-jurisdictional counties if the PSC makes a finding that such facilities are part of a system providing service which transverses county boundaries. ¹ A system is defined by section 367.021(11) as "facilities and land used or useful in providing service and, upon a finding by the commission, may include a combination of functionally related facilities and land."

Southern States Utilities owns water and wastewater facilities in numerous counties throughout Florida. The order under review finds that the PSC has jurisdiction over all "existing" SSU facilities, but expressly declines to assert jurisdiction over future-acquired facilities. The PSC rejected the argument of the counties that it was necessary to demonstrate operational relationships between the facilities encompassed by the ruling in order to find that the facilities were functionally related and formed a system providing service which transverses county boundaries. Instead, the PSC relied primarily upon centralized organization out of the utility's Apopka office, as well as regional management, to provide the basis for its decision that these various facilities constitute a single system providing service which transverses county boundaries.

In particular, the PSC found that SSU's existing facilities in Florida are "functionally related" so as to form a system, based upon facts such as company wide financing, centralized purchasing, statewide telephone service through a single carrier, customer service provided with a toll free phone number, a centralized computer center for SSU's plants in the state, and transportation services through company-wide purchases of vehicles, corporate transportation policies, a nationwide refueling program, and a regional management system. The final order recites that personnel based in Apopka provide technical training to field employees, and also that SSU has plans for a central laboratory to perform tests on certain types of samples taken from all SSU service areas in every region. Equipment and personnel have been shifted between facilities as needed, with large items of equipment centrally stored.

In reaching the conclusion that SSU's facilities form a system whose service transverses county boundaries, the PSC ruled that "service" encompasses everything necessary to provide water to and collect and treat wastewater from SSU's customers, including the administrative and operational functions which make it possible for the utility to provide the water and wastewater service, such as billing, meter reading, and environmental permitting. Rather than apply a distinct meaning to the word "service," the PSC's order concludes that the "service" which must transverse county boundaries encompasses all of the same operational and administrative functions which were found to make SSU's facilities a "system." In a well-reasoned dissent, Chairman Deason explained that the PSC erred in reaching this expansive definition of "service." Chairman Deason logically concluded that service means the physical delivery of water and/or wastewater. See also Citrus County v. Southern States Utilities, 656 So.2d 1307, 1310 (Fla. 1st DCA), review denied mem., 663 So.2d 631 (Fla.1995)(to satisfy the prerequisites of section 367.171(7), the PSC must find that "the systems were operationally integrated, or functionally related, in ... utility service delivery [rather] than fiscal management") (emphasis added). "[T]here are 44 references to the word 'service' in Chapter 367 with the connotation of a physical delivery of water and/or wastewater ..." PSC Order no. PSC-95--0894-FOF-WS, at 29 (Chairman Deason, dissenting). The Legislature is presumed to mean the same thing when it uses the same word throughout related statutory provisions. See Goldstein v. Acme Concrete Corp., 103 So.2d 202, 204 (Fla.1958).

If the legislature had intended the administrative and operational functions of a company to satisfy the cross-county activity necessary to support PSC jurisdiction under section 367.171(7), it could have simply used the word "system" instead of also referring to "service." In other words, the legislature could have provided that the commission shall have exclusive jurisdiction over all utility systems which transverse county boundaries, or, even more expansively, which operate in multiple counties. We must presume that these limiting terms were deliberately included to restrict the exercise of PSC jurisdiction over utilities in nonjurisdictional counties. "Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the exercise thereof, and the further exercise of the power should be arrested." City of Cape Coral v. GAC Utilities, Inc., 281 So.2d 493, 496 (Fla.1973).

Nor do the previous decisions of this court supply a valid...