Public Service Com'n v. Fuller, 73876

• Court: United States State Supreme Court of Florida
• Writing for the Court: OVERTON; EHRLICH
• Citation: 14 Fla. L. Weekly 566,551 So.2d 1210
• Parties: 14 Fla. L. Weekly 566 PUBLIC SERVICE COMMISSION, Petitioner, v. Honorable Richard S. FULLER, et al., Respondents.
• Docket Number: No. 73876,73876
• Decision Date: 16 November 1989

Page 1210

551 So.2d 1210

14 Fla. L. Weekly 566

PUBLIC SERVICE COMMISSION, Petitioner, v. Honorable Richard S. FULLER, et al., Respondents.

No. 73876.

Supreme Court of Florida.

Nov. 16, 1989.

Susan F. Clark, Gen. Counsel, and William H. Harrold, Associate Gen. Counsel, Tallahassee, for petitioner.

Michael E. Watkins, City Atty., City of Homestead, Homestead, and L. Lee Williams, Jr. and Frederick M. Bryant of Moore, Williams, Bryant, Peebles & Gautier, P.A., Tallahassee, for respondents.

J. Christian Meffert and Wilton R. Miller of Bryant, Miller and Olive, P.A., Tallahassee, for Florida Power & Light Co., intervenor.

OVERTON, Justice.

The Florida Public Service Commission (PSC) petitions this Court to issue a writ of prohibition to the Honorable Richard S. Fuller, Judge in the Eleventh Judicial Circuit in and for Dade County, Florida, preventing him from conducting further proceedings in City of Homestead v. Florida Power and Light Co., Case No. 88-32093CA28. The case concerns a territorial agreement between the City of Homestead and Florida Power and Light Company, which was expressly approved by an order of the Public Service Commission. We have original jurisdiction. Art. V § 3(b)(7), Fla. Const. For the reasons expressed, we hold that the PSC has exclusive jurisdiction over the subject matter of this cause.

The relevant facts reflect that on August 7, 1967, the City of Homestead entered into a territorial agreement with Florida Power and Light Company (FPL) which described the geographic areas to which each would provide electric utilities service. That agreement was approved by the PSC in Florida Public Service Commission Order No. 4285, issued December 1, 1967. Shortly thereafter, FPL customers whose service was transferred to the city by the agreement challenged the PSC order. This Court upheld that order in Storey v. Mayo, 217 So.2d 304 (Fla.1968), cert. denied, 395 U.S. 909, 89 S.Ct. 1751, 23 L.Ed.2d 222 (1969), and the order has been in effect since 1967. Subsequently, in an action before the PSC, Accursio v. Florida Power and Light Co., Order No. 9259 (Feb. 26, 1980), two utility customers sought to have the PSC terminate or modify the PSC order approving the subject territorial agreement. The City of Homestead, seeking dismissal of the complaint, acknowledged that the PSC had jurisdiction over the agreement and that the agreement was governed by section 366.04(2), Florida Statutes (1979). The PSC dismissed the complaint and this Court denied certiorari. Accursio v. Mayo, 389 So.2d 1002 (Fla.1980).

On May 11, 1988, the city notified FPL in writing that the territorial agreement would be terminated effective August 7, while acknowledging that the agreement contains no express provision setting forth the period during which it should remain in effect. FPL objected to the city's action, arguing that the agreement has perpetual duration until modified or terminated by the PSC. The city maintained that the parties never intended for the agreement to be perpetual and that it is therefore terminable upon the giving of reasonable notice, which they had given. On July 22, FPL filed an administrative Petition for Declaratory Statement with the PSC, seeking a declaratory statement with respect to the rights and obligations of the parties to the territorial agreement. On August 1, before the commencement of the PSC hearing, the city filed an action in the Dade County Circuit Court seeking a declaration of rights and a construction of the agreement. FPL subsequently filed a motion to dismiss and a motion to abate in the circuit court, both of which were denied.

The PSC asserts that the city is seeking to have the circuit court modify the PSC order approving the instant territorial agreement. It argues that it has exclusive jurisdiction to modify its own orders and that we should grant a writ of prohibition preventing the circuit court from taking further action in this matter.

The question to be resolved is whether the PSC has exclusive jurisdiction to modify or terminate territorial agreements which it has expressly approved by orders of the commission. The City of Homestead, relying in part on City Gas Co. v. Peoples Gas System, Inc., 182 So.2d 429 (Fla.1965), argues that the circuit court has subject matter jurisdiction under chapter 86, Florida Statutes (1987), to construe, interpret, and adjudicate issues concerning the provisions of the contract. City Gas involved a territorial agreement between two gas companies, and the principal argument concerned the enforceability of the agreement. The PSC had approved the agreement, stating in its order:

"Obviously, any agreement between two gas utilities which has for its purpose the establishing of service areas between the utilities will, in effect, limit to some extent the Commission's power to require additions and extensions to plant and equipment reasonably necessary to secure adequate service to those reasonably entitled thereto. In our opinion, such a limitation can have no validity without the approval of this Commission."

182 So.2d at 436. The trial court held that the agreement was invalid under the Florida anti-monopoly statute, stating that, in the absence of specific statutory authority, the PSC lacked the power to approve this type of agreement. We reversed the trial court and expressly upheld the PSC's authority to approve such an agreement and to merge it into a commission order, stating:

In short, we are of the opinion that the commission's existing statutory powers over areas of service, both expressed and implied, are sufficiently broad to constitute an insurmountable obstacle to the validity of a service area agreement between regulated utilities, which has not been approved by the commission.

....

By substantially the same reasoning, we also conclude that the commission has adequate implied authority under Ch. 366 to validate such agreements as the one before us. Indeed, we agree with the ...