Southern States Utilties, Inc. v. Florida Public Service Com'n, Nos. 96-3334

• Court: Court of Appeal of Florida (US)
• Writing for the Court: KAHN; BARFIELD, C.J., and DAVIS
• Citation: 704 So.2d 555
• Parties: 22 Fla. L. Weekly D1492 SOUTHERN STATES UTILITIES, INC. v. FLORIDA PUBLIC SERVICE COMMISSION. KEYSTONE HEIGHTS and Marion Oaks Civic Association v. SOUTHERN STATES UTILITIES, INC., and Florida Public Service Commission. BURNT STORE MARINA v. PUBLIC SERVICE COMMISSION.
• Decision Date: 17 June 1997
• Docket Number: Nos. 96-3334,96-3454 and 96-3489

Page 555

704 So.2d 555 22 Fla. L. Weekly D1492 SOUTHERN STATES UTILITIES, INC.
v.
FLORIDA PUBLIC SERVICE COMMISSION.
KEYSTONE HEIGHTS and Marion Oaks Civic Association
v.
SOUTHERN STATES UTILITIES, INC., and Florida Public Service Commission.
BURNT STORE MARINA
v.
PUBLIC SERVICE COMMISSION. Nos. 96-3334, 96-3454 and 96-3489. District Court of Appeal of Florida,
First District. June 17, 1997.

Page 556

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

Robert D. Vandiver, Christiana T. Moore, and Richard C. Bellak, Tallahassee, for Florida Public Service Commission.

Joseph A. McGlothlin and Vicki Gordon Kaufman of McWhirter, Reeves, McGlothlin, Davidson, Rief & Bakas, Tallahassee, for City of Keystone Heights and Marion Oaks Civic Association.

Darol H.M. Carr of Farr, Farr, Emerich, Sifrit, Hackett and Carr, P.A., Port Charlotte, for Burnt Store Marina.

Susan W. Fox of Macfarlane, Ferguson & McMullen, Tampa for Sugarmill Woods Association, Inc., and Michael B. Twomey, Tallahassee for Citrus County Civic Board of County Commissioners.

Michael A. Gross, Assistant Attorney General, Tallahassee and Larry M. Haag, County Attorney, Inverness, Co-counsel for Citrus County.

KAHN, Judge.

Southern States Utilities, Inc. (SSU) appeals an order entered by the Public Service Commission (PSC) on remand from this court's decision in Citrus County v. Southern States Utilities, Inc., 656 So.2d 1307 (Fla. 1st DCA 1995). In that case, we affirmed in part and reversed in part a PSC order approving increased rates and charges for 127 of SSU's water and wastewater service areas based on a uniform statewide rate structure. Specifically, we reversed the order "on the ground that the PSC exceeded its statutory authority when it approved uniform statewide rates for the 127 systems involved in this proceeding, based on the evidence produced." Citrus County, 656 So.2d at 1309. We affirmed the PSC's refusal to take into account SSU's gain on the sale of two of its systems in determining SSU's rates and remanded the cause "for disposition consistent herewith." Id. at 1311. On remand, the PSC approved modified stand-alone rates for

Page 557

SSU's systems. ¹ Because the PSC erred, however, in its consideration of GTE Florida Inc. v. Clark, 668 So.2d 971 (Fla.1996), with regard to the issue of whether SSU may surcharge the customers who underpaid under the erroneously approved uniform rates, we reverse and remand this case for further proceedings. In addition, on remand, we direct the PSC to reconsider its decision denying intervention by cross-appellants Keystone Heights, Marion Oaks Civic Association, and Burnt Store Marina. ²

On remand from this court's decision in Citrus County, the PSC found it appropriate to change the rate structure to comply with the court's mandate, and it thus approved a modified stand-alone rate structure for SSU. As the PSC observed in its order, "[t]he utility's revenue requirement was never challenged as a point on appeal" and "[a]ccordingly, it shall not be changed." The PSC further observed, however, "[t]his change in the rate structure results in a rate decrease for some customers and a rate increase for others." The PSC then directed SSU to provide refunds to customers who had overpaid under the erroneous uniform rate structure, but determined that SSU could not collect surcharges from those customers who had underpaid as "such action would violate the prohibition against retroactive ratemaking." The PSC explained that it could order the refunds without violating retroactive ratemaking concepts because SSU had "accepted the risk" of implementing the uniform rates when SSU filed a motion to vacate the stay in effect as a result of Citrus County's appeal:

Upon reviewing the language from the Order Vacating the Stay and the transcripts from the Agenda Conference in which we voted on the utility's Motion to Vacate the Stay, we find that the utility accepted the risk of implementing the rates. It is clear that we recognized the need to secure the revenue increase both as a condition of vacating the stay and to insure funding of refunds in the event refunds were required. Having established a refund condition for those revenues, we can order a refund without violating retroactive ratemaking concepts.

Before SSU acted pursuant to the PSC's decision on remand, however, the Florida Supreme Court issued its opinion in GTE Florida, Inc. v. Clark. Because the PSC determined that Clark might impact its decision on remand, it voted to reconsider its decision.

In Clark, GTE Florida (GTE) appealed a PSC order implementing a remand from the supreme court. 668 So.2d at 972. In that remand, the supreme court had affirmed in part and reversed in part a prior PSC order disposing of a requested rate increase by GTE. Id. The court had reversed the prior order "insofar as it denied GTE recovery of certain costs simply because those...