Florida Public Service Commission native order document 09548-2024

FILED 10/16/2024
DOCUMENT NO. 09548-2024
FPSC - COMMISSION CLERK
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In re: Application for certificate to provide 	DOCKET NO. 20240032-SU
wastewater service in Charlotte County by 	ORDER NO. PSC-2024-0450-PCO-SU
Environmental Utilities, LLC. 	ISSUED: October 16 , 2024
--------~----------"
The following Commissioners participated in the disposition of this matter:
MIKE LA ROSA, Chairman
GARY F. CLARK
ANDREW GILES FAY
GABRIELLA PASSIDOMO
ORDER DENYING GUY HURST'S MOTION TO DISMISS
AND ENVIRONMENTAL UTILITIES. LLC'S MOTION FOR RECONSIDERATION
BY THE COMMISSION:
Background
On February 12, 2024, Environmental Utilities, LLC (EU) filed its application for an
original wastewater certificate in Charlotte County. The proposed service area includes the
barrier islands of Little Gasparilla Island, Don Pedro Island, and Knight Island.
On March 28, 2024, EU sent notice of the application by mail to property owners in the
proposed service area pursuant to Rule 25-30.030, 	Florida Administrative Code (F.A.C.).
Objections to the application were filed by Linda Cotherman; Palm Island Estates Association,
Inc. (PIEA); 	and Little Gasparilla Island Preservation Alliance, 	Inc. 	(LGIP A) 	during the
objection period.
On April 30, 2024, Mr. Guy Hurst filed a Motion to Dismiss the application alleging that
EU failed to provide proper service. On May 6, 2024, EU filed a response in opposition to the
Motion to Dismiss.
On August 12, 2024, the Order Establishing Procedure 1 (OEP) was issued, setting this
matter for an administrative hearing on January 28-30, 2025. On August 19, 2024, EU filed a
Motion for Reconsideration requesting that the Commission reconsider a portion of the OEP
related to the exchange of cross-examination exhibits. On August 26, 2024, PIEA and LGIPA
each filed responses opposing EU' s Motion for Reconsideration.
This 	order 	addresses 	Mr. 	Hurst's 	Motion 	to 	Dismiss 	and 	EU' s 	Motion 	for
Reconsideration. We have jurisdiction pursuant to Sections 367. 011 , 367.031, 367.045, and
367.081, Florida Statutes (F.S.).
1 Order No. PSC-2024-0324-PCO-SU

ORDER NO. PSC-2024-0450-PCO-SU
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I.
	Mr. Hurst's Motion to Dismiss
Decision
The function
of
a motion to dismiss is to raise as a question
of
law the sufficiency
of
the
facts alleged to state a cause
of
action. Varnes
v.
Dawkins, 624 So. 2d 349, 350 (Fla. 1st DCA
1993). The applicable standard for disposing
of
a motion to dismiss is whether the petition states
a cause
of
action upon which relief may be granted
if
all factual allegations in the petition are
taken to be true. Id. In making this determination, all reasonable inferences drawn from the
petition must be made in favor
of
the petitioner. Id. Consideration
of
a motion to dismiss "may
not properly go beyond the four comers
of
the complaint in testing the legal sufficiency
of
the
allegations set forth therein." Stubbs
v.
Plantation Gen. Hosp. Ltd. P'ship. 988 So. 2d 683, 684
(Fla. 4th DCA 2008) (internal quotation omitted). All
of
the elements
of
a cause
of
action must
be properly alleged in a pleading to seek affirmative relief.
If
the elements are not properly
alleged, the pleading should be dismissed. Kislak
v.
Kreedian,
95
So. 2d 510 (Fla. 1957).
Mr. Hurst's Motion to Dismiss the A pp lication
On April 30, 2024, Mr. Hurst filed a Motion to Dismiss the Application or Alternatively
Stay All Proceedings Until Service is Perfected on Owners
of
Private Property Located on Little
Gasparilla Island (Motion to Dismiss). In his motion, Mr. Hurst claims that residents in the
proposed service area did not receive proper and adequate notice. He asserts that mail is not
delivered to physical addresses on Little Gasparilla Island. He argues that the notice does not
comply with agency rules because it was sent as junk mail, was not post-marked, was not signed,
and appears to be just another mass mailing
of
an unknown advertiser. According
to Mr. Hurst,
the notice does not clearly inform the reader that there is a legal matter pending before the
Commission and that the resident may be a party, and does not include a certificate
of
service.
Consequently, Mr. Hurst alleges that there has been a violation
of
due process.
EU's Response to Mr. Hurst's Motion to Dismiss
On May 6, 2024, EU filed a response to Mr. Hurst's Motion to Dismiss requesting that
the motion be denied. EU asserts that the notices were mailed to property owners at the mailing
addresses as reflected on the records
of
the Charlotte County Property Appraiser and notices
were even mailed to out
of
state addresses and out
of
the country. EU states that the notices were
sent by a third party as bulk mail and there are no prohibitions against sending notices in this
manner. EU further states that the notice was prepared in accordance with the requirements of
Rule 25-30.030, F.A.C., and was approved by staff as required by Rule 25-30.030(4), F.A.C.
Finally, EU notes that we have previously considered and denied2 these same arguments from
Mr. Hurst.
2 Order No. PSC-2021-0405-PCO-SU.

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Analysis and Conclusion
In his Motion to Dismiss, Mr. Hurst does not allege that EU's application fails to state a
cause
of
action upon which relief may be granted but rather that EU's notice was insufficient.
However, hundreds
of
prospective customers in the proposed service area filed comments
regarding EU's application and three parties filed formal requests for an administrative hearing.
At a minimum, Mr. Hurst received constructive notice
of
the application as he filed the motion to
dismiss within the 30-day window that follows the receipt
of
the notice. As stated in his motion,
the purported effective date
of
the notice was April 3, 2024, and Mr. Hurst's motion was filed on
April 30, 2024, well within the 30-day window. Mr. Hurst's concerns that other individuals may
not have received notice are speculative in nature and Mr. Hurst is not authorized to represent
any such others' interests in this proceeding. The essence
of
due process is notice and the
opportunity to be heard, to which Mr. Hurst has clearly availed himself. Finally, the notice was
prepared in accordance with the requirements
of
Rule 25-30.030, F.A.C.
For the reasons stated above, we deny Mr. Hurst's Motion to Dismiss.
II. 	EU' s Motion for Reconsideration
The appropriate standard
of
review for reconsideration
of
a procedural Commission order
is whether the motion identifies a point
of
fact or law that the prehearing officer overlooked or
failed to consider in rendering the order under review. See Stewart Bonded Warehouse. Inc. v.
Bevis, 294 So. 2d 315 (Fla. 1974); Diamond Cab Co.
v.
King, 146 So. 2d 889 (Fla. 1962); and
Pingree
v.
Quaintance, 394 So. 2d 162 (Fla. 1st DCA 1981 ).
It is not appropriate to reargue
matters that have already been considered. Sherwood v. State,
111
So. 2d 96 (Fla. 3d DCA 1959)
(citing State ex. rel. Jaytex Realty Co.
	v.
	Green, 	105 So. 2d 817 (Fla. 	1st DCA 1958)).
Furthermore, a motion for reconsideration should not be granted "based upon an arbitrary feeling
that a mistake may have been made, but should be based upon specific factual matters set forth in
the record and susceptible to review." Stewart Bonded Warehouse. Inc., 294 So. 2d at 317.
EU's Motion for Reconsideration
In its Motion for Reconsideration, EU requests us to reconsider Section V(F) of the OEP
which states, in part:
..
.if a party plans to use exhibits that were not already prefiled with their
witnesses' 	testimony 	for 	cross-examination, 	impeachment, 	or 	demonstrative
purposes during the hearing, the party must provide a copy of such exhibits to all
other parties and the Commission's Office of General Counsel by January 21,
2025.
EU argues that this requirement would "negate the effectiveness of cross-examination by
eliminating any element of surprise" and allows the witness to "devise a response" with counsel
before the hearing. EU asserts that this advance disclosure amounts to a violation of due process.

ORDER NO. PSC-2024-0450-PCO-SU
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Finally, EU alleges that although the disclosure
of
cross-examination exhibits may make the
proceedings more orderly, the administrative convenience is outweighed by the damage done to
the parties.
PIEA and LGIPA's Responses to EU's Motion for Reconsideration
PIEA's 	response 	alleges 	that 	EU 	is 	conflating 	a 	negated 	effectiveness
	of
cross-
examination with due process. PIEA also notes that prevailing case law in Florida disapproves
of
"trial by ambush" for both witness testimony and exhibits.
Similarly, LGIP A noted that the purpose
of
the rules
of
discovery is to assist in the
"truth-finding function" and to avoid trial by surprise.
Analysis
The Uniform Rules applicable to administrative proceedings - Chapter 28, F.A.C. - give
the presiding officer broad authority and discretion to resolve legal issues and procedural
questions. Pursuant to Rule 28-106.102, F.A.C., a Commissioner serving as the Prehearing
Officer is a "presiding officer" in cases set for hearing at the Commission. Rule 28-106.209,
F.A.C., specifically allows the presiding officer to direct the parties to confer for the purpose
of
examining documents and other exhibits, which means the presiding officer has the authority to
require the parties to list and exchange all exhibits in advance
of
the hearing.
In addition, Rule 28-106.211, F.A.C., states that the presiding officer "may issue any
orders necessary to effectuate discovery, to prevent delay, and to promote the just, speedy, and
inexpensive determination
of
all aspects
of
the case." Prehearing disclosure requirements are, in
essence, tribunal mandated discovery.
As we have previously noted:
The purpose
of
discovery is to "eliminate surprise, to encourage settlement, and to
assist at arriving at the truth." Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. 4th
DCA 1975); Binger
v.
King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981);
Elkins v. 	Syken, 	672 	So. 2d 517, 522 (Fla. 	1996) ("Pretrial discovery was
implemented to simplify the issues in a case, to eliminate the element
of
surprise,
to encourage the settlement
of
cases, to avoid costly ·litigation, and to achieve a
balanced search for the truth to ensure a fair trial.").
Order No. PSC-2022-0194-PCO-EI. The same justifications apply to the listing and exchange
of
all potential exhibits in advance of hearing. As stated by the Florida Supreme Court:
Revelation
...
of the strength and weaknesses of each side before trial encourages
settlement of cases and avoids costly litigation. Each side can make an intelligent
evaluation of the entire case and may better anticipate the ultimate results.
Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970).

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PAGES
A ruling from the Florida Public Employee Relations Commission held that a prehearing
order requiring full disclosure and exchange
of
exhibits comports with basic due process. See
Henderson v. Dep
't
of
Child. & Fams., 2011 WL 13486273 (PERC June 15, 2011). Also, in an
"Order to Exchange Exhibits," an administrative law judge at the Division
of
Administrative
Hearings (DOAH) noted that the failure to exchange exhibits leads to trial by ambush which is
not permitted in Florida. See Nelson
v.
Ag. for Health Care Admin., Case No. 19-1562 (DOAH
June 28, 2019).
The standard prehearing procedure at DOAH, including punitive proceedings, is for the
presiding officer to issue both an Order
of
Prehearing Instructions - akin to our OEP - and a
Notice
of
Hearing. In accordance with due process considerations, standard practice at DOAH
requires a list
of
and exchange
of
all exhibits.
The Florida Supreme Court has held:
[T]he general policy
of
full and open disclosure underlying the decision has been
carried forward in Florida's rules
of
discovery. The goals
of
these procedural rules
are "to eliminate surprise, to encourage settlement, and to assist in arriving at the
truth." We recently reiterated those goals.
A search for truth and justice can be accomplished only when all
relevant facts are before the judicial tribunal. Those relevant facts
should 	be 	the 	determining 	factor 	rather 	than 	gamesmanship,
surprise, or superior trial tactics.
Binger, 401 So. 2d at 1313 (internal citations omitted) (quoting Dodson v. Persell, 390 So. 2d
704, 707 (Fla 1980)).
All parties are governed by the same requirements. There are no due process violations
from requiring parties to exchange all potential exhibits in advance
of
hearing, including cross-
examination exhibits. The requirement to list and exchange all exhibits promotes due process,
transparency, and judicial economy. The failure to do so impedes these objectives.
Consequently, we find that the prehearing officer did not make a mistake
of
fact or law
when issuing the OEP or Section V(F) requiring disclosure
of
cross-examination exhibits.
Therefore, EU' s Motion for Reconsideration is denied.
Based on the foregoing, it is
ORDERED by the Florida Public Service Commission that Mr. Hurst's Motion to
Dismiss is denied as it fails to demonstrate that Environmental Utilities, LLC's application fails
to state a cause of action upon which relief may be granted. It is further
ORDERED that Environmental Utilities, LLC's Motion for Reconsideration is denied as
it fails to raise a point of fact or law that the prehearing officer overlooked or failed to consider
in rendering their decision.
It
is further

ORDER NO. PSC-2024-0450-PCO-SU
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PAGE6
ORDERED 	that 	this 	docket 	shall 	remain 	open 	pending 	our 	final 	decision 	on
Environmental Utilities, LLC's application.
MRT
By ORDER
of
the Florida Public Service Commission this 16th day
of
October, 2024.
ice Commission
2540 Shumard 	ak Boulevard
Tallahassee, Florida 32399
(850) 413-6770
www
.floridapsc.com
Copies furnished: 	A copy
of
this document is
provided
to
the parties
of
record at the time
of
issuance and,
if
applicable, interested persons.
NOTICE OF FURTHER PROCEEDINGS OR JUDICIAL REVIEW
The Florida Public Service Commission is required by Section 120.569(1), Florida
Statutes, to notify parties
of
any administrative hearing or judicial review
of
Commission orders
that is available under Sections 120.57 or 120.68, Florida Statutes, as well as the procedures and
time limits that apply. 	This notice should not be construed to mean all requests for an
administrative hearing or judicial review will be granted or result in the relief sought.
Mediation may be available on a case-by-case basis.
	If
mediation is conducted, it does
not affect a substantially interested person's right to a hearing.
Any 	party 	adversely 	affected 	by 	this 	order, 	which 	is 	preliminary, 	procedural 	or
intermediate in nature, may request: (1) reconsideration within 10 days pursuant to Rule 25-
22.0376, Florida Administrative Code; or (2) judicial review by the Florida Supreme Court, in
the case of an electric, gas or telephone utility, or the First District Court of Appeal, in the case
of
a water or wastewater utility. 	A motion for reconsideration shall be filed with the Office of
Commission Clerk, in the form prescribed by Rule 25-22.0376, Florida Administrative Code.
Judicial review of a preliminary, procedural or intermediate ruling or order is available if review
of the final action will not provide an adequate remedy. 	Such review may be requested from the
appropriate court, as described above, pursuant to Rule 9.100, Florida Rules of Appellate
Procedure.