§ 126-130. Rate hearings.

(a)

Selection of the pool of Hearing Examiners.

(1)

Hearing Examiners shall be attorneys licensed to practice in the State of Florida who have demonstrated an expertise in Public Utility regulatory ratemaking.

(2)

The County Administrator shall select a pool of individuals to serve as Hearing Examiners with the authority to conduct Public Utility rate hearings and to issue recommended orders to the Board. The County Administrator shall have the authority to remove Hearing Examiners from the pool with or without cause.

(3)

Hearing Examiners shall not be County employees, shall be compensated at a rate not to exceed the hourly rate established by resolution of the Board and shall be reimbursed for travel, mileage and per diem expenses pursuant to County travel policy as established by resolution of the Board.

(b)

Appointments.

(1)

Following the application by a Franchisee for a rate adjustment, but no later than the time notice of the public hearing is given, the County Administrator shall appoint from the pool a Hearing Examiner. There shall be no limit to the number of appointments that may be given to any individual Hearing Examiner.

(2)

If a Hearing Examiner becomes unavailable after appointment, he or she shall notify the County Administrator who shall make another appointment as soon as practicable.

(3)

Detailed invoices from the Hearing Examiner for costs and fees must be submitted to the Office of the County Attorney for review. Approved costs and fees for Hearing Examiners shall be paid out of the County Utility Franchise Administration Fee Fund.

(c)

Public notice. Notices of the prehearing and the rate hearing shall contain the name of the applicant and the general nature of the proposed change and shall be published in a newspaper of general publication in Sarasota County at least ten days prior to the prehearing and rate hearing.

(d)

Rate hearing proceedings.

(1)

Parties.

a.

Parties to a rate hearing proceeding are the Franchisee, County Staff, and intervenors, if any. Parties shall be entitled to receive copies of all pleadings, motions, notices, orders and other matters filed in a proceeding.

b.

County Staff's primary duty is to see that all relevant facts and issues are clearly brought before the Hearing Examiner or the Board, to provide for the County's expert witnesses, when needed, and to negotiate proposed settlements.

(2)

Filing, service of documents, and computation of time.

a.

Filing. All documents, as required herein, shall be filed with County Staff. A document shall be considered filed upon receipt by County Staff. The applicant shall indicate the date of submittal on the first page of the document. Where a document is served upon a party pursuant to this article, a duplicate original shall be filed with County Staff no later than five days after service. During the course of a hearing, documents may be submitted as evidence and, once accepted by the Hearing Examiner or the Board, made part of the record.

b.

Service. A copy of all documents filed pursuant to this article shall be served on each of the parties no later than three days following the date of filing. In the event that the number of parties or production of copies to be made is so numerous that this requirement is onerous, the Hearing Examiner or the Board, on motion, may extend the time limit for service. Service by U.S.P.S. first-class mail shall be completed upon mailing to the last known address.

c.

Method and proof of service. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the Hearing Examiner or the Board. Service on the attorney or party shall be made by hand delivery or by U.S.P.S. first-class mail to the last known address. Delivery of a copy pursuant to this article shall be in accordance with Florida Rules of Civil Procedure.

d.

Additional time after service by U.S.P.S. mail. Whenever a party is required or permitted to do any act within a prescribed time after service of a document, and the document is served by U.S.P.S. mail, five days shall be added to the prescribed time. Any action required by an order of the Hearing Examiner or the Board shall be completed on or before the specified date, if any, in the order.

e.

Computation of time. In computing any period of time prescribed or allowed in this article, by order of the Hearing Examiner or the Board, or by any other applicable ordinance, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday. As used in these rules, legal holiday means those days designated by Florida law and any other day the Board's offices are closed.

(3)

Discovery. Parties may obtain discovery through the means and in the manner provided in Florida Rules of Civil Procedure. The Hearing Examiner or the Board may issue appropriate orders to effectuate the purposes of discovery and to prevent delay and may impose appropriate sanctions under Florida Rules of Civil Procedure, except that such sanctions may not include contempt or the award of expenses. Sanctions may include dismissal.

(4)

Miscellaneous matters.

a.

Consolidation. Consolidation of proceedings is appropriate if there are separate matters before the Hearing Examiner or the Board which involve similar issues of law or fact or identical parties. Any party to a proceeding may request that it be consolidated with other proceedings, or the Hearing Examiner or the Board may order separate proceedings to be consolidated.

b.

Procedure. Generally, the Florida Rules of Civil Procedure shall govern the proceedings before the Hearing Examiner or the Board, except that the provisions of this article supersede the Florida Rules of Civil Procedure where conflict arises between the two.

(5)

Initiation of formal proceedings.

a.

Initial pleading. The initial pleading shall be either an application by the Franchisee or a resolution of the Board.

b.

Pleadings. Pleadings shall substantially conform to the Florida Rules of Civil Procedure as to content, form, size, signatures, and certifications, and shall be served upon all parties. The original and ten copies of all pleadings, including the application for a rate change, shall be submitted to County Staff.

(6)

Prehearing procedure, if applicable.

a.

The Hearing Examiner or the Board may issue an order requiring each party to file a prehearing statement. Such order shall provide a date by which time such prehearing statement is due and shall further state that the failure of a party to file a prehearing statement shall be a waiver of any issues not raised by other parties, as well as a waiver of the right to present testimony in favor of his or her position. An order requiring a prehearing statement may address or rule upon any matter which may aid in the orderly disposition of the proceeding. In an order requiring a prehearing statement, the Hearing Examiner or the Board may require each party:

(i)

To identify all known witnesses that may be called and indicate the subject matter of their testimony;

(ii)

To identify all known exhibits, identify their contents, and indicate whether they may be identified on a composite basis;

(iii)

To provide a statement of its basic position in the proceedings;

(iv)

To provide a statement of each question of fact the party considers at issue;

(v)

To provide a statement of each question of law the party considers at issue;

(vi)

To provide a statement of each policy question the party considers at issue;

(vii)

To provide a statement of the party's position on each identified issue;

(viii)

To provide a statement of issues that have been stipulated to by the parties;

(ix)

To provide a statement of all pending motions or other matters the party seeks action upon; and

(x)

To include such other matters in the prehearing statement as will aid in achieving an orderly disposition of the proceeding.

b.

Informal conferences. The Hearing Examiner or the Board may require the parties to hold conferences, exchange information, and submit pleadings to aid in the organization of the proceeding and efficient disposition of the merits of the proceeding.

c.

Prehearing notice to the parties. Upon a minimum of ten days' written notice to the parties, one or more prehearings may be conducted for the purpose of hearing arguments on pending motions, clarifying and simplifying issues, discussing the possibility of settlement of the issues, examining exhibits and documents, exchanging names and addresses, and resolving other procedural matters.

d.

Prehearing order. The Hearing Examiner or the Board may issue a prehearing order which sets forth the issues in the case, as well as the positions of the parties, and addresses other matters as may aid in the conduct of the hearing and in the efficient and fair disposition of the proceeding. Issues raising primarily questions of fact shall be stated separately from issues raising solely legal questions. The prehearing order shall control the conduct of the parties in the case to the extent the matter is addressed in the order. Except for good cause, if an objection to any aspect of the prehearing order is not raised at the start of or prior to the taking of testimony, it is waived.

e.

Requirement to record prehearing. The Clerk to the Board shall record the prehearing and accept and maintain all exhibits.

(7)

Intervention. With the exception of staff-assisted rate cases, pass through rate adjustments, and price indexing rate adjustments, Persons, other than the original parties to a rate hearing, who have a substantial interest in the hearing and who desire to become parties, may petition the Hearing Examiner or the Board for leave to intervene. Petitions for leave to intervene must be filed with County Staff at least five days prior to the commencement of the rate hearing and must include allegations sufficient to demonstrate that the intervenor is entitled to participate in the hearing as a matter of law. Intervenors take the case as they find it.

a.

Public counsel. Any person who represents at least ten percent of the customers served by the Franchisee which is seeking a rate adjustment may include with the petition to intervene a request for the assistance of public counsel. County Staff will contact the State of Florida's Office of Public Counsel to determine the availability to provide the requested representation.

(i)

The Board shall consider the availability of the Office of Public Counsel in making its determination regarding the request for assistance of public counsel.

(ii)

At its option, the Board may direct the County Administrator to appoint public counsel from the pool of Hearing Examiners.

1.

The hourly billing rate of public counsel shall be determined from time to time by Board resolution.

2.

Detailed invoices from public counsel for costs and fees must be submitted to the Office of County Attorney for review.

3.

Public counsel representation is limited to preparation for and attendance at prehearings, public hearings, and deliberative sessions.

4.

Approved costs and fees for public counsel shall be paid out of the County Utility Franchise Administration Fee Fund.

(iii)

In the event the public counsel or Office of Public Counsel determines that any individual or group of intervenors have interests in conflict with the majority of intervenors, such individual or group may employ separate legal counsel at its own expense or proceed to represent himself or themselves pro se. All pro se intervenors must follow the ordinances, rules and regulations of Sarasota County, and the relevant laws of the State of Florida.

(iv)

No more than one public counsel shall be appointed per rate hearing.

b.

Expert witnesses for County Administrator-appointed public counsel.

(i)

Upon request by public counsel at a regularly scheduled Board meeting, the Board may grant to public counsel the authorization to hire expert witnesses in the areas specified by public counsel, subject to the following limitations:

1.

Public counsel shall submit to County Staff a detailed written request for expert witnesses no later than 15 days prior to the Board meeting at which the request will be considered, specifying the information requested and the expected cost. Failure to file the request on a timely basis waives the right to obtain Board approval and the County shall have no obligation to pay for public counsel's expert witnesses retained on behalf of the intervenor; and

2.

Detailed invoices from expert witnesses must be submitted to the office of the County Attorney for review.

(ii)

Approved costs and fees for expert witnesses for rate hearings shall be paid out of the County Utility Franchise Administration Fee Fund;

(iii)

Any expert witnesses sought, but not approved by the Board, may be retained at the sole cost of the intervenor.

(8)

Continuances. Unless otherwise approved by the Hearing Examiner or the Board, requests for continuance must be made in writing at least five days prior to the date noticed for the hearing. The Hearing Examiner or the Board may grant a continuance of a hearing for good cause shown or upon stipulation of all parties.

(9)

Dismissal.

a.

The failure or refusal of a party to comply with any lawful order issued by the Hearing Examiner or the Board may be cause for dismissing the party from the proceeding.

b.

If an order dismissing the party is entered, the party against whom such an order is entered may file a motion no later than 14 days after service of the order with the Hearing Examiner or the Board that issued the order, requesting that the dismissal be set aside and stating the grounds relied upon.

(e)

Conduct of rate hearings.

(1)

Powers and duties. The Hearing Examiner or the Board shall have the authority to:

a.

Administer oaths and affirmations;

b.

Subpoena witnesses or production of documents or other evidence for the purpose of taking the testimony of such witnesses and inspection of evidence at a public hearing;

c.

Take or cause to be taken depositions of witnesses;

d.

Regulate the course of hearings;

e.

Rule upon offers of proof and receive relevant and material evidence;

f.

Dispose of procedural requests, objections and similar matters;

g.

Hold conferences for simplification of issues by consent of the parties;

h.

Enter such orders as are necessary to effectuate the intent and purposes of this article or any other rule, regulation, resolution or ordinance relating to Public Utility matters; and

i.

Cause the testimony at hearings and other proceedings to be preserved.

(2)

Subpoenas. Subpoenas may be issued by the Clerk of the Board upon written application of a party or upon request of the Hearing Examiner or the Board. Applications shall contain the name and address of the witness, and the time and place at which the witness is to appear. A subpoena may be served in the manner provided for in civil cases or by certified mail with restricted delivery to addressee, in which case the return receipt must be signed by the Person named in the subpoena.

(3)

Recordation and requirement to record hearing. The Clerk to the Board shall record the hearing and accept and maintain all exhibits. Proceedings shall be preserved by a certified court reporter or by recording instruments of the Clerk to the Board. Any party to a hearing may, at its own expense, provide a certified court reporter. If a court reporter records the proceedings, the transcript of that recordation shall become the official transcript. Any person who wishes a written transcript of the testimony shall order such at its own expense.

(4)

Due process protection. The Hearing Examiner or the Board shall insure the right of every party to:

a.

Present the party's case or defense by oral and documentary evidence;

b.

Submit rebuttal evidence and conduct such cross examination as may be required for a full and true disclosure of the facts;

c.

Make offers of settlement or proposals of adjustment;

d.

Be accompanied, represented and advised by counsel, or to proceed by self-representation; and

e.

Be notified of the denial in whole or in part of any written application or other request.

(5)

Evidence.

a.

Oral evidence shall be taken only on oath or affirmation.

b.

Each party shall have the right to present evidence relevant to the issues, to cross examine opposing witnesses, to impeach any witness in accordance with Florida law, regardless of which party first calls that witness to testify, and to rebut the evidence presented against it.

c.

Any relevant evidence shall be admitted if it is the sort of evidence which is normally admissible in civil trials in Florida or which reasonably prudent Persons are accustomed to relying upon in the conduct of their affairs. Hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient by itself to support a finding unless it would be admissible over objection in civil actions. Irrelevant and unduly repetitious evidence may be excluded.

d.

All pre-filed testimony shall be typed on standard eight-inch by 11-inch paper, double spaced, with 25 numbered lines, and a sufficient left margin to allow for binding.

e.

Upon providing copies of written testimony to all parties of record, a witness may enter that testimony into the record as though read, at which time the witness shall become subject to cross examination.

(6)

Post-hearing procedures.

a.

Post-hearing filings. If requested by the Hearing Examiner or the Board at the commencement of the proceedings, all parties shall submit proposed findings of fact, conclusions of law, recommended orders and/or legal briefs on the issue within a time designated by the Hearing Examiner or the Board. A party who fails to state or reaffirm a position on an issue to the Hearing Examiner or the Board in the filing shall be deemed to have waived that issue or position.

b.

Proposed findings of fact.

(i)

Proposed findings of fact shall be entitled as such, and must be submitted to the Hearing Examiner or the Board on a document separate from all other post-hearing memoranda.

(ii)

Each proposed finding of fact shall be separately stated, numbered consecutively, and may not be contained in extensive narrative form or contain mixed questions of fact and law.

(iii)

The Hearing Examiner or the Board will rule upon each proposed finding of fact.

c.

Hearing Examiner's recommended order. The Hearing Examiner shall, within a time agreed by all parties, file a recommended order which shall include a caption, time and place of hearing, appearances entered at the hearing, statement of the issues, findings of fact and conclusions of law, separately stated, and recommendation for final Board action.

d.

Exceptions and replies.

(i)

Parties may file exceptions to a recommended order within a time agreed upon by the Hearing Examiner and all parties. Such exceptions shall fully set forth the error claimed and the basis in law therefor. A party's failure to serve or file timely written exceptions shall constitute a waiver of any objections to the recommended order.

(ii)

Any other party may reply to the exceptions by filing and serving such replies within a time agreed upon by the Hearing Examiner and all parties.

(iii)

Failure to file timely exceptions to a recommended order shall constitute a waiver thereof, as well as a waiver of any objections to the findings or conclusions contained therein.

(7)

Deliberative session. The Board shall conduct a duly advertised deliberative session at a regularly scheduled Board meeting to review the recommended order and any exceptions, replies and requests for oral argument which have been timely filed, and to adopt a resolution establishing rates and finalizing all issues raised by the parties, which shall constitute the final order of the Board.

a.

This proceeding shall not be a de novo review, but shall be confined to the record submitted to the Board together with the recommended order.

b.

Oral argument may be requested in writing by any party to a public hearing under this subsection and must be filed with the Clerk to the Board, with a copy to County Staff, no later than ten days after the issuance of the recommended order. The request shall state with particularity why oral argument would aid the Board in comprehending and evaluating the issues raised by exceptions or replies. Failure to file a timely request for oral argument shall constitute waiver thereof. The request for oral argument shall stay the automatic implementation of rate change set forth in Section 126-133.

c.

The Board may grant or deny a request for oral argument in its discretion. If granted, oral argument shall be conducted at a time and place as determined by the Board. Unless otherwise specified in the notice, oral argument shall be limited to 15 minutes to each party. An attorney from the Office of County Attorney may represent County Staff. No new or additional evidence may be taken at oral argument.

d.

If a party files exceptions to a recommended order, the final decision by the Board shall include an explicit ruling on each exception.

(8)

Board-conducted hearing. If the Board conducts the hearing, it shall issue a final order which shall include a caption, time and place of hearing, appearances entered at the hearing, statement of the issues, findings of fact and conclusions of law, separately stated.

a.

Exceptions and replies.

(i)

Parties may file exceptions to a final order of the Board within ten days after issuance of the order. Such exceptions shall fully set forth the error claimed and the basis in law therefor. A party's failure to serve or file timely written exceptions shall constitute a waiver of any objections to the recommended order.

(ii)

Any other party may reply to the exceptions by filing and serving such replies to the Board and all parties within ten days after receipt of the exceptions.

(iii)

Failure to file timely exceptions to a final order of the Board shall constitute a waiver thereof as well as a waiver of any objections to the findings or conclusions contained therein.

b.

Oral argument. Oral argument may be requested by any party at the time of filing any exceptions and replies. The request must be in writing, in a separate document, and filed with the Clerk to the Board, with a copy to County Staff. The request shall state with particularity why oral argument would aid the Board in comprehending and evaluating the issues raised by exceptions or replies. Failure to file a timely request for oral argument shall constitute waiver thereof.

(i)

The Board may grant or deny a request for oral argument in its discretion. If granted, the request for oral argument shall stay the automatic implementation of rate change set forth in Section 126-133. Oral argument shall be conducted at a time and place as determined by the Board. Unless otherwise specified in the notice, oral argument shall be limited to 15 minutes to each party. An attorney from the Office of County Attorney may represent County Staff. No new or additional evidence may be taken at oral argument.

(ii)

If a party files exceptions, the final decision by the Board shall include an explicit ruling on each exception.

(9)

Motion for reconsideration.

a.

Following Board action on any exceptions and replies, any party to a proceeding who is adversely affected by the Board's final order may file a motion for reconsideration of that order. The Board will not entertain any motion for reconsideration of any order which disposes of a motion for reconsideration.

b.

A motion for reconsideration of a final order shall be filed within ten days after service of the resolution adopting the final order. A response to a motion for reconsideration shall be served within ten days of service of the motion for reconsideration.

c.

A final order shall not be deemed rendered for the purpose of judicial review until the Board disposes of any motion and cross motion for reconsideration of that order. This provision does not serve to automatically stay the effectiveness of any such final order.

d.

Failure to file a timely motion for reconsideration, cross motion for reconsideration, or response shall constitute waiver of the right to do so.

e.

Oral argument on any pleading filed under this rule shall be granted solely at the discretion of the Board.

f.

Any motion or response filed pursuant to this section shall contain a concise statement of the grounds for reconsideration and signature of movant or respondent.

(10)

Stay pending judicial review.

a.

The Board shall, upon motion filed by the Franchisee, grant a stay pending judicial proceedings when the order being appealed would result in the refund of monies to customers or a decrease in rates charged to customers resulting in a decrease in Franchisee revenues. The stay shall be continued upon the Franchisee posting a good and sufficient bond, establishing a separate escrow account requiring County permission to remove funds, establish a Corporate Undertaking or taking such other actions as the Board finds appropriate. The Board has the right to grant, deny or amend the motion.

b.

Any other party filing such an appeal shall file a motion requesting that the Board order the Franchisee to establish a separate escrow account requiring County permission to remove funds, establish a Corporate Undertaking or take such other actions as the Board finds appropriate. The Board has the right to grant, deny or amend the motion.

c.

In determining whether to grant the motions above, the Board may, among other things, consider:

(i)

Whether the petitioner is likely to prevail on appeal;

(ii)

Whether the petitioner has demonstrated irreparable harm if the stay is not granted; or

(iii)

Whether the delay will cause substantial harm or be contrary to the public interest.

d.

The Board may appeal a court order, which acts as an automatic stay. If the court order being appealed grants:

(i)

A greater increase in a Franchisee's rates, the Board shall vacate the stay upon motion by the Franchisee; or

(ii)

A lesser refund of monies to customers or a lesser decrease in a Franchisee's rates, the Board may vacate the stay upon motion by the Franchisee and may require the posting of a good and sufficient bond, establishing a Corporate Undertaking or may impose any other lawful conditions.

e.

In determining the amount and conditions of the bond, separate escrow account or Corporate Undertaking, the Board may consider such factors as:

(i)

Financial condition of the Franchisee; and

(ii)

The prevailing rate of interest on potential monies owed to Franchisee customers that takes into consideration the interest paid by commercial banks.

f.

When a stay or a vacation of a stay is conditioned upon the posting of a bond or Corporate Undertaking, the Board may, at the time it grants the stay or vacation of the stay, set the rate of interest to be paid by the Franchisee in the event that the court's decision requires a refund to customers.

g.

Any refunds will include interest earned.

(Ord. No. 2016-041, § 2, 9-21-2016)