§ 28-300. Procedures, notices, and conduct of hearings.

(a)

The requirements of this section are in addition to other provisions in this article regarding hearings and shall apply to hearings conducted by the authority or by its appointed hearing officer. The utility shall provide notice of each hearing as specified.

(1)

The hearing officer or presiding officer shall have the authority to:

a.

Administer oaths and affirmations;

b.

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

c.

Take, or cause to be taken, depositions or witnesses; whenever the ends of justice would be served thereby;

d.

Regulate the course of hearings;

e.

Rules 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, except a final order on the merits of the matter being heard, as are necessary to effectuate the intent and purposes of this article relating to public utility matters; and

i.

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

(2)

The hearing officer or presiding officer shall have the authority to request at the conclusion of a hearing that all parties submit proposed findings of fact, conclusions of law, and proposed recommended orders or legal briefs on the issues within a time designated by the hearing officer.

a.

Proposed findings of fact shall be entitled as such, and must be presented on a document separate from all other post-hearing memoranda, and may not be contained in an extensive narrative for or contain mixed questions of fact and law.

b.

Each proposed finding of fact shall be separately stated and numbered consecutively, and shall contain citations to the record in support.

(3)

The hearing officer or presiding officer shall timely file a recommended order, which shall include a caption, time and place of hearing, appearances entered at hearing, statement of the issues, findings of fact and conclusions of law, separately stated, and recommendation for final authority action.

(4)

Exceptions and replies.

a.

Parties may file exceptions to a recommended order within fifteen (15) days of the entry of the recommended order. Such exceptions shall fully set forth the error claimed and the basis in law therefor. A party's failure to serve or timely file written exceptions shall constitute a waiver of any objections to the recommended order.

b.

Any other party may reply to the exceptions by filing and serving such reply within ten (10) days of the filing of the exceptions.

(5)

A notice of each public hearing before the authority or its hearing officer shall contain the name of the applicant, an accurate description of the purposes of the hearing, and the date and time of the hearing before the authority.

(6)

If the public hearing is for the purpose of proposed agency action or making its final decision regarding a rate increase, the affected utility shall mail a notice to each of its customers by regular mail or placed in its regular bills, but such posted notice must be received by the utility's customers at least ten (10) days before the date of that scheduled hearing.

(7)

If the notice is for a public hearing on a matter initiated by the authority, such notice shall be served by certified mail, return receipt requested, on the affected utility at least twenty (20) days before the first day of the public hearing and shall be published one time in a newspaper of general circulation in the county at least ten (10) days before the first day of the public hearing.

(8)

If the notice is for a public or evidentiary hearing to establish or change rates, fees, charges, other tariff items, or conditions of service, the utility shall publish notice of the hearing, the topic of the hearing and its location in a newspaper of general circulation in the county once a week for two (2) consecutive weeks, the first publication begin at least twenty-one (21) days before the date of hearing. Said notice shall be in a display type advertisement no less than one-eighth ( 1/8 ) of a page and shall include the current rates and any proposed changes in total dollars and percentages, identify the effect, as accurately as possible, of the proposed changes on each class of customers. The notice is subject to the authority's administrator's approval before publication.

(9)

Notice of any hearing, other than those specified herein shall be as established by the rules of the authority.

(b)

The following rules apply to all hearings before the authority or before a hearing officer:

(1)

All hearings shall be recorded and minutes shall be kept. All hearings of the authority shall be open to attendance by the general public except at such times, if any, when the specific subject to be discussed is exempt from public attendance by application of Florida Statutes.

(2)

Each matter before the authority or a hearing officer shall be presented by the party who initiated the matter or that person's designated representative. All parties to the matter shall be provided an opportunity to appear and present evidence, cross-examine witnesses, and present arguments on each matter.

(3)

Each party shall be entitled to receive copies of all pleadings, motions, notices, orders, and all other matters filed in the proceeding unless exempt from such disclosure by Florida Statute, administrative rule of the Florida Administrative Code, or any other controlling law, rule or regulation. Such matters are exempt from public disclosure in authority proceedings as would be exempt if the proceedings were before the FPSC.

(4)

Terms and conditions for filing, service of documents, computation of time, and other similar procedural matters shall conform to the Florida Rules of Civil Procedure.

(5)

The initial pleading shall be either an application or other filing by a utility, or by a person with standing in the matter, by resolution of the authority, or by appropriate charging document.

(6)

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 five (5) copies shall be submitted to the administrator of the authority, except applications for any change in rates, which shall require an original and ten (10) copies. In each specific case the administrator may require the applicant to submit additional copies.

(7)

The presiding officer may issue an order to require the filing of pre-hearing statements.

(8)

The presiding officer may require the parties to hold such conferences, exchange such information and submit such papers as may aid in the organization of the proceeding and efficient disposition of the matter or part thereof. The presiding officer may participate in such informal conferences as appropriate.

(9)

Upon seven (7) days written notice to the parties, one or more pre-hearings may be conducted for the purpose of hearing arguments on pending motions, clarifying or simplifying issues, discussing possibility of settlement of issues or the entire matter, examining documents and exhibits exchanging names and addresses, and otherwise attempting to resolve the matter.

(10)

The presiding officer may issue pre-hearing orders.

(11)

Parties may obtain discovery through the means and in the manner provided in Rules 1.280 through 1.400 Florida Rules of Civil Procedure (FRCP). The presiding officer may issue appropriate orders to effectuate the purposes of discovery and to prevent delay and unnecessary expenses, and may impose appropriate sanctions under rule 1.380 FRCP, other than contempt, or award any expenses, fee, or damages. Sanctions may include dismissal of the entire proceeding.

(12)

All testimony at a hearing shall be under oath and shall be recorded. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. All witnesses who testify shall be subject to cross-examination.

(13)

At the conclusion of hearings conducted by a hearing officer or as soon thereafter as practicable, the hearing officer shall issue a recommended order containing findings of fact based on the evidence in the record, and conclusions of law.

(14)

Decisions of the authority shall be by motion approved by at least three (3) members present and voting.

(15)

Except for pass-through, indexing, or staff assisted rate cases, persons other than the original parties who can demonstrate a substantial interest in the proceeding and who desire to become a party may petition the presiding officer for leave to intervene. Each petition must be received by the administrator of the authority at least five (5) days prior to commencement of the next scheduled hearing date and must include allegations sufficient to demonstrate that the intervenor is entitled to participate in the matter as a matter of law. Interventions may be allowed at any time into the specific proceeding, but all intervenors shall take the matter as they find it. Intervention shall never be allowed if the intervention would unduly prejudice any party if the intervenor could have entered into the proceeding at an earlier date. The administrator shall forward the petition to the presiding officer.

(16)

For procedures involving expert witnesses, subpoenas, recordation, due process protection, evidence, post hearing procedures, motions for reconsideration, stay pending judicial review, and receivers, and dismissals, the rules of the board or the authority will control.

(17)

The presiding officer may grant a continuance of a hearing for good cause shown or upon stipulation of all parties. Requests for a continuance shall be made in writing or upon oral motion at a hearing. Except in cases of emergency, requests for continuance must be made at least five (5) days prior to the date notice for the start of the hearing.

(c)

Procedures for authority consideration of a recommended order of a hearing officer.

(1)

In order for a recommended order of a hearing officer to be effective, it must be approved by an order or resolution issued by the authority, with or without modifications, at any regular or special meeting of the authority.

(2)

Any party, including an individual customer of a utility, who is dissatisfied with any recommended order of a hearing officer may object to possible approval of such order by the authority by filing with the clerk of the authority a written notice of objection within ten (10) days of issuance of the recommended order. Upon the filing of such notice, the authority may set a public hearing to consider that recommended order, shall review any record from the proceedings before the authority, and may hear legal arguments related to that recommended order. Based upon such information, the authority shall decide whether to approve, amend and approve, reverse the recommended order, remand the matter back to the hearing officer or take other action as the authority deems appropriate.

(3)

In the event a notice of objection is not filed within ten (10) days of issuance of a recommended order, the authority may confirm such order without a hearing, whereupon the recommended order shall take effect as specified by the authority. Unless otherwise specified, the order shall become fully effective upon approval by the authority.

(4)

A final order of the authority shall take effect as directed by the authority without confirmation by the board.

(5)

At any public hearing before the authority for the consideration of a recommended order, the authority shall consider the record of the proceedings before the authority and the legal arguments of the affected utility, any party, and of the staff. No recommended order of a hearing officer shall be binding on the authority. The authority may rely on the findings of fact found by the hearing officer unless the authority determines that the specific finding of fact was not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. If the authority determines that any unaccepted finding of fact cannot be relied upon, it shall refer the matter back to the hearing officer to establish such additional record evidence.

(Ord. No. 2002-20, § 10, 10-8-02)