Response to Court’S March 2, 2021 Order to Show Cause ______

Filing # 124087126 E-Filed 03/31/2021 11:53:21 AM

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ______

Case No.: 1D21-0579 L.T. Case No.: 20190168-WS ______

JEA,

Petitioner,

FIRST COAST REGIONAL UTILITIES, INC.,

Respondent.

______

THE FLORIDA PUBLIC SERVICE COMMISSION’S RESPONSE TO COURT’S MARCH 2, 2021 ORDER TO SHOW CAUSE ______

Samantha M. Cibula Fla. Bar No. 0116599 [email protected] Kathryn G.W. Cowdery Fla. Bar No. 363995 [email protected] Keith C. Hetrick Fla. Bar No. 564168 RECEIVED, 03/31/2021 11:54:27 AM, Clerk, First District Court of Appeal [email protected]

Florida Public Service Commission 2540 Shumard Oak Blvd. Tallahassee, Florida 32399-0850 (850) 413-6199

TABLE OF CONTENTS

PAGE NO. TABLE OF CITATIONS ...... iii

I. BACKGROUND ...... 1

II. ARGUMENT ...... 5

A. Chapter 367, Florida Statutes, unequivocally gives the Commission exclusive jurisdiction to consider and decide First Coast Utilities’ application...... 8

B. The Commission is not exceeding its jurisdiction in its consideration of ordinances and franchise agreements in its evaluation of First Coast Utilities’ application...... 13

1. The Commission has the authority under section 367.045(4), Florida Statutes, to consider the objections raised by JEA in regard to whether First Coast Utilities should be granted a certificate of authorization to serve the area at issue...... 14

2. The Commission has not indicated that it intends to determine the validity or constitutionality of the ordinances or franchise agreements raised by JEA...... 17

3. The Commission has the authority to interpret ordinances and franchise agreements in exercising its jurisdiction under chapter 367, Florida Statutes...... 20

4. The Commission’s jurisdiction under chapter 367, Florida Statutes, is exclusive and superior to local government ordinances and franchise agreements...... 22

C. JEA has an appropriate and adequate legal remedy.. …31

III. CONCLUSION...... 32

CERTIFICATE OF SERVICE ...... 34

CERTIFICATE OF COMPLIANCE ...... 35

TABLE OF CITATIONS

CASES PAGE NO.

Board of County Commissioners Indian River County v. Graham, 191 So. 3d 890 (Fla. 2016) ...... 27,28

City of Mount Dora v. JJ’s Mobile Homes, Inc., 579 So. 2d 219 (Fla. 5th DCA 1991) ...... 18,19

City of Oviedo v. Clark, 699 So. 2d 316 (Fla. 1st DCA 1997), rev. dismissed, 705 So. 2d 7 (Fla. 1997) ...... 16

City of Plantation v. Utilities Operating Co., 156 So. 2d 842 (Fla. 1963), appeal dismissed, 379 U.S. 2 (1964) ...... 29

Communications Workers of America, Local 3170 v. City of Gainesville, 697 So. 2d 167 (Fla. 1st DCA 1997) ...... 18,20,21

English v. McCrary, 348 So. 2d 293 (Fla. 1977)...... 5,6,8,31,32

Florida Hospital Adventist Health v. Agency for Health Care Administration, 823 So. 2d 844 (Fla. 1st DCA 2002) ...... 32

Florida Power & Light Co. v. Albert Litter Studios, Inc., 896 So. 2d 891 (Fla. 3d DCA 2005) ...... 13,30,31

Florida Public Service Commission v. Bryson, 569 So. 2d 1253 (Fla. 1990) ...... passim

H. Miller & Sons, Inc. v. Hawkins, 373 So. 2d 913 (Fla. 1979) ...... 29

iii

Lake Utility Services, Inc. v. City of Clermont, 727 So. 2d 984 (Fla. 5th DCA 1999) ...... 18,19

Rice v. Department of Health & Rehabilitative Services, 386 So. 2d 844 (Fla. 1st DCA 1980) ...... 32

Roemmele-Putney v. Reynolds, 106 So. 3d 78 (Fla. 3d DCA 2013) ...... 24,25,26

Southern Records & Tape Service v. Goldman, 502 So. 2d 413 (Fla. 1986) ...... 5

State ex rel. Smith v. Gomez, 179 So. 651 (Fla. 1938) ...... 32

Town of Indian River Shores v. City of Vero Beach, Case No. 312014CA000748 (Fla. 19th Cir. Ct. Nov. 11, 2015) ...... 25,26,27

FLORIDA STATUTES

Ch. 163, Fla. Stat...... 16

Ch. 180, Fla. Stat...... 17

Ch. 366, Fla. Stat...... 23,27,29

Ch. 367, Fla. Stat...... passim

Ch. 440, Fla. Stat...... 20

Ch. 447, Fla. Stat...... 20

§ 120.565, Fla. Stat...... 27

§ 120.569, Fla. Stat...... 3,11,12,13,31

§ 120.57, Fla. Stat...... 3,11,12,13,31,32

§ 120.68, Fla. Stat...... 8,31

§ 163.3161, Fla. Stat...... 15

§ 163.3162, Fla. Stat...... 15

§ 163.3163, Fla. Stat...... 15

§ 163.3164, Fla. Stat...... 15

§ 163.3167, Fla. Stat...... 15

§ 163.3168, Fla. Stat...... 15

§ 163.3171, Fla. Stat...... 15

§ 163.3174, Fla. Stat...... 15

§ 163.3175, Fla. Stat...... 15

§ 163.3177, Fla. Stat...... 15

§ 163.31771, Fla. Stat...... 15

§ 163.31777, Fla. Stat...... 15

§ 163.3178, Fla. Stat...... 15

§ 163.3179, Fla. Stat...... 15

§ 163.3180, Fla. Stat...... 15

§ 163.31801, Fla. Stat...... 15

§ 163.31802, Fla. Stat...... 15

§ 163.3181, Fla. Stat...... 15

§ 163.3182, Fla. Stat...... 15

§ 163.3184, Fla. Stat...... 15

§ 163.3187, Fla. Stat...... 15

§ 163.3191, Fla. Stat...... 15

§ 163.3194, Fla. Stat...... 15

§ 163.3197, Fla. Stat...... 15

§ 163.3201, Fla. Stat...... 15

§ 163.3202, Fla. Stat...... 15

§ 163.3204, Fla. Stat...... 15

§ 163.3206, Fla. Stat...... 15

§ 163.3208, Fla. Stat...... 15

§ 163.3209, Fla. Stat...... 15

§ 163.3211, Fla. Stat...... 15

§ 180.02(2), Fla. Stat...... 26

§ 350.128(1), Fla. Stat...... 8,31

§ 366.01, Fla. Stat...... 28

§ 366.04, Fla. Stat...... 27

§ 366.04(1), Fla. Stat...... 26,28

§ 366.04(2)(d), Fla. Stat...... 28

§ 366.04(2)(e), Fla. Stat...... 28

§ 366.04(5), Fla. Stat...... 28

§ 367.011(3), Fla. Stat...... 29,30

§ 367.011(4), Fla. Stat...... 23

§ 367.021(1), Fla. Stat...... 9,30

§ 367.021(10), Fla. Stat...... 9

§ 367.021(12), Fla. Stat...... 8

§ 367.022, Fla. Stat...... 8,11

§ 367.022(2), Fla. Stat...... 11

§ 367.031, Fla. Stat...... 1,9,30

§ 367.045, Fla. Stat...... passim

§ 367.045(1), Fla. Stat...... 10

§ 367.045(1)(b), Fla. Stat...... 14,21

§ 367.045(4), Fla. Stat...... passim

vii

§ 367.045(5), Fla. Stat...... 7,21

§ 367.045(5)(a), Fla. Stat...... 12,14,30

§ 367.045(5)(b), Fla. Stat...... 16

§ 367.171(3), Fla. Stat...... 9

§ 367.171(7), Fla. Stat...... 8,9,13,22,30

FLORIDA ADMINISTRATIVE CODE

Fla. Admin. Code R. 25-30.033 ...... 2,10,11,15

Fla. Admin. Code R. 25-30.033(1)(j) ...... 10

Fla. Admin. Code R. 25-30.033(1)(k) ...... 11

FLORIDA RULES OF APPELLATE PROCEDURE

Fla. R. App. P. 9.100(e)(3) ...... 1

Fla. R. App. P. 9.100(h) ...... 5

viii

FLORIDA PUBLIC SERVICE COMMISSION ORDERS

In re: Application for amendment of Certificate No. 106-W to add territory in Lake County by Florida Water Services Corporation, Order No. PSC-01-2501-FOF-WU, 2001 WL 1674035 (Fla. P.S.C. Dec. 21, 2001)...... 17

OTHER AUTHORITIES

Black’s Law Dictionary, 11th edition (2019) ...... 22

Pursuant to Florida Rule of Appellate Procedure 9.100(e)(3), the lower tribunal, the Florida Public Service Commission

(Commission or PSC), hereby files its response to this Court’s

March 2, 2021 order to show cause why the Petition for Writ of

Prohibition filed by Petitioner, JEA, should not be granted. The

Commission has exclusive jurisdiction, pursuant to Chapter 367,

Florida Statutes, to consider and decide Respondent’s, First Coast

Regional Utilities, Inc.’s (First Coast Utilities), application for certificate of authorization to provide water and wastewater service pending before the Commission. Thus, a writ of prohibition is not proper and should be denied, and the Court’s March 2, 2021 order to show cause should be discharged to allow the Commission to process First Coast Utilities’ application. In support, the

Commission states:

I. BACKGROUND

Commission Docket No. 20190168-WS was opened to address

First Coast Utilities’ application for original certificate of authorization to provide water and wastewater service in Duval,

Baker, and Nassau Counties, filed pursuant to sections 367.031 and 367.045, Florida Statutes, and Florida Administrative Code 1

Rule 25-30.033. (JEA App., pg. 6.)1 By its application, First Coast

Utilities proposes to operate a water and wastewater utility system to provide service to an area that transverses Duval, Baker, and

Nassau Counties. (JEA App., pgs. 6-8.) The sole purpose of First

Coast Utilities is to provide water and wastewater service to the proposed service territory. (JEA App., pg. 13.)

On December 16, 2019, JEA timely filed an objection to First

Coast Utilities’ application. In its objection, JEA identified itself as

“a ‘governmental authority’ and ‘utility’ as those terms are used in section 367.045(4), Florida Statutes.” (JEA App., pg. 242.) In addition, JEA alleged that its substantial interests are affected by the Commission’s determination of First Coast Utilities’ application, claiming that: (1) JEA has exclusive franchise agreements with the

City of Jacksonville and Nassau County to provide water and wastewater service to parts of the proposed service area; (2) issuance of a certificate of authorization to First Coast Utilities

1 The Appendix to JEA’s Petition is cited as (JEA App., pg. [page number].). JEA’s Petition is cited as (Petition, pg. [page number].). The Appendix to the Commission’s Response is cited as (PSC App., pg. [page number].). 2 would be contrary to the City of Jacksonville’s comprehensive plan;2 and (3) residents within the proposed service area may be precluded from obtaining water and wastewater service of better quality and at lower cost through JEA if First Coast Utilities’ application is granted. (JEA App., pg. 242.)

Because JEA objected to First Coast Utilities’ application, the matter was set for an administrative hearing under sections

120.569 and 120.57, Florida Statutes. (PSC App., pg. 15.) The

Commission prehearing officer on April 17, 2020, issued an Order

Establishing Procedure that addressed the process and deadlines for discovery, pre-filed testimony and exhibits, and set the hearing for September 22-23, 2020. (PSC App., pgs. 15, 24.) Pre-filed direct testimony, rebuttal testimony, and exhibits were filed by JEA and

First Coast Utilities pursuant to the order. (PSC App., pg. 24.)

In September 2020, JEA and First Coast Utilities filed separate motions for summary final order in the proceeding below, which were both denied by the Commission. (JEA App., pgs. 405, 474,

2 The franchise agreements and comprehensive plan, as well as any other local ordinances that have been raised by JEA, will be collectively referred to herein as “franchise agreements and ordinances.” 3

549.) In its January 25, 2021 order denying JEA’s motion for summary final order, the Commission stated:

To determine whether summary final judgment should be granted, there would need to be no genuine issue of material fact regarding: (1) whether JEA acquired the legal right to provide water service to the subject area and has the ability to do so; (2) whether the PUD Ordinance and franchise agreement were authorized by law; (3) whether the PUD Ordinance and franchise agreement obligate JEA to provide water service to the subject area or does it merely reserve the JEA’s right to [do] so; (4) if JEA acquired its right to provide water service to the subject area, has JEA failed to exercise its concomitant duty to promptly and efficiently provide those services, which would result in a waiver of the right to do so; and (5) whether any changes or updates to the PUD Ordinance have been made or requested.

(JEA App., pg. 558.) The Commission also stated that based on its review, “it appears that some of JEA’s points demonstrate that conflicting reasonable inferences may be drawn from the facts” and that “the extensive pleadings of the parties clearly demonstrate that conflicting reasonable inferences may be drawn from the facts giving rise to the territorial dispute.” (JEA App., pg. 558.) Moreover, the Commission stated that it disagreed with JEA that “the mere existence of JEA’s franchise automatically precludes [the

Commission] from asserting jurisdiction and rendering a decision with respect to First Coast’s application for a certificate.” (JEA App., 4 pg. 558.) JEA did not request reconsideration of the order denying its motion for summary final order and has not argued to the Court that there are no genuine issues of material fact to be decided by the Commission at the administrative hearing.

By the February 11, 2021 Order Modifying Order Establishing

Procedure, the deadlines for discovery and cross-examination exhibits were rescheduled; the Prehearing Conference was rescheduled to April 15, 2021; and the administrative hearing on

First Coast Utilities’ application was rescheduled to April 27-28,

2021. (JEA App., pg. 563.) The administrative hearing as well as the entire proceeding below have been stayed pursuant to Florida Rule of Appellate Procedure 9.100(h).

II. ARGUMENT

Prohibition is an extraordinary writ designed to prevent the lower tribunal from acting when it has no jurisdiction to act.

Southern Records & Tape Service v. Goldman, 502 So. 2d 413, 414

(Fla. 1986). “[I]t is meant to be very narrow in scope, to be employed with great caution[,] and utilized only in emergencies.” English v.

McCrary, 348 So. 2d 293, 296 (Fla. 1977). “Prohibition may only be granted when it is shown that a lower court is without jurisdiction 5 or attempting to act in excess of jurisdiction.” Id. It is not proper to prevent an erroneous exercise of jurisdiction. Id. at 297. Prohibition will only be invoked where the person seeking the writ has “no other appropriate and adequate legal remedy.” Id.

The Florida Supreme Court addressed the standard for prohibition in relation to Commission proceedings in Florida Public

Service Commission v. Bryson, 569 So. 2d 1253 (Fla. 1990). In

Bryson, the Court held that the Commission “must be allowed to act when it has at least a colorable claim that the matter under consideration falls within its exclusive jurisdiction as defined by statute.” Id. at 1255. “If the [Commission] is alleged to have acted without jurisdiction, it is the duty of the appellate court to review the allegation and to correct the [Commission’s] error if one was made.” Id.

As shown below, the Commission has more than just a colorable claim of jurisdiction over First Coast Utilities’ application.

Chapter 367, Florida Statutes, clearly provides the Commission with exclusive jurisdiction to consider and decide First Coast

Utilities’ application. The Commission is not exceeding its jurisdiction by considering the local ordinances and franchise 6 agreements raised by JEA in its objection during the process of deciding First Coast Utilities’ application. See Bryson, 569 So. 2d at

1255; see also § 367.045(4) and (5), Fla. Stat.

In its Petition and in the proceeding below, JEA acknowledges that the Commission has subject matter jurisdiction to consider

First Coast Utilities’ application. (Petition, pg. 28; JEA App., pgs.

413, 417.) Indeed, a closer look at JEA’s Petition shows that JEA is not arguing that the Commission lacks jurisdiction, but that it fears that the Commission will erroneously exercise its jurisdiction by granting the application for certificate instead of denying it.

(Petition, pgs. 27-29.)3 The fear of an adverse decision, propounded by JEA’s attempt to conflate jurisdictional issues with inappropriate possible implications from an adverse Commission decision on

JEA’s presumed authority is many things, including premature, speculative, contrary to existing law, and irrelevant to the

Commission’s clear and plain jurisdiction. JEA’s arguments however, as will be made clear below, along with citations to the

3 In fact, the reasons JEA gives as to why the Commission should deny First Coast Utilities’ application includes arguments on the merits that can be presented at the administrative hearing and considered by the Commission in rendering its decision on the application. 7 applicable law, are not the proper scope for a writ of prohibition.

See English, 348 So. 2d at 297.

The administrative hearing before the Commission required by section 367.045(4), Florida Statutes, is the vehicle by which JEA can raise its objections to First Coast Utilities’ application, and JEA can directly appeal to this Court, pursuant to sections 350.128(1) and 120.68, Florida Statutes, after the Commission has acted on

First Coast Utilities’ application if it seeks to challenge the

Commission’s decision. Thus, an appropriate and adequate legal remedy exists for JEA. See English, 348 So. 2d at 297; see also

Bryson, 569 So. 2d at 1255.

A. Chapter 367, Florida Statutes, unequivocally gives the Commission exclusive jurisdiction to consider and decide First Coast Utilities’ application.

Section 367.171(7), Florida Statutes, addresses the

Commission’s jurisdiction over utility4 systems and provides in relevant part:

4 Section 367.021(12), Florida Statutes, defines “utility” as: a water or wastewater utility and, except as provided in s. 367.022, includes every person, lessee, trustee, or receiver owning, operating, managing, or controlling a system, or proposing construction of a system, who is 8

Notwithstanding anything in this section to the contrary, the [C]ommission shall have exclusive jurisdiction over all utility systems whose service transverses county boundaries, whether the counties involved are jurisdictional or nonjurisdictional, . . ..

As an entity proposing to construct a system that is proposing to provide service to an area that transverses Duval, Nassau, and

Baker Counties (JEA App., pgs. 6-8), First Coast Utilities is a utility subject to the Commission’s exclusive jurisdiction under section

367.171(7), Florida Statutes.5

Pursuant to sections 367.031 and 367.045, Florida Statutes, each utility subject to the Commission’s jurisdiction must obtain a certificate of authorization6 from the Commission to provide water or wastewater service. In accordance with sections 367.031 and

providing, or proposes to provide, water or wastewater service to the public for compensation. 5 Even if the system did not transverse county boundaries, the Commission has jurisdiction to regulate in Duval and Nassau Counties. See § 367.171(3), Fla. Stat. The Commission does not have jurisdiction to regulate in Baker County. Id. 6 A “certificate of authorization” is “a document issued by the [C]ommission authorizing a utility to provide service in a specific service area.” § 367.021(1), Fla. Stat. A utility’s “service area” “may be within or without the boundaries of an incorporated municipality and may include areas in more than one county.” § 367.021(10), Fla. Stat.

367.045, Florida Statutes, First Coast Utilities filed its application with the Commission to obtain a certificate of authorization to provide both water and wastewater service. (JEA App., pg. 6.)

Section 367.045, Florida Statutes, sets forth the information that the utility must submit for the Commission’s consideration of its application. Section 367.045(1), Florida Statutes, states, in pertinent part:

When a utility applies for an initial certificate of authorization from the [C]ommission, it shall

(a) Provide notice of the actual application filed by mail or personal delivery to the governing body of the county or city affected, to the Public Counsel, to the [C]ommission, and to such other persons and in such manner as may be prescribed by [C]ommission rule;

(b) Provide all information required by rule or order of the [C]ommission, which information may include a detailed inquiry into the ability of the applicant to provide service, the area and facilities involved, the need for service in the area involved, and the existence or nonexistence of service from other sources within geographic proximity to the area in which the applicant seeks to provide service[.]

Florida Administrative Code Rule 25-30.033 implements section 367.045, Florida Statutes, and requires the applicant to, among other things, provide a detailed description of the proposed service area (Florida Administrative Code Rule 25-30.033(1)(j)) and

10 demonstrate the need for service in the proposed area (Florida

Administrative Code Rule 25-30.033(1)(k)). Section 367.045, Florida

Statutes, and Florida Administrative Code Rule 25-30.033 are the laws under which the Commission evaluates and decides the application.

JEA is exempt from Commission regulation as a “system owned, operated, managed, or controlled” by a governmental authority. § 367.022(2), Fla. Stat.7 Nonetheless, section 367.045,

Florida Statutes, provides a point of entry for governmental authorities and utilities that are substantially affected to object to the certificate application. In this regard, section 367.045(4),

Florida Statutes, states, in pertinent part:

If, within 30 days after the last day that notice was mailed or published by the applicant, whichever is later, the [C]ommission receives from the Public Counsel, a governmental authority, or utility or consumer who would be substantially affected by the requested certification or amendment a written objection requesting a proceeding pursuant to ss. 120.569 and 120.57, the [C]ommission shall order such proceeding conducted in or near the area for which application is made, if feasible.

7 First Coast Utilities, however, does not fall within any of the exemptions in section 367.022, Florida Statutes, and the utility is not claiming any exemption from Commission regulation. 11

Upon JEA’s objection, the Commission set First Coast Utilities’ application for an administrative hearing to be conducted under sections 120.569 and 120.57, Florida Statutes, in accordance with section 367.045(4), Florida Statutes. (PSC App., pg. 15.)

The Commission has the authority to grant or deny a certificate of authorization “in the public interest.” § 367.045(5)(a),

Fla. Stat. The Commission may not grant a certificate of authorization for a proposed system that will be in competition with or a duplication of another system or portion of a system

unless it first determines that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable, refuses, or neglects to provide reasonably adequate service.

Id.

As shown above, JEA’s assertion that the Commission lacks the jurisdiction and authority to decide First Coast’s application and to certificate the utility (Petition, pgs. 16-19, 27-29) is wrong.

Indeed, the Commission has exclusive jurisdiction over First Coast

Utilities and its application; the authority to consider JEA’s objection to the application; and, after considering all relevant evidence and argument presented in an administrative hearing 12 under sections 120.569 and 120.57, Florida Statutes, the power to grant or deny the application. See §§ 367.045 and 367.171(7), Fla.

Stat.

B. The Commission is not exceeding its jurisdiction in its consideration of ordinances and franchise agreements in its evaluation of First Coast Utilities’ application.

While JEA attempts to characterize the Commission proceeding below as a means to “resolve the validity or constitutionality of a local law” or a “contract interpretation” of a franchise agreement (Petition, pgs.18-26), the relief sought by First

Coast Utilities and the subject matter of the proceeding below is a certificate of authorization to provide water and wastewater service to the public for compensation to an area that transverses county boundaries. (JEA App., pgs. 6-8.) As shown below, JEA’s Petition should be denied because the subject matter of the proceeding below is within the exclusive jurisdiction of the Commission. See

Florida Power & Light Co. v. Albert Litter Studios, Inc., 896 So. 2d

891, 893 (Fla. 3d DCA 2005) (stating that it is the nature of the relief sought by the plaintiff that ultimately determines which tribunal has jurisdiction over the claim).

In its objection to First Coast Utilities’ application and in subsequent pleadings, JEA raised issues about the application’s conflict with ordinances, franchise agreements, and local comprehensive plans. (JEA App., pgs. 241-45, 338-366, 407-16,

419-21, 424, 449-73, 500-03, 520-30.) The issues raised by JEA go to the issues the Commission will consider at hearing: whether there is the need for service or lack of need for service in the area

First Coast Utilities wants to serve; the existence or nonexistence of service from other sources within geographical proximity to the area that First Coast Utilities wants to serve; whether there is an existing system that will be in competition with or duplication of any other system or portion of a system; and, if there is another system that is in competition with or in duplication of an existing system, whether “such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable, refuses, or neglects to provide reasonably adequate service.” See § 367.045(1)(b), (4), (5)(a), Fla. Stat.; Fla. 14

Admin. Code R. 25-30.033. Consideration of this evidence at hearing is directly relevant to the Commission’s decision on whether or not to grant First Coast Utilities’ application.

The Commission denied JEA’s motion for summary final order on the basis that there existed genuine issues of material fact

“based on extensive pleadings” of JEA and First Coast Utilities.

(JEA App., pg. 558.) JEA misconstrues the effect of the order denying the motion for summary final order.

The plain language of section 367.045, Florida Statutes, contemplates that when a governmental authority objects to an application for a certificate of authorization, it might raise arguments about the application’s consistency with local comprehensive plans, just as JEA has. In this regard, section

367.045(4), Florida Statutes, specifically states:

Notwithstanding the ability to object on any other ground, a county or municipality has standing to object on the ground that the issuance or amendment of the certificate of authorization violates established local comprehensive plans developed pursuant to ss. 163.3161-163.3211.

Thus, the statute is clear that the Commission may evaluate comprehensive plans developed under sections 163.3161-163.3211,

Florida Statutes, in rendering its decision on the application. In fact, the section instructs the Commission as to the weight it should give a local comprehensive plan in its evaluation of applications for certificates of authorization – that the Commission shall consider the plan if an objection on this ground is made by the municipality, but that the Commission is not bound by the local comprehensive plan when making its determination on the application. § 367.045(5)(b), Fla. Stat.; City of Oviedo v. Clark, 699

So. 2d 316, 318 (Fla. 1st DCA 1997), rev. dismissed, 705 So. 2d 7

(Fla. 1997) (holding that the Commission is not required to defer to city’s comprehensive plan in determining whether to grant amendment of wastewater utility’s certificate of authority).

Furthermore, the lead-in to section 367.045(4), Florida

Statutes, contemplates that a municipality may object on “any other ground.” It is reasonable to conclude that “any other ground” may include potential conflicts with franchise agreements and local ordinances, just like JEA has raised in the proceeding before the

Commission. Because section 367.045, Florida Statutes, specifically allows the Commission to evaluate chapter 163, Florida Statutes, comprehensive plans in its consideration of water or wastewater 16 certificate applications, it follows that the Commission can similarly evaluate franchise agreements and local ordinances that are alleged by a governmental authority to be in conflict with a utility’s application for water or wastewater certificates.8

2. The Commission has not indicated that it intends to determine the validity or constitutionality of the ordinances or franchise agreements raised by JEA.

Despite JEA’s assertions to the contrary (Petition, pg. 20-23), nowhere in the Commission’s order denying JEA’s motion for summary final order does the Commission state any intent to invalidate or address the constitutionality of the ordinances or franchise agreements. The Commission is well aware that it has no authority to invalidate a local ordinance or franchise agreement.

8 The Commission has been called upon to decide certificate applications where a governmental authority objected to the application and raised arguments regarding the effect of local government laws on the certificate application. See, e.g., In re: Application for amendment of Certificate No. 106-W to add territory in Lake County by Florida Water Services Corporation, Order No. PSC- 01-2501-FOF-WU, 2001 WL 1674035 (Fla. P.S.C. Dec. 21, 2001) (finding that although a city designated a utility district by local ordinance adopted under chapter 180, Florida Statutes, it did not preclude the Commission from evaluating whether it was in the public interest to grant Florida Water Services’ certificate amendment to serve the area because the Commission’s exclusive jurisdiction set forth in chapter 367, Florida Statutes, supersedes chapter 180). 17

See Communications Workers of America, Local 3170 v. City of

Gainesville, 697 So. 2d 167, 170 (Fla. 1st DCA 1997) (“The

Administrative Procedures Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds.”).

Moreover, the Commission is not purporting to “interpret ambiguous contracts” or resolve contract disputes between parties.

(Petition, pg. 25-26.) Rather, the Commission denied both parties’ motions for summary final order on the basis that there were disputed issues of material fact based on the “extensive pleadings” of JEA and First Coast Utilities. (JEA App., pgs. 553-558.)

In the proceeding below, JEA provided a copy and argued extensively concerning the “plain language” of its PUD Ordinance

2010-874 (JEA App., pgs. 338-366, 407-410, 502-03, 520-30); discussed and provided a copy of its Interlocal Agreement Regarding

Franchise Fee with the City of Jacksonville (JEA App., pgs. 410-12,

449-53); discussed and provided a copy of the Nassau County/JEA

Water and Wastewater Interlocal Agreement (JEA App., pgs. 411-

12, 455-73); and argued that under City of Mount Dora v JJ’s Mobile

Homes, Inc., 579 So. 2d 219, 225 (Fla. 5th DCA 1991), and Lake 18

Utility Services, Inc. v. City of Clermont, 727 So. 2d 984, 987 (Fla.

5th DCA 1999), the Commission has no authority to grant First

Coast Utilities a certificate because JEA has existing franchise rights and has the immediate ability to provide service in accordance with the PUD Ordinance. (JEA App., pgs. 413-16, 419-

21, 424, 500-01.) First Coast Utilities argued, conversely, that JJ’s

Mobile Home and Lake City Utility Services are misinterpreted by

JEA concerning the Commission’s jurisdiction. (JEA App., pgs. 478-

80.)

As explained in the Commission’s order, the test for summary judgment requires the Commission to draw every possible inference in favor of the party against whom a summary judgment is sought, and if the record raises even the slightest doubt that an issue of material fact may exist, a summary final order would not be appropriate. (JEA App., pg. 553.) The Commission’s order properly denied summary judgment by identifying what appeared to be material facts in dispute based on the arguments raised by the parties and did not “indicate” that the Commission intends to invalidate any ordinances or franchise agreements. Further, because the proceeding below has been stayed, the specific hearing 19 issues have not yet been identified. As set forth in the Order

Establishing Procedure, the parties and Commission staff will identify what they consider to be issues in their Prehearing

Statements, and the issues will be finalized at the Prehearing

Conference. (PSC App., pgs. 19-21, 24.)

3. The Commission has the authority to interpret ordinances and franchise agreements in exercising its jurisdiction under chapter 367, Florida Statutes.

JEA’s assertion that the Commission is barred from interpreting city ordinances as being outside its “regulatory expertise or jurisdiction” (Petition, pg. 23-25) in the course of determining matters within its jurisdiction is simply incorrect. See

Communications Workers of America, 697 So. 2d at 168 (finding that while the Public Employee Relations Commission’s (PERC) primary expertise pertains principally to chapter 447, Florida Statutes, not to the Workers’ Compensation Law, chapter 440, Florida Statutes,

PERC must take chapter 440, Florida Statutes, into account if it is to decide a unfair labor practice charge).9 In fact, the plain language

9 In addition, the Commission is not barred from interpreting provisions of the State Constitution in the course of exercising its jurisdiction over the certificate application if such a situation were to arise in the proceeding. See Communications Workers of America, 20 of section 367.045(4) and (5), Florida Statutes, shows that the

Legislature contemplated that the Commission would consider laws pertaining to local governments – laws which are outside the

Commission’s enforcement authority – when rendering decisions on certificate applications.

JEA offered its ordinances and franchise agreements for the

Commission’s consideration to support its objection under section

367.045(4), Florida Statutes. If JEA introduces these franchise agreements and ordinances into evidence at hearing in support of its objection, the Commission will evaluate them to determine whether there is a need for service or whether the granting of the application will create a duplication of service, as required by section 367.045(1)(b), (4), and (5), Florida Statutes.

697 So. 2d at 170 (holding that administrative law judges and PERC Commissioners “not purporting to invalidate legislative enactments do not usurp judicial prerogatives by deciding – in the first instance – the constitutional issues that arise in cases properly before them”). 21

4. The Commission’s jurisdiction under chapter 367, Florida Statutes, is exclusive and superior to local government ordinances and franchise agreements.

The Commission has the exclusive authority to decide whether to certificate First Coast Utilities. JEA’s assertions that the local government ordinances and franchise agreements divest the

Commission of its authority to decide First Coast Utilities’ application or create some sort of concurrent jurisdiction with a circuit court (Petition, pgs. 16-18, 27-29) is not only legally incorrect, it is contrary to the Legislature’s stated policy and law on the regulation of water and wastewater utilities set forth in chapter

367, Florida Statutes.

Section 367.171(7), Florida Statutes, unequivocally provides that “[n]otwithstanding anything in this section to the contrary, the

[C]ommission shall have exclusive jurisdiction over all utility systems whose service transverses county boundaries, whether the counties involved are jurisdictional or nonjurisdictional.”

“Exclusive” means “limited to a particular person, group, entity, or thing.” Black’s Law Dictionary, 11th edition (2019).

Chapter 367, Florida Statutes, is clear that the Commissions’ exclusive jurisdiction to decide First Coast Utilities’ application 22 cannot be taken away by local government laws, ordinances, or franchise agreements. In this regard, section 367.011(4), Florida

Statutes, states in relevant part:

This chapter shall supersede all other laws on the same subject, and subsequent inconsistent laws shall supersede this chapter only to the extent that they do so by express reference.

While JEA states that the ordinances and franchise agreements are “laws” (Petition, pg. 21), it has not even attempted to show to either this Court or the Commission how these “laws”

“supersede” chapter 367, Florida Statutes, “by express reference.”

See § 367.011(4), Fla. Stat. And it can’t because they don’t.

The Commission’s jurisdiction in relation to local government regulations and franchise agreements has been addressed by courts on a number of occasions. Although the cases address the

Commission’s authority over electric utilities under chapter 366,

Florida Statutes, the legal principles are the same, and the courts’ rationale would apply equally to the Commission’s jurisdiction to regulate water and wastewater utilities under chapter 367, Florida

Statutes.

In Roemmele-Putney v. Reynolds, 106 So. 3d 78, 79-80 (Fla. 3d

DCA 2013), the court reviewed a circuit court judgement dismissing a complaint for lack of jurisdiction. The legal issue before the circuit court and the Third District Court of Appeal was whether Monroe

County and private landowners may obtain declaratory and injunctive judicial relief from a circuit court establishing that the prospective electrification of an area in Monroe County was regulated, and even precluded, by county policies and regulations.

Id. at 79. Affirming the circuit court’s decision, the Third District

Court of Appeal found that the Commission had exclusive jurisdiction “to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities,” and that the Commission’s statutory authority would be “eviscerated if initially subject to local government regulation and circuit court injunctions of the kind sought by Monroe County in the case at hand.” Id. at 80-81. As a threshold matter in the case, the court, citing to Bryson, 569 So. 2d at 1253, also held that, as the State entity charged with regulating the generation and transmission of electrical power throughout 24

Florida, the Commission is to “determine its own jurisdiction” and that “[a]ny claim by the County or by the appellant homeowners that the [Commission] does not have jurisdiction may be raised before the [Commission] and, if unsuccessful there, by direct appeal to the Florida Supreme Court.” Id. at 80.

The Circuit Court of the Nineteenth Judicial Circuit, In and

For Indian River County, Florida, in Town of Indian River Shores v.

City of Vero Beach, Case No. 312014CA000748, came to the same conclusion when it addressed a similar issue. (PSC App., pgs. 4-9.)

In that case, the Town of Indian River Shores (Town) argued to the circuit court that the City of Vero Beach (City) was providing electric service within the Town’s municipal boundaries solely by the

Town’s consent given in a franchise agreement and that the City would lose its right to provide electric service to the Town when the franchise agreement expired. (PSC App., pgs. 5-8.) The Town, claiming to be uncertain of its rights under the terms of the franchise agreement, the Florida Constitution, the Municipal Home

Rules Powers Act, and section 180.02(2), Florida Statutes, asked the circuit court for declaratory relief – that upon the imminent expiration of the franchise agreement the City did not have the legal 25 right to provide electric service within the Town and that the Town had the right to decide how electric service was to be furnished to its inhabitants. (PSC App., pgs. 5, 7-8.) Similar to what JEA is arguing here (Petition, pgs. 27-29), the Town maintained that only the circuit court had the authority to address the threshold contractual, constitutional, and statutory issues because the Town claimed that the Commission’s authority was limited to issuing declarations interpreting the rules, orders, and statutory provisions that the Commission was specifically charged with enforcing. (PSC

App., pg. 8.)

In dismissing the request for declaratory relief, the circuit court found that “[a]lthough artfully argued otherwise, the actual relief sought by the Town amounts to an unfeasible request that the court determine what utility will provide electric service to the

Town.” (PSC App., pg. 8.) The court further found that the relief requested by the Town fell squarely within the jurisdiction of the

Commission under section 366.04(1), Florida Statutes. Citing

Bryson, 569 So. 2d at 1255, and Reynolds, 106 So. 3d at 80-81, the court stated that the Town could seek relief from the Commission,

26 and, if unsuccessful at the Commission, directly appeal to the

Florida Supreme Court. (PSC App., pgs. 8-9.)

The Florida Supreme Court addressed a similar issue in Board of County Commissioners Indian River County v. Graham, 191 So. 3d

890 (Fla. 2016). In an offshoot of the circuit court case, Indian River

County appealed a Commission declaratory statement, made under section 120.565, Florida Statutes, in which the Commission declared that the City of Vero Beach had the right and obligation under territorial orders issued by the Commission under chapter

366, Florida Statutes, to continue to provide electric service in the territory described in the orders upon the expiration of the City of

Vero Beach’s franchise agreement with Indian River County. Id. at

892. While noting that the Commission’s declaration was at odds with Indian River County’s position that the territorial orders become void with respect to the franchise area when the franchise agreement expires, the Court found that the Commission’s declaration was within its jurisdictional powers as the entity the

Florida Legislature vested with “exclusive and superior” jurisdiction under section 366.04, Florida Statutes, to determine “which utility

27 has the right and obligation to serve a particular geographical area.”

Id. at 895-96.

In reaching its decision, the Court opined on the “well- established” legal effect of franchise agreements. Id. at 896. The

Court stated that although “a franchise agreement is an enforceable contract governing the use of property, it does not stand for the proposition that the local government franchisor rather than the

[Commission] gets to decide which utility serves a given area.” Id.

Underlying all these cases are the compelling legislative policies of ensuring the public has access to utility service while also preventing the uneconomic duplication of utility service – policies the Legislature has given the Commission exclusive authority to enforce. See §§ 366.04(1), (2)(d), (2)(e), (5), Fla. Stat.

These are the same important public policies at the core of section

367.045, Florida Statutes.

Section 366.01, Florida Statutes, states:

The regulation of public utilities as defined herein is declared to be in the public interest and this chapter shall be deemed to be an exercise of the police power of the state for the protection of the public welfare and all the provisions hereof shall be liberally construed for the accomplishment of that purpose.

Like chapter 366, Florida Statutes, the Legislature has left no doubt as to the force of chapter 367, Florida Statutes:

The regulation of utilities is declared to be in the public interest, and this law is an exercise of the police power of the state for the protection of the public health, safety, and welfare. The provisions of this chapter shall be liberally construed for the accomplishment of this purpose.

§ 367.011(3), Fla. Stat. The exercise of the State’s police power, via the Commission, over utilities providing water or wastewater service to the public for compensation cannot be interfered with by local government laws, ordinances, or franchise agreements. See City of

Plantation v. Utilities Operating Co., 156 So. 2d 842, 843-44 (Fla.

1963), appeal dismissed, 379 U.S. 2 (1964) (finding that the Florida

Railroad and Public Utilities Commission’s chapter 367 authority to regulate rates, representing the State’s continuing right to exercise the police power, cannot be “interrupted or intercepted” by franchise agreement between the city and utility); see also H. Miller

& Sons, Inc. v. Hawkins, 373 So. 2d 913, 914 (Fla. 1979) (finding that the Commission has the power to modify a contract in the interest of the public welfare without unconstitutional impairment of contracts under its police power).

To provide water or wastewater service to the public for compensation, First Coast Utilities must obtain a certificate of authorization. § 367.031, Fla. Stat. The Commission’s granting or denial of a certificate of authorization must be in the “public interest.” § 367.045(5)(a), Fla. Stat. As chapter 367, Florida

Statutes, sets forth what constitutes the “public interest” and the

Legislature has declared that the Commission is the entity that regulates utilities “in the public interest,” only the Commission, not a circuit court nor JEA, has the authority to determine whether the granting or denial of First Coast Utilities’ application is in the public interest under chapter 367, Florida Statutes. See §§ 367.011(3) and

367.045(5)(a), Fla. Stat. Thus, JEA’s request for a writ of prohibition to prevent the Commission from proceeding in the matter below

“unless and until First Coast can clearly establish, in a judicial action, its right to own and operate the utility in the proposed service area” (Petition, pg. 29) is in direct conflict with the exclusive jurisdiction of the Commission to determine whether the granting or denial of a certificate application is in the public interest. See §§

367.011(3), 367.021(1), 367.031, 367.045, 367.171(7), Fla. Stat.; see also Albert Litter Studios, Inc., 896 So. 2d at 896 (stating that to 30 allow a circuit court to decide a matter that is within the

Commission’s exclusive jurisdiction “would create unacceptable havoc in the provision of an essential staple of the lives of the citizenry of this state”).

C. JEA has an appropriate and adequate legal remedy.

Prohibition will be invoked only in emergency cases to prevent an impending material injury for which there is no appropriate and adequate legal remedy. English, 348 So. 2d at 297. JEA’s legal remedy (Petition, pgs. 29-31) is the administrative hearing before the Commission conducted under sections 120.569 and 120.57,

Florida Statutes, that is required by section 367.045(4), Florida

Statutes, and a direct appeal to this Court after the Commission has made a decision on First Coast Utilities’ application if JEA seeks to challenge the Commission’s decision. See Bryson, 569 So.

2d at 1256 (finding that the proper vehicle to contest the

Commission’s jurisdiction is a direct appeal to the appropriate appellate court); §§ 120.68 and 350.128(1), Fla. Stat. Not only does this remedy adequately allow JEA to raise any objections it has to

First Coast Utilities’ certificate application, it allows for the raising

31 of any constitutional claims on appeal.10 Hence, this remedy is

“plain, speedy, and adequate.” State ex rel. Smith v. Gomez, 179 So.

651, 657 (Fla. 1938).

III. CONCLUSION

JEA has not met the high standard for a writ of prohibition.

See English, 348 So. 2d at 293; Bryson, 569 So. 2d at 1253. Thus, a writ of prohibition is not proper and should be denied, and the

Court’s March 2, 2021 order to show cause should be discharged to allow the Commission to process First Coast Utilities’ application.

10 See Florida Hospital Adventist Health v. Agency for Health Care Administration, 823 So. 2d 844, 849 (Fla. 1st DCA 2002) (holding that a person appealing an agency order could raise for the first time on appeal the issue of whether the agency’s statutory interpretation was unconstitutional as applied); Rice v. Department of Health & Rehabilitative Services, 386 So. 2d 844, 850-51 (Fla. 1st DCA 1980) (where Court remanded the case to the agency to conduct a section 120.57, Florida Statutes, hearing in order for there to be the necessary record to allow the appellate court to resolve the claim of statutory unconstitutionality). 32

Respectfully submitted,

/s/ Samantha M. Cibula Samantha M. Cibula Attorney Supervisor Florida Bar No. 0116599 [email protected]

Kathryn G.W. Cowdery Senior Attorney Florida Bar No. 363995 [email protected]

Keith C. Hetrick General Counsel Florida Bar No. 564168 [email protected]

Florida Public Service Commission 2540 Shumard Oak Blvd. Tallahassee, FL 32399-0850 (850) 413-6199

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing document has been furnished by electronic mail through the Court’s e-filing Portal this 31st day of March 2021, to the following:

Thomas A. Crabb John L. Wharton Susan F. Clark Dean Mead & Dunbar Laura M. Dennis 215 South Monroe Street, Radey Law Firm Suite 815 301 S. Bronough St. Tallahassee, FL 32301 Suite 200 [email protected] Tallahassee, FL 32301 [email protected] [email protected] [email protected]

William E. Sundstrom Robert C. Brannan Sundstrom & Mindlin, LLP 2548 Blairstone Pines Dr. Tallahassee, FL 32301 [email protected] [email protected]

/s/ Samantha M. Cibula SAMANTHA M. CIBULA

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY, pursuant to Florida Rule of Appellate

Procedure 9.045(e), that this Response to Court Order to Show

Cause complies with the font requirements of Florida Rule of

Appellate Procedure 9.045(b) and was prepared using Bookman

Old Style 14-point font, and complies with the word limit of

Florida Rule of Appellate Procedure 9.100(j) and contains 6,348 words.

/s/ Samantha M. Cibula Samantha M. Cibula