CITIZENS OF THE STATE OF FLORIDA, THROUGH THE OFFICE OF PUBLIC COUNSEL , Appellant,

v. FLORIDA PUBLIC SERVICE COMMISSION and UTILITIES, INC., Appellee s . IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRE S TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 1 4

- 3868

_____________________________/ Opinion filed May 4, 2015. An appeal from an order of the Public Service Commission

. J.R. Kelly, Public Counsel, and Erik L. Say l er, Ass ociate Public Counsel, Tallahassee , for Appellant

. Samantha M. Cibula, Attorney Supervisor, and Kathryn G. W. Cowdery, Senior Attorney, Tallahassee, for Appellee P ublic S ervice C ommission ; Martin S. Friedman of Friedman, Friedman & Long, P.A., Lake Mary, for Appellee Utilities, Inc

.

BENTON, J. The Office of Public Counsel (OPC) appeals the denial of its petition for declaratory statement by the Flo rida Public Service Commission ( PSC )

. OPCsought a declaratory statement as to Public Counsel’s right , if any, to conduct discovery in rate cases pending before the PSC under the proposed agency action (PAA) procedure , before proposed agency action is decided upon. But t he PSC denied OPC’s petition for declaratory statement on grounds that the petition fa iled to meet the requirements f o r obtain ing a declaratory statement under section 120.565, Florida Statutes (2014) . We reverse and remand with directions that the
PSC consider the petition on the merits and issue a declaratory statement , without expressin g any view on the merits ourselves

. T he purpose of a declaratory statement is to resolve a controversy or answer questions concerning the applicability of statutes, rules, or order s which an administrative agency enforces , adopts or enters

. F la

. A dmin

. Code R. 28

- 105.001. In the present case, OPC sought t he following declaratory statement : Upon intervention in any proceeding affecting rates or cost of service that the Commission processes under proposed agency action (PAA) procedures, Sections 350.061 1(1), 366.093(2), 367.156(2), F.S., and Rule 28

- 106.206, F.A.C., authorize the Office of Public Counsel to conduct discovery prior to the issuance of the Commission’s written Notice of Proposed Agency Action. Citing section 120.565(1), Florida Statutes ( 2014) , 1 OPC asserted that a declaratory statement was “necessitated by inconsistent and conflicting decisions

1 “ Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of 2which ha[d] created doubt for OPC regarding whether, going forward, the [ PSC ] will enforce OPC’s statutory discovery rights in docketed PAA procee dings in which it intervenes . . . .” Specifically , OPC claimed that three PSC orders explicitly or implicitly recognized its right to obtain discovery in PAA rate cases prior to the issuance of a Notice of PAA, 2 but that one order, the WMSI order, 3 pur ported to end its ability to conduct discovery before proposed agency action was announced

. OPC maintained that the WMSI order departed from the PSC ’s past practice and “highlight[ed] the need for resolution and consistency going forward.” Utilities, I nc. moved to intervene in the declaratory statement proceeding below , arguing that it s interests would be substantially affected by the proceeding because its twelve regulated subsidiaries in Florida regularly sought rate relief (increases) through the PAA procedure. See Fla. Admin. Code R. 28

- 105.0027. Upo n intervention, Utilities, Inc. asked the PSC to reach the merits of OPC’s any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances. ” 2 Under Florida law, a gas, electric, water, or wastewater utility may request th e PSC to process its petition for rate relief using the PAA procedure. In a PAA rate case, the PSC must vote on the proposed agency action (PAA) within five months of the filing date. No evidentiary hearing is held unless the PAA is protested. If the PA A is protested, then the PSC must render a final decision on the petition for rate relief within eight months of the filing date of the protest. §§ 366.06(4); 367.081(8), Fla. Stat. (2014). 3 In re: Application for i ncrease in w ater r ates in Franklin Cnt y. by Water Mgmt. Servs., Inc. , Docket No. 110200

- WU, Order No. PSC

- 12

- 0316

- PCO

- WU ( F.P.S.C., June 19, 2012). 3pet ition. B ut , on the merits, Utilities, Inc. argued that recognizing a right in OPC to conduct discovery in PAA rate cases be fore the PSC announced proposed agency action would increase rate case expense and exacerbate time pressures already attendant on compressed deadline s for PAA proceedings

. In the order on appeal, the PSC declined to reach the merits of OPC’s petition for declaratory statement stating the petition failed to meet the requirements for declaratory statement s for four reasons : because the petition for declaratory statement in effect challenged the validity or sought review of the
WMSI discovery order ; because the petition did not conform to the intent of section 120.565, Florida Statutes ; because t he petition failed to allege a pres ent, ascertainable set of facts; and because t he petition requeste d a general advisory opinion

. In the WMSI case, Water Managemen t Services, Inc. (WMSI), requested that its application for a rate increase be considered under the PAA procedure. See In re: Application for increase in water r ates in Franklin Cnty. by Water Mgmt. Servs., Inc. , Docket No. 110200

- WU, Order No. PSC

- 12

- 031 6

- PCO

- WU , at 1 (F.P.S.C., June 19, 2012). The WMSI discovery order in question disallowed discovery OPC sought in that docket prior to proposed agency action, and was never appealed.

4O PC had intervened in the WMSI case, and served for mal discovery on WMS I

. Id. After WMSI objected to the discovery, OPC filed a motion to establish discovery procedures and to compel WMSI’s response to outstanding discovery. Id. at 1

– 2. The WMSI prehearing officer denied both discovery motions , i d. at 2, stating , inter a lia : There is no “agency action” until the Commission enters its PAA order. Until the time the PAA order is issued, the Commission’s staff is engaged in a free

- form proceeding outside the scope of the Florida Administrative Procedures Act. As the Commissi on stated when it denied OPC’s request to set WMSI’s rate application for a hearing, “we agree with the Utility that Rule 25

- 22.029, F.A.C. , contemplates that it is after the Agenda Conference and issuance of the PAA action that the provisions of Section 1 20.569 and 120.57, F.S., become applicable. ” As is the case for all proposed agency action proceedings, OPC will have the opportunity to address the Commission at the . . . Commission Agenda Conference when the Commission will vote on WMSI’s application. If OPC takes issue with the PAA order, OPC will have an opportunity to request a hearing pursuant to Rule 25

- 22.029, F.A.C. Others whose substantial interests are affected by the proposed agency action may also request a hearing. If a hearing is requested , an order establishing procedure will be entered and discovery parameters will be set, as is the case for all Commission proceedings set for hearing.

5Id. (footnotes omitted). OPC’s petition for declaratory statement alleges the WMSI order conflicts with statutes, rules, and other PSC orders 4 that recognize d OPC’s right to conduct discovery before the issuance of the Notice of PAA, but does not seek to set the WMSI order aside in the WMSI case itself. The PSC complains that OPC is belatedly challenging the validity of the WMSI discovery order even though OPC failed to appeal the WMSI discovery order. We find this claim to be without merit, although we accept the PSC’s major premise: The PSC cites the case of Retail Grocers Association of Florida Self
In surers Fund v. Department of Labor & Employment Security, Division of Workers’ Compensation , for the proposition that, in a declaratory statement proceeding seeking a declaration regarding a statute, agency rule, or agency order, “‘the validity of the stat ute, rule or order is assumed.’” 474 So. 2d 379, 382 (Fla. 1st DCA 1985) (citation omitted) (emphasis omitted). We agree that “‘the declaratory statement petition is not a vehicle for testing the validity of the [statute or agency actions about] which the declaration is sought.’” Id. (citation omitted) (noting the petitioner argued for the first time on

4 See In re: Application for i ncrease in w ater/ w astewater r ates in Alachua, Brevard, DeSoto, Hardee, Highlands, Lake, Lee, Marion, Orange, Palm B each, Pasco, Polk, Putnam, Seminole, Sumter, Volusia, & Washington Counties by Aqua Utils. Fla., Inc. , Docket No. 100330

- WS, Order No. PSC

- 11

- 0018

- PCO

- WS ( F.P.S.C., Jan. 5, 2011); In R e: Petition for Rate Increase by Fla. Pub. Utils. Co. , Docket No. 080366

- GU, Order No. PSC

- 09

- 0182

- PCO

- GU (F.P.S.C., Mar. 27, 2009). 6appeal that rules under which the agency purported to act represented “an invalid exercise of delegated legislative authority”). But we do not agree t hat OPC’s petition for declaratory statement in the present case is improperly attempting to secure a belated appeal of the WMSI order in question, as opposed to seeking the PSC’s opinion as to whether and when the prohibition against discovery
enunciated in the WMSI order applies in future cases. In short, OPC’s petition for declaratory statement is not a collateral attack on the WMSI order : The PSC could take no action on OPC’s petition for declaratory statement that would overturn any order entered i n the WMSI docket

. OPC concedes that the time for appealing the WMSI discovery order has passed, and OPC makes clear that it is seeking the PSC ’s opinion on the applicability of language in the WMSI order on a “going forward” basis. OPC’s petition for
de claratory statement does not challenge the validity of the WMSI discovery order as applied to the facts of the WMSI case, a case in which the final order was handed down in May of 2013. 5 We agree that the PSC is under no obligation to make declaratory s tatement s as to rights being actively litigated either before it in another docket or elsewhere

. See ExxonMobil Oil Corp. v. State, Dep’t of Agric. & Consumer Servs. , 50 So. 3d

5 See In re: Application for i ncrease in w ater r ates in Franklin Cnty. by Water Mgmt. Servs. Inc. , Docket No. 110200

- WU, Order No. PSC

- 13

- 0197

- FOF

WU ( F.P.S.C., May 16, 2013 )

. 7755, 758 (Fla. 1st DCA 2010) (“Florida courts, including this one, have genera lly held that an administrative agency must decline to provide a declaratory statement when the statement would address issues currently pending in a judicial proceeding.”) ; Gopman v. Dep’t of Educ., State of Fla. , 908 So. 2d 1118, 1123 (Fla. 1st DCA 2005) (“[T]he rule is that ‘[d]eclaratory statement proceedings are not properly filed on issues simultaneously litigated in judicial or other administrative proceedings.’” (citation omitted)). T here is no indication here, however, that OPC is abusing the decl aratory statement process to intrude upon or make an end run around ongoing judicial or administrative proceeding s . Indeed, OPC now accepts the order entered in the WMSI proceeding , even while it challenges future application of one rationale for the orde r as policy incompatible with governing rules and statutes. Where contradictory orders make applicability of statutes or rules an administrative agency enforces uncertain as to particular circumstances, a declaratory stat ement may well be appropriate. We reject any contention that a party cannot avail itself of the declaratory statement provision of the Administrative Procedure Act to seek clarification of its rights, duties, and privileges if thrown into doubt by seemingly contradictory orders handed dow n by an administrative agency

.

8The purpose of the declaratory statement procedure is “‘to enable members of the public to definitively resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their future affairs’ an d ‘to enable the public to secure definitive binding advice as to the applicability of agency

- enforced law to a particular set of facts.’” Fla. Dep’t of Bus. & Prof’l Regulation, Div. of Pari

Mutuel Wagering v. Inv. Corp. of Palm Beach , 747 So. 2d 374, 38 2 (Fla. 1999) (quoting Patricia A. Dore, Access to Florida Administrative Proceedings , 13 Fla. St. U. L. Rev. 965, 1052 (1986) ); see also ExxonMobil , 50 So. 3d at 757 (same). A declaratory statement of an agency’s position may also help a party “avoid

cos tly administrative litigation by selecting the proper course of action in advance.” Chiles v. Dep’t of State, Div. of Elections , 711 So. 2d 151, 154 (Fla. 1st DCA 1998). By ruling on the merits of the petition on remand in the present case, the
PSC can resolve questions concerning the applicability of language in the WMSI order to other PAA rate cases. The fact that the PSC has refused heretofore to
address the implications of the WMSI order , by rule or otherwise , demonstrates the need for such guidance

. The PSC ill serves rate payers by insisting that utilities incur the expense of litigating and relitigating this issue in a piecemeal manner before prehearing officers in individual PAA rate cases.

9A resolution on the merits will enable OPC to plan it s future affairs, knowing whether, should it choose to intervene in a PAA rate case, it will ( or will
not ) have the right to conduct discovery before proposed agency action is announced . In addition, OPC’s use of the declaratory statement procedure in thi s case ensures that customers of a particular ( perhaps a small ) utility are spared having to bear additional rate case expense incurred in litigating an issue of importance to many utilities, as well as to the OPC and to the PSC itself

. T he PSC ’s last t wo reasons for denying OPC’s petition are interrelated : the first is that the petition alleges merely a hypothetical situation rather than a present, ascertainable set of facts; the second is that the petition requests a general advisory opinion. We rejec t both arguments. The PSC primarily relies on Santa Rosa County v. Administration Com mission, Division of Administrative Hearings , 661 So. 2d 1190 (Fla. 1995), and Lennar Homes, Inc. v. Department of Business & Professional Regulation, Division of Florida Land Sales, Condominiums & Mobile
Homes , 88 8 So. 2d 50 (Fla. 1st DCA 2004). See Santa Rosa Cnty. , 661 So. 2d at 1192 (“Parties who seek declaratory relief must show that ‘there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controver sy as to a state of facts . . . . ’”).

10OPC’s petition alleges more than a mere ly hypothetical situation or the mere possibility of a future dispute . I n Santa Rosa County , our supreme court stated : “Florida courts will not render, in the form of a declaratory judgment, [ 6 ] what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypo thetical ‘state of facts which have not arisen’ and are only ‘contingent, uncertain, [and] rest in the future.’” Id. at 1193 (emphasis omitted) (quoting LaBella v. Food Fair, Inc. , 406 So. 2d 1216, 1217 (Fla. 3d DCA 1981)). I n concluding that there was no bona fide, actual, or present need for declaratory relief in Santa Rosa County , however, the
supreme court relied on the fact that the parties had ente red into a settlement agreement, which rendered all issues between them moot. Id. In contrast, OPC alleged a particular set of circumstances in its petition giving rise to a n actual, present ne ed for a declaratory statement. OPC relied on section 350.0611 (1) , Florida Statutes (2014), which empowers it “to appear, in the name of the state or its citizen s, in any proceeding or action before the commission,” and to “utilize therein all forms of discovery available to attorneys in civil actions generally, subject to protective orders of the commission . . . .” OPC alleged it had the right to intervene and to conduct discovery in all PSC

6 Because petition s for declaratory statements are similar to petitions for declaratory judgments, “appellate courts are guided by decisions issued under the declaratory judgments statute.” Sutton v. Dep’t of Envtl. Prot. , 654 So. 2d 1047, 1048 (Fla. 5th DCA 1995) (citing Couch v. State , 377 So. 2d 32, 33 (Fla. 1st DCA 1979)). 11proceedings, including PAA rate cases , whether or not proposed agency action had been announced

. OPC claimed that historically it had intervened in PAA rate cases and initiated discovery “whenever OPC has deemed such formal discovery necessary to carry out its statutory responsibilities, ” and that the PSC ’s failure to issue the requested declarator y statement would impair OPC’s ability to represent the Citizens of the State of Florida in PAA rate cases , by making OPC’s disco very rights the subject of piecemeal litigation. Nobody denies that PAA rate cases are regularly filed

. OPC is properly seeking the PSC’s “opinion as to the applicability of a statutory provision, or of any rule or order of the [PSC], as it applies to [ OPC’s] particular set of circumstances .” § 120.565 (1) , Fla. Stat

. Even if regulated utilities may also be affected , it cannot be said that OPC’s petition “‘seeks an agency’s opinion on a purely hypothetical question unrelated to [its] personal situation. ’” Inv. Corp. of Palm Beach v. Div. of Pari

- Mutuel Wagering , Dep’t of Bus. & Prof’l Reg ulation , 714 So. 2d 589, 594 n. 7 (Fla. 3d DCA 1998) (Cope, J. dissenting) (quoting Dore , 13 Fla. St. U. L. Rev. at 1048 ), quashed Inv . Corp. , 747 So. 2d 374 (Fla. 1999 )

. S ee Chiles , 711 So. 2d at 154 (“ While the issue [raised in a petition for declaratory statement] must apply in the petitioner’s particular set of circumstances, there is no longer a requirement that the issue apply only to the petitioner.” (comparing c urrent version of section 120.565 , Florida Statutes to prior

12version of statute ) ) ; see also Inv. Corp. , 747 So. 2d at 383, 385 (same)

. W hether OPC does or does not have the right to conduct discovery in PAA rate cases when it intervenes , it has alleged a particular set of circumstances in which the concrete question arises.
In Lennar Homes , we held a d ivision of the Department of Business and Professional Regulation should have declined to issue the declaratory statement sought there on the rationale the agency was usurping the authority of courts to adjudicate contractual obligations. 888 So. 2d at 54

– 55 (“We know of no statute which confers authority on the Division to declare a party’s contract void.”)

. Although we recognized that the “authority of th e Division to issue declaratory statements is limited by section 120.565 to a determination ‘as to the applicability of a statutory provision . . . to the petitioner’s particular set of circumstances,’” id. at 53, neither this recitation of the statutory l anguage nor the facts of Lennar
Homes support the denial of the petition for declarator y statement in the present

case . OPC’s petition does not request a general advisory opinion beyond the PSC’s authority to issue. Cf. Santa Rosa Cnty. , 661 So. 2d at 11 93; Fla. Dep’t of Ins. v. Guarantee Trust Life Ins. Co. , 812 So. 2d 459, 461 (Fla. 1st DCA 2002).
OPC’s petition is limited to seeking clarification of its rights, as a creature of statute, to conduct discovery , upon its intervention in PAA rate cases. T he PSC’s
response to the narrow question posed by the petition need not involve rule making.

13See generally Chiles , 711 So. 2d at 154. OPC alleged that its right to conduct discovery in PAA rate cases had been recognized by the PSC in the past , but had

a rguably been terminated or restricted by language in the WMSI order, and thus that its discovery rights are now subject to doubt and uncertainty

. Although they take opposite views on the merits , both OPC and Utilities,
Inc. , urged the PSC to reach the m erits of the petition below

. We express no view as to the merits , but agree there is no reason for the PSC not to address the matter of OPC’s discovery rights in PAA rate cases prior to issuance of Notice s of
P roposed A gency A ction

. Accordingly, we rever se and remand with directions
that the PSC address the petition for declaratory statement o n the merits. Reversed and remanded with directions

. WOLF and RAY, JJ., CONCUR.

14