CITIZENS OF THE STATE OF 

FLORIDA, THROUGH THE 

OFFICE OF PUBLIC COUNSEL,

Appellant,

v.

FLORIDA PUBLIC SERVICE 

COMMISSION and UTILITIES, 

INC.,

Appellees.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-3868

_____________________________/

Opinion filed May 4, 2015.

An appeal from an order of the Public Service Commission.

J.R. Kelly, Public Counsel, and Erik L. Sayler, Associate Public Counsel, 

Tallahassee, for Appellant.

Samantha M. Cibula, Attorney Supervisor, and Kathryn G. W. Cowdery, Senior 

Attorney, Tallahassee, for Appellee Public Service Commission; 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 Florida Public Service Commission (PSC). OPC 
sought 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 the PSC 

denied OPC’s petition for declaratory statement on grounds that the petition failed 

to meet the requirements for obtaining 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 

expressing any view on the merits ourselves. 

The purpose of a declaratory statement is to resolve a controversy or answer 

questions concerning the applicability of statutes, rules, or orders which an 

administrative agency enforces, adopts or enters. Fla. Admin. Code R. 28-

105.001. In the present case, OPC sought the 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 350.0611(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 

2

 
which ha[d] created doubt for OPC regarding whether, going forward, the [PSC]

will enforce OPC’s statutory discovery rights in docketed PAA proceedings 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 purported 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, Inc. moved to intervene in the declaratory statement proceeding

below, arguing that its 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. 

Upon 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 

the 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 PAA 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 increase in water rates in Franklin Cnty. by Water 

Mgmt. Servs., Inc., Docket No. 110200-WU, Order No. PSC-12-0316-PCO-WU 

(F.P.S.C., June 19, 2012).

3

 
petition. But, on the merits, Utilities, Inc. argued that recognizing a right in OPC 

to conduct discovery in PAA rate cases before the PSC announced proposed 

agency action would increase rate case expense and exacerbate time pressures

already attendant on compressed deadlines 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 statements 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 the petition failed to allege a present, 

ascertainable set of facts; and because the petition requested a general advisory 

opinion. 

In the WMSI case, Water Management 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 rates in Franklin Cnty. by Water Mgmt. 

Servs., Inc., Docket No. 110200-WU, Order No. PSC-12-0316-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.

4
OPC had intervened in the WMSI case, and served formal discovery on 

WMSI. 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, id. at 2, stating, inter alia:

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 Commission 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 120.569 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.

5
Id. (footnotes omitted). OPC’s petition for declaratory statement alleges the 

WMSI order conflicts with statutes, rules, and other PSC orders4 that recognized

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 

Insurers 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 statute, 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 increase in water/wastewater rates in Alachua, 

Brevard, DeSoto, Hardee, Highlands, Lake, Lee, Marion, Orange, Palm Beach, 

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 Re: 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). 

6

 
appeal that rules under which the agency purported to act represented “an invalid 

exercise of delegated legislative authority”). But we do not agree that 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 in 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 

declaratory 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 statements

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 increase in water rates in Franklin Cnty. by 

Water Mgmt. Servs. Inc., Docket No. 110200-WU, Order No. PSC-13-0197-FOFWU (F.P.S.C., May 16, 2013).

7

 
755, 758 (Fla. 1st DCA 2010) (“Florida courts, including this one, have generally 

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)). There is no indication here, 

however, that OPC is abusing the declaratory statement process to intrude upon or 

make an end run around ongoing judicial or administrative proceedings. Indeed, 

OPC now accepts the order entered in the WMSI proceeding, even while it 

challenges future application of one rationale for the order 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 statement 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 down by

an administrative agency.

8
The 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’ and ‘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 PariMutuel Wagering v. Inv. Corp. of Palm Beach, 747 So. 2d 374, 382 (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 

costly 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. 

9
A resolution on the merits will enable OPC to plan its 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 this 

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. 

The PSC’s last two 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 reject both arguments. The PSC primarily relies on Santa Rosa 

County v. Administration Commission, 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, 888 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 controversy as 

to a state of facts . . . .’”). 

10
OPC’s petition alleges more than a merely hypothetical situation or the mere

possibility of a future dispute. In 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 hypothetical 

‘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)). In 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 entered 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 an actual, present need 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 citizens, 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 petitions 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)). 

11

 
proceedings, 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 declaratory statement would impair OPC’s ability to represent 

the Citizens of the State of Florida in PAA rate cases, by making OPC’s discovery 

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 

Regulation, 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). See 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 current version of section 120.565, Florida Statutes to prior 

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

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 division 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 the 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 language nor the facts of Lennar 

Homes support the denial of the petition for declaratory 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 1193; 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. The PSC’s

response to the narrow question posed by the petition need not involve rulemaking. 

13
See 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 

arguably 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 merits 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 Notices of 

Proposed Agency Action. Accordingly, we reverse and remand with directions 

that the PSC address the petition for declaratory statement on the merits. 

Reversed and remanded with directions. 

WOLF and RAY, JJ., CONCUR.

14