§ 1-10-346. Conduct of proceedings.

(a)

Pleadings. Pleadings, including motions, 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 of all pleadings shall be submitted to the board clerk. Copies are to be furnished to the hearing officer and to all parties. However, in a case involving numerous parties, the hearing officer may in appropriate circumstances enter an order regulating the service of pleadings to less than all parties.

(b)

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

(1)

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

(2)

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

(3)

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

(4)

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

(5)

To provide a statement of the party's position on each issue identified pursuant to paragraphs (2), (3), and (4);

(6)

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

(7)

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

(8)

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

(9)

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

(10)

To provide a statement as to any requirement set forth in the prehearing order that cannot be complied with, and the reason therefor;

(11)

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

(c)

Prehearing conferences. A hearing officer may require the parties to hold such conferences, exchange such information, and submit such pleadings as will aid in the organization of the proceeding and the efficient disposition of the merits of the proceeding.

(1)

Upon reasonable written notice, the hearing officer may conduct or request the parties to hold one or more prehearing conferences for the purpose of hearing arguments on pending motions, clarifying and simplifying issues, discussing the possibility of settlement of the issues, examining exhibits and documents, exchanging names and addresses, and resolving other procedural matters.

(2)

Within a reasonable time after designation to the case, the hearing officer may set a date for a final prehearing conference and shall issue notice of the same.

(3)

All parties and the hearing officer shall attend the first prehearing conference, at which time the participants shall advise the prehearing officer as to the issues known to be in dispute, as well as the parties' positions thereon.

(d)

Prehearing order. The hearing officer may issue a prehearing order which sets forth the issues in the case, as well as the motions of the parties, and addresses such other matters as may aid in the conduct of the hearing on the merits and the efficient and fair disposition of the proceeding. Issues relating primarily to questions of fact shall be stated separately from issues raising solely legal questions. The prehearing order may limit the issues and the evidence to be presented by the parties in the case to the extent the matter is addressed in the order. Except for good cause, an objection to any aspect of the prehearing order shall be raised at the start of or prior to the hearing on the merits.

(e)

Notice of hearing. Where not otherwise set, the hearing officer shall set the time and place for the hearing on the merits and shall issue notice thereof to all parties of record. No less than twenty (20) days' notice shall be given for the hearing on the merits of the petition, complaint, application or other initial pleading unless otherwise agreed by the parties. Reasonable notice shall be given for all other hearings. The hearing officer may require any regulated company in a case or proceeding to publish additional notice in newspapers of general circulation in the area affected, or to give notice to its subscribers by mail, as may be deemed reasonably necessary by the hearing officer to afford adequate notice to the subscribers of the service.

(f)

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

(g)

Sanctions.

(1)

For failure of any party to make discovery in any proceeding, the hearing officer may impose any sanction that could be imposed by a court under Fla. R. Civ. P. 1.380.

(2)

The failure or refusal of a party to comply with any lawful order of the board or hearing officer may be cause for dismissing the party from the proceeding.

(3)

The hearing officer shall serve upon all parties written notice of a hearing to consider dismissal of a party. Not later than fourteen (14) days after service of notice, the party subject to dismissal may file a response to the proposed dismissal, and stating the ground relied upon. If a dismissal is entered against the party who has the burden of proof, the proceeding will be dismissed. If a dismissal is entered against a party who does not have the burden of proof, the party shall not be allowed to participate in the proceeding as a party.

(h)

Post-hearing filing. After a hearing is closed, all parties may 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.

(i)

Proposed findings of fact. A party may submit proposed findings of fact, and the hearing officer will rule upon each one when filed in conformance with this rule. The hearing officer is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts, and such proposed facts may be rejected in the recommended order by a statement that they are irrelevant or immaterial.

(1)

Proposed findings of fact shall be titled as such and must be presented on a document separate from all other post-hearing memoranda.

(2)

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

(j)

Recommended order. The hearing officer shall, within fifteen (15) days after the close of the hearing or receipt of the hearing transcript, whichever is later, file with the board a recommended order which shall include a caption, time and place of hearing, appearances entered at the hearing, statement of the issues, findings of fact and conclusions of law, separately stated, and recommendation for final board action. No proceeding may be voluntarily dismissed by the applicant after the recommended order has been filed with the board, without approval of the board after notice and hearing thereon.

(k)

Exceptions and replies.

(1)

Parties may file exceptions to a recommended order with the board within five (5) days of service of the recommended order or recommendation, and shall serve copies of any such exceptions upon all parties of record. Such exceptions shall fully set forth the error claimed and the basis in law or fact therefor. A party's failure to serve or file timely written exceptions shall constitute a waiver of any objections to the recommended order or recommendations.

(2)

Any other party may respond to the exceptions by filing and serving such response within five (5) days after service of the exceptions.

(l)

Oral argument.

(1)

Any party to a case may submit to the board a written request for oral argument on exceptions or replies concerning the recommended order. A request for oral argument shall be stated in a separate document and must accompany the pleading upon which oral argument is requested. The request shall state with particularity why oral argument would aid the board in comprehending and evaluating the issues raised by exceptions or replies. Failure to file a timely request for oral argument shall constitute waiver thereof.

(2)

The board may grant or deny a request for oral argument in its discretion. If granted, oral argument shall be heard by the board immediately before its deliberative session on the recommended order. Unless otherwise specified in the notice, oral argument shall be limited to fifteen (15) minutes to each party. No new or additional evidence will be considered except on stipulation of all parties.

(m)

Final order.

(1)

If the hearing on the merits has been conducted by a hearing officer, the board shall issue its final order within forty-five (45) days of receipt of the recommended order. The recommended order shall be considered at a duly noticed deliberative session. This proceeding shall not be de novo review, but shall be confined to the record submitted to the board together with the recommended order.

(2)

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

(n)

Motion for reconsideration.

(1)

Any party to a proceeding may file a motion for reconsideration of the final order. A motion for reconsideration of a final order shall be filed within ten (10) days after the order is entered.

(2)

A final order shall not be deemed rendered for the purpose of judicial review until the board has disposed of any motion for reconsideration of that order, but this provision does not serve automatically to stay the effectiveness of any such final order.

(3)

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

(4)

Oral argument on such motion shall be granted solely at the discretion of the board.

(5)

Any motion filed pursuant to this rule shall contain a concise statement of the grounds for reconsideration, and signature of counsel, if any.

(o)

Stay pending judicial review.

(1)

When the order being appealed involves the refund of monies to customers or a decrease in rates charged to customers, the board shall, upon motion filed by the regulated company affected, grant a stay pending judicial proceedings. The stay shall be conditioned upon the posting of good and sufficient bond, irrevocable letter of credit, escrow account, or other adequate security, and such other conditions as the board finds appropriate.

(2)

In determining the amount and conditions of the bond, irrevocable letter of credit, escrow account, or other adequate security, the board may consider such factors as a rate of interest that takes into consideration the use of the money that the stay permits and the prime and other prevailing rates of interest at commercial banks and other potential sources of capital in the amount involved in the appeal.

(3)

Except as provided in subsections (1) and (2), a party seeking to stay a final or non-final order of the board pending judicial review shall file a motion with the board, which shall have the authority to grant, modify, or deny such relief. A stay pending review may be conditioned upon posting of good and sufficient bond, irrevocable letter of credit, escrow account, or other adequate security, other conditions, or both. In determining whether to grant a stay, the board may, among other things, consider:

a.

Whether the petitioner has demonstrated that he is likely to suffer irreparable harm if the stay is not granted; and

b.

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

(4)

If the board finds that a party has failed to maintain in effect the bond or other security required herein, the board may lift the stay that was conditioned on such security, or the board may enter an order requiring refund or credit with statutory interest.

(Ord. No. 93-44, § 6, 8-25-93)