Utility loses round in bid to curb regulation

A judge denies motions by Florida Water Services and Swiftmud in their dispute with the county over drilling wells.

By JEFFREY S. SOLOCHEK, Times Staff Writer
© St. Petersburg Times
published May 16, 2002

BROOKSVILLE -- Florida Water Services has lost its bid to stop Hernando County commissioners from making decisions about where to place new wells.

Now it faces the possibility of even more intense regulatory action by the county, which wants information about the company's weeks-old problems providing water to customers throughout Spring Hill.

Utility regulator Chuck Lewis and Senior Assistant County Attorney Kent Weissinger are recommending that commissioners invoke their Regulation of Water and Wastewater Systems ordinance.

That action would allow them to subpoena records and witnesses in an effort to determine whether Florida Water has violated its franchise by failing to provide "reasonably adequate and efficient service."

"We would like to be able to take a look at information that would help us understand all of the contributors to the (water pressure) problem," Weissinger said. "Florida Water told us almost two weeks ago they would cooperate with us. As of yet, we have not had the information we are seeking.

"We really were looking at this as a last resort."

Florida Water representatives suggested the county's move, if it comes, might be premature.

"Their request was written "as soon as possible,' with no specific deadline, which is good, because the amount of information they asked for is incredible," spokeswoman Lori Booker said. "It's been seven full working days we've been working on it."

(More accurately, the letter asking for pumping, permit and complaint data reaching as far back as five years, stated "at your earliest convenience.")

Joe Mason, Florida Water's Brooksville lawyer, called the county's idea an "interesting development, seeing as how they won't give us the authority to locate a new well that would provide the water pressure."

"It's interesting the county is saying, "I'm going to punish you for not coming home on time, notwithstanding the fact that I locked the door so you can't get in,' " Mason said. "I just think it's ludicrous."

Commissioners did not share that viewpoint.

"Yes. This is an emergency. We need to do something now. Yesterday," Commissioner Diane Rowden said, noting the stack of water pressure complaints on her desk grows daily. "It's about time that we are taking the offensive position, rather than the defensive position with Florida Water. We need to be in the driver's seat."

Commissioner Chris Kingsley said the time is ripe for the county to act decisively against Florida Water's "antics," which include blaming the county for residential water pressure problems. The county tried negotiating first, he said.

"I don't think we're adversarial in nature, the board and the county in general," Kingsley said. "But Florida Water is turning it into something."

Chairwoman Nancy Robinson noted that many residents connect the pressure problems with political actions, and said the county should use its ordinance "immediately" to protect the health of residents who rely upon Florida Water. Dozens have complained they cannot shower or flush their toilets because of insufficient water flow.

Weissinger cautioned that an administrative action by the commission does not mean the avoidance of court litigation. Board final orders are subject to judicial review, he said in a draft memo, and Florida Water's lawyers might seek a hearing on the county's regulatory jurisdiction, he wrote.

The company already has challenged the county's powers this year, contending the commission was biased because it at once is acting as regulator, competitor and hostile bidder for Florida Water. In addition to tackling the water pressure problems, the county also has denied the company two efforts to dig new wells and has been looking into whether to join a coalition that might buy out the company's Florida operations.

The Southwest Florida Water Management District joined the case, arguing it had sole jurisdiction over water matters, not the county.

Swiftmud asked the court to bar the commission from future action regarding Florida Water's bid to add new wells to its Spring Hill system.

Fifth Circuit Senior Judge Jim Booth denied the motions Tuesday, saying Florida Water and Swiftmud were not entitled to the prohibitions they wanted. He called such writs "extraordinary" and said they should be issued only in emergencies.

"Prohibition should not become a vehicle for determination of questions involving correct or incorrect decisions of another court in matters in which such court has jurisdiction to act," Booth wrote.

Assistant County Attorney Kurt Hitzemann said the ruling was narrow and did not deal with the substantial arguments Florida Water and Swiftmud made. But neither did it stop the county from regulating its utilities.

The ruling is subject to appeal, he added.

Mason said he had not seen the judge's order and therefore could not comment. Booker said the company had no official comment on the order.

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