Texas State Statutes forbid landlords from charging any fees or surcharges for sub-metered electricity. There is absolutely no ambiguity in this statutory limitation. The electric meter surcharge imposed upon RV lot holders is prohibited by Texas law. The ruling in the PUC matter has been finalized, after nearly two years. LoLOG wins, LOR loses. Read all of the PUC filings here.
As expected, the PUC Commissioners approved the PFD from the SOAH Judge in the PUC matter with Live Oak Resort. The ALJ ruling is sumarized immediately below and the full document is available for viewing on the PUC site (using the link to the site found after the summary). The Commissioners made one change to the PFD, which was to add interest to the amounts to be refunded to the rv tenants.
BEGIN SUMMARY of ALJ Ruling:
On this issue, the ALJ determines that the surcharge (along with other electrical usage overcharges) were unlawfully collected by Live Oak.
Because the ALJ is persuaded that Complainants have proven that Live Oak miscalculated per/kWh charges for each tenant for fiscal years 2008-2009, 2011-2012, and 2012-2013, a refund should be made.
The ALJ agrees with Complainants and Staffs interpretation and finds that Live Oak was charging a submeter fee without legal authority and sufficient justification.
The ALJ is also persuaded that the attempt to mask the charge as a Bluebonnet-imposed charge indicates that Live Oak had no rational reason for the charge. For these reasons, the ALJ determines that there was no legal authority or justification to impose a submeter charge on Complainants’ billing statements, pursuant to Code § l84.033(2).
Although Live Oak is currently in violation of Code § 184.033, as long as refunds are made, Live Oak should not be considered providing electric service for compensation in violation of Code § 184.033.
The total meter surcharge charged all Live Oak submetered tenants, from 2008 until 2013, was $69,350, and continues to the present.
Second, the administrative surcharges were not utility charges passed on by Bluebonnet although Live Oak labeled the charges as such, suggesting deliberate questionable behavior.
Pursuant to Code § 184.035, upon Live Oak’s determination that it has “collected more than the amount charged by the supplying utility” at the end of the fiscal year, Live Oak must refund the excess amount. The ALJ recommends a finding that Live Oak has over collected meter charges and administrative surcharges in excess of the amount charged by Bluebonnet. Under law, it must then refund those amounts to all tenants, not just some who filed a complaint.
The ALJ recommends that the following remedies be applied in this case:
l. Concerning meter surcharges, within 30 days, Live Oak should refund $6,248.02 to the Complainants listed in Attachment A of Tenants‘ Exhibit A for unlawfully collected meter surcharges through the end of calendar year 2013. However, as Mr. Johnson noted, the charge is ongoing, and this total would need to be updated to fully capture the total amount of the refund.
2. Within 90 days, Live Oak should be required to identify all permanent RV park occupants who made meter surcharge payments. Live Oak should determine how much was paid by the tenant, and then fully refund to the tenant their respective portion of the meter surcharge, as calculated by Ms. Fox ($69,350) through the end of calendar year 2013. However, as noted, the total must be updated to fully capture the total amount of the refund.
3. Regarding the calculated metered overcharges for those permanent RV park occupants who continue to receive bills from Live Oak, Live Oak should refund $5,088.70 in kWh billing over collections to all tenants/RV occupants who made those overpayments. Such refunds should be in the form of a credit and refunded in full within 90 days of the Order.
4. Regarding the calculated overcharges for those permanent RV occupants who no longer receive bills, within 90 days of the signing of this order, Live Oak should determine the identity of the tenant who paid, how much was paid by the tenant, and then fully refund to the tenant their respective portion of the calculated charge within 90 days of the Order.
END SUMMARY of ALJ Ruling:
LOR is prohibited from making any refunds in the form of credits, meaning that all tenants must be paid a refund by check. The final order, as signed by the PUC Commissioners, is available HERE.
All past and present tenants of the permanent RV section of Live Oak Resort during the period between October 2008 and October 2014 are to be issued a refund of electrical overcharges/meter surcharges. The refunds are mandatory, not optional. Please let others, who might not be aware of this site, know about the refunds so that they can make sure that LOR has their current address information.
Using the calculations provided by LOR's own expert witness during the SOAH testimony, then adding the Kwh overcharges and meter surcharges for 2014, we arrive at $86,190.18. The amount will likely be higher than this, due to the method used by the witness to calculate the illegal surcharges. In addition, interest must be added to whatever the total is, so the amount to be refunded will be significantly higher than the estimate provided above.