Supreme Court dubious on so-called ‘utility choice’ amendment

"...It seems contradictory on its face."

A largely skeptical Florida Supreme Court heard arguments Wednesday about the proposed ballot wording of a contentious proposed constitutional amendment to open Florida’s electric-utility industry to competition.

The court must sign off on initiatives’ wording before they can go on the ballot. Justices are not supposed to weigh the merits, but rather look at whether proposals involve single subjects and if ballot titles and summaries – the wording that voters see – are misleading.

The clearest sign of trouble came from Justice Ricky Polston as he addressed Ken Sukhia, the attorney for the amendment’s backer, a political committee known as Citizens for Energy Choices.

“It seems like, on the face, the summary is confusing to me,” Polston said, referring to a lack of clarity on just what is an “investor-owned utility,” and why that couldn’t include “someone who just generated his own electricity.”

When Sukhia said no, Polston told him the amendment’s summary seems to both give and take away that ability: “So it seems contradictory on its face.”

The proposal in question, intended for the November 2020 statewide ballot, calls for creating “competitive” electricity markets. That is, customers would have the right to choose electricity providers or to produce their own power, though was some question whether they could then sell it.

Pushed as a consumer-choice initiative, the amendment’s passage would benefit newer, start-up energy companies while severely limiting the state’s main traditional investor-owned utilities: Florida Power & Light (FPL)Duke Energy Florida, Tampa Electric Co. and Gulf Power.

In fact, Infinite Energy co-founder Rich Blaser – who supports the amendment – said in February that Florida needs to “break up state-sponsored monopolies.”

But justices questioned the part of the summary that says utility customers could choose their utility provider. Those questions related to part of the amendment that would dramatically limit the future roles of investor-owned utilities.

Justices asked whether the limited role of those utilities, known in the industry as investor-owned utilities, would prevent customers from being able to choose electricity providers.

“Wouldn’t an average person reading this ballot language, the reasonable voter out there, see that, ‘I can’t choose my current provider if I am happy with them?’ ” Justice Robert Luck said. “Would a reasonable voter say, ‘I would like FPL,’ just using an example, ‘I like my bill, I like what I’m getting, I like the service I am getting, and I want to use FPL.’ Would the reasonable voter reading this understand that the choice cannot be FPL?

“How can that be a ‘choice’?” Luck asked. “How is that not being internally inconsistent?”

Sukhia answered by saying customers now don’t have a choice when, say, their current power company gets “taken over by some massive conglomerate.”

Justice Barbara Lagoa followed up, noting the ballot summary doesn’t tell voters the amendment creates a “entirely new scheme” to buy one’s electricity.

“What if I’m happy (with my current utility)? … It’s like, if you want to keep your doctor, you can, till you can’t,” she said, referring to what PolitiFact called President Barack Obama‘s “Lie of the Year” in 2013: “If you like your health care plan, you can keep it,” a “promise (that) was impossible to keep” under the Affordable Care Act, also known as ‘Obamacare.’

The amendment would limit established utilities to building, operating and repairing electrical transmission and distribution systems — a far smaller role than they now play in generating, transmitting and selling power.

The proposal failed to win favor at the 2017-18 Florida Constitution Revision Commission, which convenes every 20 years to consider changes to the state’s governing document.

As a stand-alone initiative, it’s drawn opposition from Attorney General Ashley Moody, legislative leaders, business groups and established utilities.

FPL’s attorney, Barry Richard, called the proposal’s ballot language “brazen” in hiding its actual anti-competitiveness: “It ousts from the market all current private providers … It requires them not only to exit the market, but to divest their interest in the infrastructure for the production and distribution of energy.”

Should the proposal pass legal muster, it still needs 766,200 to get placed on the ballot. As of Wednesday morning, it had 402,988 valid signatures, according to the state Division of Elections website.

As usual, the justices did not indicate when they would rule.


Background provided by Florida Politics staff and News Service of Florida, republished with permission.

Jim Rosica

Jim Rosica is the Tallahassee-based Senior Editor for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at [email protected].


  • Marilynne Martin

    August 29, 2019 at 12:14 am

    The proper name for the amendment should be “”End Price Regulation” because that is what they are trying to do.

    Utilities are natural monopolies and PRICE-regulated monopolies. The only issue we have today is that our regulators (FPSC) are not doing their job. That is the problem we need to fix. We don’t need to de-regulate the electric utilities.

    We de-regulated telephone and quite frankly they have used their competitive power to consolidate as well as buy all the politicians in Talley and DC and tomorrow they just may put a mini cell tower on our front lawn – up to 60 feet tall and you don’t get a say in the matter. You just get the property devaluation.

    this is a very dumb proposed amendment.

    • VintageVNvet

      August 29, 2019 at 8:23 am

      Agree, DUMB the way it is currently written if the reports here are correct.
      How some ever, the fact is that these companies DO have a monopoly, and that is not only bad for the consumers who must accept whatever rates, conditions, etc., companies dictate and have ”rubber stamped” by the PUC that is wholly owned by them while paying lip service to serving We the People.
      Anything that helps to break the monopolies and encourage competition is going to be a long term benefit to consumers, and, eventually allow each household to generate their own power from the abundant solar available in Florida, as well as the wind and waves.
      The entire concept of the massive electrical infrastructure currently in place is completely out of date and needs to be replaced ASAP!
      This is made very clear every time there is a hurricane.

      Thank you.

      • Marilynne Martin

        August 29, 2019 at 9:13 am

        You will only get a choice of supplier/generator of electricity. The distribution portion (lines, transformers, poles, etc.) stays the same.
        When you have a hurricane, is the reason your power will take days/weeks to be restored is due to the gas generating plant being down or the lines/substations/transformer are out? Think about that as this does not make it better for hurricanes.

  • TheRealJimDavis

    August 29, 2019 at 8:14 am

    If the proponents of this ballot proposal want the voters to understand what they’re deciding, the legal proposal would be short and simple:

    I would like to see something to the effect of:

    “Floridians have the right to offer and choose utility providers based on a plethora of criteria.

    Floridians can also create their own power using technology resources that meet normal safety codes.

    If a citizen contributes to the electrical grid with excess power, the recipient of that contribution will pay the provider retail value for that electricity”

    Make the verbiage plain so voters know exactly what they’re deciding.

    Honesty demands clarity.

  • Marilynne Martin

    August 29, 2019 at 9:19 am

    You only get a right to utility “suppliers”, the utility distribution piece stays the same – controlled by one company. False “choice”, “partial choice” is more accurate.

    BTW, in this false choice proposal, you will most likely end up getting paid less for your solar panel power you want to sell to the grid.

    People need a tutorial on the components of electrical generation/supply, transmission and distribution to understand the components and what will be changing and what won’t be changing.

    And doing this type of change through the State constitution versus legislation is a VERY DUMB idea too.

Comments are closed.


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