Judge rules for city in lawsuit challenging selection process for GRU feed-in tariff
Published: Wednesday, September 4, 2013 at 11:50 a.m.
Last Modified: Wednesday, September 4, 2013 at 11:50 a.m.
Gainesville has prevailed in a lawsuit challenging the selection process for the electric utility's solar feed-in tariff program.
On Aug. 26, Circuit Judge Victor L. Hulslander granted the city's motion for summary judgment in a lawsuit filed by Khepera Solar, a company that unsuccessfully applied twice to participate in the feed-in tariff, which pays a premium price for solar-generated electricity.
Filed in November 2011, the lawsuit alleged, among other things, that Gainesville Regional Utilities showed favoritism to other firms in the application process.
The city has paid $173,300 in legal fees to the firm of Rogers Towers to defend the case.
Khepera, a company established by Annie Orlando, the owner of Atlas Screen Printing and Embroidery in Gainesville, sought to install a 100-kilowatt solar-energy system at her business and sell electricity to the city through the feed-in tariff.
Khepera was among the solar companies that raised objections in 2011, alleging a lack of fairness in the application process. In response, the city auditor issued a report faulting GRU administration for not doing enough to "ensure a level playing field."
One firm, Solar Impact, was allowed to submit multiple applications for a single property when other firms were not informed that was allowed. That company also was permitted to submit applications from limited liability corporations that were not yet registered, the auditor found.
As a result of that auditor's report, GRU opened up another computer lottery for companies that previously had applied for the feed-in tariff but were not selected.
The city again contracted with the University of Florida Survey Research Center to select the companies that would participate through a random computer lottery.
One caveat was that a company, as a condition of applying, would have to release all legal claims against the city.
Khepera ownership signed a form doing so but added the written statement "under protest."
In his decision, Hulslander said Khepera had "agreed to resolve its disputes rather than litigate them" as a condition of participation in the second lottery and cannot "invalidate the settlement agreement" by writing it is "under protest."
The lawsuit also argued, among other things, that the city was legally required to solicit competitive bids, that the utility conducted an illegal lottery under state law and that the selection process violated the Sunshine Law.
Hulslander ruled that a competitive bidding process was not required under GRU administrative guidelines because the price the utility would pay for electricity was already set by ordinance. He ruled there was no illegal lottery because "there was no prize."
"GRU was not giving anything away," Hulslander wrote. "Rather, it was seeking vendors from whom it would purchase solar energy."
He also ruled that the Sunshine Law requirement of public meetings did not apply to the selection process because there were not deliberations on the merits of a bid but rather a random lottery selection.
"The Judge applied the law to the facts and found that GRU did not violate the law. Although GRU never saw any merit in the allegations, we recognize there is always risk in litigation, and GRU is very happy with the Judge's ruling," utilities attorney Shayla McNeill said in a statement.
Orlando said she plans to continue the legal fight with a request for a rehearing.