Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Per Curiam handed down on the 19th day of May, 2010, is as follows:
CHARLES HOPKINS DBA OLD RIVER WATER COMPANY v. LOUISIANA PUBLIC
SERVICE COMMISSION (Parish of E. Baton Rouge)
Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc,
sitting for Chief Justice Catherine D. Kimball.
The decision of the Louisiana Public Service Commission is hereby
SUPREME COURT OF LOUISIANA
CHARLES HOPKINS DBA OLD RIVER WATER COMPANY
LOUISIANA PUBLIC SERVICE COMMISSION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
FOR THE PARISH OF EAST BATON ROUGE
HONORABLE WILSON FIELDS, JUDGE
This case presents an appeal by Charles Hopkins d/b/a Old River Water
Company (“Old River”) from a judgment of the 19th Judicial District Court affirming
the Louisiana Public Service Commission’s (“LPSC”) order finding Old River’s water
service to be unsatisfactory, and authorizing Old River’s customers to immediately
obtain water service from another provider.1 We find the LPSC did not act arbitrarily
or capriciously, and affirm.
FACTS AND PROCEDURAL HISTORY
Old River, a sole proprietorship owned by Charles Hopkins, operates as a public
utility providing water service to customers in Pointe Coupee Parish. On July 14 and
August 23, 2006, approximately two dozen customers served by Old River Well
Number 1 petitioned the LPSC complaining of poor water quality, inadequate water
pressure, and unreliable service. The customers requested they be released from Old
Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief
Justice Catherine D. Kimball.
This court has appellate jurisdiction over LPSC proceedings. La. Const. art.
River's water service pursuant to the procedure established in a 1995 General Order
of the LPSC.2
On April 10 and April 13, 2007, a hearing was held before Chief Administrative
Law Judge Valerie Seal Meiners. She issued a proposed recommendation on
September 4, 2007, finding the water service to be inadequate. Old River filed
exceptions challenging the proposed recommendation.
On January 4, 2008, ALJ Meiners issued a final recommendation, again finding
the water service provided by Old River inadequate. ALJ Meiners recommended the
LPSC issue an order releasing the customers from Old River and allowing them to
subscribe to the water service of Innis Water Corporation, Inc. The order would go
into effect unless, within fifteen days of the order, Old River filed into the record a
six-month plan to remediate the water service and alleviate the customers’ complaints.
The recommendation also provided that if Old River filed a plan but failed to fully
implement it within the six-month period, the customers would be released from
The matter proceeded to the LPSC for consideration of the ALJ’s final
recommendation. At its January 16, 2008 Business and Executive Session, the LPSC,
composed of C. Dale Sittig, James M. Field, Jay Blossman, Foster Campbell, and
Lambert Boissiere, III, heard argument from the parties.
On the motion of
The 1995 LPSC General Order essentially provides that the complaining customer must
first establish a prima facie case that the service currently provided by the water company is
inadequate, after which the burden of proof is shifted to the water company to demonstrate that its
service is adequate, or that its service will be rendered adequate within a reasonable time, not to
exceed six months. The Order states in part:
[A]ny customer receiving service from a water utility who feels aggrieved with the
service being offered to or received by him may apply to the Louisiana Public
Service Commission for an order directing his present supplier to show cause why
the consumer should not be released from said supplier, and if the Commission shall
find that the service rendered to such consumer is inadequate for any reason
whatsoever and will not be rendered adequate within a reasonable time not to exceed
six (6) months, the release shall be granted.
Commissioner Sittig, the LPSC rejected the portion of the ALJ’s final
recommendation allowing Old River a six-month period to remediate, and instead
issued an order releasing the customers immediately. Commissioner Sittig stated:
I’m going to make a motion that we go ahead and do just
that, you know, and certainly you got the right to appeal
that motion, but I – again, the Judge came approximately
five months ago and gave a recommendation. I don’t see
anything that’s been done since the recommendation that
the Judge has given. So my motion is that – to go ahead
and go a little step further and allow these people the date
of this Order to go ahead and seek water from some other
Commissioner Field supported the motion, stating:
[T]his docket’s been pending a year and a half …. But all
we’re saying is they’re free to go. They can stay with [Old
River] … they can go to Innis or whoever else is in the
area. We don’t know. But I’m going to second his motion
that they be released because we’re talking about people’s
health and welfare, and we are not in a Third World
country, and I just think these people have a – should have
a right to choose when they have such poor service.
On February 12, 2008, by unanimous vote, the LPSC issued an order releasing the
petitioners from Old River service, effective immediately.
In accordance with La. R.S. 45:1192, Old River timely filed a petition for
appeal in the 19th JDC, arguing the LPSC order was arbitrary and capricious because
it failed to follow its own regulations. After a hearing, the trial court, Judge Wilson
Fields presiding, upheld the LPSC’s order and found it was not arbitrary or capricious.
Old River devolutively appealed to this court, requesting that the trial court and
LPSC orders be vacated, and the matter be remanded to the LPSC.
Old River contends the LPSC failed to follow the procedures established by its
own 1995 General Order. The 1995 General Order requires (1) a finding of
inadequate water service; and (2) a finding that Old River refused or was unable to
render the service adequate within a reasonable time not to exceed six months.
Appellant contends the LPSC ignored the second component and ordered the
immediate release of Old River’s customers without permitting Old River an
opportunity to remediate and repair the service. Old River relies on Washington-St.
Tammany Electrical Cooperative, Inc. v. LPSC, 95-1932 (La. 4/8/96), 671 So. 2d 908
for the proposition that when the LPSC fails to apply its own rules in an adjudication
before it, its actions are considered arbitrary and capricious.
Old River recognizes that ALJ Meiners issued a final recommendation ordering
it to take remedial steps; however, it asserts that where a party requests oral argument,
the ALJ’s recommendation is not considered final, and must be submitted to the LPSC
before taking effect. Old River relies on Rule 56(a)(9) of the Rules of Practice and
Procedure of the LPSC.
Old River argues it should not be penalized for fully pursuing the available
administrative remedies instead of taking remedial steps prior to a final and conclusive
adjudication of the matter. It asserts this court has recognized the inconclusiveness
of an administrative law judge’s final recommendation in Washington-St. Tammany
Electrical Cooperative, Inc. v. LPSC, 2006-2814 (La. 4/11/07), 953 So. 2d 794. In
that case, this court vacated a judgment of the 19th Judicial District Court and an order
of the LPSC, where an administrative law judge’s ruling was given effect without first
being submitted to the LPSC under Rule 55(q).
LPSC counters that it properly released Old River’s customers due to serious
and persistent problems with the company’s regulatory compliance and quality of
service. The record strongly supports this assertion. It is undisputed that Old River
put a groundwater well into service prior to receiving the required permit from the
Louisiana Department of Health and Hospitals (“DHH”). The DHH cited Old River
for several violations, and a “boil advisory” was issued due to concerns about drinking
water safety (although Old River apparently failed to notify its customers of the boil
LPSC maintains it fully complied with its Rules of Practice and Procedure, as
well as the 1995 General Order. An LPSC order can only be considered arbitrary and
capricious when the record “does not and could not reasonably support its finding.”
Ken-Go Services, Inc. v. LPSC, 483 So. 2d 141 (La. 1986). Further, LPSC decisions
are entitled to great weight, and a reviewing court should not substitute its judgment
for that of the LPSC. South Louisiana Electrical Cooperative Association v. LPSC,
367 So.2d 855, 856 (La.1979); Plantation v. LPSC, 96-1423 (La. 1/14/97); 685 So.2d
107, 110: “The Commission is entitled to deference in its interpretation of its own
rules and regulations.”
The record is replete with evidence of problems with Old River’s service,
including the lack of chlorination, improper testing procedures, the lack of boil orders
for each service outage, and inadequate storage tank size. This evidence was
sufficient to support the conclusion that service was inadequate, and would not be
made acceptable in six months.
Moreover, the 1995 General Order does not require the LPSC to allow any time
for the utility to remedy its service; rather, it provides that if the LPSC makes such an
allowance, the time may not exceed six months.
Here, the LPSC ultimately
determined the service would not be rendered adequate, and released the customers
so they could immediately seek appropriate service. We find this decision was within
the wide discretion afforded the LPSC, and was neither arbitrary nor capricious.
The decision of the Louisiana Public Service Commission is hereby