Discussion

First, we observe that Pub. Util Code § 2705.5, which governs submetering of water at mobilehome parks and multi-unit apartments, is inapplicable here. The statute provides, in relevant part:

2705.5. Any person or corporation ... that maintains a mobilehome park or a multiple unit residential complex and provides, or will provide, water service to users through a submeter service system is not a public utility and is not subject to the jurisdiction, control, or regulation of the commission if each user of the submeter service system is charged at the rate which would be applicable if the user were receiving the water directly from the water corporation.

Section 2705.5 only applies to MHPs and multi-unit apartments which are served by water corporations regulated by the CPUC.² The District is not a public utility water corporation and is not subject to the jurisdiction of this Commission.

The next question, then, is whether Esprit is operating as a de facto public utility water corporation by providing its tenants with hot water and billing them through an agent for that service. A public utility water corporation, as defined in § 216, § 241, and § 2701, may operate only after obtaining a certificate of public convenience and necessity from this Commission.

Across the years the Commission has applied the line of California Supreme Court decisions which have upheld the principle that an entity must dedicate its property to public service in order to acquire public utility status. Story v. Richardson, one of the leading cases, presents facts similar to the facts of this complaint: a landlord providing hot water to tenants for a charge in addition to rent. In Story v. Richardson, the Supreme Court upheld the trial court's finding that an office building owner was not acting as a public utility though he maintained boilers, pumping engines, hot water heaters, and other equipment in the office building basement for the purpose of supplying tenants with light, heat, and hot water service. (Story v. Richardson (1921) 186 C 162, 166.) The owner was not providing utility services "to the public at large or any portions thereof" the Supreme Court said, emphasizing that the equipment within the building was designed "primarily and pre-eminently for supplying service to the tenants of the building" and that the owner used his property "solely in a private enterprise." (Id. at 166, 167, 168.)

Esprit provides hot water service only to its tenants and expressly denies any dedication of Esprit's hot water service to the general public. Esprit charges each lessee for water that Esprit has heated, stored, and delivered upon demand through a sub-meter system. Esprit does not separately submeter cold water; this is provided to tenants under the terms of the lease.

We must interpret § 216, § 241, and § 2701 in light of the dedication doctrine, consistent with the Supreme Court's determination that "the Legislature by its repeated reenactment of the definitions of the public utilities without change has accepted and adopted dedication as an implicit limitation on their terms." (Richfield Oil Corp. v Public Utilities Commission (1960) 54 Cal. 2d 419, 430.) It is clear that Esprit has not expressly dedicated its hot water system to public service and the facts of this case do not lead us to infer dedication. Absent dedication, we cannot conclude that Esprit is acting as a de facto public utility water corporation. Finally, since Esprit is not a public utility, we lack jurisdiction to assess the accuracy of Esprit's metering system. Standards for submeters at multi-unit apartments fall within the province of local weights and measures jurisdictions and/or the Division of Measurement Standards (DMS) within the California Department of Food and Agriculture, under Bus. & Prof. Code § 12100 et seq.

For these reasons, we conclude that the Commission has no jurisdiction to entertain the complaint, and that it should be dismissed.

Comments on Draft Decision

The draft decision was mailed to the parties in accordance with Pub. Util. Code § 311(g) and Rule 77.7 of the Rules of Practice and Procedure.

Findings of Fact

1. Esprit is a multiple unit residential complex.

2. Complainant is a tenant of Esprit under lease.

3. The District supplies Esprit with water and Esprit includes delivery of this water to each individual apartment as part of the rent charged each lessee.

4. Esprit serves only its tenants and specifically denies any "dedication" of its hot water delivery system to the general public.

5. Esprit does not receive "hot water" directly from any water corporation.

Conclusions of Law

1. Since the District is not a "water corporation" under § 2705.5, that statute does not apply to the facts of this complaint.

2. The facts of this case do not establish express dedication and do not support the inference of implied dedication.

3. Esprit is not a public utility water corporation.

4. Since Esprit is not a public utility, the Commission lacks jurisdiction to assess the accuracy of Esprit's metering system.

5. The Commission has no jurisdiction to hear this complaint.

6. The complaint should be dismissed.

7. In order to provide timely guidance to the parties, this decision should be effective today.

ORDER

IT IS ORDERED that:

1. Case 98-03-023 is dismissed for lack of jurisdiction.

2. This proceeding is closed.

This order is effective today.

Dated ___________________, at San Francisco, California.