99-003179RX Regency Gardens Apartments, Ltd., And Shepland Development Corporation vs. Florida Housing Finance Corporation Status: Closed DOAH Final Order on Monday, October 18, 1999.

Summary: Rules prohibiting an applicant`s right to a formal administrative hearing to challenge the evaluation of a competing applicant`s application are valid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGENCY GARDENS APARTMENTS, LTD., )

and SHEPLAND DEVELOPMENT CORPORATION, )

)

Petitioners, )

)

vs. ) Case No. 99- 3179RX

)

FLORIDA HOUSING FINANCE CORPORATION, )

)

Respondent, )

)

and )

)

MIAMI RIVER PARK, LTD., and WYNWOOD )

TOWER APARTMENTS, LTD., )

)

Intervenors. )

______________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on September 3, 1999, at Tallahassee, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners: William E. Williams, Esquire

J. Andrew Bertron, Jr., Esquire

Huey, Guilday & Tucker, P.A.

Highpoint Center, Suite 900

106 East College Avenue

Tallahassee, Florida 32303-1794

For Respondent: Michael J. Glazer, Esquire

Craig D. Varn, Esquire

Ausley & McMullen

227 South Calhoun Street

Tallahassee, Florida 32302

Stephen M. Donelan, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 323 01-1329

For Intervenors: J. Stephen Menton, Esquire

Michael G. Maida, Esquire

Rutledge, Ecenia, Purnell, & Hoffman, P.A.

215 South Monroe Street, Suite 420

Talla hassee, Florida 32302-0551

STATEMENT OF THE ISSUES

Whether Rule 67-48.005, Florida Administrative Code, and

Section VII on Page 16 of Form 1 of the 1999 Housing Credit

Application Package adopted by Rule 67-48.002(10) Florida

Administrative Code, are invalid exercises of delegated

legislative authority. If so, whether Petitioners are entitled

to an award of attorney's fees and costs.

PRELIMINARY STATEMENT

On July 26, 1999, Petitioners, Regency Gardens Apartments,

Ltd. (Regency), and Shepland Development Corporation ( Shepland),

filed a Petition to Determine the Invalidity of Rule 67-48.0005,

Florida Administrative Code, against Respondent, Florida Housing

Finance Corporation ( FHFC). This Petition was assigned DOAH Case

No. 99- 3179RX. On August 11, 1999, Regency and Shepland moved to

amend their Petition, to include a challenge to one sentence on

page 16 of Form One of the Housing Credit Application adopted by

reference in FHFC's Rule 67-48.002(10), Florida Administrative

Code. There was no objection, and the motion was granted.

On August 23, 1999, Intervenors, Miami River Park, Ltd., and

Wynwood Tower Apartments, Ltd., filed a Petition to Intervene in

DOAH Case No. 99- 3179RX. On September 1, 1999, the Petition to

Intervene was granted.

Prior to the final hearing, the parties filed a Joint

Prehearing Stipulation. The stipulated facts contained in the

Joint Prehearing Stipulation have been accepted in this Final

Order to the extent they are relevant to this proceeding.

The parties stipulated at the final hearing that Shepland

does not have standing in this matter. As used in this Final

Order, the term Petitioner, in the singular, shall refer to

Regency.

Petitioner did not present any witnesses at the final

hearing. Petitioner's Exhibits 1-3, 6-8, and 11-15 were accepted

into evidence. Petitioner's Exhibits 4, 5, 9, 10, 16-18, and 20

are rejected as exhibits because they are not relevant to any

issue raised in this proceeding. 1/ Petitioner did not submit

an Exhibit 19. Respondent presented the testimony of Sue Early.

Ms. Early was accepted as an expert in the Florida Housing

Combined Cycle Programs and Allocation Process. Florida

Housing's Exhibits 1-6 were accepted into evidence. The

Intervenors did not present any witnesses or introduce any

exhibits.

Petitioner, Respondent, and Intervenors filed proposed final

orders, which have been duly considered by the undersigned in the

preparation of this Final Order.

FINDINGS OF FACT

1. Part V of Chapter 420, Florida Statutes, consisting of

Sections 420.501 - 420.517, Florida Statutes, is the Florida

Housing Finance Corporation Act. Respondent, Florida Housing

Corporation ( FHFC), is a public corporation created by the

provisions of Section 420.504, Florida Statutes.

2. Pursuant to Section 420.5099, Florida Statutes, FHFC is

the designated housing agency for the State of Florida. FHFC

administers the Low Income Housing Tax Credit Program and other

housing programs in Florida pursuant to other provisions of the

Florida Housing Finance Corporation Act.

3. Pursuant to Section 420.504(2), Florida Statutes, FHFC

is an agency of the State of Florida for the purposes of Chapter

120, Florida Statutes. FHFC is governed by an independent member

Board of Directors appointed by the Governor. The Board members

come from specifically designated industries and backgrounds as

set forth in Section 420.504(3), Florida Statutes. Pursuant to

Section 420.507, Florida Statutes, FHFC has all the powers

necessary or convenient to carry out and effectuate the purposes

and provisions of the Florida Housing Finance Corporation Act,

including the power to enact rules. 2/

4. Petitioner submitted an application to the FHFC for 1999

Low Income Housing Tax Credits. The parties stipulated that

Petitioner has standing to challenge the validity of the rules at

issue in this proceeding. The parties further stipulated that

Shepland does not have standing to challenge the validity of the

rules at issue in this proceeding.

5. Intervenors, Miami River Park, Ltd., and Wynwood Tower

Apartments, Ltd., submitted applications to FHFC for 1999 Low

Income Housing Tax Credits. The parties stipulated that these

two entities have standing to intervene in this proceeding.

6. The Low Income Housing Tax Credit Program is a federal

program whose purpose is to encourage the development of housing

for low-income families in the various states. 3/ Section 42 of

the Internal Revenue Code (Title 26 of the United States Code)

creates federal income tax credits that are allocated to each

state and are awarded through state-administered programs to

developers of low-income housing projects. The tax credits

equate to a dollar-for-dollar reduction of the holder's tax

liability which can be taken each year that the project satisfies

the Internal Revenue Code requirements, for up to ten years. The

developer typically sells or syndicates the tax credit to

generate funding for the proposed project.

7. Section 42 of the Internal Revenue Code requires that

each state adopt a Qualified Allocation Plan ( QAP) establishing

procedures to be followed in awarding low-income credits

allocated to the states.

8. Section 420.5099, Florida Statutes, provides as follows:

(1) The Florida Housing Finance

Corporation is designated the housing credit

agency for the state within the meaning of

s. 42(h)(7)(A) of the Internal Revenue Code

of 1986 and shall have the responsibility and

authority to establish procedures necessary

for proper allocation and distribution of

low-income housing tax credits and shall

exercise all powers necessary to administer

the allocation of such credits.

(2) The corporation shall adopt

allocation procedures that will ensure the

maximum use of available tax credits in order

to encourage development of low-income

housing in the state, taking into

consideration the timeliness of the

application, the location of the proposed

housing project, the relative need in the

area for low-income housing and the

availability of such housing, the economic

feasibility of the project, and the ability

of the applicant to proceed to completion of

the project in the calendar year for which

the credit is sought.

(3) The corporation may request such

information from applicants as will enable it

to make the allocations according to the

guidelines set forth in subsection (2),

including, but not limited to, the

information required to be provided the

corporation by chapter 9I-21, Florida

Administrative Code.

(4) The executive director of the

corporation shall administer the allocation

procedures and determine allocations on

behalf of the corporation. Any applicant

disputing the amount of an allocation or the

denial of a request for an allocation may

request an appeal to the board of directors

of the corporation.

(5) For purposes of implementing this

program in Florida and in assessing the

property for ad valorem taxation under

s. 193.011, neither the tax credits, nor

financing generated by tax credits, shall be

considered as income to the property, and the

rental income from rent restricted units in a

low-income tax credit development shall be

recognized by the property appraiser.

(6) The corporation is authorized to

expend fees received in conjunction with the

allocation of low-income housing tax credits

only for the purpose of administration of the

program, including private legal services

which relate to interpretation of s. 42 of

the Internal Revenue Code of 1986, as

amended.

9. Pursuant to the provisions of Section 420.5099, Florida

Statutes, FHFC has established rules for processing applications

for housing tax credits. These rules, found in Chapter 67-48,

Florida Administrative Code, constitute Florida's QAP. A prime

consideration in developing the application process is that the

process be completed in a timely manner, since the failure of a

state to use all of its allocated credits in a timely manner will

result in a loss of housing tax credits. Such a loss is contrary

to the statutory mandate that FHFC ensure the maximum use of

available tax credits.

10. Petitioner has challenged FHFC's Rule 67-48.005,

Florida Administrative Code, which is entitled Applicant

Administrative Appeal Procedures, and provides, in pertinent

part, as follows:

(1) Following the Review Committee's

determination of preliminary scores and

ranking, notice of intended funding or denial

of funding will be provided to each Applicant

with a statement that:

(a) Applicants who wish to contest the

decision relative to their own Application

must petition for review of the decision in

writing within 10 calendar days of the date

of the notice. The request must specify in

detail the forms and the scores sought to be

appealed. Unless the appeal involves

disputed issues of material fact, the appeal

will be conducted on an informal basis. The

Review Committee will review the appeal and

will provide to the Applicant a written

position paper which recommends either no

change in score or an increase or decrease in

a score which it deems to be in error. If

the Applicant disagrees with the Review

Committee's recommendation, the Applicant

will be given an opportunity to participate

in the informal administrative appeal

hearings scheduled by the Review Committee.

If the appeal raises issues of material fact,

a formal administrative hearing will be

conducted pursuant to Section 120.57(1),

Florida Statutes. Failure to timely file a

petition shall constitute a waiver of the

right of the Applicant to such an appeal.

(b) Applicants who wish to notify the

Corporation of possible scoring errors

relative to another Applicant's Application

must file with the Corporation, within 10

calendar days of the date of the notice, a

written request for a review of the other

Applicant's score. Each request must specify

in detail the assigned Application number,

the forms and the scores in question. Each

request is limited to the review of only one

Application's score. Requests which seek the

review of more than one Application's score

will be considered improperly filed and

ineligible for review. There is no limit to

the number of requests which may be

submitted. The Review Committee will review

each written request timely received and will

prepare a written position paper, which will

be provided to each Applicant who timely

filed a notification and to the Applicant

whose score has been questioned, which

recommends either no change in score or an

increase or decrease in a score which it

deems to be in error. Failure to timely and

properly file a request shall constitute a

waiver of the right of the Applicant to such

a review.

(2) Notice will be provided to all

Applicants whose score is reduced or whose

Application is deemed ineligible pursuant to

67-48.005(1)(b) that they may contest the

decision relative to their own Application by

petitioning for review of the decision in

writing within 10 calendar days of the date

of the notice. The request must specify in

detail the forms and the scores sought to be

appealed. Unless the appeal involves

disputed issues of material fact, the appeal

will be conducted on an informal basis. The

Review Committee will review the appeal and

will provide to the Applicant a written

position paper which recommends either no

change in score or an increase or decrease in

a score which it deems to be in error. If

the Applicant disagrees with the Review

Committee's recommendation, the Applicant

will be given an opportunity to participate

in the informal administrative appeal

hearings scheduled by the Review Committee.

No Applicant or other person or entity will

be allowed to intervene in the appeal of

another Applicant. If the appeal raises

issues of material fact, a formal

administrative hearing will be conducted

pursuant to Section 120.57(1), Florida

Statutes. Failure to timely file a petition

shall constitute a waiver of the right of the

Applicant to such an appeal.

11. Petitioner has also challenged the following portion of

the application form which has been adopted by reference by

FHFC's Rule 67-48.002(10), Florida Administrative Code:

. . . In consideration for the Corporation

processing and scoring this Application, the

Applicant and all Financial Beneficiaries

hereby understand and agree that the

Corporation will hear appeals only on the

Applicant's own score. . . .

12. In 1996, FHFC combined the application processes for

the subject low-income tax credit program, the State Apartment

Incentive Loan (SAIL) Program (Section 420.587, Florida Statutes)

and the Home Investment Partnership (HOME) Program (Section

420.5089, Florida Statutes) to make the application process

easier and more efficient.

13. Each year FHFC initiates rulemaking to refine the

application process from the previous year and to implement any

changes in the application process. The administrative rules,

with any amendments, are adopted annually. All prospective

applicants under any of the three combined programs are invited

to attend rulemaking workshops.

14. After the allocation of tax credits for Florida is

known, a Notice of Funding Availability setting forth that

allocation, is published in the Florida Law Weekly. For the 1999

allocation period, the notice was published on October 23, 1998.

15. Due to the limited number of housing credits available

in each annual application cycle and the number of applications

for those credits, there are not enough credits available for

distribution in Florida for all applicants to receive housing

credits in the year in which they apply. Consequently,

applicants are competing for a fixed pool of resources.

16. For the 1999 period, the application cycle was opened

and the application form was available to interested persons on

October 30, 1998. From November 9 through 11, 1998, application

workshops were held in Tallahassee, Miami, and Orlando, to

address any questions regarding the application process.

17. Applicants are given what is referred to as the

Application Package, which contains all pertinent forms and sets

forth the instructions and criteria by which the applications

will be evaluated by FHFC staff. Applicants were required to

complete the applications and submit them to FHFC by January 7,

1999. Ninety applications for the three combined programs were

filed. Each application was evaluated by FHFC staff pursuant to

the instructions and criteria contained in the Application

Package. Partly because FHFC staff is required to verify

information reflected in each application, the evaluation process

takes six to eight weeks to complete. The evaluation process

results in a score for each application. The scores are reviewed

and approved by a Review Committee, consisting of FHFC staff. On

March 12, 1999, after scores were approved by the Review

Committee, a pre-review score was mailed to each applicant.

18. After the applicants were notified of their pre-review

score, they had the week beginning March 15, 1999, to review the

scoring of all applications. FHFC rules provide an opportunity

for an applicant to question its pre-review score and to

challenge the pre-review scores received by other applicants.

19. The challenge to an applicant's own score is referred

to as a Direct Appeal. The challenge by an applicant to another

applicant's score is referred to as a Competitive Appeal. All

Direct and Competitive Appeals were due on or before March 22,

1999.

20. Upon receipt of the Direct Appeals and Competitive

Appeals, FHFC staff first review the Competitive Appeals and

draft a Competitive Appeal Position Paper for each unique issue

raised. The Competitive Appeal Position Papers are approved by

the Review Committee before being released, which, for 1999, was

on April 5, 1999. The same process is followed for the Direct

Appeals. The Direct Appeal Position Papers were approved by the

Review Committee and released on April 7, 1999.

21. An applicant whose application was adversely affected

by a Competitive Appeal Position Paper (as the result of a

Competitive Appeal filed by a competing applicant) has the

opportunity to file what is referred to as a Direct Appeal of a

Competitive Appeal ( DACA).

22. Thereafter, FHFC staff evaluates all issues raised by

the Direct Appeals and by the DACAs, and prepares a position

paper for each issue. On April 27, 1999, the Review Committee

approved the Direct Appeal and DACA position papers. On May 4,

1999, these position papers were mailed to the interested

parties.

23. An applicant who was not satisfied with the Direct

Appeal or DACA position paper for its application was given a

limited period to request a proceeding pursuant to Chapter 120,

Florida Statutes. If there were no disputed issues of material

fact, the matter proceeded as an informal hearing. If there were

disputed issues of material fact, the matter proceeded as a

formal hearing.

24. On June 11 and July 30, 1999, the Board of Directors of

FHFC considered the Recommended Order that resulted from each

administrative hearing and entered a Final Order, which

determined the final scores for each application. Thereafter,

the final ranking of the competing applications were completed

and approved.

25. Preliminary approval of a tax credit allocation to an

applicant is based on the final ranking. An applicant selected

for a tax credit allocation is thereafter "invited" by FHFC to a

"credit underwriting" whereby the credit-worthiness of the

applicant and the proposed project is further scrutinized by a

credit underwriter and a draft credit underwriting report is

prepared. The credit underwriting process takes fifty to sixty

days to complete. For the 1999 cycle, the draft credit

underwriting reports were due September 28, 1999.

26. Once the credit underwriting reports are finished, the

successful applicant is given a preliminary tax credit

allocation. For the 1999 cycle, the applicant then must complete

its project or certify that it has expended at least ten percent

of its reasonably expected tax credit basis. If the project

cannot be completed by the end of the calendar year, the

applicant must enter into a Carryover Agreement. The applicant

must have expended ten percent of its reasonably expected tax

credit basis before it can enter into a Carryover Agreement. The

applicant typically has to be prepared to spend large sums of

money in a relatively short period of time to meet these

requirements.

27. An applicant does not have the opportunity for an

administrative hearing pursuant to Chapter 120, Florida Statutes,

on the scoring of a competing application after the Competitive

Appeal Position Paper has been issued by FHFC staff. 4/

Pursuant to the challenged rules, an applicant who was not

satisfied with the Direct Appeal or DACA position paper for

another applicant's application is not permitted a Chapter 120

proceeding and is not permitted to intervene if the other

applicant has requested a Chapter 120 proceeding. Such appeals,

referred to as Cross Appeals, were once permitted by the rules of

FHFC.

28. FHFC determined that Cross Appeals disrupted the

application process and placed too great a burden on the FHFC

staff. Cross Appeals resulted in a process that was difficult to

bring to closure and resulted in litigation expenses that were

assessed against the total project cost for the development.

29. Using rule development workshops that were

appropriately advertised, FHFC adopted rules permitting

Competitive Appeals, but prohibiting Cross Appeals. FHFC did not

act arbitrarily or capriciously in adopting these rules.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Sections 120.52(8), 120.56(1), and 120.57(1),

Florida Statutes.

31. Regency has the burden of proving the invalidity of the

challenged rules by a preponderance of the evidence. Agrico

Chemical Company v. State, Department of Environmental

Regulations , 365 So. 2d 759 (Fla. 1st DCA 1979); St Johns River

Water Management District v. Consolidated- Tomoka Land Company ,

717 So. 2d 72 (Fla. 1st DCA 1998), review denied , 727 So. 2d 904

(Fla. 1999).

32. Section 120.52(8), Florida Statutes, provides as

follows:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant

of rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1.;

(d) The rule is vague, fails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency;

(e) The rule is arbitrary or

capricious;

(f) The rule is not supported by

competent substantial evidence; or

(g) The rule imposes regulatory costs

on the regulated person, county, or city

which could be reduced by the adoption of

less costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement, interpret,

or make specific the particular powers and

duties granted by the enabling statute. No

agency shall have authority to adopt a rule

only because it is reasonably related to the

purpose of the enabling legislation and is

not arbitrary and capricious, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and functions

of an agency shall be construed to extend no

further than the particular powers and duties

conferred by the same statute.

33. Petitioner asserts that it has a right to challenge in

a formal administrative hearing FHFC's evaluation of a competing

application pursuant to the provisions of Chapter 120, Florida

Statutes, under the doctrine set forth in Ashbacker Radio

Corporation v. Federal Communications Commission , 326 U.S. 327

(1945) and followed Biomedical Applications of Clearwater, Inc.

v. Department of Health and Rehabilitative Services , 370

So. 2d 19 (Fla. 2d DCA 1979) and Biomedical Applications of Ocala

v. Office of Community Medical Facilities , 374 So. 2d 88 (Fla.

1st DCA 1979). Ashbacker , supra , required the Federal

Communication Commissions to afford a radio station a hearing on

its evaluation of a competitor's application where the

applications were for the same frequency and the granting of one

application necessarily entailed the denial of the other. In the

Biomedical cases, the Second District Court and the First

District Court of Florida ruled that the Ashbacker doctrine

required hearings pursuant to Chapter 120, Florida Statutes, for

competing, mutually exclusive, applications for certificates of

need.

34. Unlike the Federal Communications Commission or the

Florida certificate of need program, FHFC does not determine

which development projects may go forward and which will not be

permitted to go forward because the applicants submitted to FHCH

are not for mutually exclusive licenses or permits. These

applications are for tax credits pursuant to a federal incentive

program. No applicant has a right to a tax credit, and no

applicant who is denied a tax credit will be denied the right to

build its proposed development by FHFC.

35. Petitioner has not cited a Florida case in which a

court has determined that the rationale that underpins the

Ashbacker and Biomedical cases would apply to competitive

applications for tax credits. Although this tax credit program

is available to all states, Petitioner has not cited a case from

another jurisdiction that requires a formal administrative

hearing where tax credits are at issue.

36. An Administrative Law Judge should apply existing law.

An Administrative Law Judge should not apply the Ashbacker

doctrine as urged by Petitioner until a court of competent

jurisdiction has ruled that the doctrine should be expanded to

apply to the application process at issue in this proceeding, or

the legislature has acted to confer rights consistent with the

Ashbacker doctrine. 5/

37. The undersigned has considered Petitioner's arguments

that are based on its assertion that it is entitled to a formal

administrative hearing to compare its application with that of a

competing application. Because existing law does not afford

Petitioner that right, those arguments as to the invalidity of

the challenged rules are rejected.

38. Petitioner's argument that FHFC failed to materially

follow the rulemaking process by not utilizing the Uniform Rules

of Procedure as required by Section 120.54(5)(a), Florida

Statutes, is rejected because the challenged rules are not

procedural rules that govern a proceeding in which the

substantial interests of a party are determined. Instead, the

challenged rules are part of the procedures adopted by FHFC in

response to its mandate to properly allocate and distribute low-

income housing tax credits in a fair and timely manner. The

challenged rules prohibiting cross appeals are properly

considered to be rules determining what parties have standing to

demand a formal administrative hearing. Respondent correctly

asserts that issues of standing are questions of substantive law,

not procedural law. See Florida Wildlife Federation v. State,

Department of Environmental Regulation , 390 So. 2d 64 (Fla.

1980), and Caloosa Property Owners Association, Inc. v. Palm

Beach Board of County Commissioners , 429 So. 2d 1260 (Fla. 1st

DCA 1983). Consequently, the Uniform Rules do not apply.

39. Petitioner's argument that the challenged rules exceed

FHFC's grant of rulemaking authority is rejected. Because of the

time constraints involved in this tax credit program, it is

concluded that FHFC could not discharge its statutory duties

without rules such as the ones at issue in this proceeding. The

legislature has granted FHFC a broad range of authority, which

includes the authority to adopt rules necessary to carry out its

statutory duties. FHFC has the authority to adopt the challenged

rules.

40. Petitioner's argument that the challenged rules vest

unbridled discretion in FHFC and its staff because Cross Appeals

are not permitted is not persuasive.

41. Petitioner's argument that the challenged rules are

arbitrary and capricious is without merit.

CONCLUSION

Based on the foregoing findings of fact and conclusions of

law, it is ORDERED that the subject Amended Petition for

Determination of the Invalidity of Rules 67-48.005 and

67-48.002(10), Florida Administrative Code, is hereby dismissed

with prejudice.

DONE AND ORDERED this 18th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________ ________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of October, 1999.

ENDNOTES

1/ The parties requested that ruling on these objections be

deferred until after the transcript of the proceedings was filed.

2/ Section 420.507, Florida Statutes, provides FHFC with the

authority to discharge its duties, including, the following:

The corporation shall have all the

powers necessary or convenient to carry out

and effectuate the purposes and provisions of

this part, including the following powers

which are in addition to all other powers

granted by other provisions of this part:

* * *

(12) To make rules necessary to carry

out the purposes of this part and to exercise

any power granted in this part pursuant to

the provisions of chapter 120.

3/ There is a shortage of affordable housing in Florida. The

legislative findings contained in Section 420.502, Florida

Statutes, underscore the essential role of FHFC in providing

low-income housing to the people of Florida.

4/ Petitioner's dissatisfaction with the challenged rules is

that they prohibit its challenge in a formal administrative

hearing the scoring of a competitor's application.

5/ The arguments that the Ashbacker doctrine would not apply to

the application process at issue in this proceeding are more

persuasive than the arguments that the doctrine would apply.

COPIES FURNISHED:

Stephen M. Donelan, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301-1329

Michael J. Glazer, Esquire

Craig D. Varn, Esquire

Ausley & McMullen

227 South Calhoun Street

Tallahassee, Florida 32302

William E. Williams, Esquire

J. Andrew Bertron, Jr., Esquire

Huey, Guilday & Tucker, P.A.

Highpoint Center, Suite 900

106 East College Avenue

Tallahassee, Florida 32302-1794

J. Stephen Menton, Esquire

Michael G. Maida, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A.

215 South Monroe Street, Suite 420

Tallahassee, Florida 32302-0551

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the appellate

district where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.