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.

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






19Petitioners, )


22vs. ) Case No. 99- 3179RX




35Respondent, )


38and )





53Intervenors. )



58Pursuant to notice, a formal hearing was held in this case

69on September 3, 1999, at Tallahassee, Florida, before Claude B.

79Arrington, a duly-designated Administrative Law Judge of the

87Division of Administrative Hearings.


92For Petitioners: William E. Williams, Esquire

98J. Andrew Bertron, Jr., Esquire

103Huey, Guilday & Tucker, P.A.

108Highpoint Center, Suite 900

112106 East College Avenue

116Tallahassee, Florida 32303-1794

119For Respondent: Michael J. Glazer, Esquire

125Craig D. Varn, Esquire

129Ausley & McMullen

132227 South Calhoun Street

136Tallahassee, Florida 32302

139Stephen M. Donelan, Esquire

143Florida Housing Finance Corporation

147227 North Bronough Street, Suite 5000

153Tallahassee, Florida 323 01-1329

157For Intervenors: J. Stephen Menton, Esquire

163Michael G. Maida, Esquire

167Rutledge, Ecenia, Purnell, & Hoffman, P.A.

173215 South Monroe Street, Suite 420

179Talla hassee, Florida 32302-0551


187Whether Rule 67-48.005, Florida Administrative Code, and

194Section VII on Page 16 of Form 1 of the 1999 Housing Credit

207Application Package adopted by Rule 67-48.002(10) Florida

214Administrative Code, are invalid exercises of delegated

221legislative authority. If so, whether Petitioners are entitled

229to an award of attorney's fees and costs.


239On July 26, 1999, Petitioners, Regency Gardens Apartments,

247Ltd. (Regency), and Shepland Development Corporation ( Shepland),

255filed a Petition to Determine the Invalidity of Rule 67-48.0005,

265Florida Administrative Code, against Respondent, Florida Housing

272Finance Corporation ( FHFC). This Petition was assigned DOAH Case

282No. 99- 3179RX. On August 11, 1999, Regency and Shepland moved to

294amend their Petition, to include a challenge to one sentence on

305page 16 of Form One of the Housing Credit Application adopted by

317reference in FHFC's Rule 67-48.002(10), Florida Administrative

324Code. There was no objection, and the motion was granted.

334On August 23, 1999, Intervenors, Miami River Park, Ltd., and

344Wynwood Tower Apartments, Ltd., filed a Petition to Intervene in

354DOAH Case No. 99- 3179RX. On September 1, 1999, the Petition to

366Intervene was granted.

369Prior to the final hearing, the parties filed a Joint

379Prehearing Stipulation. The stipulated facts contained in the

387Joint Prehearing Stipulation have been accepted in this Final

396Order to the extent they are relevant to this proceeding.

406The parties stipulated at the final hearing that Shepland

415does not have standing in this matter. As used in this Final

427Order, the term Petitioner, in the singular, shall refer to


438Petitioner did not present any witnesses at the final

447hearing. Petitioner's Exhibits 1-3, 6-8, and 11-15 were accepted

456into evidence. Petitioner's Exhibits 4, 5, 9, 10, 16-18, and 20

467are rejected as exhibits because they are not relevant to any

478issue raised in this proceeding. 1/ Petitioner did not submit

488an Exhibit 19. Respondent presented the testimony of Sue Early.

498Ms. Early was accepted as an expert in the Florida Housing

509Combined Cycle Programs and Allocation Process. Florida

516Housing's Exhibits 1-6 were accepted into evidence. The

524Intervenors did not present any witnesses or introduce any


534Petitioner, Respondent, and Intervenors filed proposed final

541orders, which have been duly considered by the undersigned in the

552preparation of this Final Order.


5601. Part V of Chapter 420, Florida Statutes, consisting of

570Sections 420.501 - 420.517, Florida Statutes, is the Florida

579Housing Finance Corporation Act. Respondent, Florida Housing

586Corporation ( FHFC), is a public corporation created by the

596provisions of Section 420.504, Florida Statutes.

6022. Pursuant to Section 420.5099, Florida Statutes, FHFC is

611the designated housing agency for the State of Florida. FHFC

621administers the Low Income Housing Tax Credit Program and other

631housing programs in Florida pursuant to other provisions of the

641Florida Housing Finance Corporation Act.

6463. Pursuant to Section 420.504(2), Florida Statutes, FHFC

654is an agency of the State of Florida for the purposes of Chapter

667120, Florida Statutes. FHFC is governed by an independent member

677Board of Directors appointed by the Governor. The Board members

687come from specifically designated industries and backgrounds as

695set forth in Section 420.504(3), Florida Statutes. Pursuant to

704Section 420.507, Florida Statutes, FHFC has all the powers

713necessary or convenient to carry out and effectuate the purposes

723and provisions of the Florida Housing Finance Corporation Act,

732including the power to enact rules. 2/

7394. Petitioner submitted an application to the FHFC for 1999

749Low Income Housing Tax Credits. The parties stipulated that

758Petitioner has standing to challenge the validity of the rules at

769issue in this proceeding. The parties further stipulated that

778Shepland does not have standing to challenge the validity of the

789rules at issue in this proceeding.

7955. Intervenors, Miami River Park, Ltd., and Wynwood Tower

804Apartments, Ltd., submitted applications to FHFC for 1999 Low

813Income Housing Tax Credits. The parties stipulated that these

822two entities have standing to intervene in this proceeding.

8316. The Low Income Housing Tax Credit Program is a federal

842program whose purpose is to encourage the development of housing

852for low-income families in the various states. 3/ Section 42 of

863the Internal Revenue Code (Title 26 of the United States Code)

874creates federal income tax credits that are allocated to each

884state and are awarded through state-administered programs to

892developers of low-income housing projects. The tax credits

900equate to a dollar-for-dollar reduction of the holder's tax

909liability which can be taken each year that the project satisfies

920the Internal Revenue Code requirements, for up to ten years. The

931developer typically sells or syndicates the tax credit to

940generate funding for the proposed project.

9467. Section 42 of the Internal Revenue Code requires that

956each state adopt a Qualified Allocation Plan ( QAP) establishing

966procedures to be followed in awarding low-income credits

974allocated to the states.

9788. Section 420.5099, Florida Statutes, provides as follows:

986(1) The Florida Housing Finance

991Corporation is designated the housing credit

997agency for the state within the meaning of

1005s. 42(h)(7)(A) of the Internal Revenue Code

1012of 1986 and shall have the responsibility and

1020authority to establish procedures necessary

1025for proper allocation and distribution of

1031low-income housing tax credits and shall

1037exercise all powers necessary to administer

1043the allocation of such credits.

1048(2) The corporation shall adopt

1053allocation procedures that will ensure the

1059maximum use of available tax credits in order

1067to encourage development of low-income

1072housing in the state, taking into

1078consideration the timeliness of the

1083application, the location of the proposed

1089housing project, the relative need in the

1096area for low-income housing and the

1102availability of such housing, the economic

1108feasibility of the project, and the ability

1115of the applicant to proceed to completion of

1123the project in the calendar year for which

1131the credit is sought.

1135(3) The corporation may request such

1141information from applicants as will enable it

1148to make the allocations according to the

1155guidelines set forth in subsection (2),

1161including, but not limited to, the

1167information required to be provided the

1173corporation by chapter 9I-21, Florida

1178Administrative Code.

1180(4) The executive director of the

1186corporation shall administer the allocation

1191procedures and determine allocations on

1196behalf of the corporation. Any applicant

1202disputing the amount of an allocation or the

1210denial of a request for an allocation may

1218request an appeal to the board of directors

1226of the corporation.

1229(5) For purposes of implementing this

1235program in Florida and in assessing the

1242property for ad valorem taxation under

1248s. 193.011, neither the tax credits, nor

1255financing generated by tax credits, shall be

1262considered as income to the property, and the

1270rental income from rent restricted units in a

1278low-income tax credit development shall be

1284recognized by the property appraiser.

1289(6) The corporation is authorized to

1295expend fees received in conjunction with the

1302allocation of low-income housing tax credits

1308only for the purpose of administration of the

1316program, including private legal services

1321which relate to interpretation of s. 42 of

1329the Internal Revenue Code of 1986, as


13379. Pursuant to the provisions of Section 420.5099, Florida

1346Statutes, FHFC has established rules for processing applications

1354for housing tax credits. These rules, found in Chapter 67-48,

1364Florida Administrative Code, constitute Florida's QAP. A prime

1372consideration in developing the application process is that the

1381process be completed in a timely manner, since the failure of a

1393state to use all of its allocated credits in a timely manner will

1406result in a loss of housing tax credits. Such a loss is contrary

1419to the statutory mandate that FHFC ensure the maximum use of

1430available tax credits.

143310. Petitioner has challenged FHFC's Rule 67-48.005,

1440Florida Administrative Code, which is entitled Applicant

1447Administrative Appeal Procedures, and provides, in pertinent

1454part, as follows:

1457(1) Following the Review Committee's

1462determination of preliminary scores and

1467ranking, notice of intended funding or denial

1474of funding will be provided to each Applicant

1482with a statement that:

1486(a) Applicants who wish to contest the

1493decision relative to their own Application

1499must petition for review of the decision in

1507writing within 10 calendar days of the date

1515of the notice. The request must specify in

1523detail the forms and the scores sought to be

1532appealed. Unless the appeal involves

1537disputed issues of material fact, the appeal

1544will be conducted on an informal basis. The

1552Review Committee will review the appeal and

1559will provide to the Applicant a written

1566position paper which recommends either no

1572change in score or an increase or decrease in

1581a score which it deems to be in error. If

1591the Applicant disagrees with the Review

1597Committee's recommendation, the Applicant

1601will be given an opportunity to participate

1608in the informal administrative appeal

1613hearings scheduled by the Review Committee.

1619If the appeal raises issues of material fact,

1627a formal administrative hearing will be

1633conducted pursuant to Section 120.57(1),

1638Florida Statutes. Failure to timely file a

1645petition shall constitute a waiver of the

1652right of the Applicant to such an appeal.

1660(b) Applicants who wish to notify the

1667Corporation of possible scoring errors

1672relative to another Applicant's Application

1677must file with the Corporation, within 10

1684calendar days of the date of the notice, a

1693written request for a review of the other

1701Applicant's score. Each request must specify

1707in detail the assigned Application number,

1713the forms and the scores in question. Each

1721request is limited to the review of only one

1730Application's score. Requests which seek the

1736review of more than one Application's score

1743will be considered improperly filed and

1749ineligible for review. There is no limit to

1757the number of requests which may be

1764submitted. The Review Committee will review

1770each written request timely received and will

1777prepare a written position paper, which will

1784be provided to each Applicant who timely

1791filed a notification and to the Applicant

1798whose score has been questioned, which

1804recommends either no change in score or an

1812increase or decrease in a score which it

1820deems to be in error. Failure to timely and

1829properly file a request shall constitute a

1836waiver of the right of the Applicant to such

1845a review.

1847(2) Notice will be provided to all

1854Applicants whose score is reduced or whose

1861Application is deemed ineligible pursuant to

186767-48.005(1)(b) that they may contest the

1873decision relative to their own Application by

1880petitioning for review of the decision in

1887writing within 10 calendar days of the date

1895of the notice. The request must specify in

1903detail the forms and the scores sought to be

1912appealed. Unless the appeal involves

1917disputed issues of material fact, the appeal

1924will be conducted on an informal basis. The

1932Review Committee will review the appeal and

1939will provide to the Applicant a written

1946position paper which recommends either no

1952change in score or an increase or decrease in

1961a score which it deems to be in error. If

1971the Applicant disagrees with the Review

1977Committee's recommendation, the Applicant

1981will be given an opportunity to participate

1988in the informal administrative appeal

1993hearings scheduled by the Review Committee.

1999No Applicant or other person or entity will

2007be allowed to intervene in the appeal of

2015another Applicant. If the appeal raises

2021issues of material fact, a formal

2027administrative hearing will be conducted

2032pursuant to Section 120.57(1), Florida

2037Statutes. Failure to timely file a petition

2044shall constitute a waiver of the right of the

2053Applicant to such an appeal.

205811. Petitioner has also challenged the following portion of

2067the application form which has been adopted by reference by

2077FHFC's Rule 67-48.002(10), Florida Administrative Code:

2083. . . In consideration for the Corporation

2091processing and scoring this Application, the

2097Applicant and all Financial Beneficiaries

2102hereby understand and agree that the

2108Corporation will hear appeals only on the

2115Applicant's own score. . . .

212112. In 1996, FHFC combined the application processes for

2130the subject low-income tax credit program, the State Apartment

2139Incentive Loan (SAIL) Program (Section 420.587, Florida Statutes)

2147and the Home Investment Partnership (HOME) Program (Section

2155420.5089, Florida Statutes) to make the application process

2163easier and more efficient.

216713. Each year FHFC initiates rulemaking to refine the

2176application process from the previous year and to implement any

2186changes in the application process. The administrative rules,

2194with any amendments, are adopted annually. All prospective

2202applicants under any of the three combined programs are invited

2212to attend rulemaking workshops.

221614. After the allocation of tax credits for Florida is

2226known, a Notice of Funding Availability setting forth that

2235allocation, is published in the Florida Law Weekly. For the 1999

2246allocation period, the notice was published on October 23, 1998.

225615. Due to the limited number of housing credits available

2266in each annual application cycle and the number of applications

2276for those credits, there are not enough credits available for

2286distribution in Florida for all applicants to receive housing

2295credits in the year in which they apply. Consequently,

2304applicants are competing for a fixed pool of resources.

231316. For the 1999 period, the application cycle was opened

2323and the application form was available to interested persons on

2333October 30, 1998. From November 9 through 11, 1998, application

2343workshops were held in Tallahassee, Miami, and Orlando, to

2352address any questions regarding the application process.

235917. Applicants are given what is referred to as the

2369Application Package, which contains all pertinent forms and sets

2378forth the instructions and criteria by which the applications

2387will be evaluated by FHFC staff. Applicants were required to

2397complete the applications and submit them to FHFC by January 7,

24081999. Ninety applications for the three combined programs were

2417filed. Each application was evaluated by FHFC staff pursuant to

2427the instructions and criteria contained in the Application

2435Package. Partly because FHFC staff is required to verify

2444information reflected in each application, the evaluation process

2452takes six to eight weeks to complete. The evaluation process

2462results in a score for each application. The scores are reviewed

2473and approved by a Review Committee, consisting of FHFC staff. On

2484March 12, 1999, after scores were approved by the Review

2494Committee, a pre-review score was mailed to each applicant.

250318. After the applicants were notified of their pre-review

2512score, they had the week beginning March 15, 1999, to review the

2524scoring of all applications. FHFC rules provide an opportunity

2533for an applicant to question its pre-review score and to

2543challenge the pre-review scores received by other applicants.

255119. The challenge to an applicant's own score is referred

2561to as a Direct Appeal. The challenge by an applicant to another

2573applicant's score is referred to as a Competitive Appeal. All

2583Direct and Competitive Appeals were due on or before March 22,


259520. Upon receipt of the Direct Appeals and Competitive

2604Appeals, FHFC staff first review the Competitive Appeals and

2613draft a Competitive Appeal Position Paper for each unique issue

2623raised. The Competitive Appeal Position Papers are approved by

2632the Review Committee before being released, which, for 1999, was

2642on April 5, 1999. The same process is followed for the Direct

2654Appeals. The Direct Appeal Position Papers were approved by the

2664Review Committee and released on April 7, 1999.

267221. An applicant whose application was adversely affected

2680by a Competitive Appeal Position Paper (as the result of a

2691Competitive Appeal filed by a competing applicant) has the

2700opportunity to file what is referred to as a Direct Appeal of a

2713Competitive Appeal ( DACA).

271722. Thereafter, FHFC staff evaluates all issues raised by

2726the Direct Appeals and by the DACAs, and prepares a position

2737paper for each issue. On April 27, 1999, the Review Committee

2748approved the Direct Appeal and DACA position papers. On May 4,

27591999, these position papers were mailed to the interested


276923. An applicant who was not satisfied with the Direct

2779Appeal or DACA position paper for its application was given a

2790limited period to request a proceeding pursuant to Chapter 120,

2800Florida Statutes. If there were no disputed issues of material

2810fact, the matter proceeded as an informal hearing. If there were

2821disputed issues of material fact, the matter proceeded as a

2831formal hearing.

283324. On June 11 and July 30, 1999, the Board of Directors of

2846FHFC considered the Recommended Order that resulted from each

2855administrative hearing and entered a Final Order, which

2863determined the final scores for each application. Thereafter,

2871the final ranking of the competing applications were completed

2880and approved.

288225. Preliminary approval of a tax credit allocation to an

2892applicant is based on the final ranking. An applicant selected

2902for a tax credit allocation is thereafter "invited" by FHFC to a

"2914credit underwriting" whereby the credit-worthiness of the

2921applicant and the proposed project is further scrutinized by a

2931credit underwriter and a draft credit underwriting report is

2940prepared. The credit underwriting process takes fifty to sixty

2949days to complete. For the 1999 cycle, the draft credit

2959underwriting reports were due September 28, 1999.

296626. Once the credit underwriting reports are finished, the

2975successful applicant is given a preliminary tax credit

2983allocation. For the 1999 cycle, the applicant then must complete

2993its project or certify that it has expended at least ten percent

3005of its reasonably expected tax credit basis. If the project

3015cannot be completed by the end of the calendar year, the

3026applicant must enter into a Carryover Agreement. The applicant

3035must have expended ten percent of its reasonably expected tax

3045credit basis before it can enter into a Carryover Agreement. The

3056applicant typically has to be prepared to spend large sums of

3067money in a relatively short period of time to meet these


307927. An applicant does not have the opportunity for an

3089administrative hearing pursuant to Chapter 120, Florida Statutes,

3097on the scoring of a competing application after the Competitive

3107Appeal Position Paper has been issued by FHFC staff. 4/

3117Pursuant to the challenged rules, an applicant who was not

3127satisfied with the Direct Appeal or DACA position paper for

3137another applicant's application is not permitted a Chapter 120

3146proceeding and is not permitted to intervene if the other

3156applicant has requested a Chapter 120 proceeding. Such appeals,

3165referred to as Cross Appeals, were once permitted by the rules of


317828. FHFC determined that Cross Appeals disrupted the

3186application process and placed too great a burden on the FHFC

3197staff. Cross Appeals resulted in a process that was difficult to

3208bring to closure and resulted in litigation expenses that were

3218assessed against the total project cost for the development.

322729. Using rule development workshops that were

3234appropriately advertised, FHFC adopted rules permitting

3240Competitive Appeals, but prohibiting Cross Appeals. FHFC did not

3249act arbitrarily or capriciously in adopting these rules.


326030. The Division of Administrative Hearings has

3267jurisdiction of the parties to and the subject of this

3277proceeding. Sections 120.52(8), 120.56(1), and 120.57(1),

3283Florida Statutes.

328531. Regency has the burden of proving the invalidity of the

3296challenged rules by a preponderance of the evidence. Agrico

3305Chemical Company v. State, Department of Environmental

3312Regulations , 365 So. 2d 759 (Fla. 1st DCA 1979); St Johns River

3324Water Management District v. Consolidated- Tomoka Land Company ,

3332717 So. 2d 72 (Fla. 1st DCA 1998), review denied , 727 So. 2d 904

3346(Fla. 1999).

334832. Section 120.52(8), Florida Statutes, provides as


3356(8) "Invalid exercise of delegated

3361legislative authority" means action which

3366goes beyond the powers, functions, and duties

3373delegated by the Legislature. A proposed or

3380existing rule is an invalid exercise of

3387delegated legislative authority if any one of

3394the following applies:

3397(a) The agency has materially failed to

3404follow the applicable rulemaking procedures

3409or requirements set forth in this chapter;

3416(b) The agency has exceeded its grant

3423of rulemaking authority, citation to which is

3430required by s. 120.54(3)(a)1.;

3434(c) The rule enlarges, modifies, or

3440contravenes the specific provisions of law

3446implemented, citation to which is required by

3453s. 120.54(3)(a)1.;

3455(d) The rule is vague, fails to

3462establish adequate standards for agency

3467decisions, or vests unbridled discretion in

3473the agency;

3475(e) The rule is arbitrary or


3482(f) The rule is not supported by

3489competent substantial evidence; or

3493(g) The rule imposes regulatory costs

3499on the regulated person, county, or city

3506which could be reduced by the adoption of

3514less costly alternatives that substantially

3519accomplish the statutory objectives.

3523A grant of rulemaking authority is

3529necessary but not sufficient to allow an

3536agency to adopt a rule; a specific law to be

3546implemented is also required. An agency may

3553adopt only rules that implement, interpret,

3559or make specific the particular powers and

3566duties granted by the enabling statute. No

3573agency shall have authority to adopt a rule

3581only because it is reasonably related to the

3589purpose of the enabling legislation and is

3596not arbitrary and capricious, nor shall an

3603agency have the authority to implement

3609statutory provisions setting forth general

3614legislative intent or policy. Statutory

3619language granting rulemaking authority or

3624generally describing the powers and functions

3630of an agency shall be construed to extend no

3639further than the particular powers and duties

3646conferred by the same statute.

365133. Petitioner asserts that it has a right to challenge in

3662a formal administrative hearing FHFC's evaluation of a competing

3671application pursuant to the provisions of Chapter 120, Florida

3680Statutes, under the doctrine set forth in Ashbacker Radio

3689Corporation v. Federal Communications Commission , 326 U.S. 327

3697(1945) and followed Biomedical Applications of Clearwater, Inc.

3705v. Department of Health and Rehabilitative Services , 370

3713So. 2d 19 (Fla. 2d DCA 1979) and Biomedical Applications of Ocala

3725v. Office of Community Medical Facilities , 374 So. 2d 88 (Fla.

37361st DCA 1979). Ashbacker , supra , required the Federal

3744Communication Commissions to afford a radio station a hearing on

3754its evaluation of a competitor's application where the

3762applications were for the same frequency and the granting of one

3773application necessarily entailed the denial of the other. In the

3783Biomedical cases, the Second District Court and the First

3792District Court of Florida ruled that the Ashbacker doctrine

3801required hearings pursuant to Chapter 120, Florida Statutes, for

3810competing, mutually exclusive, applications for certificates of


381834. Unlike the Federal Communications Commission or the

3826Florida certificate of need program, FHFC does not determine

3835which development projects may go forward and which will not be

3846permitted to go forward because the applicants submitted to FHCH

3856are not for mutually exclusive licenses or permits. These

3865applications are for tax credits pursuant to a federal incentive

3875program. No applicant has a right to a tax credit, and no

3887applicant who is denied a tax credit will be denied the right to

3900build its proposed development by FHFC.

390635. Petitioner has not cited a Florida case in which a

3917court has determined that the rationale that underpins the

3926Ashbacker and Biomedical cases would apply to competitive

3934applications for tax credits. Although this tax credit program

3943is available to all states, Petitioner has not cited a case from

3955another jurisdiction that requires a formal administrative

3962hearing where tax credits are at issue.

396936. An Administrative Law Judge should apply existing law.

3978An Administrative Law Judge should not apply the Ashbacker

3987doctrine as urged by Petitioner until a court of competent

3997jurisdiction has ruled that the doctrine should be expanded to

4007apply to the application process at issue in this proceeding, or

4018the legislature has acted to confer rights consistent with the

4028Ashbacker doctrine. 5/

403137. The undersigned has considered Petitioner's arguments

4038that are based on its assertion that it is entitled to a formal

4051administrative hearing to compare its application with that of a

4061competing application. Because existing law does not afford

4069Petitioner that right, those arguments as to the invalidity of

4079the challenged rules are rejected.

408438. Petitioner's argument that FHFC failed to materially

4092follow the rulemaking process by not utilizing the Uniform Rules

4102of Procedure as required by Section 120.54(5)(a), Florida

4110Statutes, is rejected because the challenged rules are not

4119procedural rules that govern a proceeding in which the

4128substantial interests of a party are determined. Instead, the

4137challenged rules are part of the procedures adopted by FHFC in

4148response to its mandate to properly allocate and distribute low-

4158income housing tax credits in a fair and timely manner. The

4169challenged rules prohibiting cross appeals are properly

4176considered to be rules determining what parties have standing to

4186demand a formal administrative hearing. Respondent correctly

4193asserts that issues of standing are questions of substantive law,

4203not procedural law. See Florida Wildlife Federation v. State,

4212Department of Environmental Regulation , 390 So. 2d 64 (Fla.

42211980), and Caloosa Property Owners Association, Inc. v. Palm

4230Beach Board of County Commissioners , 429 So. 2d 1260 (Fla. 1st

4241DCA 1983). Consequently, the Uniform Rules do not apply.

425039. Petitioner's argument that the challenged rules exceed

4258FHFC's grant of rulemaking authority is rejected. Because of the

4268time constraints involved in this tax credit program, it is

4278concluded that FHFC could not discharge its statutory duties

4287without rules such as the ones at issue in this proceeding. The

4299legislature has granted FHFC a broad range of authority, which

4309includes the authority to adopt rules necessary to carry out its

4320statutory duties. FHFC has the authority to adopt the challenged


433140. Petitioner's argument that the challenged rules vest

4339unbridled discretion in FHFC and its staff because Cross Appeals

4349are not permitted is not persuasive.

435541. Petitioner's argument that the challenged rules are

4363arbitrary and capricious is without merit.


4370Based on the foregoing findings of fact and conclusions of

4380law, it is ORDERED that the subject Amended Petition for

4390Determination of the Invalidity of Rules 67-48.005 and

439867-48.002(10), Florida Administrative Code, is hereby dismissed

4405with prejudice.

4407DONE AND ORDERED this 18th day of October, 1999, in

4417Tallahassee, Leon County, Florida.

4421___________________ ________________


4426Administrative Law Judge

4429Division of Administrative Hearings

4433The DeSoto Building

44361230 Apalach ee Parkway

4440Tallahassee, Florida 32399-3060

4443(850) 488-9675 SUNCOM 278-9675

4447Fax Filing (850) 921-6847


4452Filed with the Clerk of the

4458Division of Administrative Hearings

4462this 18th day of October, 1999.


44691/ The parties requested that ruling on these objections be

4479deferred until after the transcript of the proceedings was filed.

44892/ Section 420.507, Florida Statutes, provides FHFC with the

4498authority to discharge its duties, including, the following:

4506The corporation shall have all the

4512powers necessary or convenient to carry out

4519and effectuate the purposes and provisions of

4526this part, including the following powers

4532which are in addition to all other powers

4540granted by other provisions of this part:

4547* * *

4550(12) To make rules necessary to carry

4557out the purposes of this part and to exercise

4566any power granted in this part pursuant to

4574the provisions of chapter 120.

45793/ There is a shortage of affordable housing in Florida. The

4590legislative findings contained in Section 420.502, Florida

4597Statutes, underscore the essential role of FHFC in providing

4606low-income housing to the people of Florida.

46134/ Petitioner's dissatisfaction with the challenged rules is

4621that they prohibit its challenge in a formal administrative

4630hearing the scoring of a competitor's application.

46375/ The arguments that the Ashbacker doctrine would not apply to

4648the application process at issue in this proceeding are more

4658persuasive than the arguments that the doctrine would apply.


4669Stephen M. Donelan, General Counsel

4674Florida Housing Finance Corporation

4678227 North Bronough Street, Suite 5000

4684Tallahassee, Florida 32301-1329

4687Michael J. Glazer, Esquire

4691Craig D. Varn, Esquire

4695Ausley & McMullen

4698227 South Calhoun Street

4702Tallahassee, Florida 32302

4705William E. Williams, Esquire

4709J. Andrew Bertron, Jr., Esquire

4714Huey, Guilday & Tucker, P.A.

4719Highpoint Center, Suite 900

4723106 East College Avenue

4727Tallahassee, Florida 32302-1794

4730J. Stephen Menton, Esquire

4734Michael G. Maida, Esquire

4738Rutledge, Ecenia, Purnell & Hoffman, P.A.

4744215 South Monroe Street, Suite 420

4750Tallahassee, Florida 32302-0551

4753Carroll Webb

4755Executive Director and General Counsel

4760Joint Administrative Procedures Committee

4764Holland Building, Room 120

4768Tallahassee, Florida 32399-1300


4777A party who is adversely affected by this Final Order is entitled

4789to judicial review pursuant to Section 120.68, Florida Statutes.

4798Review proceedings are governed by the Florida Rules of Appellate

4808Procedure. Such proceedings are commenced by filing one copy of

4818a Notice of Appeal with the agency clerk of the Division of

4830Administrative Hearings and a second copy, accompanied by filing

4839fees prescribed by law, with the District Court of Appeal, First

4850District, or with the District Court of Appeal in the appellate

4861district where the party resides. The Notice of Appeal must be

4872filed within 30 days of rendition of the order to be reviewed.

Select the PDF icon to view the document.
Date: 10/18/1999
Proceedings: DOAH Final Order
Date: 10/18/1999
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 9/3/99.
Date: 09/20/1999
Proceedings: Petitioner`s Proposed Final Order (for Judge Signature) filed.
Date: 09/20/1999
Proceedings: Intervenors` Proposed Final Order filed.
Date: 09/20/1999
Proceedings: Florida Housing Finance Corporation`s Proposed Final Order; Florida Housing Finance Corporation`s Memorandum of Law; Disk filed.
Date: 09/10/1999
Proceedings: Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed.
Date: 09/03/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 09/01/1999
Proceedings: Joint Prehearing Stipulation; Florida Housing Finance Corporation`s Notice of Service of Answers to Regency Garden Apartments, Ltd.`s First Interrogatories filed.
Date: 09/01/1999
Proceedings: Order Granting Petition for Intervention sent out. (Miami River Park, Ltd., and Wynwood Tower Apartments, Ltd.)
Date: 08/31/1999
Proceedings: (M. Glazer) Response to Request for Production of Documents filed.
Date: 08/31/1999
Proceedings: Intervenors Response to Petitioners` Opposition to Petition to Intervene filed.
Date: 08/31/1999
Proceedings: (J. Menton) Notice of Filing; Exhibit A filed.
Date: 08/27/1999
Proceedings: Petitioner`s Certificate of Serving First Set of Interrogatories to Respondent filed.
Date: 08/27/1999
Proceedings: (M. Glazer) Response to Request for Admissions filed.
Date: 08/26/1999
Proceedings: Petitioners` First Request for Production of Documents filed.
Date: 08/26/1999
Proceedings: (M. Glazer) Response to Petition to Intervene filed.
Date: 08/26/1999
Proceedings: Petitioners` Response in Opposition to Petition to Intervene filed.
Date: 08/25/1999
Proceedings: (Petitioners) Notice of Taking Deposition (Untitled) filed.
Date: 08/24/1999
Proceedings: Petitioners` Response to Respondent`s Request for Admissions filed.
Date: 08/24/1999
Proceedings: Petitioners` First Request for Admissions filed.
Date: 08/23/1999
Proceedings: (Miami River Park, Ltd.) Petition to Intervene filed.
Date: 08/19/1999
Proceedings: Order Granting Motion to Amend Petition sent out.
Date: 08/18/1999
Proceedings: (M. Glazer) Request for Admissions filed.
Date: 08/16/1999
Proceedings: (M. Glazer) Response to Motion to File Amended Petition filed.
Date: 08/11/1999
Proceedings: Petitioners` Motion to File Amended Petition filed.
Date: 08/10/1999
Proceedings: Notice of Hearing sent out. (hearing set for September 3, 1999; 9:00am; Tallahassee)
Date: 08/10/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 08/06/1999
Proceedings: (M. Glazer) Notice of Telephonic Conference Hearing filed.
Date: 08/05/1999
Proceedings: Order of Assignment sent out.
Date: 08/03/1999
Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
Date: 07/26/1999
Proceedings: Petition for Determination of the Invalidity of Rule 67-48.005, Florida Administrative Code filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Tallahassee, Florida
Department of Community Affairs

Related Florida Statute(s) (12):

Related Florida Rule(s) (2):