00-004287 Lakesmart Associates, Ltd. vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Wednesday, February 7, 2001.


View Dockets  
Summary: The issue was whether the Florida Housing Finance Corporation properly interpreted its rules for achieving a mandatory Non-Profit Set-Aside requiring that 12% of all available credits be awarded to non-profit entities. Petitions dismissed.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LAKESMART ASSOCIATES, LTD., )

12)

13Petitioner, )

15)

16vs. ) Case No. 00-4287RU

21)

22FLORIDA HOUSING FINANCE )

26CORPORATION, )

28)

29Respondent. )

31)

32RPK ASSOCIATES, LTD., )

36)

37Petitioner, )

39)

40vs. ) Case No. 00-4408RU

45)

46FLORIDA HOUSING FINANCE )

50CORPORATION, )

52)

53Respondent. )

55)

56MEADOW GLEN, LTD. and CORAL )

62VILLAGE II, LTD., )

66)

67Intervenors. )

69_______________________________ )

71RECOMMENDED ORDER

73The parties having been provided proper notice,

80Administrative Law Judge John G. Van Laningham of the Division

90of Administrative Hearings convened a formal hearing of this

99matter on December 11, 2000, in Tallahassee, Florida.

107APPEARANCES

108For Petitioner: W. Douglas Moody, Jr., Esquir e

116(Lakesmart) Graham, Moody & Sox, P.A.

122215 South Monroe Street

126Tallahassee, Florida 32301

129For Petitioner: Robert S. Cohen, Esquire

135(RPK Associates) 1435 East Piedmont Drive, Suite 201-B

143Tallahassee, Florida 32312-2938

146R obert W. Turken, Esquire

151Bilzin, Sumberg, Dunn, Baena,

155Price & Axelrod, LLP

1592500 First Union Financial Center

164200 South Biscayne Boulevard

168Miami, Florida 33131-2336

171For Intervenors: David A. Barrett, Esquire

177Barrett & Associates

180111 South Monroe Street, Suite 3000

186Tallahassee, Florida 32302-0930

189For Respondent: Michael J. Glazer, Esquire

195Ausley & McMullen

198Post Office Box 391

202Tallahassee, Florida 3230 2

206Maureen McCarthy Daughton, Esquire

210Nabors, Giblin & Nickerson, P.A.

2151500 Mahan Drive, Suite 200

220Tallahassee, Florida 32308

223Elizabeth G. Arthur, Esquire

227Florida Housing Finance Corporation

231227 North Bron ough Street, Suite 5000

238Tallahassee, Florida 32301

241STATEMENT OF THE ISSUE

245As the parties have stipulated, the issue in this case is

256whether Respondent Florida Housing Finance Corporation (the

263“Corporation”) properly interpreted Rule 67-48.032(2), Florida

269Administrative Code, and the corresponding provisions on the

277same subject found in paragraph 2, at page 2, of the

288Corporation’s 2000 Qualified Allocation Plan (collectively, the

"295Instructions"), when it applied the Instructions to determine

304the substantial interests of Petitioners and Intervenors.

311PRELIMINARY STATEMENT

313On October 17, 2000, Petitioner Lakesmart Associates, Ltd.

321(“Lakesmart”) filed a petition seeking an administrative

328determination that certain statements by the Corporation

335constituted invalid unadopted rules, initiating Case Number 00-

3434287RU. Petitioner RPK Associates, Ltd. (“RPK”) commenced Case

351Number 00 -4408RU by filing a similar petition on October 26,

3622000. On or about November 2, 2000, the Corporation moved to

373consolidate the two cases. An Order granting consolidation was

382entered on November 8, 2000. On November 8, 2000, Intervenors

392Meadow Glen, Ltd. and Coral Village II, Ltd. (“Meadow Glen” and

403“Coral Village”), filed their petition for joinder, seeking to

412join the petition of RPK. On November 9, 2000, an order was

424entered granting Intervenors leave to intervene in the

432consolidated cases.

434A Joint Prehearing Stipulation was filed December 8, 2000.

443In addition, on the day of the final hearing, the parties

454entered into and filed a separate Stipulation. In their

463Stipulation, the parties agreed that this matter should go

472forward as a proceeding under Section 120.57(1)(e), Florida

480Statutes, with the administrative law judge entering a

488recommended order pursuant to Section 120.57(1), Florida

495Statutes. The Stipulation further provided that the sole issue

504to be decided in the proceeding was whether the Corporation’s

514interpretation of the Instructions was proper. The parties

522agreed that the criteria set forth Section 120.57(1)(e)2,

530Florida Statutes, were not in dispute, except as necessary to

540determine the stipulated issue, and would require no proof by

550the Corporation. The administrative law judge accepted the

558parties’ Stipulation, which is hereby adopted and incorporated

566by reference, and deemed the pleadings to be amended to conform

577therewith.

578At the final hearing, Lakesmart presented the testimony of

587Gwen Lightfoot and Lloyd Boggio. Meadow Glen and Coral Village

597presented the testimony of Bowen Arnold. In addition,

605Petitioners’ Exhibits 1 through 8 were received into evidence.

614The Corporation presented the testimony of its Executive

622Director, Mark Kaplan. Respondent’s Exhibits 1 through 7 and 9

632through 12 were also admitted into evidence. Respondent’s

640Exhibits 13, 14, 15, and 16 were not admitted but were proffered

652by Respondent.

654Respondent’s Exhibit 8, as identified, consisted of

661portions of the deposition of Lloyd Boggio that the Corporation

671designated after the final hearing. In accordance with the

680administrative law judge’s instructions, the Corporation filed

687its designations on December 14, 2000, subject to the other

697parties’ objections. Intervenors timely objected to some of the

706Corporation’s deposition designations. Accordingly, the

711following rulings are made regarding Respondent’s Exhibit 8.

719Without objection, the portions of Mr. Boggio’s deposition

727designated by the Corporation that shall be received into

736evidence are: Page 4, Line 15 through Page 7, Line 13; Page 13,

749Lines 1 through 25; and Page 39, Line 6 through Page 40,

761Line 15. Intervenors’ objections, on the basis of relevance, to

771the admission of Page 44, Line 8 through Page 46, Line 10; Page

78451, Line 17 through Page 54, Line 1; and Deposition Exhibit 17,

796are sustained; these portions of Respondent’s Exhibit 8 are not

806admitted into evidence but have been received as a proffer.

816Finally, Page 20, Line 13 through Page 21, Line 22 of

827Mr. Boggio’s deposition, which Intervenors cross-designated, is

834received without objection.

837The parties submitted proposed recommended orders and post-

845hearing memorandums that have been carefully considered by the

854administrative law judge in the preparation of this Recommended

863Order.

864FINDINGS OF FACT

867The evidence presented at final hearing established the

875facts that follow.

878The Corporation and Its Duty

883to Allocate Federal Income Tax Credits

8891. The Corporation is a public corporation that

897administers governmental programs relating to the financing and

905refinancing of housing and related facilities in Florida. It is

915governed by a nine-member board composed of eight persons whom

925the governor appoints plus the Secretary of the Department of

935Community Affairs, sitting ex-officio.

9392. Among other things, the Corporation is the state's

948designated "housing credit agency" as defined in the Internal

957Revenue Code. As such, the Corporation has the responsibility

966and authority to establish procedures necessary for the

974allocation and distribution of low-income housing federal tax

982credits, which are created under and governed almost entirely by

992federal law.

9943. These tax credits, which are designed to encourage the

1004development of low-income housing for families, provide a

1012dollar-for-dollar reduction of the holder’s federal income tax

1020liability and can be taken each year, for up to ten years, that

1033the low-income housing project for which the credits were

1042awarded continues to satisfy Internal Revenue Code requirements.

1050Housing tax credits are allotted annually to the states on a per

1062capita basis and then awarded, through state-administered

1069programs, to developers of rental housing for low-income and

1078very low-income families. Once awarded, there is a market for

1088these tax credits; consequently, a developer may sell them at a

1099discount to obtain immediate cash for its project.

11074. As a populous st ate, Florida receives between

1116$18 million and $18.5 million in federal tax credits each year.

1127The Corporation allocates the state's share of tax credits to

1137eligible recipients pursuant to a Qualified Allocation Plan

1145("QAP") that federal law requires be prepared. The QAP, which

1157must be approved by the governor, is incorporated by reference

1167in Rule 67-48.025, Florida Administrative Code.

11735. In accordance with the QAP, the Corporation employs

1182various set-asides and special targeting goals that play a

1191substantial part in determining which applicants will receive

1199tax credits in a particular year. While targeting goals are

"1209aspirational" in nature, set-asides are relatively inflexible.

1216Thus, special targeting goals may be met if credits are

1226available. In contrast, credits that were reserved (or "set-

1235aside") for specific project types will be awarded to applicants

1246whose developments fall within the defined set-aside.

12536. The set-asides that have spawned the instant dispute

1262are the Geographic Set-Asides and the Non-Profit Set-Aside. The

1271Geographic Set-Asides require that a pre-determined portion of

1279the available tax credits be awarded to applicants in each of

1290the following county groups: Large County, Medium County, and

1299Small County. In 2000, the allocation percentages for these

1308groups were 64%, 26%, and 10%, respectively. The Non-Profit

1317Set-Aside, which is a function of federal law, requires that at

1328least 12% of the credits be awarded to non-profit applicants.

13387. None of the other set-asides is either at issue here or

1350affects the analysis or outcome. The same is true of the

1361special targeting goals. For simplicity's sake, therefore,

1368special targeting goals will be ignored in the discussion that

1378follows, and it will be assumed, unless otherwise stated, that

1388the Geographic and Non-Profit Set-Asides are the only factors

1397(besides merit) that affect the Corporation's award of tax

1406credits.

1407The Petitioners and Intervenors

1411(Collectively, "Petitioners")

14148. Lakesmart is a Florida limited partnership which has as

1424one of its general partners a non-profit corporation. In the

14342000 application cycle, Lakesmart applied to the Corporation for

1443an award of tax credits from the Medium County allocation.

1453Lakesmart is a "Non-Profit Applicant" for purposes of the Non-

1463Profit Set-Aside.

14659. RPK is a Florida limited partnership. In the 2000

1475application cycle, RPK applied to the Corporation for an award

1485of tax credits from the Large County allocation. For purposes

1495of the Non-Profit Set-Aside, RPK is a "for-profit Applicant."

150410. Meadow Glen and Coral Village are Florida limited

1513partnerships. Each has a non-profit corporation as one of its

1523general partners. Both applied to the Corporation in the 2000

1533application cycle for an award of tax credits from the Medium

1544County allocation. Each is considered a "Non-Profit Applicant"

1552for purposes of the Non-Profit Set-Aside.

1558Evaluation, Ranking, and the Tentative Funding Range

156511. To distribute the finite amount of tax credits

1574available each year, the Corporation has designed a competitive

1583process whereby potential recipients file applications that the

1591Corporation grades according to selection criteria set forth in

1600the QAP. Points are assigned based on compliance with these

1610criteria. At the end of the evaluation process, each applicant

1620that met the threshold requirements will have earned a final

1630score that determines its rank in terms of relative merit, with

1641higher-scored projects being "better" than lower-scored

1647projects.

164812. Because of the set-asides, however, credits are not

1657awarded simply on the basis of comparative scores. Instead, the

1667Geographic Set-Asides require that the applicants be sorted and

1676ranked, according to their scores, within the Large County,

1685Medium County, and Small County groups to which they belong and

1696from whose credit allocations the successful applicants will be

1705funded. As a result, therefore, if the several applicants with

1715the three highest scores in the entire applicant pool were all

1726in the Large County group and the applicant with the fourth

1737highest score were in the Small County group, for example, then

1748the latter applicant would be ranked first in the Small County

1759group. This means, to continue with the example, that if the

1770first- and second-ranked projects in the Large County group were

1780to exhaust the credits allocated to that group, then the

1790applicant with the third highest score overall would not be

1800funded, while the applicant with the fourth highest score in the

1811applicant pool (but ranked first in a county group) would be

1822funded. 16/

182413. After the Corporation has sorted the applicants by

1833county group and ranked them, within their respective groups,

1842from highest to lowest based on the applicants' final scores, it

1853draws a tentative funding line within each group. Applicants

1862above these lines are within the tentative funding range and

1872thus apparently successful. Conversely, an applicant below the

1880tentative funding line in its county group will not receive tax

1891credits unless, to satisfy a set-aside or fulfill a special

1901targeting goal, it is moved into the funding range.

191014. In the 2000 application cycle, a preliminary outcome

1919which had occurred only once before, in 1997, happened again:

1929the aggregate of credits requested by the non-profit applicants

1938within the tentative funding range did not amount to the Non-

1949Profit Set-Aside percentage — 12% in 2000 — of total available

1960credits. Therefore, the Corporation needed to elevate as many

1969apparently unsuccessful non-profit applicants into the funding

1976range — and concomitantly to remove as many apparently

1985successful for-profit applicants from the funding range to make

1994room for the favored non-profit applicant(s) — as necessary to

2004fulfill the 12% quota.

2008An Aside on Categorical Ranking

201315. The separation of applicants into three groups

2021according to the Geographic Set-Asides, and the effect that has

2031on determining which applicants will receive credits, was

2039mentioned above. To better understand the parties' dispute

2047regarding the procedure for satisfying the Non-Profit Set-Aside

2055when, as in 2000, it is necessary to award credits to a

2067putatively unsuccessful non-profit applicant at the expense of a

2076putatively successful for-profit applicant, a second, more

2083detailed look at the implications of categorical ranking will be

2093helpful.

209416. Because of the Non-Profit Set-Aside, the set of all

2104qualified applicants ("Applicant Pool") is divided into two

2114classes: non-profit and for-profit corporations. As will be

2122seen, the class of non-profit corporations is further separated,

2131for purposes of the Non-Profit Set-Aside, into two subclasses:

2140domestic non-profits and out-of-state, or foreign, non-profits.

2147Finally, to repeat for emphasis, all qualified applicants,

2155regardless of class or subclass (if applicable), fall within one

2165of three groups according to the Geographic Set-Asides: Small

2174County, Medium County, and Large County.

218017. The following chart depicts the relevant

2187classification of applicants within the Applicant Pool:

2194Applicant Pool

2196Non-profits For-profits

2198Domestic Foreign

2200Small County Medium County Large County

2206Because, as the chart shows, each applicant fits into several

2216categories, applicants may be ranked in order of their

2225comparative scores in a variety of combinations, depending on

2234how they are sorted, e.g. all applicants, all Large County for-

2245profits, all foreign non-profits, etc.

225018. Once the Corporation has drawn the tentative funding

2259lines (which, recall, are county group-specific) and determined

2267preliminarily which applicants will receive funding and which

2275will not, two additional categories exist: applicants within

2283the funding range and applicants below (or outside) the funding

2293range. Owing to the nature of the instant dispute, however, the

2304only non-profits discussed below are those outside the tentative

2313funding range, unless otherwise stated, and the only for-profits

2322considered are those within the tentative funding range, unless

2331otherwise stated. 1/

233419. The above makes clear, it is hoped, that a reference

2345to the "highest scored" applicant, without more, may describe

2354many applicants, such as the highest scored domestic non-profit,

2363the highest scored non-profit in the Small County group, the

2373highest scored foreign non-profit in the Large County group, and

2383so on. More information is needed to pinpoint a particular

2393entity.

239420. For ease of reference, and to facilitate the

2403discussion and disposition of the present dispute, the following

2412abbreviations will be used in this Recommended Order as

2421shorthand descriptions of applicants’ defining characteristics:

2427Abbreviation Meaning

2429NP Non-profit applicant

2432FP For-profit applicant

2435High- highest scored

2438Low- lowest s cored

2442D domestic entity ( i.e. organized

2448under Florida law)

2451F foreign entity ( i.e. organized

2457under the law of a state other

2464than Florida)

2466S, M, and L Small, Medium and Large County,

2475respectively

2476! highest or lowest scored within

2482the indicated category; e.g. High-

2487NP(S!) means highest scored non-

2492profit within the Small County

2497group; Low-FP(S!) means lowest

2501scored for-profit in the Small

2506county group

2508x, y variables

2511Combining these abbreviations provides an increasingly precise

2518description, as more information is added. For example:

2526Combination Description

2528High-NP Highest scored non-profit in some,

2534unknown category

2536High-NP[D!] Highest scored domestic non-

2541profit, unknown group; is not

2546necessarily the highest scored

2550non-profit in the class of non-

2556profits

2557High-NP[F!] Highest scored foreign non-profit,

2562unknown group; is not necessarily

2567the highest scored non-profit in

2572the class of non-profits

2576High-NP[D!](S) Highest scored domestic non-

2581profit, located in the Small

2586County group; not the highest

2591scored non-profit within the Small

2596County group

2598High-NP[D](S!) Highest scored non-profit in the

2604Small County group; is a domestic

2610corporation but is neither the

2615highest scored non-profit nor

2619highest scored domestic non-profit

2623High-NP[D](S) Highest scored domestic n on-profit

2629in the Small County group; is

2635neither the highest scored non-

2640profit, the highest scored

2644domestic non-profit, nor the

2648highest scored non-profit in the

2653Small County group

2656Low-FP! Lowest scored for-profit in

2661the class of for-profits

2665Low-FP(M!) Lowest scored for-profit in

2670Medium County group; is not

2675necessarily the lowest scored for-

2680profit in the class of for-profits

2686The Controversy: Gored Oxen and Leapt-Over Frogs

269321. The solution to the problem that arose in the 2000

2704application cycle when an insufficient number of non-profit

2712applicants wound up initially within the tentative funding range

2721is found in two places: Rule 67-48.032, Florida Administrative

2730Code, and the 2000 QAP. Although the language of the two is not

2743identical, the parties agree that the rule and the pertinent QAP

2754provisions have the same meaning, despite their differences in

2763wording. The undersigned has concluded, however, that the

2771differences, though subtle, substantially affect the outcome of

2779this case. It is necessary, therefore, to read them carefully.

278922. Rule 67-48.032(2), Florida Administrative Code,

2795provides in pertinent part:

2799To ensure that the minimum 10% is set aside,

2808the Corporation has determined that an

2814initial allocation of 12% to qualified Non-

2821Profits will be met. In order to achieve

2829the initial 12% set aside, Applications from

2836Applicants that qualify or whose General

2842Partner qualifies as a Non-Profit entity

2848pursuant to Rule 67.48.002(71), F.A.C., HUD

2854Regulations, Section 42(h)(5)(c), subsection

2858501(c)(3) or 501(c)(4) of the Code and

2865organized under Chapter 617, Florida

2870Statutes, or organized under similar state

2876law if organized in a jurisdiction other

2883than Florida and meet scoring threshold

2889requirements shall be moved into the funding

2896range, in order of their comparative scores,

2903with Applicants whose Non-Profit entity is

2909organized under Florida law receiving

2914priority over Non-Profit entities of other

2920jurisdictions, until the set-aside is

2925achieved. The last Non-Profit Development

2930that is moved into the funding range in

2938order to achieve the 12% initial set-aside

2945shall be fully funded even though that may

2953result in a higher Non-Profit set-aside.

2959This will be accomplished by removing the

2966lowest scored Application of a for-profit

2972Applicant from the funding range and

2978replacing it with the highest scored Non-

2985Profit Application below the funding range

2991within the applicable Geographic Set-Aside

2996pursuant to the QAP. This procedure will be

3004used again on or after October 1, if

3012necessary, to ensure that the Agency

3018allocates at least 10% of its Allocation

3025Authority to qualified Non-Profit

3029Applicants. Any for-profit Applicant so

3034removed from the funding range will NOT be

3042entitled to any consideration or priority

3048for the receipt of current or future Housing

3056Credits other than placement on the current

3063ranking and scoring list in accordance with

3070its score. Binding Commitments for Housing

3076Credits from a future year will not be

3084issued for Applicants so displaced.

308923. Paragraph 2, at page 2, of the Corporation’s 2000 QAP

3100states:

3101[The Corporation] has determined that an

3107initial allocation of 12% to qualified Non-

3114Profits will ensure that the 10% requirement

3121will be met in the event that all

3129Developments included in the initial 12% do

3136not receive an allocation. In order to

3143achieve the initial 12% set-aside a

3149tentative funding line will be drawn. Then,

3156Applications from Non-Profit Applicants that

3161meet scoring threshold requirements shall be

3167moved into the tentative funding range, in

3174order of their scores with Applicants whose

3181Non-Profit entities are organized under

3186Chapter 617, Florida Statutes, having

3191priority, until the 12% set-aside is

3197achieved. This will be accomplished by

3203moving the lowest scored Application of a

3210for-profit Applicant in the funding range

3216down in ranking so it is ranked below the

3225lowest Non-Profit Applicant within the

3230funding range and moving the highest scored

3237Non-Profit Applicant organized under Chapter

3242617, Florida Statutes below the funding

3248range within the applicable Geographic Set-

3254Aside pursuant to the QAP up in ranking so

3263it is ranked one ranking space above the

3271for-profit Applicant that was moved down in

3278ranking. If no such Applicant exists, the

3285highest Non-Profit Applicant organized under

3290similar statutes from another state which is

3297below the funding range within the

3303applicable Geographic Set-Aside pursuant to

3308the QAP, will be moved into funding range in

3317the same manner as stated in the previous

3325sentence. This procedure will be used again

3332on or after October 1, 2000, if necessary,

3340to ensure that the [Corporation] allocates

3346at least 10% of its Allocation Authority for

33542000 to qualified Non-Profit Applicants.

3359Any for-profit Applicant so removed from the

3366funding range will NOT be entitled to any

3374consideration or priority for the receipt of

3381current or future housing credits other than

3388placement on the current ranking and scoring

3395list in accordance with its score. Binding

3402Commitments for housing credits from a

3408future year will not be issued for

3415Applicants so displaced. The last Non-

3421Profit Applicant moved into the funding

3427range, in order to meet the initial 12% set-

3436aside or in order to meet the minimum 10%

3445set-aside after October 1, 2000, will be

3452fully funded contingent upon successful

3457credit underwriting even though that may

3463result in a higher Non-Profit set-aside.

3469After the full Non-Profit set-aside amount

3475has been allocated, remaining Applications

3480from Non-Profit organizations shall compete

3485with all other Applications in the HC

3492Program for remaining Allocation Authority.

349724. The Corpora tion's interpretation of Rule 67-48.032,

3505Florida Administrative Code, and paragraph 2 of the 2000 QAP

3515(collectively, the "Instructions") to determine the procedure

3523for satisfying the Non-Profit Set-Aside in connection with the

35322000 application cycle has caused considerable controversy — and

3541led to this proceeding. The controversial interpretation was

3549publicly manifested on September 15, 2000, when the Corporation

3558published a preliminary ranking sheet on its web site which

3568reflected adjustments that its staff had made to fulfill the

3578Non-Profit Set-Aside. Within days, adversely affected

3584applicants were complaining that the Corporation's staff had

3592misinterpreted the Instructions.

359525. The Corporation's staff had construed the Instructions

3603to mean that when it is necessary to displace a for-profit

3614within the tentative funding range to satisfy the Non-Profit

3623Set-Aside, the following procedure must be followed:

3630Remove Low-FP!(x!) and replace it with High-

3637NP[D](x). 2/ If there is no domestic non-

3645profit in county group x, then replace Low-

3653FP!(x!) with High-NP[F](x!). 3/

3657This construction permits High-NP[D!], if there is one, High-

3666NP![F!] if not, to remain outside the funding range, because it

3677might not be in county group x.

368426. In practice, the process that the Corporation’s staff

3693had settled upon operated, in the circumstances presented, to

3702the detriment of Petitioners. Here is how it worked. After the

3713tentative funding range was established, the lowest scored for-

3722profit in the class of for-profits was in the Small County

3733group. 4/ There were no non-profits, domestic or foreign, in

3743that group to elevate, however, and so Low-FP!(S!) could not be

3754removed; the fall-back procedure was followed. See endnote 4.

376327. As it happened, RPK was Low-FP(L!) and had a lower

3774score than Low-FP(M!). Thus, under the Corporation's staff's

3782interpretation of the Instructions, as revealed by the rankings

3791posted on September 15, 2000, High-NP[D](L!) was moved into the

3801funding range in the place of RPK, even though High-NP[D](L!)'s

3811final score was lower than that of Lakesmart — which was High-

3823NP![D!](M!). (Coral Village and Meadow Glen were the second-

3832and third-ranked domestic non-profits, respectively, in the

3839Medium County Group. Sorted by class, Lakesmart, Coral Village,

3848and Meadow Glen would be ranked first, second, and sixth in the

3860class of non-profit applicants.) 5/

386528. The second lowest-scored for-profit in the class of

3874for-profits was also in the Large County group. Thus, it became

3885Low-FP!(L!) after RPK was removed. It, too, was replaced by the

3896Large County non-profits that became, in turn, High-NP[D](L!) as

3905the next highest-ranked non-profit in that group was moved up

3915into the funding range to satisfy the 12% Non-Profit Set-Aside.

3925In all, the Corporation's staff proposed to elevate — and hence

3936award tax credits to — four non-profit applicants whose final

3946scores were lower than Lakesmart's and Coral Village's. One of

3956those four putative beneficiaries had a lower final score than

3966Meadow Glen's.

396829. Lakesmart and others who disagreed with the

3976Corporation’s staff advanced an alternative interpretation of

3983the Instructions. In their view, to ensure that the Non-Profit

3993Set-Aside is met requires the following maneuver:

4000Remove Low-FP(x!) and replace it with High-

4007NP[D!](x). 6/ If there is no domestic non-

4015profit outside the funding range, then

4021replace Low-FP(x!) with High-NP![F!](x!).

40257/

4026This interpretation admits the possibility that Low-FP! might

4034remain in the funding range, because it might not be in county

4046group x.

404830. Under this interpretation, favored by all Petitioners,

4056Lakesmart and Coral Village would be elevated into the funding

4066range, rather than being "leap-frogged" by lower-scored non-

4074profits, and RPK would not be displaced. (Of course,

4083Petitioners' interpretation would require that some other for-

4091profit ox be gored — one having a higher score than RPK's.)

410331. These competing interpretations of the Instructions

4110were presented to the Corporation's board for consideration at

4119its public meeting on September 22, 2000. After a discussion of

4130the issues, in which members of the public participated, the

4140board voted unanimously to accept the interpretation that the

4149staff had acted upon in preparing the September 15, 2000,

4159rankings. Later in the same meeting the board adopted final

4169rankings, which were prepared in accordance with the approved

4178interpretation, that resulted in the denial of Petitioners'

4186applications for tax credits.

4190The 1997 Awards: Precedent or Peculiarity?

419632. Petitioners maintain that their interpretation of the

4204Instructions is supported by a supposed precedent allegedly set

4213in 1997 that, they say, was binding on the Corporation in 2000.

422533. In the 1997 cycle, it so happened that after drawing

4236the tentative funding lines, the sum total of credits sought by

4247non-profits within the preliminary funding range failed to reach

4256the then-required threshold of 10%. Thus, for the first time,

4266the Corporation faced the need to replace higher-scored for-

4275profits (that were apparently in line for funding) with lower-

4285scored non-profits that otherwise would not have received

4293credits.

429434. The QAP that governed the 1997 awards provided for the

4305Non-Profit Set-Aside but was silent on the procedure for

4314satisfying it:

4316The Agency will allocate not less than 10%

4324of the state’s allocation authority to

4330projects involving qualified, non-profit

4334Applicants, provided they are non-profits

4339organized under Chapter 617, Florida

4344Statutes, and as set forth in Section

435142(h)(5) of the Internal Revenue Code, as

4358amended, and Rule Chapter 9I-48, Florida

4364Administrative Code.

4366Respondent's Exhibit 2, page 8.

437135. Rule 9I-48.024(3), Florida Administrative Code (1997),

4378did contain directions for carrying out the required

4386substitution. It prescribed the following procedure for

4393elevating non-profits:

4395If 10% of the total Allocation Authority is

4403not utilized by Projects with Non-Profit

4409Applicants, Applications from Non-Profit

4413Applicants that meet scoring threshold

4418requirements shall be moved into the funding

4425range, in order of their comparative scores,

4432until the 10% set-aside is achieved. This

4439will be accomplished by removing the lowest

4446scored Application of a for-profit Applicant

4452from the funding range and replacing it with

4460the highest scored Non-Profit Application

4465below the funding range within the

4471applicable Geographic Set-Aside pursuant to

4476section (2) above.

4479Petitioners' Exhibit 1. These provisions will be referred to

4488hereafter as the "1997 Directions," to distinguish them from the

4498Instructions.

449936. Gwen Lightfoot was the Corporation's Deputy

4506Development Officer in 1997. In that capacity, she was directly

4516responsible for implementing the rules relating to the award of

4526low-income housing tax credits. To satisfy the Non-Profit Set-

4535Aside, Ms. Lightfoot followed the 1997 Directions as she

4544understood them. In so doing, she sorted the eligible non-

4554profits by class ( i.e. without regard to their respective county

4565groups) and ranked them in score order, from the highest scoring

4576project to the lowest scoring project. 8/ Then, Ms. Lightfoot

4586moved the highest scoring non-profit in the class of non-profits

4596to a position immediately above the for-profit with the lowest

4606score in the same geographic set-aside as the favored non-profit

4616so that the non-profit project would be fully funded. That is,

4627she replaced Low-FP(x!) with High-NP!(x!). This process was

4635repeated, moving the next highest ranked non-profit to a

4644position immediately above the lowest-ranked for-profit in the

4652same geographic set-aside as the elevated non-profit, until the

4661Non-Profit Set-Aside was met.

466537. Although the Corporation presently argues that its

4673board was not fully informed in 1997 as to the procedure that

4685Ms. Lightfoot followed in fulfilling the mandate of the Non-

4695Profit Set-Aside, a preponderance of evidence established that

4703Ms. Lightfoot's actions were within the scope of her authority

4713and taken in furtherance of her official duties; that the board

4724was aware of what she had done; and that the board took no

4737action to change the results that followed from Ms. Lig htfoot's

4748interpretation and implementation of the 1997 Directions. Ms.

4756Lightfoot's application of the 1997 Directions, in short, was

4765not the unauthorized act of a rogue employee. Rather, as a

4776matter of fact, her action was the Corporation's action,

4785irrespective of what any individual board member might

4793subjectively have understood at the time.

479938. In the years following the 1997 awards, Rule 9I-

480948.032, Florida Administrative Code, was re-numbered Rule 67-

481748.032 and amended three times, the most recent amendment

4826becoming effective on February 24, 2000. As a result, the 1997

4837Directions evolved into the language of Rule 67-48.032(2) which,

4846though not identical, retains the essential meaning of its

4855predecessor.

485639. During the same period, the QAP was also amended three

4867times, the version controlling the 2000 application cycle having

4876been approved by the governor on December 16, 1999, and adopted

4887by reference in the Florida Administrative Code on February 24,

48972000. Unlike the revisions to Rule 9I-48.032(3), however, the

4906changes in the QAP that relate to the issue at hand are

4918significant, because the 2000 QAP sets forth a procedure for

4928fulfilling the Non-Profit Set-Aside when the collective amount

4936of credits sought by non-profits in the tentative funding range

4946falls short of the mandated mark, whereas the 1997 QAP did not.

4958CONCLUSIONS OF LAW

496140. The Division of Administrative Hearings has personal

4969and subject matter jurisdiction in this proceeding pursuant to

4978Sections 120.569 and 120.57(1), Florida Statutes.

498441. The parties stipulated to the standing of Petitioners

4993(including Intervenors) to maintain this proceeding, and the

5001evidence established that the substantial interests of each of

5010them were affected by the agency action at issue.

501942. Petitioners have the burden of going forward with the

5029evidence as well as the ultimate burden of establishing the

5039basis for their claim, The Environmental Trust v. Department of

5049Environmental Protection , 714 So. 2d 493, 497 (Fla. 1st DCA

50591998), and therefore must demonstrate the impropriety of the

5068Corporation's interpretation of the Instructions.

507343. Florida courts generally defer to an agency’s

5081interpretation of its own rules and the statutes that it

5091administers. See D.A.B. Constructors, Inc. v. State of

5099Transportation , 656 So. 2d 940, 944 (Fla. 1st DCA 1995); Humana

5110Inc. v. Department of Health and Rehabilitative Services , 492

5119So. 2d 388, 392 (Fla. 4th DCA 1986)(agency’s interpretation of

5129its own rule is entitled to great weight and persuasive force).

5140This deference is given to the interpretations of, and meanings

5150assigned to, such rules and statutes by the officials charged

5160with their administration. Pan American World Airways, Inc. v.

5169Florida Public Service Commission , 427 So. 2d 716, 719 (Fla.

51791983).

518044. From the general principle of deference follows the

5189more specific rule that a n agency’s interpretation need not be

5200the sole possible interpretation or even the most desirable one;

5210it need only be within the range of permissible interpretations.

5220State Board of Optometry v. Florida Society of Ophthalmology ,

5229538 So. 2d 878, 885 (Fla. 1st DCA 1988); see also Suddath Van

5242Lines, Inc. v. Department of Environmental Protection , 668

5250So. 2d 209, 212 (Fla. 1st DCA 1996). However, "[t]he deference

5261granted an agency’s interpretation is not absolute." Department

5269of Natural Resources v. Wingfield Development Co. , 581 So. 2d

5279193, 197 (Fla. 1st DCA 1991). Obviously, an agency cannot

5289implement any conceivable construction of a statute or rule no

5299matter how strained, stilted, or fanciful it might be. Id.

5309Rather, "only a permissible construction” will be upheld by the

5319courts. Florida Society of Ophthalmology , 538 So. 2d at 885.

532945. Accordingly, “[w]hen the agency's construction clearly

5336contradicts the unambiguous language of the rule, the

5344construction is clearly erroneous and cannot stand.” Woodley v.

5353Department of Health and Rehabilitative Services , 505 So. 2d

5362676, 678 (Fla. 1st DCA 1987); see also Legal Environmental

5372Assistance Foundation v. Board of County Commissioners of

5380Brevard County , 642 So. 2d 1081, 1083-84 (Fla.

53881994)(“unreasonable interpretation” will not be sustained).

539446. In determining which side has advanced the proper

5403interpretation, it is helpful to reduce the language of the

5413rules (both Rule 9I-48.032(3), Florida Administrative Code

5420(1997), and Rule 67-48.032(2), Florida Administrative Code

5427(2000)) and the QAP to the bare essentials. By removing terms

5438that are not in dispute and abbreviating others, the structure

5448of the pertinent provisions becomes much clearer. Thus:

5456Rule 9I-48.032(3)

5458[NPs] shall be moved into the funding range,

5466in order of their comparative scores, . . .

5475by removing the [Low-FP] and replacing it

5482with the [High-NP] within the applicable

5488Geographic Set-Aside[.]

5490* * *

5493Rule 67-48.032(2)

5495[NPs] shall be moved into the funding range,

5503in order of their comparative scores, with

5510[NP[D]s] receiving priority over [NP[F]s]

5515. . . by removing the [Low-FP] and replacing

5524it with the [High-NP] within the applicable

5531Geographic Set-Aside[.]

5533The earlier rule differs from the later version in that it does

5545not require domestic non-profits to be favored over foreign non-

5555profits. The QAP in effect in 1997, however, directed that only

5566domestic non-profits would count towards the Non-Profit Set-

5574Aside, so an instruction to give Florida non-profits priority

5583would not have made sense in 1997. At bottom, as far as the

5596present dispute is concerned, these two rules are identical in

5606meaning. The following discussion examines Rule 67-48.032(2),

5613Florida Administrative Code (2000) (the “Rule”), in detail, but

5622the analysis would not be materially different if the earlier

5632rule were its subject.

563647. The QAP in 1997 did not dictate a procedure for

5647elevating non-profits when necessary. But the 2000 version

5655applicable to Petitioners' applications did. Boiled down to its

5664operative terms, the 2000 QAP provides:

5670[NPs] shall be moved into the tentative

5677funding range, in order of their scores with

5685[NP[D]s] having priority . . . by moving the

5694[Low-FP] down in ranking . . . and moving

5703the [High-NP[D]] within the applicable

5708Geographic Set-Aside . . . up in ranking[.]

5716If no such Applicant exists, the [High-

5723NP[F]] within the applicable Geographic Set-

5729Aside . . . will be moved into funding range

5739in the same manner as stated in the previous

5748sentence.

5749Interpreting the Rule

575248. Two questions naturally arise upon reading the Rule.

5761One is whether the for-profit to be removed is Low-FP! (which

5772would necessarily be the lowest scored for-profit in its county

5782group: Low-FP!(x!)) or, instead, one of the applicants fitting

5791the description Low-FP(x!) (which would not necessarily be Low-

5800FP!). The other is whether the non-profit to be moved into the

5812funding range is the sole High-NP[D!](x) or, rather, one of the

5823applicants fitting the description High-NP[D](x). The answers

5830must be found in the phrase “within the applicable Geographic

5840Set-Aside,” for that is the only language that establishes a

5851parameter. The problem is, the phrase can be understood

5860reasonably in two ways, as explained below. Consequently, the

5869Rule, standing alone, is ambiguous.

5874The "Anti-For-Profit" Construction

587749. The crucial language may fairly be read as an

5887adjective clause, further modifying High-NP. Under this

5894interpretation, which probably comes more naturally to most

5902readers (and makes the sentence more grammatical) given the

5911proximity of the clause to its apparent object, the phrase

5921“within the applicable Geographic Set-Aside” describes the

5928county group from which High-NP must be drawn; namely, the

5938“applicable” one, whose identity can be deduced as follows. 9/

594850. Observe first that the non-profit to be elevated is

5958not necessarily High-NP!, but rather High-NP(x!) — the highest

5967scored non-profit in a particular ( i.e. the applicable) county

5977group. However, because the Rule also requires that domestic

5986non-profits be given priority, and because the highest scored

5995domestic non-profit in the applicable group would not

6003necessarily be the highest scored domestic non-profit in the

6012subclass of domestic non-profits, or even the highest scored

6021non-profit in the applicable group, it next becomes clear that

6031the non-profit to be elevated must fit the description High-

6041NP[D](x). But three domestic non-profits might fit that

6049description, 10/ which means that the applicable group simply

6058cannot be ascertained with reference to the non-profits. 11/

6067Apparently, therefore, the “applicable” group is intended to

6075match the one from which the lowest scored for-profit, however

6085defined, is removed.

608851. Turning to the for-profits, we see that as many as

6099three for-profits may fall within the definition Low-FP(x!), but

6108that only one Low-FP!(x!) can exist at a time. Thus, the Rule

6120logically directs that Low-FP!(x!) be removed, or else it would

6130offer no meaningful direction regarding how to proceed. Once

6139the decision is made that the Rule requires the removal and

6150replacement of Low-FP!(x!), it becomes evident at last that the

6160applicable county group from which to select High-NP[D](x) is

6169the county group matching the one in which Low-FP!(x!) is

6179situated. In other words, if the lowest scored for-profit in

6189the class of for-profits is situated in the Medium County group,

6200then Low-FP!(M!) will be removed and replaced with High-

6209NP[D](M).

621052. Because this interpretation effectively places greater

6217emphasis on removing the for-profit with the lowest possible

6226score as opposed to elevating the non-profit with the highest

6236possible score, its approach (relatively speaking) is "anti"

6244for-profit rather than "pro" non-profit. This is the

6252Corporation’s interpretation.

6254The "Pro-Non-Profit" Construction

625753. Alternatively, the phrase “within the applicable

6264Geographic Set-Aside” may be read an as adverbial clause,

6273modifying the verb “replacing.” Assuming this were the intended

6282meaning, the Rule's drafters, to avoid confusion, might have put

6292the phrase immediately after the verb to be modified, so that

6303the sentence would have been structured like this: NPs shall be

6314moved into the funding range, in order of their comparative

6324scores, by removing the Low-FP and replacing it, within the

6334applicable Geographic Set-Aside, with the High-NP. Although the

6342actual language is perhaps a bit less grammatical, it is

6352nevertheless not unreasonable to construe the crucial phrase as

6361an instruction concerning where the replacing is to occur, i.e.

6371in the applicable group. As with the competing construction

6380discussed above, the applicable group can be deduced, as

6389follows.

639054. Initially it can be observed that because the

6399replacing occurs in the funding range and adversely selects a

6409for-profit, under this interpretation the applicable group must

6417be the one in which the for-profit to be removed resides. Thus,

6429the for-profit to be displaced must be the lowest scored for

6440profit in the applicable group, or Low-FP(x!), which would not

6450necessarily be the lowest scored for-profit in the class of for-

6461profits. Indeed, as many as three for-profits might fit the

6471description Low-FP(x!). Therefore, the applicable group cannot

6478be determined with reference to the for-profits but instead is

6488apparently intended to match the one in which the highest scored

6499non-profit to be elevated, however defined, is situated.

650755. The Rule requires that the "highest scored" non-profit

6516be elevated — a general description that without more might

6526mean, depending on the context, the highest scored non-profit in

6536a particular county group (in which case there might be three

6547non-profits fitting the description), or the single highest

6555scored non-profit in the class of non-profits, among other

6564possibilities. But the Rule also requires that domestic non-

6573profits be given priority, and it does not make the choice

6584group-specific. For those reasons, there is only one eligible

6593beneficiary at a time: the highest scored domestic non-profit,

6602or High-NP[D!](x). Therefore, the Rule logically directs that

6610High-NP[D!](x) be moved into the funding range, or else it would

6621offer no meaningful guidance. Accordingly, the applicable

6628county group in which to replace Low-FP(x!) must be the county

6639group matching the one in which High-NP[D!](x) is located. In

6649other words, if the highest scored domestic non-profit in the

6659subclass of domestic non-profits is situated in the Small County

6669group, then Low-FP(S!) will be removed and replaced with High-

6679NP[D!](S).

668056. Because this interpretation effectively places greater

6687emphasis on elevating the non-profit with the highest possible

6696score as opposed to removing the for-profit with the lowest

6706possible score, its approach (relatively speaking) is "pro" non-

6715profit rather than "anti" for-profit. This is Petitioners'

6723interpretation.

6724Interpreting the QAP

672757. The QAP is similar but not identical to the Rule. The

6739differences in terminology are subtle — but the subtle

6748differences materially affect the interpretation.

675358. The most s triking distinction between the QAP and the

6764Rule is that the QAP substitutes a "moving down — moving up"

6776formula in place of the Rule's "removing — replacing" formula.

6786The action being described is clearly the same. But the QAP's

6797terminology leads to an important difference in the sentence

6806structure. The verb ("moving") is separated from the adverbs

6817("up" and "down") by the object to be acted upon: moving-

6830object-up, moving-object-down. This creates two "sandwiches",

6836the insides of which are: (1) the Low-FP, which shall be moved

6848down; and (2) the High-NP[D] within the applicable Geographic

6857Set-Aside, which shall be moved up.

686359. As with the Rule, the parameter for determining which

6873for-profit to move down and which non-profit to move up is

6884ultimately the phrase "within the applicable Geographic Set-

6892Aside." But unlike the Rule, the crucial phrase in the QAP can

6904only be read, reasonably, as an adjective clause, further

6913modifying High-NP[D] (or the term “funding range,” see endnote

692310). The QAP rendered untenable the construction of "within the

6933applicable Geographic Set-Aside" as an adverbial clause by tying

6942the determinative phrase together with High-NP[D] in the middle

6951of the "moving-object-up" sandwich. To interpret the phrase as

6960an instruction regarding where to do the moving would be

6970contrived and unnatural, divorcing the language from its common

6979meaning; ordinary people attempting to communicate that thought

6987would not have written the sentence as it stands in the QAP.

699912/ Rather, as placed, the phrase "within the applicable

7008Geographic Set-Aside" is plainly part of the description of the

7018object to be moved; it informs the reader from which group the

7030non-profit to be elevated must be drawn. Cf. Wright & Seaton,

7041Inc. v. Prescott , 420 So. 2d 623, 629 (Fla. 4th DCA 1982)

7053("[G]rammatical construction of contracts generally requires

7060that a relative or qualifying phrase be construed as referring

7070to its nearest antecedent.").

707560. This plain-language understanding of the QAP is

7083underscored and confirmed by the next sentence, which says: "If

7093no such Applicant exists" — meaning, plainly, that if there is

7104no domestic non-profit within the applicable county group to

7113move up in ranking — then the High-NP[F] "within the applicable

7124Geographic Set-Aside . . . will be moved into the funding range

7136as stated in the previous sentence." Even if it were possible

7147(and it is not) reasonably to construe the words "such

7157applicant" to mean, simply, "domestic non-profit," rather than

7165High-NP[D](x), there is no way to read the phrase "within the

7176applicable Geographic Set-Aside," when it appears for the second

7185time in back-to-back sentences, as anything but an adjective

7194clause further modifying High-NP[F]; it is not susceptible to

7203interpretation as an adverbial clause. 13/

720961. Once accepted that the phrase "within the applicable

7218Geographic Set-Aside" is an adjective clause further describing

7226the object to be acted upon, it becomes clear that the non-

7238profit to be moved up must be the highest scored domestic non-

7250profit in the applicable group; that is, it must fit the

7261description High-NP[D](x). From that point, the analysis is

7269identical to that which informs the "anti-for-profit"

7276construction discussed above in connection with the

7283interpretation of the Rule. The end result, as we have seen

7294already, is that the applicable county group "x" from which to

7305select High-NP[D](x) is the county group matching the one in

7315which Low-FP!(x!) is situated. Under the QAP, the identity of

7325the non-profit beneficiary is determined with reference to the

7334for-profit victim, not the other way around. The mindset of the

7345QAP, in other words, is "anti" for-profit, as opposed to "pro"

7356non-profit.

7357Conflating the Rule and QAP

736262. The Rule and paragraph 2, at page 2, of the QAP, which

7375comprise the Instructions, are plainly in pari materia ; that is,

7385they pertain to the same subject and have a common goal.

7396Accordingly, to the extent reasonably possible, the Rule and the

7406QAP must be construed together as a cohesive, internally

7415consistent whole. See , e.g. , Mehl v. State , 632 So. 2d 593, 595

7427(Fla. 1993); Lincoln v. Florida Parole Commission , 643 So. 2d

7437668, 671 (Fla. 1st DCA 1994).

744363. The two components of the Instructions, as should be

7453evident, are not in conflict. Although the Rule is ambiguous,

7463in that it reasonably may be interpreted in more than one way,

7475one of the two permissible constructions thereof that the

7484parties have advanced matches precisely the unambiguous meaning

7492of the QAP. Under a unified construction, therefore, the QAP

7502resolves the Rule’s ambiguity in favor of their common ground.

7512Taken together, the Instructions plainly provide that, when

7520elevating a non-profit into the funding range to satisfy the

7530Non-Profit Set-Aside, the fortunate non-profit must be selected

7538from the county group corresponding with that of the unfortunate

7548for-profit with the lowest score in the class of for-profits,

7558which will be displaced. The Corporation correctly interpreted

7566the Instructions in the 2000 application cycle.

757364. The Corporation’s interpretation of the 1997

7580Directions, with which Petitioners’ present position is in

7588enthusiastic accord, does not demand a different resultue,

7596in satisfying the Non-Profit Set-Aside in 1997, the Corporation

7605followed a permissible interpretation of the ambiguous Rule 9I-

761448.032(3), Florida Administrative Code (1997). 14/ And from

7622that premise, a plausible argument can be made that the

7632Corporation’s interpretation and application of the 1997

7639Directions revealed the intent behind Rule 9I-48.032(3), and

7647therefore that proof of the methodology used in 1997 should be

7658received and considered as extrinsic evidence of the intended

7667meaning of Rule 67-48.032(2). Cf. Mayflower Corp. v. Davis , 655

7677So. 2d 1134, 1137 (Fla. 1st DCA 1994), rev. dismissed , 652 So.

76892d 817 (1995)(interpretation parties give to contract may be

7698best indication of their intentions); Vienneau v. Metropolitan

7706Life Ins. Co. , 548 So. 2d 856, 859 (Fla. 4th DCA 1989)(where

7718terms of contract are doubtful, court may consider

7726interpretation placed on contract by the parties, provided such

7735interpretation is not completely at variance with legal

7743principles of contract interpretation).

774765. But even if it were assumed for argument’s sake that

7758an agency’s one-time interpretation of an ambiguous rule on the

7768first occasion calling for its application establishes a meaning

7777from which the agency cannot thereafter depart except by validly

7787adopting a subsequent rule change, 15/ see Cleveland Clinic

7796Florida Hospital v. Agency for Health Care Administration , 679

7805So. 2d 1237, 1242 (Fla. 1st DCA 1996), rev. denied , 695 So. 2d

7818701 (1997), the Corporation did in fact validly adopt a

7828subsequent rule when it promulgated paragraph 2, at page 2, of

7839the QAP after the 1997 awards and before the 2000 application

7850cycle. In other words, the Corporation did that which the

7860Cleveland Clinic case instructs an agency to do when it changes

7871its mind about an earlier established policy, practice, or

7880procedure. Consequently, the Corporation’s interpretation of

7886the 1997 Directions, reasonable though it was at the time, lost

7897whatever precedential value it might have had upon the adoption

7907of the unambiguous language contained in paragraph 2 of the 2000

7918QAP.

791966. In sum, even if it were decided that the 1997 awards

7931had fixed the meaning Rule 9I-48.032(3) — and hence Rule 67-

794248.032(2), Florida Administrative Code — the more recently

7950adopted language of the QAP unambiguously expresses the

7958Corporation’s intent and thus must prevail as against a prior

7968inconsistent interpretation. See McKendry v. State , 641 So. 2d

797745, 46 (Fla. 1994)(when two statutes are in conflict, later

7987promulgated statute should prevail as last expression of

7995legislative intent).

7997Conclusion

799867. Both sides' interpretations can produce a result that

8007seems unfair, unjust, or unreasonable. But set-asides, by their

8016nature, are not fair to the applicant that is displaced in favor

8028of another which is preferred in the service of a perceived

8039greater public good. Ultimately, therefore, whether it is more

8048desirable to discriminate against the lowest scored for-profit

8056in the class of for-profits, as the Corporation has decided, or

8067to give preferential treatment to the highest scored (domestic

8076if possible, foreign if necessary) non-profit, as Petitioners

8084would have liked, is simply a policy decision. The

8093Instructions, construed together as a whole, clearly convey the

8102Corporation’s policy choice, the wisdom of which is not at issue

8113here. The Corporation properly followed its Instructions in the

81222000 Application cycle.

8125R ECOMMENDATION

8127Based on the foregoing Findings of Fact and Conclusions of

8137Law, it is RECOMMENDED that the Corporation enter a final order

8148dismissing the petitions of Petitioner Lakesmart, Petitioner

8155RPK, and Intervenors Meadow Glen and Coral Village.

8163DONE AND ENTERED this 7th day of February, 2001, in

8173Tallahassee, Leon County, Florida.

8177___________________________________

8178JOHN G. VAN LANINGHAM

8182Administrative Law Judge

8185Division of Administrative Hearings

8189The DeSoto Building

81921230 Apalachee Parkway

8195Tallahassee, Florida 32399-3060

8198(850) 488-9675 SUNCOM 278-9675

8202Fax Filing (850) 921-6847

8206www.doah.state.fl.us

8207Filed with the Clerk of the

8213Division of Administrative Hearings

8217this 7th day of February, 2001.

8223ENDNOTES

82241. To make the point without the distraction of unnecessary

8234details, the example in the text ignores the potential effects

8244of other set-asides and the special targeting goals.

82522. Ignoring non-profits within the funding range and for-

8261profits below the tentative funding lines is appropriate because

8270none of them is affected by the disputed procedure for moving

8281non-profits into the funding range to satisfy the Non-Profit

8290Set-Aside. Under both of the competing methods for doing that,

8300the former are never displaced and the latter are never

8310elevated.

83113. There is only one lowest scored for-profit in the class of

8323for-profits. In contrast, there may be as many as three

8333domestic non-profits that can be described as the highest scored

8343domestic non-profit in a particular county group, i.e. that fit

8353the description High-NP[D](x). Because High-NP[D](x) must be

8360drawn from the same county group as Low-FP!(x!) — no matter what

8372x is, x must equal x — the county group placement of Low-FP!(x!)

8385determines which High-NP will be moved into the funding range.

83954. If there were no non-profits in the county group in which

8407Low-FP! was located — i.e. a Low-FP!(y!) where there was no

8418High-NP(y!) — then the Corporation would remove the Low-FP(x!)

8427having the lowest score (there might be two from which to

8438choose). This happened in 2000, where Low-FP! was in the Small

8449County group, and there were no Small County non-profits to

8459elevate into the funding range. The Low-FP(x!) with the lowest

8469score happened to be in the Large County group.

84785. There were lower scored for-profits in the class of for-

8489profits that were below the tentative funding line, but these

8499are not being considered. See paragraph 18, supra .

85086. There was a Large County non-profit with a higher final

8519score than Lakesmart's, but it was within the tentative funding

8529range and hence has been disregarded in the discussion. See

8539paragraph 18, supra .

85437. There is only one highest scored domestic non-profit (if

8553there are any non-profits outside the funding range). In

8562contrast, there may be as many as three for-profits that can be

8574described as the lowest scored for-profit in a particular county

8584group, i.e. that fit the description Low-FP(x!). Because Low-

8593FP(x!) must be drawn from the same county group as High-

8604NP[D!](x), the county group placement of High-NP[D!](x)

8611determines which Low-FP will be taken out of the funding range.

86228. If there were no for-profits in the county group in which

8634High-NP[D!] (or, alternatively, High-NP![F!]) was located — e.g.

8642a High-NP[D!](y) where there was no Low-FP(y!) — then presumably

8652Petitioners would have the Corporation remove Low-FP(x!) and

8660replace it with either the High-NP[D](x) having the highest

8669score (there might be two from which to choose) or with the

8681High-NP[F](x!) having the highest score (again, there might be

8690two from which to choose).

86959. Under the QAP in effect at the time, only domestic non-

8707profits could be elevated into the funding range to satisfy the

8718Non-Profit Set-Aside, so presumably only applicants organized

8725under Florida law were ranked. For that reason, the discussion

8735of the 1997 process disregards the “domestic-foreign”

8742distinction.

874310. Because the discussion considers only non-profits outside

8751the funding range, see paragraph 18, supra , the words “below the

8762funding range” were omitted from the abstracts of the rules and

8773QAP that preceded this analysis. It might be noted, however,

8783that as an adjective clause the phrase “within the applicable

8793Geographic Set-Aside” could be interpreted (and perhaps makes

8801better sense) as a modifier of the term “funding range,” so that

8814in practice one would first identify the applicable funding

8823range (for example, the funding range for the Small County

8833group) and then elevate the highest scored domestic (or foreign)

8843non-profit below that funding line. But, having identified this

8852nuance, it will be recognized that whether the phrase “within

8862the applicable Geographic Set-Aside” modifies “funding range” or

8870“highest scored Non-Profit Application,” the end result is

8879exactly the same; either way, the phrase describes the county

8889group from which High-NP must be drawn. Therefore, this

8898particular technicality will not be pointed out in the text.

890811. One of these, of course, would be High-NP[D!], which might

8919also (but would not necessarily) be High-NP![D!]. If a domestic

8929non-profit were the highest scored non-profit in the class of

8939non-profits, then it would also be the highest scored non-profit

8949in its county group.

895312. It cannot be assumed that the Rule requires the elevation

8964of the highest scored domestic non-profit in the subclass of

8974non-profits, making the county set-aside in which High-NP[D!]

8982resides the applicable group from which to draw the domestic

8992non-profit to be elevated, because that would be beg the

9002question.

900313. If "moving" and "up" were not separated, i.e. if the QAP

9015instructed the reader to move up in ranking the High-NP[D]

9025within the applicable group, then the QAP might be ambiguous in

9036the way the Rule is ambiguous.

904214. To reach a contrary conclusion, the QAP would have needed

9053to say, in effect: If there is no domestic non-profit outside

9064the funding range, then the High-NP![F!] will be moved into the

9075funding range, within the applicable Geographic Set-Aside. The

9083actual language of the QAP does not express this thought.

9093COPIES FURNISHED:

9095W. Douglas Moody, Jr., Esquire

9100Graham, Moody & Sox, P.A.

9105215 South Monroe Street

9109Tallahassee, Florida 32301

9112Robert S. Cohen, Esquire

91161435 East Piedmont Drive, Suite 201-B

9122Tallahassee, Florida 32312-2938

9125Robert W. Turken, Esquire

9129Bilzin, Sumberg, Dunn, Baena,

9133Price & Axelrod, LLP

91372500 First Union Financial Center

9142200 South Biscayne Boulevard

9146Miami, Florida 33131-2336

9149David A. Barrett, Esquire

9153Barrett & Associates

9156111 South Monroe Street, Suite 3000

9162Tallahassee, Florida 32302-0930

9165Michael J. Glazer, Esquire

9169Ausley & McMullen

9172Post Office Box 391

9176Tallahassee, Florida 32302

9179Maureen McCarthy Daughton, Esquire

9183Nabors, Giblin & Nickerson, P.A.

91881500 Mahan Drive, Suite 200

9193Tallahassee, Florida 32308

9196Elizabeth G. Arthur, Esquire

9200Florida Housing Finance Corporation

9204227 North Bronough Street, Suite 5000

9210Tallahassee, Florida 32301

9213Mark Kaplan, Executive Director

9217Florida Housing Finance Corporation

9221227 North Bronough Street, Suite 5000

9227Tallahassee, Florida 32301

9230Carroll Webb

9232Executive Director and General Counsel

9237Joint Administrative Procedures Committee

9241Holland Building, Room 120

9245Tallahassee, Florida 32399-1300

9248NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

9254All parties have the right to submit written exceptions within

926415 days from the date of this R ecommended O rder. Any exceptions

9277to this R ecommended O rder should be filed with the agency that

9290will issue the F inal O rder in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/10/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 06/11/2001
Proceedings: Agency Final Order
PDF:
Date: 02/07/2001
Proceedings: Recommended Order
PDF:
Date: 02/07/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 02/07/2001
Proceedings: Recommended Order issued (hearing held December 11, 2000; case proceeded under 120.57(1)(e), F.S.; rule challenge case suffix removed) CASE CLOSED.
PDF:
Date: 01/19/2001
Proceedings: Notice of Filing Corrected Page; Corrected Page 19 filed by Respondent.
PDF:
Date: 01/16/2001
Proceedings: Lakesmart`s Notice of Adoption of Post Trial Brief of Petitioner RPK Associates, Ltd. and Proposed Recommended Order of Intervenors (filed via facsimile).
PDF:
Date: 01/16/2001
Proceedings: Proposed Recommended Order of Intervenors filed.
PDF:
Date: 01/16/2001
Proceedings: Notice of Filing Proposed Recommended Order filed by Intervenors.
PDF:
Date: 01/16/2001
Proceedings: Notice of Adoption of Post Trial Brief of Petitioner RPK Associates, Ltd. filed by Intervenors.
Date: 01/16/2001
Proceedings: Disk (Proposed Recommended Order RPK Associates, Ltd.) filed.
PDF:
Date: 01/16/2001
Proceedings: RPK Associates, Ltd`s Post Trial Brief filed.
PDF:
Date: 01/16/2001
Proceedings: Notice of Adoption (RPK Associates, Ltd.) filed.
PDF:
Date: 01/16/2001
Proceedings: Florida Housing Finance Corporation`s Proposed Recommended Order filed.
PDF:
Date: 01/16/2001
Proceedings: Florida Housing Finance Corporation Memorandum filed.
PDF:
Date: 01/04/2001
Proceedings: Notice of Change of Address (effective January 25, 2001) filed by M. Daughton.
PDF:
Date: 12/27/2000
Proceedings: Intervenor`s Objections to Respondent`s Proposed Exhibit Number 8 and Designation of Excerpted Portions of Lloyd Boggio`s Deposition of December 7, 2000 filed.
Date: 12/22/2000
Proceedings: Transcript (Volumes 1 and 2) filed.
Date: 12/22/2000
Proceedings: Notice of Filing Transcript filed.
Date: 12/19/2000
Proceedings: Stipulation filed.
Date: 12/14/2000
Proceedings: Respondent`s Exhibit Number 8 Excerpted Portions of Lloyd Boggio`s Deposition of December 7, 2000 filed.
PDF:
Date: 12/11/2000
Proceedings: Stipulation filed. (parties agree that case should go forward as a proceeding under Section 120.57(1)(e), Florida Statutes)
PDF:
Date: 12/08/2000
Proceedings: Petitioner Lakesmart Associates Prehearing Stipulation (filed via facsimile).
PDF:
Date: 12/08/2000
Proceedings: Joint Prehearing Stipulation filed.
Date: 12/06/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Cancellation of Deposition of Priscilla Howard filed.
Date: 12/06/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Cancellation of the Deposition of Charlie Lydecker filed.
Date: 12/05/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Taking Deposition filed.
Date: 12/05/2000
Proceedings: Florida Housing Finance Corporation`s Amended Notice of Taking Deposition Duces Tecum filed.
Date: 11/29/2000
Proceedings: Notice of Filing - Responses from Florida Housing Finance Corporation to Meadow Glen, LTD.`s and Coral Village II, LTD.`s First Interrogatories; Responses from Florida Housing Finance Corporation to Meadow Glen, LTD.`s and Coral Village II, LTD.`s First Interrogatories filed.
Date: 11/28/2000
Proceedings: Subpoena Duces Tecum; Notice of Taking Deposition Duces Tecum (2); Notice of Taking Deposition (filed via facsimile).
Date: 11/28/2000
Proceedings: RPK Associates, LTD.`s Notice of Taking Deposition Duces Tecum filed.
Date: 11/27/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Taking Deposition Duces Teucm filed.
Date: 11/22/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Filing Answers to Meadow Glen, LTD. and Coral Village, II, LTD.`s First Interrogatories filed.
Date: 11/22/2000
Proceedings: Notice of Service of Intervenor`s Response to Respondent`s First Interrogatories filed.
Date: 11/22/2000
Proceedings: Intervenor`s Response to Respondent`s Request to Produce filed.
Date: 11/20/2000
Proceedings: Florida Housing Finance Corporation`s Response to Meadow Glen, LTD. and Coral Village II, LTD.`s First Request for Production of Documents filed.
Date: 11/16/2000
Proceedings: Meadow Glen, LTD.`s and Coral Village II, LTD.`s First Interrogatories to Florida Housing Finance Corporation filed.
Date: 11/16/2000
Proceedings: Meadow Glen, LTD. and Coral Village II, LTD.`s First Request for Production of Documents to Florida Housing Finance Corporation filed.
Date: 11/16/2000
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 11/16/2000
Proceedings: Notice of Clarification (filed by Petitioner via facsimile).
Date: 11/16/2000
Proceedings: Petitioner`s Response to First Request to Produce filed.
Date: 11/16/2000
Proceedings: Lakesmart Associates, LTD., Answers to First Interrogatories filed.
Date: 11/16/2000
Proceedings: Lakesmart Asociates, LTD., Notice of Filing Answers to Florida Housing Finance Corporation First Interrogatories filed.
Date: 11/16/2000
Proceedings: RPK Associates, LTD Response to Respondent`s First Request for Production filed.
Date: 11/16/2000
Proceedings: Petitioner`s Notice of Service of Responses to Respondent`s Interrogatories filed.
PDF:
Date: 11/15/2000
Proceedings: Meadow Glen, LTD`s and Coral Village II, LTD`s Petition to Intervene and Joinder in Lakesmart`s Petition to Challenge Agency Statements as Defined as Ruled filed in DOAH 00-4408RU.
Date: 11/13/2000
Proceedings: Response to Motion to Dismiss or Alternatively, to Strike (filed by Petitioner via facsimile).
Date: 11/13/2000
Proceedings: Florida Housing Finance Corporation`s First Request for Production of Documents to Meadow Glen, LTD. and Coral Village II, LTD. filed.
Date: 11/13/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Service of it`s First Interrogatories to Meadow Glen, LTD. and Coral Village II, LTD. filed.
PDF:
Date: 11/13/2000
Proceedings: RPK Associates, LTD.`s Response to Motion to Dismiss or, Alternatively, to Strike filed.
PDF:
Date: 11/09/2000
Proceedings: Order Allowing Intervention issued. (Meadow Glen, Ltd. and Coral Village II, Ltd.)
PDF:
Date: 11/09/2000
Proceedings: Motion to Dismiss or Alternatively to Strike Meadow Glen, LTD.`s and Coral Village II, LTD.`s "Joinder" filed.
PDF:
Date: 11/08/2000
Proceedings: Notice of Hearing issued (hearing set for December 11 and 12, 2000; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 11/08/2000
Proceedings: Meadow Glen, LTD`s and Coral Village II, LTD`s Joinder in Petition to Challenge Agency Statements Defined as Rules filed.
PDF:
Date: 11/08/2000
Proceedings: Order Granting Consolidation issued. (consolidated cases are: 00-004287RU 00-004408RU)
PDF:
Date: 11/07/2000
Proceedings: Notice of Hearing - on Motion to Dismiss or Alternatively, to Strike (filed by M. Glazer via facsimile).
PDF:
Date: 11/06/2000
Proceedings: Motion to Dismiss or, Alternatively, to Strike filed.
PDF:
Date: 11/06/2000
Proceedings: Memorandum to Judge J. Van Laningham from M. Glazer In re: call in number for conference call hearing (filed via facsimile).
PDF:
Date: 11/03/2000
Proceedings: Notice of Hearing filed by M. Glazer.
PDF:
Date: 11/02/2000
Proceedings: Motion to Consolidate 00-4287 and 00-4408 filed by Respondent.
Date: 11/01/2000
Proceedings: Florida Housing Finance Corporation`s First Request for Production of Documents to Lakesmart Association, Inc. filed.
Date: 11/01/2000
Proceedings: Florida Housing Finance Corporation`s Notice of Service of it`s First Set of Interrogatories to Lakesmart Association, LTD. filed.
PDF:
Date: 11/01/2000
Proceedings: Notice of Appearance (filed by M. Glazer).
PDF:
Date: 10/24/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 10/24/2000
Proceedings: Notice of Hearing issued (hearing set for November 21 and 22, 2000; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 10/24/2000
Proceedings: Order of Assignment issued.
PDF:
Date: 10/19/2000
Proceedings: Letter to Liz Cloud from A. Cole w/cc: Carroll Webb and Agency General Counsel sent out.
Date: 10/18/2000
Proceedings: Notice of Appearance (G. Rutberg) filed.
PDF:
Date: 10/17/2000
Proceedings: Letter from Hallie I. Suber referring Petition to DOAH filed.
PDF:
Date: 10/17/2000
Proceedings: Petition Challenging Agency Statements Defined as Rules filed.

Case Information

Judge:
JOHN G. VAN LANINGHAM
Date Filed:
10/17/2000
Date Assignment:
10/20/2000
Last Docket Entry:
10/10/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):

  • 67-48.025