11-003971RP Allapattah Housing Partners, Llc, Tower Road Gardens, Ltd, And City River Apartments vs. Florida Housing Finance Corporation Status: Closed DOAH Final Order on Monday, October 10, 2011.

Summary: The proposed rules are an invalid exercise of delegated legislative authority because Respondent exceeded its grant of rulemaking authority and because the proposed rules enlarge, modify, and contravene the law implemented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLAPATTAH HOUSING PARTNERS, )

LLC; TOWER ROAD GARDENS LTD.; )

AND CITY RIVER APARTMENTS, )

)

Petitioners, )

)

vs. ) Case No. 11 - 3971RP

)

FLORIDA HOUSING FINANCE )

CORPORATION , )

)

Respondent. )

___________________________ _____)

FINAL ORDER

Pursuant to notice, a final hearing was scheduled in this

case on September 8, 2011, in Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings. Subsequent to the scheduli ng of the

hearing, t he parties indicated that no final hearing was

necessary in that no genuine issue of material fact existed , and

the hearing was canceled.

APPEARANCES

For Petitioner: Douglas Paul Manson, Esquire

Manson Law Group, P.A.

1101 West Swann Avenue

Tampa, Florida 33606 - 2637

For Respondent: Wellington H. Meffert, II, Esquire

Matthew M. Sirmans, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301 - 1329

STATEMENT OF THE ISSUE

The issue for determi nation is whether Respondent's

proposed amendment to the Qualified Allocation Plan (QAP),

specifically p aragraph 16 of the propo sed 2012 QAP allowing

Respondent to allocate ce rtain tax credits by means of Request

for Proposal s (RFP s ), adopted by and incorporated by reference

into Florida Administrative Code Rule 67 - 48.002(94), constitutes

an invalid exercise of delegated legislativ e authority pursuant

to section 120.52(8), Florida Statutes .

PRELIMINARY STATEMENT

By Amended Petition for Administrative Determination of

Invalidity of Proposed Rule , Petitioners challenged the proposed

amendment to the QAP , i.e., the proposed 2012 QAP , a nd Florida

Administrative Code Rule 67 - 48.002(94), which adopts and

incorporates by reference the 2012 QAP. Petitioners focus

specifically on p aragraph 16 of the proposed 2012 QAP , which

allows for the allocation of certain tax credits by means of

RFPs, a dopted by and incorporated by reference into Florida

Administrative Code Rule 67 - 48.002(94). The Amended Petition

alleges that Respondent failed to follow the applicable

rulemaking procedures or requirements, under section

120.52(8)(a); that Respondent ex ceeded its grant of rulemaking

authority, under section 120.52(8)(b); that the proposed rules

enlarge, modify, or contravene the specific law implemented,

under section 120.52(8)(c); that the proposed rules are vague,

fail to establish adequate standards f or Respondent's decisions,

or vest unbridled discretion in Respondent, under section

120.52(8)(d); and that the proposed rules are arbitrary or

capricious, under section 120.52(8)(e).

Respondent filed an Amended Motion to Dismiss based on

Petitioners' lack of standing, to which Petitioners filed a

Memorandum in Opposition. A telephone hearing was held on the

motion. The Amended Motion to Dismiss was denied.

Respondent filed a Motion for Summary Final Order asserting

that no genuine issue of material fact existed. Subsequently, a

pre - hearing conference was held during which, among other

things, Petitioners indica ted that they too would be filing a

motion for summary final order and that no genuine issue of

material fact existed. Among other things, the un dersigned

requested , during the pre - hearing conference, that the part ies

file agreed upon facts since no genuine is sue of material fact

existed. T he parties indicated that a joint pre - hearing

stip ulation would be filed which would contain, among other

thi ngs, agreed upon facts.

The parties filed a Joint Prehearing Stipulation. Among

other things, the Joint Prehearing Stipulation stated that no

genuine issue of material fact existed; that no final hearing

was necessary; that Petitioners would file their mo tion for

summary final order no later than September 8, 2011; that the

parties' respective proposed final order would be filed no later

than September 19, 2011; and that each parties' proposed final

order would be the response to each party's motion for su mmary

final order. Additionally, the Joint Prehearing Stipulation

included agreed upon facts.

On September 8, 2011, Petitioners filed their Motion for

Summary Final Order. The final hearing was canceled.

On September 19, 2011, Respondent's Proposed Final Order

was filed. Petitioners' Proposed Final Order was received

electronically at approximately 5:04 p.m., after the close of

business, on September 19, 2011. As a result, Petitioners'

Proposed Final Order was filed on September 20, 2011.

Respondent di d not object to Petitioners' Proposed Final Order;

consequently, Petitioners' Proposed Final Order is accepted as

filed.

FINDINGS OF FACT

1. Petitioner Allapattah Housing Partners , LLC , is a

Florida limited liability company whose address is 1172 South

Di xie Highway, Suite 500 Coral Gables, Florida 33146.

Petitioner Tower Road Gardens, Ltd. , is a limited partnership

whose address is 5709 NW 158 Street, Miami Lakes, Florida 33014.

Petitioner City River Apartments, Ltd. , is a limited partnership

whose ad dress is 1666 Kennedy Causeway, Ste. 505, No rth Bay

Village, Florida 33141.

2. Respondent is a public corporation created by s ection

420.504, Florida Statutes, to administer the governmental

function of financing or refinancing affordable housing and

rela ted facilities in Florida. Respondent's statutor y authority

and mandates appear in Part V of c hapter 420, Florida Statutes.

See §§ 420.5 01 through 42 0.55, Fla. Stat. Respondent is

governed by a Board of Directors consisting of nine individuals

appointed by the Governor and confirmed by the Senate.

Respondent's address is 227 North Bronough Street, Suite 5000,

Tallahassee, Florida 32301.

3. In the July 1, 2011, Florida Administrative Weekly

(FAW ), Volume 37, No. 26, pages 18 31 through 1872, Respondent

g ave notice of t he proposed amendments to F lorida Administrative

Code C hapter 67 - 48 and to forms and instructions that make up

the Universal Cycle Application Package, incorporated by

reference into Florida Administrative Code Rule 67 - 48.004(1)(a).

4. The July 1, 2011, Notice of Proposed Rule indicated

that a public hearing would be held at Respondent 's office in

Tallahassee, Florida , on Tues day, July 26, 2011 , at 10:00 a.m.

The Amen ded Petition was filed within ten d ays of the final

public hearing and , thu s , is timely pursuant to section

120.56(2), Florida Statutes.

5. Under f ederal law memorialized in Section 42 of the

Internal Revenue Code ( I RC or the Code ), each state is given an

amount of federal Low - Inco me Rental Housing Tax Credits (Housing

Credits ) based upon its population. In 2011, each state is

entitled to $2.15 per capita of Housing Credits. Florida is

entitled to receive approximately $40,422,817 .00 in 2011 Housing

Credits. These Housing Credits are then allocated to speci fic

qualifying housi ng projects and can be utilized by proje ct

investors each year for a ten - year period. Accordingly, the

2011 Florida H ousing C redits entitlement will represent a total

value of $404,228,170 .00 ($40,422,817 .00 each year for ten

years) in Housing Credits. D evelopers typically sell the tax

credits to investors to generate equity investments in such

projects. For example, an equity "price" of 90 cents for each

dollar of the 2011 allocation of Housing Credits would generate

approximately $360 million in invest or equit y for the statewide

allocation.

6. More than seven million seven hundred thousand dollars

($7,700,000 .00 ) of 2011 Housing Credits remai n unallocated by

Respondent.

7. The amount of Housing Credits available for 2012 will

not be known until the In ternal Revenue Service publishes its

state population estimates in early 2012. As in 2011, the

amoun t will be the product of Florida's population multipli ed by

$2.15.

8. Section 42 of the Code requires that each state

designate a "housing credit agency " which is responsible for the

proper allocation and distribution of Hous ing Credits in

compliance with the criteria and guidelines of section 42.

Respondent's rules incorporate s ection 42 of the Code at Florida

Administrative Code Rule 6 7 - 48.002 (71). Re spondent is

designated as Florida's housing credit agency by section

420.5099, Florida Statutes , and , as such , is responsible for the

allocation and distribution of Housing Credits.

9. Respondent administers various federal and state

affordab le housing pr ograms, including the Housing Credit

Program, pursuant to s ection 420.5099 and chapter 67 - 48.

Respondent's rulemaking authority to implemen t this process is

set forth in section 420.507(12), Florida Statutes.

10. Under federal law, Respondent must distri bute Low -

Income Rental Housing Tax Credits to applicants pursuant to a

speci fic QAP . IRC § 42(m)(l)(A)v. The QAP must contain certain

criteria mandated by f ederal law, ref erred to as "Selection

Criteria . " IRC § 42(m)(l)(B). The Code further provides th at a

state's federal Housing Credit award will be deemed to be zero

if its QAP fails to include a complete plan setting forth (a)

selection criteria, (b) preferences for lowest income, longest

terms and development in qualified census tracts, and (c)

proce dures for monitoring and reporting a project's non -

compliance. IRC § 42(m)(l)(A).

11. Respondent's QAP must be approved by its Board o f

Directors and by the Governor and must be adopted as a rule.

IRC § 42(m)(A)(i); § 120.56 . Typi cally, each year , Resp ondent

embarks on a public rule - making process to adopt t he applicable

r ule and QAP which control the complex and critical processes

for evaluation, review, notice, opportunity to be heard , and,

ultimately, ranking and approval of developments to receive

a llocations of Housing Credits for that year.

12. Because the demand for allocation of Housing Credits

exceeds that which is available under the Housing Credit

Program, applicants of qualified affordable housing developments

must compete for this funding. Applicants apply for funding ,

under various affordable housing programs , through Respondent's

Universal Cycle application process, which is set forth in

Florida Administrativ e Code Rules 67 - 21.002 through - 21 .0035 1 and

67 - 48.001 through - 48 .005 . Applican ts for tax credits provide

information as required by the forms and instructions of the

Universal Cycle Application Package, which is ado pted by and

incorporated into rule 6 7 - 48.004(1)(a) . To assess the relative

merits of propos ed developments, Respondent has established a

competitive application process known as the Universal Cycle.

Fla. Admin. Code C hapter 67 - 48.

13. Respondent scores and competitively ranks the

applications to determine which applications will be allocated

Housing Credits. Responde nt's scoring and evaluation process

for Housing Credit applications is set forth in rule 67 - 48.004.

Under these r ules, the applications are evaluated and scored

based upon factors contained in the Universal Cycle Applicati on

Package and Respondent's adopt ed rules. Respondent then issues

preliminary scores to all applicants. Fla. Admin. Code R . 67 -

48.004(3).

14. Following release of the preliminary scores,

compe titors can alert Respondent of alleged scoring errors in

other applications by filing a writte n Not ice of Possible

Scoring Error (NOPSE ) within a specified time frame. Respondent

reviews the NOPSE and notifies the affected applicant of its

decision by issuing a NOPSE scoring summary. Fla. Admin. Code

R . 6 7 - 48.004(4).

15. Applicants then have an opportunity to submit

"additional documentation, revised pages and such other

information as the Applicant deems appropriate ('cures') to

address the issues" raised by preliminary or NOPSE scoring. See

Fla. Admin. Code R . 67 - 21 .003 and 67 - 48.004(6) . In o ther words,

within parameters established by the r ules, applicants may cure

certain errors and omissions in their applications pointed out

during preliminary scoring or raised by a competitor during the

NOPSE process.

16. After affected applicants submit their "cure"

documentation, competitors can file a Notice of Alleged

Deficiency (NOAD ) challenging the sufficiency of an applicant's

cure. Respondent considers the challenged cure materials and

reviews the NOAD s , then issues final scores for all the

appli cations. Fla. Admin. Code R . 67 - 48.004(9).

17. Florida Administrative Code R ule 67 - 48.005 establishes

a procedure through which an applicant can challenge the final

scoring of its application. The Notice of Rights that

accompanies an applicant's final sc ore advises an adversely

affected applicant of its r ight to appeal Respondent's scoring

decision in a proceeding conduc ted under chapter 120 .

Ultimately , Respondent ranks each application and allocates

available Housing Credits based on such rankings.

18. The last time the QAP in the State of Florida was

promulgated and adopted as a rule was in 2009, which allocated

2009 Housing Credits.

19. During 2010 , there were no new amendments to

Respondent's rules or the QAP. At the end of 2010, Respondent

drafte d a 2011 QAP, which was signed by the Governor , but never

adopted as a rule. The draft 2011 QAP allocated Housing Credits

in accordance with a Universal Application Cycle, but Respondent

did not adopt the QAP as a rule pursuant to c hapter 120.56. The

201 1 Cycle did not take place.

20. On June 26, 2011, Respondent's Board authorized

publication of pr oposed rule amendments to c hapter 67 - 48. The

proposed rule amendments adopt and incorporate the 2012 QAP by

reference at proposed rule 67 - 48.002(94).

21. Pr oposed rule 67 - 48.002(94) provides:

"QAP " or "Qualified Allocation Plan" means,

with respect to the HC Program, the 2012

Qualified Allocation Plan which is adopted

and incorporated herein by reference,

effective upon approval by the Governor of

the state o f Florida, pursuant to Section

42(m)(1)(B) of the IRC and sets forth the

selection criteria and the preferences of

the Corporation for Developments which will

receive Housing Credits. The QAP is

available on the Corporation's Website under

the 2011 Univer sal Application link labeled

Related References and Links or by

contacting the Housing Credit Program at 227

North Bronough Street, Suite 5000,

Tallahassee, Florida 32301 - 1329.

22 . The 2012 QAP proposed rule purports to govern the

process and allocation for both 2011 and 2012 Housing Credits.

23 . The only mention in the 2012 QAP proposed rule of the

allocation of 2011 Housing Credits is contained in Paragraph 16

of the 2012 QAP proposed rule, which states in its entirety:

" Any available 2011 Housing Cre dit Allocation Authority may be

awarded by the FHFC [Respondent's] Board by means of Request for

Proposals based on criteria approved by the FHFC [Respondent's]

Board."

24 . Petitioners challenge proposed rule 67 - 48.002(94)

(which incorporates by reference the 2012 QAP proposed rule) and

those portions of the 2012 QAP proposed rule which purport to

govern the allo cation of 2011 Housing Credits.

25 . It is undisputed that Petitioners have standing to

initiate and participate in this rule challenge proceeding .

§ 120.56(1)(a).

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction of these proceedings and the parties thereto

pursuant to section s 120.56(l) and ( 2 ), 120.569, and 120.57(1),

Florida Statutes.

27 . Section 120.56 provides in pertinent part:

(1) General procedures for challenging the

validity of a rule or a proposed rule.

(a) Any person substantially affected by a

. . . proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground th at

the rule is an invalid exercise of deleg ated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show . . . that the person

1 2

challenging a proposed rule would be

su bstantially affected by it.

(c) . . . T he failure of an agency to

follow the applicable rulemaking procedures

or requirements set forth in thi s chapter

shall be presumed to be material; however,

the agency may rebut this presumption by

showing that the substantial interests of

the petitioner and the fairness of the

proceedi ngs have not been impaired.

* * *

(e) Hearings held under this sec tion shall

be de novo in nature. The standard of proof

shall be the preponderance of the evidence.

Hearings shall be conducted in the same

manner as provided by ss. 120.569 and

120.57 , except that the administrative law

judge' s order shall be final agenc y

action. . . .

(2) Challenging prop osed rules; special

provisions.

(a) A substantially affected person may

seek an administrative determination of the

invalidity of a proposed rule by filing a

petition seeking such a determination with

the division . . . The petition must state

with particularity the objections to the

proposed rule and the reasons that the

proposed rule is an invalid exercise of

delegated legislative authority. The

petitioner has the burden of going forward.

The agency then has the burden to prove by a

preponderance of the evidence that the

proposed rule is not an invalid exercise of

delegated legislative authority as to the

objections raised. . . .

(b) The administrative law judge may

declare the proposed rule wholly or partly

in valid. . . In the event part of a proposed

rule is declared invalid, the adopting

agency may, in its sole discretion, withdraw

the proposed rule in its entirety. . . .

(c) When any substantially affected person

seeks determination of the invalidity of a

proposed rule pursuant to this section, the

proposed rule is not presumed to be valid or

invalid.

28. The standard of proof is a preponderance of the

evidence. § 120.56(1)(e) and (2)(a).

29 . Section 120.52 provides in pertinent part:

(8) "Invalid ex ercise of delegated

legislative authority" means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed . . . rule is an invalid exercise

of delegated legislative authority if any

one o f the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements se t forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The r ule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled d iscretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or rea son or is irrational; or

(f) The rule imposes regulatory costs o n

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomp lish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reason ably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative int ent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enablin g statute.

(emphasis added)

30 . Section 420.507 , titled "Powers of the corporation",

provides in pertinent part:

The corporation [Respondent] shall have all

the powers necessary or convenient to carry

out and effectuate the purposes and

provisions of thi s part, including the

following powers which are in addition to

all other powers granted by other provisions

of this part:

* * *

(12) To make rules necessary to carry out

the purposes of this part and to exercise

any power granted in this part pursu ant to

the provisions of chapter 120.

* * *

(24) To do any and all things necessary or

convenient to carry out the purposes of, and

exercise the powers given and granted in,

this part.

* * *

(33) To receive federal funding in

connection with the corporation's programs

directly from the Federal Government and to

receive federal funds for which no

corresponding program has been created in

statute and establish selection criteria for

such funds by request for proposals or other

competitive solici tation.

31. Respondent does not assert that it is exempt from the

rulemaking requirements of chapter 120; but, agrees that it is

subject to the rulemaking requirements.

32 . Proposed chapter 67 - 48 cites section 420.507 as

Respondent's rulemaking authorit y , which conveys upon Respondent

"all the powers necessary or convenient to carry out and

effectuate the purposes and provisions" of chapter 420 . No

dispute exists that Respondent derives its rulemaking authority

from section 420.507(12) , which grants Res pondent the power to

"make rules necessary to carry out the purposes" of chapter 420

and to "exercise any power granted" in chapter 420 "pursuant to

the provisions of chapter 120 .

33 . P roposed chapter 67 - 48 cites three statutory

provisions as the law bein g implemented: sections 420.5087,

420.5089, and 420.5099. Proposed rule 67 - 48.002 cites two

statutory provisions as the law being implemented: sections

420.5087 and 420.5089(2). Material hereto is section 420.5099,

which provides in pertinent part:

(1) The Florida Housing Finance Corporation

[Respondent] is designated the housing

credit agency for the state within the

meaning of s. 42(h)(7)(A) of the Internal

Revenue Code of 1986 and shall have the

responsibility and authority to establish

procedures n ecessary for proper allocation

and distribution of low - income housing tax

credits and shall exercise all powers

necessary to administer t he allocation of

such credits.

(2) The corporation [Respondent] shall

adopt allocation procedures that will ensure

th e maximum use of available tax credits in

order to encourage development of low - income

housing in the state, taking into

consideration the timeliness of the

application, the location of the proposed

housing project, the relative need in the

area for low - in come housing and the

availability of such housing, the economic

feasibility of the project, and the ability

of the applicant to proceed to completion of

the project in the calendar year f or which

the credit is sought.

(3) The corporation [Respondent] may

request such information from applicants as

will enable it to make the allocations

according to the guidelines set forth in

subsection (2), including, but not limited

to, the information required to be provided

the corporation [Respondent] by chapter 67,

Florida Administrative Code.

34. No dispute exists that a specific QAP is required to

govern the process and allocation of Housing Credits and that

the QAP is required to contain the select ion criteria mandated

by federal law. IRC § 42(m)(1).

35 . No 20 11 QAP was adopted as a rule even though a 2011

QAP was drafted and signed by the Governor of Florida.

36 . The 2012 QAP proposed rule sets forth the specific

criteria of the QAP "as mandated by Congress and addressed at

Section 42(m)(1)(B) of the Internal Revenue Code (IRC), as

amended , " to be applied for the allocation of 2012 Housing

Credits. Further, the 2012 QAP proposed rule , in p aragraph 16,

purports to govern the allocation of any available 2011 Housing

Credits by permitting Respondent to allocate 2011 Housing

Credits by RFPs based on criteria approved by the Respondent ,

without specifying the criteria .

37 . Petitioners contend that, for the allocation of any

remaining 2011 Housing Credits, Respondent must, in the 2012 QAP

proposed rule, set forth t he specific criteria of the QAP as

mandated by Congress and addressed at section 42(m)(1)(B) of the

IRC, as amended. Respondent contends that it is not ne cessary

to, again, set forth such specific criteria. In essence,

Respondent contends that it is unde rstood that such specific

criteria are required to be met and it is, therefore,

unnecessary to outline the specific terms .

38 . However, without setting forth such specific criteria

required by IRC section 42(m)(1), as amended , it is not clear

that the spe cific criteria are required to be adhered to in

Respondent's allocation of any availabl e 2011 Housing Credits.

As worded, the 2012 QAP proposed rule leaves the criteria for

the allocation of any available 2011 Housing Credits to the

discretion of Responde nt, which may or may not include the

federally mandated specific criteri a.

39 . Proposed rule 2012 QAP in p aragraph 16 fails to

indentify and include the selection criteria required in IRC

section 42(m)(1) for the allocation of the remaining 2011

Housing C redits. See IRC § 42(m)(1)(B) and (C).

40 . Furthermore, p roposed rule 67 - 48.002(94) fails to

include the selection criteria required in IRC section 42 (m)(1)

for the allocation of any remaining 2011 Housing Credits. Id.

41 . A n in consistency exists betwe en the language in

section 420.5099 and proposed rule 2012 QAP, Paragraph 16, and

proposed rule 67 - 48.002(94). Consequently, proposed rule 2012

QAP, p aragraph 16, and proposed rule 67 - 48.002(94), adopting and

incorporating by reference proposed rule 2012 QAP, enlarge,

mod if y , and contravene section 420.5099. See Fla . Elec . Comm ' s

v. Blair , 52 So. 3d 9, 14, 15 (Fla. 1st DCA 2010).

42 . Furthermore, proposed rule 2012 QAP, p aragraph 16, and

proposed rule 67 - 48.002(94), adopting and incorporating by

referenc e proposed rule 2012 QAP, exceed Respondent's rulemaking

authority regarding the allocation of any remaining 2011 Housing

Credits. See id. at 11 - 14.

43 . Noteworthy is that the value of Housing Credits will

be deemed zero unless they are allocated in ac cordance with a

valid QAP which sets forth selection criteria to be used to

determine housing priorities. IRC § 42(m)(1)(A).

44 . Additionally, Petitioners contend that section

420.5099 does not authorize the allocation of Housing Credits

through a RFP pr ocess. Respondent contends that a RFP process

is an allocation procedure and is, therefore, authorized by

section 420.5099.

45 . Respondent's position might be persuasive as an

additional allocation procedure but for two factors. One, the

abse nce of the required specific criteria by IRC section

42(m)(1) discussed above. And, two, section 420.507(33)

specifically provides for Respondent's establishment of

selection criteria by RFPs or other competitive solicitation for

specific federal funding, which does not include Housing

Credits.

46 . Consequently, proposed rule 2012 QAP, p aragraph 16,

and proposed rule 67 - 48.002(94), adopting and incorporating by

reference proposed rule 2012 QAP, enlarge, modif y , and

contravene section 420.5099. See id. at 9, 14, 15.

47 . And, further, proposed rule 2012 QAP, p aragraph 16,

and proposed rule 67 - 48.002(94), adopting and incorporating by

reference proposed rule 2012 QAP, exceed Respondent's rulemaking

authority regarding the allocation of any remaining 2011 Housing

Cred its. See id. at 11 - 14.

ORDER

Based on the foregoing, it is

ORDERED that proposed rule 2012 QAP, p aragraph 16, and

proposed rule 67 - 48.002(94), adopting and incorporating by

reference proposed rule 2012 QAP, constitute an invalid exercise

o f de legated legi slative authority because the Florida Housing

Finance Corporation has exceeded its grant of rulemaking

authority and because the proposed rules enlarge, modify, and

contravene the law implemented.

DONE AND ORDERED this 10th day of October, 2011 , in

Tallaha ssee, Leon County, Florida.

S

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Ad ministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 1 0th day of October, 2011 .

ENDNOTE

1/ Florida Administrative Code Chapter 67 - 21 governs the

Mult ifamily Mortgage Revenue Bond (MMRB ) program, which is not

at issue in this proceeding.

COPIES FURNISHED :

Wellington Meffort, II, General Counsel

Florida H ousing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301 - 1329

Matthew M. Sirmans, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301 - 1329

Della Harrell, Corpor ation Clerk

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

Douglas Paul Manson, Esquire

Manson Law Group, P.A.

1101 West Swann Avenue

Tampa, Florida 33606 - 2637

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Jesslyn Krouskroup, Acting Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 323 99 - 1400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, Fir st District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

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