12-001613 Janie Poe Associates 3, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, July 6, 2012.

Summary: Petitioner failed to meet its burden of proving entitlement to Proximity Tie-Breaker points for its designated public transfer bus stop and library.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANIE POE ASSOCIATES 3, LLC , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1613

)

FLORIDA HOUSING FINANCE )

CORPORATION , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on June 14, 2012, in Tallahassee, Florida, before Administrative

Law Judge Linzie F. Bogan, a designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petiti oner: Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

For Respondent: Matthew A. Sirmans, Esquire

Florida Housing Finance Corporat ion

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to Proximity Tie - Breaker

points for its designated public bus transfer stop and library.

PRELIMINARY STATEMEN T

On March 27, 2012, Florida Housing Finance Corporation

(Respondent/Florida Housing) issued its final scoring summary

which awarded Janie Poe Associates 3 LLC (Petitioner) , 79 out of

a possible 79 Application points, plus six out of a possible six

Abilit y to Proceed points, and 27 out of a possible 37 Proximity

Tie - Breaker points. Florida Housing did not award Petitioner any

Proximity Tie - Breaker points for either the public bus transfer

stop or library designated by Petitioner in its 2011 Universal

Appl ication. Petitioner contends that Florida Housing should

have awarded it six Proximity Tie - Breaker points for its

designated public bus transfer stop and 1.75 points for its

designated library.

Florida Housing transmitted the instant case to the Division

of Administrative Hearings on May 5, 2012, for a disputed fact

hearing. The case was scheduled for final hearing on June 14,

2012.

During the final hearing on June 14, 2012, Petitioner

offered the testimony of Joseph Chambers (accepted as an expert

in a ffordable housing development), Sarah Blanchard (accepted as

an expert in transportation planning), and William Russell.

Respondent offered the testimony of one witness, Steve Auger.

Mr. Auger currently serves as e xecutive d irector of Florida

Housing and was accepted as an expert in affordable housing

development. The deposition testimony of Tracy Wagner was

offered by the parties as Joint Exhibit 10. The parties

stipulated to the authenticity and admissibility of Joint

Exhibits 1 through 11 , and offici al recognition was taken of

Respondent's rules, particularly Florida Administrative Code

Rule 67 - 48, as well as the incorporated Universal Application

Package or UA1016 (Rev. 2 - 11) (Universal Application) , which

includes the F orms and I nstructions. These items, collectively,

were admitted into evidence.

A Transcript of the proceeding was filed with the Division

of Administrative Hearings on June 18, 2012. A Proposed

Recommended Order (PRO) was filed by Petitioner and Respondent.

Each PRO was considered in the preparation of this Recommended

Order.

FINDING S OF FACT

The parties stipulated to the following facts as reflected

in paragraphs 1 through 13, below.

1. Petitioner is a Florida for - profit limited liability

company with its address at 3 East Stow Road, Suite 100, Marlton,

New Jersey 08053, and is in the business of providing affordable

rental housing units in the State of Florida.

2. Florida Housing is a public corporation, with its

address at 227 North Bronough Street, Suite 5000, Tallahassee,

F lorida 32310, organized to provide and promote the public

welfare by administering the governmental function of financing

and refinancing housing and related facilities in the State of

Florida. § 420.504, Fla. Stat. (2011). 1/

3. Florida Housing administ ers various affordable housing

programs including the following:

(a) Housing Credit Program (HC) pursuant to section 42

of the Internal Revenue Code and section 420.5099,

Florida Statutes, under which Florida Housing is

designated as the Housing Credit ag ency for the

State of Florida within the meaning of section

42(h)(7)(A) of the Internal Revenue Code, and

Florida Administrative Code Rule 67 - 48; and

(b) HOME Investments Partnerships Program (HOME)

pursuant to section 420.5089, Florida Statutes,

and Flori da Administrative Code Rule 67 - 48.

4. The 2011 Universal Cycle Application, through which

affordable housing developers apply for funding under the

above - described affordable housing programs administered by

Florida Housing, together with Instructions an d Forms, comprise

the Universal Application Package or UA1016 (Rev. 2 - 11) , adopted

and incorporated by Florida Administrative Code Rule

67 - 48.004(1)(a).

5. Because the demand for HC and HOME funding exceeds that

which is available under the HC program an d HOME program,

respectively, qualified affordable housing developments must

compete for this funding. To assess the relative merits of

proposed developments, Florida Housing has established a

competitive application process known as the Universal Cycle

p ursuant to Florida Administrative Code Rule 67 - 48.

Specifically, Florida Housing's application process for the 2011

Universal Cycle, as set forth in Florida Administrative Code

Rules 67 - 48.001 through 67 - 48.005, involves the following:

(a) The publication and adoption by rule of a

"Universal Application Package," which applicants

use to apply for funding under the HC and HOME

programs administered by Florida Housing;

(b) The completion and submission of applications by

developers;

(c) Florida Housing's pre liminary scoring of

applications (preliminary scoring summary);

(d) An initial round of administrative challenges in

which an applicant may take issue with Florida

Housing's scoring of another application by filing

a Notice of Possible Scoring Error ("NOPS E");

(e) Florida Housing's consideration of the NOPSEs

submitted, with notice (NOPSE scoring summary) to

applicants of any resulting change in their

preliminary scores;

(f) An opportunity for the applicant to submit

additional materials to Florida Housing to "cure"

any items for which the applicant was deemed to

have failed to satisfy threshold or received less

than the maximum score;

(g) A second round of administrative challenges

whereby an applicant may raise scoring issues

arising from another applicant 's cure materials by

filing a Notice of Alleged Deficiency ("NOAD");

(h) Florida Housing's consideration of the NOADs

submitted, with notice (final scoring summary) to

applicants of any resulting change in their

scores.

(i) An opportunity for applicants to challenge, by

informal or formal administrative proceedings,

Florida Housing's evaluation of any item in their

own application for which the applicant was deemed

to have failed to satisfy threshold or received

less than the maximum score 2/ ;

(j) Final scor es, ranking of applications, and award

of funding to successful applicants, including

those who successfully appeal the adverse scoring

of their application; and

(k) An opportunity for applicants to challenge, by

informal or formal administrative proceedin gs,

Florida Housings final scoring and ranking of

competing applications where such scoring and

ranking resulted in a denial of Florida Housing

funding to the challenging applicant.

6. P etitioner timely submitted its application for

financing in Florida Housing's 2011 Universal Cycle. Petitioner,

pursuant to A pplication No. 2011 - 201C, applied for $1,190,000.00

in annual federal tax credits to help finance the development of

its project, a 73 - unit apartment complex in Sarasota, Florida,

know n as Janie's G arden Phase 3. 3/

7. As part of its application, Petitioner submitted its

2011 Universal Cycle - Surveyor Certification for Competitive HC

Applications F orm as Exhibit 25 (Surveyor Form).

8. In its review and score of Petitioner's application

dated Febru ary 22, 2012 ("The NOPSE score") , Florida Housing

identified certain deficiencies, including a NOPSE concerning the

Public Bus Transfer Stop/Public Bus Rapid Transit Stop which

provides as follows:

Evidence provided in a NOPSE indicates that

the Public Bus Transfer Stop/Public Bus

Rapid Transit Stop listed on the Surveyor

Certification for Competitive HC

Applications form is neither a location at

which passengers may access at least three

routes of public transportation via buses

nor a location where passen gers may access

at least one bus that travels at some point

during the route in a lane or corridor that

is exclusively used by buses and that has

scheduled stops every 20 minutes during the

hours of 7am to 9am and 4pm to 6pm Monday -

Friday.

9. Petitioner timely submitted c ures in response to these

scoring deficiencies, including a letter from Anthony Beckford,

g eneral m anager, Sarasota County, dated January 26, 2012; and a

new Surveyor Form as a replacement for the Surveyor Form

submitted as Exhibit 25 wi th Petitioner's application.

10. Following the submission of cures and after a review of

NOADs, Florida Housing scored Petitioner's application and issued

its final scoring summary dated March 27, 2012, in which Florida

Housing concluded that Petitioner m et all threshold requirements

and awarded Petitioner 27 Proximity Tie - Breaker points. 4/

11. Specifically, Florida Housing awarded 27 Proximity Tie -

Breaker points out of a possible 37 points for the following

reasons:

1P The Applicant attempted to cure it em 1P

by providing information demonstrating that

there was an additional bus route added

prior to the application deadline; however,

the cure is deficient because this route was

"ready for implementation on December 5,

2011" and not available for use by t he

general public as of application deadline as

required.

1P Applicant attempted to cure item 1P by

providing information demonstrating that

there was an additional bus route added

prior to the application deadline; however

the cure is deficient because the schedule

for this route will not have hourly stops

between the hours of 4pm and 6pm Monday -

Friday as required.

12. The Proximity Tie - Breaker that Petitioner would be

entitled to receive for the Transit Services Public Bus Transfer

Stop is six points; and for a public library is one and three

quarters of a point.

13. Petitioner timely filed its P etition contesting Florida

Housing's scoring of its application , whereupon Florida Housing

forwarded the matter to the Division of Administrative Hearings.

1 4. December 6, 2011, the date that Petitioner submitted

its application, was the deadline for applicants to submit the

2011 Universal Cycle Application. In its final scoring summary

dated March 27, 2012, Florida Housing scored Petitioner's

application su ch that for the proximity of its proposed

development to the Verman Kimbrough Memorial Library (Kimbrough

Library), Petitioner received zero Proximity Tie - Breaker points.

Florida Housing did not award any such points to Petitioner

because in its opinion, the Kimbrough Library does not meet

Florida Housing's definition for a public library in that the

library's holdings are not "available for the public to borrow at

no cost." Petitioner disputes this contention and asserts that

the public can borrow materi als at no cost from the library as

long as the public uses the materials while in the library.

15. Florida Housing's 2011 Universal Application

Instructions provide as follows:

Public Library - Î For purposes of proximity

tie - breaker points, a Public Libr ary means a

library that is part of a city, county, or

regional public library system or

cooperative and has materials available for

the public to borrow at no cost.

16. The Ringling College of Art and Design is located in

Sarasota, Florida , and has as a part of its campus the Kimbrough

Library. The Kimbrough Library is a part of the Tampa Bay

consortium of libraries. The primary purpose of the Kimbrough

Library is to support the academic programs at the Ringling

College of Art and Design. In furthera nce of this purpose, the

Kimbrough Library has, as a significant portion of its holdings,

items such as art history books and large folios compris ing

artist representations, paintings, and the like. The majority of

the periodicals in the library, such as Art News and

Architectural Digest , are related in some way to the visual arts.

The Kimbrough Library subscribes to various newspapers and has

Wi - Fi and computers available for use by its patrons.

17. For purposes of the instant dispute, the Kimbrough

Li brary has three classes of patrons: Paying Members, Non -

Members, and Regular Members. Paying Members are individuals

that pay an annual fee of $50.00 to the Ringling College Library

Association. A benefit of being a Paying Member is that

individuals in this class are issued library cards that allow

them to check out materials from the library.

18. Non - Members are able to enter the library, without

cost, during its hours of operation and are allowed to peruse the

library's holdings and access the libra ry's computers and

Wi - Fi . As Non - Members are not issued library cards, these

individuals are not allowed to check - out or otherwise remove

materials from the library. Library materials are available to

Non - Members for in - library use only.

19. Regular M embers are current students, alumni and

employees of the Ringling College of Art and Design, and certain

high school teachers from Sarasota County and Manatee County,

respectively. The Kimbrough Library issues library cards to its

Regular Members , and the se cards allow them to check - out

materials from the library.

20. The library has on its website a list of frequently

asked questions and responses thereto. The following excerpts

are instructive:

Q: Do alumni have borrowing privilages

[sic]?

A: Gra duates of Ringling College of Art and

Design have perpetual borrowing privileges at

Kimbrough Library. They may check out up to

15 items at a time, excluding CDs and slides,

and use many of the online subscription

databases when visiting the Library.

Reg ister at the Circulation Desk for a

library card. (Emphasis supplied).

Q: Can members of the community use the

library?

A: Yes, for research and browsing. If you

also wish to check out materials, you may

become a member of the Ringling College

Librar y Association. Individual memberships

are $50.00 per year. High school arts and

humanities teachers in Sarasota and Manatee

counties may register for a library card at

no charge.

Q: How long can books be checked out?

A: Three weeks for students and R ingling

College Library Association Members. Six

weeks for faculty and staff.

21. On or about February 29, 2012, Tracy Wagner, who works

for the Ringling College of Art and Design as v ice - p resident of

Finance and Administration, submitted to Florida Ho using a letter

regarding "FHFC Proximity Scoring - Library - Verman Kimbrough

Memorial Library." Ms. Wagner, in her capacity as v ice - p resident

of Finance and Administration, does not have any oversight

responsibilities for the library , but she does work with the

library director "on maintenance and construction projects." By

her own admission, Ms. Wagner is only "somewhat" familiar with

the operations of the library.

22. According to Ms. Wagner, the Kimbrough Library

satisfies Florida Housing's definition o f a public library in

relevant part , because the library allows "area residents to use

the library free of charge which includes the use of [the]

library computers [,] as well as the ability to borrow any of

[the] books for use within the library." Ms. Wag ner's opinion is

belied by the library's response to frequently asked questions ,

which treat as synonymous the acts of "borrowing" and "checking

out" materials from the library. The library's response to

frequently asked questions make clear that in - libra ry "research

and browsing" are different from the privilege of being able to

borrow materials from the library. The library's responses to

frequently asked questions, as opposed to the assertions by

Ms. Wagner, are a competent and credible source for info rmation

a bout the operational aspects of the Kimbrough Library.

23. For the reasons stated in stipulated paragraphs 8 and

11 above, Respondent, in its final scoring of Petitioner's

application, did not award Petitioner any Proximity Tie - Breaker

points fo r the public bus transfer stop identified by Petitioner

in its application. The bus transfer stop in question is at or

near the intersection of Orange Avenue and 23rd Street in

Sarasota, Florida.

24. It is undisputed that as of December 6, 2011,

passe ngers using the bus transfer stop at the intersection of

Orange Avenue and 23rd Street were able to ride buses servicing

r outes seven (Newtown - NE) and eight (Newtown - US 301). It is also

undisputed that on December 5, 2011, Sarasota County

Transportation A uthority (SCTA), approved route 71 (Booker HS)

for future operation. Once route 71 becomes operational around

September 2012 , it will have scheduled stops at the intersection

of Orange Avenue and 23rd Street and will have, Monday through

Friday, passenger pick - up and drop - off during the following times

for inbound bus service: 7:58 a.m.; 8:28 a.m.; 5:28 p.m.; and

5:58 p.m. Outbound passenger pick - up and drop - off times at this

location will be as follows: 7:47 a.m.; 8:17 a.m.; 5:17 a.m.;

and 5:47 p.m.

2 5. On or about April 19, 2012, Ms. Sarah Blanchard, who

works at Sarasota County Area Transit as a senior transit

planning manager, submitted on behalf of Petitioner a letter to

Florida Housing. Ms. Blanchard's missive to Florida Housing

states in part a s follows:

In terms of meeting the FHFC requirements

during the p.m. period indicated for us as 4

to 6 p.m., the average headway, as defined

by SCAT, is one hour, which equates to

"hourly." That number is derived by

dividing the period (two hours) by the

number of directional trips, two, to obtain

the average one hour headway.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

27. Petitioner bears the burden of establishing by a

preponderance of the evidence the material allegations concerning

its claim. See Dep't of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996);

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 834 (Fla. 1993);

Espinoza v. Dep't of Bus. & Prof'l Reg. , 739 So. 2d 1250, 1251

(Fla. 3d DCA 1999); Fla. Dep't of Transp. v. J.W.C. Co. , 396

So. 2d 778, 788 (Fla. 1st DCA 1981); and § 120.57(1)(j)("Findings

of fact shal l be based upon a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute. . . .").

28. A preponderance of the evidence is defined as "the

greater weight of the evidence" or evidence that "more likely

than not" tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

29. Respondent formally adopted the Universal Application

as a rule. § 120.55(1)(a)4 . and Fla. Admin. Code R .

67 - 48.004(1)(a). The Forms and Instructions are agency

statements of general applicability that implement, interpret, or

prescribe law or policy or describe the procedure or practice

requirements of Florida Housing and , therefore , the F orms and

I nstructions meet the definition of a "rule" as contemplated by

section 120.52 . Accordingly, the I nstructions and F orms are

themselves rules.

30. Part III.A.10. of the instructions for the Universal

Application provide in part as follows:

Applications Requesting Competitive HC

[Housin g Credit]

Proximity tie - breaker points may be awarded

to an Application for the proximity of the

Development's Tie - Breaker Measurement Point

to:

Eligible Transit, Tier 1 and Tier 2

services; and

Latitude and longitude coordinates of

properties ident ified on the 2011 FHFC

Development Proximity List (the List)

serving the same demographic group as the

proposed Development. The List, effective

9 - 27 - 10, is incorporated by reference and

is available on the Corporation's Website

under the 2011 Universal A pplication link

labeled Related References and Links.

* * *

a. In order for all Applications to be

eligible for proximity tie - breaker points

other than those awarded based on Part

III.A.10.b.(1) below, the Applicant must

submit a properly completed and executed

Surveyor Certification for Competitive HC

Applications form, provided behind a tab

labeled "Exhibit 25," which includes the Tie -

Breaker Measurement Point and services

information requested below:

* * *

(2) Proximity to services:

(a) Tr ansit Services

Applicants may select one (1) of the

following four (4) Transit Services on which

to base the Applicant's Transit Score. If

the Applicant provides information for more

than one Transit Service or more than one of

each type of Transit Servi ce, the Applicant

will not receive any proximity tie - breaker

points for the Transit Service Score. (For

example, Applicants are limited to selecting

one Public Bus Transfer Stop, even though

there may be another Public Bus Transfer Stop

nearby. If the Ap plicant provides

information for two Public Transfer Stops,

the Applicant will not receive any proximity

tie - breaker points for either of the Public

Bus Transfer Stops.) The eligible Transit

Services are defined below:

* * *

(ii) Public Bus Transfe r Stop (Maximum 6

Points)

For purposes of proximity tie - breaker points,

a Public Bus Transfer Stop means a fixed

location at which passengers may access at

least three routes of public transportation

via buses. Each route must have a scheduled

stop at th e Public Bus Transfer Stop at least

hourly during the times of 7am to 9am and

also during the times 4pm to 6pm Monday

through Friday, excluding holidays, on a

year - round basis. This would include both

bus stations (i.e. hubs) and bus stops with

multiple r outes. Bus routes must be

established or approved by a Local Government

department that manages public

transportation. Buses that travel between

states will not be considered.

* * *

To be considered for proximity tie - breaker

points in this Applicat ion, all Transit

Services, Tier 1 Services and Tier 2 Services

must be in existence and available for use by

the general public as of the Application

Deadline with the exception of the SunRail

Public Rail Stations.

31. An agency is afforded wide discret ion in the

interpretation of a statute it administers and such

interpretation should not be overturned , unless clearly

erroneous. State Contracting & Eng ' g Corp. v. Dep't of Transp. ,

709 So. 2d 607 (Fla. 1st DCA 1998); Natelson v. Dep't of Ins. ,

454 So. 2 d 31, 32 (Fla. 1st DCA 1984).

32. The parties agree that even though route 71 was

approved prior to the Universal Application deadline, the route

was , nevertheless , not available for use by the general public

when Petitioner submitted its application on December 6, 2011.

As to this issue, the essence of Petitioner's argument is that a

conflict exists in the I nstructions for the Universal Application

because Part III.A.10. generally provides that " to be considered

for proximity tie - breaker points all serv ices must be in

existence and available for use by the general public as of the

application deadline," whereas Part III.A.10.a.(2)(ii)

"specifically provide[s] that to be acceptable, 'bus routes' must

be established or approved by a Local Government depart ment that

manages public transportation. . . ." Petitioner's argument is

not persuasive.

33. The instructions for the Universal Application make

clear that bus routes are included within the category of

"transit services." While it is accurate to say , pursuant to

Part III.A.10.a.(2)(ii), that a "bus route" must be "approved" to

be acceptable for consideration for Pro ximity T ie - B reaker points,

it is inaccurate to read the I nstructions in such a way as to

obviate the requirement that the approved "bus r oute" must be

available for use by the general public as of the application

deadline as required by Part III.A.10. of the Universal

Application Instructions. The fact that route 71 was not

operational as of December 6, 2011, is fatal to Petitioner's

claim for entitlement to Proximity Tie - Breaker points for this

category because the I nstructions unambiguously require that the

route be available for use by the public as of the application

deadline. 5/ Petitioner failed to meet its burden of proof with

respec t to this issue.

34. As for the library issue, Florida Housing interprets

the phrase "borrow at no cost," as used in the Universal

Application Instructions at Part III.A.10.a.(2)(ii), to mean that

an item must be available for removal from the library pr emises

(check out) by a member of the public without cost. In

attempting to show the unreasonableness of Florida Housing's

definition of the term "borrow," Petitioner suggests a more

expansive definition of the term that includes within its meaning

the ac t of taking temporary possession of an item belonging to

the library while both the possessor and the item remain within

the confines of the library building. Petitioner's suggested

definition is more akin to the definition associated with the act

of "bro wsing" as this term was most commonly used before the

advent of the I nternet.

35. The question is not whether Petitioner's interpretation

of the word "borrow" is reasonable, which it is not, but whether

Petitioner has shown that Florida Housing's inte rpretation is so

unreasonable as to constitute an impermissible construction of

the term. See State of Fla., Bd. of Optometry v. Fla. Soc. of

Ophthalmology , 538 So. 2d 878, 885 (Fla. 1st DCA 1988)("only a

permissible construction" will be upheld by the co urts).

36. In support of its position, Petitioner relies on the

opinion testimony of Mr. Joseph Chambers, who, through experience

and training, is an expert in the area of affordable - housing

development , and Msacy Wagner, who works as a vice - presid ent

for F inance and A dministration for the Ringling College of Art

and Design.

37. While Mr. Chambers is recognized , by stipulation, as an

expert in the area of affordable housing development, there was

no credible evidence elicited from Mr. Chambers e stablishing his

credentials or expertise in matters related to library sciences

and operations. An expert witness may only testify as an expert

in the areas of his or her expertise. Mattek v. White , 695

So. 2d 942, 943 (Fla. 4th DCA 1997)(physicist, who was qualified

as an expert on accident reconstruction and biomechanics, was not

qualified to express an opinion about whether the plaintiff

suffered a permanent injury); and Goodyear Tire & Rubber Co.,

Inc. v. Ross , 660 So. 2d 1109, 1111 (Fla. 4th DCA 1995 )(witness

must be qualified as an expert on the discrete subject on which

he is asked to opine). Because Mr. Chambers is not an expert in

the discrete area of library sciences and internal operations

related thereto, his opinion as to the ultimate questio n

regarding the alleged unreasonableness of Florida Housing's

definition of the word "borrow" is considered only because of the

general stipulation of the parties, but is given no weight by the

undersigned.

38. Ms. Wagner was not qualified as an expert w itness and ,

therefore , her testimony was offered in the context of that of a

lay witness. Ms. Wagner testified that in her opinion, the

Kimbrough Library meets Respondent's definition of a public

library.

39. Regarding lay witness opinion testimony, sec tion

90.701, Florida Statutes, provides as follows:

If a witness is not testifying as an expert,

the witness's testimony about what he or she

perceived may be in the form of inference

and opinion when:

(1) The witness cannot readily, and with

equal accur acy and adequacy, communicate

what he or she has perceived to the trier of

fact without testifying in terms of

inferences or opinions and the witness's use

of inferences or opinions will not mislead

the trier of fact to the prejudice of the

objecting party ; and

(2) The opinions and inferences do not

require a special knowledge, skill,

experience, or training.

40. Ms. Wagner's lay opinion regarding the definition of

the term "borrow" as used by Florida Housing, does not require of

Ms. Wagner that she r ely upon any of her senses of "perception"

within the meaning of section 90.701. Fino v. Nodine , 646 So. 2d

746, 748 - 749 (Fla. 4th DCA 1994)("[A]cceptable lay opinion

testimony typically involves matters such as distance, time,

size, weight, form and iden tity.") . Because the threshold

requirements for section 90.701 have not been satisfied,

Mr. Wagner's lay opinion as to whether the Kimbrough Library

satisfies Florida Housing's definition of a public library is

disregarded as incompetent. Even if, howeve r, Ms. Wagner's

opinion were considered, it would lack sufficient weight to

assist Petitioner in meeting its burden of proof given

Ms. Wagner's admitted unfamiliarity with library operations.

41. Petitioner failed to meet its burden of proof in

establis hing its entitlement to public library Proximity

Tie - Breaker points.

42. Because Petitioner failed to demonstrate that

Respondent's interpretation of the I nstructions in the Universal

Application is unreasonable or clearly erroneous, Florida

Housing's int erpretation must be accepted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Florida Housing Finance

Corporation, enter a final order denying Petitioner, Janie Poe

Associates 3 LLC's, Petit ion for Review.

DONE AND ENTERED this 6th day of July , 2012 , in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July , 2012 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will b e to 2011,

unless otherwise indicated.

2/ The instant proceeding is the subject of such a challenge.

3/ The United States Congress has created a program, governed by

section 42 of the Internal Revenue Code, by which federal income

tax credits are allot ted annually to each state on a per capita

basis to help facilitate private development of affordable low -

income housing for families. These tax credits entitle the

holder to a dollar - for - dollar reduction in the holder's federal

tax liability, which can b e taken for up to ten years if the

project continues to satisfy Internal Revenue Code requirements.

The tax credits allocated annually to each state are awarded by

state "housing credit agencies" to single - purpose applicant

entities created by real estate developers to construct and

operate specific multi - family housing projects. The applicant

entity then sells this ten - year stream of tax credits, typically

to a syndicator, with the sale proceeds generating much of the

funding necessary for development an d construction of the

project. The equity produced by this sale of tax credits , in

turn , reduces the amount of long - term debt required for the

project, making it possible to operate the project at below -

market - rate rents that are affordable to low - income and very

low - income tenants. Pursuant to section 420.5099, Florida

Housing is the designated "housing credit agency" for the S tate

of Florida and administers Florida's tax credit program under its

Housing Credit program (HC). Through the HC program, Flor ida

Housing allocates Florida's annual fixed pool of federal tax

credits to developers of affordable housing under its annual

Universal Cycle application process.

4/ Petitioner was awarded 79 total points and six A bility to

Proceed Tie - Breaker points.

5 / It is not necessary to reach the issue of whether r oute 71

will stop at least hourly between the hours of 4 :00 p . m ., and

6 :00 p . m ., Monday through Friday , because one of the predicate

requirements for this analysis has not been demonstrated; to wit,

tha t the route was available for use by the public as of the

application deadline. Nevertheless, even if the necessary

predicate was established, Respondent's interpretation of the

"hourly" stop requirement would stand. In the instant dispute,

Florida Housi ng interprets the phrase "at least hourly" to mean

that r oute 71 buses must pick up passengers at Orange Avenue and

23rd Street at least once during the 4 o'clock hour and at least

once during the 5 o'clock hour. While the "average headway"

method used by SCTA for determining whether a bus picks up

passengers "at least hourly" is certainly a reasonable

interpretation of the phrase, it cannot be said that Florida

Housing's interpretation is so strained as to be unreasonable.

See Bd. of Podiatric Med. v. Fl a. Med. Ass ' n. , 779 So. 2d 658,

660 (Fla. 1st DCA 2001)(it is fundamental that an agency is

accorded wide discretion and deference in the interpretation of

statutes which it administers and that an agency ' s interpretation

of a rule it administers should be upheld when it is within the

range of permissible interpretations).

COPIES FURNISHED:

Wellington Meffert, General Counsel

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

Della Harrell, Corporat ion Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 01 90

Matthew A. Sirmans, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.