14-001399BID Pinnacle Rio, Llc vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Wednesday, June 4, 2014.


View Dockets  
Summary: Respondent's determination that Petitioner APC Four Forty Four was ineligible was clearly erroneous, but Petitioners failed to prove Respondent's intended allocation of tax credits was contrary to governing statutes, rules, or solicitation specifications.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PINNACLE RIO, LLC

11Petitioner,

12vs. Case No. 14 - 1398BID

1814 - 1399BID

21FLORIDA HOUSING FINANCE 14 - 1400BID

27CORPORATION , 14 - 1428BID

31Respondent.

32and

33ALLAPATTAH TRACE APARTMENTS,

36LTD.,

37Intervenor.

38_______________________________/

39R ECOMMENDED ORDER

42Pursuant to notice, an evidentiary hearing was held in the

52above - styled consolidated cases on April 22, 29, and 30, 2014 ,

64in Tallahassee, Florida, before F. Scott Boyd , Administrative

72Law Judge, Division of Administrative Hearings.

78APPEARANCES

79For Petitioner Pinnacle Rio, LLC:

84Joseph M. Goldstein, Esquire

88Shutts and Bowen, LLP

92200 East Broward Boulevard , Suite 2100

98Fort Lauderdale, Florida 33301

102For Petitioner /Intervenor Town Center , Phase Two, L LC :

112Michael P. Donaldson, Esquire

116Carlton Fields Jorden Burt , P.A.

121215 South Monroe Street, Suite 500

127Tallahassee, Florida 32302

130For Petitioner APC Four Forty Four, Ltd.:

137Donna Elizabeth Blanton, Esquire

141Brittany Adams Long, Esquire

145Susan F. Clark, Esquire

149Radey , Thomas , Yon and Clark, P.A.

155301 South Bronough Street, Suite 200

161Tallahassee, Florida 32301

164For Respondent Florida Housing Finance Corporation:

170Hugh R. Brown, Esquire

174Florida Housing Finance Corporation

178227 North Bronough Street , Suite 5000

184Tallahassee, Florida 32301

187For Intervenor Allapat tah Trace Apartments, Ltd. :

195Michael J. Glazer, Esquire

199Erik M. Figlio, Esquire

203Ausley and McMullen

206123 South Calhoun Street

210Post Office Box 391

214Tallahassee, Florida 3230 2

218For Intervenor HTG Miami - Dade 5, LLC :

227Maureen M. Daughton, Esquire

231Mark K. L ogan, Esquire

236Sniffen and Spellman, P.A.

240123 North Monroe Street

244Tallahassee, Florida 32301

247STATEMENT OF THE ISSUE

251The issue for determination is whether Respondent's

258intended decision to award low - income housing tax credits in

269Miami - Dade County through Request for Applications 2013 - 003 to

281HTG Miami - Dade 5, LLC , and Allapattah Trace Apartments, Ltd. , is

293contrary to governing statutes, the corporationÓs rules or

301policies, or the solicitation specifications.

306PRELIMINARY STATEMENT

308Respondent, Florida Housing Finance Corporation ( FHFC or

316the Corporation) , issued Request for Applications 2013 - 0 03 (RFA)

327on September 19, 2013 , through which it solicited applications

336to compete for the award of low - income tax credits for

348affordable housing developments to be const ructed in Miami - Dade ,

359Broward, and Palm Beach Count ies. One hundred nineteen

368applications were filed by the November 12, 2013, deadline in

378response to the RF A .

384The Board of Directors of FHFC posted a Notice of Intended

395Decision by electronic posting on January 31, 2014 . The posting

406indicat ed the sorting order for the applications, including which

416applications had been deemed eligible and ineligible , and

424approv ed the Review CommitteeÓs recommendation to award tax

433credits for construction in Miami - Dade Co unty to HTG Miami - Dade

4475, LLC d /b/a Wagner Creek (HTG) and to Allapattah Trace

458Apartments, Ltd. , (ATA).

461Petitioners Pinnacle Rio, LLC (Pinnacle), Town Center, Phase

469Two, LLC (TC) , and APC Four Forty Four, Ltd. (APC) , timely filed

481notice s of intent to protest , followed by formal written

491protest s pursuant to section 120.57(3), Florida Statutes (2013).

500The Corporation referred the se protests , along with others now

510dismissed, to the Division of Administrative Hearings, where the

519cases were c onsolidated and, after a scheduling conference , set

529for hearing on April 22, 29 , and 30, 2014.

538A Joint Pre - Hearing Stipulation was entered into by all

549parties and stipulated facts are included among the Findings of

559Fact below.

561The parties offered Joint Exhibits J - 1 through J - 5 , which

574were admitted in to evidence . Petitioner Pinnacle offered 12

584e xhibits, P - 1 through P - 9, and P - 11 through P - 13 , all of which

604were admitted . Petitioner TC introduced 10 exhibits, TC - 1, TC -

6177, TC - 8, TC - 11 through TC - 14, TC - 18, TC - 20, and TC - 21, including

639the deposition testimony of Mr. Frank Lezcano, and presented the

649telephone testimony of Mr. Alberto Milo , Jr. Petitioner APC

658offered 19 exhibits, APC - 1 through APC - 12, an d APC - 14 through

674APC - 20 , which w ere admitted into evidence. Exhibit APC - 13 was

688not admitted. APC also offered the testimony of Ms. Elizabeth

698Wong, Vice President of Atlantic Pacific Communities and

706Ms. Elizabeth OÓNeill, Senior Policy Analyst at FHFC.

714Respondent FHFC introduced Exhibit FHFC - 1 , the deposition

723testimony of Ms. Amy Garmon, Review Committee member, and

732offered the testimony of Ms. Elizabeth Thorp, Multifamily

740Programs Manager and Mr. Kenneth Reecy, Director of Multifamily

749Programs for the C orporation . Intervenor ATA introduced 18

759e xhibits, ATA - 1, ATA - 3 through ATA - 14, and ATA - 18 through

776ATA - 22 , including the deposition testimony of four witnesses,

786Mr. Jorge Cordoves, Mr. Mark Johnson, Mr. Douglas Pile , and

796Mr. Alberto Milo, Jr. , a nd presented the live testimony of

807Mr. William Fabbri, Executive Vice President of The Richman

816Group Development Corporation . Intervenor HTG offered Exhibit

824HTG - 1 , which was admitted into evidence . O fficial recognition

836was given to Flor ida Administrative Code Rule chapters 67 - 48 and

84967 - 60 .

853The t hree - volume hearing Transcript was filed on May 5,

8652014 . After an Order gr anting a one - day extension of time, all

880parties timely filed Proposed R ecommended O rders by May 16 ,

891201 4 , which were carefully considered in the preparation of this

902Recommended Order.

904FINDINGS OF FACT

907Overview

9081. FHFC is a public corporation created pursuant to

917section 420.504, Florida Statutes (2013) . 1/ Its purpose is to

928promote the public welfare by administering the governmental

936function of financing affordable housing in Florida. Pursuant

944to section 420.5099, FHFC is designated as the housing credit

954agency for Florida within the meaning of section 42(h)(7)(A) of

964the Internal Revenue Code and has the responsibility and

973authority to establish procedures for allocating and

980distributing low - income housing tax credits.

9872. The low - income housing tax credit program was enacted by

999Congress in 1986 to incentivize the private market to invest in

1010affordable rental housing . Tax credits are competitively awarded

1019to housing developers in Florida for qualified rental housing

1028projects. Deve lopers then sell these credits to investors to

1038raise capital (or equity) for their projects, which reduces the

1048debt that the developer would otherwise have to borrow. Because

1058the debt is lower, a tax credit property can offer lower, more

1070affordable rents.

10723. Provided the property maintains compliance with the

1080program requirements, investors receive a dollar - for - dollar

1090credit against their federal tax liability each year over a

1100period of 10 years. The amount of the annual credit is based on

1113the amount inv ested in the affordable housing.

11214. These are tax credits and not tax deductions. For

1131example, a $1 , 000 deduction in a 15 percent tax bracket reduces

1143taxable income by $1 , 000 and reduces tax liability by $150.

1154However, a $1 , 000 tax credit reduces tax li ability by $1 , 000.

11675. Developers that are awarded tax credits can use them

1177directly. However, most sell them to raise equity capital for

1187their projects. 2 / Developers sell these credits for up - front

1199cash. A developer typically sets up a limited partnership or

1209limited liability company to own the apartment complex. The

1218developer maintains a small interest but is responsible for

1227building the project and mana ging (or arranging for the

1237management) of the project. The investors have the largest

1246ownership interest but are typically passive investors with

1254regard to development and management. 3 /

12616. Because the tax credits can be used by the investors

1272that provide the equity for 10 years, they are very valuable.

1283When sold to the investors , they provide equity which reduces

1293the debt associated with the project. With lower debt, the

1303affordable housing tax credit property can (and must) offer

1312lower, more affordable rent.

13167 . The demand for tax credits provided by the federal

1327government far exceeds the supply. FHFC has adopted Florida

1336Administrative Code R ule c hapter 67 - 60 , to govern the

1348competitive solicitation process for several different programs,

1355including the one for tax credits.

13618 . Chapter 67 - 60 was newly enacted on August 20, 2013. It

1375replaced prior procedures used by FHFC for the competitive

1384process for allocati ng tax credits. FHFC has now adopted the

1395bid protest provisions of section 120.57(3), Florida Statutes ,

1403as its process for allocating tax credits. 4 /

1412The Competitive Application Process

14169. Tax credi ts are made available annually. FHFC begins

1426the compet itive application process through the issuance of a

1436Request for Applications. 5 / In this case, that document is

1447Request for Applications 2013 - 003 . A copy of the RFA, including

1460its Questions & Answers, is Joint Exhibit 1. The RFA was issued

1472September 19, 2013 and responses were due November 12, 2013.

148210 . According to the RFA, FHFC expected to award up to

1494approximately $10,052,825 in tax credits for qualified

1503affordable housing projects in Miami - Dade, Broward , and Palm

1513Beach Counties.

151511 . Knowing that th ere would be far more applications than

1527available credits, FHFC established an order for funding in the

1537three counties:

1539The Applications will be considered for

1545funding in the following funding order:

1551first the highest scoring eligible

1556Application located in Miami - Dade County

1563that can meet the Funding Test, then the

1571highest scoring eligible Application located

1576in Broward County that can meet the Funding

1584Test, then the highest scoring eligible

1590Application located in Palm Beach County

1596that can meet the Fundin g Test, then the

1605highest scoring eligible unfunded

1609Application located in Miami - Dade County

1616that can meet the Funding Test and then the

1625highest scoring eligible unfunded

1629Application located in Broward County

1634regardless of the Funding Test. If there is

1642not enough funding available to fully fund

1649this last Broward County Application, the

1655Application will be entitled to receive a

1662Binding Commitment for the unfunded balance.

1668No further Applications will be considered

1674for funding and any remaining funding will

1681be distributed as approved by the Board.

1688RFA at page 36.

169212 . Applications were scored using a 27 - point scale based

1704on criteria in the RFA. RFA at p age 37. This process was

1717described in the RFA as follows:

1723The highest scoring Applications will be

1729deter mined by first sorting all eligible

1736Applications from highest score to lowest

1742score, with any scores that are tied

1749separated first by the ApplicationÓs

1754eligibility for the Development Category

1759Funding Preference which is outlined in

1765Section Four A.4.c.(1)( a) of the RFA (with

1773Applications that qualify for the preference

1779listed above Applications that do not qualify

1786for the preference), then by the

1792ApplicationÓs eligibility for the Per Unit

1798Construction Funding Preference which is

1803outlined in Section Four A.9 .e. of the RFA,

1812(with Applications that qualify for the

1818preference listed above Applications to [sic]

1824do not qualify for the preference), then by

1832the ApplicationÓs Leveraging Classification

1836(applying the multipliers outlined in

1841Exhibit C below and having the Classification

1848of A be the top priority ) , then by the

1858ApplicationÓs eligibility for the Florida Job

1864Creation Preference which is outlined in

1870Exhibit C below (with Applications that

1876qualify for the preference listed above

1882Applications that do not qualif y for the

1890preference), and then by lottery number,

1896resulting in the lowest lottery number

1902receiving preference .

1905RFA at page 36 (emphasis added).

191113 . The way this process works in reality is that the

1923developers know that they must first submit a project that meets

1934all the eligibility criteria and does not have any significant

1944omissions or errors. 6 / Developers also strive to submit projects

1955structured to receive all 27 points. The tiebreaker is then the

1966luck - of - the - draw. At the time each application is filed, it is

1982randomly assigned a lottery number 7 / used to break the ties.

199414 . The role of the lottery numbers is demonstrated by th e

2007following facts . One hundred and nineteen applications were

2016filed in response to the RFA. All but six received the maximum

2028score of 27 points. Seventy of the 119 were deemed eligible.

2039Of those 70, 69 received the maximum score of 27 points. A copy

2052of the RFA Sorting Order is Joint Exhibit 2. 8 / As such, the

2066lottery numbers are a big factor i n deciding the winners and,

2078concomitantly, the challengers are (1) the projects with high

2087lottery numbers that were deemed ineligible; and (2) those with

2097lottery numbers outside the funding range that are trying to

2107displace those with lower lottery numbers .

211415 . A copy of the final Review Committee Recommendations

2124is Joint Exhibit 3. This document shows the developers

2133selected, the county and the lottery number.

214016 . The two Miami - Dade projects selected for funding are:

2152- HTG Miami - Dade 5, LLC d/b/a Wagner Creek - lottery

2164number 3

2166- A llapattah Trace Apartments, Ltd. - lottery number 6

217617 . The Petitioners/Intervenors in these consolidated

2183proceedings are:

2185- Town Center Phase Two, LLC - lottery number 7

2195- Pinnacle Rio, LLC - lottery number 9

2203- APC Four Forty Four, Ltd. - deemed ineligible and

2213with a lottery number of 10

22191 8 . T he protests here center upon whether various

2230applicants were correctly deemed eligible or i neligible.

2238Applications are competitively reviewed, and so determinations

2245as to one applicant affect other applicantsÓ positions. Each

2254application, and the a llegations against it, will be considered

2264in turn .

2267HTGÓs Application

22691 9. APC argues that HTG should be found ineligible for

2280allocation of tax credits because HTG failed to disclose its

2290princi pals and those of its developer, as required by the RFA.

230220 . The RFA at Section Four A.2. d . provides , in part , that

2316each applicant will submit an application that identifies :

2325d. Principals for the Applicant and for

2332each Developer.

2334All Applicants must provide a list, as

2341Attachment 3 to Exhibit A, identifying the

2348Principals for the Applicant and for each

2355Developer, as follows:

2358* * *

2361(2) For a Limited Liability Company,

2367provide a list identifying the following:

2373(i) the Principals of the Applicant as of

2381the Application Deadline and (ii) the

2387Principals for each Developer as of the

2394Application Deadline. This list must

2399include warrant holder s and/or option

2405holders of the proposed Development.

2410* * *

2413This eligibility requirement may be met by

2420providing a copy of the list of Principals

2428that was reviewed and approved by the

2435Corporation during the advance - review

2441process.

2442To assist the Applicant in compiling the

2449listing, the Corporation has included

2454additional information at Item 3 of

2460Exhibit C.

2462RFA at page 5.

246621 . The RFA goes on to provide in Exhibit C 3.:

24783. Principal Disclosures for Applicants and

2484Each Developer

2486The Corporation is providing the following

2492charts and examples to assist the Applicant

2499in providing the required list identifying

2505the Principals for the Applicant and for

2512each Developer. The term Principals is

2518defined in Section 67 - 48.002, F.A.C.

2525a. Charts:

2527(1) For the Applicant:

2531* * *

2534(b) If the Applicant is a Limited

2541Liability Company:

2543Identify All Managers and Identify All Members

2550and

2551For each Manager that is a For each Manager that is a Limited For each Manager that is a

2570Limited Partnership: Liability Company: Corporation:

2575Identify each General Identify each Manager Identify each Officer

2584Partner

2585and and and

2588Identify each Limited Identify each Member Identify each Director

2597Partner

2598and

2599Identify each Shareholder

2602a nd

2604For each Member that is a For each Member that is a Limited For each Member that is a Corporation:

2624Limited Partnership: Liability Company:

2628Identify each General Identify each Manager Identify each Officer

2637Partner

2638and and and

2641Identify each Limited Identify each Member Identify each Director

2650Partner

2651and

2652Identify each Shareholder

2655For any Manager and/or Member that is a natural person (i.e., Samuel S. Smith), no further disclosure is required.

2674RFA at page 61 .

267922 . The RFA at Section Three F.3. Provides:

26883. Requirements. Proposed Developments

2692funded with Housing Credits will be subject

2699to the requirements of the RFA, the

2706Application requirements outlined in Rule

2711Chapter 67 - 60, F.A.C., the credit

2718underwriting and HC Program requireme nts

2724outlined in Rule Chapter 67 - 48, F.A.C., and

2733the Compliance requirements of Rule Chapter

273967 - 53, F.A.C.

2743RFA at page 3.

274723 . The term Ð p rincipalÑ is defined by r ule

275967 - 48.002(89) 9/ , as follows:

2765(89) ÐPrincipalÑ means:

2768(a) Any general partner of an Applicant or

2776Developer, any limited partner of an

2782Applicant or Developer, any manager or

2788member of an Applicant or Developer, any

2795officer, director or shareholder of an

2801Applicant or Developer,

2804* * *

2807(c) Any officer, director, shareholder,

2812manager, member, general partner or limited

2818partner of any manager or member of an

2826Applicant or Developer, and . . . .

283424 . HTG received an Ð a dvance r eviewÑ approval of its

2847designation of principals on October 8, 2013 . HTG submit ted

2858this stamped and approved list of principals with its

2867application.

286825 . Applicant HTG is a l imited l iability c ompany , as is

2882its developer, HTG Miami - Dade 5 Developer, LLC. In its

2893submission of principals, HTG disclosed the names of the manager

2903and member of th e a pplicant and the manager and member of the

2917developer , all of which were also LLCs. HTG also disclosed the

2928names of the managers and members of these component LLC s . HTG

2941did not disclose any officers of the applicant , the developer ,

2951or any of the component LLCs .

295826 . O ther documents submitted as part of the application

2969indicate that Mr. Matthew Rieger is a Vice President of the

2980applicant , HTG Miami - Dade 5, LLC, and that the component LLCs

2992also have officers.

299527 . APC contends that the rule Ós def inition of principal

3007requires HTG to disclose not only the manager s and members of

3019the applicant and developer , and those of their component LLCs,

3029but also the officer s of any of these entities , if they also

3042have officers .

304528 . FHFC asserts that such disclosure is not required,

3055arguing that the term ÐofficerÑ as found in the rule Ós

3066definition of ÐprincipalÑ only applies to corporations. F HFC

3075argues that there is no inconsistency between the rule and the

3086charts of the RFA with respect to disclosure of principals.

3096FHFC contends that t he charts in the RFA , read in conjunction

3108with the rule, indicate that officers must be disclosed only

3118when the entity is a corporation, and that members and managers

3129must be disclosed when the entity is a LLC.

31382 9. FHFC interpret s rule 67 - 48.002(89) in a manner

3150consistent with the charts. It does not interpret the rule to

3161require that an LLC disclose its officers, even if i t has them,

3174but only that an LLC disclose its managers and members. Both

3185Ms. OÓNeill and Ms. Thorp t estified to that effect . The

3197examples provided in the RFA are also cons i stent with this

3209interpretation.

321030 . T he rule certainly might have been drafted with more

3222precision to expressly indicat e that a principal is any officer,

3233director, or shareholder if the entity is a corporation; any

3243manager or member if the entity is an LLC; and any general

3255partner or limited partner i f the entity is a Limited

3266Partnership. I t cannot be said , however, that the CorporationÓs

3276interpretation of the RFA and its rule i s impermissible.

3286ATAÓs Application

328831 . Mr. Kenneth Reecy, Director of Multifamily Programs,

3297testified that FHFC revised the Ð U niversal A pplication C ycleÑ

3309process that had been conducted in the past . Under the old

3321universal cycle, most of the criteria were incorporated into the

3331rule, and then there was a ÐcureÑ process that provided an

3342opportunity to correct errors that did nÓt necessarily have a

3352bearing on whether a project was good enough to be funded. Under

3364the newer process, several issues were moved out of the

3374eligibility and scoring p hase and into the credit underwriting

3384p hase . 10 / Specifically relevant here, site plan issues and the

3397availability of infrastructure, such as sewer service, were no

3406longer examined as part of the eligibility and scoring p hase set

3418forth in the RFA . Mr. Reecy testified that these issues were

3430complex and had been intentionally pushed to the Ðrigorous

3439reviewÑ that take s place during the credit underwriting phase .

345032 . In signing and submitting Exhibit A of the RFA , each

3462applicant acknowledges and certifies that certain information

3469will be provided to FHFC by various dates in the future. RFA at

3482page 46. Section Four 10.b.(2)(b) provides in part that the

3492follow ing will be provided :

3498(2) Within 21 Calendar Days of the date of

3507the invitation to enter credit underwriting:

3513(a) Certification of the status of site

3520plan approval as of Application Deadline and

3527certification that as of Application

3532Deadline the site is appropriately zoned for

3539the proposed Development, as outlined in

3545I tem 13 of Exhibit C of the RFA;

3554(b) Certification confirming the

3558availability of the following for the entire

3565Development site, including confirmation

3569that these items were in place as of the

3578Application Deadline: electricity, water,

3582sewer service, and roads for the proposed

3589Development, as outlined in Item 13 of

3596Exhibit C of the RFA;

360133 . Item 13 of Exhibit C goes on to provide :

361313. Certification of Ability to Proceed:

3619Within 21 Calendar Days of the date of the

3628invitation to enter credit underwriting, the

3634following information must be provided to

3640the Corporation:

3642a. Submission of the completed and executed

36492013 Florida Housing Finance Corporation

3654Local Government Verification of Status of

3660Site Plan approval for Multifamily

3665Developments form.

3667* * *

3670c. Evidence from the Local Government or

3677service provider, as applicable, of the

3683ava ilability of infrastructure as of

3689Application Deadline, as follows:

3693* * *

3696(3) Sewer: Submission of the completed and

3703executed 2013 Florida Housing Finance

3708Corporation Verification of Availability of

3713Infrastructure Ï Sewer Capacity, Package

3718Treatment, or Septic Tank form or a letter

3726from the service provider which is dated

3733within 12 months of the Application

3739Deadline, is Development specific, and

3744specifically states that sewer service is

3750available to the proposed Development as of

3757the Application Deadline.

376034 . The 2013 Florida Housing Finance Corporation Local

3769Government Verification of Status of Site Plan A pproval for

3779Multifamily Developments F orm (Site Plan Approval Form) and the

37892013 Florida Housing Finance Corporation Verification of

3796Availability of Infrastructure Ï Sewer Capacity, Package

3803Treatment, or Septic Tank F orm ( Certification of Sewer Capacity

3814Form) are incorporated by reference in the RFA.

382235 . The Site Plan Approval Fo rm require s (in the case of

3836Miami - Dade County which does not have a preliminary or conceptual

3848site plan approval process) that the local government confirm

3857that the site plan was reviewed as of the application deadline.

386836 . Pinnacle and APC assert that the site plan that ATA

3880submitted to the City of Miami for review included a strip of

3892land that is not legally owned by the current owner and will not

3905be conveyed to ATA under the Purchase and Sale Agreement. As a

3917result, they contend , the site plan review which was required on

3928or before the application deadline did not occur. Pinnacle

3937argue s that ATAÓs certification in its application was incorrect,

3947that this was a mandatory requirement that was not met , and that

3959it will be impossible for ATA to provide t he Site Plan Approval

3972F orm in credit underwriting.

397737 . TC similarly maintain s that ATA could not Ðacknowledge

3988and certify Ñ as part of its application that it would later

4000certify that it had Ð ability to proceed Ñ because the RFA ( at

4014Section Four 10.b.(2)(b) quoted above ) requires that Ðsewer

4023serviceÑ be Ðin placeÑ for ATAÓs proposed development as of the

4034a pplication d eadline . TC also a ssert s that the Certification of

4048Sewer Capacity Form explicitly states (a nd that any service

4058provider l etter must , too) that no moratorium is applicable to a

4070proposed development.

407238 . ATA did not submit a Certification of Sewer Capacity

4083Form. Miami - Dade County will not complete such forms. The

4094Ðletter of availabilityÑ option was created to accommodate

4102Miami - Dade County.

41063 9. The November 12, 2013, letter from Miami - Dade Water

4118and Sewer regarding ATAÓs development does not state that there

4128is no applicable moratorium in effect. In fact, the letter

4138affirmatively acknowledges that flow to the gravity system

4146already connected to the property cannot be increased because

4155there is a mor atorium in effect as to the pumping station

4167serving the abutting gravity sewer basin.

417340 . The letter from the County states that , if the pumping

4185station is still in Moratorium Status Ðat the time this project

4196is ready for construction,Ñ that a private p ump station is

4208acceptable. It is logical to conclude that this means sewer

4218service would be available at that time and that sewer service

4229was similarly available at the time of application deadline.

4238The letter , therefore , implies, but does not specifically stat e,

4248that Ðsewer service is available to the proposed development as

4258of the application deadline . Ñ

426441 . The moratorium in effect at the application deadline

4274was not a Ð general Ñ moratorium . I t applied only to the pump

4289station serving the abutting gravity sewer basin, but it was

4299applicable to the proposed development and precluded any

4307increase in the flow to the gravity system connected to the

4318property . A moratorium pertaining to sewer service applicable

4327to ATAÓs proposed development was in effect at the time th at

4339ATAÓs application was submitted. Sewer capacity was otherwise

4347available for the proposed development through use of a private

4357pump station.

435942 . ATA asserts , first, that ATA has not yet filed

4370certification of ability to proceed or the required forms or

4380letter , that it is not to do so until after it is invited to

4394enter credit underwriting, that FHFC has consequently yet to

4403make a determination as to ATAÓs ability to proceed, and that

4414therefore any issue s as to site plan or sewer service are not

4427yet ripe for consideration.

443143 . As to the site plan, ATA further maintains that even

4443if it had been required to provide evidence of ability to

4454proceed as part of its application , the site plan submitted to

4465the Ci ty of Miami did not represent that the alley was part of

4479the ATA site. ATA , therefore , asserts that the site plan that

4490was reviewed was the correct one, and that its application

4500certification was correct.

450344 . The plan of the site of ATAÓs development project

4514indicates that the site is bifurcated by a private alley, which

4525is not dedicated as a street, avenue , or boulevard.

453445 . The legal description of the development project, as

4544submitted to the Department of Planning and Zoning of the City of

4556Miami, included lots 2 through 7 and lots 19 and 20. It did not

4570include the strip of land that lies between these lots (lots 2

4582through 7 lie to the West of the alley and lots 19 and 20 lie to

4598the East of it.)

460246 . As to sewer availability, ATA as serts that the 2011

4614Universal Cycle and the RFA are significantly different . ATA

4624maintains that while the former provided that the existence of a

4635moratorium pertaining to sewer service meant that infrastructure

4643was unavailable, this la nguage was removed from the RFA. ATA

4654contends that a letter of availability need not ÐmimicÑ the

4664Certification of Sewer Capacity Form and that the RFA allows a

4675development to certify sewer availability by other means when a

4685moratorium is in effect.

468947 . Mr. Reecy testified that FHFC takes th e certifi ed

4701application a t face value , regardless of what other information

4711the Corporation might have at hand. As to the site plan, h e

4724testified that even had site plan approval been a part of the

4736scoring process, FHFC would not have found ATAÓs application

4745ineligible on that ground. He testified that the alley would

4755not be a problem unless it was a ÐroadÑ or something similar.

4767He testified that it also could have been a problem if the

4779measurement point to measure the distance to nearby amenities

4788was not on the property, but he was not aware that that was the

4802case in ATAÓs application.

480648 . As for sewer service, Mr. Reecy testified that a

4817letter from the service provider does not have to say ÐexactlyÑ

4828what is on the form , but stated that it does ha ve to give Ð the

4844relevant informationÑ to let FHFC know if sewer is Ðpossible.Ñ

4854He testified that the only guidance as to what constituted sewer

4865ÐavailabilityÑ was contained in the criteria found on the

4874Certification of Sewer Capacity Form .

48804 9. One of the four numbered requirements on the

4890Certification of Sewer Capacity Form is that there are no

4900moratoriums pertaining to sewer service that are applicable to

4909the proposed development.

491250 . Under the RFA, the Certification of Sewer Capacity

4922Form could not be completed for a proposed development for which

4933a moratorium pertainin g to sewer service was in effect at the

4945time the application was submitted. The form could not be

4955certified by the service provider even if it was possible for

4966such a development to obtain sewer service by other means. T he

4978text on the 2013 form is substantively identical to that on the

4990form used during the 2011 Universal Cycle, that wording was

5000specifically drafted to require that any moratorium on sewer

5009infrastructure would be a disqualifying criterion, and the 2013

5018Certification of Sewer C apacity Form still has that effect. No

5029challenge to the use of the form in the RFA was filed . E ven

5044though the language of the 2011 Universal Cycle which paralleled

5054th e text o n the form does not appear in the RFA , that criterion

5069remains as part of the RFA because of the incorporated

5079Certification of Sewer Capacity Form.

508451 . In any event, th e site plan and sewer availability

5096issue s must await at least initial resolution by FHFC during the

5108credit underwriting phase. The testimony of Mr. Reecy clearly

5117indicate d that FHFC interprets the RFA specifications and its

5127rules to move consideration of site plan issues and

5136infrastructure availability to the credit underwriting phase. It

5144has not been shown that this is an impermissible interpretatio n .

5156Town CenterÓs Application

515952 . Pinnacle alleges that TCÓs application fail s to

5169demonstrate site control , because the applicant, Town Center

5177Phase Two, LLC, is not the buyer of the site it intends to

5190develop .

519253 . T he RFA requires at Section Four A.7. that an applicant

5205must provide a copy of a contract, deed, or lease to demonstrate

5217site control:

52197. Site Control:

5222The Applicant must demonstrate site control

5228by providing, as Attachment 7 to Exhibit A,

5236the documentation required in Items a., b.,

5243and/or c., as indicated below. If the

5250proposed Development consists of Scattered

5255Sites, site control must be demonstrated for

5262all of the Scattered Sites.

5267a. Eligible Contract - For purposes of the

5275RFA . . . the buyer MUST be the Applicant

5285unless an assignment of the eligible contract

5292which assigns all of the buyer's rights,

5299title and interests in the eligible contract

5306to the Applicant, is provided. If the owner

5314of the subject property is not a party to the

5324eligible contract, all documents evidencing

5329intermedia te contracts, agreements,

5333assignments, options, or conveyances of any

5339kind between or among the owner, the

5346Applicant, or other parties, must be provided

5353. . . .

5357RFA at page 23 .

536254 . T he Contract for Purchase and Sale of Real Property

5374submitted as Attachmen t 7 to TCÓs application is signed by

5385Mr. Milo, who is identified as Vice President. The Buyer on the

5397signature page is incorrectly listed as RUDG, LLC.

540555 . No other assignment, intermediate contract, agreement,

5413option, or conveyance was included with TCÓs application to

5422indicate that TC otherwise had site control of the property.

543256 . The applicant entity, Town Center Phase Two, LLC, is

5443correctly listed in the opening paragraph of the Contract for

5453Purchase and Sale of Real Property a s the ÐBuyer.Ñ

546357 . RUDG, LLC , is the 99. 9 9 percent Member of Town Center

5477Phase Two, LLC, and is also the sole Member and Manager of Town

5490Center Phase Two Manager, LLC , which is the .01 percent Managing

5501Member of Town Center Phase Two, LLC.

550858 . Mr. Milo is a Vice President of RUDG, LLC, a Vice

5521President of Town Center Phase Two Manager, LLC, and a Vice

5532President of the applicant , Town Center Phase Two, LLC.

55415 9. Florida Administrative Code Rule 67 - 60.008, provides

5551that the Corporation may waive minor irr egularities in an

5561otherwise valid application.

556460 . The term ÐMinor IrregularityÑ is defined by r ule 67 -

557760.002(6), as follows:

5580(6) ÐMinor IrregularityÑ means a variation

5586in a term or condition of an Application

5594pursuant to this rule chapter that does not

5602provide a competitive advantage or benefit

5608not enjoyed by other Applicants, and does

5615not adversely impact the interests of the

5622Corporation or the public.

562661 . Mr. Reecy testified that FHFC interpreted the rule to

5637mean that if information requested by t he RFA is reasonably

5648available within the Application, even if it was not provided

5658exactly in the place where it was requested, the failure to have

5670it in the particular place it was requested is a minor

5681irregularity.

568262 . Although the information on the si gnature page of the

5694Contract for Purchase and Sale of Real Property identifying the

5704Buyer as RUDG, LLC, was a discrepancy in the application, the

5715contract elsewhere identified Town Center Phase Two, LLC, as the

5725Buyer, and Mr. Milo was , in fact , authorized to sign for the

5737true Buyer .

574063 . Ms. Amy GarmonÓs deposition testimony indicated that

5749because she was able to determine from other places in the

5760application that the Buyer was the applicant, and that Mr. Milo

5771was authorized to sign for the Buyer, she found this portion of

5783TCÓs application to be compliant , and she didnÓt see that there

5794was a Ðminor irregularityÑ that needed to be waived. However,

5804it is determined that FHFC actually did finally determine that

5814the error in identification constitute d a mi nor irregularity

5824that was waived, in accordance with Mr. ReecyÓs testimony.

5833Although it was Ms. Garmon who called attention to the

5843irregularity, Mr. Reecy is in a position of higher authority

5853within the FHFC and is better able to address the CorporationÓs

5864actions with respect to TCÓs application.

587064 . Pinnacle also asserts that TCÓs finance documents

5879fail , based upon the same signature issue.

588665 . TC submitted equity proposals detailing its

5894construction funding sources that were addressed to Mr. Milo and

5904endorsed by him as ÐVice President.Ñ

591066 . FHFC similarly concluded that Mr. Milo had authority

5920to endorse the finance letters on behalf of TC.

592967 . There is evidence to support FHFCÓs findings that TC

5940was the actual Buyer, that Mr. Milo had authority to sign the

5952contract and the equity documents, and that the discrepancies in

5962the documents were minor irregularities .

5968PinnacleÓs Applicat ion

597168 . The equity commitment letter from Wells Fargo Bank

5981regarding Pinnacle Ós development, as submitted to FHFC,

5989contained only pages numbered one, two, and four of a four - page

6002letter. It is clear that page three is actually missing and the

6014letter was not simply incorrectly numbered, because of

6022discontinuity in the text and in the numbering of portions of

6033the letter.

603569 . APC contends that PinnacleÓs application should have

6044been deemed ineligible for award because of the missing page.

605470 . Mr. Reecy testified that even though a page of

6065PinnacleÓs equity commitment letter was missing , all of the RFA

6075requirements were set forth in the remaining pages. He

6084acknowledged that the missing page might have included

6092unacceptable conditions for closing or information that was

6100inconsistent with the other things in the application, but

6109st ated that FHFC determined that the missing page from

6119PinnacleÓs equity letter was a minor irregularity.

612671 . There is evidence to support FHFCÓs finding that the

6137missing page was a minor irregularit y .

6145APCÓs Application

614772 . The RFA provides at Section Four, A.3. c., at page 5:

6160c. Experienced Developer(s)

6163At least one Principal of the Developer

6170entity, or if more than one Developer

6177entity, at least one Principal of at least

6185one of the Developer entities, must meet the

6193General Developer Experience requi rements in

6199(1) and (2) below.

6203(1) General Developer Experience:

6207A Principal of each experienced Developer

6213entity must have, since January 1, 1991,

6220completed at least three (3) affordable

6226rental housing developments, at least one

6232(1) of which was a Housing Credit

6239development completed since January 1, 2001.

6245At least on e (1) of the three (3) completed

6255developments must consist of a total number

6262of units no less than 50 percent of the

6271total number of units in the proposed

6278Development. For purposes of this

6283provision, completed for each of the three

6290(3) developments means (i) that the

6296temporary or final certificate of occupancy

6302has been issued for at least one (1) unit in

6312one of the residential apartment buildings

6318within the development, or (ii) that at

6325least one (1) IRS Form 8609 has been issued

6334for one of the residential apartment

6340buildings within the development. As used

6346in this section, an affordable rental

6352housing development, including a Housing

6357Credit development that contains multiple

6362buildings, is a single development

6367regardless of the number of buildings within

6374th e development for which an IRS Form 8609

6383has been issued. If the experience of a

6391Principal for a Developer entity listed in

6398this Application was acquired from a

6404previous affordable housing Developer

6408entity, the Principal must have also been a

6416Principal of that previous Developer entity.

6422(2) Prior General Development Experience

6427Chart:

6428The Applicant must provide, as Attachment 4

6435to Exhibit A, a prior experience chart for

6443each Principal intending to meet the minimum

6450general development experience reflecting

6454the required information for the three (3)

6461completed affordable rental housing

6465developments, one (1) of which must be a

6473Housing Credit development.

6476Each prior experience chart must include the

6483following information:

6485Prior General Development E xperience Chart

6491Name of Principal with the Required Experience: ____ __________________________ _______

6501Name of Developer Entity (for the proposed Development) for which the above Party is a Principal: Name of Development Location Location Affordable Housing Program that Total Number ________________ _____ Year

6531(City & State) Provided Financing Of Units Completed

6539ment) for which the above Party is a Principal:

6548RFA at pages 5, 6.

655373 . Exhibit A to the RFA, at 3. c . , further provides:

6566General Developer Experience

6569For each experienced Developer entity, the

6575Applicant must provide, as Attachment 4, a

6582prior experience chart for at least one (1)

6590experienced Principal of that entity. The

6596prior experience chart for the Pr incipal

6603must reflect the required information for

6609the three (3) completed affordable rental

6615housing developments, one (1) of which must

6622be a Housing Credit development.

6627RFA at page 41.

663174 . Ms. OÓNeill, a Senior Policy Analyst at FHFC and

6642member of the Review Committee responsible for scoring the

6651applicationsÓ developer information section , testified at

6657hearing. W hen FHFC first started scoring applications,

6665Ms. OÓNeill was not taking any act ion to confirm p rincipal

6677develop er experience, but rather was taking the information

6686provided by applicants at face value , as it had been submitted

6697on the chart.

670075 . A colleague of Ms. OÓNeillÓs , not serving on the

6711Review Committee, called her attention to the fact that a

6721development that was then going through credit underwriting

6729( following an award during the 2011 funding cycle) had recently

6740requested that FHFC approve a change to the developer en t ity .

6753Ms. OÓNeill testified that this request raised a question at

6763FHFC as to whether Ms. Wong , listed by APC as the principal with

6776the required experience, m et the requirement s . FHFC decided to

6788confirm that Ms. Wong had the required experience for the

6798developments listed in the RFA .

680476 . Ms. OÓNeil l stated that she did not make any inquiry

6817to Ms. Wong or to Atlantic Pacific Communities as to whether

6828Ms. Wong was, in fact, a p rincipal of St. LukeÓs Development,

6840LLC, developer of St. LukeÓs Life Center , because ÐweÓre not

6850really supposed to do that.Ñ Ms. OÓNeill instead looked at

6860portions of a credit underwriting report on the St. LukeÓs Life

6871Center project that were researched and shown to her by a

6882colleague . Ms. OÓNeill did not see Ms. Wong listed in that

6894report as a p rincipal. She did find infor mation in FHFC files

6907that Ms. Wong was a principal on the other two listed

6918developments.

691977 . Ms. Thorp testified that she researched several

6928documents in FHFCÓs possession and found no information

6936indicating that Ms. Wong was a principal for the St. LukeÓ s

6948development . She testified that Ms. Wong or another

6957representative of APC was not contacted about the issue because

6967that would have given them an unfair advantage over other

6977applicants.

697878 . Based upon th e information in its files , FHFC

6989determined that Ms. Wong did not meet the requirements for

6999p rincipal developer experience.

70037 9. FHFC then similarly reviewed the files of other

7013applicants who had listed in - state developments as their

7023experience, but was unable to review out - of - state experience, so

7036out - of - state experience continued to be accepted at face value.

704980 . Ms. Wong was not originally a principal in the

7060St. LukeÓs development . However, it was demonstrated at hearing

7070through documentary evidence that Ms. Wong was later appointed

7079an officer of St. LukeÓs Development, LLC, effective March 2007 .

7090That change was submitted to the credit underwriter , and Ms.

7100Wong was a principal for the developer entity before it

7110completed credit underwriting .

711481 . Both Ms. OÓNeill and Ms. Thorp testified that if the

7126documents provided at hearing by APC had been in FHFCÓs

7136possession at the time APCÓs application was scored , FHFC would

7146have found that Ms. Wong was a principal of the St. LukeÓs

7158development and that her experience met principal developer

7166exper ience requirements.

716982 . In light of the evidence presented at hearing , it is

7181clear that FHFC Ós conclusion was wrong . The prior experience

7192chart submitted by APC as part of its application provided all

7203of the information requested by the RFA, and all of that

7214information was accurate. The information available to FHFC in

7223the application correctly indicated that Ms. Wong was a

7232principle for the developer of the St. LukeÓs Life Center

7242development. APCÓs application met all requirements of the RFA

7251with resp ect to prior developer experience.

725883 . The CorporationÓs preliminary determination s that

7266Ms. Wong was not a principal in the St. LukeÓs development, and

7278that the APC application did not , therefore , meet principal

7287experience requirements to the contrary, made in good faith

7296based upon incomplete information contained in its files , was

7305clearly erroneous.

730784 . FHFCÓs contention that APC should have submitted

7316explanations or further documentation of Ms. WongÓs developer

7324experience at the time it submitted i ts application is

7334untenable. APC submitted all of information requested of it.

7343FHFC asked for a chart to be completed, which APC did,

7354completely and accurately. An applicant cannot be found

7362ineligible for failing to do more than was required by the RFA .

7375Cr edit Underwriting

737885 . A comparison of the RFA and rules with the 2011

7390Universal Cycle process shows that the Corporation has moved

7399many requirements formerly required as part of the eligibility

7408and scoring phase into a second review in the credit

7418under writing phase , as noted earlier . Rule 67 - 48.0072 provides

7430in part:

7432Credit underwriting is a de novo review of

7440all information supplied, received or

7445discovered during or after any competitive

7451solicitation scoring and funding preference

7456process, prior to the closing on funding,

7463including the issuance of IRS Forms 8609 for

7471Housing Credits. The success of an

7477Applicant in being selected for funding is

7484not an indication that the Applicant will

7491receive a positive recommendation from the

7497Credit Underwriter or t hat the Development

7504teamÓs experience, past performance or

7509financial capacity is satisfactory.

751386 . The rule goes on to provide that this de novo review

7526in the credit underwriting p hase includes not only economic

7536feasibility, but other factors statutori ly required for

7544allocation of tax credits, such as evidence of need for

7554affordable housing and ability to proceed. These factors might

7563cause a n application to fail and never receive funding , even

7574though it was nominally ÐawardedÑ the credits earlier. In that

7584event, the RFA provides :

7589Funding that becomes available after the

7595Board takes action on the CommitteeÓs

7601recommendation(s), due to an Applicant

7606declining its invitation to enter credit

7612underwriting or the ApplicantÓs inability to

7618satisfy a requirement outlined in this RFA,

7625and/or Rule Chapter 67 - 48, F.A.C., will be

7634distributed to the highest scoring eligible

7640unfunded Application located in the same

7646county as the Development that returned the

7653funding regardless of the Funding Test. If

7660there is not enough funding available to

7667fully fund this Application, it will be

7674entitled to receive a Binding Commitment for

7681the unfunded balance.

7684If an applicant nominally ÐawardedÑ funding in the eligibility

7693and scoring phase fails credit underwriting, the next a pplicant

7703in the queue of eligible applicants may still be granted

7713funding , and so , is substantially affected by FHFCÓs decisions

7722in the cr edit underwriting phase.

7728CONCLUSIONS OF LAW

773187 . The Division of Administrative Hearings has

7739jurisdiction over the parties and the subject matter of this

7749proceeding under sections 120.569 and 120.57(3) .

775688 . Section 420.507, Florida Statutes, provides statutory

7764authority for the Corporation to allocate low - income housing tax

7775credits by competitive solicitation. It provides:

7781The corporation shall have all the powers

7788necessary or convenient to carry out and

7795effectuate the purposes and provisions of

7801this part, including the following powers

7807which are in addition to all other powers

7815granted by other provisions of this part:

7822* * *

7825(48) To award its annual allocation of low -

7834income housing tax credits, nontaxable

7839revenue bonds, and State Apartment Incentive

7845Loan Program funds appropriated by the

7851Legislature and available to allocate by

7857request for proposals or other competitive

7863solicitation.

78648 9. Protests to competitive contract solicitations or awards

7873a re governed by section 120.57(3) (f) , which provides in part as

7885follows:

7886Unless otherwise provided by statute, the

7892burden of proof shall rest with the party

7900protesting the proposed agency action. In a

7907competitive - procurement protest, other than

7913a rejectio n of all bids, proposals, or

7921replies, the administrative law judge shall

7927conduct a de novo proceeding to determine

7934whether the agency's proposed action is

7940contrary to the agency's governing statutes,

7946the agency's rules or policies, or the

7953solicitation spec ifications. The standard

7958of proof for such proceedings shall be

7965whether the proposed agency action was

7971clearly erroneous, contrary to competition,

7976arbitrary, or capricious.

79799 0 . As part ies c hallenging FHFCÓs proposed award action ,

7991Petitioners Pinnacle, TC, and APC bear the burden of proof .

80029 1 . All Petitioners have standing. While applicable rules

8012do not expressly require applicants to be both responsive and

8022responsible, these factors are inherently part of the standing

8031requirement in competitive solicitations. Intercontinental

8036Props. , Inc. v. DepÓt of HRS , 606 So. 2d 380 (F la. 3d DCA 1992);

8051Preston Carroll Co. v. Fla. Keys Aqueduct Auth. , 400 So. 2d 524

8063(Fla. 3d DCA 1981). Pinnacle and TC were correctly found

8073eligible by FHFC, but have higher lottery numbers than

8082Intervenors. APC demonstrated its eligibility at hearing. A ll

8091three Petitioners were responsive to the solicitation. Any one

8100of these applicants may yet be awarded housing credits if it is

8112found responsible while all of those ahead of it are not.

8123Capeletti Bros. , Inc. v. DepÓt of Gen. Svcs. , 432 So. 2d 1359,

8135136 0 n.1 (Fla. 1st DCA 1983). Only those applicants having the

8147capability, financial and otherwise, to fully perform all

8155requirements of the RFA are responsible. Couch Constr . Co. v.

8166DepÓt of Transp. , 361 So. 2d 184, 187 (Fla. 1st DCA 1978).

8178Responsibility under the unusual bifurcated allocation process

8185established by the RFA will not be completely determined until

8195the credit underwriting phase, applying statutorily required

8202responsibility criteria for the allocation of tax credits. Each

8211Pet itionerÓs substantial interests are affected by FHFCÓs

8219decisions as to other applicants in both phases of this

8229bifurcated allocation process.

82329 2 . Although chapter 120 uses the term Ðde novoÑ when

8244describing competitive solicitation protest proceedings, co urts

8251have recognized that a different kind of de novo is contemplated

8262than for other substantial interest proceedings under section

8270120.57. Bid disputes are a "form of intr a - agency review" in

8283which the object is to evaluate the action taken by the agency.

8295State Contracting and Eng'g Corp. v. Dep't of Transp., 709 So.

83062d 607, 609 (Fla. 1st DCA 1998).

83139 3 . P roceedings to challenge a competitive award are not

8325simply a record review of the information that was before the

8336agency . T hey remain Ð de novo Ñ in the sense that in the chapter

8352120 hearing the evidence adduced is not restricted to th at which

8364was earlier before the agency when making its preliminary

8373decision. A new evidentiary record based upon the historical,

8382objective facts is developed. Aspha lt Pavers, Inc. v. D epÓt of

8394T ransp. , 602 So. 2d 558 (Fla. 1st DCA 1992) . The new findings

8408of fact must support the final order to be issued by the agency.

8421Gtech Corp. v. Dep't of Lottery , 737 So. 2d 615, 619 (Fla. 1st

8434DCA 1999)(in bid protests, as in oth er formal hearings, agency

8445may reject findings of fact only if they are not supported by

8457competent and substantial evidence).

84619 4 . While facts are determined based upon new evidence ,

8472applicants are not permitted to retroactively submit information

8480required by the solicita t ion , but omitted from the ir proposal.

8492S ection 120.57(3) provides that Ðno submissions made after the

8502bid or proposal opening which amend or supplement the bid or

8513proposal shall be considered. Ñ The application o r proposal must

8524therefore stand on its own, as originally submitted, in light of

8535determined facts. § 120.57(3) , Fla. Stat .

85429 5 . After determining the relevant facts based upon

8552evidence presented at hearing, the agency's intended action must

8561be considered in light of those facts , and the agencyÓs

8571determinations must remain undisturbed unless clearly erroneous,

8578contrary to competition, arbitrary, or capricious. A proposed

8586award will be upheld unless it is contrary to governing

8596statutes, the agencyÓs rules, or the solicitation

8603specifications.

86049 6 . The Ðclearly erroneousÑ standard of review has been

8615applied to both findings of fact and conclusions of law. A

8626factual finding is clearly erroneous when the reviewer is Ðleft

8636with a definite and firm conviction that a mistake has been

8647made.Ñ Tropical Jewelers , Inc. v. Bank of Am ., N.A. , 19 So. 3d

8660424 (Fla. 3d DCA 2009); Brand v. Florida Power Corp. , 633 So. 2d

8673504 (Fla. 1st DCA 1994). As applied to conclusions of law, t he

8686court in Colbert v. Dep ar t ment of Health , 890 So. 2d 1165, 1166

8701(Fla. 1st DCA 2004) , found that the clearly erroneous standard

8711required that "the interpretation will be upheld if the agency's

8721construction falls within the permissible range of

8728interpretations. Ñ However, defer ence need not be given to an

8739agency interpretation which conflicts with the plain and

8747ordinary intent of the law. Fla. Hosp. v. Ag. f or Health Care

8760Admin. , 823 So. 2d 844, 845 (Fla. 1st DCA 2002).

87709 7 . An agency action is "contrary to competition" if it

8782unreasonably interferes with the purposes of competitive

8789procurement, which ha ve been described in Wester v. Belote , 138

8800So. 721, 723 - 724 (Fla. 1931), as protecting the public against

8812collusive contracts and securing fair competition upon equal

8820terms to al l bidders.

88259 8 . An action is "arbitrary if it is not supported by

8838logic or the necessary facts," and "capricious if it is adopted

8849without thought or reason or is irrational." Hadi v. Lib.

8859Behavioral Health Corp. , 927 So. 2d 34, 38 (Fla. 1st DCA 2006).

8871I f agency action is justifiable under any analysis that a

8882reasonable person would use to reach a decision of similar

8892importance, the decision is neither arbitrary nor capricious.

8900Dravo Basic Materials Co. v. Dep't of Transp. , 602 So. 2d 632,

8912634 n.3 (Fla. 2 d DCA 1992).

8919HTGÓs Application

89219 9 . The Corporation interpreted the RFA and rule 67 -

893348.002(89), defining Ð principal ,Ñ to require only that the

8943member and manager of an LLC, and not its officers, had to be

8956disclosed . The evidence did not show that this interpretation

8966was clearly erroneous, contrary to competition, arbitrary, or

8974capricious. State Contr. & Eng'g Corp. v. Dep't of Transp. , 709

8985So. 2d 607, 609 (Fla. 1st DCA 1998)

8993100 . The CorporationÓs proposed action to award low - income

9004housing tax credits available through Request for Applications

90122013 - 003 to HTG Miami - Dade 5, LLC, is not contrary to governing

9027statutes, FHFCÓs rules or policies, or the solicitation

9035specifications.

9036ATAÓs Application

9038101 . The challenges to ATAÓs application also involve

9047interpretation of specifications and rules. In State

9054Contr acting & Engineering Corporation v. Departmen t of

9063Transp ortation , 709 So. 2d 607 (Fla. 1 st DCA 1998) , the

9075administrative law judge determined that despite representations

9082made on submitted forms, the selected contractor would be unable

9092to meet the level of participation by disadvantaged business

9101enterprises (DBE) required by agency rule. The agency rejected

9110t his conclusion in its final order. The agency maintained that

9121under its specifications and rules, the forms submitted were

9130facially sufficient, the bid was responsive, and that a

9139contractorÓs ability to later meet the applicable DBE percentage

9148was a compl iance issue. The C ourt, concluding that the dispute

9160centered on interpretation of the agencyÓs rule, found no

9169evidence that the agencyÓs interpretation was clearly erroneous,

9177and affirmed the agency order.

9182102 . Here, while the credit underwriting phase is part of

9193a bifurcated and extended selection process rather than a

9202performance issue, FHFC similarly interprets its specifications

9209and rules as requiring ATA to demonstrate ability to proceed ,

9219not at the time of application, but only later , during the

9230cr edit underwriting phase . The specificationsÓ requirement that

9239an applicant must acknowledge and certify at the time of

9249application that it will later provide certifications within 21

9258days of the invitation to enter credit underwriting of the

92684 1

9270status of sit e plan approval and the availability of sewer

9281service to the development as of the application deadline is

9291certainly confusing , but the CorporationÓs interpretation is not

9299clearly erroneous .

9302103 . FHFCÓs determination that the certification submitted

9310by ATA as part of its application met the RFA requirements w as

9323similarly not shown by the evidence to be clearly erroneous,

9333contrary to competition, arbitrary, or capricious.

9339104 . The CorporationÓs proposed action to award low - income

9350housing ta x credits available through Request for Applications

93592013 - 003 to Allapattah Trace Apartments, Ltd., is not contrary to

9371governing statutes, FHFCÓs rules or policies, or the

9379solicitation specifications.

9381PinnacleÓs application

9383105 . While it is clear that Pinnacle Ós application failed

9394to include the entire equity commitment letter, not every

9403deviation from specifications necessarily results in

9409ineligibility. A n irregularity that does not give the applicant

9419a substantial advantage or benefit not enjoyed by other

9428applicants and so stifle competition , or does not adversely

9437affect the interests of the agency, may be considered a minor

9448irregularity. Procacci Commer. Realty v. DepÓt of HRS , 690 So.

94582d 603, 606 (Fla. 1st DCA 19 97 ). The Corporation Ó s

9471determinatio n that PinnacleÓs omission met the definition of

9480minor irregularity under FHFCÓs rules, and its decision to waive

9490that irregularity , were not shown to be clearly erroneous,

9499contrary to competition, arbitrary, or capricious .

9506106 . The CorporationÓs proposed action determining that

9514Pinnacle is eligible for funding is not contrary to governing

9524statutes, FHFCÓs rules or policies, or the solicitation

9532specifications.

9533TCÓs Applica tion

9536107 . The CorporationÓs de termination that discrepancies as

9545to identification of the signatory on TCÓs contract and finance

9555documents were minor irregularities and its decision that TC is

9565therefore eligible to receive tax credits are also governed by

9575the definition of Ðminor irregularityÑ as d iscussed above.

9584Similar facts were involved in Intercontinental Properties, Inc.

9592v. Dep artment of H ealth and Rehabilitative S ervices , 606 So. 2d

9605380, 386 - 87 (Fla. 3d DCA 1992) . In that case, w hile not

9620apparent from the face of submitted documents, the evidence at

9630hearing revealed that the bid documents had been submitted with

9640full authority . The C ourt stated:

9647While the failure to attach proof of the

9655agent's authority rendered each of the two

9662bids technically nonconforming, both

9666deficiencies were easily remedied. This is

9672plainly the sort of deficiency which a

9679public agency can, in its discretion, allow

9686a bidder to cure after the fact .

9694Here, the Corporation Ós decision to waive similar discrepan cies

9704in TCÓs application was not shown to be clearly erroneous,

9714contrary to competition, arbitrary, or capricious .

9721108 . The CorporationÓs proposed action determining that TC

9730is eligible for funding is not contrary to governing statutes,

9740FHFCÓs rules or policies, or the solicitation specifications.

9748APCÓs Application

975010 9. While the evidence did not demonstrate that FHFCÓs

9760use of information from its files was contrary to competition or

9771its consideration of information relating only to Florida

9779developments was arbitrary and capricious, APC did demonstrate

9787that Ms. Wong was a principal in the St. LukeÓs development and

9799so had the required principal developer experience. APC

9807demonstrated that the application it submitted was complete and

9816accurate concerning prior developer experience.

9821110 . FHFCÓs argument that the prohibition in section

9830120.57(3) against amending or supplementing a proposal extends

9838to evidence at a subsequent 120.57(1) hearing offered to show

9848that the application was , in fact , complete and accurate at the

9859time it was submitted , is not persuasive . 1 1 /

9870111 . The fact that FHFCÓs contrary determination was made

9880in good faith, based upon information then available to it, does

9891not insulate that preliminary decision from fact - finding in a

9902challenge to an award decision under 120.57(3) . Indeed , the

9912precise purpose of such a hearing is to provide a formal

9923evidentiary record upon which to base final agency action .

9933Following a challenge to an agencyÓs decision to accep t a

9944proposal , the agencyÓs final decision must be supported by the

9954e vidence adduced at hearing , including evidence unavailable to

9963the agency earlier . 12/ Gtech Corp. v. Dep't of Lottery , 737 So.

99762d 615, 619 (Fla. 1st DCA 1999 ).

9984112 . Based upon the facts here , t he CorporationÓs

9994determination that APCÓs application failed to meet the required

10003developer experience requirements was clearly erroneous .

10010113 . The CorporationÓs proposed action determining that

10018APC Four Forty Four, Ltd. is not eligible for funding is

10029contrary to Section Four A.3. c. of the solicitation

10038specifications , setting forth general developer e xperience

10045requirements.

10046RECOMMENDATION

10047Based on the foregoing Findings of Fact and Conclusions of

10057Law, it is RECOMMENDED that the Florida Housing Finance

10066Corporation enter a final order finding that APC Four Forty

10076Four, Ltd., is eligible for funding, adjusting the Sorting Order

10086accordingly, and otherwise dismissing the formal written

10093protests of all Petitioners.

10097DONE AND ENTERED this 4th da y of June , 2014 , in

10108Tallahassee, Leon County, Florida.

10112S

10113F. SCOTT BOYD

10116Administrative Law Judge

10119Division of Administrative Hearings

10123The DeSoto Building

101261230 Apalachee Parkway

10129Tallahassee, Florida 32399 - 3060

10134(850) 488 - 9675

10138Fax Filing (850) 921 - 6847

10144www.doah.state.fl.us

10145Filed with the Clerk of the

10151Division of Administrative Hearings

10155this 4th day of June , 2014 .

10162ENDNOT ES

101641/ All references to statutes and administrative rules are to

10174those in effect at the time of the RFA except as otherwise

10186indicated.

101872 / Tax credits are typically sold directly to investors or,

10198often times, to a syndicator who assembles a group of investors

10209and acts as their representative.

102143 / http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm

10218planning/affordablehousing/training/web/lihtc/b asics/syndication

102204 / To be more specific, administrative appeals are governed by

10231section 120.57(3), Florida Statutes , except that no bond is

10240requ ired. Fl a . Admin. Code R. 67 - 60.009.

102515 / For purposes of section 120.57(3), the request for

10261applications is equivalent to a Ðrequest for proposal.Ñ Florida

10270Administrative Code Rule 67 - 60.009(3).

102766 / Both the RFA and c hapter 67 - 60 allow FHFC to waive Ðminor

10292irregularities.Ñ

102937 / RFA at page 2.

102998 / This list also includes the Broward and Palm Beach County

10311projects. The projects in all three counties were assigned

10320lottery numbers together. However, the Broward and Palm Beach

10329County awards are not at issue in this case.

103389 / While the numbering of this rule differed in the version in

10351effect at the time the RFA was initially issued, the parties

10362stipulated at hearing that the substance of the rule was

10372identical in all pertinent respects throughout the eligibility

10380and scoring phase .

1038410 / No challenge was filed to RFA specifications providing that

10395consideration of such factors as relative need for low - income

10406housing, economic feasibility , and ability to proceed would be

10415considered only as subsequent Ðpass/failÑ issues in the credit

10424underwriting phase rather than through comparative evaluation to

10432Ð maximize use Ñ of available tax credits pursuant to sections

104434 2 0. 5099(2) and 420 . 507(48) , Florida Statutes . It seems clear

10457that the CorporationÓs ultimate decision s regarding these

10465factors affect the substantial interests of at least the next

10475eligible applicant in line to receive funding, and s o , may not

10487be insulated from the disciplines of chapter 120, even if not

10498ripe i n this proceeding.

105031 1 / No deference is given to FHFCÓs argument on this point, as

10517it has no special expertise or Ðsubstantive jurisdictionÑ as to

10527an interpretation of chapter 120. Cf . G.E.L. Corp. v. DepÓt of

10539Envtl. Prot. , 875 So. 2d 1257, 1263 (Fla. 5th DCA 2004) .

1055112/ The recent case of J.D. v. DepÓt of Child. & Fams. , 114 So.

105653d 1127, 1132 (Fla. 1st DCA 2013), though not a bid protest

10577case, provides an excellent discuss ion of fact - finding in cases

10589requiring not only a Ðde novoÑ hearing but also review u nder

10601quasi - appellate standards. The court explains that facts are

10611not limited to those available to the agency , but that

10621determined facts must then be used to deferentially evaluate the

10631intended agency action, citing bid disputes.

10637COPIES FURNISHED :

10640Michael J. Glazer, Esquire

10644Ausley and McMullen

10647123 South Calhoun Street

10651Post Office Box 391

10655Tallahassee, Florida 32302

10658Michael P. Donaldson, Esquire

10662Carlton Fields Jorden Burt, P.A.

10667215 South Monroe Street , Suite 500

10673Tallahassee, Florida 32302

10676Donna Elizabeth Blanton, Esquire

10680Radey, Thomas, Yon and Clark, P.A.

10686301 South Bronough Street , Suite 200

10692Tallahassee, Florida 32301

10695Gary J. Cohen, Esquire

10699Shutts and Bowen, LLP

10703201 South Biscayne Boulevard

107071500 Miami Center

10710Miami, Florida 33131

10713W. Robert Vez ina, III, Esquire

10719Vezina, Lawrence and Piscitelli, P.A.

10724413 East Park Avenue

10728Tallahassee, Florida 32301

10731Hugh R. Brown, Esquire

10735Florida Housing Finance Corporation

10739227 North Bronough Street , Suite 5000

10745Tallahassee, Florida 32301

10748Maureen McCarthy Daughton, Esquire

10752Sniffen and Spellman, P.A.

10756123 North Monroe Street

10760Tallahassee, Florida 32301

10763Joseph M. Goldstein, Esquire

10767Shutts and Bowen LLP

10771200 East Broward Boulevard , Suite 2100

10777Fort Lauderdale, Florida 33301

10781Brandice D. Dickson, Esquire

10785Penning ton, Moore, Wilkinson,

10789Bell and Dunbar, P.A.

10793215 South Monroe Street, Second Floor

10799Post Office Box 10095

10803Tallahassee, Florida 32302 - 2095

10808Brittany Adams Long , Esquire

10812Radey, Thomas, Yon and Clark, P.A.

10818301 South Bronough Street , Suite 200

10824Tallahassee, Florida 32301

10827Susan F. Clark , Esquire

10831Radey, Thomas, Yon and Clark, P.A.

10837301 South Bronough Street , Suite 200

10843Tallahassee, Florida 32301

10846Wellington Meffert, General Counsel

10850Florida Housing Finance Corporation

10854227 North Bronough Street, Suite 5000

10860Tallah assee, Florida 32301

10864Della Harrell, Corporation Clerk

10868Florida Housing Finance Corporation

10872227 North Bronough Street, Suite 5000

10878Tallahassee, Florida 32301

10881NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

10887All parties have the right to submit exceptions within 10 days

10898from the date of the Recommended Order. Any exceptions to this

10909Recommended Order should be filed with the agency that will

10919issue the final order in this case.

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Date
Proceedings
PDF:
Date: 06/13/2014
Proceedings: Agency Final Order
PDF:
Date: 06/13/2014
Proceedings: (Agency) Final Order filed.
PDF:
Date: 06/04/2014
Proceedings: Recommended Order
PDF:
Date: 06/04/2014
Proceedings: Recommended Order (hearing held April 22, 29 and 30, 2014). CASE CLOSED.
PDF:
Date: 06/04/2014
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/16/2014
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 05/16/2014
Proceedings: (Town Center's Proposed) Recommended Order filed.
PDF:
Date: 05/16/2014
Proceedings: (Petitioner's) Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 05/16/2014
Proceedings: Intervenor, HTG Miami-Dade 5, LLC's Proposed Recommended Order filed.
PDF:
Date: 05/16/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Proposed Recommended Order (filed in Case No. 14-001428BID).
PDF:
Date: 05/16/2014
Proceedings: Allapattah Trace's Proposed Recommended Order filed.
PDF:
Date: 05/16/2014
Proceedings: Pinnacle Rios' Notice of Submitting Proposed Recommended Order filed.
PDF:
Date: 05/14/2014
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/13/2014
Proceedings: Petitioner's/Intervenor's Unopposed Motion for Extension of Time to File Proposed Recommended Order filed.
PDF:
Date: 05/07/2014
Proceedings: (Intervenor's) Notice of Filing Certificate of Administering Oath filed.
Date: 05/05/2014
Proceedings: Transcript Volume I-II (not available for viewing) filed.
Date: 04/29/2014
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/29/2014
Proceedings: HTG Miami-Dade 5, LLC's Amended Exhibit List (filed in Case No. 14-001428BID).
PDF:
Date: 04/28/2014
Proceedings: Allapattah Trace Apartments, Ltd.'s Amended (Proposed) Exhibit List filed.
PDF:
Date: 04/28/2014
Proceedings: Petitioner APC Four Forty Four's Response to Respondents Motion in Limine (filed in Case No. 14-001428BID).
PDF:
Date: 04/25/2014
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/25/2014
Proceedings: Order of Severance (Case Nos. 14-1427BID, 14-1426BID, and 14-1425BID).
PDF:
Date: 04/24/2014
Proceedings: 2401 NW, LLC's Notice of Voluntary Dismissal filed.
Date: 04/22/2014
Proceedings: CASE STATUS: Hearing Partially Held; continued to April 29, 2014; 01:30 p.m.; Tallahassee, FL.
PDF:
Date: 04/22/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Cross Notice of Taking Deposition (of William Todd Fabbri filed in Case No. 14-001428BID).
PDF:
Date: 04/22/2014
Proceedings: Notice of Taking Deposition Duces Tecum (of William Todd Fabbri) filed.
PDF:
Date: 04/22/2014
Proceedings: Village Miami's Notice of Voluntary Dismissal (filed in Case No. 14-001426BID).
Date: 04/21/2014
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 04/21/2014
Proceedings: Town Center Phase Two, LLC's Response to Allapattah Trace Apartments Ltd's Second Request for Admissions filed.
PDF:
Date: 04/21/2014
Proceedings: Respondent's Motion in Limine filed.
PDF:
Date: 04/21/2014
Proceedings: Allapattah Trace Apartments, Ltd. Responses to Town Center Phase Two, LLC's First Request for Admissions filed.
PDF:
Date: 04/18/2014
Proceedings: Notice of Taking Deposition Duces Tecum (of Frank Lezcano) filed.
PDF:
Date: 04/18/2014
Proceedings: Order Granting Motion to Appear Telephonically.
PDF:
Date: 04/18/2014
Proceedings: Order Denying Motion to Consolidate.
PDF:
Date: 04/18/2014
Proceedings: Order Granting Extension of Time.
PDF:
Date: 04/18/2014
Proceedings: Pinnacle Rio's Motion to Appear Telephonically at Hearing filed.
PDF:
Date: 04/17/2014
Proceedings: Joint Motion for Extension of Time to File Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/17/2014
Proceedings: (Respondent's) Notice of Respondent's Response to Village Miami's First Set of Interrogatories and Request for Production filed.
PDF:
Date: 04/16/2014
Proceedings: Notice of Taking Deposition Duces Tecum (of Alberto Milo, Jr.) filed.
PDF:
Date: 04/16/2014
Proceedings: HTG Miami-Dade 5 LLC's Notice of Service of Responses to Village Miami and the Urban League's First Set of Interrogatories (filed in Case No. 14-001428BID).
PDF:
Date: 04/16/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Taking Deposition of Elizabeth Thorpe and Elizabeth ONeil (filed in Case No. 14-001428BID).
PDF:
Date: 04/16/2014
Proceedings: Order Denying 2401 NW`s Motion to Abate.
PDF:
Date: 04/16/2014
Proceedings: Allapattah's Notice of Service of Answers to First Set of Interrogatories from Town Center filed.
PDF:
Date: 04/16/2014
Proceedings: Allapattah's Notice of Service of Answers to First Set of Interrogatories from Village Miami and the Urban League filed.
PDF:
Date: 04/16/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Service of Sworn Responses to The Village Miami Phase 1, Ltd and The Urban League of Greater Miami's First Set of Interrogatories (filed in Case No. 14-001428BID).
PDF:
Date: 04/16/2014
Proceedings: Notice of Appearance (Brandice Dickson) filed.
PDF:
Date: 04/16/2014
Proceedings: Amended Notice of Taking Deposition to Preserve Testimony (of Jorge Cordoves, Douglas Pile, and Mark Jackson) filed.
Date: 04/15/2014
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/15/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Response to Intervenor HTG Miami-Dade 5, LLC's First Request for Admissions (filed in Case No. 14-001428BID).
PDF:
Date: 04/15/2014
Proceedings: Town Center Phase Two, LLC's Notice of Serving Response to Allapattah Trace Apartments, Ltd's Second Set of Interrogatories filed.
PDF:
Date: 04/14/2014
Proceedings: Allapattah Trace's Second Request for Admissions to Town Center Phase Two, LLC filed.
PDF:
Date: 04/14/2014
Proceedings: Village Miami and The Urban League's Amended Notice of Serving Unverified Responses to APC's First Set of Interrogatories filed.
PDF:
Date: 04/14/2014
Proceedings: Village Miami and The Urban League's Notice of Serving Unverified Responses to APC's First Set of Interrogatories filed.
PDF:
Date: 04/14/2014
Proceedings: Order Denying Motion to Dismiss Re: APC.
PDF:
Date: 04/14/2014
Proceedings: Order Denying Motion to Dismiss Re: 2401 NW.
PDF:
Date: 04/14/2014
Proceedings: HTG Miami-Dade 5, LLC's Notice of Service Responses to APC Four Forty Four, Ltd.'s First Set of Interrogatories (filed in Case No. 14-001428BID).
PDF:
Date: 04/14/2014
Proceedings: Order Denying Motion to Dismiss Re: Pinnacle Rio.
PDF:
Date: 04/14/2014
Proceedings: Order Denying Motion to Dismiss Petition of Village Miami.
PDF:
Date: 04/14/2014
Proceedings: Town Center Phase Two, LLC's First Request for Admissions to Allapattah Trace Apartments, Ltd filed.
PDF:
Date: 04/14/2014
Proceedings: Intervenor's Notice of Taking Deposition (of Amy Garmon) filed.
PDF:
Date: 04/14/2014
Proceedings: Order Denying Motion to Dismiss Re: Town Center.
PDF:
Date: 04/14/2014
Proceedings: Petitioner 2401 NW, LLC's Responses to Respondent Florida Housing Finance Corporation's First Request for Admissions filed.
PDF:
Date: 04/14/2014
Proceedings: Allapattah Trace's Response in Opposition to 2401's Motion to Consolidate filed.
PDF:
Date: 04/14/2014
Proceedings: Intervenor Allapattahs Notice of Service of Answers to First Set of Interrogatories from APC Four Forty Four filed.
PDF:
Date: 04/14/2014
Proceedings: Notice of Appearance (Susan Clark, filed in Case No. 14-001428BID).
PDF:
Date: 04/14/2014
Proceedings: Notice of Serving Town Center Phase Two, LLC's First Set of Interrogatories to Allapattah Trace Apartments, Ltd filed.
PDF:
Date: 04/11/2014
Proceedings: Village Miami and The Urban League's Notice of Serving First Set of Interrogatories to Allapattah filed.
PDF:
Date: 04/11/2014
Proceedings: Village Miami and The Urban League's Notice of Serving First Set of Interrogatories to APC Four Forty Four, Ltd filed.
PDF:
Date: 04/11/2014
Proceedings: Village Miami and The Urban League's Notice of Serving First Set of Interrogatories to HTG Miami-Dade 5, LLC filed.
PDF:
Date: 04/11/2014
Proceedings: Village Miami and The Urban League's First Request for Production to the Corporation filed.
PDF:
Date: 04/11/2014
Proceedings: Village Miami and The Urban League's Notice of Serving First Set of Interrogatories to the Corporation filed.
PDF:
Date: 04/11/2014
Proceedings: Amended Notice of Motion Hearing (motion hearing set for April 15, 2014; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 04/11/2014
Proceedings: Notice of Motion Hearing (motion hearing set for April 15, 2014; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 04/11/2014
Proceedings: Order Granting Extension of Time.
PDF:
Date: 04/11/2014
Proceedings: Order Denying 2401 NW, LLC`s Motion to File Reply.
PDF:
Date: 04/11/2014
Proceedings: Town Center Phase Two, LLC's Response to Allapattah Trace Apartments, Ltd's First Request for Admissions filed.
PDF:
Date: 04/11/2014
Proceedings: 2401 NW, LLC's Notice of Taking Depositions filed.
PDF:
Date: 04/11/2014
Proceedings: Town Center Phase Two, LLC's Notice of Serving Responses to Allapattah Trace Apartments, Ltd's First Set of Interrogatories filed.
PDF:
Date: 04/10/2014
Proceedings: 2401 NW, LLC's Motion to Consolidate filed.
PDF:
Date: 04/10/2014
Proceedings: Respondent's Notice of Service of Responses to 2401 NW, LLC's Second Set of Interrogatories filed.
PDF:
Date: 04/10/2014
Proceedings: Allapattah Trace's Response to 2401's Motion to File Reply filed.
PDF:
Date: 04/10/2014
Proceedings: HTG Miami-Dade 5, LLC's First Request for Admissions to APC Four Forty Four, Ltd filed.
PDF:
Date: 04/10/2014
Proceedings: Allapattah Trace's Response to Pinnacle Rio's Motion for Enlargement of Time filed.
PDF:
Date: 04/10/2014
Proceedings: Pinnacle Rio's Response in Opposition to Intervenor's Motion to Dismiss filed.
PDF:
Date: 04/10/2014
Proceedings: Petitioner Pinnacle Rio's Response to Intervenor's First Request for Admissions filed.
PDF:
Date: 04/10/2014
Proceedings: Pinnacle Rio's Motion for Enlargement of Time filed.
PDF:
Date: 04/10/2014
Proceedings: 2401 NW LLC's Motion for Leave to File a Reply to Allapattah Trace Apartments, Ltd.'s and Florida Housing Finance Corporation's Responses in Opposition to Motion to Abate filed.
PDF:
Date: 04/09/2014
Proceedings: Notice of Taking Deposition to Preserve Testimony (of Alberto Cordoves, Douglas Pile, and Mark Johnson) filed.
PDF:
Date: 04/09/2014
Proceedings: Florida Housing's Response to 2401 NW LTD's Motion to Abate and to Sever filed.
PDF:
Date: 04/09/2014
Proceedings: Order Granting ATA`s Motion to Strike Reply by 2401.
PDF:
Date: 04/09/2014
Proceedings: Allapattah Trace's Motion to Strike Reply by 2401 filed.
PDF:
Date: 04/09/2014
Proceedings: 2401 NWs Reply to Allapattah Traces Response in Opposition to Motion to Abate and Sever filed.
PDF:
Date: 04/09/2014
Proceedings: 2401 NW's Notice of Taking Deposition of Florida Housing Finance Corporation's Corporate Reprsentative(s) filed.
PDF:
Date: 04/09/2014
Proceedings: Intervenor, Allapattah's Notice of Service of Answers to First Set of Interrogatories from 2401 NW, LLC filed.
PDF:
Date: 04/08/2014
Proceedings: Notice of Appearance (Eduardo Lombard, filed in Case No. 14-001426BID).
PDF:
Date: 04/08/2014
Proceedings: Village Miami and the Urban League's Memorandum of Law Opposing Allapattah Trace's Motion to Dismiss and to Relinquish Jurisdiction (filed in Case No. 14-001426BID).
PDF:
Date: 04/08/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s First Request for Production of Documents to Respondent Florida Housing Finance Corporation (filed in Case No. 14-001428BID).
PDF:
Date: 04/08/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Service of Unsworn Responses to Allapattah Trace Apartments, Ltd.s First Set of Interrogatories (filed in Case No. 14-001428BID).
PDF:
Date: 04/08/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Response to Intervenor's First Request for Production (filed in Case No. 14-001428BID).
PDF:
Date: 04/08/2014
Proceedings: Order Granting Extension of Time.
PDF:
Date: 04/07/2014
Proceedings: 2401 NW LLC's Response to Allapattah Trace's Motion to Dismiss and to Relinquish Jurisdiction filed.
PDF:
Date: 04/07/2014
Proceedings: Village Miami's Agreed Motion for Enlargement of Time to Respond to Allapattah's Motion to Dismiss filed.
PDF:
Date: 04/07/2014
Proceedings: Intervenor Allapattah's Notice of Service of Second Set of Interrogatories to Town Center Phase Two, LLC filed.
PDF:
Date: 04/07/2014
Proceedings: Intervenor Allapattah's Second Request for Production to Town Center Phase Two, LLC filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Service of First Set of Interrogatories to Intervenor Allapattah Trace Apartments, Ltd (filed in Case No. 14-001428BID).
PDF:
Date: 04/07/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Service of First Set of Interrogatories to Intervenor HTG Miami-Dade 5, LLC (filed in Case No. 14-001428BID).
PDF:
Date: 04/07/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Notice of Service of First Set of Interrogatories to Petitioner The Village Miami Phase I, Ltd. and The Urban League of Greater Miami (filed in Case No. 14-001428BID).
PDF:
Date: 04/07/2014
Proceedings: Petitioner APC Four Forty Four, Ltd.'s Response to Intervenor's First Request for Admissions (filed in Case No. 14-001428BID).
PDF:
Date: 04/07/2014
Proceedings: Town Center's Response to Intervenor's Motion to Strike, Dismiss, or Relinquish Jurisdiction filed.
PDF:
Date: 04/07/2014
Proceedings: Respondent's Notice of Service of it's First Request for Admissions to 2401 NW, LLC filed.
PDF:
Date: 04/07/2014
Proceedings: Respondent's Notice of Response to APC Four Forty Four, Ltd.'s First Set of Interrogatories filed.
PDF:
Date: 04/07/2014
Proceedings: Respondent's Notice of Responses to 2401 NW, LLC's First Set of Interrogatories filed.
PDF:
Date: 04/07/2014
Proceedings: (Petitioner's) Notice of Voluntary Dismissal (filed in Case No. 14-001427BID).
PDF:
Date: 04/07/2014
Proceedings: Notice of Transfer.
PDF:
Date: 04/07/2014
Proceedings: Allapattah Trace's Response in Opposition to Motion to Abate and to Sever filed.
PDF:
Date: 04/07/2014
Proceedings: Notice of Appearance (Joseph Goldstein) filed.
PDF:
Date: 04/04/2014
Proceedings: Petitioner's Notice of Service of 2401 NW, LLC's Second Set of Interrogatories to Respondent Florida Housing Finance Corporation filed.
PDF:
Date: 04/04/2014
Proceedings: Petitioner's Notice of Service of 2401 NW ,LLC's First Set of Interrogatories to Intervenor Allapattah Trace Apartments, LTD filed.
PDF:
Date: 04/04/2014
Proceedings: 2401 NW's Motion to Abate, or in the Alternative, Motion to Sever and Abate it's Case filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattah's First Request for Production to Pinnacle Rio, LLC filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattah's Notice of Service of First Set of Interrogatories to Pinnacle Rio, LLC filed.
PDF:
Date: 04/04/2014
Proceedings: Allapattah Trace's First Request for Admissions to Town Center Phase Two, LLC filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattahs First Request for Production to Town Center Phase Two filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattah's Notice of Service of First Interrogatories to Town Center Phase Two, LLC filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattah's Notice of Service of First Interrogatories to HTG Miami-Dade 6 filed.
PDF:
Date: 04/04/2014
Proceedings: Intervenor Allapattah's First Request for Production to HTG Miami-Dade 6 filed.
PDF:
Date: 04/03/2014
Proceedings: Intervenor Allapattah's First Request for Production to APC Four Forty Four, Ltd. filed.
PDF:
Date: 04/03/2014
Proceedings: Intervenor Allapattah's Notice of Service of First Interrogatories to APC Four Forty Four, Ltd. filed.
PDF:
Date: 04/03/2014
Proceedings: Amended Notice of Hearing (hearing set for April 22, 2014; 9:30 a.m.; Tallahassee, FL; amended as to Dates Only).
Date: 04/03/2014
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/02/2014
Proceedings: APC's Response in Opposition to Motion of Allapattah Trace to Strike and Dismiss or, Alternatively to Relinquish Jurisdiction Against APC (filed in Case No. 14-001428BID).
PDF:
Date: 04/02/2014
Proceedings: Petitioner APC Four Forty Four, Ltd's Notice of Service of First Set of Interrogatories to Respondent Florida Housing Finance Corporation (filed in Case No. 14-001428BID).
PDF:
Date: 04/02/2014
Proceedings: 2401 NW's Notice of Filing Petition to Determine the Invalidity of Existing Rules filed.
PDF:
Date: 04/02/2014
Proceedings: 2401 NW's Response to Order to Show Cause filed.
PDF:
Date: 04/02/2014
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for April 3, 2014; 10:30 a.m.).
PDF:
Date: 04/01/2014
Proceedings: Allapattah Trace's First Request for Admissions to HTG Miami-Dade 6, LLC filed.
PDF:
Date: 04/01/2014
Proceedings: Allapattah Trace's First Request for Admissions to Pinnacle Rio, LLC filed.
PDF:
Date: 04/01/2014
Proceedings: Allapattah Trace's First Request for Admissions to APC Four Forty Four, Ltd. filed.
PDF:
Date: 04/01/2014
Proceedings: Notice of Appearance (Brittany Adams Long, filed in Case No. 14-001428BID).
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace's Motion to Strike and Dismiss, or Alternatively, to Relinquish Jurisdiction Against APC filed.
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace Apartments, Ltd.'s Motion to Dismiss and to Relinquish Jurisdiction Against 2401 NW, LLC filed.
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace's Motion to Strike and Dismiss or, Alternatively, to Relinquish Jurisdiction Against HTG Miami-Dade filed.
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace's Motion to Strike and Dismiss, or Alternatively, to Relinquish Jurisdiction Against Pinnacle Rio filed.
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace's Motion to Strike and Dismiss or, Alternatively, to Relinquish Jurisdiction Against Town Center filed.
PDF:
Date: 03/31/2014
Proceedings: Petitioner's Notice of Service of 2401 NW, LLC's First Set of Interrogatories to Respondent Florida Housing Finance Corporation filed.
PDF:
Date: 03/31/2014
Proceedings: Allapattah Trace's Motion to Dismiss and to Relinquish Jurisdiction Against Village Miami/Urban League filed.
PDF:
Date: 03/31/2014
Proceedings: Respondent's Response to Order to Show Cause (filed in Case No. 14-001425BID).
PDF:
Date: 03/31/2014
Proceedings: Order to Show Cause.
PDF:
Date: 03/31/2014
Proceedings: Village Miami's Motion for Continuance and Request for Case Management Conference filed.
PDF:
Date: 03/31/2014
Proceedings: Notice to All Bidders on RFA 2013-003 filed.
PDF:
Date: 03/28/2014
Proceedings: 2401 NW, LLC's Notice of Election to Proceed Under Section 120.57(1) and Request for a Status Conference filed.
PDF:
Date: 03/28/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/27/2014
Proceedings: Notice of Hearing (hearing set for April 23, 2014; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 03/27/2014
Proceedings: Order of Consolidation (DOAH Case Nos. 14-1398BID, 14-1399BID, 14-1400BID, 14-1425BID, 14-1426BID, 14-1427BID, 14-1428BID).
PDF:
Date: 03/25/2014
Proceedings: Notice of Appearance (Michael Donaldson).
PDF:
Date: 03/25/2014
Proceedings: Allapattah Trace's Notice of Appearance and Intervention (Michael Glazer).
PDF:
Date: 03/25/2014
Proceedings: Petition Requesting Informal Hearing and Grant of the Relief Requested filed.
PDF:
Date: 03/25/2014
Proceedings: Agency referral filed.

Case Information

Judge:
F. SCOTT BOYD
Date Filed:
03/25/2014
Date Assignment:
04/07/2014
Last Docket Entry:
06/13/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
BID
 

Counsels

Related Florida Statute(s) (6):