15-002394BID Clearlake Village, L.P. vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Thursday, June 25, 2015.


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Summary: Petitioner failed to carry its burden of showing that Florida Housing's decision to find its application ineligible for funding was clearly erroneous, arbitrary, capricious, contrary to statutes, rules or specifications, or contrary to competition.

1STATE OF FLORIDA

4FLORIDA HOUSING FINANCE CORPORATION

8CLEARLAKE VILLAGE, LP,

11Petitioner, DOAH Case No.: 15- 2394BID

17v. FHFC Case No.: 2015 -010BP

23FLORIDA HOUSING FINANCE CORPORATION,

27Respondent,

28and

29CLEARLAKE ISLES, LP,

32Intervenor.

33FINAL ORDER

35This cause came before the Board of Directors of the Florida Housing Finance

48Corporation ( "Board ") for consideration and final agency action on August 7, 2015.

62The matter for consideration before this Board is a Recommended Order pursuant to

75§ 120.57(1) and (3), Fla. Stat. (2014). After a review of the record and being

90otherwise fully advised in these proceedings, this Board finds:

991. On or before January 22, 2015, Petitioner and Intervenor submitted

110applications to Florida Housing seeking allocations for low- income tax credits

121pursuant to RFA 2014 -114. The Board announced its intention to fund certain

134projects on March 20, 2015.

139FILED WITH THE CLERK or THE FLORÌi,I -,

148HOUSING FINANCE CORPORATION

151_ mATL, 5

1542. Petitioner Clearlake Village, LP ( "Clearlake Village "), timely filed a

166challenge to proposed funding awards pursuant to §120.57(3), Fla. Stat. (2014).

177Clearlake Isles, LP ( "Clearlake Isles "), entered the case as an Intervenor in

191accordance with Fla. Admin. Code R. 28- 106.205(3). A formal hearing was

203conducted pursuant to § §120.569 and 120.57(3), Fla. Stat. (2014), before Linzie F.

216Bogan, Administrative Law Judge, at the Division of Administrative Hearings in

227Tallahassee, Florida, on May 27, 2015.

2333. The issue for determination was whether Respondent's intended

242decision to award low- income housing tax credits to Clearlake Isles, LP, was

255contrary to governing statutes, Florida Housing's rules, or the solicitation

265specifications. Following the hearing, Clearlake Village, Florida Housing, and

274Clearlake Isles each timely filed Proposed Recommended Orders.

2824. After a review of the record and the Proposed Recommended Orders.

294the Administrative Law Judge issued a Recommended Order on June 25, 2015,

306which found that Clearlake Village failed to demonstrate that Florida Housing's

317proposed scoring of its Application was clearly erroneous, contrary to competition,

328arbitrary or capricious, and recommended that Florida Housing Finance Corporation

338enter a Final Order consistent with its initial decision to award funding for the

352Clearlake Isles proposed development; and dismissing the formal written protest of

363Clearlake Village. A true and correct copy of the Recommended Order is attached

376hereto as "Exhibit A."

3805. On July 13, 2015, Clearlake Village filed "Petitioner's Exceptions to

391Recommended Order," challenging five Findings of Fact and five Conclusions of

402Law of the Recommended Order. Respondent Florida Housing filed its Response

413to Petitioner's Exceptions to Recommended Order on July 27, 2015. Intervenor

424Clearlake Isles did not file a separate response, but joined in Florida Housing's

437Response. By agreement of the parties, both filings were deemed timely.

448RULING ON EXCEPTIONS

4516. Exception l: Finding of Fact 31 is supported by competent substantial

463evidence in the record, specifically Ms. Garmon's testimony and Joint Exhibits 4,

4754A, and 4B. This Board cannot disregard the Administrative Law Judge's weighing

487and review of that evidence. Exception 1 is rejected.

4967. Exception 2: The exception does not address whether Finding of Fact

50832 is supported by competent substantial evidence in the record; it merely argues

521that the Administrative Law Judge "misunderstood the Petitioner's argument and the

532applicability of the ... term of the contract." To the extent Exception 2 addresses

546the Finding of Fact, as in Exception 1, there is competent substantial evidence in the

561record. Exception 2 involves the contract interpretation issue addressed in

571conclusion of Law 56, which is outside the substantive jurisdiction of this Board.

584Exception 2 is rejected.

5888. Exception 3: Finding of Fact 34 is supported by competent substantial

600evidence in the record; it is clear from Joint Exhibits 4, 4A, and 4B and testimony in

617the record that there was no written expression of seller's consent to the assignment

631in the record. This Board cannot disturb Finding of Fact 34. Exception 3 is rejected.

6469. Exception 4: Finding of Fact 36 is supported by competent substantial

658evidence in the record. Petitioner would have this Board reweigh the testimony in

671the record, which the Administrative Law Judge chose to disregard. This Board

683cannot reweigh the testimony. Exception 4 involves the contract interpretation issue

694addressed in Conclusion of Law 48, which is outside the substantive jurisdiction of

707this Board. Exception 4 is rejected.

71310. Exception 5: Finding of Fact 37 is supported by competent substantial

725evidence in the record, Ms. Garmon's testimony, thus this Board cannot disturb

737Finding of Fact 37. Exception 5 is rejected.

74511. Exception 6: Conclusion of Law 48 is supported by competent

756substantial evidence in the record, as noted in the discussion of Exception 1, above.

770Whether the use of "or assigns," in naming the Buyer acts as blanket consent to

785assign is contract interpretation issue which is outside the substantive jurisdiction of

797this Board. Exception 6 is rejected.

80312. Exception 7: Conclusion of Law 51 is supported by competent

814substantial evidence in the record, as noted above in the discussion of Exception 1.

828This Board cannot disturb it. Exception 7 also addresses the legal effect of the term

"843or assigns," and as noted above, is a contract interpretation issue which is outside

857the substantive jurisdiction of this Board. Exception 7 is rejected.

86713. Exception 8: Conclusion of Law 55 is supported by competent

878substantial evidence in the record, in Finding of Fact 31. This Board cannot disturb

892it. Exception 8 again addresses the legal effect of the term "or assigns," and as noted

908above, is a contract interpretation issue which is outside the substantive jurisdiction

920of this Board. Exception 8 is rejected.

92714. Exception 9: Conclusion of Law 56 is supported by competent

938substantial evidence in the record, in Finding of Fact 31. Exception 9 argues the

952effect of the "typewritten term controls," provision in the Contract. As noted above,

965this is a contract interpretation issue which is outside the substantive jurisdiction of

978this Board. This Board cannot disturb Conclusion of Law 56. Exception 9 is

991rejected.

99215. Exception 10: Conclusion of Law 57 is correct. A complete

1003demonstration of site control was a requirement contained in RFA 2014 -114.

1015Petitioner failed to show that Florida Housing added any further requirement to that

1028already contained in the RFA. Exception 10 is rejected.

103716. All exceptions are rejected, thus there is no reason to alter the

1050Recommendation in the Recommended Order.

1055RULING ON THE RECOMMENDED ORDER

106017. The Findings of Fact set out in the Recommended Order are supported

1073by competent substantial evidence.

107718. The Conclusions of Law of the Recommended Order are supported by

1089competent substantial evidence.

1092ORDER

1093In accordance with the foregoing, it is hereby ORDERED:

110219. The findings of fact of the Recommended Order are adopted as Florida

1115Housing's findings of fact and incorporated by reference as though fully set forth in

1129this Order.

113120. The Conclusions of Law of the Recommended Order are adopted as

1143Florida Housing's conclusions of law and incorporated by reference as though fully

1155set forth in this Order.

116021. The Recommendation of the Recommended Order is adopted.

1169IT IS HEREBY ORDERED that the Application of Clearlake Isles, LP, No.

1181201 -073C, is granted its requested funding, subject to credit underwriting; and the

1194formal written protest of Clearlake Village, LP, is hereby DISMISSED.

1204DONE and ORDERED this 7th day of August, 2015.

1213FLORIDA HOUSING FINANCE

1216CORPORATION

1217Tallahassee 02

1219Florida

12204/CF CORY°

1222Copies to:

1224Hugh R. Brown

1227General Counsel

1229Florida Housing Finance Corporation

1233227 North Bronough Street, Suite 5000

1239Tallahassee, FL 32301

1242Ken Reecy, Director of Multifamily Housing Programs

1249Florida Housing Finance Corporation

1253227 North Bronough Street, Suite 5000

1259Tallahassee, FL 32301

1262M. Christopher Bryant, Esq.

1266Oertel Fernandez Bryant & Atkinson, PA

1272P.O. Box 1110

1275Tallahassee, FL 32301

1278Michael P. Donaldson, Esq.

1282Carlton Fields Jorden Burt, PA

1287215 South Monroe Street, Suite 500

1293Tallahassee, FL 32301

1296NOTICE OF RIGHT TO JUDICIAL REVIEW

1302A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER

1312IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,

1321FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY

1328THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH

1335PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A

1344NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE FLORIDA

1354HOUSING FINANCE CORPORATION, 227 NORTH BRONOUGH

1360STREET, SUITE 5000, TALLAHASSEE, FLORIDA 32301 -1329, AND A

1369SECOND COPY, ACCOMPANIED BY THE FILING FEES PRESCRIBED

1377BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT,

1387300 MARTIN LUTHER KING, JR., BLVD., TALLAHASSEE, FLORIDA

139532399 -1850, OR IN THE DISTRICT COURT OF APPEAL IN THE

1406APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE

1414OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF

1424RENDITION OF THE ORDER TO BE REVIEWED.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/17/2015
Proceedings: Agency Final Order
PDF:
Date: 08/17/2015
Proceedings: (Agency) Final Order filed.
PDF:
Date: 07/28/2015
Proceedings: Response to Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 07/02/2015
Proceedings: Transmittal letter from Claudia Llado forwarding Joint Exhibits to Respondent.
PDF:
Date: 06/25/2015
Proceedings: Recommended Order
PDF:
Date: 06/25/2015
Proceedings: Recommended Order (hearing held May 27, 2015). CASE CLOSED.
PDF:
Date: 06/25/2015
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/15/2015
Proceedings: (Intervenor's Proposed) Recommended Order filed.
PDF:
Date: 06/15/2015
Proceedings: (Intervenor's) Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 06/15/2015
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 06/15/2015
Proceedings: Proposed Recommended Order of Petitioner Clearlake Village, L.P. filed.
Date: 06/05/2015
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 05/27/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/22/2015
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 05/21/2015
Proceedings: Respondent Florida Housing's Motion In Limine filed.
PDF:
Date: 05/14/2015
Proceedings: Petitioner's Notice of Taking Depositions Duces Tecum (of Amy Garmon and Elizabeth O'Neill) filed.
PDF:
Date: 05/12/2015
Proceedings: Notice of Serving Respondent's Response to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 05/12/2015
Proceedings: Respondent's Response to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 05/11/2015
Proceedings: Clearlake Isles, L.P. Response to Clearlake Village, L.P.'s First Request for Admissions filed.
PDF:
Date: 05/11/2015
Proceedings: Clearlake Isles, L.P. Notice of Serving Responses to Petitioner Clearlake Village, L.P.'s First Set of Interrogatories filed.
PDF:
Date: 05/04/2015
Proceedings: Clearlake Village, L.P.'s Notice of Service of First Set of Interrogatories to Clearlake Isles, L.P. filed.
PDF:
Date: 05/04/2015
Proceedings: Clearlake Village, L.P.'s Notice of Service of First Set of Interrogatories to Florida Housing Finance Corporation filed.
PDF:
Date: 05/04/2015
Proceedings: Clearlake Village's First Requests for Admission to Clearlake Isles, L.P. filed.
PDF:
Date: 05/04/2015
Proceedings: Clearlake Village's First Requests for Admission to Florida Housing Finance Corporation filed.
PDF:
Date: 05/04/2015
Proceedings: Notice of Hearing (hearing set for May 27, 2015; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 05/04/2015
Proceedings: Response to Scheduling Order filed.
PDF:
Date: 05/01/2015
Proceedings: Scheduling Order.
PDF:
Date: 04/30/2015
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 04/30/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/28/2015
Proceedings: Notice of Appearance/Motion to Intervene (Michael P. Donaldson/Clearlake Isles, L.P.) filed.
PDF:
Date: 04/28/2015
Proceedings: Notice to All Applicants on RFA 2014-114 filed.
PDF:
Date: 04/28/2015
Proceedings: Notice of Intent to Protest filed.
PDF:
Date: 04/28/2015
Proceedings: Formal Written Protest and Petition for Formal Administrative Proceedings filed
PDF:
Date: 04/28/2015
Proceedings: Agency referral letter filed.

Case Information

Judge:
LINZIE F. BOGAN
Date Filed:
04/28/2015
Date Assignment:
04/29/2015
Last Docket Entry:
08/17/2015
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related Florida Statute(s) (7):