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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARLAKE VILLAGE, L.P.,

Petitioner,

vs. Case No. 15 - 2394BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

CLEARLAKE ISLES, L.P.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Ta llahassee, Florida, on May 27, 2015 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

2060 Delta Way

Tallahassee, Florida 32302 - 1110

For Respondent: Wellington H. Meffert, II, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301

For Intervenor: Michael P. Donal dson, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Box 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

W hether Respon dent Florida Housing Finance CorporationÓs

intended decision to find the application of Clearlake Village,

L . P . , ineligible for funding is contrary to RespondentÓs

governing statutes, rules, policies, or the solicitation

specifications.

PRELIMINARY STATEME NT

On November 21, 201 4 , Florida Housing Finance Corporation

( Respondent or Florida Housing) issued a Request for Applications

2014 - 114 (RFA). The RFA solicited applications to compete for

federal low - income housing tax credit funding (tax credits or HC)

for affordable housing developments in small and medium counties

in Florida . Eighty - t wo applications were filed in response to

the RFA, including applications by Petitioner Clearlake Village,

L . P . (Petitioner), and Intervenor Clearlake Isles, L . P .

(Interv enor).

On March 20, 2015, Florida Housing posted notice of its

intended decision to award funding to 11 applicants, including

Intervenor. Petitioner Ós application was among 13 applications

that Florida Housing found ineligible for funding. Petitioner

ti mely filed a N otice of I ntent to P rotest and a F ormal W ritten

P rotest pursuant to section 120.57(3), Florida Statutes (2014). 1/

Petitioner Ós written protest raise s one issue: whether Florida

Housing incorrectly found that Petitioner failed to establish

co ntrol of the development site as required by the RFA. If

Petitioner Ós protest is successful, it w ill be elevated into the

funding range because Petitioner and Intervenor had identical

scores, and Petitioner Ós lottery number is lower than

I ntervenorÓs lott ery number .

Following an unsuccessful resolution meeting pursuant to

section 120.57(3)(d)1., Florida Housing referred PetitionerÓs

protest to the Division of Administrative Hearings (DOAH) , where

a final hearing was held on May 27, 2015.

O n May 22, 2015, the parties filed a Joint Prehearing

Stipulation in which they set forth stipulations as to matters of

fact and law. The parties' stipulations have been incorporated

herein , to the extent relevant.

At the hearing, Joint Exhibits 1 through 4, 4 - A, and 4 - B

were admitted into evidence , as were: PetitionerÓs E xhibits 1,

2, and 5 through 10 ; and IntervenorÓs Exhibit 1 . Florida Housing

did not offer any exhibits.

Petitioner presented the testimony of Ms. Amy B. Garmon,

Florida Housing's m ulti - family p rogram s m anager , and Mr. Kevin

Young, principal of DPKY, Development Company, LLC. Intervenor

presented the testimony of Ms. Elena Adames, v ice - president of

Royal American Development , which serves as IntervenorÓs general

partner. Florida Housing presented no witnesses.

A T ranscript of the final hearing was filed with DOAH on

June 5, 2015. The parties filed Proposed Recommended Orders ,

which have been considered by the undersigned.

FINDING S OF FACT

1 . Florida Housing is a public corporation created pursuant

to section 420.504, Florida Statutes. Its purpose is to promote

the public welfare by administering the governmental function of

financing affordable housing in Florida. Pursuant to section

420.5099, Florida Statutes, Florida Housing is designated as the

housing credit agency for Florida for purpose s of allocating

low - income housing tax credits.

2 . The low - income housing tax credit program incentivizes

the private market to invest in affordable rental housing. Tax

credits are competitively awarded to housing developers in

Florida for qualified rental housing projects. Developers then

sell these credits to investors to raise capital (or equity) for

their projects, which reduces the debt that the developer would

otherwise have to borrow.

3 . When sol d to investors, the tax credits provide equity

that reduces the debt associated with the project. With lower

debt, the affordable housing tax credit property can (and must)

offer lower, more affordable rent. As consideration for receipt

of tax credits, d evelopers covenant to keep rent at affordable

levels for periods of 30 to 50 years. The demand for tax credits

provided by the federal government far exceeds the supply.

A. The Competitive Application Process

4 . Florida Housing is authorized to allo cate tax credits

and other funding by means of request s for proposal s or other

competitive solicitation s allowed by section 420.507(48), Florida

Statutes. Florida Housing adopted Florida Administrative Code

Chapter 67 - 60 to govern the competitive solicita tion process for

several different programs, including the one for tax credits.

5 . Chapter 67 - 60 was adopted on August 20, 2013, replacing

prior procedures used by Florida Housing for allocating tax

credits, and provid es that the bid protest provisions o f section

120.57(3) govern its process for allocating tax credits.

6 . Applicants request in their applications a specific

dollar amount of housing tax credits to be given to the a pplicant

each year for a period of 10 years. The amount of housing tax

cre dits an applicant may request is based on several factors,

including , but not limited to , a certain percentage of the

projected t otal d evelopment c ost; a maximum funding amount per

development based on the county in which the development will be

located; a nd whether the development is located within certain

designated areas of some counties.

7 . On November 21, 2014, Florida Housing issued the RFA at

issue in the instant dispute. According to the RFA, Florida

Housing expect s to award an estimated $12,914, 730 of h ousing tax

c redits which are available for award to proposed d evelopments

located in m edium c ounties , and up to an estimated $1,513,170 of

h ousing tax c redits available for award to proposed d evelopments

located in s mall c ounties.

8 . On January 21, 2015, Petitioner, in response to the RFA,

submitted an a pplication seeking $1,418,185 in h ousing tax

c redits to finance the construction of an 80 - unit residential

rental development in Brevard County , Florida (a m edium c ounty),

to be known as Clearlak e Village. Though Petitioner has

submitted other applications for housing tax credits, t his is the

first time Petitioner has done so in Florida. PetitionerÓs

application was assigned lottery number 4 by Florida Housing.

9 . On January 20, 2015, Interven or, in response to the RFA,

submitted an a pplication requesting $1,475,000 in h ousing tax

c redits to support the construction on an 80 - unit affordable

housing development also in Brevard County.

10. As part of the RFA process, Florida Housing announced

its intention to award funding to nine medium county

developments, including IntervenorÓs application number 2015 - 073C

for Brevard County.

B. Notice

11. On March 20, 2015, Petitioner received notice that

Florida Housing intended to designate Petitioner Ós application

ineligible for funding and that other applicat ions were selected

for funding, subject to satisfactory completion of the credit

underwriting process.

12. In response to RespondentÓs notice of intended action,

Petitioner timely filed a Notic e of Protest, and PetitionerÓs

Formal Written Protest and Petition for Formal Administrative

Proceedings.

C. RFA 2014 - 114 Ranking and Selection Process

13 . Florida Housing received 82 a pplications seeking

funding in response to the RFA, including 76 f or m edium c ounty

developments. Developments were proposed in 21 different m edium

c ounties throughout the State , including four in Brevard County.

The process employed by Florida Housing for this RFA makes it

virtually impossible for more than one applica tion to be selected

for funding in any given m edium c ounty. Because of the amount of

funding available for m edium c ounties, many m edium c ounties will

not receive an award of h ousing tax c redit funding in this RFA ,

due to the typical amount of an applicant Ós h ousing tax c redit

request (generally $1.0 to $1.5 million), and the number of

m edium c ounties for which developments are proposed . Florida

Housing intends to award funding to nine developments in nine

different m edium c ounties.

14 . The RFA requires that a pplicants file an online

electronic a pplication with d evelopment c ost p ro f orma. Each

a pplicant is also required to submit several hard copies of its

a pplication and a ttachments. One of the applications is

designated by the a pplicant as the Ð o rigin al,Ñ which must contain

an original signature in blue ink; and two others it designates

as Ð c opies,Ñ which are used by Florida Housing staff to score the

a pplications. Florida Housing scans the a pplication a ttachments

from the o riginal and posts the onlin e a pplication with the

scanned attachments on its web page.

15 . The applications were received, processed, deemed

eligible or ineligible, scored, and ranked, pursuant to the terms

of the RFA , Florida Administrative Code Rule Chapters 67 - 48 and

67 - 60 , and applicable federal regulations. Applications are

considered for funding only if they are deemed Ðeligible,Ñ which

means that the a pplication complies with Florida HousingÓs

various content requirements. Of the 82 a pplications submitted

to Florida Housin g for the RFA, 69 were found Ðeligible,Ñ and 13

were found ineligible. PetitionerÓs application was found

ineligible . A five - page spreadsheet created by Florida Housing,

entitled ÐRFA 2014 - 114 Î All Applications,Ñ which identif ies all

eligible and inelig ible applications , was provided to each

applicant.

16 . The first consideration in sorting eligible

applications for funding is a pplication scores. Applicants can

achieve a maximum score of 23 points. Eighteen of those 23

points are attributable to Ðpro ximityÑ scores based on the

distance of the proposed development from services needed by

tenants and the remaining five points are attributable to l ocal

g overnment c ontributions. All 69 eligible a pplications received

the maximum score of 23 points. Petit ioner Ós application was not

fully scored , because it was deemed ineligible . If Petitioner Ós

application had been scored , rather than being found ineligible,

it would have received a score of 23.

17 . Many applicants achieve tie scores, and in anticipatio n

of that occurrence Florida Housing designed the RFA and rules to

incorporate a series of Ðtie breakers,Ñ the last of which is

randomly assigned lottery numbers. Lottery numbers have

historically played a significant role in the outcome of Florida

Housin gÓ s funding cycles, and lottery numbers were determinative

of funding selections in th e current RFA.

18 . F lorida Housing employs a Ð f unding t estÑ to be used in

the selection of m edium c ounty applications for funding in this

RFA. The Ð f unding t estÑ requi res that the amount of tax credits

remaining (unawarded) when a particular m edium c ounty application

is being considered for selection must be enough to fully fund

that applicantÓs request amount, and partial funding will not be

given.

19 . The RFA also s pecifies a s orting o rder for funding

selection, with applications first arranged from highest score to

lowest. Applicants with tie scores are separated based on

criteri a not relevant to resolving the instant protest.

20. Suffice to say that Petitioner Ós application qualified

for each funding preference and it had a better lottery number

tha n Intervenor .

C. County Award Tally

21. In selecting among eligible applicants for funding,

Florida Housing also applies a ÐCounty Award Tally.Ñ The County

Award Tally is designed to prevent a disproportionate

concentration of funded developments in any one county.

Generally, before a second application can be funded in any given

county, all other counties that are represented by an eligible

applicant must receive an award of funding. As there were

eligible m edium c ounty applications submitted from 21 differen t

counties for the RFA, there cannot be more than one applicant

funded from any given m edium county.

22 . The nine m edium c ounty applicants selected for fun ding

had lottery numbers 1, 2, 6, 7, 9, 20, 26, 27 , and 28. The

applicant with lottery number 6 (Intervenor) , is from Brevard

County. If Petitioner is deemed eligible, it would be selected

for funding because it has a lower lottery number (4) than

Interv enor and would displace Intervenor as the only project

funded in Brevard County.

D. Basis for Petitioner Ós I neligibility

23 . Florida Housing reviewed PetitionerÓs application and

determined that it was ineligible as it failed to meet the RFA

requiremen t that applicants must demonstrate control of the site

upon which the development is to be constructed. Florida Housing

rejected PetitionerÓs site control documentation .

24 . Site control is an important element of an

a pplication ÎÎ the Ðmeat and potatoes of the application.Ñ Proof

that the a pplicant has control of the development site is a

matter of Ðdo or die if you miss a document.Ñ The RFA has a

general requirement that each application be complete, and must

include all applicable documentation.

25 . Site control can be established through a deed, a

long - term lease, or a contract for purchase and sale. In each

case, the entity with control of the site must be the applicant

entity. If the purchaser under a contract for purchase and sale

is not the a pplicant, then the application must contain one or

more assignments that give the applicant all rights and remedies

of the purchaser.

2 6 . Section 4.A.7 of the RFA, at page 23, lists the

requirements for s ite c ontrol. The instructions provide, in

releva nt part:

(1) Site Control:

The Applicant must demonstrate site control

by providing, as Attachment 7 to Exhibit A,

the documentation required in Items a., b.,

and/or c., as indicated below.

a. Eligible Contract - For purposes of the

RFA, an eligible con tract is one that [ : ] has

a term that does not expire before a date

that is six (6) months after the Application

Deadline or that contains extension options

exercisable by the purchaser and conditioned

solely upon payment of additional monies

which, if exer cised, would extend the term to

a date that is not earlier than six (6)

months after the Application Deadline;

specifically states that the buyerÓs remedy

for default on the part of the seller

includes or is specific performance; and the

buyer MUST be the Applicant unless an

assignment of the eligible contract which

assigns all of the buyer's rights, title and

interests in the eligible contract to the

Applicant, is provided.

2 7 . As an overall submittal requirement , the RFA requires

that each application be complete and include all Ðapplicable

documentation. Ñ The RFA process does not provide an opportunity

for applicants to cure errors or omissions discovered after

submission of an application to Florida Housing.

28 . Petitioner Ós application sought to e stablish site

control through a ttachment 13 to its application, which include s,

among other things, a v acant l and c ontract , and an assignment and

a ssumpt ion a greement. The vacant land contract pertains to the

land that Petitioner intends to use for the si te identified in

its application.

29. T he v acant l and c ontract was prepared using a Florida

Association of Realtors form contract. Paragraph 12 of the

vacant land contract contains boilerplate language which reads as

follows: ÐASSIGNABILITY; PERSONS B OUND: Buyer may not assign

this Contract without SellerÓs written consent.Ñ According to

Petitioner, the word ÐnotÑ was struckthrough in the following

manner, to wit: no t .

30. Amy Garmon, Florida HousingÓs m ulti - family p rograms

m anager, scored the sit e control element of all 82 a pplications

filed in response to the RFA . Ms. Garmon has scored site control

app lications for nine to ten years, and is very familiar with the

Florida Association of RealtorsÓ form contract, having scored

hundreds of contracts submitted on that form.

31. Ms. Garmon reviewed paragraph 12 of the vacant land

contract submitted by Petitioner and concluded that the language

set forth therein does not allow for an assignment of the

contract without written consent from the seller. Ms. Garmon

reached her conclusion because in her opinion, the strikethrough

of the word ÐnotÑ in paragraph 12, although the word itself

appears somewhat darker and not as clear as some of the other

words in the paragraph, is not sufficiently obvious so as to

alert a reader to the presence of the strikethrough. Upon review

of paragraph 12, the undersigned agrees with Ms. Garmon, and

concludes that the strikethrough of the word ÐnotÑ is not

sufficiently observable so as to alert a reviewer t o the presence

o f the strikethrough.

32. Given th e finding s in paragraph 31, the provision of

the vacant land contract which provides that Ð[h]andwritten or

typewritten terms inserted in or attached to th[e] contract

prevail over preprinted termsÑ is not triggered bec ause the

purported strikethrough of the word ÐnotÑ in paragraph 12 of the

contract, given its ambiguity, does not rise to the level of

constituting a Ðhandwritten or typewrittenÑ modification of a

preprinted contractual term. Additionally, the finding in

paragraph 31 also means that Petitioner, in order to demonstrate

site control, must prove that the seller gave written consent to

DPKY Development CompanyÓs assignment of its interest in the

vacant land contract to Petitioner.

33. Petitioner also submitt ed with its application an

assignment and a ssumpt ion a greement which relates to paragraph 12

of the vacant land contract. The assignment and assumption

agreement provides that DPKY Development Company, LLC, is

assigning to Petitioner its interest in the v acant land contract

it has with William T. Taylor.

34. The vacant land contract provides that Ð William T.

Taylor, in his capacity as trustee of the Hidden Creek Land Trust

Agreement dated January 15, 2004 , Ñ is the ÐsellerÑ of the land

and ÐDPKY Developm ent Company, LLC, or assignsÑ is the ÐbuyerÑ of

land. While the a ssignment and a ssumption a greement lists t he

name of the s eller, it does not in clude a signature line for the

s eller or any other acknowledgement by the seller expressing

consent to the assi gnment . Petitioner does not dispute that the

assignment and assumption agreement is deficient in this regard.

35. Turning to the vacant land contract, Petitioner

contends that the first page of the vacant land contract

identifies the buyer as ÐDPKY De velopment Company, LLC , or

assigns , Ñ and because the seller initialed the bottom of the

first page of the vacant land contract this means that Respondent

should have reasonably known that the presence of sellerÓs

initials means that the seller is consentin g to the assignment of

DPKY Development CompanyÓs interest in the property. The portion

of page one of the vacant land contract initialed by the seller

provides that ÐBuyer (____) and Seller (____) acknowledge receipt

of a copy of this page, which is page 1 of 7.Ñ

36. Contrary to PetitionerÓs assertion, the introductory

provision of the vacant land contract that identifies the ÐbuyerÑ

as Ð DPKY Development Company, LLC , or assigns,Ñ cannot be read in

isolation when there is another provision in the contra ct which

specifically addresses the issue of assignability, to wit:

Ð[b]uyer may not assign th[e] contract without [s]ellers written

approval.Ñ The introductory pr ovision of the vacant land

contract relied upon by Petitioner may have conveyed a stronger

expression of the sellerÓs purported intent to consent to an

assignment if Petitioner removed from paragraph 12 of the vacant

land contract any reference to assignability. Because Petitioner

failed to do so, the fact that the seller acknowledged that it

r eceived a copy of the page of the contract identifying the buyer

as ÐDPKY Development Company, LLC , or assignsÑ is not sufficient,

in itself, to establish that the seller consented to DPKY

Development CompanyÓs assignment of its interest in the contract

to Petitioner. 2/

37 . Ms. Garmon, a fter determining that the required consent

of the s eller to the assignment was not included in the original

copy of PetitionerÓs application , reviewed each of the other

copies of PetitionerÓs application in RespondentÓs po ssession.

Ms. GarmonÓs review of the other copies of PetitionerÓs

application confirmed that the s ellerÓs written consent to

assignment was not a part of PetitionerÓs a pplication. The

evidence supports the conclusion s reached by Ms. Garmon and

Florida Ho using.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction to hear this protest and to issue a recommended

order. §§ 120.569 and 120.57, Fla. Stat.

39 . This is a de novo proceeding to determine whether

Florida HousingÓs pr oposed decision to find PetitionerÓs

a pplication not eligible for funding is contrary to Florida

HousingÓs governing statutes, rules, or policies or to the RFA

specifications. § 120.57(3)(f), Fla. Stat. Although this is a

de novo proceeding, DOAH does no t substitute its judgment for

that of Florida Housing . Instead, DOAH engages in a form of

Ðinter - agency review,Ñ the object of which is to e valuate the

action taken by Florida Housing . State Contracting & EngÓg Corp.

v. DepÓt of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

40 . Petitioner ha s the burden of proof. Petitioner must

establish that Florida Housing Ós proposed action is either: (1)

contrary to the agencyÓs governing statutes, (2) contrary to the

agencyÓs rules or policies, or (3) contra ry to the RFA

specifications. § 120.57(3)(f), Fla. Stat.

41 . To prevail, Petitioner must prove that the agencyÓs

proposed action is : (1) clearly erroneous; (2) contrary to

competition; or (3) arbitrary or capricious (that is, an abuse of

discretion). R.N. Expertise, Inc. v. Miami - Dade Cnty. Sch. Bd. ,

Case No. 01 - 2663BID (Fla. DOAH Feb. 4, 2002; Sch. Bd. Miami - Dade

Mar. 20, 2002). Petitioner must establish one of the above by a

preponderance of the evidence. Id.

42 . Agency action will be found to be clearly erroneous if

it is without rational support and, consequently, the

Administrative Law Judge has a Ðdefinite and firm conviction that

a mistake has been committed.Ñ United States v. U.S. Gypsum Co. ,

333 U.S. 364, 395 (1948); see also Pershing In dus., Inc. v. DepÓt

of Banking & Fin. , 591 So. 2d 991, 993 (Fla. 1st DCA 1991).

Agency action may also be found to be clearly erroneous if the

agencyÓs interpretation of the applicable law conflicts with the

lawÓs plain meaning and intent. Colbert v. Dep Ót of Health , 890

So. 2d 1165, 1166 (Fla. 1st DCA 2004).

43. An act is contrary to competition if it (1) creates the

appearance of an opportunity for favoritism; (2) erodes public

confidence that contracts are awarded equitably and economically;

(3) caus es the procurement process to be genuinely unfair or

unreasonably exclusive; or (4) is unethical, dishonest, illegal,

or fraudulent. Syslogic Tech. Servs., Inc. v. S. Fla. Water

Mgmt. Dist. , Case No. 01 - 4385BID (Fla. DOAH Jan. 18, 2002),

modified in part , Case No. 2002 - 051 (Fla. SFWMD Mar. 6, 2002).

44. An arbitrary decision is one not supported by facts or

logic or one that is despotic. Agrico Chem. Co. v. State DepÓt

of Envtl. Reg. , 386 So. 2d 759, 763 (Fla. 1st DCA 1978). To act

capriciously is to a ct without thought or reason or to act

irrationally. Id. If agency action is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravo Basic Mat er ials Co. v. DepÓt of Transp. , 602

So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

45 . The issue in this proceeding is limited to the legal

interpretation of whether Petitioner has satisfied the RFA

requirements by providing acceptable s ite c ontrol documentation

and whether Florida HousingÓs decision that it did not is clearly

erroneous as not being consistent with the RF A specifications,

controlling law, or Florida HousingÓs rules.

46 . The RFA , at s ection t hree , requires a complete

a pplication which consists of the ÐApplication with Development

Cost Pro Forma found at Exhibit A of the RFA, the Applicant

Certification and Acknowledgment Form and other applicable

Verification Forms found at Exhibit B of the RFA, as well as all

other applicable documentationÑ to be provided by the a pplicant,

as outlined in s ection f our of the RFA.

47 . Additionally , r ule 67 - 60.006(1) provides that Ðthe

failure of an Applicant to supply required information in

connection with any Competitive Solicitation pursuant to this

rule chap ter shall be grounds for a determination of non -

responsiveness.Ñ This language is consistent with s ection

287.012, Florida Statutes, which indicates a responsive bid must

Ðconform in all material respects to the solicitation.Ñ The

burden is thus on the a pplicant to provide a complete and

responsive response to the RFA.

48. In the instant case, Florida Housing concluded that

Petitioner failed to provide appropriate documentation to

demonstrate s ite c ontrol. This decision was based on a review of

the v a cant l and c ontract that Petitioner itself submitted in its

a pplication. Ms. Garmon read the v acant l and c ontract to say

that the buyer may ÐnotÑ assign the c ontract without s ellerÓs

written approval. Because no written approval was provided by

the s elle r, Ms. Garmon considered the s ite c ontrol documents to

be incomplete. Petitioner argues that the ÐnotÑ has actually

been struckthrough to reflect the p artiesÓ intent that written

approval of the s eller is not necessary. The fact that paragraph

12 of the vacant land contract fails to clearly express an intent

to strikethrough the word ÐnotÑ makes Ms. GarmonÓs reading of the

contract reasonable.

49 . Again, the burden is on the a pplicant to provide a n

a pplication that satisfies all RFA requirements. It wa s

incumbent on Petitioner to review the documentation submitted to

Florida Housing before submitting its a pplication to ensure that

all document s conveyed what Petitioner intended for them to

convey .

50 . The burden is not on Ms. Garmon , or any other Flor ida

Housing staff member , to guess the intent of the p arties to the

v acant l and c ontract . To place such a burden on Florida Housing

staff is unreasonable.

51 . Petitioner also argues that the designation of the

b uyer as ÐDPKY Development Company, LLC, or assignsÑ in the

introduct ory paragraph of the v acant l and c ontract somehow

constitutes a blanket recognition that the p arties intended to

assign the co ntract. While this may be true, p aragraph 12 of the

c ontract still requires that the seller must by mea ns separate

and apart from the introduct ory paragraph consent to any

assignment of the contract . There is no evidence indicating that

the s eller actually consented to any such assignment.

52. In Florida, an attempt to assign a contract or lease

without a sellerÓs or lessorÓs consent , where same is required as

a term of contract , cannot convey the assignorÓs interest. E.g. ,

Fin. Bus. Servs., Inc., v. Schmitt , 272 So. 2d 536 (Fla. 4th DCA

1973); Revlon Grp., Inc. v. LJS Realty, Inc. , 579 So. 2d 365

(Fla. 4th DCA 1991)(lease was breached when assigned without the

required consent of the lessor, provided consent was not

unreasonably withheld) ; Tallahassee Mall, Inc. v. Rogers , 352 So.

2d 1272 (Fla. 1st DCA 1977).

53. Florida Administrative Code Rule 67 - 60. 008 provides

that Ð[t] he Corporation may waive Minor Irregularities in an

otherwise valid Application [and] [m] istakes clearly evident to

the Corporation on the face of the Application, such as

computation and typographical errors, may be corrected by the

Corporation; however, the Corporation shall have no duty or

obligation to correct any such mistakes. Ñ

54. The mistake committed by Petitioner in the instant case

cannot be considered a Ðminor irregularityÑ for several reasons.

First, PetitionerÓs fail ure to clearly strikethrough the word

ÐnotÑ in the vacant land contract is not a mistake that should

have been or was clearly evident to Florida Housing. Second , and

perhaps more importantly, the demonstration of s ite c ontrol is a

mandatory element of the RFA that cannot be waived. See Am.

Lighting and Signalization v. Dep Ó t of Transp. , DOAH Case No. 10 -

7669BID (Fla. D OAH , Dec. 1, 2010 ; Fla. DOT Dec. 30, 2010) ;

Robinson Elec. Co. v. Dade County , 417 So. 2d 1032, 1034 (Fla. 3d

DCA 1982).

55 . Florida Hous ing reviewed the v acant l and c ontract and

reasonably concluded that the document failed to provid e

acceptable evidence of site control. Ms. Garmon, the reviewer of

the site control documents for the RFA, has approximately a

decadeÓs experience in reviewin g such documents, and correctly

observed that the form contract did not clearly establish DPKYÓs

authority to assign its interest in the vacant land contract to

Petitioner, absent written consent of the s eller .

5 6 . Petitioner also points out that section 11, which

provides that ÐHandwritten of typewritten terms inserted in or

attached to this Contract prevail over preprinted terms.Ñ This

provision only applies where the handwritten or typewritten term

is evident and clear. As previously noted, the purpo rted

strikethrough of the word ÐnotÑ in paragraph 12 of the vacant

land contract is neither evident n or clear.

5 7 . Based on the foregoing, Petitioner has failed to carry

its burden of showing that Florida HousingÓs decision to find its

a pplication inelig ible for funding was clearly erroneous;

arbitrary; capricious; contrary to the governing statutes, rules

or RFA specifications; or contrary to competition.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

recommended that Petiti oner Ó s protest be dismissed.

DONE AND ENTERED this 25th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June , 2015 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2014,

unless otherwise indicated.

2/ The only evidence regarding assignability other than that

contained on the face of the Vacant Land Contract itself is the

testimony of Mr. Young that the Buyer entity, DPKY, understood

the contract was freely assignable without SellerÓs consent.

Mr. YoungÓs testimony addresses only the intent of the b uyer, and

not the intent of, or consent by, the s eller.

COPIES FURNISHED:

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

2060 Delta Way

Tallahassee, Florida 32302 - 1110

(eServed)

Wellington H. Meffert, II, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Box 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302

(eServed)

Ashley Black, Corporation Clerk

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, F lorida 32301

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

w ill issue the Final Order in this case.