16-004132BID St. Elizabeth Gardens Apartments, Ltd. vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Tuesday, October 18, 2016.


View Dockets  
Summary: Petitioners failed to demonstrate that the Florida Housing Finance Corporation's intended award of tax credits was clearly erroneous, contrary to competition, arbitrary, or capricious.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ST. ELIZABETH GARDENS

11APARTMENTS, LTD.,

13Petitioner,

14vs. Case No. 16 - 4132BID

20FLORIDA HOUSING FINANCE

23CORPORATION,

24Respondent,

25and

26ISLES OF PAHOKEE PHASE II, LLC;

32HALEY SOFGE PRESERVATION PHASE

36ONE; THREE RO UND TOWER A, LLC;

43CATHEDRAL TOWERS, LTD.; AND SP

48MANOR , LLC,

50Intervenors.

51_______________________________/

52MARIAN TOWERS, LTD.,

55Petitioner,

56vs. Case No. 16 - 4133BID

62FLORIDA HOUSING FINANCE

65CORPORATION,

66Respondent,

67and

68ISLES OF PAHOKEE PHASE II, LLC;

74HALEY SOFGE PRESERVATION PHASE

78ONE; THREE ROUND TOWER A, LLC;

84CATHEDRAL TOWERS, LTD.; AND SP

89MANOR , LLC,

91Intervenors.

92_______________________________/

93WCAR, LTD.,

95Petitioner,

96vs. Case No. 16 - 4134BID

102FLORIDA HOUSING FINANCE

105CORPORATION,

106Respondent,

107and

108SP MANOR , LLC ; AND CATHEDRAL

113TOWERS, LTD.,

115Intervenor s .

118_______________________________/

119SJRAR, LTD.,

121Petitioner,

122vs. Case No. 16 - 4135BID

128FLORIDA HOUSING FINANCE

131CORPORATION,

132Respondent,

133and

134SP MANOR , LL C ; AND CATHEDRAL

140TOWERS, LTD.,

142Intervenor s .

145_______________________________/

146CPAR, LTD.,

148Petitioner,

149vs. Case No. 16 - 4136BID

155FLORIDA HOUSING FINANCE

158CORPORATION,

159Respondent,

160and

161SP MANOR , LLC ; AND CATHEDRAL

166TOWERS, LTD.,

168Interv enor s .

172_______________________________/

173RECOMMENDED ORDER

175Pursuant to notice, a final hearing was held in this case

186on August 16, 2016, in Tallahassee, Florida, befor e Garnett W.

197Chisenhall, a duly - designated Administrative Law Judge of the

207Division of Administrative Hearings (ÐDOAHÑ).

212APPEARANCES

213For Petitioners St. Elizabeth Gardens Apartments, Ltd.,

220and Marian Towers, Ltd.:

224Donna Elizabe th Blanton, Esquire

229Radey Law Firm, P.A.

233301 South Bronough Street, Suite 200

239Tallahassee, Florida 32301 - 1706

244For Petitioners WCAR, Ltd.; SJRAR, Ltd.;

250and CPAR, Ltd.:

253M. Christopher Bryant, Esquire

257Oertel, Fernandez, Bryant

260& Atkinson, P.A.

263Po st Office Box 1110

2682060 Delta Way

271Tallahassee, Florida 32302 - 1110

276For Respondent Florida Housing Finance Corporation:

282Christopher Dale McGuire, Esquire

286Betty Zachem, Esquire

289Florida Housing Finance Corporation

293227 North Bronough Street, Suite 5000

299Tal lahassee, Florida 32301

303For Intervenors Haley Sofge Preservation Phase One;

310Three Round Tower A, LLC; Cathedral Towers, Ltd.;

318and SP Manor, LLC:

322Michael P. Donaldson, Esquire

326Carlton Fields Jorden, Burt, P.A.

331215 South Monroe Street, Suite 500

337Tallahas see, Florida 32302

341For Intervenor Isles of Pahokee Phase II, LLC:

349Maureen McCarthy Daughton, Esquire

353Maureen McCarthy Daughton, LLC

3571725 Capital Circle Northeast, Suite 304

363Tallahassee, Florida 32308

366STATEMENT OF THE ISSUE

370The issue for determination in this consolidated bid

378protest proceeding is whether the Florida Housing Finance

386CorporationÓs (ÐFH F CÑ) intended award of tax credits for the

397p reservation of e xisting a ffordable h ousing d evelopments was

409clearly erroneous, contrary to competition, arbitra ry , or

417capricious.

418PRELIMINARY STATEMENT

420On October 23, 2015, FHFC so licited applications for an

430allocation of f ederal l ow - i ncome h ousing t ax c redit s through a

448document entitled ÐRequest for Applications 2015 - 111 for Housing

458Credit Financing for the Pre servation of Existing Affordable

467Multifamily Housing DevelopmentsÑ (ÐRFA 2015 - 111Ñ) . On

476December 4, 2015, 24 developers (including Petitioners and

484Intervenors in the instant case) submitted applications in

492response to RFA 2015 - 111.

498On June 24, 2016, FH F C posted notice of its intent to award

512funding to five applicants, including Intervenors Three Round

520Tower A , LLC (ÐThree RoundÑ) ; Cathedral Towers, Ltd . (ÐCathedral

530TowersÑ) ; Isles of Pahokee Phase II, LLC (ÐIsles of PahokeeÑ) ;

540and SP Manor, LLC (ÐLummus ParkÑ) . 1/ FHFC determined that

551Petitioners St. Elizabeth Gardens Apartments, Ltd .

558(ÐSt. ElizabethÑ) ; Marian Towers , Ltd . (ÐMarian TowersÑ) ; WCAR,

567Ltd. (ÐWoodcliffÑ) ; SJRAR , Ltd. (Ð St. Johns Ñ) ; and CPAR, Ltd.

578(Ð Colonial Ñ) , were ineligible for funding. FHF C also determined

589that Intervenor Haley Sofge Preservation Phase One (ÐHaley

597SofgeÑ) was eligible for funding , but Haley SofgeÓs application

606did not earn a sufficient score relative to those of the

617competing applicants.

619Pursuant to section 120.57(3), Flori da Statutes (201 6 ) , 2 /

631St. Elizabeth, Marian Towers, Woodcliff, St. Johns, and Colonial

640filed timely notices of intent to protest followed by formal

650written protests. Those cases were referred to DOAH on July 22,

6612016, and ultimately consolidate d via an Or der issued on

672August 10, 2016.

675Initially, St. Elizabeth and Marian Towers were challeng ing

684FHFCÓs determination that arrearage issues rendered their

691applications ineligible . F HFC has since agreed that its initial

702determination was erroneous , and FHFC n ow agrees that

711St. Elizabeth Ós and Marian Tower Ó s applications should be deemed

723eligible for funding. However , FHFC maintains that

730St. Elizabeth Ós and Marian Tower Ó s applications were not

741entitled to funding.

744The p arties agreed that there were no disput ed issues of

756material fact. Accordingly, t he final hearing was conducted

765pursuant to section 120.57(2) and took place as scheduled on

775August 16, 2016.

778During the course of that final hearing, the undersigned

787accepted Joint Exhibits J - 1 through J - 14 into evidence.

799St. Elizabeth and Marian Towers presented the testimony of

808Kenneth Naylor (the C hief O perating Officer for Atlantic Pacific

819Communities ) and offered Exhibits 1 through 5, which were

829accepted into evidence. Woodcliff , St. Johns , and Colonial

837pr esented the testimony of Angela Hatcher of Flynn Development

847Corporation and offered Exhibit 1 that was accepted into

856evidence. Cathedral Towers presented the testimony of Shawn

864Wilson (the President of Blue Sky Communities) and offered

873E xhibit 1 that was accepted into evidence over objection. FHFC

884presented the testimony of Kenneth Reecy (the Director of

893Multifamily Programs for FHFC) and offered Exhibits FH - 1 and

904FH - 2 that were accepted into evidence.

912Intervenors Three Round, Haley Sofge, Isles of Pah okee, and

922Lummus Park called no witnesses and offered no exhibits.

931The parties stipulated to the official recognition of any

940rules or f inal o rder s issued by FHFC.

950All of the parties filed timely proposed recommended orders

959that have been considered in th e preparation of this Recommended

970Order.

971FINDING S OF FACT

975FHFC and Affordable Housing Tax Credits

9811. FH FC is a public corporation that financ e s affordable

993housing in Florida by allocating and distributing low income

1002housing tax credits. See § 420.504(1), Fla. Stat. ( providing

1012that FH F C is Ðan entrepreneurial public corporation organized to

1023provide and promote the public welfare by administering the

1032governmental function of financing or refinancing housing and

1040related facilities in this state .Ñ ) ; § 420.509 9(2), Fla. Stat.

1052(providing that Ð[t]he corporation shall adopt allocation

1059procedures that will ensure the maximum use of available tax

1069credits in order to encourage development of low - income housing

1080in the state, taking into consideration the timeliness o f the

1091application, the location of the proposed housing project, the

1100relative need in the area for low - income housing and the

1112availability of such housing, the economic feasibility of the

1121project, and the ability of the applica nt to proceed to

1132completion o f the project in the calendar year for which the

1144credit is sought.Ñ).

11472. The tax credits allocated by FH F C encourage invest ment

1159in affordable housing and are awarded through competitive

1167solicitations to developers of qualifying rental housing .

11753. Tax credits are not tax deductions. For example, a

1185$1 , 000 deduction in a 15 - percent tax bracket reduces taxable

1197income by $1,000 and reduces tax liability by $150 . In

1209contrast, a $1 , 000 tax credit reduces tax liability by $1 , 000.

12214. Not surprisingly, t he d emand for tax credits provided

1232by the federal government exceeds the supply.

12395 . A s uccessful applicant /developer normally sell s the tax

1251credits in order to raise capital for a housing development .

1262That results in the developer being less reliant on debt

1272financing .

12746 . In exchange for the tax credits , a successful

1284applicant /developer must offer affordable rents and c ovenant to

1294keep those rents at a ffordable levels for 30 to 50 years .

1307The Selection Process

13107 . FH F C awards tax credits through competitive

1320solicitations, and that process is commenced by the issuance of

1330a Request for Applications (ÐRFAÑ) .

13368 . Florida Administrative Code Rule 67 - 60.009(2) provides

1346that unsuccessful applicants for tax credits Ðmay only protest

1355the results of the competitive so licitation process pursuant

1364to the procedures set forth in Secti on 120.57(3), F.S., and

1375Chapter 28 - 110, F.A.C.Ñ

13809. F or purposes of section 120.57(3), an RFA is equivalent

1391to a Ðrequest for proposal.Ñ See Fla. Admin. Code R.

140167.60.009(4), F.A.C.

140310 . FH F C issued RFA 2015 - 111 on October 23, 2015, and

1418responses from applicants were due on December 4, 2015.

142711. Through RFA 2015 - 111, FH F C seeks to award up to

1441$5,901,631 of tax credits to qualified applicants that commit to

1453preserve existing affordable mu ltifamily housing developments

1460for the demographic categories of ÐFamilies,Ñ Ðthe Elderly,Ñ and

1471ÐPersons with a Disability . Ñ

14771 2 . FHFC only considered an application e ligible for

1488funding from RFA 2015 - 111 , if that particular application

1498complied with cer tain content requirements.

150413. FHFC ranked all eligible applications pursuant to an

1513ÐApplication Sorting OrderÑ set forth in RFA 2015 - 111.

152314. The first consideration was the applicantsÓ scores.

1531Each application could potentially receive up to 23 po ints based

1542on the developerÓs experience and the proximity to services

1551needed by the developmentÓs tenants .

155715. Applicants demonstrating that their developments

1563received funding from a U.S. Department of Agriculture (ÐUSDAÑ)

1572Rural Development program know n as RD 515 were enti t led to a

15863.0 point proximity score Ðboost.Ñ

159116. That proximity score boost was important because RFA

16002015 - 111 characterized counties as small, medium, or large .

1611A pplications associated with small co unties had to achieve at

1622least fo ur proximity point s to be considered eligible for

1633funding. Applications associated with medium - sized counties and

1642those associated with large counties had to achieve at least

1652seven and 10.25 proximity points respectively in order to be

1662considered eligible for funding.

166617. Because i t is very common for several tax credit

1677applicants in a particular RFA to receive identical scores,

1686FH F C incorporated a series of Ðtie - breakersÑ into RFA 2015 - 111.

170118. The tie - breakers for RFA 2015 - 111, in order of

1714applicab ility, were:

1717a. First, by Age of Development, with

1724developments built in 1985 or earlier

1730receiving a preference over relatively

1735newer developments.

1737b. Second, if necessary, by a Rental

1744Assistance (ÐRAÑ) preference. Applicants

1748were to be assigned an RA level based on

1757the percentage of units r eceiv ing rental

1765assistance through either a U.S. Department

1771of Housing and Urban Development (ÐHUDÑ) or

1778USDA Rural Development program. Applicants

1783with an RA level of 1, 2, or 3 (meaning at

1794least 75 percent of the units r eceive d

1803rental a ssistance) were to receive a

1810preference.

1811c. Third , by a Concrete Construction Funding

1818Preference, with developments incorporating

1822certain specified concrete or masonry

1827structural elements receiving the

1831preference.

1832d. Fourth, by a Per Unit C onstruction Funding

1841Preference, with applicants proposing at

1846least $32,500 in Actual Construction Costs

1853per unit receiving the preference.

1858e. Fifth, by a Levera ging Classification

1865favor ing applicants requir ing a lower

1872amount in housing credits per unit tha n

1880other applicants. Generally, the least

1885expensive 80 percent of eligible applicants

1891were to receive a preference over the most

1899expensive 20 percent.

1902f. Sixth, by an ApplicantÓs specific RA level,

1910with Level 1 applicants receiving the most

1917preference and Leve l 6 the least.

1924g. Seventh, by a Florida Job Creation

1931Preference, which estimate d the number of

1938jobs created per $1 million of housing

1945credit equity investment the developments

1950were to receive based on formulas contained

1957in the RFA . A pplicants achieving a Jo b

1967Creation score of at least 4.0 were to

1975receiv e the preference.

1979h. Eig h th, by lottery number, with the lowest

1989(smallest) lottery number receiving the

1994preference.

199519. Rental assistance from the USDA or HUD is provided to

2006existing developments in order to make up for shortfalls in

2016monthly rent paid by tenants. For example, if an apartmentÓs

2026base rent is $500 per month and the tenantÓs income limits him

2038or her to paying only $250 towards rent, then the USDA or HUD

2051rental assistance pays the other $250 so th at the total rent

2063received by the development is $500.

206920. As evident from the tie - breakers incorporated into RFA

20802015 - 111 , the amount of r ental a ssistance , or ÐRA L evel , Ñ played

2096a prominent role in distinguishing between RFA 2015 - 111

2106applicants ha ving i dentical scores.

211221. RFA 2015 - 111 required that applicants demonstrate RA

2122L evels by providing a letter containing the following

2131information : ( a ) th e d evelopment Ós name ; ( b ) the d evelopment Ós

2149address ; ( c ) the year the development was built ; (d ) the t otal

2164number of units that currently receive PBRA and/or ACC; /3 ( e ) t he

2179t otal number of units that w ould receive PBRA and/or ACC if the

2193proposed d evelopment were to be funded; ( f ) a ll HUD or RD

2208financing program(s) originally and/or currently associated with

2215th e existing development; and ( g ) c onfirmation that the

2227d evelopment ha d not received fina ncing from HUD or RD after

22401995 whe n the rehabilitation was at least $10,000 per unit in

2253any year.

225522. In order to determine an applicantÓs RA Level

2264Classification, RF A 2015 - 111 further stated that

2273Part of the criteria for a proposed

2280Development that qualifies as a Limited

2286Development Area (LDA) Development to be

2292eligible for funding is based on meeting a

2300minimum RA Level, as outlined in Section

2307Four A.7.c of the RFA .

2313The total nu mber of units that will

2321receive rental assista nce (i.e., PBRA

2327and/or ACC), as stated in t he Development

2335Category qualificatio n letter provided as

2341Attachment 7, will be considered to be the

2349proposed DevelopmentÓs RA units and will be

2356the basis of the ApplicantÓs RA Level

2363Classification. The Corporation will divide

2368the RA units by the total units stated by

2377the Applicant at question 5.e. of Exhibit A,

2385resulting in a Percentage of Total Units

2392that are RA units. Using the Rental

2399Assistance Level C lassification Chart below,

2405the Corporation will determine the RA Level

2412associated with both the Percentage of Total

2419Units and the RA units. The best rating of

2428these two (2) levels will be assigned as the

2437ApplicationÓs RA Level Classification.

244123. RFA 2 015 - 111 then outlined a Rental Assistance Level

2453Classification Chart to delineate between the RA L evels. That

2463c hart described six possible RA L evels, with one being

2474developments that have the most units receiving rental

2482assistance and six pertaining to de velopments with the fewest

2492units receiving rental assistance. A development with at least

2501100 rental assistance units and greater than 50 percent of the

2512total units receiving rental assistance was to receive an RA

2522Level of 1 .

252624. FH F C also utilized a ÐF unding TestÑ to assist in the

2540selection of applications for funding. The Funding T est

2549required that the amount of unawarded housing credits be enough

2559to satisfy any remaining applicantÓs funding request. In other

2568words, FH F C prohibited partial funding.

25752 5. In addition, RFA 2015 - 111 applied a ÐCounty Award

2587TallyÑ designed to prevent a disproportionate concentration of

2595funded developments in any one county. As a result, all other

2606applicants from other count ies had to receive an award before a

2618second appli cation from a pa rticular county could be funded .

263026. After ranking of the el igible applicants, RFA

26392015 - 111 set forth an order of funding selection based on county

2652size, demographic category, and the receipt of RD 515 financing.

2662The Order wa s:

2666a. One R D 515 Development (in any demographic

2675category) in a medium or small county;

2682b. One Non - RD 515 Development in the Family

2692Demographic Category (in any size county);

2698c. The highest ranked Non - RD 515 application

2707or applications with the demographic of

2713E lderly or P erson s with a D isability; and

2724d. If funding remains after all eligible Non -

2733RD 515 applicants are funded, then the

2740highest ranked RD 515 applicant in the

2747E lderly demographic (or, if none, then the

2755highest ranked RD 515 applicant in the

2762F amily demographic).

276527. Draft versions of every RFA are posted on - line in

2777order for stakeholders to provide FHFC with their comments. In

2787addition, every RFA goes through at least one workshop prior to

2798being finalized.

280028. FHFC often makes changes to RFAs based on stakeho lder

2811comments.

281229. No challenge was filed to the terms, conditions, or

2822requirements of RFA 2015 - 111 .

282930. A review committee consisting of FH F C staff members

2840reviewed and scored all 24 application s associated with RFA

28502015 - 111 . During this process, F H F C staff determined that none

2865of the RD - 515 applicants satisfied all of the threshold

2876eligibility requirements.

287831. On June 24, 2016, FH F C Ós Board of Directors announced

2891its intention to award funding to five applicants , subject to

2901those applicants suc cessfully completing the credit underwriting

2909process . Pineda Village in Brevard County was the only

2919successful applicant in the Non - RD 515 Family Demographic .

2930The four remaining successful applicants were in the No n - RD

2942515 Elderly or Persons with Disabil ity Demographic: Three Round

2952Tower in Miami - Dade County ; Cathedral Towers in D uval County ;

2964Isles of Pahokee in Palm Beach County; and Lummus Park in Miami -

2977Dade County.

297932. The randomly - assigned lottery number tie - breaker

2989played a role for the successfu l Non - RD 515 appl icants with

3003Three Round Tower having lottery number one , Cathedral Towers

3012having lottery number nine , and Isles of Pahokee having lottery

3022number 18.

302433. While Lummus Park had a lottery number of 12, the

3035County Award Tally prevented it f rom being selected earl ier

3046because Three Round Tower had already been selected for funding

3056in Miami - Dade County . However, after the first four applicants

3068were funded, only $526,880 of credits remained, and Lummus Park

3079was the only eligible applicant with a request small enough to

3090be fully funded.

309334. All Petitioners timely filed Notices of Protest and

3102petitions for administrative proceedings.

3106The Challenge by Woodcliff, Colonial, and St. Johns

311435. Woodcliff is seeking an award of tax credits in order

3125to acquire and preserve a 34 - unit development for elderly

3136residents in Lake County. 4 /

314236. Colonial is seeking an award of tax credits in order

3153to acquire and preserv e a 30 - unit development for low - income

3167families in Lake County. 5 /

317337. St. Johns is seek ing an award of tax credits to

3185acquire and preserve a 48 - unit development for elderly residents

3196in Putnam County. 6 /

320138. FH F C deemed Woodcliff, Colonial and St. Johns to be

3213ineligible because of a failure to demonstrate the existence or

3223availability of a particular source of financing relied upon in

3233their applications. Specifically, FH F C determined that the

3242availability of USDA RD 515 financial assistance was not

3251properly documented .

325439. For applicants claiming the existence of R D 515

3264financing, RFA 201 5 - 111 state d :

3273(2) If the proposed Development will be

3280assisted with funding under the United

3286States Department of Agriculture RD 515

3292Program and/or RD 538 Program, the

3298following information must be provided:

3303(a) Indicate the applicable RD Program(s)

3309a t question 11.b.(2) of Exhibit A.

3316(b) For a proposed Development that is

3323assisted with funding from RD 515 and

3330to qualify for the RD 515 Proximity

3337Point Boost (outlined in Section Four

3343A.6.b.(1)(b) of the RFA), the Applicant

3349must:

3350(i) Include the fun ding amount at the USDA

3359RD Financing line item on the

3365Development Funding Pro Forma

3369(Construction/Rehab Analysis and/or

3372Permanent Analysis); and

3375(ii) Provide a letter from RD, dated within

3383six (6) months of the Application

3389Deadline , as Attachment 17 to

3394Exhibit A, which includes the following

3400information for the proposed

3404Preservation Development:

3406¤ Name of existing development;

3411¤ Name of proposed Development;

3416¤ Current RD 515 Loan balance;

3422¤ Acknowledgment that the property is

3428applying for Housing C redits; and

3434¤ Acknowledgment that the property

3439will remain in the USDA RD 515 loan

3447portfolio.

3448(emphasis added ).

345140. FHFC was counting on the letter mentioned directly

3460above to function as proof that : (a) there was RD 515 financing

3473in place when the l etter was issued ; and that (b) the RD 515

3487financing would still be in place as of the applicat ion deadline

3499for RFA 2015 - 111.

350441. FH F C deemed Woodcliff, Colonial and St. Johns

3514ineligible because the ir RD letter s were not dated within six

3526months of the Dec ember 4, 2015, deadline for RFA 2015 - 111

3539applications . The Woodcliff letter was dated May 15, 2015, t he

3551Colonial letter was dated May 15, 2015, and t he St. Johns letter

3564was dated May 5, 2015.

35694 2 . FHCA had previously issued RFA 2015 - 104, which also

3582propos ed to award Housing Credit Financing for the Preservation

3592of Existing Affordable Multifamily Housing Developments. The

3599deadline for RFA 2015 - 104 was June 23, 2015, and Woodcliff,

3611Colonial, and St. Johns applied using the same USDA letter that

3622they used in their RFA 2015 - 111 applications.

36314 3 . Woodcliff, Colonial, a nd St. Johns argued during the

3643f inal h earing that FHFC should have accepted their letters

3654because: (a) they gained no competitive advantage by using

3663letters that were more than six months old; ( b) waiving the six -

3677month Ðshelf lifeÑ requirement would enable FHFC to satisfy one

3687of its stated goals for RFA 2015 - 111, i.e., funding of an

3700RD 515 development; and (c) other forms of financing (such as

3711equity investment) have no ÐfreshnessÑ or Ðshelf life Ñ

3720requirement.

37214 4 . However, it is undisputed that no party (including

3732Woodcliff, Colonial, and St. Johns) challenged any of the terms,

3742conditions, or requirements of RFA 2015 - 111.

37504 5 . In addition, Kenneth Reecy (FHFCÓs Director of

3760Multifamily Programs) testified that there must be a point at

3770which FHFC must ensure the viability of the information

3779submitted by applicants. If the information is Ðtoo old,Ñ then

3790it may no longer be relevant to the current application process.

38014 6 . Under the circumstances , it was no t unreaso nable for

3814FHFC to utilize a six - month shelf life for USDA letters. 7/

38274 7 . Furthermore, Mr. Reecy testified that excusing

3836Woodcliff, Colonial, and St. JohnsÓ noncompliance could lead to

3845FHFC excusing all deviations from all other date re quirements in

3856future RFAs. In other words, applicants could essentially

3864rewrite those portions of the RFA, and that would be an

3875unreasonable result.

387748. E xcusing the noncompliance of Woodcliff, Colonial, and

3886St. Johns could lead to a Ðsli ppery slopeÑ i n which any shelf -

3901life requirement has no meaning. T he letters utilized by

3911Woodcliff, Colonial, and St. Johns were slightly more than six

3921months old . But, exactly when would a letter become too old to

3934satisfy the Ðshelf lifeÑ requirement? If three weeks can be

3944excused today, will four weeks be excused next year?

3953St. ElizabethÓs and Marian TowersÓ Challenge

395949. St. Elizabeth is seeking low - income housing tax credit

3970financing in order to acquire and preserve a 151 - unit

3981development for elderly residents in Broward County, Florida.

398950. Marian Towers is an applicant for RFA 2015 - 111 funding

4001seeking low - income housing tax credits to acquire and preserve a

4013220 - unit development for elderly residents in Miami - Dade County,

4025Florida.

402651. The same devel oper is associated with the

4035St. Elizabeth and Marian Towers projects.

404152. In its scoring and ranking process, FH FC assigned

4051St. Elizabeth a n RA Level of two . RFA 2015 - 111 requires that

4066Applicants demonstrate RA Levels by providing a letter from HUD

4076or the U SDA with specific information. That information is then

4087used to establish an RA Level for the proposed development.

409753. As noted above , the RFA requires the letter to contain

4108several pieces of information, including: (a) the total number

4117of units that currently receive PBRA and/or ACC; and (b) the

4128total number of units that will receive PBRA and/or ACC if the

4140proposed development is funded.

414454. RFA 2015 - 111 provided that a development with at least

4156100 re ntal units would receive an RA L evel of one .

416955. St. Elizabeth included with its application a letter

4178from HUDÓs Miami field office stating in pertinent part that:

4188(iv) Total number of units that currently

4195receive PBRA and/or ACC: 99 units .

4202(v) Total number of units that will receive

4210PBRA and/or ACC if the proposed

4216Development is funded: 100 units*.

422156. The asterisk in the preceding paragraph directed

4229reader s of St. ElizabethÓs HUD letter to a paragraph stating

4240that:

4241HUD is currently processing a request from

4248the owner to increase the number of units

4256subsidized under a HAP Contract to 100 by

4264transferring budget authority for the one

4270additional unit from another Catholic

4275Housing Services Section 8 project under

4281Secti o n 8(bb) in accordance with Notice

4289H - 2015 - 03.

429457. Because of the foregoing statement from HUD, FHFC

4303concluded that St. Elizabeth did not have 100 units receiving

4313rental assistance as of the application deadline. Accordingly,

4321FHFC used 99 units as the total number of units that w ould

4334receive rental assistance when calculating St. ElizabethÓs RA

4342Level, and that le d to FHFC assigning an RA Level of two to

4356St. ElizabethÓs application. 8 /

436158. If St. Elizabeth had been deemed eligible and if FHFC

4372had used 100 units as the total number of units that w ould

4385receive rental assistance, th en St. Elizabeth would have

4394received an RA Level of one . Given the application sorting

4405order and the selection proces s outlined in RFA 2015 - 111,

4417St. Eliza beth (with a lottery number of six ) would have been

4430recommended for funding by FHFC , and that outcome would have

4440resulted in Intervenors Isles of Pahokee and Lummus Park losing

4450their funding .

445359. St. Elizabeth asserted during the f inal h earing that

4464the 100th unit had obtained rental assistance financing since

4473the application deadline on December 4, 20 15 . However, FHFC

4484could only review, score, and calculate St. ElizabethÓs RA Level

4494based on the information available as of the application

4503deadline.

450460. While St. Elizabeth argues that the asterisk paragraph

4513sets forth a Ðcondition,Ñ Kenneth Reecy ( FHFCÓs Director of

4524Multifamily Housing) agreed during the f inal h earing that the

4535asterisk paragraph was more akin to information that was not

4545explicitly required by RFA 2015 - 111.

455261. FHFC did not use that ad ditional information to

4562declare St. ElizabethÓs application ineligible for funding.

4569Despite being assigned an RA Level of two , St. ElizabethÓs

4579application still could have been selected for funding because

4588RFA 2015 - 111 merely established RA Level as a basis for breaking

4601ties among competing applicatio ns . However, too many applicants

4611for RFA 2015 - 111 had identical scores, and RFA 2015 - 111Ós use of

4626RA Level as a tiebreaker forced St. ElizabethÓs application out

4636of the running.

463962. Under the circums tances, FHFCÓs treatment of

4647St. ElizabethÓs applicatio n was not clearly erroneo us, contrary

4657to competition, arbitrary , or capricious . As noted above, tie -

4668breakers are very important, because there is often very little

4678to distinguish one application for tax credits from another.

4687Given that there was a degree of uncertainty about whether

4697St. ElizabethÓs would have 100 qualifying units, FHFC acted

4706reasonably by assigning St. Elizabeth Ós application an RA Level

4716of two for this tie - breaker rather than an RA Level of one .

473163. St. Elizabeth and Marian Towers ar gue that other

4741applications contained language that indicated a degree of

4749u ncertainty . Nevertheless , those other applications received an

4758RA Level of one .

476364. For example, FHFC assigned an RA Level of one to Three

4775Round and Haley Sofge even though the ir HUD letters stated that

4787both developments would be Ðsubject to a Subsidy Layering Review

4797to be conducted by HUD.Ñ

480265. Marian Towers argued that if FHFC does not accept HUD

4813or RD letters containing conditional language about the number

4822of units that wi ll be subsidized, then FHFC should have assigned

4834an RA Level of six to Three Round and Haley Sofge. If Three

4847Round and Haley Sofge had been assigned an RA Level of six , then

4860Marian Towers (with a lottery number of five ) would have been

4872recommended for fun ding.

487666. St. Elizabeth and Marian Towers cited another instance

4885in which an application received an RA Level of one , even though

4897its application contained a letter from the RD program stating

4907that ÐUSDA Rural Development will consent to the transfer if all

4918regulatory requirements are met .Ñ (emphasis added).

492567. However, St. Elizabeth and Marian Towers failed to

4934demonstrate that the language cited above applied only to those

4944particular applications rather than to all applications for tax

4953credits. For example, if all applications are subject to a

4963subsidy layering review and compliance with all regulatory

4971requirements, then inclusion of such language in a HUD letter

4981(in and of itself) should not prevent an applicant from being

4992assigned an RA Level of one .

499968. St. Elizabeth and Mari a n Towers also cited a HUD

5011Letter used in another recent RFA by an applicant that received

5022an RA Level of one . The HUD letter in question contained an

5035asterisk followed by the following statement: ÐIt is HUDÓs

5044understandin g that two separate applications are being submitted

5053Î one for each tower comprising St. Andrew Towers. If funded,

5064HUD will consider a request from the owner to bifurcate the

5075St. Andrew Towers HAP contract in order to facilitate the

5085sepa rate financing of each tower.Ñ

509169. However, St. Elizabeth and Marian Towers failed to

5100demonstrate why the language quoted directly above should have

5109resulted in the applicant in question being awarded an RA Level

5120less than one . There is no indication that the total numb er of

5134units receiving rental assistance would change.

5140CONCLUSIONS OF LAW

514370. Florida Housing has jurisdiction over this matter,

5151pursuant to sections 120.569, 120.57(2) , and 120.57 (3), Florida

5160Statutes. Florida Housing has contracted with DOAH to prov ide

5170an Administrative Law Judge to conduct the informal hearing in

5180this case.

518271. It has been stipulated that all parties have standing

5192to participate in this proceeding. §§ 120.52(13) and

5200120.569(1), Fla. Stat. The evidence demonstrated that this

5208proc eeding and the various potential outcomes could impact the

5218p arties in many different ways.

522472. This is a competitive procurement protest proceeding

5232and , as such , is governed by section 120.57(3) (f), which

5242provides as follows in pertinent part:

5248Unless othe rwise provided by statute, the

5255burden of proof shall rest with the party

5263protesting the proposed agency action. In a

5270competitive - procurement protest, other than

5276a rejection of all bids, proposals, or

5283replies, the administrative law judge shall

5289conduct a d e novo proceeding to determine

5297whether the agencyÓs proposed action is

5303contrary to the agencyÓs governing statutes,

5309the agencyÓs rules or policies, or the

5316solicitation specifications. The standard

5320of proof for such proceedings shall be

5327whether the propose d agency action was

5334clearly erroneous, contrary to competition,

5339arbitrary, or capricious. . . .

534573. Pursuant to section 12 0.57(3)(f), Petitioners (as the

5354parties opposing the proposed agency action) had the burden of

5364pro ving Ð a ground for invalidating t he award. Ñ See State

5377Contracting and EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607,

5389609 (Fla. 1st DCA 1998).

539474. Moreover, Petitioners must prove by preponderance of

5402the evidence th at FHFC Ós proposed award of tax credits to the

5415successful applicants i s arbitrary, capricious, or beyond the

5424scope of FH FC Ós discretion as a state agency. DepÓt of Transp.

5437v. Groves - Watkins Constructors , 530 So. 2d 912, 913 - 914 (Fla.

54501988); DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla.

54631st DCA 1981). See also § 120.57(1)(j), Fla. Stat.

547275. The First District Court of Appeal has interpreted the

5482process set forth in section 120.57(3)(f) as follows:

5490A bid protest before a state agency is

5498governed by the Administrative Procedure

5503Act. Section 120.57(3), Florida St atutes

5509(Supp. 1996) provides that if a bid protest

5517involves a disputed issue of material fact,

5524the agency shall refer the matter to the

5532Division of Administrative Hearings. The

5537administrative law judge must then conduct a

5544de novo hearing on the protest. See

5551§ 120.57(3)(f), Fla. Stat. (Supp. 1996). In

5558this context, the phrase Ð de novo hearing Ñ

5567is used to describe a form of intra - agency

5577review. The judge may receive evidence, as

5584with any formal hearing under section

5590120.57(1), but the object of the procee ding

5598is to evaluate the action taken by the

5606agency. See Intercontinental Properties,

5610Inc. v. Department of Health and

5616Rehabilitative Services , 606 So. 2d 380

5622(Fla. 3d DCA 1992) (interpreting the phrase

"5629de novo hearing" as it was used in bid

5638protest proce edings before the 1996 revision

5645of the Administrative Procedure Act).

5650State Contracting and EngÓg Corp. , 709 So. 2d at 609.

566076. The ultimate issue in this proceeding is Ð whether the

5671agency's proposed action is contrary to the agency's governing

5680statut es, the agency's rules or policies, or the bid or proposal

5692specifications. Ñ In addition to proving that FHFC breached this

5702statutory standard of conduct, Petitioners also must establish

5710that FHFC's violation was either clearly erroneous, contrary to

5719compe tition, arbitrary, or capricious. § 120.57(3)(f), Fla.

5727Stat.

572877. The First District Court of Appeal has described the

5738Ð clearly erroneous Ñ standard as meaning that an agency's

5748interpretation of law will be upheld Ð if the agency's

5758construction falls within the permissible range of

5765interpretations. If, however, the agency's interpretation

5771conflicts with the plain and ordinary intent of the law,

5781judicial deference need not be given to it. Ñ Colbert v. DepÓt

5793of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004 )(citations

5805omitted). See also Anderson v. Bessemer City , 470 U.S. 564,

5815573 - 74; 105 S. Ct. 1504, 1511; 84 L. Ed. 2d 518, 528 (1985)

5830(ÐWhere there are two permissible views of the evidence, the

5840factfinderÓs choice between them cannot be clearly erroneous.Ñ ).

584978. An agency decision is Ð contrary to competition Ñ when it

5861unreasonably interferes with the objectives of competitive

5868bidding. Those objectives have been stated to be:

5876[T]o protect the public against collusive

5882contracts; to secure fair competition u pon

5889equal terms to all bidders; to remove not

5897only collusion but temptation for collusion

5903and opportunity for gain at public expense;

5910to close all avenues to favoritism and fraud

5918in various forms; to secure the best values

5926for the [public] at the lowest po ssible

5934expense; and to afford an equal advantage to

5942all desiring to do business with the

5949[government], by affording an opportunity

5954for an exact comparison of bids.

5960Harry Pepper & Assoc., Inc. v. City of Cape Coral , 352 So. 2d

59731190, 1192 (Fla. 2d DCA 1977 )(quoting Wester v. Belote , 138 So.

5985721, 723 - 724 (Fla. 1931)).

599179. An agency action is capricious if the agency takes the

6002action without thought or reason or irrationally. An agency

6011action is arbitrary if it is not supported by facts or logic.

6023See Agric o Chem. Co. v. DepÓt of Envtl. Reg. , 365 So . 2d 759,

6038763 (Fla. 1st DCA 1978).

604380. To determine whether an agency acted in an arbitrary

6053or capricious manner, it must be determined Ð whether the agency:

6064(1) has considered all relevant factors; (2) has given actual,

6074good faith consideration to those factors; and (3) has used

6084reason rather than whim to progress from consideration of these

6094factors to its final decision. Ñ Adam Smith Enters . v. DepÓt of

6107Envtl. Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

611881. However, if a decision is justifiable under any

6127analysis that a reasonable person would use to reach a decision

6138of similar importance, the decision is neither arbitrary nor

6147capricious. Dravo Basic Materials Co. v. DepÓt of Transp. ,

6156602 So. 2d 632, 634 n .3 (Fla. 2d DCA 1992).

6167The Challenge by Woodcliff, Colonial, and St. Johns

617582. Woodcliff, Colonial, a nd St. Johns argued during the

6185final h earing that FHFC should have accepted their letters

6195because: (a) they gained no competitive advantage by using

6204lett ers that were more than six months old; (b ) waiving the

6217six month Ðshelf lifeÑ requirement would enable FHFC to satisfy

6227one of its stated goals for RFA 2015 - 111, i.e., funding of an RD

6242515 development; and (c) other forms of financing (such as

6252equity inves tment) have no ÐfreshnessÑ or Ðshelf lifeÑ

6261requirement.

626283. However, during the time period wh en stakeholders

6271could have objected to one of RFA 2015 - 111Ós provisions,

6282Woodcliff, Colonial, and St. Johns did not challenge the

6291portion of RFA 2015 - 111 requi ring that the USDA letters be no

6305more than six months old at the application deadline . As a

6317result, Woodcliff, Colonial, and St. Johns have waived this

6326argument. See Optiplan, Inc. v. School Bd. , 710 So. 2d 569,

6337572 - 73 (Fla. 4th DCA 1998) (stating that Ð with respect to the

6351constitutional challenge to the RFPÓs specifications because it

6359was awarded points tied to race - based classifications, we agree

6370with the hearing officer that Opti plan waived its right to

6381contest the School BoardÓs use of the criteria by failing to

6392formally challenge the criteria within 72 hours of the

6401publication of the specifications in a bid solicitation protest.

6410The purpose of such a protest is to allow an agency to correct

6423or clarify plans and specifications prior to accepting bids in

6433order to save expense to the bidders and to assure fair

6444competition among them. See Capeletti Bros., Inc. v. Dep Ó t of

6456Transp. , 499 So. 2d 855, 857 (Fla. 1st DCA 1986) . ( Having

6469failed to file a bid specification protest, and having submitted

6479a proposal based on the published criteria, Optiplan has waived

6489its right to challenge the criteria.Ñ); Consultech of

6497Jacksonville, Inc. v. DepÓt of Health , 876 So. 2d 731 , 734 (Fla.

65091st DCA 2004)(stating that Ð[a] further bar to appellantÓs

6518attempt to inject the co st issue into this proceeding is its

6530failure to timely protest the provisions of the RFP with respect

6541to the financial aspects of the project. Because Consultech

6550failed to file a protest to the terms and conditions of the RFP

6563as required by section 120.57 (3), Florida Statutes, its belated

6573attempt to challenge the award to ISF on this basis must

6584fail.Ñ ).

6586St. ElizabethÓs and Marian TowerÓs Challenge

659284. St. Elizabeth argue s that FHFC erred by assigning its

6603application an RA Level of two rather than an R A Level of one .

6618However, St. Elizabeth fails to demonstrate that FHFCÓs action

6627was clearly erroneous, contrary to competition, or arbitrary and

6636capricious.

663785. As noted above, there is very little to differentiate

6647applications for tax credits, and sev eral of the applicants for

6658RFA 2015 - 111 had identical scores. FHFC designated RA Level as

6670a tie - breaker among competing applications. Given the

6679uncertainty about whether St. Elizabeth would have 100 units

6688receiving rental assistance after the application deadline, FHFC

6696acted appropriately by giving St. ElizabethÓs applicatio n less

6705than a perfect score for RA Level. Even if the degree of doubt

6718that St. Elizabeth would ultimately have 100 units receiving

6727rental assistance was low , FHFC acted appr opriately by

6736distinguishing St. ElizabethÓs application from those that had

6744no such uncertainty. 9 /

674986. St. Elizabeth argues that the undersigned should have

6758accounted for St. Elizabeth allegedly gaining that 100th unit

6767following the application deadline. Howeve r, that would have

6776been contrary to section 120.57(3) (f) , which provides that Ð[i]n

6786a protest to an invitation to bid or request for proposals

6797procurement, no submissions made after the bid or proposal

6806opening which amend or supplement the bid or proposal shall be

6817considered.Ñ

681887. As for St. ElizabethÓs and Marian TowersÓ argument

6827that other comparable RFA language did not result in applicants

6837being assigned a score less than an RA Level of one ,

6848St. Elizabeth and Marian Towers failed to carry their burd en of

6860proof on this point by demonstrating that : (a) the other RFA

6872language pertained to a specific applicant rather than all

6881applicants seeking tax credit funding ; or that (b) the language

6891in question should have led to the applicant(s) receiving an RA

6902L evel less than one . See § 120.57(3)(f) , Fla. Stat. (providing

6914that Ð[u]nless otherwise provided by statute, the burden of

6923proof shall rest with the party protesting the proposed agency

6933actionÑ).

6934RECOMMENDATION

6935Based on the foregoing Findings of Fact a nd Conclusions of

6946Law, it is RECOMMENDED that the Florida Housing Finance

6955Corporation enter a f inal o rder awarding funding to Three Round

6967Tower A , LLC ; Cathedral Towers, Ltd ; Isles of Pahokee Phase II,

6978LLC ; SP Manor, LLC ; and Pineda Village.

6985DONE AND EN TERED this 1 8 th day of October , 2016, in

6998Tallahassee, Leon County, Florida.

7002S

7003G.W. CHISENHALL

7005Administrative Law Judge

7008Division of Administrative Hearings

7012The DeSoto Building

70151230 Apalachee Parkway

7018Tallahassee, Florida 32399 - 3060

7023(850) 488 - 9675

7027Fax Filing (850) 921 - 6847

7033www.doah.state.fl.us

7034Filed with the Clerk of the

7040Division of Administrative Hearings

7044this 1 8 th day of October , 2016 .

7053ENDNOTE S

70551/ The fifth funded applicant, Pineda Village, did not intervene

7065in this proceeding and is not a party.

70732/ Unless stated otherwise, all statutory references will be to

7083the 2016 version of the Florida Statutes.

70903 / A website operated by the National Council of State Housing

7102Agencies ( ww w.ncsha.org ) describes P BRA as follows: ÐProject -

7114based Section 8 rental assistance (PBRA) contracts provide

7122subsidies for affordable multifamily rental developments to

7129lower rental costs for low - income families and to help offset

7141construction, rehabilita tion, and preservation costs. PBRA

7148makes up the difference between market rents and what low - income

7160tenants can afford, based on paying 30 percent of household

7170income for rent.Ñ See generally Oken v. Williams , 23 So. 3d

7181140, 148 n.2 (Fla. 1 st DCA 2009)( n oting several instances in

7194which courts have taken judicial notice of information found on -

7205line). As for ACC, 24 C . F . R . § 982.151(a)(1) states that Ð[a]n

7221annual contributions contract (ACC) is a written contract

7229between HUD and [ a public housing agency]. Under the [ ACC ] , HUD

7243agrees to make payments to the [public housing agency], over a

7254specified term, for housing assistance payments to owners and

7263for the [public housing agency] administrative fee. The ACC

7272specifies the maximum payment over the ACC term. The [public

7282housing agency] agrees to administer the program in accordance

7291with HUD regulations and requirements.Ñ

72964/ If Woodcliff had been deemed e ligible, it would have been

7308the first applicant selected for funding, since it is an RD -

7320515 assisted a pplicant from a Medium County. Its lottery number

7331is 19, which places it as the third best lottery number among

7343RD - 515 applicants, but the two applicants with better lottery

7354numbers were deemed ineligible by FHFC and did not file a formal

7366written protest.

73685 / If Colonial had been deemed eligible, it may have been

7380selected for funding. ColonialÓs lottery number is 22, which

7389places it as the fifth b est lottery number among RD -

7401515 applicants, but the two RD - 515 applicants with the best

7413lottery numbers were deemed ineligible. If Woodcliff, is also

7422successful in its challenge, then Woodcliff would be the first

7432applicant selected to satisfy the funding goal for an RD

7442515 applicant in a medium or small c ounty. Following selection

7453of the highest ranked Non - RD 5 15 applicants and depending on the

7467amount of tax credits awarded to such applicants, there may be

7478sufficient funding to fund Colonial.

74836 / If St. Johns had been deemed e ligible, it could have been

7497the second RD applicant selected for funding, depending on

7506which Non - RD applicants are ultimately selected for funding.

7516St. Johns' lottery number is 21 , which places it as the

7527fourth best lottery number among RD - 515 applicants, but the two

7539RD 515 applicants with the best lottery numbers were deemed

7549ineligible by FHFC . The third b est lottery number among

7560RD - 515 applicants, Woodcliff, would have been selected first in

7571order to satisfy t he RD 515 Development in a medium or small

7584c ounty funding goal. If sufficient funds remained after funding

7594Non - RD applicants, St . Johns would have been select ed as the

7608highest ranked RD 515 applicant in the Elderly demographic.

76177/ Cathedral Towers presented the testimony of Shawn Wilson (the

7627President of Blue Sky Communities) , and Mr. Wilson testified

7636that it typically takes one to two weeks to obtain a letter from

7649HUD or the USDA. Mr. Wilson further testified that RFA

7659applicants can even ask HUD or the USDA to revise a letterÓs

7671wording if that wording does not strictly adhere to a particular

7682RFAÓs requirements.

76848 / In respon se to a previous RFA (2015 - 104), St. Elizabeth

7698submitted a similar RFA letter date d June 18, 2015, which had an

7711asterisk paragraph stating that Ð[i]f funded, HUD will consider

7720a request from the owner to increase the number of units

7731subsidized under a HAP Contract to 100 by transferring budget

7741authority for the one additional unit from another Catholic

7750Housing Management Section 8 project under Section 8(bb) in

7759accordance with Notice H - 2014 - 14, or such other allowable action

7772which would increase the total n umber of subsidized units at the

7784property to 100 . Ñ FHFC awarded St. ElizabethÓs application an

7795RA Level of two for that RFA. The foregoing language is

7806strikingly similar to the asterisk paragraph at issue in the

7816instant case. As a result, St. Elizabeth was familiar with how

7827FHFC treated such language.

78319 / During the Final Hearing and in its Proposed Recommended

7842Order, St. Elizabeth argued that there were numerous instances

7851in which RFA 2015 - 111 expressly required that certain forms and

7863other informatio n be finalized by the ÐApplication Deadline.Ñ

7872However, there was nothing in RFA 2015 - 111 requiring that the

7884number of units that will be subsidized if the proposed

7894development is funded b e finalized by the ÐApplication

7903Deadline.Ñ This argument would have appeal if St. ElizabethÓs

7912failure to definitively have 100 units receiving rental

7920assistance as of the applic ation deadline had rendered

7929St. ElizabethÓs application ineligible for funding. Instead,

7936the uncertainty regarding the 100 th unit merely led to

7946S t. Elizabeth receiving a lower score on the RA Level tie -

7959breaker.

7960COPIES FURNISHED:

7962Donna Elizabeth Blanton, Esquire

7966Radey Law Firm, P.A.

7970Suite 200

7972301 South Bronough Street

7976Tallahassee, Florida 32301 - 1706

7981(eServed)

7982Betty Zachem, Esquire

7985Florida Housing Finance Corporation

7989Suite 5000

7991227 North Bronough Street

7995Tallahassee, Florida 32301

7998(eServed)

7999Maureen McCarthy Daughton, Esquire

8003Maureen McCarthy Daughton, LLC

8007Suite 304

80091725 Capital Circle Northeast

8013Tallahassee, Florida 32308

8016(eServed)

8017Christop her Dale McGuire, Esquire

8022Florida Housing Finance Corporation

8026Suite 5000

8028227 North Bronough Street

8032Tallahassee, Florida 32301

8035(eServed)

8036Michael P. Donaldson, Esquire

8040Carlton Fields Jorden Burt, P.A.

8045Suite 500

8047215 South Monroe Street

8051Tallahassee, Florida 3 2302

8055(eServed)

8056Hugh R. Brown, Gen eral Co unsel

8063Florida Housing Finance Corporation

8067Suite 5000

8069227 North Bronough Street

8073Tallahassee, Florida 32301 - 1329

8078(eServed)

8079M. Christopher Bryant, Esquire

8083Oertel, Fernandez, Bryant

8086& Atkinson, P.A.

8089Post Office Box 1110

80932060 Delta Way

8096Tallahassee, Florida 32302 - 1110

8101(eServed)

8102Kate Flemming , Corporation Clerk

8106Florida Housing Finance Corporation

8110Suite 5000

8112227 North Bronough Street

8116Tallahassee, Florida 32301 - 1329

8121(eServed)

8122NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8128All parties have the right to sub mit written exceptions within

813910 days from the date of this Recommended Order. Any exceptions

8150to this Recommended Order should be filed with the agency that

8161will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 11/28/2016
Proceedings: Respondent's and Intervenors' Joint Response to Petitioners' Exceptions filed.
PDF:
Date: 11/28/2016
Proceedings: Exceptions and Objections of Petitioners St. Elizabeth Gardens Apartments, LTD. and Marian Towers, LTD to Recommended Order filed.
PDF:
Date: 11/28/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 10/28/2016
Proceedings: Agency Final Order
PDF:
Date: 10/28/2016
Proceedings: Agency Final Order
PDF:
Date: 10/18/2016
Proceedings: Recommended Order
PDF:
Date: 10/18/2016
Proceedings: Recommended Order (hearing held August 16, 2016). CASE CLOSED.
PDF:
Date: 10/18/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/19/2016
Proceedings: (Intervenors' Proposed) Recommended Order filed.
PDF:
Date: 09/19/2016
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 09/19/2016
Proceedings: Joint Notice of Filing Intervenors' Proposed Recommended Order filed.
PDF:
Date: 09/19/2016
Proceedings: Isle of Pahokee Phase, II, LLC's Proposed Recommended Order filed.
PDF:
Date: 09/19/2016
Proceedings: Proposed Recommended Order of Petitioners St. Elizabeth Gardens Apartments, Ltd., and Marion Towers, Ltd. filed.
PDF:
Date: 09/19/2016
Proceedings: Proposed Recommended Order of Petitioners, WCAR, Ltd., SJRAR, Ltd, and CPAR, Ltd (filed in Case No. 16-004135BID).
PDF:
Date: 09/19/2016
Proceedings: Petitioners, WCAR, Ltd., CPAR, Ltd, and SJRAR, Ltd's Notice of Filing Florida Housing Final Orders, and Recommended Orders Adopted Therein (filed in Case No. 16-004135BID).
Date: 08/26/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 08/16/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/15/2016
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 08/15/2016
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/12/2016
Proceedings: Order Granting "Notice of Appearance/Motion to Intervene".
PDF:
Date: 08/11/2016
Proceedings: Notice of Appearance/Motion to Intervene (SP Manor, LLC) filed.
PDF:
Date: 08/11/2016
Proceedings: Order Re-scheduling Hearing (hearing set for August 16, 2016; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/10/2016
Proceedings: Order Granting Unopposed Motion to Consolidate Cases and Reschedule Hearing.
PDF:
Date: 08/09/2016
Proceedings: Unopposed Motion to Consolidate Cases and Reschedule Hearing filed.
PDF:
Date: 08/09/2016
Proceedings: Petitioners' Amended Notice of Taking Deposition of Respondent's Agency Representative filed.
PDF:
Date: 08/08/2016
Proceedings: Order Granting Motion to Intervene.
Date: 08/05/2016
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 08/05/2016
Proceedings: Notice of Telephonic Pre-hearing Conference (set for August 5, 2016; 4:00 p.m.).
PDF:
Date: 08/04/2016
Proceedings: Petitioners' Notice of Taking Deposition of Respondent's Agency Representative filed.
PDF:
Date: 08/03/2016
Proceedings: Cathedral Towers, Ltd's Response to Petitioners' First Request to Produce filed.
PDF:
Date: 08/03/2016
Proceedings: Cathedral Towers, Ltd's Notice of Serving Unverified Responses to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 08/03/2016
Proceedings: Isles of Pahokee Phase II, LLC's Response to Petitioner's Request for Production filed.
PDF:
Date: 08/03/2016
Proceedings: Respondent Florida Housing Finance Corporation's Notice of Service of Answers to Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Respondent filed.
PDF:
Date: 08/03/2016
Proceedings: Respondent Florida Housing Finance Corporation's Notice of Service of Answers to Petitioners St. Elizabeth Gardens and Marian Towers' First Set of Interrogatories to Respondent Florida Housing Finance Corporation filed.
PDF:
Date: 08/03/2016
Proceedings: Haley Sofge Preservation Phase One's Response to Petitioner's First Request to Produce filed.
PDF:
Date: 08/03/2016
Proceedings: Three Round Tower A, LLC's Response to Petitioners' First Request to Produce filed.
PDF:
Date: 08/03/2016
Proceedings: Intervenor Isles of Pahokee Phase II, LLC's Notice of Service of Answers to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 08/03/2016
Proceedings: Haley Sofge Preservation Phase One's Notice of Serving Responses to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 08/03/2016
Proceedings: Three Round Tower A, LLC's Notice of Serving Responses to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 08/03/2016
Proceedings: Notice of Substitution of Counsel (Chris McGuire) filed.
PDF:
Date: 08/01/2016
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/01/2016
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/01/2016
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/01/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/01/2016
Proceedings: Amended Notice of Hearing (hearing set for August 16, 2016; 8:30 a.m.; Tallahassee, FL; amended as to ).
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Intervenor Cathedral Towers, Ltd filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' Notice of Service of First Set of Interrogatories to Intervenor Cathedral Towers, Ltd filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Intervenor Three Round Tower A, LLC filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' Notice of Service of First Set of Interrogatories to Intervenor Three Round Tower A, LLC filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Intervenor Haley Sofge Preservation Phase One filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' Notice of Service of First Set of Interrogatories to Intervenor Haley Sofge Preservation Phase One filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Intervenor Isles of Pahokee Phase II, LLC filed.
PDF:
Date: 07/29/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' Notice of Service of First Set of Interrogatories to Intervenor Isles of Pahokee Phase II, LLC filed.
PDF:
Date: 07/29/2016
Proceedings: Notice of Appearance/Motion to Intervene (Michael Donaldson on behalf of Cathedral Towers, Ltd.) filed.
PDF:
Date: 07/28/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' Notice of Service of First Set of Interrogatories to Respondent Florida Housing Finance Corporation filed.
PDF:
Date: 07/28/2016
Proceedings: Petitioners St. Elizabeth Gardens and Marian Towers' First Request for Production to Respondent filed.
PDF:
Date: 07/28/2016
Proceedings: Order Granting Unopposed Motion to Sever Cases and Reschedule Hearing.
Date: 07/27/2016
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 07/27/2016
Proceedings: Amended Notice of Telephonic Motion Hearing (motion hearing set for July 27, 2016; 3:00 p.m.; amended as to Style).
PDF:
Date: 07/27/2016
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for July 27, 2016; 3:00 p.m.).
PDF:
Date: 07/26/2016
Proceedings: Unopposed Motion to Sever Cases and Reschedule Hearing filed.
PDF:
Date: 07/26/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/26/2016
Proceedings: Notice of Hearing (hearing set for August 15, 2016; 8:30 a.m.; Tallahassee, FL).
PDF:
Date: 07/26/2016
Proceedings: Order of Consolidation (DOAH Case Nos. 16-4132BID, 16-4133BID, 16-4134BID, 16-4135BID, 16-4136BID).
PDF:
Date: 07/25/2016
Proceedings: Notice of Appearance of a Specifically-named Party (filed by Isles of Pahokee Phae II, LLC.) filed.
PDF:
Date: 07/25/2016
Proceedings: Amended Notice of Appearance (Betty Zachem) filed.
PDF:
Date: 07/22/2016
Proceedings: Notice to All Bidders on RFA 2015-111 filed.
PDF:
Date: 07/22/2016
Proceedings: Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 07/22/2016
Proceedings: Agency referral filed.

Case Information

Judge:
G. W. CHISENHALL
Date Filed:
07/22/2016
Date Assignment:
07/25/2016
Last Docket Entry:
11/28/2016
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
BID
 

Related DOAH Cases(s) (4):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):