16-006611RU Jonathan L. Wolf, Berkshire Square, Ltd; Hawthorne Park, Ltd; And Southwick Commons, Ltd vs. Florida Housing Finance Corporation Status: Closed DOAH Final Order on Wednesday, January 18, 2017.

Summary: Petitioners did not prove that two existing rules were invalid or that various statements were unadopted rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN RESIDENTIAL DEVELOPMENT

LLC; PATRICK LAW; MADISON

HIGHLANDS, LLC; JONATH A N L.

WOLF ; BERKSHIRE SQUARE, LTD;

HAWTHORNE PARK, LTD; AND

SOUTHWICK COMMONS, LTD,

Petitioner s,

vs. Case Nos. 16 - 6610RU

16 - 661 1 RU

FLORIDA HOUSING FINANCE

CORPORATION ,

Respondent ,

and

HERITAGE OAKS, LLLP; AND

HTG ANDERSON TERRACE, LLC ,

Intervenor s .

_______________________________/

FINAL ORDER

This matter came before D. R. Alexander, Administrative Law

Judge of the Division of Administrative Hearings (DOAH) , after

the parties waived a final hearing and submitted a stipulated

record . The parties are represented as follows .

APPEARANCES

For Petitioner s : Craig D. Varn, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 201

204 South Monroe Street

Tallahassee, Florida 32301 - 1591

For Respondent : Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 13 29

For Intervenor: Michael P. Donaldson, Esquire

(Heritage Park) Carlton Fields Jorden Burt, P.A.

Post Office Box 190

Tallahassee , Florida 32 3 02 - 0190

For Intervenor: Maureen McCarthy Daugh ton, Esquire

(HTG) Maureen McCarthy Daughton, LLC

Suite 3 04

1725 Capital Circle Northeast

Tallahassee, Florida 32308 - 0595

STATEMENT OF THE ISSUE S

The issue s are (1) wheth e r Florida Administrative Code

Rules 67 - 48.002(95) and 67 - 60.010 (3) are invalid exercise s of

delegated legislative authority ; and (2) whether certain

statements in Request for Application 2016 - 113 (RFA - 113) issued

by Respondent, Florida Housing Finance Corp oration ( Florida

Housing or agency), are unlawful unadopted rules in violation of

section 120.54(1)(a) , Florida Statutes (2016) .

PRELIMINARY STATEMENT

After Florida Housing published its notice soliciting

applications pursuant to RFA - 113, o n November 14, 201 6 ,

Petitioners American Residential Development, LLC (ARD) , Madison

Highlands, LLC (Madison) , and Patrick Law (Law) filed with DOAH

a Petition for Administrative Determination of Invalidity of

Rules 67 - 48.002(95) and 67 - 60. 010, Florida Administrative Co de,

and Non - Rule Policy , which was assigned Case No. 16 - 6610RU. On

the same date, Jonathan L. Wolf (Wolf) , Berkshire Square, Ltd

(Berkshire) , Hawthorne Park, Ltd (Hawthorne) , and Southwick

Commons, Ltd (Southwick) , filed with DOAH a second Petition,

which was assigned Case No. 16 - 6611RU. The two cases were

assigned to Administrative Law Judge Green , consolidated , and

then transferred to Administrative Law Judge Peterson . On

November 15, 2016, the same Petitioners filed with Florida

Housing two Petitions for Administrative Determination of

Invalidity of RFA 2016 - 113 , which protested certain

specifications in RFA - 113 . After Florida Housing referred the

two files to DOAH , they were assigned Case Nos. 16 - 6698 and

16 - 6699 , initially given a n RU suffix, and consolidated with

Case Nos. 16 - 6610RU and 16 - 6611RU. The undersigned then granted

the parties ' request to consolidate the four cases with Case

No. 16 - 6168RX , which challenged certain statements in RFA - 110

and the same two agency rules. The day a fter con solidation,

Petitioners filed a voluntary dismissal in Case No. 16 - 6168RX.

Intervenors Heritage Oaks, LLLP ( H eritage) , and HTG Anderson

Terrace, LLC (HTG) , who intend to file applications in response

to the RFA - 113 solicitation, were authorized to inter ve ne in

support of Florida Housing.

Because Case Nos. 16 - 6698 and 16 - 6699 challenge

specifications in RFA - 113, the RU suffix has been changed to a

BID suffix, and a separate recommended order is being entered in

those cases. See § 120.57(1)(e) , Fla. Stat. , which now

authorizes a person challenging agency action to file a

collateral rule challenge under section 120.56 regarding the

agency's use of an invalid or unadopted rule in a section 120.57

proceeding.

All parties agreed to waive a final hearing and su bmit a

stipulated record. The record consists of J oint E xhibits 1

through 3 : RFA - 113, as modified ; 26 U.S.C. S . § 42 of the

Internal Revenue Code (IRC); and Florida Housing ' s 2016

Qualified Allocation Plan (QAP) . Also, Florida Housing offered

Exhibit 1, which is the deposition of former Executive Director

Steve Auger . Although Petitioners do not stipulate to any parts

of the deposition , a ll exhibits are accepted in evidence .

Finally, t he parties submitted a Joint S tipulation of certain

facts .

P roposed f inal orders (PFOs) were filed by Petitioners and

Florida Housing , and they have been consid ered in the

preparation of this Final Order. Intervenors have joined in the

Florida Housing 's PFO . To the extent Petitioners' PFO , with an

attached exhibit, expand s the issues raised in the Petitions,

those issues have been disregarded.

F INDINGS OF FACT

A. The Parties

1. Florida Housing is a public corporation created

pursuant to section 420.504. One of its responsibilities is to

award low - income housing tax credits, which developers use to

finance the construction of affordable housing. Tax credits are

made available to states annually by the United States Treasury

Department and are then awarded pursuant to a competitive cycle

that starts with Florida Housi ng's issuance of a n RFA. This

proceeding concerns RFA - 113.

2. Petitioner s ARD and Madison are developer s of

affordable housing units and submit applications for tax

credits. Law and Wolf are principal s of a developer of

affordable housing units. Berk shire , Hawthorne , and Southwick

are limited partnerships that have submitt ed applications for

tax credits . All Petitioners intend to submit application s in

response to RFA - 113 and will be subject to rule chapters 67 - 48

and 67 - 60 .

3. Intervenors Heritage and HTG are developers of

affordable housing who intend to file applications pursuant to

RFA - 113.

B. Background

4. On October 28, 2016, Florida Housing published on its

website proposed solicitation RFA - 113 , a 121 - page document

inviting a pplic ations for the award of up to $14,669,052.00 in

housing tax credits for the development of affordable ,

multifamily housing located in Broward, Duval, Hillsborough,

Orange, Palm Beach, and Pinellas Counties . After Petitioners

gave notice of their intent to challenge RFA - 113 , Florida

Housing attempted to resolve the dispute by modifying the

solicitation on November 13, 2016 . The modification did not

resolve the dispute.

5 . On November 14, 2016, Petitioners timely filed with

DOAH two Petitions, each challenging rules 67 - 48.002(95) and

67 - 60.010 (3) and various statements in RFA - 113. On the same

date, they filed with Florida Housing two petitions challenging

certain specifications in the solicitation. Although the

Petitions include allegations that two existing rules are

invalid, Petitioners' main concern appears to be directed at

various provisions in RFA - 113 that they assert limit their

ability to be awarded tax credits. The se contentions are

addressed separately below.

C. Rule 67 - 48.002(95)

6 . The federal Low - In come Housing Credit Program is

governed by 26 U.S.C.S. § 42 (section 42) . The program

allocates annually federal income tax credits to states on a per

capita basis to help facilitate private development of

affordable low - income housing.

7 . As the housi ng credit agency for the State of Florida ,

Florida Housing has the authority to administer various federal

and state affordable housing programs, including the Low - Income

H ousing C redit P rogram. See § 420.5099(1), Fla. Stat.

8 . Section 42(m)(l)(A)(i) r equires e ach state that

administers low - income housing credits to adopt a QAP , which

identifies the selection criteria used for distributing the

housing credit s.

9 . To comply with this requirement, r ule 67 - 48.002(95)

a dopts and incorporates by referenc e the 2016 QAP. The rule

reads as follows:

(95) "QAP" or "Qualified Allocation Plan"

means, with respect to the HC [Housing

Credit] program, the 2016 Qualified

Allocation Plan which is adopted and

incorporated herein by reference, effective

upon the appr oval by the Governor of the

State of Florida, pursuant to Section

42(m)(1)(B) of the IRC and sets forth the

selection criteria and the preferences of

the Corporation for Developments which will

receive Housing Credits. The QAP is

available on the Corporat ion's Website under

the Multifamily Programs link or by

contacting the Housing Credit Program at

227 North Bronough Street, Suite 5000,

Tallahassee, Florida 32301 - 1329, or from

http://flrules.org/Gateway/reference/asp?No=

Ref - 07355.

1 0 . The 2016 QAP is a five - page document that replaces the

201 5 QAP and generally describes the process for allocati ng

2017 housing credits . In sum mary , i t identifies Florida Housing

a s the housing credit agency for the State, lists the federally -

mandated p references and se lection criteria to be used when

allocating housing credits , describes in brief terms the

competitive solicitation process, describes the process for

awarding competitive and noncompetitive housing credits, and

describes the procedures for monitoring and r eporting a

project's noncompliance with IRC requirements.

1 1 . Section 42(m)(1)(C) lists ten selection criteria that

must be incorporated into the QAP. To comply with this

requirement, s ection I.B. of the 2016 QAP provides that the

following selection cri teria will be considered when determining

the allocation of h ousing c redits:

a. project location;

b. housing needs characteristics;

c . project characteristics including

housing as part of a community

revitalization plan;

d. sponsor characteristics ;

e. tenant populations with special housing

needs;

f. public housing waiting lists;

g. tenant populations of individuals with

children;

h. projects intended for eventual tenant

ownership;

i. energy efficiency of the projects; and

j. historic natur e of project.

1 2 . These criteria are identical to those listed in

section 42(m)(1)(C) and are intended to provide general guidance

for the entire housing credit program , and not just RFA - 113 .

1 3 . Other than the ten criteria, t he IRC requires no

fur ther detail regarding the selection criteria. However, more

specific guidance is found in the individual RFAs, tailored to

each type of solicitation . Since late 2013, when the RFA

solicitation process began , around 15 to 20 RFAs have been

issued annually . Petitioners assert the QAP violate s the IRC by

not listing the RFA criteria . However , neither the Department

of Housing and Urban Development nor the Internal Revenue

Service has ever told Florida Housing that the QAP does not

comply with the IRC or ot her applicable federal regulations .

1 4 . The rule cites s ection 420.507 as Florida Housing's

rulemaking authority. That statute has 49 subsections that

identif y the various powers necessary for Florida Housing to

carry out and effectuate the p rovisions of the law. Pertinent

to this dispute is subsection (12) , a general grant of authority

for Florida Housing "[ t ] o make rules necessary to carry out the

purposes of [ part V, chapter 420 ] , " which governs the various

low - income housing programs administered b y the agency . The

rule cites s ection 420.5099(1) as the law being implemented .

That provision designates Florida Housing as the housing credit

agency for the state , along with its "responsibility and

authority to establish procedures necessary for proper

allocation and distribution of low - income housing tax credits

and [to] exercise all powers necessary to administer the

allocation of such credits." While consistency with section 42

is required in order to satisfy federal requirements, t he IRC is

not the law being implemented.

1 5 . Petitioners alleg e the rule exceeds the agency's grant

of rulemaking authority and enlarges, modifies, or contravenes

the specific provisions of law implemented . See § 120.52(8)(b)

and (c), Fla. Stat. In s hort , t hey contend t h at other than the

generic selection criteria required by section 42 (m)(1)(C) , the

QAP fails to include the other selection criteria in RFA - 113

that are used during the competitive process .

D. Rule 67 - 60.010(3)

1 6 . Petitioners also challenge r ule 67 - 60.0 10 (3) . The

entire rule , entitled "Funding Preferences," reads as follows:

(1) In connection with any competitive

solicitation, where all other competitive

elements are equal, the Corporation may

establish a preference for developers and

general contracto rs who demonstrate the

highest rate of Florida job creation in the

development and construction of affordable

housing.

(2) In any competitive solicitation, the

Corporation may prescribe a priority to fund

affordable housing projects in the Florida

Keys A rea of Critical State Concern and the

City of Key West Area of Critical State

Concern where, due to challenging

environmental, land use, transportation,

workforce, and economic factors, it is

extremely difficult to successfully finance,

develop, and constr uct affordable housing.

(3) The Corporation may establish other

funding priorities as deemed appropriate for

a competitive program or solicitation.

1 7 . The rule cites s ection 420.507(12) a s the source of

rulemaking authority. That statute is a general grant of

authority allowing Florida Housing to adopt rules necessary to

carry out the purposes of part V, chapter 420 , which includes

the issuance of tax credits under the Low - I ncome Housing Credit

Program .

1 8 . The rule cites sections 420.507 (47), (48) , and (49) ,

420.5087 , 420.5089(2) , and 420.5099 as the law s being

implemented . In their totality, t hose provisions authorize

Florida Housing to adopt rules and procedures for allocating

housing credits and loans for programs that it administers

pursuant t o chapter 420 . One authorized procedure is the

authority to use RFAs when awarding low - income housing tax

credits . See § 420.507(48), Fla. Stat.

1 9 . On the faulty premise that RFA - 113 derives its

authority from subsection (3) of the rule , rather than st atutory

law, Petitioners argue that Florida Housing is allocat ing l ow -

i ncome h ousing t ax c redits in a manner that violates s ection 42

and chapter 420 . They contend authority is delegated by the RFA

to local governments to choose which developer will recei ve

local funding, thus giving that developer more preferential

treatment in the selection process . By doing so , Petitioners

assert subsection (3) violates section 120.52(8)(d) by failing

to establish adequate standards for agency decisions and vest ing

unb ridled discretion in the agency.

20 . As the record shows, t he authority to allocate tax

credits is not derived from a rule . The source of authority is

a statute. Subsection (3) simply informs readers that , besides

th e statutorily - mandated procedures s pelled out in subsections

(1) and (2), other types of funding priorities or preferences

m ay be enacted at some future time by the legislature . As these

changes occur, the reader is told that specific rules will be

adopted to implement those changes.

E. Agency Statements

2 1 . The allegations c oncerning unadopted rules , all in the

RFA, are somewhat confusing. In their PFO, Petitioners request

that a final order be entered determining "the policies that

make up virtually all of RFA 2016 - 113 are invalid non - rule

policies." Pet'r PFO, p. 23. In paragraph 38 of the PFO , t hey

make reference to RFA pages 2, 13, 20, 22, 40 - 45, 53 - 54, 62 - 63,

67 - 68, 72, and 110 , but elsewhere provide the actual text of

only six statements and a brief description of a few others . In

the parties' Joint Stipulation, Petitioners assert only that

"RFA 2016 - 113 contains numerous provisions that are invalid

exercises of non - rule policy and are without a basis in or are

contrary to the law implemented." Jt. Stip., p. 2, § B.1. No

state ments are identified or des cribed . As detailed in

endnote 1, however, their initial Petitions identify the text of

some statements and provide a brief description of others , along

with the page number on which they are found . 1/ Only these

statements wi ll be addressed. Petitioners contend that Florida

Housing must immediately discontinue all reliance upon them,

stop the solicitation process, and issue a new RFA. It is

unnecessary to recite each statement in full in order to resolve

this dispute.

2 2 . A n RFA is issued for each solicitation involving low -

income housing credits. Before posting an RFA, Florida Housing

typically conducts workshops and posts on - line information to

inform prospective applicants of all requirements and any new

provisions. By reading the RFA, each prospective applicant is

placed on equal footing with the others. RFA - 113 consists of

six sections : Introduction; Definitions; Procedures and

Provisions; Information to be Provided in Application;

Evaluation Process; and Award Proce ss. The definitions and

funding selection criteria being challenged are found in

s ection s Two and Four , respectively. A lengthy Exhibit A is

attached to RFA - 113, which includes various f orms , instructions,

and the like.

2 3 . The evidence shows that RFA s in the low - income rental

housing program are not always the same, a s they vary depending

on such things as the type of project, size of the county,

applicable selection criteria, proximity of other developments,

program being implemented, demographics be ing served, and

economic conditions in the area. Also, changes in the

substantive law or f ederal re gulations re quire a modification of

an RFA 's terms and conditions from time to time. For example,

RFA - 113 contains new criteria used by Florida Housing for the

very first time. In s hort , RFA - 113 is tailored to a very narrow

class of persons in the six - county area who seek tax credits to

build affordable low - income rental property in th at area.

2 4 . The s election criteria in RFA - 113 are not cast in

stone an d some are subject to discretionary application. And

applicants can achieve points in different ways. During the

review process, evaluators have the discretion to either waive

or enforce irregularities , depending on how they characterize

the irregularity . It is fair to assume from the record that

different members of the evaluation committee might assign a

different score to the same section of an application.

F. Is Rulemaking Imp racticable ?

2 5 . Petitioners contend that Florida Housing must adopt by

r ule the detailed selection criteria, preferences, and

definitions contained in every RFA . These terms and conditions

change from cycle to cycle and would require Florida Housing to

engage in repetitive rulemaking each year, which more than

likely would un duly delay the solicitation process . Assuming

arguendo the statements are a rule, which they are not, under

the circumstances presented here, it is not reasonable to adopt

by rule precise or detailed principles, criteria, or standards

for every solicitati on . See § 120.54(1)(a)2. a., Fla. Stat.

G. Attorney's Fees and Costs

2 6 . As a condition precedent to seeking an award of

attorney's fees and costs against an agency for having an

illegal unadopted rule, the person bringing the challenge must

give the a gency 30 days' notice before filing a petition under

section 120.56(4) , which notice must inform the agency that the

disputed statement might constitute an unadopted rule. See

§ 120.595(4)(b), Fla. Stat. The parties have stipulated that

Petitioners failed to provide this notice.

CONCLUSIONS OF LAW

2 7 . Petitioners are substantially affected by the

challenged rules and statements and have standing to bring this

action. Intervenors also have standing to participate.

Existing Rules

2 8 . Petitioners hav e the burden of proving by a

preponderance of the evidence that rules 67 - 48.002(95) and

67 - 60.010(3) are invalid exercise s of delegated legislative

authority as to the objections raised . § 120.56(3)(a), Fla.

Stat.

29 . Section 120.52(8) defines "invali d exercise of

delegated legislative authority" in relevant part to mean:

[ A ]ction that goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if an y one of the following

applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1; [or]

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.

(d) The rule is vague, fails to establish

adequate standards for agency decisions , or

vests unbridled discretion in the agency;

* * *

A grant of rulemaking authorit y is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implem ent

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interp reting the specific powers and duties

conferred by the enabling statute.

Petition er s contend rule 67 - 48.002(95) exceeds its grant o f

rulemaking authority and enlarges, modifies , or contravenes the

specific provisions of law implemented , and rule 67 - 60.010 (3)

fails to establish adequate standards for agency decisions and

vests unbridled discretion in the agency .

3 0 . An agency may adopt rules "only where the Legislature

has enacted a specific statute, and authorized the agency to

implement it, and then on ly if the rule implements or interprets

specific powers or duties." State, Bd. of Trustees of the Int.

Impust Fund v. Day Cruise Ass'n , 794 So. 2d 696, 700 (Fla.

1st DCA 2001). In considering an agency's statutory authority

to adopt a rule, "[t]he qu estion is whether the statute contains

a specific grant of legislative authority for the rule, not

whether the grant of authority is specific enough." SW Fla.

Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d

594, 599 (Fla. 1st DCA 2000).

3 1 . Rule 67 - 48.002(95) cites section 420.507 as the source

of its rulemaking authority. Subsection (12) authorizes Florida

Housing " [t] o make rules necessary to carry out the purposes of

this part [part V, chapter 420] and to exercise any power

granted in thi s part pursuant to the provisions of chapter 120."

This statute provides a general grant of rulemaking authority.

However, as the flush - left paragraph in section 120.52(8) makes

clear, these general grants of rulemaking authority are, alone,

insufficient to authorize the adoption of the rule. Thus, the

next inquiry required by the flush - left paragraph is whether the

challenged rule provisions "implement or interpret the specific

powers and duties granted by the enabling statute."

3 2 . Section 420.5099(1 ), the law being implemented, gives

Florida Housing the authority "to establish procedures necessary

for proper allocation and distribution of low - income housing tax

credits." In order to properly allocate and distribute tax

credits, Florida Housing must adopt a QAP. Rule 67 - 48.002(95)

does exactly this. The rule does not exceed the grant of

rulemaking authority .

3 3 . Petitioners also contend the same rule contravenes the

specific provisions of the law being implemented by failing to

include in the QAP the RFA - 113 selection criteria . There is,

h owever, no specific requirement that the QAP adopt all of the

specifications in the solicitation. Petitioners also argue that

the QAP violates section 42, but the IRC is not the law being

implemented. The rule does not contravene section 420.5099(1).

3 4 . Petitioners contend r ule 67 - 60.010(3) fails to

establish adequate standards for agency decisions and vests

unbridled discretion in the agency. This argument is based on

the incorrect assumption that rule 67 - 60.010(3) is the authority

for Florida Housing to allocate tax credits through an RFA. The

record shows otherwise, as subsection (3) does not serve as the

RFA's source of authority. Rather, section 420.507(48)

authorizes Florida Housing to award low - inco me housing tax

credits by competitive solicitation. The rule merely informs

the reader that Florida Housing "may establish other funding

priorities" when authorized by the legislature. The rule does

not violate section 120.52(8) (d) .

Unadopted Rules

3 5 . Section 120.56(4)(a) authorizes any person who is

substantially affected by an agency statement to seek an

administrative determination that the statement is actually a

rule whose existence violates section 120.54(1)(a) because the

agency has not formall y adopted the statement.

3 6 . Petitioners have the burden of establishing by a

preponderance of the evidence that the challenged agency

statements constitute unpromulgated rules.

37 . No explanation is given as to why the text of all

challenged stateme nts is not recited in the Petitions , as the

text should be readily accessible in the RFA. This would avoid

confusion or doubt as to which statements are being challenged.

In any event, Petitioners are bound by the allegations in their

Petitions, as furth er limited by the Prehearing Stipulation.

Heartland Envtl. Council, Inc. v. Dep't of C mty. Aff . , Case No.

94 - 2095GM (Fla. DOAH Oct. 15, 1996; Fla. DCA Nov. 25, 1996).

Therefore, only those allegations in the Petitions are relevant

to this controversy.

38. Section 120.56(4)(a) provides that the "petition shall

include the text of the statement or a description of the

statement" being challenged. A vague reference to "policies , " a

very brief description, or a page number in the RFA , and nothing

more, whe n the text of the RFA is readily available, does not

comply with the statute. See Aloha Utils., Inc. v. PSC , 723 So.

2d 919, 921 (Fla. 1st DCA 1999)(a challenge to the PSC's "audit

procedures," without describing or reciting the text of any of

the indi vidual statements being challenged, fails to comply with

the statute). Therefore, allegations in the Petitions of this

nature have not been considered.

3 9 . Section 120.52(20) defines an unadopted rule as "an

agency statement that meets the definition of the term 'rule,'

but that has not been adopted pursuant to the requirements of

s. 120.54."

40 . Section 120.52(16) defines the term "rule" to mean

each agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by

an existing rule. The term also includes

the amendment or repeal of a rule.

4 1 . To be a rule, the statement s must have general

applicability , and not apply just to a singular factual

situation . A g . for Health Care Admin. v. Custom Mobility, Inc. ,

995 So. 2d 984 , 986 (Fla. 1st DCA 2008). If a statement is

limited to a sing ular factual situation, or the class of persons

or activities is too narrow, it is not considered an agency

statement of general applicability.

4 2 . The chal lenged statements are not statements of

general applicability. They are specific to the solicita tion

process for affordable rental housing tax credits in a small

geographic area. They have no applicability other than to the

specific persons who submit an application in response to

R FA - 113. The record also shows that in applying and evaluating

va rious provisions within the RFA, the evaluation committee may

exercise discretion. State, Dep't of Admin. v. Stevens , 344 So.

2d 290, 296 (Fla. 1st DCA 1977). Given these circumstances, t he

statements are not rules.

4 3 . Finally, assuming arguendo the statements fall within

the definition of a rule, for the reason stated in Finding of

Fact 2 5 , adoption of the statements as a rule is not

p racticable. See § 120.54(1)(a)2.a., Fla. Stat.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is

ORDERED that rules 67 - 48.002(95) and 67 - 60.010(3) are not

an invalid exercise of delegated legislative authority ; the

challenged statements are not unlawful unadopted rules ; and the

Petitions are denied .

DONE AND ORDERED this 18th day of Janua ry, 2017, in

T alla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January, 2017.

ENDNOTE

1/ In the first section of the Petitions labeled "The 2016 QAP

and the 'Plan , '" the text or a brief description with the page

number of t he following challenged statements are made: the

definition of "Local Government Areas of Opportunity" on page 2;

section 4.A.6.a . (2), page 20, relating to local government

funding; and section 4.A.10.b., page 37, relating to local

government support. Se e Petitions, pp. 12 - 13, ¶¶ 39, 41, and 42;

pp. 12 - 13, ¶¶ 40, 42, and 43.

In the second section labeled "Exclusion of Eligible Developments

from Funding," Petitioners provide a brief description of two

statements found on pages 2 and 13 of the RFA. The first

statement is the definition of a RECAP area. The second

described statement, section 4.A.5.c.(1), provides that with one

exception, certain proposed developments located within a RECAP

area are not eligible to receive funding. See Petitions,

pp. 14 - 15, ¶¶ 46 - 47; pp. 13 - 14, ¶¶ 47 - 48.

In the third section labeled "Illegal Delegation of Legislative

Authority to Local Governments," Petitioners provide the text of

five statements found on pages 2 (Section Two, Definitions),

13 - 14 (§ 4.A.5.c.(1) ), 20 (§ 4.A.6.a.(2)), and 40 - 41 (two parts

of § 4.A.10.b.) of the RFA. These statements relate generally to

provisions that award extra points to developers who receive cash

or grants from a local government or whose projects will be in a

specified area within the local government. See Petitions,

pp. 16 - 19, ¶¶ 60, 61, 64, 66, and 69; pp. 16 - 18, ¶¶ 60, 61, 64,

66, and 69.

No other portions of the 121 - page RFA are challenged in the

initial Petitions.

COPIES FURNISHED:

Michael P. Donaldson, Esqui re

Carlton Fields Jorden Burt, P.A.

Post Office Box 190

Tallahassee, Florida 32302 - 0190

(eServed)

Chistopher Dale M cGuire, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 323 01 - 13 29

(eServed)

Craig D. Var n, Esquire

Manson Bolves Donaldson Varn, P.A.

204 South Monroe Street , Suite 20 1

Tallahassee, Florida 32301 - 1591

(eServed)

Douglas P. M anson, Esquire

Manson Bolves Donaldson Varn, P.A.

1101 Swann Avenue

Tampa, Florida 33606 - 2637

(eServed)

Mau reen M. Daughton, Esquire

Maureen McCarthy Daughton, LLC

1725 Capital Circle Northeast, Suite 304

Tallahassee, Florida 32308 - 0595

(eServed)

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahass ee, Florida 32301 - 13 29

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Rev iew proceedings are governed by the Florida Rules of Appellate

Procedure. Such proc eedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as other wise provided by law.