17-001543BID Joe Moretti Phase Three, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, June 9, 2017.

Summary: Petitioners failed to demonstrate that Florida Housing's actions regarding their requests to amend Extended Use Agreements were arbitrary, capricious, or contrary to competition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE MORETTI PHASE THREE, LLC,

Petitioner,

vs. Case No. 17 - 1543BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

VERBENA, LLC ; AND GM SILVER

CREEK, LTD.,

Intervenor s .

_________________________ ______/

STIRRUP PLAZA PHASE THREE, LLC,

Petitioner,

vs. Case No. 17 - 1544BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

VERBENA, LLC ; AND GM SILVER

CREEK, LTD.,

Intervenor s .

_______________________________/

RECOMMENDED ORDER

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

on April 12, 2017, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner s Joe Moret ti Phase Three, LLC and Stirrup

Plaza Phase Three, LLC :

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

For Respondent Florida Housing Finance Corporation :

Marisa G. Button, Esquire

Betty Zachem, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

For Intervenor Verbena, LLC:

J. Stephen Menton, Esquire

Tan a D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

For Intervenor GM Silver Creek, Ltd.:

Derek E. Bruce, Esquire

Sarah K. Vespa, Esquire

Gunster, Yoakley & Stewart, P.A.

Suite 1400

200 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination in this conso lidated bid

protest proceeding is whether the Florida Housing Finance

Corporation (ÐFlorida HousingÑ) acted arbitrarily, capriciously,

or contrary to competition by deem ing the applications of Joe

Moretti Phase Three, LLC. (ÐMoretti Phase Three Ñ) and Stirr up

Plaza Phase T hree, LLC. (ÐStirrup Plaza Phase Three Ñ) ineligible

for Request for Applications 2016 - 114, Housing Credit Financing

for Affordable Housing Developments Located in Miami - Dade County

(ÐRFA 2016 - 114Ñ).

PRELIMINARY STATEMENT

On February 16, 2017, GM Silver Creek, Ltd. (ÐGM Silver

CreekÑ) filed a ÐPetition for Formal Administrative HearingÑ

with Florida Housing challenging the final scoring and ranking

given to Ambar Key, LtdÓs (ÐAmbar KeyÑ) a pplication for RFA

2016 - 114.

On February 20, 2017 , Moretti Phase Three and Stirrup Plaza

Phase Three separately filed Ð Formal Written Protest [s] and

Petition [s] for Administrative Hearing [s] Ñ challenging Florida

HousingÓs determination that Moretti Phase Three Ós and Stirrup

Plaza Phase Three Ó s applicatio n s w ere ineligible for funding

pursuant to RFA 2016 - 114.

On March 13, 2017, Florida Housing referred all

three cases to DOAH for administrative hearings pursuant to

section 120.57(3), Florida Statutes. Moretti Phase ThreeÓs case

was assigned DOAH Case No. 17 - 1543, Stirrup Plaza Phase Three Ós

case was assigned DOAH Case No. 17 - 1544, and GM Silver Creek Ós

case was assigned DOAH Case No. 17 - 154 5.

Because the t hree cases involved Ðsubstantially similar

issues of law and closely related issues of fact,Ñ Fl orida

Housing filed an ÐUnopposed Motion to Consolidate CasesÑ on

March 14, 2017.

On March 26, 2017, the undersigned granted Florida

HousingÓs ÐUnopposed Motion to Consolidate Cases . Ñ

In response to a ÐPetition to InterveneÑ filed by Verbena,

LLC (ÐVer benaÑ) alleging that it could be displaced from funding

if Moretti Phase ThreeÓs challenge i s successful , the

undersigned issued an Order on March 23, 2017, granting the

aforementioned Petition. However, the undersigned specified

that

[i]n issuing this r uling, the undersigned

has not overlooked Joe Moretti Phase Three,

LLCÓs ÐResponse to Verbena, LLCÓs Motion to

InterveneÑ and the assertion that Verbena,

LLC will be seeking to raise issues that

should not be considered. Joe Moretti

Phase Three, LLC may r aise this argument

through a motion in limine filed on or

before March 29, 2017, and Verbena, LLC may

file a response within seven days

thereafter.

On March 23, 2017, the undersigned issued an Order granting

Ambar KeyÓs ÐPetition for Leave to Intervene. Ñ

Moretti Phase Three file d a ÐMotion in LimineÑ on March 29,

2017, asserting that Verbena Ðintends to raise additional issues

that go beyond the scope of this proceeding and the challenged

agency action.Ñ In support thereof, Moretti Phase Three argued

that Ð[i]t is settled law in Florida that an intervenor must

accept the record and pleadings as he finds them and cannot

raise new issues, but rather is limited to arguing the issues

raised by the parties as they apply to him.Ñ

In a r esponse filed on Apr il 5, 2017, Verbena explained its

position as to why it should be allowed to introduce an issue

into the instant proceeding:

As additional grounds to support Florida

HousingsÓ determination that MorettiÓs

application is ineligible, Verbena sets

forth in it s Petition to Intervene an

argument that the requisite Ðsewer

availability letterÑ in MorettiÓs

application does not meet the requirements

of the RFA which requires the applicant to

demonstrate, as of the application deadline,

that sewer capacity, package treatment or

septic tank service is available to the

entire proposed development site. That

argument is framed by the documents at issue

in this proceeding and relates directly to

the material issue of whether Florida

HousingÓs scoring of MorettiÓs applic ation

was inconsistent with the RFA or Florida

HousingÓs policies and whether the review

and actions taken by Florida Housing were

arbitrary or capricious, clearly erroneous

and contrary to competition.

* * *

Unless and until Moretti filed a challe nge

to the determination that it was ineligible,

there was no reason or basis for Verbena to

initiate an unnecessary proceeding. It was

only when VerbenaÓs preliminary funding

award was put at issue that Verbena had a

reason and an opportunity to point ou t

additional grounds for determining Moretti

is ineligible. Accordingly, the instant

case is VerbenaÓs only opportunity to raise

any and all scoring issues it believes are

relevant to MorettiÓs application.

On April 11, 2017, GM Silver Creek, Ambar Key , and Florida

Housing filed a j oint m otion asking the undersigned to sever and

relinquish jurisdiction over Case No. 17 - 1545. In support

thereof, the aforementioned p arties asserted that they had

reached agreements regarding certain aspects of Ambar KeyÓs and

GM Silver CreekÓs applications.

The final hearing commenced as scheduled on April 12, 2017.

At the outset of the final hearing, the undersigned orally

granted the aforementioned j oint m otion, and an Order to that

effect was issued on April 20, 2017 .

At the outset of the final hearing, the undersigned also

addressed Moretti Phase ThreeÓs Motion in Limine by elect ing to

defer ruling, and the Motion in Limine is addressed in the

Conclusions of Law below.

Moretti Phase Three presented the testimony of Anthony

Del Pozzo, the Vice President of Finance for the Related Group ,

and Ken Reecy, Florida HousingÓs Director of Multifamily

Programs .

The undersigned accepted Joint Exhibits 1 through 13 into

evidence.

Florida Housing introduced one E xhibit th a t was accepted

into evidence.

As agreed to during the final hearing, Verbena filed its

composite Exhibit 1 on April 26, 2017.

The T ranscript from the f inal hearing was filed on

April 27, 2017.

After receiving a one - day extension of time via an Order

i ssued on May 4, 2017, Moretti Phase Three, Stirrup Plaza Phase

Three , Verbena, and Florida Housing filed timely Proposed

Recommended Order s on May 9, 2017. GM Silver CreekÓs Proposed

Recommended Order was officially filed at 8:00 a.m . on May 10,

2017. Al l of the aforementioned Proposed Recommended Orders

have been considered in the preparation of this Recommended

Order.

FINDING S OF FACT

Facts Regarding F lorida Housing and Affordable Housing Tax

Credits

1. F lorida Housing is a public corporation cre ated

pursuant to section 420.504, Florida Statutes. 1/ Its purpose is

to promote public welfare by administering the governmental

function of financing affordable housing in Florida.

2. Pursuant to section 420.5099, F lorida Housing is

designated as the housing credit agency for Florida within the

meaning of section 42(h)(7)(A) of the Internal Revenue Code.

Accordingly, F lorida Housing has the responsibility and

authority to establish procedures for allocating and

distributing low - income housing tax cred its.

3. The low - income housing tax credit program was enacted

to incenti vize the private market to invest in affordable rental

housing. Tax credits are awarded competitively to housing

developers in Florida for rental housing projects which qualify.

The se credits are then normally sold by developers for cash to

raise capital for their projects. This reduces the amount o f

capital that developers have to borrow. Because the total debt

is lower, a tax credit property can (and must) offer lower, more

affor dable rents.

4. Developers also covenant to keep rents at affordable

levels for periods of 30 to 50 years as consideration for

receipt of the tax credits.

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

$1,000 deduction in a 15 percent tax brack et reduces taxable

income by $1,000 and reduces tax liability by $150, while a

$1,000 tax credit reduces tax liability by $1,000.

6. The demand for tax credits provided by the federal

government exceeds the supply. Accordingly, Florida

Administrative Co de Chapter 67 - 60 provides that F lorida Housing

allocates its tax credits, which are made available to F lorida

Housing on an annual basis by the U.Seasury, through the bid

protest provisions of section 120.57(3), Florida Statutes.

7. In their applicati ons for tax credits, applicants

request a specific dollar amount of housing credits to be

supplied each year for a period of 10 years. Applicants will

normally sell the rights to that future stream of income tax

credits (through the sale of almost all of the ownership

interest in the applicant entity) to an investor to generate the

amount of capital needed to build the development.

8. Tax credits are made available through a competitive

application process commenced by the issuance of a Request for

Appl ications (ÐRFAÑ). An RFA is equivalent to a Ðrequest for

proposal.Ñ See Fla. Admin. Code R. 67 - 60.009( 4 ) (providing that

Ð[f]or purposes of Section 120.57(3), F.S., any competitive

solicitation issued under this rule chapter shall be conside re d

a Òrequest for proposal . ÓÑ).

9. ÐApplicants not selected for funding under any

competitive solicitation issued pursuant to [Chapter 67 - 60,

F.A.C.] may only protest the results of the competitive

solicitation process pursuant to the procedures set forth in

Section 120.57(3), F.S., and Chapter 28 - 110, F.A.C.Ñ Fla.

Admin. Code R. 67 - 60.009(2).

Facts Specific to RFA 2016 - 114

10. RFA 2016 - 114 describe s its purpose as follows:

This Request for Applications (RFA) is open

to Applicants proposing the development of

aff ordable, multifamily housing located in

Miami - Dade County.

Under this RFA, Florida Housing Financing

Corporation (the Corporation) expects to

have up to an estimated $5,682,725 of

Housing Credits available for award to

proposed Developments located in Mia mi - Dade

County. The Corporation is soliciting

applications from qualified Applicants that

commit to provide housing in accordance with

the terms and conditions of this RFA,

inclusive of Exhibits A, B, C, an D,

applicable laws, rules and regulations, and

t he CorporationÓs generally applicable

construction and financial standards.

11. Florida HousingÓs Board of Directors approved the

issuance of RFA 2016 - 114 on June 24, 2016.

12. Prior to the issuance of RFA 2016 - 114, F lorida Housing

conducted a public workshop on Au gust 25, 2016.

13. A draft ver sion of RFA 2016 - 114 was posted on F lorida

Housing Ós websi te on September 15, 2016.

14. The final version of RFA 2016 - 114 was issued on

October 28, 2016, and applications were due by 11:00 a . m .,

Eastern Ti me on December 15, 2016.

15. There were no challenges to the terms of RFA 201 6 -

114 after it was issued.

16. A provision within RFA 2016 - 114 stated that

Ð[a]pplicants should review subsection 67 - 48.023(1), F.A.C., to

determine eligibility to apply for the Housing Credits offered

in this RFA. Ñ

17. The aforementioned rule provides in pertinent part

that an applicant is ineligible to apply for competitive housing

credits if

[t]he proposed Development site or any part

thereof is subject to any Land Use

Restriction Agreement or Extended Use

Agreement , or both, in conjunction with any

Corporation affordable housing finance

intended to foster the development or

maintenance of affordable housing . . . . Ñ

(emphasis added).

18. An Extended Use Agreement (ÐEUAÑ) is an agreement

between an applicant seeking tax credits and F lorida Housing .

An EUA runs with a particular piece of property and is meant to

assure that the property is devoted to affordable housing .

19. In addition, Florida Administrative Co de Rule 67 -

48.002(44) defines an ÐEUAÑ in the context of this tax credit

program as Ðan agreement which sets forth the set aside

requirements and other Development requirements under the

housing credit program.Ñ Set aside requirements reflect how

much of the development is set aside for low - income te nants.

20. An applicant can seek to have an EUA amended by filing

a request with F lorida Housing . The request would begin with a

staff member of F lorida Housing , move to F lorida Housing Ós

assistant director of multifamily programs, and then to the

director of multifamily programs for a n ultimate decision.

21. The process by which an EUA is amended is not set

forth in a rule or policy manual.

22. There is no established time by which F lorida Housing

mus t act on a request to amend an EUA.

23. T here is no typical time by which F lorida Housing

grants or denies a request to amend an EUA.

24. Also, there is nothing requiring F lorida Housing to

expedite a decision on whether to grant or deny a request to

amend an EUA.

25. F lorida Housing received 25 applications in response

to RFA 2016 - 114. F lorida Housing received, processed,

evaluated, scored, and ranked each of the applications pursuant

to the terms of RFA 2016 - 114, Florida Administrative Code

Cha pters 67 - 48 and 67 - 60, and applicable federal regulations.

26. The Executive Director of F lorida Housing, Ken Reecy,

appointed a R eview C ommittee of F lorida Housing staff to conduct

the aforementioned evaluation, scoring, and ranking.

27. F lorida Hou sing only considered an application for

funding if it was deemed ÐeligibleÑ based on whether that

application complied with Florida HousingÓs various content

requirements.

28. Of the 25 applications submitted, F lorida Housing

deemed 19 to be Ðeligible, Ñ and six were deemed Ðineligible.Ñ

29. F lorida Housing proposed to award funding to three

developments: Ambar Key, Verbena, and Northside Property IV ,

Ltd.

30. As discussed below, F lorida Housing deemed the Moretti

Phase Three and Stirrup Plaza Ph ase Three applications to be

ineligible because the properties associated with those

applications w ere still subject to EUAs at the December 15,

2016, deadline for RFA 2016 - 114.

Facts Regarding Moretti Phase Three Ós and Stirrup Plaza Phase

Three Ós Appli cations

31. Moretti Phase Three submitted an application seeking

$2,400,000 in annual allocation of housing credits to finance

the construction of a 103 - u nit development.

32. Stirrup Plaza Phase Three submitted an application

seeking $1,950,000 in a nnual allocation of housing credits to

finance the construction of an 85 - unit development.

33. The Moretti Phase Three and Stirrup Plaza Phase Three

applications represent subsequent phases of existing

developments , and both of those developments are de voted to

affordable housing.

34. All of the land associated with both developments had

been subject to EUA s since 201 5.

35. Because Moretti Phase Three and Stirrup Plaza Phase

Three wanted to obtain tax credit financing, they needed to have

those EUA s amended. 2 /

36. Anthony Del Pozzo is the v ice p resident for Moretti

Phase Three and Stirrup Plaza Phase Three . Mr. Del Pozzo

focuses much of his attention on affordable housing and has

assisted with the preparation of 30 to 50 tax credit

applications to F lorida Housing .

37. After RFA 2016 - 114 was issued, Mr. Del Pozzo contacted

F lorida Housing via telephone calls and e - mails in order to

ascertain the process by which the EUAs could be amended .

38. Mr. Del PozzoÓs initial e - mail to F lorida Housing

re garding amending the EUA s was transmitted on November 1, 2016,

and stated the following:

Libby, I will be sending this request to

you, Amy a nd Lisa to modify the EUAÓs

for our Joe Moretti (first phase) and

Stirrup Plaza (f irst phase) properties,

both of wh ich are 9% dea ls. I will also

have to modify the EUA for our Seville

Place deal, which was financed with bonds

and 4% credits. Will that one also go to

the same people or should I reach out to

Bill Cobb or someone else?? Thanks!!

39. Mr. Del PozzoÓs initial e - mail was acknowledged by an

F lorida Housing employee (Libby OÓNeil) later that day.

40. On November 2, 2016, Mr. Del Pozzo transmitted an

e - mail to Amy Garmon, Libby OÓNeil, and Lisa Nickerson of

F lorida Housing formally requesting to amen d the Moretti Phase

Three EUA:

Please accept this e - mail as our formal

request to modify the legal description of

the EUA for Joe Moretti Preservation Phase

One, LLC. Attached please find a copy of

the recorded EUA, a sketch with Phase I

modified legal de scription and a site plan

showing the entire site and the portion

where the Phase One building is located

(cross - hatched). As you can see from the

sketch we are modifying the legal

description to include only the portion of

the property where the building is located.

We will be submitting a portion of the

remainder of the property for 9% tax credits

in the 2016 RFA . [ 3 / ]

(emphasis added).

41. Lisa Nic kerson is a multifamily programs manager at

F lorida Housing , and one of her duties involves work ing with

developers seeking EUA amendments. Ms. Nickerson completed the

initial processing of all EUA Amendment requests at all times

relevant to the instant case . However, Ms. Nickerson wa s not

responsible for approving EUA amendments.

42. On November 3, 2016, Ms. Nickerson responded to

Mr. Del PozzoÓs November 2, 2016, e - mail with the following e -

mail:

We are happy to assist. Because this is a

change to the legal description, we will

treat it as a site change. Before we can

amend the EUA we need the followin g, as

outlined in the carryover agreement:

Ʊ $500 processing fee

Ʊ Affidavit from a Florida licensed

surveyor certifying that the tie - breaker

measurement point has not moved and that the

change in the development site has not

affected any zoning requirements. If the

tie - breaker measurement poin t has moved from

the location provided in the application,

the change in location cannot affect the

score and a new surveyor certification form

is required.

Upon receipt of the above items, we will

process [an ] amendment to the EUA.

43. On November 8 , 2016, Mr. Del Pozzo sen t Ms. Nickerson

an e - mail stating that he has a ÐPDF copy of the Survey

Affidavit.Ñ Mr. Del Pozzo then ask ed if he need ed the surveyor

to send him Ðan original for my package to FHFC??Ñ

44. Ms. Nickerson responded three minutes later by stating

that F lorida Housing Ðcan use the PDF to start drafting the

amendment, but we will need the original for the file.Ñ

45. On November 9, 2015, Ms. Nickerson sent an e - mail

to Mr. Del Pozzo stating that she had reviewed the affidavit

and found that application numb er was incorrect. She gave

Mr. Del Pozzo the correct application number, asked him to make

that change, and resend the affidavit.

46. In anothe r e - mail transmitted to Mr. Del Pozzo on

November 9, 2016, Ms. Nickerson also aske d him to send an

up dated legal description.

47. At 6:52 p . m . o n November 9, 2016, Mr. Del Pozzo

transmitted an e - mail asking Ms. Nickerson to confirm Ðif this

revised affidavit is acceptable. As requested, IÓve also

attached a copy of the legal descrip tion. Thanks again for all

your help.Ñ

48. At 10:04 a . m . on November 10, 2016, Mr. Nickerson

responded with an e - mail stating, ÐThis looks good. As soon as

I receive the originals and the $500 fee I will send the amended

EUA for you to sign.Ñ

49. On November 10, 2016, Mr. Del Pozzo transmitted a n

e - mail notifying Ms. Nickerson that he Ðwill be submitting a

similar modification request for Stirrup Plaza Preservation

Phase One, LLC.Ñ

5 0 . Accordingly, Ms. Nickerson received later that day a

draft af fidavit, a copy of the legal description of the property

associated with the Stirrup Plaza Phase Three property, and a

survey identifying the two parcels t hat were being carved out.

5 1 . However, on November 1 4, 2016, Mr. Del Pozzo sent

Ms. Nickerson an e - mail stating that Ð[w]e will be making some

additional revisions to the legal description for Stirrup Plaza.

Please hold off on the request to modify the EUA on that one

until I confirm the correct legal description. I apol ogize for

the inconvenience.Ñ

5 2 . By November 14, 2016, F lorida Housing had received an

explanation letter, a $500 fee, an affidavit, and a new legal

description for the Moretti Phase Three EUA amendment.

53. Florida Housing cashed a $500 check pertaining to the

Moretti Phase Thre e application on approximately November 14,

2016.

54. As a result, the request to amend the Moretti Phase

Three EUA was transferred to K en R eecy on November 29, 2016 , for

final approval .

55. Ken Reecy is F lorida Housing Ós Dir ector of Multifamily

Prog rams and is generally responsible for the program that

allocates tax credits in order to finan ce affordable housing.

In addition, Mr. Reecy is the person ultimately responsible for

determining whether a request to amend an EUA will be approved.

56. Up on receiving the paperwork associated with the

request to amend the Moretti Phase T hree EUA, Mr. Reecy noticed

that it was seeking to release an unusually large amount of

land. That was a concern for Mr. Reecy because releasing that

land from the EUAÓs re strictions would enable it to become a

Ðmarket rate development that could be worth . . . millions of

dollars.Ñ In contrast, F lorida Housing wants land to remain

affordable in the future and thus takes a very conservative

approach toward releasing land un der restrictions.

57. Due to his concern regarding the amount of land in

question and because he was very busy with other work, Mr. Reecy

put the Moretti Phase Three EUA amendment aside.

58. At this point in time, Mr. Reecy was unaware that the

Mor etti Phase Three EUA had to b e amended prior to the

December 15, 2016 , deadline for RFA 2016 - 114.

59. On December 1, 2016, Ms. Nickerson transmitted an

e - mail to Mr. Del Pozzo regarding the Moretti Phase Three

amendment stating that, ÐI received your voicemail. I am

waiting for the site change approval to come back to me. Once I

have it, I will email a copy of the EUA amendment with

instructions. I am hopeful you will have it early next week, if

not before.Ñ

60. While all of the required documen tation for the

Moretti Phase Three EUA amendment was received by November 14,

2016, F lorida Housing did not receive the explanation letter or

the affidavit pertaining to the Stirrup Plaza Phase Three EUA

until December 5, 2016.

61. After receiving the a ffidavit pertaining to the

Stirrup Plaza Phase Three EUA, Ms. Nic kerson sent Mr. Del Pozzo

an e - mail on December 5, 2016, stating, ÐThank you, Tony. I

will get this underway, this week.Ñ

62. Mr. Reecy received the paperwork for the Stirrup Plaza

Phase Three EUA amendment on approximately December 7, 2016.

However, he was unaware that this amendment was necessary in

order for Stirrup Plaza Phase Three to apply for RFA 2016 - 114.

63. As the December 15, 2016, deadline for the RFA 2016 -

114 applications drew near, F lorida Housing had yet to approve

Moretti Phase Three Ós and Stirrup Plaza Plaza Phase ThreeÓs

request s to amend their EUAs. Accordingly, Mr. Del Pozzo wrote

the following e - mail to Ms. Nickerson on Monday, December 12,

2016, at 1:54 p . m . :

I le ft a voicemail message for Ken [Reecy]

this morning, asking him to follow up with

me if he had any questions or needed any

additional information to sign - off on the

modifications to the EUAs. I also wanted to

make sure he was aware that we are modifying

t he EUAÓs so that we can submit new phases

to the projects in this yearÓs 9% LIHTC RFA

for Miami - Dade County. Applications are due

on 12/15. So, we would greatly appreciate

it if he could sign off on the modifications

in advance of the application deadlin e. I

will take scanned copies whenever they are

ready.

64. This wa s the first time that Mr. Del Pozzo had

communicated to F lorida Housing staff that there was any sort of

time constraint associated with the requests to amend the

Moretti Phase Three and Stirrup Plaza Phase Three EUAs.

65. On Tuesday, December 13, 2016, at 11:50 a.m.,

Mr. Del Pozzo sent the follow ing e - mail to Mr. Reecy and

Ms. Nickerson:

I know that you are both extremely busy, so

IÓm sorry for being so persistent. As I

mentioned to Lis a over the phone and

indicated in my e - mail below, we will be

submitting new phases of the Joe Moretti and

Stirrup Plaza projects for funding in RFA

#2016 - 114 for Miami - Dade County. As such,

we have been working with Lisa for the past

several weeks to ens ure that we have

submitted all of the information necessary

to modify the Extended Use Agreements for

the initial phases of these properties. We

are removing the portion of the land that

will be part of the new phases from the

legal descriptions in the EU As.

Based on our latest discussions, I believe

everything is in order and we are only

awaiting final sign - off. If you could

please sign off on these modifications in

advance of the RFA due date (12/15/16), we

would greatly appreciate it. Please call m e

if you have any questions or need any

additional information. Thanks for all of

your help.

66. Four minutes later, Ms. Nickerson responded to the

above e - mail by stating, ÐWe are aware and your requests are

currently under review. Thank you for your patience.Ñ

67. December 13, 2016, is the first day that Ms. Nickerson

was aware that Moretti Phase Three and Stirrup Plaza Phase Three

were planning to file applications in respon se to RFA 2016 - 114.

68. On Thursday, December 15, 2016, at 8:30 a.m . , A lbert

Milo 4 / s ent the following e - mail to Ms. Nickerson and Mr. Reecy:

Good morning, Lisa I hope you are doing

well. Just wanted to follow up again on the

EUA modifications for our two projects since

today is the Application Deadline. Can you

please let me know if FHFC has finalized it?

Thanks for your assistance. Have a great

day.

69. Mr. Reecy responded at 9:01 a.m . with an e - mail asking

Mr. Milo Ðwhat is the best number t o call you right now?Ñ

70. Mr. Reecy wanted to confer with Mr. Milo because

Florida Housing had no verification that the land associated

with the Stirrup Plaza Phase Three project was under a

declaration of trust (ÐDOTÑ). Without a DOT, Mr. Reecy was

concerned that the land would not be used for affordable

h ousing.

71. In con trast, F lorida Housing already had verification

that the land associated with Moretti Phase Three was under a

DOT.

72. On December 15 , 2016, prior to 11:00 a.m . , Mr. Reecy

advised a representative from Moretti Phase Three and Stirrup

Plaza Phase Three v ia a telephone call that he would approve

Stirrup Plaza Phase ThreeÓs EUA Amendment request if he could be

provided with verification that the Stirrup Plaza Phase Three

development site was subject to a DOT.

73. During the same phone call, Mr. Reecy adv ised the

representative that he did not believe that Moretti Phase Three

and Stirrup Plaza Phase Three would be eligible for funding

under RFA 2016 - 114 because their proposed development locations

would still be subject to EUAs at the application deadline.

74. On December 15, 2016, at 9:55 a.m ., Mr. Milo sent an

e - mail to Mr. Reecy providing him with the copy of the Stirrup

Plaza Phase Three DOT:

Hi Ken as per our conversation here is a

copy of the actual DOT for Stirrup Plaza

Preservation Phase one. I have also

requested a letter from PHCD confirming the

same. As I mentioned this was a

Preservation deal that consisted of the

rehabilitation of 100 Public Housing units.

Please let me know if you need anything else

from us. Thanks for your assistance getting

this finalized. We really appreciate it.

75. Exactly one hour later, Mr. Milo sent the following

e - mail to Mr. Reecy:

Hi Ken just want to confirm our conversation

this morning where you informed me that you

had approved and signed off on the EUA

modification for Joe Moretti Preservation

Phase One.

As it relates to Stirrup Plaza Preservation

Phase One, we have sent you a copy of the

DOT and a letter from PHCD confirming the

DOT. Please let me know if you require any

additional information fro m us to finalize

your approval as you mentioned in our phone

conversation. Thanks for your assistance in

this matter.

76. Moretti Phase Three and Stirrup Plaza Phase Three

filed applications for funding under RFA 2016 - 114 by the

application deadline.

77. As of the 11:00 a.m. application deadline, the Moretti

Phase Three and Stirrup Plaza Phase Three proposed developments

were subject to existing EUAs.

78. At 1:05 p . m . on December 15, 2016, Ms. Nickerson

e - mailed the following information to Mr. Milo:

Attached, please find the First Amendment to

the EUAs for Joe Moretti Preservation Phase

One and for Stirrup Plaza Preservation Phase

One. The amendments reflect the changes to

the legal descriptions found at Exhibit A.

Please review and execu te the amendments,

and return to me with a check made payable

to the appropriate county in which the

agreements will be recorded. Standard

recording fees are $10 for the first page

and $8.50 for every page thereafter.

However, please contact the appropri ate

county for confirmation of their fees and

any form of payment restrictions.

79. On December 15, 2016, at 2:37 p . m . , Moretti Phase

Three and Stirrup Plaza Phase Three e - mailed F lorida Housing PDF

copies of the executed Amended EUAs and indicated the originals

and recording fee checks were being sent via FEDEX the same day.

80. Mr. Reecy received the signed amendments and then

signed them himself on December 20, 2016. Mr. ReecyÓs signature

was the final step in the EUA amendment process other than the

actual recording of the amended EUAs.

81. The amended EUAs for Moretti Phase Three and Stirrup

Plaza Phase Three were recor ded on February 6, 2017.

82. F lorida Housing scored the applications for RFA 2016 -

114 on January 25, 2017.

83. On Febru ary 3, 2017, Florida Housing announced its

intention to award funding to three applicants, two of which

were Ambar Key and Verbena.

84. Florida Housing did not select the applications of

Moretti Phase Three and Stirrup Plaza Phase Three for funding

beca use those applications were deemed ineligible given that the

proposed development sites were subject to EUAs at the time

their applications were filed.

Findings Regarding F lorida Housing Ós Treatment of the EUA

Amendment Applications

85. The greate r weight of the evidence demonstrates that

no relevant personnel at Florida Housing knew about the time -

sensitive nature of the requests to amend the EUAs before

December 12, 2016.

86. If Ms. Nickerson and/or Mr. Reecy had been advised of

the time - sens itive nature within a reasonable time prior to

December 15, 2016 , the greater weight of the evidence indicates

they would have made good faith efforts to expedite the process

and that the EUAs would have likely been amended prior to the

deadline.

87. The greater weight of the evidence demonstrates that

no one at Florida Housing did anything to delay the

applications , to amend the EUAs , or anything to undermine

Moretti Phase Three Ós or Stirrup Plaza Phase ThreeÓs

applications for RFA 2016 - 114.

88. In sum, the greater weight of the evidence

demonstrates that Florida Housing did not act arbitrarily,

capriciously, or contrary to competition.

CONCLUSIONS OF LAW

89. Florida Housing has jurisdiction over this matter,

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

Statutes. Florida Housing has contracted with DOAH to provide

an Administrative Law Judge to conduct the informal hearing in

this case.

90. Florida HousingÓs decisions in this competitive

process impact the substantial interests of e ach party, and each

party has standing to challenge Florida HousingÓs scoring in

this proceeding.

91. This is a competitive procurement protest proceeding

and, as such, is governed by section 120.57(3)(f) , 5 / which

provides as follows in pertinent part:

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In a

competitive - procurement protest, other than

a rejection of all bids, proposals, or

replies, the administrative law judge shall

conduct a de novo proceeding to determine

whether the agencyÓs proposed action is

contrary to the agencyÓs governing statutes,

the agencyÓs rules or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. . . .

92. As the applicants for funding in this proceeding,

Moretti Phase Three and Stirrup Plaza Phase Three have the

burden of establishing entitlemen t to the funding the y seek by a

preponderance of the evidence . See Fla. DepÓt of Transp. v .

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; DepÓt of

Banking and Fin. v. Osborne Stern and Co. , 670 So. 2d 933 (Fla.

1996) .

93. Moretti Phase Three an d Stirrup Plaza Phase Three

assert that the actions (or inactions) of Florida Housing at

issue in the instant case were arbitrary, capricious, or

contrary to competition, and their argument is summarized in the

following excerpts from their Proposed Recomm ended Order:

It appears this is a case of first

impression in that the PetitionersÓ

challenge here is not necessarily tied to a

review of any document submitted with the

Applications but instead is limited to the

consideration of the documentation that

wou ld have existed had Florida Housing

processed these requests for Amended EUAs in

a timely manner. In the instant case there

is no disagre ement that Amended EUAs had

not been executed as of the Application

Deadline. A ccording to Florida Housing

and Interv enors, therefore PetitionersÓ

Applications did not meet the rule

requir ements and are ineligible. Mr. Reecy

indicated that had the Amended EUAs been

signed by the Application Deadline then the

Moretti Three and Stirrup Three Applications

would have been d eemed eligible. However,

the reason the Amended EUAs were not timely

signed rests upon Florida HousingÓs own

failure to process the Amendments in a

timely manner, rather than anything within

the control of Petitioners.

* * *

While no malicious intent was argued or

found, Florida HousingÓs delay in approving

the requests is the sole reason behind the

ineligibility determination. At a minimum

Florida HousingÓs action or inaction has

created Ðan appearance of an opportunity for

favoritism,Ñ and can be s een as an action

that erodes public confidence that contracts

are being awarded equitably, and certainly

causes the procurement process to appear

generally unfair. It is found that based on

the established facts these actions clearly

put Moretti Three and Stirrup Three at a

competitive disadvantage and therefore

Florida HousingÓs actions in not using

reasonable efforts to review the requests to

meet the deadline and then using the

deadline as a reason for ineligibility was

contrary to competition.

DOAH Has Jurisdiction to Provide the Relief Sought by Moretti

Phase Three and Stirrup Plaza Phase Three

94. As a threshold matter, Florida Housing argues that

DOAH has no jurisdiction to award the equitable relief sought by

Moretti Phase Three and Stirrup Pla za Phase Three . 6 /

95. As stated in Florida HousingÓs Proposed Recommended

Order:

PetitionersÓ true underlying challenges as

articulated in the Petitions, is not Florida

HousingÓs scoring of the Applications, but

rather, Florida HousingÓs processing of

P etitionersÓ EUA Amendment requests. In

effect, Petitioners are seeking equitable

relief that would deem the Amended EUAs to

be effective prior to the Application

Deadline, and/or to estopp [sic] Florida

Housing from scoring the Applications in

accordance with the applicable RFA and Rule

requirements.

* * *

The amendment of the EUA agreements was not

final agency action, nor was it some type of

relief that Petitioners had a statutory

right to receive, nor was it relief with a

corresponding Ðdeemer claus eÑ where failure

of an agency to respond to a request in a

definitive time period would result in a

deemed approval of the request at issue.

* * *

The EUA amendment requests and the RFA

Application submissions are two separate

issues and Florida Housi ng had the

discretion to approve or reject the EUA

amendment requests.

* * *

DOAH does not have jurisdiction to

adjudicate the propriety of the agency

action that does not fall under its purview,

such as the processing of the requests to

amend EUAs.

96. However, Florida HousingÓs reasoning is erroneous and

could lead to situations susceptible to favoritism .

97. First of all, Florida HousingÓs own precedent

indicates that an a pplicant for tax credits can challenge

Florida HousingÓs determination t hat the applicant is

ineligible for funding. See Trinity Towers Preservation Assoc .

LLLP v. Fla. Housing Fin. Corp. , FHFC Case No. 2012 - 024UC,

2012 Fla. Div. Admin. Hear. LEXIS 869 (FHFC Final Order June 8,

2012)(adopting a hearing officerÓs recommended c onclusion of law

that Ð[b]ecause Florida Housing determined that Petitioner was

ineligible for funding due to failure to meet a threshold

requirement, PetitionerÓs substantial interests are affected by

Florida HousingÓs proposed agency action.Ñ ); § 120.569 (1), Fla.

Stat. (providing that Ð[t]he provisions of this section apply in

all proceedings in which the substantial interests of a party

are determined by an agency, unless the parties are proceeding

under s. 120.573 or s. 120.574.Ñ).

98. M oreover, unde r the circumstances of the instant case,

it is inaccurate to take the position that Ð[t] he EUA amendment

requests and the RFA Application submissions are two separate

issues .Ñ

99. By requiring through r ule 67 - 48.023(1) that lands

associated with propos ed developments not be subject to an EUA,

Florida Housing has tied the EUA amendment process and the RFA

application process together. This is especially true in light

of the fact that prospective applic ants for tax credits must

obtain approval for an EUA amend ment from Florida Housing.

100. Therefore, under the circumstances of the instant

case, Florida HousingÓs actions (or inactions) pertaining to

PetitionersÓ requests to amend their EUAs are inextricably

linked to Florida HousingÓs proposed agency a ction deeming

PetitionersÓ applications ineligible for funding under RFA 2016 -

114.

101. A contrary determination concluding that FloridaÓs

Housing actions (or inactions) pertaining to PetitionersÓ EUA

amendment requests are immune from any sort of review would

create an opportunity for Florida Housing to engage in

favoritism or to act contrary to competition by expeditiously

processing requests from preferred applicants and delaying the

processing of request s from less favored applicants.

102. If Florid a HousingÓs rationale was to be generally

applied to all types of bid protests, then any applicant who

needed some sort of credential or other documentation from the

contracting agency would have no means of redress if the

contracting agency intentionally withheld that

credential/documentation or unreasonably (but non - maliciously)

delayed provision of t hat credential/documentation.

103. Such a result would undermine the intent behind the

Administrative Procedure Act and section 120.57(3). See

generally Commercial Consultants Corp. v. DepÓt of Bus. Reg . ,

363 So. 2d 1162 , 1163 (Fla. 1 st DCA 1978)(stating that Ð[t]he

APA applies to all agency action affecting the substantial

interests of a party.Ñ); Eduardo S. Lombard, Bid Dispute

Resolution , Fla. Admin. Pr actice § 11.4 (10 th ed. 2015)

(explaining that Ð[t]he ultimate question in procurement

disputes is whether one vendor has received an advantage over

other vendors. If one bidder is or potentially could be

provided an advantage not enjoyed by the other ven dors, the

potential for favoritism arises and the ultimate purpose of

requiring competitive solicitations is thwarted.Ñ).

104. Accordingly, the undersigned concludes that DOAH has

jurisdiction to assess whether any delay by Florida Housing in

granting t he amended EUAs for Moretti Phase Three and Stirrup

Plaza Phase Three was arbitrary, capricious, or contrary to

competition .

Florida HousingÓs Actions and/or Inactions Toward PetitionersÓ

Requests to Amend the EUAs Were Not Arbitrary, Capricious, or

Contr ary to Competition.

105. As discussed above, Moretti Phase Three and Stirrup

Plaza Phase Three argu e that Florida HousingÓs actions (or

inactions) pertaining to the requests to amend the EUAs w ere

arbitrary, capricious, or contrary to competition. In o ther

words, the issue for determination is whether Florida Housing

acted arbitrarily, capriciously, or contrary to competition when

it failed to act more expeditiously in granting the request s to

amend the EUAs.

106. An agency takes action Ð contrary to competition Ñ when

it unreasonably interferes with the objectives of competitive

bidding. Those objectives have been stated to be:

[T]o protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove n ot

only collusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favoritism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal adva ntage to

all desiring to do business with the

[government], by affording an opportunity

for an exact comparison of bids.

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

1190, 1192 (Fla. 2d DCA 1977)(quoting Wester v. Belote , 138 So.

721, 72 3 - 724 (Fla. 1931)).

107. ÐA capricious action is one taken without thought or

reason or irrationally. An arbitrary decision is one not

supported by facts or logic, or [one that is] despotic.Ñ Agrico

Chem. Co. v. DepÓt of Envtl. Reg. , 365 So. 2d 759, 7 63 (Fla. 1 st

DCA 1978).

108. In the instant case, there is no persuasive evidence

that Ms. Nickerson, Mr. Reecy, or any other relevant personnel

at Florida Housing were aware prior to Mr. Del Pozzo

transmitting the following e - mail on December 12, 2016, that

Moretti Phase Three and Stirrup Plaza Phase Three were seeking

to amend the EUAs so that they could apply for RFA 2016 - 114:

I left a voicemail message for Ken [Reecy]

this morning, asking him to follow up with

me if he had any questions or needed a ny

additional information to sign - off on the

modifications to the EUAs. I also wanted to

make sure he was aware that we are modifying

the EUAÓs so that we can submit new phases

to the projects in this yearÓs 9% LIHTC RFA

for Miami - Dade County. Applicatio ns are due

on 12/15. So, we would greatly appreciate

it if he could sign off on the modifications

in advance of the application deadline. I

will take scanned copies whenever they are

ready.

10 9 . There is also no persuasive evidence that

Ms. Nickerson, Mr. Reecy, or any other relevant personnel at

Florida Housing were aware prior to the above - quoted e - mail that

any sort of time constraint was associated with their requests

to amend the EUAs.

1 10 . Without any persuasive evidence that Florida Housing

was aware or timely notified that Moretti Phase Three and

Stirrup Plaza Phase Three were working under a deadline , the

undersigned cannot conclude that Florida HousingÓs failure to

act more expeditiously on the requests to amend the EUAs was

arbitrary, caprici ous, or unreasonably interfere d with the

objectives of competitive bidding.

11 1 . In contrast, if Mr. Del Pozzo had advised Florida

Housing on November 1, 2016, or soon thereafter that it needed

the EUAs to be amended by December 15, 2016, t hen any

unrea sonable delay by Florida Housing in processing those

requests could have potentially serve d as a basis for concluding

that Florida Housing acted arbitrarily, capriciously, or

contrary to competition. In other words , any unreasonable delay

on Florida Housi ng Ós part could have led a reasonable person to

infer that Florida Housing preferred other applicant s and was

intentionally attempting to undermine the applications of

Moretti Phase Three and Stirrup Plaza Phase Three .

11 2 . However, there is no persuasi ve evidence that Florida

Housing unreasonably or intentionally dela yed the processing of

the applications. Ms. Nickerson provided timely responses to

Mr. Del PozzoÓs e - mails, she made appropriate requests for more

documentation, and she transferred the ap plications to Mr. Reecy

within a reasonable amount of time. While Mr. Reecy had the

request to amend the Moretti EUA by November 29, 2016, he did

not immediately approve the request because he had a concern

regarding the large amount of land involved. 7 /

11 3 . The parties did not cite any analogous cases in their

Proposed Recommended Orders , and the undersigned was unable to

find any Florida cases with a similar fact pattern .

11 4 . However, after expanding the search for relevant case

law beyond Florida, the undersigned found MVS USA, Inc. v. U.S. ,

111 Fed. Cl. 639 ( 2013).

11 5 . MVS involved a Request for Quote (ÐRFQÑ) for a

spectrum of satellite communication services to support the

Joint Battle Command - Platform Blue Force Tracking under the

Future Com mercial Satellite Communications Services Acquisition

Program (Ðthe FCSA ProgramÑ). The FCSA Program was a

partnership between the General Services Administration (ÐGSAÑ)

and the Defense Information Systems Agency (ÐDISAÑ). Id. at

643.

11 6 . On Novembe r 15, 2012, DISA issued an RFQ seeking

quotes for the aforementioned satellite services. The quotes

were due by December 14, 2012, and the contract was to be

awarded by February 1, 2013. Id. at 645. Bidders had to have

security clearance.

11 7 . On Dec ember 6, 2012, MVS submitted an application for

security clearance to Anne Miller, a GSA contract specialist.

Ms. Miller then forwarded the application to Donald Carlson, the

FCSA Program Security Manager. MVS at 645.

1 1 8 . O n February 13, 2013, DISA det ermined that MVS had

submitted the lowest - priced technically acceptable quote.

However, MVSÓs quote was ineligible because MVS did not have the

required security clearance. As a result , DISA awarded the

contract to Northrup Grumman. Id. at 646.

1 1 9 . In ruling against MVSÓs challenge to GSAÓs actions in

handling MVSÓs request for security clearance, the Court of

Federal Claims ruled as follows:

The record reflects a long period of

inaction between December 6, 2012, and

February 1, 2013, on the part of GS A.

During that time, MVS did not contact GSA to

inquire about its application for a facility

security clearance until it received a

letter from DISA requesting a final

quotation revision and proof of facility

clearance. See AR 32 - 1788 to - 89 (Request

for Final Quotation Revision). MVS

represents that its inactivity was

reasonable, because it contends that the

evaluation notices sent by DISA in late

December made no mention that MVS's

submission with respect to a facility

clearance was deficient. See Hr' g Tr. 72:2 -

18. It claims that it acted promptly to

resolve the matter after receiving notic e

from DISA that proof of a security clearance

would be needed in February. See Hr'g Tr.

72:18 - 22. The court concurs that MVS's

actions are understandable in ligh t of the

circumstances. MVS did not hinder the

facility clearance application process in

any manner.

Regarding GSA's actions, Mr. Carlson

provides an explanation for his delay in

processing MVS's facility clearance request.

He notes tha t between December 6, 2012,

and February 1, 2013, he worked "on the

development of [six] DD - 254 packages,

including MVS's, as well as . . . numerous

others that were in various stages of

development or modification award

processing." Decl. of Donald V. Carlson

("Carlson De cl.") ¶ 14 (May 10, 2013), ECF

No. 44. He states that he also worked on a

security audit report and was on personal

leave for sixteen days during that time

period. Id. Mr. Carlson additionally

says he halte d the processing of DD Form

254 requests for a two - week period in

January while DSS "was questioning

whether a bona fide need existed for any

facility clearances under SINs 132 - 54 and

132 - 55 under Schedule 70." Id. ¶ 15. He

resumed processing requests after that issue

was resolved and "worked on all the

vendors['] requests for facility clearances

and did not expedite the request of any

particular vendor." Id. ¶ 16. Mr. Carlson,

however, notes that he did expedite the

processing of MVS's request as soon as he

was informed that the matter required pro mpt

consideration. Id. ¶ 17.

Under these circumstances, the court cannot

say that MVS's quote and attendant request

for a facility security clearance did not

receive fair consideration as required by

FAR 8.405 - 2(c)(3)(iii). While Mr. Carlson

certainly di d not act with alacrity, vigor,

or timeliness, he provided a propinquent

level of bureaucratic service and

consideration. He did not actively ignore

any indications that MVS's request was

urgent, and he provided MVS with appropriate

action once he became aware of the exigency.

In sum, MVS has not demonstrated that the

government, acting through GSA or DISA, has

committed a violation of FAR 8.405 -

2(c)(3)(iii).

MVS at 652 - 53.

1 20 . Just like Mr. Carlson , Florida HousingÓs staff:

(a) provided a reasonable level of bureaucratic service and

consideration ; (b) did not ignore any indications that the

Moretti Phase Three and Stirrup Plaza Phase Three requests were

urgent; and (c) provided appropriate action when they became

aware of the urgency.

12 1 . Therefor e, Florida HousingÓs actions or inactions

pertaining to the Moretti Phase Three and Stirrup Plaza Phase

Three requests were not arbitrary, capricious, or contrary to

competition. 8 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions

o f Law, it is RECOMMENDED that the Florida Housing Finance

Corporation issue a final order awarding funding to Ambar Key,

Ltd. ; Verb e na , LLC ; and Northside Property IV, Ltd.

DONE AND ENTERED this 9 th day of June, 2017, in

Tallahassee, Leon County, Flor ida.

S

G. W. CHISENHALL

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.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of June, 2017.

ENDNOTE S

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

the 2016 version of the Florida Statutes.

2 / Moretti Phase Three and Stirrup Pl aza Phase Three had one or

more representatives present at the workshop for RFA 2016 - 114,

and an argument could be made that they could have moved to

amend the EUAs at issue as soon as it became evident that RFA

2016 - 114 would prohibit any proposed develop ment from being

subject to an EUA . However, Mr. Del Pozzo persuasively

explained that draft RFAs are subject to change and that moving

to amend an RFA prior to it being finalize d could lead to wasted

effort.

3/ Mr. Del Pozzo asserted at the final hear ing that the

underlined portion of his e - mail should have put Florida

Housing on notice that Moretti Phase Three was preparing an

application for RFA 2016 - 114 because that was to be the last RFA

for 2016. However, the undersigned finds that sentence to be

insufficiently explicit to support a finding that such notice

was conveyed to Florida Housing.

4/ W hile Mr. Del Pozzo i s the Vice President of Finance for the

Related Group, Mr. Milo is the Principal and Senior Vice

President of the Related Group .

5 / Al though competitive solicitation /bid protest proceedings are

described in section 120.57(3), as being de novo in nature,

courts acknowledge that these de novo proceedings are not like

other substantial interest proceedings under section 120.57.

Heari ngs pursuant to section 120.57(3)(f) have been described as

a Ðform of intra - agency review. The judge may receive evidence,

as with any formal hearing under § 120.57(1), but the object of

the proceeding is to evaluate the action taken by the agency.Ñ

Sta te Contracting and EngÓg Corp. v. DepÓt of Transp. , 709 So.

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

6 / DOAHÓs jurisdiction was n ot set forth as an issue in

the Pre - hearing Stipulation or a motion to dismiss, and was

not discussed during the formal hearing. Under normal

circumstances, that would lead the undersigned to rul e that an

issue was not properly raised. See Palm Beach Polo Holdings,

Inc. v. Broward Marine, Inc. , 174 So. 3d 1037, 1038 - 39 (Fla. 4 th

DCA 2015)(stating that Ð[p]retrial stipulations pres cribing the

issues on which a case is to be tried are binding upon the

parties and the court, and should be strictly enforced.Ñ ); Fla.

Admin. Code R. 28 - 106.204(2)(providing that Ð[u]nless otherwise

provided by law, motions to dismiss the petition or reque st for

hearing shall be filed no later than 20 days after assignment of

the presiding officer, unless the motion is based upon a lack of

jurisdiction or incurable errors in the petition.Ñ). However,

Florida HousingÓs argument appears to implicate DOAHÓs s ubject

matter jurisdiction. Therefore, the undersigned elected to

address Florida HousingÓs jurisdiction argument because

Ð[p]arties may not confer subject matter jurisdiction by waiver,

failure to object, or consent where none is given by law.Ñ

DepÓt of High . Saf . & Motor Veh . , Div. of Highway Patrol v.

Kropff , 491 So. 2d 1252 , 1254 n.1 (Fla. 3d DCA 1986).

7 / Mr. Reecy persuasively testified that he did not delay the

requests. Also, he would have acted more quickly if he had

known of the time constr aint .

8 / In light of this ruling , there is no need to address Moretti

Phase ThreeÓs Motion in Limine. Accordingly, it is denied as

being moot.

COPIES FURNISHED:

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

Suite 5000

227 No rth Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

(eServed)

Marisa G. Button, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

(eServed)

Betty Zachem, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

(eServed)

Sarah Kathleen Vespa, Esquire

Gunster, Yoakley & Stewart, P.A.

401 East Jackson Street

Tampa, Florida 33602

(eServed)

Derek E. Bruce, Esquire

Gunster, Yoakley & Stewart, P.A.

Suite 1400

200 South Orange Avenue

Orlando, Florida 32801

(eServed)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suit e 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

(eServed)

M. Christopher Bryant, Esquire

Oerte l, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

(eServed)

James A. Boyd, Esquire

Boyd Law Office, P.A.

Post Office Box 69

Panama City, Florida 32402

(eServed)

Kate Flemming , Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.