18-002156BID Htg Village View, Llc vs. Marquis Partners, Ltd., And Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Friday, July 27, 2018.


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Summary: Petitioner proved that Respondent's scoring decision regarding Respondent's application was erroneous and that Respondent's application is ineligible for funding. Funding should be awarded to Petitioner.

1notice of its intended decision to award funding to one applicant from each of the

16six counties, and one additional applicant from Broward County. Respondent

26Marquis Partners was selected for funding as one of the two applicants in Broward

40County. Petitioner HTG Village View was deemed eligible for funding, but through

52the process outlined in the RF A it was ranked lower than Marquis Partners and was

68not selected for funding. Petitioner timely filed its notice of intent to protest

81followed by a formal written protest.

87The protest was referred to the Division of Administrative Hearings

97("DOAH"). A formal hearing took place on June 1, 2018, in Tallahassee, Florida,

112before Administrative Law Judge Yolonda Y. Green (the "ALJ").

122At hearing, HTG Village View argued that Marquis Partners' application

132should be deemed ineligible for failure to properly disclose all of the Principals of

146the Applicant. Based on information discovered during the course of litigation,

157Florida Housing changed its initial position that Marquis Partners was deemed

168eligible, and took the position at hearing that Marquis Partners should have been

181found ineligible for failure to disclose all Principals. Marquis Partners argued that

193HTG Village View did not have standing to contest the funding award to Marquis

207Partners because HTG Village View did not have site control at the date the formal

222written protest was filed. After the hearing, all parties timely filed Proposed

234Recommended Orders.

236After consideration of the oral and documentary evidence presented at

246hearing, and the entire record in the proceeding, the ALJ issued a Recommended

259Order on July 27, 2018. A true and correct copy of the Recommended Order is

274attached hereto as "Exhibit A." The ALJ determined that Petitioner met its burden

287to establish that Florida Housing's initial determination was contrary to the terms of

300the RF A or was clearly erroneous, and recommended that Florida Housing determine

313that Marquis Partners was ineligible for funding and award funding to HTG Village

326View instead.

328Florida Housing and HTG Village View jointly filed one Exception to the

340Recommended Order. Marquis Partners filed seven Exceptions. Marquis Partners

349filed a Response to the joint Exception, and Florida Housing and HTG Village View

363jointly filed Responses to Marquis Partners' Exceptions.

370Florida Housing's and HTG ViiJage View's Joint First Exception

379Florida Housing and HTG Village View take Exception to Finding of Fact 48,

392in which the ALJ made the following finding:

40048. Florida Housing evaluates omissions from the Principal

408Disclosure Form based on whether the inclusion of the incorrect

418information negatively impacts other applicants.

423All parties appear to agree that this finding is, at least, grammatically

435incorrect, as it is clearly not possible to evaluate an "omission" based upon whether

449such omission includes certain information. Florida Housing and HTG Village View

460recommend that the entire finding be rejected, while Marquis Partners suggests that

472it be substantially rewritten to reference a "minor irregularity" analysis. Based upon

484the evidence at hearing, Florida Housing evaluates omissions from the Principal

495Disclosure Form differently than it does inclusions of incorrect information in that

507form, and it is impossible to tell from the ALJ's statement which type of evaluation

522she is referring to. Because Finding of Fact 48 is ambiguous, because the finding as

537written is not supported by competent substantial evidence, and because the finding

549as written is not relevant to the ultimate outcome of this case, HTG Village View

564and Florida Housing's joint First Exception is accepted, and Finding of Fact 48 is

578rejected and is not adopted in this Final Order.

587Marquis Partners' Exceptions

590Exception 1

592Marquis Partners takes exception to Findings of Fact 39, 40, and 50.

604Specifically, Marquis Partners takes exception to the statement in Finding ofF act 39

617that "the applicant was required to disclose the type of Principal, name of the

631Principal and organization [sic] structure of that Principal at each disclosure level;"

643to the statement in Finding of Fact 40 that "[t]he second Principal disclosure level

657required Marquis Partners to provide the type of Principal being associated with the

670corresponding first-level Principal entity and the name of the Principal;" and to the

683statement in Finding of Fact 50 that "Mr. Wolfe was not properly disclosed at the

698second principal disclosure level as required. The RF A required that applicants

710disclose Principals in the Principal Disclosure Form for each type of entity."

722It is undisputed that Marquis Partners failed to list Mr. Leon Wolfe as a

736manager of Cornerstone Marquis, LLC at the second disclosure level on the

748Principal Disclosure Form. As the ALJ correctly found, the terms of the RF A, Rule

76367-48.002(93), F.A.C., the Continuing Advance Review process instructions,

771examples, and F AQs that are referenced in the RF A, and the testimony at hearing,

787taken together, specifically require that each Applicant must identify all of the

799Principals of each Principal entity identified on the Disclosure Form, and that failure

812to identify all such Principals will render an application ineligible for funding. The

825challenged findings are supported by competent substantial evidence, are

834reasonable, and are consistent with prior agency practice, and for the reasons stated

847in the Joint Response to Exceptions, Marquis Partners' First Exception is rejected.

859Ex c e ptio n 2

865Marquis Partners takes exception to Finding of Fact 53, specifically the

876finding that "the omission of Mr. Wolfe as a manager of Cornerstone Marquis is a

891material deviation that cannot be waived." Marquis Partners argues that this

902omission should have been waived as a "minor irregularity" and that the ALJ did not

917make specific findings relevant to such a determination.

925In Conclusions of Law 76 and 77, however, the ALJ credited testimony

937adduced at hearing to support her conclusion that the omission of Mr. Wolfe should

951not be waived as a minor irregularity. While it may be that the ALJ occasionally

966mischaracterized conclusions as findings and vice versa, there is nonetheless

976competent substantial evidence to support Finding of Fact 53 , and the conclusions

988of the ALJ are supported by credible testimony, are reasonable, and are consistent

1001with past agency practice . For the reasons stated in the Joint Response to

1015Exceptions, Marquis Partners' Second Exception is rejected .

1023Exce p t ion 3

1028Marquis Partners takes exception to Findings of Fact 47 and 53 in which the

1042ALJ found that because the information submitted by Marquis Partners in its

1054Principal Disclosure Form was incorrect, it should not have been awarded five points

1067for participating in the Advance Review Process. As noted above, it is undisputed

1080that the Form incorrectly omitted Mr. Wolfe as a Principal of Cornerstone Marquis,

1093LLC, but Marquis Partners argues that because Florida Housing did not and could

1106not know of this error at the time it reviewed the Form, the Form was "procedurally"

1122correct and that Marquis Partners was therefore entitled to five points even though

1135the Form was factually incorrect. For the reasons stated in the Joint Response to

1149Exceptions, Marquis Partners' Third Exception is rejected.

1156Exceptions 4 and 6

1160Marquis Partners takes exception to Conclusions of Law 77 and 78, in which

1173the ALJ concluded that Marquis Partners was ineligible for funding under the RF A.

1187For the reasons stated above and in the Joint Response to Exceptions, Marquis

1200Partners' Fourth and Sixth Exceptions are rejected.

1207Excepti on 5

1210Marquis Partners takes exception to Conclusions of Law 59, 60, and 61, in

1223which the ALJ concluded that HTG Village View had standing to contest the

1236preliminary award to Marquis Partners. Section 120.57(1 )(1), Florida Statutes,

1246provides that an agency in its final order "may reject or modify the conclusions of

1261law over which it has substantive jurisdiction and interpretation of administrative

1272rules over which it has substantive jurisdiction." Questions of standing involve

1283interpretations and applications of law over which Florida Housing does not have

1295substantive jurisdiction. While the arguments presented in the Joint Response to

1306Exceptions are persuasive, it is not appropriate for Florida Housing to review the

1319ALJ's ruling on this question. Marquis Partners' Fifth Exception is rejected.

1330Exception 7

1332Marquis Partners takes exception to the Recommendation m the

1341Recommended Order. For the reasons stated above, Marquis Partners' Seventh

1351Exception is rejected.

1354on the Recommended Order

1358Except for Finding of Fact 48, the Findings of Fact set out m the

1372Recommended Order are supported by competent substantial evidence.

1380The Conclusions of Law of the Recommended Order are reasonable and

1391supported by competent substantial evidence.

1396In accordance with the foregoing, it is hereby ORDERED:

1405The Findings of Fact of the Recommended Order, except for Finding of Fact

141848, are adopted as Florida Housing's Findings of Fact and incorporated by reference

1431as though fully set forth in this Order. The Conclusions ofLaw in the Recommended

1445Order are adopted as Florida Housing's Conclusions of Law and incorporated by

1457reference as though fully set forth in this Order.

1466The Recommendation of the Recommended Order is adopted.

1474Florida Housing's preliminary award of funding to Marquis Partners is

1484rescinded, the relief requested in the Petition is granted, and HTG Village View shall

1498be awarded funding under RF A 20 1 7-113.

1507DONE and ORDERED this 14th day of September, 2018.

1516FLORIDA HOUSING FINANCE

1519CORPORATION

1520Copies to:

1522Hugh R. Brown

1525Betty Zachem

1527Florida Housing Finance Corporation

1531Hugh. brown@floridahousing.org

1533Betty .zachem@floridahousing.org

1535Maureen M. Daughton, Esq.

1539Maureen McCarthy Daughton, LLC

1543mdaughton@mmd-lawfirm.com

1544Michael J. Glazer, Esquire

1548Anthony L. Bajoczky, Jr., Esquire

1553Ausley & McMullen, P.A.

1557TBajoczky@ausley.com

1558MGlazer@ausley.com

1559NOTICE OF RIGHT TO JUDICIAL REVIEW

1565A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER

1575IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,

1584FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE

1592FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS

1599ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL

1610WITH THE AGENCY CLERK OF THE FLORIDA HOUSING FINANCE

1619CORPORATION, 227 NORTH BRONOUGH STREET, SUITE 5000,

1626TALLAHASSEE, FLORIDA 32301-1329, AND A SECOND COPY,

1633ACCOMPANIED BY THE FILING FEES PRESCRIBED BYLAW, WITH THE

1642DISTRICT COURT OF APPEAL, FIRST DISTRICT, 2000 DRAYTON DRIVE,

1651TALLAHASSEE, FLORIDA 32399-0950, OR IN THE DISTRICT COURT OF

1660APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES.

1669THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF

1681RENDITION OF THE ORDER TO BE REVIEWED.

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PDF
Date
Proceedings
PDF:
Date: 01/09/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 09/17/2018
Proceedings: Agency Final Order
PDF:
Date: 07/27/2018
Proceedings: Recommended Order
PDF:
Date: 07/27/2018
Proceedings: Recommended Order (hearing held June 1, 2018). CASE CLOSED.
PDF:
Date: 07/27/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/02/2018
Proceedings: Marquis Partners' Proposed Recommended Order filed.
PDF:
Date: 07/02/2018
Proceedings: HTG Village View, LLC's Proposed Recommended Order filed.
PDF:
Date: 07/02/2018
Proceedings: Florida Housing Finance Corporation's Proposed Recommended Order filed.
PDF:
Date: 06/21/2018
Proceedings: Notice of Filing Transcript.
Date: 06/01/2018
Proceedings: CASE STATUS: Hearing Held.
Date: 05/30/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 05/30/2018
Proceedings: Order Denying Motion to Dismiss and Granting Motion to Strike.
PDF:
Date: 05/30/2018
Proceedings: Marquis Partners, Ltd.'s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 05/29/2018
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for May 30, 2018; 8:30 a.m.).
PDF:
Date: 05/24/2018
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 05/24/2018
Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for June 1, 2018; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 05/24/2018
Proceedings: Stipulated Motion to Continue Final Hearing filed.
PDF:
Date: 05/23/2018
Proceedings: Amended Notice of Taking Deposition filed.
PDF:
Date: 05/23/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Response to Motion to Strike filed.
PDF:
Date: 05/23/2018
Proceedings: Amended Cross Notice of Taking Deposition filed.
PDF:
Date: 05/23/2018
Proceedings: Cross Notice of Taking Deposition filed.
PDF:
Date: 05/23/2018
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 05/22/2018
Proceedings: Respondent Florida Housing Finance Corporation's Joinder in HTG Village View, LLC's Response in Opposition to Intervenor's Motion to Dismiss and Motion to Strike Attachements to Motion to Dismiss filed.
PDF:
Date: 05/22/2018
Proceedings: HTG Village View, LLC's Response in Opposition to Intervenor's Motion to Dismiss and Motion to Strike Attachments to Motion to Dismiss filed.
PDF:
Date: 05/21/2018
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 05/15/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Motion to Dismiss Petitioner HTG Village View, LLC filed.
PDF:
Date: 05/11/2018
Proceedings: HTG Village View, LLC's Notice of Service of Verified Answers to First Set of Interrogatories from Marquis Partners, Ltd. filed.
PDF:
Date: 05/11/2018
Proceedings: Petitioner Marquis Partners, Ltd.'s Notice of Voluntary Dismissal of Case No. 18-2157BID filed.
PDF:
Date: 05/11/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Notice of Service of Answers to HTG Village View, LLC's First Set of Interrogatories filed.
PDF:
Date: 05/10/2018
Proceedings: HTG Village View, LLC's Notice of Service of Unverified Answers to First Set of Interrogatories from Marquis Partners, Ltd. filed.
PDF:
Date: 05/10/2018
Proceedings: HTG Village View's Responses to Marquis Partner's LTD's First Request for Production of Documents filed.
PDF:
Date: 05/10/2018
Proceedings: Order Closing File and Relinquishing Jurisdiction. (DOAH CASE NO. 18-2158BID IS CLOSED.)
PDF:
Date: 05/09/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Notice of Service of First Set of Interrogatories to Petitioner Sailboat Bend II, Ltd. filed.
PDF:
Date: 05/09/2018
Proceedings: Respondent Marquis Partners, Ltd.'s First Requests for Production to Petitioner Sailboat Bend II, Ltd. filed.
PDF:
Date: 05/09/2018
Proceedings: Petitioner Sailboat Bend II, Ltd.'s Notice of Voluntary Dismissal filed.
PDF:
Date: 05/09/2018
Proceedings: Respondent Sailboat Bend II, Ltd.'s Notice of Service of First Set of Interrogatories to Petitioner Marquis Partners, Ltd. filed.
PDF:
Date: 05/08/2018
Proceedings: HTG Village View's Responses to Marquis Partner's LTD's First Request for Admissions filed.
PDF:
Date: 05/08/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Response to Petitioner HTG Village View, LLC's First Request for Admission filed.
PDF:
Date: 05/04/2018
Proceedings: Notice of Deposition of Respondent Florida Housing Finance Corporation filed.
PDF:
Date: 05/04/2018
Proceedings: Petitioners' Notice of Taking Deposition of Respondent's Agency Representative filed.
PDF:
Date: 05/03/2018
Proceedings: HTG Village View, LLC's Notice of Service of First Set of Interrogatories to Marquis Partners, Ltd filed.
PDF:
Date: 05/03/2018
Proceedings: Respondent Marquis Partners, Ltd.'s First Requests for Production to Petitioner HTG Village View, LLC filed.
PDF:
Date: 05/03/2018
Proceedings: Respondent Marquis Partners, Ltd.'s First Requests for Admission to Petitioner HTG Village View, LLC filed.
PDF:
Date: 05/03/2018
Proceedings: Respondent Marquis Partners, Ltd.'s Notice of Service of First Set of Interrogatories to Petitioner HTG Village View, LLC filed.
PDF:
Date: 05/03/2018
Proceedings: Petitioner's First Request for Admissions to Marquis Partners, LTD. filed.
PDF:
Date: 05/03/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/03/2018
Proceedings: Notice of Hearing (hearing set for May 29, 2018; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 05/03/2018
Proceedings: Order of Consolidation (DOAH Case Nos. 18-2156BID, 18-2157BID, 18-2158BID).
Date: 05/03/2018
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 04/30/2018
Proceedings: Motion to Consolidate Cases filed.
PDF:
Date: 04/30/2018
Proceedings: Notice of Appearance (Betty Zachem).
PDF:
Date: 04/30/2018
Proceedings: Notice of Intervention and Appearance by a Specifically-Named Person (Marquis Partners, LTD).
PDF:
Date: 04/30/2018
Proceedings: Notice to All Bidders on RFA 2017-113 filed.
PDF:
Date: 04/30/2018
Proceedings: Amended Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 04/30/2018
Proceedings: Agency referral filed.

Case Information

Judge:
YOLONDA Y. GREEN
Date Filed:
04/30/2018
Date Assignment:
05/01/2018
Last Docket Entry:
01/09/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
BID
 

Counsels

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):