19-001261BID Ambar Riverview, Ltd. vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Tuesday, May 21, 2019.

Summary: Petitioner failed to prove that Florida Housing's determination of eligibility and its intended award of tax credits were contrary to statutes, rules, the RFA, clearly erroneous, contrary to competition, arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBAR RIVERVIEW, LTD.,

Petitioner,

vs. Case No. 19 - 126 1BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

LAS BRISAS TRACE, LP,

Intervenor.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on April 10, 2019, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael P. Donaldson, E squire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

For Respondent: Betty Zachem, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

For Intervenor: Seann M. Frazier, Esquire

Parker Hudso n Rainer & Dobbs, LLP

215 South Monroe Street, Suite 750

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent, Florida Housing Finance Corporation ' s

( " Florida Housing " ) , intended action to award housing tax credit

funding to Intervenor, Las Brisas Trace, LP ( " Las Brisas " ),

under Request for Applications 2018 - 111 Housing Credit Financing

for Affordable Housing Developments Located in Miami - Dade County

(the " RFA " ), is contrary to governing statutes, rules, the RFA

specifications, and clearly erroneous, contrary to competition,

arbitrary, or capricious.

PRELIMINARY STATEMENT

On September 6, 2018, Florida Housing issued the RFA,

soliciting applications to compete for an allocation of Federal

Low - Incom e Housing Tax Credit funding ( " housing tax credits " )

for the construction of affordable housing developments in

Miami - Dade County, Florida. Modifications to the RFA were

issued on September 25, 2018, October 4, 2018, and October 18,

2018. On November 9, 2018, 67 applications were submitted in

response to the RFA, including applications from Petitioner,

Ambar Riverview, Ltd. ( " Ambar " ) , and Las Brisas.

On February 1, 2019, Florida Housing posted notice of its

intended decision to award funding to three ap plicants,

including Las Brisas. Ambar was eligible, but not recommended

for funding.

Ambar timely filed a Formal Written Protest and Petition

for Administrative Proceeding. On March 11, 2019, Florida

Housing referred the matter to the Division of Admin istrative

Hearings ( " DOAH " ) to assign an Administrative Law Judge to

conduct the final hearing.

Florida Housing filed a motion to consolidate this matter

with other matters filed by Whaler ' s Cove Apartments, LLC , and

Landmark Development, Corp. (DOAH Cas e No. 19 - 1258BID); AMC

HTG 3, LLC (DOAH Case No. 19 - 1262BID); and HTG Rock Ridge, Ltd.

(DOAH Case No. 19 - 1263BID). Lucida Apartments, Ltd. , a nd HTG

Berkeley, LLC, filed notices of a ppearance as named parties in

DOAH Case No. 19 - 1258BID. Las Brisas, Ambar , and Cannery Row at

Redlands Crossing, LLLP , filed n otices of a ppearance as named

parties in DOAH Case No. 19 - 1262BID. On March 14, 2019, HTG

Rock Ridge, Ltd. , filed a voluntary dismissal of its petition

and the undersigned entered an Order closing DOAH Case No. 19 -

1263BID and relinquishing jurisdiction to Florida Housing.

Florida Housing closed its file as well.

On March 15, 2019, a tel ephonic hearing was held on

Las Brisas ' motions to intervene and to dismiss the petition.

On March 18, 2019, the undersigned entered an Order granting the

motion to intervene and denying the motion to dismiss. On

March 18, 2019, the undersigned entered an Order setting the

final hearing for April 10, 2019. On March 19, 2019, the

undersigned entered an Order con solidating the instant case with

DOAH Case Nos. 19 - 1258BID and 19 - 1262BID. Subsequently,

Whaler ' s Cove Apartments, LLC; Landmark Develop ment, Corp.; and

AMC HTG 3, LLC filed voluntary dismissals of their petitions in

DOAH Case Nos. 19 - 1258BID and 19 - 1262B ID, and on March 25 and

March 26, 20 19, the undersigned entered an O rder severing and

closing these two cases and relinquishing jurisdiction to

Florida Housing. Florida Housing closed its files as well.

On April 8, 2019, the parties filed their Joint Pr e - hearing

Statement. The final hearing commenced as scheduled and

concluded on April 10, 2019, with all parties present. At the

outset of the hearing, Ambar announced that it would no longer

litigate several issues raised in its petition. Thereafter, th e

hearing proceed ed on issues regarding: (1) Las Brisas '

Principal s Disclosure Form ' s failure to identify the multiple

roles of its principals; and (2) Las Brisas ' failure to answer

Question 10 f. of the Public Housing Authority Question of the

RFA.

At the hearing, Ambar presented the testimony of Elena

Adames. All parties presented the testimony of Marisa Button.

Ambar ' s Exhibits 1 and 6 were received in evidence. Las Brisas '

Exhibit 2 was received in evidence. Joint Exhibits 1 through 10

were recei ved in evidence.

The one - volume final hearing Transcript was filed on May 1,

2019. The parties timely filed proposed recommended orders,

which were considered in the preparation of this Recommended

Order. The stipulated facts in the parties ' Joint Pre - hearing

Statement have been incorporated herein as indicated below.

Unless otherwise indicated, referen ces to the Florida Statutes

are to the 2018 version .

FINDING S OF FACT

1. Ambar is an applicant requesting an allocation of

$2,700,000.00 in compe titive housing tax credits. Ambar ' s

application, assigned number 2019 - 035C, was deemed eligible for

consideration, but was not preliminarily selected for funding.

2. Las Brisas is an applicant requesting an allocation of

$2,635,850.00 in housing ta x credits. Las Brisas ' application,

assigned number 2019 - 073C, was deemed eligible for consideration

and was preliminar il y selected for funding.

3. Florida Housing is a public corporation created

pursuant to section 420.504, Florida Statutes, who se address is

227 North Bronough Street, Suite 5000, Tallahassee, Florida

32301, and for the purposes of this proceeding, an agency of the

State of Florida.

4. Florida Housing ' s purpose is to promote public welfare

by administering the governmental function of financing

affordable housing in Florida. Pursuant to section 420.5099,

Florida Housing is designated as the housing credit agency for

Florida within the meaning of section 42(h)(7)(A) of the

Internal Revenue Code and has the responsibility an d authority

to establish procedures for allocating and distributing low

income housing tax credits.

5 . The low income housing tax credit program (commonly

referred to as " housing tax credits " ) was enacted to incentivize

the private market to invest in a ffordable rental housing.

These housing tax credits are awarded competitively to housing

developers in Florida f or rental housing projects that qualify.

These credits are then normally sold by developers for cash to

raise capital for their projects. The effect is that the

credits reduce the amount that the developer would otherwise

have to borrow. Because the total debt is lower, a housing tax

credit property can (and must) offer lower, more affordable

rents. Developers also covenant to keep rents at a ffordable

levels for periods of 30 to 50 years as consideration for

receipt of the housing tax credits. The demand for housing tax

credits provided by the federal government exceeds the supply.

The Competitive Application Process

6. Florida Housing i s authorized to allocate housing tax

credits, State Apartment Incentive Loan ( " SAIL " ) funding, and

other funding by means of requests for applications or other

competitive solicitation in section 420.507(48), and F lorida

Administrative Code C hapter 67 - 60, which govern the competitive

solicitation process for several different programs, including

the program for housing tax credits. Chapter 67 - 60 provides

that Florida Housing allocate its housing tax credits, which are

made available to Florida Housing on a n annual basis by the

U.S. Treasury, through the bi d protest provisions of

section 120.57(3).

7. In their applications, applicants request a specific

dollar amount of housing tax credits to be given to the

applic ant each year for a period of ten years. Applicants

normally sell the rights to that future stream of income housing

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. Th e amount

which can be received depends upon the accomplishment of several

factors , such as a certain percentage of the projected Total

Development Cost; a maximum funding amount per development based

on the county in which the development will be located; and

whether the development is located within certain designated

areas of some counties. This, however, is not an exhaustive

list of the factors considered.

8. The RFA was issued on September 6, 2018, and responses

were initially due October 25, 2018. The RFA was modified on

September 25, 2018, October 4, 2018, and October 18, 2018. The

application deadline was extended to November 9, 2018. No

challenges were made to the terms of the RFA.

9. Through the RFA, Florida Housing seeks to award up to

an estimated $6,881,821.00 of housing tax credits to applicants

that propose developments located in Miami - Dade County, Florida.

Florida Housing received 67 applications in response to the RFA.

10. A review committee was appointed to review the

application s and make recommendations to Florida Housing ' s Board

of Directors (the " Board " ). The review committee found 61

applications eligible and six applications ineligible. Through

the ranking and selection process outlined in the RFA, three

applications were recommended for funding, including Las Brisas.

To reflect its scoring decisions, the review committee developed

charts listing its eligibility and funding recommendations to be

presented to the Board.

11. On February 1, 2019, the Board met and consider ed the

recommendations of the review committee. Also, on February 1,

2019, at approximately 9:20 a.m., Ambar and all other applicants

received notice that the Board had determined whether

applications were eligible or ineligible for consideration for

fund ing, and that certain eligible applicants were selected for

award of housing credits, subject to satisfactory completion of

the credit underwriting process. Such notice was provided by

the posting of two spreadsheets on the Florida Housing website,

www.fl oridahousing.org , one listing the " eligible " applications

in the RFA and one identifying the applications which F lorida

Housing proposed to fund.

12. In the February 1, 2019, posting, Florida Housing

announced its intention to awa rd funding to three appli cants ,

including Las Brisas. Ambar and Las Brisas applied for funding

to develop proposed developments in Miami - Dade County with the

demographic commitment of Elderly, Non - ALF. Ambar was eligible,

but not recommended for funding. Ambar timely filed a No tice of

Protest and Petition for Formal Administrative Proceedings and

Las Brisas timely intervened.

THE RFA Ranking and Selection Process

13. The RFA contemplates a structure in which the

applicant is scored on eligibility items and obtains points for

o ther items. A list of the eli gibility items is available in

s ection 5.A.1, beginning on page 65 of the RFA. Only

applications that meet all the eligibility items will be

eligible for funding and considered for funding selection. The

eligibility items al so include Submission Requirements,

Financial Arrearage Requirements, and the Total Development Cost

Per Unit Limitation requirement.

14. Applicants can earn points for each of the following

items (for a total of 15 points): Submission of Principal s

Dis closure Form stamped by the Corporation as " Pre - Approved "

(5 points), Development Experi ence Withdrawal Disincentive

(5 points), and Local Government Contribution Points (5 points).

15. All 67 applications for the RFA were received,

processed, deemed eli gible or ineligible, scored, and ranked,

pur suant to the terms of the RFA, Florida Administrative Code

C hapters 67 - 48 and 67 - 60, and applicable federal regulations.

16. On page 69, the RFA outlines its three goals:

a. The Cor poration has a goal to fund

one (1) proposed Developm ent that

(a) selected the Demographic Commitment of

Family at qu estion 2.a of Exhibit A and

(b) qualifies for the Geographic Areas of

Opportunity/SADDA Goal as outlined in

Section Four A.10.

b. The Cor poration has a goal to fund

one (1) proposed Development that selected

the Demographic Commitment of Elderly (ALF

or Non - ALF) at question 2.a. of Exhibit A.

[ " Elderly Demographic Goal " ] .

c. The Corporation has a goal to fund

one (1) proposed Development wherein the

Applicant appli ed and qualified as a Non -

Profit Applicant.

*Note: During the Funding Selection Process

outlined below, Developments selected for

these goals will only count toward one goal.

For example, if a Development is selected

for the Elderly Demographic goal bu t also

qualifies for the Non - Profit goal, the

Development will only count towards the

Elderly Demographic goal and another

Development will be considered for the Non -

Profit goal.

17. As part of the funding selection process, the RFA

starts with the application sorting order. The highest scoring

applications are determined by first sorting together all

eligible applications from the highest score to lowest score,

with any scores that are tied separated as follows:

a. First, by the Application ' s eligibility

for the Proximity Funding Preference (which

is outlined in Section Four A.5.e. of the

RFA) with Applications that qualify for the

preference listed above Applications that do

not qualify for the preference;

b. Next, by the Application ' s eligibility

for the Per Unit Construction Funding

Preference which is outlined in Section Four

A.11.e. of the RFA (with Applications that

qualify for the preference listed above

Applications that do not qualify for the

preference);

c. Next, by the App lication ' s eligibility

for the Development Category Funding

P reference which is outlined in Section Four

A.4(b)(4) of the RFA (with Applications that

qualify for the preference listed above

Applications that do not qualify for the

preference);

d. Next, by the Application ' s Lev eraging

Classification, applying the multipliers

outlined in item 3 of Exhibit C of the RFA

(with Applications having the Classification

of A listed above Applications having the

Classification of B);

e. Next, by the Application ' s eligibility

for the Florida Job Creation Funding

Preference which is outlined in Item 4 of

Exhibit C of the RFA (with Applications that

qualify for the preference listed above

Applications that do not qualify for the

preference); and

f. And finally, b y lottery number,

resulting in the lowest lottery number

receiving preference.

18. Beginning on page 70, the RFA outlines the funding

selection process:

(1) The first Application selected for

funding will be the highest ranking eligible

Family Ap plication that qualifies for the

Geographic Areas of Opportunity/SADDA Goal.

(2) The next Application selected for

funding will be the highest ranking eligible

Application that qualifies as an Elderly

(ALF or Non - ALF) Development.

(3) The next Applic ation selected for

funding will be the highest ranking

Application wherein the Applicant applied

and qualified as a Non Profit Applicant.

(4) If there are less than three (3)

Applications selected for funding in (1),

(2), and (3) above, the next Applica tion(s)

selected for funding will be the highest

ranking unfunded Application(s), regardless

of Demographic Category until no more than

three (3) total Applications are selected

for funding. If the third Application

cannot be fully funded, it will be enti tled

to receive a Binding Commitment for the

unfunded balance.

(5) If funding remains after selecting the

three (3) highest ranking eligible unfunded

Applications as outlined above, or if

funding remains because there are not

three (3) eligible Applicat ions that can be

funded as outlined above, then no further

Applications will be considered for funding

and any remaining funding will be

distributed as approved by the Board.

19. According to the terms of the RFA:

Funding that becomes available af ter the

Board takes action on the [Review]

Committee ' s recommendation(s), due to an

Applicant withdrawing its Application, an

Applicant ' s declining its invitation to

enter credit underwriting or the Applicant ' s

inability to satisfy a requirement outlined

i n this RFA, and/or Rule Chapter 67 - 48,

F.A.C., will be distributed as approved by

the Board.

Las Brisas ' Application

2 0 . In response to the RFA, Las Brisas timely submitted

its application to develop a 119 - unit affordable, elderly

developm ent in Miami - Dade County.

21. Florida Housing determined that the Las Brisas

application was eligible for an award of housing tax credits and

and preliminarily selected the Las Brisas application for an

award of housing tax credits. Las Brisas was selected to meet

the Elderly Demographic Goal.

22. Ambar contests Florida Housing ' s preliminary selection

of Las Brisas for an award of housing tax credits. If the Las

Brisas application is either ineligible or remains eligible but

loses five point s, then according to the ranking and selection

process in the RFA, Ambar ' s application will be selected for

funding as the next highest ranking eligible application.

Principals Disclosure Form

2 3 . In its challenge, Ambar argues that Las Brisas failed

to correctly complete its Principal s Disclosure Form by not

identifying the multiple roles of its disclosed principals.

Specifically, Ambar argues that Las Brisas failed to list

Steve Protulis, who is disclosed as executive director, as an

officer as well. Additionally, Ambar argues that Las Brisas '

disclosure of Christopher M. Sh elton, Morton Bahr, Edward L.

Romero, Leo W. Gerard, Maria C . Cordone, and Erica Schmelzer as

officers is insufficient because they were also not listed as

directors. Acc ordingly, Ambar contends Las Brisas is not

eligible or should lose five points. Significantly, Ambar does

not argue that Las Brisas failed to disclose a principal.

24. As an eligibility item, the RFA requires that

applicants identify their " Princip als " by completing and

submitting with their applications a Principals Disclosure Form

as follows:

Eligibility Requirements

To meet the submission requirements, the

Applicant must upload the Principals of the

Applicant and Developer(s) Disclosure Form

(Fo rm Rev. 08 - 16)( " Principals Disclosure

Form " ) with the Application and Development

Cost Pro Forma, as outlined in Section Three

above.

The Principals Disclosure Form must identify

the Principals of the Applicant and

Developer(s) as of the Application Deadl ine

and should include, for each applicable

organizational structure, only the types of

Principals required by Subsection 67 - 48.002,

F.A.C. A Principals Disclosure Form should

not include, for any organizational

structure, any type of entity that is not

s pecifically included in the Rule definition

of Principals.

25. The RFA states that unless otherwise defined,

capitalized terms within the RFA have the meaning as set forth

in Exhibit B, in chapters 67 - 48 and 67 - 60, or in applicable

federal regulat ions.

26. Rule 67 - 48.002(94) defines the term " Principal. " The

rule is organized first by the applicant or developer entity,

then by the organizational structure of those specific entities.

Acc ording to rule 67 - 48.002(94)(a) 2 . , with respect to an y

applicant that is a limited partnership, any general partner or

limited partner must be disclosed.

27. Because the general partner of Las Brisas is a

corporation, additional disclosures are required. Principals at

the second disclosure level pur suant to rule 67 - 48.002 (94)(a)2.

include " any officer, director, executive director, or

shareholder of the corporation. " Ms. Button , Director of

Multifamily Programs for Florida Housing, testified that Florida

Housing defined the term principals this way so that it could

know the individuals that have control and oversight over the

entities themselves in order to determine whether any

individuals associated with a proposed development are in

arrears or indebted to Florida Housing in connection with other

d evelopments.

28. The RFA also enabled an applicant to obtain points by

participating in Florida Housing ' s Advance Review Process as

follows:

Point Item

Applicants will receive 5 points if the

uploaded Principal Disclosure Form was

stamped " App roved " during the Advance Review

Process provided (a) it is still correct as

of Application Deadline, and (b) it was

approved for the type of funding being

requested (i.e., Housing Credits or Non -

Housing Credits). The Advance Review

Process for Disclosure of Applicant and

Developer Principals is available on the

Corporation ' s Website http://www.florida

housing.org/ programs/developers - multifamily

programs/competititve/2018/2018 - 111 (also

accessible by clicking here) and also

includes samples which may assis t the

Applicant in completing the required

Principals Disclosure Form.

Note: It is the sole responsibility of the

Applicant to review the Advance Review

Process procedures and to submit any

Principals Disclosure Form for review in a

timely manner in ord er to meet the

Application Deadline.

29. In order to assist applicants with identifying the

correct types of principals that should be identified for each

entity, Florida Housing offers applicants the opportunity to

have the Principals Disclos ures Form reviewed by staff in the

Advance Review Process. The Advance Review Process is a

continuous, ongoing process that is not specific to any RFA.

The RFA provides a link that directs applicants to information

regarding the Advance Review Process in cluding instructions,

rule definitions, terms and conditions, sample charts and

examples, the Principals Disclosure Form, and Frequently Asked

Questions ("FAQ") . The RFA states that the information

contained within the link " includes samples which may ass ist the

Applicant in completing the required Principals Disclosure

Form. "

30. Part of the information about the Advance Review

Process that is linked in the RFA is a Principals of the

Applicant and Developer(s) Disclosure Form Frequently Asked

Ques tions document that was updated on September 4, 2018 (the

" 2018 FAQ " ).

31 . Question 6 of the 2018 FAQ provides:

Q: If a person has multiple roles within

the organizational structure, must they be

listed multiple times -- once for each role?

A: For a Corporation, if a person serves

multiple roles they may be listed once with

the other role(s) identified next to the

name of the individual. For example, John

Smith serves as both an officer and director

for ABC, Inc. You may choose the opt ion of

" director " in the drop - down menu and enter

" officer " after his name as follows: Smith,

John (officer).

32. A prior version of the FAQ was updated on November 10,

2016 (the " 2016 FAQ " ) and was replaced by the 2018 FAQ. The

2016 FAQ was not linked within the RFA.

33 . Question 8 of the 2016 FAQ provided:

Q: If a person has multiple roles within

the organizational structure, must they be

listed multiple times -- once for each role?

A: Yes.

34. Ms. Button persuasi vely and credibly testified that

the purpose of the frequently asked questions is to help

applicants understand what information Florida Housing is

seeking from the applicants , and that the update t o the 2016 FAQ

was made because requesting applicants to l ist multiple roles of

its principals did not further Florida Housing ' s goals . Thus,

the intent of Question 6 of the 2018 FAQ and Florida Housing ' s

answer was to communicate to applicants that they may, but were

not required to, list the multiple roles of a principal of a

corporation. Ms. Button persuasively and credibly testified

that Florida Housing intentionally changed its position in

Question 6 of the 2018 FAQ from the " hard - and - fast requirement "

of Question 6 of the 2016 FAQ.

35. The 2018 FAQ was not the only resource linked within

the RFA for applicants to reference when completing the

Principals Disclosure Form. Also linked within the RFA was the

Continuous Advance Review Process for Disclosure of Applicant

and Developer Principals, which in cludes disclosure

instructions, rule definitions, and sample charts and examples.

These resources inc luded guidance and examples of P rincipal s

Disclosure F orms where principal s , who held multiple roles , were

listed twice. However, both of these resources pre - date the

2018 FAQ, which was last updated September 4, 2018,

approximately two months before the applications in response to

the RFA were due.

36. At hearing, Ms. Button acknowledged the discrepancy

between the in structions and guidance to th e P rincipal s

Disclosure F orm and the 2018 FAQ. Ms. Button explained that

when the FAQ was updated in 2018, the other documents were not

updated to reflect Florida Housing ' s change of position.

Ms. Button persuasively and credibly testified that Florida

H ousing considers the most updated guidance to control, and

where there is a conflict with Florida Housing ' s guidance, the

least restrictive guidance controls.

37. Las Brisas participated in the Advance Review Process,

and on or about October 17, 2018, Florida Housing approved the

Principals Disclosure Form submitted by Las Brisas during the

Advance Review Process for an award of housing credits.

38. Florida Housing, by approving the Las Brisas

Principal s Disclosure Form, relied on the info rmation provided,

and concluded that Las Brisas identified the appropriate type of

principals for an award of housing tax credits and the

appropriate type of principals for the corresponding type of

entities as provided in rule 67 - 48.002(94).

39. F lorida Housing ' s approval of Las Brisas ' Principal s

Disclosure Form during the Advance Review Process did not verify

the accuracy of the information contained within the Principal s

Disclosure Form, but rather, verified that the appropriate type

entities we re disclosed for the organizational structures

listed.

40. The Principals Disclosure Form submitted with Las

Brisas ' application was the same document in all respects that

was approved by Florida Housing during the Advance Review

Process.

41. Las Brisas ' Principal s Disclosure Form for the

applicant lists Las Brisas Trace, LP , as the applicant entity

that is a limited partnership. EHDOC Las Brisas Trace

Charitable Corporation is listed as the general partner of the

applicant at the first princ ipal disclosure level. Las Brisas

also lists two limited partners at the first disclosure level

that are not at issue in this proceeding.

42. At the second principal disclosure level for

principals of the applicant, EHDOC Las Brisas Charitable

Corp oration identified 18 natura l persons as principals.

Steve Protulis is listed as the executive d irector.

Christopher M. Shelton, Morton Bahr, Edward L. Romero, Leo W.

Gerard, Maria C. Cordone, and Erica Schmelzer are identified as

officers. Mary Anderso n, Maxine Carter, Eric Dean, Ellen

Feingold, Tony Fransetta, Robert Martinez, Lou Moret, John

Olsen, Cecil Roberts, Roger Smith, and Thomas P. Villanova are

identified as directors.

43. Because Las Brisas applied as a non - profit, it had to

include a dditional information with its application that other

applicants did not. This information was included in

Atta chment 3 to Las Brisas ' application. Among the information

included was a list of the names and addresses of the members of

the governing board of the non - profit entity.

44. This list of names and addresses of the governing

board of the non - profit entity, EHDOC Las Brisas Trace

Charitable Corporation, shows t hat Steve Protulis,

Christopher M. Shelton, Morton Bahr, Edward L. Romero, Leo W.

Gerard, Maria C. Cordone, and Erica Schmelzer are also

directors.

45. Thus, within the four corners of the application,

Florida Housing could determine with whom it was doing business

and what roles those individuals held.

46. Ms. Button pe rsuasively and credibly testified that

Las Brisas ' Principal s Disclosure Form did not contain any

errors and was complete.

47 . As further testified to by Ms. Button, even if Las

Brisas ' failure to list the multiple roles of its disclosed

principal s on the Principal s Disclosure Form is an error, it is

so minor as to constitute a waivable, minor irregularity because

Florida Housing has the required information in the application ,

and there was no competitive advantage to Las Brisas.

Public Hou sing Authority Question

4 8 . Question 10 of Exhibit A to the RFA states the

following ( " the Public Housing Authority Question " ):

f. Public Housing Authority as a Principal

of the Applicant Entity

Is a Principal of the Applicant Entity a

Publi c Housing Authority and/or an

instrumentality of a Public Housing

Authority?

Choose an item.

If the Principal of the Applicant Entity is

an instrumentality of a Public Housing

Authority, state the name of the Public

Housing Authority:

Click here to enter text.

4 9 . In its application, Las Brisas did not provide an

answer to the Public Housing Authority Question.

50 . The Public Housing Authority Question is not an

eligibility item of the RFA.

51 . The purpose of the Public Housing Authority Question

is to cross - reference if appl icants are requesting an add - on

bonus ( " boost " ) to the Total Development Cost limit that is

available to public housing authorities or instrumentalities of

public housing authorities.

52 . Las Brisas clearly indicated in the Development Cost

Pro Forma, which was part of its application, that i t was not

seeking the boost. Although Las Brisas did not answer the

Public Housing Authority Question, it did not request a boost to

the Total Devel opment Cost P er Unit Limitation for being a

public housing a uthor ity or an instrumentality of a public

housing a uthority.

53 . Accordingly , the Public Housing Authority Question was

simply not applicable to Las Brisas ' application.

54 . Las Br isas ' failure to answer the Public Housing

Authority Question did not result in the omission of any

material information or create any competitive advantage.

55 . The persuasive and credible testimony of Ms. Button

demonstrates that Las Brisas ' failure to answer the Public

Housing Authority Question is a waivable, minor irregularity.

CONCLUSIONS OF LAW

56 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569, 120.57(1), and

120.57(3), Florida Statute s.

57 . Pursuant to section 120.57(3)(f), the burden of proof

rests with Ambar as the party opposing the proposed agency

action. State Contracting & Eng ' g Corp. v. Dep ' t of Transp. ,

709 So. 2d 607, 609 (Fla. 1st DCA 1998). Ambar must sustain its

burden o f proof by a preponderance of the evidence. See Dep ' t

of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981).

58 . Section 120.57(3)(f) provides , in part , as follows:

Unless otherwise provided by statute, the

burden of proof shall rest w ith 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 agency ' s propose d action is

contrary to the agency ' s governing statutes,

the agency ' s 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 competit ion,

arbitrary, or capricious.

59 . The phrase " de novo proceeding, " as used in

section 120.57(3)(f), describes a form of intra - agency review.

" The judge may receive evidence, as with any formal hearing

under section 120.57(1), but the object of the proc eeding is to

evaluate the action taken by the agency. " State Contracting ,

709 So. 2d at 609.

60 . A bid protest proceeding is not simply a record review

of the information that was before the agency. Rather, a new

evidentiary record based upon the facts established at DOAH is

developed. J.D. v. Fla. Dep ' t of Child. & Fams. , 114 So. 3d

1127, 1132 - 33 (Fla. 1st DCA 2013).

61 . After determining the relevant facts based on the

evidence presented at hearing, Florida Housing ' s intended action

will be upheld unless it is contrary to the governing statutes,

the corporation ' s rules, or the bid specifications. The

agency ' s intended action must also remain undisturbed unless it

is clearly erroneous, contrary to competition, arbitrary, or

capricious.

62 . The F lorida Supreme Court explained the clearly

erroneous standard as follows:

A finding of fact is clearly erroneous when,

although there is evidence to support such

finding, the reviewing court upon reviewing

the entire evidence is left with the

definite and firm conviction that a mistake

has been committed. This standard plainly

does not entitle a reviewing court to

reverse the finding of the trier of fact

simply because it is convinced that it would

have decided the case differently. Such a

mistake will b e found to have occurred where

findings are not supported by substantial

evidence, are contrary to the clear weight

of the evidence, or are based on an

erroneous view of the law. Similarly, it

has been held that a finding is clearly

erroneous where it bea rs no rational

relationship to the supporting evidentiary

data, where it is based on a mistake as to

the effect of the evidence, or where,

although there is evidence which if credible

would be substantial, the force and effect

of the testimony considered a s a whole

convinces the court that the finding is so

against the great preponderance of the

credible testimony that it does not reflect

or represent the truth and right of the

case.

Dorsey v. State , 868 So. 2d 1192, 1209 n.16 (Fla. 2003).

63 . The cont rary to competition standard precludes actions

which, at a minimum: (a) create the appearance of and

opportunity for favoritism; (b) erode public confidence that

contracts are awarded equitably and economically; (c) cause the

procurement process to be gen uinely unfair or unreasonably

exclusive; or (d) are unethical, dishonest, illegal, or

fraudulent. GEO Reentry Ser v s . , LLC v. Dep ' t of Corr. , C ase No .

18 - 0613BID, 2018 Fla. Div. Admin. Hear. LEXIS 253, at *40 (Fla.

DOAH April 20, 2018); Care Access PSN, LL C v. Ag. for Health

Care Admin. , Case No. 13 - 4113BID, 2014 Fla. Div. Admin. Hear.

LEXIS 3, at *54 (Fla. DOAH Jan. 2, 2014); Phil ' s Expert Tree

Serv., Inc. v. Broward Cnty. Sch. Bd. , Case No. 06 - 4499BID, 2007

Fla. Div. Admin. Hear. LE XIS 161, at *23 (Fla. D OAH Mar. 19,

2007).

64 . An action is " arbitrary if it is not supported by

logic or the necessary facts, " and " capricious if it is adopted

without thought or reason or is irrational. " Hadi v. Lib.

Behavioral Health Corp. , 927 So. 2d 34, 38 - 39 (Fla. 1st DC A

2006). If agency action is justifiable under any analysis that

a reasonable person would use to reach a decision of similar

importance, the decision is neither arbitrary nor capricious.

J.D. , 114 So. 3d at 1130. Thus, under the arbitrary or

capricious standard, " an agency is to be subjected only to the

most rudimentary command of rationality. The reviewing court is

not authorized to examine whether the agency ' s empirical

conclusions have support in substantial evidence. " Adam Smith

Enters., Inc. v. D ep ' t of Envtl. Reg. , 553 So. 2d 1260, 1273

(Fla. 1st DCA 1989). Nevertheless,

the reviewing court must consider whether

the agency: (1) has considered all relevant

factors; (2) has given actual, good faith

consideration to those factors; and (3) has

used reason rather than whim to progress

from consideration of each of these factors

to its final decision.

Id.

65 . Moreover, it has long been recognized that " [a]lthough

a bid containing a material variance is unacceptable, not every

deviation from the invi tation to bid is material. It is

only material if it gives the bidder a substantial advantage

over the other bidders and thereby restricts or stifles

competition. " Tropabest Foods, Inc. v. State Dep ' t of Gen.

Servs. , 493 So. 2d 50, 52 (Fla. 1st DCA 1986) .

66 . Pursuant to rule 67 - 60.008, Florida Housing has

reserved the right to waive minor irregularities in an

application. Under this rule, minor irregularities are those

errors " that do not result in the omission of any material

information; do not creat e any uncertainty that the terms and

requirements of the competitive solicitation have been met; do

not provide a competitive advantage or benefit not enjoyed by

other Applicants; and do not adversely impact the interests of

the Corporation or the public. "

67 . Turning to the merits of the instant case, Florida

Housing ' s proposed action in awarding the housing tax credits to

Las Brisas , and not Ambar , is not contrary to the governing

statutes, rules, the RFA specifications, clearly erroneous,

contrary to c ompetition, arbitrary , or capricious. A s detailed

above, Las Brisas identified all of the principals on its

Principals Disclosure Form and the form was correct and

complete. There was no requirement to include the multiple

roles of each principal in the Principal s Disclosure Form. In

any event, Attachment 3 to the application included the multiple

roles of each principal. Accordingly, Florida Housing had

within the four corners of the application the information to

determine what roles each principal he ld. At most, Las Brisas '

failure to identify the multiple roles of its disclosed

principals in the Principal s Disclosure form is a waivable,

minor irregularity. Likewise, Las Brisas ' failure to answer the

Public Housing Authority Questio n was irrelevant and a waivable

minor irregularity because Las Brisas was not seeking any boost.

In sum, Las Brisas is eligible for funding and should not lose

any points.

68 . Finally, Ambar ' s reliance on HTG Village View, LLC v.

Florida Housing Finance Corp oration , Case No. 18 - 2156BID, 2018

Fla. Div. Adm. Hear. LEXIS 936 (Fla. DOAH July 27, 2018)(Final

Order entered September 18, 2018) , and Blue Broadway, LLC v.

Florida Housing Finance Corp oration , Case No. 17 - 3273BID, 2017

Fla. Div. Adm. Hear. LEXIS 528(Fla. DOAH August 29, 2017)(Final

Order entered September 22, 2017) are misplaced. Neither of

these cases involved the particular situation presented in the

instant case, where all principals were , in fact, disclosed.

RECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is RECOMMENDED that Florida Housing Finance Corporation

enter a final order dismissing the protest of Ambar Riverview,

Ltd., and award housing tax credits to Las Brisas Trace, LP.

DONE AND ENTERED this 21st day of May , 201 9 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of May , 2019 .

COPIES FURNISHED:

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

1725 Capital Circle Northeast , Suite 304

Tallahassee, Florida 32308

(eServed)

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A .

109 North Brush Street , Suite 300

Tampa, Florida 33602

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

(eServed)

Michael George Maida, Esquire

Michael G. Maida, P.A.

1709 Hermitage Boulevard , Suite 201

Tallahassee, Florida 32308

(eServed)

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn

106 East College Avenue , Suite 820

Tallahassee, Florida 32301

(eServed)

Kristen Bond, Esquire

P arker Hudson Rainer & Dobbs, LLP

215 South Monroe Street , Suite 750

Tallahassee, Florida 32301

(eServed)

Seann M. Frazier, Esquire

Pa rker Hudson Rainer & Dobbs, LLP

215 South Monroe Street , Suite 750

Tallahassee, Florida 32301

(eServed)

Marc Ito, Esqui re

Parker Hudson Rainer & Dobbs, LLP

215 South Monroe Street , Suite 750

Tallahassee, Florida 32301

(eServed)

Betty Zachem, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301

(eServed)

Hugh R. B rown, General Counsel

F lorida H ousing F inance C ompany

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

Corporation Clerk

Florida Housing Finance Company

227 North Bronough Street, Suite 5000

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.