19-001397BID Amelia Court At Creative Village - Phase Ii Partners, Ltd. vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, June 7, 2019.

Summary: Neither Pet'r.(s) proved that Florida Housing's intended award is contrary to its governing statutes, rules, or the solicitation specifications; further, the existence of a temporary injunction does not inhibit Florida Housing from awarding tax credits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DURHAM PLACE, LTD ; AND DURHAM

PLACE DEVELOPER, LLC,

Petitioners,

vs. Case No. 19 - 1396BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent.

_______________________________/

AMELIA CO URT AT CREATIVE VILLAGE

- PHASE II PARTNERS, LTD.,

Petitioner,

vs. Case No. 19 - 1397BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent,

and

DURHAM PLACE, LTD ; AND DURHAM

PLACE DEVELOPER, LLC; AND

HAWTHORNE PARK, LTD ; AND

HAWTHORNE PARK DEVELOPER, LLC,

In tervenors.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1) and (3), Florida Statutes (2018), 1/ on April 15, 2019,

in Tallahassee, Florida.

APPEARANCES

For Petitioners Durham Place , LTD.; and Durham Place

D eveloper , LLC ( Ð Durham Place Ñ ) (Case No. 19 - 1936BID); and

Intervenors H awthorne P ark , LT D; and H awthorne P ark D eveloper ,

LLC ( Ð Hawthorne Park Ñ ) (Case No. 19 - 1937BID):

Douglas P. Manson, Esquire

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street, Suite 300

Tampa, Florida 33602

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn

106 East College Avenue, Suite 820

Tallahassee, Florida 32301

For Petitioner Amelia Court at Creative Village Î Phase II

Partners, LTD. (ÐAmelia CourtÑ) (Case No. 19 - 1937BID):

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryan t & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Respondent Florida Housing Finance Corporation

( Ð Florida Housing Ñ ):

Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

T allahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this bid protest matter is whether Respondent,

Florida Housing Finance Corporation Ós , intended award of funding

under Request for Applications 2018 - 112 was contrary to its

governing statutes, rules, or the solicitation specifications.

PRELIMINARY STATEMENT

This matter involves two protests to a Notice of Intent to

Award issued by Florida Housing under Request for Applications

2018 - 112 ( Ð RFA 2018 - 112 Ñ ). On September 6, 2018, Florida

Housing, th rough RFA 2018 - 112, solicited applications to

allocate competitive tax credits for affordable housing

developments located in Broward, Duval, Hillsborough, Or ange,

Palm Beach, and Pinellas c ounties.

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

intent to award funding in Orange County, Florida, to Hawthorne

Park.

On February 15, 2019, Durham Place, the third ranked

applicant, timely filed a formal written protest challenging

Florida Housing Ó s scoring of the second ranked applicant, Amelia

Court (DOAH Case No. 19 - 1396 BID ). 2/ On February 18, 2019, Amelia

Court timely filed a formal written protest of Florida Housing Ó s

award to Hawthorne Park (DOAH Case No. 19 - 1396 BID ). On

March 15, 2019, Hawthorne Park filed a Notice of Intervention of

a Specific ally Named Party in Case No. 19 - 1397BID (Amelia

Court Ó s protest). 3/ On March 25, 2019, Durham Place also filed a

Motion to Intervene in DOAH Case No. 19 - 1397BID, which was

granted. 4/

On March 15, 2019, Florida Housing referred both Durham

Place Ó s and Am elia Court Ó s protests to the Division of

Administrative Hearings ( Ð DOAH Ñ ) for assignment to an

Administrative Law Judge ( Ð ALJ Ñ ) to conduct a chapter 120

evidentiary hearing. On March 20, 2019, DOAH Case Nos. 19 -

1396BID and 19 - 1397BID were consolidated pur suant to Florida

Administrative Code Rule 28 - 106.108.

The final hearing was held on April 15, 2019. Joint

Exhibits 1 through 7 were admitted into evidence. Amelia

Court Ó s Exhibits 7, 8, 10, 11, 13, and 14 were admitted into

evidence. 5/ Florida Housing presented the testimony of Marisa

Button. Amelia Court called Scott Culp to testify.

A one - volume Transcript of the final hearing was filed with

DOAH on April 30, 2019. At the close of the hearing, the

parties were advised of a ten - day time frame after receipt of

the hearing transcript to file post - hearing submittals. All

parties filed Proposed Recommended Orders, which were duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. Florida Housing is a public corporation created

pursuan t to section 420.504, Florida Statutes. Its purpose is

to provide and promote public welfare by administering the

governmental function of financing affordable housing in the

S tate of Florida. For purposes of this administrative

proceeding, Florida Housi ng is considered an agency of the S tate

of Florida.

2. Hawthorne Park, Amelia Court, and Durham Place are all

properly registered business entities in Florida and engage in

the business of providing affordable housing.

3. The low - income housing tax credi t program (commonly

referred to as Ð tax credits Ñ or Ð housing credits Ñ ) was enacted

to incentivize the private market to invest in affordable rental

housing. The affordable housing industry relies heavily on

public funding, subsidies, and tax credits to de velop projects

that are financially sustainable in light of the sub - market rents

they charge. Because tax credits allow developers to reduce the

amount necessary to fund a housing project, they can (and must)

offer the tax credit property at lower, more a ffordable rents.

Developers also agree to maintain rental prices at affordable

levels for periods of 30 to 50 years.

4. Florida Housing has been designated as the housing

credit agency for the state of Florida within the meaning of

section 42(h)(7)(A) of the Internal Revenue Code. As such,

Florida Housing is authorized to establish procedures to

distribute low - income housing tax credits and to exercise all

powers necessary to administer the allocation of those credits.

§ 420.5099, Fla. Stat.

5. Flori da Housing uses a competitive solicitation process

to award low - income housing tax credits. Florida Housing

initiates the solicitation process by issuing a request for

applications ( Ð RFA Ñ ). §§ 420.507(48) and 420.5087(1), Fla.

Stat.; and Fla. Admin. Code R. 67 - 60.009(4).

6. The RFA at issue in this matter is RFA 2018 - 112,

entitled Ð Housing Credit Financing for Affordable Housing

Developments Located in Broward, Duval, Hillsborough, Orange,

Palm Beach, and Pinellas Counties. Ñ The purpose of RFA 2018 - 112

is to distribute funding to create affordab le housing

developments in the S tate of Florida. Through RFA 2018 - 112,

Florida Housing intends to provide an estimated $17,314,387.00

of housing tax credits.

7. This bid protest conce rns Florida Housing Ó s inte nded

award of tax credits to Hawthorne Park for its proposed housing

development in Orange County, Florida. Amelia Court, the second

ranked developer, challenges Florida Housing Ó s determination of

eligibility and award to Hawthorne Park. Durham Place, th e

third - place developer, challenges Florida Housing Ó s ranking of

Amelia Court.

8. Florida Housing issued RFA 2018 - 112 on September 6,

2018. 6/ Applications were due to Florida Housing by November 13,

2018.

9. Florida Housing received 23 applications fo r housing

credits under RFA 2018 - 112. Hawthorne Park, Amelia Court, and

Durham Place all timely applied for funding to assist in the

development of multi - family housing in Orange County, Florida.

10. RFA 2018 - 112 set forth certain information which eac h

applicant was required to submit with the application. RFA

2018 - 112, Section Five, A.1, expressly stated that Ð [o]nly

Applications that meet all of the following Eligibility Items

will be eligible for funding and considered for funding

selection. Ñ Ther eafter, Section Five, A.1, listed 45 separate

Eligibility Items.

11. Pertinent to these bid protests, one Eligibility Item

required each applicant to demonstrate that its housing project

Ð [q]ualifies for Local Government Support. Ñ An applicant

satisfie d this requirement by submitting a Florida Housing Local

Government Verification of Contribution Form (a Ð Contribution

Form Ñ ) as referenced in RFA 2018 - 112, Sections Four, A.11.a . (3),

and A.11.b. Failure to show evidence of Local Government

Support would render an application ineligible for funding.

12. In addition, RFA 2018 - 112, Section Four, A.3.c . (1),

required each applicant to Ð state the name of each Developer,

including all co - Developers Ñ of the planned housing project.

The application was also to include a Ð Principals of the

Applicant and Developer(s) Disclosure Form. Ñ See Fla. Admin.

Code R . 67 - 48.002(93).

13. A total of six applicants applied for funding for

Orange County. U pon receipt of the applications, Florida

Housing assigned each applic ant a lottery number. Hawthorne

Park was given a lottery number of 1. Amelia Court was assigned

a lottery number of 24. Durham Place received a lottery number

of 3.

14. Thereafter, Florida Housing selected a Review

Committee from amongst its staff to score each application. The

Review Committee reviewed, deemed eligible or ineligible,

scored, and ranked applications pursuant to the terms of RFA

2018 - 112, as well as Florida Administrative Code C hapters 67 - 48

and 67 - 60, and applicable federal regulatio ns.

15. The Review Committee met on January 22, 2019, to

discuss their scores. The Review Committee found that Hawthorne

Park Ó s application satisfied all mandatory eligibility

requirements for funding and awarded it 10 out of 10 Total

Points. Amelia Co urt was also found to have satisfied all

eligibility requirements for funding, and also received a score

of 10 out of 10 Total Points. Finally, the Review Committee

concluded that Durham Place satisfied the eligibility

requirements for funding, and it too was given a score of 10 out

of 10 Total Points.

16. On February 1, 2019, the Review Committee presented

its recommendation of preliminary rankings and allocations to

Florida Housing Ó s Board of Directors. T he Board of Directors

also found that Hawthorne Park, Amelia Court, and Durham Place

all satisfied the mandatory and eligibility requirements for

funding in Orange County.

17. Thereafter, per RFA 2018 - 112, Section Five, B.2., and

Section Six, the Board of Directors selected Hawthorne Park to

receive tax credits for its a ffordable housing development in

Orange County. T he Board of Directors chose Hawthorne Park

based on the Review Committee Ó s recommendation, RFA 2018 - 112 Ó s

funding selection criteria, as well as the fact that Hawthorne

Park held the l owest lottery number of 1 .

18. The Board of Directors ranked Amelia Court Ó s

application the next highest based on the selection criteria.

Durham Place Ó s application placed third. Durham Place held a

lower lottery number than Amelia Court. However, as addressed

below, Amelia Court Ó s application included Local Government

Support in the form of Local Government Areas of Opportunity

Funding ( Ð Areas of Opportunity Funding Ñ ), as opposed to Local

Government Contribution funding. Under the provisions of RFA

2018 - 112, applicants who obtained Areas of Opportunity Funding

were given a ranking preference. Of the six applications for

Orange County, only Hawthorne Park and Amelia Court claimed

Areas of Opportunity Funding.

19. The Board of Directors approved $2,3 00,000 in annual

federal tax credits to help finance Hawthorne Park Ó s 120 - unit,

Garden Apartment complex in Orange County.

I. AMELIA COURT Ó S CHALLENGE OF HAWTHORNE PARK :

20. Amelia Court protests Florida Housing Ó s selection of

Hawthorne Park instead of i ts own development. Amelia Court

specifically challenges Florida Housing Ó s determination that

Hawthorne Park submitted a valid Contribution Form. 7/

21. Amelia Court seeks an allocation of $2,375,000 in tax

credits to help finance its affordable housing project in the

City of Orlando. I f Amelia Court successfully demonstrates that

Florida Housing erred in accepting, then scoring, Hawthorne

Park Ó s application, Amelia Court, by virtue of qualifying for

Areas of Opportunity Funding, as well as holding the next lowest

lottery number, stands in line to be selected for funding

instead of Hawthorne Park.

22. As indicated above, RFA 2018 - 112, section Four, A.11,

required applicants to provide evidence of Local Government

Support for their proposed housing deve lopment. This support

could come in the form of a grant, loan, fee waiver and/or a fee

deferral from the local government entity. Florida Housing did

not intend for this local funding to serve as the primary

financial support for the housing project. In stead, Florida

Housing established a contribution threshold amount which could

be used to gauge the local government Ó s interest in the proposed

development.

23. An a pplicant could satisfy the Local Government

Support requirement in two ways. An a pplica nt could obtain

either 1) a Local Government Contribution (Section Four,

A.11.a.) ; or 2) Areas of Opportunity Fund ing (Section Four,

A.11.b.).

24. RFA 2018 - 112 established the minimum financial

commitment for the Local Government Contribution at $75,000.

Areas of Opportunity Funding contemplated much larger support

from the local government. RFA 2018 - 112, Section Four, A.11.b.,

called for a cash loan and/or a cash grant in a minimum

qualifying amount ranging from $472,000 to $747,000 depending on

the bu ilding and construction type. Consequently, as set forth

in RFA 2018 - 112, Section Five, B.3.e., and Section Six, Areas of

Opportunity Funding enabled an application to receive a

preference in the selection process.

25. To substantiate the receipt of Loc al Government

Support, applicants were instructed to include with their

applications a properly executed Contribution Form. W ith

respect to Areas of Opportunity Funding, RFA 2018 - 112, Section

Four, A.11.b., stated:

In order to be eligible to be considered

Local Government Areas of Opportunity

Funding, the cash loans and/or cash grants

must be demonstrated via one or both of the

Florida Housing Local Government

Verification of Contribution forms (Form

Rev. 08 - 16), called Ð Local Government

Verification of Co ntribution Î Loan Ñ form

and/or the Ð Local Government Verification of

Contribution Î Grant Ñ form.

26. Both the Local Government Verification of Contribution

Î Loan form (the Ð Contribution Form Î Loan Ñ ) and the Local

Government Verification of Contributi on Î Grant form (the

Ð Contribution Form Î Grant Ñ ) directed an applicant to include

certain information. First, the loan or grant must be dedicated

to the specific RFA at issue (RFA 2018 - 112 in this matter).

Next, the Contribution Form must explicitly rec ord the face

amount or value of the L ocal G overnment C ontribution, as well as

the source of the local government loan or grant. In addition,

the funds could not c ome from a prohibited source.

27. Finally, the Contribution Form had to be signed by a

repr esentative of the local government who certified the

correctness of the loan amount and source. The Contribution

Form expressed:

This certification must be signed by the

chief appointed official (staff) responsible

for such approvals, Mayor, City Manager,

County Manager/Administrator/Coordinator,

Chairperson of the City Council/Commission

or Chairperson of the Board of County

Commissioners. . . . The Applicant will not

receive credit for this contribution if the

certification is improperly signed.

28. RFA 2018 - 112, Section Four, A.11.b., also required

that Ð funding . . . shall be paid in full by the local

jurisdiction no later than 90 days following the date the

proposed Development is placed in - service.

29. Hawthorne Park, to establish its Areas of Op portunity

Funding, included both a Contribution Form - Loan, as well as a

Contribution Form Î Grant, for a combined Local Government

Support amount of $567,500. Hawthorne Park Ó s Contribution

Form - Loan represented that Orange County had agreed to provide

Hawthorne Park a reduced interest rate loan in the amount of

$317,500. This loan, by itself, was not large enough to meet

the Areas of Opportunity Funding threshold. However, Hawthorne

Park Ó s Contribution Form - Grant identified an additional

$250,000 f rom Orange County in the form of a State Housing

Initiative Partnership ( Ð SHIP Ñ ) 8/ grant. The combined loan and

grant (if both are valid) established sufficient Local

Government Support to qualify Hawthorne Park for the Areas of

Opportunity Funding rankin g preference.

30. Amelia Court alleges that the SHIP grant Hawthorne

Park identified on its Contribution Form Î Grant is illegal or

invalid. 9/ To formally contest Orange County Ó s SHIP grant,

Atlantic Housing Partners, LLLP ( Ð Atlantic Housing Ñ ), the

dev eloper of the Amelia Court housing project, sued Orange

County and Wendover Housing Partners, LLC ( Ð Wendover Ñ ) , in the

Circuit Court of the Ninth Judicial Circuit in Orange County,

Florida, in a case entitled Atlantic Housing Partners, LLLP v.

Orange Count y, Florida, and Wendover Housing Partners, LLC , Case

No. 2018 - CA - 12227 - O. (The suit identifies Wendover as the

developer of the Hawthorne Park housing project.)

31. In the circuit court action, Amelia Court specifically

alleges that Orange County failed to follow its local housing

assistance plan ( Ð Assistance Plan Ñ ) prior to offering the SHIP

grant to Hawthorne Park. Amelia Court claims that the

Assistance Plan required Orange County to initiate a competitive

solicitation process (request for proposals) before awarding

SHIP funds. 10/ Orange County undisputedly did not do so prior to

issuing the SHIP grant to Hawthorne Park. Based on Orange

County Ó s failure to comply with its Assistance Plan, Amelia

Court charges that Hawthorne Park Ó s Contribution Form Î Grant is

invalid.

32. On January 21, 2019, the circuit court issued a

Temporary Injunction. Agreeing with Atlantic Housing/Amelia

Court, the circuit court held that Ð Orange County deviated from

the requirements of its [Assistance Plan]. Ñ The circuit court

found that, Ð [b]y the plain terms of its own [Assistance Plan],

Orange County was required to conduct an [request for proposals]

to award SHIP funds to Wendover. Ñ

33. Through the Temporary Injunction, the circuit court

enjoined Orange County from conveying the SHIP funds to Wendover

for the Hawthorne Park development. The circuit court

specifically ruled that Orange County and Wendover:

are temporarily enjoined, pending a final

adjudication and the granting or [sic]

permanent relief, from awarding SHIP funds

to Wendover as [Areas of Opportunity

Funding] for Orange County related to

Hawthorne Park and the 2018 RFA.

The circuit court concluded that, Ð Wendover should not be

permitted to compete given its illegal award of SHIP funds as an

[Areas of Op portunity Funding] from Orange County in the first

place. Ñ

34. Florida Housing, however, was not joined as a party to

the circuit court action. Commenting on this fact, the circuit

court inserted a footnote stating:

Inasmuch as [Florida Housing] is not a party

to these proceedings, necessarily, this

injunction does not enjoin any activity of

[Florida Housing].

35. On January 22, 2019, Orange County and Wendover

appealed the Temporary Injunction to the Fifth District Court of

Appeal. The appeal is pen ding as of the date of this

Recommended Order.

36. In the meantime, on January 31, 2019, the circuit

court entered an Order Granting Motion to Vacate Stay.

Consequently, the terms of the Temporary Injunction remain in

effect pending the outcome of the ap peal.

37. Based on the Temporary Injunction, at this time,

Orange County is not authorized to distribute the $250,000 SHIP

grant to Hawthorne Park to help fund its housing project.

Without the SHIP grant, Hawthorne Park does not qualify for the

Areas of Opportunity Funding selection preference. As a result,

Amelia Court contends that Florida Housing should invalidate

Hawthorne Park Ó s Areas of Opportunity Funding, and select A melia

Court as the top ranked applicant for tax credits for Orange

County.

38. In response to Amelia Court Ó s challenge, Florida

Housing takes the position that the Temporary Injunction is a

preliminary determination, not a final adjudication.

Consequently, the Temporary Injunction does not conclusively

establish that the SHIP gran t from Orange County is tainted by

fraud or illegality, or is in some manner invalid. Therefore,

the Contribution Form - Grant that Hawthorne Park provided with

its application complied with the express terms of RFA 2018 - 112,

and Hawthorne Park Ó s applicat ion remains eligible for tax credit

funding.

39. In support of its position, Florida Housing presented

the testimony of Marisa Button, Florida Housing Ó s Director of

Multi - family Allocations. In her job, Ms. Button oversees

Florida Housing Ó s RFA process .

40. Ms. Button disagreed with Amelia Court Ó s argument that

Florida Housing should reject the Contribution Form - Grant

based on the circuit court Ó s Temporary Injunction. Ms. Button

testified that, a s a rule, Florida Housing assumes the

correctness of a properly executed Contribution Form. Because

Hawthorne Park Ó s Contribution Form Î Grant included the required

information and signatory, Florida Housing did not question its

underlying validity when scoring the applications.

41. Ms. Button further exp lained that Florida Housing does

not have the authority to independently determine whether a

local government followed the appropriate procedures to award a

grant or loan. Therefore, Florida Housing defers to the local

government Ó s exercise of its own ord inances and processes.

Similarly, Ms. Button maintained that the circuit court is the

proper venue to determine the validity of the Orange County SHIP

grant. Ms. Button declared that Florida Housing will be bound

by the circuit court Ó s ultimate ruling on the issue, whenever

that decision becomes final. 11/ However, until the $250,000 SHIP

grant is found invalid or otherwise prohibited , Florida Housing

considers its initial decision to award tax credits to Hawthorne

Park to be appropriate and correct.

42. On the other hand, Ms. Button conveyed that if a court

does rule that Orange County Ó s SHIP grant is invalid or illegal,

Florida Housing will deem Hawthorne Park Ó s Contribution Form Î

Grant as though it contained a material error. In other words,

Florida Housing would treat the Contribution Form Î Grant as

nonresponsive, or as if it was left blank. Consequently, if

Hawthorne Park Ó s remaining Local Government Support (the

$317,500 loan from Orange County) did not reach the financial

threshold to qualify fo r Areas of Opportunity Funding, Hawthorne

Park would not receive a scoring preference.

43. Regarding the question of how Florida Housing will

treat Hawthorne Park Ó s application while the $250,000 SHIP grant

is temporarily enjoined, Ms. Button testified that Florida

Housing would reevaluate the situation in its credit

underwriting process. Ms. Button explained that after its Board

of Directors selects an application, Florida Housing invites the

applicant (Hawthorne Park) into credit underwriting. During

that stage, the application is reexamined to ensure that it

complies with all RFA eligibility requirements, including the

obligation to secure sufficient Local Government Support. 12/ If

Hawthorne Park has the necessary Areas of Opportunity Funding to

ult imately finance its housing development, the award of tax

credits proceeds. If an award is determined inappropriate based

on the circumstances, then Florida Housing would likely not

advance its efforts to fund Hawthorne Park Ó s development. 13 /

44. That be ing said, Ms. Button stressed that, at this

time, no court has conclusively invalidated the $250,000 SHIP

grant to Hawthorne Park. Furthermore, the circuit court

expressly stated that the Temporary Injunction Ð does not enjoin

any activity Ñ of Florida Hous ing. Therefore, Florida Housing

takes the position that Hawthorne Park has not been formally

disqualified from consideration under RFA 2018 - 112. Neither is

Florida Housing prohibited from proceeding with an award of tax

credits to Hawthorne Park.

45. In response to Amelia Court Ó s challenge, Hawthorne

Park concurs with Florida Housing that the Temporary Injunction

is not a final judgment. Therefore, the Temporary Injunction

does not preclude Florida Housing from awarding tax credits

under RFA 2018 - 112 for Hawthorne Park Ó s development.

46. Hawthorne Park points out that the Temporary

Injunction is a provisional decis ion by the circuit court. The

purpose of the Temporary Injunction is to maintain the status

quo by temporarily enjoining Orange County fro m releasing SHIP

funds for the Hawthorne Park housing project. However, the

Temporary Injunction, without more, does not automatically void

Orange County Ó s selection of Wendover/Hawthorne Park for the

SHIP grant. Therefore, the Contribution Form Î Grant that

Hawthorne Park submitted with its application remains in effect

unless and until the circuit court issues a final ruling.

47. Furthermore, Hawthorne Park insists that Orange

County Ó s allocation of SHIP funds does not violate any law or

local ordinan ce. Hawthorne Park declares that the circuit court

issued the Temporary Injunction based on a misunderstanding of

the Orange County Assistance Plan. Hawthorne Park fully intends

to fight Atlantic Housing/Amelia Court Ó s allegations in circuit

court where it will have a full opportunity to present its case.

II. DURHAM PLACE Ó S CHALLENGE OF AMELIA COURT :

48. Durham Place responded to RFA 2018 - 112 seeking an

allocation of $2,375,000 in tax credits to help finance its

housing development in Orange County. Du rham Place received th e

same score as Hawthorne Park and Amelia Cour t (10 out of 10

Total Points) .

49. For its application, Durham Place secured Local

Government Support in the amount of $75,000. This funding was

sufficient to satisfy the Local Governme nt Contribution

eligibility requirements under RFA 2018 - 112, Section Four,

A.11.a. However, this funding amount was not large enough to

receive a selection preference as Areas of Opportunity Funding.

Therefore, Durham Place Ó s application fell behind Hawt horne Park

and Amelia Court in RFA 2018 - 112 Ó s sorting methodology under RFA

2 018 - 112, Section Five, B.2.

50. Nevertheless, if the evidence shows that Florida

Housing should disqualify Hawthorne Park Ó s Areas of Opportunity

Funding, and the evidence furthe r demonstrates that Amelia

Court Ó s application was nonresponsive or ineligible, then Durham

Place would be entitled to an award of tax credits as the third

ranked qualified applicant. 14/

51. Durham Place contests two aspects of Amelia Court Ó s

application . First, Durham Place claims that (similar to

Hawthorne Park) Amelia Court did not qualify for the Areas of

Opportunity Funding selection preference under RFA 2018 - 112,

Section Four, A.11.b.

52. With its application, Amelia Court provided a

Contributio n Form - Grant from the City of Orlando purporting to

commit $625,750 to its housing project. The Contribution Form -

Grant identifies the source of the grant as the Ð City of Orlando

- Community Redevelopment Agency (CRA). Ñ The Contribution Form

- Grant was signed by Byron Brooks as the Chief Administrative

Officer of the City of Orlando.

53. Durham Place questions whether Mr. Brooks is the

proper signatory to certify a grant from the CRA. Durham Place

implies that the CRA does not employ Mr. Brooks. Therefore, he

is not Ð the chief appointed official (staff) responsible for

such approvals Ñ who could certify the legitimacy of CRA Ó s grant

to the Amelia Court housing project.

54. Second, RFA 2018 - 112, Section Four, A.3.c.(1) ,

required each applicant t o Ð state the name of each Developer,

including all co - Developers Ñ of the housing project. Durham

Place alleges that Amelia Court failed to list all the

developers or co - developers of its housing project. In support

of its argument, Durham Place points to a Condominium Purchase

Agreement that Amelia Court included with its Site Control

Certification Form to demonstrate its site control under RFA

2018 - 112, Section Four, A.7. The Condominium Purchase Agreement

identified Ð Amelia Court Developers, LLC Ñ ( Ð Ame lia Court

Developers Ñ ) as a Ð Developer Ñ of its proposed housing site.

55. Durham Place argues that Amelia Court did not list

Amelia Court Developers in its application as either a

developer, co - developer, or principal. By failing to disclose

either Ame lia Court D evelopers as a co - d eveloper of the project

or list the names of the officers of Amelia Court Developers as

principals, Durham Place asserts that Amelia Court failed to

include a mandatory Eligibility Item.

56. Amelia Court refutes Durham Plac e Ó s allegations.

Regarding its Local Government Support, Amelia Court claims that

the CRA is a valid source for its Areas of Opportunity Funding.

Amelia Court Ó s retort was essentially unrebutted. At the final

hearing, Durham Place did not present any ev idence showing that

Mr. Brooks was not authorized to represent the CRA on the

Contribution Form Î Grant. No party called Mr. Brooks to

testify.

57. Regarding Amelia Court Ó s developers or co - developers,

Amelia Court introduced the testimony of Scott Cul p. Mr. Culp

asserted that Atlantic Housing is the sole developer of the

Amelia Court tax credit project. As the developer, Atlantic

Housing will manage the work on the condominium building, the

professionals who will design it, as well as the contractor who

will construct the affordable housing units. Mr. Culp declared

that no other entity or individual will participate in the

project as either a developer or co - developer.

58. Regarding the role of Amelia Court Developers,

Mr. Cole explained that Ame lia Court Developers is the leasehold

owner pursuant to a ground lease, as well as created the legal

structure of the condominium in which the Amelia Court project

will be located . Amelia Court Developers hired Atlantic Housing

to develop the Amelia Court housing community. However, Amelia

Court Developers does not have the same roster of principals as

Atlantic Housing. Neither will Amelia Court Developers play any

other role in Amelia Court Ó s application for tax credits under

RFA 2018 - 112.

59. Ms. Bu tton testified that, to date, Florida Housing is

not aware of any evidence supporting Durham Place Ó s claim that

Mr. Brooks is not authorized to sign Amelia Court Ó s Contribution

Form on behalf of the CRA. Furthermore, as with Hawthorne

Park Ó s Contribution Form - Grant, Ms. Button did not believe

that Florida Housing has the authority to make an independent

determination whether the CRA failed to comply with the

appropriate procedures to award $625,750 to the Amelia Court

housing project.

60. Therefore (a s with Hawthorne Park Ó s application) ,

after Florida Housing determined that Amelia Court Ó s

Contribution Form Î Grant was properly executed, Florida Housing

accepted it as valid on its face, and scored it accordingly. At

the final hearing, Ms. Button maint ained that, until Florida

Housing receives some evidence that the Contribution Form -

Grant is invalid, or tainted by fraud, illegality, or

corruption, Amelia Court Ó s second place ranking is appropriate.

61. Florida Housing reached a similar conclusion r egarding

Durham Place Ó s allegation that Amelia Court did not identify all

of its housing project Ó s developers or co - developers.

Ms. Button testified that, while Florida Housing did observe

that Amelia Court Developers was connected to the proposed

develop ment through the Condominium Purchase Agreement, Florida

Housing is not aware of any evidence indicating that Amelia

Court Developers will serve as a developer or co - developer for

Ame lia Court Ó s housing project.

62. Based on the evidence and testimony p resented at the

final hearing, Amelia Court did not establish, by a

preponderance of the evidence, that Florida Housing Ó s decision

to consider, then rank, Hawthorne Park Ó s application was clearly

erroneous, contrary to competition, arbitrary, or capricious .

Accordingly, Amelia Court did not meet its burden of proving

that Florida Housing Ó s proposed action to award tax credit

funding to Hawthorne Park under RFA 2018 - 112 was contrary to its

governing statutes, rules or policies, or the provisions of RFA

201 8 - 112.

63. Similarly, Durham Place failed to demonstrate that

Florida Housing Ó s consideration of Amelia Court Ó s application

was contrary to its governing statutes, rules or policies, or

the solicitation specifications.

CONCLUSIONS OF LAW

64. DOAH has ju risdiction over the subject matter and the

parties to this competitive procurement protest pursuant to

sections 120.569, 120.57(1), and 120.57(3). See also Fla.

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

65. Amelia Court challenges Florida Housing Ó s selection of

Hawth orne Park for an award of tax credit funding under RFA

2018 - 112. Pursuant to section 120.57(3)(f), the burden of proof

in this matter rests with Amelia Court as the party protesting

the proposed agency action. Similarly, Durham Place bears the

burden of proving its protest of the award to Amelia Court. See

State Contracting & Eng Ó g Corp. v. Dep Ó t of Transp. , 709 So. 2d

607, 609 (Fla. 1st DCA 1998). Section 120.57(3)(f) further

provides that in a bid protest:

[T]he administrative law judge shall conduct

a de novo proceeding to determine whether

the agency Ó s proposed action is contrary to

the agency Ó s governing statutes, the

agency Ó s rules or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the prop osed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

66. The phrase Ð de novo proceeding Ñ describes a form of

intra - agency review. The purpose of the ALJ Ó s review is to

Ð evaluate the action taken by the agency. Ñ J .D. v. Fla. Dep Ó t

of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013);

and State Contracting , 709 So. 2d at 609. A de novo proceeding

Ð simply means that there was an evidentiary hearing . . . for

administrative review purposes Ñ and does not mean that the ALJ

Ð sits as a substitute for the [agency] and makes a determination

whether to award the bid de novo . Ñ J.D. , 114 So. 3d at 1133;

Intercontinental Props., Inc. v. Dep Ó t of Health & Rehab.

Servs . , 606 So. 2d 380, 386 (Fla. 3d DCA 1992). Ð The judg e may

receive evidence, as with any formal hearing under section

120.57(1), but the object of the proceeding is to evaluate the

action taken by the agency. Ñ State Contracting , 709 So. 2d at

609.

67. Accordingly, Amelia Court (and Durham Place) must

prove , by a preponderance of the evidence, that Florida

Housing Ó s proposed action is: (a) contrary to its governing

statutes; (b) contrary to its rules or policies; or (c) contrary

to the specifications of RFA 2018 - 112. The standard of proof

Amelia Court must meet to establish that the award to Hawthorne

Park violates this statutory standard of conduct is whether

Florida Housing Ó s decision was: (a) clearly erroneous;

(b) contrary to competition; or (c) arbitrary or capricious.

§§ 120.57(3)(f) and 120.57(1)(j ), Fla. Stat. ; and AT&T Corp. v.

State, Dep Ó t of Mgmt. Servs. , 201 So. 3d 852, 854 (Fla. 1st DCA

2016).

68. The Ð clearly erroneous Ñ standard has been defined to

mean Ð the interpretation will be upheld if the agency Ó s

construction falls within the permissi ble range of

interpretations. Ñ Colbert v. Dep Ó t of Health , 890 So. 2d 1165,

1166 (Fla. 1st DCA 2004); see also Holland v. Gross , 89 So. 2d

255, 258 (Fla. 1956)(when a finding of fact by the trial court

Ð is without support of any substantial evidence, is c learly

against the weight of the evidence or . . . the trial court has

misapplied the law to the established facts, then the decision

is Ò clearly erroneous. ÓÑ ). However, if Ð the agency Ó s

interpretation conflicts with the plain and ordinary intent of

the l aw, judicial deference need not be given to it. Ñ Colbert ,

809 So. 2d at 1166.

69. An agency action is Ð contrary to competition Ñ if it

unreasonably interferes with the purpose of competitive

procurement. As described in Wester v. Belote , 138 So. 721, 72 2

(Fla. 1931):

The object and purpose [of the bidding

process] . . . is to protect the public

against collusive contracts; to secure fair

competition upon equal terms to all bidders;

to remove not only collusion but temptation

for collusion and opportunity for gain at

public expense; to close all avenues to

favoritism and fraud in its various forms;

to secure the best values . . . at the

lowest possible expense; and to afford an

equal advantage to all desiring to do

business . . . , by affording an opport unity

for an exact comparison of bids.

In other words, the Ð contrary to competition Ñ test forbids

agency actions that: (a) create the appearance and opportunity

for favoritism; (b) reduce public confidence that contracts are

awarded equitably and economi cally; (c) cause the procurement

process to be genuinely unfair or unreasonably exclusive; or

(d) are abuses, i.e. , dishonest, fraudulent, illegal, or

unethical. See § 287.001, Fla. Stat.; and Harry Pepper &

Assoc., Inc. v. City of Cape Coral , 352 So. 2d 1190, 1192 (Fla.

2d DCA 1977).

70. Finally, section 120.57(3)(f) requires an agency

action be set aside if it is Ð arbitrary, or capricious. Ñ An

Ð arbitrary Ñ decision is one that is Ð not supported by facts or

logic, or is despotic. Ñ Agrico Chemical Co. v. Dep Ó t of Envtl.

Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied , 376

So. 2d 74 (Fla. 1979). A Ð capricious Ñ action is one which is

Ð taken without thought or reason or irrationally. Ñ Id.

71. To determine whether an agency acted in an Ð arbit rary,

or capricious Ñ manner involves consideration of Ð whether the

agency: (1) has considered all relevant factors; (2) given

actual, good faith consideration to the factors; and (3) has

used reason rather than whim to progress from consideration of

these factors to its final decision. Ñ Adam Smith Enter. v.

Dep Ó t of Envtl. Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

The standard has also been formulated by the court in Dravo

Basic Materials Co. v. Department of Transportation , 602 So. 2d

632, 632 n. 3 (Fla. 2d DCA 1992), as follows: Ð If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious. Ñ

72. Fur ther, pursuant to its rulemaking authority under

section 420.507(12), Florida Housing adopted chapter 67 - 60 to

administer the competitive solicitation process. See Fla. Admin.

Code R. 67 - 60.001(1).

73. According to rule 67 - 60.006(1):

The failure of a n Applicant to supply

required information in connection with any

competitive solicitation pursuant to this

rule chapter shall be grounds for a

determination of nonresponsiveness with

respect to its Application. If a

determination of nonresponsiveness is made by

[Florida Housing], the Application shall not

be considered.

74. In addition, by submitt ing an application, RFA 2018 -

112, Section Three, F.3., required each applicant to certify

that:

Proposed Developments funded under this RFA

will be subject to the requirements of the

RFA, inclusive of all Exhibits, the

Application requirements outlined in Rule

Chapter 67 - 60, F.A.C., the requirements

outlined in Rule Chapter 67 - 48, F.A.C. and

the Compliance requirements of Rule

Chapter 67 - 53, F.A.C.

75. Turning to the protests at hand, notwithstanding the

effect of the Temporary Injunction (discussed below), the

undersigned finds that Florida Housing Ó s decision to consider,

then rank, Hawthorne Park Ó s application, as well as Amelia

Court Ó s application, was not c ontrary to its governing statutes;

its rules or policies; or the specifications of RFA 2018 - 112.

76. Regarding Amelia Court Ó s protest, the evidence in the

record establishes that Hawthorne Park Ó s Contribution Form Î

Grant contained all the required inform ation and was valid on its

face on the date Hawthorne Park submitted its application to

Florida Housing. No evidence shows that Orange County Ó s

commitment of SHIP funds was not effective as of the application

deadline, or will not be paid in full within 9 0 days following

the date Hawthorne Park Ó s proposed development is placed into

service (again, notwithstanding the Temporary Injunction).

Therefore, as an initial conclusion, Florida Housing properly

acted within its authority to qualify Hawthorne Park fo r Areas of

Opportunity Funding, and rank its application accordingly.

77. T he central issue in Amelia Court Ó s challenge is the

impact of the Temporary Injunction. Amelia Court argues that

the Temporary Injunction effectively invalidates Hawthorne

Park Ó s Contribution Form Î Grant. Amelia Court contends that

Florida Housing should treat the circuit court Ó s preliminary

ruling as a conclusive determination that Hawthorne Park will

not receive $250,000 in SHIP funds for its proposed housing

development. W it hout the $250,000 grant, Hawthorne Park will

not qualify for the Areas of Opportunity Funding selection

preference. Therefore, Florida Housing Ó s award of tax credits

to Hawthorne Park, as the top ranked developer, will be contrary

to its governing statute s, rules, policies, or the solicitation

specifications.

78. However, b ased on the applicable case law, Florida

Housing and Hawthorne Park present the more persuasive argument

that the Temporary Injunction does not constitute a binding or

final ruling th at the SHIP grant is invalid. Neither does the

Temporary Injunction preclude Florida Housing from considering

Hawthorne Park Ó s application under the terms of RFA 2018 - 112.

Therefore, Florida Housing is free to proceed with the award of

tax credits in Ora nge County to Hawthorne Park.

79. Florida case law establishes that Ð [a] temporary

injunction is provisional by nature. Ñ Planned Parenthood of

Greater Orlando, Inc. v. MMB Props . , 211 So. 3d 918, 924 (2017) .

Ð The purpose of a temporary injunction is n ot to resolve a

dispute on the merits, but rather to preserve the status quo

until the final hearing when full relief may be granted. Ñ

Planned Parenthood , 211 So. 3d at 924 (quoting Grant v. Robert

Half Intern., Inc. , 597 So. 2d 801, 801 - 02 (Fla. 3d DCA 1 992) ) .

See also Kozich v. DeBrino , 837 So. 2d 1041, 1043 (Fla. 4th DCA

2002)( Ð A trial court Ó s findings on a preliminary injunction do

not constitute Ð law of the case Ñ on final hearing. . . . The

findings of fact and conclusions of law made at a prelimin ary

injunction hearing are not binding on the court on final

hearing, where the parties present their full case to the

court Ñ ) ; and Hasley v. Harrell , 971 So. 2d 149, 152 (Fla. 2d DCA

2007)( Ð a true temporary injunction is not law of the case. Ñ ) .

80. The n on - binding effect of a temporary injunction is

explained in Klak v. Eagles Ó Reserve Homeowners Ó Ass ociation ,

Inc. , 862 So. 2d 947, 952 Î 53 (Fla. 2d DCA 2004) as follows:

The issuance or denial of a preliminary

injunction is the paradigmatic circumstance

whe re a determination is made by a court

without the benefit of a full hearing of the

issues. See Univ. of Tex. v. Camenisch ,

451 U.S. 390, 395, 101 S.Ct. 1830,

68 L.Ed.2d 175 (1981)( Ð [T]he findings of

fact and conclusions of law made by a court

granting a p reliminary injunction are not

binding at trial on the merits. Ñ )(citations

omitted). Because a decision based on a

less - than - full hearing Ï such as the issuance

or denial of a preliminary injunction Ï is by

its very nature provisional, it would be

nonsensical to give it binding effect on the

subsequent proceedings in the same case.

81. Furthermore, by the circuit court Ó s express terms, the

Temporary Injunction does not prevent Ð any activity Ñ of Florida

Housing, including an award of tax credits to Hawthorne P ark.

(Neither does the Temporary Injunction inhibit the actions of

the administrative law judge in this matter.) The Temporary

Injunction only controls the actions of Orange County and

Wendover/Hawthorne Park Ð pending a final adjudication and the

grantin g [of] permanent relief. Ñ

82. Accordingly, Florida Housing Ó s decision to award

funding to Hawthorne Park at this stage in the solicitation

process is appropriate and correct under the circumstances.

Ms. Button credibly testified (and the evidence shows ) that

Hawthorne Park Ó s Contribution Form Î Grant was properly executed

and valid at the time Florida Housing accepted it. Consequently,

until a court issues a final decision to the contrary, Florida

Housing must consider, and rank, Hawthorne Park Ó s appli cation in

accordance with the terms and conditions of RFA 2018 - 112.

Therefore, as a matter of law, Florida Housing may proceed with

the award of tax credits to Hawthorne Park until it is

affirmative ly determined that Hawthorne Park cannot, or will not,

re ceive the $250,000 SHIP grant.

83. This matter is analogous to Brownsville Manor, LP v.

Redding Dev elopment Partners, LLC , 224 So. 3d 891 (Fla. 1st DCA

2017). In Brownsville , the housing developer (Brownsville)

appealed a Florida Housing final order fi nding it ineligible for

funding. Following an administrative hearing, Florida Housing

determined that Brownville Ó s application did not qualify because

Brownsville had not finalized its development location point (a

Ð scattered site Ñ ) at the time it submitt ed its application.

Brownsville conceded that Ð it had not definitively determined

the development Ó s site configuration Ñ at the application stage.

However, Brownsville argued that it had submitted all the forms

the RFA required, and it intended to comply with all RFA

requirements should it be awarded tax credits. Brownsville

further asserted that it intended to confirm its development

location point Ð at the final site plan approval phase, which

occurs during the credit underwriting process, not at the

app lication stage. Ñ 15/

84. In reversing Florida Housing Ó s final order, the

appella te court opined that:

Florida Housing was required to interpret

the RFA consistently with its plain and

unambiguous language. . . . Brownsville

clearly complied with all of t he RFA

requirements at the application stage by

submitting the required forms, providing a

[development location point], and providing

the appropriate assurances that it intended

to comply with all of the RFA terms.

Brownsville , 224 So. 3d at 894.

85. T herefore, because Ð nothing in the RFA required

Brownsville to begin the clustering process or guarantee approval

as of the application stage, Ñ Florida Housing should not have

found Brownsville Ó s application ineligible Ð if the configuration

of a proposed de velopment would be fleshed out in the final site

plan approval process, which occurs after the application stage

during the credit underwriting. Ñ Brownsville , 224 So. 3d at 895.

Consequently, even though the true configuration of Brownsville Ó s

developmen t was Ð unknown at the application stage, Ñ because

Brownsville Ð complied with all that was required of it at the

application stage under the plain and unambiguous terms of the

RFA, Ñ the appellate court ordered Florida Housing to reinstate

Brownsville Ó s elig ibility for funding.

86. Similarly, in this matter, the Temporary Injunction

causes the availability of the Orange County SHIP grant to be

Ð unknown at the application stage. Ñ However, the evidence in the

record establishes that Hawthorne Park provided th e required

Contribution Forms and complied with all RFA mandatory

Eligibility Items when it submitted its application. Moreover,

RFA 2018 - 112, Section Four, A.11.b., informed the applicants that

Areas of Opportunity Funding Ð shall be paid . . . no later t han

90 days following the date the proposed Development is placed in -

service. Ñ This provision appears to allow Florida Housing the

flexibility to confirm the certainty of a local government grant

during credit underwriting; where, pursuant to Brownville ,

Florida Housing may Ð flesh out Ñ the viability of the Areas of

Opportunity Funding status. Accordingly, at this stage in the

application process, Florida Housing appropriately deemed

Hawthorne Park Ó s application eligible for an award of tax credit

funding in Orange County.

87. Similar to Amelia Court Ó s protest, Durham Place

asserts that Amelia Court Ó s Contribution Form Î Grant should be

considered non - responsive because the individual who signed the

form (Mr. Brooks) lacked the authority to certify the s ource of

the CRA grant. However, t he evidence shows that the

Contribution Form Î Grant was valid on the face of the document

when Amelia Court applied for funding. In addition, at the final

hearing, Durham Place did not produce any substantive evidence o r

testimony that Mr. Brooks was not authorized to certify the

validity of the CRA grant. Neither did Durham Place prove that

the CRA will not pay $625,750 to Amelia Court for its housing

development. Accordingly, Durham Place did not meet its burden

of p roving that Florida Housing Ó s decision to deem Amelia Court

eligible for Areas of Opportunity Funding was contrary to

Florida Housing Ó s governing statutes, rules or policies, or the

specifications of RFA 2018 - 112.

88. Further, the evidence does not suppor t Durham Place Ó s

claim that Amelia Court should have identified Amelia Court

Developers as a developer or co - developer of its housing project.

Mr. Culp credibly testified that Atlantic Housing is the only

entity that will serve as the developer for Amelia Court. The

fact that Amelia Court Developers is identified in a Condominium

Purchase Agreement is not sufficient, without more information,

to establish that it will participate as another tax credit

developer for Amelia Court. Therefore, Florida Housin g

appropriately considered and ranked Amelia Court Ó s application.

89. In sum, the evidence in the record establishes that

Florida Housing Ó s award to Hawthorne Park followed the selection

process outlined in RFA 2018 - 112. At the final hearing, Florida

H ousing presented good faith, factual, and logical reasons why

it found Hawthorne Park Ó s application complied with the

mandatory Eligibility Items detailed in RFA 2018 - 112, and then

ranked Hawthorne Park higher than its competitors. (The

undersigned reache s the same conclusion regarding Amelia Court Ó s

second ranked application.)

90. Conversely, Amelia Court failed to demonstrate that

Florida Housing Ó s award of tax credits to Hawthorne Park was

made in a manner that was clearly erroneous, contrary to

compe tition, arbitrary, or capricious. Therefore, Amelia Court

did not meet its burden of proving that Florida Housing Ó s

decision to provide tax credit funding for Hawthorne Park Ó s

proposed housing development was contrary to its governing

statutes, rules, or policies, or RFA 2018 - 112 Ó s terms or

provisions. Florida Housing Ó s selection of Hawthorne Park

should not be set aside.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Housing Finance

Corpo ration enter a final order dismissing the protests of both

Amelia Court and Durham Place. It is further recommended that

the Florida Housing Finance Corporation select Hawthorne Park as

the recipient of tax credit funding for Orange County under

RFA 2018 - 112.

DONE AND ENTERED this 7th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June, 2019 .

ENDNOTE S

1/ Unless otherwise stated, all citations to the Florida

Statut es and Florida Administrative Code are to the 2018

versions.

2 / Durham Place subsequently amended its formal written protest

to include allegations challenging Florida Housing Ó s award to

Hawthorne Park.

3 / Under Florida Administrative Code Rule 28 - 106. 205(3),

specifically - named persons, whose substantial interests are

being determined in the proceeding, may become a party by

entering an appearance and need not request leave to intervene.

4 / No protests were made to the specifications or terms of

RFA 2 018 - 112.

5 / Following the final hearing, Hawthorne Park, with the

undersigned Ó s acquiesce, filed a Second Request for Official

Recognition attaching numerous filings and pleadings from the

related action pending in the Circuit Court of the Ninth

Judicial Circuit, in and for Orange County, Florida. Hawthorne

Park proposed that these documents would help establish the

timeline of the circuit court proceedings. Upon review,

however, the only documents relevant to this administrative

matter are those accept ed into evidence as Amelia Court

Exhibits 7 and 8. Therefore, Hawthorne Park Ó s Second Request

for Official Recognition is denied.

6 / Florida Housing subsequently modified R FA 2018 - 112 on

October 4 and October 18, 2018.

7 / Hawthorne Park Ó s Contribution Form Î Grant is the only

portion of its application challenged in this bid protest.

8 / The SHIP Act is governed by sections 420.907 - .9079. Under

the SHIP Act, Florida Housing provides funds to local

governments Ð as an incentive for the creation of loca l housing

partnerships, to expand production of and preserve affordable

housing, to further the housing element of the local government

comprehensive plan specific to affordable housing, and to

increase housing - related employment. Ñ § 420.9072, Fla. Stat.

9 / With the exception of the legitimacy of the SHIP grant, no

party has alleged any other material errors in Hawthorne Park Ó s

application.

1 0 / The circuit court specifically referenced the Assistance

Plan, section II.E.a., which states:

[t]he availabi lity of funding will be

marketed to the multi - family affordable

housing development community and in

accordance with SHIP requirements; the

availability of SHIP funds, services and

selection criteria will be advertised . . .

through a request for proposals for private

developers.

1 1 / Towards this end, at the final hearing, Florida Housing

submitted a Motion in Limine seeking to preclude the entry of

any argument, evidence, or testimony regarding whether Orange

County failed to act in accordance with its o rdinances or

procedures, except as might be relevant to prove that the person

who signed a Contribution Form lacked the requisite authority to

speak for the government entity, or that the grant was tainted

by fraud, illegality, or corruption. No party obj ected to

Florida Housing Ó s motion. The undersigned granted the motion.

See , e.g. , Houston Street Manor LP v. Fla. Housing Fin . Corp . ,

Case No. 15 - 3302 ( Fla. DOAH Aug. 18, 2015) , adopted in toto (FO

Sept. 21, 2015).

1 2 / Florida Housing Ó s credit underwrit ing procedures are

described in r ule 67 - 48.0072, which provides:

Credit underwriting is a de novo review of

all information supplied, received or

discovered during or after any competitive

solicitation scoring and funding preference

process . . . . The success of an Applicant

in being selected for funding is not an

indication that the Applicant will receive a

positive recommendation from the Credit

Underwriter or that the Development team Ó s

experience, past performance or financial

capacity is satisfacto ry. The credit

underwriting review shall include . . . the

ability of the Applicant and the Development

team to proceed . . . .

1 3 / Ms. Button cautioned, however, that her testimony was not

intended to serve as an advisory opinion or in some manner bind

Florida Housing Ó s future decisions on the award of tax credits

to Hawthorne Park. Ms. Button urged that, as of the final

hearing, she could not determine with any certainty whether or

not Hawthorne Park would be able to proceed with its application

for f unding following the credit underwriting review.

1 4 / No party alleged that Durham Place Ó s application failed to

satisfy all eligibility requirements or was otherwise ineligible

for funding under RFA 2018 - 112.

1 5 / In describing the basis for Florida Hou sing Ó s final order,

the appellate court referred to the ALJ Ó s comments regarding

Brownsville Ó s reliance Ð on the future potential for clustering Ñ

as an approach to designate its development Ó s location point.

While the ALJ found that Brownsville proposed a Ð potentially

viable process, Brownsville had not started the process before

its application and there was no guarantee clustering would

be approved as per [the local government representative Ó s]

testimony that he was not sure if the density transfer was ev en

a viable option. Ñ Brownsville , 224 So. 3d at 894; Redding Dev .

Partners, LLC v. Brownsville Manner, LP, et. al. , Case No. 16 -

1138BID ( Fla. DOAH Apr. 19, 2016), amended (FHFC FO Dec. 11,

2017). Florida Housing Ó s final order adopted the ALJ Ó s

conclusion that Brownsville Ó s application included a material,

non - waivable deviation from the terms of the RFA that rendered

Brownsville ineligible for funding.

COPIES FURNISHED:

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North B rush Street

Tampa, Florida 33602

(eServed)

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

Michael George Maida, Esquire

Michael G. Maida, P.A.

Suite 201

1709 Hermitage Boulevard

Tallahassee, Florida 32308

(eServed)

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn

106 East College Avenue

Suite 820

Tallahassee, Florida 32301

(eServed)

Christopher Dale McGuire, Esquire

Florida Housing Finance Corpo ration

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

(eServed)

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

(eServed)

Douglas P. Manson, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North Brush Street

Tampa, Florida 33602 - 2637

(eServed)

Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

NOTICE OF RIGHT TO SUB MIT 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.