21-000147BID Htg Madison Park, Ltd vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Monday, March 29, 2021.

Summary: Florida Housing?s proposed action to deem Madison Landing eligible for an award of housing tax credit funds, as contemplated under a Request for Applications, was not clearly erroneous, contrary to competition, arbitrary, or capricious.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ADISON L ANDING II, LLC A ND ARC 2020,

LLC A ND N EW S OUTH R ESIDENTIAL , LLC ,

Petitioners ,

vs. Case No. 21 - 0146BID

F LORIDA H OUSING F INANCE C ORPORATION ,

Respondent .

/

H TG M ADISON P ARK , L TD

Petitioner ,

vs. Case No. 21 - 0147BID

F LORIDA H OUSING F INANCE C ORPORATION ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Brittany O. Finkbeiner of the Division of Administrative Hearings

( " DOAH " ), on February 9, 2021, via Zoom conference.

A PPEARANCES

For Petitioner s, Madison L anding II, LLC; ARC 2020, LLC; and New

South Residential, LLC ( c ollectively, " Madison Landing " ) :

J. Timothy Schulte, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

315 East Robinson Street

Post Office Box 3000 (32802)

Orlando, Florida 32801

For Petitioner, HTG Madison Park, LTD ( " Madison Park " ):

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 3 - 231

1400 Village Square Boulevard

Tallahassee, Florida 32312

For Respondent , Florida Housing Finance Corporation ( " Florida

Housing " ):

Ch ristopher Dale McGuire, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

The issue in this case is whether Florida Housing ' s proposed action to

deem Madison Landing eligibl e for an award of housing tax credit fund s , as

contemplated under Request for Applications 2020 - 202 Housing Credit

Financing for Affordable Housing Developments Located in Broward, Duval,

Hillsborough, Orange, Palm Beach and Pinellas Counties ( " t he 2020 RF A " ), is

contrary to governing statutes, rules or policies, or the 2020 RFA

specifications . The standard of proof is whether Florida Housing ' s proposed

action is clearly erroneous, contrary to competition, arbitrary, or capricious.

P RELIMINARY S TATEMENT

On August 26, 2020, Florida Housing issued t he 2020 RFA to solicit

applications for housing tax credits . Applications were due by October 20,

2020. There were 35 applications submitted in response to the 2020 RFA,

including those of WRDG T4 Phase Two, L.P. ( " WRDG " ), Madison Landing,

and Madison Park. Eight applications were recommended for funding,

including WRDG. Petitioner Madison Par k , filed its petition challenging the

eligibility of funded applicant, WRDG, and eligible , but unfunded applicant,

Madison La nding. Madison Landing filed a petition challenging the eligibility

of WRDG. Upon motion, Petitioners ' cases were consolidated into the present

case. On January 12, 2021 , the parties filed a Stipulation for Entry of

Findings of Fact, which explained that W RDG agreed to the designation of its

application as ineligible for funding under the 2020 RFA. As a result,

Madison Landing would be selected for funding in place of WRDG by

operation of having the next - highest ranking , unless deemed ineligible . The

only r emaining issue in this case is whether Madison Landing should be

found ineligible for funding, which would result in Madison Park being

selected in place of Madison Landing. No other A pplicants selected for

funding will be impacted by the outcome of this c ase.

The final hearing took place on February 9, 2021. The parties offered joint

exhibits 1 through 8, all of which were admitted into evidence. Petitioners

presented the testimony of Marissa Button, in her capacity as the corporate

representative of Flo rida Housing. Madison Landing ' s E xhibits 1 through 4

were also admitted into evidence. Madison Park presented the testimony of

Matthew Reiger , and offered its exhibits 1 through 8 and 13, all of which

were admitted into evidence.

The one - volume Transcrip t was filed with DOAH on February 2 5 , 2021.

The parties ' proposed recommended orders were timely filed and were duly

considered in the preparation of this Recommended Order . The stipulated

facts that were filed by the parties on January 26 , 2021 , and the J oint

Pre - hearing Stipulation filed February 5, 2021, have been incorporated into

the Findings of Fact . Unless otherwise indicated, references to the Florida

Statutes are to the 20 20 version.

F INDINGS OF F ACT

1. Florida Housing is a public corporation or ganized pursuant to

Chapter 420, Part V, Florida Statutes, whose address is 227 North Bronough

Street, Suite 5000, Tallahassee, Florida 32301, and for the purposes of these

proceedings, an agency of the State of Florida.

2. Madison Landing is an A pplicant requesting an allocation of $1,950,000

in competitive housing credits in in the 2020 RFA. Its application, 2021 - 021C,

was deemed eligible , but was not selected for funding by Florida Housing.

3. Madison Park is an A pplicant requesting an allocation of $2, 881,960 in

competitive housing credits in the 2020 RFA. Its application, 2021 - 004C, was

deemed eligible , but was not selected for funding by Florida Housing.

4. WRDG is an Applicant requesting an allocation of $2,375,000 in

competitive housing credits in t he 2020 RFA. Its application, 2021 - 025C, was

deemed eligible and was preliminarily selected for funding by Florida

Housing.

5. Florida Housing administers various affordable housing programs ,

including the Housing Credit Program , pursuant to Section 42 of the Internal

Revenue Code ( the " IRC " or " the Code " ) and s ection 420.5099 , under which

Florida Housing is designated as the Housing Credit agency for the State of

Florida within the meaning of Section 42(h)(7)(A) of the IRC, and Fl orida

Admin istrative Code Chapters 67 - 48 and 67 - 60.

6 . Florida Housing has established , by rule , a competitive solicitation

process known as the Request for Applications ( " RFA " ) to assess the relative

merits of proposed developments, pursuant to c hapters 67 - 48 and 67 - 60.

7 . An RFA sets forth the information required to be provided by an

Applicant, which includes a general description of the type of projects that

will be considered eligible for funding and delineates the submission

requirements. While there are numerous references to Florida Housing ' s

rules throughout t h e RFA, RFAs themselves are not adopted or incorporated

by rule.

8 . Florida Housing issues many RFAs each year. Although an issued RFA

may be similar to these issued in previous years, each RFA is unique. The

RFA proces s begins when F lorida Housing requests the F lorida Housing

Board of Directors ( " the Board " ) to approve F lorida Housing ' s plan for

allocating its resources through the various RFAs. If the plan is approved by

the Board, Florida Housing begins work ing on eac h individual RFA. F lorida

Housing posts draft documents to its website for public review, such as a

draft of the RFA, and holds a workshop in which the RFA is discussed in

detail, highlighting language that changed from the previous year. The public

is giv en the opportunity to ask questions and submit written comments for

further suggestions and/or additional edits prior to the RFA ' s issuance.

9. Marisa Button, Director of Multifamily Programs for Florida Housing,

credibly and persuasively testified that Q u estions and A nswers are provided

as guidance, but do not provide new requirements to override the terms of an

RFA. In the event of an inconsistency between Q uestions and A nswers and

another form of guidance for applicants, Florida Housing has maintained th e

position that the least restrictive guidance controls.

10 . Rule 67 - 60.00 6 provides , in pertinent part, that " [t]he failure of an

Applicant to supply required information in connection with any competitive

solicitation pursuant to this rule chapter shall be grounds for a determination

of non - responsiveness with respect to its Application. "

1 1 . By applying, each Applicant certifies 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.

1 2 . On August 26, 2020, Florida Housing issued the 2020 RFA , proposi ng

to provide an estimated $18,669,520 of Housing Credit Financing for

Affordable Housing Developments Located in Broward, Duval, Hillsborough,

Orange, Palm Beach, and Pinellas Counties. Modifications to the 2020 RFA

were made on September 11 and October 1 2, 2020. The Application Deadline

for the 2020 RFA was October 20, 2020.

1 3 . On or about October 20, 2020, 35 applications were submitted in

response to the 2020 RFA.

1 4 . A Review Committee was appointed to review the applications and

make recommendations t o the Board. The Review Committee found 34

applications eligible and one application ineligible. Through the ranking and

selection process outlined in the 2020 RFA, eight applications were

recommended for funding. In accordance with the funding selection process

set forth in the 2020 RFA, one application was selected from each of Duval,

Palm Beach, Pinellas, Hillsborough, and Orange c ounties ; two applications

were selected from Broward County ; and one application (WRDG) was

selected from any of these count ies. On December 4, 2020, the Board

approved these recommendations.

1 5 . On December 17, 2020, Madison Landing timely filed a Petition for

Formal Administrative Proceedings, which was referred to D OAH and

assigned Case N o. 21 - 0146BID. This petition challeng ed the eligibility of both

WRDG and MHP FL II, LLC. On January 13, 2021, Madison Landing

dismissed all of its allegations against MHP FL II, LLC.

1 6 . On December 17, 2020, Madison Park timely filed a Petition for

Formal Administrative Proceedings, which wa s referred to DOAH and

assigned Case N o. 21 - 0147BID. An amended petition was filed on January

13, 2021. This petition challenged the eligibility of both WRDG and Madison

Landing.

1 7 . On January 26 , 2021, all parties entered into a Stipulation for Entry of

Findings of Fact in which WRDG conceded that its application should have

been found ineligible.

1 8 . WRDG is ineligible for funding under the 2020 RFA.

1 9 . With WRDG ineligible for funding, Madison Landing would be

selected for funding in place of WRDG. I f both WRDG and Madison Landing

were found to be ineligible for funding, Madison Park would be selected for

funding in place of WRDG and Madison Landing . No other A pplicant selected

for funding will be impacted regardless of the outcome of this case.

20 . N o challenges were made to the terms of the 2020 RFA.

2 1 . Madison Landing ' s application includes a n executed Applicant

Certification and Acknowledgment Form , which provides, " The Applicant, the

Developer and all Principals are in good standing among

all oth er state agencies and have not been prohibited from applying for

funding. " The phrase " good standing among all other state agencies " is not

defined ; and no evidence was presented as to the definitive meaning of the

phrase . No evidence was presented that Ma dison Landing ' s Principals are

not in good standing with a ny state agenc y or have been prohibited from

applying for funding.

2 2 . The 2020 RFA at Section Four A.3.a. provides that Applicants must

disclose the name of the Applicant entity and provide evidenc e that it is

legally formed:

(2) The Applicant must be a legally formed entity

[i.e., limited partnership, limited liability company,

etc.] qualified to do business in the state of Florida

as of the Application Deadline. Include, as

Attachment 2 to Exhibit A, evidence from the

Florida Department of State, Division of

Corporations, that the Applicant satisfies the

foregoing requirements. Such evidence may be in

the form of a certificate of status or other

reasonably reliable information or documentation

issu ed, published or made available by the Florida

Department of State, Division of Corporations.

2 3 . Rule 67 - 48.002(9) (6/23/2020), defines " Applicant " as follows:

(9) " Applicant " means any person or legal entity of

the type and with the management and owne rship

structure described herein that is seeking a loan or

funding from the Corporation by submitting an

Application or responding to a competitive

solicitation pursuant to rule Chapter 67 - 60, F.A.C.,

for one or more of the Corporation ' s programs. For

purp oses of Rules 67 - 48.0105, 67 - 48.0205 and 67 -

48.031, F.A.C., Applicant also includes any assigns

or successors in interest of the Applicant. Unless

otherwise stated in a competitive solicitation, as

used herein, a ' legal entity ' means a legally formed

corp oration, limited partnership or limited liability

company.

2 4 . The 2020 RFA at Section Four A.3.c. provides that Applicants must

disclose Principals of both the Applicant and Developer entities. The 2020

RFA provides in pertinent part:

c. Principals Discl osure for the Applicant and for

each Developer (5 points)

(1) Eligibility Requirements

To meet the submission requirements, upload the

Principals of the Applicant and Developer(s)

Disclosure Form (Form Rev. 05 - 2019) ( " Principals

Disclosure Form " ) as ou tlined in Section Three

above. Prior versions of the Principal Disclosure

Form will not be accepted.

To meet eligibility requirements, the Principals

Disclosure Form must identify, pursuant to

Subsections 67 - 48.002(94), 67 - 48.0075(8) and 67 -

48.0075(9), F .A.C., the Principals of the Applicant

and Developer(s) as of the Application Deadline. A

Principals Disclosure Form should not include, for

any organizational structure, any type of entity

that is not specifically included in the Rule

definition of Princi pals.

For Housing Credits, the investor limited partner

of an Applicant limited partnership or the investor

member of an Applicant limited liability company

must be identified on the Principal Disclosure

Form.

2 5 . Rule 67 - 48.002(94) defines " Principal " as follows:

(94) " Principal " means:

(a) For a corporation, each officer, director,

executive director, and shareholder of the

corporation.

(b) For a limited partnership, each general partner,

and each limited partner of the limited

partnership.

(c) For a limited liability company, each manager

and each member of the limited liability company.

(d) For a trust, each trustee of the trust and all

beneficiaries of majority age (i.e., 18 years of age)

as of the Application Deadline. Page 10 of 22.

(e) F or a Public Housing Authority, each officer,

director, commissioner, and executive director of

the Authority.

2 6 . The requirement to provide evidence that the Applicant is a legally

formed entity, as well as the requirement to provide a Principals for

App licant and Developer(s) Disclosure Form, are identified as " Eligibility

Items. " Section Five A.1. of the 2020 RFA states that " only Applications that

meet all of the following Eligibility Items will be eligible for funding and

considered for funding select ion. "

2 7 . Madison Landing submitted Principals of the Applicant and

Developer(s) Disclosure Form(s) with its a pplication. Both forms were

approved during the Advance Review Process. On the Principals of the

Applicant form, Madison Landing II, LLC , was iden tified as the Applicant

entity. The Principals of the Applicant entity were identified as Patrick E.

Law, Manager; Madison Landing II Apartments, LLC, Non - Investor Member;

and Patrick E. Law, Investor Member.

2 8 . Madison Landing II Apartments, LLC, filed A rticles of Organization

for Florida Limited Liability Company with the Florida Division of

Corporations on January 5, 2021, with an effective date of December 31,

2020.

2 9 . The 2020 RFA requires that the Applicant demonstrate that it is a

legally formed en tity as of the Application Deadline; however, there is no

explicit requirement in the 2020 RFA that each P rincipal of the Applicant

demonstrate that it is a legally formed entity as of the Application Deadline.

30 . M s. Button testified that her initial vie w was that the failure of

Madison Landing ' s P rincipal, Madison Landing II Apartments, LLC , to

incorporate by the application deadline should render the application

ineligible. However, upon further research, she changed her position ,

believing that Florida Housing was precedentially bound by a previous final

order, which found that an application was eligible under similar legal and

factual circumstances.

31 . The previous case , on which Florida Housing relied , was decided

before Florida Housing adopted the current RFA procedures for awarding

funding. Ms. Button testified, however, that while some of the processes

followed during the Universal Cycle, in place at that time, were different

than the RFA process, the requirements for disclosure of P rincipals w ere

essentially the same.

32 . Florida Housing allows interested parties to submit written questions

to be answered by Florida Housing staff for each RFA that is issued. Th e

Question - Answer period is referenced specifically within each RFA.

33 . The following Q uestion and Answer are posted on Florida Housing ' s

website for RFA 2018 - 111:

Question 12:

Do the entities listed on the Principal Disclosure

Form have to be active as of the stamped

" Approved " date or as of the Application Deadline?

Answer :

As of the Application Deadline. The Applicant may

upload a Principals Disclosure Form stamped

" Approved " during the Advance Review Process

provided (a) it is still correct as of the Application

Deadline, (b) it was approved for the type of

funding being requested (i .e., Housing Credits or

Non - Housing Credits)

3 4 . Th e same Question and Answer above are on Florida Housing ' s

website for RFA 2018 - 110 ; RFA 2018 - 112 ; and RFA 2018 - 113. The same

Question and Answer , however, do not appear in Questions and Answers for

the 20 20 RFA at issue in this case .

3 5 . Although Questions and Answers from past RFAs remain on the

Florida Housing website, they are discrete to the specific RFA for which they

were issued.

3 6 . Rule 67 - 48.002(9) (7/2018) defines Applicant as follows:

(9) " Appl icant " means any person or legal entity of

the type and with the management and ownership

structure described herein that is seeking a loan or

funding from the Corporation by submitting an

Application or responding to a competitive

solicitation pursuant to rule chapter 67 - 60, F.A.C.,

for one or more of the Corporations programs. For

purposes of rules 67 - 48.0105. 67 - 48.0205 and 67 -

48.031, F.A.C., Applicant also includes any assigns

or successors in interest of the Applicant. Unless

otherwise stated in a com petitive solicitation, as

used herein, a legal entity means a legally formed

corporation, limited partnership or limited liability

company with a management and ownership

structure that consists exclusively of all natural

persons by the third principal dis closure level. For

Applicants seeking Housing Credits, the Housing

Credits Syndicator/Housing Credit investor need

only be disclosed at the first principal level and no

other disclosure is required. The terms " first

principal disclosure level " and " third p rincipal

disclosure level " have the meanings attributed to

them in the definition of " Principal. "

3 7 . Rule 67 - 48.002(9) (11/2011) defines Applicant as follows:

(9) " Applicant " means any person or legally formed

entity that is seeking a loan or funding fr om the

Corporation by submitting an Application or

responding to a request for proposal for one or more

of the Corporation ' s programs. For purposes of

Rules 67 - 48.0105, 67 - 48.0205 and 67 - 48031, F.A.C.,

Applicants also includes any assigns or successors

in interest of the Applicant .

3 8 . Madison Park argues that Madison Landing ' s P rincipal, Madison

Landing II Apartments, LLC, did not demonstrate that it was a legally -

formed entity as of the Application D eadline , and therefore, Madison

Landing ' s Principal Dis closure Form did not satisfy the 2020 RFA ' s

requirements . Madison Park argues that Madison Landing ' s application

should be deemed ineligible for funding as a result .

39 . Based on the weight of the credible evidence and the language of the

2020 RFA and the governing law , the undersigned finds that Florida Housing

did not contravene the 2020 RFA, or any other applicable authority, through

the process by which it determined that Madison Landing ' s application was

eligible for the award .

C ONCLUSIONS OF L AW

40 . DOAH has jurisdiction over the parties and subject matter of this case .

§§ 120.569 and 120.57(1) and (3), Fla. Stat.

41 . Pursuant to section 120.57(3)(f), the burden of proof rests with

Petitioner , Madison Park, as the part y opposing the proposed agency a ction.

See State Contracting & Eng ' g Corp. v. Dep ' t of Transp ., 709 So. 2d 607, 609

(Fla. 1st DCA 1998). Madison Park must sustain its burden of proof by a

preponderance of the evidence. See Fla. Dep ' t of Transp. v. J.W.C. Co., 396

So. 2d 778, 787 (Fla. 1s t DCA 1981).

42 . In this bid protest, the following standards apply:

[T]he administrative law judge shall conduct a de

novo proceeding to determine whether the agency ' s

proposed action is contrary to the agency ' s

governing statutes, the agency ' s rules or p olicies, or

all solicitation specifications. The standard of proof

for such proceedings shall be whether the proposed

agency action was clearly erroneous, contrary to

competition, arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

4 3 . " In this context, the phrase ' de novo hearing ' is used to describe 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 proceeding is to

evaluate the action taken by the agency. " State Cont racting & Eng ' g Corp .,

709 So. 2d at 609. The judge neither " sits as a substitute " for the agency nor

" makes a determination whether to award the bid de novo . " Intercontinental

Props., Inc. v. State Dep ' t of HRS 606 So. 2d 380, 386 (Fla. 3d DCA 1992).

4 4 . Madison Park challenges Florida Housing ' s intent to find Madison

Landing ' s application eligible for an award of housing credit fund s . Thus,

Madison Park has the burden to prove , by a preponderance , of the evidence

that the determination was clearly erroneo us, contrary to competition,

arbitrary, or capricious. AT&T Corp. v. State, Dep ' t of Mgmt. Servs. , 201 So.

3d 852, 854 (Fla. 1st DCA 2016); § 120.57(3)(f), Fla. Stat.

4 5. An agency ' s award is " clearly erroneous " if it " conflicts with the plain

and ordinary intent of the law. " Colbert v. Dep ' t of Health , 890 So. 2d 1165,

1166 (Fla. 1st DCA 2004). However, if the award " falls within the permissible

range of interpretations, " it cannot be deemed clearly erroneous. Id .

4 6 . The " contrary to competition " standard is not defined by statute or

rule, but generally means an award that contravenes the following purposes

of competitive procurement:

[T]o 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 for the [public] at the lowest possible

expense; and to afford an equal advantage to all

desiring to do business with the [government], by

affording an opportunity for an exact comparison of

bids.

Wester v. Belote , 138 So. 721, 723 - 24 (Fla. 1931); See also AT&T Corp., 201

So. 3d at 855 ( " Public procurement is intended to pro tect the public by

promoting ' fair and open competition, ' thereby reducing the appearance and

opportunity for favoritism and misconduct. " ).

4 7 . " 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. Liberty Behav. Health Corp . , 927 So. 2d 34, 38 - 39 (Fla. 1st

DCA 2006) (internal quotations omitted). Generally, the inquiry focuses on

" whether the agency: (1) has considered all relevant factors; (2) ha s given

actual, good faith consideration to those factors; and (3) has used reason

rather than whim to progress from consideration of these factors to its final

decision. " Adam Smith Enters., Inc. v. State Dep ' t of Envtl. Reg . , 553 So. 2d

1260, 1273 (Fla. 1st DCA 1989). In a bid protest, deciding whether a decision

is arbitrary is " generally controlled by a determination of whether the

[agency] complied with its own proposal criteria. " Emerald Corr. Mgmt. v.

Bay Cty. Bd. of Cty. Comm ' rs , 955 So. 2d 647, 653 (Fla. 1st DCA 2007). Thus,

an agency ' s decision that " is justifiable under any analysis that a reasonable

person would use to reach a decision of similar importance ... is neither

arbitrary nor capricious. " Dravo Basic Materials Co. v. Dep ' t of Transp ., 6 02

So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

4 8 . It is well - established that an agency " has wide discretion in soliciting

and accepting bids for public improvements and its decision, when based on

an honest exercise of this discretion, will not be overturned by a court even if

it may appear erroneous and even if reasonable persons may disagree . " Dep ' t

of Transp. v. Groves - Watkins Constructors , 530 So. 2d 912, 913 (Fla. 1988)

(quoting Liberty Cty. v. Baxter ' s Asphalt & Concrete, Inc. , 421 So. 2d 505, 507

(Fla. 1982)). The administrative law judge should not " second guess the

members of [the] evaluation committee to determine whether he and/or other

reasonable and well - informed persons might have reached a contrary result. "

Scientific Games, Inc. v. Dittler Bros ., 586 So. 2d 1128, 1131 (Fla. 1st DCA

1991). Indeed, if an agency " makes an erroneous decision about which

reasonable people may disagree, " its decision should not be overturned

" absent a showing of dishonesty, illegality, fraud, oppression or misconduct. "

Sutron Corp. v. Lake Cty. Water Auth ., 870 So. 2d 930, 932 (Fla. 2d DCA

2004).

4 9 . Florida Housing ' s intent to find Madison Landing ' s application eligible

for funding was not clearly erroneous , contrary to competition, arbitrary, or

capricious . Marisa Bu tton testified that , in determining Madison Landing ' s

eligibility for funding, Florida Housing relied heavily on the precedent of a

similar case, Heritage Village Commons, Ltd v. Florida Housing Finance

Corporation , FHFC Case No. 2012 - 013 - UC ( Fla. FHFC RO May 23, 2012; FO

June 8, 2012). Heritage Village was decided by a duly designated Hearing

Officer pursuant to s ection 120.57(2). In Heritage Village , the issue was

whether the A pplicant had failed to meet threshold requirements because the

identified Devel oper entity had not been a legally formed entity as of the

application deadline. The h earing o fficer concluded that because neither the

Universal Application package nor the rules in place at the time required the

Developer to be a legally formed entity, F lorida Housing could not penalize

the applicant " for failure to comply with a nonexistent rule. " Heritage Village

RO at 7.

50. Florida Housing is statutorily required to follow its own stated policy

or prior practice, pursuant to section 120.68(7)( e )3. An agency ' s failure to

follow its own precedent which contains similar facts is " contrary to

established administrative principles and sound public policy. " Villa Capri

Assoc. v. Fla. Hous. Fin. Corp ., 23 So. 3d 795, 798 (Fla. 1 st DCA 2009)

(quoting Brookwood - Walton Cty . Convalescent Ctr. v. Ag . for Health Care

Admin . , 845 So. 2d 223, 229 (Fla. 1st DCA 2009)). Marisa Button credibly

and persuasively testified that Florida Housing came to the determination

that Madison Landing was eligible for funding under the reasonable belief

that such a result was compelled by the precedent of Heritage Village .

5 1 . Madison Park argues that Heritage Village is distinguishable from the

present case because the Universal Cycle process in place at the time was

different than th e present RFA process , but does not identify any procedural

differences that render Heritage Village inapplicable . Madison Park also

interprets the requirement in the 2020 RFA that Applicants certify that all

Principals are " in good standing among all othe r state agencies " a s being

tantamount to a n explicit requirement of incorporation. Finally, Madison

Park points to changes in the definition of " Applicant " in Rule 67 - 48.002,

subsequent to Heritage Village , as a basis for discarding its holding in

applicat ion to the 2020 RFA . In the present case, as in Heritage Village ,

deeming Madison Landing ineligible or funding for the reasons advanced by

Madison Park would require the enforcement of a nonexistent rule.

5 2 . Madison Park ' s arguments are simply to o atten uated to meet the

burden in this c ase. Consistent with r ule 67 - 48.002(9) , t he 2020 RFA

specifically requires that an Applicant be a legally formed entity qualified to

do business in the State of Florida as of the Application Deadline. There is no

similar r equirement in the 2020 RFA, or anywhere else , with respect to

P rincipals of the Applicant. To conflate the phrase " in good standing among

all other state agencies " with " legally formed entity " would negate the

drafters ' decision to use different phrases in different parts of the RFA. Use of

the words " in good standing with all other state agencies, " with respect to

P rincipals, signals that the language means something different .

5 3 . Florida Housing ' s reliance on Heritage Village remains valid despite

chan ges in the process and governing law, which do not disturb the central

holding.

5 4 . Madison Park asserts that a Questions and Answers document issued

by Florida Housing in 2018 , in relation to RFAs that were issued in 2018 , has

the effect of changing the terms of the 2020 RFA. The Questions and Answers

document s from 2018 do not have the force of changing the RFA . The

Questions and Answers document for the 2020 RFA does not require

P rincipals of the Applicant to be legally formed. Marisa Button testified

c redibly and persuasively that the Questions and Answers do not have the

effect of changing the terms of the RFA.

5 5 . Finally, not every deviation from the RFA is material. A deviation is

only material if it gives the bidder a substantial advantage over th e other

bidders and thereby restricts or stifles competition. Tropabest Foods, Inc. v.

Fla. Dep ' t. of Gen. Servs . , 493 So. 2d 50, 52 (Fla. 1st DCA 1986). Madison

Park did not prov e that the purported deviation, i.e., not legally forming the

Principal, Madi son Landing II Apartments, LLC, was a substantial

competitive advantage over other bidders.

5 6 . Florida Housing ' s finding that Madison Landing II Apartments, LLC,

was not required to be legally formed by the Application Deadline cannot be

invalidated , beca use upon review of the evidence , there is no definite and

firm conviction that a mistake has been committed. Florida Housing ' s

conclusion falls within the permissible range of interpretations ,

and , therefore , cannot be deemed clearly erroneous. The unders igned cannot

find that Florida Housing ' s intended award is contrary to competition

because there is no evidence in the record that Florida Housing stifled fair

and open competition . Florida Housing ' s action was not arbitrary and

capricious because the evid ence does not lead to the conclusion that its

determination was un supported by logic or fact, or adopted without thought

or reason .

5 7 . It is clear that Florida Housing ' s intended action to find Madison

Landing ' s application eligible for funding was ground ed in an honest and

reasonable exercise of discretion .

5 8 . Overall, Madison Park failed to demonstrate that Florida Housing ' s

proposed action finding Madison Landing ' s application eligible is contrary to

governing statutes, rules, the 2020 RFA specificati ons, or clearly erroneous,

contrary to competition, arbitrary, or capricious. In conclusion, Madison

Landing ' s application is eligible for funding .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Flori da Housing Finance Corporation enter a final order:

(1) finding the application of WRDG ineligible for funding; (2) finding the

application of Madison Landing eligible for funding; and (3) dismissing the

protest of Madison Park.

D ONE A ND E NTERED this 2 9 th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 2 9 th day of March , 2021 .

C OPIES F URNISHED :

Hugh R. Brown, General Counsel J. Timothy Schulte, Esquire

Florida Housing Finance Corporation Zimmerman, Kiser & Sutcliffe, P.A.

227 North Bronough Street , Suite 5000 315 East Robinson Street

Tallahassee, Florida 32301 - 1329 Post Office Box 3000 (32802)

Orlando, Florida 32801

Christopher Dale Mc Guire, Esquire

Florida Housing Finance Corporation Corporation Clerk

227 North Bronough Street , Suite 5000 Florida Housing Finance Corporation

Tallahassee, Florida 32301 - 1329 227 North Bronough Street , Suite 5000

Tallahassee, Flor ida 32301 - 1329

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

1400 Village Square Boulevard , Suite 3 - 231

Tallahassee, Florida 32 312

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 issu e the Final Order in this

case.