STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE WESTON APARTMENTS (ORLANDO), ) LIMITED PARTNERSHIP, )

)

Petitioner, )

)

vs. ) Case No. 98-0774

)

FLORIDA HOUSING FINANCE )

CORPORATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on for telephonic hearing on March 12, 1998, on Petitioner's Motion for Summary Final Order, filed March 3, 1998; on Florida Housing's Response to Motion for Summary Final Order, filed March 11, 1998, and on Lake Weston's Reply to FHFC's Response to Lake Weston's Motion for Summary Final Order, filed March 12, 1998. The facts which form the basis for Petitioner's Motion are not in dispute and are as follows.

In December 1996 Respondent adopted an application package for projects being proposed for low-income housing tax credits funding. The application package discloses the evaluation criteria, as well as the scoring matrix for each criterion. One of the criteria, included as Form 5 of the application, measured the existence of "local government contributions" to a proposed

project. A total of 40 points were available for local government contributions.

On February 4, 1997, Lake Weston submitted its completed application. It included in Form 5 local government contributions from Orange County and the City of Winter Park in the form of waivers of various impact fees. These waivers were evidenced by the "Local Government Verification of Contribution" forms required by Respondent.

Respondent scored the submitted applications, including Lake Weston's. Respondent awarded Lake Weston the full 40 points available on Form 5 for local government contributions.

On April 11, 1997, preliminary scores were announced to all applicants, with notice of the opportunity to challenge Respondent's scoring of any application. In response, several competing applicants asked Respondent to reduce Lake Weston's score on Form 5 of the application, alleging that the claimed impact fee waivers were not valid local government contributions. Respondent examined these challenges to Lake Weston's Form 5.

Subsequent thereto, Respondent issued its Final Order in June 1997 establishing Lake Weston's final score. Lake Weston's final score as determined by Respondent's Final Order included the full 40 points awarded to Lake Weston for local government contributions. Lake Weston's score relative to all other

applicants made it eligible to receive all of its requested tax credits. Lake Weston's application was then submitted to credit underwriting.

Issues regarding Lake Weston's application caused Lake Weston and Respondent to become involved in litigation in the circuit court, in the district court of appeal, and before the Division of Administrative Hearings. In order to bring resolution to the various proceedings, Lake Weston and Respondent entered into an Agreement dated December 29, 1997, which caused

the litigation in the circuit court and in the appellate court to be resolved. Paragraph 5 of that Agreement provides, in part, as follows:

By this document, [Respondent] gives Lake Weston written notice of the following: it is [Respondent's] position that, based upon the credit underwriter's review of Lake Weston's . . . application in July, 1997, the local government contributions have not been made or will not be made to the Lake Weston project, as represented in Form 5 of Lake Weston's application--as such, [Respondent] maintains that Lake Weston is not entitled to its requested tax credits. By this document, [Respondent] also gives written notice to Lake Weston that Lake Weston is entitled to legally challenge [Respondent's] above-stated position. By this document, Lake Weston advises that it disputes [Respondent's] position, and seeks to legally challenge same.

The December 29, 1997, Agreement further provided that the undersigned would place the proceedings pending before the Division of Administrative Hearings in abeyance and arbitrate

Lake Weston's challenge to Respondent's position. The Agreement included the following provisions on pages 8-9:

1. For whatever reason, if Judge Rigot decides that [Respondent's] above-stated position in Paragraph 5 does not prevail, then [Respondent] shall immediately issue Lake Weston an allocation of 1998 . . . tax credits without

   reapplication. . . .

   
   

2. For whatever reason, if Judge Rigot decides that [Respondent's] above-stated position in Paragraph 5 does prevail, then the Lake Weston application shall be deemed denied.

By a subsequent Agreement dated February 9, 1998, the parties agreed to utilize the summary hearing procedure pursuant to Section 120.574, Florida Statutes, rather than arbitration and to consolidate this cause with the cases already pending before the Division of Administrative Hearings and then dismiss those cases. The February 9 Agreement also contained the provisions of Paragraph 5 of the December Agreement and the same disposition of Lake Weston's application for tax credits should Lake Weston prevail or should Respondent prevail.

Lake Weston's Motion for Summary Final Order argues that Respondent seeks in this action to re-score Lake Weston's Form 5, which is a collateral attack on Respondent's own Final Order establishing Lake Weston's final score, an action which would violate the doctrines of res judicata, collateral estoppel, and administrative finality.

It is well settled that the doctrines of res judicata and

collateral estoppel are applicable to administrative proceedings. See, for example, Hays v. State, Dep't of Business Regulation, 418 So. 2d 331 (Fla. 3rd Dist. 1982); Rubin v.

Sanford, 168 So. 2d 774 (Fla. 3rd Dist. 1964). Under the

doctrine of res judicata, a final order is conclusive as to all matters which were or which could have been determined. Neale v. Balcerak, 627 So. 2d 1310 (Fla. 1st Dist. 1993).

All of the elements of res judicata are present in this case: identity of parties, identity of cause of action, identity of the relief at issue, and identity of the quality in the person for or against whom the claim is made. See, Hinchee

v. Fisher, 93 So. 2d 351 (Fla. 1957). In this proceeding and in the proceeding which resulted in the June 1997 Final Order, the parties are Lake Weston and Respondent. In both, the claim involves the number of points to be assigned to Lake Weston's application, and the validity of Lake Weston's local government contributions was a question considered by Respondent before entry of the Final Order. In both, the relief is the same: Lake Weston was given full credit for its Form 5 and the attendant local government contributions. In the first action, the Final Order impliedly acknowledged the validity of the impact fee waivers in establishing Lake Weston's final score-- the very result Respondent seeks to overturn in this second

proceeding. The doctrine of collateral estoppel also applies in this case to preclude Respondent from litigating the validity of Lake Weston's impact fee waivers as local government contributions. Collateral estoppel bars the re-litigation of issues actually adjudicated in prior litigation between the same parties. Brown v. Dep't of Profession Regulation, 602 So. 2d 1337 (Fla. 1st. Dist. 1992). Although Respondent argues that the validity of the impact fee waivers was not actually adjudicated, Respondent's argument is without merit. Other applicants had challenged the award of points to Lake Weston for the fee waivers; yet, Respondent held that Lake Weston was entitled to the full number of points available for that item when it determined Lake Weston's final score. Respondent has not suggested that it reserved in its Final Order that issue for subsequent litigation.

Respondent further argues that since Lake Weston agreed to litigate the validity of the fee waivers in both the December 1997 and February 1998 Agreements, then Respondent is entitled to an evidentiary hearing on that issue or the Agreements are being ignored. Respondent's argument is without merit for two reasons: (1) Res judicata and collateral estoppel, if raised as a defense, are an absolute bar to the second proceeding; and

1. Chapter 120, Florida Statutes, affords the right to an administrative proceeding to any person when an agency takes

   action which substantially affects that person. It is the non- agency person's right to a hearing, not the agency's. By its Motion for Summary Final Order, Lake Weston asserts a defense to the agency's position, which is dispositive of this cause without the need for an evidentiary hearing on the merits. In other words, Lake Weston is entitled to the relief it seeks as a matter of law.

   It is, therefore, ORDERED THAT:

   1. The final hearing in this cause scheduled for March 16- 18, 1998, be and the same is hereby cancelled.

   2. Respondent's position in this cause--as set forth in paragraph 5 of the December 29, 1997, Agreement--does not prevail.

   3. Respondent shall immediately issue Lake Weston an allocation of 1998 low-income housing tax credits without the need for Lake Weston to re-apply.

DONE AND ORDERED this 27th day of March, 1998, in Tallahassee, Leon County, Florida.

Hearings

_

LINDA M. RIGOT

Administrative Law Judge Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

COPIES FURNISHED:

James C. Hauser, Esquire Warren H. Husband, Esquire

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1998.

Skelding, Labasky, Corry, Eastman, Hauser, Jolly & Metz, P.A.

Post Office Box 669 Tallahassee, Florida 32302

Christopher L. Griffin, Esquire David L. Lapides, Esquire Lisabeth Kirk Rogers, Esquire

Annis, Mitchell, Cockey, Edwards & Roehn, P.A.

Post Office Box 3433 Tampa, Florida 33601

Stephen M. Donelan, Esquire Florida Housing Finance Agency

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Admini-strative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 98-000774

Orders for Case No: 98-000774