STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COALITION FOR THE ) HOMELESS, INC.; ALICE LAGUERRE, ) JOSEPHINE GONZALES; AND THE ) CENTER FOR AFFORDABLE HOUSING, ) INC., )

)

Petitioners, )

)

vs. )

)

FLORIDA HOUSING FINANCE )

CORPORATION, )

)

Respondent. )

Case No. 05-0163RP

)

SUMMARY FINAL ORDER

1. This is a rule challenge proceeding in which the Petitioners, pursuant to Section 120.56(2), Florida Statutes, assert challenges to proposed rules the Respondent seeks to adopt. At an earlier stage in this proceeding the Respondent filed a motion to dismiss the original rule challenge petition on several grounds. Following an opportunity for a written reply and for oral argument on the issues raised by the motion to dismiss, an order was issued granting the motion to dismiss. (See Order Granting Motion to Dismiss with Leave to Amend and Canceling Hearing issued on March 10, 2005.) That order granted leave to the Petitioners to file an amended petition by no later than March 21, 2005, which deadline was subsequently extended to March 23, 2005.

   
   

2. On March 23, 2005, the Petitioners timely filed an amended rule challenge petition titled Petition to Determine Invalidity of Florida Housing Finance Corporation Proposed Rule Sections 67.48.002, 67-48.004, and 67-21.003. On April 5, 2005, the Respondent filed a Motion to Dismiss Amended Petition, and on April 12, 2005, the Petitioners filed a timely response titled Petitioners' Response in Opposition to Respondent's Motion to Dismiss Amended Petition. The amended petition, the motion to dismiss, and the response to the motion have all been carefully considered during the preparation of this Final Order.

   
   

3. The pending motion to dismiss, like the earlier motion addressed to the original petition, argues, among other things, that the allegations of the petition lack the specificity and particularity required by relevant statutes, that the Petitioners lack standing to challenge the proposed rules, and that the Division of Administrative Hearings lacks jurisdiction to address some of the allegations of the petition.

   
   

4. The Petitioners' response opposes the motion on several grounds. The primary arguments in the response are to the effect that the allegations of the amended petition are as specific and particular as is possible under the circumstances, that all of the Petitioners have standing, and that the Division of Administrative Hearings has jurisdiction over all matters alleged in the amended petition.

   
   

5. Attention is directed first to the portion of the pending motion that asserts that the subject rule challenge petition must be dismissed because it fails to comply with the language of Section 120.56(1)(b), Florida Statutes, which requires that all rule challenge petitions ". . . must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity. . . ." Because this is a case challenging proposed rules, the petition must also comply with the following requirements of Section 120.56(2)(a), Florida Statutes: "The petition shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority."

   
   

6. The first thing that must be kept in mind regarding the assertions of the amended petition is that, like the original petition which was dismissed, the amended petition does not purport to be a challenge to any existing rule in Florida Administrative Code Rule Chapter 67-21 or 67-48. The text of the petition makes many references to the existing rules in those chapters, but it does not purport to challenge the validity of any specific existing rule. The text of the petition does assert that, taken as a whole, the existing rules in Rule Chapters 67-21 and 67-48 are invalid because those rules do not include language creating priorities or preferences for the funding of housing for people in the socio-economic status of the individual petitioners and of the people represented by the association petitioners. These assertions of invalidity of the existing rules cannot be litigated in this case because the petition in this case does not purport to be a challenge to

   existing rules. It is clear from the allegations in the amended petition that any impact on the substantial interests of the Petitioners arises from alleged deficiencies in the existing rules.

   
   

7. Although the petition in this case purports to be a challenge to proposed rules, the petition does not identify any specific proposed modification of the subject rule chapters that in any way creates, worsens, or adds to the alleged short- comings of the existing rules. Stated otherwise, there is nothing in the petition that purports to show that any of the proposed rule amendments are the source of or the cause of the alleged deficiencies in Rule Chapters 67-21 and 67-48.

   
   

8. For the reasons mentioned in paragraphs 6 and 7, above, it must be concluded that the amended petition, like the original petition, fails to comply with the statutory "particularity" requirements quoted in paragraph 5, above. For that reason, the amended petition must be dismissed.

   
   

9. Because the amended petition must be dismissed for failure to comply with the particularity requirements, it is not necessary to comment at length on the standing issues raised in the pending motion to dismiss. Suffice it to note that, in the absence of any allegation identifying any invalidity in any of the proposed rules, it cannot be concluded that any of the Petitioners would be substantially affected by any of the proposed rules. Stated otherwise, identification of an alleged invalidity of a particular proposed rule is a prerequisite to a conclusion that a person would be injured by a proposed rule. Absent identification of such an alleged invalidity, it cannot be determined whether a person would be substantially affected by it. There being no such identification in the amended petition, the amended petition must be dismissed for this additional reason.

   
   

10. In view of all of the foregoing, it is not necessary to dwell at length on the portions of the amended petition which assert that the existing and/or proposed rules in Rule Chapters 67-21 and 67-48 violate state and federal fair housing acts. There does not appear to be any language in either the existing or the proposed language of the subject rule chapters that is in facial violation of state or federal fair housing acts. Assuming, without deciding, that it might be possible for the subject rules to be implemented in a manner that was inconsistent with state or federal fair housing acts, such an implementation would be addressed by filing an appropriate

    complaint with the appropriate state or federal agency, not by a rule challenge.

    
    

11. Upon careful consideration of the amended petition and of all of the matters discussed above, the undersigned is of the view that it conclusively appears from the face of the amended petition that the defects in the amended petition cannot be cured. Accordingly, consistent with Florida Administrative Code Rule 28-106.201(4), the amended petition will be dismissed without leave for further amendment.

    
    

12. For purposes of ruling on the motion to dismiss, all facts alleged in the amended petition have been taken as true. In view of the legal insufficiencies of the amended petition, there are no genuine issues as to any material fact. Accordingly, it is appropriate to dispose of this case by means of a summary final order without an evidentiary hearing, as authorized by Section 120.57(1)(h), Florida Statutes.

FINAL ORDER

For the reasons set forth above, the amended petition is dismissed, all relief requested in the amended petition is denied, and the file of the Division of Administrative Hearings in this matter is hereby closed.

DONE AND ORDERED this 22nd day of April, 2005,in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2005.

COPIES FURNISHED:

Janet R. Riley, Esquire

Legal Aid Service of Broward County, Inc.

491 State Road 7 Plantation, Florida 33317

Wellington H. Meffert, II, General Counsel Florida Housing Finance Corporation

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

Orlando J. Cabrera, Executive Director Florida Housing Finance Corporation

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

Scott Boyd

Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Bureau of Administrative Code Department of State

R. A. Gray Building, Suite 101 Tallahassee, Florida 32399

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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 05-000163RP

Orders for Case No: 05-000163RP