STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHLEEN POINTE PARTNERS, LLLP, )

)

Petitioner, )

)

vs. )

)

FLORIDA HOUSING )

FINANCE CORPORATION, )

)

Respondent, )

)

and )

)

SILURIAN POND, LTD., )

)

Intervenor. )

Case No. 06-4758

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on the Joint Motion to Dismiss Kathleen Pointe Partners, LLLP, (Kathleen Pointe) for Lack of Standing filed by Respondent, Florida Housing Finance Corporation (Florida Housing) and Intervenor, Silurian Pond, Ltd., (Silurian Pond).

Petitioner Kathleen Pointe filed a Response in Opposition to Respondent and Intervenor's Motion to Dismiss. A hearing was held on the Joint Motion to Dismiss on February 5, 2007, at the Division of Administrative Hearings (DOAH) in Tallahassee, Florida. Petitioner Kathleen Pointe was granted permission to file a Memorandum in Response to Supplemental Cases which was filed on February 7, 2007. A Transcript of the February 5, 2007, Motion hearing was filed on February 12, 2007.

This case began when Petitioners Blue Angel Cove Partners, LLLP, (Blue Angel Cove) and Kathleen Pointe filed a Petition for Formal Administrative Proceedings with Florida Housing. The case was transmitted to DOAH on November 21, 2006.

On November 30, 2006, Silurian Pond filed a Petition for Leave to Intervene. The Petition to Intervene was granted. In its Petition, Silurian Pond asserted that one of the Petitioners, Kathleen Pointe, did not have standing in this case.

On January 24, 2007, the Joint Motion to Dismiss (Motion) was filed by Respondent and Intervenor. Attached to the Motion is an affidavit and a partial rough draft of a deposition of Vicki Robinson, Deputy Development Officer for Multifamily Programs for Respondent.

Subsequent to the filing of the Motion, Petitioner Blue Angel Cove filed a Notice of Voluntary Dismissal, leaving Kathleen Pointe as the only remaining Petitioner.1/

The Petition filed on behalf of both Petitioners alleges in pertinent part:

6. As explained more fully in this Petition, Blue Angel Cove's and Kathleen Pointe's substantial interests are affected by FHFC's final scoring of the application of Silurian Pond in the 2006 RRLP cycle. . . including the calculation and award of "tie-breaker" points for proximity to services needed by tenants of the proposed Silurian Pond development. According to the "final ranking scores" for the RRLP cycle released by FHFC on or about October 20, 2006, Siluruan Pond has been selected for funding based on its score, tie-breaker proximity score, and assigned lottery number in the 2006 RRLP cycle . . . If Silurian Pond is not assigned all of the tie-breaker points it claims, then Blue Angel Cove would be selected for funding based on its score, tine-breaker proximity points, county, and lottery number. If Silurian Pond does not receive the tie- breaker points it claims is selected for funding, and if any other applicant currently identified as being tentatively selected for funding does

not receive funding, then Kathleen Pointe would be selected for funding based on its score, tie-breaker proximity points, county, and lottery number.

* * *

15. If Silurian Pond did not receive

7.5 tie-breaker proximity points, but instead only receive 6.25 tie-breaker points, then Blue Angel Cove would be selected for funding. . . . If Silurian Pond received only 6.25 tie-breaker proximity points, and if any other tentatively funded applicant does not maintain its current ranking when final rankings are approved, then Kathleen Pointe would be selected for funding.

. . . [Emphasis supplied.]

Respondent and Intervenor argue in their Motion that Kathleen Pointe does not have standing because it did not demonstrate that its substantial interests will be affected by the proposed agency action to award RRLP funds to Intervenor. Citing Agrico Chemical Co., v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981), Respondent and Intervenor argue that Petitioner Kathleen Pointe did not meet the Agrico two-prong test in that it did not demonstrate that (1) the proposed action will result in injury-in-fact of sufficient immediacy to justify a section 120.57(1) proceeding, and (2) the injury must be of a type or nature the proceeding is designed to protect. Motion at paragraph 8. Respondent and Intervenor point out that in order for Kathleen Pointe to be eligible for funding from Florida Housing, not only would Intervenor have to be found ineligible for funds, but another applicant currently in the funding range would also have to drop out of that range. Thus, Respondent and Intervenor argue that any injury to Kathleen Pointe is purely conjecture.

In their Motion, Respondent and Intervenor anticipated that Petitioner Blue Angel Cove might withdraw from the case, and argued that to satisfy the Agrico test, Petitioner Kathleen Pointe must have alleged sufficient facts in its Petition to demonstrate immediate injury and

that standing is determined at the time the Petition is filed and cannot be gained through subsequent acts (numerous citations omitted). Further, Respondent and Intervenor argue that the withdrawal of Petitioner Blue Angel Cove cannot confer standing on Petitioner Kathleen Pointe.

Kathleen Pointe concedes in its Response in opposition to the Motion that an applicant's standing must be determined as of the time a petition is filed, but argues that it did have standing at the time the petition was filed.

Having reviewed the Motion and the cases cited therein, the Response and the cases cited therein, the arguments of counsel and the transcript of the Motion hearing, the undersigned is persuaded that Petitioner Kathleen Pointe did not have standing to bring this proceeding at the time the Petition was filed. Since the only other Petitioner, Blue Angel Cove, has withdrawn, this proceeding must be dismissed.2/

Finally, Petitioner Kathleen Pointe argues that it should be granted leave to amend its Petition. However, the facts underlying this proceeding have been adequately pled. The undersigned finds that allowing amendment as contemplated by Kathleen Pointe would not allow Petitioner to state a cause of action. See Undereducated Foster Children of Florida v. Florida Senate et al., 700 So. 2d 66 (Fla. 1st DCA 1997).

Accordingly, it is RECOMMENDED:

That Florida Housing Finance Corporation enter a Final Order of Dismissal herein.

DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 20th day of February, 2007.

ENDNOTES

1/ Consequently, the style of this case now only reflects the remaining Petitioner, Kathleen Pointe.

2/ In light of this disposition, the hearing scheduled for March 1 and 2, 2007, is canceled.

COPIES FURNISHED:

M. Christopher Bryant, Esquire Oertel, Fernandez,

Cole & Bryant, P.A.

301 South Bronough Street, Fifth Floor Post Office Box 1110

Tallahassee, Florida 32302-1110

Hugh R. Brown, Esquire

Florida Housing Finance Corporation

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

Donna E. Blanton, Esquire Radey, Thomas, Yon & Clark, P.A.

301 South Bronough Street, Suite 200 Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 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.

Docket for Case No: 06-004758

Orders for Case No: 06-004758