STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MADISON OAKS, LLC ; AND AMERICAN RESIDENTIAL COMMUNITIES, LLC, Petitioners, vs. Case No. 18 2966BID FLORIDA HOUSING FINANCE CORPORATION, Respondent, and ARBORS AT HESTER LAKE, LLC; COLONNADE PARK, LTD; HTG CREEKSIDE, LLC; HTG SUNSET, LLC; HARPERÓS POINTE, LP; AND BLUE SUNBELT, LLC, Intervenors. _______________________________/ STERLING TERRACE, LTD ; AND STERLING TERRACE DEVELOPER, LLC, Petitioners, vs. Case No. 18 2967BID FLORIDA HOUSING FINANCE CORPORATION, Respondent, and ARBORS AT HESTER LAKE, LLC; COLONNADE PARK, LTD; HARPERÓS POINTE, LP; HTG CREEKSIDE, LLC; HTG SUNSET, LLC; BLUE SUNBELT, LLC; AND CLERMONT RIDGE, LTD, Intervenors . _______________________________/ RECOMMENDED ORDER A duly noticed final hearing was conducted in this case on July 11, 2018, in Tallahassee, Florida, by Administrative Law Judge Suzanne Van Wyk. APPEARANCES For Petitioners: Doug las Manson, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, F lorida 33602 Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 Michael G eorge M aida, Esquire Michael G. Maida P.A. 1709 Hermitage B oulevard , Suite 201 Tallahassee, Florida 32308. For Respondent Florida Housing Finance Corporation: Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bro nough Street , Suite 5000 Tallahassee, Florida 32301 For Intervenors HTG Sunset, LLC ; and HTG Creekside, LLC: Maureen McCarthy Daughton , Esquire Maureen McCarthy Daughton, LLC 1725 Capital Circle N ortheast , Suite 304 Tallahassee, F lorid a 32308 STATEMENT OF THE ISSUE S Whether Respondent, Florida Housing Finance CorporationÓs (ÐFlorida HousingÑ), decision to award funding, pursuant to Request for Applications 2017 111 (Ðthe RFAÑ), to HTG Sunset, LLC (ÐSunset LakeÑ) ; HTG Creekside, LLC (Ð Oaks at CreeksideÑ) ; and HarperÓs Pointe, LP (ÐHarperÓs PointeÑ), is contrary to its governing statutes, rules, or the RFA specifications; and, if so, whether the decision is clearly erroneous, contrary to competition, arbitrary, or capricious. PRELIMINARY STATEMENT Florida Housing initially issued the RFA on October 6, 2017, and, after two modifications, established an application deadline of December 20, 2017. Petitioners and Intervenors submitted timely applications in response to the RFA. On May 4, 20 18, Florida Housing published ÐRFA 2017 111 Board Approved Preliminary AwardsÑ (ÐCorporationÓs NoticeÑ) , tentatively awarding funding to Sunset Lake, Oaks at Creekside, and HarperÓs Pointe, among others. On May 9, 2018, Petitioners , Madison Oaks, LLC (ÐMad ison OaksÑ) ; and American Residential Communities, LLC (ÐAmerican ResidentialÑ), filed their n otices of p rotest challenging the selection of the applications set forth in the CorporationÓs Notice. Petitioners timely filed a Formal Written Protest of Award and Petition for Administrative Hearing, which was forwarded to the Division of Administrative Hearings (ÐDivisionÑ) on June 8, 2018, 1/ for assignment of an Administrative Law Judge (ÐALJÑ) to conduct a final hearing. The Petition was assigned D OAH Case No. 18 2966 BID . On May 9, 2018, Petitioners , Sterling Terrace, LTD ; and Sterling Terrace Developer, LLC (collectively, ÐSterling TerraceÑ), filed their Notice of Protest challenging the selection of the applications set forth in the CorporationÓs Notice. Sterling Terrace timely filed a Formal Written Protest of Award and Petition for Administrative Hearing, which was forwarded to the Division on June 8, 2018, for assignment of an ALJ to conduct a final hearing. The Petition was assigned DOAH Case No. 18 2 967 BID . The cases were consolidated on June 14, 2018. 2/ Intervenors , HarperÓs Pointe, HTG Creekside , and HTG Sunset gained Intervenor status on June 12 and 14, 2018, respectively. 3/ The final hearing was scheduled for July 11 and 12, 2018, in Tallahassee, Florida, and commenced as scheduled. The parties introduced Joint Exhibits J1 through J8, which were admitted in evidence. The parties jointly offered the testimony of Marisa Button, Florida HousingÓs Director of Multifamily Allocations. Madison Oaks int roduced P etitionerÓs Exhibits P1 , P2, P5 through P9, P9a, P10, P12 through P15, P19, P26 , and P27 , which were admitted in evidence . Madison Oaks offered the testimony of Richard Creech. Intervenor Oaks at Creekside introduced IntervenorÓs Exhibits IO2 and IO9, which were admitted in evidence. Intervenor Sunset Lake introduced Exhibit IS6, which was admitted in evidence. Intervenor Oaks at Creekside offered the testimony of Matthew Rieger, CEO of Housing Trust Group, the parent company of HTG Creekside. I ntervenor HarperÓs Pointe i ntroduced IntervenorÓs Exhibits IH1 through IH8 and IH10 through IH12 , which were admitted in evidence , and introduced no additional witnesses. A one volume Transcript of the proceedings was filed on July 18, 2018. The parties t imely filed Proposed Recommended Orders (ÐPROsÑ) , which the undersigned has considered in preparing this Recommended Order. On August 3, 2018, Intervenors Clermont Ridge and Blue Sunbelt filed a Notice of Joinder in portions of both Petitioners Ó and Respo ndentÓs PROs. Except as otherwise provided, all references to the Florida Statutes are to the 2017 version. FINDING S OF FACT 1. Petitioner Madison Oaks is the Applicant entity for a proposed affordable housing development to be located in Osceola County, Florida. 2. Petitioner Sterling Terrace is the Applicant entity for a proposed affordable housing development to be located in Hernando County, Florida. 3. American Residential and Sterling Terrace are Developer entities as defined by Florida Housing in Florida Administrative Code Rule 67 48.002(28). 4. Sunset Lake, Oaks at Creekside, and HarperÓs Pointe are all properly registered business entities in Florida in the business of providing affordable housing. 5. Florida Housing is a public corporation or ganized pursuant to c hapter 420, Part V, Florida Statutes, and, for the purposes of these proceedings, an agency of the State of Florida. 6. Through the RFA, Florida Housing proposes to award an estimated $10,978,942 in Housing Credit Financing for Afford able Housing Developments located in medium and small counties (Ðaffordable housing tax creditsÑ). 7. The RFA outlines a process for selecting developments for funding. Section Five B. outlines the Selection Process, and subsection 2. is the Application Sorting Order. 8. On November 5, 201 7, Florida Housing received 167 applications in response to the RFA. Madison Oaks, Sterling Terrace, Sunset Lake, Oaks at Creekside, and HarperÓs Pointe timely submitted applications seeking funding to assist in the de velopment of multi family housing in medium counties. 9. Florida Housing selected a review committee to score all submitted applications. The review committee issued a recommendation of preliminary rankings and allocations, and the Board of Directors of Florida Housing approved these recommendations on May 4, 2018. The Board found that the parties to this proceeding all satisfied the mandatory and eligibility requirements for funding, but awarded funding to Intervenors based upon the ranking criteria in the RFA. 10. If Sterling Terrace can demonstrate that any two of the three Intervenors should not have been recommended for funding, it and Blue Sunbelt, LLC, will displace them as applications selected for funding. If Madison Oaks can demonstrate that a ll three Intervenors should not have been recommended for funding, Sterling Terrace and Blue Sunbelt, LLC, will displace them as applications selected for funding. Sunset Lake 11. Section Four A.5.e.(3) of the RFA allows applicants to receive up to four p oints for proximity to certain community services. The RFA provides that applicants in medium counties must receive at least seven points to be eligible for funding, and at least nine points to be eligible for a Proximity Funding Preference. 12. One of those community services is public schools, which are defined as follows: A public elementary, middle, junior and/or high school, where the principal admission criterion is the geographic proximity to the school. This may include a charter school, if the charter school is open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. Addition ally, it must have been in existence and available for use by the general public as of the Application Deadline. (emphasis added). 13. Sunset Lake identified the Jewett School of the Arts (ÐJewett SchoolÑ) as a public school, received four points for pr oximity, and as a result , was eligible for the Proximity Funding Preference. 14. The Jewett School is a magnet school within the Polk County Florida School District. The Jewett School was in existence and available for use by the general public as of t he a pplication d eadline. 15. Petitioners maintain the Jewett School does not meet the definition of Ðpublic school. Ñ 4/ If the Jewett School does not meet the definition of a Ðpublic school,Ñ Sunset Lake would not be entitled to four points for proximity to community services. As a result, it would have a total of seven points for proximity, and while it would remain eligible, it would lose the Proximity Funding Preference. As a result, Sunset Lake would not have been ranked as highly and would not have been recommended for funding. 16. The Jewett School does not meet the RFA definition of Ðpublic schoolÑ because geographic proximity to the school is not the principal admission criterion. Although a student must live in Polk County SchoolsÓ Magnet Zone B to apply for admission to the Jewett School, the principal admission criteria is a random lottery process. Geographic location within the Polk County magnet school zones is a threshold issue which qualifies a student to apply for admission. However, th e magnet school decision making process entails a subsequent elaborate demographic diversity analysis, sorting based on the outcome of that analysis, and, ultimately, a random lottery drawing which determines final admission. 17. The Jewett School admissi on process is contrary to Florida HousingÓs primary purpose of awarding proximity points to proposed housing developments to ensure the intended residents can, in fact, use the services in proximity to the development. 18. Sunset Lake is not entitled to four points for proximity to community services and should not be awarded Proximity Funding Preference. As a result, Sunset Lake should not have been ranked as highly and should not have been recommended for funding. Oaks at Creekside 19. Oaks at Creek side identified the Manatee Charter School (ÐManatee SchoolÑ) as a public school, received three points for proximity, and, as a result, was eligible for funding but not for the Proximity Funding Preference. The Manatee School is a charter school located in Bradenton, Florida. 20. The Manatee School was in existence and available for use by the general public as of the a pplication deadline. 21. Petitioners maintain the Manatee School does not meet the definition of a Ðpublic school.Ñ 5/ If the Manatee Ch arter School does not meet that definition, then Oaks at Creekside is not entitled to three points for proximity. As a result, it would have only six total proximity points, and would not be eligible for funding. 22. Florida Housing maintains that a char ter school must meet both parts of the definition of a public school in order for a proposed development to receive proximity points based on proximity to that school. That means a charter school must (1) use geographic proximity as the primary admission criteria, and (2) be Ðopen to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.Ñ 23. Geographic proximity is not the primary admission criterion for the Manatee School. On the contrary, the Manatee School is open for admission regardless of geographic proximity thereto. 24. The Manatee School operates pursuant to a contract with the Man atee County School Board, and is Ðopen to any student residing in the Manatee County School District, students covered in an interdistrict agreement and students as provided for in Section 1002.33(10), Florida Statutes (2010).Ñ 6/ 25. The Manatee School op erates a Ðcontrolled open enrollmentÑ process. The application period opens in early January and closes at the end of February, and the School accepts students from any school district in the state whose parent or guardian can provide transportation to th e school, if the school has not reached capacity. This process is sometimes referred to as Ðschool choiceÑ and is mandatory pursuant to section 1002.31, Fl orida Stat utes. 7/ 26. The Manatee School has enrolled students throughout Manatee County, as well a s from adjoining Sarasota County. 27. Historically, the Manatee School has not reached capacity. Once the School reaches capacity in any one grade level or class, students will be selected by a system generated, random lottery process. 28. The term Ðrad ius areaÑ is not defined in the RFA or in Florida HousingÓs rules. Florida Housing introduced no evidence regarding the meaning of the term Ðradius areaÑ within the definition of Ðp ublic s chool. Ñ When questioned about the meaning, Marisa Button, Florida HousingÓs Director of Multifamily Allocations, stated she did not know, but Ð[I] assume it means if the charter school has a radius area. I donÓt know.Ñ 8/ 29. The term ÐradiusÑ is defined as Ða bounded or circumscribed area.Ñ Merriam Webster Online , www.merriam webster.com (2018). 30. The bounded or circumscribed area for admission to the Manatee School is the Manatee County School District, pursuant to its contract. The Manatee School is open to appropria tely aged children in the radius area who apply. 31. The Manatee School does not apply additional requirements for admission, such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. 9/ 32. The Man atee School does provide admissions preferences to students of active duty military personnel, siblings of a student already enrolled, siblings of an accepted applicant, children of an employee of the School, and children of a charter board member. Each o f these preferences is authorized pursuant to section 1002.33(10)(d). 33. The preferences are not additional requirements for admission to the Manatee School. 34. The Manatee School meets the second part of the definition of Ðpublic schoolÑ for purpose o f qualifying Oaks at Creekside to receive proximity points pursuant to the RFA. HarperÓs Pointe 35. Madison Oaks argues HarperÓs Pointe is ineligible for funding pursuant to the RFA because the HarperÓs Pointe development site is a Ðscattered site,Ñ and H arperÓs Pointe did not identify the site as such and comply with the RFA requirement to designate latitude and longitude coordinates for both sites. 10/ 36. Rule 67 48.002(105) defines Ð s cattered s itesÑ as follows: (105) ÐScattered sites,Ñ as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non contiguous site within a Scattered Site Development, is considered to be a ÐScattered SiteÑ). For purposes of th is definition ÐcontiguousÑ means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be loca ted in the same county. 37. Section Four A.5.c. of the RFA states: ÐThe Applicant must state whether the Development consists of Scattered Sites.Ñ 38. Section Four A.5.d. of the RFA requires that applicants provide latitude and longitude coordinates fo r the Development Location Point and any scattered sites. 39. Section Five A.1. provides that Ðonly items that meet all of the following Eligibility Items will be eligible for funding and consideration for funding selection.Ñ Among the items listed are Ð Question whether a Scattered Sites Development answeredÑ and ÐLatitude and Longitude Coordinates for any Scattered Site provided, if applicable.Ñ 40. HarperÓs Pointe did not state in its application that the development consists of s cattered s ites, and di d not provide separate latitude and longitude coordinates for s cattered s ites. 41. HarperÓs PointeÓs proposed development site, as identified in its Site Control Documents, consists of land located within a platted tract of property. The plat recorded in Alachua County indicates that the site is bisected by a platted 50 foot street easement running east/west through the property. 42. The parties stipulated the street has never been constructed. 43. Although portions of the east/west easement area show signs of having been improved at some time in the past, the easement area has never been paved, and is currently impassible by car or truck due to vegetation in the easement area. 44. Even if the easement area were improved, there is no roadway to the west of the property to which it would connect. A fence runs along the property line and the property beyond the fence is platted residential lots accessed by Northeast 22nd Street. 45. An existing roadway, Northeast 23rd Avenue, terminates at the east ern property line just south of the east/west easement. The City has placed barriers at that property line prohibiting access to the property from Northeast 23rd Avenue. 46. If the platted street is a Ðroadway or streetÑ as those terms are used in rule 6 7 48.002(105), the site would meet the definition of a Ðscattered site.Ñ 47. Ms. Button testified on behalf of Florida Housing that the property meets the definition of a scattered site because Ðthere is an easement that is a road or a streetÑ that bisect s the property. Ms. Button first testified that Florida HousingÓs determination did not depend on whether a roadway or street is actually constructed within the easement, but rather, Ðit goes back to the easement, whether there is an easement that is a ro adway or street.Ñ 48. Ms. ButtonÓs testimony seemed logical enough. If the easement were a street easement, access between the northern and southern portions of the development site would be constrained. By contrast, if the easement were a conservation or utility easement, there would be no impairment of access between portions of the development site. 49. However, on cross examination, Ms. Button testified that, in making the determination whether an easement for a road or street existed, Florida Housi ng would consider a number of other factors, including whether a roadway was actually constructed within the easement, whether there were physical obstructions preventing access to the ÐprospectiveÑ roadway or street, and whether the public had a right to use the ÐprospectiveÑ roadway or street. 50. Ms. Button did not testify with specificity what factors she considered in making the determination that the easement, in this case, was Ða roadway or street.Ñ Ms. ButtonÓs direct examination testimony was con clusory: ÐBased on the documentation we received, there is an easement that is a road or street.Ñ On direct examination, her determination appeared to be based solely on the plat designation of a street easement. On cross examination, however, Ms. Butto n testified that Ða street designated . . . on a plat could be evidence of the existence of a scattered site.Ñ (emphasis added). Moreover, Ms. Button testified that Florida Housing could consider whether a roadway or street was actually constructed, whet her there were obstructions to its use, and whether the public had a right to use the purported roadway. 51. Ms. ButtonÓs testimony that the HarperÓs Point development site was a scattered site was equivocal, and the undersigned does not accept it as eith er reliable or persuasive. 11/ 52. There is no physical roadway or street constructed within the easement. While there is some evidence that some portions of the easement area were improved in the past, said improvement was at least 25 years old. The cur rent condition of the property is fairly heavily wooded. To the extent a ÐpathÑ exists on the property, it is not passable by a standard four wheeled vehicle. Moreover, there are physical barriers preventing vehicular access to the property from the adjo ining street to the east. There is no access to the property from the residential development to the west of the property. 53. The re is not an improved area preventing access from the northern to the southern portion of the development site. There is no structure built within the easement which would have to be demolished in order to build the project on the development site as a single parcel. 54. Based on the entirety of the reliable evidence, the HarperÓs Pointe development site is not a Ðscattered s iteÑ as defined in the RFA. 55. Madison Oaks failed to prove that Florida HousingÓs initial determination to award tax credits to HarperÓs Pointe, pursuant to the RFA, was incorrect. CONCLUSIONS OF LAW 56. The Division has jurisdiction over the subject m atter and the parties to this action. §§ 120.569 and 120.57(3), Fla. Stat. 57. Petitioners have the burden to prove, by a preponderance of the evidence, that Florida HousingÓs intended award of housing tax credits to HTG Sunset, HTG Creekside, and Harp erÓs Pointe is contrary to Florida HousingÓs governing statutes, rules or policies , or the RFA specifications. § 120.57(3)(f), Fla. Stat. 58. Although section 120.57(3) provides that this is a de novo proceeding, it is not a Ðde novoÑ proceeding in the t raditional sense. See State Contracting & EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). That is, this is not a forward looking proceeding to formulate agency action, and the Division may not substitute its judgment for that of Florida Housing. See Intercont inenta l Props., Inc. v. State DepÓt of HRS , 606 So. 2d 380, 386 (Fla. 3d DCA 1992); R.N. Expertise, Inc. v. Miami Î Dade Cnty. Sch. Bd. , Case No. 01 2663BID (Fla. DOAH Feb. 4, 2002; MDCSB Mar. 13, 2002) (explaining the Divisio nÓs role in procurement protest proceedings). Instead, the Division engages in a form of Ðinter agency reviewÑ in which the ALJ makes findings of fact about the action already taken by the Department. See State Contracting , 709 So. 2d at 609. The Divisi on does not evaluate the DepartmentÓs decision anew; instead the Division looks to see if the Department followed its governing statutes, its rules, and the RFA specifications during the procurement process. See R.N. Expertise , Case No. 01 2663BID , RO at 71 . 59. Agencies enjoy wide discretion when it comes to soliciting and accepting proposals, and an agency's decision, when based upon an honest exercise of such discretion, will not be set aside even where it may appear erroneous or if reasonable persons may disagree. BaxterÓs Asphalt & Concrete, Inc. v. DepÓt of Transp. , 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985); Capeletti Bros., Inc. v. State DepÓt of Gen. Servs. , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983). Section 120.57(3)(f) establishes the standard of proof: whether the proposed action is clearly erroneous, contrary to competition, arbitrary , or capricious. 60. A decision is considered to be clearly erroneous when, although there is evidence to support it, after review of the entire record, the tri bunal is left with the definite and firm conviction that a mistake has been committed. U.S. v. U.S. Gypsum Co. , 333 U.S. 354, 395 (1948). An agency action is capricious if the agency takes the action without thought or reason, or irrationally. Agency ac tion is arbitrary if it is not supported by facts or logic. See Agrico Chem. Co. v. State DepÓt of Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978). An agency decision is contrary to competition if it unreasonably interferes with the objectives of co mpetitive bidding. See Wester v. Belote , 138 So. 721, 723 24 (1931). Sunset Lake 61. Florida HousingÓs init ial determination to award four proximity points to Sunset Lake for its proximity to the Jewett School was clearly erroneous. 12/ The Jewett School does not meet the RFA definition of a public school and is not a community service for which Sunset Lake should have received proximity points. 62. Petitioner Madison Oaks proved that Florida HousingÓs initial decision to award affordable housing tax cre dits to Sunset Lake was contrary to the RFA, and contrary to competition. Sunset Lake should have received a total of seven proximity points, and should not have been recommended for funding. Oaks at Creekside 63. Florida HousingÓs init ial determination to award four proximity points to Oaks at Creekside for its proximity to the Manatee School was neither clearly erroneous, contrary to competition, arbitrary, nor capricious. The Manatee School is a public school as defined in the RFA. 64. As noted in Florida HousingÓs Notice of Change of Position, filed July 6, 2018, Florida Housing determined after discovery depositions that the Manatee School was not a public school for purposes of awarding proximity points to Oaks at Creekside. However, it is Flori da HousingÓs initial decision to award funding to Oaks at Creekside, not its subsequent litigation position, that is at issue in this proceeding. 13/ See Blue Broadway, LLC v. Fla. Hous. Fin. Corp. , Case No. 17 3273 (Fla. DOAH Aug. 29, 2017; FHFC Sept. 22, 2017)(ÐIn this proceeding, the undersigned continues to review the correctness of RespondentÓs initial decision which was to find IntervenorÓs application to be eligible.Ñ). 65. Petitioner Sterling Terrace failed to prove that Florida HousingÓs initial d etermination to award affordable housing tax credits to Oaks at Creekside was contrary to the RFA. HarperÓs Pointe 66. Florida Housing initially determined HarperÓs Pointe was eligible for an award of affordable housing tax credits pursuant to the RFA. 67 . Petitioner Madison Oaks failed to prove Florida HousingÓs intended award of housing tax credits to HarperÓs Pointe was contrary to Florida HousingÓs statutes, rules, or the terms of the RFA, clearly erroneous, contrary to competition, or arbitrary or ca pricious. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing issue a final order finding (1) that its initial scoring decision regarding Sunset Lake was erroneous, and awarding funding to t he applicant with the next highest lottery number ; and (2) awarding funding to Oaks at Creekside and HarperÓs Pointe, pursuant to its initial scoring decision. DONE AND ENTERED this 2 3r d day of August , 2018 , in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 3060 (850) 488 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with th e Clerk of the Division of Administrative Hearings this 2 3r d day of August , 2018 . ENDNOTE S 1/ Madison Oaks filed a First and Second Amended Formal Written Protest of Award and Petition for Administrative Hearing on June 11, 2018. 2/ The cases were ini tially consolidated with a third challenge filed by Clermont Ridge, LTD ( DOAH Case No. 18 2968 BID ), which was resolved and voluntarily dismissed on June 21, 2018. 3/ Arbours at Hester Lake, LLC ; Collonade Park, LTD ; Blue Sunbelt, LLC ; and Clermont Ridge, LLC, initially gained Intervenor status in these proceedings as well. However, the issues initiating intervention by those parties were resolved prior to the final hearing and those parties did not appear at the final hearing. 4/ Petitioners withdrew f rom consideration all other issues against the application of Sunset Lake in their Third Amended Formal Written P rotest of Award and Petition for Administrative Hearing. 5/ Petitioners withdrew from consideration all other issues against the application of Oaks at Creekside in their Third Amended Formal Written Protest of Award and Petition for Administrative Hearing. 6/ The 2010 version of the statute required Ða charter school [to be] open to any student covered in an interdistrict agreement or residi ng in the school district in which the charter school is located[.]Ñ 7/ Section 1002.31(2)(a) provides, in pertinent part: [E]ach district school board or charter school shall allow a parent from any school district in the state whose child is not subje ct to a current expulsion or suspension to enroll his or her child in and transport his or her child to any public school, including charter schools, that has not reached capacity in the district, subject to the ma ximum class size pursuant to s. 1003.03 an d se. 1, Art. IX of the State Constitution. The school district or charter school shall accept the student, pursuant to that school districtÓs or charter schoolÓs controlled open enrollment process, and report the student for purposes of the school distri ctÓs or charter schoolÓs funding pursuant to the Florida Education Finance Program. 8/ The parties also introduced the deposition testimony of Marisol Quinones, the Manatee School Enrollment Administrator. No party asked Ms. Quinones to identify the radi us area of the school. 9/ The Charter Schools USA policy provides, Ðthe School will endeavor to achieve racial/ethnic balance,Ñ but does not award any admission preference based on race or ethnicity. According to the policy, the School ÐendeavorsÑ to ac hieve the balance through a marketing plan directed at Ðunderrepresented populations.Ñ 10/ Madison Oaks initially asserted a challenge to the qualification of the Medical Facility identified in the HarperÓs Pointe application. Madison Oaks is no longer pursuing its challenge to the qualification of the Medical Facility identified in the HarperÓs Pointe application. 11/ As of the date of the prehearing stipulation, Florida HousingÓs initial position that HarperÓs Pointe was eligible for funding had no t changed. During opening statements, counsel for Florida Housing stated its position as Ð[I] guess our position at the moment is it looks like a street, it must be a street. . . . I am sure we are going to hear argument on all sides . . . and when we do , weÓll just have to come up with our ultimate position on that[.]Ñ 12/ Florida Housing conceded this point when it filed a Notice of Change of Position on July 6, 2018. 13/ However, the undersigned is compelled to comment on Florida HousingÓs position , taken at final hearing, that the Manatee School does not meet the RFA definition of Ðpublic schoolÑ because geographic proximity is not the primary admission criteria. That position is untenable. Florida Housing is required to interpret the RFA consist ent with its plain and unambiguous language. See Brownville Manor, LP v. Redding Dev. Partners, LLC , 224 So. 3d 891 (Fla. 1st DCA 2017)(citing Creative Choice XXV, Ltd. v . Fla. Hous. Fin. Corp. , 991 So. 2d 899, 901 (Fla. 1st DCA 2008). Florida HousingÓs interpretation of the definition to require compliance with both the first and second sentences of the definition is contrary to the plain language of the RFA. The first sentence clearly and unequivocally refers to the admission criteria of traditional public schools, where admission is mandatory for all children within a defined geographic proximity to the school, i.e., the school attendance zone. The second sentence applies specifically to charter schools, which are non traditional public schools in F lorida. § 1002.33(1), Fla. Stat. As it pertains to charter schools, the definition requires only that the school be Ðopen to appropriately aged children in the radius area who applyÑ and not impose additional admission criteria. Requiring a charter scho ol to meet both parts of the definition of public school is contrary to the plain language of the RFA. While the undersigned is cognizant of the principle of deference to agency interpretations, Ðjudicial adherence to the agencyÓs view is not demanded whe n it is contrary to the [RFAÓs] plain meaning.Ñ Werner v. DepÓt of Ins. & Treasurer , 689 So. 2d 1211 (Fla. 1st DCA 1997). Within the RFA definition of public school, the second sentence is specific to charter schools and should be applied to Oaks at Cree ksideÓs application. Further, Florida HousingÓs interpretation would effectively prohibit any charter school from qualifying as a public school under the RFA. Through 2016, charter schools were required to be open to any student residing in the school di strict in which the charter school is located. § 1002.33(10), Fla. Stat. (2016). Under current law, a charter school Ðmay be exempt from [Public School Parental Choice] as long as it is open to any student residing in the school district in which the cha rter school is located.Ñ £ 1002.33(10)(2018). A charter school cannot be both open to any student within the school district and use geographic proximity as the primary admission criteria. COPIES FURNISHED: Sarah Pape, Esquire Zimmerman, Kiser & Sutcl iffe, P.A. 315 East Robinson Street, Suite 600 Post Office Box 3000 (32802) Orlando, Florida 32801 (eServed) J. Timothy Schulte, Esquire Zimmerman, Kiser & Sutcliffe, P.A. 315 East Robinson Street Post Office Box 3000 (32802) Orlando, Florida 32801 (eSe rved) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Lawrence E. Sellers, Jr., Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee , Florida 32301 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 304 1725 Capital Circle Northeast Tallahassee, Florida 32308 (eServed) Douglas Ma n son, Esquire Manson Bolves Donaldson Varn, P.A. Suite 300 109 North Brus h Street Tampa, Florida 33602 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. Suite 820 106 East College Avenue Tallahassee, Florida 32301 (eServed) Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. Suite 300 109 North B rush Street Tampa, Florida 33602 (eServed) Michael George Maida, Esquire Michael G. Maida, P.A. Suite 201 1709 Hermitage Boulevard Tallahassee, Florida 32308 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 2 27 North Bronough Street Tallahassee, Florida 32301 1329 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) Anthony L. Bajoczky, Jr., Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302 (eServed) David J. Weiss Ausley McMullen Post Office Box 391 Tallahassee, Florida 323 01 (eServed) Michael P. Donaldson, Esquire Carlton Fields Jorden Burt, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302 0190 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Pos t Office Box 1110 Tallahassee, Florida 32302 1110 (eServed) Brittany Adams Long, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) Tiffany A. Roddenberry, Esquire Holland & Knight, LLP Suite 600 315 S outh Calhoun Street Tallahassee, Florida 32301 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 1329 (eServed) NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the r ight 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.

Docket for Case No: 18-002966BID

Orders for Case No: 18-002966BID