The Issue The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
The Issue The issue is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Fair Housing Act (FFHA).
Findings Of Fact Petitioner is an African-American female. Her Housing Discrimination Complaint alleges that Respondent “charged her $300 more than her White neighbor who has the same disability and the same income”; “she did not have a washer/dryer upon moving into the unit, but her white neighbor had a washer/dryer when she moved in[to] her unit”; “she was required to pay her utilities herself while her white neighbor was given a grant to cover her utilities”; and “she was given a fifteen day notice to vacate on March 9, 2017 that required her to vacate the property by March 31, 2017.” To resolve these allegations, the undersigned has relied on a record that consists only of brief testimony by Petitioner, limited cross-examination by counsel, and documentary evidence submitted by the parties. From November 2014 until she was evicted in March 2017 for non-payment of rent, Petitioner rented a two-bedroom unit owned and managed by Respondent. The property is located at 2418 Santa Barbara Boulevard, Naples, Florida. Petitioner’s final lease agreement was executed on March 1, 2016, on a month-to-month basis, and provided that Respondent could terminate the lease with a 15-day written notice prior to the end of the monthly period. It also provided that the agreement could be terminated for a failure to timely pay the rent. Two-bedroom units are normally shared by two residents, who split the monthly rent. Petitioner has two service animals who reside with her, and she testified that a housemate might not wish to share a unit with two service animals. Accordingly, she agreed to pay $800.00 per month for single occupancy of the unit. The lease agreement required Petitioner to pay her rent the first day of each month. Petitioner testified that she had an oral agreement with management to pay the rent on the third Wednesday of each month, when she received her Social Security disability check. There is no written agreement to confirm this arrangement, and even if an oral modification was agreed to by the parties, Respondent’s accounts receivable ledger reflects that Petitioner frequently did not pay her rent until the end of the month. According to the lease, the monthly rent includes a $75.00 allowance for utilities. Presumably, any charges in excess of that amount are the responsibility of the tenant. Petitioner testified that her next door neighbor is not a member of a protected class and was given more preferential treatment than she was. As an example, Petitioner points out that she paid her own electric bills from November 2014 until February 2016, while her neighbor received a utility subsidy. However, there is no competent evidence in the record to establish what type of arrangement the neighbor had for paying electric bills or whether the neighbor received some type of assistance for this expense. In any event, this allegation is based on events that occurred more than a year before the Complaint was filed and is time-barred. § 760.34(2), Fla. Stat. Petitioner also contends she was charged $300 more per month than her neighbor. Records submitted by Respondent show that the next door neighbor was also in a two-bedroom unit, but was assigned a housemate and paid $495.00 per month during the 12 months preceding the filing of the Complaint. Therefore, both the neighbor and Petitioner were charged the correct amount for their units.2/ Petitioner alleges her next door neighbor’s unit had a washer/dryer when the neighbor moved in, but Petitioner’s unit did not receive these appliances until February 2016. No evidence regarding this issue was presented, and a claim based on acts that occurred more than a year before the Complaint was filed is time-barred. Id. Throughout her tenancy, Petitioner consistently paid her rent late and failed to pay any rent during certain months. As of January 17, 2017, Petitioner was $1,521.00 in arrears on rent. Accordingly, that day, a three-day notice for nonpayment of rent and demand for rent or possession within three days was posted on the premises. On February 22, 2017, a second three-day notice for nonpayment of rent in the amount of $800.00 (presumably based on non-payment of the February rent) and demand for rent or possession within three days was hand-delivered to Petitioner. On March 8, 2017, a 15-day notice of termination of tenancy pursuant to section 83.58, Florida Statutes, was posted at the unit. The notice informed Petitioner that she must vacate the premises by the end of the month. On March 31, 2017, Petitioner vacated the premises, without paying the March rent. Petitioner’s Complaint was filed with FCHR on May 22, 2017. The eviction action was taken only because Petitioner failed to pay the rent, and not because of her race. In her Petition for Relief, Petitioner added an allegation that “FCHR’s Determination: No Cause” was based in part on the erroneous assumption that Respondent does not receive federal housing assistance. Petitioner testified that Respondent receives federal funds and is subject to eviction regulations promulgated by the United States Department of Housing and Urban Development (HUD). She points out that a 30-day eviction notice is required under HUD regulations, but she was only given 15 days’ notice pursuant to state law. Even if this is true, it does not support a charge of discrimination, as the eviction here was based on a non-discriminatory reason, a failure to pay rent, and not because of her race. Finally, Petitioner alleges that Respondent “made housing unavailable to her based on her race,” and that other persons similarly situated to her, but outside her protected class, were treated more favorably. The evidence shows that at least ten other tenants, including white tenants, were evicted for non-payment of rent during the same time period. See Resp. Ex. 14. There is no evidence, direct or indirect, to support a claim of housing discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 20th day of June, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 the Clerk of the Division of Administrative Hearings this 20th day of June, 2018.
Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Petitioner owned property in Charlotte County, Florida which laid within the right of way of proposed Federal Highway 1-75. The Petitioner's property was required for the highway right of way. The Petitioner lived on the property in a mobile home for more than ninety (90) days prior to the time that officials of the Florida Department of Transportation initiated negotiations for acquisition of the property. During February, 1975, David L. Nicholson, a Right of Way Agent with the Department of Transportation, contacted the Petitioner in order to negotiate the acquisition of the Petitioner's property, and to explain the amount of relocation assistance benefits that the Petitioner might be entitled to receive in order to compensate him for his having to move his residence. Petitioner was offered $3,500.00 in relocation benefits. This offer was predicated on the Petitioner's remaining an owner/occupant of new property to which he moved. When Mr. Nicholson was advised that the Petitioner was going to be renting new property, rather than purchasing it, Mr. Nicholson advised the Petitioner that he could receive up to $4,000.00 in rent supplements. The Petitioner construed the $4,000.00 figure as the amount that he would receive. The $4,000.00 was actually the highest figure that the Petitioner could receive, and was considerably more than the Petitioner was entitled to receive. The Department of Transportation compensated the Petitioner for the cost of moving his mobile home, and setting it up on the lot which the Petitioner was renting. The amount provided the Petitioner for this purpose was $970.15. Petitioner concedes that he was adequately compensated for moving and setting up his mobile home. The rental value of the Petitioner's property in Charlotte County, without the mobile home on it was $50.00 per month. This figure is called the "economic rent" of the property. A comparable lot in Charlotte County, Florida, would have cost the Petitioner $55.00 per month to rent. The difference between the monthly rental of a comparable lot, and the economic rent of the Petitioner's property was $5.00. If the Petitioner received this amount for four years, he would be entitled to $240.00. The Department of Transportation offered to pay this amount to the Petitioner, but he refused it, contending that he is entitled to $4,000.00. No evidence was offered at the hearing from which it could be concluded that Petitioner was entitled to receive more than the $970.15 provided him to move and set up his mobile home, and $240.00, the difference between the rental value of a comparable lot, and the economic rent of the Petitioner's property for four years as relocation assistance benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That an order be entered finding the Petitioner entitled under the provisions of 42 U.S.C. 4624 to $240.00 in relocation assistance benefits above and beyond the $970.15 already provided; and that this amount be forwarded to the Petitioner. RECOMMENDED this 18th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1977. COPIES FURNISHED: Philip Bennett, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Veltie A. Dodson Route 5, Box 268 Rocky Mount, Virginia 24151 Tom B. Webb, Jr., Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304
The Issue The issue for determination is whether Respondent discriminated against Petitioners in violation of the Fair Housing Act by failing to release them from a 20-year affordable housing deed restriction.
Findings Of Fact No dispute exists that Mr. Discher is handicapped, as indicated in his medical records, for purposes of the Fair Housing Act. John and Ruth Discher own the property located at 22916 Bluegill Lane, Cudjoe Key, Florida, with the following legal description: Lot 32, Block 10, Cudjoe Ocean Shores, as recorded in Plat Book 6, Page 76, of the Public Records of Monroe County, Florida. At the time of hearing, the Dischers did not live in the residential home on the property but rented it. No dispute exists that Monroe County is a political subdivision of the State of Florida having regulatory jurisdiction over the Dischers’ property. Since around 1979, Monroe County has been designated as an Area of Critical State Concern (ACSC). As an ACSC, increased State oversight of and involvement in local planning decisions is required by the Governor and Cabinet, sitting as the Florida Administrative Commission, and the Department of Community Affairs (DCA), as the State land planning agency. The Florida Legislature imposed a series of “principles for guiding development” in the Florid Keys. § 380.0552(7), Fla. Stat. One of the principles for guiding development imposed by the State is “to make available adequate affordable housing for all sectors of the population of the Florida Keys.” § 380.0552(7)(j), Fla. Stat. In 1992, the Rate of Growth Ordinance (ROGO) was adopted by the Florida Administrative Commission on behalf of Monroe County in order to limit growth in the Keys. The purpose and intent of ROGO was to facilitate implementation of goals, objective and policies set forth in Monroe County’s comprehensive plan relating to many areas of concern, including the protection of the environment (including endangered species and species on the concerned list), residents, and visitors; hurricane evacuation; road improvement; property and property development. ROGO consists of a competitive point system, based on a complex scoring system, and those who obtain the top points receive allocations. Point values are accessed on and using a number of criteria. Under the ROGO system, property owners, who wish to build houses on vacant land, must compete to receive a limited number of residential allocations. The yearly number of building allocations is limited by state administrative rule. Property owners seeking building allocations compete against each other in order to receive one of the limited number of allocations. In 1996, Monroe County’s comprehensive plan was effective. Prior to 1996, Monroe County received very few applicants for ROGO; however, after the comprehensive plan became effective the competition under ROGO increased tremendously. Developers and persons with high economic means became the majority of those able to receive points in order to obtain the majority of the limited allocations. With the increase in competition, affordable housing became a concern. The ultimate goal of Monroe County under the ACSC program is for it (Monroe County) to get into the position of being able to protect the environmental resources, provide for hurricane evacuation, and do everything that is required in Chapter 380, Florida Statutes, and be removed or “de-designated” as an ACSC. Applicable to the instant matter, affordable housing was defined in Monroe County Code, Land Development Regulations, Section 9.5-4, which provided in pertinent part: (A-5) Affordable housing means housing which: * * * With respect to a housing unit to be occupied by moderate-income persons, that monthly rents, or monthly mortgage payments, including taxes and insurance, do not exceed thirty (30) percent of that amount which represents one hundred twenty (120) percent of the median adjusted gross annual income for households within Monroe County, divided by 12 for a period of twenty (20) years. The dwelling unit must also meet all applicable requirements of the United States Department of Housing and Urban Development minimum property standards as to room sizes, fixtures, landscaping and building materials, when not in conflict with applicable laws of Monroe County. For the purposes of this section, “adjusted gross income” means all wages, assets, regular cash or noncash contributions or gifts from persons outside the household, and such other resources and benefits as may be determined to be income by rule of the department of community affairs, adjusted for family size, less deductions allowable under section 62 of the Internal Revenue code; and In which, if permitted by law, preference is given to local contractors. The threshold for a household’s income to qualify for affordable housing was set by this regulation. Further, Monroe County Code, Land Development Regulations, Section 9.5-266, applicable to the instant matter, provided in pertinent part: (a) Affordable Housing: (1) Notwithstanding the density limitation in section 9.5-262, the owner of a parcel of land shall be entitled to develop affordable housing as defined in section 9.5-4(A-5). . . . * * * Before any certificate of occupancy may be issued for any structure, portion or phase of a project subject to this section, restrictive covenant(s), limiting the required number of dwelling units to households meeting the income criteria described in paragraph (4)(a)-(f) of this subsection (a) running in favor of Monroe County and enforceable by the county, shall be filed in the official records of Monroe County. The covenant(s) shall be effective for twenty (20) years but shall not commence running until a certificate of occupancy has been issued by the building official for the dwelling unit or units to which the covenant or covenants apply. In order for the owner of a parcel of land to be entitled to the incentives outlined in this section, the owner must ensure that: a. The use of the dwelling is restricted to households that derive at least seventy (70) percent of their household income from gainful employment in Monroe County; and * * * e. The use of the dwelling is restricted for a period of at least twenty (20) years to households with an income no greater than one hundred twenty (120) percent of the median household income for Monroe County . . . . This regulation sets the limitation for covenants at 20 years, with the time period beginning to run at the issuance of the certificate of occupancy by the building department. Under the ROGO plan, a person was awarded additional points if the person agreed to the imposition of an affordable housing deed restriction. Being awarded the additional points meant that a person would receive an allocation in a shorter period of time. At that time, Mrs. Discher was an employee of the Monroe County Sheriffs Department. The Dischers completed a ROGO application. They wanted to be awarded additional points to reduce the period of time for them to receive an allocation for the construction of their home. The Dischers completed an Annual Affidavit of Qualification for Affordable Housing (Residential Dwelling Unit). The Affidavit provided, among other things, an acknowledgement by the Dischers that the Affidavit was a waiver of payment of the required impact fees; that Mrs. Discher was an employee of the Monroe County Sheriff’s Department and at least 70 percent of the household’s income was derived from that employment; that the single family home was restricted for 20 years to household’s with adjusted gross income of a certain amount; that the Dischers would file an approved deed restriction indicating “that, either (1) the deferred impact fees shall become due and owing if the unit no longer qualifies as Affordable Housing, or, (2) that the dwelling unit shall be restricted by the affordable housing criteria for twenty years commencing from the issuance of the certificate of occupancy”; and that the Dischers understood that, if affordable housing was used to gain points in the allocation system, the single-family home would be restricted by the covenants for 20 years. Mr. Discher prepared an affordable housing deed restriction for a residential dwelling unit in 1997. The Affordable Housing Deed Restriction, prepared by Mr. Discher, was executed by the Dischers on July 2, 1997. Provision II of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement that “fair share impact fees” shall be paid by any person prior to receiving a building permit for any new land development. Provision III of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement by the Dischers that they were being exempt from payment of their fair share impact fees for the single family home to be constructed by them on their property. Provision IV of the Affordable Housing Deed Restriction provided, among other things, that the sale, transfer or rental of their single family home shall only be to persons who qualify under Monroe County’s current affordable housing eligibility requirements as established and amended from time to time. Provision V of the Affordable Housing Deed Restriction provides, among other things, that the covenants shall be effective for 20 years and shall begin to run at the issuance of certificate of occupancy by the building department. Provision VI of the Affordable Housing Deed Restriction provides, among other things, that the Dischers used the affordable housing program to gain additional points in the permit allocation system. The Affordable Housing Deed Restriction contains no provision for removal of the affordable housing deed restriction. The Dischers were given additional points. Their wait-time for an allocation was reduced, and they received an allocation to build their single family home. The Dischers attempted to pay impact fees on or about October 2, 1997. They were informed by the building department that they were not required to pay the impact fees and their check for the impact fees was returned to them. They obtained a mortgage loan and completed their single family home. A certificate of occupancy was issued on June 30, 1999. Mr. Discher testified at hearing that the only reason that he and his wife applied for the ROGO program and that he prepared and he and his wife executed the Affordable Housing Deed Restriction was because an employee of the Monroe County Building Department informed him that they (the Dischers) could be released from the affordable housing deed restriction simply by paying the fair share impact fee at any time. Before ROGO, Monroe County had an affordable housing ordinance that permitted the removal from affordable housing by paying the impact fees. A household benefited by not initially paying impact fees; but, the household could later decide to pay the impact fees, come forward and pay the impact fees, and be removed from affordable housing. However, after ROGO was adopted, the option to later pay the impact fees and be removed from affordable housing no longer existed. ROGO contained no mechanism for a person to pay the impact fees and be removed from affordable housing before the time limit expired or to be removed from affordable housing before the time limit expired. At hearing, the building official was identified but did not testify. Insufficient evidence was presented to ascertain whether the building official had the apparent authority to allow the Dischers to pay the impact fees and remove them from the affordable housing restrictions prior to the 20 years. Consequently, the evidence is insufficient to demonstrate that the Dischers reasonably relied upon the building official’s representation to support a release from the affordable housing restrictions. No copy of any release from the affordable housing deed restrictions recorded in the official records of Monroe County was presented at hearing. The evidence is insufficient to demonstrate that Monroe County had released any persons from affordable housing deed restrictions. In 2005, the Dischers made a request to Monroe County for removal of the affordable housing deed restrictions. The Dischers were notified by Monroe County that no provision existed in the Monroe County Code or Monroe County’s Comprehensive Plan for removal of the affordable deed restrictions prior the effective date of their expiration or termination and that its Comprehensive Plan provided that affordable housing projects shall be required to maintain the project as affordable housing on a long-term basis in accordance with deed restrictions. Furthermore, the Dischers were notified by Monroe County that prospective occupant(s) of the affordable housing must meet the qualifications for affordable housing. The Dischers attempted to pay the impact fees in order to be released from the affordable housing deed restrictions. They attempted to pay the impact fees on at least two occasions— March 20, 2006, and February 20, 2007. On each occasion, their payment was refused by Monroe County. Monroe County determined that payment of the impact fees would not release the Dischers from the affordable housing deed restrictions, and, therefore, refused and returned the Dischers’ payments. Moreover, no provision in the Monroe County Code permitted the removal of the affordable housing deed restrictions. Monroe County admits that, under the guidelines in place when the Dischers obtained affordable housing, the Dischers are not restricted to a selling or renting price for their single family home. However, they are restricted as to the income of prospective buyer(s) or renter(s), i.e., the prospective buyer(s) or renter(s) must meet the income guidelines set forth in the Monroe County Code. Prior to and during the entire process involving the ROGO program, Mr. Discher was disabled. A copy of a letter written by the Dischers in September 1997, in which Mr. Discher indicated his disability, was forwarded to Monroe County. After the completion of the Dischers’ home, Mr. Discher’s health deteriorated. At hearing, Mr. Discher admitted that, prior to filing the discriminatory fair housing complaint, he had never mentioned his disability to Monroe County in relation to having the affordable housing deed restrictions removed. Moreover, at hearing, he admitted that Monroe County had not discriminated against him on the basis of his disability by refusing to remove the affordable housing deed restrictions. Mr. Discher’s physicians recommended to him that he move away from the Keys to improve his health. Furthermore, eventually, Mr. Discher needed to be closer to the locations where he was receiving his medical treatments, which were outside of the Keys. The Dischers finally moved away from the Keys to be closer to the locations where Mr. Discher was receiving his medical treatments. They rented their single-family home in Monroe County. Mrs. Discher was forced to return to work. If the Dischers are released from the affordable housing deed restrictions or if the affordable housing deed restrictions are removed, the Dischers would sell the single-family home. A Senior Planner with DCA, Ada Mayte Santamaria, testified at hearing as an expert in community planning. Ms. Santamaria testified that neither Monroe County’s Comprehensive Plan nor its Land Development Regulations allow for the removal of the Dischers’ affordable housing deed restrictions; and that, if the affordable housing deed restrictions were released, DCA would probably issue a notice of violation against Monroe County for not properly implementing its Comprehensive Plan and Land Development Regulations and probably recommend to the Administration Commission that Monroe County’s allocations for the year following such release be reduced because of the failure of Monroe County to enforce and implement its Comprehensive Plan and Land Development Regulations. Ms. Santamaria further testified that Monroe County is allowed to submit two proposed comprehensive plan amendments per year; and that, because of the process involved in proposed amendments, including review by DCA, a proposed amendment by Monroe County to release affordable housing deed restrictions would take a minimum of six months and could take up to a year and a half to complete the process. At a Monroe County Commission meeting held on January 17, 2007, the Dischers requested to be released from their affordable housing deed restrictions based on hardship due to Mr. Discher’s medical conditions. At the meeting, copy of his medical documents, identifying his disability, was distributed to the Commissioners. The Commissioners denied the Dischers’ request. However, the Commissioners also decided that they wanted to address extreme hardship situations and unanimously voted to direct its staff to begin work on an “exit strategy” for affordable housing deed restrictions on the basis of extreme hardship situations. The Commission staff represented at the meeting that such a process would take at least three months and indicated that Monroe County’s Comprehensive Plan may have to be amended in conjunction with what the Commission wanted. At the time of the final hearing in the instant matter, approximately a year and a half later, no “exit strategy” had been brought before the Commission. No evidence was presented that the Commission had decided that it no longer wanted to develop an “exit strategy.” No evidence was presented as to why the process had not begun. The Dischers are convinced that Monroe County wants to take their property. The evidence is insufficient to demonstrate that Monroe County wants to take the Dischers’ property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Monroe County Commissioners did not commit a discriminating housing practice against John and Ruth Discher in violation of the Fair Housing Act by failing to release or remove the affordable housing deed restrictions. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2008.
The Issue The issues in this case are whether the Florida Housing Finance Corporation (“Florida Housing”) employed an unadopted rule when it used rounding on a competing application to place Petitioner’s application for Low Income Housing Tax Credits (“HC” or “Tax Credits”) in the 2004 Universal Application Cycle in the “B” leveraging tie-breaker group, and if so, whether Florida Housing complied with the requirements of Section 120.57(1)(e), Florida Statutes, when it employed rounding.
Findings Of Fact Petitioner is a Florida limited partnership. Reliance- Andrews, LLC, the sole general partner of Petitioner, is a non- profit entity under Florida Administrative Code Rule 67- 48.002(81). Petitioner’s address is 516 Northeast 13th Street, Fort Lauderdale, Florida 33304. The affected agency is the Florida Housing Finance Corporation (“Florida Housing”), 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32301-1329. Florida Housing is a public corporation organized under Part V, Chapter 420, Florida Statutes, to provide and promote the public welfare by administering the governmental function of financing and refinancing houses and related facilities in Florida in order to provide decent, safe, and sanitary housing to persons and families of low, moderate, and middle income. Petitioner filed an application, number 2004-102C, with Florida Housing for tax credits under the Housing Credit (“HC”) program for a proposed development in Broward County, Florida, known as Flagler Point. Under the HC program, successful applicants receive a dollar-for-dollar reduction in federal tax liability in exchange for the development of units to be occupied by low-income households. Florida Housing is designated as the housing credit agency for the State of Florida and is authorized to establish procedures necessary for the allocation of Tax Credits under Section 420.5099, Florida Statutes. Florida Housing scores and ranks applications for the HC program pursuant to the Universal Application Package Instructions ("Application Instructions") which are adopted as rules pursuant to Florida Administrative Code Rule 67- 48.002(111). The applicants for housing credits are sophisticated, and the application process is highly competitive. Most applicants achieve a perfect score on applications, so Florida Housing has created a series of “tiebreakers” to determine which projects receive allocations of tax credits. These include “leveraging,” (the amount of requested funding over the number of set-aside units), proximity to services, proximity of other Florida Housing developments, and, finally, a lottery. Petitioner and numerous other applicants for the HC program received the maximum score on the application, 66 points. Florida Housing then ranked the applications that received perfect scores to determine priority for funding according to certain Ranking and Selection Criteria as outlined in the Application Instructions. Part of the Ranking Selection Criteria process includes "tie-breakers" as enumerated in the Application Instructions. The first of the applicable tie-breakers separates the applications into groups A and B based upon a formula used by Florida Housing to determine funding request per set-aside unit. Group A is comprised of the 80 percent of applications with the lowest amount of total funding request per set-aside unit. The 20 percent of applications with the highest per unit request amount are placed in Group B. Applications in Group A receive preference over Group B. The A/B leveraging tiebreaker alone does not determine who gets funded. Some leveraging Group B projects are funded. The total number of set-aside units for each Application is computed by multiplying the total number of units within the proposed development by the highest total set- aside percentage the applicant committed to in the Set-Aside Commitment section of the Application. Florida Housing rounded up the total set-aside units on application 2004-084C from 182.7 (the product of the total number of units (203) and the highest total set aside percentage (90%)) to 183. Rounding this figure produces a lower per unit funding request amount for application 2004-084C ($51,857.95 instead of $51,943.10). Petitioner's per unit funding request is $51,882.28, which would be lower than application number 2004-084C if the total set-aside unit figure was not rounded. Petitioner's application was placed in Group B instead of Group A. On May 7, 2004, Petitioner filed a Notice of Possible Scoring Error ("NOPSE") requesting correction of the set-aside unit rounding, which Petitioner contended was in error. Respondent did not adopt Petitioner’s NOPSE, and on May 28, 2004, issued its scoring summary for application number 2004- 084C indicating a per unit Florida Housing funding request of $51,857.95. On July 9, 2004, Respondent issued the 2004 Final Score Corporation Funding Per Set-Aside for A and B Groups indicating that Petitioner had been placed in Leveraging Group B. Florida Housing has used rounding to determine the number of set-aside units in the same manner each year from the 2002 Universal Application Cycle through the 2004 Universal Application Cycle. Applicants are encouraged to, and more often than not do, set aside 100 percent of the units for low or very low income tenants. As most applicants for Tax Credits do just that, rounding is not often an issue. The number of set-aside units represents a commitment the developer makes in return for funding, and the number in the application is the number of set aside units the developer must provide, and is used to determine whether the development is in compliance with its commitment to Florida Housing, and to the Internal Revenue Service. As a practical matter, the number of set-aside units cannot be a fraction of a unit. Rounding up to the next whole number is the only option, because if the unit number is rounded down, the percentage of set-aside units would be below the set- aside commitment, the IRS would deem that the property had not met its set-aside commitment, and the investors would not receive their tax credits. Florida Housing revises its Universal Cycle Application and Instructions through the rulemaking process each year, in response to stakeholder input, in reaction to litigation, and to clarify issues which arise during the year. During the rulemaking process, there is considerable dialogue between developers and Florida Housing. Public hearings (rule development workshops) are noticed in the Florida Administrative Weekly, with the agendas being posted on Florida Housing’s website and also made available for distribution at the public hearings. The affordable housing development community is small and its members pay close attention to Florida Housing’s application process, which is intensely competitive. Petitioner is an experienced developer, and has previously received funding from Florida Housing. Petitioner is a member of a coalition of affordable housing developers, which meets before the rule development workshops to discuss the agenda, and to attempt to reach consensus on agenda issues. Petitioner is part of the development community, which normally participates in the rule development process, and Petitioner has been an active participant in the 2005 rule development process. An active member of the affordable housing developer’s coalition, and a veteran participant in the Florida Housing application and funding process, would have been aware of Florida Housing’s use of rounding to determine the number of set-aside units to which each applicant committed. The rounding issue that is at the heart of this proceeding has been addressed by Florida Housing in its proposed rule amendments to Florida Administrative Code Rule 67-48.002 for the 2005 Universal Application Cycle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the petition and denying all relief sought by Petitioner. DONE AND ENTERED this 18th day of November, 2004, 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 18th day of November, 2004.
The Issue Whether Petitioners maintained a separate household within a multiple occupant displacement dwelling for purposes of calculating the appropriate amount of their relocation assistance benefits.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Anthony T. Black and Melissa Owen, formerly resided in a mobile home at 5315 Drew Street, Brooksville, Florida. Respondent, Department of Transportation (DOT), recently began acquiring property for the construction of the Suncoast Parkway, a non-federal-aid, limited access toll facility which will run forty miles from just north of Tampa, Florida, to Brooksville, Florida. Among other properties, DOT has acquired parcel number 144.001T on which Petitioners once resided, and they have been forced to relocate to another residence. This controversy concerns a determination as to the appropriate amount of relocation benefits to which Petitioners are entitled. The amount of benefits due a displaced person is determined by a federally-mandated formula codified in 49 Code of Federal Regulations, Part 24, and adopted by DOT. The regulations provide that if multiple persons live in the same dwelling, and those persons can establish that they maintained separate households within a single-family dwelling, they are entitled to greater benefits than if all persons are considered a single household. Federal regulations contain no definitive guidelines on this issue, but rather they leave that determination to the discretion of the state agency administering the program. In this unusual case, Petitioners contend that they were a "separate household" within a single-family dwelling which was jointly shared with another person. DOT contends, however, that Petitioners are entitled only to a prorata share of a single payment to all occupants of the dwelling. The seven-room mobile home at 5315 Drew Street was owned by Margie Black, the mother of Anthony T. Black. Beginning in January 1995, she allowed her son, his girlfriend, Melissa Owen, and a friend of her son, Daniel L. Bell, to live in the mobile home rent-free, but the tenants were required to pay for taxes, utilities, and the upkeep of the premises. At different points in time, other persons also shared the home, but they vacated the premises before this dispute arose. There was no written agreement between the three tenants on how to allocate living space or pay expenses, but they informally agreed that they would share in common expenses, such as utilties and maintenance repairs. Bell lived in one of the three bedrooms in the mobile home, while Petitioners shared another. In order to qualify for assistance, a tenant must have occupied the premises for at least 90 days before the displacement occurred, a requirement easily met by Petitioners. Also, replacement housing assistance is restricted to an amount not to exceed $5,250.00 per household. This cap may be exceeded when a person qualifies for a super rent supplement in order to place the displaced person in "last resort housing." In this case, Petitioners qualifed for such a supplement because there were no comparable mobile homes in the area. In calculating the amount of the super rent supplement, DOT is required to ascertain the amount of rent paid by the displaced persons, their income, and their monthly utility bills. To assist it in gathering this information, DOT utilizes a private consulting firm, Universal Field Services (UFS), whose representatives meet with the displaced persons. Although the parties have disagreed as to the degree of cooperation UFS and DOT received from Petitioners in verifying their income, utility bills, and rent, they have ultimately agreed that, if the three tenants are treated as multiple occupants of one displacement dwelling, then based on Petitioners' annual income and utility payments in 1995 and 1996, Petitioners are entitled to $9,027.08 in total relocation assistance payments, including the super rent supplement. This amount represents two-thirds of the total payment of $13,541.22, which is the product of a federally-mandated formula. Bell, the other tenant, received the remaining one-third of the payment. The parties also agree that if only a single household existed, DOT's calculation is correct. Petitioners contend, however, that they maintained a separate household from the third tenant, and thus they are entitled to a greater amount of assistance. Although there are no written state guidelines on how to make this determination, as a matter of policy, DOT requires that the tenants provide written documentation and other proof to establish that the tenants maintained separate households within a single residence. While it has never been confronted with a "separate household" claim before, to establish a good claim, DOT suggested that, at a minimum, the claimants would need to have a written lease by each of the tenants reflecting the rental of certain space for a specific amount of rent each week or month, and perhaps written rules regarding the use of the space that tenants must comply with. In addition, the dwelling would have to have separate and exclusive living areas for each tenant, such as separate entrances, kitchens or efficiency areas, that would not cross over into any common areas. Examples of such dwellings would be a boarding room, hotel, adult congregate living facility, duplex, or mother-in-law suite. In this case, there was no written lease agreement by any of the tenants concerning each tenant's respective space since all persons lived rent-free on the premises. There was also no formal agreement or rules governing the use of common living areas by the tenants. While it is true that Bell had a separate entrance to his bedroom, he was allowed to keep food in the same refrigerator used by Petitioners, he occasionally cooked or ate meals on the premises, and he was not prohibited from using other common areas of the home. Given these circumstances, and the lack of any documentation to the contrary, it must be found that all persons occupying the dwelling shared a single- family dwelling and that a separate household did not exist. Petitioners contended that the process was flawed because UFS personnel made only one visit to the premises before making a recommendation in the case. Petitioners were, however, allowed to submit further documentation after that visit to substantiate their claim, and at least one other UFS representative visited the premises on a later date. In addition, a DOT supervisor visited the home and made the final agency decision. Petitioners also suggested that the allocated benefits are insufficient to cover their new rent. But DOT has no discretion except to follow the federal formula in allocating benefits. Petitioners further asserted that the "comparable" property found by DOT to replace the rent-free mobile home was too expensive. Unfortunately, however, this concern is not an issue in this proceeding. Finally, Petitioners pointed out that other displaced persons have experienced difficulty in dealing with UFS personnel. Even if this were true, it would have no bearing on the issues in this case since all UFS determinations are preliminary in nature and subject to DOT review and an evidentiary hearing if requested by the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioners' request for greater relocation benefits, and that it reaffirm the amount previously awarded. DONE AND ENTERED this 16th day of April, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this day 16th of April, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Anthony Black Melissa Owen Post Office Box 10868 Brooksville, Florida 34603 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether Florida Housing Finance Corporation’s (“Florida Housing”) review and scoring of the applications responding to RFA 2020-104 SAIL Funding for Farm Worker and Commercial Fishing Worker Housing (“the RFA”) were clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes (2020).2 Its purpose is to promote public welfare by administering the financing of affordable housing in Florida. Florida Housing is authorized by section 420.507(48), to allocate federal low income housing tax credits, State Apartment Incentive Loans (“SAIL”), and other funding by means of competitive solicitations. Florida Administrative Code Chapter 67-60 provides that Florida Housing will allocate its competitive funding through the bid protest provisions of section 120.57(3), Florida Statutes. Funding is available through a competitive application process commenced by the issuance of a Request for Applications, which is equivalent to a “request for proposal” as described in rule 67-60.009(4). 1 Pueblo Bonito’s Exhibit 1 is the deposition of Nancy Muller of Florida Housing. 2 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. Through the RFA, Florida Housing seeks to award up to an estimated total of $5,131,050 in SAIL Financing for the construction or rehabilitation of affordable housing developments for farm workers and commercial fishing workers. The RFA was issued on April 15, 2020, and a modified version was issued on April 24, 2020. The application deadline was May 19, 2020. La Estancia and Pueblo Bonito submitted applications proposing the rehabilitation of existing farm worker housing in Hillsborough and Lee Counties, respectively. Both applications were deemed eligible for funding. A review committee was appointed to review the applications and make recommendations to Florida Housing’s Board of Directors (“the Board”). The scoring of the applications was based on a 100-point scale. Applicants submitting a Principal Disclosure Form that had been stamped “pre-approved” received five points. The remaining points were awarded based on the subjective scoring of narrative sections within the applications, and the maximum points were available as follows: Current and Future Need for Farm Worker or Commercial Fishing Worker Housing in the Area (“Need”): 15 points Experience Operating and managing Farm Worker or Commercial Fishing Worker Housing (“Experience”): 20 points Outreach, Marketing, and Referral (“Outreach”): 30 points Resident Access to Onsite and Offsite Programs, Services, and Resources (“Access”): 30 points. With regard to Need, the 2019 Rental Market Study prepared for Florida Housing by the Shimberg Center for Housing Studies at the University of Florida determined that 14.2 percent of Florida’s farm workers are employed in Hillsborough County and 2.55 percent are employed in Lee County. Pueblo Bonito noted in its application that its development is only three miles from the Collier County line, and 5.63 percent of the state’s farm workers are employed in Collier County. La Estancia did not reference Manatee County in its application but noted in its request for a formal administrative hearing that its development is a similar distance from Manatee County, and 6.88 percent of the state’s farm workers are employed there. The Shimberg study also calculated need for farm worker housing type by county with 3,813 multifamily units needed in Hillsborough County, 741 multifamily units needed in Lee County, 1,546 multifamily units needed in Collier County, and 2,337 multifamily units needed in Manatee County. For some RFAs, Florida Housing imposes additional conditions on applications for developments located in Limited Development Areas (“LDAs”). The main purpose of an LDA is to protect Florida Housing’s funded developments in a particular area. An LDA is generally an area that Florida Housing has placed a boundary around that limits different types of new development. Florida Housing annually publishes an LDA Chart on its website listing areas or counties that may apply in the RFA cycle for the coming year. The mere existence of an LDA does not prohibit development within the LDA. This is especially true for rehabilitation projects like those proposed in the instant case. An RFA must specifically reference the LDA in order for the LDA to apply. The first draft of the 2020 LDA Chart was not published by Florida Housing until May 29, 2020, and thus the modified RFA issued on April 24, 2020, included no reference to the LDA Chart. Nor did the RFA include any specific provisions regarding LDAs. The first draft of the 2020 LDA Chart and each subsequent draft or amendment included Lee County for farm worker housing. Florida Housing indicated that the basis for Lee County’s LDA designation was a downward trend in occupancy rates. The occupancy rate for the housing stock in Lee County for the period of August 2019 through January 2020 was 91.67 percent as compared to 95.83 percent for the period of September 2019 through February 2020. Based on this trend, Lee County was proposed as an LDA for the 2020/2021 Florida Housing RFA funding cycle, which became effective July 10, 2020. The following table reflects how the review committee awarded points to the two applicants: Pueblo Bonito La Estancia Principal Disclosure Form (5) 5 5 “Need” (15) 12 12 “Experience” (20) 16 17 “Outreach” (30) 27 27 “Access” (30) 25 24 Total (100) 85 85 In the event of a tie, Florida Housing designed the RFA and the associated rules to incorporate a series of “tie-breakers.” The tiebreakers, in the order of applicability, were: By points received for the Need criterion, with more points preferred. Both applicants received 12 points for need. By SAIL Request Amount Per Unit, with lower SAIL funds per unit preferred. Both applicants requested $50,000 in SAIL funds per unit. By Total SAIL Request Amount as a percentage of Total Development Cost (“TDC”), with applicants whose SAIL request amount is 90 percent or less of TDC preferred. Both applicants’ Total SAIL Request Amount was 90 percent or less of their respective TDCs. By a Florida Job Creation Preference. Both applicants satisfied this preference. By lottery numbers randomly assigned to the applications when they were submitted to Florida Housing. Pueblo Bonito had lottery number 1, and La Estancia had lottery number 2. Nancy Muller was the Review Committee member assigned to review and score the “Need” narrative section of the Applications responding to the RFA. Ms. Muller is currently a Policy Specialist with Florida Housing. Prior to her current position, Ms. Muller was, for many years, the Director of Policy and Special Programs. In reviewing and scoring the applications submitted to Florida Housing in the instant case, Ms. Muller indicated that she first read the narrative question of the RFA and broke the question down into four separate component parts. The components included: (a) current and future need for farm workers over the next 10 to 15 years; (b) location and proximity of farms and other types of farm work that typically use farm worker labor; (c) information concerning the types of crops, seasons, etc. and the demand for specific farm worker housing; and (d) whether waivers have been requested or granted for either the proposed Development or Developments in the area. Next, Ms. Muller reviewed each application against those component parts and ultimately awarded La Estancia and Pueblo Bonito 12 points each for their respective response to the need section. Marisa Button, Florida Housing’s corporate representative, testified that just because the documented need for farm worker housing is higher in Hillsborough County than it is in Lee County does not mean that La Estancia should have received a higher score in the narrative section than Pueblo Bonito because the RFA “sets forth a much more nuanced request for the description of the current and future needs in the area for the proposed development. So it’s not limited to just a flat-out look at the county under the Shimberg study. If [that] were the case, we wouldn’t need to have a narrative scoring component of the RFA.” Ms. Muller and Ms. Button persuasively testified that numeric need was just one of the components an applicant needed to address in responding to the needs question. In fact, Ms. Muller indicated she recognized the greater numeric need for farm worker housing in Hillsborough County, and the greater need factored into her consideration of that particular component. However, Ms. Muller pointed out that because both proposed projects were rehabilitation of existing units, neither was actually addressing nor reducing the numeric need for new units. Ms. Muller acknowledged that La Estancia’s response at this component of the need analysis was “stronger” because of the greater need. Nevertheless, Ms. Muller indicated that while La Estancia demonstrated a greater numeric need, Pueblo Bonito’s response was “stronger” in other areas of the overall need response. Specifically, Pueblo Bonito provided a stronger response as to the location and proximity of farms and other types of farm work that use farm worker labor. Ms. Muller considered and evaluated the strengths and weaknesses of each response and no one component was weighted greater than any other component. Based on the scoring and tie-breakers, the review committee recommended Pueblo Bonito for funding. However, the Board’s deliberations were not to be limited to the review committee’s recommendation or information provided by the review committee. With regard to the Board’s funding selection, the RFA stated that: [t]he Board may use the Applications, the Committee’s scoring, any other information or recommendation provided by the Committee or staff, and any other information the Board deems relevant in its selection of Applicants to whom to award funding. The Board met on July 17, 2020, to consider the review committee’s recommendation and preliminarily selected Pueblo Bonito for funding, subject to satisfactory completion of the credit underwriting process.3 Florida 3 The RFA also employed a “Funding Test” to be used in the selection of applications for funding. The “Funding Test” required that the amount of unawarded SAIL funding must be enough to fully fund that applicant’s SAIL request amount. After the selection of Pueblo Bonito for funding, there was only $1,131,050 in SAIL funding remaining, and that was not enough to fund La Estancia’s $4,200,000 SAIL request. Housing staff did not inform the Board that Lee County had been designated as an LDA for farm worker housing on the 2020 LDA Chart. Also, there is no evidence that any Board member knew of Lee County’s LDA status or of declining farm worker housing occupancy when they voted to select Pueblo Bonito for funding. La Estancia could not have presented the information regarding Lee County’s LDA status to the Board. The RFA contains a “noninterference” clause prohibiting an applicant or its representative from contacting Board members or Florida Housing’s staff “concerning their own or any other Applicant’s Application” during the period beginning with the application deadline and continuing until the Board “renders a final decision on the RFA.” If an applicant makes such contact in an attempt to influence the selection process, then that applicant’s application is disqualified. As a result, La Estancia was unable to correct the review committee’s omission of information regarding declining farm worker housing occupancy levels in Lee County. Ms. Button testified that it was Florida Housing’s practice not to apply new standards or requirements that changed after the application deadline when scoring applications. She stated that Florida Housing scores “based on the terms of the RFA and we wouldn’t retroactively apply something to those applications after they’ve been submitted.” She specifically testified that if a county is designated as an LDA after the application deadline, Florida Housing would not apply that designation to the application. She also testified that one of the reasons for not considering new requirements after the application deadline is that applicants would not be allowed to amend their applications to address these new requirements. Even if the July 10 LDA designation had applied to this RFA, there is no evidence that it would have changed Florida Housing’s scoring decision. The primary purpose for the LDA designation is to discourage new construction that could harm existing developments. In this case, both applicants are proposing to rehabilitate existing developments, and the evidence shows that Florida Housing would not prohibit the funding of a rehabilitation project even if it were in an LDA. Florida Housing has funded the rehabilitation of farm worker developments located in LDAs since 2013 or 2014. In RFA 2017-104, the only previous farm worker RFA in evidence, the LDA designation did not even apply to rehabilitation projects that were in Florida Housing’s portfolio. Ms. Muller testified that because the two applicants in this case both involved rehabilitation of developments in Florida Housing’s portfolio, the LDA designation would have been “moot,” unless the physical occupancy rates were dire, which they were not. She also testified that “preservation of existing developments is of much less, if any, importance related to LDA.” Ms. Button testified that she did not specifically inform the Board of the LDA designation “because it’s not relevant to the terms for which the applications were scored for this RFA, it was not a part of the RFA terms, and the applicants did not, you know, apply with that designation put in place. It’s for a future prospective funding cycle and it was not effective until after the application due date.” The greater weight of the evidence indicates that Florida Housing’s review and scoring of the applications responding to the RFA were not clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a Final Order dismissing La Estancia, Ltd.’s formal written protest and awarding funding to Partnership in Housing, Inc. DONE AND ENTERED this 1st day of October, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 the Clerk of the Division of Administrative Hearings this 1st day of October, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed)
The Issue Whether Respondent, Department of Transportation, properly denied Petitioners, Sadrudin and Nury Premji, a replacement housing payment, pursuant to Chapter 14-66, Florida Administrative Code, and 49 Code of Federal Regulations, Part 24.
Findings Of Fact Respondent, Department of Transportation, is the state agency which constructs public roadways in the State of Florida. When Respondent acquires land for the construction of federally- assisted roadway projects and takes residential property, Respondent may be required to provide a replacement housing allowance as a part of relocation assistance dictated by state and federal law. Petitioners, Sadrudin and Nury Premji, were the owners of a motel known as the Garden Motor Lodge located in Polk County, Florida, which was condemned in order to construct a federally-assisted road project. The condemnation action resulted in a Stipulated Final Judgement. The Stipulated Final Judgement as to Defendant Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, entered in Polk County Circuit Court civil action no.: GC-G-98-109, State of Florida, Department of Transportation vs. Karim Motels, Inc., d/b/a Garden Lodge Motel, et al., states, in part: ORDERED AND ADJUDGED that the Defendant, Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, does have and recover of and from the Petitioner the sum of one million four hundred ninety-one thousand and no/100 dollars ($1,491,000.00) in full settlement of all claims whatsoever, including statutory interest, but excluding attorney's fees, cost and expenses; and it is further ORDERED AND ADJUDGED that this settlement shall be without prejudice to the right of Defendant to claim any applicable benefits to which the Defendant may be entitled under the Petitioner's relocation assistance procedures, as governed by the Uniform Relocation Assistance Act. All relocation claims shall remain separate and apart from this eminent domain action. Defendant shall cooperate with employees and agents of Petitioner by allowing them immediate reasonable access to the property, during business hours, and to assist Petitioner in conducting an inventory of fixtures and personal property (emphasis added). Petitioners had occupied a "manager's residential apartment" in the motel subject to condemnation and met the criteria under Florida Administrative Code Rule 14-66.09 for "carve out" consideration to determine the value of the residential portion relative to the entire taking and relocation assistance eligibility, if appropriate. In December 1997, Respondent's right-of-way specialist, W.P. Kozsey, determined that Petitioners' manager's residential apartment occupied 1,803 square feet of a total of 16,075 of improvements and represented 11 percent of the total improvements. Respondent's initial appraisal for the motel was $740,000. Trade fixtures (value at $34,700) were excluded from the value of the land and improvements. Multiplying the result, $705,300 by 11 percent (residential portion), it was determined that the value of the portion of the motel used by Petitioners for residential purposes was $77,583.00. Respondent determined, through comparable appraisals, that the cost of "decent, safe and sanitary, fundamentally equivalent" "housing in the same geographic area" was $89,000. As a result, Petitioners were entitled to $12,317.00 in "purchase additive payment" (replacement housing payment). The procedure used by Respondent for "carving out" the residential portion of a joint residential/business use follows the methodology set forth in Rule 14.66.009(2)(d) and (e), Florida Administrative Code, and 49 Code of Federal Regulations Sections 24.2, 24.401, and 24.403. Petitioners refused to accept the $12,317.00 in purchase additive payments (replacement housing payment) and proceeded with litigation which resulted in a mediated settlement and the Stipulated Fund Judgement wherein they reserved "the rights to claim any applicable benefits to which the Defendant [Petitioners] may be entitled under Petitioner's [Respondent] relocation assistance procedures " The Stipulated Final Judgement did not allocate value to any elements of the total settlement award and, as a result, Respondent recalculated the residential portion of the total property value by multiplying 11 percent of $1,491,000.00 which gave the residential portion a value of $164,010.00. The new residential value ($164,010.00) exceeded the cost of "decent, safe and sanitary, fundamentally equivalent" housing of $89,000. As a result, the purchase addition payment (replacement housing payment) was reduced to $0.00. Respondent consistently applied this methodology of valuation to other motels with residential "carve outs" and reassessment of purchase additive payments after conclusion of litigation. Petitioners' expert witness, Donald Trask, testified to a valuation basis which, although it provides an enhanced valuation, does not appear to contemplate the methodology set forth in the Florida Administrative Code or the Code of Federal Regulations regarding assessment of the replacement housing cost and determining entitlement to purchase additive payments.
Recommendation It is hereby RECOMMENDED that the Department of Transportation enter its Final Order denying the claim of Sadrudin and Nury Premji for relocation housing payment and dismissing their claim for same. DONE AND ENTERED this 11th day of December, 2000, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK 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 11th day of December, 2000. COPIES FURNISHED: Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 Jon E. Tileston, Esquire Moran, Tileston and Simon, P.A. 4012 Gunn Highway, Suite 175 Tampa, Florida 33624 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
