The Issue The issues considered at both the grievance level and at Administrative Hearing were whether the Petitioner is entitled by contract or law to a secure source of salary support and to annual department support in the amount of $25,000.00 for research conducted by him at the University of South Florida.
Findings Of Fact Petitioner received his Ph.D. from the University of Florida sometime after 1970, specializing in the role of the brain in fighting disease. In December, 1979 Respondent began employment with George Washington University, (GWU), in Washington, D.C. as an assistant professor in the Department of Biochemistry. Approximately 85 to 90 percent of his time was spent in research with some teaching additional. His research was sponsored by pharmaceutical companies both in the United States and Japan and by the National Institutes of Health, (NIH), and the Office of Naval Research, (ONR). He became an associate professor at GWU in 1985, and prior to that time had had no research ties to the University of South Florida, (USF). The initial contact regarding the potential for Petitioner to bring his research program to the USF was with Dr. Herman Friedman, Chairman of the USF College of Medicine's Department of Microbiology and Immunology who was serving with Petitioner on a national commission. According to Petitioner, Dr. Friedman invited Petitioner to come to the USF to present a seminar. During this period, Petitioner claims, Dr. Friedman asked him if he would relocate to USF. At that time, Petitioner declined and expressed no interest in leaving GWU. However, he claims, Dr. Friedman invited him back again in late 1986. Petitioner came to Tampa in either January or February, 1987, and was seduced by the warm climate. On one of these visits, Dr. Friedman, whose department was without resources to support any additional programs, introduced Petitioner to Dr. Reading, the Chairman of the Department of Psychiatry and Behavioral Sciences at USF and to several other members of the faculty of the College of Medicine. After the initial contact with Dr. Reading, the majority of subsequent contacts were with him and Petitioner ultimately made a presentation to the Department of Psychiatry. Dr. Friedman, on the other hand, claims he first met Petitioner wile on a grant site visit at the University of Miami, at which, during general discussions, Petitioner indicated he had heard of a budding project at USF and wanted to know if there were any openings in Friedman's department or in the Department of Psychiatry. Friedman had none. He recalls that Petitioner's approach was one of interest in a move to Florida because he liked the climate; he had family nearby; and he had gone to school in Florida and was partial to it. As a result of Petitioner's interest, Friedman contacted Dr. Reading on Petitioner's behalf and when Reading indicated an interest in Petitioner, called Petitioner on Reading's behalf to see if Petitioner would come down for a visit. Petitioner was very interested in doing so when Friedman called, he relates. As a result of the prior contacts and visits Petitioner made to USF, on April 20, 1987, Dr. Reading contacted Petitioner with an offer in writing which formalized their prior discussions. These discussions, according to Petitioner, pertained to the security of the position, (would it be totally dependent on grants or would it be backed by state funds), space, and resources available through sources other than the NIH. These issues were important to Petitioner because he was already in a grant dependent position at GWU and could see no reason to leave for another "soft" spot. Further, his career and reputation are dependent upon his research and writing and he could not afford to be in a position without reasonable opportunities for them to continue. In this April 20, 1987 letter offering Petitioner a position at USF, Dr. Reading clearly advised Dr. Hall that at the time, he was completely unable to offer a tenured line, but would be willing and able to place him in such a position after three yearly renewable contracts, Petitioner could move onto a tenure earning track. Most specifically, relating to funds, Dr. Reading noted: I will do my best to provide whatever additional support you need to get your program under way, but I need to know more specifically what this would amount to before I can make a definite commitment. Petitioner contends this language referred to the $25,000.00 per year to support his research program and the possibility of a large sum of money for setup costs including lab items and refrigerators. It would appear, however, that Petitioner reads more into Dr. Reading's language than is there. No promise of more than effort to support financially is indicated. On August 12, 1987, Petitioner wrote to Dr. Reading to accept the position offered and to verify his understanding of the items they had discussed when Petitioner was in Tampa. Petitioner had not made any commitment to move prior to that time even though he had been in continuing contact with both Reading and Friedman. After dispatching his acceptance letter, Petitioner spoke with Dr. Altman at the National Institute of Mental Health, (NIMH), concerning the potential transfer of his grant from GWU to USF. When told this could not be done, Petitioner agreed to re-apply when situated at USF. This NIMH grant constituted approximately 80 percent of Petitioner's salary and on January 21, 1988 he submitted the grant application. To properly submit the application, it was necessary for USF to participate in the process, which it did. At this point, Petitioner had committed to come to USF but had not actually made the move. This grant application was for a continuation of work started by Petitioner at GWU. In Section 2, of the background information submitted as a part of the grant application, the university, (Department), "... has made a commitment to develop a secure source of salary support for [Petitioner] by the time his RCDA terminates." This is, Petitioner claims, consistent with the agreement he had with USF, He understood that while all tenure positions were then full, he would be put on a tenure accruing line. The reference to $25,000.00 and secure salary source is, to him, also correct. He asserts Dr. Reading had indicated the funds, if needed, would come from his UMSA funds. (UMSA, not otherwise defined, is, in reality, a non-appropriated source of funds available for untilization within the medeical school.) Petitioner claims Dr. Reading also indicated he would work to set up a charitable fund to support Petitioner and that 20 percent of another fund source would be devoted to his work. Dr. Reading, however, categorically denies that he at any time promised Petitioner $25,000.00 in USF funds or a secure salary support system without condition, either in person, in writing, or by phone. He contends that while he supported Petitioner's NIMH and National Oceanographic and Space Administration grant applications, the above quoted comment in the January 1988 application was incorrect and got through by error. It was corrected in a subsequent grant renewal application. Petitioner did not receive a pay check from USF until September, 1988. As of July 1, 1988, he still had not received a written contract from the university. However, in August, 1988, Dr. Hall received a letter from Dr. Nicolosi, USF's Executive Vice President for Health Sciences, offering him a position of Visiting Associate Professor, effective July 1, 1988, and carrying an annual salary of $10,000.00 and a FTE of 20 percent derived from one grant, along with an additional salary of $40,000.00 and a FTE of 80 percent, derived from another grant. The letter stipulated clearly that renewals of this appointment would be contingent upon renewals of the grants from which the salary was to be paid. The letter also noted clearly that positions funded trough grant sources, such as this one, are non-tenure earning. In response, Petitioner wrote a letter accepting the offer. At this point, no written contract had been signed between Petitioner and USF. None of the contracts ultimately signed between Petitioner and USF made any reference to support for Petitioner's research program. Careful review of those documents indicates their specifics dealt with length of appointment, salary, tenure status and FTE percentage. Petitioner claims, however, that at no time did he understand the contracts, executed after the fact, contained all facets of his agreement with USF and the issues of space, equipment and grant shortfalls were to be negotiated independently with the department chairman. The $25,000.00 he claims he was to receive for those items was, he believed, not included in his compensation but in addition to his compensation. In late August, 1989, Petitioner received a letter from Dr. Bunch, then the Dean of the College of Medicine, advising him he was being appointed to a tenure earning position with an FTE of 20 percent. By this time, he was already at USF and running experiments on programs he had initiated in January, 1989. When Petitioner initially started at USF he had no problems with funding. The problems did not start until 1989 when, having submitted an expense item to be paid from the $25,000.00 research funds he was expecting, he was told it was not available. When, in an interview with Dr. Reading, he inquired if the university intended to honor its prior promises, he was told there had been a misunderstanding; that there never had been any intention to guarantee the $25,000.00 research portion for more than one year. After that, it was touch and go. This position was confirmed in a December 7, 1989 budget memo to Petitioner from Dr. Reading. In this memo, Dr. Reading refers to a letter from Petitioner in which Petitioner states the $25,000.00 research money was allegedly promised. Reading then asserts he orally corrected Petitioner's misunderstanding of this point, but could not find any record of the conversation. To prevent any further misunderstanding, however, Reading thereafter suggested they adopt as the Department's position the terms accepted by Petitioner in his August 12, 1988 letter which dealt specifically and exclusively with salary, tenure, and FTE. In addition, however, Reading added an offer to extend to Petitioner: ... a $25,000.00 line of credit (interest free) for the first two years of your operation here in order to provide needed start-up funds while awaiting grant support. This grant was not the only one Dr. Hall was seeking. He had several others in the works at the time and all were granted. They all required USF input and all were administered by the Department of Psychiatry. The school's input in another grant application submitted by Petitioner in April, 1990 referred to its commitment to fund $25,000.00 annually for Petitioner in addition to other expenses depending upon fund availability. A similar inclusion appeared in most, if not all, grant applications until June, 1992 when the $25,000.00 commitment ended. Even then, Petitioner claims, he had no indication there was a problem. However, in February, 1992 Dr. Reading informed Petitioner by letter that non-renewal of his faculty contract would be one of the expenditure reduction measures utilized to achieve a reduction in expenses mandated by the Dean. When Petitioner received this letter he consulted with the University's Vice President for Research, Dr. Newcomb, to see what options were available to him. The issue was ultimately resolved, however, when Dr. Reading modified his reduction proposal to eliminate the salary reduction, but not the cut of the $25,000.00 subsidy. It must be noted here that at no time was any indication given that the reduction was related to a dissatisfaction with Petitioner's work. It is found that there was no relationship. Petitioner's work was not in issue and was completely satisfactory. In discussions with Dr. Reading at that time Petitioner was advised the school could make no funding commitment beyond the first year but that he should submit the next year's grant applications anyway. At that point, four years remained on the Research Scientist Development Award grant set to terminate in May, 1996, which provided 80 percent of his salary. After receipt of the March 17, 1992 Reading letter which reinstituted salary but still cut the $25,000.00 subsidy, Petitioner filed a letter of grievance against Dr. Reading. One point of the grievance, dealing with his promotion, is now moot as the promotion was effected. However, the remainder, dealing with salary support and grant subsidy is still in effect. After the grievance was filed with the Dean of the Medical School, Petitioner met with Dean Dunn who went over it with him, point by point. Dunn suggested Petitioner meet with Dr. Reading again and he did. Reading, while sympathetic to Petitioner's arguments, indicated there was nothing he could do to satisfy Petitioner. When this was reported to Dean Dunn, he asked Petitioner to allow him to try to resolve the problem by means less formal than a grievance. Petitioner agreed and let the matter rest over the ensuing summer. Ultimately, however, in May, 1993 Dean Dunn advised Petitioner that after careful review of the matter, he was satisfied Hall had received everything he could have expected and, in essence, denied the grievance. Petitioner then initiated Step II grievance procedures through counsel. In June, 1993, Petitioner received the decision of the university's Health Sciences Vice President, Dr. Kaufman, upholding the denial of the grievance. Petitioner has not received the $25,000.00 subsidy since June, 1992, and this has forced him to reduce his secretarial help by 50 percent. This has impaired his ability to submit grant applications. He has also lost the services of a graduate student who was concerned over the uncertainty surrounding the research and another assistant as well. More recently, Dr. Menzies, a key researcher, has relocated, as has a career technician. Also, a Ph.D. who works for Petitioner has been reduced to 30 percent of prior salary. Together, this all has adversely affected Petitioner's ability to continue his research activity. It has required him to do a lot of his own administrative work which interferes with and cuts down on his time to do research, and he has not been able to publish as he used to do. Therefore, a substantial interest of the Petitioner is involved. The removal of the secure source of salary support is a concern to Petitioner because the NIH does not award grants to short term scientists. Institutional support is necessary. Petitioner has informally notified the NIH of the termination of his salary support but is awaiting the outcome of this hearing to make formal notification, if necessary. Petitioner admits that nowhere in any of the communications from USF does the term, "secure source", appear except in the school's documentation in support of Petitioner's grant applications. That may have come about because to assist in preparing it, Petitioner gave Dr. Reading a copy of a prior application prepared at GWU which might have contained those words. In any case, they were deleted by Dr. Reading from later applications for Dr. Hall. It never occurred to Dr. Hall that the financial condition of the university would ever be such that the $25,000.00 subsidy could not be paid continually. Only the grant application contain any suggestion of ongoing payments. All other documents admitted into evidence which relate to terms and conditions of employment either expressly or by implication indicate the payments would be made on an "if available" basis. The university claims, and such claim is found reasonable, that language means, "as long as the university has the funds available to support a viable immunology program." Dr. Friedman was not present at any of the formal negotiating sessions between Dr. Reading and Petitioner. He did attend some of the preliminary meetings and heard Reading indicate to Hall he would "do his best" to provide supplemental money, but he does not know what promises subsequently may have been made by Reading. However, at no time during the preliminary talks he, Friedman, had with Dr. Hall did he make any promises about salary. In fact, he claims to have told Hall that in a state institution such as USF, no promises, even if made, can be formalized unless in writing and signed by the institutional head. All he could do was allow a Hall assistant to work in his laboratory and to provide up to $10,000.00 is supplies and equipment to be reimbursed at a later date. This did not happen because the money for Petitioner's grant never came. Dr. Reading unequivocally denies ever committing to fund $25,000.00 of Petitioner's research costs annually though he supported Petitioner's grant applications. He recruited Petitioner to join the faculty at USF and as a part of that process discussed with him funding for research projects in general terms on an annual basis. Reading does not recall Petitioner ever having requested he commit to a certain level of funding for those projects. They had a number of conversations about what Petitioner would need and what the university could provide. What was finally settled on was different than what was contained in the initial letters. The negotiations were give and take and while Petitioner wanted support, Dr. Reading had to know what was needed so he would not commit resources he did not have. As Reading recalls it, the ultimate conditions were that Petitioner was to get $25,000.00 in start-up funds and then up to $25,000.00 in a "Visa- like" fund which would be replenished. Dr. Reading asserts he could not offer Petitioner $25,000.00 on a recurring basis because he did not have it to offer. Dr. Reading admits that after several years operation on that basis, it might be reasonable to interpret the relationship as Petitioner does because it became apparent Petitioner could never repay the overspending in his accounts. In any case, it was not considered a problem then because Petitioner's research was bringing in large sums ("millions") in commercial funding. Dr. Reading is adamant he can expend only so much UMSA funds as he has available. He cannot commit to future funding for which he has not yet received money. The UMSA funds derive from monies paid in by patients treated in the medical school clinics. This source is neither guaranteed nor uniform. Reading also has funds coming in from foundations, which, too, are neither guaranteed nor predictable in amount. Finally, he has a departmental allocation of appropriated funds, little of which may be used in a discretionary fashion. As such, he is in no position to guarantee future payment of funds, the reliability of receipt of which cannot be guaranteed. In that regard, Dr. Dunn, the Medical School dean, pointed out that department chairmen do not have the authority to guarantee research funds for the duration of employment nor to guarantee salary support beyond state salary, and Dr. Reading, as department chairman, could not have done so. The only situation which could guarantee continuing payments would be a dedicated endowment fund and even then, these funds generally carry conditions on their use. If a federal grant is supporting a faculty member's research, the university is not legally obligated to continue the research or salary support for the principal investigator if the grant terminates. The term "secure salary support" has no meaning other than tenure, but even tenure is not guaranteed. Tenure "accruing" and tenure "earning" lines are not synonymous. Dunn knows of no such term as "tenure accruing." Tenure does not require the expenditure by the candidate of or the passage of any period of time. As a custom, however, certain criteria exist and tenure is earned only by holding a position on a tenure earning line. There are written guidelines as to what department chairmen can commit to in recruitment. There are, as well, limits as to what commitments may be made regarding payments and salaries. Some of these are UMSA rules and some are university rules. Any promise as to salary or payment of any funds are always subject to availability of funds. This is the way it has always been in academic circles. The sine qua non on salary support, other than from appropriated funds or federal grant funds, is availability. Without available funds, neither grants nor salary support can be paid. A department chairman can expend or commit only those funds available. These may include UMSA funds, appropriated funds, and grant funds. He or she cannot, however commit monies which are not available. The university has lived up to the terms of its agreement with Petitioner and has provided all he can reasonable expect in funding and salary support.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the University of South Florida finding the claims by Petitioner to be without legal merit and dismissing the grievance filed. RECOMMENDED this 18th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4408 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted with the modification that the evidence does not clearly establish who made the initial contact regarding potential employment. The use of the phrase, "desiring that Dr. Hall relocate", should not be interpreted as meaning the university actively sought Petitioner out to seek his move. Accepted. & 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. Accepted as Petitioner's interpretation of the comments of Dr. Reading. & 13. Accepted and incorporated herein. 14. & 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. 19. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted as to authority but not dispositive of the issue of availability of funds. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. - 15. Accepted. Accepted. & 18. Accepted. Accepted but not a proper Finding of Fact. More a statement of the basis of Petitioner's position. & 21. Accepted. Rejected. Accepted and incorporated herein. COPIES FURNISHED: Christopher P. Jayson, Esquire Barry A. Cohen, P.A. 201 East Kennedy Boulevard., Suite 1700 Post Office Box 173077 Tampa, Florida 33672 William W. Wertz, Esquire Office of the Attorney General The Capitol, PA 01 Tallahassee, Florida 32399-1050 Joline Micelli-Mullen, Esquire Office of the General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File And Relinquishing Jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT=S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399 2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF 2 FINAL ORDER NO. DCA11-GM-069 APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnishe Oo the persons listed below in the manner described, on this day of April, 20 Paula Ford, Ageydy Clerk DEPARTMENT OF COMMUNITY AFFAIRS (p~ asse Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Garth C. Coller, Esq. Jacob D. Varn, Esq. County Attorney Linda Loomis Shelley, Esq. Geoffrey T. Kirk, Esq. Karen Brodeen, Esq. Assist. County Attorney FOWLER WHITE BOGGS, P.A. OFFICE OF THE Post Office Box 11240 HERNANDO COUNTY ATTORNEY Tallahassee, FL 32302 20 North Main Street, Suite 462 ivam@fowlerwhite.com Brooksville, FL 34601-2850 'shellev@fowlenwhite.com kbrodeen@fowlerwhite.com cao@co.hernando.fl.us gkirk@co.hernando.fl.us By Hand Delivery: David L. Jordan, Deputy General Counsel DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 FINAL ORDER NO. DCA11-GM-069 By Filing At DOAH: The Honorable Bram D.E. Canter Administrative Law Judge DIVISION OF ADMINISTRATIVE HEARINGS 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Findings Of Fact Petitioner, Seminole Community Action, Inc. (SCA), is a community action agency serving Seminole County, Florida. The organization is a non- profit corporation located at 1101 Pine Avenue, Sanford, Florida and has been in operation since 1966. According to its by-laws, SCA administers the Community Services Block Grant (CSBG) program in Seminole County. The general purpose of the agency is to plan and mobilize resources to help improve the quality of life for low income families throughout the community. Its primary source of funding has been from the federal and state governments although it does receive a small amount of private funding through contributions. Effective July, 1982 the responsibility for administering the CSBG program was shifted from the federal government to respondent, Department of Community Affairs (DCA). This meant that applications for CSBG funding would thereafter be filed with respondent rather than the United States Department of Health and Human Services. After considerable difficulty in preparing its initial application, SCA filed an application with DCA on January 28, 1983 seeking a $95,435 CSBG grant retroactive to the period December 1, 1982 through September 30, 1983. The contract called for monthly payments to SCA of $9,543.50 and required SCA to serve an estimated 4,075 CSBG eligible low-income clients during the 10-month period. Prior to filing the application, DCA representatives spent two days with SCA officials assisting them in completing the application. At that time, SCA was told that its fiscal records and operations were inadequate, that certain changes would be necessary relative to recording liabilities on its books, that its purchasing procedures must be improved, and that its record- keeping in general was in poor condition. Because of these deficiencies, DCA advised SCA by letter dated February 18, 1983, that seven special conditions pertaining to fiscal accountability would attach to the grant of funds. These conditions are set forth in Attachment A to the contract. In addition, DCA advised SCA by letter dated February 24, 1983 of federal requirements pertaining to the composition of its board of directors. Information concerning SCA's compliance with the board requirements was requested no later than March 17, 1983. A contract was eventually signed by SCA on March 29, 1983 whereby it agreed to adhere to the seven special conditions. DCA representatives made two "monitoring visits" to SCA on May 18-20, 1983 and June 1-3, 1983 to determine if the organization's fiscal operation, board composition and program services were in compliance with state regulations and contract terms. Although SCA was given advance notice of the visits, and told to have appropriate records available to substantiate fiscal reports, client records, compliance with the seven special contract conditions, and other matters, the auditors found a "lack of compliance with the law for the structure of the Board," 1/ "lack of fiscal procedures and adequate controls for fiscal accountability," "no documentation that the agency (was) serving low income persons," and a "questionable effort" to provide services to that class of persons. A more detailed list of deficiencies is found in respondent's exhibit 8 received in evidence. As a result of the above deficiencies, SCA was advised by letter dated June 15, 1983 that "it (was) imperative that corrective measures be promptly undertaken to correct these problems." A deadline for compliance in eight specific areas was set for July 15, 1983, and if it did not do so, SCA was told the contract would be terminated. On July 15, 1983, SCA was notified by letter that its contract was being terminated effective June 30, 1983. Such action was appropriate because SCA failed (a) to comply with board of director structure requirements, (b) to resolve a carry-over debt from a prior year, (c) to justify a $9,544 budget amendment, (d) to resolve $3,700 in disallowed costs, and (e) to "demonstrate a continuing fiscal accountability to the satisfaction of the Department." Petitioner has also participated in the State Weatherization Assistance Program whereby it receives state funds for conservation purposes. These are federal grant monies funded under the Low-Income Home Energy Assistance Act of 1981, and are granted for the purpose of providing information, services and technical assistance concerning weatherization and energy conservation to the low income community. It received $21,432 in grant funds during the fiscal year 1982-83, and was subjected to an audit by a state monitoring team in July, 1983 to insure compliance with program goals. The team found SCA had paid salaries from the grant funds in violation of federal regulations and had constructed a "cooler room" to store surplus food with grant monies in violation of federal law. Then, too, CA's administrative expenses totaled 34.9 percent of total funds which was far in excess of the norm of 5 percent for other agencies. Finally, it spent on the average over $1,300 to weatherize each home when the maximum allowed was only $1,000 per home. Because of these deficiencies, SCA's application for renewal of the program during 1983-84 was properly denied. Petitioner has also made application for CSBG funds for fiscal year 1983-84. Since the time its 1982-83 contract was terminated, SCA has failed to satisfy the concerns which were raised in the letter of July 15, 1983 which terminated the contract. Specifically, its Board of Directors still does not comply with federal or state requirements, and its fiscal irregularities have not been resolved. Until it does so, it is ineligible for grant funds and DCA is justified in refusing to approve SCA's applications. SCA contends all matters raised in the July 15, 1983 termination letter have been satisfactorily resolved. In making this contention it relies primarily upon a letter dated February 15, 1984 from the United States Department of Health and Rehabilitative Services to SCA, and the adoption of amended by- laws which comply with federal guidelines pertaining to community action agency board of directors. However, neither the letter nor the amended by-laws satisfy the long-standing deficiencies cited by DCA.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the relief requested in Seminole Community Action, Inc.'s petition be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 February, 2010.
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On December 14, 2010, the Department published its Notice of Intent to find Lee County’s 10-2 amendment to its comprehensive plan, adopted by Ordinances 10-34 through 10-40, “in compliance” as that term is defined by Section 163.3184(1) (b), Florida Statutes. Filed March 14, 2011 10:36 AM Division of Administrative Hearings FINAL ORDER No. DCA11-GM-043 On January 6, 2011, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded LB at Miromar Lakes, LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number 11-0045. Petitioner filed a Notice of Voluntary Dismissal with Prejudice on March 9, 2011. There are no other Petitioners in this case, and, therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA11-GM-043 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this AY ay of (Made 2011. aula Ford Agency Clerk The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail By Electronic Mail Andrew W.J. Dickman, Esquire Andrew Dickman, P.A. Post Office Box 771390 Naples, Florida 34107-1390 AndrewDickman@comcast.net Donna Marie Collins, Esquire Susan Henderson, Esquire Lee County Attorney’s Office Post Office Box 398 Fort Myers, Florida 33902-0398 dcollins@leegov.com shenderson@leegov.com FINAL ORDER No. Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302-1240 lshelley@fowlerwhite.com kbrodeen@fowlerwhite.com Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt, PA 1715 Monroe Street Fort Myers, Florida 33901 russell.schropptéhenlaw.com Charles J. Basinait, Esquire Henderson Franklin Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Charles .Basinait@henlaw.com Lynette Norr, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 Lynette .Norr@dca.state.fl.us DCA11-GM-043
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
Findings Of Fact The cities of Sebring, Monticello, Mascotte, Greenville and Vernon, and other cities in Florida made application to DCA for block grants under the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization. The deadline for submission of those applications was February 26, 1988. The applications were submitted under the auspices of the application manual related to that program, a copy of which may be found as Respondent's Exhibit 1 admitted into evidence. This application manual is drawn in keeping with requirements of the Community Development Block Grant under Title I of the Housing and Community Development Act of 1974, as amended, and under Section 290, Florida Statutes, and Chapter 9B-43, Florida Administrative Code. The references in the Florida Statutes specifically are at Sections 290.0401-290.049, Florida Statutes, known as the "Florida Small Cities Community Development Block Program Act." The applications by the various cities previously described were timely made. In accordance with the instructions set forth in the application manual, and per the review procedures of the DCA, each named community received a score of 10 points for the adoption of a community redevelopment plan and an additional 10 points for creation of a community redevelopment agency. To comply with the application form and receive those points it was necessary for the clerk of the community to give certification that those items were on file in the clerk's office. There was a further necessity to sign, date and seal the response. Following the receipt of the applications from the cities, the DCA received a complaint from a representative of Monticello concerning the existence of some possible irregularities related to the applications of Vernon, Mascotte and Greenville. Those claims involved the issue of whether those cities had adopted redevelopment plans and established redevelopment agencies at the application deadline on February 26, 1988. In the face of the allegations the DCA determined to follow-up and wrote to each city, namely the cities of Mascotte, Vernon, Greenville, Monticello and Sebring. Copies of the correspondence may be found in the Composite Exhibit Number 7 by the Respondent. The correspondence described the award of 10 points for creation of a redevelopment agency and 10 additional joints for creation of a redevelopment plan under authority of Chapter 163, Florida Statutes. It further described the need for certification by the Clerk of the town to gain the award of points. The correspondence went on to describe the possibility that information that would be needed to document the existence of the community redevelopment agency and the approval of the community redevelopment plan might not be on file in the community as required. As a consequence, each community was requested to confirm that documentation existed in its file by submission of the following information within seven (7) working days. A copy of the ordinance appointing a board of commissioners of the community redevelopment agency (pursuant to s. 163.356(2), F.S.) or a copy of the resolution declaring the member of the governing body as the community redevelopment agency (pursuant to s. 163.357, F.S.); and A copy of the City Community Redevelopment Plan and documentation that is was reviewed and adopted pursuant to s. 163.360(1)-(9), F.S. Absent the submission of this documentation the cities were told that they would not receive the points for establishing the redevelopment agencies and plans. In turn, each of the subject communities responded to the requirements by sending copies of minutes, ordinances and resolutions related to adoption of plans and in creation of agencies. Copies of those documents may be found as Respondent's Composite Exhibit 8. They all evidence compliance with the February 26, 1988 deadline for adoption of plans and creation of agencies. Having received this Information, DCA made its evaluation and on May 12, 1988, noticed the various applicants of its decision concerning the applications for grant money. Copies of the individual correspondence related to the subject cities who have been named may be found as part of the Respondent's Composite Exhibit 6 admitted into evidence. Attached to the correspondence was a breakdown of total points awarded, a description of the grant request and the money assigned in response to that request, all by way of stated intended agency action. The effect of the point awards was to disallow the grants sought by Sebring and Monticello in that there were insufficient funds to honor their applications and others with higher point totals. The stated agency action would allow the cities of Vernon, Greenville and Mascotte to receive all monies sought. In the face of this decision to award the proceeds to Vernon, Greenville and Mascotte to the exclusion of the cities of Sebring and Monticello the latter cities made timely petition to challenge the agency decision and in particular the decision to award 20 points to Vernon, Greenville and Mascotte for establishment of redevelopment plans and the creation of redevelopment agencies. Even if the 20 points were disallowed for Vernon, they would still be entitled to the full proceeds. That would not be the situation with Greenville and Mascotte, in that they would be replaced by Sebring and Monticello, Sebring as to its entire request of $575,000 and Monticello as to part of its request in the amount of $76,518 of the $500,000 sought. The city of Mascotte also filed challenges directed to Monticello and Sebring in the points assigned them for community redevelopment plans and agencies in the applications by those communities. No proof was offered at the hearing in futherance of this claim. The proof submitted was not sufficient to establish that there was any impropriety by the City of Vernon in urging the DCA to award the 20 points in question. The proof that was presented in the course of the hearing related to the activities of the cities of Mascotte and Greenville in establishing community redevelopment agencies and adopting redevelopment plans raised some suspicions about whether those activities had occurred prior to the February 26, 1988 deadline, but it was not complete enough to prove that the agencies had not been established and the plans had not been adopted prior to the February 26, 1988 date.
