Findings Of Fact Petitioner is the state agency charged with the enforcement of the provisions of Part VIII of Chapter 468, Florida Statutes, and of Chapter 61B-55, Florida Administrative Code. At all times material to this proceeding Respondent, Robert Rosen, was licensed as a community association manager and held license number 3371 issued by Petitioner. At the time of the formal hearing, Respondent had been performing community association management services for approximately fifteen years. Respondent has had extensive participation in community association management education and training activities and was, at all times pertinent hereto, aware of the duties imposed on community association managers by statute and by rule. Part VIII of Chapter 468, consisting of Sections 468.431 - 468.437, Florida Statutes, pertain to the regulation and licensure of Community Association Management. Section 468.431, Florida Statutes, provides the following definitions pertinent to this proceeding: "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part. "Community association manager" means a person who is licensed pursuant to this part to perform community association management services. A person performing community association management services to one or more associations containing more than 50 units or having an annual budget or budgets in excess of $100,000 must possess a community association manager's license. Licenses to act as a community association manager are issued by Petitioner to individual persons. Licenses are not issued to corporations. An individual who is a community association manager within the meaning of Section 468.431(3), Florida Statutes, is required by the provisions of Section 468.432(1), Florida Statutes, to be licensed by the Petitioner, as follows: A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this part. . . . Corporations that provide community association management services through licensed employees merely have to register with the Petitioner pursuant to Section 468.432(2), Florida Statutes, which provides, in pertinent part, as follows: Nothing in this part prohibits a corporation, partnership, trust, association, or other like organization from engaging in the business of community association management without being licensed if it employs licensed natural persons in the direct provision of community association services. Such corporation, partnership, trust, association, or other organization shall also file with the department a statement on a form approved by the department that it submits itself to the rules of the department and the provisions of this part which the department deems applicable. Petitioner has rule making authority pursuant to the provisions of Section 468.433(3), Florida Statutes. Petitioner has the authority to enforce its rules and statutes pursuant to the provisions of Section 468.436, Florida Statutes. Pursuant to its rule making authority, Petitioner has enacted Rule 61B- 55.007, Florida Administrative Code, which provides, in pertinent part, as follows: Standards of Professional Conduct. All licensees and registrants shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees and registrants, into any written or oral agreement for the rendition of community association management services, the violation of which shall constitute gross misconduct or gross negligence. Definitions. As used in this rule, the following definitions apply: The word "control" means the authority to direct or prevent the actions of another person or entity pursuant to law, contract, subcontract or employment relationship with a community association, its board of directors, any committee thereof or any member of any board or committee. "Licensee" means a person licensed pursuant to section 468.432(1), Florida Statutes. "Registrant" means an entity registered pursuant to section 468.432(2), Florida Statutes. The word "funds" as used in this rule includes money and negotiable instruments including checks, notes and securities. * * * (6) Records. (a) A licensee or registrant shall not withhold possession of any books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice. It shall be presumed that reasonable notice shall extend no later than 7 business days after receipt of a written request from the association. The provisions of this rule apply regardless of any contractual or other dispute between the licensee and the community association, or between the registrant and the community association. It shall be considered gross misconduct, as provided by Section 468.436(2), Florida Statutes, for a licensee or registrant to violate the provisions of this subsection. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. Its primary goal is to ensure that managers who receive licenses from the state are trustworthy and have some degree of professional competence. Rosen Management Service, Inc., is a corporation that is not a party to this proceeding. Robert Rosen, in addition to being a licensed community association manager, is the president of Rosen Management Service, Inc. Throughout this proceeding, Robert Rosen acted through his corporation in providing community association management services to the associations involved in this proceeding. Prior to the termination of the management agreements between Rosen Management Service, Inc., and the six associations involved in this proceeding, Robert Rosen was a member of and an ex officio officer of each association. At all times pertinent to this proceeding, Rosen Management Service, Inc., employed licensed community association managers in addition to Robert Rosen. There was no evidence that any licensed community association manager employed by Rosen Management Service, Inc., other than Robert Rosen provided services to the six associations that are involved in this proceeding. At all times pertinent to this proceeding, Robert Rosen controlled the management of Rosen Management Service, Inc. The six separate community associations involved in this proceeding are located in Dade County, Florida. Rosen Management Service, Inc., began providing community association management services to each of these associations on January 1, 1991. The services provided to each association by Rosen Management Service, Inc., included the management and control of each association's finances. Those six associations are: Moors Master Maintenance Association, Inc. Moors Town Villas Maintenance Association, Inc. Moors Garden Homes Maintenance Association, Inc. Moors Pointe Condominium Association, Inc. Moors Village Homes Maintenance Association, Inc. Moors Patio Homes Maintenance Association, Inc. At issue in this proceeding are certain bank accounts that were opened in the Dadeland branch office of Southeast Bank by Rosen Management Service, Inc. Southeast Bank was acquired by First Union National Bank of Florida in 1992 after intervention by the Federal Deposit Insurance Corporation. The subject accounts became accounts in the Dadeland branch of the First Union National Bank after the acquisition. At the time these accounts were opened, Robert Rosen was a member of and ex officio officer of each association and had the authorization of each association to open each account in the manner in which it was opened. Moors Master Maintenance Association, Inc. The Moors Master Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Master Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690008, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Master Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 8, 1991, the Moors Master Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. On October 9, 1991, the attorneys representing the Moors Master Maintenance Association, Inc., notified Robert Rosen, as president of Rosen Management Service, Inc., that it had terminated the contract and demanded a return of the Association's books and records. This letter also stated: ". . . effective immediately no additional checks are to be written by you on any of the accounts at (sic) the Association." The Moors Master Maintenance Association, Inc., caused its attorneys to write a letter to Southeast Bank dated October 10, 1991, concerning account #018-690008 which stated, in pertinent part, as follows: . . . At a meeting of the Board of Directors held on Tuesday, October 8, 1991, the Board voted to terminate its management agent, Rosen Management Service, Inc. Accordingly, please be advised that effective immediately, no further activity with respect to the above referenced account is to be initiated by Rosen Management Service, Inc. and/or Robert Rosen. The Moors Master Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 19, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 8, 1991, the Board of Directors of the Moors Master Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690008 to the new account we opened . . . On November 19, 1991, the president of the Moors Master Maintenance Association advised the Southeast Bank that it had opened a new account and requested that the funds in account #018-690008 be transferred to the new account. Moors Town Villas Maintenance Association, Inc. The Moors Town Villas Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Town Villas Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690024, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Town Villa Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Town Villas Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 13, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Town Villas Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Town Villas Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690024 to the new account we opened . . . Moors Garden Homes Maintenance Association, Inc. The Moors Garden Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Garden Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689992, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Garden Homes of the Moors Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Garden Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 7, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Garden Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 24, 1991, the Board of Directors of the Moors Garden Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689992 to the new account we opened . . . Moors Pointe Condominium Association, Inc. The Moors Pointe Condominium Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Pointe Condominium Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689984, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Pointe Condominium Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Pointe Condominium Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records for the association should be turned over to the new management company. The Moors Pointe Condominium Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Pointe Condominium Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689984 to the new account we opened . . . Moors Village Homes Maintenance Association, Inc. The Moors Village Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Village Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690032, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Village Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Village Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The Moors Village Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Village Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690032 to the new account we opened . . . Moors Patio Homes Maintenance Association, Inc. The Moors Patio Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Patio Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690016, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Patio Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Patio Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records of the association should be turned over to the new management company. The Moors Patio Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Patio Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690016 to the new account we opened . . . The Collateral Litigation. In November 1991, Rosen Management Service, Inc., (plaintiff) brought suit against the Moors Master Maintenance Association, Inc., (defendant) in circuit court seeking compensatory damages in the amount of $927,553.24 and punitive damages in the minimum amount of $2,782,659.70. That proceeding was pending at the time of the formal hearing held in the instant proceeding. In December 1991, the six associations (plaintiffs) sued Rosen Management Service, Inc., and Robert Rosen (defendants) in circuit court seeking temporary and permanent injunctive relief requiring the defendants to turn over the books and records of the plaintiffs. On December 19, 1991, a special master was appointed in this circuit court proceeding. The special master was ordered to take possession of the books and records of the six associations, including the six bank accounts. The attorney for the defendants in that circuit court proceeding consented to the transfer of the control of the six bank accounts to the special master. Before the transfer could be effectuated, the circuit court proceeding was voluntarily dismissed by the plaintiffs. Consequently, the special master never took possession of the funds in these bank accounts. Robert Rosen was aware that the special master never took possession of these bank accounts. On or about March 31, 1993, a separate proceeding was filed in circuit court by the six associations (plaintiffs) against Rosen Management Service, Inc. That proceeding was pending at the time of the formal hearing held in the instant proceeding. The Manager of the Bank. In reaction to the letters from the six Moors associations and their attorneys, Diego Rodriguez, the manager of the Dadeland branch of the Southeast Bank, advised Mr. Rosen that he no longer had any authority over the account and that the bank would not take any instructions from him. This information was conveyed to Mr. Rosen by Mr. Rodriguez in October 1991, in April 1992, and on September 3, 1992. On September 3, 1992, Mr. Rodriguez wrote a letter to Sharon Malloy, Assistant Bureau Chief for Petitioner's Bureau of Condominiums. That letter corroborates the Respondent's testimony as to information provided to him by Mr. Rodriguez. That letter stated, in pertinent part, as follows: "All went fine [with the six accounts] until October 1991, when we received a certified letter from the Law Firm of Becker & Poliakoff stating that they represented the six Moors Associations, and instructed this banking center to remove Mr. Robert Rosen as an authorized signer on the six accounts. The letter further stated that this bank could no longer accept any instructions what- so-ever from Rosen and not to discuss any of these accounts with him. Ms. Malloy, our branch has done just that. We informed Mr. Rosen that he no longer had any control, custody, jurisdiction, or any other authority on these accounts. That was in October 1991, and we've told that to Mr. Rosen on at least a dozen occasions since then, including April 1992 when we confirmed this in writing to Mr. Rosen, and again today, September 3, 1992. We specifically told Mr. Rosen that in view of these circumstances, we would require a Court Order before we could accept any instructions from anyone as to these accounts. Your staff must have misinterpreted my letter of April 1992, which clearly stated that Mr. Rosen has been removed as a signer on these accounts. This doesn't mean he just can't sign; it means that he has no control, no custody, no jurisdiction, no power of any kind on these accounts. These accounts have each been coded so as not to allow Mr. Rosen either access to the funds or information on these accounts. This Bank will not take any instructions from him!!! (Emphasis in the original.) The Attorneys for the Bank. Southeast Bank, and later First Union Bank, asserted the position that it could not transfer the funds or otherwise release the funds in the six accounts without the written consent of a duly authorized representative of Rosen Management Service, Inc. On May 12, 1992, Steve Gillman, the attorney for First Union Bank advised the attorneys for the associations in writing that the transfer of the bank accounts established by Rosen Management Service, Inc., could be transferred to the new bank accounts established by the associations if an authorized representative of Rosen Management Service, Inc., as the account party executed an appropriate transfer request. On May 13, 1992, the attorneys for the associations forwarded to the attorney for the Respondent a copy of the May 12, 1992, letter from the bank's attorney. Enclosed with that letter was a simple, single page authorization form by which Robert Rosen, on behalf of Rosen Management Service, Inc., could consent to the transfer of the funds in the six association bank accounts to new bank accounts controlled by the associations. Robert Rosen received a copy of this letter and the enclosures. This letter of May 13, 1992, provided, in pertinent part, as follows: . . . As you can see an appropriate transfer request from your clients is all that is required to return the funds to their beneficial owners. Pursuant to the foregoing, we make final demand upon your clients to provide authorization to the bank to transfer the funds on deposit beneficially owned by the respective Moors associations to the new accounts at First Union/Southeast already established for the purpose of facilitating such a transfer. Toward this end, I have enclosed an authorization for your clients to sign forthwith. Robert Rosen knew that the six associations were unable to withdraw the funds from the six bank accounts because of the repeated demands of the associations. Prior to the position asserted by the bank as reflected by Mr. Gillman's letter of May 1992, there was some confusion as to what Respondent could or should do to transfer these accounts. This situation was exacerbated by the collateral litigation filed by Rosen Management Service, Inc., and by the associations, the voluntary dismissal of the suit by the associations after the special master had been appointed, and by the erroneous advice given by Mr. Rodriguez. Notwithstanding the position asserted by Mr. Rodriguez, Mr. Rosen knew after he received copies of the letters from Mr. Gillman, that his authorization was all that was required to transfer the funds from the old accounts to the new accounts. Robert Rosen failed to execute that simple authorization form until August 18, 1993, thereby blocking access by the associations to their funds in these bank accounts. There was a meeting on July 1, 1992, involving the Respondent, his attorney and attorneys and representatives of the six associations. During that meeting, Respondent was again asked to sign the consent form necessary to transfer the funds in the six accounts at issue in this proceeding to accounts controlled by the respective associations. Despite repeated demands for him to do so, Respondent did not sign the consent form that he knew was required to transfer the funds in the six bank accounts to the respective associations until August 1993. As a result of Robert Rosen's failure to sign the consent form in his capacity of President of Rosen Management Service, Inc., or to instruct some other qualified representative of Rosen Management Service, Inc., sign the form, these six associations were deprived of access to their funds until August 1993. Robert Rosen testified that he delivered an executed copy of this form to the First Union Bank Dadeland branch office shortly after he received it in May 1992. This self-serving testimony lacks credibility and is rejected as being contrary to the clear and convincing evidence that he did not execute the consent form until the first day of the formal hearing. On August 18, 1993, the first day of the formal hearing that was held in this proceeding, Robert Rosen signed the one-page document that authorized the transfer of all six association bank accounts to the respective associations. This authorization form was the same one-page document that had been forwarded to Respondent's counsel, and subsequently to Respondent, on May 13, 1992. Respondent had been repeatedly asked to execute this authorization form. On August 19, 1993, the funds that had been in account #018-690008 were transferred to a new account of the Moors Master Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $108,000.00. On August 19, 1993, the funds that had been in account #018-690024 were transferred to a new account of the Moors Town Villas Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689992 were transferred to a new account of the Moors Garden Homes Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689984 were transferred to a new account of the Moors Pointe Condominium Association The balance in the account at the time of the transfer was approximately $40,000. On August 19, 1993, the funds that had been in account #018-690032 were transferred to a new account of the Moors Village Homes Maintenance Association. The balance in the account at the time of the transfer was approximately $41,000. On August 19, 1993, the funds that had been in account #018-690016 were transferred to a new account of the Moors Patio Homes Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $75,000. Robert Rosen did not turn over and did not cause his corporation to turn over the funds of the six associations to those associations within seven business days of a written request to do so. Robert Rosen did not execute and did not cause his corporation to execute the written authorization form that was required to transfer the funds to the six associations within seven business days of a written request to do so. Because the six associations did not have access to their funds during the approximately two years that this matter was in dispute, the associations had to impose special assessments on their members, had to delay paying bills, and had to use reserve funds for operating bills. The associations also incurred attorneys' fees in attempting to secure the return of their funds. Robert Rosen has not been previously disciplined by the Petitioner. At all times pertinent to this proceeding, the funds were in interest bearing accounts. All funds in the six association accounts, including accrued interest, were turned over to the respective associations on August 19, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licensure of Robert Rosen as a community association manager be revoked. DONE AND ORDERED this 1st day of February 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of February 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0344 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 29, 31, 32, 33, 43 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 22, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are adopted in part by the Recommended Order. The proposed findings in the last sentence of each paragraph are rejected as being argument as to the interpretation of written documents and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 36 are adopted in part by the Recommended Order, and are subordinate in part to the findings made. The proposed findings of fact in paragraphs 51, 52, 53, 54 are subordinate to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The following references are to paragraphs 1-14 contained in Respondent's Proposed Recommended Order in the section styled "General Findings of Fact and Conclusions of Law." The conclusions in paragraph 1 are rejected as being unnecessary as findings of fact and as being contrary to the conclusions reached. The proposed findings of fact and conclusions in paragraphs 2, 7, and 10 are rejected as being contrary to the conclusions reached or as being contrary to the conclusions reached. Findings of fact are made in the Recommended Order as to how the respective bank accounts were opened. The proposed findings of fact in paragraph 3 are adopted to the extent that the proposed findings are consistent with the findings made. The remainder of paragraph 3 is rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraph 5 consists of argument that is inappropriate as findings of fact. The proposed findings of fact in paragraph 6 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraphs 7, 8 and 9 consist of argument or conclusions that are rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order by the findings that Rosen Management Service, Inc., authorized the transfer of the funds to the special master. The proposed findings are otherwise rejected as being contrary to the findings made. Findings are made in the Recommended Order as to contacts Respondent made with the bank. The proposed findings of fact in paragraphs 11 and 12 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being unnecessary to the conclusions reached since it was not established that Respondent's inquiries were directed toward returning the funds to the associations. The reference to December 1990 is unnecessary to the conclusions reached and apparently a misreading of the letter sent by Mr. Rodriguez to Ms. Malloy dated September 3, 1992. Findings are made in the Recommended Order pertaining to the collateral litigation. The proposed findings of fact in paragraph 13 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being contrary to the greater weight of the evidence or as being contrary to the conclusions reached. The remainder of paragraph 13 consists of argument that is rejected as being contrary to the conclusions reached or as being unnecessary to the conclusions reached. Paragraph 14 consists of argument that is rejected as unnecessary as findings of fact and, in part, contrary to the conclusions reached. The following references are to paragraphs 1-15 contained in Respondent's Proposed Recommended Order in the section styled "Findings of Fact and Conclusions of Law on Termination of Agency Issue and Other Issues Relating to Charges." The proposed findings of fact in paragraphs 1, 2, 5 are adopted in material part by the Recommended Order. Paragraph 3 consists of argument or conclusions that are unnecessary as findings of fact. Paragraph 4 consists of argument or conclusions that are contrary to the findings or to the conclusions reached. The proposed findings of fact in paragraphs 6 and 7 are adopted in part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 6 and 7 are rejected to the extent they are inconsistent with the findings made in the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The remainder of paragraph 8 consists of argument that is unnecessary as findings of fact. Paragraph 9 consists of argument that is unnecessary as findings of fact. The proposed findings of fact in paragraph 10 are subordinate to the findings made. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order. The remainder of paragraph 12 is rejected as being unnecessary to the findings made and to the conclusions reached. The proposed findings of fact contained in paragraphs 13 and 14 are either adopted by the Recommended Order or are subordinate to the findings made. The remainder of both paragraphs consists of argument that is inappropriate to incorporate as findings of fact. The proposed findings of fact in Paragraph 15-1 are adopted in material part by the Recommended Order. The remainder of paragraph of paragraph 15 is rejected as being predicated on self-serving testimony that lacks credibility and is contrary to the clear and convincing evidence presented by Petitioner. COPIES FURNISHED: Jeanne M. L. Player, Esquire Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Franklin D. Kreutzer, Esquire 3041 Northwest 7th Street, Suite 100 Miami, Florida 33125 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the actions of Florida Housing concerning the review and scoring of the responses to Request for Applications 2019-102 (“RFA”), titled “Community Development Block Grant--Disaster Recovery (‘CDBG- DR’) to be Used in Conjunction with Tax-Exempt MMRB and Non- Competitive Housing Credits in Counties Deemed Hurricane Recovery Priorities,” were contrary to the agency’s governing statutes, rules, policies, or the RFA specifications.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: THE PARTIES Berkeley is an applicant in the RFA that requested an allocation of $6,500,000 in CDBG Development funding; $2,500,000 in CDBG Land Acquisition funding; and $844,699 in non-competitive housing credits. The Berkeley Application, assigned number 2020-017D, was preliminarily deemed ineligible for consideration for funding. Brisas is an applicant in the RFA that requested an allocation of $5,000,000 in CDBG Development funding and $1,674,839 in non-competitive housing credits. The Brisas Application, assigned number 2020-056D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Northside is an applicant in the RFA that requested an allocation of $7,300,000 in CDBG Development funding; $1,588,014 in non-competitive housing credits; and $24,000,000 in Multifamily Mortgage Revenue Bonds (“MMRB”). The Northside Application, assigned number 2020-024D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Beacon Place is an applicant in the RFA that requested an allocation of $6,925,500 in CDBG Development funding; $4,320,000 in CDBG Land Acquisition funding; $1,764,203 in non-competitive housing credits; and $24,000,000 in MMRB. The Beacon Place Application, assigned number 2020-045DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Bella Vista is an applicant in the RFA that requested an allocation of $8,000,000 in CDBG Development funding; $1,450,000 in CDBG Land Acquisition funding; $609,629 in non-competitive housing credits; and $13,000,000 in MMRB. The Bella Vista Application, assigned number 2020-038DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Solaris is an applicant in the RFA that requested an allocation of $3,420,000 in CDBG Development funding; $4,500,000 in CDBG Land Acquisition funding; and $937,232 in non-competitive housing credits. The Solaris Application, assigned number 2020-039D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Metro Grande is an applicant in the RFA that requested an allocation of $3,175,000 in CDBG Development funding and $1,041,930 in non-competitive housing credits. The Metro Grande Application, assigned number 2020-041D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Sierra Bay is an applicant in the RFA that requested an allocation of $3,650,000 in CDBG Development funding; $3,300,000 in CDBG Land Acquisition funding; $1,074,173 in non-competitive housing credits; and $16,000,000 in MMRB. The Sierra Bay Application, assigned number 2020-040DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Bembridge is an applicant in the RFA that requested an allocation of $7,800,000 in CDBG Development funding; $564,122 in non-competitive housing credits; and $10,100,000 in MMRB. The Bembridge Application, assigned number 2020-046DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. East Pointe is an applicant in the RFA that requested an allocation of $4,680,000 in CDBG Development funding and $690,979 in non-competitive housing credits. The East Pointe Application, assigned number 2020-053D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Florida Housing is a public corporation organized pursuant to Chapter 420, Part V, Florida Statutes, and, for purposes of these consolidated cases, is an agency of the State of Florida. Florida Housing is tasked with distributing a portion of the CDBG-DR funding allocated by the U.S. Department of Housing and Urban Development (“HUD”), pursuant to the State of Florida Action Plan for Disaster Recovery. THE COMPETITIVE APPLICATION PROCESS AND RFA 2019-102 Florida Housing is authorized to allocate low-income housing tax credits and other named funding by section 420.507(48). Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process. Rule 67-60.009(1) provides that parties wishing to protest any aspect of a Florida Housing competitive solicitation must do so pursuant to section 120.57(3), Florida Statutes. Funding is made available through a competitive application process commenced by the issuance of a request for applications. Rule 67-60.009(4) provides that a request for application is considered a “request for proposal” for purposes of section 120.57(3)(f). The RFA was issued on July 30, 2019, with responses due on August 27, 2019. The RFA was modified four times and the application deadline was extended to September 24, 2019. No challenges were made to the terms and specifications of the RFA. Section Five of the RFA included a list of 48 “eligibility items” that an applicant was required to satisfy to be eligible for funding and considered for funding selection. Applications that met the eligibility standards would then be awarded points for satisfying RFA criteria, with the highest scoring applications being selected for funding. No total point items are in dispute. Proximity Point items are contested as to the Beacon Place, East Pointe, and Bembridge Applications. Applicants could select whether they would be evaluated as Priority I, II, or III applications. All of the parties to these consolidated cases identified themselves as Priority I applications. Through the RFA, Florida Housing seeks to award an estimated $76,000,000 of CDBG Land Acquisition Program funding to areas impacted by Hurricane Irma, and in areas that experienced a population influx because of migration from Puerto Rico and the U.S. Virgin Islands due to Hurricane Irma. Florida Housing will award up to $66,000,000 for CDBG Development funding and an additional $10,000,000 for CDBG Land Acquisition Program funding. Applicants were not required to request CDBG Land Acquisition Program funding. Forty-four applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to Florida Housing’s Board of Directors (the “Board”). The Review Committee found 34 applications eligible for funding. The Review Committee found 8 applications ineligible, including that of Berkeley. Two applications were withdrawn. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On December 13, 2019, the Board met and accepted the recommendations of the Review Committee. The Board preliminarily awarded funding to 12 applications, including those of Sierra Bay, Solaris, Metro Grande, East Pointe, and Bembridge. Petitioners Berkeley, Brisas, Northside, Beacon Place, and Bella Vista timely filed Notices of Protest and Petitions for Formal Administrative Hearing. THE BERKELEY APPLICATION As an eligibility item, the RFA required applicants to identify an Authorized Principal Representative. According to the RFA, the Authorized Principal Representative: must be a natural person Principal of the Applicant listed on the Principal Disclosure Form; must have signature authority to bind the Applicant entity; (c) must sign the Applicant Certification and Acknowledgement form submitted in this Application; (d) must sign the Site Control Certification form submitted in this Application; and (e) if funded, will be the recipient of all future documentation that requires a signature. As an eligibility item, the RFA required applicants to submit an Applicant Certification and Acknowledgment form executed by the Authorized Principal Representative. As an eligibility item, the RFA also required applicants to submit a Site Control Certification form executed by the Authorized Principal Representative. In section 3.e.(1) of Exhibit A of the RFA, the applicant is directed to enter the contact information of its Authorized Principal Representative. Berkeley entered the name, organization, and contact information for Jennie D. Lagmay as its Authorized Principal Representative, in response to section 3.e.(1). The name of Jennie D. Lagmay was not disclosed on the Principal Disclosure form required by the RFA. The Applicant Certification and Acknowledgment form and the Site Control Certification form were executed by Jonathan L. Wolf, not Jennie D. Lagmay, the designated Authorized Principal Representative. On both forms, Mr. Wolf is identified as “Manager of Berkeley Landing GP, LLC; General Partner of Berkeley Landing, Ltd.” Jonathan L. Wolf is listed on the Principal Disclosure Form. Aside from section 3.e.(1) of Exhibit A, Jennie D. Lagmay’s name is not found in the Berkeley Application. Florida Housing determined that the Berkeley Application was ineligible for an award of funding for three reasons: 1) the Authorized Principal Representative listed was not disclosed on the Principal Disclosure form; 2) the Applicant Certification and Acknowledgement form was not signed by the Authorized Principal Representative; and 3) the Site Control Certification was not signed by the Authorized Principal Representative. Two other applications for this RFA were found ineligible for identical reasons: Thornton Place, Application No. 2020-020D; and Berkshire Square, Application No. 2020-034D. In these, as in the Berkeley Application, Jennie D. Lagmay was named as the Authorized Principal Representative in section 3.e.(1) of Exhibit A, but Jonathan L. Wolf executed the Applicant Certification and Acknowledgement form and the Site Control Certification form as the Authorized Principal Representative. Berkeley concedes it made an error in placing the name of Ms. Lagmay in section 3.e.(1), but argues that this constituted a minor irregularity that should have been waived by Florida Housing. Berkeley contends that the entirety of its Application makes plain that Jonathan D. Wolf is in fact its Authorized Principal Representative. Berkeley argues that Florida Housing should waive the minor irregularity and determine that the Berkeley Application is eligible for funding. Berkeley points out that only two members of the Review Committee, Rachel Grice and Heather Strickland, scored the portions of the Berkeley Application that led to the ineligibility recommendation. Ms. Grice determined that the Authorized Principal Representative listed in the Berkeley Application was not disclosed on the Principal Disclosure form. Ms. Strickland determined that neither the Applicant Certification and Acknowledgement form nor the Site Control Certification form was executed by the Authorized Principal Representative. Neither Ms. Grice nor Ms. Strickland conducted a minor irregularity analysis for the Berkeley Application. Rule 67-60.008, titled “Right to Waive Minor Irregularities,” provides as follows: Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Berkeley contends that because a minor irregularity analysis was not conducted by the Review Committee members, the Board was deprived of a necessary explanation for the preliminary recommendations of Ms. Grice and Ms. Strickland. Marisa Button, Florida Housing’s Director of Multifamily Allocations, agreed that the Review Committee members did not perform a minor irregularity analysis but testified that none was required given the nature of the discrepancy in the Berkeley Application. Ms. Button performed a minor irregularity analysis as Florida Housing’s corporate representative in this proceeding and concluded that the error could not be waived or corrected without providing an unfair competitive advantage to Berkeley. Ms. Button testified that the fact that the person identified as the Authorized Principal Representative was not the same person who signed the certification forms could not be considered a minor irregularity because the application demonstrated conflicting and contradictory information, creating uncertainty as to the applicant’s intentions. She stated that Florida Housing is required to limit its inquiry to the four corners of the application. Ms. Button stated that Florida Housing cannot take it upon itself to decide what the applicant intended when the information provided in the application is contradictory. Berkeley points to the fact that the Application Certification and Acknowledgement form, signed by Mr. Wolf, includes the following language: “The undersigned is authorized to bind the Applicant entity to this certification and warranty of truthfulness and completeness of the Application.” Berkeley argues that it should have been clear to Florida Housing that Mr. Wolf is the person authorized to bind the company and that the inclusion of Ms. Lagmay’s name in section 3.e.(1) was in the nature of a typographical error. Florida Housing points out that the Application Certification and Acknowledgement form also includes the following language below the signature line: “NOTE: Provide this form as Attachment 1 to the RFA. The Applicant Certification and Acknowledgement form must be signed by the Authorized Principal Representative stated in Exhibit A.” Florida Housing notes that the Site Control Certification form includes similar language: “This form must be signed by the Authorized Principal Representative stated in Exhibit A.” Berkeley contends that Florida Housing was well aware that Jonathan L. Wolf has been the named Authorized Principal Representative on multiple applications filed under the umbrella of Wendover Housing Partners, the general developer behind Berkeley. In at least one of those previous applications, Ms. Lagmay, an employee of Wendover Housing Partners, was identified as the “contact person.” Ms. Button responded that Review Committee members are specifically prohibited from using personal knowledge of a general development entity in a specific application submitted by a single purpose entity. She further testified that if Florida Housing employees were to use their personal knowledge of an experienced developer to waive errors in a specific application, applicants who had not previously submitted applications would be at a competitive disadvantage. Ms. Button testified that Berkeley was established as a single purpose entity in accordance with the RFA’s requirements. She testified that she has known general developers to structure these single purpose entities in different ways, depending on the requirements of an RFA. An applicant might designate an employee, such as Ms. Lagmay, as a principal to give her experience as a developer. Again, Ms. Button emphasized that Florida Housing is not in a position to decide what the applicant “really meant” when there is a discrepancy in the information provided. Ms. Button testified that Florida Housing has determined in prior RFAs that an applicant was ineligible because the person identified as the Authorized Principal Representative was not the same person who signed the certification forms. Florida Housing rightly concluded that there are only two possible ways to interpret the Berkeley Application. If Ms. Lagmay was the Authorized Principal Representative, then the application is nonresponsive because she was not listed on the Principal Disclosure form and she did not sign the required certification forms. If Ms. Lagmay was not the Authorized Principal Representative, the application is nonresponsive because no Authorized Principal Representative was identified. There is no way to tell from the four corners of the application which of these alternatives is the correct one. Florida Housing cannot step in and cure the defect in the application by making its own educated guess as to the intended identity of the Authorized Principal Representative. Berkeley has failed to demonstrate that Florida Housing’s preliminary determination of ineligibility was contrary to the applicable rules, statutes, policies, or specifications of the RFA, or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE SIERRA BAY APPLICATION The parties stipulated to the facts regarding the Sierra Bay Application, which are incorporated into this Recommended Order. Florida Housing deemed the Sierra Bay Application eligible and, pursuant to the terms of the RFA, preliminarily selected Sierra Bay for funding. In order to demonstrate site control, the RFA required execution of the Site Control Certification form. Site control documentation had to be included in the application. One way to demonstrate site control was to include an “eligible contract.” The RFA required that certain conditions be met in order to be considered an “eligible contract.” One of those requirements was that the contract “must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance.” Sierra Bay acknowledged that the site control documentation included within its application did not meet the “eligible contract” requirement because it failed to include language regarding specific performance as a remedy for the seller’s default. Sierra Bay agreed that the omission of the specific performance language was not a minor irregularity and that Sierra Bay’s Application is ineligible for funding under the terms of the RFA. THE SOLARIS APPLICATION The RFA specified that a Local Government, Public Housing Authority, Land Authority, or Community Land Trust must hold 100 percent ownership in the land of any qualifying Priority I application. The RFA defined “Community Land Trust” as: A 501(c)(3) which acquires or develops parcels of land for the primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease which retains a preemptive option to purchase any such structural improvement at a price determined by a formula designed to ensure the improvement remains affordable in perpetuity. The RFA provided that if a Community Land Trust is the Land Owner, the Community Land Trust must provide the following documentation as Attachment 2 to the application to demonstrate that it qualifies as a Community Land Trust: The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating it has existed since June 28, 2018 or earlier and that a purpose of the Community Land Trust is to provide or preserve affordable housing; and The Community Land Trust must provide a list that meets one of the following criteria to demonstrate experience of the Community Land Trust with owning property: (i) at least two parcels of land that the Community Land Trust currently owns; or (ii) one parcel of land that the Community Land Trust owns, consisting of a number of units that equals or exceeds at least 25 percent of the units in the proposed Development. The RFA required that the proposed development must be affordable in perpetuity. For purposes of the RFA, “perpetuity” means 99 years or more. Solaris identified Residential Options of Florida, Inc. (“Residential Options”), as the Community Land Trust owner in its Priority 1 Application. Attachment 2 of the Solaris Application included the Articles of Incorporation of Residential Options (“Original Articles”), filed with the Division of Corporations on July 30, 2014. The purpose of the corporation as stated in the Original Articles was as follows: Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code. Attachment 2 of the Solaris Application also included Amended and Restated Articles of Incorporation of Residential Options (“Amended Articles”), filed with the Division of Corporations on September 20, 2019. The Amended Articles retained the boilerplate statement of purpose of the Original Articles, but added the following paragraph: This shall include the purpose of empowering individuals with intellectual and developmental disabilities to successfully obtain and maintain affordable and inclusive housing of their choice and to provide affordable housing and preserve the affordability of housing for low- income or moderate income people, including people with disabilities, in perpetuity. Attachment 2 of the Solaris Application also included the Articles of Incorporation of ROOF Housing Trust, Inc. (“ROOF Housing Trust”) filed with the Division of Corporations on July 17, 2017. The purpose of the corporation as stated in these Articles includes the following: “to acquire land to be held in perpetuity for the primary purpose of providing affordable housing for people with developmental disabilities.” Finally, Attachment 2 of the Solaris Application included Articles of Merger, which were filed with the Division of Corporations on September 10, 2019. The Articles of Merger indicated that the Residential Options and ROOF Housing Trust had merged, with Residential Options standing as the surviving corporation. The petitioners contesting the Solaris Application raise several issues. The first issue is whether the RFA requires only that the entity named as the Community Land Trust have been in existence in some form as of June 28, 2018, or whether the entity had to exist as a Community Land Trust as of that date. The Community Land Trust named in the Solaris Application, Residential Options, existed prior to June 28, 2018, but not as a Community Land Trust. The second issue is whether the June 28, 2018, date applies only to the existence of the Community Land Trust or whether the RFA requires that the Community Land Trust have been in existence and have had a stated purpose to provide or preserve affordable housing and have met the ownership experience criteria as of June 28, 2018. It is questionable whether Solaris would be eligible for funding if the RFA required the latter, because Residential Options did not have a stated purpose of providing or preserving affordable housing prior to its merger with ROOF Housing Trust, at least no such purpose as could be gleaned from the four corners of the Solaris Application. The third issue is whether the RFA’s definition of “Community Land Trust” requires the qualifying entity to have existing ground leases at the time of the application. Florida Housing and Solaris concede that Residential Options did not have operative ground leases at the time Solaris submitted its application. Hurricane Irma struck Puerto Rico and Florida in September 2017. Ms. Button testified that in creating this RFA, Florida Housing wanted to weed out opportunistic community land trusts created only for the purpose of obtaining this funding. Florida Housing initially proposed an RFA requirement that the community land trust have existed as of September 2017, but discovered through workshops with interested parties that the early date would exclude legitimate Community Land Trusts that had been established in response to the storm. Ms. Button testified that Florida Housing’s intent was to make this RFA as inclusive as practicable. Florida Housing therefore selected June 28, 2018, as a date that would exclude opportunists without penalizing the genuine responders to the natural disaster. Both Florida Housing and Solaris point to the text of the RFA requirement to demonstrate that the date of June 28, 2018, should be read to apply only to whether the Community Land Trust existed as of that date. Solaris argues that the RFA states three independent criteria for eligibility: 1) that the Community Land Trust “has existed since June 28, 2018 or earlier”; 2) that a purpose of the Community Land Trust is1 to provide or preserve affordable housing; and 3) the Community Land Trust must demonstrate its property ownership experience, one means of doing which is to name at least two parcels of land that the Community Land Trust currently owns. Florida Housing argues that Solaris met the first criterion by providing its Articles of Incorporation showing it has existed since July 30, 2014. Florida Housing argues that Solaris met the second criterion by providing its Amended and Restated Articles of Incorporation, which stated the purpose of providing or preserving affordable housing in perpetuity. Florida Housing argues that Solaris met the third criterion by identifying two properties in Immokalee, Independence Place, and Liberty Place as parcels that it currently owns. Florida Housing thus reached the conclusion that Residential Options met the definition of a Community Land Trust in the RFA as of June 28, 2018. Florida Housing argues that, according to the definition in the RFA, a Community Land Trust must be a 501(c)(3) corporation, which Residential Options clearly is. It must acquire or develop parcels of land, which it has done. Finally, it must have the “primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease.” Ms. Button testified that Florida Housing’s interpretation of the RFA’s Community Land Trust definition was that if Residential Options had the primary purpose of providing affordable housing in perpetuity through the use of long term ground leases, the definition has been met even if Residential Options had not actually entered into any ground leases at the 1 Both Florida Housing and Solaris emphasize that the second criterion is stated in the present tense, which suggests that it does not intend a backward look to June 28, 2018. time it submitted its application. This is not the only way to read the RFA’s definition, but it is not an unreasonable reading, particularly in light of Florida Housing’s stated intent to make the RFA as inclusive as possible in terms of the participation of legitimate community land trusts. Sheryl Soukup, the Executive Director of Residential Options, testified via deposition. Ms. Soukup testified that in 2017, Residential Options realized there was a need for housing for people with disabilities and decided to become a nonprofit housing developer of properties that would be kept affordable in perpetuity. To that end, ROOF Housing Trust was created to act as the community land trust for the properties developed by Residential Options. The two companies had identical Boards of Directors and Ms. Soukup served as Executive Director of both entities. In its application to the IRS for 501(c)(3) status, ROOF Housing Trust included the following: The organization does not own any property yet. ROOF Housing Trust intends to own vacant land, single family homes, and multi-family units. Some of the units will be provided as rental units. ROOF Housing Trust will sell some of the houses for homeownership, while retaining the land on which they are located. The land will be leased to homeowners at a nominal fee to make the purchase price affordable, using the community land trust model. Ground leases and warranty deeds not been developed yet [sic], but will be based on the sample documents provided by the Florida Community Land Trust Institute.[2] Ms. Soukup described ROOF Housing Trust as “a vehicle by which Residential Options of Florida could act as a community land trust…. [I]t was always the intention of Residential Options of Florida to develop and put into 2 The ROOF Housing Trust 501(c)(3) application was not a part of the Solaris Application. It was included as an exhibit to Ms. Soukup’s deposition. a community land trust property so that it would remain affordable in perpetuity for use by people of intellectual and development [sic] disabilities.” Residential Options acquired the aforementioned Independence Place and Liberty Place properties but never conveyed ownership to ROOF Housing Trust. Residential Options acted as a de facto community land trust. No ground leases have yet been entered into because the properties are at present rented directly by Residential Options to persons with developmental disabilities. Ms. Soukup testified that at the time ROOF Housing Trust was created, the Board of Residential Options was undecided whether to create a separate entity to act as a community land trust or to incorporate that function into the existing entity. The decision to incorporate ROOF Housing Trust was based on the Board’s intuition that a separate corporation would “allow us the most flexibility in the future.” In any event, Residential Options and ROOF Housing Trust were functionally the same entity. Ms. Soukup testified that plans to merge the two companies emerged from a situation in which Collier County refused to allow Residential Options to convey its two properties to ROOF Housing Trust. The Board that controlled both companies decided that there was no point in maintaining separate legal entities if ROOF Housing Trust could not perform its main function. As noted above, Articles of Merger were filed on September 10, 2019. Northside points to minutes from Residential Options’s Board meetings in August and September 2019, as indicating that the Board itself did not believe that Residential Options was a community land trust prior to the merger with ROOF Housing Trust. Northside contends that the September 2019 merger was initiated and completed mainly because Residential Options had been approached about serving as the Community Land Trust for the applications of Solaris and Sierra Bay in this RFA. Northside points to the “frenzied activity” by Residential Options to create an entity meeting the definition of Community Land Trust in the days just before the September 24, 2019, application deadline. Northside argues that Residential Options is the very kind of opportunistic community land trust that the June 28, 2018, date of creation was intended to weed out. Northside’s argument is not persuasive of itself, but it does point the way to an ultimate finding as to the Solaris Application. Both Florida Housing and Solaris gave great emphasis to Ms. Soukup’s testimony to refute the suggestion that Residential Options acted opportunistically. Ms. Soukup was a credible witness. Her explanation of the process by which Residential Options first created then merged with ROOF Housing Trust dispelled any suggestion that Residential Options was a community land trust created solely to cash in on this RFA. The problem is that Ms. Soukup’s explanation was not before the Review Committee when it evaluated the Solaris Application. The only information about Residential Options that the Review Committee possessed was Attachment 2 of the Solaris Application. The dates of the merger documents and Amended Articles certainly give some credence to the suspicions voiced by Northside. However, the undersigned is less persuaded by the implications as to the intentions of Residential Options than by the contradictions between Florida Housing’s statements of intent and its reading of the RFA in relation to the Solaris Application. The decision to find the Solaris Application eligible for funding founders on the first issue stated above: whether the RFA requires only that the Community Land Trust have been in existence in some form as of June 28, 2018, or whether it had to exist as a Community Land Trust as of that date. Ms. Button testified that the June 28, 2018, date was settled upon as a way of including community land trusts created in the wake of Hurricane Irma, while excluding those created to cash in on this RFA. During cross- examination by counsel for Northside, Ms. Button broadened her statement to say that Florida Housing’s intention was to exclude entities that had not been involved in affordable housing at all prior to June 28, 2018. Nonetheless, the RFA language is limited to Community Land Trusts. The RFA states: “The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating that it has existed since June 28, 2018 or earlier…” The Solaris Application shows that Residential Options existed prior to June 28, 2018, but not as a Community Land Trust. Residential Options did not become a Community Land Trust until it completed its merger with ROOF Housing Trust and filed the Amended Articles on September 20, 2019. Ms. Button’s statement of intent is accepted as consistent with the plain language of the RFA: the date of June 28, 2018, excludes Community Land Trusts created subsequently. It is inconsistent for Florida Housing to also read the RFA language to say that the qualifying entity need not have existed as a Community Land Trust prior to June 28, 2018. It would be arbitrary for Florida Housing to set a date for the creation of Community Land Trusts then turn around and find that the date does not apply to this particular Community Land Trust. Ms. Soukup’s testimony was that Residential Options and ROOF Housing Trust were effectively a single entity and that Residential Options was in fact operating as a community land trust prior to the September 10, 2019, merger. However, Ms. Soukup’s explanation was not before the Review Committee, which was limited to one means of ascertaining whether an entity was a Community Land Trust prior to June 28, 2018: the Articles of Incorporation or Bylaws. Residential Options’s Original Articles included no language demonstrating that it was a Community Land Trust prior to the September 10, 2019, merger with ROOF Housing Trust and the filing of the Amended Articles on September 20, 2019.3 As set forth in the discussion of the Berkley Application above, Florida Housing is required to limit its inquiry to the four corners of an application. It was contrary to the provisions of the RFA for Florida Housing to find that Residential Options’s mere existence as a legal entity prior to June 28, 2018, satisfied the requirement that the Community Land Trust must demonstrate that it existed prior to June 28, 2018. Ms. Button’s own testimony demonstrated that Florida Housing intended to exclude Community Land Trusts created after June 28, 2018. ROOF Housing Trust existed as a Community Land Trust in 2017, but ROOF Housing Trust was not the Community Land Trust named in the Solaris Application. Ms. Soukup’s explanation of the circumstances showed that Residential Options was well intentioned in its actions, but her explanation was not a part of the Solaris Application that was before Florida Housing’s Review Committee. THE METRO GRANDE APPLICATION Florida Housing deemed the Metro Grande Application eligible. Pursuant to the terms of the RFA, the Metro Grande Application was preliminarily selected for funding. Petitioner Brisas contends that the Metro Grande Application should have been found ineligible for failure to include mandatory site control documentation. Metro Grande submitted a Priority I application that was not seeking Land Acquisition Program funding. The site control requirements for such applicants are as follows: 3 This finding also disposes of Solaris’s arguments regarding the legal effect of corporate mergers. The RFA provided one simple way of demonstrating whether an entity was a Community Land Trust as of June 28, 2018. Florida Housing’s Review Committee could not be expected to delve into the complexities of corporate mergers to answer this uncomplicated question. The Local Government, Public Housing Authority, Land Authority, or Community Land Trust must already own the land as the sole grantee and, if funded, the land must be affordable into Perpetuity.[4] Applicants must demonstrate site control as of Application Deadline by providing the properly executed Site Control Certification form (Form Rev. 08-18). Attached to the form must be the following documents: A Deed or Certificate of Title. The deed or certificate of title (in the event the property was acquired through foreclosure) must be recorded in the applicable county and show the Land Owner as the sole Grantee. There are no restrictions on when the land was acquired; and A lease between the Land Owner and the Applicant entity. The lease must have an unexpired term of at least 50 years after the Application Deadline. Metro Grande did not include a deed or certificate of title in its application. In fact, no deed or certificate of title for the Metro Grande site exists. Miami-Dade County owns the Metro Grande site. Miami-Dade County acquired ownership of the Metro Grande site by eminent domain. The eminent domain process culminated in the entry of four Final Judgments for individual parcels which collectively compose the Metro Grande site. The Final Judgments were not attached to Metro Grande’s Application. There was no requirement in the RFA that Metro Grande include these Final Judgments in its application. The Final Judgments were produced during discovery in this proceeding. In its application, Metro Grande included a Land Owner Certification and Acknowledgement Form executed by Maurice L. Kemp, as the Deputy Mayor of Miami-Dade County, stating that the county holds or will hold 100 percent ownership of the land where Metro Grande’s proposed 4 The RFA defined “Perpetuity” as “at least 99 years from the loan closing.” development is located. Additionally, in its application, Metro Grande stated that Miami-Dade County owned the property. The RFA expressly states that Florida Housing “will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation.” Florida Housing reserves the right to rescind an award to any applicant whose site control documents are shown to be insufficient during the credit underwriting process. Thus, the fact that no deed or certificate of title was included with Metro Grande’s site control documents was not considered by Florida Housing during the scoring process. Ms. Button testified that while this was an error in the application, it should be waived as a minor irregularity. The purpose of the documentation requirements was to demonstrate ownership and control of the applicant’s proposed site. There was no question or ambiguity as to the fact that Miami- Dade County owned the Metro Grande site. Florida Housing was not required to resort to information extraneous to the Metro Grande Application to confirm ownership of the site. The Land Owner Certification and Acknowledgement form, executed by the Deputy Mayor as the Authorized Land Owner Representative, confirmed ownership of the parcels. Metro Grande’s failure to include a deed or certificate of title, therefore, created no confusion as to who owned the property or whether Miami-Dade County had the authority to lease the property to the applicant. There was no evidence presented that the failure to include a deed or certificate of title resulted in the omission of any material information or provided a competitive advantage over other applicants. Brisas contends that the RFA was clear as to the documents that must be included to satisfy the site control requirements. Metro Grande failed to provide those documents or even an explanation why those documents were not provided. Florida Housing ignored the fact that no deed or certificate of title was provided, instead relying on information found elsewhere in the application. It is found that Metro Grande failed to comply with an eligibility item of the RFA, but that Florida Housing was correct to waive that failure as a minor irregularity that provided Metro Grande no competitive advantage, created no uncertainty as to whether the requirements of the RFA were met, and did not adversely affect the interests of Florida Housing or the public. Brisas has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEACON PLACE APPLICATION Florida Housing deemed the Beacon Place Application eligible. Pursuant to the terms of the RFA, Beacon Place was not preliminarily selected for funding. The RFA provides that an application may earn proximity points based on the distance between its Development Location Point and the selected Transit or Community Service. Proximity points are used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference. Beacon Place is a Large County Application that is not eligible for the “Public Housing Authority Proximity Point Boost.” As such, the Beacon Place Application was required to achieve a minimum Transit Point score of 2 to be eligible for funding. Beacon Place must also achieve a total Proximity Point score of 10.5 in order to be eligible for funding. Beacon Place must achieve a total Proximity Point score of 12.5 or more in order to receive the RFA’s Proximity Funding Preference. Based on the information in its Application, Beacon Place received a Total Proximity Point score of 18 and was deemed eligible for funding and for the Proximity Point Funding Preference. The Beacon Place Application listed a Public Bus Rapid Transit Stop as its Transit Service. Applying the Transit Service Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 6 Proximity Points for its Transit Service. The Beacon Place Application listed a Grocery Store, a Pharmacy, and a Public School in its Community Services Chart in order to obtain Proximity Points for Community Services. Using the Community Services Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 4 Proximity Points for each service listed, for a total of 12 Proximity Points for Community Services. Beacon Place has stipulated, however, that the Public School listed in its application does not meet the definition of “Public School” in the RFA and Beacon Place should not receive the 4 Proximity Points for listing a public school. The RFA defines a “Public Bus Rapid Transit Stop” as: [a] fixed location at which passengers may access public transportation via bus. The Public Bus Rapid Transit Stop must service at least one bus that travels at some point during the route in either a lane or corridor that is exclusively used by buses, and the Public Bus Rapid Transit Stop must service at least one route that has scheduled stops at the Public Bus Rapid Transit Stop at least every 20 minutes during the times of 7am to 9am and also during the times of 4pm to 6pm Monday through Friday, excluding holidays, on a year- round basis. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. The Beacon Place Application included Metrobus Route 38 (“Route 38”) as a Public Bus Rapid Transit Stop. Route 38 has scheduled stops at the location identified in the Beacon Place Application at the following times during the period of 7 a.m. and 9 a.m. Monday through Friday: 7:01, 7:36, 7:56, 8:11, 8:26, 8:41, and 8:56. Brisas and Northside contend that Route 38 does not meet the definition of a Public Bus Rapid Transit Stop because there is a gap of more than 20 minutes between the 7:01 a.m. bus and the 7:36 a.m. bus. Applicants are not required to include bus schedules in the application. Florida Housing does not attempt to determine whether an identified stop meets the RFA definitions during the scoring process. During discovery in this litigation, Florida Housing changed its position and now agrees that Route 38 does not satisfy the definition. Nonetheless, the standard of review set forth in section 120.57(3) is applicable to Florida Housing’s initial eligibility determination, not its revised position. All parties stipulated that Route 38 meets the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 4 p.m. to 6 p.m. Monday through Friday. If the bus stop listed by Beacon Place does not also meet the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 7 a.m. to 9 a.m., Beacon Place would not be entitled to any Transit Service Proximity Points and would be ineligible for funding. Beacon Place cannot contest the fact that there is a 35 minute gap between the 7:01 and the 7:36 buses. Beacon Place has attempted to salvage its situation by comparing the language used in the RFA definition of a Public Bus Stop with that used in the definition of a Public Bus Rapid Transit Stop. The RFA defines Public Bus Stop in relevant part as [a] fixed location at which passengers may access one or two routes of public transportation via buses. The Public Bus Stop must service at least one bus route with scheduled stops at least hourly during the times of 7am to 9am and also during the times of 4pm and 6pm Monday through Friday, excluding holidays, on a year round basis…. Florida Housing has interpreted the “hourly” requirement of the Public Bus Stop definition to mean that a bus must stop at least once between 7:00 a.m. and 8:00 a.m., and at least once between 8:00 a.m. and 9:00 a.m. Beacon Place suggests that Florida Housing should interpret the “every 20 minutes” requirement for a Public Bus Rapid Transit Stop similarly, so that a bus must stop at least once between 7:00 a.m. and 7:20 a.m., once between 7:20 a.m. and 7:40 a.m., and once between 7:40 a.m. and 8:00 a.m. Florida Housing has rejected this interpretation, however, noting that the language in the two definitions is explicitly different. Ms. Button testified that if Florida Housing had intended these two distinct definitions to be interpreted similarly, it could easily have worded them differently. It could have required a Public Bus Stop to have stops “at least every 60 minutes,” rather than “hourly.” It could have required a Public Bus Rapid Transit Stop to have “three stops per hour” rather than “every 20 minutes.” Ms. Button observed that the purpose of the Public Bus Rapid Transit Stop definition is to award points for serving the potential residents with frequent and regular stops. The idea was to be sure residents had access to the bus during the hours when most people are going to and from work. Florida Housing’s interpretation of “every 20 minutes” is consonant with the plain language of the phrase and reasonably serves the purpose of the definition. Florida Housing also rejected the idea that the failure of the identified stop to meet the definition of a Public Bus Rapid Transit Stop in the RFA should be waived as a minor irregularity. Ms. Button testified that allowing one applicant to get points for a stop that did not meet the definition would give it a competitive advantage over other applicants, including some potential applicants who did not apply because they could not satisfy the terms of the definition. Because the bus stop listed by Beacon Place does not meet the definition of a Public Bus Rapid Transit Stop, Beacon Place is not entitled to any Transit Service Proximity Points and is thus ineligible for funding. Brisas and Northside have demonstrated that Florida Housing’s preliminary determination of eligibility for Beacon Place was contrary to the specifications of the RFA. Florida Housing’s original recommendation would have been contrary to the terms of the RFA. THE EAST POINTE APPLICATION Florida Housing deemed the East Pointe Application eligible. Pursuant to the terms of the RFA, East Pointe was preliminarily selected for funding. Bella Vista challenged Florida Housing’s action alleging that the Medical Facility selected by East Pointe did not meet the definition found in the RFA. East Pointe proposed a Development in Lee County, a Medium County according to the terms of the RFA. Applicants from Medium Counties are not required to attain a minimum number of Transit Service Points to be considered eligible for funding. However, such applicants must achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. The East Pointe Application identified three Public Bus Stops and was awarded 5.5 Proximity Points based on the Transit Service Scoring Chart in Exhibit C to the RFA. However, East Pointe has stipulated that Public Bus Stop 1 listed in its application does not meet the definition of a Public Bus Stop because it does not have the required scheduled stops. Based on the Transit Service Scoring Chart, East Pointe should receive a total of 3.0 Proximity Points for Transit Services for Public Bus Stops 2 and 3. East Pointe listed a Grocery Store, a Medical Facility, and a Public School in its Community Services Chart. Based on the Community Services Scoring Charts in Exhibit C to the RFA, East Pointe received 1 Proximity Point for its Grocery Store, 4 Proximity Points for its Medical Facility, and 3 Proximity Points for its Public School, for a total of 8 Proximity Points for Community Services. East Pointe listed Lee Memorial Health System at 3511 Dr. Martin Luther King Jr. Boulevard, Ft. Myers, Florida, as its Medical Facility. The RFA defines “Medical Facility” as follows: A medically licensed facility that (i) employs or has under contractual obligation at least one physician licensed under Chapter 458 or 459, F.S. available to treat patients by walk-in or by appointment; and (ii) provides general medical treatment to any physically sick or injured person. Facilities that specialize in treating specific classes of medical conditions or specific classes of patients, including emergency rooms affiliated with specialty or Class II hospitals and clinics affiliated with specialty or Class II hospitals, will not be accepted. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. If East Pointe’s selected Medical Facility does not meet the definition of “Medical Facility” in the RFA, East Pointe will lose 4 Proximity Points, reducing its total Proximity Points to 7. The East Pointe Application would still be eligible but would not receive the Proximity Funding Preference and, therefore, would fall out of the funding range of the RFA. Bella Vista alleged that East Pointe should not have received Proximity Points for a Medical Facility because the Lee Community Healthcare location specified in its application “only serves adults and therefore only treats a specific group of patients.” Lee Community HealthCare operates nine locations in Lee County, including the “Dunbar” location that East Pointe named in its application. Lee Community Healthcare’s own promotional materials label the Dunbar location as “adults only.” Robert Johns, Executive Director for Lee Community Healthcare, testified by deposition. Mr. Johns testified that as of the RFA application date of September 24, 2019, the Dunbar office provided services primarily to adults 19 years of age or over, by walk-in or by appointment. A parent who walked into the Dunbar office with a sick or injured child could obtain treatment for that child. A parent seeking medical services for his or her child by appointment would be referred to a Lee Community HealthCare office that provided pediatric services. Mr. Johns testified that the Dunbar office would provide general medical treatment to any physically sick or injured person who presented at the facility, including children. Children would not be seen by appointment at the Dunbar facility, but they would be treated on a walk-in basis. The RFA requires a Medical Facility to treat patients “by walk-in or by appointment.” Ms. Button testified that Florida Housing reads this requirement in the disjunctive. A Medical Facility is not required to see any and all patients by walk-in and to see any and all patients by appointment. Florida Housing finds it sufficient for the Medical Facility to see some or all patients by walk-in or by appointment. Ms. Button opined that the Dunbar office met the definition of a Medical Facility because it treated adults by walk-in or appointment and treated children on a walk-in basis. Florida Housing’s reading is consistent with the literal language of the RFA definition. While it would obviously be preferable for the Dunbar facility to see pediatric patients by appointment, the fact that it sees them on a walk-in basis satisfies the letter of the RFA provision. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEMBRIDGE APPLICATION Florida Housing deemed the Bembridge Application eligible. Pursuant to the terms of the RFA, Bembridge was preliminarily selected for funding. Bembridge proposed a development in Collier County, a Medium County in RFA terms. As an applicant from a Medium County, Bembridge was required to achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. Medium County applicants are allowed, but not required, to claim both Transit Service points and Community Service points. As to Community Services, the RFA provides that an applicant may receive a “maximum 4 Points for each service, up to 3 services.” The RFA goes on to state: Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score.[5] The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. In its Application, Bembridge listed four, not three, Community Services. Bembridge was one of six Applicants that mistakenly submitted four Community Services instead of three. The Review Committee scorer reviewing Community Services in the applications stated on her scoring sheet: “After removing points for the service with the least amount of points, all still met the eligibility requirement.” 5 The four listed Community Services were Grocery Store, Public School, Medical Facility, and Pharmacy. Florida Housing interpreted the RFA as not specifically prohibiting an applicant from listing four Community Services, but as providing that the applicant could receive points for no more than three of them. As to the six applicants who submitted four Community Services, Florida Housing awarded points only for the three Community Services that were nearest the proposed development.6 Bembridge received 3 Proximity points for its Grocery Store, 3.5 Proximity Points for its Pharmacy, and 4 Proximity Points for its Public School, for a total of 10.5 Proximity Points for Community Services. Thus, as originally scored, Bembridge met the Proximity Funding Preference. Florida Housing did not score the Medical Facility listed by Bembridge, which was the farthest Community Service from the proposed development. Ms. Button testified that this fourth Community Service was treated as surplus information, and because it did not conflict with any other information in the application or cause uncertainty about any other information, it was simply not considered. Ms. Button likened this situation to prior RFAs in which applicants included pharmacies as Community Services even though they were not eligible in proposed family developments. Florida Housing disregarded the information as to pharmacies as surplus information. It did not consider disqualifying the applicants for providing extraneous information. Ms. Button also made it clear that if one of the three Community Services nearest the proposed development was found ineligible for some reason, the fourth Community Service submitted by the applicant would not be considered. The fourth Community Service was in all instances to be disregarded as surplusage in evaluating the application. 6 When queried as to whether the fourth Community Service was removed because it was worth the fewest points, as the reviewer’s notes stated, or because it was farthest away from the proposed development, Ms. Button replied that the distinction made no difference because the service that is farthest away is invariably the one that receives the fewest points. Florida Housing did not consider disqualifying Bembridge and the other five Applicants that mistakenly listed an extra Community Service in their applications. Ms. Button stated, “They provided in all of them, Bembridge and the others that were listed in this, they did provide three Community Services. And so I don’t think it is reasonable to throw out those applications for providing a fourth that we would just not consider nor give benefit to for those point values.” Bella Vista contends that Florida Housing should have rejected the Bembridge application rather than award points for the three nearest Community Services. Ms. Button testified that this was not a reasonable approach if only because there was nothing in the RFA stating that an application would be rejected if it identified more Community Services than were required. Ms. Button also noted that this was one of the first RFAs to allow applicants to select among four Community Services. She believed the novelty of this three-out-of-four selection process led to six applications incorrectly listing four Community Services. She implied that the Community Services language would have to be tweaked in future RFAs to prevent a recurrence of this situation, but she did not believe it fair to disqualify these six applicants for their harmless error. The Review Committee scorer did not perform a minor irregularity analysis relating to the fourth Community Service provided by Bembridge and the other applicants. Ms. Button opined that the addition of an extra Community Service amounts to no more than a minor irregularity because it provided no competitive advantage to the applicant and created no uncertainty that the terms and requirements of the RFA have been met. The RFA allows up to six proximity points for Transit Services. It specifically provides: Up to three Public Bus Stops may be selected with a maximum of 2 points awarded for each one. Each Public Bus Stop must meet the definition of Public Bus Stop as defined in Exhibit B, using at least one unique bus route. Up to two of the selected Public Bus Stops may be Sister Stops that serves the same route, as defined in Exhibit B. The RFA defines “Sister Stop” as: two bus stops that (i) individually, each meet the definition of Public Bus Stop, (ii) are separated by a street or intersection from each other, (iii) are within 0.2 miles of each other, (iv) serve at least one of the same bus routes, and (v) the buses travel in different directions. The Bembridge Application listed two Public Bus Stops, the definition of which is set forth at Finding of Fact 107 above. Based on the Transit Service Scoring Chart, Bembridge received a total of 1.0 Proximity Point for Transit Services for its two Public Bus Stops. Numerous questions were asked at the hearing about whether Bembridge’s identified bus stops were “Sister Stops” as defined in the RFA, and the evidence on that point was not definitive. However, whether they are Sister Stops is irrelevant because each stop identified by Bembridge independently met the definition of “Public Bus Stop” in the RFA and was therefore eligible for Transit Proximity Points. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order as to RFA 2019-102 finding that: The Berkeley Application is ineligible for funding; The Sierra Bay Application is ineligible for funding; The Solaris Application is ineligible for funding; The Metro Grande Application is eligible for funding; The Beacon Place Application is ineligible for funding; The East Pointe Application is eligible for funding and entitled to the Proximity Funding Preference; and The Bembridge Application is eligible for funding. DONE AND ENTERED this 6th day of April, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of April, 2020. COPIES FURNISHED: Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 820 106 East College Avenue Tallahassee, Florida 32301 (eServed) Amy Wells Brennan, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Anthony L. Bajoczky, Jr., Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32301 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 (eServed) Michael J. Glazer, Esquire Ausley & McMullen, P.A. 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Seann M. Frazier, Esquire Parker, Hudson, Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Betty Zachem, 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 32301-1329 (eServed)
Findings Of Fact In 1987 the City of St. Petersburg sought permission to file an application for an Areawide Development of Regional Impact (DRI) for the Intown Area. On July 23, 1987, notice was sent to each property owner within the proposed Areawide DRI. The notice indicates that a public hearing would be held on August 27, 1987, from which the St. Petersburg City Council would decide whether to authorize the City of St. Petersburg to proceed to apply for the DRI. Petitioner, John Warren, received said notice and owns property within the area encompassing the Areawide DRI. Further notices were provided to property owners within the area, including a notice of the petition filed by the City which was published in the St. Petersburg Times on July 27, 1987; a notice to property owners dated September 1, 1987, advising that the City was authorized to proceed with the Intown Areawide DRI; and three other notices regarding public hearings and consideration of the DRI. After all required notice, the St. Petersburg City Council considered the proposed Areawide DRI on December 15, 1988, and formally adopted the DRI by Ordinance No. 1072-F. The ordinance was signed on December 15, 1988. A Notice of Adoption of a Development Order was executed and recorded in the public records on December 20, 1988. The development order enacted on December 15, 1988, was transmitted to the Department of Community Affairs and the Tampa Bay Regional Planning Council on December 19, 1988, and to the City Clerk on December 20, 1988. A certified copy of the DRI Ordinance 1072-F as enacted on December 15, 1988, is a part of the record as Exhibit K and it is incorporated by reference. Thereafter the Tampa Bay Regional Planning Council appealed the DRI pursuant to Section 380.07(2), Florida Statutes, to the Florida Land and Water Adjudicatory Commission. The City and Tampa Bay Regional Planning Council reached an agreement for settling the appeal and said settlement was finalized in the Stipulated Settlement Agreement. Pursuant to the Stipulated Settlement Agreement, the St. Petersburg City Council, at its February 2, 1989, meeting, adopted the terms of the Settlement Agreement, modified Ordinance 1072-F to incorporate the settlement terms, and adopted Ordinance 1072-F as modified. Based upon the settlement and modification of the DRI by the St. Petersburg City Council, on February 7, 1989, the Tampa Bay Regional Planning Council filed a Notice of Voluntary Dismissal of its appeal to the Florida Land and Water Adjudicatory Commission. The Florida Land and Water Adjudicatory Commission entered a Final Order of Dismissal on February 20, 1989. Warren filed his Petition on Appeal on March 20, 1989. The Petition is filed pursuant to Sections 380.06(25)(h) and 380.07, Florida Statutes, and Rule 42-2.002, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Amended Motion to Dismiss and dismissing the Petition on Appeal filed by John Warren. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. COPIES FURNISHED: Peter B. Belmont Patty Woodworth, Secretary Attorney at Law Planning and Budgeting 511 31st Avenue North Executive Office of the Governor St. Petersburg, Florida 33704 The Capitol, PL-05 Tallahassee, Florida 32399-0001 Michael S. Davis Mirelle Murphy James Honorable Bob Martinez Mark A. Winn Governor, State of Florida Attorneys at Law The Capitol Post Office Box 2842 Tallahassee, Florida 32399 St. Petersburg, Florida 33731 Honorable Robert A. Butterworth Roger S. Tucker Attorney General Attorney at Law State of Florida Tampa Bay Regional Planning The Capitol Council Tallahassee, Florida 32399-1050 Suite 209 9455 Koger Boulevard Honorable Doyle Conner St. Petersburg, Florida 33702 Commissioner of Agriculture State of Florida Jeffrey N. Steinsnyder The Capitol Attorney at Law Tallahassee, Florida 32399-0810 Department of Community Affairs 2740 Centerview Drive Honorable Betty Castor Suite 138 Commissioner of Education Tallahassee, Florida 32399-2100 State of Florida The Capitol James C. Vaughn, Jr. Tallahassee, Florida 32399 Governmental Analyst Florida Land and Water Honorable Jim Smith Adjudicatory Commission Secretary of State The Capitol State of Florida Tallahassee, Florida 32399 The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Honorable Gerald Lewis Commissioner Comptroller, State of Florida State of Florida The Capitol The Capitol Tallahassee, Florida 32399-0350 Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 2007, a Florida- licensed community association manager. At the time of his initial licensure, Respondent's legal name was Ferdinand A. Resto, Jr. In or some time before July 2009, he legally changed his name to Fernando A. Laracuente.6 Respondent is the owner of a residential unit at the North Bay Villas Condominium complex (Condominium). The governing body of the Condominium is the North Bay Villas Condominium Association. On and off since 2007, Respondent has held various offices on the Association's Board of Directors (Board), including that of secretary. At all times material to the instant case, Respondent was the sole owner and officer of North Bay Property Management, Inc. (Management), a duly registered Florida corporation.7 Management is a Florida-licensed community association management firm. Respondent is its "qualifier." At all times material to the instant case, Management provided community association management services to the Association. It did so through hired licensed community association managers, other than Respondent, who were present on the premises of the Condominium (working out of the property management office8) 40 hours a week. These licensed community association managers employed by Management were hand-picked by, and responsible for acting in accordance with the directions of, the Board. The property management office out of which these licensed community association managers worked had a computer the managers were to use in carrying out their duties. The computer was set up so that e-mail correspondence sent from the office (using the e-mail application installed on the computer) would reflect that it was from "Fernando Resto (northbayproperty @gmail.com)." On July 1, 2009, there was a meeting of the Board. Respondent was not, at the time, a member of the Board. It was the responsibility of the secretary of the Board to prepare the minutes of Board meetings. Management, through the licensed community association managers it hired, assisted the secretary in fulfilling this responsibility. On Friday, July 10, 2009, at around 11:30 a.m., during the workday of the licensed community association manager then employed by Management, an e-mail was sent to unit owners from the computer in the Condominium's property management office. This e-mail read as follows: Dear Home Owners, Attached are the minutes of the previous board meeting held on 6/1/2009 [sic], per the request of many of you. If you have any questions, please do not hesitate to contact the office. Management Visit North Bay Villas Condo Association online at: http://www.northbaypropertymanagement.com/ northbayvillas Attached to the e-mail were what purported to be "minutes" of the July 1, 2009, Board meeting, written on Management letterhead. These "minutes" had not been approved by the Board for dissemination to unit owners. The record evidence does not clearly and convincingly establish that this July 10, 2009, e-mail was personally sent by Respondent, or at his direction. Respondent was the secretary of the Board for the first eight months of 2010. (A new secretary took office on or about August 28, 2010, following Board elections.) By letter dated February 16, 2010, addressed to Respondent at the Condominium property management office address, Adam Steinberg, Esquire, an attorney acting on behalf of Adriana Vasquez Caraballo, a Condominium unit owner, made a "[r]equest for Condominium [r]ecords." The body of the letter read as follows: Pursuant to Florida Statute 718.111(12)(c), this correspondence is an official request to review and obtain copies of the records of North Bay Villas Condominium Association, Inc. Pursuant to the foregoing section, please find below Adriana M. Vazquez's (Unit 221) signature with a properly executed notary page indicating that Ms. Vazquez has appointed Richard C. Muller, CAM, and me as her duly authorized representatives to secure copies of North Bay Villas Condominium Association, Inc.'s records. Florida Statute 718.111(12)(a) designates the following as official records of the condominium and I hereby request a time, date (within 10 days of receipt of this request), and place to review and copy these records: Minutes of board meetings for 2008, 2009, and 2010; A current roster; A copy of the current management agreement; Accounting records for fiscal years 2008, 2009 and 2010 year to date; Annual audits; General ledger; Bank statements; Accounts receivable; "A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due." Florida Statute 718.111(12)(a)11.b; If a general ledger is not available, "accurate, itemized, and detailed records of all receipts and expenditures," in accordance with Florida Statute 718.111(12)(a)11.a., will suffice; and All voting records from the last annual election. At your earliest convenience, please contact me or Richard C. Muller. Mr. Steinberg's February 16, 2010, letter was received in the property management office. The Management-hired licensed community association manager servicing the Association at the time was Cheryl Montgomery Barker. Ms. Barker contacted Respondent, who, as the secretary of the Board, was the custodian of the Association's records, and notified him of the contents of Mr. Steinberg's letter. Respondent, together with other members of the Board, sought and obtained the advice of counsel as to how to respond to the letter. Consistent with that advice, the following letter, on Management letterhead, was sent to Mr. Steinberg on February 23, 2010, on behalf of the Board: We are in receipt of your public records request dated February 16, 2010 and received by our offices on February 19, 2010. Pursuant to Florida Statute 718.111(12)(c),[9] we hereby notify you that an appointment has been set for Ms. Adirana [sic] M. Vazquez to inspect Association records for: Date: March 08th, 2010 Place: Management Office, 1801 S. Treasure Drive, N Bay Village, Fl 33141 Time: 4:00 p.m. Please also note that pursuant to [sic] Florida Statute 718.111(12), also stipulates that the disclosures and copies are governed according to the Rules and Policies adopted by an Association. It is the policy of the Association that your client or representatives adheres to the following when inspecting Association public records: Your office staff will be granted access to available records. However, not all records may be immediately available. The Association will notify Ms. Caraballo, you or any other authorized representatives when the rest of the records would be available for inspection (if the records exist) and a new appointment for these records would be given. Your client will not be allowed to make any copies on the spot, as some information may have to be redacted that may identify a homeowner or provide privileged information. However, your client may request to have certain copies made at the rate of $0.25 per page, after inspecting the records. It is highly suggested that your client brings [sic] post-it notes, so that she may mark those pages she wishes to have copies of. The Association will notify your client when such copies are available to pick up and the price per copy incurred. A cashier's check or money order must be given to the Association (North Bay Villas Condominium Association) for the first total number of copies and check must clear, prior to disbursement of any copies of the Association records. The Association, its agent or authorized representatives will not engage in any discussion of such records and neither your client nor her authorized representatives should disrupt the normal day-to-day operations of the Association to carry out its duties to manage said property during the inspection period. Nor would the Association will [sic] provide the files in any particular order. Any violation of these rules, disorderly conduct or disruption to the normal day-to- day operation of the Association will be caused [sic] to have the inspection session terminated. If there are any questions regarding this issue or anything further to that this Association must address, please direct all questions to: Ms. Cheryl Montgomery, LCAM Property Manager Agent for North Bay Villas Condominium Association, Inc. 1801 S. Treasure Drive, Management Office N Bay Village FL 33141 Tel (305)867-8821 Fax (305)397-0990 Email: montgomery@northbayproperty management.com In and For the Board of Directors, Cheryl Montgomery-Barker Cheryl Montgomery-Barker, LCAM Property Manager Agent for North Bay Villas Condominium Association Neither Ms. Caraballo, nor Mr. Steinberg, appeared at the property management office at the appointed date and time (March 8, 2010, at 4:00 p.m.) to inspect the Association's records.10 In April 2010, Ms. Caraballo renewed the records request her attorney had made a couple of months earlier, and was given a May 10, 2010, appointment by Ms. Barker to inspect the Association's records. Ms. Caraballo met with Ms. Barker on May 10, 2010, as scheduled, and viewed the Association's records. On May 14, 2010, Ms. Caraballo signed a Receipt for Condominium Documents, which read, in pertinent part, as follows: This public records requested [sic] dated on April 26th, 2010 and received by North Bay Villas Condominium Association on May 5th, 2010, has been completed [sic] provided by F.S. 718.111(12)(c). Homeowner acknowledges receipt of all files in accordance with the statutory [sic] and by receiving such documents holds harmless, North Bay Villas Condominium Association, Inc. and its duly appointed representatives of the Board of Directors. This request is deemed complete. Ms. Barker's employment with Management was terminated 11 days later, on May 25, 2011. As secretary of the Board, Respondent was involved in the running of the 2010 Board elections. Ms. Caraballo, in or around April 2010, filed a complaint concerning this election with the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (FCTMH). William Smith, an FCTMH investigator, was assigned to investigate the complaint. On May 18, 2010, Mr. Smith wrote the following letter to the Board: Re: North Bay Villas Condominium Association Case No. 2010021485 Dear Mr. Laracuente as Secretary, and other Members of the Board: As discussed with Mr. Laracuente during our May 17, 2010, telephone conversation, the Division of Florida Condominiums, Timeshares, and Mobile Homes has completed its investigation, and is addressing the allegations below by providing educational information pursuant to rule 61B-21.002, Florida Administrative Code. The Association failed to include all timely submitted names of eligible candidates on the ballot for the election scheduled June 4, 2010. Specifically, candidates were instructed to send notice of intent to: Fernando A. Laracuente-Secretary North Bay Villas Condominium Association, Inc. 15551 SW 14th St. Miami, FL 33194 Three Candidates sent certified letters of intent in a timely manner (Andrea Gomez, Roxana Fracchi, and Natalia Guida-Pometti) to the [a]fore-mentioned address. The three certified letters sent by these individuals (as evidenced by USPS Track and Confirm documentation) were delivered and "REFUSED" on April 19, 2010. The letters were subsequently re-delivered and accepted on April 21, 2010, one day after the cut off date for timely notice. During the course of the investigation a number of pertinent facts came to the forefront: The Management office for North Bay Villas Condominium Association, Inc. is located at 1801 South Treasure Drive, North Bay Village, FL 33141. The hours for the North Bay Village [sic] Management Office are 09:00 to 13:00 and 14:00 to 17:00 Monday through Friday. The written request[s] to be a Candidate for the Board of Directors were dated April 14, 2010 for Roxanne Fracchia, April 15, 2010 for Natalie Guida-Pometti, and April 16, 2010 for Andrea Gomez. Notice[s] from Fracchia, Guida- Pometti, and Gomez were received on April 19, 2010, at the address indicated in instructions. That address was Fernando A. Laracuente, Secretary, North Bay Villas Condominium, Association, Inc., 15551 SW 14th Street, Miami, FL 33194. However, Track & Confirm certification from the United States Postal Service indicates that although received 11:10 a.m. on April 19, 2010 mail items numbered 7009 3410 0002 1310 0881, 7009 3410 0002 1310 9211, and 7009 3410 0002 1310 9228 were refused to be accepted. The cut off date for notice of intent to run as a candidate was April 20, 2010. The aforementioned certified letters were delivered and accepted on April 21, 2010. Fracchia, Guida-Pometti, and Gomez were denied the opportunity to be candidates for the Board. The Association has an obligation to accept certified mail at the address it indicates in the first mailing. Whereas the Association instructed unit holders to send their intent of Candidacy to a specific address, and given that the Association has an obligation to accept said notice during normal business hours a violation has occurred which requires corrective action. The candidates are eligible. 61B-23.0021(9) of the Florida [A]dministrative Code states: "The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, then the association must re-notice and reschedule the election. If the election has already been held, under these circumstances the association shall conduct a new election." There is corrective action required which is to redo the election process from the fourteen day notice forward with the three candidates in question on the ballot. This entire process must be completed by June 15, 2010. By June 1, 2010 the following evidence is to be sent to the Division: Second notice of the new election; Affidavit of mailing the second notice of the new election; Candidate information sheets for the new election; Ballot for the new election; Outer envelope sample for the new election; Inner envelope sample for the new election. Upon completion of the election by June 15, 2010 the following is to be sent to the Division: List of eligible voters for the new election; Tally sheets for the new election; Minutes of the annual meeting and election. As discussed, rule 61B-21.002(4), Florida Administrative Code, provides that associations must provide a written response to a Warning Letter. Mr. Laracuente on behalf of the Board agreed to submit a response to this letter by May 28, 2010. The response must include confirmation of the violation, and the Association[']s agreement to comply in the future. Additionally, the Association must implement corrective action, which is a redo of the election from the fourteen day notice. However, should the Association disagree with or want to challenge the Division's findings, the Association may request the Division enter a Notice to Show Cause. If such request is received or if the Association disputes the Division's findings, the Division may conduct further investigation into the Association's response, which may require the production of further documentation, and issue a Notice to Show Cause that will provide the Association an opportunity to dispute the Division's findings and ask for a hearing. Failure to reply, take corrective action as requested herein, or repeated violations of a similar nature within two years from the date the violation is resolved, may result in an enforcement action by the Division as well as civil penalties of up to $5,000 per violation. Your attention is directed to rule 61B- 23.002(7)(b)1., Florida Administrative Code, which requires retention of this letter or a copy thereof among the official records of your Condominium Association for future reference. Please address your response to me at the address listed on our letterhead. If you have any questions about this matter, please contact me at 954.202.3983, extension 111, william.smith@dbpr.state.fl.us. The Board decided not to challenge the findings made by Mr. Smith in his May 18, 2010, letter. Instead, it sent out an amended notice of election to unit owners which listed Ms. Fracchia, Ms. Guida-Pometti, and Ms. Gomez as eligible candidates who would be on the ballot for the June 2010 election. This amended notice of election, however, did not "explain the need for the amended notice," as required by Florida Administrative Code Rule 61B-23.0021(9). Mr. Smith telephoned Respondent to notify him, as the contact person for the Board, of this deficiency in the Board's response to the May 18, 2010, letter. Respondent took the matter to the other members of the Board. The Board made the decision to cancel the June 2010 election. The election was rescheduled for, and ultimately held, in August 2010. Around the time that Mr. Smith was conducting his investigation, Respondent had a conversation with one of Petitioner's investigators, Beatriz Caldera, who was investigating a complaint that had been filed with Petitioner against Respondent. During this conversation, Ms. Caldera questioned whether it was a conflict of interest for Respondent to serve on the Board and also be the owner of the community association management firm (Management) providing community association management services to the Association. In his response, Respondent told Ms. Caldera, among other things, that there were three owners of Management, which was not true inasmuch as he was Management's sole owner at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation issue a Final Order dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED this 26th day of September, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 26th day of September, 2011.
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999.
The Issue The issue for determination is whether Respondent's intended decision to fund the application of Petitioner Duval Park, Ltd. (Duval Park), is contrary to its governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Housing is a public corporation that administers low-income housing tax credit programs. As of July 1, 2012, Florida Housing was authorized to use up to ten percent of its annual allocation of low-income housing tax credits to fund high-priority affordable housing developments selected through a competitive solicitation process, such as the RFP. See Ch. 2012-127, § 4, Laws of Fla. (2012)(creating § 420.507(48), Fla. Stat.). Examples of "high priority" affordable housing developments include housing for veterans and their families, and housing for persons with special needs. Prior to issuing the RFP, Florida Housing conducted some demonstration RFPs for developments serving special needs households, but the RFP represents the first actual use of the competitive solicitation process to award low-income housing tax credits. Previously, low-income housing tax credits were awarded through what was known as the universal application cycle, a process described as cumbersome, lengthy, and inflexible. As part of the universal application cycle, an applicant could indicate by checking a box that it intended to provide affordable housing to special needs households. However, the general universal application process did not lend itself to a targeted proposal detailing how the unique needs of specific special-needs population groups would be addressed. The competitive solicitation process was seen as a way to allow applicants to respond to particular high-priority development needs identified by Florida Housing. In setting forth their development proposals for defined target population groups, applicants would be able to tell their story: applicants would identify and describe the unique needs and household characteristics of the specific special-needs population group that is the focus of their application; applicants could detail and demonstrate their know-how with regard to the resources available in the community where the proposed development is located, to meet the unique needs of the target population; and applicants would be able to discuss the relevant experience of the developer and management teams that make them well-suited to carry out the proposed development and meet the unique needs of the targeted population group. The RFP The RFP solicited responses or applications proposing the development of "permanent supportive housing" (as defined in the RFP) for persons with special needs. Florida Housing issued the RFP with the expectation of funding two or more proposals. The RFP provided that applicants could propose developments for persons with special needs generally, or applicants could choose to focus on serving veterans with special needs. If an applicant chose to focus on veterans with special needs, the applicant was required to pick one of two specific subcategories: either veterans with service-connected disabling conditions transitioning from a Veterans' Administration (VA) hospital or medical center; or chronically homeless/ institutionalized veterans with disabling conditions who were significant users of public resources, such as emergency care and shelter. The RFP specified that it was Florida Housing's goal to fund at least one development proposing to serve veterans with special needs. Preference would be given to proposed developments focusing on serving special-needs veterans in the first subcategory, i.e., veterans transitioning from VA hospitals and medical centers. Duval Park, Osprey, and five other applicants timely submitted applications in response to the RFP. Both Duval Park and Osprey proposed permanent supportive housing developments to serve veterans with special needs transitioning from VA hospitals and medical centers. As described in the RFP, an evaluation committee comprised of Florida Housing employees reviewed and scored the applications. Members of the evaluation committee were instructed to independently evaluate and score the application sections assigned to them. The RFP specified that at least one public meeting would be held at which the evaluators were allowed to discuss their evaluations, make any adjustments deemed necessary to best serve the interests of Florida Housing's mission, and develop recommendations for the Florida Housing Board of Directors. For most application sections, a single evaluator was assigned to review and score the seven responses. For example, Mr. Aldinger was the evaluator who reviewed and scored the two application sections addressing developer and management company experience with permanent supportive housing. Two application sections were assigned for evaluation and scoring by two evaluation committee members. The two evaluators first independently reviewed and scored all seven application responses for the two sections. Then the two evaluators met in a noticed public meeting to conduct a "reconciliation process," in which they discussed their evaluations of the responses to the two application sections and reconciled differences in their scores. The evaluation committee ultimately concluded that Duval Park's application was entitled to a total of 119 points out of 133 possible points, and that Osprey's application was entitled to 117 points. A large gap in scoring separated these two highest-scoring applicants from the other five applicants; the next highest score was 95 points. The evaluation committee presented its recommendation to the Florida Housing Board of Directors, along with a summary of the scores assigned by the evaluation committee. The committee's recommendation was that Florida Housing should award funding to Duval Park for its proposed development. Florida Housing's Board adopted the committee's recommendation. Osprey's Protest Issue Remaining for Determination Following the parties' withdrawal of most of their protest issues, the only remaining disputed issue for resolution in this proceeding is Osprey's claim that Duval Park should have received "at least three" less points than Osprey for the sections addressing developer and management company experience.2/ Mr. Aldinger's assignment as the evaluation committee member responsible for reviewing and scoring these application sections comports with his expertise. Mr. Aldinger has served as Florida Housing's supportive housing coordinator since 2006. In that role, he has been coordinating with governmental bodies and industry stakeholders to develop strategies for focusing Florida Housing's resources on the provision of supportive housing to special needs households. The RFP was developed in furtherance of this effort, and Mr. Aldinger was one of the RFP's authors. Mr. Aldinger assigned the same number of points to the Duval Park and Osprey applications in both sections. Each application received 24 out of 25 possible points for developer experience, and all ten of the points available for management company experience. Osprey's contention is that its narratives for these two application sections show its objective superiority. Osprey's "objective superiority" argument is primarily based on a quantitative comparison, in which its narrative showed experience developing and operating a larger number of permanent supportive housing units than did Duval Park's narrative. Osprey also contends that its narrative was qualitatively better in providing greater detail regarding its experience developing and operating permanent supportive housing. As part of its argument, Osprey contends that Duval Park strayed from the RFP instructions by describing experience with more than just permanent supportive housing, but that the evaluator gave Duval Park credit anyway. The RFP instructions provide the starting point to assess Osprey's contentions. First, the RFP provided the following definition of "permanent supportive housing": Rental housing that is affordable to the focus households with household incomes at or below 60 percent of area median income (AMI), that is leased to the focus households, for continued occupancy with an indefinite length of stay as long as the Permanent Supportive Housing tenant complies with the lease requirements. Permanent Supportive Housing shall facilitate and promote activities of daily living, access to community-based services and amenities, and inclusion in the general community. Permanent Supportive Housing shall strive to meet the needs and preferences of the focus households. This RFP definition was acknowledged to be somewhat broader than how that phrase might be understood by some industry models. For example, Mr. Aldinger testified that transitional housing could be permanent supportive housing within the RFP definition, as long as a lease agreement is used. Permanency is not required, only an "indefinite" length of stay. The fact that leases are for finite terms of 12 or 24 months would not be dispositive; rather, the length of stay would be considered "indefinite" if tenants are not required to leave at the end of their lease terms, if they are not ready to leave and are otherwise in compliance with the lease terms. The provision of supportive services to meet the needs of the focus population is a key part of the RFP definition. The RFP instructions for the developer experience narrative were as follows: Developer Experience with Permanent Supportive Housing (Maximum 25 points): The Applicant must describe the experience of the Developer, co-Developer, and/or Principal in developing and operating Permanent Supportive Housing, and more specifically, housing for the households the Applicant is proposing to serve. Describe the role(s) and responsibilities of any Developer, co- Developer, and/or Principal listed in the Applicant's responses to Items A.2.c. and 3.a. of Section 6 of the RFP, related to the proposed Development, and describe the experience and qualifications relevant to carrying out the roles and responsibilities for this proposed Development. (emphasis added). The RFP instructions for the first application section must also be considered because they tie into the developer/ manager experience sections. The instructions for the first application section required the applicant to provide a detailed description of the focus population group, and the instructions also explained how that description would be used, as follows: [T]he Applicant must provide a detailed description of the resident household characteristics, needs, and preferences of the focus population(s) the Applicant is proposing to serve. This description will provide a point of reference for the Corporation's evaluation and scoring of the Application, providing the foundation for the appropriateness of the experience of the Developer(s) and Management Company, proposed Construction Features and Amenities, Resident services and Access to Community Based Services and Amenities. (emphasis added). As part of this first application section, applicants focusing on special-needs veterans transitioning from VA facilities were required to designate the specific VA facilities with which the applicants expected to be working and coordinating. Osprey, whose proposed development is in Liberty City, Miami-Dade County, designated Miami VA Healthcare System (Miami VA) in Miami. Duval Park, whose proposed development is in unincorporated Pinellas County, designated Bay Pines VA Healthcare System (Bay Pines VA) in Pinellas County, as well as the James A. Haley Veterans Hospital and the Tampa Polytrauma Rehabilitation Center, both in Tampa, Hillsborough County. Osprey and Duval Park both provided extensive narratives describing their target populations and detailing the unique needs and preferences of their target populations. Osprey's narrative described the information learned from interviewing social workers in each of the programs under the umbrella of the Miami VA, with whom Carrfour would be coordinating for transitioning veterans. Osprey's narrative also described a VA grant to Carrfour of $1,000,000 per year for supportive services for veteran families, through which Carrfour provides a comprehensive case management program called Operation Sacred Trust. This program has an outreach team that works closely with social workers throughout the Miami VA. The Duval Park narrative discussed and documented the work of the St. Petersburg Housing Authority Wounded Warrior Community Advisory Group to assess housing needs for veterans. Developer-partner ServiceSource's director of housing was a participant. As part of the assessment, the advisory group conducted veterans' focus groups to hear from the veterans themselves regarding their needs and preferences, including the particular supportive services needed to allow veterans to transition to an independent living setting. The Duval Park narrative also described the information about transitioning veterans learned through ongoing projects with the VA facilities designated for the proposed development, including a Memorandum of Understanding between James A. Haley Veterans Hospital and ServiceSource's Warrior Bridge program. As called for by the RFP instructions, Mr. Aldinger used each application's detailed description of the target population in section one as the foundation for evaluating that application's developer and management experience narratives. The experience narratives were properly evaluated in accordance with the RFP instructions in the context of each applicant's specific proposal to focus on a defined population group transitioning from designated VA facilities, whose unique needs were fleshed out in the first section narratives. Mr. Aldinger reviewed and was impressed with both Osprey's and Duval Park's developer experience narratives, for good reason. As he explained, the two responses took different approaches, but both provided good detail in the limited space allotted. Osprey's narrative described Carrfour, a non-managing member of the applicant entity that will be the developer and, through a subsidiary, manager of the proposed development. Carrfour is a not-for-profit organization created in 1993 by the Greater Miami Chamber of Commerce, with the mission of developing permanent supportive housing to end homelessness. In setting forth Carrfour's experience, the Osprey narrative took a quantitative approach by enumerating Carrfour's 16 mixed-use housing development projects that included permanent supportive housing. Some details were provided for each development, such as the funding sources, the number of total units, how many of those units were permanent supportive housing units, and how many of the units were currently occupied by veterans. However, the narrative did not explain whether any supportive services provided for these developments were specifically geared to meeting the special needs of veterans. The types of supportive services were not identified for any of the 16 developments. For three developments, the description stated only that "a full array of supportive services" was provided or that "on-site supportive services" were provided. Supportive services were not mentioned in the descriptions of the other 13 developments. Other than providing the number of units then occupied by veterans, Osprey's developer experience narrative had no information to demonstrate experience providing housing specifically developed to meet the unique needs of the focus population for its proposed development: veterans with service- related disabling conditions transitioning from the Miami VA. Duval Park's developer experience narrative did not match Osprey's approach of enumerating individual permanent supportive housing developments and quantifying the units in each development. Duval Park's response chose instead to describe in general aggregate terms the permanent supportive housing experience of the developer-partners. The Duval Park narrative went into more detail to highlight the developer team experience with housing projects specifically designed to meet the unique needs of special-needs veterans transitioning from the VA facilities designated in its application, something lacking in the Osprey response. For example, Duval Park's response described developer- partner Boley's substantial experience since it was founded in 1970, in developing more than 500 units of permanent supportive housing in Pinellas County. The narrative also described the even longer-standing experience of developer-partner ServiceSource, founded in 1959 with a mission to provide services to needy people with disabilities. Initially providing employment, training, rehabilitation, and support services (relevant to the roles described for this developer-partner in operating the proposed development), ServiceSource began a housing program in 1995. ServiceSource's permanent supportive housing development experience was summarized in shorthand as including 20 separate "HUD 202/811 awards." The unrefuted testimony established that this shorthand reference was properly understood by Mr. Aldinger to signify 20 permanent supportive housing developments for persons with disabilities. Two specific supportive housing projects for veterans, developed and operated by Boley working with the Bay Pines VA, were detailed in Duval Park's developer experience narrative. In 2007, Bay Pines VA awarded Boley a contract for "Safe Haven Model Demonstration Project" services, described in the notice of contract award as "a specialty model of HCHV residential care as mandated by the . . . zero-tolerance policy to end homelessness within the Veteran population." Through this contract, Boley acquired and rehabilitated a former 20-unit skilled nursing facility to establish Morningside Safe Haven (Morningside), which provides housing and a residential treatment program with counseling for veterans. Half of the 20 veterans housed there have service-connected disabling conditions, and one-third of the veterans transitioned from VA facilities. Pinellas County and HUD provide funding support for this VA pilot program. Osprey contends that Boley's experience developing and operating Morningside should have been ignored in scoring Duval Park's developer experience, because a residential treatment program is not permanent supportive housing. However, according to Mr. Humberg, Morningside is considered permanent supportive housing under HUD guidelines. Veterans sign a 12-month lease to reside in a unit. Although the intent is that tenants will complete treatment and move on, tenants are not required to leave at the end of their 12-month lease terms; they can stay as long as they need to, if they are otherwise compliant with their leases. Even if Morningside did not technically meet the RFP definition of permanent supportive housing, the discussion of Morningside still would be appropriate for this narrative, pursuant to the RFP instructions. The Morningside experience demonstrates Boley's "experience and qualifications relevant to carrying out" its roles and responsibilities for the proposed development, identified in the same narrative to include mental health counseling, case management, and VA coordination. Also described in Duval Park's narrative was Boley's 2010 development of Jerry Howe Apartments, with 13 units developed specifically for formerly homeless veterans, many of whom have service-connected disabling conditions. Funding for this development was provided by the VA and the City of Clearwater. Boley coordinates with Bay Pines VA in operating this development, with Bay Pines VA providing screening and referral services to identify veterans who are candidates to lease apartment units. Boley's staff members work closely with the veteran tenants to provide supportive services, preparing them for more independent living. Osprey quibbles with whether Jerry Howe Apartments technically qualifies as permanent supportive housing, noting that while the veteran tenants do sign a lease, the intent of the project is to serve as transitional housing for up to 24 months. However, Mr. Aldinger explained that transitional housing would meet the RFP's broad definition of permanent supportive housing if tenants are not required to leave after a finite period of 12 or 24 months. Mr. Humberg confirmed that veterans residing at Jerry Howe Apartments are not required to leave after 24 months, if they are not ready to move on. Mr. Humberg also clarified that Boley owned the apartments before they were redeveloped in 2010, specifically to meet the needs of veterans. Before the 2010 redevelopment, Boley operated the property as permanent supportive housing, just not specifically for veterans. In fact, two of the units remain occupied by prior non-veteran permanent supportive housing tenants, who did not want to move out in 2010 when the property was redeveloped. It is not necessary to debate whether Jerry Howe Apartments technically is permanent supportive housing, although the evidence demonstrated that the development is and has been permanent supportive housing, as defined in the RFP. Certainly, this project demonstrates Boley's experience and qualifications relevant to carrying out its roles and responsibilities for the proposed development and, therefore, is worthy of consideration as part of the developer experience narrative. Duval Park's developer experience narrative also detailed specific veterans' supportive service programs developed by both Boley and ServiceSource. The descriptions of these programs demonstrate experience and qualifications directly relevant to the described roles and responsibilities for Boley and ServiceSource with respect to the proposed development. Duval Park's experience narrative details the many accomplishments of ServiceSource's nationally-recognized Warrior Bridge program, which provides a wide variety of supportive services to veterans. Noteworthy is a 2012 award of over $1,000,000 from the City of St. Petersburg to ServiceSource to expand housing options for wounded veterans. Under this program, in the past year, ServiceSource partnered with Home Depot to modify 16 homes and facilities serving wounded veterans in the Tampa Bay area to increase accessibility, safety, and energy efficiency. This experience translates directly to the role ServiceSource will serve as a participant in designing the proposed housing development specifically to accommodate the unique accessibility and other needs of special-needs veterans with disabling conditions. ServiceSource's Warrior Bridge program also operates the "Veterans' Mall" in the vicinity of the proposed development. At the Veterans' Mall, household appliances, cookware, business attire, and necessities are made available to wounded veterans transitioning to more independent housing settings. According to Duval Park's narrative, the Veterans' Mall has served more than 325 veterans since opening in October 2011, through partnerships with Bay Pines VA and local community organizations serving veterans. ServiceSource's representative testified that ServiceSource recently secured a five-year commitment from T.J. Maxx to stock the Veterans' Mall with new suits for veterans going on job interviews. The Duval Park developer experience narrative regarding the Warrior Bridge program portrays ServiceSource's experience and qualifications to carry out its described roles and responsibilities for the proposed development, which include community outreach, physical disability counseling, employment assistance, job training, and VA coordination. Another program described in Duval Park's developer experience narrative is Boley's Homeless Veterans Reintegration Program. This is a case management, training, and employment program specifically for veterans, conducted by Boley case managers and employment specialists, demonstrating that they are well-suited to carry out the described roles and responsibilities for Boley with respect to the proposed development, which includes the lead case management role. A reasonable person attempting to compare the two developer experience narratives might say that Osprey's narrative demonstrated greater quantitative experience in developing more units of permanent supportive housing generally, but that Duval Park's narrative demonstrated better qualitative experience among the developer-partners in developing supportive housing specifically for veterans with special needs. Duval Park's narrative was more directly focused on specific experience developing supportive housing that addresses the unique needs of those special-needs veterans who are transitioning from VA facilities. In addition, Duval Park's narrative better demonstrated experience and qualifications among the developer- partners that are directly relevant to their described roles and responsibilities in carrying out the proposed development. Both narratives were very good and responsive to the RFP instructions, while taking very different approaches. Mr. Aldinger reasonably applied the RFP instructions, reasonably evaluated the two narratives, and reasonably judged them both to be deserving of the same very high score. The credible evidence does not support Osprey's contention that its developer experience narrative was superior, or that Duval Park's narrative strayed beyond the RFP instructions, or that Duval Park's narrative was judged by different standards than Osprey's narrative.3/ Osprey also takes issue with the scoring of the two applications' narratives describing management company experience with permanent supportive housing. As noted, Mr. Aldinger evaluated these narratives and awarded each application the maximum ten points for this application section. Osprey's narrative identified Carrfour's not-for-profit subsidiary, Crossroads Management, LLC (Crossroads), as the manager for its proposed Liberty Village development. Although Carrfour was established in 1993, Crossroads was not created until 2007. Before Crossroads was created, Carrfour did not manage the housing projects it developed; instead, it turned the developments over to traditional property management companies. As Osprey's narrative acknowledges, this created problems, as the traditional management companies lacked the sensitivity and training to address special needs of permanent supportive housing tenants. Since 2007, Crossroads has been taking over management functions for Carrfour developments and is now managing most of the 16 developments listed in the developer experience narrative. Osprey's application was given credit for proposing management with ideal experience. For Duval Park's application, Boley is identified as the management company. In addition, Boley will engage Carteret Management Company (Carteret), which is owned and operated by James Chadwick, a principal of developer-partner Blue Sky, to assist with tax-credit compliance and other matters within Carteret's expertise during the initial phases of the project. Boley's specific experience managing supportive housing for veterans with special needs, previously detailed in the developer experience discussion above, could not reasonably be questioned. As described in the manager experience narrative, Boley manages 561 units of its own permanent supportive housing. Boley also manages 112 additional permanent supportive housing units owned by other not-for-profit companies (including an 88-unit development owned by ServiceSource). The management narrative describes the profile of the typical Boley-managed housing unit tenant as having mental illness, including post-traumatic stress disorder and/or substance abuse problems, requiring supportive services provided by Boley staff. These supportive services include mental health counseling, case management intervention, and transportation assistance--functions for which Boley will assume responsibility operating the proposed development. The narrative also describes Boley's property management personnel: seven housing staff who handle leasing, income certifications, and other leasing matters; eight maintenance staff to handle property repairs; three drivers who provide transportation; and four accounting staff for property management functions. Osprey does not articulate a specific reason why Duval Park's management company experience narrative should not be entitled to ten points, or why Osprey believes its narrative was qualitatively or quantitatively better than Duval Park's, except to the extent of Osprey's criticisms of the developer experience narratives. Yet Osprey's narrative for manager experience arguably should not fare as well as its narrative for developer experience, given the many more years of management experience demonstrated by Boley and the comparatively few years of management experience by the Crossroads management entity created by Carrfour in 2007. Nonetheless, Mr. Aldinger credited the Osprey application with the maximum points based on Crossroads' management experience since 2007. No credible evidence was presented to support the contention that Duval Park's management experience narrative was not entitled to at least the same number of points as Osprey's management experience narrative. As repeatedly acknowledged by all parties throughout the hearing, Florida Housing was fortunate to have received two excellent proposals by Osprey and Duval Park that were head and shoulders above the other responses. Florida Housing then was faced with the difficult task of deciding which, between two excellent choices, should receive the funding nod, if only one of the two could be funded. Based on the evidence and the findings above, Mr. Aldinger's assignment of the same number of points for developer experience (24 points out of a possible 25 points) and for management company experience (the maximum of 10 points) to the two excellent proposals was not clearly erroneous, arbitrary, capricious, or contrary to competition. His conclusion that both applicants demonstrated nearly ideal development experience and ideal management company experience for their proposals was reasonable. The evidence established that Mr. Aldinger made the points assignments he did after evaluating all of the relevant information he was allowed to consider pursuant to the RFP instructions. His scoring of these two application sections was shown to be an honest, good faith exercise of his expert judgment applied to sort out the various pros and cons of the responses. Osprey did not identify any statute or rule that it contends was violated by the scoring of the Osprey and Duval Park developer and management experience narratives. Osprey argued, but did not prove, that the scoring of these two applications was contrary to the RFP specifications. Osprey argued that Mr. Aldinger's evaluation was contrary to the RFP because he considered differences between the two projects in assessing developer experience. Osprey characterized this as double- counting, because the same aspects of the projects were scored in other sections. Osprey also contended that considering the differences between the two proposed developments and the different approaches by the two applicants was tantamount to applying different standards in evaluating the two applications. Osprey's criticism was not borne out by the evidence. Instead, Mr. Aldinger described a reasonable process, consistent with the RFP terms explaining that developer experience would be assessed in the context of the attributes of the target population described in the first section of the application, and also in context with the roles and responsibilities described for the developer team members in carrying out the proposed development. The same RFP instructions and the same standards were applied to the evaluation of the two applications; it was the applications that were different, not the standards.4/ Although not actually raised as a distinct challenge, Osprey suggested an additional argument in its PRO, not articulated in its written protest or in the Joint Pre-hearing Stipulation. Osprey argued in its PRO that Florida Housing should have used two evaluators to score the developer and manager experience narratives, as a "check and balance" against arbitrary scoring. Osprey's new argument stands in stark contrast to the only challenge to the evaluation process articulated in Osprey's written protest and in the Joint Pre-hearing Stipulation. Before the hearing, Osprey challenged the evaluation procedure used for two application sections that were scored by two evaluators. Rather than providing any check-and-balance comfort, the two- evaluator process was viewed as defective by Osprey because the initial scores independently assigned by each evaluator were reconciled in a public discussion meeting at which differences in scores were harmonized, meaning that when the initial scores differed, the evaluators agreed to adjust their initial scores. Osprey has established only that for some application sections, a single evaluator was used, while for other application sections, two evaluators were used and their separate scores were reconciled. No credible evidence was offered to prove that use of two evaluators was better than using one evaluator (or vice versa, as Osprey initially argued).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decision to award funding for the Duval Park, Ltd., proposed development, and dismissing the formal written protests of Osprey Apartments, LLC, and Duval Park, Ltd. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 25th day of November, 2013.
The Issue Did Respondent, MHC Windmill Manor, LLC (Windmill Manor), discriminate against Petitioner, Rental Asset Management of Florida, LLC (Rental Asset), in violation of section 760.23(1), Florida Statutes (2017?)1/
Findings Of Fact Ronnie Portee is a member of a racial minority who wished to rent a mobile home lot in Windmill Manor to provide housing for his disabled brother, William Portee. William Portee is also a member of a racial minority. Ronnie Portee planned to rent the lot using his LLC, Rental Asset, to lease a lot at Windmill Manor for a mobile home that he purchased. He intended for William Portee to occupy the mobile home. Windmill Manor is a community association that manages a mobile home park also known as Windmill Manor. Equity Lifestyle Properties, Inc. (ELS), owns Windmill Manor and the lots in Windmill Manor. Rental Asset purchased a mobile home from All Aces Realty, Inc. The mobile home was already on a lot in Windmill Manor. Ronnie Portee intended for William Portee to live in the mobile home once Rental Asset leased the lot. All Aces Realty, Inc., did not lease the mobile home’s lot from Windmill Manor. Windmill Manor only leases to natural persons. Windmill Manor does not lease to business entities. Windmill Manor maintains this policy because the limited liability of business entities, such as an LLC, would limit Windmill Manor’s ability to obtain payment from tenants in default. Windmill Manor requires lease applicants to provide a driver’s license to verify their identity and to ensure that Windmill Manor meets its obligations under the “55-plus exemption” to the Florida Fair Housing Act. Windmill Manor also requires applicants to submit a residency form used to conduct a criminal background and a credit history check. For the criminal background check and the credit history check to be processed, an applicant must submit his or her date of birth and social security number. Windmill Manor’s computer system generates leases from the approved residency application. Occupants who will live on the property but do not sign the lease are only screened through a criminal background check. Ronnie Portee attempted to submit a Windmill Manor residency application for Rental Asset. Windmill Manor was unable to process the application because Windmill Manor’s system requires an applicant’s date of birth and social security number to conduct its background check. So, Ronnie Portee completed the residency application using his name and personal information. Ronnie Portee passed the criminal background and credit history check. Ronnie Portee submitted an application for William Portee only as an occupant on the leased property. William Portee passed the criminal background check required for occupants. Ronnie Portee wanted Rental Asset to lease the lot from Windmill Manor because he did not want to be personally obligated under the lease. Windmill Manor’s system could not generate the lease under the name of Rental Asset because the system generates leases from processed residency applications. Windmill Manor informed Ronnie Portee of its policy against leasing to business entities. Windmill Manor offered to make an exception to the policy and allow Rental Asset to lease a lot if Ronnie Portee signed a guarantee for the lease. Ronnie Portee rejected the offer. Windmill Manor also offered to lease the lot to Ronnie Portee instead of Rental Asset. Ronnie Portee refused this offer too. Ronnie Portee tried to put the lease under his brother’s name. However, William Portee had not completed a residency application. Consequently, he had not been screened through the prerequisite credit history check. Therefore, he could not lease the lot. Windmill Manor did not lease the property to Ronnie Portee. It also did not provide him with the lease agreement and other documents when he requested them. In spite of not having a lease, Ronnie Portee moved his brother into the mobile home. Ronnie Portee submitted a rent payment from Rental Asset to Windmill Manor on July 1, 2017. Windmill Manor returned the money. Not long afterwards, Windmill Manor began an eviction proceeding against Rental Asset. Windmill Manor leases lots to members of racial minorities. Windmill Manor, in accordance with its policy, does not lease to business entities, although ELS owns some mobile homes in Windmill Manor. Ronnie Portee asserts that Windmill Manor discriminated against him and William Portee because of their race and discriminated against William Portee because of his disability by refusing to rent to Rental Asset. Ronnie Portee believes that Windmill Manor treated him differently during the application process once he provided his and his brother’s driver’s licenses, which identified them as members of a racial minority. Ronnie Portee also believes that Windmill Manor rents property to other business entities and that Windmill Manor discriminated against Rental Asset because the owner was a racial minority. The evidence does not support these beliefs. Among other things, there is no evidence of the race of the principals for the business entities Ronnie Portee claims rented lots at Windmill Manor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the Petition for Relief of Rental Asset Management, LLC, of Florida. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of July, 2018.
The Issue Whether Florida Housing Finance Corporation’s (“Florida Housing”) preliminary award of funding to University Station I, LLC (“University Station”), was clearly erroneous, contrary to competition, arbitrary or capricious, or contrary to Florida Housing’s governing statutes, rules, policies, or RFA specifications.
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: Findings on Florida Housing and the RFA Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes, and promotes public welfare by administering the financing of affordable housing in Florida. Section 420.5099 designates Florida Housing as the State of Florida’s housing credit agency within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. Accordingly, Florida Housing is responsible for establishing procedures for allocating and distributing low income housing tax credits. Florida Housing allocates housing credits and other funding via requests for proposals or other competitive solicitation methods identified in section 420.507(48). Florida Housing initiated the instant competitive solicitation by issuing the RFA on October 15, 2020, and anticipates awarding up to an estimated $88,959,045.00 in State Apartment Incentive Loan (“SAIL”)2 financing. The RFA set forth a process by which applications would be scored based, in part, on eligibility items. Only applications satisfying all of the eligibility items were eligible for funding and considered for selection. 2 Marissa Button, the Director of Multifamily Programs at Florida Housing, testified that the SAIL program finances the development of multifamily, affordable rental housing. The Florida Legislature traditionally appropriates money for the SAIL program via the State Housing Trust Fund. Site Control was an eligibility item because Florida Housing wants assurances that applicants selected for funding will be able to actually use the development sites.3 Applicants satisfy the Site Control requirement by providing a properly completed and executed Florida Housing Site Control Certification Form (“the Site Control Form”). In order for the Site Control Form to be considered complete, an applicant had to attach documentation demonstrating that it: (a) was a party to an eligible contract or lease; or (b) owned the property in question. The RFA set forth specific requirements for contracts and leases used for demonstrating site control. For example, a contract had to satisfy all of the following conditions: It must have a term that does not expire before May 31, 2021 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than May 31, 2021. It must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance; The Applicant must be the buyer unless there is an assignment of the eligible contract, signed by the assignor and the assignee, which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant; and The owner of the subject property must be the seller, or is a party to one or more intermediate contracts, agreements, assignments, options, or 3 Ms. Button explained that Site Control “is a component of how the applicant demonstrates its ability to proceed with the proposed development. And essentially it is the – the way that we require them to demonstrate they have control over the proposed development site.” As for why Site Control is important, Ms. Button testified that Florida Housing wants “to be assured if the – the applicant is successful in its request for funding, that the – they will be able to actually use the development site.” conveyances between or among the owner, the Applicant, or other parties, that have the effect of assigning the owner’s right to sell the property to the seller. Any intermediate contract must meet the criteria for an eligible contract in (a) and (b) above. The language quoted above indicates that the RFA was referring to a sales contract when it used the term “contract.” If an applicant used a lease to satisfy the Site Control requirement, then the RFA provided the following: (3) Lease – The lease must have an unexpired term of at least 50 years after the Application Deadline and the lessee must be the Applicant. The owner of the subject property must be a party to the lease, or a party to one or more intermediate leases, subleases, agreements, or assignments, between or among the owner, the Applicant, or other parties, that have the effect of assigning the owner’s right to lease the property for at least 50 years to the lessee. Marissa Button, Florida Housing’s Director of Multifamily Programs, testified that the RFA did not require a lease to have a commencement date. The RFA required that Site Control documentation for leases “include all relevant intermediate contracts, agreements, assignments, options, conveyances, intermediate leases, and subleases. If the proposed Development consists of Scattered Sites, site control must be demonstrated for all of the Scattered Sites.” Ms. Button provided the following testimony about this requirement: A: Florida Housing includes the requirements for that documentation to – to essentially acknowledge that there are circumstances where there may be an intermediate contract or agreement that would demonstrate one of the criteria for those different types of site control and the requirements that we want to see that -- that chain back to the requirement itself. * * * Q: So Florida Housing considers this term to broadly include all different types of potential contract agreements, et cetera; correct? A: Yes. Q: Could you give me an example of an intermediate contract or agreement? A: Yes. An intermediate contract or agreement may be where – with regard to the [ ] contract, the terms require an owner of the subject property to be a seller of the subject property. And so there may be an applicant that has a contract with the seller of the property. And that seller might not be the actual owner; so there may be an intermediate contract that we need to see between the seller to the buyer and the actual owner of the subject property. Q: And that situation that you just described, that happened in the past few years; correct? A: I can think of one example where that happened, yes. Q: Okay. And in that case Florida Housing agreed that the intermediate agreement was necessary to include with the site documentation; correct? A: Florida Housing reviewed – yes. That – Florida Housing’s position was there was an intermediate agreement necessary because the site control documentation provided did not include the owner of the subject property. As for Florida Housing’s review of Site Control documentation, the RFA provided as follows: Note: [Florida Housing] will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation. During scoring, [Florida Housing] will rely on the properly executed Site Control Certification form to determine whether an Applicant has met the requirement of this RFA to demonstrate site control. [Florida Housing] has no authority to, and will not, evaluate the validity or enforceability of any eligible site control documentation that is attached to the Site Control Certification form during the scoring process. During credit underwriting, if it is determined that the site control documents do not meet the above requirements, [Florida Housing] may rescind the award. When questioned about Florida Housing’s review of Site Control documentation, Ms. Button offered the following testimony: Q: If you look at the next page, Page 48, at the end of Subsection A there’s a note. It says Florida Housing will not review the site control during the scoring process. It will not evaluate the authority or enforceability of such documentation; correct? A: Yes. Q: But even though Florida Housing does not review the site documentation during scoring, it will review the documentation during the bid protest; correct? A: Yes as it relates to the RFA requirements. * * * Q: If the documents attached to a site control documentation [do] not meet the RFA criteria, then that site control certification form would be incorrect; right? A: Yes. Q: And the applicant would be found ineligible; correct? A: Yes. The RFA and Ms. Button’s testimony indicate that Florida Housing intended, under most circumstances, to accept the representations set forth in an applicant’s Site Control documentation during the scoring process. In other words, Florida Housing did not go behind the Site Control documentation to verify the representations therein. The terms of the RFA were not challenged. Stipulated Facts Pertaining to Certain Parties Douglas Gardens and Florida Housing agree that Douglas Gardens’ application is ineligible for funding via the RFA. Quiet Meadows and Florida Housing agree that Quiet Meadows’ application is ineligible for funding via the RFA. MHP and Florida Housing agree that MHP’s Application is ineligible for funding via the RFA.4 MHP, Quiet Meadows, and Douglas Gardens agree that Fulham Terrace’s application remains eligible for funding via the RFA. The Willows and Florida Housing agree that the Willows Application is ineligible for funding via the RFA. The Willows agrees that the HTG Astoria Application is eligible for funding via the RFA. 4 MHP, Florida Housing, Quiet Meadows, Douglas Gardens, and Fulham Terrace entered into a Settlement Agreement and Stipulation on March 26, 2021, that was entered into evidence as Fern Grove Exhibit 1. SoMi Parc, Vista, and Florida Housing agree that the SoMi Parc Application is ineligible for funding via the RFA. SoMi Parc has accepted an invitation to enter credit underwriting for the same Development in RFA 2020-203 and thus cannot be funding via the RFA. Findings Regarding the Applications of University Station and Vista Florida Housing received 90 applications in response to the RFA. Those applications were processed, deemed eligible or ineligible, scored, and ranked pursuant to the terms of the RFA. On January 22, 2021, Florida Housing announced its intention to award funding to 17 applicants, subject to satisfactory completion of the credit underwriting process. University Station was one of the 17 successful applicants, and University Station’s Site Control documentation included: (a) a Ground Lease Agreement between the City of Hollywood, Florida (“the City”), and University Station (“the University Station I Lease”); (b) a Ground Lease Agreement between the City and University Station II, LTD (“the University Station II Lease”); and (c) an Assignment of Ground Lease Agreement assigning University Station II, LTD’s interests in the Ground Lease Agreement between the City and University Station II, LTD to University Station.5 The University Station I Lease described its terms as follows: This lease shall be effective as of the Effective Date, but the term shall commence on the Commencement Date and expire at 11:59 p.m. on the seventy-fifth (75th) anniversary of the Commencement Date (the “Term”), unless this lease is terminated earlier pursuant to the provisions contained herein. For purposes of this lease, the “Commencement Date” shall be the closing date of Tenant’s construction financing for the development of the Phase I Project (the “Construction Financing”), but in no event later 5 The Assignment of Ground Lease Agreement between University Station and University Station II was a relevant intermediate document for demonstrating Site Control. than June 30, 2022. Tenant’s right to take physical possession of the Leased Premises shall begin on the Commencement Date. The University Station II Lease between the City and University Station II described its terms as follows: This lease shall be effective as of the Effective Date, but the term shall commence on the Commencement Date and expire at 11:59 p.m. on the seventy-fifth (75th) anniversary of the Commencement Date (the “Term”), unless this lease is terminated earlier pursuant to the provisions contained herein. For purposes of this Lease, the “Commencement Date” shall be the later of the closing date of Tenant’s construction loan for the development of the Project (the “Construction Loan”) and the termination of the lease of the premises to Barry University, but in no event later than June 30, 2023. Tenant’s right to take physical possession of the Leased Premises shall begin on the Commencement Date. Landlord and Tenant acknowledge that the leased premises are currently improved with an educational facility and adjacent ground parking that is leased to Barry University through November 23, 2021 and the Landlord may enter into an additional one-year extension of the lease to Barry University at Landlord’s sole discretion. Until the Commencement Date, Landlord, or its tenant, shall be solely responsible for the operation and maintenance of the leased premises and any uses on the Leased Premises. University Station’s proposed Development site consists of five Scattered Sites. Barry University currently leases a building and parking spaces located on the Scattered Site described as latitude and longitude coordinates of 26.014703, -80.148572 in Question 5.d.2 of the University Station Application. This is the site described in the University Station II Lease. The City and Barry University, Inc., are the parties to the Barry University Lease (“the Barry University Lease”). The Barry University Lease was executed on May 23, 2011, with a term of 10 and one-half years, which would expire on approximately November 23, 2021. With regard to its term, the Barry University Lease states that “[t]he term of this lease shall be for ten and one-half (10 ½) years commencing upon the execution of this lease. The parties will have the mutual option to renew this lease subject to City Commission and the Lessee’s Board of Directors approval.” A copy of the Barry University Lease was not included in University Station’s application. In contrast to the statement in the University Station II Lease that the Barry University Lease could be extended by “an additional one-year extension” at the City’s “sole discretion,” the Barry University Lease simply says that the parties have a “mutual option to renew” with no mention of a particular term. Ms. Button provided the following testimony regarding the Barry University Lease: Q: And you are aware that University Station did not submit the Barry University lease as part of its site control documentation; correct? A: Yes. Q: And does the existence of that Barry University lease change your position on whether University Station met the requirements in the RFA for a lease? A: No. Q: And why not? A: Because the documents submitted with the application meet the terms of the RFA for a lease site control documentation. Q: Did the existence of the Barry University lease impact whether or not the University Station site control documentation met the requirements for a lease? A: No. Q: As Florida Housing’s corporate representative, what is your position regarding University Station’s application? A: It is eligible for funding. Vista also applied for funding from the RFA. Florida Housing determined that Vista was eligible for funding, but Florida Housing did not preliminarily select Vista for funding. If University Station is deemed ineligible for funding, then Vista will be selected for funding subject to the successful completion of credit underwriting. Ultimate Findings Vista has failed to carry its burden of demonstrating that Florida Housing’s proposed award to University Station was clearly erroneous, contrary to competition, arbitrary, or capricious. Also, the greater weight of the evidence demonstrates that: (a) Florida Housing’s proposed action is not contrary to the RFA’s terms; and that (b) University Station will have control over the site in question. The greater weight of the evidence demonstrates that the University Station Lease I Lease, the University Stations II Lease, and the assignment of University Station II’s interest to University Station collectively satisfied the RFA’s requirements because: (a) there is unexpired term of at least 50 years after the application deadline; (b) University Station, i.e., the lessee, was the applicant for funding; and (c) the City, as the owner of the subject property, was a party to the lease. Upon considering Florida Housing’s preliminary approval of University Station’s application without the benefit of reviewing the Barry University Lease, the greater weight of the evidence demonstrates that Florida Housing was not clearly erroneous when it determined that the Barry University Lease was not a relevant intermediate lease within the meaning of the RFA. The University Station II Lease between the City and University Station II requires the lease to begin no later than June 30, 2023. Also, the City and University Station II acknowledge that Barry University’s Lease runs through November 23, 2021, and they agree that the City may extend Barry University’s lease by “an additional one-year.” Accordingly, the Barry University Lease will end prior to June 30, 2023, and University Station will have site control no later than that date. In other words, the greater weight of the evidence demonstrates that University Station has control over the site in question. The analysis set forth above does not change if one considers the Barry University Lease.6 Even though the Barry University Lease does not limit a renewal to one year, the lease cannot be renewed without the City’s assent, and the City agreed in the University Station II Lease that any renewal would not exceed one year. Therefore, even if one considers the terms of the Barry University Lease, the greater weight of the evidence does not demonstrate that it is a relevant intermediate document that was required to be included with University Station’s application. Again, the greater weight of the evidence demonstrates that University Station has control over the site in question. 6 As will be explained in more detail in the Conclusions of Law below, “[n]ew evidence cannot be offered to amend or supplement a party’s response or application. § 120.57(3)(f), Fla. Stat. However, new evidence may be offered in a competitive protest proceeding to prove that there was an error in another party’s application. Intercontinental Props., supra.” Heritage at Pompano Housing Partners, Ltd. v. Fla. Housing Fin. Corp., Case No. 14-1361BID, ¶ 116 (Fla. DOAH June 10, 2014; Fla. Hous. Fin. Corp. June 13, 2014).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order: awarding funding to University Station I, LLC, via Request for Application 2020-205 subject to credit underwriting; and (b) finding that the applications submitted by Douglas Gardens IV, Ltd., MHP FL VIII, LLLP, Quiet Meadows, Ltd, RST The Willows, LP, and Residences at SoMi Parc, LLC are ineligible for funding via Request for Application 2020-205. DONE AND ENTERED this 17th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 Marc Ito, Esquire Parker Hudson Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 Seann M. Frazier, Esquire Parker, Hudson, Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2021. Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields P.A. Suite 500 215 South Monroe Street Tallahassee, Florida 32302 Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 William D. Hall, Esquire Dean Mead Suite 1200 106 East College Avenue Tallahassee, Florida 32301 John L. Wharton, Esquire Dean Mead and Dunbar Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 Brittany Adams Long, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. Suite 820 106 East College Avenue Tallahassee, Florida 32301 Daniel Ryan Russell, Esquire Dean Mead Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602
