The Issue Whether Petitioner is entitled to Proximity Tie-Breaker points for its designated public bus transfer stop and library.
Findings Of Fact The parties stipulated to the following facts as reflected in paragraphs 1 through 13, below. Petitioner is a Florida for-profit limited liability company with its address at 3 East Stow Road, Suite 100, Marlton, New Jersey 08053, and is in the business of providing affordable rental housing units in the State of Florida. Florida Housing is a public corporation, with its address at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32310, organized to provide and promote the public welfare by administering the governmental function of financing and refinancing housing and related facilities in the State of Florida. § 420.504, Fla. Stat. (2011).1/ Florida Housing administers various affordable housing programs including the following: Housing Credit Program (HC) pursuant to section 42 of the Internal Revenue Code and section 420.5099, Florida Statutes, under which Florida Housing is designated as the Housing Credit agency for the State of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code, and Florida Administrative Code Rule 67-48; and HOME Investments Partnerships Program (HOME) pursuant to section 420.5089, Florida Statutes, and Florida Administrative Code Rule 67-48. The 2011 Universal Cycle Application, through which affordable housing developers apply for funding under the above-described affordable housing programs administered by Florida Housing, together with Instructions and Forms, comprise the Universal Application Package or UA1016 (Rev. 2-11), adopted and incorporated by Florida Administrative Code Rule 67-48.004(1)(a). Because the demand for HC and HOME funding exceeds that which is available under the HC program and HOME program, respectively, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Rule 67-48. Specifically, Florida Housing's application process for the 2011 Universal Cycle, as set forth in Florida Administrative Code Rules 67-48.001 through 67-48.005, involves the following: The publication and adoption by rule of a "Universal Application Package," which applicants use to apply for funding under the HC and HOME programs administered by Florida Housing; The completion and submission of applications by developers; Florida Housing's preliminary scoring of applications (preliminary scoring summary); An initial round of administrative challenges in which an applicant may take issue with Florida Housing's scoring of another application by filing a Notice of Possible Scoring Error ("NOPSE"); Florida Housing's consideration of the NOPSEs submitted, with notice (NOPSE scoring summary) to applicants of any resulting change in their preliminary scores; An opportunity for the applicant to submit additional materials to Florida Housing to "cure" any items for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; A second round of administrative challenges whereby an applicant may raise scoring issues arising from another applicant's cure materials by filing a Notice of Alleged Deficiency ("NOAD"); Florida Housing's consideration of the NOADs submitted, with notice (final scoring summary) to applicants of any resulting change in their scores. An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's evaluation of any item in their own application for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score2/; Final scores, ranking of applications, and award of funding to successful applicants, including those who successfully appeal the adverse scoring of their application; and An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housings final scoring and ranking of competing applications where such scoring and ranking resulted in a denial of Florida Housing funding to the challenging applicant. Petitioner timely submitted its application for financing in Florida Housing's 2011 Universal Cycle. Petitioner, pursuant to Application No. 2011-201C, applied for $1,190,000.00 in annual federal tax credits to help finance the development of its project, a 73-unit apartment complex in Sarasota, Florida, known as Janie's Garden Phase 3.3/ As part of its application, Petitioner submitted its 2011 Universal Cycle-Surveyor Certification for Competitive HC Applications Form as Exhibit 25 (Surveyor Form). In its review and score of Petitioner's application dated February 22, 2012 ("The NOPSE score"), Florida Housing identified certain deficiencies, including a NOPSE concerning the Public Bus Transfer Stop/Public Bus Rapid Transit Stop which provides as follows: Evidence provided in a NOPSE indicates that the Public Bus Transfer Stop/Public Bus Rapid Transit Stop listed on the Surveyor Certification for Competitive HC Applications form is neither a location at which passengers may access at least three routes of public transportation via buses nor a location where passengers may access at least one bus that travels at some point during the route in a lane or corridor that is exclusively used by buses and that has scheduled stops every 20 minutes during the hours of 7am to 9am and 4pm to 6pm Monday- Friday. Petitioner timely submitted cures in response to these scoring deficiencies, including a letter from Anthony Beckford, general manager, Sarasota County, dated January 26, 2012; and a new Surveyor Form as a replacement for the Surveyor Form submitted as Exhibit 25 with Petitioner's application. Following the submission of cures and after a review of NOADs, Florida Housing scored Petitioner's application and issued its final scoring summary dated March 27, 2012, in which Florida Housing concluded that Petitioner met all threshold requirements and awarded Petitioner 27 Proximity Tie-Breaker points.4/ Specifically, Florida Housing awarded 27 Proximity Tie- Breaker points out of a possible 37 points for the following reasons: 1P The Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however, the cure is deficient because this route was "ready for implementation on December 5, 2011" and not available for use by the general public as of application deadline as required. 1P Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however the cure is deficient because the schedule for this route will not have hourly stops between the hours of 4pm and 6pm Monday- Friday as required. The Proximity Tie-Breaker that Petitioner would be entitled to receive for the Transit Services Public Bus Transfer Stop is six points; and for a public library is one and three quarters of a point. Petitioner timely filed its Petition contesting Florida Housing's scoring of its application, whereupon Florida Housing forwarded the matter to the Division of Administrative Hearings. December 6, 2011, the date that Petitioner submitted its application, was the deadline for applicants to submit the 2011 Universal Cycle Application. In its final scoring summary dated March 27, 2012, Florida Housing scored Petitioner's application such that for the proximity of its proposed development to the Verman Kimbrough Memorial Library (Kimbrough Library), Petitioner received zero Proximity Tie-Breaker points. Florida Housing did not award any such points to Petitioner because in its opinion, the Kimbrough Library does not meet Florida Housing's definition for a public library in that the library's holdings are not "available for the public to borrow at no cost." Petitioner disputes this contention and asserts that the public can borrow materials at no cost from the library as long as the public uses the materials while in the library. Florida Housing's 2011 Universal Application Instructions provide as follows: Public Library-–For purposes of proximity tie-breaker points, a Public Library means a library that is part of a city, county, or regional public library system or cooperative and has materials available for the public to borrow at no cost. The Ringling College of Art and Design is located in Sarasota, Florida, and has as a part of its campus the Kimbrough Library. The Kimbrough Library is a part of the Tampa Bay consortium of libraries. The primary purpose of the Kimbrough Library is to support the academic programs at the Ringling College of Art and Design. In furtherance of this purpose, the Kimbrough Library has, as a significant portion of its holdings, items such as art history books and large folios comprising artist representations, paintings, and the like. The majority of the periodicals in the library, such as Art News and Architectural Digest, are related in some way to the visual arts. The Kimbrough Library subscribes to various newspapers and has Wi-Fi and computers available for use by its patrons. For purposes of the instant dispute, the Kimbrough Library has three classes of patrons: Paying Members, Non- Members, and Regular Members. Paying Members are individuals that pay an annual fee of $50.00 to the Ringling College Library Association. A benefit of being a Paying Member is that individuals in this class are issued library cards that allow them to check out materials from the library. Non-Members are able to enter the library, without cost, during its hours of operation and are allowed to peruse the library's holdings and access the library's computers and Wi-Fi. As Non-Members are not issued library cards, these individuals are not allowed to check-out or otherwise remove materials from the library. Library materials are available to Non-Members for in-library use only. Regular Members are current students, alumni and employees of the Ringling College of Art and Design, and certain high school teachers from Sarasota County and Manatee County, respectively. The Kimbrough Library issues library cards to its Regular Members, and these cards allow them to check-out materials from the library. The library has on its website a list of frequently asked questions and responses thereto. The following excerpts are instructive: Q: Do alumni have borrowing privilages [sic]? A: Graduates of Ringling College of Art and Design have perpetual borrowing privileges at Kimbrough Library. They may check out up to 15 items at a time, excluding CDs and slides, and use many of the online subscription databases when visiting the Library. Register at the Circulation Desk for a library card. (Emphasis supplied). Q: Can members of the community use the library? A: Yes, for research and browsing. If you also wish to check out materials, you may become a member of the Ringling College Library Association. Individual memberships are $50.00 per year. High school arts and humanities teachers in Sarasota and Manatee counties may register for a library card at no charge. Q: How long can books be checked out? A: Three weeks for students and Ringling College Library Association Members. Six weeks for faculty and staff. On or about February 29, 2012, Tracy Wagner, who works for the Ringling College of Art and Design as vice-president of Finance and Administration, submitted to Florida Housing a letter regarding "FHFC Proximity Scoring-Library-Verman Kimbrough Memorial Library." Ms. Wagner, in her capacity as vice-president of Finance and Administration, does not have any oversight responsibilities for the library, but she does work with the library director "on maintenance and construction projects." By her own admission, Ms. Wagner is only "somewhat" familiar with the operations of the library. According to Ms. Wagner, the Kimbrough Library satisfies Florida Housing's definition of a public library in relevant part, because the library allows "area residents to use the library free of charge which includes the use of [the] library computers[,] as well as the ability to borrow any of [the] books for use within the library." Ms. Wagner's opinion is belied by the library's response to frequently asked questions, which treat as synonymous the acts of "borrowing" and "checking out" materials from the library. The library's response to frequently asked questions make clear that in-library "research and browsing" are different from the privilege of being able to borrow materials from the library. The library's responses to frequently asked questions, as opposed to the assertions by Ms. Wagner, are a competent and credible source for information about the operational aspects of the Kimbrough Library. For the reasons stated in stipulated paragraphs 8 and 11 above, Respondent, in its final scoring of Petitioner's application, did not award Petitioner any Proximity Tie-Breaker points for the public bus transfer stop identified by Petitioner in its application. The bus transfer stop in question is at or near the intersection of Orange Avenue and 23rd Street in Sarasota, Florida. It is undisputed that as of December 6, 2011, passengers using the bus transfer stop at the intersection of Orange Avenue and 23rd Street were able to ride buses servicing routes seven (Newtown-NE) and eight (Newtown-US 301). It is also undisputed that on December 5, 2011, Sarasota County Transportation Authority (SCTA), approved route 71 (Booker HS) for future operation. Once route 71 becomes operational around September 2012, it will have scheduled stops at the intersection of Orange Avenue and 23rd Street and will have, Monday through Friday, passenger pick-up and drop-off during the following times for inbound bus service: 7:58 a.m.; 8:28 a.m.; 5:28 p.m.; and 5:58 p.m. Outbound passenger pick-up and drop-off times at this location will be as follows: 7:47 a.m.; 8:17 a.m.; 5:17 a.m.; and 5:47 p.m. On or about April 19, 2012, Ms. Sarah Blanchard, who works at Sarasota County Area Transit as a senior transit planning manager, submitted on behalf of Petitioner a letter to Florida Housing. Ms. Blanchard's missive to Florida Housing states in part as follows: In terms of meeting the FHFC requirements during the p.m. period indicated for us as 4 to 6 p.m., the average headway, as defined by SCAT, is one hour, which equates to "hourly." That number is derived by dividing the period (two hours) by the number of directional trips, two, to obtain the average one hour headway.
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 denying Petitioner, Janie Poe Associates 3 LLC's, Petition for Review. DONE AND ENTERED this 6th day of July, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 July, 2012.
Findings Of Fact The hearing officer's findings of fact are hereby approved and adopted. There is competent, substantial evidence to support the the hearing officer's findings of fact. Petitioner takes his vacation between school board meetings or by asking the school board to be excused from attending said meetings. No leave time is actually used for such absences. (Petitioner's Exhibit O) Prior to 1979 the Division had not determined Cooney was an employee being paid from a regular salaries account who was eligible for FRS membership. His actual position and employment status was not questioned until 1980. Following an extensive review of Cooney's position, which had not changed since 1965, the Division determined Cooney was not eligible for FRS membership because he was not filling a regularly, established position. The 1979 rule changes defined "regularly established position", but did not redefine employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Richard W. Cooney eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 6th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1984.
Findings Of Fact On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the 35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age. At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of 133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.
Recommendation Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
