Findings Of Fact The Respondent, Susan Ellen Walton, was a registered and licensed real estate broker at all times material hereto. The Respondent, Walton Associates, Inc., was a licensed real estate broker at all times material hereto. The Respondents have been issued licenses numbered 0092944 and 0111791, respectively. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and practice of real estate brokers, broker salesmen and salesmen in the State of Florida. In October of 1979, Richard E. Turner, Jr. was moving from Gainesville, Florida, to the Daytona Beach, Florida, area. Mr. Turner took two days in October, 1979, and went to Daytona Beach to look for some rentals. He was unable to find any suitable housing through his own efforts so he went to the Respondents' rental agency asking for information regarding residential rental property. Mr. Turner ultimately entered into a written agreement with the Respondents whereby the Respondents would supply him with a list of rental homes that were within his stated financial means. In return for this service, Mr. Turner paid a $40.00 fee to the Respondents. The Respondents supplied Mr. Turner with a list of approximately four homes in the $175.00 to $225.00 per month rental price range. These homes proved to be unsuitable to live in or, on the day in question, were already rented. Mr. Turner therefore returned to the Respondents' office to obtain a second list of homes. He encountered the same problem with the second list of homes supplied him by the Respondents. Mr. Turner then went back to the Respondents' office the third time and was given three or four more houses to survey. On this list, one listing in particular was a house located at 118 Rio Way in Riviera Oaks Subdivision. The rental price stated for that house was approximately $375.00 per month. Mr. Turner made an extensive search to look for 118 Rio Way, but was unable to find the address. He drove all the way around Rio Way and, being unable to locate 118, went to the Riviera Oaks Subdivision sales office on Calle Grande, which was the street on the other side of the Rio Way circle. Riviera Oaks is a Tompkins Development subdivision. Mr. Turner stopped at the Tompkins Development office and talked to a saleswoman, Debbie Snowden, to see if there was a 118 Rio Way address in the subdivision. Ms. Snowden showed him a map of the subdivision in her office which revealed that there was not a 118 Rio Way address listed. Being therefore unable to locate a 118 Rio Way address and rental house, Mr. Turner returned to the Respondents' office. The person who had been helping him in the Respondents' office indicated that the card in their file describing the rental property supposedly at 118 Rio Way showed that a Mr. Frank Kenney was the individual to contact concerning information on that residence. Mr. Turner attempted to reach Frank Kenney but was unable to do so. He returned to Riviera Oaks to see if he could locate Frank Kenney in that subdivision. He went to the sales office and was told by Ms. Snowden that she knew Mr. Kenney, who had formerly worked at her office and, in fact, she now held his former job. With Ms. Snowden's help, Mr. Turner attempted to locate Mr. Kenney once again and was unable to do so. On this occasion, Ms. Snowden attempted to sell Mr. Turner a house and he told her that he would consider it. That same evening, Mr. Turner continued his attempt to find Frank Kenney and was unable to do so. Turner was becoming irritated regarding finding any available rental property. He accordingly returned to see Ms. Snowden at the Riviera Oaks Subdivision and had her show him and his wife a house for possible purchase. They ultimately signed a Contract of Sale for a residence located at 108 Rio Way in the Riviera Oaks Subdivision. That contract was dated October 4, 1979. The Turners gave the Tompkins Development Company a $100.00 deposit on the purchase of this house. After signing the Contract for Sale, the Turners contacted the Respondents about receiving a refund on the rental fee arrangement. Mr. Turner filled out the necessary form in order to obtain the refund of his $40.00. This form was sent to the Respondents and the Respondents were otherwise informed by Mr. Turner that he wished his $40.00 refunded within 30 days from the date Mr. Turner first contacted the Respondents regarding obtaining information about rental property. Mr. Turner subsequently received a speed message bearing the date November 30, 1979, from the Respondents stating that his request for refund had been refused. The speed message was signed by S. Walton of Walton Associates, Inc. (see Petitioner's Exhibit 10). Before denying a refund to the Turners, the Respondent, Walton, contacted Debbie Snowden at Riviera Oaks Subdivision office and asked her if the Turners were indeed renting a house from her, and she responded that they were not renting a house, but were temporarily leasing a house at 108 Rio Way until they could effect the closing of a loan so they could consummate the purchase of that same house. Prior to the execution of the contract, Mr. Turner had told Ms. Snowden that they needed a place to live until the closing of the conveyance of the house and it was agreed by all parties that they could move into the house while awaiting approval on their loan and the subsequent closing, provided the Turners signed a Lease and Occupancy Agreement. The Lease and Occupancy Agreement was required because on past occasions people had put up a deposit of $100.00 on a house and stayed in that house for several months and then left without paying any further for the use of the house. The Lease Occupancy Agreement from Tompkins Development is not a normal procedure, but the general manager for Tompkins Development, Pat Gallo, occasionally lets people move into homes under a Lease and Occupancy Agreement pending closing on that same home for which they have already contracted to purchase. Under the Lease and Occupancy Agreement in question, the Turners were required to pay the costs of the construction loan, which was $10.48 per day. Further, Tompkins Development was shown to be a sales company, dealing only in sales or residential real estate and not engaging in rental of rental property management at all. The only way Tompkins Development would have leased a house such as this one to someone is if the parties seeking to lease the house were under a contract to purchase that house. Tompkins Development simply did not make a practice of advertising homes for rental and did not seek to service individual families coming to them looking for rental housing. After signing the Contract of Sale for the house on October 24, 1979, the Turners moved into the house at 108 Rio Way. One day after they moved into that house, a rain storm flooded the street and so they approached Ms. Snowden regarding that problem and advised her that they did not then wish to buy the house if it was going to be subject to periodic flooding after each heavy rain. After some negotiation, they then signed the contract for 1018 Calle Grande, but this contract was apparently not accepted by the home office of Tompkins Development. The Turners ultimately entered into a contract on March 29, 1980, for a home located at 112 Camino Circle. This contract was subsequently renegotiated and re-executed on May 12, 1980, due to a change in the type of FHA mortgage loan the Turners were obtaining. On July 31, 1980, the Turners closed and completed the conveyance on the house located at 112 Camino Circle. At no time during this series of events did the Turners nor Ms. Snowden nor Tompkins Development mutually agree or understand that the contractural arrangement they had undertaken was for a rental of the house at 108 Rio Way, rather it was, as described above, merely a convenient method whereby the Turners could pay the cost of the construction loan pending the closing of the permanent financing on the dwelling in return for living in it as a convenience to them until time for closing. It was established that prior to October, 1979, neither Debbie Snowden, the saleswoman who negotiated the sale of the residence at 108 Rio Way with the Turners, nor the previous salesman, Frank Kenney, had ever heard of the Respondents, nor did Tompkins Development have a non-exclusive rental agreement (or any other kind) with any rental agency in the Daytona Beach area, including Respondents. The Respondents' real estate brokers licenses have previously been suspended on one occasion in December of 1981 by the Board of Real Estate, now the Florida Real Estate Commission. Their licenses were suspended for a period of 120 days, with 30 days of that penalty period being suspended upon the Respondent, Susan Ellen Walton, making full restitution of a $40.00 rental fee to one Narenda H. Patel. That suspension stemmed from the Respondents' failure to make a refund of a $40.00 rental fee upon demand by Narenda H. Patel within 30 days of the rental fee agreement after Patel was unable to secure a rental using the Respondents' rental fee service.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Respondents, Susan Ellen Walton and Walton Associates, Inc., have their licensure status suspended for a period of ninety (90) days, with thirty (30) days of that period suspended provided that the Respondent, Susan Ellen Walton, makes full restitution of the $40.00 due and owing to Richard Turner within ten (10) days of the entry of the Final Order herein. DONE and ENTERED this 8th day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1982. COPIES FURNISHED: John G. DeLancett, Esquire and James R. Mitchell, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32853 Edward L. Cook, Esquire 1885 Lee Road Winter Park, Florida 32789 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Petitioner was issued a permit to erect a sign on the site in question in 1971 and has renewed this permit annually since that time. At the time the initial permit was issued, the interchange to the 1-275 was not paved or opened to the public for access to the I-275. On October 19, 1971 Petitioner leased the property for this proposed sign at a minimum rental of $175 per month and has paid this rent since the execution of the lease (Exhibit 1). The boundary line between St. Petersburg and Pinellas County runs through the paved portion of the interchange in the vicinity of the site for the proposed sign. This site is outside St. Petersburg city limits. Petitioner now desires to erect the sign for which it holds a permit but, before spending the $40,000 estimated cost for this sign, reapplied for a permit to insure Respondent would not demand the sign be removed because it is within 500 feet of an interchange. The site of the proposed sign is located within 500 feet of the interchange to the I-275. The interchange is both within and without the corporate limits of St. Petersburg, and the site of the sign is outside the corporate limits of St. Petersburg in an unincorporated portion of Pinellas County. Since leasing the property, Petitioner has made lease payments in excess of $15,000 and has paid annual permit fees of $12 each to Respondent for the north and south facings of the permitted sign.
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent's intended decision to award low-income housing tax credits to Wisdom Village Crossing, LP (Wisdom Village), and Oakland Preserve, LLC (Oakland Preserve), is contrary to governing statutes, Respondent's rules, or the solicitation specifications.
Findings Of Fact Overview Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to promote the public welfare by administering the governmental function of financing affordable housing in Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits. The low-income housing tax credit program was enacted by Congress in 1986 to incentivize the private market to invest in affordable rental housing. Tax credits are competitively awarded to developers in Florida for qualified rental housing projects. These are tax credits and not tax deductions. For example, a $1,000 deduction in a 15 percent tax bracket reduces taxable income by $1,000 and reduces tax liability by $150. However, a $1,000 tax credit reduces tax liability by $1,000. Developers that are awarded tax credits can use them directly. However, most developers sell the tax credits to raise equity capital for their projects. Developers sell these credits for up-front cash. A developer typically sets up a limited partnership or limited liability company to own the apartment complex. The developer maintains a small interest, but is responsible for building the project and managing (or arranging for the management of) the project. The investors have the largest ownership interest, but are typically passive investors with regard to development and management. Provided the property maintains compliance with the program requirements, investors receive a dollar-for-dollar credit against their federal tax liability each year over a period of ten years. The amount of the annual credit is based on the amount invested in affordable housing. Because the tax credits can be used for ten years by the investors that provide the equity, they are very valuable. When sold to the investors, they provide equity which reduces the debt associated with the project. With lower debt, the affordable housing tax credit property can (and must) offer lower, more affordable rent. The demand for tax credits provided by the federal government far exceeds the supply. The Competitive Application Process Florida Housing is authorized by law to allocate tax credits and other funding by means of requests for proposal or other forms of competitive solicitation. Pursuant to that authority, Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. Chapter 67-60 was newly enacted on August 20, 2013, replacing prior procedures used by Florida Housing for allocating tax credits. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. Tax credits are made available annually. Florida Housing begins the competitive application process through the issuance of Requests for Applications.4/ The RFA that started the competitive application process being considered here was issued September 19, 2013, with responses/applications due November 12, 2013. According to the RFA, Florida Housing expected to award up to approximately $10,052,825 in tax credits for qualified affordable housing projects in Miami-Dade, Broward, and Palm Beach Counties. Knowing that there would be far more applications than available credits, Florida Housing established an order for funding in the three counties: The Applications will be considered for funding in the following funding order: first the highest scoring eligible Application located in Miami-Dade County that can meet the Funding Test, then the highest scoring eligible Application located in Broward County that can meet the Funding Test, then the highest scoring eligible Application located in Palm Beach County that can meet the Funding Test, then the highest scoring eligible unfunded Application located in Miami-Dade County that can meet the Funding Test and then the highest scoring eligible unfunded Application located in Broward County regardless of the Funding Test. If there is not enough funding available to fully fund this last Broward County Application, the Application will be entitled to receive a Binding Commitment for the unfunded balance. No further Applications will be considered for funding and any remaining funding will be distributed as approved by the Board. Applications were scored using a 27-point scale based on criteria in the RFA, as set out in the RFA: The highest scoring Applications will be determined by first sorting all eligible Applications from highest score to lowest score, with any scores that are tied separated first by the Application's eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.c.(1)(a) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference), then by the Application's eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.9.e. of the RFA, (with Applications that qualify for the preference listed above Applications that do not qualify for the preference), then by the Application's Leveraging Classification (applying the multipliers outlined in Exhibit C below and having the Classification of A be the top priority, then by the Application's eligibility for the Florida Job Creation Preference which is outlined in Exhibit C below (with Applications that qualify for the preference listed above Applications that do not qualify for the preference), and then by lottery number, resulting in the lowest lottery number receiving preference. The way this process works in reality is that the developers know that they must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors.5/ Developers also strive to submit projects structured to receive the maximum of 27 points, with 22 points available for the proposed development's proximity to transit and community services. The tiebreakers are determined strictly by the luck of the draw. At the time each application is filed, it is randomly assigned a lottery number used to break the ties. The role of the lottery numbers is demonstrated by the following facts: 119 applications were filed in response to the RFA; all but six received the maximum score of 27 points. Seventy of the 119 applications were deemed eligible. Of those 70, 69 received the maximum score of 27 points. As such, the lottery numbers are a big factor in deciding the winners and, concomitantly, the challengers here are applicants with lottery numbers outside the funding range that are trying to displace those with lower lottery numbers. All applicant-parties in this case were deemed eligible and received the maximum 27 points as a result of Florida Housing's initial review and scoring. Therefore, the two Broward projects selected for funding were Oakland Preserve and Wisdom Village, based on their lower lottery numbers of 12 and 20, respectively. Heritage drew lottery number 26 and HTG drew lottery number 48. Florida Housing's rules provide that the selection of applicants for funding does not end the competition. Instead, Florida Administrative Code Rule 67-48.0072 provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing Credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team's experience, past performance or financial capacity is satisfactory. An applicant might fail in this de novo review in the credit underwriting phase and never receive funding, even though it was "awarded" tax-credit funding as a result of a proceeding such as this one. In that event, the RFA provides: Funding that becomes available after the Board takes action on the Committee's recommendation(s), due to an Applicant declining its invitation to enter credit underwriting or the Applicant's inability to satisfy a requirement outlined in this RFA, and/or Rule Chapter 67-48, F.A.C., will be distributed to the highest scoring eligible unfunded Application located in the same county as the Development that returned the funding regardless of the Funding Test. If there is not enough funding available to fully fund the Application, it will be entitled to receive a Binding Commitment for the unfunded balance. Therefore, if one or more applicants nominally "awarded" funding in the eligibility and scoring phase fail credit underwriting, the next applicant(s) in the queue of eligible applicants may still be granted funding. As such, these applicants are substantially affected by the order established for the queue before credit underwriting, just as they may be substantially affected by decisions resulting from the de novo credit underwriting review. In this consolidated proceeding, the objective of the applicants not selected for funding was to displace any and all applicants in more favorable positions. Thus, Petitioner Heritage sought to challenge the scoring of both the Oakland Preserve and Wisdom Village applications; and Petitioner HTG sought to challenge the scoring of the Oakland Preserve, Wisdom Village, and Heritage applications. The specific issues raised as to the three challenged applications will be discussed in turn below. OAKLAND PRESERVE HTG and Heritage sought to prove that the scoring of Oakland Preserve's application was erroneous in only one respect: they contend that Oakland Preserve was not entitled to any points for the proximity of its proposed development to a "medical facility" because the location used by Oakland Preserve does not meet the RFA's definition of "medical facility." Without those proximity points, Oakland Preserve's application would have fallen below the threshold number of proximity points needed to be deemed eligible for funding. The RFA defined "medical facility" as follows: For purposes of proximity points, a Medical Facility means 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.[6/] To qualify for these proximity points, Oakland Preserve's application included the required surveyor certification form (provided as part of the RFA) attesting to the proximity of the development site (measured from Oakland Preserve's DLP) to Dr. Edie Durand’s medical office practice. Florida Housing accepted the information and awarded Oakland Preserve points for the proximity of its development to Dr. Durand's office. Florida Housing conducted no independent investigation into whether Dr. Durand's office practice qualified as a "medical facility" within the meaning of the RFA. That is hardly surprising given the fact that Florida Housing personnel were also reviewing 118 other applications in addition to carrying out their other duties unrelated to the RFA. HTG and Heritage contend that Dr. Durand's office practice does not meet the definition of "medical facility," because Dr. Durand restricts her practice to treating only adults and geriatric patients, and does not treat persons under age 18. Neither HTG nor Heritage raised any other issue in their formal written protests regarding whether Dr. Durand's office practice qualifies as a "medical facility."7/ It is undisputed that Dr. Durand qualifies as a matter of credentials to satisfy the professional provider requirement imposed by the medical facility definition, in that she is a physician licensed to practice osteopathic medicine, pursuant to chapter 459, Florida Statutes. It is also undisputed that, if Dr. Durand's medical office practice otherwise qualifies as a "medical facility," it would meet the RFA's temporal requirement that the service must be in existence and available for use by the general public as of the application filing deadline. Dr. Durand's medical office practice has been open and operational since 2003. To prove that Dr. Durand does not treat "any person," but rather, restricts her practice to only adults and geriatric patients, Petitioners offered the testimony of a private investigator retained by Heritage for the purpose of developing proof that Dr. Durand does not treat patients under age 18. However, the investigator's report offered nothing but hearsay evidence, including the investigator's recounting of what he contends was said during brief discussions with Dr. Durand's receptionist/medical assistant and with Dr. Durand at her office. The private investigator set out to prove a certain point, consistent with his client's objective. Accordingly, his report focused on indicators suggesting that Dr. Durand markets to adults and geriatric patients, and her marketing highlights certain specialty treatments that might be popular with these age groups, such as anti-aging treatment. Dr. Durand has business cards that focus on these areas. On the other hand, the front of Dr. Durand's office has a large sign with her name printed on the top line, below which are the words "Family Medicine." Dr. Durand's office also has a large sign painted on the side of the building to advertise her medical office practice, indicating in bullet points the type of treatment she offers there. The very first bullet point is "Family Medicine." The investigator ignored these indicators that ran contrary to his objective. The investigator discussed certain information in brochures used by Dr. Durand, but did not mention that these brochures highlight a picture of Dr. Durand in a white physician's coat, on which her name and "Family Medicine" are prominently embroidered. The investigator also did not mention that the brochures display a picture of the front of Dr. Durand's office, with a large sign across the front of the building identifying the office for "Dr. Edie Durand, D.O." (on the top line), "Family Medicine" (immediately below her name). The picture of Dr. Durand in her embroidered "Family Medicine" physician's coat is also portrayed on the home page of Dr. Durand's website. The home page also advertises "Family Doctor," with a picture of a doctor examining a young girl. HTG also sought to collect evidence that Dr. Durand does not treat minors, but like the investigator's report, HTG came up with only hearsay evidence. Matthew Rieger, president and CEO of Housing Trust Group, testified that "we" (i.e., someone from his company) sent an email inquiry to Dr. Durand. The subject reference of this email was: "Children." The body of the email asked Dr. Durand whether she provided general medical treatment to physically sick or injured children (parroting part of the RFA definition, except that the word "person" was changed to "children"). Dr. Durand responded negatively to the question (at 9:30 p.m.), stating that she specializes in adults and geriatrics, and "only treat[s] 18 year old and up." In her deposition testimony, Dr. Durand acknowledged that she sent this email, but explained that at that late hour when she was trying to read and respond quickly to many email inquiries, she understood this inquiry on the subject of "children" to be asking whether she was a pediatrician who only treated children.8/ Dr. Durand testified that she is available to provide general medical treatment to any physically sick or injured person, and does so, at her office location. Although there is some conflicting evidence, the greater weight of the non-hearsay evidence establishes that Dr. Durand does, in fact, offer general medical treatment to persons under the age of 18; she does not restrict her practice to only patients who are 18 or older. While Dr. Durand acknowledged that she treats many more adults and geriatric patients than minors, Dr. Durand remains available to treat minors, and does in fact treat small numbers of patients under the age of 18. Significantly, Dr. Durand has never turned away a child who was brought to her office for treatment, nor has she ever declined to make an appointment to treat a child upon request of someone calling the office for such an appointment. No evidence to the contrary was offered; Dr. Durand's unrebutted testimony is accepted.9/ Dr. Durand explained that one reason she does not treat greater numbers of patients under the age of 18 is that parents tend to steer those patients to pediatricians instead of family practitioners. Dr. Durand testified that the pediatrician who trained her in pediatrics when she was a resident at Broward General Hospital has his well-established office practice across the street from Dr. Durand's office. Dr. Durand does not actively compete for this patient population, except to the extent that she advertises her specialty in family medicine. Dr. Durand is well-qualified to treat patients of all ages, having done her residency in family practice at Broward General Hospital, and thereafter attaining board certification in osteopathic family medicine, which she maintains through many hours of continuing medical education in family medicine. Indeed, as plainly as on the signs on both the front and the side of Dr. Durand's office building, Dr. Durand's dossier collected by the private investigator is replete with references to Dr. Durand's specialty in family practice and family medicine. The investigator's singular objective kept him from asking about Dr. Durand's family medicine practice. HTG and Heritage failed to prove by a preponderance of the evidence that Dr. Durand's medical office location does not qualify as a "medical facility" as defined in the RFA. WISDOM VILLAGE Challenge to Public School Proximity Points HTG and Heritage also joined in challenging the award of proximity points to Wisdom Village for its location near a public school, Northside Elementary School. Petitioners' argument is that the surveyor certification measured the distance from the "wrong" door instead of from the “right” door at Northside. Taking a pass/fail approach, neither HTG nor Heritage address whether the distance discrepancy between the so-called "wrong" and "right" doors is significant or material. Pursuant to the RFA, in expressing the location of community services, such as a public school, the surveyor certification form must identify the latitude and longitude coordinates that "represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located." There are two doors on the front of the Northside Elementary School building facing Northeast 11th Street, one on the east (east door) and the other to the west (west door). Wisdom Village's surveyor certification form identified the latitude and longitude coordinates of a point on the doorway threshold of the west door. The east door is less prominent than the west door chosen by Wisdom Village. The name of the school is engraved in large letters above the west door. Next to the walkway from the sidewalk to the west door, there is a large marquee sign for school announcements. When photos in evidence were taken, the sign reported an upcoming early release day and the dates when the school would close for spring break. In contrast, the school name does not appear above the east door, nor is there a marquee sign next to the walkway leading to that door. Physically, both doors provide direct access to the school building, in that they open to inner hallways in the main school building where classes are held. As a matter of function and usage, both doors provide restricted access to the school building. There is an outer fence around the entire school building, with gates to the walkways to both east and west doors. Both gates are opened in the mornings before school, and both gates are closed and locked in the evenings when the custodial staff leaves campus. As of the beginning of the current school year on August 20, 2013, the school district adopted a security restriction, requiring all Broward County public schools to designate a single exterior door as the door to which visitors to the school must enter. Visitors are not allowed free access to the school building. Instead, guards at the door direct the visitors to the office where they must sign in and explain the reason for their visit. Parents are not allowed to enter the school building to walk their children to classes or pick them up from their classes. Thus, in a sense, security measures dictate that there is no such thing as "direct access" to public schools by the general public. The west door used to measure proximity in the Wisdom Village application does not serve as the designated entry point for the school. Instead, as of the current school year, the east door was designated as the single entrance to the school building. The west door is used as an exit. The unrebutted evidence established that the two doorways on the front of the school building are very close together. Both doors are shown in a single picture in evidence, which also shows the street with parallel parking spaces in front of the school. Based on this picture, the distance between the two doors appears to be the length of approximately four parking spaces. Witnesses who have been to the school site estimated the distance between the two doors to be 50 feet, 100 feet, 120 feet, or 200 feet. It is reasonable to estimate the distance between the two doors as approximately 100 feet. Wisdom Village's surveyor certification form stated that the distance between the public school (measured from the west door) and the Wisdom Village development was .57 miles. Florida Housing accepted the surveyor certification and Wisdom Village received three proximity points, the number of points awarded when the proximity of this service to a development is between one-half mile and one mile. Wisdom Village would have received the same number of proximity points had it used the east door that is now designated as the entrance, instead of the west door that is now designated as an exit. Thus, even if it could be said that Wisdom Village selected the "wrong" door to measure proximity, the choice of door was immaterial to the point award, conferring no competitive advantage on Wisdom Village. Wisdom Village's doorway selection to measure proximity of its proposed development to the public school was reasonable. Physically, the west door does provide direct access to the general public to the building in which the community service is provided. The door certainly has the appearance of being the main entrance to the building, and at times in the past, the door has functioned as an entrance. The school's current designations of the functions of the east and west doors could change again. The evidence at the hearing, not considered by Florida Housing, confirmed the correctness of Florida Housing's award of three proximity points to Wisdom Village for the proximity of its development to Northside Elementary School, either because the choice of the west door was appropriate to comply with the RFA, or because the choice of the west door instead of the east door was, at worst, a waivable minor irregularity. Challenge to sufficiency of site control documentation HTG, but not Heritage, challenged the sufficiency of Wisdom Village's demonstration of site control. To demonstrate site control, the RFA requires at Section Four A.7. that an applicant must provide a copy of an eligible contract, deed, or lease. The RFA specifications for the first option, an eligible contract, are as follows: Eligible Contract - For purposes of the RFA, an eligible contract is one that has a term that does not expire before a date that is six (6) months after the Application Deadline 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 six (6) months after the Application Deadline; specifically states that the buyer's remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer's rights, title and interests in the eligible contract to the Applicant, is provided. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided. . . . Wisdom Village's application included the following documents as evidence of site control: a contract for the sale and purchase of the development site; an addendum to that contract; a second addendum to that contract; and an assignment of the contract from the original named buyer to the entity that was the applicant. HTG contends that the contract does not qualify as an "eligible contract" because it was not properly executed on behalf of a seller with an ownership interest in the property. The property in question was owned at one time by Benjamin and Jean Bollinger, as joint tenants. Benjamin and Jean Bollinger were husband and wife. In 1992, Benjamin Bollinger died. In 2010, Jean Bollinger died. Benjamin and Jean Bollinger's two sons are James Bollinger and Bruce Bollinger. The two sons are co-personal representatives of the estates of both Benjamin Bollinger and Jean Bollinger. They are also co-trustees of the Jean Bollinger family trust. HTG does not dispute the authority of James and Bruce Bollinger to act in these representative capacities to enter into a contract to sell real property on behalf of the estates of either or both of their deceased parents, or on behalf of the trust; instead, HTG questions whether James and Bruce Bollinger properly did so. The land in question twice had been the subject of past contracts for sale to developers applying for tax credit funding for low-income rental property. Bill Schneider was the liaison in dealing with the Bollinger family. Those prior contracts were not consummated because the applications did not obtain tax- credit funding. Mr. Schneider approached James and Bruce Bollinger in preparation for the Wisdom Village application and they expressed their continued interest in selling the property. The Vacant Land Contract for sale and purchase of the property appears to be clear as to all essential terms. However, the contract is messy, and arguably somewhat ambiguous, with respect to naming the seller and having the named seller properly sign the contract in the proper capacity. On the first page, typed into the form contract in the blank for "seller" is the following: "Bruce A. Bollinger and James B. Bollinger, PR's of Benjamin A. Bollinger, deceased and Jean Rupp Bollinger." A line was then drawn through "Jean Rupp Bollinger," next to which the word "DECEASED" was handwritten and initialed by JBB and BAB. At the bottom of the first and all subsequent pages of the contract, space was provided for the "buyer" and "seller" to place their initials, to acknowledge receipt of a copy of that contract page. Each page is initialed by JBB and BAB in the spaces provided for "seller." On the signature page of the contract, Bill Schneider signed the contract as executive director of Home Start, LLC, the buyer. For the seller, Bruce A. Bollinger's signature appears above the following typed name: "Bruce A. Bollinger Personal Rep. of Benjamin A. Bollinger, Deceased"; then James B. Bollinger's signature appears above the following typed name: "James B. Bollinger Personal Rep. of Benjamin A. Bollinger, Deceased." A third "seller" signature line was provided, above the typed name "Jean Rupp Bollinger." Instead of any full signatures in the line above this typed name, an "X" was drawn through the typed name, next to which the word "DECEASED" was handwritten and initialed by JBB and BAB. The first addendum to the contract was executed at the same time of the original contract, and the manner of identifying the seller and executing on behalf of the seller was the same as in the original contract. Roughly six months later, two additional documents were executed: an assignment of the buyer's interest in the contract from Home Start, LLC, to the applicant, Wisdom Village; and a second addendum to the contract. Both documents clearly refer back to the original contract to sell and purchase the real property in question. The second addendum to the contract identifies the "seller" in the original contract as follows: This is an Addendum to that certain purchase and sale contract by and between BRUCE A. BOLLINGER AND JAMES B. BOLLINGER, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF BENJAMIN A. BOLLINGER, DECEASED AND JEAN RUPP BOLLINGER, DECEASED, "Seller" . . . . The second addendum was executed by the "seller," with two signature lines provided. On the first signature line for the seller, Bruce A. Bollinger's signature appears above the following typed name: "Bruce A. Bollinger, PR of Benjamin A. Bollinger, Deceased and Jean Rupp Bollinger, Deceased." On the second signature line for the seller, James B. Bollinger's signature appears above the following typed name: "James B. Bollinger, PR of Benjamin A. Bollinger, Deceased and Jean Rupp Bollinger, Deceased." Similarly, the assignment document was "accepted by seller," with the signatures of Bruce and James appearing above the same typed names as in the second addendum. HTG contends that the failure to properly or clearly identify the seller and to sign in the proper representative capacity on behalf of the estate of Jean Rupp Bollinger, instead of or in addition to the estate of Benjamin Bollinger, is fatal to the original contract, and that the clarifying descriptions in the subsequent documents could not cure the fatal flaw in the original contract. Florida Housing, however, considered the documents as a whole, and as such, found that they were sufficiently clear to identify the seller and the capacity in which the documents were executed. James Bollinger testified at the final hearing to confirm that he was the one who drew the lines through his mother's name on the original contract and wrote DECEASED, and that he thought the manner in which he did so, initialed by his brother and himself, was sufficient to express that he and his brother were acting as sellers of the property in their capacity as the personal representatives on behalf of both of their deceased parents. To the extent that was not entirely clear, he testified that they tried to make it clearer in the second addendum and assignment documents. The contract to sell and purchase the Wisdom Village development site has been partially executed, in that two nonrefundable payments totaling $50,000 were made by the buyer to, and accepted by, James and Bruce Bollinger, as personal representatives on behalf of their deceased parents. It is unnecessary, and beyond the scope of the undersigned's jurisdiction, to make a determination as to how the title to the real property in question was held at the time of the original vacant land contract filed with the Wisdom Village application. HTG suggests that the property in question was owned outright by Jean Bollinger's estate, having passed to her upon Benjamin Bollinger's death as an incident of joint tenancy. HTG also raised the possibility that the property was owned by the trust, but the evidence was to the contrary. For purposes of this proceeding, it is sufficient to observe that James and Bruce Bollinger, as the co-personal representatives of both parents' estates (and as co-trustees of the family trust), were the two persons who were authorized to act on behalf of either or both parents' estates, and that they did so, in entering into and accepting part of the benefits of a contract to sell the property on behalf of either or both of their deceased parents. A preponderance of the evidence does not support HTG's position that the original contract was fatally flawed. Instead, the document itself provided written evidence of the identity of the "seller" and the execution by the two Bollinger sons in their representative capacities on behalf of their deceased parents. Moreover, parol evidence clarifies any arguable ambiguity, as does clarification in the subsequent documents that specifically refer back to the original contract. HTG also argues that Florida Housing’s acceptance of Wisdom Village’s site control documents is inconsistent with its rejection of other applicants’ site control documentation where the buyer was not the same entity as the applicant. HTG offered no documentation to prove that the circumstances were similar; the description of these other instances does not sound similar, in that apparently those other applications did not meet the requirement in the RFA’s “eligible contract” definition that “the buyer MUST be the Applicant”--the only part of the definition that screams its importance in all caps. Challenge to financing proposal documentation HTG contends that Wisdom Village's financing proposal documentation should have been rejected, because the applicant only "acknowledged" and did not "accept" the financing terms. The RFA in Section Four A.9.d.(1) addresses the requirements for financing proposal documentation, providing in pertinent part: Financing proposal documentation, regardless of whether the documentation is in the form of a commitment, proposal, term sheet, or letter of intent, must meet the following criteria. . . . (a) Each financing proposal shall contain: * * * (iv) Signature of all parties, including acceptance by the Applicant. (emphasis added). Wisdom Village submitted a letter from JPMorgan Chase Bank, NA (Chase) as part of its financing proposal documentation. HTG contends that the following portion of the Chase letter, appearing below the signature on behalf of Chase, does not satisfy the RFA requirement for acceptance by the applicant: Borrower's "acceptance" of this preliminary outline of terms to satisfy the requirements of Florida Housing Finance Corporation shall not create a binding or enforceable agreement between Borrower and JPMorgan Chase. For the purpose of satisfying the requirements of Florida Housing Finance Corporation, the proposed Borrower has countersigned this preliminary outline of terms to evidence acceptance thereof, this 21st day of October , 2013. Acknowledged By Wisdom Village Crossing, LP By: Wisdom Village Crossing, LLC, General Partner By: Turnstone Development Corporation, Member/Manager _/S/ William Schneider, Executive Director HTG contends that the above language shows that Wisdom Village only "acknowledged" the financing terms in the Chase letter, and did not accept them. However, the language in the document is clear that the signature on behalf of Wisdom Village stands to "evidence acceptance thereof." Mr. Schneider testified that he signed the letter, and he hand-wrote the day and month on which he signed the letter "to evidence acceptance" of the terms on behalf of Wisdom Village. The additional typed words "Acknowledged by" appearing below the language specifying that the borrower's signature stands to evidence acceptance of the financing terms does not change or in any way undermine that acceptance language. Florida Housing reasonably accepted Wisdom Village's financing proposal documentation as meeting the RFA's requirement that the applicant accept the outlined financing terms. HERITAGE Although Heritage was not selected for funding, its application has a priority position over HTG's application. Both applicants will remain in line, even if the Florida Housing initial decision is confirmed, because the applicants selected for funding might fall out during the credit underwriting process. Thus, with the hope of improving its position in line, HTG challenged several aspects of the Heritage application. Challenge to DLP as outside development site HTG sought to prove that Heritage's DLP, identified in its surveyor certification form and used to measure proximity from the development site to various services, is not within the boundaries of the Heritage development site according to the legal description attached to the contract to purchase the site submitted in Heritage's application. The RFA explicitly requires that the DLP selected by the applicant must be on the development site. The instructions for identifying the DLP in the surveyor certification form require the surveyor to provide coordinates for the applicant's DLP, expressed in degrees, minutes, and seconds. The degrees and minutes must be expressed in whole numbers, and the seconds must be "truncated" after one decimal place. The word "truncated" is not defined in the RFA. John Pulice, the expert surveyor witness for Heritage, testified that "truncated" is not a term of art in the field of surveying. Donna West, HTG's expert surveyor, equivocated on this point; she testified first that the term has a specific connotation in her field. However, she later testified that it is not a term normally used in the surveying field. The evidence was not persuasive that "truncated" is a term of art with a particular meaning in the field of surveying. Ms. West testified that she understood the "truncated" instruction to mean that only the first digit to the right of the decimal point should be put on the form, and any additional digits to the right of that one digit were to be dropped. Both experts agreed that expressing latitude and longitude coordinates to one-tenth of a second does not define a specific point on the ground; instead, a range of possible points is defined, within an area measuring roughly ten feet by nine feet. Ms. West applied her interpretation of the "truncated" instruction to locate the DLP identified by the coordinates in Heritage's surveyor certification form. She then compared that "point," or area, to the legal description for the development site submitted by Heritage in its application. The result was that she identified an area of roughly ten feet by nine feet that was entirely outside of the Heritage development site. The closest points to the Heritage development site were approximately eight-tenths of one foot--less than ten inches-- outside the development site boundaries. However, the Heritage surveyors who located the DLP and completed the surveyor certification form did not apply the same interpretation of "truncated" used by Ms. West. The unrebutted testimony by Mr. Pulice was that the actual point selected as the DLP was the southwest corner of the development site. The full coordinates for that point are: latitude 26 degrees, 14 minutes, 06.66 seconds north; longitude 80 degrees, 7 minutes, 28.100 seconds west. The DLP coordinates in Heritage's surveyor certification form were: latitude 26 degrees, 14 minutes, 06.7 seconds north; longitude 80 degrees, 07 minutes, and 28.1 seconds west. As Mr. Pulice explained, the DLP coordinates in Heritage's surveyor certification form "truncated" the seconds after one decimal place by shortening the number of digits to the right of the decimal place to one digit rounded to the nearest value, instead of just lopping off the additional digits. The truncated presentation affected the latitude only, for which the seconds were expressed as 06.7 seconds instead of the actual 06.66 seconds. If Heritage's surveyors had interpreted "truncated" the way Ms. West did, the truncated latitude seconds would have been expressed as 06.6 instead of 06.7. By shortening the actual seconds to the required number of digits and rounding the last digit, Heritage's surveyor certification form showed a more accurate number: 06.7 is closer than 06.6 to expressing the actual latitude seconds of 06.66. Mr. Pulice testified that in deciding to shorten the seconds by rounding the first decimal place to the nearest digit, he considered the fact that a surveyor always tries to present information in the most accurate manner possible. Ms. West agreed that surveyors try to present information found in the field in the most accurate way possible. Mr. Pulice also considered an instruction on the surveyor certification form requiring that "horizontal positions shall be collected to meet sub-meter accuracy[.]" He viewed the "sub-meter accuracy" instruction as inconsistent with an interpretation of "truncated" that would result in seconds being shortened by just lopping off the extra digits instead of by rounding. The ordinary meanings of the word "truncated" found in regular dictionaries often favor Ms. West's interpretation; however, there is room for interpretation among the common dictionary definitions of "truncated." For example, one dictionary defines "truncated" as "made briefer or shorter, usually by removing a part." See American English Dictionary – Cambridge Dictionaries Online, http://www.dictionary.cambridge. org/dictionary/American-english/truncated. A similar definition of "truncated" is provided by the online MacMillan Dictionary: "made shorter, especially by having the end or top removed." See MacMillan Dictionary at http://www.macmillandictionary.com/ dictionary/american/truncated. Thus, "truncated" always means "made shorter." While "usually" one would truncate a number by simply lopping off the extra digits, truncated can sometimes mean "made shorter" by means other than simply removing the extra digits. In this particular context, a reasonable interpretation of "truncated" is that seconds should be truncated by shortening the number after one decimal place and rounding the last digit up or down, instead of just by lopping off the extra digits. This would provide the shorter number required by the surveyor certification form, while also improving the accuracy of the shortened coordinates expressed in the form. Given the undisputed evidence regarding the actual location of the DLP before truncation of the coordinates, HTG failed to prove that Heritage's DLP was not within the development site according to the legal description provided in the Heritage application. At most, HTG proved that the surveyor certification form identified an area as the DLP that would not be within the development site based on how Ms. West would have truncated the coordinates, which was not how Heritage's surveyors truncated the coordinates. Ms. West identified an area outside of the development site by assuming that the range of possibilities for the actual seconds in the latitude coordinates spanned from 06.70 seconds to 06.79 seconds. That was shown not to be an accurate assumption, because the actual seconds in the latitude coordinates were 06.66. In the absence of a clear meaning of "truncated" imposed by statute, rule, or RFA specifications that requires shortening by just lopping off extra digits instead of shortening by rounding, the interpretation used for Heritage's surveyor certification form was reasonable. The evidence offered at hearing, which was not considered by Florida Housing, confirmed the correctness of Florida Housing's initial decision to accept the DLP in Heritage's survey certification form, in that the DLP identified in that form in fact corresponds to a point within the boundaries of the legal description of the development site in Heritage's application, and the coordinates of that DLP were expressed in the certification form in a manner that was reasonable and consistent with the RFA requirements. Challenged proximity points for public bus transfer stop HTG also challenges the award of proximity points to Heritage for proximity to a public bus transfer stop, because the surveyor certification form contained an error in stating the distance between the bus station and the DLP. HTG did not dispute the appropriateness of the public bus transfer stop used by Heritage, nor did HTG dispute the accuracy of the coordinates provided for the bus stop's location. However, in stating the distance between the bus stop and the DLP, the surveyor made an error: the surveyor certification form stated that the distance was 0.04 miles, when, in fact, evidence at hearing established that the distance is actually .15 miles. Under the RFA, an applicant is entitled to six proximity points if its development is less than a quarter-mile (.25 miles) to a public bus transfer stop. A distance of .04 miles would yield six proximity points; a distance of .15 miles would also yield six proximity points. Thus, although there was a plain error in Heritage's surveyor certification form, just as plainly, that error is insignificant and immaterial. Whether the distance was as stated in the surveyor certification form or as corrected by the evidence at hearing, Heritage would have received the same number of proximity points. The slight error conferred no competitive advantage on Heritage; its application received no more points than it was entitled to by reason of the mistake. The evidence at hearing, not considered by Florida Housing, confirms the correctness of Florida Housing's proximity point award to Heritage with respect to the public bus transfer stop. The slight error in the surveyor certification form is a waivable minor irregularity. Challenge to site control documentation HTG challenged the sufficiency of Heritage's site control documentation, contending that the contract to purchase the development site submitted by Heritage contains an impermissible condition on the exercise of options to extend the contract's term. HTG argues that the contract does not meet the RFA's definition of "eligible contract" (quoted above in paragraph 51), which requires that the extension options must be "exercisable by the purchaser and conditioned solely upon payment of additional monies[.]" The contract at issue established a closing date of March 21, 2014, but allowed the purchaser to extend the closing date by up to two 30-day extensions, by providing prior written notice of the purchaser's election to extend the closing date and payment of extension fees to an escrow agent by wire transfer, in the amount of $25,000 per 30-day extension. HTG argues that the provision specifying that the purchaser will give written notice that it is exercising the extension option, in addition to the requirement to send payment to an escrow agent by wire transfer, is an impermissible additional condition in violation of the RFA. Although the contract provides for the purchaser to give written notice that it is exercising the extension option, HTG did not prove that the extension option is "conditioned" on the notice in the sense that the failure to give timely or proper notice would defeat an extension option if the extension fee were timely and properly paid. Instead, the notice to the seller that the purchaser is exercising the extension option appears to mean nothing more than that the extension options are "exercisable by the purchaser." The notice serves the pragmatic function of informing the seller that the purchaser is exercising the extension option, in that payment of the extension fee itself must be by wire transfer to an escrow agent. In the past, before wire transfers became customary, these two parts would have been collapsed into a single step: a transmittal letter mailed by purchaser to seller explaining what the enclosed check is for. Florida Housing reviewed the extension option terms in Heritage's contract, and reasonably determined that the contract met the requirements in the RFA. Challenge to misnamed general partner HTG's final challenge is based on a typographical error in the Department of State, Division of Corporations' records that misnamed Heritage's general partner as "NDG Heritage Pompany, LLC" instead of "NDG Heritage Pompano, LLC." The Heritage application identifies Heritage's general partner as "NDG Heritage Pompano, LLC." The RFA’s Certification and Acknowledgement Form was executed on behalf of Heritage by Robert G. Hoskins, as managing member of NDG Heritage Pompano, LLC, general partner of Heritage. At the time of the application, the Department of State, Division of Corporations' records for Heritage contained a typographical error, identifying the name of Heritage's general partner as NDG Heritage Pompany, LLC. At hearing, although Heritage could not explain how the typographical error found its way into the Division of Corporations' records, Heritage proved that the general partner entity is and always has been NDG Heritage Pompano, LLC. The correct entity name was verifiable and verified by evidence linking up the "document number" uniquely assigned to NDG Heritage Pompano, LLC (L13000119322), as shown on that entity's electronic articles of organization, with the same document number corresponding to the misnamed "NDG Heritage Pompany, LLC" in the "general partner detail" section of the Division of Corporations' "detail by entity name" screen for Heritage. HTG argues that Heritage's application reflects the "wrong corporate entity" as its general partner, and that because Heritage did not identify its general partner as NDG Heritage Pompany, LLC, Florida Housing should have thrown out the application. However, HTG offered no evidence to prove that there were two entities, one named NDG Heritage Pompany, LLC, and the other named NDG Heritage Pompano, LLC. No evidence was presented to prove there ever was an entity in Florida named NDG Heritage Pompany, LLC. HTG offered no evidence to refute Heritage's compelling proof that the misnamed NDG Heritage Pompany, LLC, entity in the Division of Corporations’ records was one and the same as the correctly named NDG Heritage Pompano, LLC, based on the matching document number uniquely assigned to the entity NDG Heritage Pompano, LLC. HTG attempts to make much of the facts that Heritage did not discover the typographical error before it was called to its attention in this proceeding, and that Heritage corrected the typographical error by means of an amendment to the certificate of limited partnership. Mr. Hoskins testified convincingly that when the typographical error was called to his attention, he contacted the Division of Corporations to try to find out how the error came to be and how to correct it. He was unable to determine the source of the typographical error--whether it was a mistake on his part or on the part of the Division of Corporations. Regardless of how the typographical error occurred, he followed instructions to file an amendment to the certificate of limited partnership as the only way that the Division of Corporations could correct its records. Mr. Hoskins acted reasonably to follow the instructions and correct the typographical error. That he did so does not undermine the proof that regardless of how the typographical error became imbedded in the Division of Corporations' system, the "Pompany" entity was the same entity as the restored "Pompano" entity. HTG failed to prove its contention that Heritage's application reflected the "wrong corporate entity" as its general partner. The evidence proved a typographical error in the Division of Corporations' records. If it could be said that that error somehow is considered an error in Heritage's application, then it is, at worst, a minor, inconsequential error that is surely waivable. HTG failed to prove that this typographical error was a reason to throw out Heritage's application.
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 decisions: (1) to award funding for the Oakland Preserve and Wisdom Village proposed developments; (2) to award the maximum 27 points to Heritage's application, maintaining that application's priority position based on its lottery number of 26, over HTG's application, with the maximum 27 points and a lottery number of 48; and (3) dismissing the formal written protests of Heritage at Pompano Housing Partners, Ltd., and HTG Broward 3, LLC. DONE AND ENTERED this 10th day of June, 2014, 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 10th day of June, 2014.
