Findings Of Fact The cities of Sebring, Monticello, Mascotte, Greenville and Vernon, and other cities in Florida made application to DCA for block grants under the Small Cities Community Development Block Grant (FFY) 1987, Commercial Revitalization. The deadline for submission of those applications was February 26, 1988. The applications were submitted under the auspices of the application manual related to that program, a copy of which may be found as Respondent's Exhibit 1 admitted into evidence. This application manual is drawn in keeping with requirements of the Community Development Block Grant under Title I of the Housing and Community Development Act of 1974, as amended, and under Section 290, Florida Statutes, and Chapter 9B-43, Florida Administrative Code. The references in the Florida Statutes specifically are at Sections 290.0401-290.049, Florida Statutes, known as the "Florida Small Cities Community Development Block Program Act." The applications by the various cities previously described were timely made. In accordance with the instructions set forth in the application manual, and per the review procedures of the DCA, each named community received a score of 10 points for the adoption of a community redevelopment plan and an additional 10 points for creation of a community redevelopment agency. To comply with the application form and receive those points it was necessary for the clerk of the community to give certification that those items were on file in the clerk's office. There was a further necessity to sign, date and seal the response. Following the receipt of the applications from the cities, the DCA received a complaint from a representative of Monticello concerning the existence of some possible irregularities related to the applications of Vernon, Mascotte and Greenville. Those claims involved the issue of whether those cities had adopted redevelopment plans and established redevelopment agencies at the application deadline on February 26, 1988. In the face of the allegations the DCA determined to follow-up and wrote to each city, namely the cities of Mascotte, Vernon, Greenville, Monticello and Sebring. Copies of the correspondence may be found in the Composite Exhibit Number 7 by the Respondent. The correspondence described the award of 10 points for creation of a redevelopment agency and 10 additional joints for creation of a redevelopment plan under authority of Chapter 163, Florida Statutes. It further described the need for certification by the Clerk of the town to gain the award of points. The correspondence went on to describe the possibility that information that would be needed to document the existence of the community redevelopment agency and the approval of the community redevelopment plan might not be on file in the community as required. As a consequence, each community was requested to confirm that documentation existed in its file by submission of the following information within seven (7) working days. A copy of the ordinance appointing a board of commissioners of the community redevelopment agency (pursuant to s. 163.356(2), F.S.) or a copy of the resolution declaring the member of the governing body as the community redevelopment agency (pursuant to s. 163.357, F.S.); and A copy of the City Community Redevelopment Plan and documentation that is was reviewed and adopted pursuant to s. 163.360(1)-(9), F.S. Absent the submission of this documentation the cities were told that they would not receive the points for establishing the redevelopment agencies and plans. In turn, each of the subject communities responded to the requirements by sending copies of minutes, ordinances and resolutions related to adoption of plans and in creation of agencies. Copies of those documents may be found as Respondent's Composite Exhibit 8. They all evidence compliance with the February 26, 1988 deadline for adoption of plans and creation of agencies. Having received this Information, DCA made its evaluation and on May 12, 1988, noticed the various applicants of its decision concerning the applications for grant money. Copies of the individual correspondence related to the subject cities who have been named may be found as part of the Respondent's Composite Exhibit 6 admitted into evidence. Attached to the correspondence was a breakdown of total points awarded, a description of the grant request and the money assigned in response to that request, all by way of stated intended agency action. The effect of the point awards was to disallow the grants sought by Sebring and Monticello in that there were insufficient funds to honor their applications and others with higher point totals. The stated agency action would allow the cities of Vernon, Greenville and Mascotte to receive all monies sought. In the face of this decision to award the proceeds to Vernon, Greenville and Mascotte to the exclusion of the cities of Sebring and Monticello the latter cities made timely petition to challenge the agency decision and in particular the decision to award 20 points to Vernon, Greenville and Mascotte for establishment of redevelopment plans and the creation of redevelopment agencies. Even if the 20 points were disallowed for Vernon, they would still be entitled to the full proceeds. That would not be the situation with Greenville and Mascotte, in that they would be replaced by Sebring and Monticello, Sebring as to its entire request of $575,000 and Monticello as to part of its request in the amount of $76,518 of the $500,000 sought. The city of Mascotte also filed challenges directed to Monticello and Sebring in the points assigned them for community redevelopment plans and agencies in the applications by those communities. No proof was offered at the hearing in futherance of this claim. The proof submitted was not sufficient to establish that there was any impropriety by the City of Vernon in urging the DCA to award the 20 points in question. The proof that was presented in the course of the hearing related to the activities of the cities of Mascotte and Greenville in establishing community redevelopment agencies and adopting redevelopment plans raised some suspicions about whether those activities had occurred prior to the February 26, 1988 deadline, but it was not complete enough to prove that the agencies had not been established and the plans had not been adopted prior to the February 26, 1988 date.
The Issue Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with the day-to-day management of the Association's business. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security. On at least two occasions, the Respondent altered her withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding. Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding. In addition to the foregoing payroll discrepancies, the Respondent caused herself to be overpaid $125.00 for sick leave. On or about October 12, 2000, the Respondent took $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager. DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003. COPIES FURNISHED: Julie Malone, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christina Marie Restauri 4640 Northwest 30th Street Coconut Creek, Florida 33063 Jennifer Westermann Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202
The Issue The issues are: whether proposed amendments to Florida Administrative Code1 Rules 9K-9.003(6) and 9K-9.006(2) are invalid exercises of delegated legislative authority under Section 120.52(8)(b), (c), and (e), Florida Statutes2; and, if so, whether costs and attorney's fees should be assessed against Respondent and paid to Petitioner under Section 120.595(2), Florida Statutes.
Findings Of Fact The FCT has the power "to undertake, coordinate, or fund activities and projects which will . . . serve to conserve natural resources and resolve land use conflicts, including . . . [w]orking waterfronts." § 380.507(2)(g), Fla. Stat. The FCT also is specifically authorized to "award grants and make loans to local governments and nonprofit organizations for" that purpose. Id. at ¶ (6). In 2008, the Florida Legislature enacted the Stan Mayfield Working Waterfront grant program. Codified as Section 380.5105, Florida Statutes, paragraph (2) of the statute authorizes the FCT to promulgate "rules specifically establishing an application process and a process for the evaluation, scoring and ranking of working waterfront acquisition projects. . . . Such rules shall establish a system of weighted criteria to give increased priority to projects: Within a municipality with a population less than 30,000; Within a municipality or area under intense growth and development pressures, as evidenced by a number of factors, including a determination that the municipality's growth rate exceeds the average growth rate for the state; Within the boundary of a community redevelopment agency established pursuant to s. 163.356; Adjacent to state-owned submerged lands designated as an aquatic preserve identified in s. 258.39; or That provide a demonstrable benefit to the local economy." The purpose of the grant program is to preserve working waterfronts, which have been under pressure to convert to other uses. Some driving forces behind the conversion of working waterfront to other uses include: high coastal property values; high and unpredictable property taxes; increased regulation of commercial fishing to protect reduced fishery stocks; confusing and time-consuming regulatory processes for expanding or creating new working waterfronts; increased cheaper imported seafood; and rising fuel costs. The Stan Mayfield Working Waterfront grant program is administered by the FCT. In 2008, the FCT adopted rules governing the program, including Rule Chapter 9K-9 on Grant Application Procedures. In the first cycle of grant applications, evaluations, and awards, Monroe County applied for a grant to purchase and preserve Intervenor's property on Stock Island in Key West. Monroe County's Stock Island application was not granted. The FCT announced its intention to amend the rules based on the experience of the first grant cycle under the existing rules and input from "stakeholders" (mostly local governments and private not-for-profit entities interested in applying for grants) throughout the State. Workshops were conducted, and stakeholders (including Monroe County) participated. Proposed amendments were drafted, and stakeholders were invited to comment on the draft proposed amendments. The draft proposed amendments and comments were considered by the governing board of the FCT at its meeting in May 2009. The Board made some revisions to the draft proposed amendments and initiated rulemaking. Petitioner and Intervenor challenge proposed amendments to Rules 9K-9.003(6) and 9K-9.006(2). The proposed amendment to Rule 9K-9.003(6) caps awards at five million dollars or the amount appropriated by the Legislature, if less than five million dollars (sometimes referred to as "the cap"). The proposed amendment to Rule 9K-9.006(2) adds paragraph (d) and awards evaluation points based on the amount of grant money requested in an application, as follows: 8 points for a request not exceeding $1.5 million; 4 points for a request not exceeding $2.5 million; and 2 points for a request not exceeding $3.5 million.3 This proposed rule amendment is sometimes referred to as "the sliding scale." It is common for grant programs to adopt a "cap" on awards. The FCT's proposed "cap" took into account recent and expected future legislative appropriations, as well as the grant amounts requested in the first grant application cycle and expected in the immediate future, with the understanding that the "cap" could be adjusted by rule amendment in the future if that became necessary. The purpose of the proposed "cap" was to ensure that at least two applicants would receive grant money in each grant cycle. The proposed "sliding scale" was suggested by a representative of Dixie County at a noticed public FCT meeting. It was designed promote the use of non-State matching funds and to help local governments with less resources to compete in the grant application process. The proposed "sliding scale" was thoroughly discussed in-house by FCT staff and was discussed by the FCT governing board before it was approved unanimously. The challenged proposed rules cite Sections 380.507 and 380.5105(2), Florida Statutes, as their statutory authority. They cite Sections 259.105 and 380.501-380.515, Florida Statutes, as the specific laws they implement. Section 259.105, Florida Statutes, is the Florida Forever Act. Some of the funds in the Florida Forever Trust Fund are designated for distribution "to the Department of Community Affairs for the acquisition of land and capital project expenditures necessary to implement the Stan Mayfield Working Waterfronts Program within the Florida communities trust pursuant to s. 380.5105." § 259.105(3)(j), Fla. Stat. Sections 380.501-380.515, Florida Statutes, are the Florida Communities Trust Act, which includes the Stan Mayfield Working Waterfronts grant program. Petitioner and Intervenor contend that the proposed rule amendments are not authorized by statute and enlarge, modify, or contravene the law implemented because they add to the evaluation criteria in Section 380.5105(2), Florida Statutes. But it is clear that, besides the two proposed rule amendments under challenge in this case, the "system of weighted criteria" adopted in Rule Chapter 9K-9 includes several unchallenged criteria, in addition to the ones required by the statute to be given "increased priority." In addition, the evidence was that evaluation criteria in addition to those to be given "increased priority" are essential for the "system of weighted criteria" to function properly to differentiate and rank the most worthy grant applications. Without additional criteria, it is likely that many if not all grant applications would get the same score in the evaluation process. Petitioner and Intervenor also contend that the proposed "cap" and "sliding scale" result in "increased priority" not being given to the criteria specified in Section 380.5105(2), Florida Statutes. Actually, "increased priority" still is given to the criteria listed in Section 380.5105(2), Florida Statutes. Rule 9K-9.006(1)(c) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(a), Florida Statutes. Rule 9K-9.006(2)(b) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(b), Florida Statutes. Rule 9K-9.006(1)(a) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(c), Florida Statutes. Rule 9K-9.006(1)(b) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(d), Florida Statutes. Rule 9K-9.006(2)(a) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(e), Florida Statutes. Petitioner and Intervenor also contend that the challenged proposed amendments discriminate against grants to higher-priced properties. They contend that higher prices indicate higher pressure to convert, larger size, and greater benefit to the local economy from preservation. They contend that all of these indicators exist in the case of Intervenor's Stock Island property--indeed, the Stock Island property is under relatively high pressure to convert, is relatively large in size, and would stand to continue to greatly benefit the local economy if preserved. They contend that discriminating against higher- priced properties like Intervenor's Stock Island property is not authorized by statute, contravenes the statutes, and is arbitrary and capricious. Actually, the challenged proposed rules do not necessarily discriminate against higher-priced properties. An applicant can use non-State matching funds to bring a more costly proposal under the "cap" of the proposed amendment to Rule 9K- 9.003(6), and unchallenged existing Rule 9K-9.006(4)(a) provides that grant proposals with non-State matching funds score significant points--far more than would be lost under the "sliding scale" of paragraph (d) of the proposed amendment to Rule 9K-9.006(2). In addition, higher-priced projects are favored by other criteria in parts of the rule and proposed rule amendments that are not under challenge. For example, points are awarded for docking facilities, seafood houses, storage areas for traps, nets, and other gear, and boat ramps. These are more likely to be attributes of a larger, more expensive property. A proposed amendment to Rule 6K-9.006(3) significantly increased the amount of points available for docking facilities, especially existing usable docking facilities, which are more likely to exist on larger properties. A grant proposal with these kinds of amenities and attributes will "blow away in point-scoring" an application for a smaller grant for a proposal without these features. In support of their contentions, Petitioner and Intervenor hypothesize two grant proposals for projects (whether in the same locale or in different parts of the state) with identical attributes except for property cost. However, the evidence was that such a scenario is unlikely. If that unlikely scenario were to occur, it is possible that the higher-cost proposal would exceed the "cap" of the proposed amendment to Rule 9K-9.003(6), and the lower-cost proposal would score more points as a result of the proposed addition of paragraph (d) to Rule 9K- 9.006(2). However, the former scenario would create the desired incentive to secure enough non-State matching funds to get under the "cap"; and under the latter scenario, it would make sense to favor the grant proposal requesting less State money. Petitioner and Intervenor also contend that the proposed amendments fail to include a provision suggested by Monroe County to adopt a "sliding scale" for the "benefit to the local economy" and add other quantifiable criteria on a "sliding scale" (e.g., a "sliding scale" to give credit for the capacity of docking facilities and storage areas) that would give a greater competitive advantage to a large project like Monroe County's Stock Island proposal. The evidence was that these kinds of criteria would be difficult to devise and implement to achieve the desire result. For example, a large project might appear to benefit the local economy greatly but actually just consolidate several different areas of economic activity into one location. As a result, it was logical for the FCT not to adopt rules attempting to quantify and score these criteria on a "sliding scale." The challenged proposed amendments are supported by logic and the necessary facts, and were adopted with thought and reason and are rational. The contention that the FCT thoughtlessly adopted a suggestion by a representative of Dixie County and ignored suggestions by Monroe County is rejected.
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2010.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
