The Issue Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 30, 2004 (2005-2015 Campus Master Plan), complies with the requirements of Section 1013.30, Florida Statutes,1/ and Florida Administrative Code Chapter 6C-21; Whether Petitioner, Ronald M. Brooke, was provided a clear point of entry to the administrative process, but failed to timely file the Petition challenging the 2005-2015 Campus Master Plan Amendments; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes. AS TO CASE NO. 06-0327 Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 9, 2005 (the 2005 Stadium Amendment), complies with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes.
Findings Of Fact On July 12, 2005, UCF held a workshop regarding the 2005 Stadium Amendment, as required by Subsection 1013.30(6), Florida Statutes. The workshop included a gallery-style presentation of each portion of the proposed Stadium Amendment with appropriate UCF staff available to answer questions posed by attending agencies and the public. On July 25, 2005, and November 9, 2005, UCF held public hearings regarding the proposed 2005 Stadium Amendment, as required by the statute. At the conclusion of the second public hearing on November 9, 2005, a meeting of the BOT was convened and UCF's BOT voted to adopt the proposed 2005 Stadium Amendment, as revised. As originally proposed, the 2005 Stadium Amendment included the following: (a) addition of Policy 1.2.8 to the Recreation and Open Space Element, which provided, "A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north"; (b) addition of the football stadium to the Capital Improvements List in the Capital Improvements Element; (c) addition of the football stadium and associated surface parking to the Urban Design Element, Figure 3-1, entitled, "Urban Design/Capital Improvements"; and (d) addition of the football stadium and associated surface parking to the Transportation Element, Figure 2.11-13, entitled, "Existing and Planned Parking Structure." The 2005 Stadium Amendment was supported by data and analysis, which included: a Summary of Impact and Need Data Analysis; Conceptual Financing Structure; Feasibility Analysis; Physical Review/Renderings; Construction Concept; Opinion on Cost; Traffic and Parking Impacts; Transportation and Parking Concept Plan; Stormwater, Potable Water and Sanitary Sewer Impacts; Noise Study; Sight Line Study; permits from the SJRWMD; and additional data and analysis provided to DCA. The data and analysis for the stadium also included an evaluation of the need for an on-campus football stadium. As a result of comments made by the DCA, the East Central Florida Regional Planning Council, Orange County, and the public, UCF staff proposed that the new Policy 1.2.8 to the Recreation and Open Space Element be amended to read as follows: Recreation and Open Space Element Goal 1.2.8 A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north. The University shall develop a Traffic Management Program that will include Traffic Demand Management strategies, such as the SCOOT System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, pre-trip traveler information, bicycle accommodations, guide signing, one- way reversible travel lanes on campus, on- campus post-games activities, and the creation of a local traffic stakeholder group, all as described in the Final Traffic and Parking Study, prepared by PBS&J, dated July, 2005, in order to minimize game day traffic and parking impact. UCF will work with Orange and Seminole County staff to address lighting and noise mitigation during the design and construction phase of the stadium. This was the version of Policy 1.2.8 that was ultimately adopted by UCF's BOT on November 9, 2005. Petitioner asserts that UCF may convert the proposed 45,000-seat football stadium to a 65,000-seat facility at any time. Although the construction concept envisions the possibility of a 65,000-seat facility, UCF must amend its CMP in order to expand the facility beyond 45,000 seats and comply with the requirements of the statute for a "major" amendment, if and when such expansion should occur. Petitioner contends that there is inadequate data and analysis to support the 2005 Stadium Amendment in the following areas: transportation and parking; land use compatibility, including noise and lighting impacts; height and compatibility with single-family residential homes; and consistency with the land uses and intensities of use allowed on the Future Land Use Map within the CMP. Noise Prior to the adoption of the 2005 Stadium Amendment, UCF contracted with Acoustic Dimensions to conduct an analysis of the sound expected to be generated by the proposed football stadium, as well as the level of noise currently existing in the area surrounding the proposed football stadium site ("Noise Study"). It is proposed that the sound system for the proposed football stadium will utilize a new technology that directs sound into the stadium seats, keeping as much sound as possible away from the outside of the stadium. Excess noise would be directed out of the stadium in a southerly direction, toward the center of campus, and away from the residential neighborhoods to the east and north. Although UCF is not subject to the noise regulations in the Orange and Seminole County Ordinance Codes, the anticipated noise levels at the proposed stadium were compared to the levels deemed acceptable within Orange and Seminole County. Both Orange and Seminole County exempt sporting events from their noise codes. However, even if sporting venues, such as the proposed football stadium, were subject to Orange and Seminole County noise regulations, the Noise Study predicted that noise generated by a public address system, crowd noise, and marching bands within the proposed stadium would each fall below the levels set forth in the Orange County Code, selected at three locations close by the proposed stadium. Based on the Noise Study, which appears to be reliable, the sound coming from the proposed football stadium would not be overly intrusive into the residential neighborhoods to the east and north. There is anecdotal evidence that intrusive noise will impact the surrounding neighborhoods, and additional noise mitigation measures should be considered during the design and construction phase of the stadium. However, the projected noise levels are not incompatible with the surrounding area. Lighting Prior to the adoption of the 2005 Stadium Amendment, it was determined that lighting technology has improved dramatically, particularly over the past five years. UCF has chosen lighting for the football stadium, which requires 40 percent less lighting fixtures than older technology, uses less electricity, directs more light toward the field, and results in less increase in light in surrounding areas (also known as "spill light"). A computer modeling analysis of the spill light was created at 300 feet, 600 feet, and 900 feet from the outer wall of the proposed football stadium modeling the type of lights UCF plans to use for the football stadium. This includes 36 light fixtures mounted on 140-foot poles located at the four corners of the stadium, for a total of 144 fixtures. In addition, the spill analysis assumed there were no trees or other physical barriers to block any light emanating from the football stadium. The spill analysis predicted both horizontal and vertical foot candles. Horizontal foot candles are measured light that falls on a horizontal surface. Vertical foot candles are light measured by directing a light meter toward the light source, so vertical foot candles are more relevant to the amount of light capable of being seen from outside the stadium. Based on the spill analysis, average vertical foot candles at 900 feet from the edge of the stadium would be .0004 foot candles. The amount of spill light decreases by one-fourth (one-quarter) as the distance from light is doubled. Therefore, without any trees or other barriers, the amount of spill light created by the football stadium lights in the closest residential community (University Estates)(which is more than 900 feet from the wall of the proposed stadium) would be nearly immeasurable. Light measurements in University Estates were taken around 8:00 p.m., during the week prior to the hearing, in front of 4632 Warrington Drive, which is a home owned by Petitioner. The light measurements at this location were 1.1 foot candles and 0.6 foot candles at the north end of the property. Therefore, the amount of light currently existing in University Estates during the normal evening hours will exceed any minuscule increase in ambient light generated by the football stadium. Orange County's lighting standards do not apply to UCF. However, they are instructive in determining whether the lighting at the football stadium will be compatible with the surrounding community. Orange County Ordinance Article XVI, s. 9-649(a)(5), provides that illumination levels at the property line should not be more than 0.5 foot candles, where the project is next to a residential use, and 1.0 foot candles, where the project is next to any other use. Considering, the worse case scenario, the vertical light at 900 feet from the stadium, which is well within the UCF campus boundaries, would be a maximum of .01 foot candles. Therefore, the light produced by the proposed UCF stadium is not incompatible with the standards set by Orange County for the surrounding community. UCF staff also prepared a Sight Line Study to determine the ability of residents in University Estates and Carillon subdivision to view the stadium lights themselves given the amount of treed buffer which lies between these neighborhoods and the proposed football stadium location. The Sight Line Study is determined not to be reliable. However, the ability to see the stadium lighting fixtures from their property does not mean that such lights are incompatible with the surrounding uses. Traffic and Parking Prior to the adoption of the 2005 Stadium Amendment, UCF commissioned a transportation study ("Transportation Study") by PBS&J consultants and a parking analysis ("Parking Plan") by Gameday Management Group, to assess the transportation and parking impacts of the proposed football stadium. The Transportation Study evaluated the onsite transportation impacts within the "Context Area" surrounding UCF, as is required by Florida Administrative Code Rule 6C-21.205(1) and (2). The Context Area used in the Transportation Study was the same Context Area identified in the Transportation Element of the CMP. Because a football stadium is not one of the standard uses studied and evaluated by the Institute of Transportation Engineers ("ITE"), the football stadium was analyzed as a "special generator." Carlin and his staff collected all of the available data regarding transportation impacts from other football stadiums in order to develop a methodology to evaluate the impacts of the proposed UCF football stadium. The methodology was independently peer reviewed by a company called Rizzo and Associates. Rizzo and Associates was qualified in peer review methodology as they had performed similar analyses for the recently constructed Boston College and New England Patriots football stadiums. The Boston College football stadium is located in a suburban area similar to the proposed location for the UCF football stadium. The methodology for assessing the impacts from the proposed football stadium was also reviewed and approved by the Florida Department of Transportation, Orange County, Seminole County, and the City of Oviedo. The Transportation Study analyzed the impacts on onsite and offsite roadways from the inbound peak traffic and outbound peak traffic for a 45,000 attendee Saturday football game. This was a worse-case scenario, as the inbound peak traffic and the outbound peak traffic would not actually occur at the same time. The Transportation Study concluded that, with the exception of only two roadway segments and intersections, roadway conditions would remain at or below the levels of service set for the onsite and offsite intersections and roadways with the Context Area. The Transportation Study also recommended a variety of Traffic Demand Management strategies, which would mitigate overall transportation impacts, as well as the impacts to the few roadway segments and intersections which exceeded the level of service in the analysis. Examples of Traffic Demand Management techniques recommended in the Transportation Study include: the "SCOOT" System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, on-campus post-game activities, pre-trip traveler information, bicycle accommodations, guide signing, one-way reversible travel lanes on campus, and the creation of a local traffic stakeholder group. The "split cycle offset optimization timing technique" or "SCOOT" System would be particularly helpful because the two primary roadways that access the UCF campus are constrained, meaning that they cannot be widened any further. The SCOOT system effectively expands the capacity of existing roads by improving the timing of signals based on actual use. Therefore, the SCOOT system alone could bring several of the roadway links and intersections back to their designed levels of service. Orange County is one of the few local governments in the United States that already utilizes the SCOOT system, and it, along with Seminole County, supports the use of the SCOOT system for UCF football games. Although the Transportation Study did not specifically address transportation impacts for a weekday game, the Traffic Demand Management strategies recommended in the Transportation Study would mitigate roadway impacts for UCF football games, which may occasionally be scheduled on weekdays. As a result of the Transportation Study and recommendations from various government entities, UCF added specific requirements to Policy 1.2.8 of the Recreation and Open Space Element that UCF implement the Traffic Demand Management strategies recommended in the Transportation Study. Based on the Transportation Study and the specific requirements set forth in Policy 1.2.8 of the Recreation and Open Space Element, the proposed football stadium will be compatible with the surrounding community from a transportation perspective. The Parking Plan was based on the parking inventory data assessed through the Transportation Plan and assumed a 45,000 attendee football game. The Parking Plan divides the UCF campus into parking zones and identifies primary and secondary ingress and egress routes, dedicated traffic control points, and law enforcement needs for each zone. In addition, the Parking Plan identifies ways in which to tie parking to ticket purchases by assigning parking areas at the time of ticket purchases. For those who do not have an assigned parking area prior to game day, media releases, open house sessions, and coordination with the stakeholder groups would be used to inform the attendees of parking areas. Based on the Parking Plan, there would be adequate parking for football games. The Parking Plan will be refined through review by a stakeholders group that is being formed as one of the Traffic Demand Management strategies to be implemented by UCF. The Parking Plan will minimize parking impacts on surrounding communities. Petitioner did not present any expert testimony or other evidence regarding transportation or parking impacts from the proposed football stadium. Petitioner did present several fact witnesses who testified generally regarding their concerns about traffic and parking impacts in the future. However, as fact witnesses, their opinions regarding potential future impacts do not have probative value. Policy 1.2.8 of the Recreation and Open Space Element contains reasonable transportation demand management techniques to minimize offsite impacts. Overall Onsite and Offsite Land Use Compatibility Petitioner contends generally that the proposed football stadium is incompatible with residential land uses adjacent to the UCF campus. In support of this allegation, Petitioner cites to letters from the East Central Florida Regional Planning Council, Florida Department of Community Affairs and Orange County commenting on the proposed stadium amendment. However, each of these agencies, through both follow-up letters and expert testimony at the final hearing, indicated that they were satisfied with the analysis provided by UCF and that there were adequate measures in place so that the proposed football stadium would be compatible with the surrounding community. In addition, UCF staff analyzed several alternative sites for the proposed stadium. This alternative analysis, although not exhaustive, included a review of roadways and access, proximity to residential neighborhoods, and proximity to other athletic operations and student housing. By contrast, Petitioner Brooke did not present any expert testimony as to this allegation. Through the matrix submitted as Petitioner's Exhibit 35, Petitioner alleged that UCF had concluded that the currently proposed stadium location was incompatible with residential neighborhoods. However, testimony from UCF witnesses clearly show that the matrix merely identified compatibility with neighborhoods as a concern and did not establish incompatibility. As with traffic and parking impacts, Petitioner also presented several fact witnesses who testified regarding their concerns about potential future compatibility issues. However, as fact witnesses, their opinions regarding potential future incompatibilities is not probative and is certainly outweighed by the expert testimony presented by UCF. Therefore, the preponderance of the evidence shows that the proposed 2005 Stadium Amendment is compatible with the surrounding community and that the data and analysis relied upon adequately addresses the offsite and onsite impacts. Conflicts With the Orange and Seminole County Comprehensive Plans Petitioner contends that the 2005 Stadium Amendment is in conflict with the Orange County Comprehensive Plan. However, all but one of the provisions of the Orange County Comprehensive Plan cited by Petitioner in the 2005 Stadium Amendment Petition were stricken as being wholly irrelevant to the 2005 Stadium Amendment challenge. The only remaining provision of the Orange County Comprehensive Plan with which Petitioner contends the 2005 Stadium Amendment conflicts is Policy 3.2.13 which provides: "The full retail/general commercialization of an intersection shall be avoided unless sufficient justification of need is provided. Office, hotel, and multi-family uses can be used to avoid the full commercialization of an intersection." Petitioner presented no evidence to support this allegation. In fact, expert testimony was that the 2005 Stadium Amendment is not in conflict with the Orange County Comprehensive Plan. Petitioner did not make any allegations regarding conflict with the Seminole County Comprehensive Plan, and accordingly, no evidence was allowed during the hearing regarding this topic. Consistency with the State Comprehensive Plan Petitioner contends that the 2005 Stadium Amendment is not consistent with the State Comprehensive Plan set forth in Section 187.201, Florida Statutes. In the 2005 Stadium Amendment Petition, Petitioner cites to the following subsections of the State Comprehensive Plan, in which Petitioner alleges is in conflict with 2005 Stadium Amendment: (5) health; (6) public safety; (7) water resources; (9) natural systems; (10) air quality; (11) energy; (13) mining; (14) property rights; (15) land use; (16) urban and downtown revitalization; (17) public facilities; (19) transportation; (20) governmental efficiency; (21) economy; and (25) plan implementation. The State Comprehensive Plan is intended to be a direction-setting document and is to be construed as a whole. See § 187.101, Fla. Stat. No specific goal or policy in the plan is to be construed or applied in isolation from the other goals or policies of the plan. The plan does not create regulatory authority. Id. See also Fla. Admin. Code R. 6C-21.213(4). In addition, the policies of the State Comprehensive Plan may be implemented only to the extent that financial resources are provided pursuant to appropriations of a public entity, such as UCF. See § 187.101(2), Fla. Stat. The decision regarding which particular State Comprehensive Plan goals or policies will be furthered by the expenditure of a university's financial resources in any given year is a decision which rests with the university's board of trustees. See Fla. Admin. Code R. 6C-21.213(5). Petitioner did not present any expert planning testimony regarding the consistency of the 2005 Stadium Amendment with the State Comprehensive Plan. Respondent did present testimony by an expert in planning. Todd Peetz testified that the 2005 Stadium Amendment is compatible with and furthers various goals and policies of the State Comprehensive Plan. For example, the 2005 Stadium Amendment provisions regarding traffic demand strategy are compatible with and further subsection (19) of the State Comprehensive Plan relating to transportation. No evidence was presented by Petitioner which showed that the 2005 Stadium Amendment was in conflict with the State Comprehensive Plan. Moreover, not every goal and policy must be furthered by a CMP. That decision is within the jurisdiction of a university itself. See § 187.101, Fla. Stat., and Fla. Admin. Code R. 6C-21.213(5). Based on the preponderance of the evidence, the 2005 Stadium Amendment is consistent with the State Comprehensive Plan. Other Allegations Petitioner contends that 2005 Stadium Amendment does not contain all of the required elements as established by Section 1013.30, Florida Statutes, and Florida Administrative Code Rules 6C-21.201, 6C-21.203, 6C-21.204, 6C-21.208, 6C-21.209, 6C-21.210, and 6C-21.213. However, there is no requirement that "major" amendments to CMPs involve changes to every element or that the amendments themselves contain all of the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. The 2005 Stadium Amendment amended four portions of the 2005-2015 CMP Amendment, and all other provisions in the 2005-2015 CMP Amendment remained the same. Therefore, the 2005-2015 CMP Amendment contains all the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Petitioner contends that significant land-clearing and construction projects were conducted prior to the adoption of the 2005 Stadium Amendment that were solely in support of, and only required because of the proposed football stadium. The evidence supports the counter-assertion that said land-clearing and construction were not part of the 2005 Stadium Amendment process. Therefore, it cannot be challenged by Petitioner through the 2005 Stadium Amendment Petition. However, even if Petitioner could challenge such actions through the 2005 Stadium Amendment Petition, the preponderance of evidence adduced at the hearing was that the land-clearing and construction projects complained of by Petitioner were part of other duly-adopted amendments to the CMP. Petitioner presented evidence regarding two such actions. The first construction project that Petitioner argued was improper was the movement of the Women's Softball Stadium from the Athletics Node to a location on the southeast side of Orion Boulevard. This action was adopted as a "minor" amendment to the 2005-2015 CMP Amendment on January 18, 2005. Even if Petitioner could challenge the "minor" amendment through this proceeding, the adoption package from the BOT meeting adequately shows that the Softball Field Stadium Amendment was below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, and was appropriately adopted as a "minor" amendment. Thus, the preponderance of the evidence demonstrates that the use of the "minor" amendment process was appropriate and that the related land-clearing and construction were properly authorized. Second, Petitioner also complained of land-clearing in the area where the football stadium was ultimately proposed. However, this area was cleared to accommodate the athletic practice fields which were planned for that area prior to the consideration of the football stadium. UCF obtained permits from SJRWMD for both the grading of the area, as well as the stormwater system for the athletic practice fields. The clearing of land itself does not require a change to the CMP. Petitioner contends that the construction of the football stadium and the additional construction which will be associated with the football stadium is inconsistent with the study and information set forth in the Executive Summary for the 2000-2010 CMP. Petitioner presented no evidence to support this allegation other than his personal belief that all amendments must be consistent with the Executive Summary from the 2000-2010 CMP. The purpose of an Executive Summary is to briefly describe the CMP. The Executive Summary of the 2000-2010 CMP was superseded by the Executive Summary in the 2005-2015 CMP Amendment. The 2005 Stadium Amendment amended the 2005-2015 CMP Amendment. Therefore, it only needs to be consistent with the Executive Summary in the 2005-2015 CMP Amendment. Petitioner alleges that the construction projects undertaken by UCF through the 2005-2015 CMP Amendment and the 2005 Stadium Amendment have and will violate the standards and requirements of stormwater management as established by SJRWMD. UCF obtained an Environmental Resource Permit for the proposed football stadium. This permit was not challenged by Petitioner. Petitioner cannot collaterally challenge the SJRWMD football stadium permit through this proceeding. Petitioner provided no evidence that the SJRWMD has issued any notices of violation to UCF regarding its football stadium permit. In fact, the evidence supports Respondent's position that the UCF stormwater system is currently in compliance with SJRWMD rules. Petitioner also provided no evidence that UCF is violating this permit. Even if Petitioner had provided such evidence, this proceeding is not the appropriate forum for a determination of whether such allegations can be challenged through an administrative remedy, under Florida's Administrative Procedures Act. Petitioner alleges that the procedures followed during the public hearings on the 2005 Stadium Amendment, held on July 25, 2005, and November 9, 2005, violated Administration Commission Final Order AC-05-002, Subsections 1013.30(3), (5) and (6), Florida Statutes, and Florida Administrative Code Chapter 6C-21. Compliance with Final Order AC-05-002 is outside the scope of this proceeding. Nevertheless, Final Order AC-05-002 merely states that UCF has agreed to follow the "major" amendment process with respect to the addition of a football stadium on the UCF campus. It is undisputed that UCF has attempted to adopt the 2005 Stadium Amendment pursuant to the "major" amendment requirements set forth in Subsections 1013.30(6) through (8), Florida Statutes. It is also undisputed that Petitioner appeared at both of the public hearings regarding the 2005 Stadium Amendment and was permitted to present oral statements and written comments. Petitioner presented no evidence that he, or any other individual, was prevented from attending or providing oral or written comment at either one of the public hearings. Petitioner is upset that the BOT did not engage in a verbal discussion with the citizenry who were in attendance at the public hearing and did not explain themselves prior to their vote. This is not required as part of the public hearing process. Petitioner also alleged that UCF's BOT did not consider all the information provided by the public in making its decision. However, what each member of UCF's BOT considered prior to the vote on the 2005 Stadium Amendment is not relevant in this de novo proceeding, and this tribunal will not go behind the vote of a legally constituted public body. In addition to the statutorily required workshop and public hearings, the UCF staff conducted numerous meetings to discuss the 2005 Stadium Amendment and answer questions from the public. These meetings included Orange County, Seminole County, homeowner associations, and the Florida Department of Community Affairs. FINDINGS OF FACT AS TO RESPONDENT'S MOTION FOR ATTORNEYS' FEES AND COSTS As to Case No. 06-0328 Based on the testimony of Petitioner during the eight- day hearing and during his deposition in this proceeding, as cited to and described in Respondent's Motion for Attorneys' Fees and Costs, the undersigned ALJ hereby finds that although the Petitioner filed his initial Petition, as well as the Amended Verified Petition in this proceeding, late, nevertheless, he vigorously and determinedly presented his case without the assistance of an attorney, sometimes inartfully, but always sincerely and not for a frivolous or improper purpose. As to Case No. 06-0327 Petitioner timely filed his initial Petition and Amended Verified Petition in this proceeding, and with great effort of time and expense presented his case, without the assistance of counsel, before this tribunal. The evidence does not support the position that Petitioner filed this proceeding, or pursued it, for a frivolous or improper purpose.
Conclusions Jurisdiction The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1013.30(8), Florida Statutes. (See Preliminary Statement, pps. 4-5 above.) Section 1013.30, Florida Statutes (both the 2004 and 2005 versions), contains provisions for campus planning and concurrency management that supersede the requirements of Part II of Chapter 163, Florida Statutes. Each university BOT is required to prepare and adopt a CMP for the university, as set forth in the statute, and must update the CMP at least every five years. An "affected person" is defined as one who "submitted oral or written comments, recommendations, or objections to the university during the period of time beginning with the advertisement of the first public hearing under subsection (6) and ending with the adoption of the campus master plan or plan amendment." § 1013.30(2)(b), Fla. Stat. "Any affected person who files a petition under [Fla. Stat. s. 1013.30(7)] may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." § 1013.30(7), Fla. Stat. Petitioner is an "affected person" pursuant to Subsection 1013.30(2)(b), Florida Statutes, with respect to the 2005-2015 CMP Amendment and the 2005 Stadium Amendment since he owns a residence near the campus and submitted oral and written comments to Respondent. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before DOAH. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Subsection 1013.30(7), Florida Statutes, requires that any affected person who files a petition challenging a CMP or CMP amendment, "may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." In each of his Amended Verified Petitions, Petitioner has not raised issues which were not presented to UCF's BOT prior to its vote on either of the amendment petitions. Subsection 1013.30(7), Florida Statutes, further requires that a petition filed by an affected person must "state each objection, identify its source and provide a recommended action." Based on the allegation requirements in Section 1013.30, Florida Statutes, petitioners who challenge CMPs or CMP amendments are the parties who must affirmatively assert the sections of the proposed CMPs or CMP amendments which are not in compliance with Section 1013.30, Florida Statutes, or the rules implementing said statute. Therefore, it is clear that Petitioner has diligently attempted to do so in these proceedings. All proceedings under Subsection 120.57(1), Florida Statutes, are de novo. (Findings of fact shall be based upon a preponderance of the evidence . . . or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.") § 120.57(1)(j), Fla. Stat. What a legally constituted public body considered or did not consider prior to its vote on a matter is irrelevant in a de novo hearing. See generally Zemel v. Lee County, 15 F.A.L.R. 2735 (Department of Community Affairs, June 22, 1993), aff'd 642 So. 2d 1367 (Fla. 1st DCA 1994). CMPs and CMP amendments are governed by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Section 1013.30, Florida Statutes, does not specifically establish the standard of proof for challenges to CMPs or CMP amendments. Therefore, the standard of proof set forth in Subsection 120.57(1)(j), Florida Statutes, applies to this proceeding. CMPs "must not be in conflict with the comprehensive plan of the host local government and the comprehensive plan of any affected local governments. A CMP must be consistent with the [S]tate [C]omprehensive [P]lan." § 1013.30(5), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.213(1). "A campus master plan is consistent with the State Comprehensive Plan if the master plan is compatible with and furthers such plan." Fla. Admin. Code R. 6C-21.213(1). "The term 'compatible with' means that the campus master plan is not in conflict with the State Comprehensive Plan or appropriate local government comprehensive plans. The term 'furthers' means to take action in the direction of realizing goals or policies of the state or local plans." Fla. Admin. Code R. 6C-21.213(2). "A campus master plan is in conflict with the adopted comprehensive plans of the host local government and any affected local governments if the master plan promotes an intrinsic or essential lack of harmony with the local government comprehensive plan." Fla. Admin. Code R. 6C-21.213(3). "For the purpose of determining whether campus master plans are consistent with the State Comprehensive Plan and not in conflict with appropriate local comprehensive plans, the state or local plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from other goals or policies in the plans." Fla. Admin. Code R. 6C-21.213(4). "Each campus master plan shall address State Comprehensive Plan goals and policies which are relevant to the circumstances or conditions in its jurisdiction. The decision regarding which particular State Comprehensive Plan goals and policies will be furthered by the expenditure of the university's financial resources in any given year is a decision which rests with the [Board of Trustees of the University]. Fla. Admin. Code R. 6C-21.213(5); Board of Governors Resolution dated January 7, 2003. The CMP must "contain elements relating to future land use, intergovernmental coordination, capital improvements, recreation and open space, general infrastructure, housing, and conservation." § 1013.30(3), Fla. Stat. "Campus master plans may contain additional elements at the discretion of the Board of Governors; however, such elements are not subject to review" pursuant to Section 1013.30, Florida Statutes. § 1013.30(4), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(2) and 6C-21.212(3). Each element of a CMP "must address compatibility with the surrounding community." § 1013.30(3), Florida Statutes. CMPs must consist of goals, objectives and policies; requirements for capital improvements implementation; procedures for monitoring and evaluation of the CMP; and required maps showing future conditions. "All other documentation may be considered as support documents. Support documents do not have to be adopted." Fla. Admin. Code R. 6C-21.203(1)(c). "Data or summaries thereof which are not part of the adopted campus master plan shall not be subject to the compliance review process." Fla. Admin. Code R. 6C-21.203(2)(a). "The transportation element must address reasonable transportation demand management techniques to minimize offsite impacts where possible." § 1013.30(3), Fla. Stat. "'Transportation demand management' means strategies and techniques that can be used to increase the efficiency of the transportation system. Demand management focuses on ways of influencing the amount and demand for transportation by encouraging alternatives to the automobile and altering local peak hour travel demand. These strategies may include, but not be limited to, ridesharing programs, flexible work hours, telecommuting, shuttle services and parking management." Fla. Admin. Code R. 6C-21.202(16). "Data are to be taken from professionally accepted existing sources. Data shall be the best available existing data, unless the university desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by the university, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies." Fla. Admin. Code R. 6C-21.203(2)(c). Universities are not required to collect original data unless specifically required to do so. Fla. Admin. Code R. 6C-21.203(2)(b). Campus [m]aster plans must be updated at least every 5 years." § 1013.30(3), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.203(7)(b). Amendments to CMPs must be reviewed pursuant to Subsections 1013.30(6) through (8), Florida Statutes: If such amendment, alone or in conjunction with other amendments, would: Increase density or intensity of use of land on the campus by more than 10 percent; Decrease the amount of natural areas, open space, or buffers on the campus by more than 10 percent; or Rearrange land uses in a manner that will increase the impact of any proposed campus development by more than 10 percent on a road or on another public facility or service provided or maintained by the state, the county, the host local government, or any affected local government. § 1013.30(9), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(3). CMP amendments exceeding the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "major amendments," while those below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "minor amendments." The "minor" amendment adopted by UCF's BOT on August 27, 2004, relating to the addition of housing in the athletic mode, was adopted as a "minor" amendment and is not subject to review under Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. The "minor" amendment adopted by UCF's BOT on January 18, 2005, relating to the relocation of a softball stadium was adopted as a "minor" amendment and is not subject to review under to Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. As to the 2005-2015 CMP Amendment Amendments to Section 1013.30, Florida Statutes, requiring referral of CMP challenges to DOAH were effective on July 1, 2005. The amendments in Section 1013.30, Florida Statutes, changed the process and procedure related to challenges of CMPs. Florida law is clear that, absent a clear legislative intent, a statutory amendment that relates to procedure or remedy is applied immediately upon its effective date whether or not a proceeding is pending at that time. Rothermel v. Florida Parole and Probation Commission, 441 So. 2d 663, 664-65 (Fla. 1st DCA 1983), approved by Griffith v. Florida Parole and Probation Commission, 485 So. 2d 818, 820 (Fla. 1986). In this instance, Petitioner's challenge was not filed until more than five months after Section 1013.30, Florida Statutes, became effective. Therefore, the Amended Verified Petition relating to the 2005-2015 CMP Amendment must be governed by Section 1013.30, Florida Statutes. Petitioner alleges that the UCF general counsel did not have the authority under Section 1013.30, Florida Statutes, to dismiss the initial Petition without prejudice. Despite this allegation, Petitioner did, in fact, comply with the UCF general counsel's Order by submitting an amended petition for the 2005 Stadium Amendment Petition and 2005-2015 CMP Amendment. Assuming by these actions that Petitioner has not waived his ability to question the authority of the UCF general counsel, Section 1013.30, Florida Statutes, and the rules implementing that statutory provision which set forth the authority for the UCF general counsel's actions, include the authority to dismiss an insufficient Petition. Florida Administrative Code Rule 6C-21.108(7) provides that "[i]f a petition is filed that does not substantially comply with the requirements of . . . this rule, the Board's General Counsel shall issue an order dismissing the petition with leave to file an amended petition." By resolution dated January 7, 2003, the Board of Governors for the Florida State University System adopted the rules of the State of Florida Board of Regents set forth in Florida Administrative Code Chapter 6C-21 and delegated all authority under said rules to the individual BOTs for each State university. Therefore, the UCF general counsel had adequate authority to dismiss the initial Petition without prejudice. Respondent is required to provide an affected person a "clear point of entry" to administrative proceedings. See § 120.569(1), Fla. Admin. Code R. 28-106.111 and McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001). When an agency provides a party with notice and a point of entry, failure to file a petition may waive the right to a request for a hearing. See Fla. Admin. Code R. 28-106.111(4); State Department of Environmental Regulation v. Puckett Oil Company, 577 So. 2d 988 (Fla. 1st DCA 1991). Subsection 1013.30(6), Florida Statutes, states, "[i]t is the intent of the Legislature that the university board of trustees comply with the notice requirements set forth in s. 163.3184(15) to ensure full public participation" with respect to the adoption of CMPs and CMP amendments. Subsection 163.3184(15), Florida Statutes, clearly states that it is the responsibility of Petitioner (as a member of the public) to provide a correct address in order to receive information. "It is the responsibility of the person completing the form or providing written comments to accurately, completely, and legibly provide all information needed in order to receive the courtesy informational statement." Based on the language in this section, the Legislature did not intend for notice requirements to be more than a courtesy, nor did the Legislature intend for agencies, such as UCF, to expend resources confirming addresses of affected persons. See, e.g., Kidder v. Cirelli, 821 So. 2d 1106, 1107 (Fla. 5th DCA 2002) (property owner bore burden of having correct address listed on tax roles, and tax deed would not be overturned because property owner did not receive notice due to incorrect address). Moreover, Petitioner received actual notice of the adoption of the 2005-2015 CMP Amendment because he attended the adoption hearing for the 2005-2015 CMP Amendment on November 30, 2004 and, therefore, was not prejudiced. See Sutterfield v. City of Rockledge, 2002 WL 31125197 (DOAH Case No. 02-1630GM) (adopted in toto.) (City's failure to comply with the seven-day advertising requirement under Subsection 163.3184(15)(b)1., Florida Statutes (2002), was not fatal due to Petitioner's attendance at the transmittal hearings and presentation of comments at these hearings.) See also Edmond J. Gong and Dana L. Clay v. Department of Community Affairs and City of Hialeah, 1994 WL 1027737 (DOAH Case No. 94-3506GM)(When a person asserts that statutory notice requirements have not been satisfied, he bears the burden of showing prejudice occasioned by the procedural error, a task made much more difficult when, as here, Petitioner had actual notice of the relevant hearings and agency action and participated throughout the proceeding). Failure to file a Petition in a timely manner without justification is not acceptable. See Fla. Admin. Code R. 28-106.111(4). Subsection 1013.30(7), Florida Statutes, required Petitioner to file his petition "within 30 days after receipt of the notice of adoption of the campus matter plan, or 30 days after the date the adopted plan is available for review, whichever is later, . . . ." Petitioner filed his initial Petition challenging the adoption of the 2005-2015 CMP Amendment more than one year after the BOT's action. There was no evidence presented that would show that Petitioner was misled or lulled into inaction by some conduct of Respondent. Therefore, Petitioner has not demonstrated that he is entitled to invoke the doctrine of equitable tolling under Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). Accordingly, the Amended Verified Petition challenging the 2005-2015 CMP Amendment Petition was not timely filed and should be dismissed. Assuming, arguendo, that the 2005-2015 CMP Amendment Petition was timely filed as set forth in the Findings of Fact above, Petitioner has failed to show by the preponderance of evidence that the 2005-2015 CMP Amendment does not comply with the requirements of Section 1013.30, Florida Statutes, or Florida Administrative Code Chapter 6C-21. As to the 2005 Stadium Amendment For the reasons set forth in the Findings of Fact and based on the foregoing Conclusions of Law, Petitioner has failed to show by a preponderance of the evidence that the 2005 Stadium Amendment does not comply with the provisions of Section 1013.30, Florida Statutes. As to Respondent's Motion for Attorneys' Fees and Costs The evidence does not support a finding that attorney's fees and costs should be awarded under either Subsection 120.569(2)(e) or 1013.30(2)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order determining: (1) as to Case No. 06-0328, the Petition filed by Petitioner, Ronald M. Brooke, challenging the 2005-2015 CMP Amendment was not timely filed; (2) the 2005-2015 CMP Amendment and the 2005 Stadium Amendment comply with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; (3) as to Case No. 06-0327, the Amended Verified Petition be dismissed; (4) as to Case No. 06-0328, the Amended Verified Petition be dismissed; and (5) Respondent's Motion for Attorney's Fees and Costs in both cases be denied. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th day of April, 2006.
Recommendation It is RECOMMENDED that the Homeowners' objection to the issuance of the final site approval order permitting the helistop at Joe Robbie Stadium as requested in the Airport Site Approval and License Application filed on October 20, 1987 by Joe Robbie Stadium Corporation be dismissed. DONE and ENTERED this 29th day of August, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Robert L. Shevin, Esquire 200 South Biscayne Boulevard Suite 3300 Miami, Florida 33131-2385 George F. Knox, Esquire 4770 Biscayne Boulevard Suite 1460 Miami, Florida 33137 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether the University of Central Florida's (UCF or University's) Notice of Tentative Award of Invitation to Negotiate (ITN) Number 1317ZCSA to KUD International, LLC (KUD), was contrary to UCF's governing statutes, regulations, or policies or to the ITN's specifications.
Findings Of Fact The Parties UHLC is a Florida limited liability company formed by W.A. "Chip" Headley. He obtained an undergraduate and master's degree from UCF, is a very loyal alumnus, and is a long-time booster of the University. Mr. Headley explained that if KUD's proposal had been "in the ballpark of what the other three proposers had proposed," and was not such a "bad financial deal" for the University, he would have walked away without filing a protest. Mr. Headley formed UHLC in connection with the ITN. UHLC is owned by SRP Hotel Partners, LLC, and J.P. Turner & Company, LLC. SRP Hotel Partners, LLC, in turn is owned by Thomas Lee Group and Simonson Road Partners, LLC. Mr. Headley leads Simonson Road Partners, LLC, a hospitality-focused boutique real estate investment company. UCF is a public research university located in Orlando, Florida. It has a current enrollment of over 60,000 students, making it the second largest university in the United States in terms of student enrollment. Its annual budget is around $1.4 billion. Events Prior to the Submission of Responses The ITN was released on April 4, 2014. Its objective was to enable UCF to enter into an agreement with a vendor "to provide a boutique hotel and conference center situated on 11.8 acres immediately adjacent to the UCF academic core." As further explained in section 1.1 of the ITN: The boutique hotel and conference center will serve as an enhancement to existing academic facilities and will add a desirable service component to the campus. The facility will reflect a design and ambiance congruent with the campus educational and aesthetic objectives. While the term boutique usually refers to hotels of fewer than 150 rooms, the number of rooms in this facility should be determined by the overall program developed for the site. It will aim to achieve the feel and ambience of a boutique hotel through its design architecture and interiors. The ITN "emphasizes that the Respondent concentrate on accuracy, completeness, and clarity of content." § 3.1. UCF expressly reserved the right not to award based on the highest proposed revenue to UCF. In fact, the ITN makes clear that "UCF is not obligated to make an award under or as a result of this ITN or to award such contract, if any, on the basis of the lowest cost or highest commission offered." § 2.8.C. It also reserved the right, at its sole discretion, to "determine whether a deviation [from an ITN requirement] is material." § 2.18.A. Mr. William Merck serves as UCF's Vice President for Administration and Finance. Together with Mr. Greg Robinson, the University's Purchasing Director, Mr. Merck helped develop the ITN's specifications and wrote the provision that the term boutique usually refers to hotels of fewer than 150 rooms. Mr. Merck was the final decision maker for the ITN. While he could give deference to the initial evaluation committee's scores, he was not bound by them. In fact, the ITN vested him with sole discretion to determine what "is in the best interest of UCF, [and to] then make the final decision whether or not to recommend the award of a contract to a Respondent to this ITN, negotiate with the highest ranked respondent(s), or cancel the ITN." § 2.8.C. After publishing the ITN, on April 29, 2014, Mr. Merck and Mr. Robinson held a mandatory pre-proposal conference for potential respondents to seek clarification on the ITN. UHLC was represented by Mr. Headley at the pre-proposal conference. He sought no clarification on the ITN. At the conference, UCF officials were asked whether there was any desired size for the hotel. Mr. Merck told the attendees that UCF did not want a hotel that was the size of the Marriott World Center, a resort hotel near Disney Land with around 2,000 rooms and several hundred thousand square feet of meeting space. To the contrary, Mr. Merck indicated that he was "looking for something relatively small" in terms of facility size. Given this response, and a reference in the ITN to a "boutique hotel" with "fewer than 150 rooms," the undersigned has rejected a contention by UHLC that a lack of clarity on the size of the hotel gave KUD a competitive advantage. After the pre-proposal conference, the potential respondents had several weeks to submit written requests for clarification or alteration of any ITN provisions they perceived as unclear or restricting competition. Again, UHLC submitted no clarification requests. ITN Responses On June 24, 2014, UCF received six ITN responses. Mr. Robinson checked to see if the proper boxes were checked on a list of non-negotiable items, but he did not review every section of each proposal for compliance with other provisions. He left all other determinations regarding compliance or non- compliance with the ITN specifications to the evaluators. Two responses were rejected by Mr. Robinson for missing or unacceptable mandatory response forms. The ITN responses by UHLC, KUD, and two others proceeded through the ITN process. UHLC's Response Before preparing its response, UHLC assembled a team capable of developing the project. The proposed hotel will cost several million dollars. UHLC has a placement agreement with J.P. Turner & Company, LLC, committing it to provide the capital for the project. Other than that agreement, UHLC does not have any other agreements in place for the proposed project. However, this is true of all other respondents, including KUD. Mr. Headley signed and submitted UHLC's response in his capacity as manager of Simonson Road Partners, LLC, which co-owns SRP Hotel Partners, LLC, which in turn co-owns UHLC. The other co-owner of UHLC is J.P. Turner & Company, LLC, whose 90 percent ownership interest in UHLC "includes an undetermined amount of equity that will be syndicated to retail and/or institutional investors." UHLC's response included its certificate of registration with the Florida Department of State, but not for any other entity. UHLC omitted a conceptual site plan or facility design from its proposal. Instead, it intentionally chose to describe its concept for the proposed hotel in broad terms to promote collaboration with the University. Because the site is located at the main entrance, UHLC wanted the University to be actively involved in its design. In researching the UCF market, UHLC also looked at 11 colleges with on-campus hotels, including the University of Florida, Georgia Tech, and Auburn University. The average size of those hotels was 238 rooms and 27,000 square feet of meeting space. Based on that research, UHLC proposed to develop a hotel at UCF with 225 to 300 rooms and approximately 25,000 to 40,000 square feet of meeting space. The development would use the entire 11.8-acre tract. Although UHLC prepared a financial pro forma to develop its proposed lease terms, it was designed to be an internal document and included information targeted at potential investors. The ITN did not require a pro forma. UHLC assumed that the hotel would have 225 rooms, an average daily rate of $149.00 in 2017, a stabilized occupancy of 72 percent, and an average growth rate of three percent. Based on this pro forma, UHLC proposed two lease term options in its response. Under option 1, UHLC would make total payments to the University over 50 years of $26,175,000.00, including a lump sum payment of $7.5 million in year one. Under option 2, UHLC would make annual payments in increasing amounts to the University over the course of the lease term totaling $36,185,000.00 over 50 years. Under both options, UHLC proposed to charge a "UCF Fee" equal to three percent of the daily rate on each occupied room. Over a 40-year period, this would generate an additional $19,850,000.00 to UCF. Thus, under either option, UHLC proposed a financial return to the University in excess of $50 million over a 50-year period. This was comparable to the return proposed by two other respondents, but was much higher than the return proposed by KUD. KUD's Response KUD has 40 years' experience developing projects in the hospitality, convention, education, museum, performing arts, commercial, broadcast, and sports industries. In 2007, KUD managed a large development project for UCF, and a section of KUD's webpage lists a quote attributed to Mr. Merck complimenting KUD's work on that project. However, since that time, KUD has done no other work for UCF. KUD's response was signed and submitted by its executive vice president and includes its certificate of registration with the Florida Department of State, but not for any other entity. A section of KUD's response makes reference to an entity not yet formed, NewCo, LLC, as a potential special purpose entity to be part of the project's future ownership structure, which would be approved or not at UCF's sole discretion. KUD proposes to develop a hotel with 100 to 130 rooms, 15,000 square feet of conference space, a 200-space parking lot, a conceptual site plan and facility elevation, and a market feasibility study to help determine appropriate facility sizing. Notably, it proposes using just 7.4 of the available 11.8-acre site for the project. The remaining acreage would be retained by the University for another purpose. KUD proposed lease payments of $150,000.00 per year for 50 years, no upfront payment, and no increase in rent over the lease term. In its response, however, it states that: The value for the land being provided by UCF is a complex issue that revolves around the number of rooms that can be supported by the anticipated market demand. Therefore, a boutique hotel of 100 rooms cannot possibly make the same investment in land than that of a 200 room hotel . . . . We understand, however, that UCF must be able to justify the use of this land against other long term potential uses. Therefore, we have established land payments that have a minimum current value of $7.5 million dollars over the proposed initial term of the land lease. This value is established as a land lease payment of $150,000 per year or 1% of the gross operating revenues, whichever is greater. Based on approximately 7.4 acres, this equates to approximately $1.0 million per acre. Jt. Ex. 2 at 11. KUD's response included a projected financial pro forma based on 100 hotel rooms, including anticipated revenues, expenses, and net operating income. The response identifies its proposed hotel operator as The Olympia Companies (Olympia), which also operates a boutique hotel called the Alfond Inn for Rollins College in Winter Park. Another vendor also identified Olympia as its potential hotel operator. The Evaluation Process To evaluate and score the proposals, Mr. Merck formed an initial evaluation committee composed of a diverse group of University constituents. All seven members met the ITN's qualifications requirements. Section 2.8.C. of the ITN provided that "each evaluation committee member shall function independently of all other persons including, without limitation, the other committee members, and, throughout the entire evaluation process, each evaluation committee member is strictly prohibited from meeting with or otherwise discussing this ITN and any aspect thereof including, without limitation, the offers and their content with any other individual whatsoever." However, evaluators were not told to refrain from conducting internet research on the respondents or their team members. On June 26, 2014, or two days after the filing of the responses, Mr. Merck and Mr. Robinson met with the evaluation committee and provided them with instructions, the ITN, and the four responses to be evaluated. Mr. Robinson briefed the members on how to conduct their evaluations. During the meeting, they reviewed the description of a hotel with a typical size of 150 rooms or less and noted the instruction that the size of the hotel might vary depending on each proposer's project scope. The next day, June 27, 2014, Mr. Robinson emailed the committee members additional related documents, and his cover email included some financial information attributed to the Alfond Inn "because boutique hotels are something new for the university. Nobody was really familiar with it." He did not provide this information to any proposer, and there is no evidence that any proposer knew the committee had received this information prior to responding to the ITN. The ITN specified the following weighted criteria for the evaluation committee's scoring: Experience and qualifications in designing and managing hotel/conference center facilities; Proposed financial return to the university through ground rent or other financial benefit; Experience of personnel assigned to the project; Financial viability of the respondent; Overall viability of the concept; Compatibility of the proposed concept with the UCF Campus area; and Conformance with the ITN's preferred conditions and requirements. § 2.8.C. As to the proposed financial return, Mr. Merck pointed out that "financial return from a project like this, when it's on the university, is important, it's meaningful, but that's not the primary driver in the decision or in the goal we were seeking with the hotel." The University's current annual budget of $1.4 billion puts this statement in perspective. Mr. Merck's main desire was to get a "quality product," which outweighed everything else, including financial return, in the solicitation. Therefore, the financial return only accounted for 20 percent of the total awardable points, while the other six criteria combine for a total of 80 percent. After the evaluation committee completed its review, scored the proposals, and ranked KUD as number one, Mr. Merck concluded that KUD's response "looked very good" based on its partial use of the available land; the conceptual site plan and facility elevation; a "very conservative base case" financial pro forma based on 100 hotel rooms; a clear project team identification, including a "very important" hotel operator; and a suggested market feasibility study, which he found impressive. In contrast, he considered UHLC's response oversized as to the facility, vague as to its proposed conceptual idea and hotel operator, and lacking substance as to some of its numbers. Thus, he decided that KUD should be selected for pre-award negotiations, which eventually led to UCF's decision to award the contract to KUD. Grounds Raised by Petitioner In the parties' Joint Pre-Hearing Stipulation, UHLC contends that the proposed award to KUD should be rescinded and the contract awarded to UHLC, or alternatively, the ITN reissued and the process started anew. It alleges generally that the financial return to UCF is not in the University's best interests and that UHLC submitted a superior financial return; that KUD's response materially deviated from the state corporate registration requirement in section 2.15 of the ITN; that KUD received an unfair competitive advantage due to the evaluation committee's receipt of information about the Alfond Inn; that three of the seven evaluators improperly scored the proposals of KUD and UHLC; that Mr. Merck improperly conferred with the evaluation committee members after receiving their scores; that UCF improperly communicated with KUD in pre-award communications; that KUD was allowed to amend its proposal after it was opened; and that UHLC was not given a point of entry to challenge the pre-award meeting between the negotiating team and KUD. Incorporated into these broad allegations are several other contentions. These allegations are discussed below. Financial Return to the University UHLC contends that even though financial return made up 20 percent of the total evaluation points, the ITN specifications were never changed to reflect the decreased importance given to financial return by Mr. Merck. As noted in Finding of Fact 33, financial return was never the driving force for UCF on this project. This was consistent with section 2.8.C. of the ITN, which specifically provided that "UCF is not obligated to make an award under or as a result of this ITN or to award such contract, if any, on the basis of lowest cost or highest commission offered." Also, section 2.3 of the ITN allowed UHLC to request clarification on "any conditions or requirements which [it believed] remain unclear or which restrict competition." No clarification regarding financial return was ever sought. UHLC's suggestion that financial return should be the overarching dispositive factor in awarding the contract is rejected. Violation of Section 2.15 UHLC contends that by listing a not-yet-formed entity, NewCo, LLC, to be a part of the project's future ownership structure, but not attaching that entity's state corporate registration certificate, KUD violated a material requirement of the ITN, section 2.15. This section of the ITN was highlighted by Mr. Merck at the pre-proposal conference. It provides as follows: 2.15 State Licensing Requirements All corporations seeking to do business with the State of Florida shall, at the time of submitting an offer in response to this ITN, either be on file or have applied for registration with the Florida Department of State in accordance with the provisions of Chapter 607, Florida Statutes. A copy of the registration/application must be furnished to UCF when submitting the offer. Notably, this provision is not included as a part of the "nonnegotiable conditions and requirements" pursuant to ITN section 2.50 and Appendix II. Therefore, while the requirement is important, a failure to strictly comply with that provision did not mean that a proposal would be deemed non-responsive, as UHLC argues. KUD's response was signed and submitted by KUD's executive vice president under the name KUD International, and it includes the Florida corporate registration certificate for that entity. Thus, KUD was the respondent to the ITN, not NewCo, LLC. UHLC's response was signed by Mr. Headley in his capacity as manager of Simonson Road Partners, LLC, which is a second level parent/owner of UHLC. Its response did not include the corporate registration certification of Simonson Road Partners, LLC, and provided no documentation indicating Simonson Road Partners, LLC's authority to submit the response on behalf of SRP Hotels Partners, LLC, or UHLC. Mr. Robinson reviewed both responses and determined they sufficiently conformed to the ITN. Even if there was arguably a deviation from the specification, he considered the deviation to be immaterial and one that could be waived. See § 2.18.A. ("UCF will, at UCF's sole discretion, determine whether a deviation is material."). No advantage or benefit accrued to either respondent by UCF waiving strict adherence to this requirement. Information Regarding the Alfond Inn UHLC asserts that UCF materially deviated from the ITN's specifications by providing the evaluation committee with information concerning the Alfond Inn shortly after the evaluation process began, and abused its discretion in permitting the committee to receive such information. As noted earlier, the Alfond Inn is located on the Rollins College campus and is managed by Olympia, which KUD intends to use to manage its hotel if awarded the contract. On June 26, 2014, or two days after the opening of the proposals, Mr. Merck organized a group and individual meeting with the evaluators. At that meeting, the specifications were reviewed, and a description of a "typical" hotel of around 150 rooms or less was given. However, the evaluators were told that the size of the hotel might vary depending on each proposer's project scope. The next day, Mr. Robinson sent an email to all evaluators that included Addendum 1 and 2 to the ITN. The email also included information concerning the Alfond Inn. Because a boutique hotel is a new concept in hotels, Mr. Robinson believed the information would be helpful to the evaluators. The email pointed out that the Alfond Inn had achieved an occupancy rate as high as 94 percent and that it had exceeded its revenue projections. The email did not identify the Alfond Inn's developer, architect, operator, number of rooms, or conference space. Mr. Robinson interpreted the ITN as permitting the committee to receive this type of information in its review process. This was a reasonable interpretation of the ITN and did not constitute an abuse of discretion. There is no evidence that any evaluator materially relied on Mr. Robinson's email in scoring his/her proposal. The evidence does not support a finding that any respondent received a competitive advantage by this action. Evaluation Committee Members' Scores Petitioner contends that three members of the committee acted arbitrarily and capriciously in the manner in which they scored the financial return criteria for both UHLC and KUD. It also contends that one of those members erroneously scored UHLC's response on the criteria of financial viability and the experience and qualifications in designing and managing hotel/conference center facilities. As relief, UHLC asks that KUD's total score be reduced from 596.5 to 537.5, and that UHLC's total score be raised from 567.0 to 597.0. On this issue, the record shows that the challenged committee members gave reasonable explanations for their scoring based on facts and logic. Petitioner also contends that the scoring process was flawed because the evaluators improperly used external sources to obtain information about the respondents. Section 2.25 allows UCF to "make investigations to determine the ability of the Respondent to perform under the ITN." UCF's interpretation of this section to mean that evaluators could use the internet and company websites in their evaluation process was not unreasonable. Many of the evaluators testified that they relied on the internet and company websites to assist them in their evaluation. One evaluator noticed on KUD's website an endorsement by Mr. Merck of KUD based on its work on a project that ended in 2007. However, he was not influenced by that information when he scored the proposals. There is no evidence that any evaluator relied on opinions of friends or others in scoring the proposals. Notably, under the terms of section 2.8.C. of the ITN, Mr. Merck was not bound by the scores of the evaluation committee. The ITN vested in him the discretion to choose KUD even if the evaluators had ranked it below UHLC. In Mr. Merck's judgment, UHLC's proposal was too oversized as to the facility, vague as to its proposed conceptual idea and hotel operator, and unsubstantiated as to some of its numbers. He was also concerned that an excessive number of hotel rooms might suffer from lower occupancy rates, leading to decreased maintenance and service in order to maintain profit margins. In sum, he concluded it was in the best interest of the University to begin pre-award negotiations with KUD, which he believed submitted the best proposal. UHLC further contends that KUD was given a competitive advantage because the initial scoring summary sent to Mr. Merck was incorrect and ranked UHLC as number four, rather than number two. After the evaluation team completed its assignment, the score sheets were sent to Mr. Robinson. He then cut and pasted those scores onto an Excel spreadsheet. Though he correctly transposed individual scores for each evaluator, the Excel spreadsheet that he used contained formulas that incorrectly tallied total scores. When first computed, Mr. Robinson's summary identified KUD in first place, but listed UHLC as number four. Although UHLC should have been ranked second, the summary listed Avista Management (Avista) as the second ranked proposal. The incorrect scores were forwarded to Mr. Merck on July 26, 2014, and were not corrected until Mr. Robinson returned from vacation on August 11, 2014. Using the incorrect score sheets, Mr. Merck prepared a summary of the four proposals, as well as an outline reviewing the total scores to the evaluators. Based upon his review, Mr. Merck intended to begin pre-award negotiations with KUD, the top ranked vendor, but if they were unsuccessful, negotiations would begin with the second ranked respondent, who he believed at that time was Avista. When the incorrect summary was given to Mr. Merck, he concluded that "KUD should be the one that we pick," and the incorrect ranking of UHLC as number four instead of number two had no bearing on his decision. At that point in the process, Mr. Merck decided that there was no reason to discuss the merits of the other three proposals, and he wanted to confirm that the evaluators were comfortable with KUD as the highest ranked respondent. KUD did not receive an unfair competitive advantage by the incorrect summary. Improper Collaboration Among Evaluators and Mr. Merck UHLC contends that by meeting with the evaluators after the proposals were opened, but before an award was made, Mr. Merck violated the terms of the ITN in a material respect. In support of this contention, UHLC points out that the ITN instructed the evaluators to "[w]ork independently" and to "not discuss the Offers or your evaluation with anyone." App. I, ITN. It also cites to another provision in the ITN that allowed evaluators to meet with Mr. Merck while the ITN specifications were being formed, but not after offers were opened on June 24. See § 2.8.C. Notwithstanding these provisions, section 2.8.C. also included the following important language: At the time of such delivery [of score sheets] to the Purchasing Person, the evaluation committee members shall cease to participate further in this ITN process unless expressly requested by Decision Maker. The Decision Maker shall review, in the manner and to the extent he/she deems reasonable under the circumstances, the ITN, the offers, and the committee members' scoring forms . . . . The Decision Maker may, at any time during this ITN process, assign one (1) or more UCF staff members to assist the Decision Maker's review prior to his/her decision-making in this process. (Emphasis added.) This language clearly allowed Mr. Merck to request a meeting with the evaluators at any time during the ITN process when expressly requested by Mr. Merck. Relying on that authority, both Mr. Merck and Mr. Robinson concluded that conferrals by Mr. Merck with the committee after receiving their scores were permitted. Here, Mr. Merck deemed it appropriate to confer with the evaluation committee members as a group to assess their overall level of comfort with KUD and their feelings on opening negotiations with both KUD and UHLC, or just KUD. The conferrals were not clearly erroneous, contrary to competition, arbitrary, or capricious, as alleged by UHLC. Pre-Award Communications With KUD Section 2.6 of the ITN prohibited respondents from making offers or amendments to their proposals once they were opened. UHLC contends that section 2.6 was materially violated when a member of the evaluation team requested clarification on an item in KUD's proposal, and KUD was allowed to correct a typographical error in its proposal. Dr. Young was a member of the evaluation team. During her review of KUD's response, she raised a question regarding how much land KUD proposed to use. She did so because KUD's proposal indicated on page 1 that 7.4 acres would be used, but in another place indicated that 4.4 acres would be used. As it turned out, the latter figure (4.4) was a typographical error. To clarify this issue, Dr. Young sent an email to Mr. Merck, who forwarded it to Mr. Robinson. Mr. Robinson sought clarification from KUD, who provided an email response that 7.4 acres (shown on page 1) was the correct figure. In response to a second question from Dr. Young, KUD also provided information regarding Olympia, one of its team members. All evaluators were given a copy of Dr. Young's original question, along with KUD's response. However, these were permissible communications under section 2.25 of the ITN, which allows UCF to "make investigations to determine the ability of the Respondent to perform under the ITN." Moreover, by simply allowing KUD to correct a typographical error when the correct acreage was listed elsewhere in its proposal, KUD was not given a competitive advantage. UHLC also contends that UFC was prohibited from communicating with KUD prior to issuing the tentative award. By August 11, 2014, Mr. Merck had decided that KUD submitted the best proposal. Accordingly, that same day, he advised Mr. Robinson that a negotiation committee would be formed to proceed with pre-award negotiations with KUD, and except for one individual, the evaluation committee members would comprise that group. The group met with KUD on September 9, 2014. Notice of the meeting was not given to other respondents. Three days later, Mr. Merck advised Mr. Robinson to publish a notice of intended award to KUD. Mr. Merck explained that the point of the meeting with KUD was "not so much to drill down on exactly the specifics of what they would deliver, but more to -- for use to develop a comfort level that the team they were putting forth was a -- was a fit for the university and that generally what they orally suggested to us was consistent with what they had put in writing in their proposal. It was more an additional kick the tires exercise." This type of meeting is authorized in numerous places throughout the ITN. See § 2.25 ("As part of its evaluation process, UCF may make investigations to determine the ability of the Respondent to perform under this ITN."); § 1.2.E. ("UCF reserves the right to conduct negotiations with the highest ranked offerer(s)."); § 2.8.A. ("UCF reserves the right to conduct negotiations if [Mr. Merck] . . . determines negotiations to be in the best interest of the university."); § 2.8.C. (Mr. Merck retains the right to negotiate with the highest ranked respondent). The University's interpretation of these provisions was not clearly erroneous, contrary to competition, arbitrary, or capricious, as alleged by UHLC. Failure to Offer Point of Entry Before Entering Pre- Award Negotiations with KUD UHLC contends that it was entitled to a point of entry to challenge Mr. Merck's decision on August 11 to begin pre- award negotiations with KUD. However, at that time, UHLC was not yet eliminated from consideration, and Mr. Merck had not made a final decision to reject the other proposals. See Fla. Bd. Gov's Reg. 18.002(3)(c)(an intended or final decision occurs only after all responses have been rejected). Moreover, section 2.8.C. allows UCF the discretion to communicate with both KUD and UHLC, or any other respondent. If negotiations with KUD were unsuccessful, UCF intended to engage with UHLC as the second ranked proposer. Pursuant to section 2.9, UHLC's meaningful point of entry was provided when a notice of intent to award a contract was posted on September 15, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University of Central Florida enter a final order denying UHLC's Formal Protest of the Intended Award and sustaining its intention to award the contract to KUD. DONE AND ENTERED this 18th day of March, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 18th day of March, 2015. COPIES FURNISHED: W. Scott Cole, General Counsel Office of the General Counsel University of Central Florida Post Office Box 160015 Orlando, Florida 32816-0015 Seann M. Frazier, Esquire Parker Hudson Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301-1804 (eServed) Richard E. Mitchell, Esquire GrayRobinson, P.A. Post Office Box 3068 Orlando, Florida 32802-3068 (eServed) Jordan P. Clark, Esquire Office of the General Counsel University of Central Florida Post Office Box 160015 Orlando, Florida 32816-0015 (eServed) RIGHT OF REVIEW Pursuant to Regulation 18.002(13)(j), within fourteen days after rendition of this Recommended Order, the President of University of Central Florida shall issue a Preliminary Order and serve the parties with a notice of such order. If the Protestor takes exception to the Preliminary Order, the Protestor must timely file its written exceptions with the President within fourteen days after the date of this Recommended Order is issued. The Preliminary Order shall provide that, "This Preliminary Order is the Final Order unless the Protestor files written exceptions to the Preliminary Order with the President no later than 14 days after the date this Preliminary Order is issued."
Findings Of Fact On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance." In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding: * * * 2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida. * * * 4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1. The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . . * * * Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave." Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . . * * * Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked." The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue Fort Lauderdale, Florida 33316 Suzanne H. Schmith Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Silvia Morell Alderman, Esquire Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether respondent committed those acts set forth in the amended Administrative Complaint, and if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
Findings Of Fact At all times material to this matter, the respondent was a registered pool contractor, having been issued license no. RP 0021612, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Respondent was first registered with the Construction Industry Licensing Board in 1974. On May 2, 1984, respondent entered into a contract with Yhony Puente de la Vega for the repair of the swimming pool at the Siesta Motel located in Putnam County, Florida. The contract provided that the respondent would make certain repairs to the pool for the total price of $7,000. The contract further provided for a down payment of $2,300, which respondent received. Prior to entering into the contract, respondent had examined the pool to determine the repair work that needed to be done. However, respondent was unaware that the Department of Health and Rehabilitative Services (HRS) required certain plans to be submitted and approved before the pool could pass inspection and become operational. Subsequent to entering into the contract, respondent learned of the HRS requirements and hired an engineer to prepare and submit the necessary plans for approval. Although respondent had performed repair work on other motel pools, he had never before been required to submit plans for approval to HRS. At some point after entering into the contract, but before he began any work, respondent was informed that he was not properly licensed to do the repair work on the pool. Due to the problem with the licensing and the HRS requirements that respondent had not anticipated, respondent contacted his son, a certified pool contractor, and asked him to take over the job. Respondent's son, Alan K. Payne, Jr., agreed to do the work. From the evidence presented, it is unclear exactly when Alan R. Payne, Jr., took over the project. Alan K. Payne, Jr., testified that he had taken over the job by the time that HRS approved the plans for the pool on August 29, 1984. However, a proposed contract for the pool repairs dated March 1, 1985, and signed by Alan K. Payne, Jr., and a settlement stipulation dated June 6, 1985, whereby the parties agreed that Alan R. Payne, Jr., would complete the job according to the original contract, indicate that the motel owners and Alan R. Payne, Jr., did not reach an agreement on the terms of the contract until June of 1985.1 Respondent's son obtained the permit for the pool repair work from the Putnam County Building Department on June 13, 1985, and he subsequently completed the repair work. At all times material hereto, respondent was a state registered pool contractor and was aware that such a license did not allow him to contract throughout the state, but only in those counties where he had met all local licensing requirements. Respondent had his wife call the Putnam County Building Department to determine if he could perform the pool work. He had relied on his wife to do this on other occasions. His wife informed him that it was "legal" for him to do the repair work. Respondent had never before performed any work in Putnam County. When a person contacts the Putnam County Building Department to determine whether he can contract and obtain permits for work in Putnam County, he has to indicate whether he is "certified" or "registered." If the word "registered" is used, the person is directed to talk with the office manager, who advises the person as to the procedure for obtaining local competency. If the word "certified" is used, the person is informed that he can enter into contracts and obtain permits for work in Putnam County. There was no competent evidence presented as to what respondent's wife advised the Building Department, but she would not have been told that a state registered contractor could perform pool work or obtain permits in Putnam County. Putnam County requires a registered contractor to have a certificate of competency or local competency in order for the contractor to perform contracting work and obtain permits to do the work in the county. Without a certificate issued by Putnam County, a registered contractor can neither perform work in Putnam County nor obtain permits for work in Putnam County. A contractor who is state certified can perform work and obtain permits for work in Putnam County without obtaining local competency. The contractor would need only to provide a copy of his state certified license to the Putnam County Building Department. At all times material hereto, respondent did not have local competency in Putnam County or a state certified license. Respondent was authorized to perform work in Volusia County. His application for registration lists only Volusia County.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of violating Section 489.129(1)(j), by his failure to comply with Section 489.117(2), and not guilty of violating Section 489.129(1)(d), Florida Statutes. It is further -recommended that respondent be fined $250 and placed on probation for a period of one (1) year under such terms and conditions as the Construction Industry Licensing Board considers appropriate. DONE and ENTERED this 11th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986.
The Issue Whether Petitioner is entitled to Proximity Tie-Breaker points for its designated public bus transfer stop and library.
Findings Of Fact The parties stipulated to the following facts as reflected in paragraphs 1 through 13, below. Petitioner is a Florida for-profit limited liability company with its address at 3 East Stow Road, Suite 100, Marlton, New Jersey 08053, and is in the business of providing affordable rental housing units in the State of Florida. Florida Housing is a public corporation, with its address at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32310, organized to provide and promote the public welfare by administering the governmental function of financing and refinancing housing and related facilities in the State of Florida. § 420.504, Fla. Stat. (2011).1/ Florida Housing administers various affordable housing programs including the following: Housing Credit Program (HC) pursuant to section 42 of the Internal Revenue Code and section 420.5099, Florida Statutes, under which Florida Housing is designated as the Housing Credit agency for the State of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code, and Florida Administrative Code Rule 67-48; and HOME Investments Partnerships Program (HOME) pursuant to section 420.5089, Florida Statutes, and Florida Administrative Code Rule 67-48. The 2011 Universal Cycle Application, through which affordable housing developers apply for funding under the above-described affordable housing programs administered by Florida Housing, together with Instructions and Forms, comprise the Universal Application Package or UA1016 (Rev. 2-11), adopted and incorporated by Florida Administrative Code Rule 67-48.004(1)(a). Because the demand for HC and HOME funding exceeds that which is available under the HC program and HOME program, respectively, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Rule 67-48. Specifically, Florida Housing's application process for the 2011 Universal Cycle, as set forth in Florida Administrative Code Rules 67-48.001 through 67-48.005, involves the following: The publication and adoption by rule of a "Universal Application Package," which applicants use to apply for funding under the HC and HOME programs administered by Florida Housing; The completion and submission of applications by developers; Florida Housing's preliminary scoring of applications (preliminary scoring summary); An initial round of administrative challenges in which an applicant may take issue with Florida Housing's scoring of another application by filing a Notice of Possible Scoring Error ("NOPSE"); Florida Housing's consideration of the NOPSEs submitted, with notice (NOPSE scoring summary) to applicants of any resulting change in their preliminary scores; An opportunity for the applicant to submit additional materials to Florida Housing to "cure" any items for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; A second round of administrative challenges whereby an applicant may raise scoring issues arising from another applicant's cure materials by filing a Notice of Alleged Deficiency ("NOAD"); Florida Housing's consideration of the NOADs submitted, with notice (final scoring summary) to applicants of any resulting change in their scores. An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's evaluation of any item in their own application for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score2/; Final scores, ranking of applications, and award of funding to successful applicants, including those who successfully appeal the adverse scoring of their application; and An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housings final scoring and ranking of competing applications where such scoring and ranking resulted in a denial of Florida Housing funding to the challenging applicant. Petitioner timely submitted its application for financing in Florida Housing's 2011 Universal Cycle. Petitioner, pursuant to Application No. 2011-201C, applied for $1,190,000.00 in annual federal tax credits to help finance the development of its project, a 73-unit apartment complex in Sarasota, Florida, known as Janie's Garden Phase 3.3/ As part of its application, Petitioner submitted its 2011 Universal Cycle-Surveyor Certification for Competitive HC Applications Form as Exhibit 25 (Surveyor Form). In its review and score of Petitioner's application dated February 22, 2012 ("The NOPSE score"), Florida Housing identified certain deficiencies, including a NOPSE concerning the Public Bus Transfer Stop/Public Bus Rapid Transit Stop which provides as follows: Evidence provided in a NOPSE indicates that the Public Bus Transfer Stop/Public Bus Rapid Transit Stop listed on the Surveyor Certification for Competitive HC Applications form is neither a location at which passengers may access at least three routes of public transportation via buses nor a location where passengers may access at least one bus that travels at some point during the route in a lane or corridor that is exclusively used by buses and that has scheduled stops every 20 minutes during the hours of 7am to 9am and 4pm to 6pm Monday- Friday. Petitioner timely submitted cures in response to these scoring deficiencies, including a letter from Anthony Beckford, general manager, Sarasota County, dated January 26, 2012; and a new Surveyor Form as a replacement for the Surveyor Form submitted as Exhibit 25 with Petitioner's application. Following the submission of cures and after a review of NOADs, Florida Housing scored Petitioner's application and issued its final scoring summary dated March 27, 2012, in which Florida Housing concluded that Petitioner met all threshold requirements and awarded Petitioner 27 Proximity Tie-Breaker points.4/ Specifically, Florida Housing awarded 27 Proximity Tie- Breaker points out of a possible 37 points for the following reasons: 1P The Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however, the cure is deficient because this route was "ready for implementation on December 5, 2011" and not available for use by the general public as of application deadline as required. 1P Applicant attempted to cure item 1P by providing information demonstrating that there was an additional bus route added prior to the application deadline; however the cure is deficient because the schedule for this route will not have hourly stops between the hours of 4pm and 6pm Monday- Friday as required. The Proximity Tie-Breaker that Petitioner would be entitled to receive for the Transit Services Public Bus Transfer Stop is six points; and for a public library is one and three quarters of a point. Petitioner timely filed its Petition contesting Florida Housing's scoring of its application, whereupon Florida Housing forwarded the matter to the Division of Administrative Hearings. December 6, 2011, the date that Petitioner submitted its application, was the deadline for applicants to submit the 2011 Universal Cycle Application. In its final scoring summary dated March 27, 2012, Florida Housing scored Petitioner's application such that for the proximity of its proposed development to the Verman Kimbrough Memorial Library (Kimbrough Library), Petitioner received zero Proximity Tie-Breaker points. Florida Housing did not award any such points to Petitioner because in its opinion, the Kimbrough Library does not meet Florida Housing's definition for a public library in that the library's holdings are not "available for the public to borrow at no cost." Petitioner disputes this contention and asserts that the public can borrow materials at no cost from the library as long as the public uses the materials while in the library. Florida Housing's 2011 Universal Application Instructions provide as follows: Public Library-–For purposes of proximity tie-breaker points, a Public Library means a library that is part of a city, county, or regional public library system or cooperative and has materials available for the public to borrow at no cost. The Ringling College of Art and Design is located in Sarasota, Florida, and has as a part of its campus the Kimbrough Library. The Kimbrough Library is a part of the Tampa Bay consortium of libraries. The primary purpose of the Kimbrough Library is to support the academic programs at the Ringling College of Art and Design. In furtherance of this purpose, the Kimbrough Library has, as a significant portion of its holdings, items such as art history books and large folios comprising artist representations, paintings, and the like. The majority of the periodicals in the library, such as Art News and Architectural Digest, are related in some way to the visual arts. The Kimbrough Library subscribes to various newspapers and has Wi-Fi and computers available for use by its patrons. For purposes of the instant dispute, the Kimbrough Library has three classes of patrons: Paying Members, Non- Members, and Regular Members. Paying Members are individuals that pay an annual fee of $50.00 to the Ringling College Library Association. A benefit of being a Paying Member is that individuals in this class are issued library cards that allow them to check out materials from the library. Non-Members are able to enter the library, without cost, during its hours of operation and are allowed to peruse the library's holdings and access the library's computers and Wi-Fi. As Non-Members are not issued library cards, these individuals are not allowed to check-out or otherwise remove materials from the library. Library materials are available to Non-Members for in-library use only. Regular Members are current students, alumni and employees of the Ringling College of Art and Design, and certain high school teachers from Sarasota County and Manatee County, respectively. The Kimbrough Library issues library cards to its Regular Members, and these cards allow them to check-out materials from the library. The library has on its website a list of frequently asked questions and responses thereto. The following excerpts are instructive: Q: Do alumni have borrowing privilages [sic]? A: Graduates of Ringling College of Art and Design have perpetual borrowing privileges at Kimbrough Library. They may check out up to 15 items at a time, excluding CDs and slides, and use many of the online subscription databases when visiting the Library. Register at the Circulation Desk for a library card. (Emphasis supplied). Q: Can members of the community use the library? A: Yes, for research and browsing. If you also wish to check out materials, you may become a member of the Ringling College Library Association. Individual memberships are $50.00 per year. High school arts and humanities teachers in Sarasota and Manatee counties may register for a library card at no charge. Q: How long can books be checked out? A: Three weeks for students and Ringling College Library Association Members. Six weeks for faculty and staff. On or about February 29, 2012, Tracy Wagner, who works for the Ringling College of Art and Design as vice-president of Finance and Administration, submitted to Florida Housing a letter regarding "FHFC Proximity Scoring-Library-Verman Kimbrough Memorial Library." Ms. Wagner, in her capacity as vice-president of Finance and Administration, does not have any oversight responsibilities for the library, but she does work with the library director "on maintenance and construction projects." By her own admission, Ms. Wagner is only "somewhat" familiar with the operations of the library. According to Ms. Wagner, the Kimbrough Library satisfies Florida Housing's definition of a public library in relevant part, because the library allows "area residents to use the library free of charge which includes the use of [the] library computers[,] as well as the ability to borrow any of [the] books for use within the library." Ms. Wagner's opinion is belied by the library's response to frequently asked questions, which treat as synonymous the acts of "borrowing" and "checking out" materials from the library. The library's response to frequently asked questions make clear that in-library "research and browsing" are different from the privilege of being able to borrow materials from the library. The library's responses to frequently asked questions, as opposed to the assertions by Ms. Wagner, are a competent and credible source for information about the operational aspects of the Kimbrough Library. For the reasons stated in stipulated paragraphs 8 and 11 above, Respondent, in its final scoring of Petitioner's application, did not award Petitioner any Proximity Tie-Breaker points for the public bus transfer stop identified by Petitioner in its application. The bus transfer stop in question is at or near the intersection of Orange Avenue and 23rd Street in Sarasota, Florida. It is undisputed that as of December 6, 2011, passengers using the bus transfer stop at the intersection of Orange Avenue and 23rd Street were able to ride buses servicing routes seven (Newtown-NE) and eight (Newtown-US 301). It is also undisputed that on December 5, 2011, Sarasota County Transportation Authority (SCTA), approved route 71 (Booker HS) for future operation. Once route 71 becomes operational around September 2012, it will have scheduled stops at the intersection of Orange Avenue and 23rd Street and will have, Monday through Friday, passenger pick-up and drop-off during the following times for inbound bus service: 7:58 a.m.; 8:28 a.m.; 5:28 p.m.; and 5:58 p.m. Outbound passenger pick-up and drop-off times at this location will be as follows: 7:47 a.m.; 8:17 a.m.; 5:17 a.m.; and 5:47 p.m. On or about April 19, 2012, Ms. Sarah Blanchard, who works at Sarasota County Area Transit as a senior transit planning manager, submitted on behalf of Petitioner a letter to Florida Housing. Ms. Blanchard's missive to Florida Housing states in part as follows: In terms of meeting the FHFC requirements during the p.m. period indicated for us as 4 to 6 p.m., the average headway, as defined by SCAT, is one hour, which equates to "hourly." That number is derived by dividing the period (two hours) by the number of directional trips, two, to obtain the average one hour headway.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order denying Petitioner, Janie Poe Associates 3 LLC's, Petition for Review. DONE AND ENTERED this 6th day of July, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2012.
The Issue The issues here concern the decision by the Respondent to reject the bid of the Petitioner and others associated with the solicitation for lease space, Invitation To Bid (ITB) No. 1991:104, in favor of use of property held by the Respondent.
Findings Of Fact As early as March 1991, Respondent began to consider the possibility of leasing space off its campus to accommodate its postal services operation. This was necessitated by a lack of acceptable space on campus. The need to acquire acceptable space led the Respondent to enter into a lease agreement with the Petitioner for the period June 26, 1991 through October 20, 1991 for property located at 148 Four Points Way in Tallahassee, Florida. The expectation by the Respondent was that this emergency lease would be followed by a more permanent lease arrangement through a competitive bidding process. To this end Respondent set about preparing its invitation to bid through ITB No. 1991:104. In doing so Respondent followed all applicable procedures. Petitioner, among others, responded to the invitation and following evaluation of those responses was found to have offered the apparent best bid. The results of the evaluation were posted through a tabulation sheet. The posting took place on September 10, 1991. The preliminary decision by the Respondent was met with the notice of protest by another bidder, Grace H. Dansby. That protest was received on September 12, 1991. Before Respondent received the protest by Dansby on September 10, 1991, Lorilyne Gerato, who had coordinated the bid activities for the Respondent, had notified James Chason, President for Petitioner, of the results of the bid tabulation. Other bidders were also extended this courtesy of notifying them of the outcome of the tabulation. She told Chason that Petitioner was the low bidder, and Chason gained the impression that his company had gotten the bid. Gerato told Chason in this September 10, 1991 conversation that it would be necessary to wait for 72 hours from the time of the posting of bid results to see if a protest was filed and that a letter would be sent to Chason concerning the outcome of the assessment process and that the letter would not be dispatched before the 72 hour protest had expired. Having considered the record, it was not reasonable for Chason to believe that the contact by Gerato constituted a commitment by the Respondent to enter into a lease with Petitioner to the exclusion of rights and opportunities by Dansby to protest the preliminary decision finding Petitioner the best bidder and the Respondent's opportunity to consider its course of action with the advent of that protest. Dansby, in the person of counsel, made complaints about the bidding process to Dr. James Pitts, a vice president with the Respondent in charge of development. Those complaints were made known to John Carnaghi, Vice President for Finance and Administration, for the Respondent, who had overall responsibility for this project. Although Ms. Dansby in addition to being a bidder on this project is a trustee of the Florida State University Foundation, which is associated with the work Dr. Pitts performs for the Respondent, the affiliation between Dansby and the Respondent did not influence Respondent in its intended disposition of this case as a means to benefit the bidder Dansby. Mr. Carnaghi, who was responsible for deciding the course of action, given the Dansby protest, was concerned that the protest would not be resolved in a time sufficient to allow entry into the lease space that Petitioner was offering under the terms of the subject ITB. Knowing that the emergency lease that had been entered into with Petitioner, as described, could not be extended beyond its October 20, 1991 expiration date, he had great concern about where to house the postal services function once the emergency lease expired. He was also mindful that the emergency lease with Petitioner had been entered into after two failed attempts in locating other facilities for the postal services in that the space that he tried to locate in the other two facilities proved to be unavailable. Even before the Dansby protest had been filed, there was mention that it might be forthcoming, and there was the additional concern that Petitioner might protest if its bid was rejected. There was also the concern that the cost for the initial year in the lease period contemplated by the Petitioner was more than Respondent had expected to pay, notwithstanding the fact that the Petitioner's response to the ITB was responsive to the terms set forth in the ITB. Although the Respondent had not conducted a pre-bid estimate concerning lease expenses for the first year with exactitude, the estimate was sufficiently precise to demonstrate that the lease costs for the initial year called for by the Petitioner's response to the ITB was high, being in excess of $60,000 in a circumstance in which the estimate by the Respondent was in the $30,000 range. In the face of these events, it occurred to Carnaghi that he had property known as the Maples property which had come into ownership by the Respondent that might meet the needs for space for the postal services. Carnaghi had first seen this property and its building around September 5 or 6, 1991. The renovation cost to prepare this building to receive the postal services function approximated the initial expense for the first year lease with Petitioner. It was believed that the space could be prepared in time to move the equipment before the expiration of the emergency lease. In fact, the building at the Maples property was sufficiently prepared to allow the function to move into that location on October 17, 1991. In making the decision to reject bids in favor of available space owned by the Respondent, Respondent was aware that the postal operations were not generating revenue in the manner expected, an item of critical concern given that the postal services operation must earn its keep. Thus, the decision was reached to reject all bids in favor of use of space available that belonged to the Respondent. Having made the decision to reject the bids in favor of use of its space, the bidders were notified of this decision on September 16, 1991. Mrs. Dansby did not continue to pursue her protest. The Petitioner did avail itself of the opportunity to protest leading to the hearing and this recommended order. In addition to the individual notices provided to the respective bidders dated September 16, 1991, further posting was given indicating that the bidders had until September 24, 1991 to contest the decision to reject all bids. Gerato had called Chason on September 13, 1991 to tell him of the Dansby protest and the concern that Respondent did not have time to wait for that protest to be resolved and was going to reject the bids. Chason replied that he felt that the Petitioner was in a position to conclude the necessary improvements in the building called for by the specifications set out in the ITB, even if it were necessary to wait out the 10 day protest period, the opportunity given for filing a formal written protest subsequent to the notice of intent to protest dated September 12, 1991. Subsequently Gerato spoke to Chason on the following Tuesday, and Chason tried to convince Gerato that he did not believe that Dansby would follow through with the protest in that Chason did not think there were adequate grounds for Dansby to protest. Chason continued to emphasize that Petitioner was in the position to make the necessary improvements in the time frame specified and was prepared to do so. Gerato made Chason aware of the fact that the Respondent having had a chance to look further at the situation discovered that there was property available to the University unrelated to the responses to the ITB and that the Respondent was going to reject bids in response to the ITB in favor of the property available to the University. Chason had also offered to extend the time for using the Petitioner's property for 30 days beyond the termination of the emergency lease conditioned upon use of that property in the 30 days leading to a lease under the subject ITB as opposed to the use of the property to provide the Petitioner with an opportunity to prepare space other than that offered by the Petitioner. This offer was placed in writing by correspondence of September 20, 1991. Respondent replied to the Petitioner on September 24, 1991 rejecting that opportunity in favor of the Maples property as being the most cost effective alternative. The remarks in the correspondence by Al Gilligan, Director of Business Financial/Auxiliary Services, to the effect that at a future point if operational revenue projections prove accurate that the Respondent might seek considerable increase in space and would consider the building which Petitioner offered in the present bidding process through a future bidding process is not seen as an attempt to favor Ms. Dansby in some future competitive bidding conducted by the Respondent as Petitioner has contended. The fact that the decision to use available space belonging to the Respondent was a considerable reduction from what had been sought through the ITB is not seen as an impropriety by the Respondent in rejecting Petitioner's space in favor of its own.
Recommendation Upon consideration of the findings of fact and conclusions of law, it is recommended that a Final Order be entered which dismisses the Petitioner's bid protest and confirms the decision to reject all bids in favor of space owned by the University. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1992. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties. Petitioner's facts: Paragraph 1 is not necessary to the resolution of the dispute. Paragraph 2 is subordinate to facts found. Paragraphs 3 through 5 are not necessary to the resolution of the dispute. The First sentence in paragraph 6 is subordinate to facts found. The latter sentence is not necessary to the resolution of the dispute. Paragraph 7 is subordinate to facts found. Paragraph 8 is not necessary to the resolution of the dispute. Paragraphs 9 and 10 are subordinate to facts found. Paragraphs 11 through 17 are not necessary to the resolution of the dispute. Paragraph 18 is subordinate to facts found, except in its suggestion that Petitioner had "gotten the bid," taken to mean that the rights of Petitioner and Respondent concerning any possible contract had been basically determined subject to finalization through signing of a lease. Paragraph 19 is not necessary to the resolution of the dispute. Paragraphs 20 through 24 are subordinate to facts found. Paragraph 25 is acknowledged; however, the arrangements to make improvements did not involve the kind of expenditures that would occasion a claim of estoppel. Paragraph 26 constitutes argument. Paragraph 27--See discussion of paragraph 25. Paragraph 28 constitutes a discussion of testimony in its first sentence. The second sentence is contrary to facts found. Paragraph 29 is subordinate to facts found. Paragraph 30 is rejected as it attempts to describe a contract between Petitioner and Respondent. Paragraph 31 is not necessary to the resolution of the dispute nor are paragraphs 32 through 35. Paragraph 36 is subordinate to facts found. Paragraph 37 is not necessary to the resolution of the dispute. Paragraph 38 is subordinate to facts found in the first sentence. The remaining sentence is argument. Paragraph 39 is not necessary to the resolution of the dispute. Paragraph 40 through 42 are subordinate to the facts found. Paragraphs 43 through 45 are not necessary to the resolution of the dispute. Paragraph 46 is subordinate to facts found. Paragraphs 47 through 56 are not necessary to the resolution of the dispute. Paragraphs 57 through 64 are subordinate to facts found. Paragraph 65 is not necessary to the resolution of the dispute. Paragraphs 66 through 68 are subordinate to facts found. Paragraph 69 is rejected to the extent that it attempts to show that Mr. Carnaghi acted improperly in rejecting the bids. Paragraph 70 is not necessary to the resolution of the dispute. Paragraphs 71 and 72 are subordinate to the facts found. Paragraph 73 is the correct statement, but does not preclude the University from electing to use available space it had. Paragraph 74 is subordinate to facts found. Paragraphs 75 and 76 are not necessary to the resolution of the dispute. Paragraph 77 in its first two sentences is subordinate to facts found, and the latter sentence is argument. Paragraphs 78 through 80 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found. Paragraphs 8 and 9 are not necessary to the resolution of the dispute. Paragraphs 10 through 18 with the exception of the last sentence in 18 are subordinate to facts found. That sentence constitutes a conclusion of law. Paragraphs 19 and 20 are subordinate to facts found. Paragraphs 21 and 22 constitute recitation of testimony and argument as does paragraph 23. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire McFarlane, Ferguson, Allison & Kelly 210 South Monroe Street Post Office Box 82 Tallahassee, FL 32302 Gerald B. Jaski, Esquire Sonja P. Mathews, Esquire William D. Moore, Esquire Florida State University 311 Hecht House Tallahassee, FL 32306-4038 Dale Lick President Florida State University 211 Westcott Building Tallahassee, FL 32306
