The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s (FHFC) determinations regarding the applications responding to Request for Applications 2019-116 SAIL Financing of Affordable Multifamily Housing Development to Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits (the RFA), were clearly erroneous, contrary to competition, arbitrary, or capricious; and whether the award to Respondent Christian Manor Restoration, LLC (Christian Manor), is contrary to governing statutes, rules, or the solicitation specifications of the RFA.
Findings Of Fact Petitioner Parkwood is an applicant responding to the RFA. The Parkwood application, assigned number 2020-422BS, was deemed eligible but was not selected for funding under the terms of the RFA. Respondent Christian Manor is an applicant responding to the RFA. The Christian Manor application, assigned number 2020-405BS, was deemed eligible and was selected for funding under the terms of the RFA. FHFC is a public corporation created pursuant to section 420.504, Florida Statutes. The purpose of FHFC is to promote public welfare by administering the governmental function of financing affordable housing in Florida. FHFC is tasked with allocating a portion of the certain Disaster Recovery funding allocated by the U.S. Department of Housing and Urban Development pursuant to the State of Florida Action Plan for Disaster Recovery. Waterview was an applicant responding to the RFA. The Waterview application, assigned number 2020-424BSN, was deemed eligible but was not selected for funding under the terms of the RFA. FHFC is authorized to allocate housing credits and other funding by means of requests for proposals or other competitive solicitation. See § 420.507(48), Fla. Stat.; Fla. Admin. Code Ch. 67-60 (governing the competitive solicitation process). FHFC allocates its competitive funding pursuant to the bid protest provisions of section 120.57(3). Funding is made available through a competitive application process commenced by the issuance of a Request for Applications (RA). An RA is equivalent to a “request for proposal” as indicated in Florida Administrative Code Rule 67-60.009(4). The RFA was issued on November 6, 2019. It was modified several times, and the final RFA was issued on December 20, 2019. The application deadline was December 30, 2019. Sixty-five applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to FHFC’s Board of Directors (the Board). The Review Committee found 57 applications eligible, seven applications ineligible, and one application withdrew from the selection process. Through the ranking and selection process outlined in the RFA, 13 applications were preliminarily recommended for funding, including Christian Manor. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 6, 2020, the Board met and considered the recommendations of the Review Committee for the RFA. At 9:35 a.m. that same day, all RFA applicants received notice that the Board determined whether applications were eligible or ineligible for funding consideration and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Such notice was provided by the posting of two spreadsheets on the FHFC website, www.floridahousing.org: (1) listing the Board-approved scoring results for the RFA, and (2) identifying the applications which FHFC proposed to fund. There is no dispute that Petitioner and Christian Manor received this notice. In the March 6, 2020, posting, FHFC announced its intention to award funding to 13 applications including Christian Manor. No challenges were made to the terms of the RFA. RANKING AND SELECTION PROCESS Through the RFA, FHFC seeks to award an estimated total of $71,360,000 in SAIL Financing, as well as tax-exempt bonds, to assist in financing the development of affordable rental housing for tenants who are either low-income or extremely low-income. The available SAIL financing was to be divided so that a certain amount was targeted both geographically, between Large, Medium, and Small Counties, and demographically, between applicants proposing housing for families and those proposing housing for the elderly. Applicants who are awarded tax-exempt bond financing are also entitled to an award of non-competitive federal low-income housing tax credits. FHFC made approximately $5,611,650 in National Housing Trust Fund (NHTF) funding available to applicants committing to build either new construction or rehabilitation of family or elderly housing for “Persons with Special Needs.” Applications in this RFA are scored in two categories for a possible total of ten points. Five points each can be awarded for Submission of Pre- Approved Principal Disclosure Form and Local Government Contributions. Because so many applicants achieve a perfect score of ten, the RFA establishes a series of tiebreakers referred to as a “sorting order,” designed to rank order applications for funding selection. The RFA set the following sorting order, after listing applications from highest score to lowest score: By eligibility for Proximity Funding Preference; then By eligibility for the Per Unit Construction Funding Preference; then By Leveraging Level number 1 through 5; then By eligibility for the Florida Job Creation Preference; then By randomly assigned lottery number. The RFA also established a series of funding goals. Those goals were: One New Construction Application in a Large County serving Elderly residents. Three New Construction Applications in a Large County serving Family residents, with a preference that at least two of such Applications being from “Self-Sourced” Applicants. One New Construction Application in a Medium County serving Elderly residents. Two New Construction Applications in a Medium County, with a preference that at least one such Application being from a self-sourced Applicant. The RFA designated each county in Florida as either Large, Medium, or Small. The RFA also allowed an applicant to designate itself as “Self- Sourced,” which requires applicants proposing new construction family projects to provide a portion of their development funding themselves, in an amount of at least half of its SAIL Request Amount (or $1 million, whichever is greater). The RFA provided that eligible applicants be assigned a Leveraging Level 1 through 5, with 1 being the best score, based on the total Corporation SAIL Funding amount relative to all other eligible applicants’ total Corporation SAIL Funding amount. The Leveraging Level is a comparative tool to rank applicants based on how much SAIL funding each applicant has requested per affordable housing unit (Set-Aside Unit) it proposes to construct. Calculation of the Leveraging Level includes adjusting the total amount of SAIL funds requested by an applicant based on a variety of factors, including development type, development location, construction method to be employed, and whether a Public Housing Authority is part of the applicant, then dividing that adjusted amount by the applicant’s proposed number of Set-Aside Units. For example, the SAIL Request per Set-Aside Unit is reduced by ten percent for applicants proposing a Mid-Rise Four-Story building, while applicants proposing Garden Apartments or Townhouses do not receive this adjustment, and applicants proposing Five-Story or Six-story Mid-Rises or High-Rises get a greater reduction. Applicants whose adjusted SAIL Request per Set-Aside Unit is among the lowest ten percent of all calculated SAIL Request amounts per Set-Aside Unit in this RFA are assigned Leveraging Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the highest 30 percent are Leveraging Level 5. The RFA employed a “funding test,” requiring that the full amount of an applicant’s SAIL request be available for award when that applicant is under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group (Large, Medium, or Small), and the demographic category (elderly or family) for an applicant to be selected. Within the county size group, the RFA contains a pour-over provision for any unallocated Small County funding to be divided between the Medium and Large County funding availability; and any unallocated Medium County funding would be made available to Large County applicants. Further, in order to promote geographic distribution of funding awards, the RFA included a County Award Tally mechanism. If an applicant was selected in a particular county, a second applicant would not generally be selected from that same county if there was any eligible applicant available (even with a lower total application score) from any other county, from which an applicant had not already been selected for funding. The RFA set forth a very specific funding selection order, taking into consideration two specific counties (Miami-Dade and Broward), county size groups, development category (new construction or rehabilitation), demographic group (elderly or family), and self-sourced status. CHRISTIAN MANOR’S APPLICATION One of the criteria in the RFA for scoring and ranking applications involves proximity to certain services. The RFA provides in relevant part: e. Proximity The Application may earn proximity points based on the distance between the Development Location Point [(DLP)] and the Bus or Rail Transit Service (if Private Transportation is not selected at question 5.e.(2)(a) of Exhibit A) and the Community Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied towards the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference, as outlined in the chart below. Requirements and Funding Preference Qualifications All Large County Applications must achieve a minimum number of Transit Service Points and achieve a minimum number of total proximity points to be eligible for funding ... All Applications that achieve a higher number of total proximity points may also qualify for the Proximity Funding Preference as outlined below. Community Services (Maximum 4 Points for each service, up to 3 services) Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score. The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. Location of coordinates for Community Services Coordinates must represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located. * * * Eligible Community Services Grocery Store - This service is defined in Exhibit B and may be selected by all Applicants. Public School - This service is defined in Exhibit B and may be selected only if the Applicant selected the Family Demographic Commitment. Medical Facility - This service is defined in Exhibit B and may be selected by all Applicants. Pharmacy - This service is defined in Exhibit B and may be selected by all Applicants. Scoring Proximity to Services (Transit and Community) (b) Bus and Rail Transit Services and Community Services Applicants that wish to receive proximity points for Transit Services other than Private Transportation or points for any community service must provide latitude and longitude coordinates for that service, stated in decimal degrees, rounded to at least the sixth decimal place, and the distance between the [DLP] and the coordinates for the service. The distances between the DLP and the latitude and longitude coordinates for each service will be the basis for awarding proximity points. Failure to provide the distance for any service will result in zero points for that service. The Transit and Community Service Scoring Charts reflecting the methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis added). Applicants from a Large County, including Palm Beach County (where Christian Manor is located), must receive at least 10.5 Proximity Points (including at least 2.0 Transit Service points) to be eligible for consideration for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference. In its Application, Christian Manor selected three public bus stops for its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The validity of Christian Manor’s claimed Transit Services is not disputed. For its Community Services, Christian Manor identified the following services: Grocery Store - Aldi Food Market, 2481 Okeechobee Blvd., West Palm Beach, Florida 33409, at a distance of 0.73 miles Medical Facility - MD Now Urgent Care, 2007 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, at a distance of 0.82 miles Pharmacy - Target (CVS Pharmacy), 1760 Palm Beach Lakes Blvd., West Palm Beach, Florida 33401, at a distance of 0.70 miles. The Aldi Food Market meets the definition of a Grocery Store in the RFA. The MD Now Urgent Care meets the definition of a Medical Facility in the RFA. Christian Manor identified each service by latitude and longitude coordinates and by distance. These coordinates, however, did not accurately reflect the doorway threshold of either the Aldi Food Market or the MD Now Urgent Care Center. The latitude and longitude coordinates provided for the Grocery Store were erroneous. The listed coordinates identify a point over 0.9 miles away from the doorway threshold of the Aldi Food Market. The latitude and longitude coordinates provided for the Medical Facility identify a point over 0.8 miles away from the doorway threshold of the MD Now Urgent Care Center. The actual distance between the Aldi Food Market and the DLP is .73 miles. The actual distance between the street address of the MD Now Urgent Care Center and the DLP is .82 miles. Based on these identified services, Christian Manor was awarded 3 points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed. Parkwood argues that Christian Manor should be awarded no proximity points for its identified Grocery Store or Medical Facility. Parkwood does not argue that the Aldi Food Market is not a Grocery Store as defined by the RFA, nor does it argue that the MD Now Urgent Care is not a Medical Facility as defined by the RFA. Parkwood does not question the identified addresses for the Community Services or contest that the distances between the identified Aldi Food Market and the MD Now Urgent Care and the DLP are .73 miles and .82 miles respectively. Rather, Parkwood’s argument is narrowly focused on the fact the erroneous longitude and latitude coordinates for the grocery and medical services are not at the doorway threshold. Parkwood would have FHFC ignore the actual addresses and distances because of the error in coordinates. Respondents argue the mistake in coordinates was a minor irregularity. The RFA specifically gives FHFC the right to waive minor irregularities. Rule 67-60.008 provides the criteria that FHFC is to consider when evaluating whether an error should be waived as a minor irregularity. Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Ms. Button testified that an evaluating FHFC Review Committee member does not use the latitude or longitude coordinates to confirm the accuracy of the distances provided. Rather, the inclusion of the requirement for such coordinates dates back to when measurements were done by surveyors, who would certify the distances on a special form. FHFC no longer requires the surveyor certification form. FHFC now requires an applicant to self-designate the community services and proximity requirements. FHFC considers the actual distances as the most relevant factors when evaluating points awarded for proximity from the DLP to a selected Community Service. Ms. Button also testified that listing the incorrect latitude and longitude coordinates could, in this particular case, be waived as a minor irregularity. She explained that because the proximity points are based on the distance between the DLP and the identified services, and because the distances claimed in Christian Manor’s application were correct, the proximity points awarded were also correct. Ms. Button opined that Christian Manor did not garner a competitive advantage from the coordinate errors in the application. The coordinates did not create any uncertainty in the application as to what Community Services were identified or how far they were from the DLP. Petitioner pointed to no evidence of any such advantage. Ms. Button also testified that the error in coordinates did not result in any harm to the public or to FHFC. Again, Petitioner provided no evidence of such harm. Rather, Petitioner relies on a different application in a different RA, where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coordinates for one of its listed Community Services. That applicant, however, never challenged FHFC’s finding, and therefore never presented evidence or argument contesting this finding of ineligibility. It is unclear whether the applicant in the other case was found ineligible for other reasons as well, where that applicant was ranked, and whether there were other circumstances that would have affected the scoring and ranking in that particular RA. Ms. Button testified that if the error in coordinates had been challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived as a minor irregularity. There is no dispute that the Christian Manor application contained a similar error, and that if Christian Manor had not been able to demonstrate that the claimed distances to the grocery store and medical facility were accurate, that error would have resulted in the application being found ineligible. But there is insufficient evidence to determine whether Petitioner is comparing “apples to apples” when relying on this other situation. Any reference to this other applicant in the other RA is unreliable and unconvincing. Regardless, in this case, the undersigned examined the circumstances of Christian Manor’s application and finds based on the preponderance of the evidence (made up of the stipulated facts and Ms. Button’s unrefuted testimony) any inaccuracies in the longitude and latitude coordinates provided by Christian Manor constitute a minor irregularity that may be waived by FHFC. Based on the facts established, the award to Christian Manor is reasonable and neither erroneous, arbitrary, nor capricious. WATERVIEW’S APPLICATION One of the requirements of the RFA is that applicants demonstrate certain Ability to Proceed elements. One of those elements is as follows: Appropriate Zoning. Demonstrate that as of the Application Deadline the entire proposed Development site is appropriately zoned and consistent with local land use regulations regarding density and intended use or that the proposed Development site is legally non-conforming by providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form: The Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08-18) [(Zoning Form)]. As part of its application, Waterview submitted a Zoning Form executed by Elisabeth Dang, a City Public Official. The Zoning Form states, among other requirements: The undersigned service provider confirms that, as of the date that this form was signed, the above referenced Development’s proposed number of units, density, and intended use are consistent with current land use regulations and zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no hearings or approvals required to obtain the appropriate zoning classification. Assuming compliance with the applicable land use regulations, there are no known conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site. Once it receives the Zoning Form, FHFC does not require that an applicant demonstrate in its application that it will be capable of constructing the proposed development, nor does FHFC attempt to independently verify that an applicant will be capable of constructing the proposed development during the application process. FHFC does not require an applicant to submit engineering drawings or final site plans during the application process, nor does the RFA contain any restrictions or requirements concerning the height of any proposed buildings. All of the details and verifications concerning the actual construction of the proposed project are evaluated during the credit underwriting process. Based partially on its identification of Development Type in its application to FHFC as “Mid-rise 4 stories,” Waterview’s adjusted SAIL request per affordable unit resulted in it being assigned Leveraging Level 4. If it had instead identified a Development Type of “Garden Apartments,” it would have received Leveraging Level 5. Petitioner argues that Waterview will be unable to construct the four- story mid-rise building identified in its application while also meeting a 40- foot height limitation in the local zoning code. As explained above, for the same reasons the undersigned sustained the objections to Petitioner’s exhibits relating to zoning issues and feasibility of constructing the proposed development, the undersigned finds at this stage (eligibility, scoring, and ranking), FHFC was not required to independently verify that the proposed development would comply with all building and zoning regulations.4 The evidence established that Waterview submitted the required Zoning Form executed by a person with authority from the City to execute such a form. There was no evidence presented that Waterview’s Zoning Form was improperly completed, or that it was obtained through fraud or illegality. Moreover, there was no convincing evidence that the Zoning Form was improperly completed. FHFC did not make an independent determination as to whether a proposed project would comply with all local zoning requirements, but instead relied on the representation of the local official who executed the Zoning Form. Petitioner also argues Waterview should be deemed ineligible because it presented different information to the City than it presented to FHFC in its application. Specifically, Petitioner challenges use of the term “garden apartment” by Waterview in materials it submitted to the City, but not submitted to FHFC; and the impact of Waterview’s proposed development on wetlands. The undersigned rejects these arguments for multiple reasons. 4 Had Waterview been awarded funds, but its proposed development could not be built due to zoning restrictions, that would be addressed during the credit underwriting process. First, Petitioner alleges that the presentation of additional information to the City somehow conflicts with the Applicant Certification and Acknowledgement Form that applicants are required to sign which provides in relevant part: “In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application.” Ms. Button, however, testified that providing more information to the local government than is presented to FHFC would not in itself conflict with this statement in this form. Second, Mr. Savino’s deposition testimony established he had a number of communications with the City regarding the proposed project and submitted numerous documents for the City to review. Mr. Savino testified he used the term “garden apartments” when discussing the project with the City to refer to apartment complexes, not to the FHFC definition of “garden apartments” as being three stories or less. There is no evidence rebutting Mr. Savino’s version of events, nor is there any indication what the City understood the term to mean. Third, Petitioner argues that Waterview’s proposed project might have impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impacting wetlands. Waterview also included among the documents submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands. Regardless, even if it had been shown that the Waterview project would impact wetlands, this would only impact its ability to receive NHTF funds; it would not have any impact on whether FHFC deems an applicant eligible for funding under this RFA. Ms. Button testified that each applicant is required to check a box on the application indicating whether it is seeking this special funding, but none are required to take it. This special funding is not considered by FHFC when evaluating an applicant’s funding sources during the application review process, and FHFC does not even evaluate an applicant’s eligibility for the NHTF during the scoring process. Even if Petitioner could prove Waterview would not be able to qualify for the special funding, there would be no impact on the scoring of its application. Ultimately, Petitioner presented no evidence that the City had somehow been misled into signing the Zoning Form required by the RFA, or that it had not understood that the proposed project involved a four-story building. The fact that the Ms. Dang did sign the Zoning Form indicates that she believed the City had all the information it needed to do so. Based on the preponderance of the evidence, Waterview’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Waterview Preserve, LLC, and Christian Manor Restoration, LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor Restoration, LLC; and (3) dismissing the formal written protest of BDG Parkwood Lofts, LP. DONE AND ENTERED this 19th day of June, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 19th day of June, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with her dwelling based on her race or handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a 51-year-old black female who relocated to Leesburg, Florida, from Port Chester, New York, in February 2012. Respondent, Richman Property Services, Inc., is the corporate owner/manager of Laurel Oaks Apartments (Laurel Oaks) located at 131 Bayou Circle in Leesburg, Florida. Amy Lewis is the Community Manager of Laurel Oaks. Petitioner rented a two-bedroom apartment unit from Respondent from February 24, 2012, until she moved to Orlando, Florida, on December 3, 2012. Petitioner?s daughter, Sushon Dillard, occupied the apartment with Petitioner during her tenancy at Laurel Oaks. Petitioner spoke with Ms. Lewis via telephone to inquire regarding the availability of a unit at Laurel Oaks while Petitioner was still residing out of state. Petitioner applied for tenancy at Laurel Oaks by faxing her application to Ms. Lewis. Petitioner?s application was accompanied by a copy of her award letter documenting Social Security Disability Insurance (SSDI) payments as proof of income. On February 24, 2012, Petitioner signed a lease for Laurel Oaks unit #103, paid a security deposit, and moved into the unit. Petitioner has a current clinical diagnosis of “schizophrenia, paranoid.” She also claims to be diagnosed bi- polar with Tourrete?s Syndrome. While Petitioner presented no documentation of the additional diagnosis, her testimony on this issue is credible and is accepted by the undersigned. Petitioner was first hospitalized for treatment of an unspecified mental illness at Bellevue Hospital in New York in 1982. She apparently lived without significant incident for the next 26 years. Petitioner had a “breakdown” in 2008, while living in Arizona, and another “breakdown” that same year in New York, for which she was hospitalized at Greenwich Hospital in Connecticut, and later transferred to Stamford Hospital in Connecticut. Petitioner reports that since April 2008, she has “spent time in numerous mental institutions in Arizona, Florida, Georgia, Maryland and New York.” Petitioner?s most recent incident occurred in August 2012, while she was living at Laurel Oaks. She was taken by police to a local facility named “Life Stream” where she was treated for a number of days, then returned home to her apartment at Laurel Oaks with her daughter. Petitioner appeared calm and controlled at the final hearing. She testified that she is taking her medications and doing very well. Petitioner claims that when she moved into the unit at Laurel Oaks, it was not cleaned, was “infested with dead roaches,” and the washing machine was filthy. Petitioner?s daughter testified there were dead roaches even in the dishwasher. Petitioner also bases her allegation of discrimination on Respondent?s accusation in April 2012, that Petitioner had not paid a $300 security deposit prior to occupying her apartment. When Petitioner paid her April rent, Trifonia Bradley, an employee in the office at Laurel Oaks, informed Petitioner she still owed a $300 security deposit. Petitioner responded that she had paid the deposit on February 24, 2012. Although the evidence was not clear as to the specific date, Petitioner later met with Ms. Bradley and brought in her receipt showing the $300 had been paid in February. After that meeting, Petitioner received a phone call from Ms. Lewis apologizing for the error and stating something to the effect of “we are all good.” Petitioner believes Respondent was attempting to take advantage of her disability and trick her into paying the deposit again. At final hearing, Petitioner and her daughter presented evidence and testimony regarding additional alleged discriminatory acts by Respondent. Petitioner alleged that someone employed by, or otherwise acting on behalf of Respondent, sabotaged her automobile; harassed her by requesting her daughter fill out a separate rental application in order to live with her; harassed Petitioner about her request for accommodation based on her disability and claimed she had not demonstrated that she was disabled under the Americans with Disabilities Act; threatened to tow away her car because it was inoperable; and stole money from her apartment. Each of these additional alleged acts occurred after September 21, 2012, the date on which FCHR issued its determination of no cause, and was not investigated by FCHR. Petitioner is intelligent and articulate. Her exhibits were well-organized and contained copious documentation of the alleged discriminatory acts occurring after September 21, 2012. Her documentation included correspondence with Laurel Oaks? management, notices which were posted on the apartment door, copies of numerous forms and applications, and a police report. In contrast, Petitioner offered no tangible evidence regarding the condition of the property upon occupancy other than her testimony, which was not persuasive. She introduced no photographs, no written complaint, and no correspondence with the manager or other employees of Laurel Oaks regarding the condition of the apartment. In fact, she offered no evidence that she brought the condition of the unit to the attention of Laurel Oaks? management. Given the totality of the evidence, including the demeanor of the Petitioner and Ms. Dillard, the undersigned finds that either the unit was not unclean or Petitioner did not bring the condition of the unit to the attention of Laurel Oaks upon occupying the unit. Further, the undersigned finds that Laurel Oaks erroneously requested the security deposit in April 2012, and corrected the error after reviewing Petitioner?s documentation. The mistake was not an act of discrimination based either on race or disability.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0289. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 27th day of December, 2012.
The Issue The issues presented for decision herein are (1) whether or not Respondent failed to pay its share of common expenses, and (2) whether Respondent failed to deliver to the condominium association a financial review as required.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and entire record compiled herein including the pre-hearing stipulation, I hereby make the following relevant factual findings. By its Amended Notice to Show Cause filed herein dared February 27, 1984, Petitioner seeks to impose a civil penalty against Respondent and order it to cease and desist from engaging in certain acts and to take certain affirmative action. As set forth in the pro-hearing stipulated facts, Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. Respondent herein is Maplewood Townhouses, Inc., the developer as defined by Section 718.103(13), Florida Statutes, of a residential condominium known as the Maplewood Townhouses Condominium, located in Coral Springs, Florida. On or about August 5, 1983, the Petitioner served on Respondent its original Notice to Show Cause alleging a violation of Chapter 718, the Condominium Act. Or or about February 27, 1984, Petitioner filed a Motion to Amend its Notice to Show Cause to include two additional allegations. This motion was granted by Order of March 15, 1984. The declaration of condominium for Maplewood Townhouses Condominium was recorded in the public records on July 18, 1980. Maplewood Townhouses Condominium Association, Inc., the condominium association for Maplewood Townhouses Condominium, was incorporated on September 4, 1980. Turnover from developer control of the condominium association occurred pursuant to Section 718.301 on July 7, 1983. Phase II of Maplewood Townhouses Condominium was created after the effective date of Rule 18.05, Florida Administrative Code. 1/ A proposed budget must include reference to a guarantee if one exists pursuant to Rule 18.05, Florida Administrative Code. Certified copies of the proposed operating budgets for Phases I and II submitted by Respondent do not reference a guarantee. It is undisputed that Respondent failed to pay common expenses on developer-owned units from the period of the inception of the condominium through the time of the turnover. This procedure is acceptable where a developer-owner offers a guarantee which complies with the terms of Section 718.116(8)(b), Florida Statutes. The financial review introduced herein reveals that reserves were waived for the period in question by the Board of Directors, however, no claim was offered by Respondent to show that reserves were waived by the unit owners in Maplewood Townhouses Condominium. (See Petitioner's Exhibit 3, pages 6 and 7) Additionally, the putative guarantee fails to provide a stated dollar amount and provides no beginning or ending date for the guarantee. (Petitioner1s Exhibit 3 at page 7) Evidence adduced reveals that Respondent contributed approximately $19,000 to the operation of the condominium association for the period at issue herein. That amount would be the proper amount the developer would have been responsible for, assuming no guarantee existed, and if the calculation for assessments commence upon the date of issuance of the certificate of occupancy for each unit. That amount would not be sufficient if the correct computation was based on the date of recordation of the declaration of condominium. The financial review establishes that contributions to capital, which comprise the initial working capital of the condominium association, were used during the putative guarantee period to finance association expenses. (See Petitioner's Exhibit 4) In addition, the review does not mention either the inadequacy of the guarantee or point out that to the extent the guarantee fails, the reserve obligations become assessment of all unit owners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Department of Business Regulation, Division of Florida Land Sales and Condominiums, enter a Final Order finding Respondent guilty of violating Section 718.115(2), 718.116(8), and 718.301(4)(c), Florida Statutes, and impose a civil penalty in the amount of $1,000. Further, Respondent shall immediately employ an independent certified public accountant to perform a turnover review consistent with Section 718.301(4)(c), Florida Statutes, and to pay any amount determined to be owed to the condominium association. RECOMMENDED this 21st day of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of January, 1985.
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010.
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of May, 2009.
The Issue The issue in this proceeding is whether the Respondent violated Pinellas County Ordinance 84-10, codified as Chapter 17.5 of the Pinellas County Code, by discriminating against the Petitioner with respect to employment in retaliation for his having filed charges of race discrimination.
Findings Of Fact The Petitioner, Willie F. Marshall ("Marshall"), is a black man who resides in Pinellas County, Florida. Respondent, Oak Manor Nursing Home ("Oak Manor"), is a nursing home located in Pinellas County, Florida. Oak Manor has approximately 180 residents in the nursing home. The average age of the residents is 85 years, and the majority of them require acute care or other medical supervision. Oak Manor also operates a retirement apartment complex and a 70-bed adult congregate living facility. Oak Manor is entrusted with caring for and protecting the persons and property of these residents. Patricia McCormack ("McCormack") was Oak Manor's administrator during Marshall's employment there. Robert W. Bell ("Bell") was, and continues to be, the president of American Nursing Homes, Inc., a company which provides management services to Oak Manor. Bell functioned as Oak Manor's general manager during the period of Marshall's employment. Marshall was employed at Oak Manor from June 18, 1991, until April 13, 1992, when he was terminated. Oak Manor paid Marshall a starting wage of $5.00 per hour. Marshall was hired initially as a dietary aide, working in Oak Manor's kitchen. His duties included cleaning the kitchen and serving meals to the nursing home residents. During his employment, Marshall had regular and frequent contact with the nursing home residents. At the time he was hired, Marshall disclosed that he had been convicted twice for sale and possession of cocaine, and he authorized Oak Manor to investigate his background with local law enforcement authorities, as Oak Manor does with all applicants for employment. On or about the date that Marshall began working, Oak Manor sent a letter to the Pinellas County Sheriff's Office inquiring as to whether Marshall had any criminal record. The Sheriff's report stated that Marshall had been arrested or convicted of more than a dozen offenses, including not only the cocaine possession charges Marshall had disclosed on his employment application but also charges for petit theft, battery, armed robbery (twice), strong-arm robbery, and battery on an inmate (twice). Oak Manor's personnel director at the time, Susan Massa, presumably received the Sheriff's Office's report, but did not place it in Marshall's personnel file. Nor did she inform Oak Manor's top management personnel, Bell and McCormack, about Marshall's criminal background. Massa left Oak Manor's employment early in 1992. The personnel director position at Oak Manor has never been a management level position. The personnel director has never had the authority to make hiring and firing decisions. In September, 1991, Marshall received a wage increase of $.25 per hour. In October, 1991, Oak Manor promoted Marshall from dietary aide to cook and increased his hourly wage again, to $6.00 per hour. In January, 1992, Marshall requested that Oak Manor return him to his former position as dietary aide, stating that the cook's position was too stressful. In February, 1992, a dietary aide position became available at Oak Manor, and Marshall accepted the position. Approximately two weeks later, Oak Manor reduced Marshall's hourly wage back to that of a dietary aide, but allowed him to keep the pay raise he had received as a cook. In March, 1992, Marshall was referred to McCormack to find out why his pay had been reduced. McCormack told Marshall that Oak Manor would allow Marshall to keep two weeks' pay he already had received at the cook's rate but explained that, from then on, Oak Manor could not pay him more than other people doing the same job. On or about April 17, 1992, Marshall filed a Charge of Discrimination, claiming that Oak Manor demoted him and reduced his pay based on his race. (He also complained that the person selected to replace him as cook was white.) On or about February 23, 1993, the investigating agency issued a "no- cause" determination on Marshall's race discrimination charge. When Oak Manor received the race discrimination charge, at Bell's direction, McCormack requested and reviewed Marshall's employee file so that she could assemble and forward relevant information to the investigator. The report from the Pinellas County Sheriff's Office listing Marshall's arrests and/or convictions was in Marshall's employee file at the time McCormack reviewed it. It is unknown who placed it in the file, but it probably was filed by Massa's replacement as personnel director, who assumed her duties in approximately late February, 1992. While examining Marshall's file to respond to the race discrimination charge McCormack learned, for the first time, of the full extent of Marshall's criminal record. McCormack immediately put Marshall on paid suspension until she had an opportunity to advise Bell of this information. Based upon Marshall's criminal record, Bell decided to terminate Marshall's employment immediately. Bell and McCormack became aware of Marshall's criminal background only in the course of preparing to respond to the race discrimination charge that Marshall filed. If Bell or McCormack had known about Marshall's arrests or convictions previously, Oak Manor would not have hired him in the first place. Both Bell and McCormack testified that the previously filed race discrimination charge did not in any manner motivate the decision to terminate Marshall. Marshall felt that, in terminating him, Oak Manor was discriminating against him on the basis of race, or retaliating against him for having filed a race discrimination charge, for several reasons. First, he testified that he had told other employees about his criminal record and that he did not understand why the issue was not raised sooner. But he did not call any witnesses to corroborate his testimony. Moreover, the employees to whom he was referring were not members of Oak Manor's management, and there is no evidence that they relayed the alleged information to Oak Manor's management (McCormack and Bell, in particular). Second, Marshall testified that three other employees with criminal records as bad or worse than his were still working at Oak Manor. But, again, he did not call any witnesses to corroborate his testimony, and he was unable to prove the criminal records of the three individuals to whom he made reference. Moreover, he was unable to prove that Oak Manor (McCormack and Bell, in particular) were aware of the criminal records of the three individuals to whom he made reference. Meanwhile, Oak Manor presented evidence suggesting that it terminated several white employees soon after Oak Manor's management became aware of a Sheriff's report showing a criminal arrest and conviction record similar to Marshall's. (Since the evidence did not establish the date on which the Sheriff's reports were received, it could not be ascertained how soon Oak Manor acted after the report was received.) Marshall also was suspicious that, to his understanding, he was initially told that he was fired for falsifying his job application, not because his arrest and conviction record posed an unacceptable risk of harm to the Oak Manor patient population. But it is found that Marshall misunderstood Bell and McCormack when they told him that his job application did not disclose all of the arrests and convictions on the basis of which Bell had decided to terminate him. The evidence also reflects that Oak Manor did not react to arrests or convictions for simple sale and possession of drugs as severely as they did against crimes like robbery, battery and thefts. It appears that convicts of the latter crimes were considered to create a more serious risk to the Oak Manor patient population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Community Relations Board, acting as the commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: (1) finding the Respondent, Oak Manor Nursing Home, not guilty of race discrimination or of retaliating against the Petitioner for his having filed a race discrimination charge against the Respondent; and (2) dismissing the Petitioner's complaint. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of July, 1993. COPIES FURNISHED: Willie F. Marshall 13577 120th Street North Largo, Florida 33601-1102 Wendolyn S. Busch, Esquire Trenam, Simmons, Kemker, Scharf Barkin, Frye & O'Neill P.O. Box 1102 Tampa, Florida 33601-1102 Sally A. Ruby Community Relations EO Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
