                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

FLAGSHIP MANOR LLC,                   NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-3295

FLORIDA HOUSING FINANCE
CORPORATION AND SPINAL
CORD LIVING ASSISTANCE
DEVELOPMENT, INC.,

      Appellees.


_____________________________/

Opinion filed September 6, 2016.

An appeal from Florida Housing Finance Corporation.

John L. Wharton and Melanie S. Griffin of Dean Mead & Dunbar, Tallahassee, for
Appellant.

Hugh R. Brown, General Counsel, for Appellee, Florida Housing Finance Corp.

Michael P. Donaldson of Carlton Fields Jorden Burt, P.A., Tallahassee, for Appellee,
Spinal Cord Living Assistance Development, Inc.




OSTERHAUS, J.

      Flagship Manor applied for government funding to help it develop a multi-

unit housing complex for persons with special needs. The Florida Housing Finance
Corporation (Florida Housing) administered a program providing low-cost financing

to support such affordable housing projects. It received applications from Flagship

and others for funding. But it found Flagship’s application incomplete and rejected

it. Flagship protested the decision and then appealed after Florida Housing denied

its protest. We affirm because Florida Housing’s decision to reject Flagship’s

application was not clearly erroneous.

                                          I.

      Florida Housing administers an affordable housing program called the State

Apartment Incentive Loan (SAIL) Program that provides low-interest, competitive

loans to affordable housing developers that construct or rehabilitate multifamily

units for very-low income persons and families in Florida. See § 420.5087, Fla. Stat.

(2015). As part of the program, Florida Housing issued a Request for Applications

(RFA) in January 2015, making a limited amount of funding available within a

competitive bidding process. See Fla. Admin. Code R. 67-48 & 67-60 (2014).

      Section 4(G) of the RFA required applicants to demonstrate that they

controlled the property site intended to be developed. It stated in relevant part:

      Site Control (Mandatory):

      The Applicant must demonstrate that the Applicant entity as named in
      question C.2 of Exhibit A has control of the Development site(s). The
      Applicant must demonstrate site control by providing [an Eligible
      Contract]. *      *      *



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      a. Eligible Contract – For purposes of the RFA, an eligible contract is
         one that has a term that does not expire before August 14, 2015, or
         that contains extension options exercisable by the purchaser and
         conditioned solely upon payment of additional monies which, if
         exercised, would extend the term to a date that is not earlier than
         August 14, 2015; specifically states that the buyer’s remedy for
         default on the part of the seller includes or is specific performance;
         and the buyer MUST be the Applicant unless an assignment of the
         eligible contract to the Applicant, is provided. If the owner of the
         subject property is not a party to the eligible contract, all documents
         evidencing intermediate contracts, agreements, assignments,
         options, or conveyances of any kind between or among the owner,
         the Applicant, or other parties, must be provided, and, if a contract,
         must contain the following elements of an eligible contract: (i) have
         a term that does not expire before August 14, 2015 or contain
         extension options exercisable by the purchaser and conditioned
         solely upon payment of additional monies which, if exercised,
         would extend the term to a date that is not earlier than August 14,
         2015, and (ii) specifically state that the buyer’s remedy for default
         on the part of the seller includes or is specific performance.

Flagship submitted a timely application seeking almost $4.5 million from SAIL to

develop a multi-unit housing complex for homeless persons with behavioral health

disorders. Its application included a commercial purchase contract for the

development site (the Contract) to demonstrate site control and purported to “more

particularly” provide a legal description of the site in an attachment called Exhibit

A:

      Street Address: 11721 – 11725 North 12th Street, Tampa, Florida

      Legal Description: Hillsborough County Property Appraiser Parcel
      Folio #s: 036037.000 and 036038.0000, more particularly described at
      Exhibit A attached.

(emphasis added).
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      Exhibit A did not actually exist; Flagship’s citation to it was a mistake.

But Florida Housing did not know that Exhibit A didn’t exist. So when Florida

Housing considered Flagship’s application, and couldn’t find Exhibit A of the

Contract with its more particular description of the property, it rejected the

application as incomplete and nonresponsive. The Board then awarded the SAIL

funding to another applicant.

      Flagship filed a timely protest of the Board’s decision to exclude its

application. After a hearing officer conducted an informal administrative hearing

pursuant to sections 120.569, 120.57(2) and (3), Florida Statutes, and Rule 67-60 of

the Florida Administrative Code, he issued an order recommending that Florida

Housing affirm the Board’s decision and deny Flagship’s Petition. The

Recommended Order concluded that the Contract didn’t demonstrate site control

because it was facially incomplete and incorrect. The Recommended Order also said

that the missing exhibit could not be considered a “Minor Irregularity” under Rule

67-60.0002(6) of the Florida Administrative Code because it was impossible to

know the nature of the irregularity in the context of a missing and substantively

unknown “more particular” legal description.

      The Board subsequently entered a final order adopting the hearing officer’s

recommended order and denying Flagship’s petition, and Flagship appealed.




                                          4
                                         II.

                                         A.

      We review this case in accordance with the standards outlined in section

120.68, Florida Statutes. The material facts are not disputed. We must reverse and

remand if the agency erroneously interpreted the law and a correct interpretation

compels a different result. § 120.68(7)(d), Fla. Stat. (2015). This Court defers to an

agency’s interpretation of the law it administers, unless it conflicts with the plain

and ordinary intent of the law. Big Bend Hospice, Inc. v. AHCA, 904 So. 2d 610,

611 (Fla. 1st DCA 2005). But we do not defer to implausible or unreasonable

interpretations adopted by an administrative agency. Sullivan v. Fla. Dep’t of Envtl.

Prot., 890 So. 2d 417, 420 (Fla. 1st DCA 2004). We will uphold an agency’s

interpretation of the statutes and rules it administers so long as it is not clearly

erroneous, or beyond the “permissible range of interpretations.” Colbert v. Dep’t of

Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004).

                                         B.

      The crux of this dispute is whether Flagship met the RFA’s site control

requirement of submitting an “eligible contract” to demonstrate site control. Florida

Housing determined that Flagship missed the mark because it submitted a contract

that was incomplete on its face. The Contract said that an attached exhibit provided

                                          5
a “more particular” legal description of the proposed site of the development in

Exhibit A. But Flagship submitted no Exhibit A.

        Flagship argues that Florida Housing should have ignored the missing exhibit

discrepancy because its application otherwise contained all essential and required

site control information needed to accept its application. According to Flagship, the

Contract’s additional words not only cited something that didn’t exist, but additional

legal description of the site was just surplusage anyway. Its view is that the mistake

should have been disregarded, or, at worst, been considered a “minor irregularity”

under Florida Housing’s rules.

        Florida Housing rejected the application based upon Rule 67-60.006(1) of the

Florida Administrative Code, which addresses the “Responsibility of Applicants.” It

says:

        1) The failure of an Applicant to supply required information in
        connection with any competitive solicitation pursuant to this rule
        chapter shall be grounds for a determination of nonresponsiveness with
        respect to its Application. If a determination of nonresponsiveness is
        made by the Corporation, the Application shall not be considered.

Florida Housing decided that Flagship had supplied an incomplete contract and thus

failed its responsibility to “supply [the] required information.” Fla. Admin. Code R.

67-60.006. Even though, in other places, the Contract included substantive

information demonstrating site control, Florida Housing had to decide whether to




                                          6
accept what appeared to be, from the Contract’s language, an incomplete contract

with the more precise legal description of the property left unsubmitted.

      We cannot conclude that Florida Housing’s decision was clearly erroneous.

The RFA required the submission of an “eligible contract,” not a partial or

incomplete contract. Flagship’s omission, or misstatement, in the Contract related to

the legal description of the development site, an essential component of its

application. But the relative importance of the omission couldn’t be evaluated on the

face of Flagship’s application. Flagship advocates for “sound judgment and a

modicum of common sense . . . to determine the significance of the ‘missing’ exhibit

rather than employing a harsh [rule].” But here, Florida Housing couldn’t know what

bearing the omitted exhibit had on its site control evaluation because it wasn’t

available for review. And even if the rest of the contract indicated that Flagship had

met the site control requirement, the missing exhibit with a “more particular” legal

description of the property, which Florida Housing had to reasonably assume

existed, could have altered how Florida Housing evaluated and scored the

application as part of the competitive funding process.

      Faced with an incomplete contract, Florida Housing applied Rule 67-60.006

and determined the application to be nonresponsive. This decision tracks other cases

where Florida Housing also rejected site control contracts for missing or incomplete

exhibits. See Tidewater Revitalization, LTD v. Florida Hous. Fin. Co., Final Order

                                          7
No.     2002-0023      (https://www.doah.state.fl.us/FLAID/FHF/2002/FHF_2002-

023_02012013_043019.pdf) (Fla. HFC Oct. 10, 2002) (rejecting an application due

to a missing “Exhibit A” that provided a legal description of the property); Trinity

Towers Pres. Assocs., LLP v. Florida Hous. Fin. Co., Final Order No. 2012-024UC

(https://www.doah.state.fl.us/FLAID/FHF/2012/FHF_2012-024-UC_

03262013_040237.pdf) (Fla. HFC June 8, 2012) (rejecting an application in which

the page of the contract entitled “Exhibit A Legal Description” was blank). An

agency generally must follow its own precedents. See Bethesda Healthcare Sys., Inc.

v. Agency for Health Care Admin., 945 So. 2d 574, 576 (Fla. 4th DCA 2006).

      Finally, Florida Housing’s regulations give it discretion to ignore “minor

irregularities” in an application. See Fla. Admin. Code R. 67-60.008. A “minor

irregularity” refers to variation “that does not provide a competitive advantage or

benefit” to the applicant over other applicants. Fla. Admin. Code R. 67-60.002(6).

The problem in this case, however, was that Florida Housing couldn’t evaluate the

impact of the missing exhibit, or simply assume that it wouldn’t affect scoring.

Contrary to Flagship’s claim that its contract language “obviously was an oversight,”

Florida Housing could not look at the balance of Flagship’s application and know

that the exhibit didn’t exist, or was immaterial. The mistake wasn’t “clearly evident”

on the face of the application. Fla. Admin. Code R. 67-60.008.




                                          8
                                     III.

    The agency’s decision in this case was not clearly erroneous.

    AFFIRMED.

ROWE, J., CONCURS; WETHERELL, J., CONCURS IN RESULT.




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