Madison Highlands, LLC v. Fla. Hous. Fin. Corp.

• Decision Date: 24 February 2017
• Docket Number: Case No. 5D16–1035
• Citation: 220 So.3d 467
• Parties: MADISON HIGHLANDS, LLC and American Residential Development, LLC, Appellants, v. FLORIDA HOUSING FINANCE CORPORATION, SP Gardens, LLC, West River Phase 2, LP and West River 1A, LP, Appellees.
• Court: Florida District Court of Appeals

220 So.3d 467

MADISON HIGHLANDS, LLC and American Residential Development, LLC, Appellants,

v.FLORIDA HOUSING FINANCE CORPORATION, SP Gardens, LLC, West River Phase 2, LP and West River 1A, LP, Appellees.

Case No. 5D16–1035

District Court of Appeal of Florida, Fifth District.

Opinion filed February 24, 2017

Kenneth B. Bell, of Gunster, Yoakley & Stewart, P.A., Tallahassee, James W. Middleton, of James W. Middleton, PLLC, Jacksonville Beach, Michael G. Maida, of Michael G. Maida, P.A., Tallahassee, J. Timothy Schulte and Sarah Lindquist Pape, of Zimmerman, Kiser, & Sutcliffe, P.A., Orlando, William S. Bilenky and Douglas P. Manson, of Manson Bolves Donaldson Varn, P.A., Tampa, for Appellants.

Chris McGuire, Tallahassee, for Appellee, Florida Housing Finance Corporation.

Stacy D. Blank, of Holland & Knight LLP, Tampa, and Lawrence E. Sellers, Jr., of Holland & Knight LLP, Tallahassee, for Appellee, SP Gardens, LLC

Michael P. Donaldson, of Carlton, Fields Jordan Burt, P.A., Tallahassee, for Appellee, West River 1A. LP and West River Phase 2, LP.

ORFINGER, J.

Madison Highlands, LLC and American Residential Development, LLC (collectively "Madison Highlands") appeal a final order of the Florida Housing Finance Corporation ("FHFC") dismissing its first and second amended petitions for a formal administrative proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (2016). We conclude that the doctrine of equitable tolling allows for the consideration of Madison Highlands's second amended petition, which was legally sufficient and demonstrated standing under Agrico Chemical Co. v. Department of Environmental Regulation , 406 So.2d 478, 479 (Fla. 2d DCA 1981). Accordingly, we reverse the final order and remand for an administrative hearing pursuant to section 120.57, Florida Statutes (2016).

The FHFC is the state agency designated to allocate and distribute low-income housing tax credits that the United States Treasury annually makes available to the states for various programs, including the State Housing Tax Credit Program (the "Program"). See § 420.5099, Fla. Stat. (2016). Because the demand for housing credit funding exceeds available allocations under the Program, qualified affordable housing developers must compete for the funding. The competitive process is initiated when the FHFC issues a Request for Applications ("RFA"), and interested developers respond by submitting applications. Madison Highlands participates in the Program and competes for this funding.

The FHFC issued RFA 2015–107 for an award of tax credits for the development of affordable housing projects in several counties, including Hillsborough County, where only one development would be funded. Madison Highlands and others submitted applications, and in time, the FHFC posted a notice identifying SP Gardens, LLC ("Laburnum Gardens") as the applicant to which it intended to award the tax credits for the Hillsborough County development. Madison Highlands timely filed a written protest to the notice and petitioned for an administrative hearing.¹

The FHFC issued an Order Dismissing the Petition with Leave to Amend, finding that Madison Highlands's first amended petition did not comply with Florida Administrative Code Rule 28–106.201(2)(e)-(f) as it did not include:

(e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; [and]

(f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes ....

The Order Dismissing the Petition with Leave to Amend gave Madison Highlands until March 4, 2016, to file an amended petition and stated that the "[f]ailure of [Madison Highlands] to file an amended petition within this time shall be considered a waiver of its rights to file any administrative challenge in this matter."

At 5:36 p.m. on March 4, 2016, Madison Highlands filed its second amended petition by electronic mail, again protesting the notice and petitioning for an administrative hearing. The FHFC subsequently entered a Final Order that dismissed the second amended petition with prejudice, concluding that the second amended petition was untimely filed thirty-six minutes late and Madison Highlands had not demonstrated that the doctrine of equitable tolling applied. The FHFC further determined that even if timely, the second amended petition failed to establish that Madison Highlands had standing to protest the preliminary award because it did not contain adequate allegations against all of the four higher-ranked applicants that, if proven, would result in Madison Highlands being ranked highest. Madison Highlands challenges these determinations.

We review an agency's conclusions of law de novo. Parlato v. Secret Oaks Owners Ass'n , 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). We agree with the FHFC that the second amended petition was untimely. Section 120.54(5), Florida Statutes (2016), requires the Administration Commission to adopt uniform rules of procedure to replace the multiple rules in the administrative code promulgated by the various agencies. See Fla. Pub. Emps. Council 79, AFSCME, AFL–CIO v. Jacksonville Emps. Together , 738 So.2d 489, 491 (Fla. 1st DCA 1999). The Uniform Rules provide, in relevant part, that "[a]ny document received by the office of the agency clerk before 5:00 p.m. shall be filed as of that day but any document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day." Fla. Admin. Code R. 28–106.104(3). However, the FHFC has published its own rule, Florida Administrative Code Rule 67–52.002(3), which specifies that when a petition is sent to its clerk by electronic mail, it "shall be accepted on the date transmitted." Such a rule cannot serve as an exception to the Uniform Rules because the Administration Commission has not approved it as an exception to the time deadline set forth in rule 28–106.104(3). § 120.54(5)(a), Fla. Stat. (2016) (providing that Uniform Rules apply unless Administration Commission specifically grants exception to agency); see Dep't of Corr. v. Saulter , 742 So.2d 368, 369–70 (Fla. 1st DCA 1999) (characterizing effect of section 120.54(5)(a) as "legislative repeal" of agency procedural rules in conflict with Uniform Rules). Thus, the second amended petition was untimely under rule 28–106.104(3). Nevertheless, Madison Highlands is entitled to the relief afforded by the equitable tolling doctrine.

Section 120.569(2)(c), Florida Statutes (2016), requires agencies to dismiss untimely petitions, but further provides that this direction "does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition." A late request for an administrative hearing is not a jurisdictional defect. Machules v. Dep't of Admin. , 523 So.2d 1132, 1134 (Fla. 1988) ; Pro Tech Monitoring, Inc. v. State, Dep't of Corr. , 72 So.3d 277, 280 (Fla. 1st DCA 2011) ; see Williams v. Dep't of Corr. , 156 So.3d 563, 565 (Fla. 5th DCA 2015) ("The doctrine of equitable tolling can be applied to extend an administrative filing deadline.").

Under the doctrine of equitable tolling, a late-filed petition should be accepted when a party "has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum," provided that the opposing party will suffer no prejudice. Machules , 523 So.2d at 1134. Madison Highlands asserts that it was misled or lulled into not timely filing the second amended petition by the terms of the Order Dismissing the Petition with Leave to Amend, which only stated that the second amended petition was due on March 4, 2016. Madison Highlands also submits that FHFC rule 67–52.002(3), published both in the Florida Administrative Register and on the FHFC website, provides that the second amended petition, delivered by electronic mail, would be deemed filed the date it was transmitted, in this case, March 4, 2016. Madison Highlands claims it was not informed that FHFC rule 67–52.002(3) was not an approved exception to the Uniform Rules and neither the FHFC website nor the Order Dismissing the Petition with Leave to Amend cited to rule 28–106.104(3) or referenced the time cutoff provisions found in the Uniform Rules. Although FHFC had, on other occasions, included specific submittal times in certain situations, it did not do so here.

Madison Highlands does not assert that it requested this information from FHFC or had any discussion with the FHFC concerning the applicability of the Uniform Rules. Indeed, Madison Highlands was aware that the Uniform Rules would apply to petitions filed with the FHFC since it referenced the Uniform Rules numerous times in its second amended petition, and never referenced chapter 67–52. Notwithstanding, we conclude that the FHFC affirmatively "lulled or misled" Madison Highlands into relying on rule 67–52.002. Madison Highlands's mistake was based on the FHFC's act of publishing FHFC Rule 67–52.002(3) on its website without also publishing or referencing Uniform Rule 28–106.104(3), but then applying the 5:00 p.m. time deadline from the Uniform Rules to Madison Highlands's petition.

Equitable tolling does not require active deception or agency misconduct, but focuses rather on the applicant with a reasonably prudent regard for his rights. See, e.g. , Machules , 523 So.2d at 1134 ; see also Pro Tech Monitoring, Inc. , 72 So.3d 277 (applying equitable tolling to disappointed bidder's late filed formal bid protest petition where bidder alleged that petition was timely delivered to department's security guard, who prevented bidder from delivering petition directly to clerk's office and instead accepted petition, stamped it with department-issued time and...