19-001774DS In Re: March 8, 2019, Petition For Declaratory Statement, Elias Makere vs. * Status: Closed DOAH Final Order on Wednesday, April 3, 2019.

Summary: The Division declines to issue a declaratory statement in response to the Petition because the question asked is related to pending litigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MARCH 8, 2019, PETITION Case No. 19 - 1774 DS

FOR DECLARATORY STATEMENT

ELIAS MAKERE,

Petitioner .

_______________________________/

FINAL ORDER DECLININ G PETITION FOR DECLA RATORY STATEM ENT

On March 8, 2019, Petitioner, Elias Makere, filed a

Petition for Declaratory Statement (Petition) with the Florida

Division of Administrative Hearings (Division or DOAH ). Notice

of the Petition was published in the Florida Administrative

Register, Vo lume 45, Number 49, on March 12, 2019. The Division

has not received a petition to intervene in this action from any

other person. No hearing on the Petition was requested and none

was held.

ALLEGATIONS OF THE PETITION

Petitioner alleges that on June 3 0, 2017, he filed an

employment discrimination complaint with the Florida Commission

on Human Relations (Commission) against Allstate Insurance

Company. He ÐsuedÑ Allstate on January 19, 2018, and the case

was referred to the Division, where it is dockete d as Makere v.

Allstate Ins urance Co. , DOAH Case No. 18 - 0373. Mr. Makere

asserts that the hearing in Case No. 18 - 0373 has concluded, and

that following the entry of the recommended order, the Division

will relinquish jurisdiction back to the Commission, a nd the

Commission will enter a final order. Petitioner asserts that

without definitive guidance, he has doubts as to what

constitutes Ðthe entire recordÑ that will be considered in the

CommissionÓs review of the DOAH recommended order.

On these facts, Pe titioner asks that the following question

be answered in a declaratory statement: Petitioner respectfully

requests a declaration on what DOAH defines to be the Ðentire

recordÑ of PetitionerÓs case.

COMMENTS

The Division received no comments within the period

prescribed by Florida Administrative Code R ule 28 - 105.002.

CONCLUSIONS OF LAW

Section 120.565(1), Florida Statutes (2018), provides:

ÐAny substantially affected person may seek a declaratory

statement regarding an agencyÓs opinion as to the appli cability

of a statutory provision, or of any rule or order of the agency,

as it applies to the petitionerÓs particular set of

circumstances.Ñ Rule 28 - 105.001 specifies that a declaratory

statement Ðis a means for resolving a controversy or answering

quest ions or doubts concerning the applicability of statutory

provisions, rules, or orders over which the agency has

authority .Ñ (Emphasis added) . There are limitations on the use

of declaratory statements, and those limitations control here.

Declaratory sta tements are intended to allow someone to

select a proper course of action in advance and to avoid costly

administrative litigation. Chiles v. DepÓt of State, Div. of

Elec . , 711 So. 2d 151 (Fla. 1st DCA 1998). It is not

appropriate to issue a declaratory statement regarding rights

that are being Ðactively litigated either before it in another

docket or elsewhere.Ñ Citizens v. Fla . Pub . S erv . CommÓn ,

164 So. 3d 58, 62 (Fla. 1st DCA 2015); Gopman v. DepÓt of Educ . ,

908 So. 2d 1118, 1123 (Fla. 1st DCA 2005) (Ð[t]he rule is that

Òdeclaratory statement proceedings are not properly filed on

issues simultaneously litigated in judicial or other

administrative proceedings . . . ÓÑ Ð [and is] not an appropriate

remedy where there is related pending litigation . Ñ); see also

Padilla v. Liberty Mut. Ins. Co. , 832 So. 2d 916, 919 - 20 (Fla.

1st DCA 2003); Novick v. DepÓt of Health , 816 So. 2d 1237, 1240

(Fla. 5th DCA 2002).

As Petitioner readily states, he is seeking an

interpretation of a statute as it applies to pending l itigation

in his proceeding against Allstate. What constitutes the record

in a section 120.57(1) proceeding is already defined by statute.

§ 120.57(1)(f), Fla. Stat. This definition applies to all

litigants, not just Petitioner in his particular set of

circumstances. Moreover, Petitioner is requesting the Division

to interpret a statute as it will be applied by a different

agency. In other words, he is seeking an interpretation from

one agency in an attempt to bind another. For the Division to

provide such an interpretation would be inconsistent with the

purpose for declaratory statements.

CONCLUSION

The P etition requests a declaratory statement on issues

that are being litigated in an administrative proceeding.

Moreover, the P etition requests an interpretation from one

agency regarding the parameters of what can be considered by

another agency in the separate administrative proceeding and

b ecause this question is beyond the scope of a declaratory

statement, PetitionerÓs request for Declaratory Sta tement is

denied.

DONE AND ORDERED this 3rd day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 3rd day of April , 2019 .

COPIES FURNISHED :

E lias Makere

3709 San Pablo Road South , No. 701

Jacksonville, Florida 32224

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original not ice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the Distric t Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.