19-001775DS In Re: March 20, 2019, Petition For Declaratory Statement, Elias Makere vs. * Status: Closed DOAH Final Order on Tuesday, April 16, 2019.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MARCH 20, 2019, PETITION Case No. 19 - 1775DS

FOR DECLARATORY STATEMENT

ELIAS MAKERE,

Petitioner.

_______________________________/

FINAL ORDER DECLINING PETITION F OR DECLARATORY STAT EMENT

On March 20, 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, Volume 45, Number 56, on March 21, 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 30, 2017, he filed an

employment discrimination complaint with the Florida Commission

on Human Relations (Commission) against Allstate Insurance

Company (Allstate) . He ÐsuedÑ Allstate on January 19, 2018, and

the case was referred to the Division, where it is docketed 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,

and the Commission will enter a final order. Petitioner asserts

that without definitive guidance, he has doubts as to what

constitutes Ðthe essential requirements of lawÑ that will be

considered in the CommissionÓs review of the DOAH recommend ed

order.

On these facts, Petitioner asks that the following question

be answered in a declaratory statement: Petitioner respectfully

requests a declaration on what DOAH defines to be the Ðthe

essential requirements of lawÑ with respect to PetitionerÓs c ase.

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 declara tory statement

regarding an agencyÓs opinion as to the applicability 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 statemen t Ðis a

means for resolving a controversy or answering questions 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

stat ements, and those limitations control here.

Declaratory statements 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. 1 st 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. Serv. 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 appropria te 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 seekin g an

interpretation of a statute as it applies to pending litigation

in his proceeding against Allstate. 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

what another agency will consider to be the essential

requirements of law in the separate administrative proceeding.

Because this question is beyond the scope of a declaratory

statement, PetitionerÓs request for Declaratory Statement is

denied.

DONE AND ORDERED this 16th 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 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 Administra tive Hearings

this 16th day of April , 2019 .

COPIES FURNISHED:

Elias Makere

3709 San Pablo Road South , No. 701

Jacksonville, Florida 32224

(eServed)

Kenneth J. Plante, Esquire

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 go verned by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be revie wed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.