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A | Art. I - §21 | ACCESS TO COURTS

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.




B | §760.06 FS | POWERS OF THE COMMISSION

Within the limitations provided by law, the commission shall have the following powers:
(1) To maintain offices in the State of Florida.
(2) To meet and exercise its powers at any place within the state.
(3) To promote the creation of, and to provide continuing technical assistance to, local commissions on human relations and to cooperate with individuals and state, local, and other agencies, both public and private, including agencies of the Federal Government and of other states.
(4) To accept gifts, bequests, grants, or other payments, public or private, to help finance its activities.
(5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by the Florida Civil Rights Act of 1992.
(6) To issue subpoenas for, administer oaths or affirmations to and compel the attendance and testimony of witnesses or to issue subpoenas for and compel the production of books, papers, records, documents, and other evidence pertaining to any investigation or hearing convened pursuant to the powers of the commission. In conducting an investigation, the commission and its investigators shall have access at all reasonable times to premises, records, documents, and other evidence or possible sources of evidence and may examine, record, and copy such materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation. The authority to issue subpoenas and administer oaths may be delegated by the commission, for investigations or hearings, to a commissioner or the executive director. In the case of a refusal to obey a subpoena issued to any person, the commission may make application to any circuit court of this state, which shall have jurisdiction to order the witness to appear before the commission to give testimony and to produce evidence concerning the matter in question. Failure to obey the court’s order may be punished by the court as contempt. If the court enters an order holding a person in contempt or compelling the person to comply with the commission’s order or subpoena, the court shall order the person to pay the commission reasonable expenses, including reasonable attorneys’ fees, accrued by the commission in obtaining the order from the court.
(7) To recommend methods for elimination of discrimination and intergroup tensions and to use its best efforts to secure compliance with its recommendations.
(8) To furnish technical assistance requested by persons to facilitate progress in human relations.
(9) To make or arrange for studies appropriate to effectuate the purposes and policies of the Florida Civil Rights Act of 1992 and to make the results thereof available to the public.
(10) To become a deferral agency for the Federal Government and to comply with the necessary federal regulations to effect the Florida Civil Rights Act of 1992.
(11) To render, at least annually, a comprehensive written report to the Governor and the Legislature. The report may contain recommendations of the commission for legislation or other action to effectuate the purposes and policies of the Florida Civil Rights Act of 1992.
(12) To adopt, promulgate, amend, and rescind rules to effectuate the purposes and policies of the Florida Civil Rights Act of 1992 and govern the proceedings of the commission, in accordance with chapter 120.
(13) To receive complaints and coordinate all activities as required by the Whistle-blower’s Act pursuant to ss. 112.3187-112.31895.
History.—s. 5, ch. 69-287; s. 3, ch. 72-48; s. 1, ch. 75-232; s. 5, ch. 77-341; s. 5, ch. 92-177; s. 4, ch. 92-282; s. 26, ch. 99-333.
Note.—Former ss. 13.251, 23.166.




C | FCHR BRIBERY | PETITION FOR DECLARATORY STATEMENT

STATE OF FLORIDA
FLORIDA COMMISSION ON HUMAN RELATIONS


ELIAS MAKERE, FSA, MAAA
Petitioner



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PETITION FOR DECLARATORY STATEMENT
BEFORE THE FLORIDA COMMISSION ON HUMAN RELATIONS (FCHR)


Petitioner, ELIAS MAKERE FSA MAAA, on this 27th day of August 2020, respectfully petitions the Florida Commission on Human Relations (hereinafter “Agency”) for a declaratory statement on the permissibility of bribes during the investigative phase of a case.


Key Points:
A.) QuestionIs a respondent allowed to bribe the Agency?
B.) PrecedenceFlorida agencies have ruled on similar petitions

Table of Contents:
Context2nd Page
Petition3rd Page
Certificates7th Page

Background:Petitioner’s rights are protected by §760 Florida Statutes
Problem:§760.06(4) indicates that Petitioner’s rights are for sale
Request:The Agency declares whether it accepts bribes


28-105.001 | Florida Administrative Code | Purpose and Use
"A petition for declaratory statement may be used to resolve questions or doubts as to how the [rules] apply to the petitioner’s particular circumstances."

§120.565(2) | Florida Statutes (2018)
"The petition seeking declaratory statement shall state with particularity the petitioner’s set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances"

Art. I. Sec. 21 Florida Constitution | Access to Courts
"The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay."

Precedence
• DH 17-1605-D5-MQA- Case Law (8/30/17)



PETITION

This Petitions is brought pursuant to §120.565 FS and 28-105 (FAC). The basics are as follows:
1CAPTIONPetition for Declaratory Statement Before the FCHR
2PETITIONERElias Makere, FSA, MAAA
Address:3709 San Pablo Rd. S. 701
Jacksonville, FL 32224
Email:justice.actuarial@gmail.com
Phone:904.294.0026
Fax:n/a
3COUNSELn/a
4LAW§760.06(4)
Relevant Excerpt (emphasis added):“Within the limitations provided by law, the commission shall have the following powers:
(4) To accept gifts, bequests, grants, or other payments, public or private, to help finance its activities.”
5IMPACTCourse of Action in Florida (employment/etc.)
Explanation:See “Circumstances” (Page 4)
6SIGNATURE
Elias Makere, Petitioner
7DATE8/27/2020


QUESTION PRESENTED

Petitioner asks the Agency, “Is a respondent allowed to bribe you during the investigative phase of a discrimination case?”
CIRCUMSTANCES

I. Facts
1. Petitioner is a Florida resident.
2. Petitioner is contemplating employment within the state.
3. Petitioner also frequents places of public accommodation in Florida.
4. Petitioner is an actuary; a distinction that uniquely qualifies him to develop insurance products. As such, he is planning an insurance policy that will protect him [and others] from the financial losses associated with discrimination.
5. Petitioner is concerned with (a) in-state entities’ proclivity to discriminate against him; (b) the subsequent losses he would suffer; and (c) Florida’s willingness/motivation to protect his civil rights.

II. Law
6. Chapter 760 of the Florida Statutes provides the legal authority for investigations into discrimination. §760.06 (FS) states the following (emphasis added):
“Powers of the Commission – Within the limitations provided by law, the commission shall have the following powers: ...(5) to receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice...”

7. §760.06(4) continues to state that the Agency can accept gifts/bequests:
“... the [Agency] shall have the [powers to] accept gifts, bequests, grants, or other payments, public or private...”

8. According to Chapter 760, the FCHR has jurisdiction over this matter. Furthermore, it has authority to issue a Final Order pursuant to §120.565 (FS) and Rule 28-105 (FAC).
“... reasoning employed by the agency in support of a declaratory statement may be useful guidance to others who are likely to interact with the agency in similar circumstances.” Chiles v. Dep’t of State, Div. of Elections, 711 So. 2d 151, 154-55 (Fla. 1st DCA 1998)”


III. Application
9. The Agency has a ministerial duty to satisfy §760.06(5) with regards to Petitioner. And contingent upon the Agency’s determination, Petitioner will have access to the court system.1/
10. Pursuant to Art. I. Sec. 21 of the Florida Constitution, Petitioner’s access to the courts cannot be fettered by bribery (emphasis added):
“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.”
- Art. V Sec. 21 Florida Constitution

11. Petitioner relies on the Agency to protect his civil rights. However, as it stands, he has well-founded uncertainty as to the Agency’s motivations. Notably, the controversy between Agency bribery and the constitution.
12. This scenario – where a civilian questions a statutory right – is precisely the scenario that the declaratory statement is designed to cure. See Rosekrantz v Feit, 81 So. 3d 526 (Fla. 3rd DCA 2012).
“The purpose of a declaratory statement is to resolve a controversy or answer questions concerning the applicability of statutes which an administrative agency enforces, adopts, or enters”
- Citizens v. Florida PSC, 164 So.3d 58 (Fla. 1st DCA 2015)

13. Moreover, Petitioner has demonstrated that he has standing for a declaratory statement. In Couch v State, 377 So. 2d 32 (Fla. 1st DCA 1979), the First District Court of Appeals established a two-part test for determining whether an administrative agency (ie, the FCHR) must provide a declaratory statement.
(i) Part One: a movant must show bona fide doubt/dispute
(ii) Part Two: the court must be incapable of resolving the dispute

14. Petitioner satisfied ‘Part One’ by contrasting the disputed statute with the Florida constitution (ie, §760.06(4) vs Art. I. Sec. 21). He also satisfied ‘Part Two’ by virtue of the Agency’s sole jurisdiction over the statute in controversy (ie, §760.06(4)).



Petitioner desires a determination of his rights, duties, and a declaration from the FCHR regarding the permissibility of bribes during investigations of discrimination complaints.


WHEREFORE, pursuant to §120.565 (FS) and Rule 28-105 (FAC), Petitioner respectfully requests a declaration on whether §760.06(4) (FS) allows a respondent to bribe the Agency with gifts/bequests/etc during investigations of discrimination complaints.
Dated this 27th day of August 2020.
Respectfully submitted,
ELIAS MAKERE, FSA, MAAA,
s/ Elias Makere, Pro Se
3709 San Pablo Rd. S # 701
Jacksonville, FL 32224
Tel: (904) 294-0026
E-mail: justice.actuarial@gmail.com


CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 27th day of August 2020, I electronically filed the foregoing with the people on the attached service list.
/s/ Elias Makere


Endnotes

1/ either via §760.11(4)(a) FS, §760.35 (FS), or §120.68 (FS).

SERVICE LIST


Tammy S. Barton, Agency Clerk
tammy.barton@fchr.myflorida.com

Florida Commission on Human Relations
Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
(agency)


Michelle Wilson, Executive Director
michelle.wilson@fchr.myflorida.com

Florida Commission on Human Relations
Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
(agency)








D | FCHR BRIBERY | FINAL ORDER

STATE OF FLORIDA
COMMISSION ON HUMAN RELATIONS

IN RE: SEPTEMBER 1, 2020 PETITION FOR DECLARATORY STATEMENT

ELIAS MAKERE,
Petitioner



________________/

FCHR Order No. 21-029




FINAL ORDER DENYING PETITION FOR DECLARATORY STATEMENT

Preliminary Matters

On September 1, 2020, Elias Makere, Petitioner, filed a Petition for Declaratory Statement with the Florida Commission on Human Relations ("Commission"). Notice of the Petition was published in the Florida Administrative Register, Volume 46, Number 175, September 8, 2020. The Commission has not received a petition to intervene in this action from any other person.
The Commission undertook action to resolve the Petition for Declaratory Statement at a duly noticed public hearing on March 31, 2021. Petitioner seeks, “a declaratory statement on the permissibility of bribes during the investigative phase of a case.” The petition poses the following question to the Commission: “Is a respondent allowed to bribe you during the investigative phase of a discrimination case?” Petitioner cites to section 760.06(4), Florida Statutes (2020). Section 760.06(4), Florida Statutes (2020) states, in pertinent part, “Within the limitations provided by law, the commission shall have the following powers . . . [t]o accept gifts, bequests, grants, or other payments, public or private, to help finance its activities.”
"The purpose of a declaratory statement is to resolve a controversy or answer questions concerning the applicability of statutes which an administrative agency enforces, adopts, or enters". Citizens of the State ex rel. Office of Public Counsel v. Florida Public Service Commission, 164 So.3d 58, 59 (Fla. 1st DCA 2015).

Comments

The Commission received two comments from Petitioner. The first comment, citing to two sources, states two separate definitions for the term “bribe” and concludes by requesting the Commission to apply the “textbook definitions of ‘bribe/bribery’” in responding to the petition for declaratory statement. The second comment from Petitioner essentially states that Petitioner is not to requesting the Commission to interpret the Florida Constitution.

Conclusions of Law

The Florida Administrative Procedure Act states, "[a]ny substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner's particular set of circumstances." Section 120.565(1), Florida Statutes (2020). It also states, "[t]he petition seeking a declaratory statement shall state with particularity the petitioner's set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances." Section 120.565(2), Florida Statutes (2020). When acting on the petition, the agency may rely on the statements of fact set out in the petition without taking any position with regard to the validity of the facts. See Florida Administrative Code, R. 28-105.003.
A declaratory statement is a device for resolving controversies, questions, or doubts regarding the applicability of statutes, rules, and orders within the agency's authority to a petitioner's circumstances. See Florida Administrative Code, R. 28-105.001. Use of this device, however, is for a particular purpose and is to be used for that limited purpose.
The Administrative Procedure Act broadens public access to agency activities. Fla. Home Builders Assoc. v. Dept. of Labor & Employment Sec., 412 So. 2d 351, 352 (Fla. 1982). However, Petitioner must allege facts showing that there is a bona fide, actual, present and practical need for a declaration. See Okaloosa Island Leaseholders Association v. Okaloosa Island Authority, 308 So. 2 d 120 (Fla. 1st Dist. 1975). Given the fact that the words “[w]ithin the limitations provided by law [emphasis added]” plainly appear within 760.06(4), Florida Statute, there is no doubt to resolve, and there is no controversy to address with regard to whether respondents are permitted to bribe the Commission. In short, there is no demonstrated need for a declaration.

Denial of Petition

The Petition for Declaratory Statement is DENIED, because Petitioner does not meet the requirement of alleging facts that show a bona fide, actual, present and practical need for a declaration. Section 760.06(4), Florida Statute, (2020) does not indicate more than one interpretation of the provision in question. Accordingly, the Petition for Declaratory Statement is DENIED.
Petitioner has the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.
DONE AND ORDERED this 31 day of March, 2021
for the FLORIDA COMMISSION ON HUMAN RELATIONS

Commissioner Mario Garza, Panel Chairperson;
Commissioner Libby Farmer; and
Commissioner Larry Hart




Filed this 31 day of March, 2021 in Tallahassee, Florida.
Clerk
Florida Commission on Human Relations
4075 Esplanade Way, Room 110
Tallahassee, FL 32399
(850) 488-7082


Copies furnished to:

Elias Makere
3709 San Pablo Rd. S #701
Jacksonville, Florida 32224



John Scotese, Legal Advisor for Commission Panel

I HEREBY CERTIFY that copy of the foregoing has been mailed. to the above listed addresses this 31 day of March, 2021
By:
Clerk of the Commission
Florida Commission on Human Relations




E | INITIAL BRIEF

STATE OF FLORIDA
FIRST DISTRICT COURT OF APPEALS


IN RE: ELIAS MAKERE, FSA, MAAA
Appellant/Petitioner,

v.

FLORIDA COMMISSION ON HUMAN RELATIONS, THE
Appellee/Respondent
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1DCA Case No: 1D12-1312
FCHR Case No: n/a
Order No: 21-029
INITIAL BRIEF


/s/ Elias Makere
ELIAS MAKERE, FSA, MAAA,
Appellant
3709 San Pablo Rd. S # 701
Jacksonville, FL 32224
P: (904) 294-0026
E: justice.actuarial@gmail.com
W: TextBookDiscrimination.com
   Get Booked Up on Justice!

Appellant’s Brief


♪♫♪
----


The agency takes money but says that it’s not a thing/
Likening it to the honey in the empire of a queen/

When asked about it, the agency heard nothing yet said it heard everything/
Well, this particular being is susceptible to its sting/

So, may this Court direct the agency beneath/
To hold a hearing on the allergic’s preemptive inquiry//


----
♪♫♪
bee

TABLE OF CONTENTS

Preamblei
Table of Contentsii
Table of Authoritiesiii
Prefaceiv


Points on Appeal1
Statement of the Case1
Statement of the Facts2
Issue I (LT Erred by Failing to Properly Notify)3
A.Summary of Argument5
B.Standard of Review5
C.Argument5
Issue II (LT Erred by Failing to Hold a Hearing)5
A.Summary of Argument5
B.Standard of Review5
C.Argument5
Conclusion8


Certificate of Compliance-
Certificate of Service-


TABLE OF AUTHORITIES

CASES
Chiles v. Dept of State
711 So. 2d 151 (Fla. 1st DCA 1998)
9
Cooper v Leatherman
532 US 424
7
Dusseau v Metro Dade County
794 So. 2d 1270 (Fla. 2001)
9
FL Optometric Ass’n v. FL Dept of Pro. Reg.
567 So. 2d 928 (Fla. 1st DCA 1990)
9,15
Gopman v. Dept of Education
908 So. 2d 1118 (Fla. 1st DCA 2005)
10,15,16,17
Hampton v United States
425 US 484 (1976)
11
Keys Citizens v Florida Keys
795 So. 2d 940 (Fla. 2001)
8
McDonald v. Dept of Banking & Finance
346 So. 2d 569 (Fla. 1st DCA 1977)
14
Pettry v Pettry
706 So. 2d 107 (Fla. 5th DCA 1998)
10
Schrimsher v Palm Beach
694 So. 2d 856 (Fla. 4th DCA 1997)
11
Wilson v Pest Control
199 So. 2d 777 (Fla. 4th DCA 1967)
8
Withers v Blomberg
41 So. 3d 398 (Fla. 2d DCA 2010)
14


CONSTITUTIONS
Art. I, §21 Fla. Const.2


STATUTES
§120.565 FS2,5
§120.57 FS10,14,15,17
§120.68 FS7,11,14
§760 FS3
§760.06 FS17


REGULATIONS
28-105 FAC2
28-105.0024 FAC16
28-106.111 FAC15


RULES
9.100 Fla. R. App. P.1


REGISTERS
46 FAR 1752,4
47 FAR 473,4
47 FAR 643,4


PREFACE

Appellant, Elias Makere, was the Petitioner in the lower tribunal; and will be referred to in this brief as Appellant. Appellee, the Florida Commission on Human Relations, was the lower tribunal itself; and will be referred to as Appellee.

The following references will be used in this brief:
[A___]Appendix1/

The following abbreviations will also be used:
FACFlorida Administrative Code
FARFlorida Administrative Register
FCHRFlorida Commission on Human Relations
FSFlorida Statute
LTLower Tribunal

All statutory and rule references are made to their 2020 versions (unless otherwise indicated).




POINTS ON APPEAL

I. Whether Appellee erred by not providing a clear point of entry into the proceedings below.
II. Whether Appellee erred by not holding a hearing on the material facts of Appellant’s petition.

I. STATEMENT OF THE CASE

1. This is an appeal from a final order of the Florida Commission on Human Relations. Appellee declined to issue a declaratory statement on Appellant’s petition.

II. STATEMENT OF THE FACTS

2. On September 1, 2020, Petitioner filed his Petition for Declaratory Statement Before the FCHR (“The Inquiry”) with Appellee. [A0003]
3. Therein, he cited his constitutional rights (Art. I. §21 Fla. Const.), his statutory rights (§760 FS), and the regulations aimed at reconciling doubts about the two (Chapter 28-105 FAC). [A0005]-[A0013]
4. Soon thereafter, Appellee published receipt of The Inquiry in the September 8th issue of the Florida Administrative Register (46 FAR 175). [A0014]
5. Out-of-step with §120.565(3) FS, the FCHR failed to enter an order on The Inquiry within the mandatory 90-day timeframe.
6. So, on December 18, 2020, Appellant petitioned this Court for a Writ of Mandamus (Rule 9.100 Fla. R. App. P.). Asking it to command Appellee to complete its ministerial duty (regarding The Inquiry). Appellee – at the time – was several weeks late; and had made no indications it would even respond. [A0015]
7. On March 10, 2021 – and after this Court’s intervention - Appellee notified the public (via 47 FAR 47) that March 31st 2021 marked the date in which it would vote on The Inquiry. [A0037]
8. Appellant thereby submitted two comments in support of his petition.
a. The first (filed on March 12, 2021), gave the definition for the term “bribe”. [A0040] b. The second (filed on March 17, 2021), corrected a typo and provided clarification. [A0046]

9. On March 19, 2021, Appellant also filed a request for a hearing. [A0052]. He followed up several times regarding the hearing – to no avail [A0024]-[A0036].
10. On March 31, 2021, Appellee voted on The Inquiry, and entered its Final Order Denying Petition for Declaratory Statement (“FO”). [A0058]
a. Publishing notice in 47 FAR 64. [A0062]
This appeal began soon thereafter.


Procedural Analysis

11. None of Appellee’s FAR notices outlined how a hearing could commence on The Inquiry.
12. The first notice read, in pertinent part, as follows:
"The petition seeks the agency’s opinion as to the applicability of subsection 760.06(4), Fla. Stat. as it applies to the petitioner. Petitioner asks whether a respondent is allowed to bribe the Florida Commission on Human Relations during the investigative phase of a discrimination case. A copy of the Petition for Declaratory Statement may be obtained by contacting: Tammy Barton, Clerk of the Commission, tammy.barton@fchr.myflorida. com, 4075 Esplanade Way, Suite 110, Tallahassee, FL 32399. Please refer all comments to: Tammy Barton, Clerk of the Commission, tammy.barton@fchr.myflorida.com, 4075 Esplanade Way, Suite 110, Tallahassee, FL 32399."
- 46 FAR 175 at 14 | 9/8/2020

13. The second notice read, in pertinent part, as follows:
"The purpose of the meeting is for the Commission to vote on the disposition of cases, and a petition for a declaratory statement, pending before it for decision. A copy of the agenda may be obtained by contacting: John Scotese at (850)907-6823 or John.Scotese@fchr.myflorida.com."
- 47 FAR 47 at 32 | 3/10/2021

14. The third & final notice read, in pertinent part, as follows:
"Petitioner did not meet the requirement of alleging facts that show a bona fide, actual, present and practical need for a declaration. Subsection 760.06(4), Fla. Stat., (2020) does not indicate more than one interpretation of the provision in question. A copy of the Order Declining of the Petition for Declaratory Statement may be obtained by contacting: Florida Commission on Human Relations, c/o Tammy Barton, Clerk of the Commission, 4075 esplanade Way, Suite 110, Tallahassee, FL 32399, (850)907-6788, tammy.barton@fchr. myflorida.com."
- 47 FAR 64 at 32 | 4/2/2021

15. Pursuant to Rule 28-105.0024(6) FAC, Appellee was required to describe how the public could request hearings. Yet, Appellee’s first notice failed to do so.
a. Instead, it only provided the information delineated by subsections (1)-(5) of the rule.
Appellee’s two remaining notices fell even further below the mark prescribed by the regulation.

16. Moreover, Appellee’s FO made no mention of Appellant’s hearing request. Appellee also prohibited communication from Appellant (or the public) during its March 31st vote tally (¶10, supra) (highlights added):
"The purpose of the March 31 deliberation is for a Commission Panel to vote on the Commission’s disposition of cases and your petition for declaratory statement, and as stated in the Commission’s March 11, 2021 Notice, no oral argument is permitted.
Sincerely,
John Scotese"

- [A0027] | Appellee Email to Appellant | 3/18/2021









ISSUE I


APPELLEE ERRED BY FAILING TO CREATE A
‘CLEAR POINT OF ENTRY’
INTO THE PROCEEDINGS









SUMMARY OF ARGUMENT I

17. Appellee departed from the essential requirements of law when it decided not to provide a clear point of entry into the proceedings below. An act that violated Appellant's due process rights. Resulting in an error which this Court has the power to fix (pursuant to §120.68(7)).
STANDARD OF REVIEW I

18. The standard of review for constitutional violations (like Issue I) is de novo (highlights added):
"Cooper's petition for a writ of certiorari asked us to decide whether the Court of Appeals reviewed the constitutionality of the punitive damages award under the correct standard and also whether the award violated the criteria we articulated in Gore. We granted the petition to resolve confusion among the Courts of Appeals on the first question.[4] 531 U. S. 923 (2000). We now conclude that the constitutional issue merits de novo review."
- Cooper v. Leatherman, 532 US 424

ARGUMENT I


A. Due Process Definition

19. Florida's appellate courts define due process as follows (highlights added):
"The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, §9, Fla. Const. The Fifth Amendment to the United States Constitution guarantees the same. As this Court explained in Department of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla.1991), "[p]rocedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue." Procedural due process requires both fair notice and a real opportunity to be heard."
- Keys Citizens v Florida Keys, 795 So.2d 940 (Fla. 2001)


B. Administrative Due Process

20. Administrative agencies (eg, Appellee), must afford all parties due process (citations omitted):
"The Administrative Procedure Act is intended to afford due process to parties whose legal rights, duties, privileges or immunities may be determined by administrative action on agency level."
- Wilson v Pest Control, 199 So. 2d 777 (Fla. 4th DCA 1967)

Appellate case law further emphasizes this requirement:
"[Due process] is specifically required by Chapter 120... ...[it sets] the minimum requirements of law applicable to the commission's actions in this case. Its failure to apply and faithfully adhere to these administrative principles constituted a departure from the essential requirements of law."
- Dusseau v Metro Dade County, 794 So. 2d 1270 (Fla. 2001)


C. Appellant’s Due Process Rights

21. Appellee was required to give notice of The Inquiry:
"Section 120.565(2), Florida Statutes (Supp.1996), requires the agency to give notice of the filing of each petition for declaratory statement in the Florida Administrative Law Weekly."
- Chiles v. Dept of State, 711 So. 2d 151 (Fla. 1st DCA 1998)


22. That required notice needed to follow the rules. "Since no statute or rule superseded Rule 28-5.111 in the declaratory statement proceedings below, the Board was required to comply with the requirements of Rule 28-5.111 in giving notice of the declaratory statement proceedings. The published notice of the declaratory statement petition obviously failed to comply with Rule 28-5.111, in that it neither specified the time limit for requesting a hearing, nor referenced the relevant procedural rules. Further, even if the published notice of the petition for declaratory statement had complied with Rule 28-5.111, the optometrists' petition would have been timely, because it was filed just eleven days following the April 21, 1989 publication."
- FL Optometric v. DPR, 567 So. 2d 928 (Fla. 1st DCA 1990)
23. Those rules, as previously noted (¶15 supra), stated that Appellee needed to notify the public of the clear point of entry (highlights added): "Yet the agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under Section 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57."
- Gopman v. DOE, 908 So. 2d 1118 (Fla. 1st DCA 2005)
24. Similarly, Appellant had a right to be notified of an opportunity to be heard (highlights added, citations omitted): "Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, and the denial of this right is fundamental error... Perhaps the additional witnesses would not have impressed the court, but the husband had the right to present them and to argue his case at the conclusion of all the testimony. Denial of those rights was harmful error."
- Pettry v Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998)
25. Altogether, Appellee had a well-established duty to notify Appellant of a clear point of entry, and Appellant had a right to receive that notification. Appellee’s dereliction amounted to a violation of Appellant’s due process rights.

D. Solution: Reversal & Remand

26. Since Appellee violated Appellant’s constitutional right to due process, this Court is compelled to reverse the error below. The analysis goes as follows. 27. First, due process equates to “fundamental fairness”:
"Due Process in essence means fundamental fairness..."
- Hampton v United States, 425 US 484, 494 (1976)
28. Second, this appeal was taken under §120.68 FS; a statute which deals with fundamental fairness (highlights added):
"Section 120.68, Florida Statutes (Supp.1996), provides the parameters within which we review the School Board's action. According to the statute, we must separately address issues of agency procedure, interpretations of law, and determinations of fact. § 120.68(7), Fla. Stat. (Supp.1996). From a procedural standpoint, the inquiry is whether "the fairness of the proceedings or the correctness of the [agency] action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." § 120.68(7)(c), Fla. Stat. (Supp.1996)."
- Schrimsher v Palm Beach, 694 So. 2d 856 (Fla. 4th DCA 1997)
29. Material errors on fundamental fairness require reversal:
"Reversal is mandated when a procedural error is material to the fairness of the proceedings."
- Schrimsher v Palm Beach, 694 So. 2d 856 (Fla. 4th DCA 1997)
CONCLUSION I

30. Thus, since Appellee abandoned its duty to notify Appellant of the clear point of entry, it committed a material error violative of Appellant’s due process rights. That error requires reversal.









ISSUE II


APPELLEE ERRED BY NOT HOLDING THE HEARING
THAT APPELLANT REQUESTED









SUMMARY OF ARGUMENT II

31. Appellee erred and departed from the essential requirements of law. It did so by wrongfully disregarding Appellant’s formal request for a hearing. A material error that violated Appellant's due process rights; one which this Court can amend (pursuant to §120.68(7)(e)4).
STANDARD OF REVIEW II

32. Similar to Issue I, the standard of review for Issue II is also de novo (highlights added; citations omitted):
"Our review is governed by section 120.68(7)(c), Florida Statutes (2009), which provides that a reviewing court may set aside agency action when it finds that the action is dependent on a material error in procedure. Guided by this standard, as well as by the concept of procedural due process."
- Withers v Blomberg, 41 So. 3d 398, 400 (Fla. 2d DCA 2010)

ARGUMENT II


A. Appellant’s Right to a Hearing

33. In addition to Appellant’s right to be notified [of an opportunity to be heard] was Appellant’s right to be heard:
"A party whose substantial interests are or will be affected by agency action is entitled to a Section 120.57 hearing."
- McDonald v. DBF, 346 So. 2d 569 (1st DCA 1977)

34. That right can only be defeated by waiver:
"Consequently, the right of persons whose substantial interests may be affected by such agency decisions are not waived, unless they have failed to petition for a 120.57 hearing within the period specified following notice given under the applicable rule."
- FL Optometric v. DPR, 567 So. 2d 928 (Fla. 1st DCA 1990)

35. Rule 28-106.111(2) FAC states that the “period specified” is twenty-one (21) days:
"(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision."
- 28-106.111(2) FAC

36. In a free-form proceeding like the one below “written notice of the decision” comes in the form of a cognizable update:
"In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57."
- Gopman v. DOE, 908 So. 2d 1118 (Fla. 1st DCA 2005)

37. As the record shows, Appellant never waived his right to a hearing. Just the opposite, in fact; Appellant exercised that right by requesting a hearing (¶9, supra).
a. He did so just nine (9) days after Appellee published notice of its upcoming voting date (ie, well-within the 21-day window prescribed by regulation).

38. Thus, the material points of this issue are clear: Appellant had a right to a hearing, he exercised that right, and therefore he was entitled to a hearing.

B. Appellee Erred by Not Holding a Hearing on ‘The Inquiry’

39. In Gopman, this Court further explained that failing to hold a hearing on a Petition for Declaratory Statement amounts to error:
"DOE erred in failing to afford Mr. Gopman a formal administrative hearing at which duly sworn witnesses and other evidence could have established the material facts in dispute between the parties."
- Gopman v. DOE, 908 So. 2d 1118 (Fla. 1st DCA 2005)

40. Accordingly, Appellant’s presentation of facts would have nullified the basis of Appellee’s FO denial (citations omitted):
"At a formal hearing, too, DOE could have articulated and elucidated the non-rule policy it deems determinative here. ("The principal objective of many APA processes is to expose policy errors which have become habitual in an agency's free-form routine and to subject agency heads `to the sobering realization [that] their policies lack convincing wisdom....'"
- Gopman v. DOE, 908 So. 2d 1118 (Fla. 1st DCA 2005)

For instance, Appellant could have presented statistical facts surrounding Appellee’s pattern & practice. Or, he could have shared case law regarding the impropriety of government bribes (ie, The Inquiry’s basis). Appellant could have even disclosed his circumstantial facts on the asylum-like outcomes of Appellee’s questionable statute (§760.06(4) FS).


C. Solution: Reversal & Remand

41. Similar to Issue I, the proper resolution to this due process error is reversal & remand. Doing so with the explicit instruction to permit a formal hearing on The Inquiry:
"On remand, DOE should refer this matter to the Division of Administrative Hearings unless the Florida Board of Education (or a member of the Board) decides to hear the case, see § 120.57(1)(a), Fla. Stat. (2004) ("Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof."), given the disputes of material fact that have been alleged. A formal administrative hearing will also afford a full opportunity to test the agency's policies. In section 120.57(1) proceedings, the hearing officer can "independently serve[] the public interest by providing a forum to expose, inform and challenge agency policy and discretion." State ex rel. Dep't of Gen. Servs. v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977)."
- Gopman v. DOE, 908 So. 2d 1118 (Fla. 1st DCA 2005)

CONCLUSION II

42. Thus, since Appellee ignored Appellant’s request for a formal hearing on The Inquiry, this Court is empowered to (a) reverse the FO; and (b) remand for a hearing on The Inquiry.

♪♫♪
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Now, that what’s here is clear, may this higher Court merely steer this inquiry down towards the hearing ears.








----
♪♫♪

CONCLUSION

WHEREFORE, based on these two violations of due process, Appellant asks this Court to reverse and remand the lower tribunal’s Final Order.
Dated this 11th day of August 2021.
Respectfully submitted,
/s/ Elias Makere, Appellant
ELIAS MAKERE, FSA, MAAA,
3709 San Pablo Rd. S # 701
Jacksonville, FL 32224
P: (904) 294-0026
E: justice.actuarial@gmail.com
W: TextBookDiscrimination.com
   Get Booked Up on Justice!



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of August 2021, I electronically filed the foregoing with the Clerk of Courts by using the Florida Courts E-filing Portal which will send a notice of electronic filing to the people on the attached service list.

SERVICE LIST


Tammy S. Barton, Agency Clerk
tammy.barton@fchr.myflorida.com

Florida Commission on Human Relations
Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
(agency)


Cheyanne M. Costilla, General Counsel
Cheyanne.Costilla@FCHR.MyFlorida.com

Florida Commission on Human Relations
Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
(agency)



CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

/s/ Elias Makere


Endnotes

1/[A0120] means page 120 from the appendix.


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Sincerely,



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