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FCHR 101 | PHASE 9: UNDERSTANDING THE RECOMMENDED ORDER

At the end of your DOAH proceeding, you will receive a Recommended Order (“RO”).1

9.0 | Intro

Good News: You will have an opportunity to present evidence, testify, and make a proposal beforehand.

Better News: TBD has copied, re-formatted, and published [almost] all publicly available ROs on this website (linked here).

Features:
✔ Free
✔ Rewarding
o ie, you will score book points by reading/accessing the ROs
• learn more about book points here

✔ Complete
✔ Comprehensive
✔ Interactive
✔ Uninvasive
✓ No Ads
✓ No Contracts
✓ No Signups


Best News: In this walkthrough, TBD will expound on the DOAH Recommended Order.

9.1 | The Laws that Govern DOAH Recommended Orders

§120.52(15) FS gives the definition of a “Recommended Order” (paraphrasing added):2
“(15) “Recommended order” means the official recommendation of an administrative law judge assigned by [DOAH] or of any other duly authorized presiding officer, other than an agency head or member of an agency head, for the final disposition of a proceeding under ss. 120.569 and 120.57.”
§120.57(1)(k) FS outlines what constitutes an RO:
“(k) The presiding officer shall complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order.”
Please take note that there are only three things that constitute an RO:
  1. the Findings of Fact;
  2. the Conclusions of Law; and
  3. the Recommended Disposition
There is value in recognizing this, because DOAH has a custom/practice of adding unwarranted sections to its ROs. Most notably, the “Statement of the Issues” and the “Preliminary Statement”. In fact, these were the two [statutorily-unprescribed] sections that a DOAH ALJ authored his perjury in (read | watch).

Nevertheless, these statutes can help frame your understanding of a Recommended Order.

9.2 | Proposed Order

While those state statutes dictate what a DOAH RO is, there are state regulations that dictate what a Proposed Recommended Order is (often referred to as a “Proposed Order”; and abbreviated as “PO”).

28-106.215 FAC reads as follows:
“All parties may submit proposed findings of fact, conclusions of law, orders, and memoranda on the issues within a time designated by the presiding officer. Unless authorized by the presiding officer, proposed orders shall be limited to 40 pages.”
The PO is – as it sounds – your proposed verdict of the case.3 Typically, you’ll get to submit it after you’ve had your hearing. Usually, your DOAH ALJ will set the deadline for it.

Generally speaking, you’ll model your PO after the DOAH ROs (see this index of DOAH Recommended Orders).

Also, feel free to use this how-to guide:
How to Write a Proposed Order for your DOAH Case
Once you submit your PO you’ll just have to await the RO.

9.3 | Reading your Recommended Order

Open your Recommended Order as soon as you get it, and read it with a critical eye.

Statement of the Issues
Check this section to make sure it:
(a) correctly lists your case type (eg, employment discrimination, etc.); and

(b) correctly lists all of your charged bases (eg, age + sex; etc.)
Keep in mind, this section is not statutorily prescribed (see §120.57(1)(k) FS). Therefore, any lies/falsehoods (which the DOAH ALJ might insert here) are illegitimate.
Preliminary Statement
Check this section to make sure it:
(a) accurately recounts the procedural steps in your case; and

(b) does not omit any material information
Once again, keep in mind that this section is not statutorily prescribed (see §120.57(1)(k) FS). Therefore, any lies/falsehoods/mischaracterizations (which the DOAH ALJ might insert here) are illegitimate.
Findings of Fact
Now that you’ve reached the true part of the RO, prepare to chart the truths and the falsehoods. For starters, take note at how each paragraph is numbered (see §120.57(1)(k) FS).

Then – for each numbered paragraph – do the following:
(a) determine whether the finding is false or true;
i. if the finding is false, then:
1. locate the evidence that proves its falsehood; and

2. take note of (ie, write down):
a. the paragraph number;
b. the falsehood; and
c. the evidence
Keep in mind that the DOAH ALJ has the statutory authority to weigh evidence with grave partiality. For instance, if the majority of the evidence/testimony falls in your favor then the DOAH ALJ can use the remaining [minority of evidence] to rule against you.

Thus, be cognizant of the requirement/doctrine of “competent substantial evidence” (see §120.57(1)(l) FS). The ALJ’s findings of fact are bound by this requirement (which is what you’ll want to highlight during your critical review of this RO section).
Conclusions of Law
The next section of the RO also deserves your critical attention (see §120.57(1)(k) FS). Although it’ll mainly be cookie-cutter material (ie, ‘boilerplate material’; ‘copy & paste material’), you should analyze it for:
(a) irrationality (ie, the ALJ used the wrong statute/case-law); and

(b) inaccuracy (ie, the ALJ mischaracterized case-precedent/legislation);
According to §120.57(1)(l) FS, the RO can be reversed if this section misfires. That misfire occurs if the ALJ misinterprets/misapplies the substantive law (ie, §760 FS). That substantive law, importantly, falls under the FCHR’s jurisdiction. The FCHR, of course, is the audience for this document.
Recommended Disposition
Towards the end of the RO you’ll find the ALJ’s recommended disposition. This is where he/she requests that the FCHR takes his/her desired action (ie, dismissal, approval, etc.). In other words, this is the recommended verdict. So, you’ll just want to double-check to make sure it aligns with the ALJ’s conclusions of law (and findings of fact).
Footnote
Lastly, the RO will [most likely] include a footnote informing you of your subsequent duties. It’ll tell you that you have 15 days to file exceptions to the RO. You’ll send those exceptions (if any) to the FCHR (not to DOAH). DOAH’s job is thereby done, and it’ll relinquish jurisdiction back to the FCHR.

9.4 | TBD’s Recommendations

Stay Vigilant!
DOAH Judges have a history of letting their biases impact civil rights litigants
o For instance: In 2019, Judge Edward Gary Early (a DOAH ALJ) committed perjury to impair a discrimination lawsuit (he also destroyed evidence). [read | watch]
‣ He did so, notably, in order to cover for the preceding judge’s improprieties.
Know the Audience!
• Know that this RO is directed towards the FCHR.
o The DOAH ALJ is asking the FCHR to take this action against/for you
• Knowing the audience will help you formulate a proper response (ie, your exceptions)
How To Write Exceptions to DOAH's Recommended Order
Keep the Big Picture in Mind
• Your DOAH case is governed by the State of Florida (ie, not the federal government of the United States)

• You might still get access to the federal government
o If you have a dual-filed case, then you will be able to enter the federal court system
‣ You’ll accomplish this by Requesting a Substantial Weight Review; which will [almost automatically] give you your ticket to federal court.
How To Request a Substantial Weight Review
• You are still in the executive branch of government
o DOAH is part of the executive branch (not the judicial!)

o The FCHR is also part of the executive branch
• You might still get access to the judicial branch (and a subsequent trial-by-jury):
o If you win your DOAH/FCHR case, then you will be able to enter the state court system (eg, the 4th Judicial Circuit Court [in-and-for] Duval County).

o If you have a dual-filed case, then you will be able to [legally] withstand whatever happens in the DOAH proceeding (and thereby enter the federal judiciary).
‣ You’ll accomplish this by Requesting a Substantial Weight Review; which will [almost automatically] give you your ticket to the federal judiciary.
How To Request a Substantial Weight Review
Know Your Constitutional Rights:
• Remember that the 7th Amendment (US Constitution) guarantees you the opportunity to have a trial-by-jury

• Remember that the 14th Amendment (US Constitution) guarantees you the right to due process (ie, fundamental fairness)

• Remember that the 14th Amendment (US Constitution) guarantees you the right to the equal protections under the law
Know the Seminal Case (ie, McDonnell-Douglas v Green):
• Understand how it is used for adjudicating cases of employment discrimination
Info: The McDonnell-Douglas Framework
• Read the pertinent appellate court opinions here
Know how FCHR Final Orders operate:
• It’ll help you contextualize the RO
FCHR Final Orders
Also, if time permits, begin reading the following provisions:
§120.68 FS

Rule 9.030 Fla. R. App. P.
Rule 9.110 Fla. R. App. P.
Rule 9.120 Fla. R. App. P.
Rule 9.190 Fla. R. App. P.

Rule 2.514 Fla. R. Jud. Admin.

Rule 201 Fed. R. Evid.
They will help you see the path that’s ahead of you.

9.6 | TBD’s Commentary

Congratulations on making it this far. It’s probably taken you roughly 600 days to get to this stage, and you still haven’t seen a courtroom (or a jury). Yet, you’re still fighting!

Well, the fight will continue [as you nudge closer to a judicial proceeding]. And you can get there more smoothly by fortifying your knowledge of the next phase (ie, Phase 10: The Final Order)...
TextBookDiscrimination.com® | © 2024. All Rights Reserved.
Footnotes
1 unless, of course, you terminate your DOAH case (via settlement, withdrawal, etc.) before allowing the ALJ to render a decision.
see this analysis on Case Outcomes
2 note: TBD has paraphrased these statutes in order to minimize ambiguity (ie, DOAH vs FCHR vs Agency). So, please feel free to consult the originating text (here).

3 here's a recent sample (Guinn v. AGR, DOAH 22-3434 (3/20/23)).
Congratulations! You're now booked up on Phase 9 (The Recommended Order) regarding the way the legal process operates within the State of Florida!

Keep this in mind while you litigate your civil rights case in the sunshine state. Also, keep in mind the FCHR's statutory ability to accept bribes.

Plus - at all times - keep the 7th Amendment of the US Constitution (your right to a trial-by-jury) in mind.

As always, please get the justice you deserve.

Sincerely,



www.TextBookDiscrimination.com
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