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FCHR 101 | PHASE 10: UNDERSTANDING THE FCHR FINAL ORDER

Once the DOAH ALJ closes your DOAH case (via its Recommended Order – see Phase 9) you will be primed for the FCHR Final Order (“FO”).

10.0 | Intro

Good News: You will have an opportunity to impact the FO by correcting the RO’s errors/omissions.

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

Features:
✔ Free
✔ Rewarding
o ie, you will score book points by reading/accessing the FOs
• 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 FCHR Final Order.

10.1 | The Laws that Govern FCHR Final Orders

§120.52(7) FS defines what a Final Order is (paraphrasing added):1
“(7) “Final order” means a written final decision which results from a proceeding under s. 120.56, s. 120.565, s. 120.569, s. 120.57, s. 120.573, or s. 120.574 which is not a rule, and which is not excepted from the definition of a rule, and which has been filed with the [FCHR] clerk, and includes final agency actions which are affirmative, negative, injunctive, or declaratory in form. A final order includes all materials explicitly adopted in it. The clerk shall indicate the date of filing on the order.”
§120.569(2)(l) FS states that the FCHR must render its FO within 90 days of receiving the DOAH RO (paraphrasing added):
“(l) Unless the time period is waived or extended with the consent of all parties, the final order in a proceeding which affects substantial interests must be in writing and include findings of fact, if any, and conclusions of law separately stated, and it must be rendered within 90 days:

... 2. After a recommended order is submitted to the [FCHR] and mailed to all parties, if the hearing is conducted by an administrative law judge;...”
§120.57(1)(f) FS delineates what constitutes the “entire record”:
“(f) The record in a case governed by this subsection shall consist only of:

1. All notices, pleadings, motions, and intermediate rulings.

2. Evidence admitted.

3. Those matters officially recognized.

4. Proffers of proof and objections and rulings thereon.

5. Proposed findings and exceptions.

6. Any decision, opinion, order, or report by the presiding officer.

7. All staff memoranda or data submitted to the presiding officer during the hearing or prior to its disposition, after notice of the submission to all parties, except communications by advisory staff as permitted under s. 120.66(1), if such communications are public records.

8. All matters placed on the record after an ex parte communication.

9. The official transcript.”
§120.57(1)(l) FS outlines the FO’s purpose (paraphrasing added):
“(l) The [FCHR] may adopt the recommended order as the final order of the [FCHR]. The [FCHR] in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the [FCHR] must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The [FCHR] may not reject or modify the findings of fact unless the [FCHR] first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.”
§760.11 FS describes – in more pertinent form – what this Final Order stage entails (paraphrasing added):
“(6)... If the administrative law judge, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay. Within 90 days of the date the recommended or proposed order is rendered, the [FCHR] shall issue a final order by adopting, rejecting, or modifying the recommended order as provided under ss. 120.569 and 120.57...

(7)... [If] the final order issued by the [FCHR] determines that a violation of the Florida Civil Rights Act of 1992 has occurred, the aggrieved person may bring, within 1 year of the date of the final order, a civil action under subsection (5) as if there has been a reasonable cause determination or accept the affirmative relief offered by the commission, but not both...

(13) Final orders of the [FCHR] are subject to judicial review pursuant to s. 120.68... Unless specifically ordered by the court, the commencement of an appeal does not suspend or stay the order of the [FCHR], except as provided in the Rules of Appellate Procedure.”
Please take note that there are three elements of the RO that the FO can target for rejection/modification. Briefly put, the FO can reject/modify:
1. the RO’s findings of fact (which are not based on “competent substantial evidence”);

2. the RO’s conclusions of law that pertain to §760 FS (ie, the FCHR’s “substantive jurisdiction” – see §120.57(1)(l) FS); and/or

3. the actions [of/from/at DOAH] that did not comport with the “essential requirements of law” (ie, Due Process, Equal Protection, etc.)
In short, these statutes can help you understand how to approach your upcoming Final Order. There are regulations, notably, that further expound on FCHR FOs.

10.2 | The Rules & Regulations that Govern your FCHR Final Order

60Y-4.029 FAC proclaims what the FCHR will do to produce its Final Order (paraphrasing added):1
“After the issuance of the hearing officer’s recommended order, if any, and following the filing of exceptions, briefs and presentation of oral argument, if any, the [FCHR] shall consider the record and issue a written decision resolving the issues before it.”
60Y-4.028 FAC outlines what material the FCHR will consider when producing its FO (paraphrasing added):
“(1) When a recommended order is before the [FCHR], a party filing an exception or brief may also request oral argument.”
28-106.217 FAC instructs you on filing exceptions to your DOAH RO (paraphrasing added):
“(1) Parties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the [FCHR] within 15 days of entry of the recommended order... Exceptions shall identify the disputed portion of the recommended order by page number or paragraph, shall identify the legal basis for the exception, and shall include any appropriate and specific citations to the record...

(3) Any party may file responses to another party’s exceptions within 10 days from the date the exceptions were filed with the [FCHR].”
These state regulations highlight three things:
(1) You can file exceptions to the RO

(2) You can request oral argument on the FO; and

(3) The FCHR conducts a public meeting on your FO.

10.3 | Filing Exceptions to the Final Order

As the statewide provisions have foretold (ie, §120.57(1), Chapter 60Y-4 FAC, etc.), you can impact the FCHR Final Order by filing exceptions to the DOAH Recommended Order (“RO”).

When you previously read that RO, you probably took well-trained notes (see Phase 9.3: Reading the Recommended Order). Now, you can put those notes into action by writing your Exceptions.

Simply speaking, you will want to articulate the three elements which the FO targets; namely:
1. the RO’s Findings of Fact;

2. the RO’s Conclusions of Law; and/or

3. the DOAH proceeding’s compliance with the Essential Requirements of Law.
As you are well-aware by now, the FCHR will be looking for specific types of legal attacks (see 10.2; §120.57(1)(l) FS; etc.). Nevertheless, here is a how-to guide for drafting your document:
How To Write Exceptions to DOAH's Recommended Order

10.4 | Requesting Oral Argument on the FCHR Final Order

Also – and as the FCHR regulations have foretold (ie, 60Y-4.028 FAC, etc.) – you can impact the FCHR Final Order by providing oral argument.

First, you’ll have to ask the FCHR to allow you to provide oral argument. Doing so via motion. To help you with that process, TBD has created the following how-to guide:
How-To Request Oral Argument for your FCHR Final Order
Please note, however, that the FCHR has habituated a [reinforced] pattern & practice of shunning oral argument. Since June 23, 2021, the agency has prevented litigants from making oral argument (or adding public commentary) at its case disposition (ie, Final Order) meetings. Nevertheless, whether the FCHR grants your request [for oral argument] or not, the agency will still hold a case disposition meeting.

10.5 | The Case Disposition Meeting

A quorum of FCHR Commissioners will vote on your final order. This quorum must consist of three people (see §760.03(5) FS).

Please take note that your FO will be drafted by an FCHR staff attorney (eg, Stanley Gorsica, etc.). This staff attorney – as you might know by now – is neither an appointed official nor an elected official (see 6.5: The Who). Instead, he/she is just someone who wants to get involved in other people’s business (without their consent/approval). Whether this individual is helping (or hurting) you (ie, the unwitting public) is a major point of concern.

Next, please take note that the FCHR will notify you of this meeting ahead of time (typically, via postal mail). Therefore, make sure that the FCHR still has your correct address (and stay vigilant, because the agency has previously sent litigants’ crucial documents to the wrong people – read).

The FCHR will also publish notice of your case disposition meeting in two other places:
1. the Florida Administrative Register (see 28-102.001 FAC); and

2. the FCHR’s website (FCHR.MyFlorida.com)
TBD has copied those public notices for your convenience. Contained therein, you’ll find audio recordings of some of the recent case disposition meetings. Listening to them might help you know what to expect.

10.6 | Analysis on Final Order Voting

These freely published notices will also link you to TBD’s Analysis on FCHR Final Order Voting. An analysis which reveals that FCHR commissioners rubber stamp whatever the FCHR staff attorney writes. Statistically/Historically speaking, there’s a 98% chance that the commissioners will approve the staff attorney’s proffered decision. Statistics also show, that 95% of the staff attorneys’ submissions are approvals of the preceding DOAH Recommended Order (even in the face of clear impropriety/illegality – watch, read).

10.7 | TBD’s Recommendations

Stay Vigilant!
• The FCHR Final Order might disregard fact in exchange for its desired result (ie, covering up the defendant’s discrimination)
o In 2019, a two-commissioner panel ratified a judge’s perjury (watch, read).
‣ That judge (ie, Edward Gary Early) committed perjury to impair a discrimination lawsuit (he also destroyed evidence).

‣ Moreover, the two-commissioner panel violated state law (which requires a minimum of 3 commissioners to conduct official state business)
• See §760.03(5) FS
• Make sure the FCHR has your contact information
o In the past, the state agency has sent crucial documents to the wrong people (see this example)
• Beware that the FCHR has a statutory ability to accept bribes

• Beware that the FCHR’s agenda is centered around saving civil rights defendants “millions” of dollars (see Page 8 of the 2019 Annual Report)
Keep the Big Picture in Mind
• Your FCHR 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 Both DOAH and the FCHR are part of the executive branch (not the judicial!)
• You might still get access to the judicial branch (and a subsequent trial-by-jury):
o If you win your 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
Prepare to Request a Substantial Weight Review:
• Dual-Filed Cases are subject to the EEOC’s review
o You will have to act fast, though
‣ The guiding regulation (ie, 29 CFR 1601.76) gives you only 15 days to file (and you must do so via postal mail).
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 write your exceptions
How To Write Exceptions to DOAH's Recommended Order
• It’ll help you provide strong oral argument
How-To Request Oral Argument for your FCHR Final Order
• Indexed Here:
Index of 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.
They will help you see the path that’s ahead of you.

10.8 | TBD’s Commentary

Mature Content

Hover to Reveal
• Keep in mind that – at this point – the FCHR Commissioners are the only appointed officials whom you’ve dealt with on your case (the rest have been unappointed/unelected individuals)
o Yet – based on TBD’s experience – most of them operate with ignorance. Which means that they’re highly susceptible to riding the traincar that’ll railroad you.

o Everyone else (ie, the clerks, the investigators, the executive directors, the judges, the staff attorneys, etc) are unelected/un-appointed individuals whom you’ve [probably] never sought.
TBD has witnessed these individuals (especially the judges/clerks/directors lie, mislead, and cover for other people’s transgressions/lawlessness). Then – when confronted with their improprieties – TBD has witnessed them retreat (run & hide).
o So, please beware that the actual commission has been overrun (and undermined) by a group of lawless individuals.
Congratulations! You’ve made it even further, and you’re inching closer to a ‘court of competent jurisdiction’!

Of course, your feet will have to travel many more inches [to get you to your destination]. So, get ready to step into the shoes of your predecessors as you learn about the next phase(s) (ie, Phase A-1: Substantial Weight Review and/or Phase B-1: State Appeal)...
TextBookDiscrimination.com® | © 2024. All Rights Reserved.
Footnotes
1 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).

Congratulations! You're now booked up on Phase 10 (The Final 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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