STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD EUGENE HALPIN, ) BLANCHE MOSELEY, FRANCISCO TEJADA, ) JOSE CALDERIN CANTILLO, and )

DALE ALBERT ZYGALDLO, )

)

Petitioners, )

)

vs. ) CASE NO. 91-7705RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

The Respondent has filed a Motion to Dismiss for Lack of Jurisdiction in this case. No response to the motion has been filed by the Petitioners.

The Florida Legislature enacted Chapter 92-166, Laws of Florida, amending Section 120.52(12), Florida Statutes, to exclude inmates from the definition of a "party" for purposes of rule challenge proceedings pursuant to Sections 120.54 and 120.56, Florida Statutes. As pointed out by the Respondent, Chapter 92-166 eliminates the jurisdiction of the Division of Administrative Hearings over inmate rule challenges. The effective date of Chapter 92-166 was July 1, 1992. Consequently, as of July 1, 1992, the Division of Administrative Hearings lacks jurisdiction over inmate rule challenges. At issue is whether the loss of jurisdiction applies to inmate rule challenges filed prior to the effective date of Chapter 92-166.

Based upon the decision of the Supreme Court of Florida in Griffith v.

Florida Parole and Probation Commission, 485 So.2d 818 (Fla. 1986), if jurisdiction is removed from a tribunal, jurisdiction is lost over all cases regardless of when they may have been filed unless the legislature expressly provides otherwise. As stated by the Court:

When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. . . . If the aim is to destroy a tribunal or take away cases from it, there is no basis for finding saving exceptions unless they are made explicit.

485 So.2d at 820. In light of the Griffith decision, the failure of the Legislature to provide that the Division of Administrative Hearings continues to have jurisdiction over inmate rule challenges pending before the Division of Administrative Hearings prior to July 1, 1992, means that jurisdiction over all pending inmate rule challenges has been lost by the Division of Administrative Hearings. This case must, therefore, be dismissed.

Blanche Moseley is not an inmate. Ms. Moseley has, however, attempted to institute a proceeding pursuant to Section 120.57(1), Florida Statutes. Such proceedings may be initiated only by filing a petition with the agency challenged. Ms. Moseley has only joined in the petition filed directly with the Division of Administrative Hearings challenging rules of the Respondent.

Additionally, the allegations concerning Ms. Moseley in the petition and in an amended petition filed in this case are insufficient to support a conclusion that she has standing to institute a proceedings pursuant to Section 120.57 or Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Review and the Amended Petition for Administrative Review in this case are DISMISSED.

DONE and ENTERED this 21st day of July, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1992.

COPIES FURNISHED:

Donald E. Halpin #076151, D-108

Martin Correctional Institution 1150 S.W. Allapattah Road Indian Town, Florida 34956

Blanche Moseley

Route 3, 57 Ralph Smith Road

Wauchula, Florida 33873

Franciso Tejada #400135

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Jose C. Cantillo #401633

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Dale A. Zygadlo

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Claire Dryfuss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Harry K. Singletary, Jr., Sec. Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-007705RX

Orders for Case No: 91-007705RX