STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEMUEL L. COLE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3769RP

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL FOR LACK OF JURISDICTION

On June 19, 1991, the Petitioner, Lemuel L. Cole, filed a Petition for Administrative Hearing. The petition was assigned case number 91-3769RP and was assigned to the undersigned by Order of Assignment dated July 3, 1991.

The formal hearing was scheduled for August 5, 1991. A Motion to Change Hearing Date filed by the Respondent was granted without objection from the Petitioner by Order dated July 31, 1991. The formal hearing was rescheduled for September 9, 1991. By Order dated September 3, 1991, the formal hearing was rescheduled for October 17, 1991, upon a Motion to Change Hearing Date filed by the Petitioner.

On October 9, 1991, the Respondent filed a Motion to Dismiss for Lack of Jurisdiction. No response was filed to the Motion by the Petitioner. On October 17, 1991, the Petitioner filed a pleading titled Notice of Defective Certificate of Service. In this pleading, the Petitioner noted that the certificate of service on the copy of the Motion to Dismiss did not have a legible date or signature. Therefore, the Petitioner requested that a copy of the Motion with a proper certificate of service be provided to him.

On October 29, 1991, an Order Concerning Motion to Dismiss for Lack of Jurisdiction was entered. In the October 29, 1991, Order it was noted that, although the Petitioner might be entitled to some additional period of time to respond to the Motion to Dismiss filed by the Respondent, the Petitioner was aware of the nature of the Motion as early as October 15, 1991. It was noted, therefore, that the Petitioner had had ample time to respond to the Motion but had chosen not to.

It was also indicated in the October 29, 1991, that this Final Order of dismissal would be entered granting the Respondent's Motion to Dismiss.

FINDINGS OF FACT

1. On June 19, 1991, the Petitioner, Lemuel L. Cole, filed a Petition for Administrative Hearing.

   
   

2. The Petitioner challenged a proposed amendment to Rule 33-3.004, Florida Administrative Code.

3. The Petitioner's challenge was instituted pursuant to Section 120.54, Florida Statutes.

   
   

4. The notice of the proposed amendment to Rule 33-3.004, Florida Administrative Code, was published in the Florida Administrative Weekly, Volume 17, Number 21, page 2318, on May 24, 1991.

   
   

5. The Petitioner's Petition challenging proposed amendment to Rule 33- 3.004, Florida Administrative Code, was filed twenty-six days after notice of the proposed amendment to the challenged rule was filed.

   
   

   CONCLUSIONS OF LAW

   
   

6. The instant proceeding was instituted pursuant to Section 120.54, Florida Statutes. Section 120.54(4)(b), Florida Statutes, provides, in pertinent part:

   
   

   The request seeking a determination under this subsection shall be in writing and must be filed with the division within 21 days after the date of publication of the notice. [Emphasis added].

   
   

7. The period of time within which a challenge pursuant to Section 120.54, Florida Statutes, to a proposed rule may be instituted has been determined by the courts to be jurisdictional. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). In the Alice P. case the court stated, in relevant part:

   
   

   F.S. 120.54(4)(b) requires that one seeking an administrative determination of the invalidity of a proposed rule must file his petition or request with the Division within fourteen days after the date of publication of the notice required by subsection (1) of

   the statute. That fourteen day period [now 21 days] is jurisdictional. Failure to file a valid petition or request within that fourteen day period is grounds for dismissal upon proper motion directed to jurisdiction. . . .

   [Emphasis added].

   
   

   367 So.2d at 1052-1053.

   
   

8. The Petitioner failed to file his rule challenge within twenty-one days after notice of the proposed rule amendment was published. The Petitioner has not disputed this conclusion. Therefore, the undersigned has no jurisdiction to hear the instant rule challenge.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner's Petition for Administrative Hearing is

DISMISSED.

DONE and ENTERED this 2nd day of December, 1991, 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 2nd day of December, 1991.

COPIES FURNISHED:

Lemuel L. Cole #89324

Glades Correctional Institution

500 Orange Avenue Circle Belle Glade, Florida 33430

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Harry K. Singletary, Jr. Secretary

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

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: 91-003769RP

Orders for Case No: 91-003769RP