by Gar Chisenhall
In the last edition of The Florida Bar Journal, I discussed the elements of a facially sufficient emergency order and explained how agency attorneys can draft emergency orders that withstand judicial review. This article assists private attorneys defending licensees who are the subject of those orders. The information set forth below describes 1) the elements of a facially sufficient emergency order; 2) the procedural aspects of challenging an emergency order; 3) an appellate court’s scope of review; and 4) methods for effectively challenging emergency orders.1
Elements of a Facially Sufficient Emergency Order
To challenge an emergency order successfully, one must be familiar with the elements present in every facially sufficient emergency order. An emergency order must convincingly demonstrate 1) the existence of an immediate serious danger to the public health, safety, or welfare; 2) that the agency in question took only that action necessary to protect the public (i.e., the remedy was narrowly tailored to address the harm); and 3) that the licensee was treated fairly.2 If any of those elements are absent, the emergency order will not withstand judicial review by an appellate court.3
With regard to the first element, the case law emphasizes that the public must be in “immediate” danger.4 “General conclusory predictions of harm are not sufficient to support the issuance of an emergency suspension order.”5 If an agency fails to issue an emergency order promptly after learning of the allegedly emergent situation, that point should be emphasized to the appellate court. As more time passes between when the agency learned of the situation and when an emergency order was issued, the appellate court is more likely to conclude the facts at hand do not amount to a genuine emergency.6
As for the second element, according to F.S. §120.60(6)(b) (2012), an emergency order must take “only that action necessary to protect the public interest….” In other words, the action taken via an emergency order must be narrowly tailored to address the alleged harm. In Daube v. Dep’t of Health, 897 So. 2d 493, 494 (Fla. 1st DCA 2005), the First District held that “[b]ecause the agency’s emergency order was broader than that ‘necessary to protect the public interest under the emergency procedure’ as provided in section 120.60(6)(b), a more narrowly tailored emergency order is appropriate.” For example, “emergency orders revoking a licensee to conduct business must explain why less harsh remedies, such as probation, a fine, or a notice of noncompliance would have been insufficient to stop the harm alleged.”7
If an emergency order prevents a licensee from conducting legitimate business, then the licensee’s attorney may be able to persuade an appellate court that the emergency order is not narrowly tailored. In Henson, D.O., M.D. v. Dep’t of Health, 922 So. 2d 376, 377 (Fla. 1st DCA 2006), the Department of Health’s emergency order suspending the petitioner’s license to practice as an osteopathic physician was not narrowly tailored. The court explained, “Narrowly tailoring an emergency order to prohibit Dr. Henson from prescribing narcotics and from treating the three patients named in the emergency order would protect the public from the harm described until the administrative proceeding has been completed.”8
In my experience, agency officials sometimes neglect to consider whether some action short of a suspension is sufficient to address an alleged emergency, and a licensee’s attorney can use that omission to his or her advantage.9
The third element concerns whether the licensee has been afforded due process. Licensees are not allowed to contest the allegations set forth in an emergency order. Therefore, whenever an agency issues an emergency order, due process mandates that the agency promptly afford the licensee an opportunity for a formal administrative hearing, in which the agency is put to its burden of proving the allegations and the licensee can present opposing evidence.10 Although a formal administrative hearing is not required prior to entry of an emergency order suspending a license, a nonemergency suspension or revocation proceeding must be promptly instituted or pending in order for such emergency order to continue to be valid.11
Procedural Aspects of Challenging an Emergency Order
Now that we have discussed potential points to raise in a challenge to an emergency order, how exactly does one initiate such a challenge? As alluded to above, F.S. §120.68(1) and Fla. R. App. P. 9.100(a) confer jurisdiction on the district courts of appeal to review emergency orders.12 A party invokes that jurisdiction by filing with the appropriate appellate court a petition for review within 30 days of the emergency order’s rendition.13 If the petition is not filed with the appropriate appellate court within 30 days of the emergency order’s rendition, then the appellate court’s jurisdiction is not timely invoked, and the petition must be dismissed for lack of jurisdiction.14
At first blush, attorneys representing licensees may erroneously assume that the 30-day deadline to file a petition for review is not a substantial obstacle to overcome. However, a petition for review is not like a notice of appeal associated with a typical proceeding before an appellate court. Instead, petitions for review are similar to initial briefs and must set forth all of the reasons why the emergency order should be quashed. Fla. R. App. P. 9.100(g) mandates, “[t]he petition shall not exceed 50 pages in length and shall contain (1) the basis for invoking the jurisdiction of the court; (2) the facts on which the petitioner relies; (3) the nature of the relief sought; and (4) argument in support of the petition and appropriate citations of authority.”15
If an appellate court determines that a petition for review appears to be meritorious on its face, then the appellate court will issue an order requiring the agency in question to show cause “why relief should not be granted.”16 The show cause order will establish a deadline for the agency to serve a response.17 “Within 20 days thereafter or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length….”18
An Appellate Court’s Scope of Review
In the course of assessing whether an emergency order states particularized facts showing an immediate danger to the public welfare, an appellate court’s review is restricted to the facts alleged in the emergency order.19 In other words, the “record” associated with a petition for review is limited to the emergency order itself and any attachments thereto.20
An appellate court must accept the allegations in an emergency order as true, and a licensee is not supposed to dispute the facts alleged therein.21 Instead, a licensee must raise factual disputes during the formal administrative hearing to which he or she is entitled.22
For example, in Broyles, M.D. v. Dep’t of Health, 776 So. 2d 340, 341 (Fla. 1st DCA 2001), the court noted that Dr. Broyles’ arguments “primarily contest the factual matters set out in the [d]epartment’s order” rather than advancing “any substantial argument that the order, on its face, fails to comply with section 120.60(6).” In affirming the emergency suspension order, the court noted the department was required by law to “promptly institute a formal suspension or revocation proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (1999). It is in these formal proceedings that licensees, such as Dr. Broyles, may dispute the factual matters relied upon by the [d]epartment.”23
If an agency fails to give a licensee a formal administrative hearing to dispute the emergency order’s factual allegations, then defense counsel should file a motion to dismiss with the appellate court.24
Suggestions on Effectively Challenging Emergency Orders
I have been involved in judicial review proceedings in which a licensee’s attorney attempted to turn the review proceeding into an evidentiary hearing. In my view, defense counsel should certainly identify for the appellate court which allegations are disputed by the licensee. But counsel should not allow factual disputes to distract from the ultimate goal of demonstrating to the court that the emergency order is facially insufficient.
While I can certainly understand why one would want to do so, I cannot recommend that a licensee’s attorney provide documentation to an appellate court that refutes the emergency order’s allegations. As explained above, an appellate court’s review is supposed to be confined to the emergency order itself and any attachments thereto. Accordingly, any documentation that is not part of the emergency order’s four corners is supposed to be disregarded.25 I do recommend identifying for the appellate court which allegations are disputed and emphatically stating those allegations will be refuted during the impending evidentiary hearing at DOAH. However, if documentation refuting an emergency order’s allegations is in hand, reference to that documentation (while inappropriate) could make a court more comfortable with quashing an emergency order based on facial insufficiency.
There appears to be no restriction on licensees making their own allegations to demonstrate they are not a danger to the public.26
Finally, many readers may be wondering why all of this matters. A typical proceeding before an appellate court can take eight months or more, and a licensee may be irreparably harmed if he or she is unable to work for such an extended period of time. Fortunately for licensees, the rules of appellate procedure enable them to file motions for stay that will be considered on an expedited basis.27
A licensee’s motion for stay and petition for review will probably be filed simultaneously or at about the same time.28 But, the appellate court will likely rule on the motion for stay first with a final disposition on the petition to follow.29
If agencies use emergency orders in appropriate situations and agency attorneys draft them with the three elements of a facially sufficient emergency order in mind, then challenging emergency orders becomes a difficult task. But, attorneys pursing such challenges can use the information in this article to pinpoint an emergency order’s deficiencies and obtain prompt relief for their clients via expedited motions for stay under Rule 9.190(e)(2)(B).
1 As discussed in the previous article, the Florida Legislature has recognized there are particular circumstances which dictate that a regulatory agency must take action before a licensee is afforded an administrative hearing. See Fla. Stat. §120.60(6) (“If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances….”); see Fla. Stat. §120.569(2)(n) (providing for issuance of an “immediate final order” if an agency head finds “an immediate danger to the public health, safety, or welfare . . .”).
2 See Premier Travel Inter., Inc. v. Dep’t of Agric. & Consumer Serv., 849 So. 2d 1132, 1134-37 (Fla. 1st DCA 2003).
3 See generally Robin Hood Group, Inc. v. Fla. Office of Ins. Regulation, 885 So. 2d 393, 396 (Fla. 4th DCA 2004) (“The standard of review of an [emergency order] is whether, on its face, the order ‘sufficiently states particularized facts showing an immediate danger to the public welfare.’”). For a more detailed description of the three elements, please refer to last month’s article.
4 See Witmer v. Dep’t of Bus. & Prof’l Regulation, 631 So. 2d 338, 341 (Fla. 4th DCA 1994) (“The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public.”).
5 Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So. 2d 669, 673 (Fla. 1st DCA 2005).
6 See St. Michael’s Academy v. Dep’t of Children & Families, 965 So. 2d 169, 173 (Fla. 3d DCA 2007) (“This [c]ourt is not persuaded by conclusory predictions of future harm based on factual allegations which do not demonstrate an immediate danger. The [c]ourt also notes that the time gap between a number of the incidents and the order undercuts the immediacy of the alleged danger.”); Bio-Med Plus, 915 So. 2d at 673 (“The harm alleged in the [d]epartment’s order is general and conclusory and relates to actions in excess of two years old” and that there are “no factual allegations to support a conclusion that the safety or welfare of the public is being threatened at present. Thus, neither immediate danger nor necessity for the [emergency suspension order] has been demonstrated.”).
7 Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So. 2d 713, 714 (Fla. 1st DCA 2004) (quashing an emergency order suspending the petitioner’s business license because “[t]he emergency order in the instant case does not explain why other remedies available to the [d]epartment would not take care of the public concern”).
8 Compare Bertany Ass’n for Travel & Leisure, Inc. v. Fla. Dep’t of Fin. Serv., 877 So. 2d 854, 856 (Fla. 1st DCA 2004) (rejecting an argument that the immediate final order at issue was not narrowly tailored by noting it “does not suspend or affect the status of appellants’ licenses to sell legitimate and authorized insurance products, and appellants are still allowed to conduct legitimate business”).
9 See Machiela, O.D. v. Dep’t of Health, Bd. of Optometry, 995 So. 2d 1168, 1171 (Fla. 4th DCA 2008) (“We find merit to Dr. Machiela’s secondary argument that there are less restrictive, but equally effective, means to protect the public during the pendency of the administrative proceeding.”); Kubski v. Dep’t of Health, 840 So. 2d 376 (Fla. 1st DCA 2003) (approving “the [d]epartment’s order insofar as it prevents Dr. Kubski from prescribing narcotics until his disciplinary proceeding has been completed. However, we quash the order to the extent it exceeds this condition and remand for the [d]epartment to enter a more narrowly tailored emergency order.”).
10 See Fla. Stat. §120.60(6)(c) (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); Field v. Dep’t of Health, 902 So. 2d 893, 895 (Fla. 1st DCA 2005) (“Section 120.60(6)(c) requires, in cases of summary suspension, that the [d]epartment promptly institute a formal suspension or revocation proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (1999). In these formal proceedings, licensees may dispute the factual matters relied upon by the [d]epartment.”).
11 See Aurora Enter., Inc. v. Dep’t of Bus. Regulation, 395 So. 2d 604 (Fla. 3d DCA 1981); see also Ampuero v. Dep’t of Prof’l Regulation, 410 So. 2d 213, 214 (Fla. 3d DCA 1982) (“When the state undertook to temporarily restrict the petitioner’s privilege to practice medicine it had an affirmative duty to grant a post-suspension hearing and one that would be concluded without appreciable delay.”).
12 See Bio-Med Plus, 915 So. 2d at 670, n. 1.
13 See Krum v. Dep’t of Health, 764 So. 2d 929, 930 (Fla. 1st DCA 2000); Fla. R. App. P. 9.100(c)(3).
14 See Krum, 764 So. 2d at 930 (“The instant petition was filed 33 days after rendition of the order of emergency suspension. Our jurisdiction was not timely invoked and accordingly this petition is dismissed for lack of jurisdiction.”). Fla. Stat. §120.68(2)(a) gives a licensee some flexibility on which district court of appeal considers the petition for review. See Fla. Stat. §120.68(2)(a) (“Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”). Most state agencies are headquartered in Tallahassee, so the First District Court of Appeal is almost always an option. However, if a licensee resides within the jurisdiction of an appellate court other than the First DCA, then his or her attorney should consider whether the chances of prevailing are better in the other district.
15 For other requirements pertaining to the format of a petition for review, please refer to Fla. R. App. P. 9.100(g) and (l).
16 See Fla. R. App. P. 9.100(h).
17 See Fla. R. App. P. 9.100(j).
18 See Fla. R. App. P. 9.100(k).
19 See Bio-Med Plus, 915 So. 2d at 673, n. 3; see also Pinacoteca Corp. v. Dep’t of Bus. Regulation, 580 So. 2d 881, 882 (Fla. 4th DCA 1991) (“No prior hearing having been held, the record for our review is limited to the four corners of the order itself.”).
20 See Anderson v. Dep’t of Health & Rehab. Serv., 482 So. 2d 491, 495 (Fla. 1st DCA 1986) (noting that because the emergency suspension order “was issued without a hearing and supporting evidentiary record, we are required by chapter 120 to review the facial sufficiency of the order without the benefit of a record establishing the facts underlying agency action and elucidating agency policies”); Commercial Consultants Corp. v. Dep’t of Bus. Regulation, 363 So. 2d 1162, 1164 (Fla. 1st DCA 1978) (noting that because “the [d]ivision conducted no [s]ection 120.57(1) or (2) proceedings before entering its order, we must review the order without benefit of a record establishing the facts underlying agency action and elucidating agency polices”); Witmer, 631 So. 2d at 343 (“[T]he demonstration of immediate harm must be made within the four corners of the order,” and holding “in this case neither the order nor the incorporated complaint contain this allegation.”).
21 See Anonymous Bank v. Dep’t of Banking & Fin., 512 So. 2d 1112, 1113 (Fla. 3d DCA 1987) (“The bank elected to seek review in this district court, which review, of necessity, must accept the factual basis underlying the cease and desist order for purposes of consideration of the emergency that warranted the issuance of the order.”).
22 See Fla. Admin. Code R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with [s]ections 120.569, 120.57 and 120.60, F.S., and Rule 28-106.2015, F.A.C.”); Pinacoteca Corp., 580 So. 2d at 882 (denying a petition for review, but noting the denial “does not, however, affect any subsequent administrative proceedings under section 120.57(1), Florida Statutes (1989), at which proceedings petitioner may introduce evidence to contradict the findings in the emergency order”).
23 See Field, 902 So. 2d at 895 (“Section 120.60(6)(c) requires, in cases of summary suspension, that the [d]epartment promptly institute a formal suspension or revocation proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (1999).”).
24 See Aurora Enter., Inc., 395 So. 2d at 605 (quashing an emergency order based on the agency’s “failure to afford the petitioner the procedural due process necessary to sustain the continued enforceability of the order”); Ampuero, 410 So. 2d at 214 (quashing an emergency order and stating “[w]hen the state undertook to temporarily restrict the petitioner’s privilege to practice medicine it had an affirmative duty to grant a post-suspension hearing and one that would be concluded without appreciable delay”).
25 See Anderson, 482 So. 2d at 495 (holding it could not consider an affidavit included in an appendix to the [d]epartment’s brief because its review was limited to the emergency order itself).
26 See Bio-Med Plus, 915 So. 2d at 673, n. 3 (“Bio-Med alleges, without contradiction from the [d]epartment, that no state or federal agency has alleged any unlawful acts by Bio-Med, its principals or employees, since the last act in January 2003 alleged in the indictment; that the United States Attorney’s Office has not sought to prevent Bio-Med from presently engaging in its regular business, despite the existence of the indictment; and that Bio-Med continues to supply a large volume of plasma-derivative pharmaceuticals to numerous hospitals operated by the U.S. Department of Defense and the U.S. Bureau of Prisons. Our review, however, is limited solely to the facts alleged in the [emergency order].”); Daube, 897 So. 2d at 495 (“Nor did DOH challenge petitioner’s assertion that he had stopped using the product and destroyed his remaining supply before the emergency order issued. Under these circumstances, the complained of conduct is not likely to recur and issuance of the emergency order suspending petitioner’s license was not necessary to prevent future harm.”).
27 See Fla. R. App. P. 9.190(e)(2)(B) (“When an agency has ordered emergency suspension, restriction, or limitations of a license under section 120.60(6), Florida Statutes, or issued an immediate final order under section 120.569(2)(n), Florida Statutes, the affected party may file with the reviewing court a motion for stay on an expedited basis. The court may issue an order to show cause and, after considering the agency’s response, if timely filed, grant a stay on appropriate terms.”). See Dep’t of Bus. Regulation v. Provende, Inc., 399 So. 2d 1038 (Fla. 3d DCA 1981); Dep’t of Bus. Regulation v. N.K., Inc., 399 So. 2d 416 (Fla. 3d DCA 1981). Circuit courts are without jurisdiction to stay the effect of an emergency order.
28 See St. Michael’s Academy, 965 So. 2d at 170 (“St. Michael’s petitioned this [c]ourt for review of the order, and filed an emergency motion for stay.”).
29 See Bio-Med Plus, 915 So. 2d at 670, n. 1 (“This court has previously granted Bio-Med’s emergency motion for stay of the [emergency order] pending final disposition of this proceeding.”); Preferred RV, 869 So. 2d at 714, n. 2 (“The order of emergency suspension was stayed by an order of this court on August 15, 2002, pending final disposition of this proceeding.”); United Ins. Co. of America v. Dep’t of Ins., 793 So. 2d 1182, 1183 (Fla. 1st DCA 2001) (“In response to [a]ppellants’ emergency motions for immediate relief, this court issued a show-cause order to [d]epartment and subsequently granted the motions, thereby staying the emergency final orders during the pendency of this appeal.”).
Garnett (“Gar”) Chisenhall is the chief appellate counsel for the Department of Business and Professional Regulation. Previously, he worked in the Administrative Law Section of the Attorney General’s Office and served as the chief appellate counsel at the Agency for Health Care Administration. He also serves on the Administrative Law Section Executive Council. He earned a finance degree and an M.B.A. from the University of West Florida. In 1999, he graduated with high honors from the Florida State University College of Law. The author thanks Judge Elizabeth McArthur and Paul H. Amundsen for their expert assistance on this article.
This article was previously published in the January 2013 issue of the Administrative Law Section Newsletter.
This column is submitted on behalf of the Administrative Law Section, Judge Foster Scott Boyd, chair, and Paul H. Amundsen, editor.