Writing and Challenging Emergency Orders, Part I
Most attorneys would agree that a licensee should be afforded due process before his or her license is suspended, revoked, or restricted.1 In addition to enabling one to earn a living, a license often confers a certain status on the holder.2
Nevertheless, the Florida Legislature has recognized there are circumstances when action must be taken before a licensee is afforded due process. F.S. §120.60(6)3 provides, “[i]f 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. . . . ”4
During the course of my career as a chief appellate counsel for two government agencies, I have been involved with the drafting of many emergency orders. I have also encountered situations when the available facts did not amount to a genuine emergency, and the agency correctly declined to issue an emergency order. This is the first of two articles on emergency orders. This article discusses the elements of a facially sufficient emergency order and is intended to assist with 1) identifying situations appropriate for emergency orders; and 2) drafting emergency orders that can withstand judicial review.
The next article is devoted to assisting private attorneys defending licensees who are the subject of emergency orders. Nevertheless, I still recommend that all administrative law practitioners read this article. Being familiar with the elements of a facially sufficient emergency order is the first step to successfully challenging one.
The Elements of a Facially Sufficient Emergency Order
When drafting an emergency order, agency attorneys must remember that emergency orders are subject to the exacting standards of F.S. §120.60(6).5 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.6 Appellate courts also consider whether the pattern of conduct described in the emergency order is likely to continue.7
Because licensees are not given an opportunity for an evidentiary hearing prior to issuance of an emergency order, all of the elements discussed above “must appear on the face of the order.”8 The following sections describe each element of a facially sufficient emergency order.
Is There Immediate, Serious Danger to the Public Health, Safety, or Welfare?
The case law emphasizes the need to demonstrate that the public is in “immediate” danger. In other words, “[t]he factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public.”9
When evaluating whether an emergency order is justified under a particular set of circumstances, this is often the most difficult element to assess. “General conclusory predictions of harm are not sufficient to support the issuance of an emergency suspension order.”10 Instead, the agency’s stated reasons for acting “must be factually explicit and persuasive concerning the existence of a genuine emergency.”11 Unfortunately, there are few hard and fast rules as to what amounts to a “genuine emergency.” Therefore, agency officials often must make judgment calls (based in part on guidance from the cases discussed below) as to whether the facts presented to them justify issuance of an emergency order.
Obviously, an emergency order is justified when lives are in danger.12 A lso, “[o]ngoing criminal violations constitute a danger to the public health, safety, and welfare.”13
Allegations of statutory or rule violations in and of themselves may be insufficient to justify an emergency order. “The reviewing court [will] focus not simply on charges of statutory violations, but instead, upon ‘particularized facts which demonstrate an immediate danger to the public.’”14 As stated by the First District Court of Appeal in Unimed v. Office of Ins. Reg., 884 So. 2d 963, 964 (Fla. 1st DCA 2004), “it is not sufficient merely to allege a statutory violation; instead, the order must contain a factual recitation sufficient to demonstrate the existence of an imminent threat of ‘specific incidents of irreparable harm to the public interest’ requiring use of the extraordinary device afforded by section 120.569(2)(n).”
At least one appellate court has held that an emergency order should not be used to punish past behavior.15 However, “[p]ast acts may be sufficient to allege a danger of future misconduct if the conduct alleged is sufficiently serious and is likely to be repeated.”16
Potential monetary losses can be an immediate danger to the public health, safety, or welfare and justify an emergency order.17 However, the Fourth District Court of Appeal noted in Witmer v. Dep’t of Bus. & Prof’l Regulation, 631 So. 2d 338, 342 (Fla. 4th DCA 1994):
While loss of state revenue was found to be a sufficient reason for emergency action in Little , 557 So. 2d at 160 and Calder Race Course v. Board of Business Regulation , 319 So. 2d 67, 68 (Fla. 1st DCA 1975), those cases involved immediate, concrete, economic threats, rather than mere speculation. In Calder the complaint alleged a direct and immediate loss of state tax revenue. In Little the agency demonstrated that a budget revision was necessary to keep a state benefits program functioning through the end of the current fiscal year.
When an agency encounters a situation that is a genuine emergency, it is absolutely essential that an emergency order be promptly issued. As more time passes between when the agency learned of the emergency situation and when an emergency order is issued, the harder it becomes to persuade an appellate court that the facts at hand amount to a genuine emergency.18
Is the Emergency Order Narrowly Tailored?
An emergency order must take “only that action necessary to protect the public interest. . . . ”19 In other words, the action taken via an emergency order must be narrowly tailored to address the alleged harm.20 For example, “emergency orders revoking a license 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.”21 In Premier Travel Int’l, Inc. v. Dep’t of Agriculture & Consumer Serv., 849 So. 2d 1132, 1137 (Fla. 1st DCA 2003), the First District Court of Appeal’s ultimate holding that three emergency orders were facially insufficient was based in part on the court’s determination that “the [d]epartment issued orders suspending registration certifications and requiring [a]ppellants to cease and desist, without demonstrating that such a drastic remedy was the only way to avoid future harm.”
When is an emergency order tailored sufficiently narrow to withstand judicial review? If a licensee is still able to conduct legitimate business, then an agency should be able to convincingly argue that its emergency order is narrowly tailored.22
The narrowly tailored requirement was the focal point of Cunningham v. AHCA, 677 So. 2d 61 (Fla. 1st DCA 1996), in which the Agency for Health Care Administration issued an emergency order suspending Dr. Cunningham’s license “based upon evidence that he had prescribed an excessive and unwarranted amount of narcotic medications to three patients.” Because §120.60(6)(b) requires the agency to take “only that action necessary to protect the public interest,” the court held “Dr. Cunningham need be prevented only from prescribing narcotics and from treating the three patients named in the order, until his disciplinary proceeding has been completed.”23 The court explained:
The agency’s expert opined that Dr. Cunningham had unjustifiably overprescribed controlled substances to one patient. There was, however, no evidence that Dr. Cunningham was engaged in any kind of inappropriate or inadequate counseling of his patients. The agency’s three concerns — that Dr. Cunningham is engaged in a criminal enterprise, possesses a dangerous lack of medical knowledge, or is unable to deny a patient who requests increasing amounts of drugs — can all be addressed by a more narrowly tailored emergency order. We therefore affirm the agency’s emergency order insofar as it bars Dr. Cunningham from the practice of psychiatry in treating the three patients at issue and from prescribing narcotic medications. We reverse the order insofar as it exceeds these conditions. 24
In my experience, agency officials sometimes neglect to consider whether some action short of a suspension will be sufficient to address the emergency, and that omission can be fatal if an emergency order is challenged.25 When discussing with my colleagues and superiors whether to take emergency action against a licensee, I have often advocated doing something other than imposing an outright suspension. As evident from the cases cited above, the harm at issue can often be addressed by imposing some sort of restriction on a licensee that still enables the licensee to earn a living.26
taking action short of an outright licensure suspension, the agency is likely to appear reasonable to an appellate court and withstand a challenge to its emergency order. For the same reason, I have advocated in the past that the emergency order give the licensee the ability to bring his or her own suspension to an end upon satisfaction of certain conditions.
Has the Licensee Been Afforded Due Process?
As will be discussed in more detail in the forthcoming second article on how private attorneys can challenge emergency orders before an appellate court, 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 in which the licensee can present opposing evidence.27
Therefore, prompt issuance of an administrative complaint is the first step to assuring that a licensee receives due process. Ideally, an emergency order and an administrative complaint should be issued simultaneously. But, that level of efficiency is not required.28
Promptly referring the case to the Division of Administrative Hearings (DOAH) for a formal evidentiary hearing is the second step. Although a hearing is not required prior to entry of an emergency order suspending a license to practice, a nonemergency suspension or revocation proceeding must be promptly instituted or pending in order for such emergency order to continue to be valid.29
Regardless of any debate over whether there is a genuine emergency and whether the contemplated emergency action is sufficiently narrowly tailored, a licensee is always entitled to a prompt evidentiary hearing at DOAH.30
Is the Conduct at Issue Likely to Continue?
In addition to the three elements discussed above, appellate courts also consider whether the harmful conduct at issue is likely to continue.31 However and as mentioned above, it is important to remember that emergency orders are not a tool for punishing past behavior. Unless the harmful conduct in question is likely to continue, an agency must forego an emergency order and initiate a Ch. 120 proceeding.32
Just as agency officials sometimes neglect to consider whether something short of a suspension will be sufficient to address the harmful conduct, they also sometimes neglect to consider whether the conduct at issue is likely to continue. If the conduct at issue was obviously a one-time event, then there is no reason for an agency to waste time and resources issuing a meaningless emergency order. Unfortunately, this is often not an easy call to make. If a licensee has been arrested and jailed, one might think an emergency order is unnecessary. But, an agency needs to assess the likelihood of the licensee posting bail and being able to subsequently continue his or her practice.
Conclusion
Writing a facially sufficient emergency order can be a significant challenge. However, that task is substantially easier if one is familiar with the elements of a facially sufficient emergency order and the standards by which emergency orders are reviewed. That knowledge can also assist agency attorneys with determining when a contemplated emergency order cannot withstand judicial scrutiny and should not be issued. 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.
Attorneys attempting such challenges can use the information in this article to pinpoint an emergency order’s deficiencies. In the second part of this article, I will discuss the procedural aspects of challenging an emergency order, an appellate court’s scope of review, and offer some suggestions on effectively challenging emergency orders.
1 See Presmy v. Smith, 69 So. 3d 383, 387, n. 1 (Fla. 1st DCA 2011) (noting “[a] professional has a property interest in his license to practice his profession protected by the due process clauses of the state and federal constitutions”).
2 See generally Reid v. Fla. Real Estate Comm’n, 188 So. 2d 846, 850-51 (Fla. 2d DCA 1966) (“[A] person’s license to engage in a privileged business or profession” is “not only a paper writing that permits the holder to legally engage in the activities described therein, but it is also a proclamation to the world that the person to whom the license is issued is qualified to be chosen as a recognized member of a privileged business or profession. It is a most valuable property right; one to be proud of and to be zealously guarded and protected. It singles out a person as being an honorable citizen in the society of people.”).
3 A ll citations are to the 2012 Florida Statutes unless stated otherwise.
4 See also 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. . . ”).
5 See Kaplan, M.D. v. Dep’t of Health, 45 So. 3d 19, 20 (Fla. 1st DCA 2010).
6 See Premier Travel Inter., Inc. v. Dep’t of Agric. & Consumer Serv. , 849 So. 2d 1132, 1134-37 (Fla. 1st DCA 2003). There are situations when an agency has no discretion about whether to issue an emergency order. See Fla. Stat. §456.074(1) (2012) (mandating that the Department of Health “shall issue an emergency order suspending the license” of various health care practitioners convicted of certain felonies or misdemeanors). In those cases, the First District Court of Appeal has held findings that an immediate danger exists are unnecessary. See Mendelsohn, M.D. v. Dep’t of Health, 68 So. 3d 965, 967 (Fla. 1st DCA 2011) (“Section 456.074(1), Florida Statutes, however, requires DOH [to] issue an emergency order suspending a medical license in certain circumstances without regard to specific proof that a petitioner is acting in a way that poses an immediate danger to public safety.”); Bethencourt-Miranda, M.D. v. Dep’t of Health, 910 So. 2d 927, 928 (Fla. 1st DCA 2005) (“Petitioner argues that the emergency suspension order fails to set forth the factual findings that are required by section 120.60(6)(c), Florida Statutes. We disagree. Because section 456.074(1) requires the department to issue an emergency suspension order in these particular circumstances, no other findings are necessary to support the agency action.”).
7 See Premier Travel, 849 So. 2d at 1135 (stating that “[i]n determining whether to affirm or reverse [an emergency order], courts consider whether the pattern of conduct is likely to continue”). See also Bertany Ass’n for Travel & Leisure, Inc. v. Fla. Dep’t of Fin. Serv., 877 So. 2d 854, 855 (Fla. 1st DCA 2004) (noting the emergency order “contains allegations of past and recent conduct which would support an inference that appellants’ unauthorized activity may continue absent a cease and desist order”).
8 Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So. 2d 669, 672 (Fla. 1st DCA 2005). See also Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So. 2d 713, 714 (Fla. 1st DCA 2004) (“[A]ll of the factual allegations and elements necessary to determine the validity of the emergency order must appear on the face of the order.”).
9 Witmer v. Dep’t of Bus. & Prof’l Regulation, 631 So. 2d 338, 341 (Fla. 4th DCA 1994).
10 Bio-Med Plus, 915 So. 2d at 673.
11 Field v. Dep’t of Health, 902 So. 2d 893, 895 (Fla. 1st DCA 2005). See also Unimed v. Office of Ins. Reg., 884 So. 2d 963, 964 (Fla. 1st DCA 2004) (reversing
an emergency order because it was “predicated solely on conclusory allegations implying that appellants’ failure to be licensed in Florida, by itself, constitutes an immediate danger to the public health, safety and welfare”).
12 See Tauber v. Bd. of Osteopathic Medical Examiners, 362 So. 2d 90, 93 (Fla. 4th DCA 1978) (“We can conceive of no greater emergency of immediate necessity than that which endangers the preservation of human life.”).
13 Allstate Floridian Ins. Co. v. Office of Ins. Reg., 981 So. 2d 617, 624 (Fla. 1st DCA 2008). But see Witmer, 631 So. 2d at 343 (“The [d]epartment’s characterization of the petitioner’s ‘willingness’ to become involved in criminal activity is nothing more than an allegation of criminal propensity. The [d]epartment cites no authority which would permit it to suspend a license upon a mere showing of propensity to commit violations.”).
14 Kaplan, 45 So. 3d at 20.
15 See Daube v. Dep’t of Health, 897 So. 2d 493, 494 (Fla. 1st DCA 2005) (“Punishment for past behavior is properly the subject of an administrative complaint pursuant to section 120.60(5) wherein the licensee is afforded the opportunity to challenge the factual basis of the complaint through a section 120.57(1) hearing.”).
16 Witmer, 631 So. 2d at 343. See also St. Michael’s Academy, 965 So. 2d 169, 172 (Fla. 3d DCA 2007) (“Immediacy of harm to the public need not be alleged if there are allegations of sufficiently egregious past harm which are of a nature likely to be repeated.”).
17 See Premier Travel, 849 So. 2d at 1134 (“Personal monetary losses can be the sort of danger addressed by section 120.60 Florida Statutes.”).
18 See St. Michael’s Academy, 965 So. 2d at 173 (“This Court is not persuaded by conclusory predictions of future harm based on factual allegations which do not demonstrate an immediate danger. The Court 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.”).
19 Fla. Stat. §120.60(6)(b).
20 See Daube, 897 So. 2d at 494 (“Because 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.”).
21 Preferred RV, 869 So. 2d at 714 (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”); see also Nath v. Dep’t of Health, 100 So. 3d 1273 (Fla. 1st DCA 2012) (partially quashing an emergency suspension order because it failed to demonstrate that licensure suspension was necessary to address the particular harm alleged).
22 See Bertany Ass’n for Travel & Leisure, Inc., 877 So. 2d at 856 (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”). Compare Henson, D.O., M.D. v. Dep’t of Health, 922 So. 2d 376, 377 (Fla. 1st DCA 2006) (holding the Department of Health’s emergency order suspending the petitioner’s license to practice as an osteopathic physician was not narrowly tailored because “[t]he harms discussed in the emergency order deal with Dr. Henson’s prescription of excessive amounts of narcotic drugs without proper examination, diagnostic testing, and follow-up drug screening. There are no findings in the order stating that he provides inadequate care to patients for whom he is not prescribing narcotic pain relievers. 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.”).
23 Cunningham, 677 So. 2d at 61.
24 Id. at 62. The Cunningham opinion referred to “evidence” and the opinion of an agency expert. Those references are puzzling because emergency orders are not preceded by evidentiary hearings, and an appellate court’s review is limited to the four corners of the emergency order. See Pinacoteca Corp. v. Dep’t of Bus. Regulation, 580 So. 2d 881, 882 (Fla. 4th DCA 1991) (explaining that with “[n]o prior hearing having been held, the record for our review is limited to the four corners of the order itself”). It is possible that the Agency for Health Care Administration attached affidavits from witnesses and its expert as exhibits to its emergency order. Unfortunately, the opinion does not go into that level of detail.
25 See Machiela, O.D. v. Dep’t of Health, Bd. of Optometry, 995 So. 2d 1168, 1171 (Fla. 4th DCA 2008)(“[W]e 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.”).
26 See 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.”).
27 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, 902 So. 2d at 895 (“Section 120.60(6)(c) requires, in cases of summary suspension, that the Department 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 Department.”); Oakcrest Early Education Center, Inc. v. Dep’t of Children & Families, 936 So. 2d 1174, 1178 (Fla. 5th DCA 2006) (“It is the Department’s responsibility to promptly institute the formal suspension or revocation proceeding, which allows the licensee the opportunity to contest the allegations and factual matters relied upon by the Department to take away the license.”).
28 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 Sections 120.569, 120.57 and 120.60, F.S., and Rule 28-106.2015, F.A.C.”).
29 See 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.”); see also Aurora Enter., Inc. v. Dep’t of Bus. Regulation, 395 So. 2d 604, 606 (Fla. 3d DCA 1981) (quoting Barry v. Barchi, 443 U.S. 55, 99 (1979)). (“The emergency order under review was entered on January 29, 1981. The present petition was heard on the merits before us on March 10, 1981. At that time we were informed by both sides that, although a formal revocation proceeding had been commenced within twenty days as specified by Fla. Admin. Code Rule 28-6.11(3), no hearing (let alone a disposition) has yet taken place or even been scheduled, although one had been immediately requested by the licensee. In no sense can it be said that a period of this length involving a fifty day minimum and an open-ended maximum between the emergency suspension and a hearing and determination of the merits involves either the prompt action the statute requires or the conclusion ‘without appreciable delay’ the constitution demands.”).
30 See Oakcrest, 936 So. 2d at 1177 (“Although the Legislature did not provide a test to determine promptness, the obvious purpose of the statute is to require that suspension or revocation proceedings be promptly instituted lest a constitutionally-protected right to procedural due process be unduly restricted or abrogated by a slow administrative process. Because a formal proceeding under section 120.60(6) was never instituted, it is not necessary that we resolve the issue of what ‘prompt’ means or formulate a test to make that determination — suffice it to say that what was never done is never prompt.”).
31 See Bertany Ass’n for Travel & Leisure, 877 So. 2d at 855 (noting the immediate final order “contains allegations of past and recent conduct which would support an inference that appellants’ unauthorized activity may continue absent a cease and desist order”).
32 See Daube, 897 So. 2d at 495 (“Punishment for past behavior is properly the subject of an administrative complaint pursuant to section 120.60(5) wherein the licensee is afforded the opportunity to challenge the factual basis of the complaint through a section 120.57(1) hearing.”); Crudele v. Nelson, 698 So. 2d 879, 880 (Fla. 1st DCA 1997) (noting the conduct at issue occurred well over two years ago and holding the emergency order “sets forth no factual findings of a continuing pattern of conduct that must be stopped in order to prevent further harm to the public. No allegations or findings in the order suggest anything in Crudele’s history as a licensed agent that would support an inference of such continuing conduct.”); Bio-Med Plus, 915 So. 2d at 673 (holding the emergency suspension order “does not contain a single, particularized allegation of a continuing public health or safety violation, or any allegations of harm or possible harm to any patient” and “[t]he harm alleged in the [d]epartment’s order is general and conclusory and relates to actions in excess of two years old”).
In Daube, the First District Court of Appeal held the emergency order at issue was broader than necessary to protect the public interest. The emergency order alleged that instead of using Botox in wrinkle reduction procedures, the petitioner was using an unapproved product without his patients’ consent. Daube, 897 So. 2d at 494. However, because the Department of Health did not challenge the petitioner’s assertion that he had stopped using the unapproved product and destroyed his remaining supply before the emergency order issued, the court held that the complained of conduct was not likely to recur and that an emergency suspension of the petitioner’s license was not necessary to prevent future harm. Id.
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.
