Appeals of state agency immediate final orders and emergency suspension orders.

• Author: Giddings, Katherine E.
• Position: Florida

In regulating businesses and professions, state agencies not only have the power to grant licenses; they also have the power to take licenses away. Often, when agencies do so, they revoke or limit a license through an "emergency" process, which allows an agency to take emergency action against a licensee when an immediate danger to public health, safety, or welfare exists. Additionally, agencies have the power to take immediate action directly affecting a business or industry in situations that do not involve licenses. A frequent example is the destruction of citrus groves as a result of citrus canker, pursuant to orders from the Department of Agriculture. (1)

Because "emergency" state action may be initiated without the benefit of any predeprivation hearing, agencies must strictly adhere to legislative mandates governing the issuance of emergency orders. When a client receives an emergency order, a lawyer must know both what to file and where to obtain review of the order. This article addresses these and other issues related to appeals of emergency orders and it also notes problem areas in this process that need to be addressed.

Two Types of Emergency Orders

Generally, agencies issue two types of emergency administrative orders: immediate final orders (IFOs) and emergency license suspension orders (ESOs). These terms are frequently used interchangeably in case law, because ESOs can be either immediate final orders or nonfinal orders. Because the standards are different for orders issued in the licensure context, we use the term ESO to reference license suspension orders and the term IFO to reference immediate final orders outside the licensure context.

IFOs are issued pursuant to F.S. [section] 120.569(2)(n). Under that statute, if an agency head finds that an immediate danger to public health, safety, or welfare exists, the agency may issue an IFO. Facially, F.S. [section] 120.569(2)(n) sets forth only one requirement: The IFO must "recite with particularity the facts underlying" the agency head's finding that an immediate danger to public health, safety, or welfare exists.

For an agency to meet this standard, the IFO "must allege facts showing that specific incidents of irreparable harm to the public interest will occur" without an immediate order. (2) The factual allegations cannot be conclusory. The allegations must show 1) an imminent threat; 2) of specific incidents of irreparable harm to the public interest; 3) requiring the use of the extraordinary device afforded by the statute. (4) Typically, this will require extremely specific factual recitations regarding the basis of the harm and a showing that the complained-of conduct is likely to continue. Additionally, an IFO must be narrowly tailored to be fair, and all elements necessary to the validity of the IFO must appear on its face. (4)

ESOs are issued pursuant to F.S. [section] 120.60(6), and are used when an agency believes emergency action is needed to suspend, restrict, or limit a license. Like F.S. [section] 120.59(2)(n), which governs IFOs, F.S. [section] 120.60(6) allows an agency to take emergency action when the agency finds that an immediate danger to public health, safety, or welfare exists. However, F.S. [section] 120.60(6) provides that the immediate danger must be an "immediate serious danger." Practically speaking, this appears to be a distinction without a difference. Under either statute the danger must be serious. Otherwise, the agency should not take emergency action. Additionally, F.S. [section] 120.60(6) mandates the following additional requirements for ESOs: the procedure used must be fair under the circumstances; the procedure used must at least provide the same procedural protection as given by the law and the state and federal constitutions; the agency can take only that action necessary to protect the public interest; and the ESO must contain a written statement stating the specific facts and reasons for finding an immediate danger and the reasons for concluding that the procedure used is fair under the circumstances.

In an ESO, the agency must explain why less harsh remedies than those imposed in the ESO, such as probation, a fine, or a notice of noncompliance, are not sufficient to stop the alleged harm. (5) Additionally, like an IFO, all of the factual allegations and elements necessary to determine the validity of the ESO must appear on the face of the order. (6) Simply alleging that a statute has been violated is an insufficient basis for an emergency order. As with IFOs, because an agency is allowed to act before according basic due process rights to the parties where fundamental rights are involved, the agency's statement of reasons for acting must be factually explicit and persuasive concerning the existence of a genuine emergency. (7) The court will not infer immediate harm, nor will it consider general conclusory predictions of harm. (8)

F.S. [section] 120.60(6)(c) also provides that "[s]ummary suspension, restriction, or limitation may be ordered," but only if the agency also promptly institutes and acts upon the action in an administrative proceeding. The purpose of the administrative proceeding is to determine whether the ESO should be made permanent and to afford the licensee due process to contest the allegations in that order. (9)

On its face, the statute appears to only require postdeprivation administrative proceedings when the nonfinal "summary" suspension, restriction, or limitation process is used. The statute...