To Stay or Not to Stay: The Florida Supreme Court Clarifies in Ybor the Applicability of the Presumptive Stay Provision in F.S.[section]120.68(3).

AuthorShoop, Richard J.

The first sentence of F.S. [section]120.68(3), located within Florida's Administrative Procedure Act (APA) or F.S. Ch. 120, creates a presumption that a person who appeals an "agency decision [that] has the effect of suspending or revoking a license" is entitled to a stay "as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state." In the past, there has been uncertainty as to which agency actions have the effect of suspending or revoking a license. But recently, when the Florida Supreme Court decided the case of Agency for Health Care Administration v. Ybor Medical Injury & Accident Clinic, Inc., 334 So. 3d. 596 (Fla. 2022), many of those questions were put to rest.

This article provides a brief discussion of the difference between the discretionary and presumptive stays afforded by Ch. 120, the two main license types addressed under Ch. 120, background on the licensing process at issue in Ybor, reviews the cases that preceded and led to the Florida Supreme Court's Ybor decision, discusses Ybor, and analyzes its effect going forward.

Stays Afforded by the Administrative Procedure Act

Parties who appeal agency actions can move for a stay of the agency actions they are contesting while their appeals are pending. (1) Parties can file motions for stay with the lower tribunal (agency) or, for good cause shown, the appellate court. (2) The lower tribunal may grant a stay upon appropriate terms, including the posting of a bond, and its decision on a motion for stay is reviewable by the appellate court. (3)

The granting of a stay is up to the discretion of either the lower tribunal or the appellate court. "Factors which are considered...in deciding whether to grant a stay include the moving party's likelihood of success on the merits, and the likelihood of harm should a stay not be granted." (4) When a requested stay would have the effect of enjoining agency action, the court or lower tribunal should also consider whether the moving party has demonstrated: 1) irreparable harm; 2) a clear legal right to a stay; 3) an inadequate remedy at law; and 4) consideration of the public interest. (5)

However, when a party appeals agency action that has the effect of suspending or revoking a license, F.S. [section]120.68(3) states the party has a presumptive right to a stay when it moves for one, unless the agency petitions the court to not grant one, and, in doing so, demonstrates that the granting of a stay would constitute a probable danger to the health, safety, or welfare of the public.

When a party moves for a presumptive stay under [section]120.68(3), the agency may file a response to the motion within 10 days of the filing of the motion, or within a shorter time period set by the court. (6) The court must grant the motion unless the agency demonstrates a stay would constitute a probable danger to the health, safety, or welfare of the stay, but an agency can apply to the court for a modification or dissolution of the presumptive stay if circumstances change during the pendency of the appeal. (7)

The Two License Types Mentioned by Florida's APA

There are two main types of licenses under Florida's APA: licenses that, once given, do not expire until a triggering event, such as revocation or voluntary relinquishment by the licensee; and licenses that have statutory expiration dates. (8) For licenses with no expiration date, the APA affords greater protections to the licensee. For example, under F.S. [section]120.60(4), a license with no expiration date does not expire until a renewal application has been finally acted upon, which would include the finalization of an appeal from agency action withdrawing or denying the renewal application.

For licenses with statutory expiration dates, an existing license is treated separately from a renewal application. Thus, under certain circumstances, an existing license may expire and a licensee may be forced to cease operating while a final decision reached on its renewal application. The APA does not afford an automatic extension of the license while the renewal application is pending, although license-type specific authorizing statutes may do so. As described further below, the health-care provider license that was at issue in Ybor had a statutory expiration date. However, the authorizing statutes for that license automatically extended the expiration date during the pendency of the renewal application.

A Summary of the Health-Care Provider Licensing Process at Issue in Ybor

The Florida Agency for Health Care Administration (AHCA) is charged with licensing and regulating many different types of health-care providers operating in Florida. (9) The licenses issued by AHCA expire two years after their date of issue, and health-care providers must re-apply to AHCA for a new license for each subsequent two-year period. (10) Health-care providers are required to submit their licensure renewal application to AHCA prior to the expiration of its existing license; if the application is submitted less than 60 days prior to the expiration date, fines apply but the application will be processed. (11) The filing of the licensure renewal application tolls the expiration date of the health-care provider's existing license while the application remains pending before AHCA. (12)

Upon receiving a licensure renewal application, AHCA has 30 days to review the application and notify the health-care provider applicant in writing of any errors or omissions. (13) If AHCA notifies the applicant of an error or omission, the applicant has 21 days from the date AHCA provided such notice to correct the problem. (14) If the applicant fails to correct the problems within this period, then AHCA is statutorily required to deem the application incomplete and withdraw it from further consideration. (15)

Deeming a health-care provider's...

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