Writing and challenging emergency orders.

• Author: Chisenhall, Gar
• Position: Part 1

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.

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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) Also, "[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. & Profl 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...