Writing and challenging emergency orders.

• Author: Chisenhall, Gar
• Position: Part 2

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. [section]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. [section]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...