DANIEL CAMPBELL DAUBE, JR., M.D., PETITIONER,
v.
DEPARTMENT OF HEALTH, RESPONDENT
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A physician challenged an emergency suspension of his medical license by the Department of Health, alleging he used an unapproved product in cosmetic procedures without patient consent. The appellate court granted a stay of the suspension, finding the emergency order was broader than necessary to protect the public interest and that the physician had already ceased using the unapproved product.
The emergency suspension order was broader than necessary to protect the public interest under Florida Statutes section 120.60(6)(b). A more narrowly tailored emergency order was appropriate, and the court granted a stay of the suspension conditioned on the physician halting all use of the unapproved product and limiting wrinkle reduction treatment to BOTOX®.
[1] An emergency order suspending a professional license must contain facts sufficient to demonstrate immediate danger, necessity, and procedural fairness.
[2] An agency's emergency action against a license must take only that action necessary to protect the public interest.
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Join FLexlaw to unlock all legal intelligence“section 120.60(6)(b), Florida Statutes (2004), requires that an agency take only that action necessary to protect the public interest. An emergency order issued prior to a hearing must contain facts sufficient to demonstrate immediate danger, necessity, and procedural fairness.”
Establishes the legal standard for emergency orders affecting professional licenses
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Join FLexlaw to unlock all legal intelligenceDr. Daube used an unapproved product instead of BOTOX® in wrinkle reduction procedures without patient consent. Upon becoming aware of media reports a…
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PER CURIAM.
Petitioner filed a motion to stay a Department of Health (DOH) emergency order which suspended his license to practice medicine. We granted relief by an unpublished order and now issue this opinion to explain our ruling.
The emergency order alleged that instead of using BOTOX® in wrinkle reduction procedures, petitioner used an unapproved product without the consent of his patients. When petitioner became aware of media reports of the danger of the unapproved product, he immediately ceased using the product and destroyed his remaining supply. Thereafter, DOH issued its order suspending his license to practice medicine on an emergency basis. Petitioner sought a stay of the emergency order arguing that a suspension of his license was not necessary to prevent future harm. In an emergency action against a license, section 120.60(6)(b), Florida Statutes (2004), requires that an agency take only that action necessary to protect the public interest. An emergency order issued prior to a hearing must contain facts sufficient to demonstrate immediate danger, necessity, and procedural fairness. See, e.g., Witmer v. Dep’t of Bus. and Prof'l Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994).
Such an order must be fair in two respects: the remedy must be tailored to address the harm, and the order must provide for an administrative hearing. See Premier Travel Int’l Inc. v. Dep’t of Agric., 849 So. 2d 1132, 1137 (Fla. 1st DCA 2003); White Const. Co. Inc. v. State, Dep’t of Transp., 651 So. 2d 1302, 1305 (Fla. 1st DCA 1995).
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. See Kubski v. State, Dep’t of Health, 840 So. 2d 376 (Fla. 1st DCA 2003); Cunningham v. Agency for Health Care Admin., 677 So. 2d 61 (Fla. 1st DCA 1996).
We granted petitioner’s motion to stay the emergency suspension order on condition that he immediately halt all use of the unapproved product and that any wrinkle reduction treatment by petitioner be limited to the use of BOTOX®. We also authorized DOH to monitor these conditions and to set reasonable restrictions on petitioner’s use of BOTOX®. By granting the stay, we are not questioning the seriousness of the allegation that petitioner used an unapproved product on patients without their consent.
However, the emergency order did not allege that any of petitioner’s patients were harmed or suffered an adverse outcome or injury caused by the unapproved product. Nor did DOH challenge petitioner’s assertion that he had stopped using the product and destroyed his remaining supply before the emergency order issued. Under these circumstances, the complained of conduct is not likely to recur and issuance of the emergency order suspending petitioner’s license was not necessary to prevent future harm. General conclusory predictions of harm are not sufficient to support the issuance of an emergency suspension order. See Florida Ass’n of Health Maint. Org. v. Dep’t of Ins., 771 So. 2d 1222 (Fla. 1st DCA 2000).
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.
MOTION FOR STAY GRANTED.
ALLEN, VAN NORTWICK and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bio-Med Plus, Inc. v. State, 915 So. 2d 669 (Fla. 1st DCA 2005)…d in the Department’s order is general and conclusory and relates to actions in excess of two years old. “General con-clusory predictions of harm are not sufficient to support the issuance of an emergency suspension order.” Daube v. Dep’t of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005). While the Department does allege that Bio-Med’s blood products have been “per se adulterated” because they were distributed by parties not authorized to do so under section 499.006(10),2 the ESO contains no factual allegati…
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Steven A. Field, M.D. v. State, 902 So. 2d 893 (Fla. 1st DCA 2005)…e.g., Witmer v. Dep’t of Bus. and Prof'l Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994). Fairness requires that the order provide a remedy that is tailored to address the harm and provide for an administrative hearing. See Daube v. Dep’t of Health, 897 So. 2d 493 (Fla. 1st DCA 2005); Premier Travel Int'l Inc. v. Dep’t of Agric., 849 So. 2d 1132, 1137 (Fla. 1st DCA 2003); White Constr. Co., Inc. v. State, Dep’t of Transp., 651 So. 2d 1302, 1305 (Fla. 1st DCA 1995). Section 120.60(6)(c) requires, in cases of s…
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Osakatukei O. Omulepu, M.D. v. State, 198 So. 3d 1046 (Fla. 1st DCA 2016)…legations of past harm standing alone are insufficient to support the emergency suspension or restriction of a license. See Bio-Med Plus, 915 So. 2d at 673-74; Gradele v. Nelson, 698 So. 2d 879, 880 (Fla. 1st DCA 1997); cf. Daube v. Dep’t of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005) (granting stay of emergency suspension order because the complained of conduct was not likely to recur and noting that “[p]unishment for past behavior is properly the subject of an administrative complaint pursuant to sectio…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Witmer v. Dep't of Bus. & Prof'l Reg., 631 So. 2d 338 (Fla. 4th DCA 1994)
- Premier Travel Int'l, Inc. v. State of Fla. Dep't of Agric. & Consumer Servs., 849 So. 2d 1132 (Fla. 1st DCA 2003)
- Wilson v. State, 651 So. 2d 1302 (Fla. 2d DCA 1995)
- Lowell K. Cunningham, M.D. v. Agency FOR Health Care Admin., 677 So. 2d 61 (Fla. 1st DCA 1996)
- Fla. Ass'n OF Health Maint. Orgs. & Fla. Ass'n of Managed Care Orgs. v. State, 771 So. 2d 1222 (Fla. 1st DCA 2000)
- George Kubski, M.D. v. State, 840 So. 2d 376 (Fla. 1st DCA 2003)