STEVEN L. KAPLAN, M.D., PETITIONER,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH, RESPONDENT
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Dr. Kaplan challenged an emergency suspension order (ESO) suspending his medical license issued by the Florida Department of Health. The court quashed the ESO because the Department failed to demonstrate particularized facts showing immediate danger to the public, as required by Florida Statute § 120.60(6).
The court held that the emergency suspension order must be quashed because the Department failed to satisfy the requirements of section 120.60(6). The order lacked any particularized factual allegations demonstrating immediate danger to the public, failed to show the conduct was likely to continue, and did not demonstrate the necessity of the emergency suspension.
[1] An emergency suspension order must disclose specific facts and reasons demonstrating an immediate danger to the public health, safety, or welfare.
[2] The factual allegations in an emergency suspension order must demonstrate that the complained-of conduct is likely to continue.
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Join FLexlaw to unlock all legal intelligence“every element necessary to its validity must appear on the face of the order”
Establishes the fundamental requirement that an ESO must disclose all necessary elements on its face for validity.
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Join FLexlaw to unlock all legal intelligenceThe Department of Health issued an emergency suspension order suspending Dr. Kaplan's medical license based on conduct involving treatment of one pati…
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Petitioner, Dr. Stephen L. Kaplan, seeks review of an emergency suspension order (ESO), suspending his medical license, entered by the respondent, State of Florida, Department .of Health. Such an ESO is subject to the exacting standards of section 120.60(6), Florida Statutes (2009). Under this statute, the Department may take only “that action necessary to protect the public interest under the emergency procedure .... ” § 120.60(6)(b), Fla. Stat. (2009). Moreover, the review of such an order is limited to the face of the order itself, and the order must disclose “the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and [the Department’s] reasons for concluding that the procedure used is fair under the circumstances.” § 120.60(6)(c), Fla. Stat. (2009).
Many cases have construed the dictates of the statute. First, and obvious from the wording of the statute, “every element necessary to its validity must appear on the face of the order.” Witmer v. Dep’t of Bus. and Prof'l Regulation, 631 So.2d 338, 341 (Fla. 4th DCA 1994). The reviewing court must focus not simply on charges of statutory violations, but instead, upon “particularized facts which demonstrate an immediate danger to the public.” Crudele v. Nelson, 698 So.2d 879, 880 (Fla. 1st DCA 1997). The factual allegations of *21a legally sufficient emergency suspension order must demonstrate: (1) the complained of conduct is likely to continue; (2) the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair. See Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So.2d 669, 672 (Fla. 1st DCA 2005).
The allegations in the order before us do not contain so much as a single allegation of particularized harm. Although the Department states certain conclusions, the order contains no facts showing that the conduct complained of was likely to continue, or that the order here under review is necessary to stop any emergency created by the conduct complained of. Most pointedly, and as demonstrated by petitioner, the conduct complained of involved treatment of one patient and occurred over three years before entry of the ESO. No harm to that patient, or any other patient, has been alleged by the Department.
Because respondent has failed to satisfy even a most basic application of section 120.60(6), we QUASH the emergency suspension order under review. See e.g. Bio-Med Plus, 915 So.2d at 669 (quashing emergency suspension order which lacked any factual allegations showing immediate danger to public health, safety, or welfare, despite pendency of a federal indictment against target of the order).
HAWKES, C.J., and WEBSTER, J., concur.
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Citator
Cited By (12 total)
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Ragu P. Nath v. State of Fla. Dep't OF Health, 100 So. 3d 1273 (Fla. 1st DCA 2012)…e factual allegations of an ESO to demonstrate that: “(1) the complained of conduct is likely to continue; (2) the order is necessary to stop the emergency;, and (3) the order is sufficiently narrowly tailored to be fair.” Kaplan v. Dep’t of Health, 45 So. 3d 19, 21 (Fla. 1st DCA 2010); see also Bio-Med Plus, Inc. v. Dep’t of Health, 915 So. 2d 669, 672 (Fla. 1st DCA 2005). When evaluating the sufficiency of an ESO, an appellate court is limited to examining the face of the order itself to determine if the…
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Sanchez v. State of Fla. Dep't OF Health, 225 So. 3d 964 (Fla. 1st DCA 2017)…any cases have construed the requirements of § 120.60(6), and among the requirements this court has applied is that emergencyorders must -be “sufficiently narrowly tailored to be fair.’ ” Nath,. 100 So. 3d at 1276 (quoting Kaplan v. Dep’t of Health, 45 So. 3d 19, 21. (Fla. 1st DCA 2010)). On its face, the order here doesn’t assess the heaviest possible emergency sanction. The Department didn’t suspend-Mr. Sanchez’s license altogether, but only restricted him from seeing female patients. But Mr. Sanchez asse…
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Alan D. Mendelsohn, M.D. v. State, 68 So. 3d 965 (Fla. 1st DCA 2011)…asons for finding an immediate danger to the public health, safety, or welfare and [DOH’s] reasons for concluding that the procedure used is fair under the circumstances.” § 120.60(6)(c), Fla. Stat. (2010); see also Kaplan v. State, Dep’t of Health, 45 So. 3d 19, 20 (Fla. 1st DCA 2010) (citing Crudele v. Nelson, 698 So. 2d 879, 880 (Fla. 1st DCA 1997)). Section 456.074(1), Florida Statutes, however, requires DOH issue an emergency order suspending a medical license in certain circumstances without regard t…
Previewing 3 of 12 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)
- Bio-Med Plus, Inc. v. State, 915 So. 2d 669 (Fla. 1st DCA 2005)
- Crudele v. Nelson, 698 So. 2d 879 (Fla. 1st DCA 1997)