ZANE PAUL WEBBER, PETITIONER,
v.
STATE OF FLORIDA, DEPT. OF BUSINESS AND PROFESSIONAL REGULATION, RESPONDENT
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The court held that the emergency suspension order was facially insufficient and lacked particularized allegations of immediate danger to the public, thus failing to afford due process.
[1] An order for emergency suspension of a professional license must contain particularized factual allegations demonstrating an immediate serious danger to the public health…
[2] Allegations of continuing harm justifying an emergency license suspension must be particularized and not general, conclusory, or related to stale actions.
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Join FLexlaw to unlock all legal intelligencePetitioner sought review of an emergency order suspending their CPA license. The order, issued without a hearing, lacked specific factual allegations …
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Before us is Petitioner’s “Expedited Petition for Review of Order of Emergency Suspension of License, and Request for Attorney’s Fees and Costs.” We have jurisdiction. . See Art. V, § 4(b)(1), Fla. Const.; § 120.68(l)(b), Fla. Stat. (2015); Fla. R, App. P. 9.100(a).
After evaluating only the face of the Order of Emergency Suspension as we must, since there was no hearing afforded Petitioner below, see Nath v. State, Department of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012), we find its factual statements allegedly justifying the emergency suspension of Petitioner’s license to practice as a certified public accountant to be wholly insufficient to establish that Petitioner’s actions vis-a-vis the named client pose an “immediate serious danger to the public health, safety, or welfare” as required by section, 120.60(6), Florida Statutes (2015). See also Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So.2d 669, 672 (Fla. 1st DCA 2005) (“Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order.”) (internal quotation marks omitted). Specifically, Respondent’s order lacks any “particularized” allegations of fact demonstrating an immediate danger of continuing harm. See St. Michael’s Academy, Inc. v. State, Dep’t of Children & Families, 965 So.2d 169, 172 (Fla. 3d DCA 2007); see also Bio-Med Plus, 915 So.2d at 672-73 (holding “it is not enough for the [emergency suspension order] merely to *923allege statutory violations,” the allegations of continuing harm must be “particularized,” not “general and conclusory” or related to stale actions).
Furthermore, the order is not “ ‘narrowly tailored to be fair’ ” to Petitioner, and Respondent has not convincingly shown why less restrictive alternatives short of emergency suspension of Petitioner’s license were not utilized. Nath, 100 So.3d at 1276 (quoting Kaplan v. State, Dept of Health, 45 So.3d 19, 21 (Fla. 1st DCA 2010)). As we stressed in Nath:
The summary-procedure authorized by statute permits the Department to deprive licensees of a property interest prior to giving them full due process. Bearing that in mind, we have held that agencies employing the procedure must “explain why less harsh remedies ... would have been insufficient to stop the harm alleged.”
Id. (quoting Preferred RV, Inc. v. Dept of Highway Safety & Motor Vehicles, 869 So.2d 713, 714 (Fla. 1st DCA 2004)). Respondent’s claim that it does not have sufficient options at its disposal to ensure Petitioner does not engage in the same conduct of “victimizing citizens of the State during the pendency of this action” was neither expressed in the’ order nor substantiated by Respondent.* Id.; Bio-Med Plus, 915 So.2d at 674.
To the extent the Order of Emergency Suspension fails to demonstrate on its face an immediate, and recurring threat to the public and the license suspension is not a narrowly tailored remedy, we conclude the action taken by Respondent failed to afford Petitioner the due process protection our state - and federal constitutions demand. See § 120.60(6)(a)-(c), Fla. Stat (2015). Consequently, we QUASH the Order of Emergency Suspension of License. See Kaplan, 45 So.3d at 21 (citing Bio-Med Plus, 915 So.2d at 669).
We also deny Petitioner’s request for attorney’s fees and costs. Petitioner’s request should have been by separate motion. See Fla. R. App. P. 9.400(b)(2). The “ ‘failure to file a motion for attorney’s fees in accordance with Florida-Rule of Appellate Procedure 9.400(b) is a proper basis for the denial- of fees on appeal.’ ” McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 696 (Fla. 4th DCA 1999) (quoting Salley v. City of St. Petersburg, 511 So.2d 975, 977 (Fla.1987)); see also, Green v. Sun Harbor Homeowners’ Ass’n, Inc., 685 So.2d 23, 26 n. 2 (Fla. 4th DCA 1997) (noting that “at the appellate level, if a party seeking appellate attorney’s fees requests appellate attorney’s fees in its brief, but fails to ask for attorney’s fees by separate motion, that party will not be entitled to appellate attorney’s fees”) - (emphasis added), quashed on other grounds, 730 So.2d 1261 (Fla.1998); ACD Corp. of Fla. v. Walker, 413 So.2d 33, 33 (Fla. 1st DCA 1981); Melweb Signs, Inc. v. Wright, 394 So.2d 475, 477 (Fla. 1st DCA 1981).
ROWE, KELSEY, and JAY, JJ., concur.
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James Ray Renner, D.M.D. v. State (Fla. 1st DCA 2023)…hat requirement. Because an emergency order restricts a license before the licensee has been afforded a hearing, we require that the order be as narrowly tailored as possible under the circumstances. See Webber v. State, Dep’t of Bus. & Pro. Regul., 198 So. 3d 922, 922–23 (Fla. 1st DCA 2016). To that end, the emergency order must evaluate available remedies and explain why less harsh remedies are insufficient. Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, Div. of Motor Vehicles, 869 So. 2d 7…
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Sheriff of Broward Cnty. v. Afl-Cio (Fla. 1st DCA 2023)…before PERC and in which Appellee prevailed. We affirm the award of fees. We note that neither party filed a motion for appellate attorneys’ fees, so neither is entitled to claim or receive such fees. Webber v. State, Dep’t of Bus. & Prof’l Regul., 198 So. 3d 922, 923 (Fla. 1st DCA 2016) (noting that Florida Rule of Appellate Procedure 9.400(b)(2) requires a separately filed motion for appellate fees, failing which no such fees can be awarded). DISMISSED in part, AFFIRMED in part. WINOKUR and M.K. THOMAS,…
Authorities Cited (12 total)
- Green v. SUN Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998)
- Fran McCREARY and Cain McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692 (Fla. 4th DCA 1998)
- Bio-Med Plus, Inc. v. State, 915 So. 2d 669 (Fla. 1st DCA 2005)
- Salley v. City OF ST. Petersburg, 511 So. 2d 975 (Fla. 1987)
- Steven L. Kaplan, M.D. v. State, 45 So. 3d 19 (Fla. 1st DCA 2010)
- Ragu P. Nath v. State of Fla. Dep't OF Health, 100 So. 3d 1273 (Fla. 1st DCA 2012)
- Green v. SUN Harbor Homeowners' Ass'n, Inc., 685 So. 2d 23 (Fla. 4th DCA 1996)
- Melweb Signs, Inc. v. Wright, 394 So. 2d 475 (Fla. 1st DCA 1981)
- Preferred RV, Inc. v. Dep't of Hwy. Safety & Motor Vehicles, 869 So. 2d 713 (Fla. 1st DCA 2004)
- Daby v. Palm Beach Sheriff's Dep't, 100 So. 3d 1273 (Fla. 4th DCA 2012)