HAROLD JOSEPH LAWLER, III, PETITIONER,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH, RESPONDENT
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Dr. Lawler challenged an emergency restriction order (ERO) issued by the Florida Department of Health that prohibited him from prescribing scheduled medications. The court held that the ERO was invalid because the Department failed to support its allegations with particularized facts rather than general conclusory statements, and therefore did not meet its burden of establishing the necessary elements for issuance of an ERO.
The court held that the ERO was invalid because the Department failed to meet its burden. The Department relied on general, conclusory allegations unsupported by particularized facts, including vague assertions of 'deliberate nature,' 'deceitful practices,' and 'inadequate medical history' without specific details. The court concluded that while the alleged course of treatment may be distressing and could warrant discipline if proven, it lacked sufficient factual support to establish a genuine emergency to the public.
[1] An emergency restriction of license order must be supported by particularized facts, not general or conclusory allegations.
[2] An agency issuing an emergency restriction of license must allege sufficient facts demonstrating an immediate serious danger to the public.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The agency's stated reasons for [issuing an ERO] cannot be general or conclusory, but 'must be factually explicit, and persuasive concerning the existence of a genuine emergency.'”
Establishes the standard that an agency cannot rely on conclusory statements when issuing an ERO; reasons must be factually explicit and persuasive.
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Join FLexlaw to unlock all legal intelligenceDr. Lawler, a medical doctor, received an emergency restriction order from the Department of Health prohibiting him from prescribing scheduled medicat…
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Harold Joseph Lawler III, M.D., petitions for review of an order of emergency restriction of license (ERO) issued by the Department of Health, prohibiting him from prescribing scheduled medications. Dr. Lawler argues that the Department has not met its burden of alleging sufficient facts on the face of its order that demonstrate the elements necessary for the issuance of an ERO, which are that: (1) there is an immediate serious danger to the public; (2) the complained of conduct is likely to continue; (3) the order is necessary to stop the emergency; and (4) the order is narrowly tailored to be fair. See Nath v. Dep’t of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012); Kaplan v. Dep’t of Health, 45 So.3d 19, 20-21 (Fla. 1st DCA 2010); Field v. Dep’t of Health, 902 So.2d 893, 895 (Fla. 1st DCA 2005); § 120.60(6), Fla. Stat. (2016).
The ERO in this case fails because it makes general, conclusory allegations that are not supported by particularized facts. For example, it alleges that Dr. Lawler’s treatment of the patient at issue failed to adhere to the minimum standard of care and was of a “deliberate nature,” and that he engaged in “deceitful practices” and “deceitful schemes.” But the ERO fails to provide specific facts in support of these assertions. Further, while the ERO alleges cursory and inadequate physical examinations in the patient’s follow-up visits, it does not mention the nature of the initial examination. Moreover, the allegation that Dr. Lawler failed to obtain an adequate medical history is wholly conclu-sory because no specific deficiencies were identified.
Because the Department may not rely on general or conclusory statements to support the issuance of an ERO, the Department has failed to meet its burden of alleging the necessary facts to satisfy the elements for the issuance of an ERO. See Field, 902 So.2d at 895 (“The agency’s stated reasons for [issuing an ERO] cannot be general or conclusory, but ‘must be factually explicit, and persuasive concerning the existence of a genuine emergency.’ ”) (quoting Commercial Consultants Corp. v. Dep’t of Bus. Reg., 363 So.2d 1162, 1165 (Fla. 1st DCA 1978)). While the alleged course of treatment as to this patient is distressing, and if proven may be a basis for discipline, the factual support for a genuine emergency to the public is lacking. Therefore, we grant Dr. Lawler’s petition for review and quash the ERO.
PETITION GRANTED; ORDER QUASHED.
WOLF, RAY, and MAKAR, JJ„ CONCUR.
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Eric Lang, D.O. v. State (Fla. 1st DCA 2020)…be fair.” Kaplan v. Dep’t of Health, 45 So. 3d 19, 20–21 (Fla. 1st DCA 2010). “General conclusory predictions of harm are not sufficient . . . .” Daube v. Dep’t of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005); see also Lawler v. Dep’t of Health, 217 So. 3d 208, 209 (Fla. 1st DCA 2017) (quashing an ERO where the immediate facts were “distressing,” but which contained only general and conclusory allegations of future harm). Our cases approving of emergency restrictions for sexually oriented misconduct have…
Authorities Cited
- Commercial Consultants Corp. & Linene Woods, Inc. v. Dep't of Bus. Reg., 363 So. 2d 1162 (Fla. 1st DCA 1978)
- Steven L. Kaplan, M.D. v. State, 45 So. 3d 19 (Fla. 1st DCA 2010)
- Steven A. Field, M.D. v. State, 902 So. 2d 893 (Fla. 1st DCA 2005)
- Ragu P. Nath v. State of Fla. Dep't OF Health, 100 So. 3d 1273 (Fla. 1st DCA 2012)
- Daby v. Palm Beach Sheriff's Dep't, 100 So. 3d 1273 (Fla. 4th DCA 2012)