This article addresses the subject of nonfinal emergency suspension orders.  Section 120.60(6), Florida Statutes, authorizes state agencies to issue emergency orders suspending, restricting, or limiting a license.  Notably, an agency can issue an emergency order affecting your license before an administrative hearing is held to address the allegations in the order.  § 120.60(6)(c), Fla. Stat.

If an agency does issue a nonfinal emergency suspension order, you have the right to challenge the sufficiency of the order by filing a petition for review of nonfinal agency action in the applicable District Court of Appeal.  § 120.60(6)(c), Fla. Stat.; § 120.68(1), Fla. Stat.; Fla. R. App. P. 9.190(b)(2).  A petition must be filed within 30 days of the order.  § 120.68(2)(a), Fla. Stat.; Fla. R. App. P. 9.100(c).

Challenging the sufficiency of the order in the DCA is different than challenging the allegations in the order by administrative hearing.  The DCA’s review is limited to examining the order to determine if the order is alleged with sufficient detail.  Lohstreter v. Dep’t of Health, 298 So. 3d 1290, 1290 (Fla. 1st DCA 2020).

An emergency order must meet three elements to be valid: (1) the order must identify particular facts demonstrating an immediate, serious danger to the public health, safety, or welfare, (2) the order must be narrowly tailored to deal with the emergency, and (3) the order must be procedurally fair.  § 120.60(6), Fla. Stat.  Each element necessary to an emergency suspension order must appear on the face of the order.  Lohstreter, 298 So. 3d at 1290-91.  If the order is deficient, then the DCA can quash the order in total or in part.

A common defect with emergency orders is that the order fails to meet the second prong of the test.  The narrowly tailored test requires an agency to explain in specific detail why the action taken is necessary to protect the public.  Lohstreter, 298 So. 3d at 1291.  For example, if the agency suspends your license, the agency must explain why the suspension is necessary as opposed to restricting or limiting your license.  Many times, an agency will suspend a license without making this explanation.

In Lohstreter, the agency issued a nonfinal emergency order suspending a doctor’s license to practice medicine.  But the order failed to explain why restriction or limitation of the license were insufficient under the circumstances of the case.  Because of that flaw in the order, the First DCA quashed the portion of the order suspending the license.  Lohstreter, 298 So. 3d at 1290-91.

Having your license suspended can be a traumatic experience.  The petition for nonfinal review is an important tool that could potentially resolve the emergency order and should always be explored if an emergency order is entered that affects your license.  If the DCA denies your petition, then you still have the right to challenge the allegations of the order through a post-deprivation administrative hearing.  § 120.60(6)(c), Fla. Stat.

Jonathan Taylor is an associate attorney with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.

Posted in Administrative Appeals, Administrative Law