In a post last week, I discussed nonfinal emergency suspension orders.  One may be asking:  why would I seek judicial review of a suspension order when I could just request an evidentiary hearing and challenge the merits of the order?  The answer is twofold.  First, judicial review could lead to the appellate court quashing all or part of the order.  Second, a licensee typically has a right to an interim stay of the order pending judicial review.  § 120.68(3), Fla. Stat.  This article discusses the basics of requesting an interim stay.

Although a licensee is entitled to an interim stay as a matter of right, the licensee must file a motion with the appellate court requesting the stay.  § 120.68(3), Fla. Stat.; Fla. R. App. P. 9.190(e)(2)(B).  Filing the motion with the appellate court is unique to suspension orders; most motions to stay administrative orders are generally filed first with the agency and, if denied by the agency, then filed with the appellate court.  Fla. R. App. P. 9.190(e).  The motion should be filed simultaneous with, or shortly after, the petition to review suspension order and should be labeled “emergency” to give the court notice that the licensee is seeking an expedited ruling on the motion.

After the motion is filed, the appellate court may enter an order directing the agency to file a response explaining why the stay should not be granted.  Why does the agency get to respond if section 120.68(3) allows for stays as a matter of right?  Well, section 120.68(3) also gives appellate courts authority to deny the stay in certain situations.

Courts can deny a stay if the agency establishes that a stay “would constitute a probable danger to the health, safety, or welfare of the state.”  § 120.68(3), Fla. Stat.  To meet its burden, the agency “must submit specific facts or documentation from which [the court] can infer the asserted danger.”  The agency cannot rely on conclusory assertions.  Freeman v. Dep’t of Health, No. 1D21-0317 (Fla. 1st DCA Mar. 16, 2021) (granting stay when agency asserted a probable danger based solely on the licensing decision by an agency in another state); Daube v. Dep’t of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005) (“[g]eneral conclusory predictions of harm are not sufficient).

Given the agency’s right to request denial of the stay, the licensee’s motion should explain why granting the stay would not constitute a probable danger to the state and why denial of the stay would cause irreparable harm to the licensee.  If the court grants the stay, then the licensee can continue working, typically with certain conditions imposed by the appellate court.  § 120.68(3), Fla. Stat.  Because the licensee can generally continue working in some capacity, obtaining a stay of the suspension order pending judicial review is critical.

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.

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