Florida Court Cases - Case Law and Opinions from the Courts of Florida - unoffical reports - Opinions

ROMINGER LEGAL

Florida Case Law & Florida Court Opinions - Florida Law

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DANIEL CAMPBELL DAUBE, JR.,
NOT FINAL UNTIL TIME EXPIRES
M.D.,
TO FILE REHEARING MOTION AND
DISPOSITION THEREOF IF FILED.
Petitioner,
CASE NO. 1D05-0251
v.
DEPARTMENT OF HEALTH,
Respondent.
Opinion filed February 22, 2005.
Petition for Review -- Original Jurisdiction.
John W. Black, Tallahassee; Lisa Shearer Nelson of Holtzman, Equels, Tallahassee,
for petitioner.
William Large, General Counsel, and Dana Baird, Assistant General Counsel,
Department of Health, Tallahassee, for respondent.
ON MOTION FOR STAY
PER CURIAM.
Petitioner filed a motion to stay a Department of Health (DOH) emergency
order which suspended his license to practice medicine. We granted relief by an
unpublished order and now issue this opinion to explain our ruling.
The emergency order alleged that instead of using BOTOXŽ in wrinkle
reduction procedures, petitioner used an unapproved product without the consent of

his patients. When petitioner became aware of media reports of the danger of the
unapproved product, he immediately ceased using the product and destroyed his
remaining supply. Thereafter, DOH issued its order suspending his license to practice
medicine on an emergency basis. Petitioner sought a stay of the emergency order
arguing that a suspension of his license was not necessary to prevent future harm. In
an emergency action against a license, section 120.60(6)(b), Florida Statutes (2004),
requires that an agency take only that action necessary to protect the public interest.
An emergency order issued prior to a hearing must contain facts sufficient to
demonstrate immediate danger, necessity, and procedural fairness. See, e.g., Witmer
v. Dep't of Bus. and Prof'l Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994). Such an
order must be fair in two respects: the remedy must be tailored to address the harm,
and the order must provide for an administrative hearing. See Premier Travel Int'l
Inc. v. Dep't of Agric., 849 So. 2d 1132, 1137 (Fla. 1st DCA 2003); White Const. Co.
Inc. v. State, Dep't of Transp., 651 So. 2d 1302, 1305 (Fla. 1st DCA 1995).
Because the agency's emergency order was broader than that "necessary to
protect the public interest under the emergency procedure" as provided in section
120.60(6)(b), a more narrowly tailored emergency order is appropriate. See Kubski
v. State, Dep't of Health, 840 So. 2d 376 (Fla. 1st DCA 2003); Cunningham v.
Agency for Health Care Admin., 677 So. 2d 61 (Fla. 1st DCA 1996). We granted
petitioner's motion to stay the emergency suspension order on condition that he
2

immediately halt all use of the unapproved product and that any wrinkle reduction
treatment by petitioner be limited to the use of BOTOXŽ. We also authorized DOH
to monitor these conditions and to set reasonable restrictions on petitioner's use of
BOTOXŽ. By granting the stay, we are not questioning the seriousness of the
allegation that petitioner used an unapproved product on patients without their
consent. However, the emergency order did not allege that any of petitioner's patients
were harmed or suffered an adverse outcome or injury caused by the unapproved
product. Nor did DOH challenge petitioner's assertion that he had stopped using the
product and destroyed his remaining supply before the emergency order issued.
Under these circumstances, the complained of conduct is not likely to recur and
issuance of the emergency order suspending petitioner's license was not necessary to
prevent future harm. General conclusory predictions of harm are not sufficient to
support the issuance of an emergency suspension order. See Florida Ass'n of Health
Maint. Org. v. Dep't of Ins., 771 So. 2d 1222 (Fla. 1st DCA 2000). Punishment for
past behavior is properly the subject of an administrative complaint pursuant to
section 120.60(5) wherein the licensee is afforded the opportunity to challenge the
factual basis of the complaint through a section 120.57(1) hearing.
MOTION FOR STAY GRANTED.
ALLEN, VAN NORTWICK and PADOVANO, JJ., concur.
3

	ROMINGER LEGAL
		Florida Case Law & Florida Court Opinions - Florida Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE