Appeals of state agency immediate final orders and emergency suspension orders.

In regulating businesses and professions, state agencies not only have the power to grant licenses; they also have the power to take licenses away. Often, when agencies do so, they revoke or limit a license through an "emergency" process, which allows an agency to take emergency action against a licensee when an immediate danger to public health, safety, or welfare exists. Additionally, agencies have the power to take immediate action directly affecting a business or industry in situations that do not involve licenses. A frequent example is the destruction of citrus groves as a result of citrus canker, pursuant to orders from the Department of Agriculture. (1)

Because "emergency" state action may be initiated without the benefit of any predeprivation hearing, agencies must strictly adhere to legislative mandates governing the issuance of emergency orders. When a client receives an emergency order, a lawyer must know both what to file and where to obtain review of the order. This article addresses these and other issues related to appeals of emergency orders and it also notes problem areas in this process that need to be addressed.

Two Types of Emergency Orders

Generally, agencies issue two types of emergency administrative orders: immediate final orders (IFOs) and emergency license suspension orders (ESOs). These terms are frequently used interchangeably in case law, because ESOs can be either immediate final orders or nonfinal orders. Because the standards are different for orders issued in the licensure context, we use the term ESO to reference license suspension orders and the term IFO to reference immediate final orders outside the licensure context.

IFOs are issued pursuant to F.S. [section] 120.569(2)(n). Under that statute, if an agency head finds that an immediate danger to public health, safety, or welfare exists, the agency may issue an IFO. Facially, F.S. [section] 120.569(2)(n) sets forth only one requirement: The IFO must "recite with particularity the facts underlying" the agency head's finding that an immediate danger to public health, safety, or welfare exists.

For an agency to meet this standard, the IFO "must allege facts showing that specific incidents of irreparable harm to the public interest will occur" without an immediate order. (2) The factual allegations cannot be conclusory. The allegations must show 1) an imminent threat; 2) of specific incidents of irreparable harm to the public interest; 3) requiring the use of the extraordinary device afforded by the statute. (4) Typically, this will require extremely specific factual recitations regarding the basis of the harm and a showing that the complained-of conduct is likely to continue. Additionally, an IFO must be narrowly tailored to be fair, and all elements necessary to the validity of the IFO must appear on its face. (4)

ESOs are issued pursuant to F.S. [section] 120.60(6), and are used when an agency believes emergency action is needed to suspend, restrict, or limit a license. Like F.S. [section] 120.59(2)(n), which governs IFOs, F.S. [section] 120.60(6) allows an agency to take emergency action when the agency finds that an immediate danger to public health, safety, or welfare exists. However, F.S. [section] 120.60(6) provides that the immediate danger must be an "immediate serious danger." Practically speaking, this appears to be a distinction without a difference. Under either statute the danger must be serious. Otherwise, the agency should not take emergency action. Additionally, F.S. [section] 120.60(6) mandates the following additional requirements for ESOs: the procedure used must be fair under the circumstances; the procedure used must at least provide the same procedural protection as given by the law and the state and federal constitutions; the agency can take only that action necessary to protect the public interest; and the ESO must contain a written statement stating the specific facts and reasons for finding an immediate danger and the reasons for concluding that the procedure used is fair under the circumstances.

In an ESO, the agency must explain why less harsh remedies than those imposed in the ESO, such as probation, a fine, or a notice of noncompliance, are not sufficient to stop the alleged harm. (5) Additionally, like an IFO, all of the factual allegations and elements necessary to determine the validity of the ESO must appear on the face of the order. (6) Simply alleging that a statute has been violated is an insufficient basis for an emergency order. As with IFOs, because an agency is allowed to act before according basic due process rights to the parties where fundamental rights are involved, the agency's statement of reasons for acting must be factually explicit and persuasive concerning the existence of a genuine emergency. (7) The court will not infer immediate harm, nor will it consider general conclusory predictions of harm. (8)

F.S. [section] 120.60(6)(c) also provides that "[s]ummary suspension, restriction, or limitation may be ordered," but only if the agency also promptly institutes and acts upon the action in an administrative proceeding. The purpose of the administrative proceeding is to determine whether the ESO should be made permanent and to afford the licensee due process to contest the allegations in that order. (9)

On its face, the statute appears to only require postdeprivation administrative proceedings when the nonfinal "summary" suspension, restriction, or limitation process is used. The statute is silent as to further administrative action for ESOs that are final rather than "summary" in nature. However, courts have held that a postdeprivation hearing must be afforded licenses under either type of ESO; otherwise, the agency fails to meet the "procedural fairness" prong required for issuance of the ESO. (10)

Judicial Review

Although the language in the governing statutes differs, both IFOs and ESOs are judicially reviewable by the appropriate district court of appeal. Under F.S. [section] 120.569(2)(n), IFOs are immediately "appealable or enjoinable" from the date rendered. (11) This language appears to allow an immediate appeal to the district court or an immediate injunction proceeding in circuit court. Case law, however, provides otherwise. Injunctive relief in circuit court is generally unavailable unless administrative remedies have been exhausted. (12) Thus, an affected party seeking immediate review of an IFO usually is limited to appealing the order to the appropriate district court of appeal.

Similarly, F.S. [section] 120.60(6)(c) provides that nonsummary ESOs are "judicially reviewable." Again, such review is generally to the appropriate district court of appeal. The statute is silent as to review of summary ESOs. However, review of summary ESOs is available under F.S. [section] 120.68(1), which provides that nonfinal agency orders may be immediately reviewable if review of the final agency decision would not provide an adequate remedy. (13) For all three types of orders, IFOs, ESOs, and summary ESOs, judicial review can be sought pursuant to F.S. [section] 120.68(2)(a) in the appellate district where the agency maintains its headquarters, where a party resides, or as otherwise provided by law. In practice, because most agencies are headquartered in Tallahassee, review of these orders is usually sought in the First District Court of Appeal.

In addition to F.S. [section] 120.68, Florida Rule of Appellate Procedure 9.190 governs judicial review of administrative action. Under Rule 9.190(b), depending on the type of order issued, review is commenced by filing a notice of appeal of a final order as provided in Rule 9.110(c) or by petition for review of nonfinal agency action as provided in Rule 9.100(c)(3). An IFO, by its very nature, is an immediate "final" order subject to appeal. Like many other orders, however, determining whether an ESO is final or summary agency action is sometimes difficult. Under F.S. [section] 120.569(1), state agencies must include information in the order informing the adversely affected party of the right to review, the procedure to be followed, and the time limits that apply. This information provides guidance as to whether the order is to be appealed as a final or nonfinal order. Our experience, however, reflects that the information provided by an agency is not always procedurally accurate.

In either case, the document seeking review of the order must be filed within 30 days of rendition of the order to be reviewed. (14) If review is sought via appeal of a final order, the notice of appeal must be filed with the agency clerk. (15) A copy of the notice must be filed with the clerk of the reviewing court, along with the appropriate filing fee. (16) A conformed copy of the order designated in the notice must be attached to the notice. (17)

If review is sought via a petition for review of nonfinal agency action, the petition must be filed directly with the district court of appeal along with the appropriate filing fee. (18) If a party erroneously treats a nonfinal order as final and files a notice of appeal, the appellate court may, at the party's request, treat the notice of appeal as a petition for review of nonfinal agency action and give the party additional time in which to prepare the petition. (19) The appellate court's scope of review of an emergency order is limited to a determination of whether the order complies with the requirements of the statute. (20)

Stays

Obtaining a stay of an IFO or ESO is often critical. In the ESO context, a licensee is entitled to a stay of an emergency suspension as a matter of right unless the district court, upon petition of the agency, determines that the stay would constitute a probable danger to the health, safety, or welfare of the state. (21) If the court grants the stay, the court must specify any conditions upon which the stay is based. (22) Importantly, however, the filing of the appeal or petition for review of nonfinal agency action does not, in and of itself, stay enforcement of the agency decision. (23) To obtain a stay of an ESO, a party should file a separate motion to stay the ESO simultaneously with the notice of appeal or petition in accordance with Rule 9.190(e), which governs stays of administrative orders.

The general rules governing stays do not apply to orders suspending or revoking a license. Generally, parties seeking to stay an administrative order must first seek relief from the agency and can only seek relief directly in the appellate court upon a showing of good cause. (24) However, under Rule 9.190(e)(2)(B) and F.S. [section] 120.68(3), a licensee is not required to apply first to the agency for such a stay as a prerequisite to obtaining a stay from the appellate court.

Where an agency contends that the granting of a stay will constitute a probable danger, the motion and response ordinarily will be considered by the court on an expedited basis. (25) As a practical matter, when a party is asking the court to grant expedited relief, the title of the motion should include the word "expedited" and the moving party should ask for expedited treatment in the motion. Our experience reflects that the district courts usually act very quickly once an expedited request is filed, often directing the agency to file a response within 24 to 48 hours, and rendering a decision within hours after the agency's response is filed.

At this stage, the burden is placed on the agency to show that the danger is so great that immediate action is necessary and that a stay of the agency's action would cause great harm. (26) Although Rule 9.190(e) makes no provision for the licensee to reply to an agency's argument that a stay will result in a probable danger, due process considerations suggest that such an opportunity should be afforded before a motion for stay is denied on "probable danger" grounds. (27) Because orders permitting a reply will issue only if the court determines that the agency's response states a basis for denying a stay, the filing of an unsolicited reply is both unnecessary and unauthorized. (28) To avoid the necessity of a reply, motions should include as much information as possible as to why a stay will not result in a probable danger and why the failure to stay the action will cause irreparable harm to the licensee.

The rules and statutes contain no similar expedited requirements for IFOs issued pursuant to F.S. [section] 120.569(2)(n). Practically speaking, however, the emergency under which an IFO is issued should be sufficient to meet the "good cause shown" exception for bringing a motion to stay directly to the appellate court. Unlike ESOs taking emergency action against a licensee, a party seeking to stay an IFO outside the licensure context is not entitled to a stay as a matter of right. Thus, in addition to demonstrating why a stay will not result in a probable danger, the movant must take extra care to include all of the reasons why a stay is warranted. Generally, the showing required to obtain injunctive relief also should demonstrate sufficient grounds for a stay. (29) Such a showing is consistent with the directive in F.S. [section] 120.569(2)(n) that an IFO is "appealable or enjoinable" from the date rendered.

Once a stay is issued, Rule 9.190(e)(4) provides that the stay will remain in effect during the pendency of all review proceedings until a mandate issues, unless otherwise modified or vacated. Additionally, under Rule 9.190(e)(2)(D), at any time during the process, an agency may apply to the court for dissolution or modification of the stay on grounds that subsequently acquired information demonstrates that failure to dissolve or modify the stay would constitute a probable danger to the public health, safety, or welfare of the state.

Attorneys' Fees

Pursuant to F.S. [section] 120.595(5), as in any other administrative appeal, the court in its discretion may award reasonable attorneys' fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency's discretion. Additionally, other statutory provisions regarding attorneys' fees, including F.S. [subsection] 57.105 and 57.111, can apply. (30) Motions for attorneys' fees must be served no later than the time of service of the reply brief and must state the grounds on which the recovery of the fees is sought, citing all pertinent statutes or other bases for the award. (31)

Oral Argument

Oral argument is permitted in any proceeding. Under Rule 9.320, a request for oral argument must be made in a separate document served by a party not later than the time the last brief of that party is due. Oral argument is granted at the discretion of the court, which may require, limit, expand, or dispense entirely with the argument.

Rehearing 

Rule 9.330 governs motions for rehearing, clarification, or certification. Under this rule, such motions must be filed within 15 days of an appellate order or within such other time set by the court. A motion for rehearing must state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its order. The motion shall not present issues not previously raised in the proceeding. Because the rule governs rehearing of appellate "orders" (and not just final decisions), in the case of an IFO or ESO, the litigant may need to consider filing for rehearing of an order denying the expedited stay--but only in very limited circumstances set forth in Rule 9.330.

Mandate

Under Rule 9.340, 15 days after the district court's decision, the clerk of the court is to issue a mandate as directed by the court. The mandate will either affirm the agency's decision or direct the agency to take action in accordance with the decision, such as remanding the entire case for a full hearing and ordering that the emergency order be vacated. If a timely motion for rehearing, clarification, or certification has been filed, the time for issuance of the mandate shall be extended until 15 days after rendition of the order denying the motion, or if the motion is granted, until 15 days after the cause has been fully determined. In the IFO and ESO context, if a stay has been granted, the issuance of the mandate eviscerates the stay.

Problems in the Process

One of the most glaring problems with the statutes governing emergency orders is the lack of any time period for providing a postdeprivation evidentiary hearing for either IFOs or ESOs. F.S. [section] 120.569(2)(n) is silent in this regard, as is F.S. [section] 120.60(6), for nonsummary ESOs. F.S. [section] 120.60(6) does provide that a post-deprivation administrative "proceeding" is to be promptly instituted and acted upon by the agency, but does not provide any guidance as to what "promptly instituted and acted upon" means. That process is akin to the process set forth in Florida Rule of Civil Procedure 1.610, under which a hearing must be promptly held to determine the validity of the allegations supporting a temporary injunction. (32) That process does not, however, provide the same protection as that afforded by Rule 1.610.

Rule 1.610(d) provides that a party who is enjoined without notice may request a postinjunction evidentiary hearing and such hearing must be held within five days thereafter. Although [subsection] 120.569(2)(n) and 120.60(6) for nonsummary ESOs provide for judicial review, no provision exists for a subsequent evidentiary hearing. F.S. [section] 120.60(6) does direct the agency to promptly institute and act upon an administrative proceeding. And case law tells us that a like process often must be instituted for IFOs and nonsummary ESOs for those orders to withstand constitutional scrutiny. Even so, under the administrative process, a party may not receive an evidentiary hearing for some time. Thus, when an emergency order passes facial muster because it contains factual allegations sufficient to warrant the emergency relief--a party must often suffer the consequences of the emergency order for a significant period of time, even if the evidentiary hearing subsequently establishes that those allegations are unsubstantiated. Because Rule 1.610 mandates an evidentiary hearing within five days, the protections afforded a party under that rule are, in many instances, far greater than those afforded a party suffering immediate action taken by an agency. Additionally, because agencies are generally immune from liability, the affected party, even if eventually successful in the administrative tribunal, may be left without any ability to recover damages suffered during, and as a result of, the wrongful issuance of the emergency order.

Another problem exists in the purported distinction between summary ESOs and other ESOs. When a license is limited in some manner, the licensee should always be entitled to a postdeprivation hearing--and, as noted, case law appears to say that is the case. However, F.S. [section] 120.60(6) only places the burden on an agency to initiate an administrative proceeding when the agency issues a summary ESO. A reasonable solution for both problems would be for the statute to provide for an expedited evidentiary hearing before an administrative law judge whenever any ESO impacting a license is issued.

Still another problem is the failure of Rule 9.190(e) to provide for an expedited process for review of stays of IFOs. The rule is limited to expedited review of stays involving license revocation or suspension orders. Consideration should be given to including a process for expedited review of stays of IFOs. Rule 9.190(e)(2)(B) could be amended as follows: (B) When an agency has ordered emergency suspension, restriction, or limitation of a license under section 120.60(6), Florida Statutes, or issued an immediate final order under Section 120.569(2)(n), [begin strikethrough]a licensee[end strikethrough] the affected party may file with the reviewing court a motion for stay on an expedited basis.

Conclusion

State agencies wield enormous power through the ability to issue IFOs and ESOs, and every effort must be made to ensure such orders are not issued without significant safeguards in place. Ironically, although statutes governing ESOs in the licensure context contain the most procedural due process protections, wrongfully issued IFOs have the potential for even greater damage. If a license is wrongfully suspended under an ESO, a subsequent administrative hearing may result in the license being reinstated. Certainly the damages incurred from the temporary loss of the license can be staggering. In the IFO context, however, once immediate action is wrongfully taken by the agency, no way to remedy the harm may exist. For instance, once a citrus crop is destroyed, the damage is done. In both instances, appellate courts must remain ever diligent in strictly applying the standards governing these orders to ensure the state's power is not abused at the expense of Floridians.

(1) See, e.g., Haire v. Fla. Dep't of Agric., 870 So. 2d 774 (Fla. 2004); Meszaros v. Dep't of Agric. & Consumer Servs., 861 So. 2d 86 (Fla. 5th D.C.A. 2003); Patchen v. State Dep't of Agric. & Consumer Servs., 817 So. 2d 854 (Fla. 3d D.C.A. 2002), quashed by Patchen v. State Dep't of Agric., 906 So. 2d 1005 (Fla. 2005).

(2) Bertany Ass'n for Travel and Leisure, Inc. v. Fla. Dep't of Fin. Servs., 877 So. 2d 854, 855 (Fla. 1st D.C.A. 2004) (citing Commercial Consultants Corp. v. Dep't of Bus., 363 So. 2d 1162, 1164 (Fla. 1st D.C.A. 1978)).

(3) Fla. Ass'n of Health Maint. Orgs. v. State, Dep't of Ins., 771 So. 2d 1222, 1224-25 (Fla. 1st D.C.A. 2000); UNIMED v. Office of Ins. Regulation, 884 So. 2d 963, 964 (Fla. 1st D.C.A. 2004).

(4) Bertany Ass'n, 877 So. 2d at 855.

(5) Preferred RV, Inc. v. Dep't of Highway Safety and Motor Vehicles, Div. of Motor Vehicles, 869 So. 2d 713, 714 (Fla. 1st D.C.A. 2004).

(6) Id.; Crudele v. Nelson, 698 So. 2d 879, 880 (Fla. 1st D.C.A. 1997).

(7) Field v. State, Dep't of Health, 902 So. 2d 893, 895 (Fla. 1st D.C.A. 2005).

(8) Daube v. Dep't of Health, 897 So. 2d 493, 495 (Fla. 1st D.C.A. 2005).

(9) See, e.g., Commercial Consultants Corp., 363 So. 2d at 1164.

(10) See Premier Travel Int'l, Inc. v. State of Fla., Dep't of Agric. & Consumer Servs., 849 So. 2d 1132 (Fla. 1st D.C.A. 2003); White Constr. Co. v. State, Dep't of Transp., 651 So. 2d 1302 (Fla. 1st D.C.A. 1995).

(11) "Rendition" is governed by Fla. R. App. P. 9.020(h).

(12) Sapp Farms, Inc. v. Fla. Dep't of Agric. & Consumer Servs., 761 So. 2d 347, 348 (Fla. 3d D.C.A. 2000); Criterion Ins. Co. v. State of Fla., Dep't of Ins., 458 So. 2d 22, 26 (Fla. 1st D.C.A. 1984). The doctrine of administrative remedies is itself a complicated area of the law and is outside the scope of this article.

(13) Commercial Consultants Corp., 363 So.2d at 1164.

(14) FLA. R. APP. P. 9.100(c)(3); FLA. R. APP. P. 9.110(c).

(15) FLA. R. APP. P. 9.110(c).

(16) Id.

(17) FLA. R. APP. P. 9.110(d).

(18) FLA. R. APP. P. 9.190(b)(2); FLA. R. APP. P. 9.100(b).

(19) FLA. R. APP. P. 9.040(c).

(20) See, e.g., Witmer v. Dep't of Business & Professional Reg., 631 So. 2d 338 (Fla. 4th D.C.A. 1994) (stating scope of review under [section] 120.54(9)(a)(3), the predecessor to [section] 120.60(6)).

(21) FLA. STAT. [section] 120.68(3) (emphasis added).

(22) Id.

(23) Id.

(24) FLA. R. APP. P. 9.190(e)(2)(A).

(25) Ludwig v. Dep't of Health, 778 So. 2d 531, 533 (Fla. 1st D.C.A. 2001).

(26) See id.

(27) Id.

(28) Id.

(29) See, e.g., Criterion, 458 So. 2d at 27.

(30) FLA. STAT. [section] 120.595(5),

(31) FLA. R. APP. P. 9.190(d)(1); FLA. R. APP. P. 9.400(b).

(32) See, e.g., Wooten v. Jackson, 812 So. 2d 609, 609 (Fla. 1st D.C.A. 2002) (quoting Utley v. Baez-Camacho, 743 So. 2d 613, 614 (Fla. 5th D.C.A. 1999)) ("The purpose of a due process hearing following the grant of an ex parte temporary injunction is to give the defendant an opportunity to show that the allegations previously relied on are not true.").

Katherine E. Giddings, a shareholder with Akerman Senterfitt, is board certified in appellate practice. She holds degrees from Florida State University and the FSU College of Law, with high honors. She is a past-chair of the Appellate Court Rules Committee and currently serves on the Rules of Judicial Administration Committee.

Todd D. Engelhardt is an associate with Akerman Senterfitt. He has degrees from Florida State University and the FSU College of Law, magna cum laude.

This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.