Opinion
No. 1D23-224
03-15-2023
Casey Joan WOODY, M.D., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
John C. Cardello of Chapman Law Group, Sarasota, for Petitioner. John Wilson, General Counsel, and Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
Petition to Review Non-Final Agency Action—Original Jurisdiction.
John C. Cardello of Chapman Law Group, Sarasota, for Petitioner.
John Wilson, General Counsel, and Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
On Motion for Stay
Winokur, J.
Dr. Casey Joan Woody seeks a stay of an "Order of Emergency Restriction of License" issued by the Department of Health. We conclude that the order suspends Dr. Woody’s medical license rather than restricting it, so that the Department was required to comply with the standards applicable to suspending licenses, including those requirements for motions to stay the emergency order pending review. However, we also conclude that the Department’s argument is sufficient to overcome a stay of the suspension order. Accordingly, we deny Dr. Woody’s motion to stay.
I
The Department entered an emergency order "restricting" Dr. Woody’s license to practice as a medical doctor in accordance with sections 120.60(6) and 456.073(8), Florida Statutes. According to the emergency order, Dr. Woody abused controlled substances and alcohol. Based on these findings and the critical importance of good judgment for anesthesiologists, the Department concluded that Dr. Woody was not capable of caring for patients in a safe and correct manner, which presented an immediate, serious danger to the health, welfare, and safety of the public. The Department rejected restrictions to the license, such as requiring Dr. Woody to practice under direct supervision or restricting her practice in a position which may be deemed safety sensitive, as such restrictions were deemed insufficient.
[1] As a result, the Department took action on Dr. Woody’s license to practice medicine as follows: "[t]he license of [Dr. Woody] to practice as a medical doctor … is immediately restricted to prohibit Dr. Woody from practicing as a medical doctor until PRN [the Professionals Resource Network] or a PRN-approved evaluator notifies the Department that she is safe to return to the practice of medicine." The Department mischaracterized its action against Dr. Woody by labeling it a "restriction" rather than a suspension of her license to practice medicine. Instead of limiting Dr. Woody’s license to practice, the order prohibits her medical practice entirely, for an indefinite period. Dr. Woody cannot end this prohibition on her own; only "PRN or a PRN-approved evaluator" can make that decision.
This is a suspension under any reasonable definition of the word. Accordingly, the Department should have proceeded under sections 120.60(6) and 120.68(3), Florida Statutes, as those laws pertain to license suspensions, rather than license restrictions.
II
The Department issued an order immediately prohibiting Dr. Woody from practicing medicine. Dr. Woody appealed the order and sought a stay. Subsection (3) of section 120.68 reads as follows:
The Department correctly notes that appeal is not appropriate, and that Dr. Woody should have filed a petition for review of the emergency order pursuant to Florida Rule of Appellate Procedure 9.190(b)(2). By separate order we converted this appeal into a petition for review under that rule.
The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state…. [T]he court shall specify the conditions, if any, upon which the stay or supersedeas is granted.
In short, when an agency decision "has the effect of suspending or revoking a license," the decision is stayed "as a matter of right" pending review., The Department claims that its action on Dr. Woody’s license is a "restriction" rather than a suspension, so that she is not entitled to a stay as a matter of right. To support this claim, the Department argues that a suspended licensee is "completely prohibited from practice until the emergency order is either quashed … or disciplinary proceedings are completed," and that "[t]here are no circumstances that would permit the licensee to resume practice." A restriction, according to the Department, occurs when the licensee "can practice as long as they comply with the restrictions that have been placed on their license;" which it claims happened here because Dr. Woody "has the ability to practice medicine while the order remains in effect."
For the purposes of this case, "supersedeas" and stay of enforcement of an agency decision are synonymous. See, e.g., Hirsch v. Hirsch, 309 So. 2d 47, 50 (Fla. 3d DCA 1975) ("The function and purpose of a supersedeas is, generally, to stay further judicial proceedings in the trial court, to restore or preserve the status quo or to stay execution of an order or judgment.").
The statute allows "conditions as are reasonable" to be placed on the presumptive stay of suspension. Dr. Woody does not propose any reasonable conditions of stay that should be imposed.
[2] We turn to Agency for Health Care Admin. v. Ybor Med. Inj. & Accident Clinic, Inc., for the definition of "suspend" as used in section 120.68(3): " ‘Suspend’ means ‘[t]o bar for a period from a privilege, office, or position…. [t]o interrupt or stop temporarily.’ " 334 So. 3d 596, 598 (Fla. 2022). The supreme court clarified that "suspend" means to "temporarily … take away something already granted—in this case, one’s right or privilege to a license." Id. at 599. The supreme court also noted that the statute "tells us that the label an agency attaches to its decision does not control whether the statute’s presumptive stay provision applies" because it "refers to an agency decision that ‘has the effect of suspending or revoking a license.’ " Id. (Emphasis in original.) "What matters under section 120.68(3) is that the agency decision be the functional equivalent of a suspension or revocation and that the decision act on an existing license." Id.
The Court in Ybor Med. Inj. & Accident Clinic ruled that the agency action at issue was not a suspension because it did not act on an existing license. Id. at 599. Dr. Woody’s license, in contrast, is an existing license.
The Department "barred" Dr. Woody from practicing medicine "for a period," that period being from the time of the order "until PRN or a PRN-approved evaluator notifies the Department that she is safe to return to the practice of medicine." By the order’s terms, the Department "prohibited" Dr. Woody from practicing medicine until deemed safe to "return." This is plainly a license suspension.
The Department contends that the order constitutes merely a license restriction because Dr. Woody can practice medicine provided that she comply with a restriction, that is, obtain the approval of PRN. This condition does not transform the order into a restriction.
First, the Department acknowledges that a restriction permits a licensee to continue the licensed activity, but only under some condition or limitation, such as prohibiting a certain procedure or prohibiting practice upon patients of a certain sex. But the order here does no such thing. It does not place a condition or limitation on Dr. Woody’s license to practice medicine, it "prohibits" medical practice until she is deemed fit to "return."
[3] Perhaps an order that prohibits licensed activity until the licensee takes some action could arguably be considered a restriction rather than a suspension. But even this avenue is not open to Dr. Woody. Instead, her suspension is indefinite, ending only when some outside, apparently unaccountable, organization (PRN) unilaterally decides that she is ready to resume practice. In short, an order that prohibits licensed activity until the licensee is deemed fit to resume the licensed activity has, at the very least, the effect of suspending the license.
Judge Bilbrey correctly notes that Dr. Woody never raised this issue in her motion to stay. But we are ruling on a motion addressed to this Court in an original proceeding, not on an appeal where the appellant has an obligation to assert only those arguments raised below. More importandy, pursuant to section 120.68(3), the Department bears the burden to petition this Court to determine that a stay would constitute a probable danger. This Court ordered the Department to address the restriction/suspension distinction, which it has done. We conclude that the question is properly before us.
[4] Before turning to the question whether Dr. Woody is entitled to a stay of her suspension order under section 120.68(3), we note that the correct characterization of the agency action affects the application of section 120.60(6)(c), which reads in pertinent part as follows: "Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon." In other words, while an agency may order an emergency license restriction without instituting an action pursuant to sections 120.569 and 120.57, Florida Statutes, it must institute such an action when it orders an emergency suspension. See Field v. State, Dep’t of Health, 902 So. 2d 893, 895 (Fla. 1st DCA 2005) ("Section 120.60(6)(c) requires, in cases of summary suspension, that the Department promptly institute a formal suspension or revocation proceeding pursuant to sections 120.569 and 120.57"). A proceeding under these statutes may permit the licensee to challenge the factual basis for the agency action. See id. The mischaracterization of the agency action in this case has consequences for Dr. Woody beyond this review proceeding.
III
[5] But considering only Dr. Woody’s motion to stay, the evidence does not support a stay, in spite of our conclusion that the order suspends her license rather than restricting it. We construe the Department’s response to our order to show cause as a petition to oppose supersedeas pursuant to section 120.68(3). In its response, the Department meets its burden to demonstrate that a stay would constitute a probable danger to the health, safety, or welfare of the state. See § 120.68(3), Fla. Stat. In reaching this conclusion, we make two observations. First, the Department persuasively argues that the statutory standard for this Court to deny supersedeas (probable danger to the health, safety, or welfare of the state) is lower than the standard for an agency to impose an emergency suspension in the first place (immediate serious danger to the public health, safety, or welfare). §§ 120.60(6); 120.68(3), Fla. Stat. Second, the Department correctly argues that we are required to accept the allegations in the suspension order as true, and must judge "immediate danger, necessity, and procedural fairness" in the context of those allegations. See § 120.60(6)(c), Fla. Stat.; Omulepu v. State, Dep’t of Health, 198 So. 3d 1046, 1047 (Fla. 1st DCA 2016) ("Appellate review of an emergency order is limited to ‘examining the face of the order itself to determine if the elements were alleged with sufficient detail.’ " (quoting Nath v. Dep’t of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012))). In contrast, Dr. Woody’s motion primarily, and improperly, disputes the factual allegations contained in the order.
In summary, we conclude that the Department suspended Dr. Woody’s medical license, that this suspension alters the Department’s obligations for a stay pending review, and that the suspension invokes the requirement that it promptly institute suspension proceedings under sections 120.569 and 120.57. Nonetheless, the Department has met its burden to establish a probable danger to the health, safety, or welfare of the state.
Motion Denied.
Osterhaus, J., concurs; Bilbrey, J., concurs in result with opinion.
Bilbrey, J., concurring in result.
I agree that we are correct to deny Petitioner’s motion to stay her medical license suspension. The majority opinion correctly explains the difference between a license restriction and suspension. Had this issue been raised in the motion, I would join the majority opinion. But since this issue was not raised by Petitioner, does not concern our jurisdiction, and does not amount to fundamental error, I can only concur in result. See Showntail the Legend, LLC v. Dep’t of Bus. & Prof’l Regul., 302 So. 3d 1085 (Fla. 1st DCA 2020).