Opinion
No. 1D21-3132
04-06-2022
Dr. James WRIGHT, Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
Jacob V. Stuart, Jr., Orlando, for Petitioner. Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
Jacob V. Stuart, Jr., Orlando, for Petitioner.
Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
Per Curiam.
Petitioner is a licensed pharmacist. He disputes certain facts in the emergency order which restricted his license to practice pharmacy on an emergency basis. See § 120.60(6), Fla. Stat. (2021). However, "[w]hen evaluating the sufficiency of an emergency suspension order, an appellate court is limited to examining the face of the order itself to determine if the elements were alleged in sufficient detail." Kruse v. Dep't of Health , 270 So. 3d 475, 479 (Fla. 1st DCA 2019).
Here, the allegations against Petitioner were sufficiently detailed to show an "immediate serious danger to the public health, safety, or welfare" to permit the Department to issue the emergency order. § 120.60(6). Contrary to Petitioner's contention, the language of the statute does not require actual harm to have occurred before an emergency order can issue. It is sufficient for the Department to allege "possible harm" creating an immediate serious danger, so long as the other requirements of section 120.60(6) are satisfied. Bio-Med Plus, Inc. v. State, Dep't of Health , 915 So. 2d 669, 673 (Fla. 1st DCA 2005).
The dissent contends that the emergency suspension order was not the least restrictive means to protect public safety. Since this issue was not argued in the petition, we cannot address it. See Rosier v. State , 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc).
DENIED .
Bilbrey and Winokur, JJ., concur; B.L. Thomas, J., dissents with opinion.
B.L. Thomas, J., dissenting.
I would reverse the order because the Department failed to establish that this de facto suspension was the least restrictive means to protect public safety. Cf. , Sanchez v. Dep't of Health , 225 So. 3d 964 (Fla. 1st DCA 2017) (holding that license restriction was narrowly tailored as dental hygienist was allowed to treat male patients); Nath v. Dep't of Health , 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012) (license suspension reversed in part, agency failed to narrowly tailor to permit acupuncturist to treat only male patients).