Writing and Challenging Emergency Orders, Part I

If someone has a professional license, like for a doctor or lawyer, they should have a fair process before it can be taken away. But in Florida, there are cases where the government can take action right away if there’s a serious danger to the public. I’ve worked on writing these emergency orders for the government, and I know what makes a good one. This article talks about what needs to be in an emergency order and will help lawyers who defend people with licenses. It’s important for all lawyers to know what makes a good emergency order, even if they don’t work on these cases. When writing an emergency order, lawyers must make sure it shows that there is an immediate, serious danger to the public. The order must also prove that the agency took only necessary action to protect the public, and that the licensee was treated fairly. All of these elements must be clear from the order itself. It’s important to provide specific facts about the danger to the public, instead of just making general statements. It can be tricky to decide if an emergency order is really necessary, so agency officials have to use their judgment. An emergency order is justified when there is a real and immediate threat to people’s lives or safety. It’s not enough to just say that someone broke a law – there has to be evidence that the public is in immediate danger. Potential financial losses can also be a reason for an emergency order, but it has to be a real and immediate threat, not just a guess. When an agency has a real emergency, they need to act quickly and issue an emergency order. This order has to only do what’s necessary to protect the public, and it can’t be too extreme. It has to be tailored to fit the specific situation. For example, if a doctor is prescribing too many drugs, the agency can stop them from prescribing drugs without stopping them from seeing patients altogether. It’s important for the agency to consider other options before just stopping someone from working. If they do that, they’re more likely to be successful if someone challenges their decision. Yes, the licensee has a right to a formal administrative hearing to contest the allegations in an emergency order. The agency must promptly issue an administrative complaint and refer the case to the Division of Administrative Hearings for a formal evidentiary hearing. The harmful conduct at issue must also be likely to continue for the agency to issue an emergency order. If it’s not likely to continue, the agency should not issue an emergency order. In order to issue a successful emergency order, agency attorneys need to know the elements and standards for review. This makes it harder for others to challenge the order. In the next part, we will discuss how to challenge an emergency order in court. Remember, a professional’s license is a valuable property right and should be protected. Sometimes, government agencies have to issue emergency orders without needing to prove that there is an immediate danger. Courts will decide whether to uphold or overturn these orders based on whether the behavior is likely to continue. All the necessary information to support the emergency order must be included in the order itself. In some legal cases in Florida, emergency orders can be reversed if they are based on vague or unsupported allegations. The Florida courts have also stated that immediate danger to public health and safety must be proven in order to justify emergency actions. Past behavior should be addressed through a formal complaint process, rather than immediate suspension of a license. This can be important because past harm can indicate potential for future harm. Additionally, personal financial losses can also be considered a type of danger in some cases. In order for a government agency to suspend someone’s license or business, they have to show that there is an immediate danger to the public. They can’t just make general claims without specific evidence. The suspension also has to be the only way to deal with the problem. If there are other ways to fix the problem, then the suspension might not be allowed. In one case, a court said an emergency order was narrowly tailored because it didn’t affect the business of the people involved. But in another case, a court said an emergency order wasn’t narrowly tailored because it didn’t just focus on the specific problem. Another case mentioned evidence and expert opinions, even though emergency orders don’t usually have hearings. And in another case, a court said there could have been better ways to protect the public without being so strict. Dr. Kubski was temporarily banned from prescribing narcotics until a disciplinary hearing is completed. The law requires the Department to promptly start a formal hearing to address the suspension. If there is an emergency suspension, the Department must start a formal hearing within 20 days. The state has a duty to give doctors a hearing after temporarily suspending their medical license. It’s important for the process to be quick so that the doctor’s rights are protected. If the state takes too long to hold a hearing, it’s not considered prompt and goes against the doctor’s rights. In a legal case called Daube, the court said that punishment for past behavior should be handled through an administrative complaint, not an emergency order. The emergency order was too broad and not necessary to protect the public. It accused someone of using an unapproved product, but the person had already stopped using it.

Source: https://www.floridabar.org/the-florida-bar-journal/writing-and-challenging-emergency-orders-part-i/