Nath v. State Department of Health
100 So. 3d 1273
| Fla. Dist. Ct. App. | 2012Background
- Nath, an acupuncturist in Florida, challenges an Emergency Suspension Order (ESO) suspending his license.
- ESO finds Nath engaged in inappropriate sexual conduct with two female patients during treatment.
- The conduct is not alleged to be necessary to the alleged massage technique.
- ESO cites violations of Fla. Stat. §§ 456.072(1)(v), 457.109(1)(j), 457.109(1)(p) and § 120.60(6) as authority for emergency suspension.
- Court reviews whether the ESO satisfies statutory requirements, including narrowly tailoring the action to the harm and necessity to stop the emergency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ESO satisfies § 120.60(6) requirements | Nath argues ESO is unnecessary and not narrowly tailored | Department asserts immediate danger and necessity to protect the public | Partially granted; ESO quashed for lack of narrow tailoring; remand. |
| Whether the facts show ongoing conduct and likelihood of recurrence | Misconduct indicates serious danger but not shown to continue | Findings show disregard and high likelihood of future harm | Findings show likely future harm but insufficient to justify immediate suspension without tailored restrictions. |
| Whether a less drastic measure would suffice | Restriction on practice could address risk | Suspension necessary to protect public until proceedings conclude | Court asks for explanation why suspension, not less restrictive measure, was required. |
| Whether the ESO was narrow enough to be fair | Nath’s license suspension not adequately tailored to only stop alleged harm | ESO deemed appropriately limited to protect public health | ESO not narrowly tailored; quashed to extent of suspension; remanded for further proceedings. |
Key Cases Cited
- Kaplan v. Dep’t of Health, 45 So.3d 19 (Fla. 1st DCA 2010) (emergency suspension elements must be detailed on face of order)
- Bio-Med Plus, Inc. v. Dep’t of Health, 915 So.2d 669 (Fla. 1st DCA 2005) (emergency orders require clear demonstration of necessity and tailoring)
- Mendelsohn v. Dep’t of Health, 68 So.3d 965 (Fla. 1st DCA 2011) (face-of-order requirement for emergency suspension details)
- Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So.2d 713 (Fla. 1st DCA 2004) (agency must explain why less harsh remedies would be insufficient)
- Witmer v. Dep’t of Bus. & Prof'l Reg., 631 So.2d 338 (Fla. 4th DCA 1994) (emergency actions require explicit explanation of necessity and tailoring)
- Cunningham v. Agency for Health Care Admin., 677 So.2d 61 (Fla. 1st DCA 1996) (support for reviewing on-face sufficiency of emergency order)