Zane Paul Webber v. State of Florida, Dept. of Business etc.
198 So. 3d 922
| Fla. Dist. Ct. App. | 2016Background
- Petitioner Webber is a CPA whose license was emergency-suspended by the Florida Department of Business and Professional Regulation without a prior hearing.
- The Department’s Order cited facts allegedly showing risk to a named client and stated the suspension was necessary to protect the public.
- No hearing was held before entry of the emergency suspension; review was by petition for expedited review in the district court of appeal.
- The appellate review was limited to the face of the emergency order because no pre-suspension hearing occurred.
- The court found the order’s factual allegations were general and conclusory rather than particularized allegations of immediate and continuing harm.
- Petitioner also requested appellate attorney’s fees, but the request was made in briefing rather than by separate motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the emergency suspension order contained sufficient particularized facts showing an immediate serious danger to public health, safety, or welfare | Webber argued the order failed to show immediate or recurring danger and thus was invalid on its face | The Department argued the order justified emergency suspension to protect the public | Court: Order insufficient on its face; allegations were general/conclusory and did not establish immediate danger; quashed the order |
| Whether the order was narrowly tailored and whether less restrictive alternatives were considered | Webber argued the Department did not show why less restrictive remedies were inadequate | Department asserted emergency suspension was necessary to prevent further victimization during the action | Court: Department failed to show narrow tailoring or explain why less restrictive options were unavailable; due process violated |
| Whether appellate attorney’s fees should be awarded | Webber sought fees in his appellate filing | Department opposed fees | Court: Denied fees because request was not made by separate motion under rule 9.400(b) |
Key Cases Cited
- Nath v. State, Dep’t of Health, 100 So. 3d 1273 (Fla. 1st DCA 2012) (limits review to face of emergency order when no hearing occurred; agencies must explain why less restrictive remedies insufficient)
- Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So. 2d 669 (Fla. 1st DCA 2005) (every element necessary to validity of an emergency suspension must appear on the face of the order; allegations must be particularized)
- St. Michael’s Academy, Inc. v. State, Dep’t of Children & Families, 965 So. 2d 169 (Fla. 3d DCA 2007) (emergency orders must plead particularized continuing harm, not general or stale allegations)
- Kaplan v. State, Dep’t of Health, 45 So. 3d 19 (Fla. 1st DCA 2010) (emphasizes narrow tailoring and fairness in summary emergency suspensions)
- Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So. 2d 713 (Fla. 1st DCA 2004) (agencies must explain why less harsh remedies would be insufficient)