Zane Paul Webber v. State of Florida, Dept. of Business etc. , 2016 Fla. App. LEXIS 11606 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ZANE PAUL WEBBER , NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1005
STATE OF FLORIDA, DEPT.
OF BUSINESS AND
PROFESSIONAL
REGULATION,
Respondent.
_____________________________/
Opinion filed August 2, 2016.
An appeal from an order from the Department of Business and Professional
Regulation.
Ken Lawson, Secretary.
Daniel Villazon of Daniel Villazon, P.A., Orlando, for Petitioner.
Marisa G. Button, Chief Appellate Counsel, and Chevonne T. Christian, Assistant
General Counsel, Tallahassee, for Respondent.
PER CURIAM.
Before us is Petitioner’s “Expedited Petition for Review of Order of
Emergency Suspension of License, and Request for Attorney’s Fees and Costs.” We
have jurisdiction. See Art. V, §4(b)(1), Fla. Const.; § 120.68(1)(b), Fla. Stat. (2015);
Fla. R. App. P. 9.100(a).
After evaluating only the face of the Order of Emergency Suspension as we
must, since there was no hearing afforded Petitioner below, see Nath v. State,
Department of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012), we find its
factual statements allegedly justifying the emergency suspension of Petitioner’s
license to practice as a certified public accountant to be wholly insufficient to
establish that Petitioner’s actions vis-a-vis the named client pose an “immediate
serious danger to the public health, safety, or welfare” as required by section
120.60(6), Florida Statutes (2015). See also Bio-Med Plus, Inc. v. State, Dep’t of
Health, 915 So. 2d 669, 672 (Fla. 1st DCA 2005) (“Where, as here, no hearing was
held prior to the entry of the emergency order, every element necessary to its validity
must appear on the face of the order.”) (internal quotation marks omitted).
Specifically, Respondent’s order lacks any “particularized” allegations of fact
demonstrating an immediate danger of continuing harm. See St. Michael’s
Academy, Inc. v. State, Dep’t of Children & Families, 965 So. 2d 169, 172 (Fla. 3d
DCA 2007); see also Bio-Med Plus, 915 So. 2d at 672-73 (holding “it is not enough
for the [emergency suspension order] merely to allege statutory violations,” the
allegations of continuing harm must be “particularized,” not “general and
conclusory” or related to stale actions).
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Furthermore, the order is not “‘narrowly tailored to be fair’” to Petitioner, and
Respondent has not convincingly shown why less restrictive alternatives short of
emergency suspension of Petitioner’s license were not utilized. Nath, 100 So. 3d at
1276 (quoting Kaplan v. State, Dep’t of Health, 45 So. 3d 19, 21 (Fla. 1st DCA
2010)). As we stressed in Nath:
The summary procedure authorized by statute permits the Department
to deprive licensees of a property interest prior to giving them full due
process. Bearing that in mind, we have held that agencies employing
the procedure must “explain why less harsh remedies . . . would have
been insufficient to stop the harm alleged.”
Id. (quoting Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869
So. 2d 713, 714 (Fla. 1st DCA 2004)). Respondent’s claim that it does not have
sufficient options at its disposal to ensure Petitioner does not engage in the same
conduct of “victimizing citizens of the State during the pendency of this action” was
neither expressed in the order nor substantiated by Respondent.∗ Id.; Bio-Med Plus,
915 So. 2d at 674.
To the extent the Order of Emergency Suspension fails to demonstrate on its
face an immediate and recurring threat to the public and the license suspension is
∗
Even more troubling is Respondent’s acknowledgment in its answer brief that the allegations in
its order concerning potential criminal charges to be filed against Petitioner were, in fact, a mere
“scrivener’s error” it did not rely upon in arriving at its ultimate decision to suspend Petitioner’s
license. The language in paragraph 28 of the order would belie that assertion. There it states that
“the likelihood of continued illegal conduct by [Petitioner] demonstrates the immediate suspension
of his CPA license is necessary to protect the public.”
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not a narrowly tailored remedy, we conclude the action taken by Respondent failed
to afford Petitioner the due process protection our state and federal constitutions
demand. See § 120.60(6)(a)-(c), Fla. Stat (2015). Consequently, we QUASH the
Order of Emergency Suspension of License. See Kaplan, 45 So. 3d at 21 (citing Bio-
Med Plus, 915 So. 2d at 669).
We also deny Petitioner’s request for attorney’s fees and costs. Petitioner’s
request should have been by separate motion. See Fla. R. App. P. 9.400(b)(2). The
“‘failure to file a motion for attorney’s fees in accordance with Florida Rule of
Appellate Procedure 9.400(b) is a proper basis for the denial of fees on
appeal.’” McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758
So. 2d 692, 696 (Fla. 4th DCA 1999) (quoting Salley v. City of St. Petersburg, 511
So. 2d 975, 977 (Fla. 1987)); see also Green v. Sun Harbor Homeowner’s Ass’n,
Inc., 685 So. 2d 23, 26 n.2 (Fla. 4th DCA 1997) (noting that “at the appellate level,
if a party seeking appellate attorney’s fees requests appellate attorney’s fees in its
brief, but fails to ask for attorney’s fees by separate motion, that party will not be
entitled to appellate attorney’s fees”) (emphasis added), quashed on other grounds,
730 So. 2d 1261 (Fla. 1998); ACD Corp. of Fla. v. Walker, 413 So. 2d 33, 33 (Fla.
1st DCA 1981); Melweb Signs, Inc. v. Wright, 394 So. 2d 475, 477 (Fla. 1st DCA
1981).
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ROWE, KELSEY, and JAY, JJ., CONCUR.
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