Showntail the Legend, LLC v. State of Florida Department of Business and Professional Regulation ( 2020 )


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  •           FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D20-2147
    _____________________________
    SHOWNTAIL THE LEGEND, LLC,
    Petitioner,
    v.
    STATE OF FLORIDA DEPARTMENT
    OF BUSINESS AND PROFESSIONAL
    REGULATION,
    Respondent.
    _____________________________
    Petition for Review of Non-Final Agency Action—Original
    Jurisdiction.
    September 14, 2020
    ON DENIAL OF MOTION FOR STAY
    PER CURIAM.
    The State Department of Business and Professional
    Regulation suspended Petitioner’s alcoholic beverage license on an
    emergency basis, for Petitioner’s failure to comply with Florida’s
    COVID-19 emergency orders. Petitioner sought review, and moved
    to stay the order suspending its license. The motion to stay argued
    there was an insufficient factual basis for the suspension order and
    that Petitioner would suffer serious economic hardship from the
    suspension. A writs and motions panel was assigned to review the
    motion only, not the ultimate merits of the petition. The panel
    majority denied the motion to stay in an unpublished order dated
    July 31, 2020, with a notation that the third member of the panel
    would issue a dissent.
    We now note our colleague’s dissent, although we do not agree
    with it and find that it addresses issues not properly before the
    Court, as they were not raised in either the motion to stay or the
    merits petition. See Rosier v. State, 
    276 So. 3d 403
    , 406 (Fla. 1st
    DCA 2019) (en banc) (“An appellate court is ‘not at liberty to
    address issues that were not raised by the parties.’ . . . Nor may an
    appellate court ‘depart from its dispassionate role and become an
    advocate by second guessing counsel and advancing for him
    theories and defenses which counsel either intentionally or
    unintentionally has chosen not to mention.’”) (citations omitted);
    see also Atl. Coast Line Ry. Co. v. State Bd. of Equalizers, 
    94 So. 681
    , 682–85 (Fla. 1922) (emphasizing fundamental premise that
    laws are presumptively constitutional unless and until the courts
    declare otherwise, and must be obeyed, failing which legal
    consequences will follow); Gillyard v. Delta Health Grp., 
    757 So. 2d 601
    (Fla. 5th DCA 2000) (approving proposition that “A governor’s
    executive order is not a law, but it has the force and effect of law.
    It is issued pursuant to a State statute.”); Abramson v. DeSantis,
    SC20-646, 
    2020 WL 3464376
    , at *1 (Fla. June 25, 2020) (“[A]
    pandemic is a ‘natural emergency’ within the meaning of section
    252.34(8) [Fla. Stat.]. Accordingly, we further conclude that, under
    section 252.36(1)(b), the Governor has the authority to issue
    executive orders to address a pandemic in accordance with the
    Act.”).
    KELSEY and M.K. THOMAS, JJ., concur; TANENBAUM, J., dissents
    with opinion.
    TANENBAUM, J., dissenting.
    The Department of Business and Professional Regulation
    (“DBPR”), on an emergency basis and without a hearing,
    suspended the alcoholic beverage license it issued to Showntail the
    Legend, LLC (“STL”). STL promptly asked that we stay the
    suspension while it awaited disposition of its original petition
    challenging the precipitous agency action. DBPR opposed the stay.
    2
    The panel majority denied the stay in a previous, unpublished
    order, and I dissented. Now, I write to explain why.
    I.
    First, some background. In early March of this year, Florida’s
    surgeon general declared the spread of the novel coronavirus
    (COVID-19) to be a public health emergency. See Order of Dr. Scott
    A. Rivkees (Dep’t of Health March 1, 2020); 1 see also
    § 381.00315(1)(c), Fla. Stat. (2019) (defining “[p]ublic health
    emergency” as “any occurrence, or threat thereof, whether natural
    or manmade, which results or may result in substantial injury or
    harm to the public health from [among other things] infectious
    disease”); § 381.00315, Fla. Stat. (tasking state surgeon general,
    as state health officer, with the responsibility “for declaring public
    health emergencies, issuing public health advisories, and ordering
    isolation or quarantines”). The Governor followed suit and
    declared his own state of emergency under authority granted to
    him by section 252.36, Florida Statutes, ostensibly based on his
    conclusion that the Legislature’s definition of a “natural
    emergency” includes “infectious disease,” a term found in the just-
    quoted, separate definition of “public health emergency.” Compare
    § 252.34(8), Fla. Stat. (2019) (defining “[n]atural emergency” to
    mean one “caused by a natural event, including, but not limited to,
    a hurricane, a storm, a flood, severe wave action, a drought, or an
    earthquake”), with § 381.00315(1)(c), Fla. Stat.
    Initially, the Governor ordered all licensed alcoholic beverage
    vendors to suspend sales of those beverages for consumption on
    premises. See Executive Order 20-71 (Exec. Off. of the Gov. March
    20, 2020); see also § 252.36(5)(h), Fla. Stat. (2019) (including in the
    Governor’s emergency powers the power to “[s]uspend or limit the
    sale, dispensing, or transportation of alcoholic beverages”). In late
    April, as part of an effort to promote economic recovery among
    businesses that strained under the yoke of a statewide shutdown,
    the Governor allowed the sale of alcohol for consumption on
    premises, under certain restrictions, by those licensees that were
    restaurants and other food establishments and by those licensees
    1https://www.flgov.com/wp-content/uploads/covid19/DOH%20
    declaration-of-public-health-emergency-covid-19-3.1.20.pdf
    3
    that did not derive more than half of their revenue from sales of
    alcoholic beverages. Executive Order 20-112 (Exec. Off. of the Gov.
    April 29, 2020). At the beginning of June, the Governor eased up
    even further, allowing bars and other licensed alcoholic beverage
    vendors that derived a majority of their revenue from alcoholic
    beverage sales to get in on the recovery action, again with certain
    restrictions. Executive Order 20-139 (Exec. Off. of the Gov. June 3,
    2020). This allowance did not include nightclubs.
    Alas, for bar owners and other alcoholic beverage vendors, it
    was not to last. At the end of June, DBPR issued an emergency
    order that prohibited a licensee from selling alcoholic beverage for
    on-premises consumption if the licensee derived “more than 50%
    of gross revenue from such sales.” See Emergency Order No. 2020-
    09, at 2 (Dep’t of Bus. & Prof’l Reg. June 26, 2020). According to
    DBPR, there was an increase of COVID-19-positive tests in Florida
    in the month of June, “and some of these cases involving younger
    individuals are suspected to have originated from visits to bars,
    pubs, or nightclubs.”
    Id. (emphasis supplied). DBPR
    allowed
    restaurants and other food-service establishments to continue
    selling alcoholic beverages for on-premises consumption as long as
    such beverage sales made up 50 percent or less of their gross
    revenue.
    Id. at 3.
    A week later, DBPR amended that order to
    remove the revenue threshold but to limit the sale of alcoholic
    beverages for on-premises consumption to those licensees “also
    licensed to offer food service.” Am. Emergency Order No. 2020-09,
    at 2 (Dep’t of Bus. & Prof’l Reg. July 1, 2020).
    II.
    Any consideration of whether to suspend a license, or whether
    to stay a suspension pending a hearing, should proceed from the
    following indisputable premise: “Property rights are among the
    basic substantive rights expressly protected by the Florida
    Constitution.” Dep’t of Law Enforcement v. Real Prop., 
    588 So. 2d 957
    , 964 (Fla. 1991). Indeed, that protection is a principal reason
    individuals form governments in the first place. John Locke
    thought so. See, e.g., JOHN LOCKE, SECOND TREATISE OF
    GOVERNMENT § 138, at 73 (C.B. Macpherson ed., Hackett Publ’g
    Co. 1980) (1690) (“The supreme power cannot take from any man
    any part of his property without his own consent: for the
    4
    preservation of property being the end of government . . . .”). The
    Framers thought so too. See, e.g., THE FEDERALIST No. 10, at 130–
    31 (James Madison) (Benjamin Wright ed., 1961) (“The protection
    of [the faculties from which the rights of property originate] is the
    first object of government.”). And the die is cast at the beginning
    of our state constitution: “All natural persons” have, among other
    “inalienable rights,” the right “to be rewarded for industry” and the
    right “to acquire, possess and protect property.” Art. I, § 2, Fla.
    Const. (titled, “Basic rights”).
    The emergency suspension of a license implicates a property
    interest and these inalienable rights. Cf. Robinson v. Fla. Bd. of
    Dentistry, 
    447 So. 2d 930
    , 932 (Fla. 3d DCA 1984) (reminding
    “Department of Professional Regulation, as well as the specific
    professional boards coming under its purview . . . that the
    suspension of a license which is essential in the pursuit of
    livelihood involves state action” and requires due process). 2 “Once
    licenses are issued . . . their continued possession may become
    essential in the pursuit of a livelihood,” and due process
    guarantees provide “constitutional restraints [that] limit state
    power to terminate” them. Bradsheer v. Fla. Dep’t of Highway
    Safety & Motor Vehicles, 
    20 So. 3d 915
    , 919 (Fla. 1st DCA 2009)
    (quoting Bell v. Burson, 
    402 U.S. 535
    , 539 (1971)); see Wisconsin v.
    Constantineau, 
    400 U.S. 433
    , 436 (1971) (explaining that
    “extremely broad” state police powers over alcohol still do not
    override the right to due process; noting significance in “most of
    the provisions of the Bill of Rights [being] procedural, for it is
    2  “A property interest may be created by statute, ordinance or
    contract,” and once acquired, the individual is entitled to
    protection of that interest through due process. Moser v. Barron
    Chase Sec., Inc., 
    783 So. 2d 231
    , 236 n.5 (Fla. 2001) (quotation and
    citation omitted). Even when the State is dealing with a privilege,
    which it has no obligation to grant, “after having chosen to extend
    it, the state may not withdraw that right on grounds of misconduct
    absent fundamentally fair procedures to determine whether the
    misconduct occurred.” Lankheim v. Fla. Atl. Univ., Bd. of Trs., 
    992 So. 2d 828
    , 834 (Fla. 4th DCA 2008) (citing Goss v. Lopez, 
    419 U.S. 565
    , 574 (1975)).
    5
    procedure that marks much of the difference between rule by law
    and rule by fiat”).
    The Legislature, meanwhile, vouchsafed to the public the
    ability to pool capital with others in the form of a limited liability
    company (“LLC”) to advance business purposes, to seek a profit,
    and to make a living. See generally ch. 605, Fla. Stat. (2019)
    (“Florida Revised Limited Liability Company Act”). The members
    of STL took advantage of this privilege when they created their
    LLC. Bound up in the property of STL are the property interests
    of those members. Cf. Pembina Consol. Silver Mining & Milling
    Co. v. Pennsylvania, 
    125 U.S. 181
    , 189 (1888) (noting that
    corporations are entitled protection under the Fourteenth
    Amendment because they “are merely associations of individuals
    united for a special purpose, and permitted to do business under a
    particular name, and have a succession of members without
    dissolution”);
    id. (“The great object
    of a corporation is to bestow the
    character and properties of individuality on a collective and
    changing body of men.” (internal quotation omitted)).
    The members of STL no doubt applied and paid for an
    alcoholic beverage license in anticipation of putting it to use as
    part of their profit-making venture. Cf. § 561.19(5), Fla. Stat.
    (2019) (describing issuance of license upon approval of application
    and payment of license taxes and fees, including $10,750 fee for
    new liquor licenses); § 565.02, Fla. Stat. (2019) (listing various
    annual license fees). According to STL, its alcoholic beverage
    license is integral to its business model; the inability to sell alcohol
    on its premises has been terribly detrimental to its continued
    business operations (including an estimated $500,000 loss in
    sales). Bound up in that license, then, is the constitutional right of
    STL’s individual members to acquire property and be rewarded for
    their industry.
    DBPR, however, decided that alcoholic beverage license
    holders that were unlicensed to sell food, like STL, had to shut
    down or simply not use that license. That meant STL would have
    to dramatically and immediately change its business model, or
    shut down, simply because it held the wrong alcoholic beverage
    license. The merits of STL’s resistance to, and persistent failure to
    comply with, DBPR’s orders were not before our panel. The only
    6
    question before us was whether STL was entitled to a stay while it
    litigated the merits of DBPR’s actions. As I highlighted just above
    in my quotation of DBPR’s emergency order, and as I will discuss
    further below, DBPR asked us to withhold the stay for STL based
    entirely on conjecture and suspicion about the public health effects
    of COVID-19. It did not present specific, concrete facts that showed
    a probable danger flowing directly from granting STL a stay. We
    should not withhold the statutorily guaranteed stay from a
    licensee—designed to protect against unilateral interference with
    a fundamental right by a state agency without a hearing—when
    an agency rests on such a slender reed.
    III.
    Indeed, we would do well to keep these property interests in
    mind when we consider the administrative state’s opposition to
    stays like the one that STL sought. Florida law, in fact, entitles a
    petitioner like STL to a stay as a matter of right in almost all
    circumstances. See § 120.68(3), Fla. Stat. (2019). The exception to
    that entitlement is if, upon request from an agency, we (and not
    anyone else) “determine[] that a [stay] would constitute a probable
    danger to the health, safety, or welfare of the state.”
    Id. (emphasis supplied). To
    be sure, an agency bears the burden “to present to
    the court sufficient documentation” showing that a stay poses a
    probable danger to the state. Iturralade v. Dep’t of Prof’l
    Regulation, 
    482 So. 2d 375
    , 376 (Fla. 1st DCA 1985). I highlight
    the word “determine,” though, because the statute requires that,
    before we refuse a stay to a licensee, we must do more than simply
    review whether an agency has made some showing of probable
    danger. Use of the verb “determine” reserves for the court a much
    more active role. It means that we exercise our own independent
    judgment in the matter; we must reason for ourselves as to
    whether the stay would pose a probable danger, based on the
    documentation or facts presented. That is to say, before we can
    deny a stay and allow an agency to continue its suspension of a
    Florida citizen’s livelihood without a hearing, we ourselves must be
    able to make an independent and “logical inference of immediacy”
    from what the agency submits. Old Timers Rest. & Lounge, Inc. v.
    Div. of Alcoholic Beverages & Tobacco, 
    483 So. 2d 463
    , 464 (Fla.
    1st DCA 1986).
    7
    We of course do not defer to the agency’s assertions about
    what it means to be a “probable danger.” Cf. Art. V, § 21, Fla.
    Const. (precluding a state court from deferring “to an
    administrative agency’s interpretation of [a] statute or rule” and
    requiring the court to “interpret such statute or rule de novo”).
    More than that, we should not defer to an agency’s assertions that
    there is in fact some probable danger to flow from a stay. The
    agency created the exigency by terminating a property interest—
    immediately and without a hearing. The Legislature, through
    section 120.68, chose to put the court between the licensee and the
    agency in an unusually direct way to ensure that only in the most
    concretely exigent circumstances would the termination of a
    property interest be allowed to persist without a hearing.
    The court, then, should demand from an agency specific and
    documented facts from which we, ourselves, can cleanly infer the
    probable danger immediately flowing from the stay. There must be
    “sufficiently identif[ied] particularized facts” from which we can
    determine a probable danger, and the burden rests with the agency
    to document those specific facts. Crudele v. Nelson, 
    698 So. 2d 879
    ,
    880 (Fla. 1st DCA 1997) (quoting Witmer v. Dep’t of Bus. & Prof’l
    Regulation, 
    631 So. 2d 338
    , 341 (Fla. 4th DCA 1994)); cf. Am. Ins.
    Ass’n v. Fla. Dep’t of Ins., 
    646 So. 2d 784
    , 788 (Fla. 1st DCA 1994)
    (rejecting “conclusory findings” that are not “factually explicit”);
    Anderson v. Dep’t of Health & Rehab. Servs., 
    482 So. 2d 491
    , 500
    (Fla. 1st DCA 1986), decision clarified on reh’g, 
    485 So. 2d 849
    , 854
    (Fla. 1st DCA 1986) (requiring specific facts establishing a
    likelihood of immediate harm to children); Premier Travel Int’l,
    Inc. v. Fla. Dep’t of Agric. & Consumer Servs., 
    849 So. 2d
    1132,
    1136 (Fla. 1st DCA 2003) (requiring specific facts that demonstrate
    a “level of urgency” regarding harm to seniors). An agency’s
    “[g]eneral conclusory predictions of harm are not sufficient.” Daube
    v. Dep’t of Health, 
    897 So. 2d 493
    , 495 (Fla. 1st DCA 2005).
    Hyperbole and breathless statements should not carry the day.
    Insisting on specific facts is especially critical in a case like
    this one, where DBPR’s assertion of probable harm had nothing to
    do with the regulation of alcoholic beverages, but instead was
    based on newly developed, still-under-review public health
    theories. The Legislature tasked the state surgeon general, not
    DBPR, with the responsibility “for declaring public health
    8
    emergencies, issuing public health advisories, and ordering
    isolation or quarantines.” § 381.00315, Fla. Stat. The Legislature
    also provided that, based on such a declaration, the state surgeon
    general, not DBPR, “may take actions that are necessary to protect
    the public health.”
    Id. 3
    Finally, not DBPR but the Department of
    Health, headed by the state surgeon general, “has the duty and the
    authority to declare, enforce, modify, and abolish the isolation and
    quarantine of persons, animals, and premises as the circumstances
    indicate for controlling communicable diseases or providing
    protection from unsafe conditions that pose a threat to public
    health.” § 381.00315(4), Fla. Stat.; see also § 381.00315(1)(d), Fla.
    Stat. (defining “[q]uarantine” to mean “the separation of an
    individual reasonably believed to have been exposed to a
    communicable disease, but who is not yet ill, from individuals who
    have not been so exposed, to prevent the possible spread of the
    disease”).
    Moreover, the existence of a public health emergency should
    not excuse DBPR—or any other agency besides the Department of
    Health—from having to assert specific facts, based on its own
    expertise, that demonstrate a clear and emergent need to deny a
    stay. In other words, we should not just take DBPR’s word for it in
    determining probable danger when the underlying suspension has
    stemmed from a public health matter rather than a regulatory
    matter. That, however, essentially was what DBPR asked us to do
    in opposing the stay, asserting that it and the Governor “would not
    3 Those legislatively authorized actions, to be taken by the
    state surgeon general—and not DBPR—include the following
    extraordinary steps:
    Ordering an individual to be examined, tested,
    vaccinated, treated, isolated, or quarantined for
    communicable diseases that have significant morbidity or
    mortality and present a severe danger to public health.
    Individuals who are unable or unwilling to be examined,
    tested, vaccinated, or treated for reasons of health,
    religion, or conscience may be subjected to isolation or
    quarantine.
    § 381.00315(1)(c)4., Fla. Stat.
    9
    issue Executive and Emergency Orders absent an understanding
    that COVID spreads easily in bars and nightclubs.”
    Putting aside DBPR’s overwrought characterizations of STL’s
    claim for a stay as “ludicrous,” “fl[ying] in the face of scientific
    evidence and common sense,” and “shirk[ing] public safety
    measures in the name of profit,” it bears noting that the
    suspension order itself did not seem so sure about the connection
    between bars and spread. DBPR’s suspension order stated that its
    emergency orders issued based merely on a suspicion that some
    cases of “younger individuals” testing positive originated from bars
    that were not observing safety protocols. Rather than rely on
    specific evidence of actual harm (say, COVID-positive cases traced
    back to STL), DBPR merely pointed us to three articles found on
    the internet.
    The first was a published Japanese study that can be found
    on the website maintained by the Centers for Disease Control and
    Prevention (“CDC”). See Yuki Furuse et al., Clusters of
    Coronavirus Disease in Communities, Japan, January–April 2020,
    26 EMERGING INFECTIOUS DISEASES 2176 (Sept. 2020). 4 The
    authors “analyzed 61 COVID-19 clusters among various
    communities in Japan and identified 22 probable primary cases
    that might have contributed to the disease incidence in clusters”
    during the specified period.
    Id. at 2176.
    The relevance was hard to
    glean. The main conclusion of the study was slightly different than
    what DBPR cited the article for: “We found that healthcare
    facilities, such as hospitals, and care facilities, such as nursing
    homes, were the primary sources of clusters, some of which had
    >100 cases.”
    Id. at 2177.
    It was true that twenty-eight of sixty-one
    community clusters in the study came from healthcare, nursing
    home, and daycare facilities, followed by ten from restaurants and
    bars.
    Id. at 2176.
    However, “[t]he largest non-healthcare-related
    cluster we observed was among >30 persons who attended a live
    music concert, including performers, audience members, and event
    staff.”
    Id. at 2177.
    DBPR failed to explain how this study of
    Japanese clusters could tell us anything about bars, as opposed to
    restaurants, being a significant source of COVID-19 spread in
    4   https://wwwnc.cdc.gov/eid/article/26/9/20-2272_article.
    10
    Florida. DBPR also failed to address the limitations acknowledged
    in the study itself: reliance on “voluntary cooperation,” inability of
    some “case-patients” to disclose their contact history, “[r]ecall
    bias,” and unavailability of data like “the number of persons
    present in the places where clusters of cases were detected.”
    Id. at 2178.
    DBPR’s other two internet articles did not tell us much more
    that might be relevant to our determination. One was an online
    article from Business Insider, which promised to tell the reader,
    “Here are seven good reasons why science suggests that sipping a
    brew outside this weekend is a far better idea than bellying up to
    a bar indoors.” Hilary Brueck, Fauci says being ‘at a bar, inside, is
    bad news’ during the coronavirus pandemic. Here are 7 reasons
    why he’s right, according to science., BUSINESS INSIDER (July 2,
    2020). 5 None of the reasons 6 distinguished between a bar serving
    alcohol and a restaurant doing the same. The same was true of the
    third article cited by DBPR for support, which also resided on the
    CDC’s website. See Considerations for Restaurants and Bars,
    CDC.GOV (July 17, 2020). 7 The article presumed the reopening of
    restaurants and bars. It identified risks that were applicable to
    both restaurants and bars, noting an increase in risk of COVID-19
    spread “in a restaurant or bar setting” when there was indoor
    5 https://www.businessinsider.com/why-bars-are-so-dangerous-
    for-spreading-the-coronavirus-2020-7.
    6  The reasons included gems like these: “The coronavirus
    thrives, survives, and moves quickly indoors”; “Summertime
    sunlight can kill off a lot of virus, but there’s little to no sun in a
    bar”; “Taking off a mask (which you need to do to drink) ups a
    person’s risk of infection” (which also happens to be true for anyone
    who wants to eat indoors); “After a drink or two (or more), physical
    distancing and other forms of self-restraint might begin to
    disappear”; and “Most bar workers don’t have sick pay, making it
    harder to stay home if they get symptoms.”
    7https://www.cdc.gov/coronavirus/2019-ncov/community/
    organizations/business-employers/bars-restaurants.html.
    11
    seating on-site, and even more risk if seating capacity was not
    reduced and tables were not properly spaced.
    Simply put, DBPR offered nothing from which we logically
    could infer that bars and other non-restaurant licensees selling
    alcohol on premises—that is, staying open for business at all—
    posed a probable danger, while restaurant licensees selling alcohol
    on premises did not. DBPR certainly did not assert any specific
    facts to demonstrate how an otherwise recalcitrant STL
    individually posed a particularly probable danger to the public
    health unless its alcohol license was shut down immediately
    without a hearing. Instead, DBPR asked that the stay be denied
    based on some generally applicable, working theory, rather than
    on specific facts—stating that “during the current pandemic, the
    public is gravely harmed not only by knowingly contracting this
    deadly disease but also by potentially being exposed to it” and that
    there was a “very real possibility that carriers of COVID are known
    to be asymptomatic [such that] any number of their staff and
    patrons . . . may well be COVID carriers who unknowingly infect
    others.” (emphasis supplied). This was not enough from which to
    make a “logical inference of immediacy” that could support denial
    of a stay to STL.
    How this court previously distinguished between the denial of
    a stay to a doctor and other situations bolsters my point. We once
    observed, “When a doctor has been found guilty of numerous
    incidents of malpractice, it logically follows that his continued
    practice of medicine would pose immediate danger to the health,
    safety and welfare of the public.” Old 
    Timers, 483 So. 2d at 464
    .
    Under those circumstances, we easily would deny the stay. “The
    same logical inference of immediacy does not flow from the fact
    that a licensed business has been operating under the control of an
    undisclosed third party and the business failed to have the
    requisite number of chairs available for dining required for its
    special license . . . .” Id.; cf. 
    Daube, 897 So. 2d at 495
    (“However,
    the emergency order did not allege that any of petitioner’s patients
    were harmed or suffered an adverse outcome or injury caused by
    the unapproved product.”); see also Premier Travel Intern., 
    849 So. 2d
    at 1136 (determining that allegations were not explicit enough
    to make out a specific risk that would “demonstrate the level of
    urgency” necessary to support an emergency order); Am. Ins. Ass’n,
    
    12 646 So. 2d at 788
    (determining that an emergency order
    improperly relied on “conclusory findings” that were not “factually
    explicit” and did not “justify summary action based on an
    emergency or an immediate danger to the public health, safety or
    welfare” (citation omitted)).
    DBPR’s conclusory statements and citations to internet
    articles did not provide us a level of particularity from which we
    could logically infer a sense of immediacy and probable danger, so
    STL had a right to a stay.
    IV.
    Presumably, with the capital contributed by STL’s members,
    STL obtained from DBPR a Series 4COP Dual Quota alcoholic
    beverage license. STL may not have had a right to obtain that
    license (after all, selling alcohol in Florida is a closely regulated
    privilege), but once DBPR granted the license, STL held a property
    interest in it. The livelihood of STL’s members (not to mention
    STL’s employees) seemingly depended on it. DBPR took that
    property interest away, before STL had an opportunity for a
    hearing. The Legislature granted STL a right to put that
    deprivation on hold while it litigated the merits of DBPR’s
    suspension. Given the significance of this property interest, we
    should not countenance the use of a public health emergency as a
    substitute for actual, concrete facts, specific to the licensee’s
    situation, from which we can determine a probable danger. DBPR
    did not demonstrate how any actual injury or harm was likely to
    flow from STL holding onto its license pending a hearing. And it
    failed to show how STL’s provision of alcoholic beverages indoors
    posed more of a danger than that posed by restaurants DBPR had
    allowed to continue selling alcohol on premises. In turn, I voted to
    grant the stay, and I dissented from the majority’s denial of it.
    _____________________________
    John W. Roberts of Law Offices of John W. Roberts, PLLC,
    Miramar Beach, for Petitioner.
    Joseph Yauger Whealdon, III, Tallahassee, for Respondent.
    13