Spotlight: #COVID19 Emergency Suspensions
This installation of the Spotlight series is focused on the emergency suspension, an old regulatory enforcement tool that is suddenly making the nightly news across the state. The Governor made the enforcement of social distancing at restaurants a major priority, and the Department of Business and Professional Regulation has responded with a flood of restaurant and bar inspections and license suspensions. The stakes have never been higher for the hospitality operators — an emergency suspension will have an immediate impact on revenue and presents a reputational risk (local news, social media, etc.) during a pandemic.
Under section 120.60(6) of the Florida Statutes, a state agency may issue an emergency suspension phone if it finds an “immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license” and:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.
The series of temporary state regulations (more) governing the operation of retail and hospitality businesses are fundamentally rooted in preserving the health of the public, and an emergency suspension is the most-likely result if a regulator discovers evidence of a pandemic-related rule. Florida courts have held that agency emergency suspension orders must sufficiently allege that the conduct is likely to continue and demonstrate that the suspension was narrowly tailored (i.e., the suspension was the only way to avoid future harm ). All factual allegations and other elements needed to determine whether the emergency suspension is valid must appear on the face of the order. The order must also explain why a less harsh remedy, such as a notice of noncompliance, would be insufficient to stop the alleged harm.
“This seems complicated because it is. Consider consulting a lawyer so that you can preserve your rights.
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From a procedural standpoint, the agency must initiate administrative proceedings in compliance with Rule 28-106.2015 and sections 120.569 (decisions which affect substantial interests), 120.57 (additional procedures for particular cases), and 120.60 (licensing) of the Florida Statutes within 20 days after the emergency action. The emergency suspension order will include a notice of the licensee’s right to an immediate appeal of the emergency final order pursuant to a district court of appeal. If the licensee wishes to appeal, a substantial petition for review must be filed within 30 days of the emergency suspension order.
Florida’s coronavirus situation is changing rapidly. Click here to view the firm’s most-recent updates on the regulatory response affecting hotels, restaurants, bars, resorts, and the alcoholic beverage industry. The Department of Business and Professional Regulation’s frequently-updated resource page is available here.
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