Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-317 _____________________________ MARCUS FREEMAN, M.D., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee. _____________________________ On appeal from the Board of Medicine. Hector Vila, M.D., Vice-Chair. March 16, 2021 ON MOTION FOR STAY OF REVOCATION OF MEDICAL LICENSE TANENBAUM, J. The Board of Medicine revoked Marcus Freeman’s license to practice medicine in Florida. That revocation is on appeal. In the meantime, Freeman moves this court for a stay of the revocation. See Fla. R. App. P. 9.190(e)(2)(C). Because Freeman has a statutory right to the stay, and the Florida Department of Health has failed to submit any actionable facts from which we could determine that a probable danger would stem from that stay, we grant Freeman’s request. I. Freeman’s current trouble started when the department filed with the board an administrative complaint seeking disciplinary action. According to the administrative complaint, Freeman, a Florida-licensed medical doctor, applied to the Alabama Medical Licensure Commission for a license. Following a hearing on Freeman’s application, the commission apparently concluded that Freeman had committed fraud in his application and that he was unable to practice “with reasonable skill and safety to patients by reason of a demonstrated lack of basic medical knowledge or clinical competency.” The commission in turn denied Freeman’s application for licensure. The department did not provide any detail in its complaint as to the facts relied upon by the Alabama commission for its conclusions that Freeman committed fraud and lacked knowledge and competency. As its sole legal support for disciplinary action, the department cited section 458.331(1)(b), Florida Statutes (2020), in its complaint. Among other bases for disciplinary action set out in subsection one of the statute, this particular paragraph provides that disciplinary action may be taken based on the following: Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority’s acceptance of a physician’s relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician’s license, shall be construed as action against the physician’s license. § 458.331(1)(b), Fla. Stat. The department submitted that the commission’s denial of Freeman’s license application fell within this provision, and the department urged discipline as a result. The board approved and adopted the department’s allegations and its legal assertion (really, just the citation to section 458.331(1)(b)) in a final order that contained no specifics about 2 Freeman’s conduct or how that conduct posed a danger to the public. Cf. § 458.331(2), Fla. Stat. (“In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient.”); see Farzad v. Dep’t of Pro. Regul., 443 So. 2d 373, 376 (Fla. 1st DCA 1983) (noting clear rule “that where statutes authorizing revocation of a license to engage in the practice of a profession are invoked, the provisions of the statutes must be strictly construed and strictly followed” (citing State ex rel. Jordan v. Pattishall, 126 So. 147 (1930))). It appears, then, that the only basis for the revocation was the Alabama commission’s denial of Freeman’s application for a license. II. Because Freeman appeals the board’s revocation of his medical license, he has a statutory entitlement to an interim stay of that revocation. See § 120.68(3), Fla. Stat. (2020) (providing for the granting of a stay “as a matter of right upon such conditions as are reasonable” in an appeal of an agency decision revoking a license). We still can deny that stay if, upon the agency’s request, we “determine[] that a [stay] would constitute a probable danger to the health, safety, or welfare of the state.” Id. Still, the board’s action implicates a property interest. See Showntail the Legend, LLC v. Dep’t of Bus. & Pro. Regul., 302 So. 3d 1085, 1088–89 (Fla. 1st DCA 2020) (Tanenbaum, J., dissenting). In turn, the 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 Pro. Regul., 482 So. 2d 375, 376 (Fla. 1st DCA 1985). The department asks us to deny Freeman’s stay request, yet it falls far short of meeting its burden. In opposition to the stay, the department simply recounts the same basic facts that it asserted in the administrative complaint. It would have us deny Freeman the stay based entirely on the fact that the Alabama commission concluded that he was unsafe to practice. The department offers no details about what Freeman did to warrant that determination by the out-of-state agency. And the department does not submit any evidence it uncovered in its own investigation that would suggest Freeman is a current danger to the public. 3 Rather, the department simply concludes that the commission’s determination that Freeman lacked sufficient medical knowledge and competency indicates that Freeman “most assuredly would pose a probable danger to the citizens of Florida.” * Let us be clear. Denial of a stay where a suspension or revocation of a license is on review is not simply the department’s for the asking. The statute charges the court, not the department, with determining whether a stay would pose a “probable danger” to the public. See Showntail the Legend, 302 So. 3d at 1090 (Tanenbaum, J., dissenting) (highlighting that the statutory term “determines” assigns the court an active role in independently assessing whether a probable danger will flow from a stay); cf. Old Timers Rest. & Lounge, Inc. v. Div. of Alcoholic Beverages & Tobacco, 483 So. 2d 463, 464 (Fla. 1st DCA 1986) (rejecting department’s argument that “mere recitation of the violations for which a licensee has been found guilty will always show a danger to the health, safety or welfare of the public”). This means that the department must submit specific facts or documentation from which we can infer the asserted danger for ourselves. See id. (concluding that department failed to submit “explicit facts” from which the court could make a “logical inference of immediacy” regarding a “danger to the public,” and that this “absence of additional facts” precluded denial of stay of license revocation). The department’s conclusory assertion that there is a probable danger—based on the department’s unelaborated reference to a licensing decision by an agency of another state—does not suffice. See Daube v. Dep’t of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005) (explaining that stay of emergency license suspension order was granted because “[g]eneral conclusory predictions of harm are not sufficient”). To support its request that we deny a stay of a license revocation, the department must document “sufficiently identif[ied] particularized facts” from which we can determine a probable danger. Cf. Crudele v. Nelson, 698 So. 2d 879, 880 (Fla. * This conclusory assertion is especially curious because the board apparently just granted Freeman a medical license a few years ago. 4 1st DCA 1997) (internal quotation and citation omitted) (reversing an emergency license suspension order, explaining that the “reviewing court will not accept a general conclusory prediction of harm as support for an emergency order”); Anderson v. Dep’t of Health & Rehab. Servs., 482 So. 2d 491, 495, 500 (Fla. 1st DCA 1986), decision clarified on reh’g, 485 So. 2d 849, 854 (Fla. 1st DCA 1986) (vacating emergency license suspension order as legally deficient on its face in absence of 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, 1137 (Fla. 1st DCA 2003) (reversing immediate final cease- and-desist orders because they failed to specify facts that demonstrated a “level of urgency” regarding harm to seniors). The department has not done this. If the department is asking us simply to accept its own, unarticulated assessment that there is a “probable danger,” that is something we cannot do. 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”). III. The department has failed to “demonstrate[] that a stay would constitute a probable danger to the health, safety, or welfare of the state,” so we must grant Freeman’s request for the stay that section 120.68(3) guarantees him. Fla. R. App. P. 9.190(e)(2)(C). STAY GRANTED. ROWE and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 5 Marcus Freeman, pro se, Appellant. Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Appellee. 6