DANIEL CAMPBELL DAUBE, JR., M.D., PETITIONER,
v.
DEPARTMENT OF HEALTH, RESPONDENT
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Dr. Daube petitioned for review of the Department of Health's emergency suspension of his medical license. The court had previously granted a stay and directed the Department to issue a narrower order; the Department subsequently modified the suspension to restrictions on unapproved products, which mooted Daube's arguments.
The petition is denied. The Department's modified order, which replaced the emergency suspension with narrowly tailored restrictions on use of non-FDA-approved products, largely mooted Dr. Daube's arguments, and to the extent his arguments pertain to the second order, they are rejected.
[1] An agency's emergency order must be narrowly tailored to protect the public interest and cannot be broader than necessary.
[2] A stay of an emergency order may be conditioned upon specific limitations on a petitioner's professional conduct.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the agency's emergency order was broader than that 'necessary to protect the public interest under the emergency procedure' as provided in section 120.60(6)(b), a more narrowly tailored emergency order is appropriate.”
Establishes the standard requiring emergency orders to be narrowly tailored to protect the public interest.
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Join FLexlaw to unlock all legal intelligenceThe Department of Health issued an emergency order suspending Dr. Daube's medical license on January 14, 2005. Dr. Daube sought a stay of the emergenc…
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PER CURIAM.
Petitioner Dr. Daniel Daube petitions this Court for review of the Department of Health’s emergency order issued under section 120.60(6), Florida Statutes (2004). The Department initially issued an Order of Emergency Suspension of License on January 14, 2005. Petitioner also motioned this Court for a stay of the emergency order pending review, which this Court granted in an unpublished order, followed by a written opinion. Daube v. Dep’t of Health, 897 So. 2d 493 (Fla. 1st DCA 2005) (“Daube I”). In the opinion, this Court stated that “[b]ecause the agency’s emergency order was broader than that ‘necessary to protect the public interest under the emergency procedure’ as provided in section 120.60(6)(b), a more narrowly tailored emergency order is appropriate.” Id. The Court indicated that the stay was granted on the “condition that [petitioner] immediately halt all use of the unapproved product and that any wrinkle reduction treatment by petitioner be limited to the use of BOTOX®.” Id. The Department was authorized to monitor this condition and to set restrictions on petitioner’s use of BOTOX. Id.
Subsequently, the Department modified the order suspending petitioner’s license to conform to this Court’s opinion in Daube I after this Court .relinquished jurisdiction for this purpose. This second order lifted the emergency suspension of petitioner’s license and instead imposed restrictions on petitioner’s license, prohibiting petitioner from using any products the Food and Drug Administration has not approved for wrinkle reduction treatments. In doing so, the Department’s second order largely mooted the petitioner’s arguments. To the extent petitioner’s arguments also pertain to the second order, we reject them without further comment.
PETITION DENIED.
DAVIS, LEWIS AND POLSTON, JJ., concur.
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Stephen E. Chiarello, M.D. v. Dep't OF Health, 906 So. 2d 341 (Fla. 1st DCA 2005)…PER CURIAM. The petition for review of non-final agency action is denied on the merits. See Daube v. Department of Health, 902 So. 2d 269 (Fla. 1st DCA 2005). ERVIN, BARFIELD and VAN NORTWICK, JJ., concur.…
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Yalamanchi v. Dep't OF Health, 909 So. 2d 395 (Fla. 1st DCA 2005)…Statutes (2004), that the order (as amended) employs the least restrictive reasonable means of protecting the public, and that the petitioner has not shown reversible error. Accordingly, we deny the petition for review. See Daube v. Dep’t of Health, 902 So. 2d 269 (Fla. 1st DCA 2005). PETITION DENIED. KAHN, C.J.; and THOMAS, J., concur.…
Authorities Cited
- Gibson v. State, 897 So. 2d 493 (Fla. 3d DCA 2005)
- Daniel Campbell Daube, Jr., M.D. v. Dep't OF Health, 897 So. 2d 493 (Fla. 1st DCA 2005)