Florida Department of Health v. Mendelsohn

District Court of Appeal of Florida

Florida Department of Health v. Mendelsohn

150 So. 3d 1285, 2014 Fla. App. LEXIS 19520, 2014 WL 6679296

CourtDistrict Court of Appeal of Florida

DecidedNovember 26, 2014

DocketNo. 1D14-4904

StatusPublished

This text of 150 So. 3d 1285 (Florida Department of Health v. Mendelsohn) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Florida Department of Health v. Mendelsohn, 150 So. 3d 1285, 2014 Fla. App. LEXIS 19520, 2014 WL 6679296 (Fla. Ct. App. 2014).

Pincite

Opinions

PER CURIAM.

Appellant’s emergency motion for stay of final order, filed October 22, 2014, is denied. The Department of Health does not specify the statute or rule pursuant to which it moves to stay the Board of Medicine’s order reinstating appellee’s license, and it has not met its burden to demonstrate an entitlement to a stay of the order. Under Florida Rules of Appellate Procedure 9.310(a) and (e), which generally govern motions to stay, a party seeking to stay an order pending review must file a motion in the lower tribunal, and may then move in this court for review of the order entered by the lower tribunal. Under Rule 9.190(e)(2)(A), a party seeking to stay administrative action may file a motion “either with the lower tribunal or, for good cause shown, with the court in which the notice or petition has been filed.” The Department does not allege that it filed a motion for stay pending review below, and it does not show good cause to avoid this requirement. Thus, the Department has not shown entitlement to a stay under these provisions.

Moreover, the Department titles its motion an emergency motion for stay. Under Rule 9.190(e)(2)(B), if an agency has ordered an emergency suspension or issued an immediate final order, “the affect[1286]*1286ed party may file with the reviewing court a motion for stay on an expedited basis.” Here, the order appealed reinstates a license, it does not suspend a license. Moreover, the underlying final order was not entered on an emergency or immediate basis. Finally, under Rule 9.190(e)(2)(C), “[w]hen an agency has suspended or revoked a license other than on an emergency basis, a licensee may file with the court a motion for stay on an expedited basis.” (Emphasis supplied). This subsection does not provide for an expedited motion for stay filed by the agency.

On the court’s own motion, however, this appeal is hereby expedited. The clerk of the lower tribunal shall transmit the record on appeal on or before December 15, 2014. Appellant shall file the initial brief on or before January 5, 2015. Appellee shall file the answer brief within 10 days thereafter, and appellant may file a reply brief within 5 days thereafter. No extensions of time shall be entertained by this court absent a showing of emergency circumstances.

VAN NORTWICK and THOMAS, JJ., concur. MAKAR, J., concurs in part and dissents in part with opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Appellant’s emergency motion for stay of final order, filed October 22, 2014, is denied. The Department of Health does not specify the statute or rule pursuant to which it moves to stay the Board of Medicine’s order reinstating appellee’s license, and it has not met its burden to demonstrate an entitlement to a stay of the order. Under Florida Rules of Appellate Procedure 9.310(a) and (e), which generally govern motions to stay, a party seeking to stay an order pending review must file a motion in the lower tribunal, and may then move in this court for review of the order entered by the lower tribunal. Under Rule 9.190(e)(2)(A), a party seeking to stay administrative action may file a motion “either with the lower tribunal or, for good cause shown, with the court in which the notice or petition has been filed.” The Department does not allege that it filed a motion for stay pending review below, and it does not show good cause to avoid this requirement. Thus, the Department has not shown entitlement to a stay under these provisions.

Moreover, the Department titles its motion an emergency motion for stay. Under Rule 9.190(e)(2)(B), if an agency has ordered an emergency suspension or issued an immediate final order, “the affect[1286]*1286ed party may file with the reviewing court a motion for stay on an expedited basis.” Here, the order appealed reinstates a license, it does not suspend a license. Moreover, the underlying final order was not entered on an emergency or immediate basis. Finally, under Rule 9.190(e)(2)(C), “[w]hen an agency has suspended or revoked a license other than on an emergency basis, a licensee may file with the court a motion for stay on an expedited basis.” (Emphasis supplied). This subsection does not provide for an expedited motion for stay filed by the agency.

On the court’s own motion, however, this appeal is hereby expedited. The clerk of the lower tribunal shall transmit the record on appeal on or before December 15, 2014. Appellant shall file the initial brief on or before January 5, 2015. Appellee shall file the answer brief within 10 days thereafter, and appellant may file a reply brief within 5 days thereafter. No extensions of time shall be entertained by this court absent a showing of emergency circumstances.

VAN NORTWICK and THOMAS, JJ., concur. MAKAR, J., concurs in part and dissents in part with opinion.

Cite This Page — Counsel Stack

Bluebook (online)

150 So. 3d 1285, 2014 Fla. App. LEXIS 19520, 2014 WL 6679296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-department-of-health-v-mendelsohn-fladistctapp-2014.