Julie Gallagher of Grossman, Furlow & Bayo LLC, Tallahassee, for Petitioner. Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
Julie Gallagher of Grossman, Furlow & Bayo LLC, Tallahassee, for Petitioner.
Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
Dr. James Renner petitions for review of an emergency restriction order that prohibits him from seeing female patients in his dental practice. We grant the petition and set aside the emergency order in part because the Department of Health failed to demonstrate this restriction was narrowly tailored to protect the public from harm.
We review an emergency restriction order under section 120.68(1)(b) & (2)(a), Florida Statutes, and Florida Rule of Appellate Procedure 9.100(c)(3).
Dr. Renner is a licensed dentist who owns and operates his own dental practice. The Department issued an emergency order restricting his license to prohibit him from seeing female patients. In support, the emergency order alleged that one of Dr. Renner's patients, a 56-year-old woman, called his cell phone at 9:00 p.m. because her crown fell out. Thirty minutes later, Dr. Renner met the patient alone at his office and repaired the crown. Afterward, Dr. Renner demanded that the patient perform oral sex on him. Feeling pressured and vulnerable, the patient performed oral sex on Dr. Renner against her will. When the patient called him later that night, Dr. Renner told the patient that the oral sex was "inappropriate" and "definitely wasn't the correct thing to do."
The emergency order made these findings of fact:
15. Clients of dentists are placed in isolated, vulnerable settings where they can be subject to abuse by their dentists. Due to the potential for abuse that is inherent under these circumstances, dentists must possess good judgment and good moral character in order to safely practice dentistry and must refrain from placing their clients in situations that violate their safety and welfare.
16. Dr. Renner willfully abused his position as a dentist to sexually violate a patient who trusted him to act professionally and within the boundaries of generally accepted treatment. Dr. Renner's deviant actions demonstrate that he poses a significant danger to female patients. Dr. Renner's violation of the dentist-patient relationship indicates that Dr. Renner lacks the good moral character and judgment necessary to practice dentistry.
17. Dr. Renner's lack of good judgment and moral character, his disregard for the laws and regulations governing dentists in this state represent a significant
likelihood that Dr. Renner will cause harm to clients in the future. Additionally, his admissions that it was "inappropriate to say the least" and that it definitely "wasn't the correct thing to do" provides further evidence that Dr. Renner knew what he did was wrong but chose to do it anyway showing that he is likely to behave accordingly in the future. This probability constitutes an immediate, serious danger to the health, safety, or welfare of the citizens of the State of Florida.
18. The nature of dentists involves the delivery of services in a one-on-one manner for an extended period of time. Because of the inherent intimacy of this setting, a restriction where a chaperone must be present for appointments is not feasible. Additionally, Dr. Renner's conduct in inviting [the patient] to an empty office at night shows that he intentionally sought to hide his behavior and would likely do so even if a chaperone were required. Therefore, nothing short of the immediate restriction of Dr. Renner's license to practice as a dentist in the State of Florida will protect the public from the dangers created by Dr. Renner's continued, unrestricted practice of dentistry.
The emergency order concluded that Dr. Renner violated sections 466.027 (engaging in sexual misconduct) and 466.028(1)(k) (committing a sexual battery), Florida Statutes, and restricted his license to prohibit him from seeing female patients.
Dr. Renner promptly sought review and moved to stay the order pending resolution of the petition. We granted the request to stay the emergency order, subject to the requirement that a female licensed healthcare professional be present for all of Dr. Renner's interactions with female patients (including during any emergency or after-hours appointments). See § 120.68(3), Fla. Stat. (providing that, when granting a stay or supersedeas of the agency's decision, the reviewing court "shall specify the conditions, if any, upon which the stay or supersedeas is granted").
Section 456.073(8), Florida Statutes, authorizes the Department to issue a "final summary order" suspending or restricting a license under section 120.60(6), Florida Statutes. See § 456.073(8), Fla. Stat. Section 120.60(6), in turn, authorizes emergency agency action under these circumstances:
If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(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.
Our review of the emergency restriction order is limited to the four corners of the order itself, and every required element must appear on the face of the order. Omulepu v. State, Dep't of Health , 198 So. 3d 1046, 1047 (Fla. 1st DCA 2016). These elements include sufficiently detailed allegations that show "(1) the complained of conduct is likely to continue; (2) the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair." Kaplan v. State, Dep't of Health , 45 So. 3d 19, 20–21 (Fla. 1st DCA 2010). Mere conclusory statements are insufficient; an emergency restriction based on sexual misconduct must be supported by "explicit and persuasive allegations." Lang v. Dep't of Health , 298 So. 3d 1292, 1293–94 (Fla. 1st DCA 2020).
We find that the emergency order meets the requirements of section 120.60(6) and our case law, except for the requirement that the order be narrowly tailored to take "only that action necessary to protect the public interest under the emergency procedure." § 120.60(6)(b), Fla. Stat. We write now to address that requirement.
Because an emergency order restricts a license before the licensee has been afforded a hearing, we require that the order be as narrowly tailored as possible under the circumstances. See Webber v. State, Dep't of Bus. & Pro. Regul. , 198 So. 3d 922, 922–23 (Fla. 1st DCA 2016). To that end, the emergency order must evaluate available remedies and explain why less harsh remedies are insufficient. Preferred RV, Inc. v. Dep't of Highway Safety & Motor Vehicles, Div. of Motor Vehicles , 869 So. 2d 713, 714 (Fla. 1st DCA 2004).
The Department's emergency order prohibited Dr. Renner from seeing any female patients. Of course, we have upheld similar restrictions and even license suspensions in cases involving sexual misconduct. See, e.g. , Kruse v. Dep't of Health , 270 So. 3d 475 (Fla. 1st DCA 2019) (addressing allegations that psychotherapist engaged in sexual misconduct over the course of multiple appointments with a vulnerable patient who suffered from a history of sexual abuse and post-traumatic stress); Sanchez v. State Dep't of Health , 225 So. 3d 964 (Fla. 1st DCA 2017) (addressing allegations that dental hygienist engaged in sexual misconduct by furtively groping/rubbing multiple female patients under the cover of the dental bib); Field v. State, Dep't of Health , 902 So. 2d 893 (Fla. 1st DCA 2005) (addressing emergency suspension of license where physician engaged in sexual misconduct with a "vulnerable patient" who was referred to the physician for an examination to determine disability benefits). But the suitability of an emergency restriction is an individualized determination made case-by-case. While a blanket prohibition on seeing female patients may have been appropriate in other cases, the Department must specifically explain why that restriction is the most narrowly tailored remedy available in this case. The Department has failed to do so.
The emergency order considered one restriction that was less harsh than a total prohibition on seeing female patients: allowing Dr. Renner to see female patients if there is a chaperone in the room. The Department gave two reasons for dismissing this option: (1) the "inherent intimacy" of the setting made the chaperone requirement not feasible, and (2) Dr. Renner's conduct of inviting the patient to his office at night showed that he would evade any chaperone requirement.
But the Department fails to explain what is so inherently intimate about a dental appointment that having another adult in the room is not feasible. Similarly, the Department does not adequately explain its second reason. The chaperone restriction would require that another adult be present for every meeting with a female patient, whether it happens during the day or at night. Furthermore, the order itself states that the patient was the one who called Dr. Renner at night to tell him her crown fell out, at which point he met her at his office to repair it. The order does not adequately explain how these facts lead to the conclusion that Dr. Renner would evade a chaperone requirement by hiding his behavior.
We conclude that the emergency restriction order is not narrowly tailored because it does not adequately explain why a less harsh restriction is insufficient. See Nath v. State Dep't of Health , 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012) (quashing an emergency suspension because the order did not adequately explain why a less harsh restriction was insufficient); see also Machiela v. State, Dep't of Health, Bd. of Optometry , 995 So. 2d 1168, 1170–71 (Fla. 4th DCA 2008) (quashing an emergency restriction that prohibited a doctor from seeing minor patients because a restriction requiring an adult to be present would have been sufficient).
Accordingly, we grant Dr. Renner's petition for review, set aside the emergency restriction order in part (only as far as it prohibits Dr. Renner from seeing female patients), and remand to the Department for further proceedings consistent with this opinion.
Lewis and Long, JJ., concur.