Mark Daniels, N.H.A. v. State of Florida, Department of Health

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D20-1395 _____________________________

MARK DANIELS, N.H.A.,

Petitioner,

v.

STATE OF FLORIDA, DEPARTMENT OF HEALTH,

Respondent. _____________________________

Petition to Review Non-Final Agency Action—Original Jurisdiction.

September 3, 2020

PER CURIAM.

Petitioner seeks review of a nonfinal emergency order suspending his nursing home administrator license pursuant to section 120.60(6), Florida Statutes (2019). Specifically, he claims that (1) the emergency suspension order lacks sufficient detailed allegations demonstrating an immediate serious danger to the public health, safety, or welfare; and that (2) the suspension of his license pending formal disciplinary action is not necessary to protect the public interest because less restrictive remedies would be sufficient to prevent the alleged harm. We disagree with Petitioner’s first claim but agree with the second. Accordingly, the petition is denied in part and granted in part.

Petitioner initially claims that the emergency suspension order lacks sufficient detail to demonstrate an immediate serious danger to the public health, safety, or welfare. However, the order recites specific facts spanning several days demonstrating that Petitioner failed to implement proper screening measures; failed to provide staff and residents with proper personal protective equipment (PPE); failed to provide adequate training on the use of PPE and hygiene practices to prevent the spread of COVID-19; failed to isolate COVID-19 positive patients from other residents; failed to implement proper isolation protocols for COVID-19 patients; refused to participate in briefings with the Department’s nursing team; dismissed the team’s recommendations on proper procedures; and obstructed the team’s attempts to educate staff on proper procedures. The order finds that the result of these failures caused the spread of COVID-19 in the nursing home facility over which he exercised supervisory authority as the administrator of the facility. Contrary to Petitioner’s assertions, the face of the order demonstrates an immediate serious danger to the public health, safety, or welfare requiring emergency action on Petitioner’s license. See Cameron v. State, Dep’t of Health, 1D20- 1410 (Fla. 1st DCA Sept. 3, 2020); Rehab. Ctr. at Hollywood Hills, LLC v. State Agency for Health Care Admin., 250 So. 3d 737, 745– 46 (Fla. 1st DCA 2018). For that reason, we deny the petition in part.

Petitioner also asserts that the emergency suspension of his license pending formal disciplinary action is not necessary to protect the public interest because less restrictive remedies would be sufficient to prevent the alleged harm. Although the emergency suspension order found that there was no restriction that would adequately protect the public from Petitioner’s continued practice as a nursing home administrator, the order contains no explanation as to why the less restrictive remedies listed in section 120.60(6) would be inadequate to address the alleged harm. Therefore, that portion of the order is deficient. See Cameron; Lohstreter v. State Dep’t of Health, 45 Fla. L. Weekly D1792, D1793 (Fla. 1st DCA July 27, 2020); Failer v. State, Dep’t of Health, 139 So. 3d 359, 363 (Fla. 1st DCA 2014); Nath v. State Dep’t of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012).

Accordingly, we GRANT the petition for review in part, QUASH the portion of the emergency order suspending Petitioner’s license as a nursing home administrator, and REMAND to the Department for further proceedings consistent with this opinion. The petition is otherwise DENIED.

RAY, C.J., and BILBREY and JAY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jeffrey J. Molinaro, Christopher M. David, and Joshua M. Salmon of Fuerst Ittleman David & Joseph, Miami, for Petitioner.

Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, and Major Thompson, Assistant General Counsel, Tallahassee, for Respondent.