IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JUAN FRANCISCO SANCHEZ, NOT FINAL UNTIL TIME EXPIRES TO
R.D.H., FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petitioner,
CASE NO. 1D16-3751
v.
STATE OF FLORIDA
DEPARTMENT OF HEALTH,
Respondent.
___________________________/
Opinion filed August 28, 2017.
Petition to Review Non-Final Agency Action—Original Jurisdiction.
Ronald W. Chapman and Juan C. Santos of Chapman Law Group, Sarasota, for
Petitioner.
Sarah Young Hodges, Chief Appellate Counsel, Department of Health,
Tallahassee, for Respondent.
OSTERHAUS, J.
Juan Francisco Sanchez petitions for review of emergency agency action
restricting his license to practice as a dental hygienist. We deny Mr. Sanchez’s
petition because the Department’s order is facially sufficient.
I.
Pursuant to § 120.60(6), Florida Statutes, the Department entered an
emergency order restricting Mr. Sanchez’s license to practice as a dental hygienist.
In the order, the Department made specific and detailed factual findings of sexual
misconduct by Mr. Sanchez against five female patients during dental appointments
over the span of three months of his working at a new dental hygienist job. We
needn’t elaborate the details of the multiple incidents here. Suffice it to say, the
Department alleged that Mr. Sanchez repeatedly had violated §§ 456.072(1)(v) and
456.063(1) by committing sexual misconduct against multiple women in the course
of his work as a dental hygienist; that there was a significant likelihood that Mr.
Sanchez would cause harm to female patients in the future due to “his repeated and
continuous disregard for the laws and regulations governing dental hygienist[s]”;
and that there existed an immediate, serious danger to the health, safety, or welfare
of the citizens of the State of Florida. Based upon these allegations, the Department
decided that an emergency restriction was necessary and fair under the
circumstances to adequately protect the public: “[n]othing short of the immediate
restriction of Mr. Sanchez’s license [would] protect the public from the dangers
created by Mr. Sanchez’s continued practice of dental hygiene on female patients.”
And so, it restricted Mr. Sanchez’s license to practice immediately by prohibiting
him from seeing female patients until a full hearing could take place in the matter.
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II.
Section 120.60(6) authorizes a state agency to take emergency disciplinary
action against a state licensee under the following 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.
On appeal, our review is limited to evaluating whether the face of an emergency
order provides sufficiently detailed allegations. Nath v. Dep’t of Health, 100 So. 3d
1273, 1276 (Fla. 1st DCA 2012).
Mr. Sanchez argues that the Department’s order is insufficient on its face to
justify the emergency restriction of his license. In his view, the order does not
adequately state that (1) Mr. Sanchez’s conduct presents an immediate danger to the
public health, safety, or welfare; (2) the complained of conduct was likely to
continue; or (3) the order was necessary to stop the emergency. He also argues that
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the order was not sufficiently narrowly tailored to be fair. We disagree with his
arguments and conclude that the detailed allegations in the Department’s order
satisfied each of these elements. We more particularly address only Mr. Sanchez’s
argument that the order restricting his license was not sufficiently narrowly tailored
to be fair.
Many cases have construed the requirements of § 120.60(6), and among the
requirements this court has applied is that emergency orders must be “sufficiently
narrowly tailored to be fair.’” Nath, 100 So. 3d at 1276 (quoting Kaplan v. Dep’t of
Health, 45 So. 3d 19, 21 (Fla. 1st DCA 2010)). On its face, the order here doesn’t
assess the heaviest possible emergency sanction. The Department didn’t suspend
Mr. Sanchez’s license altogether, but only restricted him from seeing female
patients. But Mr. Sanchez asserts that the Department could have employed a more
modest remedy by allowing him to continue practicing on female patients in the
presence of another professional. His argument relies upon this Court’s discussion
in Nath that “agencies employing the procedure must ‘explain why less harsh
remedies . . . would have been insufficient to stop the harm alleged,’” Nath, 100 So.
3d at 1276, and resembles Machiela v. Department of Health, Board of Optometry,
995 So. 2d 1168 (Fla. 4th DCA 2008), where the court reversed a suspension because
it determined that merely requiring a second person in the room would sufficiently
protect the public (Machiela involved an optometrist who repeatedly exposed
himself to minors during office visits). But we are satisfied in this case that the
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Department’s emergency order meets the statute’s requirements. Here, the
allegations are that Mr. Sanchez furtively, sometimes under the cover of a dental
office bib, would touch and rub the private areas of female patients while carrying
out his duties cleaning and checking their teeth. Because his alleged misconduct is
readily concealable in the course of carrying out his duties, we cannot fault the
Department’s tailored, gender-specific restriction and conclusion that “[n]othing
short of the immediate restriction of Mr. Sanchez’s license to practice as a dental
hygienist in the State of Florida will protect the public from the dangers created by
Mr. Sanchez’s continued practice of dental hygiene on female patients.”
III.
Because the Department’s emergency order restricting Mr. Sanchez’s license
is facially sufficient, we deny the petition.
PETITION DENIED.
ROWE and WINOKUR, JJ., CONCUR.
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