                                       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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