FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D20-2147
                  _____________________________

SHOWNTAIL THE LEGEND, LLC,

    Petitioner,

    v.

STATE OF FLORIDA DEPARTMENT
OF BUSINESS AND PROFESSIONAL
REGULATION,

    Respondent.
                  _____________________________


Petition for Review of Non-Final Agency Action—Original
Jurisdiction.


                       September 14, 2020

                  ON DENIAL OF MOTION FOR STAY

PER CURIAM.

     The State Department of Business and Professional
Regulation suspended Petitioner’s alcoholic beverage license on an
emergency basis, for Petitioner’s failure to comply with Florida’s
COVID-19 emergency orders. Petitioner sought review, and moved
to stay the order suspending its license. The motion to stay argued
there was an insufficient factual basis for the suspension order and
that Petitioner would suffer serious economic hardship from the
suspension. A writs and motions panel was assigned to review the
motion only, not the ultimate merits of the petition. The panel
majority denied the motion to stay in an unpublished order dated
July 31, 2020, with a notation that the third member of the panel
would issue a dissent.

      We now note our colleague’s dissent, although we do not agree
with it and find that it addresses issues not properly before the
Court, as they were not raised in either the motion to stay or the
merits petition. See Rosier v. State, 

, 406 (Fla. 1st
DCA 2019) (en banc) (“An appellate court is ‘not at liberty to
address issues that were not raised by the parties.’ . . . Nor may an
appellate court ‘depart from its dispassionate role and become an
advocate by second guessing counsel and advancing for him
theories and defenses which counsel either intentionally or
unintentionally has chosen not to mention.’”) (citations omitted);
see also Atl. Coast Line Ry. Co. v. State Bd. of Equalizers, 

, 682–85 (Fla. 1922) (emphasizing fundamental premise that
laws are presumptively constitutional unless and until the courts
declare otherwise, and must be obeyed, failing which legal
consequences will follow); Gillyard v. Delta Health Grp., 

(Fla. 5th DCA 2000) (approving proposition that “A governor’s
executive order is not a law, but it has the force and effect of law.
It is issued pursuant to a State statute.”); Abramson v. DeSantis,
SC20-646, 

, at *1 (Fla. June 25, 2020) (“[A]
pandemic is a ‘natural emergency’ within the meaning of section
252.34(8) [Fla. Stat.]. Accordingly, we further conclude that, under
section 252.36(1)(b), the Governor has the authority to issue
executive orders to address a pandemic in accordance with the
Act.”).

KELSEY and M.K. THOMAS, JJ., concur; TANENBAUM, J., dissents
with opinion.

TANENBAUM, J., dissenting.

     The Department of Business and Professional Regulation
(“DBPR”), on an emergency basis and without a hearing,
suspended the alcoholic beverage license it issued to Showntail the
Legend, LLC (“STL”). STL promptly asked that we stay the
suspension while it awaited disposition of its original petition
challenging the precipitous agency action. DBPR opposed the stay.



                                 2
The panel majority denied the stay in a previous, unpublished
order, and I dissented. Now, I write to explain why.

                                  I.

     First, some background. In early March of this year, Florida’s
surgeon general declared the spread of the novel coronavirus
(COVID-19) to be a public health emergency. See Order of Dr. Scott
A. Rivkees (Dep’t of Health March 1, 2020); 1 see also
§ 381.00315(1)(c), Fla. Stat. (2019) (defining “[p]ublic health
emergency” as “any occurrence, or threat thereof, whether natural
or manmade, which results or may result in substantial injury or
harm to the public health from [among other things] infectious
disease”); § 381.00315, Fla. Stat. (tasking state surgeon general,
as state health officer, with the responsibility “for declaring public
health emergencies, issuing public health advisories, and ordering
isolation or quarantines”). The Governor followed suit and
declared his own state of emergency under authority granted to
him by section 252.36, Florida Statutes, ostensibly based on his
conclusion that the Legislature’s definition of a “natural
emergency” includes “infectious disease,” a term found in the just-
quoted, separate definition of “public health emergency.” Compare
§ 252.34(8), Fla. Stat. (2019) (defining “[n]atural emergency” to
mean one “caused by a natural event, including, but not limited to,
a hurricane, a storm, a flood, severe wave action, a drought, or an
earthquake”), with § 381.00315(1)(c), Fla. Stat.

     Initially, the Governor ordered all licensed alcoholic beverage
vendors to suspend sales of those beverages for consumption on
premises. See Executive Order 20-71 (Exec. Off. of the Gov. March
20, 2020); see also § 252.36(5)(h), Fla. Stat. (2019) (including in the
Governor’s emergency powers the power to “[s]uspend or limit the
sale, dispensing, or transportation of alcoholic beverages”). In late
April, as part of an effort to promote economic recovery among
businesses that strained under the yoke of a statewide shutdown,
the Governor allowed the sale of alcohol for consumption on
premises, under certain restrictions, by those licensees that were
restaurants and other food establishments and by those licensees


    1https://www.flgov.com/wp-content/uploads/covid19/DOH%20

declaration-of-public-health-emergency-covid-19-3.1.20.pdf

                                  3
that did not derive more than half of their revenue from sales of
alcoholic beverages. Executive Order 20-112 (Exec. Off. of the Gov.
April 29, 2020). At the beginning of June, the Governor eased up
even further, allowing bars and other licensed alcoholic beverage
vendors that derived a majority of their revenue from alcoholic
beverage sales to get in on the recovery action, again with certain
restrictions. Executive Order 20-139 (Exec. Off. of the Gov. June 3,
2020). This allowance did not include nightclubs.

     Alas, for bar owners and other alcoholic beverage vendors, it
was not to last. At the end of June, DBPR issued an emergency
order that prohibited a licensee from selling alcoholic beverage for
on-premises consumption if the licensee derived “more than 50%
of gross revenue from such sales.” See Emergency Order No. 2020-
09, at 2 (Dep’t of Bus. & Prof’l Reg. June 26, 2020). According to
DBPR, there was an increase of COVID-19-positive tests in Florida
in the month of June, “and some of these cases involving younger
individuals are suspected to have originated from visits to bars,
pubs, or nightclubs.”

allowed
restaurants and other food-service establishments to continue
selling alcoholic beverages for on-premises consumption as long as
such beverage sales made up 50 percent or less of their gross
revenue.

A week later, DBPR amended that order to
remove the revenue threshold but to limit the sale of alcoholic
beverages for on-premises consumption to those licensees “also
licensed to offer food service.” Am. Emergency Order No. 2020-09,
at 2 (Dep’t of Bus. & Prof’l Reg. July 1, 2020).

                                II.

     Any consideration of whether to suspend a license, or whether
to stay a suspension pending a hearing, should proceed from the
following indisputable premise: “Property rights are among the
basic substantive rights expressly protected by the Florida
Constitution.” Dep’t of Law Enforcement v. Real Prop., 

, 964 (Fla. 1991). Indeed, that protection is a principal reason
individuals form governments in the first place. John Locke
thought so. See, e.g., JOHN LOCKE, SECOND TREATISE OF
GOVERNMENT § 138, at 73 (C.B. Macpherson ed., Hackett Publ’g
Co. 1980) (1690) (“The supreme power cannot take from any man
any part of his property without his own consent: for the


                                 4
preservation of property being the end of government . . . .”). The
Framers thought so too. See, e.g., THE FEDERALIST No. 10, at 130–
31 (James Madison) (Benjamin Wright ed., 1961) (“The protection
of [the faculties from which the rights of property originate] is the
first object of government.”). And the die is cast at the beginning
of our state constitution: “All natural persons” have, among other
“inalienable rights,” the right “to be rewarded for industry” and the
right “to acquire, possess and protect property.” Art. I, § 2, Fla.
Const. (titled, “Basic rights”).

     The emergency suspension of a license implicates a property
interest and these inalienable rights. Cf. Robinson v. Fla. Bd. of
Dentistry, 

, 932 (Fla. 3d DCA 1984) (reminding
“Department of Professional Regulation, as well as the specific
professional boards coming under its purview . . . that the
suspension of a license which is essential in the pursuit of
livelihood involves state action” and requires due process). 2 “Once
licenses are issued . . . their continued possession may become
essential in the pursuit of a livelihood,” and due process
guarantees provide “constitutional restraints [that] limit state
power to terminate” them. Bradsheer v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 

, 919 (Fla. 1st DCA 2009)
(quoting Bell v. Burson, 

, 539 (1971)); see Wisconsin v.
Constantineau, 

, 436 (1971) (explaining that
“extremely broad” state police powers over alcohol still do not
override the right to due process; noting significance in “most of
the provisions of the Bill of Rights [being] procedural, for it is



    2  “A property interest may be created by statute, ordinance or
contract,” and once acquired, the individual is entitled to
protection of that interest through due process. Moser v. Barron
Chase Sec., Inc., 

, 236 n.5 (Fla. 2001) (quotation and
citation omitted). Even when the State is dealing with a privilege,
which it has no obligation to grant, “after having chosen to extend
it, the state may not withdraw that right on grounds of misconduct
absent fundamentally fair procedures to determine whether the
misconduct occurred.” Lankheim v. Fla. Atl. Univ., Bd. of Trs., 

, 834 (Fla. 4th DCA 2008) (citing Goss v. Lopez, 

, 574 (1975)).


                                 5
procedure that marks much of the difference between rule by law
and rule by fiat”).

     The Legislature, meanwhile, vouchsafed to the public the
ability to pool capital with others in the form of a limited liability
company (“LLC”) to advance business purposes, to seek a profit,
and to make a living. See generally ch. 605, Fla. Stat. (2019)
(“Florida Revised Limited Liability Company Act”). The members
of STL took advantage of this privilege when they created their
LLC. Bound up in the property of STL are the property interests
of those members. Cf. Pembina Consol. Silver Mining & Milling
Co. v. Pennsylvania, 

, 189 (1888) (noting that
corporations are entitled protection under the Fourteenth
Amendment because they “are merely associations of individuals
united for a special purpose, and permitted to do business under a
particular name, and have a succession of members without
dissolution”);

of a corporation is to bestow the
character and properties of individuality on a collective and
changing body of men.” (internal quotation omitted)).

     The members of STL no doubt applied and paid for an
alcoholic beverage license in anticipation of putting it to use as
part of their profit-making venture. Cf. § 561.19(5), Fla. Stat.
(2019) (describing issuance of license upon approval of application
and payment of license taxes and fees, including $10,750 fee for
new liquor licenses); § 565.02, Fla. Stat. (2019) (listing various
annual license fees). According to STL, its alcoholic beverage
license is integral to its business model; the inability to sell alcohol
on its premises has been terribly detrimental to its continued
business operations (including an estimated $500,000 loss in
sales). Bound up in that license, then, is the constitutional right of
STL’s individual members to acquire property and be rewarded for
their industry.

     DBPR, however, decided that alcoholic beverage license
holders that were unlicensed to sell food, like STL, had to shut
down or simply not use that license. That meant STL would have
to dramatically and immediately change its business model, or
shut down, simply because it held the wrong alcoholic beverage
license. The merits of STL’s resistance to, and persistent failure to
comply with, DBPR’s orders were not before our panel. The only


                                   6
question before us was whether STL was entitled to a stay while it
litigated the merits of DBPR’s actions. As I highlighted just above
in my quotation of DBPR’s emergency order, and as I will discuss
further below, DBPR asked us to withhold the stay for STL based
entirely on conjecture and suspicion about the public health effects
of COVID-19. It did not present specific, concrete facts that showed
a probable danger flowing directly from granting STL a stay. We
should not withhold the statutorily guaranteed stay from a
licensee—designed to protect against unilateral interference with
a fundamental right by a state agency without a hearing—when
an agency rests on such a slender reed.

                                III.

     Indeed, we would do well to keep these property interests in
mind when we consider the administrative state’s opposition to
stays like the one that STL sought. Florida law, in fact, entitles a
petitioner like STL to a stay as a matter of right in almost all
circumstances. See § 120.68(3), Fla. Stat. (2019). The exception to
that entitlement is if, upon request from an agency, we (and not
anyone else) “determine[] that a [stay] would constitute a probable
danger to the health, safety, or welfare of the state.”

be sure, an agency bears the burden “to present to
the court sufficient documentation” showing that a stay poses a
probable danger to the state. Iturralade v. Dep’t of Prof’l
Regulation, 

, 376 (Fla. 1st DCA 1985). I highlight
the word “determine,” though, because the statute requires that,
before we refuse a stay to a licensee, we must do more than simply
review whether an agency has made some showing of probable
danger. Use of the verb “determine” reserves for the court a much
more active role. It means that we exercise our own independent
judgment in the matter; we must reason for ourselves as to
whether the stay would pose a probable danger, based on the
documentation or facts presented. That is to say, before we can
deny a stay and allow an agency to continue its suspension of a
Florida citizen’s livelihood without a hearing, we ourselves must be
able to make an independent and “logical inference of immediacy”
from what the agency submits. Old Timers Rest. & Lounge, Inc. v.
Div. of Alcoholic Beverages & Tobacco, 

, 464 (Fla.
1st DCA 1986).



                                 7
     We of course do not defer to the agency’s assertions about
what it means to be a “probable danger.” Cf. Art. V, § 21, Fla.
Const. (precluding a state court from deferring “to an
administrative agency’s interpretation of [a] statute or rule” and
requiring the court to “interpret such statute or rule de novo”).
More than that, we should not defer to an agency’s assertions that
there is in fact some probable danger to flow from a stay. The
agency created the exigency by terminating a property interest—
immediately and without a hearing. The Legislature, through
section 120.68, chose to put the court between the licensee and the
agency in an unusually direct way to ensure that only in the most
concretely exigent circumstances would the termination of a
property interest be allowed to persist without a hearing.

     The court, then, should demand from an agency specific and
documented facts from which we, ourselves, can cleanly infer the
probable danger immediately flowing from the stay. There must be
“sufficiently identif[ied] particularized facts” from which we can
determine a probable danger, and the burden rests with the agency
to document those specific facts. Crudele v. Nelson, 

,
880 (Fla. 1st DCA 1997) (quoting Witmer v. Dep’t of Bus. & Prof’l
Regulation, 

, 341 (Fla. 4th DCA 1994)); cf. Am. Ins.
Ass’n v. Fla. Dep’t of Ins., 

, 788 (Fla. 1st DCA 1994)
(rejecting “conclusory findings” that are not “factually explicit”);
Anderson v. Dep’t of Health & Rehab. Servs., 

, 500
(Fla. 1st DCA 1986), decision clarified on reh’g, 

, 854
(Fla. 1st DCA 1986) (requiring specific facts establishing a
likelihood of immediate harm to children); Premier Travel Int’l,
Inc. v. Fla. Dep’t of Agric. & Consumer Servs., 

1132,
1136 (Fla. 1st DCA 2003) (requiring specific facts that demonstrate
a “level of urgency” regarding harm to seniors). An agency’s
“[g]eneral conclusory predictions of harm are not sufficient.” Daube
v. Dep’t of Health, 

, 495 (Fla. 1st DCA 2005).
Hyperbole and breathless statements should not carry the day.

     Insisting on specific facts is especially critical in a case like
this one, where DBPR’s assertion of probable harm had nothing to
do with the regulation of alcoholic beverages, but instead was
based on newly developed, still-under-review public health
theories. The Legislature tasked the state surgeon general, not
DBPR, with the responsibility “for declaring public health


                                  8
emergencies, issuing public health advisories, and ordering
isolation or quarantines.” § 381.00315, Fla. Stat. The Legislature
also provided that, based on such a declaration, the state surgeon
general, not DBPR, “may take actions that are necessary to protect
the public health.”

Finally, not DBPR but the Department of
Health, headed by the state surgeon general, “has the duty and the
authority to declare, enforce, modify, and abolish the isolation and
quarantine of persons, animals, and premises as the circumstances
indicate for controlling communicable diseases or providing
protection from unsafe conditions that pose a threat to public
health.” § 381.00315(4), Fla. Stat.; see also § 381.00315(1)(d), Fla.
Stat. (defining “[q]uarantine” to mean “the separation of an
individual reasonably believed to have been exposed to a
communicable disease, but who is not yet ill, from individuals who
have not been so exposed, to prevent the possible spread of the
disease”).

     Moreover, the existence of a public health emergency should
not excuse DBPR—or any other agency besides the Department of
Health—from having to assert specific facts, based on its own
expertise, that demonstrate a clear and emergent need to deny a
stay. In other words, we should not just take DBPR’s word for it in
determining probable danger when the underlying suspension has
stemmed from a public health matter rather than a regulatory
matter. That, however, essentially was what DBPR asked us to do
in opposing the stay, asserting that it and the Governor “would not

    3 Those legislatively authorized actions, to be taken by the
state surgeon general—and not DBPR—include the following
extraordinary steps:

    Ordering an individual to be examined, tested,
    vaccinated, treated, isolated, or quarantined for
    communicable diseases that have significant morbidity or
    mortality and present a severe danger to public health.
    Individuals who are unable or unwilling to be examined,
    tested, vaccinated, or treated for reasons of health,
    religion, or conscience may be subjected to isolation or
    quarantine.

§ 381.00315(1)(c)4., Fla. Stat.


                                  9
issue Executive and Emergency Orders absent an understanding
that COVID spreads easily in bars and nightclubs.”

     Putting aside DBPR’s overwrought characterizations of STL’s
claim for a stay as “ludicrous,” “fl[ying] in the face of scientific
evidence and common sense,” and “shirk[ing] public safety
measures in the name of profit,” it bears noting that the
suspension order itself did not seem so sure about the connection
between bars and spread. DBPR’s suspension order stated that its
emergency orders issued based merely on a suspicion that some
cases of “younger individuals” testing positive originated from bars
that were not observing safety protocols. Rather than rely on
specific evidence of actual harm (say, COVID-positive cases traced
back to STL), DBPR merely pointed us to three articles found on
the internet.

     The first was a published Japanese study that can be found
on the website maintained by the Centers for Disease Control and
Prevention (“CDC”). See Yuki Furuse et al., Clusters of
Coronavirus Disease in Communities, Japan, January–April 2020,
26 EMERGING INFECTIOUS DISEASES 2176 (Sept. 2020). 4 The
authors “analyzed 61 COVID-19 clusters among various
communities in Japan and identified 22 probable primary cases
that might have contributed to the disease incidence in clusters”
during the specified period.

The relevance was hard to
glean. The main conclusion of the study was slightly different than
what DBPR cited the article for: “We found that healthcare
facilities, such as hospitals, and care facilities, such as nursing
homes, were the primary sources of clusters, some of which had
>100 cases.”

It was true that twenty-eight of sixty-one
community clusters in the study came from healthcare, nursing
home, and daycare facilities, followed by ten from restaurants and
bars.

However, “[t]he largest non-healthcare-related
cluster we observed was among >30 persons who attended a live
music concert, including performers, audience members, and event
staff.”

DBPR failed to explain how this study of
Japanese clusters could tell us anything about bars, as opposed to
restaurants, being a significant source of COVID-19 spread in


    4   https://wwwnc.cdc.gov/eid/article/26/9/20-2272_article.


                                  10
Florida. DBPR also failed to address the limitations acknowledged
in the study itself: reliance on “voluntary cooperation,” inability of
some “case-patients” to disclose their contact history, “[r]ecall
bias,” and unavailability of data like “the number of persons
present in the places where clusters of cases were detected.”

     DBPR’s other two internet articles did not tell us much more
that might be relevant to our determination. One was an online
article from Business Insider, which promised to tell the reader,
“Here are seven good reasons why science suggests that sipping a
brew outside this weekend is a far better idea than bellying up to
a bar indoors.” Hilary Brueck, Fauci says being ‘at a bar, inside, is
bad news’ during the coronavirus pandemic. Here are 7 reasons
why he’s right, according to science., BUSINESS INSIDER (July 2,
2020). 5 None of the reasons 6 distinguished between a bar serving
alcohol and a restaurant doing the same. The same was true of the
third article cited by DBPR for support, which also resided on the
CDC’s website. See Considerations for Restaurants and Bars,
CDC.GOV (July 17, 2020). 7 The article presumed the reopening of
restaurants and bars. It identified risks that were applicable to
both restaurants and bars, noting an increase in risk of COVID-19
spread “in a restaurant or bar setting” when there was indoor



    5 https://www.businessinsider.com/why-bars-are-so-dangerous-
for-spreading-the-coronavirus-2020-7.
    6  The reasons included gems like these: “The coronavirus
thrives, survives, and moves quickly indoors”; “Summertime
sunlight can kill off a lot of virus, but there’s little to no sun in a
bar”; “Taking off a mask (which you need to do to drink) ups a
person’s risk of infection” (which also happens to be true for anyone
who wants to eat indoors); “After a drink or two (or more), physical
distancing and other forms of self-restraint might begin to
disappear”; and “Most bar workers don’t have sick pay, making it
harder to stay home if they get symptoms.”
    7https://www.cdc.gov/coronavirus/2019-ncov/community/
organizations/business-employers/bars-restaurants.html.


                                  11
seating on-site, and even more risk if seating capacity was not
reduced and tables were not properly spaced.

     Simply put, DBPR offered nothing from which we logically
could infer that bars and other non-restaurant licensees selling
alcohol on premises—that is, staying open for business at all—
posed a probable danger, while restaurant licensees selling alcohol
on premises did not. DBPR certainly did not assert any specific
facts to demonstrate how an otherwise recalcitrant STL
individually posed a particularly probable danger to the public
health unless its alcohol license was shut down immediately
without a hearing. Instead, DBPR asked that the stay be denied
based on some generally applicable, working theory, rather than
on specific facts—stating that “during the current pandemic, the
public is gravely harmed not only by knowingly contracting this
deadly disease but also by potentially being exposed to it” and that
there was a “very real possibility that carriers of COVID are known
to be asymptomatic [such that] any number of their staff and
patrons . . . may well be COVID carriers who unknowingly infect
others.” (emphasis supplied). This was not enough from which to
make a “logical inference of immediacy” that could support denial
of a stay to STL.

     How this court previously distinguished between the denial of
a stay to a doctor and other situations bolsters my point. We once
observed, “When a doctor has been found guilty of numerous
incidents of malpractice, it logically follows that his continued
practice of medicine would pose immediate danger to the health,
safety and welfare of the public.” Old 

.
Under those circumstances, we easily would deny the stay. “The
same logical inference of immediacy does not flow from the fact
that a licensed business has been operating under the control of an
undisclosed third party and the business failed to have the
requisite number of chairs available for dining required for its
special license . . . .” Id.; cf. 

(“However,
the emergency order did not allege that any of petitioner’s patients
were harmed or suffered an adverse outcome or injury caused by
the unapproved product.”); see also Premier Travel Intern., 

at 1136 (determining that allegations were not explicit enough
to make out a specific risk that would “demonstrate the level of
urgency” necessary to support an emergency order); Am. Ins. Ass’n,


                                 

(determining that an emergency order
improperly relied on “conclusory findings” that were not “factually
explicit” and did not “justify summary action based on an
emergency or an immediate danger to the public health, safety or
welfare” (citation omitted)).

     DBPR’s conclusory statements and citations to internet
articles did not provide us a level of particularity from which we
could logically infer a sense of immediacy and probable danger, so
STL had a right to a stay.

                                IV.

     Presumably, with the capital contributed by STL’s members,
STL obtained from DBPR a Series 4COP Dual Quota alcoholic
beverage license. STL may not have had a right to obtain that
license (after all, selling alcohol in Florida is a closely regulated
privilege), but once DBPR granted the license, STL held a property
interest in it. The livelihood of STL’s members (not to mention
STL’s employees) seemingly depended on it. DBPR took that
property interest away, before STL had an opportunity for a
hearing. The Legislature granted STL a right to put that
deprivation on hold while it litigated the merits of DBPR’s
suspension. Given the significance of this property interest, we
should not countenance the use of a public health emergency as a
substitute for actual, concrete facts, specific to the licensee’s
situation, from which we can determine a probable danger. DBPR
did not demonstrate how any actual injury or harm was likely to
flow from STL holding onto its license pending a hearing. And it
failed to show how STL’s provision of alcoholic beverages indoors
posed more of a danger than that posed by restaurants DBPR had
allowed to continue selling alcohol on premises. In turn, I voted to
grant the stay, and I dissented from the majority’s denial of it.

                  _____________________________


John W. Roberts of Law Offices of John W. Roberts, PLLC,
Miramar Beach, for Petitioner.

Joseph Yauger Whealdon, III, Tallahassee, for Respondent.



                                 13