emergency rule in Florida

1993But, as this court noted in Cross, 469 So.2d at 227 , in reliance on Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978): "To invoke the emergency rule to search a person's home, the exigencies of the situation must be so compelling as to make a warrantless search objectively reasonable. " (Emphasis supplied.) Thus we conclude that to allow a warrantless entry into a person's home in an emergency situation, there must be objectively reasonable circumstances that convey to the police officer an articulable, reasonable belief that an emergency exists.

1993But, as this court noted in Cross, 469 So.2d at 227 , in reliance on Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978): "To invoke the emergency rule to search a person's home, the exigencies of the situation must be so compelling as to make a warrantless search objectively reasonable. " (Emphasis supplied.) Thus we conclude that to allow a warrantless entry into a person's home in an emergency situation, there must be objectively reasonable circumstances that convey to the police officer an articulable, reasonable belief that an emergency exists.

2018See, e.g., Fla. Health Care Ass’n., 734 So. 2d at 1054 (overturning an emergency order that failed to state facts demonstrating consumers had been misled, and in regard to fairness, failed to consider how the emergency rule would effect “the facility’s business, from marketing and standing in the community to staff morale and attitudes toward caregiving”).

2006We have jurisdiction to review an emergency rule promulgated by an administrative agency, see § 120.54(4)(a)3.; Fla. Health Care Ass’n v. Agency for Health Care Admin., 734 So.2d 1052, 1053 (Fla. 1st DCA 1998), and such jurisdiction is properly exercised where, as here, petitioners maintain that the emergency rule deprives them of a right that they would have otherwise been entitled to.

2018Instead, the concern is whether the agency followed the requirements of section 120.54(4)(a).” Fla. Democratic Party v. Hood, 884 So. 2d 1148, 1151 (Fla. 1st DCA 2004) (internal citation omitted).

2006Cf. Fla. Democratic Party, 884 So.2d at 1150-51 (finding the Department of State’s reasons for finding an immediate danger sufficient where, due to the invalidation of a prior rule prohibiting manual recount of votes cast on touchscreen voting systems, no statewide standards for conducting manual recounts of votes cast on such systems existed, and the absence of such standards would adversely affect elections in Florida because if a manual recount was required, counties with touchscreen systems would have to conduct them without applicable standards unless the emergency rule was adopted).

1997See generally City of Tampa v. Islands Four, Inc., 364 So.2d 738 , 740 n. 5 (Fla. 2d DCA 1978); Dubin v. Department of Bus.

1997See generally City of Tampa v. Islands Four, Inc., 364 So.2d 738 , 740 n. 5 (Fla. 2d DCA 1978); Dubin v. Department of Bus.

1998Postal Colony Co. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977).

1979In a somewhat different context we held, in Postal Colony Co., Inc. v. Askew; 348 So.2d 338, 342 (Fla.1977): [E]mergency created wholly-by . an agency’s failure to take timely action cannot justify extraordinary suspensions or extensions of the statutory schedule. ■ " Were we to license further and unrestricted emergency rulemaking on the subject at hand, a further attempt by the Department to cure its justification statement, and to repromulgate the emergency rule, could result in the three rules — 33ER79-1, 33ER79-2, and the third rule — having a combined effective life longer than the origi

2018Id.

2006See Little v. Coler, 557 So.2d 157, 158 (Fla. 1st DCA 1990).

2022Ass’n of Homes and Svcs. for Aging, Inc. v. Agency for Health Care Admn., 252 So. 3d 313, 316 (Fla. 1st DCA 2018). 2 Looking at the four corners of the rule, the stated purpose of the rule is to address the fact that “a higher mortality rate [is] associated with gluteal fat grafting than with any other aesthetic surgical procedure.” There have been “ten (10) verified deaths related to gluteal fat grafting in the 36 months [prior to the adoption of the emergency rule].” Florida Department of Health, Notice of Emergency Rule 64B8ER22-3 “Standard of Care for Office Surgery (June 14, 2022).

2022Ass’n of Homes and Svcs. for Aging, Inc. v. Agency for Health Care Admn., 252 So. 3d 313, 316 (Fla. 1st DCA 2018). 2 Looking at the four corners of the rule, the stated purpose of the rule is to address the fact that “a higher mortality rate [is] associated with gluteal fat grafting than with any other aesthetic surgical procedure.” There have been “ten (10) verified deaths related to gluteal fat grafting in the 36 months [prior to the adoption of the emergency rule].” Florida Department of Health, Notice of Emergency Rule 64B8ER22-3 “Standard of Care for Office Surgery (June 14, 2022).

2021See First Hanover v. Vazquez, 848 So. 2d 1188, 1189 (Fla. 3d DCA 2003). 2 This statute reads, in relevant part, as follows: In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment . . . the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due. . . .

2013The Third District’s decision in Robles v. Metropolitan Dade County, 802 So.2d 453, 454 (Fla. 3d DCA 2001), does contain such a holding, but the factual context of that case — which involved the hijacking of a school bus in which the hijacker was “potentially armed with an explosive device” — is quite dissimilar from the factual context here.

2013See Mincey, 437 U.S. at 392 , 98 S.Ct. 2408 (recognizing emergency exception); Vitale v. State, 946 So.2d 1220, 1221 (Fla. 4th DCA 2007) (“ ‘[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.’” (quoting Mincey, 437 U.S. at 392-93 , 98 S.Ct. 2408 )).

2013Although the emergency exception is mentioned in the majority opinion in Kaisner v. Kolb, 543 So.2d 732 , 738 n. 3 (Fla.1989), and in the plurality opinion in City of Pinellas Park v. Brown, 604 So.2d 1222, 1227-28 (Fla.1992), neither of those cases contains any holding regarding the emergency exception.

2013Although the emergency exception is mentioned in the majority opinion in Kaisner v. Kolb, 543 So.2d 732 , 738 n. 3 (Fla.1989), and in the plurality opinion in City of Pinellas Park v. Brown, 604 So.2d 1222, 1227-28 (Fla.1992), neither of those cases contains any holding regarding the emergency exception.

2004See Krajenta v. Div. of Workers' Comp., 376 So.2d 1200, 1202 (Fla. 2d DCA 1979).

2004See State Dept. of Transp. v. Plunske, 267 So.2d 337, 338 (Fla. 4th DCA 1972) ("It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by [court] order ..." quoting from Mayflower Inv.

2001See Zuckerman, 398 So.2d at 872 (“Just as the granting of a temporary injunction is a matter within the discretion of the trial court, so is the dissolution of such an injunction.”).

2000State v. Kraimer, 99 Wis.2d 306 , 298 N.W.2d 568, 572 (1980), cert. denied, 451 U.S. 973 , 101 S.Ct. 2053 , 68 L.Ed.2d 353 (1981) ( quoting The Emergency Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buffalo L.Rev. 419, 426 (1972)); see also Tuck v. United States, 477 A.2d 1115 (D.C.1984) and cases cited therein.