Third District Court of Appeal

State of Florida 

Opinion filed August 10, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1050

Lower Tribunal No. 64B8ER22-3

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Sergio Alvarez, M.D., et al.,

Petitioners,

vs.

Florida Department of Health, Board of Medicine,

Respondent.

A Case of Original Jurisdiction – Petition for Review.

Bruce S. Rogow, P.A., and Tara A. Campion (Boca Raton); Bruce S. 

Rogow, P.A., and Bruce S. Rogow (Cedar Mountain, NC), for petitioners.

Marlene K. Stern, Senior Assistant Attorney General, and Donna 

Canzano McNulty, Special Counsel, and Edward A. Tellechea, Bureau 

Chief, Administrative Law (Tallahassee), for respondent. 

Before LOGUE, HENDON, and GORDO, JJ. 

LOGUE, J.
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Petitioners are seven Board Certified plastic surgeons living and 

practicing in Miami-Dade County, Florida, who perform gluteal fat grafting 

procedures, and “Surgeons for Safety, Inc.,” a non-profit corporation 

representing plastic surgeons in the State of Florida. Petitioners challenge 

the Florida Department of Health, Board of Medicine’s June 14, 2022 

Emergency Rule 64B8ER22 which, for the next ninety days, limits gluteal fat 

grafting office procedures to three per day, and requires the use of 

ultrasound guidance in performing the procedure. Gluteal fat grafting 

involves the transfer of fat from one part of the body to another for cosmetic 

purposes. It is used, for example, in the procedure popularly known as a 

“Brazilian Butt Lift.”

Emergency rules are authorized under section 120.54(4), Florida 

Statutes, and are required to contain “the specific facts and reasons for 

finding an immediate danger to the public health, safety, or welfare and [the 

agency’s] reasons for concluding that the procedure used is fair under the 

circumstances.” Immediate review of such rules is authorized by section 

120.68(1)(b), Florida Statutes. Such review is limited to the four corners of 

the emergency rule. Ass’n of Homes and Svcs. for Aging, Inc. v. Agency for 

Health Care Admn., 252 So. 3d 313, 316 (Fla. 1st DCA 2018).
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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). The procedures are “commonly performed in office surgery 

facilities” and there continues to be “an unacceptable number of fatalities 

related to gluteal fat grafting procedures performed in Florida’s office surgery 

facilities.” Id. The mortalities trace back to the accidental injection of fat below 

the superficial gluteal fascia. Id. In promulgating the rule, the Board adopted 

recommendations made by national organizations of medical professionals 

involved in cosmetic surgery. Id. Using ultrasound to guide the injection of 

the fat is intended to help the surgeon avoid accidently crossing the fascia 

when injecting fat. Id. The limitations on three procedures per day is intended 

to avoid fatigue as the procedures take three hours with an additional one 

hour required to turn around the operating room. Id.

The Petitioners question whether the number of mortalities constitute 

a sufficient emergency, where there has been no attempt to quantify the total 

number of procedures. We do not believe we are in a position to second 
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guess the Board of Medicine’s judgment concerning the number of 

acceptable deaths involved in purely elective cosmetic surgeries. In addition, 

the rule contains plausible and rational statements for the requirement it 

imposes. Given the limited nature of our review, we are required to deny the 

petition.