Third District Court of Appeal

State of Florida 

Opinion filed February 17, 2021.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1646

Lower Tribunal Nos. 2020-30488, DOH-20-1628-ERO-MQA

________________

Stephanie Stover, M.D.,

Petitioner,

vs.

State of Florida, Department of Health,

Respondent.

A Case of Original Jurisdiction – Petition for Review of Non-Final 

Agency Action.

Metzger & Associates, LLC, and Kenneth J. Metzger (Tallahassee); 

Ellsworth Law Firm, P.A., and Sean M. Ellsworth, for petitioner.

Sarah Young Hodges (Tallahassee), Chief Appellate Counsel, for 

respondent.

Before LOGUE, LINDSEY and LOBREE, JJ. 

LOGUE, J.
2

Dr. Stephanie Stover petitions for review of an emergency order issued 

by the Florida Department of Health restricting her ability to conduct certain 

surgeries pending the outcome of an administrative proceeding in which the 

Department contends Dr. Stover committed malpractice. Because the 

Department’s emergency order fails to include sufficient facts that would 

allow this Court to engage in a meaningful review to determine whether the 

restriction is narrowly tailored and whether other remedies would be 

insufficient to protect the public, we grant the petition and quash the order.

BACKGROUND

Dr. Stover performs elective cosmetic and plastic surgery procedures, 

including liposuction and gluteal fat transfer and grafting, commonly 

advertised as a Brazilian Butt Lift. This procedure typically involves the 

removal of fat by liposuction from an area such as a patient’s abdomen and 

the insertion of the fat into the patient’s buttocks, or gluteal area.

In June 2019, the Florida Board of Medicine issued an emergency rule 

that prohibited physicians from injecting fat into the intramuscular or 

submuscular region of a patient’s gluteal area during a gluteal fat grafting 

procedure. This emergency rule was formally adopted by the Board and 
3

became effective on March 2, 2020. See Rule 64B8-9.009(2)(f), Fla. Admin. 

Code.1

On September 15, 2020, Dr. Stover performed various surgical 

procedures on a patient, including breast augmentation, abdominoplasty, 

liposuction, and gluteal fat transfer and grafting. After the procedure, the 

patient’s heart rate drastically dropped and she stopped breathing. 

Emergency medical services transferred the patient to the hospital where 

she was later pronounced dead. After conducting an autopsy of the 

deceased patient, a medical examiner observed “multiple fatty particles . . . 

within and beneath [the patient]’s gluteus maximum muscles,” along with

“numerous channels” through the patient’s “gluteal muscles containing fatty 

particles.” The medical examiner determined the patient had died from 

pulmonary embolisms.

An independent expert reviewed the autopsy results and opined that 

(1) Dr. Stover “improperly injected fat into [the patient]’s gluteal muscle”; (2) 

“based on the number of channels through [the patient]’s gluteal muscles 

and the amount of fat in and under her muscles, Dr. Stover’s conduct was 

1 The administrative rule, titled “Standard of Care for Gluteal Fat Grafting,” 

provides: “When performing gluteal fat grafting procedures, fat may only be 

injected into the subcutaneous space and must never cross the gluteal 

fascia. Intramuscular or submuscular fat injections are prohibited.”
4

either intentional or recklessly negligent”; and (3) “Dr. Stover’s conduct of 

inserting fat in and below [the patient]’s gluteal muscles fell below the 

prevailing minimum standard of care for gluteal fat transfer procedures.”

Based on this conduct, the Department asserted:

25. . . . Dr. Stover’s conduct of using an inherently 

dangerous and illegal fat grafting technique despite the 

known risks of increased mortality indicates that Dr. 

Stover is not capable of performing surgeries in a manner 

that is correct and safe. The number of channels through 

[the patient]’s gluteal muscle indicates that Dr. Stover’s 

conduct was either intentional or reckless. Therefore, Dr. 

Stover’s continued unrestricted practice as a medical 

doctor presents an immediate, serious danger to the 

health, welfare, and safety of the public.

26. An independent medical expert has determined 

that Dr. Stover’s conduct fell below the prevailing 

minimum standard of care. As a result of Dr. Stover’s 

failure to operate in a manner that is correct and safe, [the 

patient] died. Because Dr. Stover ignored the Board of 

Medicine’s rule prohibiting physicians from injecting fat 

into patients’ muscles, there is a significant likelihood that 

Dr. Stover’s utilization of improper and dangerous 

techniques will continue. This constitutes an immediate, 

serious danger to the public health, safety, and welfare. 

As a result, there are no less restrictive means, other than 

the terms of this Order, that will adequately protect the 

public from Dr. Stover’s continued unrestricted practice as 

a medical doctor.

On October 23, 2020, the Department issued the emergency order 

under review precluding Dr. Stover from performing any procedure involving 

fat transfer or fat grafting pending a full administrative hearing on the matter.
5

Two weeks later, on November 6, 2020, the Department filed an 

administrative complaint against Dr. Stover based on the same incident 

alleging medical malpractice and violation of Rule 64B8-9.009(2)(f).

2

DISCUSSION

Section 120.60(6) delineates the Department’s authority 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. 

Summary suspension, restriction, or limitation may be ordered, 

2 In its administrative complaint, the Department sought imposition of one or 

more of the following penalties: permanent revocation or suspension of Dr. 

Stover’s license, restriction of practice, imposition of an administrative fine, 

issuance of a reprimand, placement of Dr. Stover on probation, corrective 

action, refund of fees billed or collected, remedial education and/or any other 

relief that the Board deems appropriate.
6

but a suspension or revocation proceeding pursuant to 

ss. 120.569 and 120.57 shall also be promptly instituted and 

acted upon.

Significantly, in authorizing the Department to issue such orders prior to any 

hearing, the Legislature provided that such emergency orders are

immediately reviewable when the licensee files a petition for review of 

nonfinal agency action in the appropriate district court. See §§ 120.60(6)(c),

120.68(1)–(2), Fla. Stat. (2020); Fla. R. App. P. 9.100(c)(3).

Our review of the Department’s emergency order “is limited to the four 

corners of the order itself, and every element necessary to its validity must 

appear on the face of the order.” Valls v. Dep’t of Health, 255 So. 3d 515, 

517 (Fla. 3d DCA 2018); see also Lohstreter v. Dep’t of Health, 298 So. 3d 

1290, 1290 (Fla. 1st DCA 2020).

To satisfy the demanding standards of section 120.60(6), the factual 

allegations in the order must show “(1) the complained of conduct is likely to 

continue; (2) the order is necessary to stop the emergency; and (3) the order 

is sufficiently narrowly tailored to be fair.” Id. at 1291. Further, the “agency’s 

stated reasons for acting cannot be general or conclusory, but must be 

factually explicit and persuasive concerning the existence of a genuine 

emergency.” Id. at 1290 (internal quotations and citation omitted). Among 

other things, the Legislature required that the Department’s order disclose 
7

“its reasons for concluding that the procedure used is fair under the 

circumstances.” § 120.60(6)(c), Fla. Stat. These statutory safeguards ensure 

a proper balance between protecting the public from harm and preserving 

licensees’ “property interest prior to giving them full due process.” Nath v. 

State Dep’t of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012).

The Department’s order alleged that Dr. Stover had violated section 

458.331(1)(t), Florida Statutes, and Rule 64B8-9.009(2)(f), Florida 

Administrative Code, by “performing intramuscular and submuscular fat 

injections” during the gluteal fat transfer and fat grafting procedure on her 

patient. The emergency order sets forth detailed and specific allegations

regarding Dr. Stover’s actions during a surgical procedure in which her 

patient died. Dr. Stover’s actions were found to be either intentional or 

reckless, and contrary to the standard of care for gluteal fat grafting 

procedures established by the Board of Medicine. 

The Department’s order recites sufficiently detailed factual allegations

“of the time, place, particular acts, and circumstances demonstrating an 

immediate serious danger to the public health, safety, or welfare requiring 

emergency action” upon Dr. Stover’s license. Lohstreter, 298 So. 3d at 1291. 

The emergency order, however, fails to provide a sufficient factual 

foundation to determine whether the restriction imposed is sufficiently 
8

narrowly tailored to be fair under the circumstances. Id. at 1291 (“Because 

the summary emergency procedure allows the Department to ‘deprive 

licensees of a property interest prior to giving them full due process,’ the 

emergency . . . order must ‘explain why less harsh remedies . . . would have 

been insufficient to stop the harm alleged.” (quoting Nath, 100 So. 3d at

1276)). The Department must provide this factual foundation precisely 

because our review is limited to the four corners of the order. The Court is 

therefore dependent on the Department’s sharing of its medical expertise to 

ensure the review is meaningful and not simply a rubber stamp.

Here, the mortality at issue occurred during the substantial fat transfers 

involved in a Brazilian Butt Lift; it involved an alleged violation of the 

Department’s emergency rule intended to limit the dangers of fat transfers 

during such procedures. The emergency order restricting Dr. Stover’s 

practice, however, prohibited her from performing any procedure involving 

fat transfer or fat grafting. Fat transfers are used in many types of cosmetic 

surgeries performed in different parts of the body including the earlobes, 

nose, cheeks, chin, hands, arms, and breasts.3 The Department’s order fails 

3 See, e.g., Bahnyuk v. Reed, 174 A.D. 3d 481, 482 (N.Y. App. Div. 2019) 

(plastic surgeon “performed fat transfers to areas of plaintiff’s face during an 

elective cosmetic procedure”); Sensini v. MTD Sw. Inc., 2018 WL 8224882 

(M.D. Fla. 2018) (patient had fat transferred from her abdomen to her genital 

area to correct lacerations after an accident); Anderson v. Bd. of Supervisors 
9

to provide the medical background to allow this Court to review whether the 

risks of fat transfer performed in these smaller surgeries are sufficiently 

similar to the risks of fat transfer performed during larger surgeries, such as 

the Brazilian Butt Lift at issue, to justify the across-the-board restriction upon 

Dr. Stover’s license precluding her from performing any type of fat transfer.

Indeed, while the emergency order clearly provides the findings necessary 

to preclude Dr. Stover from performing Brazilian Butt Lifts pending the final 

hearing, the order contains no discussion why Dr. Stover should also be 

precluded from performing operations involving smaller fat transfers.

CONCLUSION

Because we are restricted to the four corners of the Department’s order 

and the order does not contain sufficient factual context to allow meaningful 

review of whether the restriction imposed is sufficiently narrowly tailored to 

be fair under the circumstances, Lohstreter, 298 So. 3d at 1291, we grant 

the petition, quash the order under review, and remand for further 

proceedings consistent with this opinion.

Petition granted; Order quashed.

of La. State Univ. & Agric. & Mech. Coll., 943 So. 2d 1198, 1199 (La. Ct. 

App. 2006) (doctors performed a “coronal forehead lift and a fat transfer to 

the upper and lower lips” on patient).