              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT


CHRISTINA PAYLAN, M.D.,                    )
                                           )
             Appellant,                    )
                                           )
v.                                         )          Case No. 2D16-3597
                                           )
DEPARTMENT OF HEALTH,                      )
                                           )
             Appellee.                     )
                                           )

Opinion filed June 9, 2017.

Appeal from the Department of Health.

Christina Paylan, M.D., pro se.

Sarah Young Hodges, Chief Appellate
Counsel, Florida Department of Health,
Tallahassee, for Appellee.


PER CURIAM.

             Christina Paylan appeals from a final administrative order from the

Department of Health (Department) denying her application for renewal of her medical

license. The Department's order was based on the application of section

456.0635(3)(a)(2), Florida Statutes (2016), which mandates denial of a renewal

application from any applicant who has been convicted of or pleaded to a felony under
chapters 409, 817, or 893, Florida Statutes,1 unless the applicant is either "currently

enrolled in a drug court program that allows the withdrawal of the plea for that felony

upon successful completion of that program" or, in the case of a third-degree felony,

where more than ten years have passed since "the sentence and any subsequent

period of probation for such conviction or plea has ended."

              It is undisputed that Paylan was convicted of a third-degree felony under

chapter 893, that she was neither offered nor ordered to complete a drug court program

by the trial court, and that the ten-year period from the completion of her sentence and

subsequent probationary period had not yet expired at the time she filed her application

for renewal. Consequently, the Department was required to apply section

456.0635(3)(a)(2) in considering her application.

              In this appeal, Paylan is proceeding pro se. She contends that because

she chose to take her criminal case to trial and because the criminal charges involved

only a single prescription, she did not have the opportunity to participate in a drug court

treatment program. Thus she argues that the application of the ten-year waiting period

set forth in section 456.0635(3)(a)(2) is unjust as applied to her. We write only to

address this argument as we find the other issues raised by Paylan to be without merit.

              I. Background

              On August 22, 2014, Paylan was convicted after a jury trial of obtaining a

controlled substance by fraud, a third-degree felony as set forth in section

893.13(7)(a)(9), Florida Statutes (2011), and fraudulent use of personal information, a




              1Thestatute also applies to applicants who have been convicted of or
have pleaded to similar felonies committed in other states or jurisdictions.


                                            -2-
third-degree felony as set forth in section 817.568(2)(a), Florida Statutes (2011).2

These two convictions arose from an incident involving a single prescription that Paylan

obtained by using the personal identification information of someone who had consulted

with her for a medical procedure. Paylan was sentenced to 364 days in jail with jail

credit applied.

              On July 29, 2015, the Department filed an amended administrative

complaint against Paylan alleging that she violated section 456.072(1)(c), Florida

Statutes (2014), because she was found guilty of crimes related to the practice of

medicine. Ultimately, in December of that year, the Board of Medicine (Board) issued a

final order requiring Paylan to pay a $5000 fine, suspending her license for two years

followed by one year of probation (with credit for time Paylan had served under an

emergency suspension order), requiring her to complete continuing medical education,

and requiring her to pay costs.

              During her suspension, Paylan's license came up for renewal, and she

timely filed her application. On February 2, 2016, the Department notified Paylan that it

denied her application pursuant to section 456.0635(3)(a) because she had been

convicted of a third-degree felony violation of section 893.13(7)(a)(9). The

Department's Notice of Agency Action Denial of License Renewal letter did not

reference Paylan's conviction under chapter 817.

              Paylan thereafter petitioned to dismiss the Department's letter of denial,

and she requested an evidentiary hearing. In her petition, she argued, among other

things, that the denial of her license renewal was tantamount to a license revocation on



              2The   crimes took place on July 1, 2011.


                                            -3-
the same ground for which the Board had already suspended her license. Thus she

argued that the denial violated principles of double jeopardy, res judicata, and collateral

estoppel.

              At the hearing, the Department presented the testimony of a Department

employee who testified that she reviewed Paylan's application, determined it was

complete, and then denied it based on Paylan's criminal convictions under chapters 817

and 893.

              Ultimately, the presiding officer filed a report recommending denial of

Paylan's application based on her conviction for a third-degree felony under chapter

893. The presiding officer correctly concluded, as a matter of law, that section

456.0635(3)(a)(2) mandated the denial because Paylan was not enrolled in a qualified

drug court program and because the ten-year period set forth in the statute had not yet

expired. The Department subsequently issued its final order approving and adopting

the presiding officer's report.

              II. Analysis

              We may only set aside agency action if we find "that the action is

dependent on findings of fact that are not supported by substantial competent evidence

in the record, material errors in procedure, incorrect interpretations of law, or an abuse

of discretion." Malave v. Dep't of Health, Bd. of Med., 881 So. 2d 682, 683 (Fla. 5th

DCA 2004) (citing § 120.68(7), Fla. Stat. (2002)); see also Bollone v. Dep't of Mgmt.

Servs., Div. of Ret., 100 So. 3d 1276, 1279 (Fla. 1st DCA 2012). "With respect to an

agency's interpretation based on an issue of law," we must determine whether the

agency "erroneously interpreted the law and, if so, whether a correct interpretation




                                           -4-
compels a particular action." Bollone, 100 So. 3d at 1279 (citing Rosenzweig v. Dep't of

Transp., 979 So. 2d 1050, 1053 (Fla. 1st DCA 2008)). "The administrative construction

of a statute by the agency charged with its administration is entitled to great weight[,]

[and] [w]e will not overturn an agency's interpretation unless clearly erroneous." Dep't

of Ins. v. S.E. Volusia Hosp. Dist., 438 So. 2d 815, 820 (Fla. 1983) (citing State ex rel.

Biscayne Kennel Club v. Bd. of Bus. Reg., 276 So. 2d 823, 828 (Fla. 1973)).

              Paylan's argument is that the Department incorrectly interpreted the law

by denying her application for renewal pursuant to section 456.0635(3)(a)(2). She

primarily argues that the Department lacked the authority to "impose a penalty" based

upon her conviction because the Board of Medicine had already done so by imposing

the two-year suspension and one-year probationary term. She asserts that the doctrine

of administrative finality precludes a second administrative punishment for the same

conduct. She also contends that the nonrenewal of her license is, in effect, an improper

revocation of her license for a ten-year period, which she contends should be treated

like a double jeopardy violation.

              However, Paylan misunderstands the difference in the nature of the two

types of proceedings. Disciplinary proceedings are conducted to determine whether a

licensee violated the disciplinary statutes. Conversely, in licensure renewal

proceedings, the Department determines whether the licensee has met all the

requirements for continued licensure or whether there is some fact that precludes

renewal. Paylan's conviction under chapter 893 subjected her to both types of




                                            -5-
proceedings, but that fact does not implicate either the administrative finality doctrine 3 or

double jeopardy. Whether or not Paylan met the requirements for continued licensure

under section 456.0635(3)(a)(2) was not an issue that was decided by the Board of

Medicine in her disciplinary proceedings. Similarly, the Department, in reviewing

Paylan's application for renewal, did not base the nonrenewal on Paylan's violation of

section 456.072(1)(c), which permits discipline against a physician's license where a

physician has either been convicted of or pleaded to a crime relating to the practice of

the physician's profession. Indeed, although the same drug-related conviction was used

as a predicate for the two proceedings, one of the proceedings focused on how Paylan's

conviction was related to her profession (i.e., by fraudulently obtaining a prescription

through the use of someone else's information), whereas the other proceeding focused

on Paylan's continued fitness for licensure due to the drug-related conviction.

              We reject Paylan's argument that the denial of her renewal application

was punitive in nature. While civil proceedings can constitute punishment under certain

circumstances, we do not believe that the Department's denial of renewal was so

disproportionate so as to serve as a sanction. Cf. N. Hill Manor, Inc. v. State, Agency

for Health Care Admin., 881 So. 2d 1174, 1177 n.3 (Fla. 1st DCA 2004) (explaining that

double jeopardy does not ordinarily "apply to limit sanctions in civil cases unless the

'sanction as applied in individual cases is so disproportionate to the government's



              3The  administrative finality doctrine is based on the idea that "there must
be a 'terminal point in every proceeding both administrative and judicial, at which the
parties and the public may rely on a decision as being final and dispositive of the rights
and issues therein.' " Fla. Power Corp. v. Garcia, 780 So. 2d 34, 44 (Fla. 2001)
(quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So. 2d 679, 681 (Fla. 1979)). The
doctrine is applied where there are common facts and issues presented in different
proceedings and there has not been a significant change in circumstances. See id.


                                            -6-
damages that it serves the goal of punishment' " (quoting State v. Knowles, 625 So. 2d

88, 91 (Fla. 5th DCA 1993))). Sections 456.0635(3)(a)(1)-(3) focus on a physician's

continued fitness to practice his or her profession when they have been convicted of

certain crimes. The statute thus serves the public welfare by ensuring that a physician

is either currently obtaining help for drug dependency or waiting a requisite period of

time4 after his or her sentence and any subsequent period of probation has concluded

before seeking renewal. We therefore conclude that the Department was not prohibited

by the administrative finality doctrine from following the mandate set forth in section

456.0635(3)(a)(2) and that it did not commit a double jeopardy violation in doing so.

              Paylan's argument that application of section 456.0635(3)(a)(2) is unjust

appears to be based on the idea that section 456.0635(3)(a) fails to contain any

exceptions for licensure renewal applicants who are in her exact predicament, i.e.,

applicants who are not ordered to complete or expressly offered a drug court program

as part of the resolution of a criminal case and for whom the relevant time period has

not yet expired. However, we see nothing in section 456.0635(3)(a) that requires a trial

court to offer or to order an applicant to attend a drug court program. Rather, the

statute requires the Department to refuse renewal of a license of any applicant who has

been convicted of or entered a plea to a felony under the specified chapters unless the

applicant is "currently enrolled in a drug court program that allows the withdrawal of the

plea for that felony upon successful completion of that program." § 456.0635(3)(a).

Thus Paylan had a choice at the time she was charged with the criminal offenses. She



              4The other subsections of the statute provide different time periods barring
renewal depending on the offense level and whether the crime constituted a violation of
section 893.13(6)(a).


                                            -7-
could go to trial and hope to be found not guilty, at which point section 456.0635(3)(a)

would be inapplicable. Or she could voluntarily enter a pretrial drug court program,

assuming she qualified for it.5 Either Paylan did not qualify for such a program or she

chose not to participate in it. Consequently, while her angst and frustration about her

situation are understandable, that is not a sufficient basis to bar application of section

456.0635(3)(a)(2).

              Because Paylan was not currently enrolled in a drug court program and

because the ten-year period specified in section 456.0635(3)(a)(2) had not yet expired,

the Department was mandated to deny her renewal application due to her conviction of

a felony under chapter 893. The Department is not permitted to make an exception

because the result seems harsh or unfair as applied to a particular individual or

situation. See Cortes v. State, Bd. of Regents, 655 So. 2d 132, 136 (Fla. 1st DCA

1995) ("The legislature may authorize administrative agencies to interpret, but never to

alter statutes." (citations omitted)); Commercial Coating Corp. v. Dep't of Envtl.

Regulation, 548 So. 2d 677, 679 (Fla. 3d DCA 1989) ("Administrative agencies

entrusted with authority to carry out statutory provisions are . . . prohibited from giving

the statute an amendatory construction.").




              5Although    not addressed by the parties and not dispositive of this case, we
note that section 397.334(2), Florida Statutes (2014), provides in relevant part that
"[e]ntry into any pretrial treatment-based drug court program shall be voluntary." And
the website for the Drug Pretrial Intervention Program for the Thirteenth Judicial Circuit
indicates that "[a]ny person over the age of 18 who has not had a prior felony or pretrial
intervention episode is eligible provided they waive their right to a speedy trial, admit to
having a drug problem and express a desire for treatment." Thirteenth Judicial Circuit
Hillsborough County Drug Pretrial Intervention Program FAQs,
http://www.fljud13.org/CourtPrograms/DrugCourtPrograms/DrugPretrialIntervention/FA
Qs.aspx (last visited May 18, 2017).


                                             -8-
              In enacting section 456.0635(3)(a), the legislature clearly wanted to create

an opportunity for certain first-time offenders to be able to renew their medical license

as long as they are progressing in a drug court treatment program. The incentive in

picking that option is that an applicant would not have to wait for the expiration of the

time periods set forth in sections 456.0635(3)(a)(1)-(3). Rather, the applicant is only

required to be "currently enrolled" in such a program when their application for renewal

is processed. § 456.0635(3)(a). But where an applicant either does not qualify for such

a program or chooses not to enter into such a program, the legislature has made it

equally clear that the applicant must wait for the expiration of the requisite time period—

here, ten years—regardless of what the Board has done in a prior disciplinary

proceeding. In the absence of a successful constitutional challenge, neither the

Department nor this court may modify the statute in order to achieve a less harsh result

for Paylan. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) ("We are not at liberty to

add words to statutes that were not placed there by the [l]egislature."); Commercial

Coating Corp., 548 So. 2d at 679 ("In construing statutes[,] courts may not invoke a

limitation or add words to the statute not placed there by the legislature."). Section

456.0635(3)(a)(2) is very clear, and under the facts and circumstances of this case, the

Department lacked the discretion to do anything except to deny the renewal of Paylan's

license. Accordingly, the Department's final order is affirmed.

              Affirmed.



NORTHCUTT, KHOUZAM, and MORRIS, JJ., Concur.




                                            -9-
