                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

WILLIAM KALE, PH.D.,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-4273

DEPARTMENT OF HEALTH,

      Appellee.


_____________________________/

Opinion filed June 4, 2015.

An appeal from an order of the Department of Health.

Katherine E. Giddings, Julie Gallagher, and Michael J. Larson of Akerman LLP,
Tallahassee, for Appellant.

Therese A. Savona, Chief Appellate Counsel, Tallahassee, for Appellee.




LEWIS, C.J.

      William Kale, Ph.D., appeals the final order of the Board of Psychology

(“Board”) revoking his license to practice psychology and imposing a fine and costs.

Finding that the Board did not err in interpreting its authority or imposing the

penalty, we affirm.
      The Department of Health (“Department”) filed an Administrative Complaint

against Dr. Kale, alleging that in June 2013, he was convicted in the United States

District Court for the Middle District of Florida of two counts of health care fraud

in violation of 18 U.S.C. § 1347, and thereby violated section 490.009(1)(w), Florida

Statutes (2013), through a violation of section 456.072(1)(ii), Florida Statutes

(2013). The Board held an informal hearing, during which Dr. Kale was represented

by counsel, did not dispute the allegations, and presented evidence in mitigation.

Given that his criminal conviction was on appeal in the United States Court of

Appeals for the Eleventh Circuit, Dr. Kale asked the Board to impose an “indefinite

suspension” pending the resolution of his criminal appeal, at which time he would

reappear before the Board and the Board would have the full range of penalties

available to it “to make a more final decision.” The Assistant Attorney General

advised the Board that it could suspend Dr. Kale’s license and retain jurisdiction to

revisit the case at a future time, at which point it could remove the suspension or

impose other conditions, but it could not revoke his license based on his conviction

not being overturned. The Assistant Attorney General further represented that if the

Board were to revoke Dr. Kale’s license and his underlying conviction is overturned,

he could appeal to the Board to vacate the final order of revocation based on the

change in circumstance. The prosecuting attorney recommended that the Board

revoke Dr. Kale’s license and impose a $10,000 fine on the basis that that was the

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only disciplinary guidelines penalty with regard to one of the statutory violations,

and noted that a departure from the guidelines would require specific findings of

mitigation or aggravation.

      The Board entered a Final Order, wherein it adopted the allegations of fact

and conclusions of law set forth in the Administrative Complaint; found that it was

authorized by section 490.009(2) and/or section 456.072(2) to impose a penalty; and,

accordingly, revoked Dr. Kale’s license and imposed a $10,000 fine and $906.84 in

costs, but stayed the payment of the fine and costs for six months from the issuance

of a mandate in the pending criminal appeal. The Board further ordered, “If all of

the criminal charges that serve as the basis of the Administrative Complaint are

dismissed, [Dr. Kale] may petition the Board to vacate this Final Order.” This appeal

followed.

      Dr. Kale argues on appeal that the Board’s final order must be vacated because

the Board erroneously concluded, pursuant to its counsel’s incorrect advice, that it

could not conditionally suspend a license and retain jurisdiction to revisit that

penalty under the circumstances of this case. Given that the Board was informed

that it could retain jurisdiction over a suspended license but could not revoke that

suspended license if Dr. Kale’s conviction is affirmed, the issue we address is

whether the Board erroneously concluded that it could not indefinitely suspend Dr.

Kale’s license and retain jurisdiction to revoke it if his conviction is not overturned.

                                           3
      An agency’s decision on an issue of law is reviewed de novo. Brown v. State,

Comm’n on Ethics, 969 So. 2d 553, 556 (Fla. 1st DCA 2007); see also § 120.68(7),

Fla. Stat. (2013) (providing that a court shall remand a case or set aside an agency

action when it finds that “[t]he agency has erroneously interpreted a provision of law

and a correct interpretation compels a particular action”). An agency’s interpretation

of a statute that it is charged with administering is entitled to greater deference and

will not be reversed unless it is clearly erroneous. Brown, 969 So. 2d at 557; see

also Kessler v. Dep’t of Mgmt. Servs., Div. of State Grp. Ins., 17 So. 3d 759, 762

(Fla. 1st DCA 2009). However, a court need not defer to an agency’s interpretation

if special agency expertise is not required or if the agency’s interpretation conflicts

with the plain meaning of the statute. Fla. Hosp. v. Agency for Health Care Admin.,

823 So. 2d 844, 848 (Fla. 1st DCA 2002); see also Kessler, 17 So. 3d at 768. Statutes

authorizing sanctions against a person’s professional license “‘are deemed penal in

nature and must be strictly construed, with any ambiguity interpreted in favor of the

licensee.’” Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008)

(internal citation omitted).

      A board’s imposition of a penalty, on the other hand, is reviewed for an abuse

of discretion. Mendez v. Fla. Dep’t of Health, 943 So. 2d 909, 910 (Fla. 1st DCA

2006); see also § 120.68(7), Fla. Stat. “When the Board imposes a penalty within

the permissible statutory range, an appellate court has no authority to review the

                                          4
penalty.” Mendez, 943 So. 2d at 911; see also Wax v. Horne, 844 So. 2d 797, 799

(Fla. 4th DCA 2003) (“The Florida Supreme Court has stated that ‘so long as the

penalty imposed [by an administrative agency] is within the permissible range of

statutory law, the appellate court has no authority to review the penalty unless

agency findings are in part reversed.’”) (Internal citation omitted); Gonzalez-Gomez

v. Dep’t of Health, 107 So. 3d 1139, 1141 (Fla. 3d DCA 2012) (“[R]eviewing courts

cannot substitute their judgment for that of medical boards, which have great

expertise and broad statutory discretion.”).

      Chapter 490, Florida Statutes, the Psychological Services Act, is intended to

“preserve the health, safety, and welfare of the public.” §§ 490.001, 490.002, Fla.

Stat. (2013). The Board of Psychology shall adopt rules to implement the provisions

of the chapter, and “[a]ll applicable provisions of chapter 456 relating to activities

of regulatory boards shall apply to the board.” § 490.004(4)-(5), Fla. Stat. (2013).

Section 490.009, Florida Statutes (2013), titled “Discipline,” provides:

      (1) The following acts constitute grounds for denial of a license or
      disciplinary action, as specified in s. 456.072(2):
                                          ...
      (w) Violating any provision of this chapter or chapter 456, or any rules
      adopted pursuant thereto.

      (2) The department, or in the case of psychologists, the board, may enter
      an order denying licensure or imposing any of the penalties in s.
      456.072(2) against any applicant for licensure or licensee who is found
      guilty of violating any provision of subsection (1) of this section or who
      is found guilty of violating any provision of s. 456.072(1).

                                          5
Section 456.072, Florida Statutes (2013), is titled “Grounds for discipline; penalties;

enforcement” and states in part:

      (1) The following acts shall constitute grounds for which the
      disciplinary actions specified in subsection (2) may be taken:
                                         ...
      (ii) Being convicted of, or entering a plea of guilty or nolo contendere
      to, any misdemeanor or felony, regardless of adjudication, under 18
      U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s.
      1347, s. 1349, or s. 1518, or 42 U.S.C. ss. 1320a-7b, relating to the
      Medicaid program.
                                         ...
      (2) When the board, or the department when there is no board, finds
      any person guilty of the grounds set forth in subsection (1) or of any
      grounds set forth in the applicable practice act, including conduct
      constituting a substantial violation of subsection (1) or a violation of
      the applicable practice act which occurred prior to obtaining a license,
      it may enter an order imposing one or more of the following penalties:

      (a) Refusal to certify, or to certify with restrictions, an application for a
      license.

      (b) Suspension or permanent revocation of a license.

      (c) Restriction of practice or license, including . . . or any other
      restriction found to be necessary for the protection of the public health,
      safety, and welfare.

      (d) Imposition of an administrative fine not to exceed $10,000 for each
      count or separate offense. If the violation is for fraud or making a false
      or fraudulent representation, the board, or the department if there is no
      board, must impose a fine of $10,000 per count or offense.

      (e) Issuance of a reprimand or letter of concern.

      (f) Placement of the licensee on probation for a period of time and
      subject to such conditions as the board, or the department when there is
      no board, may specify. . . .

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      (g) Corrective action.
                                         ...
      In determining what action is appropriate, the board, or department
      when there is no board, must first consider what sanctions are necessary
      to protect the public or to compensate the patient. Only after those
      sanctions have been imposed may the disciplining authority consider
      and include in the order requirements designed to rehabilitate the
      practitioner. . . .
                                         ...
      (8) The purpose of this section is to facilitate uniform discipline for
      those actions made punishable under this section and, to this end, a
      reference to this section constitutes a general reference under the
      doctrine of incorporation by reference.

(Emphasis added). See also § 456.003(2), Fla. Stat. (2013) (“The Legislature further

believes that such professions shall be regulated only for the preservation of the

health, safety, and welfare of the public under the police powers of the

state.”); Pendergraft v. Dep’t of Health, Bd. of Med., 19 So. 3d 392, 394 (Fla. 5th

DCA 2009) (explaining that the stated purpose of Chapter 456 is to protect the public

and that the revocation of a license is intended to protect the public welfare).

      In turn, Florida Administrative Code Rule 64B19-17.002 contains the Board’s

disciplinary guidelines and provides:

      (1) When the Board finds that an applicant or a licensee has committed
      any of the acts set forth in Section 456.072(1) or 490.009(2), F.S., it
      shall issue a final order imposing one or more of the penalties listed in
      Section 456.072(2), F.S., as recommended in the following disciplinary
      guidelines. . . . The guidelines are presented as a range of penalties that
      may be imposed from minimum to maximum.

For a violation of section 490.009(1)(w), the penalty range for a first offense is from

reprimand and a $1,000 fine to revocation and a fine up to $10,000. Fla. Admin.
                                          7
Code R. 64B19-17.002(1)(q). For a violation of section 456.072(1)(ii), the penalty

range is “[r]evocation and a fine of $10,000, or in the case of application for

licensure, denial of license.” Fla. Admin. Code R. 64B19-17.002(1)(gg). The Board

may deviate from the recommended penalties upon consideration of aggravating and

mitigating factors. Fla. Admin. Code R. 64B19-17.002(2).

      In Mann v. Department of Professional Regulation, Board of Dentistry, the

appellant appealed an order of the Board of Dentistry denying his motion to modify

a ten-year suspension from the practice of dentistry. 585 So. 2d 1059, 1060 (Fla. 1st

DCA 1991). This Court found the order to be deficient and ambiguous, with one

interpretation being that the board concluded it lacked jurisdiction to modify a

previously rendered order. Id. After citing case law recognizing both the necessity

for finality in administrative actions and the administrative agencies’ limited

inherent authority to modify their final orders in light of a change in circumstance

or a demonstrated public need, we concluded:

      [A]lthough we are dealing with suspension for a specified period of
      time (not revocation), we are also unwilling to say that the board is
      precluded in all cases from ever revisiting such an order. See Richter v.
      Florida Power Corp., 366 So.2d 798 (Fla. 2nd DCA 1979) (substantial
      change in circumstances may provide the basis for the right of an
      agency to alter a final decision).

Id. at 1060-61. We noted that precluding the board from ever revisiting an order of

suspension “would be inappropriate, especially in cases such as this which involve

conditions of suspension, thereby implying continuing oversight and jurisdiction by
                                         8
the board.” Id. at 1061 n.4; see also Russell v. Dep’t of Bus. & Prof’l Regulation,

645 So. 2d 117, 118-19 (Fla. 1st DCA 1994) (“It is true that there are some cases in

which an agency may exercise its inherent authority to reopen a closed case when

there is a change in circumstances or a demonstrated public need or interest. This,

however, is clearly not such a case. Therefore, the Board correctly determined that

it lacked jurisdiction to revisit this decision, in the absence of a material change in

circumstances or demonstrated public need. . . . Appellant has failed to demonstrate

in his motion to set aside the ‘extraordinary circumstances’ which are a prerequisite

for revisiting a closed case.”) (Internal citation omitted).

      In Rife v. Department of Professional Regulation, the appellant appealed the

Board of Medicine’s final order revoking his license to practice medicine in Florida

based on Vermont having revoked his license to practice in that state. 638 So. 2d

542, 542 (Fla. 2d DCA 1994). Although section 458.331, Florida Statutes, allowed

the board to revoke the appellant’s license upon evidence that his license had been

revoked by the licensing authority of any jurisdiction, the appellant argued that

Florida should not have revoked his license until all the appellate proceedings

concluded in Vermont. Id. at 542-43. In affirming the board’s order, the Second

District concluded in part:

      The hearing officer properly determined that the Vermont order was
      sufficiently final to permit a revocation in Florida. . . . The order entered
      by the Board expressly retained jurisdiction to reinstate Dr. Rife’s
      license in the event that he prevails in his Vermont appeals. Under these
                                           9
      circumstances, we conclude that the Board was authorized to revoke
      Dr. Rife’s license, even though there are appellate proceedings pending
      in Vermont.

Id.

      Here, Dr. Kale contends that the Board had authority to suspend his license

pending his criminal appeal and to retain jurisdiction to revoke his license if his

conviction is not overturned. In support of his position, Dr. Kale primarily relies on

section 456.072(2) and Mann. Section 456.072(2) permits a board to impose “one

or more of the” enumerated penalties, which are listed by lower case letters and

include “(b) Suspension or permanent revocation of a license” as one option. By its

plain language, the statute lists suspension and revocation as alternate penalties to

each other, and nothing in this statute—or in the Board’s disciplinary guidelines

rule—suggests that the Board may suspend a license with the condition that it may

later revisit that penalty and impose a revocation instead. As for Mann, that opinion

supports the Board’s interpretation for it recognizes the need for finality in

administrative actions and the possibility of revisiting a final order upon a substantial

change in circumstance. If Dr. Kale’s conviction is affirmed, there will be no change

in circumstances. Dr. Kale cited no cases, and we are not aware of any, where a

board suspended a professional license and retained jurisdiction to revoke it.

Instead, Dr. Kale cited administrative final orders where a board imposed a

suspension until the licensee could make a demonstration and retained jurisdiction

                                           10
to impose terms and conditions upon the reinstatement of the license.

      We further note that the Board imposed a penalty that was within the

statutorily authorized penalties and was the only recommended disciplinary

guidelines penalty for one of the violations, absent mitigation. Though Dr. Kale

presented evidence in mitigation, the Board made no findings in that regard. The

Board knew that it could suspend Dr. Kale’s license; nevertheless, in the exercise of

its discretion, the Board concluded that revocation was the proper penalty, at least

as long as Dr. Kale’s criminal conviction stands. If Dr. Kale’s conviction is

overturned, he may petition the Board to vacate its final order.

      Therefore, we find that the Board did not err in revoking Dr. Kale’s license

upon concluding that it could not indefinitely suspend the license and retain

jurisdiction to revoke it if his underlying conviction is not overturned. Accordingly,

we AFFIRM the Board’s Final Order.

ROWE and RAY, JJ., CONCUR.




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