Kale v. Dep't of Health, CASE NO. 1D14-4273

• Court: Court of Appeal of Florida (US)
• Parties: WILLIAM KALE, PH.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
• Docket Number: CASE NO. 1D14-4273
• Decision Date: 04 June 2015

WILLIAM KALE, PH.D., Appellant,
v.
DEPARTMENT OF HEALTH, Appellee.

CASE NO. 1D14-4273

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

June 4, 2015

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

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.

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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.

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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

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penalty." Mendez, 943 So. 2d at 911; see also Wax v. Horne, 844 So. 2d...