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 
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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 

 

1The statute also applies to applicants who have been convicted of or 

have pleaded to similar felonies committed in other states or jurisdictions. 
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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. 
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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 
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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 
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proceedings, but that fact does not implicate either the administrative finality doctrine3 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. 
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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). 
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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). 
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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.