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Paylan v. Department of Health

Florida Court of Appeals, Second District

June 9, 2017

CHRISTINA PAYLAN, M.D., Appellant,
v.
DEPARTMENT OF HEALTH, Appellee.

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

         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 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 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 ...


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