IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF WILLIAM KYUNG PAE YU, D.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE SUSPENSION

OR REVOCATION OF THE LICENSE OF

WILLIAM KYUNG PAE YU, D.C.

License NO. 38MC00507000

TO PRACTICE CHIROPRACTIC

IN THE STATE OF NEW JERSEY.

_________________________________________

May 5, 2014

Submitted April 7, 2014 Decided

Before Judges Parrillo and Guadagno.

On appeal from the New Jersey State Board of Chiropractic Examiners.

Jeffrey B. Randolph, attorney for appellant William Kyung Pae Yu, D.C.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey State Board of Chiropractic Examiners (John D. Hugelmeyer, Deputy Attorney General, on the brief).

PER CURIAM

William Kyung Pae Yu, a licensed chiropractor, appeals a final agency decision of the New Jersey State Board of Chiropractic Examiners (Board) revoking his license for three years based on his conviction for theft by deception. The Board ordered the first year of revocation to be a period of active suspension and the remaining two years constituted a period of probation.

On appeal, Yu provides the following arguments:

a. the njbce's imposition of a one year active, three year total suspension of chiropractic licensure upon dr. yu was arbitrary and capricious when compared to discipline imposed upon similarly situated chiropractors.

1. the board of chiropractic has imposed much less severe discipline upon other similarly situated chiropractors.

2. the imposition of a one year active suspension will require dr. yu to sell all of his interest in his chiropractic practice that he has built up for over ten years and is excessive.

We have considered these arguments in light of the record before us and the applicable legal standards. We affirm.

The facts are not in dispute. On February 15, 2011, Yu pled guilty to third-degree theft by deception, N.J.S.A. 2C:20-4, and admitted under oath that between March 2007 and January 2010, he submitted bills totaling more than $500 but less than $75,000 to insurance companies for x-ray services that were not performed and for dates of treatment on which no treatment was rendered. On April 5, 2011, Yu was sentenced to a three-year term of probation conditioned on a thirty-day term in the county jail, plus applicable fines and penalties.

On April 26, 2012, Yu, represented by counsel, appeared at an inquiry before the Board's Preliminary Investigation Committee to give testimony under oath as to his conviction and billing practices.1 During the hearing, Yu admitted that he had been "stupid" in cooperating with a patient to commit fraud by inflating the patient's treatment expenses for litigation purposes, and then billing the insurance company for treatment not rendered and x-ray services not performed. Yu also acknowledged that he had used the abbreviation "Dr." in his letterhead without indicating that he was a chiropractor, contrary to N.J.S.A. 45:9-41.19(b); kept illegible patient notes, contrary to N.J.A.C. 13:44E-2.2; and charged an excessive fee for rendering an MRI report, contrary to N.J.A.C. 13:44E-2.11. Yu claimed that after he had been released from jail he had been "too traumatized" to return to work for ten months, but had recently returned to work because he had used up his savings and needed to support his family.

Based on its review of the investigatory committee's report, the Board issued a provisional order of discipline on December 20, 2012, setting forth detailed findings of fact and conclusions of law. The Board found that Yu's conviction provided grounds for suspension of his license under N.J.S.A. 45:1-21(f), because theft by deception is a crime involving moral turpitude and it relates adversely to the practice of chiropractic. His improper use of the abbreviation "Dr." on his letterhead, poor recordkeeping, and excessive billing provided further grounds for disciplinary action. The Board proposed to suspend Yu's license for three years, with the first year to be served as an active suspension and the remaining two years as a period of probation. The Board also proposed that during his active suspension, Yu complete continuing education courses in recordkeeping, complete a seminar in ethics, and re-take the Board's jurisprudence examination.

The provisional order specifically provided that it would become final thirty days after its issuance unless Yu submitted a written request for modification or dismissal of the Board's findings of fact and conclusions of law. Yu failed to file a written request for modification or dismissal of the provisional order, and did not request an administrative hearing.2

On February 28, 2013, the Board issued a final order of discipline, revoking Yu's license in accordance with the provisional order.

The Chiropractic Board Act (CBA), N.J.S.A. 45:9-41.17 to -41.27, vests the Board with broad authority to regulate the "practice of chiropractic . . . by maintaining and ensuring standards of competency and integrity of the profession and preventing unsafe, fraudulent or deceptive practices which may damage the health of those citizens, as well as the reputation of the profession in this State." N.J.S.A. 45:9-41.18. The Board, pursuant to N.J.S.A. 45:9-41.23(e), has the power to suspend or revoke a license under the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-14 to -27. A board may suspend or revoke a license upon proof that the holder of such license "[h]as been convicted of, or engaged in acts constituting, any crime or offense involving moral turpitude or relating adversely to the activity regulated by the board[,]" N.J.S.A. 45:1-21(f), or "[h]as violated or failed to comply with the provisions of any act or regulation administered by the board[,]" N.J.S.A. 45:1-21(h).

On appeal, Yu only challenges the sanction imposed, arguing that the imposition of a one-year period of active suspension was excessive because the Board "routinely" imposes only a six-month suspension on chiropractors who have committed similar, and more serious, crimes. Yu argues the difference is critical, because under the Board's uniform directives a chiropractor whose license has been suspended for one year or more, must divest himself of all financial interest in the professional service corporation, remove his name from all professional listings and phone directories, and remove all signs and take affirmative action to stop advertisements by which his eligibility to practice is represented.

"[A]ppellate review of an agency's choice of sanction is limited. Courts generally afford substantial deference to the actions of administrative agencies such as the Board." In re License Issued to Zahl, 186 N.J. 341, 353 (2006). Such deference is particularly appropriate "when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" In re Stallworth, 208 N.J. 182, 195 (2011) (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

In exercising this authority to alter a sanction imposed by an administrative agency, the Court can do so only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. It can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority.

[In re License of Polk, 90 N.J. 550, 578 (1982).]

"[W]hen reviewing administrative sanctions, appellate courts should consider whether the 'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" In re Stallworth, supra, 208 N.J. at 195 (quoting In re Carter, 191 N.J. 474, 484 (2007)).

Applying those principles of deference, we are satisfied that the Board was well within the bounds of its statutory authority and discretion in concluding that Yu's conviction for theft by deception and other violations involving deceitful and fraudulent conduct warranted the active suspension of his license for one year. See In re License Issued to Zahl, supra, 186 N.J. at 354-55 (deceitful and fraudulent conduct warranted license revocation). The brief record before us amply supports the Board's determination.

The orders included by Yu in his appendices that were issued by the Board in other disciplinary matters and provided for shorter periods of active license suspension, were not part of the record below, and thus are not properly before us. See R. 2:5-4.

Yu appears to argue that the Board failed to properly weigh mitigating factors, including that the underlying criminal offense concerned billing issues, not improper or harmful patient care, and that he had no prior involvement with the criminal courts. See In re License Issued to Zahl, supra, 186 N.J. at 355 (Board must consider mitigating factors when exercising its disciplinary authority). Yu had ample opportunity to respond to the provisional order and submit mitigating evidence regarding the proposed sanction, but declined to do so.

The Board's determination here was supported by the record and is not arbitrary, capricious, or unreasonable. As such, it is entitled to our deference. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Affirmed.

1 N.J.S.A. 45:1-18(b) provides that boards may "[e]xamine under oath any person in connection with any act or practice subject to an act or regulation administered by the board."

2 N.J.S.A. 52:14B-11 provides that "[n]o agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for hearing in conformity with the provisions of this act applicable to contested cases." See In re License of Fanelli, 174 N.J. 165, 172 (2002).