stating generally that provisions that impose penalties, even if remedial in nature, should be strictly construed against the required payment
How later courts described this case
- stating generally that provisions that impose penalties, even if remedial in nature, should be strictly construed against the required payment
- holding that we do not defer to an agency’s interpretation of an unambiguous statute
- noting that this standard is the same as the Chevron analysis
Written by the judges who cited it.
The opinion
CLIFFORD, J.,
concurring.
[¶ 33] I concur in the result reached by the Court, and I would affirm the judgment, but I would do so on different grounds than the Court.
[¶ 34] For many of the reasons stated in the dissent, and in particular the inconsistencies and lack of clarity in the statutory language, I would conclude that 32 M.R.S. § 13858 (2005) is ambiguous. Because the statute is ambiguous, I would look to the construction of the statute given by the Board of Counseling Professionals Licen-sure, which is charged with the statute’s administration. “An agency’s interpretation of an ambiguous statute it administers is reviewed with great deference and will be upheld unless the statute plainly com *280 pels a contrary result.” Competitive Energy Servs. LLC v. Pub. Utils. Comm’n, 2003 ME 12, ¶ 15 , 818 A.2d 1039, 1046 (quotation marks omitted).
[¶ 35] The Board concluded that section 13858 does not grant to licensed professional counselors the authority to “diagnose and treat mental health disorders.” Although the language of section 13858 specifically grants such authority to “licensed clinical professional counselor[s],” “licensed pastoral counselor[s],” and “licensed marriage and family therapists],” it does not explicitly grant that authority to “licensed professional counselors.” In my view, the Board’s interpretation of the statute to that effect is reasonable and does not plainly contradict its language. Accordingly, it is a construction to which I would defer. See Competitive Energy Servs., 2003 ME 12, ¶ 15 , 818 A.2d at 1046 .
[¶ 36] Moreover, contrary to the dissenting opinion, in my view, 32 M.R.S. §§ 13851-13865 (2005) is not a penal statute. Rather, as we have concluded with regard to a statute governing real estate brokers, the purpose of the sanctions set out in the statute is “regulatory and not penal.” Me. Real Estate Comm’n v. Anderson, 512 A.2d 351, 353 (Me.1986). The statute at issue here, governing counseling professionals, is similar in purpose to that governing real estate brokers. See 32 M.R.S. §§ 13061-13069 (2005). Pursuant to both statutes, the Commission or Board has authority to assess a fine. 10 M.R.S. § 8003(5)(A-1)(3) (2005); 32 M.R.S. § 13068(2)(C) (governing the Real Estate Commission); 32 M.R.S. § 13861 (governing the Board of Counseling Professionals Licensure). Notwithstanding that those provisions allow for the imposition of a fine, both are regulatory rather than penal, and should not be construed in the strict fashion urged by the dissent.
[¶ 37] As to the sanctions imposed on Cobb by the Board, I agree with the views stated by Chief Justice Saufley in her concurring opinion.