STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNERIS LUCIA DELGADO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3295

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 9, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Anneris Lucis Delgado, pro se

15902 S.W. 95th Avenue, Apt 114 West Miami, Florida 33157

For Respondent: Edwin A. Bayo, Esquire

Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent was a resident of Florida on July 1, 1990, and therefore entitled to certification as a physician's assistant pursuant to Section 458.347(7)(b)1.d., Florida Statutes.

PRELIMINARY STATEMENT

Respondent denied Petitioner's application for certification as a physician's assistant by order entered on April 22, 1992. Respondent requested a formal hearing by letter dated May 7, 1992. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 26, 1992, and assigned to Hearing Officer Michael M. Parrish on June 3, 1992.

A formal hearing was scheduled for August 28, 1992, pursuant to a Notice of Hearing issued on July 16, 1992. The formal hearing was rescheduled for October 9, 1992. The matter was transferred to the undersigned on October 5, 1992.

At the formal hearing, Petitioner testified in her own behalf and presented the testimony of Mr. Juan Santana, her father. Petitioner presented no exhibits for admission in evidence. Respondent cross examined Petitioner and her father

and submitted a certified copy of Petitioner's application file which was admitted in evidence without objection.

A transcript of the formal hearing was filed with the undersigned on October 28, 1992. Petitioner did not file proposed findings of fact and conclusions of law. Respondent timely filed proposed findings of fact and conclusions of law on November 6, 1992. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is the governmental agency responsible for issuing licenses to persons qualified as physician's assistants. Petitioner applied for certification as a physician's assistant without examination on June 25, 1991.

   
   

2. The parties stipulated that Petitioner is entitled to be certified as a physician's assistant without examination if she was a resident of Florida on July 1, 1990, as provided in Section 458.347(7)(b)1. d., Florida Statutes. 1/ Petitioner received a doctor of medicine degree from Universidad Autonoma De Santo Domingo in the Dominican Republic on February 25, 1988 ("Autonoma"). Autonoma is a foreign medical school listed with the World Health Organization. Petitioner was not licensed or certified in any other state on July 1, 1990.

   The sole issue for determination is whether Petitioner was a resident of the state on July 1, 1990.

   
   

3. Petitioner was born in the Dominican Republic on March 12, 1961. She resided, for the most part, 2/ in New York with her biological parents from 1965-1974 and then returned to the Dominican Republic to attend high school and complete an eight year academic program culminating in a degree as a doctor of medicine. Petitioner completed medical school on February 25, 1988. She remained in the Dominican Republic until March, 1989, to complete a required one-year rural clinic program.

   
   

4. Petitioner's permanent legal residence and domicile was Florida from 1981 until the present. Petitioner's father and siblings moved to Florida when Petitioner's father was stationed in Florida in 1981 while he was in the military service. When Petitioner's father retired from the military in 1983, he moved his family to Miami, Florida. Petitioner was a full-time student in the Dominican Republic, was supported by her father while she was in medical school, and was claimed by her father as a dependent for federal income tax purposes until 1985. Her father's income tax returns listed Florida as the legal residence for him and his dependents. Petitioner's passport listed her Florida as her permanent residence. Petitioner did not file income tax returns for the tax years 1985-1989 because she was a full-time student. During the entire time, Florida was the permanent residence of Petitioner and her father.

   
   

5. While she was in medical school, Petitioner considered her father's home as her home. She lived at her home in Miami during her school vacations. After completing her clinical program, Petitioner returned to her home in Miami from March 10- 17, 1989. Petitioner married and lived on a military base in Texas from March 17, 1989, until sometime in June, 1991, when she returned to Florida. Petitioner's present intent was always to return to her permanent legal residence in Florida. Petitioner never intended to remain permanently in Texas and in fact returned to her permanent legal residence in Florida as soon as her husband was able to do so.

6. Petitioner was married on March 22, 1989, in El Paso, Texas. Her husband had joined the United States Army on February 11, 1988 and was stationed in Ft. Bliss, Texas. Petitioner's husband remained on continuous active duty while Petitioner lived outside of Florida. Petitioner and her husband lived on a military base for the two years he was stationed in Texas. Petitioner became an American citizen on March 16, 1990, while living in Texas with her husband. Petitioner did not register to vote in Texas but obtained a Texas driver's license. Petitioner and her husband filed a joint return for federal income purposes for the 1990 tax year. Petitioner's son was born in Texas on March 27, 1990.

   
   

7. Petitioner returned to Florida in May, 1990, when she and her two- month-old baby visited her father in Miami. Petitioner returned to Texas after two weeks because her baby was born prematurely and needed medical attention. Petitioner remained in Texas until December, 1990, because her husband was on alert to be shipped out in connection with the "Desert Storm" conflict. Petitioner, her husband, and their child returned to Miami during the holidays in December, 1990, and opened a bank account. Petitioner visited her father in Florida on two more occasions between December, 1990, and May, 1991. Each visit lasted about two to three weeks. In May, 1991, Petitioner began moving boxes and other items to Florida. By June, 1991, Petitioner, her husband, and their child had moved all of their belongings to Florida.

   
   

8. Petitioner filed a formal declaration of domicile on September 13, 1991. The formal declaration of domicile stated that Petitioner had been a legal resident of Florida since March 10, 1989. Petitioner registered to vote for the first time in Florida in April, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

10. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise specifically established. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). Petitioner must show by a preponderance of the evidence that her permanent legal residence was in Florida on July 1, 1990.

    
    

11. A resident of this state on July 1, 1990, within the meaning of Section 458.347(7)(b)1.d., Florida Statutes, is one whose permanent legal residence or domicile was in Florida on that date. Minick v. Minick, 149 So. 483, 488 (Fla. 1933). Generally, residence and domicile are equivalent where a statute prescribes residence as a qualification for the enjoyment of a privilege. Id. A legal residence or domicile is the place where a person has fixed an abode with the present intention of making it his or her permanent home. Walker v. Harris, 398 So.2d 955, 958 (Fla. 4th DCA 1981).

    
    

12. Petitioner's permanent legal residence became Florida when her father moved to Florida prior to 1981. The domicile or residence of a minor female child is that of her father in the absence of evidence to the contrary.

    Chisholm v. Chisholm, 125 So 694, 702 (Fla. 1929). An unemancipated minor child cannot, of her own volition, select or change her domicile or residence. Florida

    Board of Regents of the Department of Education, Division of Universities, 338 So.2d 215, 219 (Fla. 1st DCA 1976). Even if Petitioner was emancipated when she reached the age of 18 in 1979, there is no evidence that she had the present intent to make her permanent legal residence anywhere other than her father's home. Petitioner was totally dependent upon her father for her support and lived with her father during her school vacations. When her father made his permanent legal residence in Florida, so did Petitioner.

    
    

13. A person acquires a new legal residence or domicile if there is: (a) residence in the new locality; and (b) a present intent to permanently remain there and not return to the former locality. Wetherstein v. Wetherstein, 111 So.2d 292, 293 (Fla. 2d DCA 1959). When Petitioner's father moved to Florida prior to 1981 and made the state his permanent legal residence, Petitioner changed her permanent legal residence to Florida. She resided in the new locality during her school vacations and had the present intent to permanently remain there and not return to the former locality in New York. Petitioner lived in the Dominican Republic because she was required to in order to complete her education.

    
    

14. Petitioner never had the requisite present intent to make either the Dominican Republic or Texas her permanent legal residence. A person acquires a new legal residence or domicile only if there is both residence in the new locality and the present intent to permanently remain there and not return to the former locality. Wetherstein v. Wetherstein, 111 So.2d 292, 293 (Fla. 2d DCA 1959). The mere removal to the new locality without the intention to make it a permanent residence does not result in a change in legal residence or domicile. Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364, 368 (Fla. 1955). While Petitioner was in the Dominican Republic and Texas, she never had the requisite intent to make either locality her permanent legal residence. Petitioner was required to live in the Dominican Republic in order to complete her education, and her husband was required by the United States Army to live in Ft. Bliss, Texas.

    
    

15. Petitioner's permanent legal residence in Florida is presumed to continue while she was living in the Dominican Republic and Texas in the absence of evidence that she had the requisite present intent to make either place her permanent legal residence while living there. Petitioner is presumed to retain her permanent legal residence in Florida until a new legal residence or domicile is acquired by the concurrence of residence and present intent. In Wetherstein, the court held:

    
    

    . . . until the actual new domicile is acquired, the former will be deemed to continue. This presumption is a very strong one.

    
    

    Wetherstein, 111 So.2d at 294.

    
    

16. No evidence was submitted to overcome the strong presumption enunciated in Wetherstein. Petitioner never had the intent to make any place other than Florida her permanent legal residence. Petitioner always maintained the present intent to make Florida her permanent legal residence and did so in fact at her earliest opportunity. Thus, Petitioner's permanent legal residence in Florida is presumed to continue while her husband was temporarily required by the military to be located in Texas. Wetherstein, 111 So.2d at 294. In Bloomfield, the court explained this rationale as follows:

    . . . if a man actually becomes a bona fide resident of the state and intends to remain permanently a citizen of the state, mere absence with the specific clear-cut bona fide intention of returning will not destroy the residence actually theretofore established. 3/

    
    

    Petitioner testified that her intent was always to return to her permanent legal residence in Florida. Her testimony was positive, consistent, unequivocal, credible, and persuasive.

    
    

17. Petitioner's permanent legal residence is not determined by reference to her husband's permanent legal residence. Judd v. Schooley, 158 So.2d 514 (Fla. 1963). A wife's legal residence or domicile does not necessarily follow that of her husband's but is to be determined according to the particular facts and circumstances applicable to her. Simpson v. Simpson, 339 So.2d 250 (Fla. 2d DCA 1976); see also Beauchamp v. Beauchamp, 508 So.2d 419, 421 (Fla. 2d DCA 1987). To hold otherwise would place too great an emphasis on the common law fiction that, by marriage, a woman's identity is absorbed into that of her husband's. Ashmore v. Ashmore, 251 So.2d 15, 17 (Fla. 2d DCA 1971).

    
    

18. Even if a wife's residence were determined by the residence of her husband, one's residence or domicile is not affected by his or her military assignment. Neither Petitioner nor her husband lost their previous residence or domicile or acquired a new one as a result of their assignment to Ft. Bliss, Texas. Eckel v. Eckel, 522 So.2d 1018, 1020 (Fla. 1st DCA 1988); Cruickshank v. Cruickshank, 420 So.2d 914 (Fla. 1st DCA 1982); Jeffries v. Jeffries, 133 So.2d 751 (Fla. 3d DCA 1961).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order granting Petitioner's

application for certification as a physician's assistant without examination.

RECOMMENDED this 26th day of January, 1993, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993.

ENDNOTE

1/ Sec. 458.347(7)(a)2. and (a)3.a., Fla. Stat., requires Respondent to certify Petitioner as a physician's assistant if, among other requirements, Petitioner has satisfactorily passed a proficiency examination and has a certificate of completion of a physician assistant training program. Sec. 458.347(7)(b)1., provides, in relevant part:

Notwithstanding the provisions of subparagraph (a)2. and sub-paragraph (sic) (a)3.a., the department shall examine each applicant who the board certifies:

* * *

d. Was a resident of this state on July 1, 1990 . . . .2 Petitioner resided in the Dominican Republic from 1971-1972.3 The fact that Petitioner did not become a citizen of the United States until March 16, 1990, is not material. One may establish a residence in Florida without being a citizen of the United States. See Pawley v. Pawley, 46 So.2d 464 (Fla. 1950; Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3323

Petitioner's Proposed Findings Of Fact.

Petitioner did not submit proposed findings of fact. Respondents' Proposed Findings Of Fact.

1.-4. Accepted in Finding 3.

5.-6. Accepted in Finding 4.

7.-8. Accepted in Finding 5.

9.-10. Accepted in Finding 6.

1. Accepted in Finding 5.

2. Accepted in Finding 7.

3. Accepted in Finding 8. 14.-15. Accepted in Finding 6.

16. Accepted in Finding 8.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1050

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Pl-01, The Capitol

Tallahassee, Florida 32399-1050

Anneris Lucis Delgado, pro se 15902 S.W. 95th Avenue Apartment 114 West

Miami, Florida 33157

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-003295

Orders for Case No: 92-003295