STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GILBERTO CABRERA-DIAZ, M.D., )

)

Petitioner, )

)

vs. ) Case No. 99-0767

) DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings on May 3, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gilberto Cabrera-Diaz, M.D., pro se

9439 Fontainebleau Boulevard

Apartment 211

Miami, Florida 33172

For Respondent: Lola M. Swaby, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case concerns whether Petitioner has met the residency requirement for issuance of a restricted license to practice medicine under Section 458.3124, Florida Statutes.

PRELIMINARY STATEMENT

In June of 1998, Petitioner filed an application seeking a restricted license to practice medicine in the State of Florida pursuant to the provisions of Section 458.3124, Florida Statutes. The application was duly investigated, and Petitioner was afforded an opportunity to supply additional information in support of the application. Following consideration of the application and the supporting information, the Board of Medicine advised Petitioner that it intended to deny his application. The stated reason for the intended denial was the failure of Petitioner to meet the statutory residency requirements.

Petitioner timely requested an evidentiary hearing, and in due course the matter was referred to the Division of Administrative Hearings. The matter was assigned to an administrative law judge on February 24, 1999, and was scheduled for hearing on May 3, 1999.

At the final hearing on May 3, 1999, Petitioner testified on his own behalf1 and offered eight exhibits. Petitioner's Exhibits 1, 2, 3, 5, and 7 were received in evidence. Objections were sustained to Petitioner's Exhibits 4, 6, and 8, which are included in the record as rejected exhibits. Respondent presented the testimony of Ms. Margaret Anglin and offered four exhibits, all of which were received in evidence.

At the conclusion of the hearing the parties requested, and were granted, 30 days from the filing of the transcript within

which to file their proposed recommended orders. The transcript of the final hearing was filed with the Division of Administrative Hearings on May 14, 1999. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law.2 The parties' arguments and evidence have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. In June of 1998, Petitioner, Gilberto Cabrera-Diaz, M.D., submitted an application for a restricted license to practice medicine in the State of Florida. His application sought licensure pursuant to the provisions of Section 458.3124, Florida Statutes. One of the requirements for licensure under that statutory provision is a showing that the applicant "has been a resident of this state since July 1, 1996."

2. Petitioner first came to the United States in December of 1990, at which time he and a number of his relatives were seeking refuge from the civil war in his homeland, El Salvador. Petitioner's first stop in the United States was in Florida, but he stayed in Florida for only a few weeks. By March of 1991, Petitioner had obtained employment at a clinic in Houston, Texas, and had moved to Houston with his wife and two children.

3. From March of 1991 through May of 1995, Petitioner and his wife and children lived in Houston, Texas. During this

   period of time Petitioner continued to be employed by a family practice clinic in Houston.

4. Sometime in May or June of 1995, Petitioner and his wife and children moved to El Paso, Texas. On July 1, 1995, Petitioner began a training program at a hospital in El Paso, Texas, that lasted through February of 1996. When Petitioner finished the training program in February of 1996, his prospects for the future appeared to be rather bleak. He had no immediate prospects for employment anywhere and he had very little in the way of savings. One of his hopes was to find employment in Florida. Another of his hopes was to be accepted into a residency program just about anywhere in the United States of America.3

5. In March of 1996, Petitioner's wife and children returned to El Salvador, where they lived with her parents. That same month Petitioner sold his automobile and went to Miami, Florida, where he moved in temporarily with one of his cousins. Petitioner had another cousin who lived in Boca Raton, Florida. For the next several months, until about September or October of 1996, Petitioner spent most of his time trying to find employment in Florida and preparing and sending approximately 150 applications to residency programs. During these several months Petitioner lived part of the time with his Miami cousin and part of the time with his Boca Raton cousin. Due to his limited financial resources at the time, Petitioner was living with his

   cousins to minimize expenses until he either found a job in Florida, or was accepted into a residency program. During 1996, Petitioner never had his own dwelling place in Florida. There is no evidence that during 1996 Petitioner ever intended to permanently reside with either of his Florida cousins.

6. During 1996, Petitioner was unsuccessful in his efforts to be accepted to a residency program. However, he was successful in obtaining employment as a Urologist Assistant in Houston, Texas. Petitioner began his new employment in Houston in September or October of 1996. As of the date of the final hearing in this case, Petitioner was still employed in the same position in Houston, Texas.

7. For the first year and a half or so after starting his current employment in Houston, Petitioner rented a series of apartments in Houston, where he lived alone or with a roommate. By the middle of 1998, his financial circumstances had improved sufficiently for him to bring his wife and children back from El Salvador. In August of 1998, Petitioner moved into a larger apartment in Houston, Texas, and his wife and two children returned from El Salvador and moved into the apartment in Houston with Petitioner. Both of the children attend school in Houston. As of the date of the final hearing, Petitioner and his wife and children continue to live together in an apartment in Houston, Texas; Petitioner continues to work in Houston; and Petitioner's children continue to go to school in Houston.

8. Petitioner has several relatives who live in Florida. During the years Petitioner has been living in the United States, he has made numerous trips from Texas to Florida to visit his Florida relatives.4 Petitioner has a desire to live in Florida so that he can be closer to his relatives, as well as to facilitate the possibility of his son becoming a student at the University of Miami.

9. Since 1991, Petitioner has had a Texas driver's license. He still has a current Texas driver's license. Petitioner obtained his first Florida driver's license in May of 1998. The Florida driver's license lists Petitioner's address as

   9439 Fontaineblue Boulevard, No. 211, Miami, Florida, which is the address of Petitioner's Miami cousin.

10. On at least several occasions since 1991, Petitioner has obtained automobile insurance policies in Texas showing Texas addresses for the automobiles. Petitioner has never obtained an automobile insurance policy in Florida for an automobile registered in Florida.

11. Since leaving Florida in early 1991, Petitioner has lived with his wife and children in several locations in Texas. He is presently living with his wife and children in Houston, Texas. Since leaving Florida in early 1991, Petitioner has never lived with his wife and children anywhere in the State of Florida. Since leaving Florida in early 1991, Petitioner ha

    worked for many years in Texas, and is presently employed in Texas. Petitioner has never worked in Florida.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Chapter 120, Florida Statutes.

13. In a case of this nature, the applicant for licensure bears the burden of proving, by a preponderance of the evidence, entitlement to the license sought. Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996).

14. Petitioner in this case seeks licensure pursuant to Section 458.3124, Florida Statutes. That statutory section authorizes the issuance of a restricted license to practice medicine to those who meet the criteria set forth in the statute. The parties agree that Petitioner meets all but one of the statutory criteria. The single criterion at issue in this case is the residency requirement that appears at Subsection (1)(e) of Section 458.3124, Florida Statutes. Pursuant to that subsection, a license may be issued only if the applicant "has been a resident of this state since July 1, 1996."

15. To comply with the above-quoted requirement, an applicant must have been a legal resident of the State of Florida on or before July 1, 1996, and must have continued, without interruption, to be a legal resident of this state until the time of licensure. This requirement is addressed as follows at

    paragraphs 34 through 36 of Respondent's Proposed Recommended Order:

    1. To qualify for a restricted license pursuant to section 458.3124, Florida Statutes, an applicant must demonstrate, among other things, that he or she '[w]as a resident of this state since July 1, 1996.' (See § 458.3124(1)(e), Florida Statutes, attached hereto as Exhibit A). A 'resident of this state since July 1, 1996,' within the meaning of Section 458.3124(1)(e), Florida Statutes, is one whose legal residence or domicile was in the State of Florida on that date. See Minick v. Minick, 149 So. 483, 488 (Fla. 1933)([g]enerally where a statute prescribes residence as a qualification for the enjoyment of a privilege, . . ., domicile and residence are equivalent).

    2. 'A person may have several temporary

       local residences, but can have only one legal residence.' See Keveloh v. Carter, 699 So.

       2d 285, 288 (Fla. 5th DCA 1997); Walker v.

       Harris, 398 So. 2d 955, 958 (Fla. 4th DCA 1981). 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. Keveloh, supra; Walker, supra. The fact that a person is a frequent visitor at a particular address and arranges for his or her mail to be left there does not convert him or her into a legal resident of that address, regardless of the frequency and length of his or her visits.

       See Williams v. General Insurance Company, 468 So. 2d 1033, 1034 (Fla. 3d DCA 1985).

    3. A person acquires a new legal residence or domicile only if there is '(1) residence in a new locality, (2) coupled with an intention to make it one's home, that is to say, an intention to permanently remain there and not return to the old locality.' See Wetherstein v. Wetherstein 111 So. 2d 292, 293 (Fla. 2d DCA 1959). 'The mere intention to acquire a new domicil[e] without the fact of an actual removal avails nothing; neither does the fact of removal without the intention.' See Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364, 368 (Fla.

       1955). See also Keveloh, 699 So. 2d at 288 ([a] change of residence is accomplished and becomes effective when there is a good faith intention to establish it, coupled with an actual physical move to the new residence, as evidenced by positive overt acts[;] this is so because legal residence consists of the concurrence of both fact and intention'). A change of legal residence or domicile is not accomplished unless and until a good faith intention is coupled with an actual removal evidenced by positive overt acts.

       Bloomfield, supra; Keveloh, supra. Until the actual new domicile is acquired, the former will be deemed to continue. This presumption is a very strong one, whereby, even an expressed intention to change or actual starting of movement to a new place of residence if not completed will not work such a change.' See Wetherstein, 111 So. 2d at

       294. (Emphasis in original.)

16. It is clear from the authorities cited in the above-quoted discussion that the facts in this case fail to

demonstrate that Petitioner was ever a legal resident of this state or, as required by law, a continuous resident since on or before July 1, 1996. By reason of such failure, Petitioner is ineligible for licensure pursuant to the provisions of Section 458.3124, Florida Statutes.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's application for a restricted license pursuant to Section 458.3124, Florida Statutes.

DONE AND ENTERED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1999.

ENDNOTES

1/ Petitioner did not call any witnesses other than himself.

2/ Petitioner's post-hearing submission was titled Summary of Hearing Regarding Approval or Denial of Restricted License to Petitioner.

3/ During 1996, Petitioner submitted applications to approximately 150 residency programs.

4/ There is no evidence that Petitioner's wife and children have been back to Florida since their brief visit to Florida in early 1991.

COPIES FURNISHED:

Gilberto Cabrera-Diaz, M.D. 9439 Fontainebleau Boulevard

Apartment 211

Miami, Florida 33172

Lola M. Swaby, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000767

Orders for Case No: 99-000767