STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHANDRA D. PUNWANI, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0850

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 29, 1992, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Julian Gonzalez, Esquire

150 Southeast 12th Street, Suite 401 Fort Lauderdale, Florida 33316

For Respondent: Edwin A. Bayo, Esquire

Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner meets the residency requirement prescribed by Section 458.347(7)(b)1.d., Florida Statutes, for certification as a physician assistant?

PRELIMINARY STATEMENT

By order issued December 23, 1991, the Board of Medicine notified Petitioner of its decision to deny her application for certification as a physician assistant because she was "not a resident of Florida on July 1, 1990, or licensed or certified in any state in the United States as a physician assistant on July 1, 1990," as required by Section 458.347(7)(b)1.d., Florida Statutes, and further notified her of her right to request a formal hearing on the matter. Petitioner subsequently requested such a formal hearing. On February 5, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Petitioner had requested.

At the formal hearing, Petitioner testified on her own behalf. She also presented the testimony of her husband, Dayaldas Punwani, and offered into evidence one exhibit, a copy of her and her husband's joint 1990 U.S. tax return, which was received by the Hearing Officer. The Board offered into

evidence a copy of Petitioner's certification file, which also was received by the Hearing Officer. It presented no other evidence.

At the close of the evidentiary portion of the hearing on April 29, 1992, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on May 4, 1992. The Board and Petitioner filed proposed recommended orders on May 18, 1992, and May 19, 1992, respectively.

The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. From May, 1957, until her retirement 33 years later, Petitioner was employed as a physician by a government agency in India. Her first position was that of an Assistant Surgeon. When she retired, she was the Chief Superintendent of a 350-bed hospital.

   
   

2. Petitioner is now, and has been since November 11, 1959, happily married to Dayaldas M. Punwani.

   
   

3. Petitioner and her husband were married in Bombay, India.

   
   

4. They lived together in India until March, 1981, when Dayaldas moved to the United States. Petitioner remained in India with the couple's two children.

   
   

5. At the time of their physical separation, Petitioner and her husband enjoyed a congenial relationship, as they have throughout their marriage. Their plan was for Petitioner to eventually join Dayaldas in the United States and live with him in the same household, but only following her retirement from government service and after their children were married and settled in accordance with Indian custom and tradition.

   
   

6. When Dayaldas arrived in the United States, he first went to Boston, Massachusetts.

   
   

7. Sometime in late 1981 or in 1982, he settled in Broward County, Florida and has lived there since.

   
   

8. Using a visitor's visa to enter the United States, Petitioner visited her husband on two occasions after he had settled in Florida: from May, 1983, to August, 1983, and from November, 1985, to March, 1986.

   
   

9. During her first visit, Petitioner and Dayaldas decided that when Petitioner joined Dayaldas in the United States to once again live with him, they would make Florida their permanent home.

   
   

10. On neither of her visits to her husband did Petitioner come with the intention of staying for an indefinite period of time. Rather, she fully intended both times to return to India to continue her employment with the government until she reached retirement age 1/ and to discharge her responsibilities to her children.

11. On February 8, 1990, Dayaldas became a permanent resident of the United States under this country's immigration laws.

    
    

12. By February, 1990, both of Petitioner's and Dayaldas' children were married and settled.

    
    

13. In April, 1990, Petitioner began to dispose of household items and other personal belongings in anticipation of her retirement and her subsequent move to Florida to join her husband.

    
    

14. On May 30, 1990, at the age of 58, Petitioner retired from government service.

    
    

15. The retirement age for physicians in government service in India is

1. They have the opportunity, however, to seek reappointment to their position and work two years beyond their 58th birthday. Petitioner opted not to seek reappointment and extend her employment an additional two years because she wanted to move to Florida to live with her husband.

   
   

   1. At the time of her retirement, Petitioner was living in the same government-owned apartment in Bombay that she had been living in since September, 1964. The apartment was provided to her by the Indian government as part of her compensation package. 2/ Petitioner had a maximum of eight months following her retirement to vacate the apartment.

      
      

   2. Petitioner used only approximately one half of the allotted time. She vacated the apartment in December, 1990.

      
      

   3. On December 31, 1990, Petitioner arrived in Florida and moved in with her husband, with whom she has been living since. She came only with a few clothes. She had disposed of her other possessions, including her automobile, before leaving India.

      
      

   4. During the time that Petitioner was living in India and Dayaldas was living in the United States, Petitioner had an Indian driver's license and voted in local Indian elections.

      
      

   5. In or around April, 1991, Petitioner and Dayaldas filed a joint 1990

      U.S. tax return. They subsequently filed an amended return.

      
      

   6. On June 14, 1991, Petitioner became a permanent resident of the United States under this country's immigration laws.

      
      

   7. On or around June 29, 1991, Petitioner mailed to the Board her completed application for certification as a physician assistant. On her application, she "list[ed her] place of residence on July 1, 1990," as "Bombay, Maharashtra, India."

      
      

      CONCLUSIONS OF LAW

      
      

   8. Petitioner is seeking certification as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes.

      
      

   9. To qualify for such certification an applicant must demonstrate, among other things, that he or she "[w]as a resident of this state on July 1, 1990, or

      was licensed or certified in any state in the United States as a physician assistant on July 1, 1990," as required by Section 458.347(7)(b)1.d., Florida Statutes.

      
      

   10. 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 legal residence or domicile was in 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").

       
       

   11. "A person may have several temporary local residences, but can have only one legal residence. 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. The fact that a person may visit a particular address "does not convert him into a [legal] resident of that address," regardless of the frequency and length of the person's visits. Williams v. General Insurance Company, 468 So.2d 1033, 1034 (Fla. 3d DCA 1985).

       
       

   13. A person acquires a new legal residence or domicile only if there is "(1) residence in a new locality, 3/ (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." Wetherstein v. Wetherstein, 111 So.2d 292, 293 (Fla. 2d DCA 1959).

       
       

   14. "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." Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364, 368 (Fla. 1955). 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." Id.

       
       

   15. "[U]ntil the actual new domicile is acquired, the former will be deemed to continue. This presumption is a very strong one. 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." Wetherstein v. Wetherstein, 111 So.2d at 294.

       
       

   16. A wife's legal residence or domicile "does not necessarily follow that of her husband but is to be determined according to the facts pertinent to her as an individual." 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)("[t]he wife's residence and domicile does not necessarily follow that of her husband when facts pertinent to her particular case determine otherwise"); Ashmore v. Ashmore, 251 So.2d 15, 17 (Fla. 2d DCA 1971)("[w]ere we to find that of necessity [the wife] acquired her husband's domicile we 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'").

       
       

   17. An examination of the facts pertinent to Petitioner's case reveals that, although her husband may have become a legal resident of Florida in late 1981 or in 1982, Petitioner did not become a legal resident of this state until December 31, 1990, the date she joined her husband in Broward County with the intention of remaining there indefinitely.

   18. At no time prior to that date had Petitioner, while in Florida, intended to remain in the state for an indefinite period of time. On the only two previous occasions that she had been physically present in the state, she had simply been a visitor who had come with every intention of returning to her home in India, which she did following the conclusion of both of her visits. While Petitioner intended to ultimately rejoin her husband in Florida on a permanent basis sometime in the future, such an intention was insufficient to make her a legal resident of Florida. "For the acquisition of a domicil[e] of choice the intention to make a home must be an intention to make a home at the moment, not to make a home in the future." Campbell v. Campbell, 57 So.2d 34, 35 (Fla. 1952).

       
       

   19. Petitioner argues that the holding in Bloomfield v. City of St. Petersburg, 82 So.2d 364 (Fla. 1955) supports her position that she has been a legal resident of Florida since prior to July 1, 1990. The argument is not persuasive. The pertinent facts in Bloomfield were summarized in the court's opinion as follows:

       
       

       It appears that [Mr. Manly] and his wife visited St. Petersburg Beach in 1949. They returned again in 1950, and bought a piece of real estate. They were visitors again in 1951. It then appears that early in 1952 they decided to build a motel on the land which they had previously purchased, constructing one apartment in the motel for themselves pursuant to a decision to move to St. Petersburg Beach to make their future home. Early in 1952 application was made for a construction loan at a local savings and loan association, and the motel was completed in August, 1952.

       The Manlys, prior to the completion of the motel, placed on the market for sale their home in Michigan. They actually sold it September, 1952, and put the proceeds of the sale into their Florida property or in Florida banks. Prior thereto Mrs. Manly had moved to the apartment in the motel and had brought with her from Michigan all of the personal effects of herself and her husband such as dishes, lamps and other personal belongings accumulated over a lifetime. They sold the bulk of their furniture with their home in Michigan. In August, 1952, they closed out two bank accounts in Michigan and immediately opened an account in Florida. Ever since the construction of the motel they have retained the same motel apartment as their residence according to their original plan. The Manlys filed their joint income tax return for 1952 income in the Jacksonville District Office of the Internal Revenue Department, the same having been filed between January and March, 1953. Similarly in 1954 they filed their income tax return in the same office for the 1953 income taxes. In both of these returns they showed their residence to be at the address of the motel above described. Both husband and wife testified positively that they decided to become legal residents of Florida on December 1, 1952, when Mr. Manly was in Florida.

       Their testimony is positive, consistent and unequivocal on this point. It appears that on or about that date they concluded that the motel cost them more than they

       had anticipated and was not yet producing the income they expected, and that therefore Mr. Manly would continue working for his company in Michigan for one more year in order to supplement their income and to qualify him for an additional year on his retirement benefits. He went back to Michigan early in 1953 to accomplish this purpose and this purpose alone. For awhile he had a room with a nephew there and then rented a small apartment on a month-to-month basis. All of this time, however, he referred to Florida as his home, his wife remained in Florida taking care of their motel and it was only on one or two brief occasions described as visits, and the evidence shows that they were, that she ever went back to Michigan

       during 1953. Finally, in December, 1953, having worked the year according to plan and having earned the additional retirement benefits, Mr. Manly returned to St. Petersburg Beach, registered to vote in January, 1954, and qualified later as a candidate for the City Commission with the result above mentioned. In addition to the foregoing facts it appears that Manly had a Michigan tag on his automobile in 1953 for the reason that he kept the car in Michigan while he was working. He retained his Michigan driver's license because up there they had a three-year license and his did not expire until 1954.

       
       

       Id. at 367-68. Based upon the foregoing facts, the court held that Manly had become a legal resident of the State of Florida in December, 1952, when Manly was present in Florida and he and his wife decided to henceforth make Florida their permanent home. The court explained its reasoning as follows:

       
       

       [I]f 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. It appears to the Court that in absolute good faith Mr. Manly fully intended to establish his permanent residence in Florida in December, 1952. This intention was evidenced by the innumerable steps theretofore definitely taken by disposing of his home in Michigan, the transfer of his bank accounts, the acquisition of a home in Florida, the filing of income tax returns, and by the maintenance of the Florida home by his wife with whom he enjoyed a happy and congenial marriage relationship. All of these together with the other factors mentioned above point inescapably to the conclusion that as of December, 1952, this man not only bona fidely intended but actually had taken the necessary steps to make himself a resident of the State of Florida. The intent and the act therefore had concurred. He was a resident from that date forward.

       We distinguish this case from Campbell v. Campbell, Fla., 1952, 57 So.2d 34, where the evidence pointed to an intent to establish a residence for divorce purposes at some date in the future.

   20. Petitioner's reliance on Bloomfield is misplaced. The court in Bloomfield found that Manly became a legal resident of Florida, not when he visited the state in 1949, 1950, and 1951, not in early 1952 when he and his wife decided to make Florida their home some day in the future, not when he and his wife placed their Michigan home on the market for sale sometime prior to August, 1952, not when he and his wife closed out two bank accounts in Michigan and opened an account in Florida in August, 1952, not when his wife moved from Michigan to their apartment in Florida sometime prior to September, 1952, taking with her all of the couple's "personal effects," not when he and his wife sold their home, together with the bulk of their furniture, in September, 1952, but in December, 1952, after these events had occurred, when he was in Florida and decided from that moment on that Florida would be his permanent home. It was on this latter occasion that there was for the first time the "good faith intention coupled with an actual removal" that must be present for a change of legal residence to be accomplished. In the instant case, there was no such "concurrence of both fact and intention" until December 31, 1990, when Petitioner arrived in Florida from India with the intention of remaining in this state indefinitely. Accordingly, to hold that Petitioner became a legal resident of Florida prior to that date, as Petitioner argues, would be inconsistent with the holding in Bloomfield.

       
       

   21. It is true that Petitioner, like Manly, worked and lived outside of Florida, apart from her Florida-based spouse, because she and her spouse had determined that such an arrangement would be in the best interest of the family unit. Manly, however, had become a legal resident of Florida prior to his post- December, 1952, "absence" from this state and had no intention of abandoning his newly acquired legal residence. Petitioner, on the other hand, did not become a legal resident of Florida until she was permanently reunited with her husband in Florida on December 31, 1990. Accordingly, her "absence" from Florida prior to that time cannot be equated with Manly's post-December, 1952, one-year "absence" from the state and thus the court's determination that Manly continued to be a legal resident of Florida during the period of his "absence" does not aid Petitioner's position in the instant case. Indeed, the application of the principle of law relied upon by the court in making this determination - - the "mere absence with the specific clear-cut bona fide intention of returning will not destroy the residence actually theretofore established" - - supports the position taken by the Board that, notwithstanding Petitioner's two visits to Florida during the period of time she and her husband maintained separate households, she remained a legal resident of Bombay, India inasmuch as she had the "specific clear-cut bona fide intention of returning" to her home in Bombay following each of these visits.

       
       

   22. Because Petitioner has not shown that she was a legal resident of Florida on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990, she is not qualified to be certified as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Medicine enter a final order finding that Petitioner is not qualified to be certified as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes, because she has not shown that she

was a legal resident of Florida on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June, 1992.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992.

1/ During both visits, she was on leave from her government position. 2/ The Indian government provides apartments to medical staff members

regardless of their citizenship or immigration status.

3/ One may establish such a new residence in Florida without being a citizen of this country. 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

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that it suggests that Petitioner and her husband decided, during her 1983 visit, that they would both make Florida their permanent home from that moment on, rather than at some future date, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Rejected because it is more in the nature of a statement of the law than a finding of fact.

7-11. Accepted and incorporated in substance.

The Board's Proposed Findings of Fact

1-4. Accepted and incorporated in substance.

5. First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance.

6-7. Accepted and incorporated in substance.

1. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

2. Accepted and incorporated in substance.

3. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

COPIES FURNISHED:

Julian Gonzalez, Esquire

150 Southeast 12th Street, Suite 401 Fort Lauderdale, Florida 33316

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McCray, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 OF TIME 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: 92-000850

Orders for Case No: 92-000850