ALJDEC - Licensing
23A-8463-PAB · Arizona Medical Board · 2023-10-12
In the Matter of
Herold Pierre-Louis, PA
Holder of License No. 8463
For the Performance of Health Care Tasks In the State of Arizona.
No. 23A-8463-PAB
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 16, 2023 with the record held open until September 22, 2023, for the purpose of allowing the court reporter’s transcript to be included in the record, and for the submission of written closing arguments.
APPEARANCES: Assistant Attorney General Elizabeth Campbell represented the Arizona Regulatory Board of Physician Assistants. Michael K. Golderg, Esq. represented Respondent Herold Pierre-Louis, PA.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On February 22, 2023, the Arizona Regulatory Board of Physician Assistants (Board) issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on April 17, 2023, at the Office of Administrative Hearings in Phoenix, Arizona.
The matter was continued and the hearing was conducted on August 16, 2023.
At hearing, the Board presented the testimony of its Licensing Investigation Manager, Marlene Young. Respondent testified on his own behalf.
A physician assistant (PA) may obtain licensure in Arizona under Ariz. Rev. Stat. § 32-2521, by meeting certain qualifications, including graduating from an approved PA program and passing a certifying exam. A PA is not required to be an Arizona resident to obtain licensure under Ariz. Rev. Stat. § 32-2521.
A PA may also obtain licensure in Arizona under Ariz. Rev. Stat. § 32- 4302(A) (hereinafter “universal recognition”). To obtain licensure through universal recognition, a PA must establish residency in Arizona.
On March 29, 2021, Respondent Herold Pierre-Louis submitted an application for licensure to the Board through universal recognition.
Respondent knew that he needed a home address to qualify for licensure under universal recognition.
Respondent has been living in Baldwin, New York for the past 17 years. Respondent, his wife, and children live at 970 Jackson Street in Baldwin, New York. Respondent pays New York taxes.
However, Respondent listed an Arizona address on his March 29, 2021 application for licensure. Respondent listed his “home” address as 8238 W. Devonshire Avenue in Phoenix, Arizona (the “Devonshire Address”), and further indicated that his mailing address was the same as his home address. On the next page of the application, Respondent checked the box attesting that “I have established residence in the state of Arizona.” Respondent then signed the application, attesting that “all of the information contained in this application” was “true and correct.”
Respondent submitted a “Lease Agreement” with the application. The Lease Agreement purported to show that Respondent had leased “a house and (1) parking space(s) located at 8328 W. DEVONSHIRE AVE., PHOENIX, AZ 85037.”
Based on the information and documentation Respondent provided in connection with his application, the Board issued Respondent a license on May 24, 2021.
After Respondent obtained a license, Board staff noticed that multiple individuals, including Respondent, had submitted applications with the same Devonshire address as their “home” address.
Based upon this information, the Board opened a complaint against Respondent.
On November 6, 2021, Respondent updated his home address of record with the Board to 3472 W. 16th Place in Yuma, Arizona (hereinafter “the 16th Place Address”). Respondent began staying at the 16th Place Address at the end of August or the beginning of September 2021. Respondent stayed at the 16th Place Address for three or four months while he was assigned to work in Yuma.
When Respondent’s contract in Yuma ended, Respondent left Arizona to work in Laredo, Texas, so he no longer paid for the 16th Place Address. Respondent worked in Laredo, Texas for three or four months. When Respondent worked in Texas, he lived in Texas. Respondent did not update the Board with a Texas address. After Respondent completed his job in Laredo, Respondent went “back to New York” and worked in New York for approximately eight or nine months. When he was in New York, Respondent lived in his house in Baldwin, New York. Respondent did not update the Board with his Baldwin, New York address. Instead of updating his current residence address with the Board as required by statute, on April 18, 2022, Respondent updated his home address of record with the Board to 3388 13th Street in Yuma, Arizona (hereinafter the “13th Street Address”). Based upon the chronology Respondent testified to at hearing, he was living in Laredo, Texas or Baldwin, New York in April 2022, but not at the 13th Street Address in Yuma.
In January or February 2023, Respondent had a contract for work in Arizona. That contract, which lasted two or three months, required that Respondent work in Tucson and Phoenix. Respondent acknowledged that he was “[n]ot very often” in Yuma during this time. While insisting that he had spent the night at the 13th Street Address. Respondent testified that he would only go to Yuma “[i]f, for any reason, there’s no work and I’m scheduled to work at any of this place, they would send me to Yuma. . . And when I go to Yuma, the company would pay for a hotel.” When the Arizona contract concluded at the end of April or beginning of May 2023, Respondent went “back home” to Baldwin, New York. He then left from New York to start an internship program in Puerto Rico in July 2023. Respondent did not update the Board with a current residence address in either New York or Puerto Rico. The 13th Street Address in Yuma remains Respondent’s home address of record with the Board.
At hearing, Respondent admitted that he was living in Baldwin, New York at the time that he signed the March 29, 2021 application. Respondent acknowledged that, at the time he filled out the March 2021 application, he was not living in Arizona, but was living at home in Baldwin, New York. Respondent further admitted that at no time did he live at the Devonshire Address – he paid for the address so that he could use the address in filling out the March 2021 application. On the March 2021 application, Respondent listed the Devonshire Address as his mailing address as well as his home address, but only the Board sent him mail there because, as he testified, “that’s the only thing I use the address for.” Respondent never had a key for the Devonshire address.
Respondent obtained an Arizona driver license and registered to vote in Arizona, but not until May 1, 2023. Respondent took both of these actions only after the Board filed its Complaint and Notice of Hearing on February 22, 2023, and immediately before leaving Arizona to return to New York at the beginning of May 2023.
Respondent contended in its closing argument, “It is anticipated that Respondent will argue that the “establishes” as used in the statute means that Arizona residency need not be established as a condition for issuing the license, but rather that Arizona residency can be established at any indefinite time after the license is granted. (Any argument by Respondent that the universal recognition statute should be interpreted such that Arizona residency is not a condition for the issuance of a license would also be inconsistent with Respondent’s actions in connection with his license application to obtain (and supposedly pay for) a lease agreement for the Devonshire Address (where he never lived) (State’s Exhibit 2 at PAB-033-038, Respondent’s Exhibit B, TR at 16) as well as his declaration that he had established Arizona residency on the March 2021 application (State’s Exhibit 2 at PAB-016).) Because such an interpretation would not make residency a condition for licensure, it would result in a person, although licensed under Arizona’s universal recognition statute, never establishing residency in Arizona since there would be no time limit. Thus, the Arizona residency requirement would be rendered meaningless. Courts presume that the legislature did not intend to write a statute that contains a void, meaningless, or futile provision. State v. Gates, 243 Ariz. 451, 454 ¶13 (2018). Further, courts will interpret statutes to avoid causing an absurd result. See In re Estate of Zaritsky, 198 Ariz. 599, 603, ¶ 11 (App. 2000). In order to avoid a futile and meaningless statutory interpretation, the only reasonable interpretation is that Arizona residency is required as a condition for the Board to issue the licensure. Although Respondent falsely claimed that he had established residency on this application and submitted deceptive documentation to support his claim, he was not an Arizona resident when the Board issued the PA license.”
Respondent contended in its closing argument, “The phrases “establishes
residence” and “established residency” are not the same and have different legal meanings. Respondent need not have actually established residency (the word residency appears in the Complaint but not the statute); he need only be a person who establishes residence in Arizona. There is no temporal requirement that the residence be established at the time the application for licensure is submitted.”
21. The Board contended in its closing argument, “Arizona courts have considered the issue of residency in a variety of contexts. Arizona courts have generally treated the statutory usage of the term “residence” as carrying the same connotations as the term “domicile.” St. Joseph's Hosp. & Med. Ctr. v. Maricopa Cnty., 142 Ariz. 94, 99 (1984); see also Ariz. Bd. of Regents v. Harper, 108 Ariz. 223, 228 (1972). One’s domicile remains unchanged until a new one is acquired. Harper at 228. “[A]n actual bona fide resident” means a person who is in Arizona to reside permanently, and who, at least for the time being, entertains no idea of having or seeking a permanent home elsewhere. St. Joseph's Hosp. & Med. Ctr. citing Sneed v. Sneed, 14 Ariz. 17, 22 (1912).”
22. The Board contended in its closing argument, “For purposes of determining residency, a person's intent is judged not only by his statements, but also by his conduct and the surrounding circumstances. Kocher v. Dep't of Revenue of State of Ariz., 206 Ariz. 480, 483, ¶ 12 (App.2003). The question of intent is one of fact. Webster v. State Bd. of Regents, 123 Ariz. 363, 367 (App.1979). In finding that the plaintiffs in Kocher were Arizona residents, the court considered factors such as that the plaintiff’s wife had moved to Arizona, plaintiff had bought a home in Arizona and retained no real property in the previous state of residence, and plaintiffs had registered their cars in Arizona and obtained Arizona driver’s licenses. Kocher at 484. In determining residency, courts also consider the state in which state taxes are filed. See Harper at 230.”
23. The Board further contended in its closing argument, “Simply asserting one’s intention to become an Arizona resident and taking token action does not suffice. The Harper court held:
To permit a student to announce his intention of becoming a permanent resident of Arizona on the day of his arrival; to accept his biased and selfserving statement as the whole truth; and to permit him to reinforce his statement by registering his car in this state and securing a driver’s license in this state, would simply place a premium on deception.
Harper at 227-228. Respondent’s token actions of signing a March 2021 lease agreement (State’s Exhibit 2 at PAB-033 to -038) when he was living in New York (TR at 15, 19- 20) and never lived at the “home” address he claimed on his application (the Devonshire Address) (TR at 16) does not suffice to demonstrate that Respondent was an Arizona resident when he submitted the March 2021 application, when the license was issued in May 2021, or even now. Because Respondent has lived in Baldwin, New York with his wife and children for the last seventeen years (TR at 16-17), pays New York taxes (TR at 17), and was only in Arizona for the purpose of completing two approximately three month work contracts during late 2021 and then early 2023 (see
TR at 31-32, 38-39), permitting Respondent to belatedly reinforce his unfounded claim of Arizona residency with a May 2023 Arizona driver’s license and voter registration (Respondent’s Exhibits D and E) for the purpose of retaining his illicitly acquired license, “would simply place a premium on deception” (see Harper supra) and would be inconsistent with the statute’s requirement of Arizona residency as a condition for issuing the licensure (see Ariz. Rev. Stat. § A.R.S. § 32-4302).”
CONCLUSIONS OF LAW
1. The Board is the duly constituted authority for licensing and regulating the practice of physician assistants in the State of Arizona. This matter lies within its jurisdiction.
2. The Board bears the burden of proof to establish cause to discipline Respondent’s physician’s assistant license by a preponderance evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
3. An occupational or professional license shall be issued to a person who establishes residence in Arizona. See Ariz. Rev. Stat. § 32- 4302(A).
4. The tribunal is required to give a statute’s words their ordinary meaning; when a statute is unambiguous, its terms should be applied without resort to secondary principles of construction. Secure Ventures, LLC v. Gerlach, 249 Ariz. 97, 466 P.3d 874 (Ariz. App. 2020).
5. The tribunal may not read into the statute words or requirements that the legislature did not include. See Home Builders Association of Central Arizona v. City of Scottsdale, 187 Ariz. 479, 483, 930 P.2d 993, 997 (1997).
6. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
7. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
8. Ariz. Rev. Stat. § 32- 4302(A) provides:
Notwithstanding any other law, an occupational or professional license or certificate shall be issued, in the discipline applied for and at the same practice level as determined by the regulating entity, pursuant to this title to a person who establishes residence in this state or without an examination to a person who is married to an active duty member of the armed forces of the United States and who is accompanying the member to an official permanent change of station to a military installation located in this state . . .
Emphasis in bold.
9. The Administrative Law Judge concludes that a PA must establish residency as a condition to receiving a license in Arizona under Ariz. Rev. Stat. § 32- 4302(A). The Board has established by a preponderance of the evidence that Respondent had not established Arizona residency at the time that the Board issued a PA license to Respondent.
10. The Board established by a preponderance of the evidence that Respondent has engaged in unprofessional conduct as defined by Ariz. Rev. Stat. § 32-2501(18)(n) (“Procuring or attempting to procure a physician assistance license by fraud, misrepresentation or knowingly taking advantage of the mistake of another).
11. The Board established by a preponderance of the evidence that Respondent failed to inform the Board in writing within 30 days of his current residence, in which is a violation of Ariz. Rev. Stat. § 32-2527(A).
12. The PA Board therefore has established cause to revoke Respondent’s PA license under Ariz. Rev. Stat. § 32-2551(J).
RECOMMENDED ORDER
Based on the foregoing, it is ordered revoking Respondent Herold Pierre-Louis‘s License No. 846 for the Performance of Health Care Tasks in the State of Arizona.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, October 12, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Patricia E. McSorley, Executive Director
Arizona Regulatory Board of Physician Assistants
1740 W. Adams St., Suite 4000
Phoenix, AZ 85007
[email redacted]
Michael Goldberg, Esq.
GOLDBERG LAW GROUP, LLC
[email redacted]
Herold Pierre-Louis, PA
[email redacted]
Elizabeth A. Campbell, Esq.
Office of the Attorney General
[email redacted]
By: OAH Staff