The Issue The issue to be determined is whether the doctrine of equitable tolling should excuse the late filing of a Petition for Administrative Hearing filed with Respondent by Petitioner Florists Mutual Insurance Company.
Findings Of Fact Respondent, the Department, is the state agency charged with resolving disputes over reimbursement for costs of medical services provided to injured workers under workers? compensation law. Petitioner Florists was in a reimbursement dispute with Kendall. The Department issued a Determination that Florists should reimburse Kendall the sum of $100,894.54. Florists received notice of the Reimbursement Dispute Determination on April 8, 2013, via United States Postal Service certified mail. The Reimbursement Dispute Determination included a Notice of Rights advising Florists that a request for an administrative hearing on the Determination had to be received by the Department within 21 days of Florists? receipt of the Determination. It noted in bold print that failure to file a petition within that time period constituted waiver of the right to a hearing. Florists? Initial Petition was sent via certified mail from the Tallahassee office of Petitioner?s counsel located at 1701 Hermitage Boulevard, Suite 103, Tallahassee, Florida, on or about Thursday, April 25, 2013. The filing deadline was the following Monday. The Initial Petition was appropriately addressed to “Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida.” The Initial Petition was received by the Department on Wednesday, May 1, 2013, at 10:11 a.m. The Department determined that the Initial Petition was untimely, as it was received on the twenty-third day after Florists received notice, making it two days late. Petitioner is a workers? compensation insurance carrier whose substantial interests are affected by Respondent?s Reimbursement Dispute Determination that it must reimburse health care provider Kendall $100,894.54. That determination will become final if Petitioner is determined to have waived its right to a hearing. The distance between the Tallahassee office of Petitioner?s counsel and the office of the Department is approximately four miles. From review of the United States Postal Service tracking information, it appears that after the Initial Petition was mailed, it was processed in Louisville, Kentucky, before it returned to Tallahassee, Florida, for delivery, indicating a journey of some 1,050 miles over the course of six days. Late delivery of the Petition by the United States Postal Service did not prevent Florists from asserting its rights.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found Upon the suggestion of a special investigator with the Department of Insurance, a letter dated April 23, 1984, and signed by Northeast Regional Director Thomas P. Poston was written to the respondent at the address listed for him in the Tallahassee licensing office. This letter advised the respondent that the Department of Insurance and Treasurer had received complaints from Orange and Seminole Counties that he was recruiting clients during initial court appearances and that this appeared to be a violation of Section 648.44(b) of the Florida Statutes. The letter admonished respondent to immediately terminate such solicitation and advised him that any additional complaints would bring further action. The evidence does not establish whether respondent received this letter of April 23, 1984. The respondent was involved in another administrative proceeding with the petitioner, the facts of which were not brought into evidence in the instant proceeding. In the former proceeding, Case No. 84-L-3155, a Consent Order was entered which required respondent to pay an administrative fine of $1,000.00 and placed him on probation for a period of one year with the condition that he strictly adhere to the Florida Insurance Code. On or about December 4, 1984, Kenneth Martin was working on the property of Ray Dittmore. Respondent had previously, in July of 1984, written three bailbonds for Mr. Martin, all of which had been forfeited due to Mr. Martin's failure to appear in court. Upon learning of the whereabouts of Mr. Martin, respondent sent his employee, George Burfield, to Mr. Dittmore's property to apprehend Martin and return him to custody. Mr. Dittmore was present when Mr. Burfield arrived to take Martin into custody and felt that Mr. Burfield had misconducted himself during the apprehension process. After the incident, Dittmore telephoned respondent to complain about the conduct of his employee Burfield. Later that same day, Mr. Dittmore went to the Orange County Jail with his attorney, Warren Linsey, for the purpose of posting a cash bond for Kenneth Martin. There were prisoners confined in the Orange County Jail on December 4, 1984. While Mr. Dittmore was at the booking window counting his money, approximately $3,000.00, respondent approached him. Mr. Linsey recalls that respondent immediately introduced himself as a bondsman and offered his services. George Cox, also a bondsman, was present and recalls that when respondent saw Mr. Dittmore counting money at the window, respondent approached him, stated that he was a bail bondsman and informed him that Dittmore did not have to post the cash and could use him (respondent) instead. Mr. Dittmore recalls that after he told the deputy that he wished to bond out Kenneth Martin, respondent approached him at the window and asked him if he was the Dittmore he had spoken to earlier that day. Dittmore then recalls that respondent told him he didn't have to put up $3,000.00 because respondent could sell him a bond. According to Mr. Dittmore, respondent also told him that he wouldn't bond Martin out, that Dittmore was "dumb" for doing so and would end up losing his money. Respondent, who had previously written about $1,800.00 worth of bonds on Kenneth Martin and only received $216.00 as a remission for returning him to custody on December 4, 1984, recalls the incident at the Orange County Jail with Mr. Dittmore as follows. From his nearby position at the booking window, he could overhear and see that a "Dittmore" was there to post a bond for Kenneth Martin. After inquiring of Mr. Dittmore if he was the same Dittmore he had spoken with earlier, respondent introduced himself, apologized for what had happened earlier that day, begged him not to bail Martin out and told him he was foolish for doing so. He does recall later saying to George Cox that there were better ways to invest cash. Because respondent had previously lost money on Kenneth Martin, he had no intention of writing another bond on him on the same date he had been responsible for Martin's return to custody. Joseph Barrow was arrested on May 29, 1985, and was taken to the Seminole County Jail. At the time of his arrest, he had been drinking alcoholic beverages. Although subpoenaed to appear as a witness in this administrative hearing, Joseph Barrow was released and was not called upon to testify by the petitioner. According to sworn testimony taken on January 28, 1986, Joseph Barrow recalls that after he was fingerprinted at the Seminole County Jail on the evening of May 29, 1985, he called home to have his wife contact a bail bondsman to get him out of jail. He does not know if his family did contact a bondsman that night. However, he did speak with a bail bondsman that night at the jail, but could not remember his name. The description of the bondsman given in Joseph Barrow's statement of January 28, 1986, matched the respondent's physical appearance at the hearing. Joseph's wife, Michele Barrow, testified that her husband telephoned her the night he was arrested and asked her to find a bondsman. Neither the time of that telephone conversation nor the family's immediate response to that request were established at the hearing. On May 30, 1985, James Barrow, Joseph's brother; Donna Brino, Joseph's sister; and Michele Barrow, Joseph's wife, were at the Seminole County Jail for the purpose of getting Joseph out of jail. There were prisoners confined at the jail on that date. James recalls that, as he was standing in line to obtain information regarding his brother, respondent was also waiting in line and asked him why he was there. James replied that he was there to get his brother out of jail and asked respondent if he was a bondsman. Respondent stated that he was and asked James who his brother was. After James told respondent that his brother was Joe Barrow, respondent referred to a white piece of paper and replied that he had talked to Joe the previous night and had advised him to wait until the hearing that morning to see if his bond would be reduced. When James learned that he would need $250.00 to get his brother out of jail, he left the jail and went to the bank. When he returned to the jail, respondent approached him and asked him if he had gotten the $250.00. James recalls that when he replied that he had, respondent said "Well, give me the money, and I'll get your brother out of jail." James did not give respondent the money because his sister and sister-in-law who were standing behind respondent, were shaking their head "no." Joseph told James that he had spoken to a bondsman the night before, but could not remember the bondman's name. Michele Barrow recalls that as James was waiting in line at an information window, respondent approached him, asked if he needed a bondsman, and told James that he had spoken to Joseph the night before. At that point in time, Donna Brino, Joseph's sister, was on the telephone trying to contact a bondsman. Donna Brino did not hear the conversation which occurred between James Barrow and the respondent prior to James leaving the jail for the bank. She was aware that Joseph had spoken to a bondsman the night before and that he did not remember who that was. Because of her use of pronouns in lieu of names, Ms. Brino's description of the events which transpired on May 30th at the Seminole County Jail is unclear. She apparently telephoned Action Bail Bonds and left a message. While waiting for the message to be returned, she saw Bruce Moncrief, another bondsman, and spoke with him about writing her brother's bond. She stated that after she had already made arrangements with bondsman Bruce Moncrief, respondent told her she was stupid for using Moncrief and attempted to obtain the money from her brother James. Respondent testified that he was called to the Seminole County Jail by someone in the Barrow family on the evening of May 29, 1985. He went to the jail and spoke with Joseph Barrow. Upon learning that Joseph could not then afford to arrange for the $5,000.00 bail which had been set, respondent advised Joseph to wait until the next day when the amount of bail would be reduced. Respondent states that Joseph told him that his brother would get some money and would be contacting him. Respondent told Joseph that he would be at the jail the next day for the first appearances. Respondent also states that Joseph's brother, James, called him the next morning and he told James that it was better to wait until the first appearance and the reduction of the bond, that he would be at the jail for first appearances and that he would meet him there at that time. Respondent admits that he did approach James at the Seminole County Jail because he looked like his brother, Joseph, and said "I'm the one you're looking for. I talked to you this morning." After Joseph's bond was reduced to $2,500.00, respondent communicated this to James, and James left to go to the bank to get the money. At this point, respondent believed that he was going to write the bond, so he began preparing the papers and waited 30 to 45 minutes for James to return with the money. It was not until James returned from the bank that respondent learned he was not going to write Joseph's bond and that the family had obtained Mr. Moncrief instead.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED that the Amended Administrative Complaint against the respondent be DISMISSED. Respectfully submitted and entered this day of September, 1986. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0462 The proposed findings of fact submitted by the petitioner and the respondent have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 6 and 7. Rejected, not supported by competent, substantial evidence. 8 and 9. Rejected. These ultimate conclusions are not supported by competent, substantial evidence. 11. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected, not supported by competent, substantial evidence. 19 and 20. Rejected as Unsupported by the evidence. Respondent - Respondent's proposals contain unnumbered and mixed factual findings and legal conclusions. Each of the topics included has been addressed in either the Findings of Fact or Conclusions of Law section of this Recommended Order, except: Page 2, first paragraph Rejected as irrelevant and immaterial. Page 4, last full paragraph Rejected, Unsupported and irrelevant in light of factual findings and legal conclusions. COPIES FURNISHED: Richard W. Thornburg, Esquire Bill Gunter Department of Insurance Insurance Commissioner Legal Division and Treasurer 413-B Larson Building Department of Insurance Tallahassee, Florida 32301 413-B Larson Building Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent hereto, Respondent has been licensed in the State of Florida as a limited surety agent (bail bondsman), a life and health agent and a general lines agent. Respondent has been licensed as an insurance agent for more than eleven years. He has been a licensed limited surety agent for more than ten years. Pursuant to Section 648.442(3), Florida Statutes, all collateral received by Respondent or others acting under his supervision or control in transactions under his surety agent license constituted trust funds received in a fiduciary capacity. At all times pertinent to this proceeding, Respondent has been doing business as Protective Insurance Center, Jenkins Bail Bonds. Until early February of 1991, Respondent's general agent was Banker's Insurance Company. However, in early February, Respondent's relationship with that company was terminated. Respondent's current general agent is American Bankers Insurance Company of Florida. Russell Faibish, Respondent's general agent with American Bankers since February of 1991, has expressed via affidavit that Respondent is in good standing with that company and the company has been satisfied with his performance to date. On January 25, 1991, Respondent, while acting in his capacity as a limited surety agent for Banker's Insurance Company, posted a surety bond, No. 339658, (the "Bond") in the amount of $752.00 to obtain the release of Kim Reinhold Whitford from custody in Clay County, Florida. In connection with the posting of the Bond, Respondent received from Earnest R. Justice (the "Indemnitor") a $75.00 premium payment and a $350.00 cash collateral payment. At the time the Indemnitor arranged with Respondent for the issuance of the bond, the Indemnitor was advised that his collateral would be returned within twenty one days of the receipt of written notice of the discharge of the bond. Respondent was provided with a notice from the Clerk of Court that Ms. Whitford was scheduled for a court appearance on April 3, 1991 for a "plea." Respondent never made any inquiry as to the results of that April 3, 1991 hearing. On April 3, 1991, the Bond was discharged and the obligation of the surety, Banker's Insurance Company, was released in writing by the County Court of Clay County, Florida. Respondent contends that he never received notification of the discharge of the Bond. While the Court document indicates that a notice of the discharge of the Bond was sent to Respondent at the time the requirements for the discharge were satisfied on or about April 3, 1991, no conclusive evidence was presented to establish that the notice of discharge was actually sent to or received by Respondent. Respondent denies ever receiving that document. After Ms. Whitford was released from jail, the Indemnitor contacted Respondent's office several times in April and May of 1991 trying to arrange the return of his collateral. Respondent denies receiving any messages from the Indemnitor. The failure to receive the messages may have been due to office staff turnover. In any event, the evidence was sufficient to establish that the Indemnitor attempted to arrange for the return of his collateral on numerous occasions without success. On August 9, 1991, the Petitioner filed the Administrative Complaint which is the basis for this proceeding against Respondent alleging that he failed to return the Indemnitor's collateral. Upon receipt of the Administrative Complaint, Respondent contacted the Clerk of Court, in Clay County, Florida to determine the status of the bond. On August 30, 1991, the Clerk of Court, Clay County, Florida, sent Respondent a certified copy of the bond discharge. Respondent claims that he first became aware of the discharge of the Bond and the Indemnitor's right to the return of the collateral when he received the August 30 certification from Clay County. Because an Administrative Complaint had already been filed, Respondent did not immediately refund the collateral for fear that such action could be construed as an attempt to influence a witness in the case. In order to avoid the appearance of attempting to influence a witness, Respondent waited until the day of the hearing to arrange to make a refund of the collateral available to the Indemnitor. On January 14, 1992, Respondent sent a Western Union Money Transfer, control no. 7395574746, payable to the Indemnitor in the amount of $350.00 as return of the collateral. Although the Indemnitor did not receive the return of his collateral until approximately eight to nine months after it was due, the collateral was ultimately returned and there is no other evidence in this case of any other financial loss to any member of the public. On average, Respondent has between 100 to 150 active bond cases per month. Most of those bonds are written in Palm Beach County, where Respondent's business is located. In this case, Respondent arranged for a "teletype bond" whereby the arrangements for the bond were made in Palm Beach County and notification of the posting of the bond and authorization for the release of the prisoner were transmitted via teletype to Clay County. Respondent contends that he reviews his active cases on a quarterly basis to confirm the status of the bonds. Nevertheless, it took almost six months for Respondent to determine that the requirements of the Bond in this case had been fully satisfied. No justifiable excuse was given for this delay. However, in mitigation, it does appear that the long distance nature of the transaction, the change in Respondent's general agent and office staff turnover all contributed to the delay in refunding the Indemnitor's collateral. Respondent has had three Administrative Complaints filed against him since 1985. The first Administrative Complaint was filed on June 26, 1985 and alleged that Respondent failed to provide required documentation of his assets to the Department. Pursuant to a Consent Order entered on August 6, 1985, Respondent was fined $200 and placed on probation for one year as a result of this charge. The most serious and pertinent prior administrative proceeding against Respondent was commenced by an Administrative Complaint dated November 17, 1987. That complaint alleged, among other things, that Respondent failed to return collateral to at least two clients. In April of 1989, the parties entered into a settlement stipulation regarding these charges pursuant to which Respondent was suspended for one year and fined $1,000.00. He was also required to make resitution to several individuals who had not been identified in the Administrative Complaint in that case. No explanation has been provided regarding the "restitution" required to be made to those individuals. The third case involved an Emergency Suspension Order entered on March 16, 1988. That Order was dissolved on September 20, 1988 when the underlying criminal charges were nolle prosequi. Respondent has had several IRS liens filed against him and there is currently a foreclosure action pending against his house. However, no specific information was provided regarding the status of those cases. Respondent contends that he is vigorously contesting all of those matters and he believes they will be favorably resolved. The evidence in this case suggests that Respondent is currently involved in disputes with some other customers regarding the return of collateral. The evidence did not establish the exact number or the facts surrounding those disputes. Respondent contends that all of those disputes are related to problems with or caused by his prior General Agent. No conclusions as to the merits of those complaints can be drawn from the evidence presented in this case. Gerald Michael Sandy, a licensed bondsman in the State of Florida and the current president of the Florida Surety Agents Association, testified on behalf of the Respondent in this matter. He indicated that on approximately 40% of the bonds that are executed, the Courts do not provide written notice of the discharge. However, Mr. Sandy conceded that even if written notification from a court is not received, the bail bondsman is primarily responsible for determining whether a bond has been discharged and a bail bondsman must immediately respond to the inquiries of an indemnitor regarding the return of collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered suspending Respondent's licenses for three months, placing him on probation for two years and assessing an administrative fine in the amount of $500. RECOMMENDED this 9th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 9th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6302 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 1. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. Findings of Fact 5. 7. Adopted in substance in Findings of Fact 5. 8. Adopted in substance in Findings of Fact 7. Rejected as unnecessary. Adopted in substance in Subordinate to Findings of Fact 13 and 14 and addressed in the Preliminary Statement. Subordinate to Findings of Fact 6 and 10. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 19. Subordinate to Findings of Fact 20. The Respondents's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2. Adopted in substance in Findings of Fact 5. 3. Adopted in substance in Findings of Fact 7. 4. Adopted in substance in Findings of Fact 10. 5. Adopted in substance in Findings of Fact 11. 6. Adopted in substance in Findings of Fact 11. 7. Adopted in substance in Findings of Fact 12. 8. Adopted in substance in Findings of Fact 14. 9. Addressed in the Preliminary Statement. 10a. Adopted in substance in Findings of Fact 10. 10b. Adopted in substance in Findings of Fact 9. 10c. Adopted in substance in Findings of Fact 10. 10d. Adopted in substance in Findings of Fact 10. 10e. Adopted in substance in Findings of Fact 13. 10f. Adopted in substance in Findings of Fact 13. 10e.[sic] Adopted in substance in Findings of Fact 17. 10f.[sic] Adopted in substance in Findings of Fact 16. 10g. Rejected as unnecesdsary. 11a. Adopted in substance in Findings of Fact 21. 11b. Adopted in substance in Findings of Fact 21. 11c. Adopted in substance in Findings of Fact 21. 12. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance and Treasury Larson Building, Room 412 Tallahassee, Florida 32399-0300 Franklin Prince, Esquire Northbridge Centre, Suite 300-P 515 N. Flagler Drive West Palm Beach, Florida 33401 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's application for licensure should be denied based upon his prior disciplinary history by the Florida Bar and failure to provide proof of satisfaction of resulting cost judgments against him, as indicated in the Notice of Denial issued by Respondent on February 12, 2016.
Findings Of Fact DFS is the state agency responsible for licensing and regulation of insurance in Florida pursuant to chapter 626, Florida Statutes. On September 4, 2015, Petitioner, Jeffrey A. Norkin, applied for licensure as a life, including health and variable annuity, insurance agent. On February 12, 2016, DFS issued a Notice of Denial with respect to Petitioner's application based upon Petitioner's disciplinary history with the Florida Bar ("Bar") and his failure to pay amounts assessed in his suspension and disbarment proceedings. Petitioner's Background Petitioner graduated from the University of Miami Law School in 1992 and was admitted to the Florida Bar in 1993. Prior to attending law school, Petitioner worked for several months as a life insurance agent and for a commodities broker. Until his suspension from the practice of law on October 31, 2013, Petitioner maintained a successful general litigation practice in Broward County, Florida, handling commercial disputes and civil rights matters, including the representation of victims in police brutality cases. Petitioner's Disciplinary History as an Attorney Petitioner's 2003 Reprimand On April 20, 1999, in the case of Greenberg v. Hunter, U.S. District Court, Northern District of Florida, Case No. 4:99cv45 WS, Judge William Stafford issued a Contempt Order against Petitioner for, among other things, falsely accusing opposing counsel of improperly interrupting a deposition to coach his client. Judge Stafford noted: I have observed . . . [Petitioner] is constantly accusatory in tone and by choice of words. He has been consistently disrespectful to the court, to the lawyers, to the parties, to the witnesses. He has accused counsel of spoliation of the evidence, of illegal conduct, of unprofessional behavior, of lying. He has demeaned the justice system, law enforcement, and his own profession, and my profession. He has refused to accept the court's rulings. He has constantly argued about rulings once I've made them. . . . He has called not just one attorney incompetent, but almost every attorney that has appeared here either as a witness or as counsel of record, and even his own client's prior counsel . . . . He has berated the court. . . . The Fla. Bar v. Norkin, 132 So. 3d 77, 88 (Fla. 2013). Judge Stafford banned Petitioner from practicing in the Northern District for a year. As a result, the U.S. District Court for the Southern District of Florida instituted a disciplinary action pursuant to the Rules Governing Attorney Discipline, Local Rules for the Southern District of Florida, Rule V(B). The matter was ultimately referred to the Bar for prosecution and on September 24, 2003, the Florida Supreme Court in SC02-854,2/ in its capacity as the Bar Disciplinary Board, disciplined Petitioner for "disrespectful, accusatory, argumentative, and rude behavior," by issuing a public reprimand, entering judgment for the recovery of costs against Petitioner in the amount of $930.00, and instructed him to attend 30 hours of continuing legal education. The Fla. Bar v. Norkin, 132 So. 3rd at 87 (citing The Fla. Bar v. Norkin, 858 So. 2d 332 (Fla. 2003)(unpublished table decision). Petitioner's 2013 Suspension Petitioner represented David Beem in a commercial litigation dispute, Gary Ferguson, individually, and derivatively on behalf of Floors to Doors, Inc. v. David Beem and Floors to Doors, Inc., Circuit Court Case Number: 07-34790 CA 20, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami- Dade County ("Ferguson v. Beem"), which began in 2007. The litigation was very contentious and opposing counsel representing Ferguson, Gary Brooks, initiated a grievance against Petitioner, which resulted in the Bar complaint filed against Petitioner in July 2011. On October 31, 2013, in The Florida Bar v. Norkin, supra, the Florida Supreme Court, again in its capacity as the Bar Disciplinary Board, suspended Petitioner's license to practice law for 24 months, issued him a public reprimand, placed him on probation for 18 months upon reinstatement of his license, assessed costs against him in the amount of $7,970.53, and assessed administrative fees against him in the amount of $1,250.00 for engaging in unprofessional conduct in the Ferguson v. Beem litigation. Petitioner was cited for violating the Rules Regulating the Florida Bar 4-3.5(c), 4-8.2(a), 4-8.4(a), and 4-8.4(d),3/ for disrupting several court hearings by yelling at judges and exhibiting disrespectful conduct, falsely accusing a senior judge of criminal conduct to berate him into withdrawing his request for a fee, and engaging in "relentless unethical and unprofessional" efforts to denigrate and humiliate opposing counsel. The court adopted the referee's findings of fact and recommendations as to guilt, because they were supported by competent, substantial evidence, including witness testimony, exhibits, and transcripts from the Ferguson v. Beem litigation. However, the court disapproved the referee's recommended sanction of a 90-day suspension and, instead, imposed a two-year suspension. The Court held: Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel. This Court has been discussing professionalism and civility for years. We do not tolerate unprofessional and discourteous behavior. We do not take any pleasure in sanctioning Norkin, but if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard. Norkin has conducted himself in a manner that is the antithesis of what this Court expects from attorneys. By his unprofessional behavior, he has denigrated lawyers in the eyes of the public. Norkin's violations of the Bar rules and unprofessional behavior merit a two-year suspension and a public reprimand. We direct Norkin to appear personally before this Court to receive the public reprimand. His unprofessional conduct is an embarrassment to all members of The Florida Bar. Id. at 93. Petitioner's conduct was considered so outrageous that the court, in footnote 5 stated, "Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior." Id. Petitioner's 2015 Disbarment The Court's opinion required Petitioner to fully comply with Rule Regulating the Florida Bar 3-5.1(h), which requires a suspended attorney to give notice of the suspension to all clients, opposing counsel or co-counsel, and all courts, tribunals, or adjudicative agencies before which the attorney is counsel of record by furnishing them with a copy of the suspension order. The rule also requires the suspended attorney, within 30 days of service of the order, to furnish Bar counsel with a sworn affidavit listing the names and addresses of all persons and entities to which notice was given. On December 31, 2013, the Bar filed a petition for contempt and order to show cause against Petitioner in case number SC13-2480 alleging that despite several notifications of his noncompliance, he had failed to submit the required affidavit to Bar counsel. On January 13, 2014, the Bar filed an amended petition also alleging that Petitioner had engaged in the practice of law after the effective date of the suspension. Petitioner admits ghostwriting numerous pleadings for Mr. Beem after his suspension, both in the Ferguson v. Beem litigation and in In Re: Gary Ferguson, Debtor, United States Bankruptcy Court Case Number 12-22368, in and for the Southern District of Florida ("Ferguson bankruptcy"). In the meantime, the Bar filed, in case number SC11- 1356, a motion for sanctions against Petitioner. The motion alleged that after having been suspended and publicly reprimanded by the Court, Petitioner sent Bar counsel three offensive and threatening e-mails evidencing "complete disregard for the contents of the Court's opinion, as well as the reprimand administered by Justice Polston." The motion also pointed out that Petitioner, through his countenance and physical conduct while the public reprimand was being administered in case number SC11-1356, showed his contempt for the court. The motion urged the court to disbar Petitioner. This motion was referred to the referee in case number SC13-2480 for a hearing and recommendation. On September 3, 2014, the referee filed a report and recommendation on the Bar's petition for contempt and the motion for sanctions. The referee found that based upon Petitioner's own response to the motion for summary judgment and testimony at the hearing, there were no genuine issues of material fact with respect to the allegations concerning Petitioner's failure to comply with Rule Regulating the Florida Bar 3-5.1(h). Similarly, based on Petitioner's response and his own testimony at the hearing, the referee found that there was no genuine issue of fact concerning whether he engaged in the practice of law after the effective date of his suspension. The referee also found that with regard to the Bar's motion for sanctions, Petitioner knowingly or through callous indifference disparaged, threatened, and humiliated Bar counsel, in violation of Rule Regulating the Florida Bar 4-8.4(d). Based on these findings, the referee recommended that Petitioner be found in contempt of the court's suspension order in SC11-1356, and that he be disbarred. The Florida Supreme Court unanimously approved the recommendation, permanently disbarred Petitioner from the practice of law, and entered a judgment against Petitioner for costs in the amount of $3,034.19. See The Fla. Bar v. Norkin, 183 So. 3rd 1018 (Fla. 2015). In support of its decision, the court reasoned: Moreover, given Norkin's continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct. Indeed, his filings in the instant case continue to demonstrate his disregard for this Court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this Court, the Court's processes, and the profession of attorneys as a whole. Such misconduct cannot and will not be tolerated as it sullies the dignity of judicial proceedings and debases the constitutional republic we serve. We conclude that Norkin is not amenable to rehabilitation, and as argued by the Bar, is deserving of permanent disbarment. Id. at 1023. The Application On September 4, 2015, Petitioner began his application for licensure as a resident life, including variable annuity and health, insurance agent. On November 5, 2015, DFS sent Petitioner a deficiency letter asking for, among other things, proof that he "paid all outstanding monies due the Florida Bar for recovery of costs ($7,970.53) and administrative fees ($1,250.00), with reference to . . . Florida Supreme Court Case 11-1356." On November 17, 2015, DFS received a letter from Petitioner indicating that he had not paid the costs or fees assessed against him in the 2013 Action. Petitioner stated "[m]ost of them are nothing more than fabricated costs, invented, and unsupported in any way by the Florida Bar as a revenue producer and as an additional means of harassing me." This submission completed his application. Petitioner admits that to date, the assessments from the suspension and disbarment have not been paid, and he has no intention of paying them. On February 12, 2016, DFS informed Petitioner of its intent to deny his application based on the Bar proceedings against him. DFS did not interview anyone, including Petitioner, prior to denying the application. Matt Tamplin, DFS Bureau Chief of Licensing, made the decision to deny Petitioner's application for lack of fitness based on Petitioner's suspension, disbarment, and failure to pay the costs or fees the Bar assessed against him. The position for which Petitioner seeks licensure is one of public trust. Tamplin's rational for the application denial was that "Florida is a very diverse and vulnerable population" and that Petitioner's disciplinary history resulted in "very serious concerns about Mr. Norkin's failure to follow rules under a regulatory authority." Petitioner's Position Petitioner does not dispute his disciplinary record or the fact that the fees assessed are not paid. However, he takes no responsibility for his actions, which resulted in his suspension and disbarment. He claims that every negative allegation against him "has been a total lie." For example, although Petitioner admits that he yelled about Judge Stafford and his rulings in a crowded public restaurant on a lunch break during trial, he speculates that he was disciplined by the federal court for the Northern District of Florida and the Bar in 2003, because he and his client were Jewish, he was "too handsome," "too young," "too loud," or "from New York." Regarding the 2013 suspension, Petitioner contends that he did nothing wrong, he apologized to the judges when he raised his voice, and that his actions towards his opposing counsel were justified because the litigation was "destroying" his client's life. Petitioner asserts he was not fully advised of the charges against him and that he was not under an obligation to disseminate the Florida Supreme Court's order of suspension to all of his opposing counsel and judges before whom he had cases pending because "the decision did not require me to send them the outrageous, false, and defamatory decision." Petitioner fully admits ghostwriting pleadings for Mr. Beem in both the Ferguson v. Beem civil litigation and Ferguson bankruptcy proceedings after his suspension. Petitioner, who was not a party to either litigation, contends this was not the unlicensed practice of law, because he was working to protect his "vested interest" in attorney's fees earned and "to protect my client from having the court be used as a weapon to steal money from him." Petitioner argues he was "the only lawyer in the world" who would help Mr. Beem and that he was not practicing law because he was not collecting fees from Mr. Beem. Petitioner also admits "staring down" each Florida Supreme Court Justice during his public reprimand, but justifies it as his attempt to humanize himself in their eyes. He also believes it was constitutionally protected non-verbal speech and that he did not receive due process because the justices did not ask him to stop staring or recuse themselves. Petitioner explains his threatening communication to Bar counsel: And I wrote an email to my bar counsel who destroyed my life telling her that she did something, I can't remember what it was, and telling her that she was the most despicable lawyer and that's the–-and that I'm going to file a lawsuit against her and to keep an eye out for it. To date, Petitioner has not paid the assessments of the Bar and has no intention of doing so. He claims an inability to pay because of his disbarment and alleges that the imposition of the costs "along with all the other punishment was unconstitutional, and completely unjustified." Petitioner argues there is no correlation between his disciplinary history as a lawyer and his ability to sell life insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DFS enter a final order denying Petitioner’s application for licensure as a life, including variable annuity and health, insurance agent in Florida. DONE AND ENTERED this 30th day of August, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2016.
