The Issue Whether the Respondent, a licensed physician, should be subject to discipline under section 458.331(1)(x), Florida Statutes (2016),1/ for violating the Final Order entered by the Board of Medicine in case DOH-15-0017-FOF-MQA by failing to pay the administrative fine and costs, as required; and, if so, the appropriate discipline.
Findings Of Fact On January 8, 2015, the Florida Board of Medicine rendered Final Order DOH-15-0017-FOF-MQA. The Final Order resolved charges against the Respondent, a licensed physician who holds license ME 59800, in the administrative complaints in DOH cases 2009-13497, 2011-06111, and 2011-17799. The Final Order suspended Respondent's license for six months and required her to: pay a $10,000 administrative fine and $74,323.56 of costs within a year from reinstatement of her license; and document completion of a medical records course sponsored by the Florida Medical Association and five hours of continuing medical education in the area of ethics within a year from the filing of the Final Order. The Final Order also placed the Respondent on probation for two years, subject to specific supervision and board appearance requirements, and included the following tolling provision: In the event the Respondent leaves the State of Florida for a period of 30 days or more or otherwise does not or may not engage in the practice of medicine in the state of Florida, then certain provisions of the requirements in the Final Order shall be tolled and shall remain in a tolled status until Respondent returns to the active practice of medicine in the state of Florida. * * * Unless otherwise set forth in the Final Order, the following requirements and only the following requirements shall be tolled until the respondent returns to active practice: The time period of probation shall be tolled. The provisions regarding supervision whether direct or indirect by the monitor/supervisor, and required reports from the monitor/supervisor shall be tolled. It is clear from the language of the tolling provision that it did not apply to: the requirement to pay an administrative fine and costs within a year of license reinstatement; or the requirement to document completion of the medical records course and five hours of continuing medical education in ethics within a year of license reinstatement. After entry of the Final Order, the Respondent left Florida and moved to New York. Initially, she practiced medicine in New York, using her New York license, and earned income doing so. However, New York initiated license disciplinary proceedings based on the Florida Final Order, and she was unable to continue to practice medicine in New York. She also had health issues that inhibited her practice of medicine. By the terms of the Final Order, the Respondent's medical license was reinstated on July 8, 2015, and the fine and costs were due to be paid on July 7, 2016. The fine and costs were not paid by the due date. Towanda Burnett, medical compliance officer employed by the Petitioner, contacted the Respondent in July and August 2017 concerning her apparent failure to comply with the terms of the Final Order. As to the obligation to take approved courses of education, the Respondent took the position that she had taken the required courses, or had tried to take them, but was prevented from doing so by the Petitioner. However, she did not document her completion of the required courses, which resulted in one of the charges in the Administrative Complaint filed on November 6, 2017. Eventually, during preparation for the hearing in this case, the Petitioner determined that the Respondent was in compliance with that obligation, and that charge was dropped. As to the fine and costs, the Respondent took the position that her obligation to pay was stayed because she filed for bankruptcy. Information regarding the Respondent’s bankruptcy proceedings was reviewed by attorneys in the Petitioner’s Prosecution Services Unit, who determined that the Respondent’s obligation to pay was not stayed. The Respondent disagreed and declined to make any payments. One of the Respondent’s defenses relies on her direct appeals from the Final Order in the Florida courts. However, at no time did any of the appellate courts stay the Final Order. Ultimately, the direct appeals were denied. The Respondent also argues that the Final Order is “void,” “invalid,” or “moot” for “non-compliance of the mandate” issued by the Second District Court of Appeal after her appeals were denied. This argument is confusing and unpersuasive. At times, the Respondent seems to be arguing that the tolling provision applied to the fine and costs and that the “mandate of the Final Order” was violated by the Petitioner by its attempt to enforce the fine and costs assessment in the Final Order before the Respondent resumed the practice of medicine in Florida. This argument has no merit because the tolling provision clearly only applies to her probation--i.e., her two- year probation runs from the time she resumes the practice of medicine in the state of Florida. At other times, the Respondent seems to be saying her two-year probation was not tolled, but rather began when she resumed the practice of medicine in New York for a period of time, and was already over, placing the Petitioner in violation of the “mandate of the Final Order” by taking the position that the Respondent was still on probation. This argument also has no merit. It is possible that the Respondent’s argument relates to her testimony that an employee of the Petitioner prevented her from taking a continuing education course required by the Final Order. However, the charge of failure to document the required course has been resolved and dropped. In any event, whatever happened with regard to the Respondent’s attempts to take the course did not “void” or “moot” the Final Order. The Respondent also attempted to attack the Final Order in litigation she filed as case 1:16-cv-03038-VSB in federal district court in New York on April 25, 2016. The Respondent’s complaint named the Florida Board of Medicine and the Florida Department of Health as defendants, along with the New York Department of Health. The Florida agencies contested the court’s jurisdiction over them, and an amended complaint filed on September 22, 2016, dropped the Florida Department of Health and Florida Board of Medicine as parties. On February 14, 2017, the Respondent sought a stay and injunctive relief against the remaining defendant in that case, but the New York court denied the request on September 30, 2017. On October 16, 2017, the Respondent appealed this ruling to the United States Court of Appeals, Second Circuit, in case 17-3358, listing the Florida Department of Health and the Florida Board of Medicine as appellees. (At the hearing in this case, the Respondent expressed that she was surprised to learn that the Florida agencies had been dropped from this litigation and that she intended to further amend to add them back.) The Respondent has repeatedly requested extensions of time, and the matter was still in court at the time of the hearing in this case. Neither federal court ever stayed the Final Order. This federal litigation is not an impediment to enforcement of the Final Order by the Petitioner. The Respondent also defends against the charges in this case based on various bankruptcy filings she has made. In 2015, the Respondent filed for chapter 13 bankruptcy in the United States Bankruptcy Court, Middle District of Florida, Tampa Division, in case number 8:15-bk-00594-CPM. She listed the Department of Health as a creditor. On June 3, 2015, the case was dismissed on motion of the trustee, and any funds held by the trustee were ordered to be returned to the debtor. On August 15, 2016, the Respondent filed for bankruptcy under chapter 13 in United States Bankruptcy Court for the Southern District of New York (Manhattan Division) in case 16- 12356-cgm. The Respondent again listed the Department of Health as a creditor, and the Respondent believed the bankruptcy automatically stayed her obligations to pay the fine and costs under the Final Order, as she told the Petitioner’s compliance officer, Ms. Burnett, when she contacted the Respondent in the summer of 2017. The Petitioner points to filings the Respondent made in in case 16-12356-cgm as evidence of the Respondent’s supposed knowledge that no automatic stay was in effect. Specifically, on September 13, 2017, the Respondent filed an Emergency Motion for Stay Pending Appeal, or in the alternative for temporary Administrative stay, which was denied by the bankruptcy court on September 19, 2017. However, the docket entries introduced into evidence in this case are difficult to decipher, and it is not clear that they refer to a stay of the collection of the fine and costs imposed by the Final Order. On November 22, 2017, the New York bankruptcy court dismissed the Respondent’s case 16-12356-cgm. On November 27, 2017, the Respondent appealed the dismissal to the United States District Court for the Southern District of New York. The appeal was assigned case number 1:17-cv-09429-JGK. On December 1, 2017, the Respondent filed in case 16-12356-cgm for a stay pending appeal, which was denied by the bankruptcy court on December 21, 2017. On February 6, 2018, the Respondent moved in district court for a stay pending appeal, or in the alternative, for a temporary administrative stay. On March 21, 2018, the district court affirmed the dismissal of the bankruptcy case, and denied the motion for a stay pending appeal as moot. On March 30, 2018, the Respondent sought review of the district court’s affirmance in the federal Second Circuit Court of Appeals. The case number of the circuit court appeal is 18- 890. On March 30, 2018, the Respondent filed in case 18-890 for an emergency injunction and stay; the filing was defective, for unspecified reasons, according to a court docket entry. On April 6, 2018, the Respondent filed in case 18-890 for a stay pursuant to 11 United States Code section 362(c)(4)(c); this filing also was defective, for unspecified reasons, according to the docket. In December 2017, after the New York bankruptcy court dismissed case 16-12356-cgm, the Respondent filed a second bankruptcy case in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division. That filing was designated case 8:17-bk-10140. On January 11, 2018, the Florida bankruptcy court dismissed case 8:17-bk-10140 with prejudice; labeled the Respondent an “abusive serial bankruptcy filer”; “enjoined, barred, and prohibited [the Respondent] from commencing any bankruptcy petition” for a period of two years; and caused notice to be given that state courts should not halt debt collection proceedings based on any bankruptcy petition the Respondent attempted to file in violation of the court’s injunction against her. On January 31, 2018, the Florida bankruptcy court denied the Respondent’s motion for reconsideration. The Respondent’s bankruptcy filings are not a complete defense against the Petitioner’s charges. The Respondent was in violation of the Final Order for failure to pay the fine and costs as of July 7, 2016. No bankruptcy stay was in effect at that time. However, the Petitioner’s collection of those debts was stayed from August 8, 2016, through November 22, 2017. See 11 U.S.C. § 362(a) (2016). The Petitioner’s compliance office has a procedure for a payment plan when fines and costs cannot be paid at once. In order to obtain a payment plan, the licensee must propose a payment plan, with specific amounts and due dates, and submit documentation, including: two denial letters from any financial or loan institutions; a copy of the 1040 tax return; copies of bank statements; and any other relevant financial information. Once that information is received, it is sent to the chairperson of the Probation Committee of the Board of Medicine, who either approves or denies the payment plan. The Respondent did not submit the required information, pay anything towards the fine and costs, or express her intention to pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: finding that the Respondent violated section 458.331(1)(x), Florida Statutes (2016), by failing to pay the administrative fine and costs imposed, as required by Final Order DOH-15-0017-FOF-MQA; issuing a reprimand against the Respondent’s Florida medical license; imposing an administrative fine of $1,000 (in addition to the administrative fine imposed by Final Order DOH-15-0017- FOF-MQA); and suspending the Respondent’s Florida medical license until such time as she pays all outstanding administrative fines and costs in full, or until the chairperson of the Board’s Probation Committee approves a payment plan. DONE AND ENTERED this 19th day of June, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of June, 2018.
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.
