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Original WP 5.1 Version
(NOTE: This decision was approved by the court for publication.)
This case can also be found at 299 N.J. Super. 607.
SUPERIOR COURT OF NEW JERSEY
I/M/O SUSPENSION OR REVOCATION
Submitted: March 25, l997 Decided: April 14, 1997
Before Judges Dreier and Newman.
On appeal from the Department of Law and
Katz, Ettin, Levine, Kurzweil & Weber,
Peter Verniero, Attorney General, attorney for
The opinion of the court was delivered by
Petitioner, Dr. Morton Markoff, entered into a consent order
with the Board of Medical Examiners (Board) on March l9, l993 and
On March l3, l996, approximately three years to the date that he
surrendered his license "with prejudice to seeking any future
reinstatement thereof," Dr. Markoff filed a petition for leave
for reinstatement of his license to practice medicine. The Board
considered petitioner's application and denied it in an order
entered on May 29, l996. The order is comprehensive, and we
incorporate it in its entirety.
revocation of Dr. Markoff's license as a result of his criminal conviction, and that the only alternative presented was a surrender with prejudice. The application indicates that "a surrender without prejudice was not an option." The request goes on to state that if Dr. Markoff had not settled the matter, a protracted proceeding would have resulted which was not considered in his best interest or that of the State at the time. In a later submission, Dr. Markoff argued that it was unclear from the Consent Order whether the parties intended that Dr. Markoff would never be given an opportunity to petition for relicensing. He also asserted that had he not cooperated with the State, and proceeded to hearing, he would have had the right to appeal if a revocation was imposed. Additionally he averred that if his license had been revoked, he could now apply for reinstatement. Dr. Markoff also requested an opportunity for a brief oral presentation.See footnote 1 The Board considered this matter on the papers at its meetings of April l0th, and May 8th, l996. The Board has determined to deny Dr. Markoff's application for leave to petition for reinstatement as it is clear that a surrender "with prejudice to seeking any future reinstatement" on its face means that respondent will not be permitted to apply for a license in the future. It is difficult to imagine language which would have made it clearer to Dr. Markoff that he would not be able to re-enter practice. It is not credible that Dr. Markoff, a sophisticated physician represented by competent legal counsel would not have understood the phrase utilized meant that he could never apply for a license again. Indeed in his counsel's letter of March l3, l996, it is acknowledged that Dr. Markoff was not given the opportunity of surrendering his license "without prejudice." Yet he attempts at this time to convert his voluntarily agreed to surrender to just that - a surrender without prejudice. In brief, the Board agrees with the position of the Attorney General in this matter as set forth in DAG Warhaftig's letter of March 28, l996. More specifically, the Board agrees that Dr. Markoff, having availed himself of the opportunity to hold himself out
as one who had "surrendered" his professional license
(as opposed to one whose license had been revoked),
while avoiding the expense and embarrassment of a
hearing, and potential prosecution on additional
charges, should not be heard now to claim that there
was no benefit to him of having surrendered his license
with prejudice rather than contesting the allegations
at a hearing. Additionally, contrary to the claim of
Dr. Markoff's counsel, a matter involving a criminal
conviction does not involve protracted proceedings or
difficult legal proofs, rather, a criminal conviction
case is ordinarily proven by the submission to the
Board of a certified copy of a Judgment of Conviction,
and may be proven on the papers with limited legal
As further pointed out by DAG Warhaftig, the
phrase "with prejudice" ordinarily indicates finality
of an action. One of the benefits to the State of
accepting such a surrender rather than proceeding to
hearing and seeking a revocation of license, is the
permanent conclusion of a matter without the necessity
of considering any further applications. Indeed, this
is not a case of first impression as claimed by
respondent, rather, the Board has consistently utilized
the phrase to preclude any resumption of licensure
privileges. The case law supports the notion that the
indicated language "should operate as a bar ..."
Mayflower Industries vs. Thor Corp., l5 N.J. Super.
l39, l6l (Ch. Div. l95l).
Although we have determined to deny Dr. Markoff's
application for leave to petition, we have reviewed the
entirety of the written petition he submitted, in which
he recounts his experience regarding the criminal
conviction, his incarceration, and subsequent
rehabilitation and re-entry into the community.
Despite the fact that Dr. Markoff has submitted
evidence of contrition, community service, and
cooperation, we find nothing to demonstrate a "showing
of exceptional circumstances" to persuade us that the
voluntarily entered order of surrender with prejudice
should be re-opened.
On appeal, petitioner argues that the surrender of his license "with prejudice" does not bar him permanently from obtaining relicensure. Further, petitioner contends that the Board's decision denying his application is contrary to
legislative policy which gives all applicants the right to seek
By entering into the consent order, Dr. Markoff purported to give
up rights that he might have been entitled to under N.J.S.A.
consistent with the plain language that was used in that order,
but is inconsistent with the statute.
the Board found none. Our review of the record satisfies us that
the administrative sanction, in the light of all the
circumstances, was not disproportionate to the offenses committed
as to shock one's sense of fairness. In re Polk,
90 N.J. 550,
578 (l982). On the contrary, we would have been shocked had the
Board granted petitioner any relief.
Footnote: 1 The Board ordinarily considers applications for leave to petition for reinstatement on the papers, and finds no reason to depart from that practice in this matter, which we note was accompanied by extensive opportunity to submit written briefs and documentation.
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