FR Doc E8-13609[Federal Register: June 17, 2008 (Volume 73,
Number 117)] [Notices] [Page 34327-34329] From the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn08-89]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Craig H. Bammer, D.O.; Denial of Application
On October 1, 2007, the Deputy Assistant Administrator,
Office of Diversion Control, Drug Enforcement Administration,
issued an Order to Show Cause to Craig H. Bammer, D.O.
(Respondent), of South Gulfport, Florida. The Show Cause Order
proposed the revocation of Respondent's Certificate of
Registration, BB1336456, as a practitioner, and the denial of
any pending applications to renew or modify the registration, on
three grounds. Show Cause Order at 1-2.
More specifically, the Show Cause Order alleged that on both
February 28 and April 27, 2007, the Pinellas County, Florida
Sheriff's Office had arrested Respondent and charged him with
prescribing controlled substances without a legitimate medical
purpose, and that his conduct constituted acts inconsistent with
the public interest. Id. at 1 (citing 21
U.S.C. 824(a)(4)). Next, the Show Cause Order alleged that
on June 21, 2007, the Florida Department of Health revoked
Respondent's state medical license and that Respondent was
therefore without authority to handle controlled substances in
the State in which he held his DEA registration. Id. (citing 21
U.S.C. 824(a)(3)). Finally, the Show Cause Order alleged that in
July 2003, Respondent had materially falsified his renewal
application for a DEA registration by failing to disclose that
in 1999, he had surrendered his DEA registration and Ohio
medical license based on allegations that he was "impaired by
excessive or habitual use of drugs and alcohol.'' Id. at 1-2
(citing 21 U.S.C. 824(a)(1)).
On October 15, 2007, the Show Cause Order, which also
informed Respondent of his right to a hearing, was served on him
at the Pinellas County Jail, where
[[Page 34328]]
he was then residing.\1\ Since that time, neither Respondent,
nor any one purporting to represent him, has requested a
hearing. Because more than thirty days have passed since the
service of the Show Cause Order and no request for a hearing has
been received, I find that Respondent has waived his right to a
hearing on the allegations. 21 CFR 1301.43(d). Accordingly, I
enter this Final Order without a hearing based on relevant
material contained in the investigative file and make the
following findings. Id. Sec. 1301.43(e).
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\1\ A courtesy copy of the Show Cause Order was also sent
to Respondent's counsel.
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Findings
Respondent held DEA Certificate of Registration, BB1336456,
which expired on July 31, 2006. Respondent did not file a
renewal application until August 8, 2006. Because Respondent's
renewal application was untimely, I find that Respondent does
not have a current registration. See 5 U.S.C. 558(c). Respondent
does, however, have an application which remains pending before
the Agency.
On June 9, 1999, Respondent voluntarily surrendered his Ohio
medical license to avoid further formal proceedings based on his
failure to comply with a consent agreement with the Ohio Medical
Board under which he was required to surrender his DEA
registration and could not apply for a new registration absent
the state board's approval. According to the records of the Ohio
board, Respondent had admitted that he "suffered impairment due
to excessive or habitual use of drugs and alcohol.'' See Ohio
Medical Board Formal Actions Against Craig Howard Bammer, at 2.
Respondent eventually did surrender his DEA registration.
On July 24, 2003, Respondent submitted an application to
renew his DEA registration.\2\ While on this application
Respondent acknowledged that he had been subjected to
disciplinary proceedings with respect to both his Ohio and
Florida medical licenses, Respondent answered "no'' to the
question of whether he had "ever surrendered'' his DEA
registration. Moreover, according to the Agency's registration
records, on his August 2006 application, Respondent again
acknowledged the prior actions against his state licenses. The
registration record does not, however, establish how Respondent
answered the liability question related to his DEA registration.
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\2\ By this date, Respondent had already
regained a DEA registration, as a renewal application stated
that "your crrent registration expires on 07-31-2003.''
Renewal Application for Registration (Dtd. July 7, 2003).
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As for the other allegations, the investigative file
establishes that in January 2007, an undercover officer obtained
a prescription for Roxicodone, a schedule II controlled
substance from Respondent without the latter having performed a
physical examination. Moreover, the undercover officer also
obtained a prescription for a third person who was not present.
The investigative file does not, however, indicate what drug the
prescription was for.
The investigative file also indicates that in February 2007,
the undercover officer obtained additional prescriptions for
Roxicodone in exchange for the officer's agreeing to pay
Respondent's electric bill. Shortly thereafter, Respondent was
arrested and charged with several counts of trafficking in
illegal drugs, a felony offense under Florida law. See Fla.
Stat. Ann. 893.135. According to the online records of the
Pinellas County Courts, Respondent awaits trial on these
charges.
Moreover, on May 25, 2007, the Florida Department of Health
issued an emergency order suspending Respondent's medical
license. Thereafter, on June 21, 2007, the Florida Department of
Health revoked Respondent's medical license.
Discussion
Under section 304(a) of the Controlled Substances Act (CSA),
a registration "may be suspended or revoked by the Attorney
General upon a finding that the registrant * * * has materially
falsified any application filed pursuant to or required by this
subchapter.'' 21 U.S.C. 824(a)(1). The Attorney General may also
suspend or revoke a registration "upon a finding that the
registrant * * * has had his State license or registration
suspended, revoked, or denied by competent State authority and
is no longer authorized by State law to engage in the * * *
dispensing of controlled substances.'' Id. Sec. 824(a)(3). Under
agency precedent, the various grounds for revocation or
suspension of an existing registration which Congress enumerated
in section 304(a), 21 U.S.C. 824(a), are also properly
considered in deciding whether to grant or deny a registration
under section 303. See The Lawsons, Inc., 72 FR 74334, 74338
(2007); Kuen H. Chen, 58 FR 65401, 65402 (1993).
In this matter, the Order to Show Cause alleged three
separate grounds for this proceeding. I conclude that it is
unnecessary to address the allegations related to Respondent's
prescribing of controlled substances without a legitimate
medical purpose. Instead, I find that because Respondent
materially falsified his 2003 application for a DEA registration
and lacks authority under state law to prescribe a controlled
substance, he is not entitled to hold a DEA registration.
Accordingly, his application will be denied.
The Material Falsification Allegation
Respondent materially falsified his 2003 application for a
DEA registration when he failed to disclose that he had
previously surrendered his DEA registration. As this Agency has
repeatedly held, " `[t]he provision of truthful information on
applications is absolutely essential to effectuating [the]
statutory purpose' of determining whether the granting of an
application is consistent with the public interest.'' The
Lawsons, 72 FR at 74338 (quoting Peter H. Ahles, 71 FR 50097,
50098 (2006)). See also Hoxie v. DEA, 419 F.3d 477, 483 (6th
Cir. 2005) ("Candor * * * is considered by the DEA to be an
important factor when assessing whether a * * * registration is
consistent with the public interest.'').
A false statement is material if it "has a natural tendency
to influence, or was capable of influencing, the decision of the
decisionmaking body to which it was addressed.'' Kungys v.
United States, 485 U.S. 759, 770 (1988) (int. quotation and
other citations omitted). Moreover, while the evidence must be "clear,
unequivocal, and convincing,'' the "ultimate finding of
materiality turns on an interpretation of the substantive law.''
Id. at 772 (int. quotations and other citation omitted).
This Agency has previously held that "[a]n applicant's
answers to the various liability questions are material because
[it] `relies upon such answers to determine whether an
investigation is needed prior to granting the application.'
''The Lawsons, 72 FR at 74338 (quoting Martha Hernandez, 62 FR
61145, 61146 (1997)). Notably, in determining whether the
granting of an application is in the public interest, the Agency
is required to consider "[t]he applicant's experience in
dispensing * * * controlled substances,'' his "[c]ompliance with
applicable State, Federal or local laws relating to controlled
substances,'' and "other conduct which may threaten public
health and safety.'' 21
U.S.C. 823(f). And in making determinations with respect to
these factors, DEA has repeatedly considered an applicant's or
an existing registrant's history of abusing controlled
substances. See, e.g., Patrick K. Riggs, 72 FR 71959 (2007);
Alan H. Olefsky, 72 FR 42127 (2007); Alan H. Olefsky, 57 FR 928
(1992).
[[Page 34329]]
I thus conclude that Respondent's failure to disclose the
earlier surrender of his DEA registration was a material
misrepresentation because it "ha[d] a natural tendency to
influence the * * * decision'' of the Agency as to whether to
grant his application for a new registration.\3\ Under DEA
precedent, this act "provides an independent and adequate ground
for denying'' Respondent's application. The Lawsons, 72 FR at
74338; Cf. Bobby Watts, 58 FR 46997 (1993).
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\3\ While Respondent indicated on 2003
application that both his Florida and Ohio licenses had been
subjected to discipline, he further stated that the basis of
the discipline was his "abuse of a non-controlled substance (Stadol
nasal spray).'' Stadol nasal spray contains butorphanol
tartrate, and is a schedule IV controlled substance. See 21
CFR 1308.14(f). Respondent's statement was thus an additional
misrepresentation.
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The Lack of State Authority Allegation
As found above, on May 25, 2007, the Florida Department of
Health issued an order which imposed an emergency suspension of
Respondent's state medical license. Shortly thereafter, on June
21, 2007, the Florida Department of Health issued a further
order which revoked Respondent's state medical license.
Under the Controlled Substances Act (CSA), a practitioner
must be currently authorized to handle controlled substances in "the
jurisdiction in which he practices'' in order to maintain a DEA
registration. See 21 U.S.C. 802(21) ("[t]he term `practitioner'
means a physician * * * licensed, registered, or otherwise
permitted, by * * * the jurisdiction in which he practices * * *
to distribute, dispense, [or] administer * * * a controlled
substance in the course of professional practice''). See also
id. Sec. 823(f) ("The Attorney General shall register
practitioners * * * if the applicant is authorized to dispense *
* * controlled substances under the laws of the State in which
he practices.''). As these provisions make plain, possessing
authority to dispense a controlled substance under the laws of
the State in which a physician practices medicine is an
essential condition for holding a DEA registration.
Because Respondent's Florida medical license has been
revoked, he is without authority under state law to handle
controlled substance and does not meet an essential prerequisite
under the CSA for obtaining a new DEA registration. See Richard
Carino, M.D., 72 FR 71955, 71956 (2007) (citing cases); 21 U.S.C.
823(f). Accordingly, his application will be denied for this
reason as well.
Order
Pursuant to the authority vested in me by 21
U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I
hereby order that the application of Craig H. Bammer, D.O., for
the renewal of his registration be, and it hereby is, denied.
This order is effective July 17, 2008.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-13609 Filed 6-16-08; 8:45 am]
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