Registrant Actions - 2011
[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Notices]
[Pages 16821-16823]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7016]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 11-2]
Gregory F. Saric, M.D.; Decision and Order
On November 2, 2010, Administrative Law Judge (ALJ) Timothy D. Wing
issued the attached recommended decision. Thereafter, Respondent filed
exceptions to the decision.
Having reviewed the record in its entirety including the ALJ's
recommended decision, I have decided to adopt the ALJ's rulings,
findings of fact, conclusions of law, and recommended Order.
In his Exceptions, Respondent argues that "the ALJ's Recommended
Decision fails to take into account certain exceptions where a
suspension or stay of revocation has been granted in circumstances
similar to that of Respondent's." Exceptions at 1 (citing Stuart A.
Bergman, M.D., 70 FR 33193 (2005)). Respondent notes that "[i]n
Bergman[,], the ALJ delayed issuing her ruling on the Government's
Motion for Summary Disposition for over two months to allow for a
pending state board hearing." Id. Respondent states that "he is
currently receiving treatment in [an] approved rehabilitation program
and will likely complete his treatment next month," that "[h]e is in
full compliance with the Florida Department of Health and the Florida
Professionals Resource Network and will appear before the Florida Board
of Medicine to have his license reinstated in early 2011." Id. at 1-2.
Respondent contends that a stay of this Final Order "will allow
him time to complete his rehabilitation and have the state suspension
of his medical license lifted" and that "such a stay * * * is within
the Deputy Assistant Administrator's authority and would not disserve
the public interest." Id. Respondent thus requests that the issuance
of this Final Order be stayed for ninety (90) days \1\ in order to
allow him "time to have the temporary suspension of his Florida
medical license lifted." Id.
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\1\ While Respondent requested that the Deputy Assistant
Administrator stay the issuance of the Final Order, given that the
Deputy Assistant Administrator has no authority to issue the
Agency's Final Order, I address the request as if it was directed to
this Office.
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However, more than ninety days have already passed since Respondent
filed his Exceptions, and yet Respondent has submitted no evidence to
this Office establishing that the Florida Board of Medicine has re-
instated his medical license. Nor has Respondent even submitted
evidence as to when he is scheduled to appear before the Florida Board.
Moreover, in circumstances similar to those raised by Respondent,
DEA has repeatedly denied requests to stay the issuance of a final
order of revocation, noting that "[u]nder the Controlled Substances
Act, 'a practitioner must be currently authorized to handle controlled
substances in "the jurisdiction in which [he] practices" in order to
maintain [his] DEA registration.' " Newcare Home Health Servs., 72 FR
42126 (2007) (quoting Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007)
(quoting 21 U.S.C. 802(21))). See also 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 * * * dispense * * * a controlled substance in the course of
professional practice"); 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."); Bourne Pharmacy, 72 FR at 18274 (revoking
registration; "Under the CSA, it does not matter whether the
suspension is for a fixed term or for a duration which has yet to be
determined because it is continuing pending the outcome of a state
proceeding. Rather, what matters--as DEA has repeatedly held--is
whether Respondent is without authority under [state] law to dispense a
controlled substance.").
Thus, Respondent's reliance on Bergman is misplaced.\2\ As I
further explained in Newcare, "[i]t is not DEA's policy to stay
proceedings under section 304 while registrants litigate in other
forums." 72 FR at 42127 (citing Bourne Pharmacy, 72 FR at 18273;
Oakland Medical Pharmacy, 71 FR 50100 (2006); Kennard Kobrin, M.D., 70
FR 33199 (2005)). This is so, because in addition to the CSA's
requirement that a practitioner hold state authority in order to be
registered, whether Respondent's state license will be re-instated is
entirely speculative. Nor is there any evidence in the record as to
when such action may occur.
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\2\ While in Bergman, the ALJ stayed the proceeding until after
the registrant's state board hearing, the decision of the Agency,
which revoked his registration, did not endorse this practice.
Moreover, the decision expressly noted that "[d]enial or revocation
is also appropriate when a state license has been suspended, but
with the possibility of future reinstatement." 70 FR at 33193
(collecting cases).
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Therefore, I adopt the ALJ's recommendation that Respondent's
registration be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration, BS5109889, issued to Gregory F. Saric,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Gregory F. Saric, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
April 25, 2011.
Dated: March 10, 2011.
Michele M. Leonhart,
Administrator.
Larry P. Cote, Esq., for the Government.
George F. Indest, III, Esq., for Respondent.
Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
Administrative Law Judge Timothy D. Wing. On September 9, 2010, the
Deputy Assistant Administrator, DEA, issued an Order to Show Cause
(OSC) of
[[Page 16822]]
DEA COR BS5109889, dated September 9, 2010, and served on Respondent on
September 15, 2010. The OSC provided notice to Respondent of an
opportunity to show cause as to why the DEA should not revoke
Respondent's DEA COR BS5109889 pursuant to 21 U.S.C. 824(a)(3), on the
grounds that Respondent lacks authority to handle controlled substances
in Florida, the state in which he maintains his DEA registration. On
October 8, 2010, Respondent, through counsel, in a letter dated October
5, 2010, timely requested a hearing with the DEA Office of
Administrative Law Judges (OALJ).
I issued an Order for Prehearing Statements on October 13, 2010. On
October 18, 2010, the Government filed a Motion for Summary
Disposition. On October 18, 2010, I issued an order staying the
proceedings pending the resolution of the Government's motion and
directing Respondent to reply to the Government's motion, if at all, by
October 25, 2010. On October 21, 2010, Respondent, through counsel,
filed a Motion for Enlargement of Time and Motion to Require the
Government to Serve Pleadings Via Facsimile. I granted that motion on
October 21, 2010, and granted Respondent until November 1, 2010, to
respond to the Government's motion.
On October 29, 2010, Respondent timely filed his response to the
Government's Motion for Summary Disposition.
II. The Parties' Contentions
A. The Government
In support of its motion for summary disposition, the Government
asserts that on August 24, 2010, the State of Florida Board of Medicine
(Board) issued a final order indefinitely suspending Respondent's
Florida Medical license, and that Respondent consequently lacks
authority to possess, dispense or otherwise handle controlled
substances in Florida, the jurisdiction in which he maintains his DEA
registration. The Government notes that in Respondent's request for a
hearing, Respondent admits that he is currently without a Florida
medical license. (Gov't Mot. Sum. Disp. at 1 (citing Resp't Hg. Req.
dated October 5, 2010, at 2.)) The Government contends that such state
authority is a necessary condition for maintaining a DEA COR and
therefore asks that I summarily recommend to the Deputy Administrator
that Respondent's COR be revoked. In support of its motion, the
Government attaches the Board's final order referred to above, marked
for identification as Exhibit A.
B. Respondent
Respondent opposes summary disposition, in sum and in substance
"because he is in the process of cooperating completely with the
Florida Board of Medicine, Department of Health, to have its temporary
suspension of his license lifted and we expect this to happen in the
near future." (Resp't Hg. Req. at 2; see also Resp't Opp'n Sum. Disp.
at 2 ]] 4-5.) Respondent states that the revocation of his DEA COR
"would cause him tremendous hardship upon his return to the active
practice of medicine" (Resp't Opp'n Sum. Disp. at 2 ] 6) and seeks to
proceed with the pending administrative proceedings.
In the alternative, Respondent argues that 21 U.S.C. 824(a)(3)
allows the suspension of a DEA registration as an alternate remedy to
revocation, and that "suspension is a far more appropriate remedy
given the facts of this matter and the temporary nature of the
suspension of the Respondent's medical license." (Resp't Opp'n Sum.
Disp. at 1 ]]2-3.) Respondent therefore argues that if summary
disposition is proper, then I should not recommend revocation but
instead "order the immediate suspension of Respondent's DEA
registration until such time as his Florida medical license has been
reinstated." (Id. at 2 ]8.)
III. Discussion
At issue is whether Respondent may maintain his DEA COR given that
Florida has suspended his state license to practice medicine, even
though the suspension may be temporary.
Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority
to engage in the practice of medicine and to handle controlled
substances is grounds to revoke a practitioner's registration.
Accordingly, this agency has consistently held that a person may not
hold a DEA registration if he is without appropriate authority under
the laws of the state in which he does business. See Scott Sandarg,
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A.
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919
(DEA 1988).
Summary disposition in a DEA suspension case is warranted even if
the period of suspension of a respondent's state medical license is
temporary, or even if there is the potential for reinstatement of state
authority because "revocation is also appropriate when a state license
had been suspended, but with the possibility of future reinstatement."
Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez,
M.D., 70 FR 33,206 (DEA 2005).
It is well-settled that when no question of fact is involved, or
when the material facts are agreed upon, a plenary, adversarial
administrative proceeding is not required, under the rationale that
Congress does not intend administrative agencies to perform meaningless
tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael
G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D.,
48 FR 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297
(6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35
F.3d 600, 605 (1st Cir. 1994).
In the instant case, the Government asserts that Respondent's
Florida medical license is presently suspended. (See Gov't Mot. Sum.
Disp. at 1.) This allegation is confirmed by Government Exhibit A, as
well as Respondent's own admission: In predicting that the suspension
of his Florida medical license will soon be lifted, Respondent by
necessity concedes the fact of its suspension. (Resp't Hg. Req. dated
October 5, 2010, at 2; Resp't Opp'n Sum. Disp. at 2 ]4.) I therefore
find there is no genuine dispute as to any material fact, and that
substantial evidence shows that Respondent is presently without state
authority to handle controlled substances in Florida. Consequently, I
conclude that summary disposition is appropriate.
Respondent's assertion that losing his DEA COR would cause him
hardship does not alter this conclusion. Respondent cites no authority,
and a review of agency precedent reveals none, for the contention that
potential hardship to a registrant may prevent revocation of a DEA COR
pursuant to 21 U.S.C. 824(a)(3) where the registrant lacks state
authority to handle controlled substances.
In the alternative, Respondent argues that even if revocation is
warranted, Section 824(a)(3) permits me to recommend suspension instead
of revocation. The crux of Respondent's argument turns on the
disjunctive language of Sec. 824(a)(3), which provides that a
registration "may be suspended or revoked * * *" where a registrant
lacks state authority to handle controlled substances. Id. (emphasis
supplied). Respondent cites no authority in support of his reading of
Sec. 824(a)(3).
Respondent's interpretation of Sec. 824(a)(3) ignores the weight
of settled, contrary agency precedent that has consistently imposed
revocation and not suspension on similar facts. See Stuart
[[Page 16823]]
A. Bergman, M.D., 70 FR 33,193 (DEA 2005) (denying respondent's request
for temporary suspension and granting motion for summary disposition
where respondent lacked state authority); see also Roy Chi Lung, 74 FR
20,346, 20,346 (DEA 2009) ("Respondent * * * lack[s] authority to
handle controlled substances in California * * * Respondent is
therefore not entitled to maintain his DEA registration.") (emphasis
supplied); Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006)
("DEA does not have statutory authority under the Controlled
Substances Act to maintain a registration if the registrant is without
state authority to handle controlled substances in the state in which
he practices."). See generally 21 CFR 1301.01(17) (2010) (defining
"individual practitioner" as a person, other than a pharmacist,
pharmacy or institutional practitioner, possessing state authority to
dispense a controlled substance in the course of a professional
practice). Under the circumstances discussed above, I conclude that
further delay in ruling on the Government's Motion for Summary
Disposition is not warranted.
Recommended Decision
I grant the Government's motion for summary disposition and
recommend that Respondent's DEA COR BS5109889 be revoked and any
pending applications denied.
Dated: November 2, 2010
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-7016 Filed 3-24-11; 8:45 am]
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