Registrant Actions - 2011
[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48897-48898]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20068]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-70]
Sheryl Lavender, D.O. Decision and Order
On October 28, 2010, Administrative Law Judge (ALJ) Timothy D.
Wing, issued the attached recommended decision. The Respondent did not
file exceptions to the decision.
Having reviewed the record in its entirety \1\ including the ALJ's
recommended decision, I have decided to adopt the ALJ's rulings,
findings of fact, conclusions of law, and recommended Order.
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\1\ I note that the Government also cited 21 U.S.C. 824(a)(3) in
both the Order to Show Cause and its Motion for Summary Judgment as
authority for revoking Respondent's registration. See Order to Show
Cause, at 2; Mot. for Summ. Judg., at 2-3.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 21 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration, BL1667596, issued to Sheryl Lavender,
D.O., be, and it hereby is, revoked. I further order that any pending
application of Sheryl Lavender, D.O., to renew or modify her
registration, be, and it hereby is, denied. This Order is effective
immediately.
Dated: July 27, 2011.
Michele M. Leonhart,
Administrator.
Brian Bayly, Esq., for the Government.
Shawn B. McKamey, Esq., for the Respondent.
Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
Timothy D. Wing, Administrative Law Judge. On July 26, 2010, the
Deputy Administrator, DEA, issued an Order to Show Cause and Immediate
Suspension (OSC/IS) of DEA COR BL1667596, dated July 26, 2010, and
served on Respondent on August 2, 2010. The OCS/IS alleged that
Respondent's continued registration constitutes an imminent danger to
the public health and safety. The OSC/IS also provided notice to
Respondent of an opportunity to show cause as to why the DEA should not
revoke Respondent's DEA COR BL1667596 pursuant to 21 U.S.C. 824(a)(4),
on the grounds that Respondent lacks authority to handle controlled
substances in Florida, the state in which she maintains her DEA
registration, and on the grounds that Respondent's continued
registration would be inconsistent with the public interest under 21
U.S.C. 823(f). On August 31, 2010, Respondent, acting pro se, in a
letter dated August 23, 2010, timely requested a hearing with the DEA
Office of Administrative Law Judges (OALJ).
I issued an Order for Prehearing Statements on September 8, 2010.
On the same date, OALJ sent Respondent a letter informing her of her
right to representation under 21 CFR 1316.50.
On September 10, 2010, the Government filed a Motion for Summary
Judgment. On September 13, 2010, I issued an order directing Respondent
to reply to the Government's motion by September 20, 2010. On September
17, 2010, Respondent, through counsel, filed Respondent's Unopposed
Motion for Extension of Time to Allow Respondent to Answer Motion for
Summary Judgment, seeking an extension of time so that Respondent might
obtain
[[Page 48898]]
permanent counsel.\1\ I granted that motion on September 17, 2010, and
granted Respondent until October 12, 2010, to respond to the
Government's motion.
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\1\ In Respondent's first motion for an extension of time,
counselor Patrick R. McKamey stated that he represents Respondent in
a separate criminal case; that he practices exclusively in criminal
litigation; and that he filed a limited appearance in this case only
so that Respondent might retain permanent counsel for these
administrative proceedings.
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On October 12, 2010, having secured permanent counsel,\2\
Respondent filed a second unopposed motion requesting additional time
to respond. I granted that motion on October 13, 2010, and granted
Respondent until October 15, 2010, to respond to the Government's
Motion for Summary Judgment.
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\2\ Shawn B. McKamey, Esq., filed his notice of appearance on
October 13, 2010.
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On October 15, 2010, Respondent timely filed her response to the
Government's Motion for Summary Judgment.
II. The Parties' Contentions
A. The Government
In support of its motion for summary judgment, the Government
asserts that on May 7, 2010, the State of Florida, Department of
Health, issued an Order of Emergency Suspension of Respondent's
osteopathic medical license, and that Respondent consequently lacks
authority to possess, dispense or otherwise handle controlled
substances in Florida, the jurisdiction in which she maintains her DEA
registration. 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 three
documents: (1) The Emergency Order of Suspension referred to above; (2)
a copy of Respondent's request for a hearing, filed August 31, 2010, in
which Respondent denies that the state suspension "should remain in
full force and effect, thereby prohibiting Sheryl Lavender, D.O., from
practicing medicine, and prescribing medications to patients" (Gov't
Mot. Sum. J. at 2 ](3) (citing Resp't Req. Hg. at 1 ](B)(2))); and (3)
a printout dated September 9, 2010, from a Web site maintained by the
Florida Department of Health indicating that Respondent's suspension
remained in effect as of that date.
B. Respondent
Respondent opposes summary judgment and seeks the opportunity to
"discuss the merits of this matter." (Resp't Opp'n Gov't Mot. Sum. J.
2 ]5.) In sum and in substance, Respondent argues that while "it is
technically true Respondent lacks state authorization to practice
medicine at this time, this shall soon be remedied and having the DEA
registration withdrawn or otherwise revoked would unnecessarily
elongate Dr. Lavender's return to medicine * * *." (Id. at 1 ]2.)
Respondent also seeks to present evidence contesting two assertions:
first, that she failed to comply with federal law in prescribing
controlled substances; and second, that her continued registration
would be a danger to the public. (Id. at 2 ]4.) Finally, Respondent
raises an estoppel and detrimental reliance argument, but concedes
"this particular tribunal is not the appropriate forum in which to
argue [those] grounds." (Id. at ]3.)
III. Discussion
At issue is whether Respondent may maintain her DEA COR given that
Florida has suspended her state license to practice medicine.
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 she is without appropriate authority under
the laws of the state in which she 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 judgment 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); Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d
600, 605 (1st Cir. 1994).
In the instant case, the Government asserts, and Respondent
concedes, that Respondent's Florida medical license is presently
suspended. While Respondent disagrees that the state suspension of her
Florida medical license "should remain in full force and effect,
thereby prohibiting [her] from practicing medicine and prescribing
medication to patients," (Resp't Req. Hg. at 1 ] (B)(2) (emphasis
supplied)), she does not deny that the state suspension presently
removes the state authority upon which her DEA registration is
premised. To the contrary, she admits "it is technically true
Respondent lacks state authorization to practice medicine at this time
* * * ." (Resp't Opp'n Gov't Mot. Sum. J. 1 ]2.)
I therefore find that 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. Because "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," Sheran Arden Yeates, M.D., 71 FR 39,130,
39,131 (DEA 2006), I do not reach Respondent's other contentions. Under
the circumstances discussed above, I conclude that further delay in
ruling on the Government's Motion for Summary Judgment is not
warranted.
Recommended Decision
I grant the Government's motion for summary judgment and recommend
that Respondent's DEA COR BL1667596 be revoked and any pending
applications denied.
Dated: October 28, 2010.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-20068 Filed 8-8-11; 8:45 am]
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