Registrant Actions - 2011
[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71370-71371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29720]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 11-3]
Silviu Ziscovici, M.D.; Decision and Order
On December 10, 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 including the ALJ's
recommended decision, I have decided to adopt the ALJ's rulings,
findings of fact, conclusions of law, and recommended Order.
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, BZ4692756, issued to Silviu Ziscovici,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Silviu Ziscovici, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
immediately.\1\
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\1\ For the same reasons that led me to order that Respondent's
registration be immediately suspended, I conclude that the public
interest necessitates that this Order be effective immediately. See
21 CFR 1316.67.
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Dated: November 8, 2011.
Michele M. Leonhart,
Administrator.
Christine M. Menendez, Esq., for the Government
Peter D. Greenspun, 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. This proceeding is an
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551
et seq., to determine whether Respondent's Certificate of Registration
(COR) with the Drug Enforcement Administration (DEA) should be revoked
and any pending applications for renewal or modification of that
registration denied. Without this registration, Respondent Silviu
Ziscovici, M.D. (Respondent), would be unable to lawfully possess,
prescribe, dispense or otherwise handle controlled substances.
I. Procedural Posture
On September 15, 2010, the Deputy Administrator, DEA, issued an
Order to Show Cause and Immediate Suspension (OSC/IS) of DEA COR
BZ4692756, dated September 15, 2010, and served on Respondent on
September 22, 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
BZ4692756 pursuant to 21 U.S.C. 824(a)(4), and deny any pending
applications for renewal or modification, on the grounds that
Respondent's continued registration would be inconsistent with the
public interest under 21 U.S.C. 823(f). On October 18, 2010,
Respondent, through counsel, in a letter dated October 15, 2010, timely
requested a hearing with the DEA Office of Administrative Law Judges
(OALJ).
I issued an Order for Prehearing Statements on October 19, 2010.
The parties filed prehearing statements, and on November 23, 2010, I
issued a Prehearing Ruling.
On December 2, 2010, the Government filed a Motion for Summary
Disposition, with a copy served on Respondent via facsimile on December
2, 2010, and another copy sent via U.S. mail. On December 2, 2010, I
issued an order staying the proceedings until the resolution of the
Government's motion. Pursuant to the November 23, 2010 Order for
Prehearing Statements, Respondent had until "4:00 p.m. EST three
business days after the date of service of [the Government's] motion[ ]
to file a response * * * In the absence of good cause, failure to file
a written response to the moving party's motion will be deemed a waiver
of objection." (Prehearing Ruling at 6.)
As of December 10, 2010, six business days after service of the
Government's motion for summary disposition, Respondent had not filed a
response. Respondent is therefore deemed to waive any objection to the
Government's motion. This waiver of objection does not mean that I will
automatically grant the relief requested by the Government. Instead, I
will carefully consider the merits of the Government's positions,
taking into consideration Respondent's lack of objection, but only
granting whatever relief may be warranted by the law and the facts.
II. The Parties' Contentions
A. The Government
In support of its motion for summary disposition, the Government
asserts that on December 1, 2010, the Maryland State Board of
Physicians \2\ issued an order immediately suspending Respondent's
Maryland medical license, and that Respondent consequently lacks
authority to possess, dispense or otherwise handle controlled
substances in Maryland, the jurisdiction in which he maintains his 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 and any pending application for renewal or modification be
denied. In support of its motion, the Government cites agency precedent
and attaches the "Order for Summary Suspension of License to Practice
Medicine" issued by the Maryland State Board of Physicians, marked for
identification as Exhibit A.
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\2\ The Government refers to the Maryland medical licensing body
as the "Maryland Board of Medicine" (Mot. Summ. Disp. at 1.)
Government Exhibit A, however, suggests the correct name is the
Maryland State Board of Physicians. (Gov't Ex. A at 1.)
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B. Respondent
As noted above, Respondent did not respond to the Government's
Motion for Summary Disposition or seek an extension within the deadline
for response and is therefore deemed to waive objection.
III. Discussion
At issue is whether Respondent may maintain his DEA COR given that
Maryland has suspended his 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 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
[[Page 71371]]
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 Fed. Reg. 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, and Respondent does
not contest, that Respondent's Maryland medical license is presently
suspended. This allegation is confirmed by Government Exhibit A. 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 Maryland. 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 conclude that summary disposition is appropriate. It is
therefore
Ordered that the hearing in this case, scheduled to commence on
February 7, 2011, is hereby canceled.
Recommended Decision
I grant the Government's motion for summary disposition and
recommend that Respondent's DEA COR BZ4692756 be revoked and any
pending applications denied.
Dated: December 10, 2010.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-29720 Filed 11-16-11; 8:45 am]
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