[Federal Register Volume 59, Number 42 (Thursday, March 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4886]


[[Page Unknown]]

[Federal Register: March 3, 1994]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 92-54]

 

Stanley Alan Azen, M.D., Revocation of Registration

    On May 19, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Stanley Alan Azen, M.D. (Respondent), of Los 
Angeles, California. The Order to Show Cause proposed to revoke Dr. 
Azen's DEA Certificate of Registration, AA8786329, under 21 U.S.C. 
824(a)(2) and (a)(4), and deny any pending applications for renewal of 
such registration under 21 U.S.C. 823(f) for reason that his continued 
registration would be inconsistent with the public interest.
    Respondent, through counsel, requested a hearing on the issues 
raised by the Order to Show Cause, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. Following prehearing 
procedures, a hearing was held on Los Angeles, California, beginning on 
January 6, 1993. On October 18, 1993, in her opinion and recommended 
ruling, findings of fact, conclusions of law, and decision, the 
administrative law judge recommended that the Administrator revoke 
Respondent's DEA Certificate of Registration.
    On November 2, 1993, the Respondent filed exceptions to Judge 
Bittner's opinion pursuant to 21 CFR 1316.66, and on November 18, 1993, 
the administrative law judge transmitted the record to the Acting 
Administrator. The Acting Administrator has carefully considered the 
entire record in this matter and, pursuant to 21 CFR 1316.67, hereby 
issues his final order in this matter based upon findings of fact and 
conclusions of law as hereinafter set forth.
    The administrative law judge found that the Respondent is an 
emergency room physician who received his medical degree in 1978 from 
Loma Linda University of Medicine in Loma Linda, California. Following 
an internship at the University of Southern California, and his service 
of two residencies in emergency medicine and internal medicine, 
Respondent worked at the Medical Center of North Hollywood from 1982 
until 1991, and as of the date of the administrative hearing was 
employed at Pacifica Hospital in Los Angeles.
    The administrative law judge found that on September 20, 1990, Los 
Angeles Police Department officers received a report that a woman had 
died at Respondent's home, apparently from a drug overdose. The 
administrative law judge found that when the officers arrived at the 
Respondent's residence, they were advised by the Respondent that the 
deceased was his girl friend, and that earlier in the evening 
Respondent and the deceased had consumed alcohol, smoked marijuana, and 
snorted cocaine.
    One of the officers present at Respondent's house on that evening 
testified at the administrative hearing that the police officers found 
inside Respondent's home two 5- by 7-inch cards with white powder on 
them and four small straws in a trash can, powder on the bedboard, and 
glasses containing what appeared to be alcohol residue. The officer 
further testified that although the items were seized, to his 
knowledge, no tests were conducted on them.
    The administrative law judge found that as a result of reports 
regarding the death of Respondent's girl friend, the Medical Board of 
California (Board) initiated an investigation of the Respondent. One of 
the Board investigators that participated in the investigation also 
testified at the administrative hearing. Interviews were conducted of 
various law enforcement officials, including the pathologist who 
examined the Respondent's deceased girl friend. The pathologist 
estimated that, at the time of the girl friend's death, there was 
approximately 20 times a fatal quantity of cocaine in her system, and, 
in addition, a large quantity of cocaine metabolites. The Board 
investigator also interviewed the Los Angeles County coroner, who found 
a large amount of cocaine in the deceased's personal property. The 
coroner further stated that Respondent told the coroner that Respondent 
and the deceased commonly used cocaine and alcohol on their days off.
    The Board investigator interviewed the sister of the deceased, who 
revealed to the investigator that she used cocaine with Respondent and 
the deceased on numerous occasions. The deceased's sister informed the 
Board investigator of her knowledge that Respondent sold cocaine and 
that she had purchased it from him in the past.
    The Board investigator also interviewed two acquaintances of the 
Respondent, both of whom admitted purchasing cocaine from the 
Respondent on various occasions. One of the individuals stated that for 
a two to three year period, Respondent was his sole source of cocaine, 
that he purchased cocaine in half gram quantities from the Respondent, 
and that the Respondent made no profit from his sales. The individual 
went on to state that Respondent had a very high tolerance for cocaine, 
and carried a small vial of it with him, however he never saw 
Respondent use cocaine while working.
    The Government also presented the testimony of a detective of the 
Narcotics Division of the Los Angeles Police Department regarding his 
conversations with the sister of the deceased. The sister told the 
detective that she purchased cocaine from the Respondent on several 
occasions; that Respondent sold cocaine to employees of the hospital 
where he was employed; and that her sister (the decreased) had access 
to the safe where Respondent kept his cocaine.
    The administrative law judge found that in March 1991, the 
deceased's sister, acting as a confidential informant, attempted a 
controlled purchase of cocaine from the Respondent. Prior to going to 
Respondent's home on March 29, 1991, the detective searched the 
sister's clothing and car, and provided her with $100.00, however, the 
sister was not searched because there were no female officers on duty. 
The detective also conceded at the hearing that the informant's shoes 
were not searched, nor was there a search of the trunk or the engine 
compartment of her car.
    The sister was observed going into Respondent's home where she 
remained for 20 to 30 minutes. After leaving Respondent's home, she met 
the detective at a pre-arranged location and turned over two containers 
of white powder, which later tested positive for cocaine. She told the 
detective that she paid the Respondent $60.00 for the cocaine.
    On April 5, 1991, the Respondent was searched pursuant to a search 
warrant. The search revealed an amber glass vial that contained a white 
powder resembling cocaine. Respondent was then arrested, and allegedly 
stated to the arresting officer, that, ``I'm just a recreational user. 
People don't go to jail for using cocaine.'' Respondent later stated, 
``its not my cocaine. I just store it for someone. He gives me cocaine 
for allowing him to store it in my house.''
    A search was then conducted of Respondent's house which revealed a 
safe which contained, among other things, two one-gram scales commonly 
used to weigh and package cocaine, a clear plastic bag containing a 
substance which was later confirmed to be two ounces of cocaine, as 
well as cocaine residue on various other items. A quantity of cocaine 
was also obtained after scraping screens, grinders, and scales found in 
the safe. In addition, 19 grams of marijuana were seized from the 
bedroom. Respondent was arrested and charged with the transportation 
and possession of cocaine.
    On April 16, 1991, in the Municipal Court of Los Angeles Judicial 
District, a four-count felony complaint was filed against the 
Respondent charging him with the sale and possession of a controlled 
substance. Respondent pled nolo contendere to one felony count of 
simple possession of a controlled substance on November 15, 1991. The 
Superior Court of California, County of Los Angeles convicted 
Respondent and sentenced him to 180 days in county jail, and three 
years probation. A conviction following a plea of nono contendere is a 
``conviction'' within the meaning of 21 U.S.C. 824(a)(2). Sokoloff v. 
Saxbe, 501 F.2d 571 (2nd Cir. 1974).
    The Respondent testified at the administrative hearing that he 
first experimented with marijuana and cocaine in the 1970's and became 
a regular cocaine user during the 1980's. Respondent further testified 
that during the years of his cocaine use, his house served as a 
gathering place for himself, his live-in girlfriend, her sister, as 
well as several of their friends.
    Respondent testified that he never sold cocaine to anyone, and that 
those individuals that stated that Respondent sold them cocaine, all 
had a motivation to lie, and make Respondent appear responsible for his 
girlfriend's death.
    Respondent testified that he briefly participated in the California 
Medical Board's diversion program for impaired physicians, however he 
stated that he was rejected from the program because of pending 
criminal charges against him. Respondent also testified to his 
participation in a drug rehabilitation program at the Betty Ford Clinic 
starting in April 1991, and that during his six months in the program 
he never tested positive for drugs.
    After his conviction and as part of his probation, Respondent was 
enrolled in a drug rehabilitation program and was subjected to random 
urinalysis from November 1991 until December 1992. None of these random 
tests revealed drug use. Respondent's probation officer testified that 
she would recommend discontinuing drug testing for Respondent because 
he had met the criterion of six months of negative drug tests.
    In December 1991, the Board investigator received a letter from a 
medical consultant for the Medical Board, advising that Respondent's 
case should be referred to the Office of the Attorney General for 
administrative action against Respondent's medical license. The 
consultant further stated that he considered Respondent's 
rehabilitative attempts insufficient to overcome his more than 20 year 
addiction to drugs. On April 1, 1992, the Medical Board filed an 
accusation against Respondent, and a supplement thereto was filed on 
May 26, 1992. The accusation alleged that Respondent was subject to 
disciplinary action for using, possessing and distributing cocaine. At 
present, no further action has been taken by the Board.
    At the hearing in this matter, physicians who have supervised 
Respondent testified on Respondent's behalf. They testified to 
Respondent's professionalism and exemplary abilities.
    Pursuant to 21 U.S.C. 824(a)(2), the Administrator may revoke a DEA 
Certificate of Registration if the registrant has been convicted of a 
felony relating to controlled substances. Pursuant to 21 U.S.C. 823(f) 
and 824(a)(4) the Administrator may revoke a registration and deny any 
application for such registration, if he determines that the continued 
registration would be inconsistent with the public interest. Section 
823(f) requires that the following factors be considered:
    ``(1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the distribution, or dispensing of controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.''
    It is well established that these factors are to be considered in 
the disjunctive, i.e., the Administrator may properly rely on any one 
or a combination of the factors and give each factor the weight he 
deems appropriate. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 
54 FR 16422 (1989).
    The administrative law judge found that the Respondent had been 
convicted of a felony offense relating to controlled substances, and 
therefore grounds exist to revoke his DEA Certificate of Registration 
pursuant to 824(a)(2). In considering whether grounds exist to revoke 
Respondent's registration pursuant to 21 U.S.C. 824(a)(4), the 
administrative law judge found factors one, three, four and five listed 
in 823(f) relevant. Factor one is applicable by virtue of the 
California Medical Board's filing of an Accusation and Supplemental 
Accusation against the Respondent. Factor three is applicable to 
Respondent's felony conviction, and factors four and five were found 
relevant based upon Respondent's abuse and alleged unlawful sale of 
controlled substances, as well as the subsequent related criminal 
charges.
    The administrative law judge concluded that the Government did not 
prove by a preponderance of the evidence that the Respondent sold 
cocaine to his girlfriend's sister on March 29, 1991. The 
administrative law judge made this determination based upon the fact 
that neither the deceased's sister nor her car was thoroughly searched 
prior to her entering Respondent's house; that the alleged purchase was 
neither seen nor heard by law enforcement personnel; and that the 
sister of the deceased had a reason to lie.
    The administrative law judge found that the record clearly 
established that Respondent has abused controlled substances for many 
years. The administrative law judge also found that there was 
insufficient evidence to conclude that Respondent has recognized and 
dealt with the severity of his problem, or that he has progressed in 
his recovery to the extent that he should be permitted to continue to 
hold a DEA registration. Based upon evidence of Respondent's felony 
conviction and past drug abuse, the administrative law judge 
recommended that Respondent's DEA Certificate of Registration be 
revoked and any pending applications be denied.
    The Respondent filed exceptions to the administrative law judge's 
recommendation. The Respondent argued in part: That the administrative 
law judge's recommendations were inconsistent with the testimony given 
by Respondent, particularly as it related to the duration of 
Respondent's use of cocaine and marijuana, and the extent of the use of 
cocaine by Respondent's friends and acquaintances while at his home; 
that although the administrative law judge concluded that the 
Government failed to establish that a controlled buy took place, the 
administrative law judge nevertheless made unnecessary references to 
events surrounding its occurrence; that the Respondent has demonstrated 
a lifelong commitment to drug rehabilitation based in part on his 
nearly three year successful participation in a strict and monitored 
regimen of random drug testing administered through the Probation 
Office of Los Angeles County; that based upon the legislative intent of 
the public interest amendment to the Controlled Substances Act, felony 
convictions are not per se violations since Respondent's crime did not 
involve abuse of prescription drugs; statements relied upon by the 
administrative law judge regarding Respondent's insufficient attempts 
at drug rehabilitation in light of his 20 year drug addiction, were 
based on faulty and incomplete evidence.
    The Acting Administrator having considered the entire record adopts 
the administrative law judge's findings of fact, conclusions of law, 
and recommended ruling, in part. The Acting Administrator concurs with 
the Respondent's exception to the administrative law judge's finding of 
fact regarding testimony attributed to the Respondent of his friend's 
and acquaintances' daily partaking of food, drink, and cocaine while at 
Respondent's home. While the record is not clear as to the exact time 
Respondent starting using cocaine, it is clear that he abused drugs for 
a significant period of time. Additionally, the record does not support 
Respondent's allegations regarding the administrative law judge's 
reliance on factors involving the alleged controlled buy. Finally, the 
record does not show that the Respondent has demonstrated a life long 
commitment to drug rehabilitation, nor that the administrative law 
judge, in making her recommendation, unduly relied upon the conclusions 
of the California Medical Board consultant that the Respondent's 
rehabilitative attempts were insufficient to overcome his 20 year 
addiction to drugs.
    Respondent further argued that his felony convictions are not per 
se violations since his crime did not involve improper prescribing of 
controlled substances. DEA Administrators have consistently held that 
controlled substance-related felony convictions need not involve the 
misuse of a DEA registration to justify revocation of the registration 
or denial of an application for registration. See William H. Carranza, 
M.D., Docket No. 84-23, 51 FR 2771 (1986), Paul Stepak, M.D., 51 FR 
17556 (1986).
    Respondent's history of non-compliance with the laws relating to 
controlled substances speaks for itself. The Respondent not only 
admitted to a long history of drug abuse, but he also admitted to using 
cocaine and marijuana with friends, including his use of these 
controlled substances on an occasion when his girlfriend died as a 
result of cocaine use. The totality of the facts leads to the 
conclusion that the continued registration of Dr. Azen would be 
inconsistent with the public interest.
    Accordingly, the Acting Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 28 CFR 0.100(b), hereby orders that DEA Certificate of 
Registration, AA8786329, issued to Stanley Alan Azen, M.D., be and it 
hereby is, revoked, and any pending applications be, and they hereby 
are, denied. This order is effective March 3, 1994.

    Dated: February 25, 1994.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-4886 Filed 3-2-94; 8:45 am]
BILLING CODE 4410-09-M