[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19055]
[[Page Unknown]]
[Federal Register: August 4, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 92-48]
Avner Kauffman, M.D.; Denial of Application for Registration
On April 7, 1992, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Avner Kauffman, M.D., (Respondent), 12620 S.
Harlem Avenue, Palos Heights, Illinois 60463. The Order to Show Cause
sought to deny Respondent's application for a DEA Certificate of
Registration, alleging that Respondent's registration would be
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f).
The Order to Show Cause asserted in part that Respondent's
registration would be inconsistent with the public interest in light of
his 1985 felony conviction for delivery of a controlled substance.
Respondent's previous DEA Certificate of Registration was revoked by
the DEA in September 1985. The Order to Show Cause further alleged that
following the revocation of Respondent's DEA Certificate of
Registration, he continued to prescribe controlled substances in
violation of the Controlled Substances Act.
Respondent, through counsel, requested a hearing on the allegations
raised in the Order to Show Cause and the matter was placed on the
docket of Administrative Law Judge Mary Ellen Bittner. On September 29
and 30, 1992, a hearing was held in Chicago, Illinois. On September 22,
1993, the administrative law judge issued her opinion, recommended
ruling, findings of fact, conclusions of law, and decision. Neither the
Government nor Respondent filed exceptions to the recommended ruling.
On October 22, 1993, the administrative law judge transmitted the
record in this proceeding to the Administrator. Having considered the
record in its entirety, and pursuant to 21 CFR 1316.67, the Deputy
Administrator hereby issues his final order in this matter based upon
the findings of fact and conclusions of law set forth below.
At the hearing, a lieutenant from the Illinois State Police
testified that on January 27, 1984, he purchased 2.2 grams of cocaine
from Respondent during an undercover investigation. The next contact
between the two occurred on January 31, 1984, when the lieutenant spoke
to Respondent on the telephone. During the conversation, Respondent
informed the lieutenant that he would sell the lieutenant half an ounce
of cocaine for $1,100. Respondent and the lieutenant met later that
day, but Respondent was unable to deliver the cocaine as discussed.
Respondent, however, gave the lieutenant six tablets of Seconal, a
Schedule II controlled substance. Respondent did not conduct a physical
examination of the lieutenant and the Seconal was not provided for any
medical purpose. Additionally, Respondent offered to provide the
lieutenant with Quaaludes, then a Schedule II controlled substance.
During their meeting, Respondent also informed the lieutenant that he
had once smuggled a kilogram of cocaine from Florida; had previously
lost about $30,000 worth of cocaine in bad drug deals; and could obtain
another kilogram of cocaine for $50,000 if the lieutenant were
interested.
The lieutenant and Respondent next spoke on February 1, 1984, to
discuss another cocaine purchase. At a meeting later that night at
Respondent's office, the lieutenant bought 14 grams of cocaine from
Respondent for $1,100. During the meeting, Respondent commented on the
quality of the cocaine and promised that it was better than the cocaine
previously sold to the lieutenant. The lieutenant testified that this
was the last time he purchased cocaine from Respondent, although he
attempted additional undercover buys on several occasions.
Respondent was arrested on February 9, 1984. Following his arrest,
Respondent stated that he had purchased cocaine ``10-15'' times and had
smoked cocaine. Respondent was indicted on March 2, 1984, on three
counts of delivery of a controlled substance. Respondent pled guilty to
one count and was sentenced on February 1, 1985, to three years
probation and a $3,000 fine.
As a result of his conviction, on March 23, 1984, the Illinois
Department of Registration and Education summarily suspended
Respondent's controlled substance license. In June 1985, Respondent
entered into a Consent Agreement suspending Respondent's medical
license but staying the suspension, placing him on probation and
suspending his controlled substance license for five years. Respondent
was further ordered to perform 120 hours of volunteer medical service
for each year of probation, to continue psychiatric treatment, and to
file biennial reports certifying compliance with these conditions.
Based on his lack of state authorization to handle controlled
substances, the then-Administrator of the Drug Enforcement
Administration revoked Respondent's previous DEA Certificate of
Registration, effective September 23, 1985.
Respondent's Illinois Physician and Surgeon License expired on July
31, 1987. He continued to practice medicine but did not renew his
license until December 1988. In April 1990, the Illinois Department of
Professional Regulation (IDPR) issued an order finding that Respondent
had practiced medicine without a license, reprimanded him, and imposed
a $1,000 fine. At the hearing in this matter, Respondent admitted that
he had a made a mistake by not renewing his license immediately.
Respondent filed an application for registration with the DEA on
June 8, 1990. At that time, a DEA investigator conducted a pharmacy
survey for the period 1988-1990. The investigator found that five
prescriptions for controlled substances had been called in to local
pharmacies, allegedly by Respondent, after his DEA Certificate of
Registration was revoked. Some prescriptions contained the names and
DEA registration numbers of other doctors and had Respondent's name
crossed out on the prescription. One prescription contained
Respondent's retired DEA registration number and another contained
Respondent's revoked DEA registration number. Respondent testified
during the hearing in this matter that he may have authorized the
prescriptions and explained that he mistakenly thought that he was
permitted to prescribe controlled substances. Respondent added that in
late 1990, after consulting his attorney, he ``completely stopped''
authorizing prescriptions for controlled substances.
An investigator with IDPR testified that in 1991 he began an
investigation of Respondent after receiving a complaint from a local
pharmacist. The pharmacist was concerned about Respondent's use of the
non-controlled substance Stadol. The pharmacist found Respondent's
purchases of Stadol unusual for a pediatrician. Testimony was presented
at the hearing regarding Respondent's alleged misuse of Stadol.
However, as the administrative law judge correctly noted, Stadol is not
a controlled substance. Therefore, these allegations were not granted
great weight by either the administrative law judge or the Deputy
Administrator.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration or deny an
application for registration if he determines that the 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, or conducting
research with respect to controlled substances: (3) the applicant's
conviction record under Federal or State laws relating to the
manufacture, distribution, or dispensing of controlled substances; (4)
compliance with applicable State, Federal or local laws relating to
controlled substances; and, (5) such other conduct which may threaten
the public health and safety.
The Deputy Administrator may rely on any one or any combination of
these factors when determining whether an application should be denied
or a registration revoked. See Neveille H. Williams, D.D.S., 51 FR
17556 (1986); Anne L. Hendricks, M.D. 51 FR 41030 (1986). The
administrative law judge correctly found that all these factors were
relevant to a determination of whether Respondent's registration would
be in the public interest.
The Deputy Administrator finds that the Illinois licensing board,
IDPR, has taken action against Respondent on more than one occasion.
IDPR summarily suspended Respondent's controlled substance license
based on his felony conviction and later reprimanded him for practicing
without a license. The Deputy Administrator also finds that
Respondent's past conduct indicates a cavalier attitude towards the
dispensing and prescribing of controlled substances. Providing the
undercover officer with Seconal for no legitimate medical purpose
reveals a serious lack of judgment, as does Respondent's explanation
for his continued prescribing of controlled substances following the
revocation of his DEA Certificate of Registration. Respondent's felony
conviction for distribution of cocaine again evidences a dangerous
indifference for the law. This conviction, along with Respondent's
failure to abide by DEA regulations, proves that Respondent cannot be
trusted to comply with laws relating to controlled substances.
The Deputy Administrator agrees with the administrative law judge
that, after considering the applicable factors pursuant to 21 U.S.C.
823(f), Respondent's registration would not be in the public interest
and adopts her recommended decision in its entirety. Accordingly, the
Deputy Administrator of the Drug Enforcement Administration, pursuant
to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR
0.100(b) and 0.104 (59 FR 23637), hereby orders that Avner Kauffman's
application for registration be, and it hereby is, denied. This order
is effective August 4, 1994.
Dated: July 28, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-19055 Filed 8-3-94; 8:45 am]
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