[Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20178]


[[Page Unknown]]

[Federal Register: August 17, 1994]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration

 

Anthony L. Cappelli, M.D.; Revocation of Registration

    On April 25, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Anthony L. Cappelli, M.D. (Respondent), of Los 
Angeles, California, proposing to revoke Respondent's DEA Certificate 
of Registration, BC2901230, as a practitioner. The Order to Show Cause 
alleged that Respondent's registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 823(f). Specifically, 
the Order to Show Cause alleged that between January 1992 and February 
1993, Respondent allowed an unauthorized person to order controlled 
substances by permitting this person to use Respondent's DEA number; 
this person also used Respondent's DEA number to issue unauthorized 
prescriptions during this time period in question; this person used the 
controlled substances obtained in this manner to perform unlawful 
abortions, one of which resulted in the death of one of the patients; 
and Respondent dispensed controlled substances at an unregistered 
location during the time period in question.
    The Order to Show Cause was sent to Respondent by registered mail. 
More than thirty days have passed since the Order to Show Cause was 
received by Respondent and the DEA has received no response thereto. 
Pursuant to 21 CFR 1301.54(d) and 1301.54(e), Respondent is deemed to 
have waived his opportunity for a hearing. Accordingly, the Deputy 
Administrator now enters his final order in this matter without a 
hearing and based upon the investigative file. 21 CFR 1301.57.
    In January of 1993, the Santa Ana Police Department discovered the 
body of a female in an alley, at or near a medical clinic, the Clinica 
Femenina (clinic). Subsequent investigation revealed that the death of 
the female was caused by a failed abortion attempt performed at the 
clinic by the owner who was not authorized to practice medicine (and 
thus not licensed to perform abortions) in the State of California. An 
autopsy revealed that diazepam, a Schedule IV controlled substance, was 
in the deceased's system.
    A search warrant was served on the clinic by the Santa Ana Police 
Department on January 21, 1993. The search revealed that the owner had 
ordered over 8,000 dosage units of controlled substances using 
Respondent's DEA number. The search also revealed that the owner issued 
prescriptions for various controlled substances using Respondent's DEA 
number. The clinic was not Respondent's DEA registered location and, in 
fact, did not have a DEA registration. The owner was subsequently 
arrested by the Santa Ana police and charged with manslaughter and the 
matter is pending trial at this time.
    Shortly after the search warrant was served, Respondent was 
interviewed by the Santa Ana police and an investigator of the 
California Medical Board. Respondent admitted to them that he allowed 
the clinic to use his DEA registration number to order controlled 
substances to obtain drugs used in conjunction with abortions. 
Respondent explained that he was hired to perform abortions on an as 
needed basis and was paid $80 for each abortion. He performed an 
abortion about once a week or every other week. He was aware that the 
owner was not a licensed physician. He was not aware that the owner had 
issued controlled substance prescriptions using his DEA number. 
Respondent also noted that there were occasions that the owner called 
him to perform an abortion on short notice but that Respondent was 
unable to make the appointment. When Respondent inquired of the owner 
how the operation had been performed, she simply explained that the 
patient ``had been taken care of''. Respondent also explained that the 
owner had witnessed him perform abortions on numerous occasions and 
that she could probably perform the operation, barring any unforeseen 
complications.
    In evaluating whether Respondent's registration by the Drug 
Enforcement Administration would be inconsistent with the public 
interest, the Deputy Administrator considers the factors enumerated in 
21 U.S.C. 823(f). They are as follows:
    (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.
    (5) Such other conduct which may threaten the public health and 
safety.
    In determining whether a registration would be inconsistent with 
the public interest, the Deputy Administrator is not required to make 
findings with respect to each of the factors listed above. Instead, he 
has the discretion to give each factor the weight he deems appropriate, 
depending upon the facts and circumstances of each case. See David E. 
Trawick, D.D.S., Docket No. 88-69, 53 FR 5326 (1988).
    In this proceeding factors, two, four and five apply. Respondent 
allowed an unauthorized person to use his DEA number to order 
controlled substances for dispensing and administering controlled 
substances at an unregistered location. Respondent allowed the clinic's 
owner to acquire and dispense controlled substances through the use of 
Respondent's DEA registration number. Under the circumstances, 
Respondent knew or should have known that the clinic's owner would use 
his DEA number, not only for ordering, dispensing and issuing 
prescriptions for controlled substances, but also for administering 
during unauthorized abortions.
    By allowing an unregistered and unauthorized person to use his DEA 
number, Respondent was responsible for any use and misuse of that 
number. Moreover, such a violation is aggravated by the fact that 
Respondent allowed a non-practitioner to use his DEA number at an 
unregistered location.
    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 DEA Certificate of Registration, BC2901230, previously issued to 
Anthony L. Cappelli, M.D., be, and it hereby is, revoked, and any 
pending applications for the renewal of such registration, be, and they 
are, denied. This order is effective September 16, 1994.

    Dated: August 11, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-20178 Filed 8-16-94; 8:45 am]
BILLING CODE 4410-09-M