[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22781]


[[Page Unknown]]

[Federal Register: September 15, 1994]


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DEPARTMENT OF JUSTICE
[Docket No. 93-58]

 

John Stanford Noell, M.D.; Denial of Application

    On May 21, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to John Stanford Noell, M.D. 
(Respondent), of Charlotte, North Carolina, proposing to deny his 
application for a DEA Certificate of Registration, as a practitioner, 
under 21 U.S.C. 823(f). 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 in June 1962, Respondent surrendered 
his Federal Narcotics Drug License for five years based upon his 
prescribing of narcotic drugs to persons without a legitimate medical 
purpose and not within the usual course of his professional practice; 
in 1975, Respondent prescribed various Schedule II through IV 
controlled substances to DEA undercover operatives for no legitimate 
reason and outside the usual course of his professional practice; on 
January 21, 1976, Respondent was convicted in the United States 
District Court for the Eastern District of Louisiana, of 16 Felony 
counts of illegal distribution of controlled substances, in violation 
of 21 U.S.C. 841(a)(1); Respondent's prior DEA Certificate of 
Registration, AN3396389, was revoked effective April 29, 1977; between 
December 1985 and January 1987, Respondent issued 26 controlled 
substance prescriptions as an employee of the Alcohol Rehabilitation 
Center which were issued outside the scope of his exemption as an 
employee of such facility; Respondent's application for a DEA 
Certificate of Registration, dated May 14, 1986, was denied effective 
May 25, 1988; in October 1989, Respondent manufactured or allowed 
another to manufacture marijuana, a Schedule I controlled substance, 
maintained a dwelling for selling marijuana and possessed drug 
paraphernalia; and Respondent's application for a DEA Certificate of 
Registration, dated November 3, 1988, was denied effective March 21, 
1991.
    Respondent, through counsel, timely filed a request for a hearing 
on the issues raised in the Order to Show Cause and the matter was 
docketed before Administrative Law Judge Paul A. Tenney. Following 
prehearing procedures, a hearing was held, beginning on December 1, 
1993.
    On March 17, 1994, Judge Tenney issued his findings of fact, 
conclusions of law and recommended ruling, recommending that 
Respondent's application for a DEA Certificate of Registration be 
granted without restrictions. The Government filed exceptions to the 
administrative law judge's findings of fact, conclusions of law and 
recommended ruling. Respondent did not file a response to the 
Government's exceptions.
    On April 22, 1994, Judge Tenney transmitted the record of the 
proceedings to the Deputy Administrator. The Deputy Administrator has 
considered the record in its entirety and adopts, in part, the findings 
of fact and conclusions of law of the administrative law judge, and 
rejects the recommended ruling of the administrative law judge. 
Pursuant to 21 CFR 1316.67, the Deputy Administrator hereby issues his 
final order in this matter based upon his findings of fact and 
conclusions of law set forth below.
    The Deputy Administrator finds that, in June 1962, Respondent 
surrendered his Federal Drug License for a period of five years based 
upon his prescribing of narcotic drugs to persons without a legitimate 
medical purpose and not within the usual course of his professional 
practice. On August 1, 1968, the Louisiana State Board of Medical 
Examiners suspended Respondent's medical license for one year. In 
February 1971, the Federal Bureau of Narcotics and Dangerous Drugs 
conducted an accountability audit of Respondent's stock of dangerous 
drugs and found significant, unexplained shortages of many of these 
substances. As a result, Respondent's drugs were forfeited.
    During 1975, Respondent prescribed a number of controlled 
substances to two undercover DEA agents for no legitimate medical 
purpose and outside the usual course of Respondent's professional 
practice. Based upon these facts, in the United States District Court 
for the Eastern District of Louisiana, Respondent pled nolo contendere 
to and was convicted of 16 felony courts of violating 21 U.S.C. 
841(a)(1).
    Thereafter, DEA sought to revoke Respondent's DEA registration, 
based upon the facts set forth above. After an evidentiary hearing, 
Respondent's prior DEA Certificate of Registration, AN3396389, was 
revoked effective April 29, 1977. The revocation was affirmed. Noell v. 
Bensinger, 586 F.2d 554 (5th Cir. 1978).
    On July 25, 1978, the Louisiana Board of Medical Examiners revoked 
Respondent's medical license. Respondent applied for another DEA 
registration in the State of North Carolina and in March 1987, DEA 
sought to deny such application. The Government not only relied upon 
Respondent's past transgressions, it also alleged that Respondent 
issued 26 controlled substance prescriptions outside the scope of his 
exemption while working as a physician for the Alcoholic Rehabilitation 
Center (ARC) in Black Mountain, North Carolina.
    Although Respondent had no DEA registration while he worked at ARC 
between December 1985 and December 1986, he was allowed to write 
controlled substance orders for ARC patients which could be dispensed 
only by the pharmacy located at the ARC complex. It was discovered, 
however, that Respondent issued 26 prescriptions for individuals who 
were not patients and such prescriptions were dispensed by vaious 
pharmacies other than the pharmacy located at the ARC complex. Most of 
these prescriptions were written for former patients of ARC but some of 
these prescriptions were issued to two indviduals who had no 
affiliation with ARC whatsoever. Although Respondent testified at the 
1987 hearing and at the present hearing that he had no knowledge that 
issuing these prescriptions was unlawful, he admitted during cross-
examination that he issued a number of the prescriptions after he was 
explicitly told by ARC personnel to stop issuing such prescriptions. 
Respondent also testified at the present hearing that he did not recall 
that a pharmacy existed at the ARC complex although the evidence 
clearly points to a contrary conclusion. As a result of these 
proceedings, Respondent's application for a DEA registration was denied 
effective May 25, 1988.
    Respondent field another application for a DEA registration on 
November 3, 1988 and DEA again initiated proceedings to deny the 
application. A few weeks before the hearing regarding this application, 
Respondent was indicted in the State of North Carolina on one count of 
manufacturing a controlled substance, one count of maintaining a 
dwelling for selling a controlled substance and one count of possession 
of drug paraphernalia. The then-Administrator issued an order denying 
this application effective March 21, 1991; however, it was not based 
upon the events giving rise to the North Carolina indictment.
    In the present proceedings, the Government introducted into 
evidence a trial transcript based upon the North Carolina indictment. A 
jury acquitted Respondent of all three charges. Nevertheless, the 
Deputy Administrator finds that Respondent was in constructive 
possession of marijuana based upon the following facts as revealed in 
the trial transcript.
    On October 23, 1989, two state law enforcement investigators went 
to Respondent's residence. Although the venetian blinds on the front 
door were closed, the investigators could still see a bright light 
shining through the blinds. No one was home at that time, so the 
investigators returned the next day. A young man who lived with 
Respondent answered the door and gave the investigators permission to 
search the residence. On the upper level of the residence were 
Respondent's bedroom and make-shift room that contained a pool table 
with marijuana plants growing on it. A grow light was shining on the 
plants. Located in this area was other paraphernalia, such as an 
exhaust fan, bedding rocks and plastic trays. The plastic trays 
contained lava or bedding rocks and were located just outside of a 
bathroom that was shared between the make-shift room and Respondent's 
bedroom.
    The windows near the pool table had been painted black although 
blinds covered these windows. Also located in the upstairs portion of 
the house was a ``roach'' and a book on indoor horticulture located in 
plain view in the living room. The marijuana plants growing in the 
residence were at least a month old at the time of the search. In a 
small study/storage area between Respondent's bedroom and the common 
bathroom was a desk. Behind the desk were pots with marijuana growing 
in them, several of which had grown to the ceiling.
    Respondent had treated the individual who lived with him for 
substance abuse sometime in the mid 1980's. This individual began 
living with Respondent in 1986. This individual's room was where the 
pool table was located.
    Although Respondent testified in the current proceedings that he 
had never been in the individual's room, when he was interviewed by a 
state investigator, he admitted that he had been in the room on a prior 
occasion. Although Respondent maintained at the hearing that he had no 
idea that the individual was cultivating marijuana and that this 
explanation was corroborated by the individual, who claimed that he hid 
all the plants and paraphernalia from Respondent, in light of all of 
the other circumstances, such an explanation is not credible.
    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 an applicant's 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, the Deputy Administrator 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).
    The Deputy Administrator concurs with the opinion and recommended 
ruling of the administrative law judge to the extent that the first 
through fourth factors apply but based upon Respondent's lack of candor 
and inconsistent explanations disagrees with the administrative law 
judge's finding that factor five was not established. The Deputy 
Administrator also disagrees with the administrative law judge's 
conclusion that Respondent has established sufficient mitigating 
factors to justify granting the present application.
    Although the Government highlighted Respondent's lack of candor and 
inconsistent defenses,the administrative law judge attributed this 
behavior to Respondent's past alcohol problem and his fading memory. 
During the hearing pertaining to the illegal prescribing of controlled 
substances to DEA undercover agents in 1975, Respondent maintained that 
these prescriptions were issued for legitimate medical reasons. At the 
present hearing, however, Respondent testified that he issued the 
prescriptions because he was under the influence of alcohol.
    During the present hearing, regarding Respondent's issuing of 
controlled substance prescriptions outside the scope of his exemption 
while employed at ARC, Respondent testified that he stopped this 
practice after he was explicitly told to stop. It was only during 
cross-examination that Respondent admitted that he wrote several other 
prescriptions after he was instructed to not issue any more. This 
testimony was in essence a repeat of what occurred at the 1987 hearing; 
Respondent initially testified that he stopped issuing controlled 
substance prescriptions when confronted by ARC personnel, but when 
pressed during cross-examination, he admitted he issued several 
prescriptions after such warning. Since the violations occurred as late 
as December of 1986, it is unlikely that the 1987 testimony was due to 
a fading memory. Moreover, Respondent's argument that his capacity was 
diminished due to his use of alcohol was not at all applicable to the 
1986 violations that occurred at ARC or to the constructive possession 
of marijuana in 1989, since Respondent stopped using alcohol in the 
late 1970's.
    The Deputy Administrator finds that Respondent's inconsistent 
statements and unfounded explanations, along with his thirty year 
history of noncompliance with various controlled substance laws, are 
all indicative of his failure to understand the seriousness of his past 
violations. Moreover, Respondent has exhibited no remorse for his 
illegal activities.
    The administrative law judge also discounted the evidence of a 1971 
audit of Respondent's stock of controlled substances which revealed 
unexplained shortages, because this audit was not explicitly set forth 
in the Order to Show Cause. Since these allegations were set forth in 
the Government's Prehearing Statement, Respondent received adequate 
notice. Therefore, the Deputy Administrator has considered this 
evidence.
    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 the application for a DEA Certificate of Registration, submitted 
by John Stanford Noell, M.D., be, and it hereby is, denied. This order 
is effective September 15, 1994.

    Dated: September 9, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-22781 Filed 9-14-94; 8:45 am]
BILLING CODE 4410-09-M