[Federal Register Volume 60, Number 36 (Thursday, February 23, 1995)]
[Notices]
[Pages 10109-10110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4334]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-67]
Barry S. Gleken, D.M.D.; Denial of Application
On June 27, 1994, the Deputy Administrator, Office of Diversion
Control, Drug Enforcement Administration (DEA), issued an Order to Show
Cause to Barry S. Gleken (Respondent), of Methuen, Massachusetts,
proposing to deny his application for a DEA Certificate of
Registration, as a practitioner under 21 U.S.C. 823(f). The proposed
action was predicated, inter alia, on Respondent's lack of
authorization to handle controlled substances in the Commonwealth of
Massachusetts. 21 U.S.C. 824(a)(3). The Order to Show Cause also
alleged that Respondent's registration would be inconsistent with the
public interest as that term is used in 21 U.S.C. 823(f) based on a
number of other allegations, including that Respondent materially
falsified his present application by indicating that he was currently
authorized to handle controlled substances in the state he was
proposing to operate, when, in fact, he was not so authorized.
The Order to Show Cause was sent to Respondent by registered mail.
Respondent, through counsel, timely filed a request for a hearing. On
August 18, 1994, the Government filed a motion for summary disposition
based upon documentation that Respondent did not possess a valid
Massachusetts Controlled Substances Registration and that such a
registration was necessary before DEA could issue Respondent a
registration to handle controlled substances in the Commonwealth of
Massachusetts.
Respondent filed a response which did not deny that Respondent was
not currently authorized to handle controlled substances in
Massachusetts. Respondent, however, urged the administrative law judge
to recommend that Respondent be allowed to withdraw his application
without prejudice and that no further action be taken by DEA.
Respondent maintained that such action be taken because he intended to
apply for a Massachusetts Controlled Substances Registration in the
future.
Respondent, in support of his response, asserted that Massachusetts
recently enacted regulations requiring all dentists to be registered
with the State Department of Health for authorization to handle
controlled substances and that Respondent had just become aware of this
requirement.
On September 6, 1994, in his opinion and recommended decision, the
administrative law judge found that Respondent was not currently
authorized to handle controlled substances in Massachusetts. The
administrative law judge also found that Respondent wanted to properly
apply for a Massachusetts registration, thereby eliminating the
``procedural'' defect to obtaining a DEA registration. Consequently, he
concluded that no prejudice would accrue to DEA if Respondent were
allowed to withdraw his application rather than denying the application
based upon his lack of state authorization to handle controlled
substances in Massachusetts. The administrative law judge recommended
that Respondent be permitted to withdraw his application without
prejudice.
On September 26, 1994, the Government filed exceptions to the
opinion and recommended decision of the administrative law judge,
contending that Respondent's application should be denied based upon
the lack of state authorization rather than allowing Respondent to
voluntarily withdraw his application. The Government argued in the
alternative, that the Deputy Administrator remand the case back to the
administrative law judge to allow the Deputy Assistant Administrator,
Office of Diversion Control, to decide whether to permit Respondent to
withdraw his application, as provided under 21 CFR 1301.37 and 28 CFR
0.104 Appendix to Subpart R, Section 7(a). Respondent did not file a
response to the Government exceptions.
The Deputy Administrator finds that, pursuant to 28 CFR 0.104
Appendix to Subpart R, Section 7(a), it is within the discretion of the
Deputy Assistant Administrator, Office of Diversion Control, to permit
Respondent to withdraw his application after an Order to Show Cause has
been filed. However, the Deputy Administrator has concluded that rather
than remand the matter for consideration of a withdrawal of the
application, the application should be denied based on Respondent's
current lack of authorization to handle controlled substances in
Massachusetts.
As detailed in the Order to Show Cause, Respondent is alleged to
have committed numerous wrongful acts, one of which is the
falsification of the present application. Permitting the withdrawal of
this application would be prejudicial to the Government and potentially
the public. It would eliminate an important factor, the alleged
falsification of an application, which should be considered in
determining whether future applications should be granted.
The Deputy Administrator finds that Respondent does not currently
have state authority to handle controlled substances in the
Commonwealth of Massachusetts, the state in which he proposes to be
registered with the DEA. The Deputy Administrator concludes that the
DEA does not have the statutory authority under the Controlled
Substances Act to issue or maintain a registration if the applicant or
registrant is without State authority to handle controlled substances.
See 21 U.S.C. 823(f). The Deputy Administrator and his predecessors
have consistently so held. See Howard J. Reuben, M.D., 52 FR 8375
(1987); Ramon Pla, M.D., Docket No. 86-54, 51 FR 41168 (1986); Dale D.
Shahan, D.D.S., Docket No. 85-57, 51 FR 23481 (1986); and cases cites
therein. Since there is no disagreement that Respondent was not
currently authorized to handle controlled substances in Massachusetts
when he filed his application, the Deputy Administrator concludes that
the Government's motion for summary disposition should be granted.
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 [[Page 10110]] hereby orders
that the application for a DEA Certificate of Registration, submitted
by Barry S. Gleken, D.M.D., be, and it is hereby denied. This order is
effective February 23, 1995.
Dated: February 16, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-4334 Filed 2-22-95; 8:45 am]
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