[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Notices]
[Pages 45739-45740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21694]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-7]


David W. Davis, D.O., Revocation of Registration

    On October 7, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to David W. Davis, D.O., of 
Houston, Texas (Respondent), proposing to revoke his DEA Certificate of 
Registration, AD7600631, and deny any pending applications for 
registration as a practitioner. The statutory basis for the Order to 
Show Cause was that the continued registration of Respondent was 
inconsistent with the public interest as that term is set forth in 21 
U.S.C. 823(f) and 824(a)(4).
    On November 5, 1993, Respondent, through counsel, requested 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 proceedings, a hearing was held in Houston, Texas on October 
20, 1994. The administrative law judge issued his findings of fact, 
conclusions of law and recommended ruling on January 17, 1995, 
recommending that Respondent's registration be revoked. No exceptions 
to the ruling were filed by either party. On February 17, 1995, the 
administrative law judge transmitted the record of the proceeding to 
the Deputy Administrator of DEA. After careful consideration of the 
record in its entirety, the Deputy Administrator enters his final order 
in this matter, in accordance with 21 CFR 1316.67, based on findings of 
fact and conclusions of law as set forth herein.
    The administrative law judge found that DEA initiated an 
investigation of Respondent after receiving reports from Houston area 
pharmacies that Respondent prescribed large amounts of controlled 
substances, particularly the combination of Tylenol No. 4 (a Schedule 
III controlled substance) and Valium or Xanax (Schedule IV controlled 
substances). DEA additionally was concerned about Respondent's 
prescribing practices because he was listed as one of the top 1,000 
Medicaid prescribers for the period of January 1991 to February 1992.
    The administrative law judge further found that an undercover 
officer from the Houston Police Department visited Respondent's office 
on three occasions. The undercover officer's conversations with 
Respondent were recorded and monitored by a DEA Diversion Investigator.
    On the undercover officer's first visit, on May 14, 1991, the 
officer asked Respondent for something ``to mellow out'' with, 
specifically requesting Tylenol. Respondent asked the undercover 
officer if he wanted Xanax or Valium and prescribed 30 dosage units of 
Valium (10 mg) and 30 dosage units of Tylenol No. 4. There was no 
discussion concerning any pain or anxiety experienced by the undercover 
officer.
    On June 21, 1991, the undercover officer made a second visit to 
Respondent's office and, again, expressed his need for medication to 
``chill out, mellow out.'' Although there was no previous discussion 
concerning whether the undercover officer had experienced any pain. 
Respondent, on this visit, inquired whether the officer still 
experienced pain. The undercover officer responded ``No . . . I'm fine 
doc.'' Respondent prescribed 30 dosage units of Valium (10 mg) and 30 
dosage units of Tylenol No. 4. However, Respondent denied the 
undercover officer's request for additional medication and warned him 
against developing a drug habit.
    On the third visit, on July 30, 1991, the undercover officer 
requested Tylenol No. 4 and Valium, and specified that he did not have 
any pain. Respondent again prescribed 30 dosage units of Valium (10 mg) 
and 30 dosage units of Tylenol No. 4.
    The administrative law judge found that each of the three visits 
lasted no longer than ten minutes and that during that time the 
undercover officer's blood pressure was taken on one visit and his 
weight may have been taken. Respondent also examined the officer's 
chest with a stethoscope. The undercover officer was in good health at 
the time of the visits and exhibited no outward manifestations of a 
drug abuser. At no point during any of the three office visits did the 
undercover officer complain of any pain.
    The administrative law judge found that, subsequent to the 
execution of a search warrant, Respondent was indicted on three counts 
of prescribing a Schedule III controlled substance to an undercover 
officer without a valid medical purpose. On April 23, 1992, Respondent 
pled nolo contendere to the first count, and the remaining two counts 
were dismissed. An adjudication of guilt was withheld in favor of two 
years probation and a $2,000 fine, notwithstanding the fact that the 
District Court of Harris County, Texas, found that the evidence 
substantiated Respondent's guilt.
    Judge Tenney additionally found that DEA obtained copies of 
Respondent's controlled substance prescriptions from a local pharmacy 
for the year of 1991. These prescriptions revealed that Respondent 
frequently prescribed combinations of Valium or Xanax with Tylenol No. 
4, and that multiple individuals in the same household would receive 
similar prescriptions. DEA also obtained written statements from 
several Houston area pharmacists declaring that they refused to fill 
prescriptions issued by Respondent.
    Pursuant to 21 U.S.C. 824(a)(4), the Deputy Administrator of the 
DEA may revoke the registration of a practitioner upon a finding that 
the registrant has committed such acts as would render his registration 
inconsistent with the public interest as that term is used in 21 U.S.C. 
823(f). In determining the public interest, the following factors will 
be considered:
    (1) The recommendation of the appropriate State licensing board or 
disciplinary authority.
    (2) The [registrant]'s experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The [registrant]'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 with may threaten the public health and 
safety. 21 U.S.C. 823(f).
    It is well established that these factors are to be considered in 
the disjunctive, i.e., the Deputy Administrator may properly rely on 
any one or a combination of factors, and give each factor the weight he 
deems appropriate in assessing the public interest. See Mukand Lal 
Arora, M.D., 60 FR 4447 (1995); Henry J. Schwartz, Jr., M.D., 54 FR 
16422 (1989). The administrative law judge found that factors (2) 
through (5) were relevant in determining whether to revoke Respondent's 
registration, and that the Government 

[[Page 45740]]
had met its burden in establishing these factors.
    The administrative law judge found that, notwithstanding the 
deferred adjudication of guilt, the Government had established a prima 
facie case under factor (3). DEA has previously held that a registrant 
may be found to have been convicted within the meaning of the 
Controlled Substances Act despite the withholding of an adjudication of 
guilt. See Clinton D. Nutt, D.O., 55 FR 30992 (1990); Eric A. Baum, 
M.D., 53 FR 47272 (1988).
    The administrative law judge additionally found that the Government 
had proven, by a preponderance of the evidence, that Respondent had 
prescribed controlled substances to the undercover officer on three 
separate occasions, without a valid medical purpose, thereby 
establishing a prima facie case under factors (2), (4) and (5).
    The administrative law judge found that the Government failed to 
prove that Respondent knew or should have known that the combination of 
Tylenol No. 4 and Valium or Xanax was highly abused on the streets or 
that the prescriptions issued to individuals other than the undercover 
officer were for a non-legitimate purpose. The Government did, however, 
establish that the combination controlled substances is abused among 
low-income individuals in the Houston area, a group served by 
Respondent. The administrative law judge also noted that the ease with 
which the undercover officer obtained the combination of drugs warrants 
serious concern by DEA.
    The Deputy Administrator adopts the findings of fact, conclusions 
of law and recommended ruling of the administrative law judge 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, hereby orders that DEA 
Certificate of Registration, AD7600631, issued to David W. Davis, D.O., 
be, and it hereby is, revoked, and that any pending applications for 
such registration as a practitioner be, and they hereby are, denied. 
This order is effective on October 2, 1995.

    Dated: August 28, 1995.
Stephen H. Greene,
Deputy Administrator.
FR Doc. 95-21694 Filed 8-31-95; 8:45 am]
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