[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Notices]
[Pages 54511-54513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26223]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-63]


David D. Miller, M.D.; Grant of Restricted Registration

    On June 28, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to David D. Miller, M.D., (Respondent) of 
Bartlesville, Oklahoma, notifying him of an opportunity to show cause 
as to why DEA should not deny his pending application for registration 
as a practitioner under 21 U.S.C. 823(f), as being inconsistent with 
the public interest. Specifically, the Order to Show Cause alleged 
that: (1) In September 1992, the Respondent delivered one-eighth ounce 
of marijuana, a Schedule I controlled substance, to an Oklahoma State 
undercover officer, and in October 1992, he surrendered two to three 
ounces of marijuana to the same officer, after admitting that he had 
been obtaining marijuana locally for several years and had been a user 
of marijuana since his college days; (2) on October 12, 1992, the 
Respondent entered a plea of nolo contendere to a felony charge of 
unlawful distribution of a controlled dangerous substance-marijuana, 
and the Oklahoma Eleventh Judicial District Court deferred the 
imposition of sentence for five years, placing the Respondent on 
probation for that period; (3) on October 12, 1992, the Oklahoma Bureau 
of Narcotic and Dangerous Drugs ordered the suspension of the 
Respondent's controlled dangerous substances registration, but 
reinstated it in April 1993; (4) on December 3, 1992, the Oklahoma 
Board of Medical Licensure determined that the Respondent's conduct 
violated the State Medical Practice Act and suspended the Respondent's 
license to practice medicine, but reinstated it and placed the 
Respondent on five years probation beginning April 8, 1993; and (5) on 
January 2, 1993, the Respondent voluntarily surrendered his DEA 
Certificate of Registration; BM0852423, for cause.
    On July 25, 1994, the Respondent filed a timely request for a 
hearing, and following prehearing procedures, a hearing was held in 
Oklahoma City, Oklahoma, on November 29, 1994, before Administrative 
Law Judge Paul A. Tenney. At the hearing, the Respondent was 
represented by counsel, both parties called witnesses to testify and 
introduced documentary evidence, and after the hearing, counsel for 
both sides submitted proposed findings of fact, conclusions of law and 
argument. On January 17, 1995, Judge Tenney issued his Findings of 
Fact, Conclusions of Law, and Recommended Ruling, recommending that DEA 
grant the Respondent's application for a DEA Certificate of 
Registration with certain limitations. Neither party filed exceptions 
to his decision, and on February 17, 1995, Judge Tenney transmitted the 
record of these proceedings to the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 C.F.R. 1316.67, hereby issues his final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
The Deputy Administrator adopts, in full, the Findings of Fact, 
Conclusions of Law, and Recommended Ruling of the Administrative Law 
Judge, and his adoption is in no manner diminished by any recitation of 
facts, issues and conclusions herein, or of any failure to mention a 
matter of fact or law.
    The Deputy Administrator finds that during the hearing before Judge 
Tenney, a Special Agent of the Oklahoma Bureau of Narcotics testified 
that in 1992, he opened a criminal investigation of the Respondent. 
With the assistance of a nurse, on September 1, 1992, the Agent 
received marijuana from the Respondent. The parties stipulated that 
marijuana is a Schedule I controlled substance pursuant to 21 C.F.R. 
1308.11(d). On October 1, 1992, the Agent asked the Respondent to come 
to the Washington County Sheriff's Office in Bartlesville, Oklahoma, 
and after being notified of the investigation and the potential 
charges, the Respondent voluntarily turned over approximately two to 
three ounces of marijuana to the Agent. After rights advisement, the 
Respondent also told the Agent that he 

[[Page 54512]]
had had a problem with marijuana, and that he had smoked it since his 
student days.
    The Agent also testified that during the course of the 
investigation he had not received any information that the Respondent 
was growing or selling marijuana, or that he had violated any laws 
concerning the prescription of narcotics. Further, he testified that 
the Respondent was very cooperative throughout the investigation.
    As a result of the Agent's investigation, the Respondent was 
charged with unlawful distribution of a controlled dangerous 
substance--marijuana. On October 14, 1992, the Respondent entered a 
plea of nolo contendere to the charge of unlawful distribution, and on 
that same day the Court deferred judgment and imposition of sentence, 
placed the Respondent on five years' probation, ordered him to serve 
100 hours of community service, and fined him $500.
    On November 21, 1992, the Oklahoma State Board of Medical Licensure 
and Supervision (the Board) suspended the Respondent's medical license, 
and on April 8, 1993, the Board terminated the suspension, imposed a 
five-year probation, and reinstated his license. The Respondent is 
required to comply with sixteen conditions incident to his probation, 
to include prohibiting the Respondent from prescribing, administering 
or dispensing any controlled substances for his personal use, requiring 
the Respondent to submit blood or urine samples for testing and 
analysis at the request of any investigator or agent of the Board, 
requiring the Respondent to provide proof of his continued compliance 
with his recovery treatment plan, and requiring the Respondent to 
notify any hospital where he holds staff privileges of the terms and 
conditions of the Board's probation order. The probationary period was 
ordered to run from April 8, 1993, until April 8, 1998.
    Also, on October 12, 1992, the Oklahoma State Bureau of Narcotics 
and Dangerous Drugs Control (Bureau) suspended the Respondent's 
registration authorizing him to prescribe, administer, and dispense 
controlled substances, but in April 1993, the Bureau reinstated his 
registration with limitations that remained in effect until November 1, 
1993. His registration subsequently was renewed with the same 
restrictions as those imposed by the Board. On January 2, 1993, the 
Respondent voluntarily surrendered, for cause, his DEA Certificate of 
Registration.
    During the hearing before Judge Tenney, the Respondent testified 
that he was licensed as a physician in 1980, and that he has a sub-
specialty in obstetrics and surgical gynecology. The record contains 
evidence that his level of medical care has been ``excellent,'' that 
his technical skills are above-average, that he has remained current in 
his knowledge of the practice of his sub-specialty, and that there have 
been no adverse reports concerning the quality of his care.
    The Respondent also testified that from October 1992 until April 
1993, he voluntarily sought and received five months of treatment at 
the Talbott-Marsh Recovery Campus in Atlanta, Georgia. This treatment 
center worked primarily with physicians, and the Respondent was 
discharged with a recommendation that he return to the type of medical 
practice he had left in Oklahoma. The record contains evidence that 
such graduates from this treatment center experience a very high 
success rate with a minimal possibility of relapse. Since his release 
from the treatment center, the Respondent has submitted to random 
urinalysis drug screenings multiple times per month, and all screenings 
have been ``negative'' for controlled substances. Further, the 
Respondent has complied with the provisions of his Continuing Care 
Contract, to include filing quarterly monitoring reports and submitting 
to random urine or blood drug screening tests. The Respondent also 
participates in counseling, to include support groups and individual 
counseling from a psychiatrist. Finally, the record contains ten 
affidavits from individuals such as the Respondent's colleagues, 
treating healthcare providers, and the District Attorney for the 
Eleventh Judicial District of Oklahoma, all attesting to their beliefs 
that the Respondent's receipt of a DEA Certificate of Registration 
would not be a threat to the public health and safety.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for a DEA Certificate of Registration, if he determines 
that granting 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.
    (5) Such other conduct which may threaten the public health or 
safety.
    These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
an application for registration should be granted or denied. See Henry 
J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422 (1989). The issue 
becomes whether the Government has proven by a preponderance of the 
evidence that registration of the Respondent by the DEA is inconsistent 
with the public interest. See Timothy H. Reese, M.D., Docket No. 93-4, 
59 FR 39792, 39793-94 (1994) (denying an application for DEA 
Certificate of Registration because the preponderance of the evidence 
established ``that it is unlikely that Respondent would competently or 
reliably discharge the obligations inherent in a DEA registration, and 
further concluded that it would not be in the public interest to grant 
his application.''). Here, factors one, three, four, and five are 
relevant in assessing the public interest.
    As to factor one, although the Board suspended the Respondent's 
license to practice medicine shortly after his court proceedings, and 
the Bureau also suspended his registration to handle controlled 
substances, the record also demonstrates that both the Board and the 
Bureau subsequently reinstated the Respondent's license and 
certificate, with certain limitations. Therefore, the State licensing 
boards have reinstated the Respondent's privileges, provided he comply 
with specified conditions and limitations.
    As to factors three and four, the record establishes that the 
Respondent entered a plea of nolo contendere to the charge of unlawful 
distribution of marijuana in an Oklahoma State court, and such evidence 
established a prima facie case under factor three. See Clinton D. Nutt, 
D.O., 55 FR 30,992 (1990); see also Sokoloff v. Saxbe, 501 F2d 571 (2d 
Cir. 1974) (discussing nolo contendere pleas and the Controlled 
Substance Act). Further, the acts committed by the Respondent which 
formed the basis of this charge, unlawful possession and distribution 
of marijuana in September and October 1992, demonstrate his 
noncompliance with applicable State or Federal laws relating to 
controlled substances. 823(f)(4).
    As to factor five, the Respondent readily and candidly acknowledged 
his 

[[Page 54513]]
long-term substance abuse problem in 1992. However, he sought in-
patient treatment and long-term follow-on outpatient treatment of his 
problem. The record demonstrates that his treatment program has a high 
success rate, and that throughout his post-treatment time the 
Respondent has remained drug-free. Further, both through testimony from 
colleagues presented at the hearing, and through documentary exhibits 
provided, the Respondent has shown that his medical competency has been 
excellent, his technical skills above-average, and no adverse reports 
have been submitted concerning his quality of care. As noted by Judge 
Tenney, the record reflects that ``[a] heterogeneous group of 
individuals from the fields of medicine and law enforcement concluded 
that the Respondent is no longer any threat to the public health and 
safety.''
    The Deputy Administrator emphasizes that this order should in no 
way be read to condone any illicit use or distribution of marijuana. As 
Judge Tenney succinctly noted, ``[t]he use or distribution of marijuana 
is a criminal act, and should be punished as such. The purpose of this 
proceeding, however, is not to punish but to protect the public 
interest. See Denis C. Chan, M.D., 55 FR 8,205 (1990); Leo R. Miller, 
M.D., 53 FR 21,931 (1988).'' Therefore, consistent with these findings, 
and the fact that the Oklahoma Board and Bureau have levied limitations 
upon the Respondent's practice of medicine and handling of controlled 
substances, the Deputy Administrator finds that granting the 
Respondent's application for a DEA Certificate of Registration, with 
the following limitations, would be consistent with the public 
interest: (1) The Respondent's controlled substance handling authority 
shall be limited to the writing of prescriptions only, and he shall not 
dispense, possess, or store any controlled substance, except that the 
Respondent may administer controlled substances in a hospital and may 
possess controlled substances which are medically necessary for his own 
use, and which he has obtained pursuant to a written prescription from 
another licensed practitioner (unless the substance is legitimately 
obtainable without a prescription); (2) the Respondent shall not 
prescribe any controlled substances for his own use; (3) the Respondent 
shall maintain a log, recording the date the prescription was written, 
patient's name, name and amount of the controlled substance(s) 
prescribed, and the pathology for which the prescription was written, 
of all controlled substance prescriptions he has written, and upon 
request by the Special Agent in Charge, or his designee, of the nearest 
DEA office, submit or otherwise make available the log for inspection; 
(4) the Respondent shall comply with any and all restrictions, 
limitations, or conditions imposed by the Oklahoma Board of Medical 
Licensure and Supervision and the Oklahoma State Bureau of Narcotics 
and Dangerous Drugs Control until such authorities remove them; (5) 
until the Oklahoma Board terminates the Respondent's probationary 
period on his medical license, the Respondent shall submit, upon the 
request of the Special Agent in Charge, or his designee, of the nearest 
DEA office, copies of the results of his random urine or blood 
screening tests. These restrictions shall remain in place for three 
years beginning on the date of this order.
    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 21 CFR 0.100(b) and 0.104, hereby orders that the 
application of David D. Miller, M.D., for a DEA Certificate of 
Registration for a practitioner be, and it hereby is granted subject to 
the limitations enumerated above. This order is effective November 24, 
1995.

    Dated: October 13, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26223 Filed 10-23-95; 8:45 am]
BILLING CODE 4410-09-M