[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Notices]
[Pages 62884-62887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29771]
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DEPARTMENT OF JUSTICE
[Docket No. 94-23]
Prince George Daniels, D.D.S.; Denial of Application
On January 31, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Prince George Daniels, D.D.S., (Respondent) of
San Jose, California, notifying him of an opportunity to show cause as
to why DEA should not deny his pending application under 21 U.S.C.
823(f), as being inconsistent with the public interest. Specifically,
the Order to Show Cause alleged that:
(1) Between December 2, 1982 and February 3, 1983, [the Respondent]
issued four prescriptions for Didrex, a Schedule III controlled
substance, to two undercover individuals[,] and these prescriptions
were not issued for a legitimate medical purpose in the usual course of
[his] professional practice.
(2) On June 7, 1983, in the Municipal Court, Santa Clara County
Judicial Circuit, State of California, [the Respondent] pled no contest
to two counts of prescribing controlled substances to a person not
under [his] treatment for a pathology in violation of California Health
and Safety Code [Section] 11154 and one count of practicing
unauthorized medicine in violation of California Business and
Professions Code [Section] 2052.
(3) On January 7, 1985, the Board of Dental Examiners, Department
of Consumer Affairs, State of California (Dental Board), suspended [the
Respondent's] state dental license for one year, but stayed this
suspension pending the successful completion of three years probation.
(4) On or about May 1, 1986, [the Respondent] arranged for the sale
of cocaine to an undercover DEA agent. Furthermore, [he] made
arrangements for other individuals to forcibly take the cocaine from
the DEA undercover agent after [he] sold him the cocaine.
(5) On January 3, 1987 [the Respondent's] previous DEA number,
AD6665838, expired [,] and [he] did not submit a renewal application
for that number. Thereafter [his] DEA number was retired from DEA
registration.
(6) On August 14, 1987, in the United States District Court,
District of Northern California, [the Respondent] pled guilty to one
count of conspiracy to deliver cocaine in violation of 21 U.S.C. 841
and 846 and to one count of possession of cocaine in violation of 21
U.S.C. 841. On October 2, 1987, [the Respondent was] sentenced to three
years imprisonment.
(7) On August 22, 1988, the Dental Board terminated [the
Respondent's] probation and revoked [his] state dental license.
Effective January 10, 1990, the Dental Board restored [his] state
dental license but placed [his] license on a three year probationary
term.
On March 9, 1994, the Respondent filed a timely request for a
hearing, and following prehearing procedures, a hearing was held in San
Francisco, California, on November 9, 1994, before Administrative Law
Judge Paul A. Tenney. At the hearing, the Government offered the
stipulated testimony of two witnesses and introduced various
documentary exhibits, and the Respondent, represented by counsel,
testified, called three witnesses, and introduced several documentary
exhibits. After the hearing, counsel for both sides submitted proposed
findings of fact, conclusions of law and argument. On January 30, 1995,
Judge Tenney issued his Findings of Fact, Conclusions of Law, and
Recommended Ruling, recommending that the Respondent's application for
a DEA Certificate of Registration be denied. Neither party filed
exceptions to his decision, and on March 9, 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 CFR 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 opinion 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 the Respondent received his
license to practice dentistry in California in 1975. Further, the
Respondent previously held a DEA Certificate of Registration,
AD6665838, which expired on June 30, 1986, and which the Respondent did
not renew but let lapse. However, on November 12, 1992, the Respondent
[[Page 62885]]
submitted an Application for Registration under the Controlled
Substances Act of 1970, as a practitioner for handling controlled
substances in Schedules II through V.
On December 2, 1982, the Respondent issued a prescription for
Didrex to an undercover police officer (Officer). The parties
stipulated that Didrex (benzphetamine) is a Schedule III non-narcotic
stimulant, and has been a Schedule III controlled substance since 1973.
The Officer received dental work and then requested the Didrex
prescription, purportedly for weight control. The Respondent testified
that, although he ``didn't know that much about Didrex,'' he issued the
prescriptions based upon the Agent's representation that her doctor had
previously prescribed Didrex, and upon a pharmacist's representation
that he would fill the prescription. On December 21, 1982, the
Respondent authorized a Didrex refill, and on January 4, 1983, he
indicated that he would authorize an additional refill. The Respondent
was arrested shortly after he prescribed the Didrex, and on June 7,
1983, in a California State court, he pled nolo contendere to two
counts of violation of California Health and Safety Code Section 11154
by prescribing a controlled substance to a person not under his
treatment for a pathology, and a violation of Business and Professions
Code Section 2052 for the unauthorized practice of medicine. Based on
the facts underlying his nolo contendere plea, the California Board of
Dental Examiners suspended the Respondent's dental certificate for one
year in January 1985, but the suspension was stayed in favor of a
three-year probationary period with various conditions.
In April 1986, a DEA Special Agent was introduced to the
Respondent's brother as a potential cocaine purchaser. In stipulated
testimony, an Agent who had monitored the cocaine transaction noted
that after negotiations, the undercover Agent on the scene arranged to
buy two kilograms of cocaine from the Respondent's brother. On May 1,
1986, this Agent and the Respondent's brother met at the Respondent's
dental clinic, the Respondent showed them into his office, locked the
office door, and directed his brother to give the Agent a cardboard box
containing two cellophane bags, each filled with a white powdery
substance. The Respondent then gave a note to the Agent which
represented the contents of the two bags, 1,667 grams of cocaine, and
the price for both bags, $61,679.00. The Agent asked why two kilograms
of cocaine were not tendered as originally agreed, and the Respondent
explained and stated that the rest of the cocaine could probably be
obtained later that day. The Respondent also indicated that after May
17th, he could obtain up to three kilograms of cocaine from his source
if given four days' notice. While still in the Respondent's office, the
Respondent explained that he expected $250 for his part in the cocaine
transaction, and when the Agent expressed his opinion that $250 seemed
to be a low payment, the Respondent replied that he was doing ``a favor
for a favor.'' Upon leaving the dental clinic, the Agent arrested the
Respondent and his brother.
On May 7, 1986, the Respondent was indicted in the United States
District Court for the Northern District of California on one count of
conspiring to distribute cocaine, a Schedule II controlled substance,
in violation of 21 U.S.C. 846. He was also indicted on one count of
unlawfully distributing 1,667 grams of cocaine in violation of 21
U.S.C. 841(a)(1). On October 2, 1987, the Respondent pled guilty to
both counts. He was sentenced to three years' imprisonment on each
count, the sentences were ordered to run concurrently, and he was fined
$100.00. The Respondent served approximately 16 to 18 months in prison
from late 1987 until March 1989, when he was released to a half-way
house. He was discharged from his sentence on August 25, 1989.
Effective August 22, 1988, the California Board of Dental Examiners
(Dental Board) revoked the Respondent's dental license based on the
cocaine-related convictions. The Dental Board also noted that the
Respondent's conduct resulted in a violation of the probationary period
that it had imposed after the Didrex incident. On January 10, 1990, the
Dental Board reinstated the Respondent's dental license subject to
various conditions, and by letter dated February 24, 1993, the Dental
Board informed the Respondent as follows: ``Our records show that you
have fully complied with the terms of your probationary order.
Therefore, all the rights and privileges associated with your dental
license have been restored.'' The Respondent testified that since his
release from prison in March 1989, he has had no negative encounters
with law enforcement agencies.
At the hearing before Judge Tenney, the Respondent testified about
the cocaine transaction, indicating that he never had sold drugs with
his brother until the May 1, 1986 incident, and that his involvement
then was minimal. He stated that his brother sought his help ``to get
out of a jam,'' and that his brother hinted that the transaction would
involve cocaine. The Respondent explained that ``all I did was read a
note, and that's all I had intended to do * * *. I wasn't sure what I
was supposed to do.'' He testified that he never received any money for
his part in the cocaine transaction, nor that there were ever any
arrangements to pay him. Further, as to answers he gave to agents who
had questioned him about his source for the cocaine, the Respondent
testified before Judge Tenney that he had ``made up'' the names of
cocaine suppliers and deliverers. The Respondent also testified that he
had ``made up the story'' he gave the agents after his arrest
concerning a ``plan'' to rob the Agent of the cocaine after he had paid
for it. Finally, he stated that he ``was involved with something [he]
shouldn't have been involved in. Right, wrong [,] or indifferent,
didn't matter. I should not have been involved with the selling of
drugs, as a dentist or as a person * * *.''
The Respondent provided extensive information concerning his
rehabilitative efforts, including his involvement with Christian
workshops, his studies to become a minister during his prison time for
the cocaine convictions, his involvement since 1990 with the Morris
Cerullo World Evangelists in visiting prisons and evangelizing, his
monetary contributions to narcotics programs, his devotion of
approximately 12 hours per week working with street gangs and
prisoners, his additional ministry work, such as teaching English to
Spanish, Vietnamese, and Cambodian people, providing food and clothing
to the needy, and his work with the Kenneth Hagen Ministry, the Roberts
Ministry, the American Fellowship Church, and various other ministries
and religious organizations. The Respondent testified that he had
recently visited China, Singapore, Malaysia, and Mexico, to ``share[]
the gospel,'' and that while in Malaysia, he had donated his dental
services.
While the Respondent was incarcerated, Dr. Lloyd Dickey, and his
son, Dr. Leonel Dickey, continued operating the Respondent's practice.
After the Respondent's dental license was reinstated in January 1990,
the Respondent returned to that practice. Currently Dr. Leonel Dickey
continues to assist the Respondent several times per week. The
Respondent treats a diverse ethnic population, primarily individuals of
Mexican or Vietnamese descent, and currently treats patients who have
private insurance, although he devotes about 10 percent of his
[[Page 62886]]
practice to providing free treatment to poor individuals. He testified
that he could not treat ``MediCal'' patients at the present time
because he does not have a DEA Certificate of Registration. Also, the
Respondent stated that he performs a variety of dental work, the
Respondent stated that he performs a variety of dental work, but that
he can only perform extractions or root canals when Dr. Leonel Dickey
was available in case the patient needed controlled substances for
relief from pain. The Respondent stated that his inability to prescribe
controlled substances prohibited him from maximizing his patient load,
inhibited his earning potential, and prevented him from giving his
patients full and complete treatment. Further, in some cases, he is
required to refer his patients to other dentists because his inability
to prescribed controlled pain medications.
Both the Respondent and Dr. Dickey testified that controlled
substances were not stored at the office, but that when a patient
required pain medication, Dr. Dickey wrote a prescription. However, the
Respondent testified that if he was granted a DEA Certificate of
Registration, he will would not want to store any controlled substances
at his office.
Dr. Leonel Dickey, a dentist licensed to practice in California
since 1979, testified that he had known the Respondent since the early
1970's, but that they had lost tough from 1974 until approximately
1987. He also stated that the Respondent had informed him of
``[p]roblems he ran into with the law'' when he asked him to cover for
his practice while he was incarcerated. Based upon his experiences of
working with the Respondent since 1990, Dr. Dickey expressed the
opinion that the Respondent was a very competent dentist. He also
testified that the Respondent provided free dental work to a portion of
his patients, but that without a DEA Certificate of Registration, it
was difficult for the Respondent to ease the discomfort level of his
patients. He also attested to the Respondent's involvement in Christian
ministries. Dr. Dickey also stated that he had no ``hesitations'' about
the Respondent receiving a DEA registration, and that he had seen no
evidence of ``any kind of unusual activity'' that would suggest that
the Respondent was untrustworthy or incompetent. However, he testified
that he had very little knowledge about the details of the Respondent's
convictions for selling cocaine, and that he was unfamiliar with the
Respondent's problems with Didrex in 1982 and 1983.
De. Lloyd Dickey, an experienced Doctor of Dental Surgery since
1947, testified that he had know the Respondent since approximately
1971, and that he regarded him as ``a son.'' He stated that he believed
the Respondent should be granted a DEA registration, for it would
benefit his patients. However, he testified that he was not very
familiar with the Respondent's cocaine charges, having heard only
``street gossip'' about the incidents. Dr. Dickey was more familiar
with the Respondent's problems with Didrex, because he had testified on
the Respondent's behalf before the Dental Board.
Finally, Reverend Kevin West, who holds a Doctor of Divinity
degree, testified that he had met the Respondent in late 1989, and that
they had decided to form a ministry together, which was incorporated in
1991. The ministry consists of Bible studies, Alcoholics Anonymous/
Narcotics Anonymous meetings, and general acts of ``[ministry] to the
local people at a local church.'' Reverend West stated that he had
observed the Respondent closely, and he attested to the Respondent's
ordination as a minister, his work as Reverend West's associate pastor,
his visits to prisons, his work with gang members, and various other
good deeds performed by the Respondent. He opined that the Respondent
was ``definitely * * * rehabilitated.'' However, Reverend West
testified that, prior to the hearing before Judge Tenney, he had heard
only limited information about the Respondent's involvement with
cocaine in May of 1986, and that he was totally unaware of the Didrex
prescription problems.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny a
pending application for a DEA Certificate of Registration if he
determines that 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 denied. See Richard J.
Lanham, M.D., 57 FR 40,475 (1992); Henry J. Schwarz, Jr., M.D., 54 FR
16,422 (1989).
In this case, although the Government argued that it had
established a prima facie case under all five factors, the Deputy
Administrator agrees with Judge Tenney, and finds that a prima facie
case has only been established under factors 2 through 5. As to factor
one, ``recommendation of the appropriate State licensing board,'' the
Dental Board restored all rights and privileges associated with the
Respondent's dental license in 1993. Since the record contains no
adverse recommendations from the ``appropriate State licensing board or
professional disciplinary authority,'' the Deputy Administrator agrees
with Judge Tenney and finds that the Government has not established a
prima facie case under factor one.
As to factor two, ``the applicant's experience in dispensing * * *
controlled substances,'' the Deputy Administrator again agrees with
Judge Tenney that the Government has established a prima facie case
under factor two. First, the evidence of the 1982 Didrex prescriptions
demonstrated that the Respondent, lacking familiarity with that
substance's characteristics, prescribed Didrex to a patient merely at
her request, without a legitimate medical purpose, and outside the
regular course of his practice. Further, the evidence of the
Respondent's participation in May 1986, in the distribution of cocaine
and in a conspiracy to distribute cocaine, contributed to the
establishment of the Government's case under factor two.
The Deputy Administrator also agrees with Judge Tenny's finding
that the Government established a prima facie case under factors three
and four, ``the applicant's conviction record under Federal or State
laws relating to the * * * distribution * * * of controlled
substances,'' and ``[c]ompliance with applicable State, Federal * * *
laws relating to controlled substances,'' for the Respondent had pled
nolo contendere to State charges involving Didrex, a controlled
substance, and he had pled guilty to two Federal charges involving the
distribution of cocaine. Further, the Respondent's conduct underlying
these two convictions demonstrate his participation in illegal
activities, thus violating applicable State and Federal laws relating
to controlled substances.
[[Page 62887]]
Finally, the Deputy Administrator agrees with Judge Tenney's
finding as to the relevancy of the Respondent's testimony before him
concerning the cocaine incident and factor five, ``other conduct which
may threaten the public health or safety.'' Specifically, the Deputy
Administrator finds that the Respondent's lack of candor in his 1994
testimony as to the full extent of his involvement in the cocaine
incident creates concern about his future conduct. The record discloses
that the Respondent was quite involved in the cocaine distribution and
conspiracy, as evidenced by the stipulated testimony of the undercover
Agent involved first-hand in the incident, and by the fact that the
Respondent pled guilty to the charges of conspiracy to distribute
cocaine and unlawfully distributing cocaine. His failure to take
responsibility for his past misconduct causes concern about his
commitment to protecting the ``public health and safety'' in the
future, should he be granted a DEA Certificate of Registration.
However, the Government's establishment of its case does not end
the inquiry, for the Respondent has submitted extensive evidence of his
rehabilitative efforts. The issue then becomes whether the Respondent
has offered sufficient proof of rehabilitation to mitigate the
egregious conduct established by the Government, such that the DEA can
now find that granting the Respondent's application for a Certificate
of Registration would be consistent with the ``public interest.'' See
Shatz v. United States Dept. of Justice, 873 F.2d 1089, 1091 (8th Cir.
1989) (holding that, in a case such as this, the Respondent has the
burden to prove rehabilitation).
Again, the Deputy Administrator agrees with Judge Tenny's findings
as to the weight to be given the Respondent's rehabilitative evidence,
for the Respondent's evidence concerning his rehabilitative efforts, to
include his commitment to performing good deeds through a variety of
Christian ministries, was credible. However, the Respondent's November
1994 testimony concerning his conduct surrounding the May 1, 1986,
cocaine transaction was indeed troubling, for despite the plea and
conviction, the Respondent continued to minimize his involvement and
resulting responsibility for the conspiracy and cocaine distribution
incidents. As Judge Tenny noted, ``the Respondent's inability to be
completely candid at the hearing causes sufficient doubt as to whether
he is fully rehabilitated.'' Further, the Deputy Administrator also
notes the lack of evidence of continuing education relevant to
controlled substances, evidence which would have been helpful in light
of the Respondent's experience in prescribing Didrex without
understanding its characteristics.
Therefore, the preponderance of the evidence supports denial of the
Respondent's application at this time. If the Respondent reapplies and
submits evidence of his continuing rehabilitative efforts, such as
evidence of completion of educational courses at least partially
focused upon the handling of controlled substances, then his
application may receive more favorable consideration. See, e.g., Shatz,
873 F.2d at 1092 (suggesting that ``careful consideration'' be given to
any future application for registration, and in particular, to ``any
additional evidence in support of [a] claim of rehabilitation'');
Sokoloff v. Saxbe, 501 F.2d 571, 576 (2d Cir. 1974) (stating that
``permanent revocation'' of a DEA Certificate of Registration may be
``unduly harsh'')
Therefore, the Deputy Administrator finds that the public interest
is best served by denying the Respondent's application at this time.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823, and 21 C.F.R. 0.100(b) and 0.104, hereby orders that the
Respondent's application for a DEA Certificate of Registration be, and
it hereby is, denied. This order is effective January 8, 1996.
Dated: November 30, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-29771 Filed 12-6-95; 8:45 am]
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