[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Notices]
[Pages 6657-6658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3831]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No 95-30]


Philip G. Marais, D.D.S., Denial of Application

    On January 25, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Philip G. Marais, D.D.S., (Respondent) of Long 
Beach, California, notifying him of an opportunity to show cause as to 
why the DEA should not deny his pending application for a DEA 
Certificate of Registration as a practitioner, under 21 U.S.C. 823(f), 
as being inconsistent with the public interest.
    On May 19, 1995, the Respondent filed a request for a hearing, and 
on June 8, 1995, the Government filed a Motion for Summary Disposition, 
alleging that the Respondent was no longer authorized to handle 
controlled substances in the State of California. The motion was 
supported by copies of the July 15, 1994, Decision After Nonadoption by 
the State of California Board of Dental Examiners (Dental Board), and a 
March 10, 1995, Default Decision in which the Dental Board reimposed a 
seven-year revocation of the Respondent's license, effective April 10, 
1995.
    On June 9, 1995, Administrative Law Judge Mary Ellen Bittner sent 
the Respondent, via certified, return receipt mail, an Order affording 
him until June 30, 1995, to file a response to the Government's motion. 
That Order was returned to the Office of the Administrative Law Judge 
by the U.S. Postal Service on June 19, 1995, and re-sent to the 
Respondent via certified, return receipt mail on June 22, 1995, 
extending the response date to July 10, 1995. The Respondent did not 
file a response or make any other attempt to deny that his state 
license had been revoked.
    On July 20, 1995, Judge Bittner issued her Opinion and Recommended 
Decision, granting the Government's motion for summary disposition, and 
recommending that the Respondent's DEA Certificate of Registration be 
revoked. Neither party filed exceptions to her decision, and on August 
28, 1995, Judge Bittner 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 the Opinion and Recommended Decision of 
the Administrator Law Judge, with one noted exception, 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 on July 29, 1992, the 
Respondent voluntarily surrendered DEA Certificate of Registration 
AM8093875, based on his alleged failure to comply with Federal 
requirements pertaining to controlled substances. On August 27, 1992, 
the Respondent applied for a new DEA Certificate of Registration as a 
practitioner. On July 15, 1994, the Dental board issued a Decision 
After Nonadoption, ordering the suspension of the Respondent's license 
to practice dentistry (license) for sixty (60 days, effective August 
15, 1994. In addition, the Dental board revoked the Respondent's 
license, but stayed the revocation and placed the Respondent on 
probation for seven (7) years. However, on March 10, 1995, the Dental 

[[Page 6658]]
Board issued a Default Decision, in which it revoked the Respondent's 
license, effective April 10, 1995.
    The DEA does not have statutory authority under the Controlled 
Substances Act to register a practitioner unless that practitioner is 
authorized by the state in which he conducts business to dispense 
controlled substances. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). The 
DEA has consistently so held. See Lawrence R. Alexander, M.D., 57 FR 
22256 (1992); Bobby Watts, M.D., 53 FR 11919 (1988); Robert F. Witek, 
D.D.S., 52 FR 47770 (1987).
    Here it is clear that the Respondent is not currently authorized to 
practice dentistry in the State of California. From this fact, Judge 
Bittner inferred that since the Respondent was not authorized to 
practice dentistry, he also was not authorized to handle controlled 
substances. The Deputy Administrator agrees with Judge Bittner's 
inference, and he notes that the Respondent has not filed an exception 
to this portion of her decision. Therefore, because the Respondent 
lacks state authority to handle controlled substances, he currently is 
not entitled to a DEA registration.
    The Deputy Administrator also finds that Judge Bittner properly 
granted the Government's motion for summary disposition. It is well-
settled that when no question of fact is involved, a plenary, adversary 
administrative proceeding involving evidence and cross-examination of 
witnesses is not obligatory. See Dominick A. Ricci, M.D., 58 FR 51104 
(1993) (finding that ``Congress did not intend administrative agencies 
to perform meaningless tasks.''); see also Phillip E. Kirk, M.D., 48 FR 
32887 (1983), aff'd sub nom Kirk V. Mullen, 749 F.2d 297 (6th Cir. 
1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11873 (1978); NLRB v. 
International Association of Bridge, Structural and Ornamental 
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
    Judge Bittner recommended that the Respondent's registration be 
revoked. However, the Deputy administrator finds that, per the record, 
the Respondent does not currently hold a DEA registration, since he 
voluntarily surrendered it in July 1992. Therefore, the only matter 
pending is the Respondent's application for a new Certificate of 
Registration filed in August 1992. 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 the Respondent's application for a DEA 
Certificate of Registration be, and it hereby is, denied. This order is 
effective March 22, 1996.

    Dated February 14, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-3831 Filed 2-20-96; 8:45 am]
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