[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Notices]
[Pages 10789-10791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6221]



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DEPARTMENT OF JUSTICE
[Docket No. 94-73]


R. Bruce Phillips, D.D.S.; Grant of Application

    On August 11, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order

[[Page 10790]]
to Show Cause to R. Bruce Phillips, D.D.S., (Respondent) of Pineville, 
Louisiana, notifying him of an opportunity to show cause as to why DEA 
should not deny his 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 1985, the Louisiana State Police conducted an investigation 
concerning the Respondent's prescribing practices. The investigation 
revealed that between January 1980 and September 1985, the Respondent 
prescribed large amounts of controlled substances to several 
individuals for no legitimate medical reason.
    (2) As a result of this investigation, in August 1986, a one-count 
Bill of Information was filed in the United States District Court, 
Western District of Louisiana, charging the Respondent with unlawfully 
dispensing 1,263 dosage units of controlled substances. On September 2, 
1986, the Respondent pled guilty to the Bill of Information. The 
Respondent was sentenced to a six-month period of confinement, placed 
on probation for four years, and ordered to pay a fine of $5,000.00.
    (3) Following the Respondent's conviction, he entered into a 
consent agreement with the Louisiana State Board of Dentistry (Dental 
Board) on October 28, 1986. As part of the agreement, the Dental Board 
placed his dental license on probation for five years subject to 
certain terms and conditions, and the Respondent's State authority to 
handle controlled substances was revoked permanently. As a result, on 
October 27, 1986, the Respondent voluntarily surrendered his DEA 
Certificate of Registration, AP3383685. On July 23, 1992, the Dental 
Board reinstated the Respondent's State privileges to prescribe 
controlled substances.
    On September 6, 1994, the Respondent, through counsel, filed a 
timely request for a hearing, and following prehearing procedures, a 
hearing was held in New Orleans, Louisiana, on June 21, 1995, before 
Administrative Law Judge Paul A. Tenney. At the hearing, 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 August 28, 1995, Judge 
Tenney issued his Opinion and Recommended Ruling, recommending that the 
Respondent's application for registration be granted. Neither party 
filed exceptions to his decision, and on September 28, 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 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, pursuant to stipulations made 
by the parties before Judge Tenney, the following facts are not in 
dispute: (1) In 1985, the Louisiana State Police conducted an 
investigation concerning the Respondent's prescribing practices, which 
covered the period of January 1980 and September 1985; (2) in August 
1986, a one-count Bill of Information was filed in the United States 
District Court, Western District of Louisiana, relating to the 
Respondent's unlawful dispensing of 1,263 dosage units of controlled 
substances; (3) on September 2, 1986, the Respondent pled guilty to the 
Bill of Information, and he was sentenced to a six-month period of 
confinement, placed on probation for four years, and ordered to pay a 
fine of $5,000.00; (4) following his conviction, the Respondent entered 
into a consent agreement with the Dental Board on October 28, 1986, and 
as part of the agreement, the Dental Board placed the Respondent's 
dental license on probation for five years, subject to certain terms 
and conditions, and his State authority to handle controlled substances 
was revoked; and (5) on October 27, 1986, the Respondent voluntarily 
surrendered his DEA Certificate of Registration, but on July 23, 1992, 
the Dental Board reinstated his State privileges to prescribe 
controlled substances. The parties also stipulated that Percodan, 
Demerol, and Mepergan Fortais are Schedule II controlled substances.
    The Deputy Administrator also finds that the Respondent is a Board 
qualified oral and maxillo-facial surgeon who has practiced in that 
field of speciality since 1958. He is licensed to practice his 
specialty in the State of Louisiana. On August 5, 1992, he executed an 
application for registration as a practitioner with the DEA.
    The acts underlying the criminal conviction include the 
Respondent's conduct of issuing prescriptions for controlled substances 
at the request of two individuals, after he had been drinking alcohol 
to excess. One of these individuals was a local resident with widely 
known criminal ties, and the second individual was a local attorney who 
was representing the Respondent in a pending court action. The 
Respondent did not maintain office records for either of these 
individuals. During an interview with the State police on August 26, 
1986, the Respondent admitted that he had issued prescriptions to the 
first individual as a personal favor, even though this individual 
suffered ailments outside the Respondent's area of practice.
    Before Judge Tenney, a Special Agent with the FBI testified about 
the investigation he had conducted while employed as a Louisiana State 
Trooper involving the Respondent. He stated that from May of 1980 to 
August of 1984, the Respondent had issued 77 prescriptions for almost 
1,500 dosage units of controlled substances for the first individual or 
his wife. During the same interview with the State Trooper, the 
Respondent admitted that, before prescribing controlled substances to 
the attorney, he had not conducted an examination, and that, although 
he had become aware that the attorney was abusing the drugs he 
prescribed for him, he continued to issue the prescriptions for 
controlled substances partly out of friendship, and partly out of fear 
that the attorney would not properly handle his lawsuit should the 
Respondent cease providing the prescriptions. From 1982 to 1984, the 
Respondent wrote a total of 36 prescriptions to this attorney for a 
total of 710 dosage units of Percodan.
    Judge Tenney found that the evidence established that ``the vast 
majority, if not all of the unlawful prescriptions were issue[d] while 
[the Respondent] was under the influence of alcohol.'' He also found 
that the ``State police investigation revealed that both [of these 
individuals] took advantage of [the Respondent's] intoxicated state and 
`used' him for the purpose of obtaining controlled dangerous 
substances.''
    As a result of this conduct, the Respondent entered a guilty plea 
in Federal court for unlawfully dispensing Percodan. The Court 
sentenced him to five years imprisonment, but suspended all but six 
months of this time, and placed him on probation for four years. He was 
also ordered to pay a fine of $5,000.00. The Respondent also entered 
into a consent agreement with the Dental Board. The consent agreement 
levied conditions upon his continued practice of dentistry, to include 
placing him on probation for five years and revoking his State 
registration to handle controlled substances.

[[Page 10791]]

    The Respondent had an early release fro the detention center, he 
performed 400 hours of community service at the Huey P. Long Medical 
Center, and he paid his fine. On November 19, 1990, the Respondent's 
probation was terminated early upon the recommendation of his probation 
officer. Further, the Respondent voluntarily quit drinking alcohol 
about ten years ago, a fact corroborated by his co-workers, one of 
which testified before Judge Tenney that he believed that the 
Respondent had ``quit drinking completely.''
    Although the consent decree at the Dental Board indicated that the 
Respondent's certificate to prescribe controlled substances was 
``revoked'' permanently, the Respondent's license to prescribe 
controlled substances was reissued by the State Department of Health 
and Hospitals. Further, testimony was received from a representative of 
the Dental Board, that the Board had not received any complaints 
concerning the Respondent, and that he as ``in good standing.'' 
Finally, the record contains a document demonstrating that the Dental 
Board ``strongly recommended the return of [the Respondent's] DEA 
registration.''
    Currently, the Respondent is employed at the Huey P. Long Medical 
Center (Center), and he is performing his dental specialty at the 
Center's satellite clinic on England Air Force Base. The Center's 
director submitted an affidavit dated June 19, 1995, writing that he 
had known the Respondent for nearly 30 years, was aware of his problems 
which surfaced in the mid-1980's, and that it was his opinion that the 
Respondent was ``a skilled, competent, [and] knowledgeable oral surgeon 
with a good moral character.'' He also wrote that the Respondent 
operated at the clinic daily and saw approximately 2,500 patients 
annually.
    Another dentist working at the Center testified before Judge 
Tenney, stating that the Respondent was a highly competent oral and 
maxillo-facial surgeon, and he recommended that the Respondent's DEA 
Certificate of Registration be reinstated. This colleague also opined 
that the Respondent had a strong relationship with his wife, children, 
and grandchildren.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for registration as a practitioner, 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 a registration should be revoked or an application for 
registration denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 
54 FR 16422 (1989).
    In this case, all five factors are relevant in determining whether 
the Respondent's registration would be inconsistent with the public 
interest. As to factor one, ``recommendation of the appropriate State 
licensing board, * * *'' the consent decree of record between the 
Respondent and the Dental Board is relevant, indicating the State 
licensing board's response to the Respondent's misconduct. However, 
also relevant is the Dental Board's contribution of the Respondent's 
license to practice dentistry, for it was never revoked, and the 
reinstatement of the Respondent's State license to prescribe controlled 
substances. Finally, the Dental Board, in correspondence to the 
Respondent, recommended that his DEA registration application be 
granted.
    As to factor two, the Respondent's ``experience in dispensing * * * 
controlled substances,'' factor four, the Respondent's ``[c]ompliance 
with applicable State, Federal, or local laws relating to controlled 
substances,'' and factor five, ``[s]uch other conduct which may 
threaten the public health or safety,'' there is no dispute that in the 
mid-1980's, the Respondent had engaged in the unlawful prescribing of 
controlled substances for no legitimate medical purpose. Further, as to 
factor three, the Respondent's ``conviction record under Federal or 
State laws relating to the * * * distribution, or dispensing of 
controlled substances,'' there is no dispute that the Respondent, 
pursuant to the entry of a guilty plea, was convicted of the unlawful 
dispensing of 1,263 dosage units of controlled substances. Thus, the 
Deputy Administrator agrees with Judge Tenney's conclusion that the 
Government has made a prima facie case for denying the Respondent's 
application.
    However, the Respondent presented considerable evidence of 
rehabilitation. The Respondent had engaged in his prior misconduct 
while under the influence of alcohol. Now, however, the record supports 
a finding that the Respondent, for approximately ten years, voluntarily 
has quit drinking alcohol. Judge Tenney also found that the Respondent 
had demonstrated, and other witnesses had corroborated, that he had 
experienced a significant life change since he stopped drinking 
alcohol. His relationship with his wife has improved; he has close 
relationships with his children and grandchildren; and he was active in 
his church. Professionally, he is in good standing with the Dental 
Board, and the Director of the Center where he is employed supports his 
application.
    In light of the above, the Deputy Administrator agrees with Judge 
Tenney's conclusion that the Respondent ``has accepted responsibility 
for his actions and has suffered the consequences. In balance, it is 
evident that [the Respondent] has turned his life around and will not 
repeat the mistakes of the past.'' Although in no way condoning the 
Respondent's past misconduct, the Deputy Administrator finds that now 
the public's interest is best served by issuing a DEA Certificate of 
Registration to the Respondent.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823, and 28 CFR 0.100(b) and 0.104, hereby orders that the pending 
application of R. Bruce Phillips, D.D.S., for a DEA Certificate of 
Registration, be, and it hereby is, approved. This order is effective 
March 15, 1996.

    Dated: March 7, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-6221 Filed 3-14-96; 8:45 am]
BILLING CODE 4410-09-M