[Federal Register Volume 61, Number 147 (Tuesday, July 30, 1996)]
[Notices]
[Page 39668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19256]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-16]


Dewey O. Mays, Jr., M.D.; Denial of Application

    On November 24, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Dewey O. Mays, Jr., M.D., (Respondent) of 
Dayton, Ohio, notifying him of an opportunity to show cause as to why 
DEA should not deny his application of January 3, 1994, for 
registration as a practitioner under 21 U.S.C. 823(f) as being 
inconsistent with the public interest.
    On January 2, 1996, the Respondent filed a timely request for a 
hearing, and the matter was docketed before Administrative Law Judge 
Mary Ellen Bittner. However, on January 23, 1996, the Government filed 
a Motion to Amend Order to Show Cause and for Summary Disposition, 
noting that the Respondent's license to practice medicine had been 
indefinitely suspended by the State Medical Board of Ohio by final 
order dated June 15, 1995, a copy of which was attached to the motion. 
The Respondent was afforded an opportunity to respond to the 
Government's motion on or before February 8, 1996, but no response was 
filed. On February 14, 1996, Judge Bittner issued her Opinion and 
Recommended Decision, (1) finding that the Respondent lacked 
authorization to practice medicine in Ohio, and, accordingly, lacked 
authorization to handle controlled substances in Ohio, (2) finding that 
the Respondent was thus not entitled to a DEA registration, (3) 
granting the Government's motion for summary disposition, and (4) 
recommending that the Respondent's application for a DEA Certificate of 
Registration be denied. Neither party filed exceptions to her decision, 
and on March 15, 1996, Judge Bittner transmitted the record of these 
proceedings and her opinion 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 decision of the 
Administrative Law Judge. The Drug Enforcement Administration cannot 
register or maintain the registration of a practitioner who is not duly 
authorized to handle controlled substances in the state in which he 
conducts his business. See 21 U.S.C. 283(f) (authorizing the Attorney 
General to register a practitioner to dispense controlled substances 
only if the applicant is authorized to dispense controlled substance 
under the laws of the state in which he or she practices); 802(21) 
(defining ``practitioner'' as one authorized by the United States or 
the state in which he or she practices to handle controlled substances 
in the course of professional practice or research). This prerequisite 
has been consistently upheld. See Dominick A. Ricci, M.D., 58 FR 51,104 
(1993); James H. Nickens, M.D., 57 FR 59,847 (1992); Roy E. Hardman, 
M.D., 57 FR 49,195 (1992); Myong S. Yi, M.D., 54 FR 30,618 (1989); 
Bobby Watts, M.D., 53 FR 11,919 (1988).
    Here, it is clear that the Respondent is not currently authorized 
to practice medicine in Ohio. The Deputy Administrator agrees with 
Judge Bittner's finding that ``[i]t is therefore reasonable to infer, 
and Respondent does not deny, that because he is not authorized to 
practice, he is also not authorized to handle controlled substances in 
Ohio.'' Likewise, since the Respondent lacks state authority to handle 
controlled substances, DEA lacks authority to grant the Respondent's 
registration application.
    Judge Bittner also properly granted the Government's motion for 
summary disposition. The parties did not dispute that the Respondent 
was unauthorized to handle controlled substances in Ohio, the state in 
which he proposed to conduct his practice. Therefore, 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. Dominick A. Ricci, M.D., 58 FR at 51,104; 
see also Phillip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk 
v. Mullen, 749 F.2d 297 (6th Cir. 1984); Alfred Tennyson Smurthwaite, 
M.D., 43 FR 11,873 (1978); NLRB v. International Association of Bridge, 
Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 
1977).
    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 Respondent's 
application for a DEA Certificate of Registration be, and it hereby is, 
denied. This order is effective August 29, 1996.

    Dated: July 24, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-19256 Filed 7-29-96; 8:45 am]
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