[Federal Register Volume 61, Number 164 (Thursday, August 22, 1996)]
[Notices]
[Pages 43384-43385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21416]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration


Mitchell F. West, D.O., Denial of Application

    On January 24, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Mitchell F. West, D.O., (Respondent) of Bethel 
Park, Pennsylvania, notifying him of an opportunity to show cause as to 
why DEA should not deny his application, dated July 7, 1993, for a DEA 
Certificate of Registration pursuant to 21 U.S.C. 823(f), as being 
inconsistent with the public interest. The order also notified the 
Respondent that, should no request for a hearing be filed within 30 
days, the hearing right would be deemed waived. The order was mailed by 
certified mail, and a signed return receipt dated January 30, 1996, was 
received by the DEA. However, no request for a hearing or any other 
reply was received by the DEA from the Respondent or anyone purporting 
to represent him in this matter. Subsequently, on March 25, 1996 the 
investigative file was transmitted to the Deputy Administrator for 
final agency action.
    Therefore, the Deputy Administrator, finding that (1) thirty days 
have passed since the issuance of the Order to Show Cause, and (2) no 
request for a hearing has been received, concludes that the Respondent 
is deemed to have waived his hearing right. After considering relevant 
material from the investigative file in this matter, the Deputy 
Administrator now enters his final order without a hearing pursuant to 
21 CFR 1301.54(e) and 1301.57.
    The Deputy Administrator finds that, in July of 1992, the 
Respondent voluntarily surrendered his DEA Certificate of Registration 
prior to receiving a misdemeanor conviction in the Court of Common 
Pleas of Allegheny County, Pennsylvania, for prescribing controlled 
substances ``not in good faith in the course of this professional 
practice.'' On July 7, 1993, the Respondent applied for a new 
Certificate of Registration, disclosing his prior voluntary surrender 
and for circumstances surrounding that event.
    Further investigation disclosed that on September 23, 1993, and on 
October 8, 1993, the Respondent unlawfully wrote prescriptions without 
a legitimate medical purpose, and obtained possession of Schedule II 
controlled substances containing oxycodone. Consequently, on May 16, 
1994, the Respondent pleaded guilty to two counts of unlawful 
possession of controlled substances by misrepresentation, in violation 
of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic 
Act, (Drug Act) resulting in a state felony conviction. The 
investigation revealed that the Respondent had a substance abuse 
problem, and as part of his court sentence, he was ordered to seek 
evaluation for substance abuse and to ``follow all treatment 
recommendations.''
    Also, on July 20, 1994, the Respondent pleaded guilty to one count 
of delivering a controlled substance in violation of the Drug Act, 
again a felony offense. Consequently, on December 5, 1994, the State 
Board of Osteopathic Medicine (Board) ordered the Respondent to ``cease 
and desist immediately from the practice of osteopathic medicine in the 
Commonwealth of Pennsylvania'' because of his felony convictions. From 
these facts, the Deputy Administrator infers that, since the Respondent 
is not authorized to practice medicine in Pennsylvania, he also lacks 
authorization to handle controlled substances in that state.
    The Drug Enforcement Administration cannot register 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. 823(f) (authorizing 
the Attorney General to register a practitioner to dispense controlled 
substances only if the applicant is authorized to dispense controlled 
substances under the laws of the state in which he or she practices); 
and 802(21) (defining ``practitioner'' as one

[[Page 43385]]

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).
    Further, 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 and 
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 
granting the Respondent's application would be inconsistent with the 
public interest. As to factor one, ``recommendation of the appropriate 
State licensing board * * *'', the Board, after reviewing the 
Respondent's unlawful professional conduct, ordered the Respondent to 
cease the practice of osteopathic medicine in Pennsylvania. It is 
therefore reasonable to infer, and the Respondent does not deny, that 
because he is not authorized to practice medicine, he is not authorized 
to handle controlled substances in Pennsylvania as a result of the 
Board's order.
    As to factor two, the Respondent's ``experience in dispensing * * * 
controlled substances,'' factor three, the Respondent's ``conviction 
record under Federal or State laws relating to * * * controlled 
substances'', and factor four, the Respondent's ``[c]ompliance with 
applicable State, Federal, or local laws relating to controlled 
substances,'' it is undisputed that the Respondent has received two 
state felony convictions since September of 1993, for violating the 
Drug Act by unlawfully possessing controlled substances, and unlawfully 
delivering controlled substances. Such conduct directly violates the 
public's interest in the continuation of lawful and safe handling of 
controlled substances.
    Finally, as to factor five, ``[s]uch other conduct which may 
threaten the public health and safety,'' the Deputy Administrator finds 
it significant that the Respondent demonstrated a blatant disregard of 
Federal legal requirements by knowingly handling controlled substances 
without possessing a DEA Certificate of Registration; in fact, he 
engaged in such conduct while his application for a registration was 
pending. Further, the Respondent's failure to respond to the Order to 
Show Cause, either by requesting a hearing or by submitting a written 
response, indicates that he is either unwilling or unable to proffer 
support at the present time for his application.
    Therefore, the Deputy Administrator finds that the public interest 
is best served by denying the Respondent's application. 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 September 23, 1996.

    Dated: August 13, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-21416 Filed 8-21-96; 8:45 am]
BILLING CODE 4410-09-M