[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Notices]
[Page 65075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31251]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-20]


Jonathan Agbebiyi, M.D.; Revocation of Registration

    On September 5, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Jonathan A. Agbebiyi, M.D. (Respondent) of 
Phoenix, Arizona, notifying him of an opportunity to show cause as to 
why DEA should not revoke his DEA Certificate of Registration, 
AA2034306, under 21 U.S.C. 824(a)(3), and deny any pending applications 
for renewal of such registration as a practitioner under 21 U.S.C. 
823(f). Specifically, the Order to Show Cause alleged that on or about 
January 26, 1994, the Arizona Board of Medical Examiners revoked the 
Respondent's state medical license, and consequently, the Respondent 
was no longer authorized to handle controlled substances in the State 
of Arizona.
    By letter dated February 24, 1996, the Respondent filed a timely 
request for a hearing, and the matter was docketed before 
administrative Law Judge Mary Ellen Bittner. On March 5, 1996, Judge 
Bittner issued an Order for Prehearing Statements. On March 14, 1996, 
in lieu of filing such a statement, the Government filed a motion for 
summary disposition, which was accompanied by a copy of the Board of 
Medical Examiners of the State of Arizona's (Board) Findings of Fact, 
Conclusions of Law and Order of Revocation dated January 26, 1994. Also 
attached to the Government's motion was a copy of a letter from a 
medical investigator for the Board to DEA dated August 31, 1995, 
stating that Respondent's license to practice medicine in Arizona 
remained revoked. In addition, Government counsel represented in its 
motion that on March 14, 1996, he had telephonically contacted the 
Board and confirmed that Respondent's license to practice medicine in 
Arizona had not been restored.
    On March 14, 1996, Judge Bittner issued an order providing 
Respondent up to and including April 5, 1996, to file a response to the 
Government's motion. However, the Respondent did not file a response, 
and on April 30, 1996, Judge Bittner issued her Opinion and Recommended 
Decision. Judge Bittner found that Respondent lacked authorization to 
handle controlled substances in the State of Arizona; granted the 
Government's motion for summary disposition; and recommended that 
Respondent's DEA Certificate of Registration be revoked. Neither party 
filed exceptions to her decision, and on May 30, 1996, Judge Bittner 
transmitted the record of these proceedings to the Deputy 
Administrator.
    The Acting 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 Acting Deputy Administrator adopts, in full, the Opinion and 
Recommended Ruling of the Administrative Law Judge.
    The Acting Deputy Administrator finds that on January 26, 1994, the 
Board of Medical Examiners for the State of Arizona revoked 
Respondent's license to practice medicine in the State of Arizona. 
Therefore, Respondent is not currently authorized to handle controlled 
substances in the State of Arizona. The Drug Enforcement Administration 
lacks statutory authority to issue or maintain the registration of a 
practitioner who is not duly authorized to handle controlled substances 
in the state in which he conducts has practice. 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Therial L. Bynum, M.D., 61 FR 3948 (1996); Charles L. Novosad, Jr., 
M.D., 60 FR 47182 (1995); Dominick A. Ricci, M.D., 58 FR 51104 (1993).
    Judge Bittner also properly granted the Government's motion for 
summary disposition. Respondent did not file a response to the 
Government' motion. Respondent presented no evidence to contradict the 
fact that his license to practice medicine in the State of Arizona has 
been revoked, and therefore he is unable lawfully to handle controlled 
substances in that state. 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 Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom 
Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984; see also NLRB v. 
International Association of Bridge, Structural and Ornamental 
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
    Therefore, having considered the facts and circumstances in this 
matter, the Acting Deputy Administrator concludes that Respondent's DEA 
Certificate of Registration should be revoked due to his lack of 
authorization to handle controlled substances in the State of Arizona.
    Accordingly, the Acting 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 0.014, hereby orders that 
DEA Certificate of Registration, AA2034306, previously issued to 
Jonathan Agbebiyi, M.D., be, and it hereby is, revoked, and that any 
pending applications for renewal of such registration be, and they 
hereby are, denied. This order is effective January 9, 1997.

    Dated: December 3, 1996.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 96-31251 Filed 12-9-96; 8:45 am]
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