[Federal Register Volume 62, Number 26 (Friday, February 7, 1997)]
[Notices]
[Pages 5849-5850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3051]


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DEPARTMENT OF JUSTICE

Kenneth Kleiner, M.D.; Revocation of Registration

    On October 20, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Kenneth Kleiner, M.D., of Woodside, New York, 
notifying him of an opportunity to show cause as to why DEA should not 
revoke his DEA Certificate of Registration,AK1048203, pursuant to 21 
U.S.C. 824(a)(3), and deny any pending applications for registration 
pursuant to 21 U.S.C. 823(f). Specifically, the Order to Show Cause 
alleged that the State Board for Professional Medical Conduct, State of 
New York, revoked his license to practice medicine in New York by Order 
dated December 15, 1994, and consequently, Dr. Kleiner is without state 
authorization to handle controlled substances in the State of New York.
    The Order to Show Cause was ultimately served upon Dr. Kleiner, and 
by letter dated May 14, 1996, Dr. Kleiner requested ``an adjournment of 
the hearing'' pending the outcome of civil litigation concerning his 
state medical license. On May 21, 1996, the Office of Administrative 
Law Judges sent Dr. Kleiner a letter stating that it is unclear whether 
or not he is requesting a hearing and advising him to respond by June 
5, 1996 to request a hearing, otherwise his right to a hearing will be 
deemed waived. Dr. Kleiner responded by letter dated June 4, 1996, 
stating, ``I respectfully request neither a hearing nor a waiver of 
such hearing, but rather an adjournment until such time as the instant 
matter may be fairly and justly adjudicated,'' apparently referring to 
his pending civil action. Thereafter, on June 14, 1996, Administrative 
Law Judge Mary Ellen Bittner advised Dr. Kleiner that pursuant to 21 
C.F.R. 1301.54(d) and (e), he is deemed to have waived his opportunity 
for a hearing, inasmuch as he has not requested a hearing. Judge 
Bittner further advised Dr. Kleiner that his letters dated May 14 and 
June 4, 1996, would be forwarded to the Deputy Administrator for 
consideration in rendering his decision in this matter.
    The Acting Deputy Administrator concurs with Judge Bittner's 
conclusion that Dr. Kleiner has waived his opportunity for a hearing. 
Therefore, after considering relevant material from the investigative 
file in this matter, as

[[Page 5850]]

well as Dr. Kleiner's letters, the Acting Deputy Administrator now 
enters his final order without a hearing pursuant to 21 C.F.R. 
1301.54(e) and 1301.57.
    The Acting Deputy Administrator finds that by order dated December 
15, 1994, the State Board for Professional Medical Conduct, State of 
New York (Board) revoked Dr. Kleiner's license to practice medicine and 
assessed an $80,000 fine against him. This action was based upon 
findings that Dr. Kleiner prescribed drugs for which there was no 
medical indication; that he indiscriminately prescribed habit-forming 
drugs; that he failed to produce medical records for his patients 
despite being issued a subpoena for the records; that he willfully 
harassed a patient; and, that he exercised undue influence on a 
patient.
    While Dr. Kleiner has indicated in letters dated May 14 and June 4, 
1996, that there is pending civil litigation regarding the Board's 
action, there is no indication in the record that the Board's 
revocation has been stayed pending the outcome of the civil proceeding. 
Consequently, the Acting Deputy Administrator finds that in light of 
the Board's revocation of Dr. Kleiner's medical license, he is not 
currently authorized to handle controlled substances in the State of 
New York.
    The DEA does not have statutory authority under the Controlled 
Substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which he conducts his business. 21 U.S.C. 802(21), 
823(f), and 824(a)(3). This prerequisite has been consistently upheld. 
See Earl G. Rozeboom M.D., 61 Fed. Reg. 60,730 (1996); Charles L. 
Novosad, Jr., M.D., 60 Fed. Reg. 47,182 (1995); Dominick A. Ricci, 
M.D., 58 Fed. Reg. 51,104 (1993). Here, Dr. Kleiner is not entitled to 
a DEA registration.
    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 C.F.R. 0.100(b) and 0.104, hereby orders 
that DEA certificate of Registration, AK1048203, previously issued to 
Kenneth Kleiner, M.D., be, and it hereby is, revoked. The Acting Deputy 
Administrator further orders that any pending applications for 
registration be, and they hereby are, denied. This order is effective 
March 10, 1997.

    Dated: January 28,1 997
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-3051 Filed 2-6-97; 8:45 am]
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