[Federal Register Volume 62, Number 26 (Friday, February 7, 1997)]
[Notices]
[Pages 5842-5845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3082]


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DEPARTMENT OF JUSTICE
[Docket No. 95-16]


Mark J. Berger, D.P.M.; Continuation of Registration With 
Restrictions

    On December 23, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Mark J. Berger, D.P.M. (Respondent) of 
Riverwoods, Illinois, notifying him of an opportunity to show cause as 
to why DEA should not revoke his DEA Certificate of Registration, 
BB2461604, and deny any pending applications for renewal of such 
registration as a practitioner under 21 U.S.C. 823(f), for reason that 
his continued registration would be inconsistent with the public 
interest pursuant to 21 U.S.C. 824(a)(4).
    By letter dated January 17, 1995, the Respondent, acting pro se, 
filed a timely request for a hearing, and following prehearing 
procedures, a hearing was held in Chicago, Illinois on April 12, 1995, 
before Administrative Law Judge Mary Ellen Bittner. At the hearing, the 
Government called witnesses and introduced documentary evidence and 
Respondent testified in his own behalf. After the hearing, the 
Government submitted proposed findings of fact, conclusions of law and 
argument, and Respondent submitted a post hearing brief. On April 11, 
1996, Judge Bittner issued her Opinion and Recommended Ruling, Findings 
of Fact, Conclusions of Law and Decision, recommending that 
Respondent's DEA registration not be revoked, but be restricted in that 
Respondent shall not prescribe, administer or otherwise dispense any 
controlled substances for any member of his family or himself, and 
shall handle controlled substances only in treating podiatric patients 
and not for any purpose outside the usual practice of podiatry. Neither 
party filed exceptions to Judge Bittner's Opinion and Recommended 
Ruling, and on May 14, 1996, the record of these proceedings was 
transmitted to the Deputy Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 C.F.R. 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 its entirety, the 
Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law 
and Decision of the Administrative Law Judge. 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 Acting Deputy Administrator finds that Respondent is a 
podiatrist initially licensed to practice in the State of Illinois in 
the early 1980's. However, as of at least March 1984, Respondent had 
never been licensed to handle controlled substances in the State of 
Illinois.
    In March 1984, the Illinois Department of Registration and 
Education (now known as the Department of Professional Regulation and 
hereinafter referred to as DPR) received information from DEA that 
Respondent had recently ordered 500 Quaalude tablets (the brand name 
for methaqualone) after methaqualone had been rescheduled in Illinois 
from Schedule II to Schedule I. As a result of this information, a DPR 
investigator and a local police officer went to Respondent's office on 
March 8, 1984, intending to conduct an administrative search and take 
possession of the Quaalude tablets. Respondent acknowledged ordering 
the Quaalude, but stated that he kept the tablets at his home due to 
recent break-ins or attempted break-ins. Respondent was told that his 
possession of Quaalude was illegal and he agreed to relinquish the 
drugs after seeing his last patient of the day. Subsequently, 
Respondent admitted that he had self-administered 1,000 to 1,500 
Quaalude tablets over a period of approximately a year and a half to 
relieve pain caused by an injury.
    Respondent then consented to a search of his office, which revealed 
an empty bottle labeled 100 Quaalude, an open bottle of Empirin with 
codeine (a Schedule III controlled substance) with 79 tablets missing, 
and an open bottle of diazepam (a Schedule IV controlled substance) 
with 22 tablets missing. Respondent advised the officers that he had no 
records for the dispensation of these controlled substance.
    After being taken into investigative custody, Respondent consented 
to the search of his home. This search revealed two empty 100-tablet 
bottles and one empty 500-tablet bottle of Quaalude, two full 100-
tablet bottles of Quaalude, seven Empirin with codeine tablets, plant 
material suspected to be cannabis, and drug paraphernalia.
    A review of DEA order forms revealed that during the period 
November 11, 1982 through January 23, 1984, Respondent ordered the 
following controlled substances: 2,500 dosage

[[Page 5843]]

units of Quaalude, 100 dosage units of Empirin with codeine #3, 100 
dosage units of Valium 5 mg., 100 dosage units of Valium 10 mg., 500 
Dexedrine 5 mg., and 100 dosage units of Tenuate Dospan 75 mg. 
Respondent did not maintain any records regarding these drugs in 
violation of both state and Federal laws.
    Respondent was subsequently charged in the Circuit Court of Cook 
County, Illinois with one count of possession of cannabis with intent 
to deliver, one count of possession of methaqualone with intent to 
deliver, and one count of unlawful dispensing of methaqualone. 
Following a bench trial, Respondent was convicted on June 18, 1984, of 
possession of a controlled substance and sentenced to three years' 
probation.
    Respondent testified during the hearing before Judge Bittner that 
in 1981 he had ruptured and then re-ruptured his Achilles tendon, and 
that he took methaqualone to enable him to sleep. He further testified 
that he never sold methaqualone or prescribed, administered or 
dispensed it to anyone else and that he realizes in retrospect that he 
should not have taken it.
    On March 23, 1984, DPR filed a complaint against Respondent 
alleging that Respondent obtained and self-administered controlled 
substances when not properly registered to handle controlled substances 
in the State of Illinois. On May 11, 1984, Respondent and DPR entered 
into a Stipulation and Recommendation for Settlement pursuant to which 
Respondent agreed that his license to practice podiatry would be 
indefinitely suspended; he would not petition for restoration of his 
license for at least nine months from the effective date of the 
Podiatry Examining Committee's (Committee) order approving the 
settlement; he would obtain counseling and rehabilitation; and he would 
not apply for an Illinois controlled substance license for at least two 
years after the effective date of the order. On June 20, 1984, the 
Committee approved the Stipulation and Recommendation for Settlement, 
and on July 11, 1984, the Director of DPR issued an order adopting the 
terms of the settlement. Subsequently, on September 19, 1984, 
Respondent surrendered his previous DEA Certificate of Registration.
    Following the reinstatement of his state podiatry license and the 
issuance of his license to handle controlled substances in the State of 
Illinois, Respondent executed a new application dated February 27, 
1990, for DEA registration as a practitioner in Schedules II through V. 
On that application, Respondent answered ``yes'' to the question which 
asked:

    Have you ever been convicted of a crime in connection with 
controlled substances under State or Federal law, or ever 
surrendered or had a DEA registration revoked, suspended or denied, 
or ever had a State professional license or controlled substance 
registration revoked, suspended, denied, restricted or placed on 
probation?

    Applicants who respond affirmatively to this question are required 
to explain their answers on the back of the application form. 
Respondent's explanation referred to his lack of a separate state 
license to handle controlled substance, and his arrest for ordering 
controlled substances without the proper licensure. Respondent claimed 
in his explanation that he ``did not knowingly violate the state 
licensing requirement, since I did not know about it.'' Respondent's 
explanation however, did not mention his conviction for possession of 
methaqualone, the state's suspension of his license to practice 
podiatry, or the surrender of his previous DEA Certificate of 
Registration.
    Following receipt of Respondent's application, the DEA Chicago 
office issued a Notice of Hearing advising Respondent that there would 
be an informal hearing regarding his application. This informal hearing 
resulted in a memorandum of understanding being executed on August 30, 
1990, by Respondent and representatives of the United States Attorney's 
Office and DEA. The memorandum of understanding stated that the Notice 
of Hearing had alleged that (1) Respondent had been the defendant in an 
information charging him with three felony violations of the Illinois 
Controlled Substances Act: possession of more than 30 grams of 
methaqualone with intent to deliver, possession of cannabis with intent 
to deliver, and unlawful dispensing of methaqualone; and (2) Respondent 
had been found guilty of possession of a controlled substance and 
sentenced to three years' probation. The memorandum of understanding 
further stated that Respondent had been ``fully advised of the 
prohibited acts which have occurred'' and had agreed to comply with the 
provisions of the Controlled Substances Act (CSA) and its implementing 
regulations and, more specifically, that he agreed that (1) he would 
``prescribe and dispense controlled substances in strict accordance 
with the [CSA] and the regulations issued thereunder''; (2) ``any 
prescriptions written for controlled substances by the Respondent will 
be for medical purposes and will be issued within the usual course of 
professional practice for which the Respondent is registered with the 
[DEA] and professionally licensed by the State''; (3) ``Respondent's 
handling of controlled substances * * * shall be limited to controlled 
drugs in Schedules III through V and that the Respondent not be allowed 
to handle any controlled substance found in Schedule II for a period of 
not less than one (1) year * * *''; and (4) when renewing his DEA 
registration Respondent would ``answer fully and truthfully any 
question regarding if the Respondent has ever been convicted of a crime 
in connection with controlled substances under State or Federal law, or 
ever surrendered or had a DEA registration revoked, suspended or 
denied, or ever had a State professional license or controlled 
substance registration revoke[d], denied, restricted or placed on 
probation.''
    Other than the memorandum of understanding, there is no other 
evidence in the record as to what was discussed during the course of 
the informal hearing. Shortly after execution of the memorandum of 
understanding, Respondent was issued DEA Certificate of Registration 
BB2461604, however there is nothing in the record to indicate what 
schedules of controlled substances were listed on the Certificate of 
Registration.
    On June 28, 1993, Respondent executed a renewal application for DEA 
registration BB2461604 in Schedules II through V. On this application, 
Respondent had answered ``yes'' to the same question that he had 
answered affirmatively on his 1990 application for registration. 
Respondent testified that he had photocopied his 1990 explanation and 
pasted it onto the back of the 1993 application, stating,

    I was giving what I thought was more new information and I 
wasn't omitting anything purposely. I thought conviction, surrender 
of license, etc., was known to the DEA and there was no reason to 
give a long, detailed explanation of that. I believe this was common 
knowledge.
    Certainly, I didn't falsify anything. I did omit things, but not 
in a purposeful way. I would've gladly listed the things that I 
thought the DEA would've wanted me [sic] on the application, had I 
known that this is what they wanted. I didn't know that.

    Respondent also testified that ``[t]he things that have happened, 
11 years ago, I can't change that. And I'm not trying to exonerate my 
involvement in that.'' However, Respondent further testified that, 
``[f]or the past 11 years, I've been totally in accordance with the 
law. And for the past five years, since receiving my DEA license, I've 
been totally in accordance with the law.''
    During the course of his testimony, Respondent stated that he had 
never falsified any state application. On cross-

[[Page 5844]]

examination, Respondent conceded that he had been convicted of 
attempted petty theft, a misdemeanor, 1970, yet he answered ``no'' on a 
1982 DPR application to the question, ``Have you ever been convicted of 
a criminal offense in Illinois or in another state or in federal court, 
other than a minor traffic violation?'' Respondent explained that he 
answered in the negative because he thought the question referred to 
felony convictions only. As to the conviction, Respondent testified 
that he was 18 years old, and that ``I shouldn't have been [convicted], 
it wasn't even me,'' but upon his attorney's advice, he pled to a 
misdemeanor.
    Respondent contends in his brief that he was prejudiced because the 
Government failed to provide him notice in advance of the hearing that 
the 1982 DPR application would be at issue in these proceedings. At the 
hearing, the Government offered into evidence the 1982 application and 
a police report of the incident that led to his 1970 conviction. Judge 
Bittner properly rejected the admission of these documents into 
evidence since they were not supplied to Respondent in advance of the 
hearing as required by the Administrative Law Judge's prehearing ruling 
on March 29, 1995, and therefore did not consider the application as 
affirmative evidence against Respondent. Judge Bittner did however, 
allow Respondent to be cross-examined about the contents of the 
documents. The Acting Deputy Administrator concurs with Judge Bittner's 
conclusion that, ``a major issue in this proceeding was Respondent's 
alleged misstatements on his application for DEA registration, and in 
these circumstances * * * examination as to his truthfulness in other 
applications was a proper subject of cross-examination, and that the 
Government was entitled to use the prior application and police report 
for impeachment purposes.''
    The Government in its posthearing filing argues that Respondent 
materially falsified two applications for registration and that such 
falsification provides an independent statutory basis for revocation of 
Respondent's DEA Certificate of Registration pursuant to 21 U.S.C. 
824(a)(1). However, the Government did not assert that 21 U.S.C. 
824(a)(1) was a basis for the proposed revocation in either the Order 
to Show Cause or in any of its prehearing filings, and the issue in 
this proceeding, agreed upon by the parties, makes no reference to 
824(a)(1) as a basis for revocation. Therefore, the Acting Deputy 
Administrator does not consider whether Respondent's registration 
should be revoked pursuant to 21 U.S.C. 824(a)(1).
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications, if he determines that he continued reigstration 
would be inconsistent with the public interest. Section 823(f) requires 
that he 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 be 
denied. See Henry J. Schwartz, Jr., M.D., Docket No. 88-42, 54 FR 
16,422 (1989).
    Regarding factor one, it is undisputed that Respondent's license to 
practice podiatry was suspended in 1984. However, it is also undisputed 
that such license was restored sometime prior to his 1990 application 
for DEA registration and that he was issued a state controlled 
substance registration. From the evidence in the record, it appears 
that Respondent has practiced without incident since being issued his 
state licenses. Therefore, the Acting Deputy Administrator concurs with 
Judge Bittner's conclusion that this factor weighs in favor of 
Respondent's continued registration.
    As to factor two, Respondent's experience in dispensing controlled 
substances, it is uncontested that sometime in 1982 until his arrest in 
March 1984, Respondent ordered and self-administered controlled 
substances while not properly registered to handle controlled 
substances in the State of Illinois. The Acting Deputy Administrator 
concludes that the fact that Respondent dispensed controlled substances 
without proper state licensure is properly considered under factor four 
regarding Respondent's compliance with applicable state law. The Acting 
Deputy Administrator concurs with Judge Bittner's conclusion that under 
this factor, the question is whether Respondent's actions would have 
been medically appropriate had he been properly registered with the 
State.
    Respondent claims that he had a legitimate medical reason for using 
the drugs he ordered. The Acting Deputy Administrator concludes that 
Respondent's use of methaqualone after January 1, 1984, when it was 
rescheduled into Schedule I in the State of Illinois, was clearly 
improper. However, the Acting Deputy Administrator agrees with Judge 
Bittner that the record is insufficient to warrant a finding that 
Respondent's self-administration of controlled substances prior to 
January 1, 1984 was for no legitimate medical purpose. There is nothing 
in the record concerning whether the substances are not appropriate to 
treat the conditions for which Respondent used them, whether 
Respondent's treatment of such conditions was outside the scope of his 
practice of podiatry, or whether the self-administration of controlled 
substances was impermissible in the State of Illinois.
    Also relevant to this factor is the Respondent's uncontroverted 
testimony that he never prescribed, administered, or otherwise 
dispensed controlled substances to anyone else, and that he has 
properly handled controlled substances since his DEA registration was 
restored in 1990.
    The Acting Deputy Administrator concurs with Judge Bittner's 
conclusion regarding factor three. While Respondent was charged with 
possession of controlled substances with intent to deliver and with 
unlawful distribution of a controlled substance, he was ultimately 
convicted of possession of methaqualone. Thus, Respondent has no 
conviction record relating to the manufacture, distribution or 
dispensing of controlled substances.
    Regarding factor four, it is undisputed that during the events in 
question in the early 1980's, Respondent failed to maintain records 
regarding his handling of controlled substances in violation of both 
Federal and state law. See 21 U.S.C. Secs. 827 and 842(a)(5) and I.R.S. 
Chap. 56\1/2\ Sec. 1306. In addition, Respondent violated state law 
from 1982 to March 1984, by handling controlled substances when not 
properly registered by the State of Illinois and by possessing 
methaqualone after January 1, 1984, when it was placed into Schedule I 
in Illinois.
    As to factor five, on his 1990 application for registration, 
Respondent did not give a complete explanation for his affirmative 
response to the questions about whether he had ever been

[[Page 5845]]

convicted of a controlled substance related crime, had ever surrendered 
a DEA registration or had one revoked, suspended, denied, or had a 
state professional license or controlled substance registration 
revoked, suspended, denied, restricted or placed on probation. 
Thereafter, Respondent was issued a Notice of Hearing which alleged 
that Respondent had been charged with three felony violations of state 
law and that he had been found guilty of one count of possession of a 
controlled substance. As Judge Bittner correctly notes, ``[a]s far as 
this record shows, the Notice of Hearing did not make any reference to 
Respondent's explanation on his application of his answer to the 
liability question.''
    Respondent then participated in an informal hearing with DEA 
personnel and a representative from the United States Attorney's 
Office. Again as Judge Bittner correctly notes, ``there is no evidence 
about the discussion at that meeting and, more specifically, about 
whether any of the government personnel advised Respondent that his 
statements on his [1990] application for DEA registration were 
inadequate.''
    Respondent ultimately entered into a memorandum of understanding in 
August 1990 wherein he agreed to ``answer fully and truthfully'' the 
questions on renewal applications. However, there is nothing in the 
memorandum of understanding that documents that Respondent was told 
that his previous explanation on the 1990 application was inadequate, 
nor was there any testimony at the hearing as to whether the parties 
discussed the meaning of this provision of the memorandum of 
understanding.
    Respondent was then issued a DEA registration. Given the lack of 
evidence in the record that Respondent was advised that his answer in 
1990 was inadequate, it is reasonable to accept Respondent's 
explanation for giving the same answer on his 1993 renewal application. 
Respondent testified, ``I figured if this was good enough the first 
time, it's good enough the second time.'' Therefore, the Acting Deputy 
Administrator concludes that while Respondent may have technically 
violated the memorandum of understanding by failing to provide full and 
truthful answers on future applications, such a violation is 
understandable given that he was apparently not told his earlier 
explanation was inadequate.
    The Acting Deputy Administrator concurs with Judge Bittner's 
conclusion that the Government has not established by a preponderance 
of the credible evidence that Respondent's continued registration would 
be inconsistent with the public interest. While Respondent handled 
controlled substances from 1982 to March 1984 without proper state 
authorization and failed to maintain the required records, these events 
occurred over 12 years ago, and there is no evidence in the record that 
Respondent has improperly handled controlled substances since being 
issued a DEA registration in 1990. In addition, there is no evidence in 
the record that Respondent was ever advised that the explanation on his 
1990 application was not sufficient, and therefore his use of the same 
explanation on his 1993 application is understandable.
    Judge Bittner recommended that Respondent's registration not be 
revoked, but that it be subject to the following restrictions:
    (1) Respondent shall not prescribe, administer or otherwise 
dispense any controlled substances for any member of his family or 
himself.
    (2) Respondent shall handle controlled substances only in treating 
podiatric patients, and not for any purpose outside the usual practice 
of podiatry.
    Under the circumstances of this case, the Acting Deputy 
Administrator finds Judge Bittner's recommended restrictions to be 
reasonable. Therefore, the Acting Deputy Administrator concludes that 
Respondent's DEA registration should be continued in Schedules II 
through V subject to Judge Bittner's recommended restrictions. It 
should be noted that it is unclear from the record, which schedules 
Respondent is currently registered to handle. He applied for Schedule 
II through V in 1990, however, the memorandum of understanding executed 
in August 1990 states, ``[t]hat Respondent's handling of controlled 
substances pursuant to his Federal controlled substances registration 
upon issuance of such registration by the DEA, shall be limited to 
controlled drugs in Schedules III through V and that Respondent not be 
allowed to handle any controlled substance found in Schedule II for a 
period of not less than one (1) year from the date of the execution of 
the agreement.'' His 1993 renewal application, which is the subject of 
this proceeding, indicates that Respondent wishes his registration to 
be renewed in Schedules II through V. Regardless of Respondent's 
current authorization, the Acting Deputy Administrator concludes that 
in light of all of the evidence, Respondent should be registered in 
Schedules II through V subject to the above-referenced restrictions.
    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 BB2461604, issued to Mark J. 
Beger, D.P.M., be continued, and any pending applications be granted in 
Schedules II through V, subject to the above restrictions. This order 
is effective March 10, 1997.

    Dated: January 30, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-3082 Filed 2-6-97; 8:45 am]
BILLING CODE 4410-09-M