[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Notices]
[Pages 6801-6802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3640]


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DEPARTMENT OF JUSTICE
[Docket No. 96-25]


Barbara H. Briner, M.D.; Denial of Application

    On March 19, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Barbara H. Briner, M.D., (Respondent), of Humble 
and Houston, Texas, notifying her of an opportunity to show cause as to 
why DEA should not deny her application for a DEA Certificate of 
Registration as a practitioner under 21 U.S.C. 823(f). The Order to 
Show Cause alleged, in substance, that (1) Respondent's Texas 
Department of Public Safety (DPS) controlled substance registration 
expired on March 31, 1995, and has not been renewed; and (2) by order 
dated June 28, 1995, the Texas State Board of Medical Examiners (Board) 
placed Respondent on probation for five years and prohibited Respondent 
from prescribing, administering or dispensing any controlled 
substances.
    On April 5, 1996, Respondent filed a timely request for a hearing, 
and the matter was docketed before Administrative Law Judge Mary Ellen 
Bittner. On April 17, 1996, Judge Bittner issued an Order for 
Prehearing Statements. On April 23, 1996, in lieu of filing such a 
statement, the Government filed a motion for summary disposition, which 
noted that while Respondent's DPS registration had expired on March 31, 
1995, it was subsequently renewed on February 20, 1996. It further 
alleged however, that Respondent was not currently authorized to handle 
controlled substances in the State of Texas in light of Respondent's 
Agreed Order with the Board effective June 28, 1995. Respondent did not 
submit a response to the Government's motion.
    On June 14, 1996, Judge Bittner issued a ruling denying the 
Government's motion, finding that it was unclear whether the Agreed 
Order prohibited Respondent from handling controlled substances at all 
or whether it merely restricted Respondent's handling of controlled 
substances if both DEA and DPS issue her controlled substance 
registrations. The Judge's ruling did not preclude the Government from 
renewing its motion for summary

[[Page 6802]]

disposition upon clarification from the Board that Respondent is unable 
to handle controlled substances in the State of Texas.
    On June 20, 1996, the Government renewed its motion for summary 
disposition. Its motion was accompanied by a letter from the Board 
dated June 19, 1996, which states that under the Agreed Order, 
Respondent ``is not authorized to `prescribe, administer, or dispense 
any controlled substance' even if the Drug Enforcement Administration 
were to grant her certificate for same.'' Thereafter, on June 21, 1996, 
Judge Bittner issued her Opinion and Recommended Decision, finding that 
based upon the evidence before her, Respondent lacked authorization to 
handle controlled substances in the State of Texas; granting the 
Government's motion for summary disposition; and recommending that 
Respondent's application for a DEA Certificate of Registration be 
denied. Neither party filed exceptions to her opinion, and on July 24, 
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 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 full, the Opinion 
and Recommended Decision of the Administrative Law Judge.
    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/she conducts business. 21 U.S.C. 802(21), 
823(f), and 824(a)(3). 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). 
In the instant case, the record indicates that Respondent is not 
currently authorized to handle controlled substances in the State of 
Texas. As Judge Bittner notes, ``[i]t is equally clear that because 
Respondent lacks this state authority, she is not currently entitled to 
a DEA registration.''
    In her letter dated April 5, 1996, Respondent had noted that the 
terms of the Agreed Order would be subject to amendment one year after 
issuance of the order. However, the Acting Deputy Administrator finds 
that there is nothing in the record to indicate that there has been any 
amendment to the terms of the Agreed Order. Accordingly, the Acting 
Deputy Administrator concurs with Judge Bittner's conclusion that 
Respondent is not currently authorized to handle controlled substances 
and therefore is not entitled to a DEA registration.
    Judge Bittner also properly granted the Government's motion for 
summary disposition. Here, the parties did not dispute the fact that 
Respondent was unauthorized to handle controlled substances in Texas. 
Therefore, it is well-settled that when no question of material fact is 
involved, a plenary, adversary administrative proceeding involving 
evidence and cross-examination of witnesses is not obligatory. See 
Dominick A. Ricci, M.D., supra, (finding it well settled that where 
there is no question of material fact involved, a plenary, adversarial 
administrative hearing was not required.); 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); NLRB v. International Association of Bridge, 
Structural and Ornamental Ironworkers, AFL-CIO, 549 F. 2d 634 (9th Cir. 
1977).
    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 the application submitted by Barbara H. Briner, M.D. for a DEA 
Certificate of Registration be, and it hereby is, denied. This order is 
effective March 17, 1997.

    Dated: February 4, 1997.
[FR Doc. 97-3640 Filed 2-12-97; 8:45 am]
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