[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Notices]
[Pages 14945-14946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7881]
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DEPARTMENT OF JUSTICE
[Docket No. 95-25]
Jesus R. Juarez, M.D. Revocation of Registration
On February 27, 1995, the Deputy Assistant Administrator, Office of
Division Control, Drug Enforcement Administration (DEA) issued an Order
to Show Cause to Jesus R. Juarez, M.D. (Respondent), of Fresno,
California, notifying him of an opportunity to show cause as to why DEA
should not revoke his DEA Certificate of Registration BJ0925290, and
deny any pending applications for renewal of such registration as a
practitioner under 21 U.S.C. 823(f). The Order to Show Cause alleged as
grounds for the proposed action that Respondent's continued
registration would be inconsistent with the public interest pursuant to
21 U.S.C. 824(a)(4), and that pursuant to 21 U.S.C. 824(a)(2),
Respondent had been convicted of a controlled substance related felony
offense.
Respondent, through counsel, filed a timely request for a hearing,
and the matter was docketed before Administrative Law Judge Mary Ellen
Bittner. Following prehearing procedures, a hearing was held on
February 27 and 28, 1996, in Fresno, California. After the hearing,
both parties submitted proposed findings of fact, conclusions of law
and argument. On July 24, 1996, while the matter was still pending
before Judge Bittner, counsel for the Government filed a Motion for
Summary Disposition, alleging that Respondent is currently without
authority to handle controlled substances in the State of California.
The motion was supported by a copy of the Proposed Decision of an
Administrative Law Judge for the Medical Board of California
recommending that Respondent's state license to practice medicine be
revoked, and by a copy of the Decision of the Medical Board dated July
10, 1996, adopting the Proposed Decision effective August 9, 1996.
Respondent filed a response to the Government's Motion for Summary
Disposition on August 15, 1996, stating that the Medical Board's
decision was not yet final because Respondent had petitioned for a
rehearing, and if unsuccessful, would seek judicial review of the
Medical Board's action. Respondent, however, did not deny that he was
currently without authority to handle controlled substances in the
State of California.
Thereafter, on August 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 California and therefore, he was not entitled to a DEA
registration in that state; granting the Government's Motion for
Summary Disposition; and recommending that Respondent's application for
DEA registration be denied. Neither party filed exceptions to her
opinion, and on September 23, 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 finds that on June 20, 1996, an
Administrative Law Judge for the Medical Board of California
recommended that Respondent's license to practice medicine in the State
of California be revoked. On July 10, 1996, the Medical Board of
California adopted the Proposed Decision of the Administrative Law
Judge effective August 9, 1996. As Judge Bittner noted, it is
reasonable to infer ``that because [Respondent] is not authorized to
practice medicine, he is also not authorized to handle controlled
substances.'' Respondent argues that the revocation of his license to
practice medicine in the State of California is not yet final because
he is seeking a rehearing before the Medical Board. However, Respondent
does not dispute that he is currently without authority to handle
controlled substances in California.
The DEA does not have the 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 business. 21 U.S.C. 801(21), 823(f),
and 824(a)(3). This prerequisite has been consistently upheld. See
Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104 (1993); James H. Nickens,
M.D., 57 Fed. Reg. 59,847 (1992); Roy E. Hardman, M.D., 57 Fed. Reg.
49,195 (1992). Accordingly, the Acting Deputy Administrator concurs
with Judge Bittner's conclusion that Respondent is not currently
authorized to handle controlled substances in the State of California
and therefore is not entitled to a DEA registration in that state. The
Acting Deputy Administrator concurs with Judge Bittner's recommendation
that Respondent's application be denied, but also finds that
Respondent's DEA registration must be revoked based upon his lack of
authorization to handle controlled substances in California.
The Acting Deputy Administrator finds that Judge Bittner 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 California. 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 Fed.
Reg. 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).
The Acting Deputy Administrator concludes that because Respondent
is not entitled to a DEA registration due to his lack of state
authorization to handle controlled substances, it is unnecessary to
address whether Respondent's registration should be revoked based upon
the grounds alleged in the Order to Show Cause.
[[Page 14946]]
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 0.104, hereby orders that
DEA Certificate of Registration BJ0925290, previously issued to Jesus
R. Juarez, M.D., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for the
renewal of such registration be, and they hereby are, denied. This
order is effective April 28, 1997.
Dated: March 14, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-7881 Filed 3-27-97; 8:45 am]
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