[Federal Register Volume 62, Number 130 (Tuesday, July 8, 1997)]
[Notices]
[Pages 36574-36575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17656]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 97-2]


Gilbert J. Elian, M.D.; Revocation of Registration

    On August 14, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Gilbert J. Elian, M.D., (Respondent) at his 
registered location in Santa Clara, California, and at his residence in 
Parkland, Florida. The Order to Show Cause notified him of an 
opportunity to show cause as to why DEA should not revoke his DEA 
Certificate of Registration, AE6216611, and deny any pending 
applications for registration pursuant to 21 U.S.C. 823(f) and 
824(a)(3), for reason that he is not currently authorized to handle 
controlled substances in the State of California.
    On October 10, 1996, Respondent filed a request for a hearing in 
which he

[[Page 36575]]

asserted that he is ``still duly licensed in the State of Hawaii and 
such revocation would not allow me to practice medicine with a DEA 
license in the Atate of Hawaii (or any other state).'' In addition, he 
argued that the reason for the revocation of his California medical 
license ``did not concern the use or dispensing of any controlled or 
non-controlled substances.'' The matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. On October 16, 1996, Judge 
Bittner issued an Order for Prehearing Statements. On October 21, 1996, 
the Government filed a Motion for Summary Disposition, alleging that 
effective April 21, 1995, the Medical Board of California (Board) 
revoked Respondent's license to practice medicine in the State of 
California and therefore, he is not authorized to handle controlled 
substances in that state.
    On October 28, 1996, Respondent filed a response to the 
Government's motion, arguing that there are various issues that should 
be presented and argued in a hearing. Respondent however, did not deny 
that he is not currently authorized to handle controlled substances in 
California.
    On April 22, 1997, Judge Bittner issued her Opinion and Recommended 
Decision, finding that Respondent lacked authorization to handle 
controlled substances in the State of California; granting the 
Government's Motion for Summary Disposition; and recommending that 
Respondent's DEA Certificate of Registration be revoked. Neither party 
filed exceptions to her opinion, and on May 22, 1997, Judge Bittner 
transmitted the record of these proceedings to the Acting Deputy 
Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirely, and pursuant to 21 CFR 131.67, 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 Acting Deputy Administrator finds that on July 31, 1991, an 
Administrative Law Judge for the Board issued a Proposed Decision 
recommending that Respondent's medical license be revoked based upon 
his negligent practice of ophthalmology, but that the revocation be 
stayed and that his license be placed on probation for seven years 
subject to various terms and conditions. In a Decision dated May 21, 
1992, the Board adopted the Administrative Law Judge's Proposed 
Decision with some exceptions. Significantly, the Board did not adopt 
the Administrative Law Judge's proposed stay of revocation and instead 
ordered the ``outright revocation'' of Respondent's medical license 
effective June 20, 1992. The Board's order was stayed however, pending 
an appeal to the Los Angeles County Superior Court. Following the 
appeal, the Board issued a Decision dated March 23, 1995, which ordered 
that the revocation originally ordered on May 21, 1992, would be 
effective April 21, 1995. A letter from the Board dated October 18, 
1996, that accompanied the Government's Motion for Summary Disposition, 
indicates that there have been no appeals since the April 23, 1995 
revocation and that Respondent's medical license ``is in a REVOKED 
STATUS.'' Therefore, the Acting Deputy Administrator finds that 
Respondent is not currently authorized to practice medicine in the 
State of California.
    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 Romeo J. Perez, M.D., 62 FR 16,193 (1997); Demetris A. Green, M.D., 
61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993).
    Here, it is clear that Respondent is not licensed to practice 
medicine in California and consequently, it is reasonable to infer that 
he is not authorized to handle controlled substances in that state. 
Since Respondent lacks this state authority, he is not entitled to a 
DEA registration in that state. Respondent argues in his request for a 
hearing that his DEA registration should not be revoked since he is 
currently licensed to practice medicine in Hawaii. The Acting Deputy 
Administrator notes however that Respondent's DEA registration is 
issued to him in California, not Hawaii, and he is not authorized to 
practice medicine in California. Respondent is not precluded from 
applying for a DEA Certificate of Registration for a state where he is 
licensed to practice medicine. Respondent further argues that his DEA 
registration should not be revoked since the revocation of his 
California medical license had nothing to do with controlled or non-
controlled substances. The Acting Deputy Administrator concludes that 
this argument is without merit. If a practitioner is without state 
authority to handle controlled substances, regardless of the reason, 
the practitioner is not entitled to a DEA registration in that state.
    In light of the above, 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 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); United States v. 
Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir. 1971).
    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 AE6216611, previously issued to Gilbert 
J. Elian, M.D., be, and it hereby is, revoked. The Acting Deputy 
Administrator further orders that any pending applications for renewal 
of such registration be, and they hereby are, denied. This order is 
effective August 7, 1997.

    Dated: June 30, 1997.
James S. Milford,
Acting Deputy Adminsitrator.
[FR Doc. 97-17656 Filed 7-7-97; 8:45 am]
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