[Federal Register Volume 62, Number 202 (Monday, October 20, 1997)]
[Notices]
[Pages 54468-54469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27638]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 97-21


Robert M. Binenfeld, M.D. Revocation of Registration

    On June 23, 1997, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Robert M. Binenfeld, M.D., (Respondent), of 
Monroe, New York. 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, AB4921210, pursuant to 21 U.S.C. 
824(a)(3), and deny any pending applications for registration pursuant 
to 21 U.S.C. 823(f), for reason that he is not currently authorized to 
handle controlled substances in the State of New York.
    On July 11, 1997, Respondent filed a request for a hearing, and the 
matter was docketed before Administrative Law Judge Gail A. Randall. On 
July 21, 1997, Judge Randall issued an Order for Prehearing Statements. 
Thereafter, on August 8, 1997, the Government filed a Motion for 
Summary Disposition and Motion to Stay Proceedings, alleging that 
effective December 19, 1994, the State of New York, Department of 
Health, State Board for Professional Medical Conduct (Board) revoked 
Respondent's license to practice medicine and therefore, Respondent is 
not authorized to handle controlled substances in that state.
    On August 11, 1997, Judge Randall issued an Order providing 
Respondent with an opportunity to respond to the Government's motion. 
In addition, Judge Randall stayed the proceedings pending her ruling on 
the Government's motion.
    On August 21, 1997, Respondent filed a response to the Government's 
motion, arguing that, ``[m]any statements made by the [Board] are 
untrue.'' Respondent however, did not deny that he is not currently 
authorized to handle controlled substances in the State of New York.
    On August 26, 1997, Judge Randall issued her Opinion and 
Recommended Decision, finding that Respondent lacked authorization to 
handle controlled substances in the State of New York; 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 October 1, 1997, Judge Randall 
transmitted the record of these proceedings to the Acting 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 Decision of the Administrative Law Judge.
    The Acting Deputy Administrator finds that the Hearing Committee of 
the Board issued a Decision and Order dated August 26, 1994, finding 
among other things, that Respondent committed gross negligence, gross 
incompetence, negligence and incompetence in his practice of medicine. 
As a result, the Hearing Committee ordered the revocation of 
Respondent's license to practice medicine in the State of New York. 
Effective December 19, 1994, the Board's Administrative Review Board 
affirmed the Hearing Committee's decision to revoke Respondent's 
medical license. Subsequently, on February 21, 1995, the State of New 
York, supreme Court-Appellate Division, Third Judicial Department 
denied Respondent's request for a stay of the Board's order.
    Therefore, the Acting Deputy Administrator finds that Respondent is 
not currently authorized to practice medicine in the State of New York. 
As a result, the Acting Deputy Administrator concludes that it is 
reasonable to infer that Respondent is not authorized to handle 
controlled substances in that state.
    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

[[Page 54469]]

16,193 (1997); Demetris A. Green, M.D., 61 FR 60,728 (1996); Dominick 
A. Ricci, M.D., 58 FR 51,104 (1993). Since Respondent lacks authority 
in the State of New York to handle controlled substances, he is not 
entitled to a DEA registration in that state.
    While, Respondent argues that many untrue statements were made by 
the Board in revoking his license to practice medicine, he does not 
dispute that he is currently not authorized to handle controlled 
substances in the State of New York. Under the circumstances, Judge 
Randall properly granted the Government's Motion for Summary 
Disposition. 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 C.R.F. 0.100(b) and 0.104, hereby orders 
that DEA Certificate of Registration AB4921210, previously issued to 
Robert M. Binenfeld, 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 November 19, 1997.

    Dated: October 10, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-27638 Filed 10-17-97; 8:45 am]
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