[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Notices]
[Pages 62074-62075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30592]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 97-13]


Vincent A. Piccone, M.D.; Revocation of Registration

    On February 25, 1997, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Vincent A. Piccone, M.D., (Respondent), of 
Staten Island, New York, notifying him of an opportunity to show cause 
as to why DEA should not revoke his DEA Certificate of Registration 
AP3110765, and deny any pending applications for renewal of such 
registration as a practitioner 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 New York.
    By letter dated March 14, 1997, Respondent, through counsel, timely 
filed a request for a hearing, and the matter was docketed before 
Administrative Law Judge Gail A. Randall. On March 25, 1997, the 
Government filed a Motion for Summary Disposition, alleging that 
effective September 18, 1995, the Administrative Review Board of the 
State of New York, Department of Health, State Board for Professional 
Medical Conduct (Board), sustained the decision of the Board's Hearing 
Committee to revoke Respondent's license to practice medicine in the 
State of New York, and therefore, Respondent is not currently 
authorized to handle controlled substances in the State of New York.
    On March 25, 1997, Judge Randall issued a Memorandum and Order 
providing Respondent with an opportunity to respond to the Government's 
motion and ordering that the filing of prehearing statements be held in 
abeyance until there is a resolution of the Government's motion. 
Respondent's counsel submitted a letter dated April 25, 1997, 
requesting a stay of the proceedings, ``until I have had the 
opportunity to inspect the record in this case pursuant to 21 CFR 
1301.46.'' Respondent's counsel further asserted

[[Page 62075]]

that, ``[i]n preparing my response to the pending motion, it has become 
evident to me that I do not have certain documents.'' On April 30, 
1997, the Government submitted its Response to Respondent's Request for 
a Stay, arguing that Respondent already has copies of all of the 
documents that make up the record in this proceeding, and that 
``neither the Administrative Procedures Act nor DEA regulations provide 
for Respondent's prehearing discovery or examination of DEA 
investigative materials.'' The Government requested that Respondent's 
request for a stay be denied. Thereafter, on May 1, 1997, Judge Randall 
issued her Memorandum and Order agreeing with the Government's position 
and denying Respondent's request for a stay of the proceedings. 
Respondent was given until May 9, 1997, to respond to the Government's 
Motion for Summary Disposition.
    Subsequently, Respondent submitted its Opposition to Government's 
Motion for Summary Disposition dated May 10, 1997, arguing that ``the 
issue of fact remains that the Respondent's licenses were NOT revoked 
in the States of Pennsylvania and New Jersey after recent hearings 
resulting from the New York revocation.'' Respondent contended that 
``[t]he government bears the burden of proof to address the status of 
the Respondent's medical licensure nationally and then apply the 
applicable DEA regulations and has failed to do so.'' Accordingly, 
Respondent requested that the Government's motion be denied.
    On May 13, 1997, Judge Randall issued her Memorandum and Order 
denying the Government's Motion for Summary Disposition. Judge Randall 
found that there is no dispute that Respondent is not currently 
authorized to handle controlled substances in the State of New York. 
The Administrative Law Judge concluded that DEA does not have the 
statutory authority to maintain a registration, if the registrant is 
without authorization to handle controlled substances in the state in 
which he practices. However, Respondent does maintain state licensure 
in Pennsylvania and New Jersey, and there was nothing before the 
Administrative Law Judge that asserted the location on the DEA 
Certificate of Registration in dispute. Consequently, Judge Randall 
found that ``there is a genuine issue of material fact, and this matter 
currently is not appropriate for summary disposition.''
    Judge Randall then issued an Order for Prehearing Statements, and 
on May 14, 1997, the Government filed its prehearing statement. 
Respondent was given until June 25, 1997, to file his prehearing 
statement. In her Order for Prehearing Statements, the Administrative 
Law Judge cautioned Respondent ``that failure to file timely a 
prehearing statement as directed above may be considered a waiver of 
hearing and an implied withdrawal of a request for hearing.'' On August 
4, 1997, Judge Randall issued an Order indicating that she had not yet 
received a prehearing statement from Respondent; reminding Respondent 
that failure to timely file a prehearing statement from Respondent; 
reminding Respondent that failure to timely file a prehearing statement 
may be deemed a waiver of hearing; and giving Respondent until August 
20, 1997, to file such a statement along with a motion for late 
acceptance.
    On August 27, 1997, the Administrative Law Judge issued an Order 
Terminating Proceedings, finding that Respondent has failed to file a 
prehearing statement, and therefore concluding that Respondent has 
waived his right to a hearing. Judge Randall noted that the record 
would be transmitted to the Acting Deputy Administrator for entry of a 
final order based upon the investigative file. Therefore, the Acting 
Deputy Administrator, finding that Respondent has waived his right to a 
hearing, hereby enters his final order without a hearing and based upon 
the investigative file, pursuant to 21 CFR 1301.43(e) and 1301.46.
    The Acting Deputy Administrator finds that Respondent currently 
possesses DEA Certificate of Registration AP3110765 in Schedules II 
through V issued to him at an address in Staten Island, New York. One 
June 7, 1995, the Hearing Committee on the Board ordered the revocation 
of Respondent's license to practice medicine in the State of New York 
based upon a finding that Respondent practiced the medical profession 
while impaired by mental disability from approximately 1986 through 
1994, and a finding that Respondent has a psychiatric condition which 
impairs his ability to practice the medical profession. In a Decision 
and Order effective September 18, 1995, the Board's Administrative 
Review Board sustained the Hearing Committee's findings and revocation 
of Respondent's New York medical license.
    The Acting Deputy Administrator finds that in light of the fact 
that Respondent is not currently licensed to practice medicine in the 
State of New York, it is reasonable to infer that he is not currently 
authorized to handle controlled substances in that state. Respondent 
does not dispute that he is not currently authorized to practice 
medicine or handle controlled substances in the State of New York.
    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 Fed. Reg. 16,193 (1997); Demetris A. Green, 
M.D., 61 Fed. Reg. 60,728 (1996); Dominick A. Ricci, M.D., 58 Fed. Reg. 
51,104 (1993).
    Here it is clear that Respondent is not currently authorized to 
handle controlled substances in the State of New York, the state where 
he is registered with DEA. Therefore, Respondent is not entitled to a 
DEA registration in that state.
    Respondent has argued that he is licensed to practice medicine in 
Pennsylvania and New Jersey. However, the Acting Deputy Administrator 
concludes that the fact that Respondent is licensed to practice 
medicine in states other than New York is irrelevant since he is not 
authorized to practice in the state where he is registered with DEA and 
he has not sought to modify his current registration to another state.
    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 AP3110765, previously issued to Vincent 
A. Piccone, 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 December 22, 1997.

    Dated: November 13, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-30592 Filed 11-19-97; 8:45 am]
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