[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Notices]
[Pages 8687-8688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4359]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 96-8]


Samuel Arnold, D.D.S.; Reprimand and Continuation of Registration

    On November 1, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Samuel Arnold, D.D.S. (Respondent) of Fairborn, 
Ohio, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, BA4089620, 
pursuant to 21 U.S.C. 824(a)(1), 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 that Respondent materially falsified 
his July 7, 1994 application for registration with DEA.
    By letter dated November 24, 1995, Respondent filed a timely 
request for a hearing, and following prehearing procedures, a hearing 
was held in Dayton, Ohio on October 22, 1996, before Administrative Law 
Judge Mary Ellen Bittner. At the hearing, both parties called witnesses 
to testify and the Government introduced documentary evidence. After 
the hearing, Government counsel submitted proposed findings of fact, 
conclusions of law and argument. Respondent did not submit any 
posthearing filing. On November 25, 1997, Judge Bittner issued her 
Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law 
and Decision, recommending that Respondent's registration not be 
revoked, but that Respondent be issued a reprimand. Neither party filed 
exceptions to Judge Bittner's Opinion and Recommended Ruling, and on 
January 9, 1998, the record was transmitted to the Acting Deputy 
Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 CFR 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 Ruling of the Administrative Law Judge. His adoption is in 
no manner diminished by any recitation of facts, issues and conclusions 
herein, or of any failure to mention a matter of fact or law.
    The Acting Deputy Administrator finds that the Ohio State Dental 
Board (Board) issued a Notice of Opportunity for Hearing to Respondent 
on June 20, 1991, alleging that Respondent had charged the Ohio 
Department of Human Services for services to 29 nursing home patients 
that he did not actually perform in violation of state law. As a 
result, Respondent and the Board entered into a Consent Agreement that 
was fully executed on November 21, 1991, in which Respondent admitted 
the allegations in the Notice of Opportunity for Hearing, his license 
to practice dentistry was suspended for one year effective January 1, 
1992, with 60 days stayed, and he was placed on probation for two years 
effective January 1, 1992. Respondent was permitted to resume the 
practice of dentistry on November 1, 1992.
    Upon learning of his state suspension, DEA contacted Respondent on 
January 10, 1992, and requested that he voluntarily surrender his DEA 
registration. Respondent agreed to surrender his registration, but did 
not in fact do so. Instead, Respondent's previous registration was 
ultimately retired, since he did not submit an application for renewal 
of the registration.
    On July 7, 1994, Respondent executed an application for a new DEA 
Certificate of Registration. One question on the application, 
hereinafter referred to as ``the liability question,'' asks, ``Has the 
applicant ever been convicted of a crime in connection with controlled 
substances under State or Federal law, or ever surrendered or had a 
Federal controlled substance registration revoked, suspended, 
restricted or denied, or ever had a State professional license or 
controlled substance registration revoked, suspended, denied, 
restricted or placed on probation?'' Respondent answered ``no'' to this 
question. Respondent's application was approved by the registration 
unit in the DEA Detroit Field Division, and Respondent was issued the 
DEA Certificate of Registration that is the subject of these 
proceedings.
    A DEA investigator testified at the hearing before Judge Bittner 
that had Respondent answered ``yes'' to the liability question his 
application would have been referred to the local DEA office in 
Columbus, Ohio for investigation. The investigator further testified on 
cross-examination however, that had Respondent answered ``yes'' to the 
liability question, his application would ``more than likely'' have 
been granted. The investigator further testified that there was nothing 
that would lead him to believe Respondent intentionally tried to 
circumvent DEA procedures to acquire a DEA registration, and that there 
had never been any charges or allegations relating to Respondent's 
handling of controlled substances.
    Two individuals testified on behalf of Respondent, his office 
manager and the dental technician who owns and operates the dental 
laboratory that is located in Respondent's office. Both testified that 
they overhead a conversation between Respondent and an unidentified DEA 
employee which was conducted using a speaker telephone so they were 
able to hear both parties to the conversation. The office manager 
testified that the conversation occurred sometime ``in July'' and that 
Respondent asked how he should respond to the liability question in 
light of the Ohio Board's action. The office manager could not 
specifically identify who Respondent talked to, but testified that the 
DEA employee told Respondent that because his Ohio dental license was 
no longer suspended, he should answer the liability question in the 
negative. The dental technician was also unable to specifically 
identify the DEA employee, but testified that the DEA employee 
instructed Respondent to answer the liability questions in the negative 
after ascertaining that Respondent's suspension was unrelated to his 
handling of controlled substances. Both testified that Respondent is 
very cautious in his prescribing of controlled substances.
    Pursuant to 21 U.S.C. 824(a)(1), ``A registration pursuant to 
section 823 of

[[Page 8688]]

this title to * * * dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registration--(1) has materially falsified any application filed 
pursuant to or required by this subchapter or subchapter II of this 
chapter.'' DEA has previously held that in finding that there has been 
a material falsification for purposes of 21 U.S.C. 824(a)(1), it must 
be determined that the applicant knew or should have known that the 
response given to the liability question was false. See, Martha 
Hernandez, M.D., 62 FR 61,145 (1997); Bobby Watts, M.D., 58 FR 4699 
(1993); Herbert J. Robinson, M.D., 59 FR 6304 (1994).
    Here, it is undisputed that Respondent's Ohio dental license had 
been suspended and placed on probation, yet Respondent answered ``no'' 
to the question asking whether he had ``ever had a state professional 
license or controlled substance registration revoked, suspended, 
denied, restricted or placed on probation.'' It is also undisputed that 
Respondent knew that his Ohio dental license had previously been 
suspended. Therefore, the Acting Deputy Administrator concurs with 
Judge Bittner's conclusion ``that Respondent materially falsified his 
application, and that therefore there are grounds to revoke 
Respondent's DEA registration.''
    The question then becomes whether revocation is the appropriate 
sanction in light of the facts and circumstances of this case. 
Respondent argues that although he was aware that his Ohio dental 
license had been suspended, he did not understand the liability 
question. However, DEA has previously held that such an explanation 
does not relieve the applicant of the ``responsibility to carefully 
read the question and to honestly answer all parts of the question.'' 
Martha Hernandez, M.D., 62 FR 61,145, 61,147 (1997).
    Nevertheless, in exercising his discretion in determining the 
appropriate remedy in this case, the Acting Deputy Administrator finds 
it significant that Respondent presented the testimony of two 
individuals who overheard Respondent telephoning someone before 
executing the application. The Acting Deputy Administrator concurs with 
Judge Bittner's finding ``that the telephone call indicates that 
Respondent attempted to comply with the applicable laws and regulations 
related to maintaining a DEA registration.'' While this telephone call 
does not relieve Respondent of the responsibility for falsifying his 
application, it does indicate an effort on his part to answer the 
question correctly.
    Also, in considering the appropriate remedy in this matter, the 
Acting Deputy Administrator has considered that the suspension of 
Respondent's Ohio dental license did not relate to his handling of 
controlled substances. While DEA has revoked registrations in the past 
based upon the material falsification of an application that was not 
related to the mishandling of controlled substances, the Acting Deputy 
Administrator has previously concluded that he must consider all of the 
facts and circumstances of a particular case. See Id. at 61,148. Here, 
Respondent apparently attempted to get guidance on the appropriate 
response to the liability question, the office manager and dental 
technician both testified that Respondent was very cautious in his 
prescribing of controlled substances, and Judge Bittner was favorably 
impressed with ``the manner in which (Respondent) conducted himself at 
the hearing.'' Therefore, the Acting Deputy Administrator agrees with 
Judge Bittner's conclusion that revocation would be too severe a 
sanction given the facts and circumstances of this case.
    However, the Acting Deputy Administrator is troubled by 
Respondent's failure to correctly answer the liability question on the 
application. DEA relies on the truthfulness of the responses to the 
questions on the application. Therefore, the Acting Deputy 
Administrator finds that it is appropriate to reprimand Respondent for 
his failure to accurately respond to the liability question on his 
application for a DEA Certificate of Registration.
    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 reprimands 
Samuel Arnold, D.D.S., for failing to properly complete his DEA 
registration application. The Acting Deputy Administrator further 
orders that DEA Certificate of Registration BA4089620, issued to Samuel 
Arnold, D.D.S., be continued, and any pending applications be granted. 
This order is effective February 20, 1998.

    Dated: February 12, 1998.
[FR Doc. 98-4359 Filed 2-19-98; 8:45 am]
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