[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Notices]
[Pages 54732-54733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27378]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 96-18]


Alan L. Ager, D.P.M.; Revocation of Registration

    On December 13, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Alan L. Ager, D.P.M., (Respondent) of Nicasio, 
California, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, AA5561243, and 
deny any pending applications for renewal of such registration as a 
practitioner under 21 U.S.C. 823(f), for reason that his continued 
registration would be inconsistent with the public interest pursuant to 
21 U.S.C. 824(a)(4).
    By letter dated January 17, 1995, Respondent filed a request for a 
hearing, and following prehearing procedures, a hearing was held in San 
Francisco, California on December 10 and 11, 1996, before 
Administrative Law Judge Mary Ellen Bittner. At the hearing, the 
Government called witnesses to testify and introduced documentary 
evidence, however Respondent did not introduce any evidence. After the 
hearing, the Government was the only party to submit proposed findings 
of fact, conclusions of law and argument. On April 6, 1998, Judge 
Bittner issued her Opinion and Recommended Ruling, Findings of Fact, 
Conclusions of Law and Decision, recommending that Respondent's DEA 
Certificate of Registration be revoked. Neither party filed exceptions 
to her decision, and on May 8, 1998, Judge Bittner 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 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, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge, and 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 Respondent is registered 
with DEA as a practitioner to handle controlled substances in Schedules 
II-V. The only controlled substance at issue in these proceedings is 
marijuana which is a Schedule I controlled substance.
    On September 2, 1993, DEA and state law enforcement agents 
participated in the eradication of marijuana at several previously 
identified sites in Marin County, California. Thereafter, the agents 
conducted an aerial surveillance of Respondent's property since there 
was intelligence information that marijuana was being grown there and 
one of the state agents wanted to determine the general layout of the 
property for future thermal imaging. While flying over Respondent's 
property, the agents saw marijuana growing in a shed-like structure on 
the property that had a semitransparent roof. The agents identified the 
marijuana plants due to their distinctive brilliant green color.
    A search warrant was obtained and executed at Respondent's property 
on September 2 and 3, 1993. The search revealed 317 marijuana plants in 
the shed-like structure, 712 marijuana plants in a barn-like structure, 
and 150 marijuana plants in a structure that was constructed with bales 
of hay and a white plastic sheeting roof, for a total of 1,719 
marijuana plants. The agents also discovered electrical lines and fans 
in the haystack structure. Fans are used to facilitate the movement of 
carbon dioxide to the plants which encourages growth and to simulate 
wind which encourages stronger stalks. In addition, the agents found 75 
high intensity discharge lamps in the barn. Lamps such as these are 
used to simulate sunlight and to facilitate the growth of the plants.
    The power company was called to the property to turn off the 
electricity, and an inspection revealed two illegal electrical 
bypasses. The power company estimated the electricity stolen via the 
bypasses was worth $421,000.00, including interest.
    A search of Respondent's residence revealed a 30-gallon garbage can 
containing ``shake'' material (the stalks and stems from marijuana 
plants), a plastic container of ground marijuana leaves, marijuana 
residue on a desk, half-smoked marijuana cigarettes in an ashtray, 
several boxes of rolling paper, several books on marijuana cultivation, 
a 12-gauge shotgun and $12,000.00 cash. The agents also found a key to 
the barn on Respondent's person.
    During the execution of the search warrant, one of the agents 
interviewed Respondent's ex-wife. She stated that Respondent had been 
growing marijuana at his residence for 14 years; that the bulk of the 
family income came from marijuana sales; and that a friend of 
Respondent's hooked up the electrical bypasses.
    Random samples of the plants were taken from all three buildings 
and analyzed. All of the samples were found to contain marijuana.
    On September 22, 1993, Respondent was indicted in the United States 
District Court for the Northern District of California and charged 
under 21 U.S.C. 841(a)(1) with manufacturing and possessing marijuana 
with intent to distribute. On January 31, 1995, a Superseding 
Information charged Respondent with structuring currency transactions 
in violation of 32 U.S.C. 5324(3) and 5322(a). Specifically, the 
Information charged that Respondent did ``structure and assist in 
structuring * * * currency transactions with one or more domestic 
financial institutions, by causing approximately $129,100.00 in 
currency (all of which constituted the proceeds of marijuana 
trafficking) to be deposited in, exchange and credited to bank accounts 
at various banks * * *.'' Pursuant to a plea agreement, Respondent pled 
guilty to currency structuring and agreed to forfeit $129,100.00. On 
April 25, 1995, Respondent was convicted of the charge and was placed 
on probation for a term of three years, ordered to forfeit $129,000.00, 
ordered to perform 600 hours of community service, and fined 
$10,000.00.
    On August 19, 1996, a local deputy sheriff participated in an 
aerial overflight of Respondent's property. He identified marijuana 
plants due to their distinctive green color. The plants were growing at 
the bottom of a slope on the property. Two subsequent flyovers by the 
deputy sheriff and others confirmed the deputy's opinion that marijuana 
was growing on Respondent's property. On September 11, 1996, a search 
warrant was executed at Respondent's property which revealed a total of 
135 marijuana plants. These plants were subsequently analyzed which 
confirmed that the plants were marijuana. A search of Respondent's 
residence revealed dried marijuana and ``shake'' material.
    On September 16, 1996, Respondent was charged in a criminal 
complaint with violation of California Health and Safety Code Section 
11358, a felony, for the willful and unlawful planting, cultivating, 
harvesting, drying and processing of marijuana. There is no evidence in 
the record of these

[[Page 54733]]

proceedings as to the disposition of these charges.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny and 
pending applications, if he determines that the continued registration 
would be inconsistent with the public interest. Section 823(f) requires 
that the following factors be considered:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health or 
safety. These factors are to be considered in the disjunctive; the 
Deputy Administrator may rely on any one or a combination of factors 
and may give each factor the weight he deems appropriate in determining 
whether a registration should be revoked or an application for 
registration be denied. see Henry J. Schwartz, Jr., M.D., Docket No. 
88-42, 54 FR 16,422 (1989).
    As to factor one, there is no evidence that any action has been 
taken against Respondent's license to practice medicine or handle 
controlled substances in California. However, the Acting Deputy 
Administrator agrees with Judge Bittner's finding that this factor is 
not dispositive ``inasmuch as state licensure is a necessary but not 
sufficient condition for DEA registration.''
    There is also no evidence regarding Respondent's experience in 
dispensing or conducting research with Schedule II-V controlled 
substances, the schedules that he's registered to handle. In addition, 
there is no evidence that Respondent has ever been convicted of a crime 
related specifically to the handling of controlled substances.
    But, there is more than ample evidence that Respondent failed to 
comply with Federal and State laws relating to controlled substances. 
He operated an elaborate and sophisticated marijuana cultivation 
enterprise on his property in 1993. Then in 1996, following the 
dismantling of this operation, his arrest and conviction, Respondent 
continued to cultivate marijuana and was again arrested and charged for 
this conduct.
    Respondent's blatant disregard for the laws relating to controlled 
substances clearly justifies the revocation of his DEA Certificate of 
Registration. At the hearing, Respondent offered no explanation for his 
conduct nor any assurances that he will no longer engage in the illegal 
manufacture of marijuana. As Judge Bittner and Government counsel note, 
a negative inference may be drawn from Respondent's silence. See 
Raymond A. Carlson, M.D., 53 FR 7425 (1988). Therefore, the Acting 
Deputy Administrator agrees with Judge Bittner's conclusion that 
Respondent's continued registration would be inconsistent with the 
public interest.
    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.F.R. 0.100(b) and 0.104, hereby orders 
that DEA Certificate of Registration AA5561243, previously issued to 
Alan L. Ager, D.P.M., 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 12, 1998.

    Dated: October 5, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-27378 Filed 10-9-98; 8:45 am]
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