[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Notices]
[Pages 54733-54734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27379]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-19]


Garth A.A. Clark, M.D.; Revocation of Registration

    On January 8, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Garth A.A. Clark, M.D. (Respondent) of Texas 
notifying him of an opportunity to show cause as to why DEA should not 
revoke his DEA Certificate of Registration BC2334364, 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 Texas.
    By letter dated March 22, 1998, Respondent filed a request for a 
hearing, and the matter was docketed before Administrative Law Judge 
Gail A. Randall. On April 2, 1998, the Government filed a Motion for 
Summary Disposition alleging that Respondent's request for a hearing 
was not timely filed and as a result, Judge Randall does not have 
jurisdiction over this matter. In addition, the Government alleged that 
Respondent is no longer authorized by the State of Texas to dispense, 
prescribe, administer or otherwise handle controlled substances. Judge 
Randall issued an Order dated April 8, 1998, wherein she provided 
Respondent until April 27, 1998, to respond to the Government's motion. 
Respondent did not file such a response.
    On May 6, 1998, Judge Randall issued her Opinion and Recommended 
Ruling, concluding that she did have jurisdiction in this matter; 
finding that Respondent lacked authorization to handle controlled 
substances in Texas; 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 June 18, 1998, 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 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.
    The Acting Deputy Administrator finds that the Government argued 
that Respondent did not file a timely request for a hearing. The Order 
to Show Cause was served on Respondent on February 20, 1998, and 
advised Respondent that pursuant to 21 CFR 1301.43(a), he could request 
a hearing within 30 days from the date of receipt of the order. 
Respondent's request for a hearing was dated March 22, 1998, but was 
not filed with DEA until March 26, 1998. Therefore, the Government 
argues that Respondent's request for a hearing was filed three days 
late, and as a result Respondent should be deemed to have waived his 
opportunity for a hearing pursuant to 21 CFR 1301.43(d). Judge Randall 
agreed with the Government's calculation that the request for a hearing 
was filed late. She noted however that Respondent was not represented 
by counsel, and that he prepared the request for a hearing on March 22, 
1998, within the allotted time. Judge Randall also found that the 
Government would not be prejudiced by accepting Respondent's request 
for a hearing.
    Pursuant to 21 CFR 1316.47(b), ``[t]he Administrative Law Judge, 
upon request and showing of good cause, may grant

[[Page 54734]]

a reasonable extension of the time allowed for response to an Order to 
Show Cause.'' Therefore, Judge Randall found ``(1) that the 
Respondent's letter dated March 22, 1998, is deemed as a request to 
accept a late filing, (2) that three days is a reasonable extension of 
time to file this request, and (3) that the Respondent has subsequently 
requested a hearing in this matter within that reasonable time.'' The 
Acting Deputy Administrator agrees with Judge Randall's conclusion that 
she had jurisdiction in this matter.
    As to the merits of this case, the Acting Deputy Administrator 
finds that on February 11, 1997, the Texas State Board of Medical 
Examiners (Board) issued an order temporarily suspending Respondent's 
license to practice medicine in the State of Texas. Subsequently, on 
February 18, 1997, the Texas Department of Public Safety canceled his 
state controlled substance registration.
    In his request for a hearing, Respondent argued that his medical 
license was unjustly suspended by the Board. He requested that DEA 
postpone taking any action against his DEA registration ``until the 
temporary suspension of [his] Texas license is further adjudicated.'' 
However, Respondent did not deny that he is not currently authorized to 
handle controlled substances in Texas.
    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 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 currently authorized to 
handled controlled substances in Texas, where he is registered with 
DEA. Since Respondent lacks this state authority, he is not entitled to 
a DEA registration in that state.
    In light of the above, Judge Randall properly granted the 
Government's Motion for Summary Disposition. It is well settled that 
where there is no material question of fact involved, there is no need 
for a plenary, administrative hearing. Congress did not intend for 
administrative agencies to perform meaningless tasks. Gilbert Ross, 
M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32,887 (1983), 
aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). As Judge 
Randall noted, ``[h]ere, there is no dispute concerning the material 
fact that the Respondent currently lacks state authority to handle 
controlled substances in Texas.''
    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 BC2334364, previously issued to Garth 
A.A. Clark, 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 November 12, 1998.

    Dated: October 6, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-27379 Filed 10-9-98; 8:45 am]
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