[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Notices]
[Pages 15806-15807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7928]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-30]


William Franklin Prior, Jr., M.D. Denial of Application

    On April 7, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to William Franklin Prior, Jr., M.D. (Respondent) 
of South Carolina and New Mexico. 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 BP5105890 \1\ issued to him in New Mexico 
and deny any pending applications for renewal of that registration, 
pursuant to 21 U.S.C. 823(f), 824(a)(1) and (a)(4), for reason that he 
materially falsified an application for registration and his continued 
registration would be inconsistent with the public interest. The Order 
to Show Cause also proposed to deny Respondent's pending application, 
executed on September 21, 1994, for registration as a practitioner with 
DEA in South Carolina, Pursuant to 21 U.S.C. 823(f) for reason that 
Respondent's registration would be inconsistent with the public 
interest.
---------------------------------------------------------------------------

    \1\ While the Order to Show Cause listed BP5105890 as 
Respondent's DEA registration number in New Mexico, evidence in the 
record shows that Respondent's New Mexico DEA Certificate of 
Registration is BP5105590.
---------------------------------------------------------------------------

    By letter dated May 19, 1998, Respondent filed a request for a 
hearing regarding his New Mexico DEA Certificate of Registration and 
stating that ``[t]he application for renewal in South Carolina has now 
been withdrawn. * * * '' The matter was docketed before Administrative 
Law Judge Mary Ellen Bittner. On May 26, 1998, Judge Bittner issued an 
Order for Prehearing Statements. In lieu of filing a prehearing 
statement, on June 16, 1998, the Government filed a Motion to Terminate 
the Proceedings, Motion for Summary Disposition and Motion to Stay 
Proceedings. In its filing, the Government contended that pursuant to a 
criminal plea agreement entered into on April 14, 1998, Respondent 
agreed to surrender his New Mexico DEA Certificate of Registration and 
to withdraw any pending applications for registration with DEA. The 
Government argued that as a result, there is nothing to revoke or deny 
and therefore these proceedings should be terminated. In addition, the 
Government contended that Respondent's application for a DEA 
registration in South Carolina should be denied because he is not 
authorized to handle controlled substances in that state. In his 
response to the Government's motions, Respondent requested that his 
``credentials be returned,'' and asked Government counsel to help him 
``ask the ALJ to allow my placing of credentials with Judge Simons to 
be temporary.''
    On August 14, 1998, Judge Bittner issued her Opinion and 
Recommended Decision, terminating the proceedings regarding 
Respondent's New Mexico DEA Certificate of Registration; denying the 
Motion to Terminate the proceedings regarding Respondent's application 
for a DEA Certificate of Registration in South Carolina; finding that 
Respondent lacked authorization to handle controlled substances in the 
State of South Carolina; granting the Government's Motion for Summary 
Disposition regarding Respondent's application for a DEA registration 
in South Carolina; and recommending that Respondent's application be 
denied. Neither party filed exceptions to her opinion, and on September 
14, 1998, Judge Bittner transmitted the record of these proceedings to 
the Acting Deputy Administrator.
    The 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 Deputy Administrator adopts, in full, the Opinion and Recommended 
Decision of the Administrative Law Judge.
    The Deputy Administrator finds that pursuant to a plea agreement 
entered into by Respondent on April 14, 1998, in the United States 
District Court for the District of South Carolina, Respondent agreed 
``to surrender any DEA registration number, especially number 
BP5105590. * * * '' According to the affidavit of a DEA investigator 
dated June 12, 1998, Respondent surrendered his DEA Certificte of 
Registration to the judge who presided over the criminal proceedings 
against him, and on June 8, 1998, the investigator retrieved 
Respondent's Certificate of Registration from the judge's office.
    Judge Bittner found that in light of the above and the fact that 
Respondent does not deny that he surrendered his New Mexico DEA 
registration, ``the issue of whether or not to revoke it is moot.'' 
Accordingly, Judge Bittner terminated the proceedings with respect to 
DEA Certificate of Registration BP5105590. The Deputy Administrator 
agrees with Judge Bittner's conclusion regarding Respondent's DEA 
Certificate of

[[Page 15807]]

Registration issued to him in new Mexico.
    The Deputy Administrator further finds that pursuant to the April 
14, 1998 plea agreement, Respondent also agreed ``to withdraw any 
application for a DEA registration number.'' In its motions, the 
Government asserted that pursuant to 21 CFR 1301.16(a), Respondent 
needed permission from DEA before he could withdraw his application 
since the Order to Show Cause had been previously issued on April 7, 
1998. Consequently, the Government attached to its motions a copy of a 
letter from the DEA Deputy Assistant Administrator, Office of Diversion 
Control which stated that, ``[i]n response to your plea agreement * * * 
you are hereby granted permission to withdraw your application dated 
September 21, 1994, for a Drug Enforcement Administration Certificate 
of Registration.'' As a result, the Government argued that the 
proceedings regarding Respondent's application for a DEA Certificate of 
Registration in South Carolina should be terminated in light of 
Respondent's plea agreement and DEA's granting of permission to 
withdraw the application.
    However, Judge Bittner concluded that the record does not contain 
any evidence that Respondent in fact withdrew his September 14, 1994 
application for registration. Pursuant to the plea agreement Respondent 
only agreed to withdraw any pending applications for registration. 
Further, while the letter from the Deputy Assistant Administrator 
granted Respondent permission to withdraw his application, he indicates 
that he did so in response to the plea agreement. Judge Bittner noted 
that in his request for a hearing Respondent stated that ``[t]he 
application for renewal in South Carolina has now been withdrawn.'' 
However, Judge Bittner concluded that this is not sufficient evidence 
to support a finding that Respondent took any action to withdraw his 
application. As a result, Judge Bittner concluded, and the Deputy 
Administrator agrees, that Respondent has not withdrawn his September 
21, 1994 application and therefore the proceedings regarding this 
application are not terminated.
    With respect to the application for registration in South Carolina, 
the Government also argued that summary disposition should be granted 
based on Respondent's lack of authorization to handle controlled 
substances in South Carolina. The Deputy Administrator finds that by 
letter dated September 27, 1994, the South Carolina Department of 
Health and Environmental Control denied Respondent's application for a 
controlled substance registration. In his response to the Government's 
motions, Respondent did not deny that he is without authorization to 
handle controlled substances in South Carolina. Therefore, the Deputy 
Administrator concludes that Respondent is not currently authorized to 
handle controlled substances in South Carolina.
    The DEA does not have the 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 16193 (1997); Demetris A. Green, M.D. 
61 FR 60728 (1996); Dominick A. Ricci, M.D., 58 FR 51104 (1993).
    Here it is clear that Respondent is not licensed to handle 
controlled substances in South Carolina. Therefore, he is not entitled 
to a DEA registration in that state.
    In light of the above, Judge Bittner properly granted the 
Government's Motion for Summary Disposition regarding Respondent's 
application for registration in South Carolina. Here, there is no 
dispute that Respondent is without authorization to handle controlled 
substances in South Carolina. Therefore, 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 32887 
(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 (9th Cir. 1971).
    Accordingly, the 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 the 
proceedings regarding DEA Certificate of Registration BP5105590, 
previously issued to William Franklin Prior, Jr., M.D., be, and they 
hereby are, terminated. The Deputy Administrator further orders that 
the September 14, 1994 application for registration submitted by 
William Franklin Prior, Jr., M.D., be, and it hereby is, denied. This 
order is effective April 1, 1999.

    Dated: March 15, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-7928 Filed 3-31-99; 8:45 am]
BILLING CODE 4410-09-M