[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Notices]
[Pages 25908-25910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12038]
[[Page 25908]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-9]
Robert A. Leslie, M.D.; Denial of Application
On December 23, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Robert A. Leslie, M.D., (Respondent) of Irvine,
California, notifying him of an opportunity to show cause as to why DEA
should not deny his application for registration as a practitioner
under 21 U.S.C. 823(f), for reason that such registration would be
inconsistent with the public interest.
By letter dated January 12, 1998, Respondent, acting pro se,
requested a hearing on the issues raised by the order to show cause.
Following prehearing procedures, a hearing was held in Los Angeles,
California on April 22, 1998, before Administrative Law Judge Gail A.
Randall. At the hearing the Government called a witness to testify and
Respondent testified on his own behalf. Both parties introduced
documentary evidence. After the hearing, the Government submitted
proposed findings of fact, conclusions of law and argument and
Respondent submitted a document entitled ``Legal Issues''. On October
9, 1998, Judge Randall issued her Recommended Rulings, Findings of
Fact, Conclusions of Law, and Decision, recommending that Respondent's
application for a DEA Certificate of Registration be granted subject to
the requirement that he maintain a log of his controlled substance
handling for three years. Both the Government and Respondent timely
filed exceptions to Judge Randall's Recommended Rulings, Findings of
Fact, Conclusions of Law and Decision. Thereafter, on November 24,
1998, Judge Randall transmitted the record of these proceedings to the
then-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 the findings of fact and conclusions of
law of the Administrative Law Judge, but does not adopt Judge Randall's
recommended ruling.
The Deputy Administrator finds that Respondent previously possessed
DEA Certificate of Registration AL0033136. On June 21, 1989, an Order
to Show Cause was issued proposing to revoke that Certificate of
Registration. Initially Respondent requested a hearing, but
subsequently withdrew the request and a final order was issued by the
then-Acting Administrator revoking Respondent's registration, effective
August 17, 1990. See 55 FR 29,278 (July 18, 1990).
In February 1992, Respondent submitted an application for a new DEA
Certificate of Registration. An Order to Show Cause was issued on May
13, 1993, proposing to deny this application. Following a hearing
before Administrative Law Judge Mary Ellen Bittner, the then-Deputy
Administrator adopted Judge Bittner's recommended ruling and denied
Respondent's application for registration effective March 15, 1995. See
60 FR 14,004 (March 15, 1995).
In the prior proceeding, the then-Deputy Administrator found that
on October 9, 1986, Respondent was found guilty, following a jury
trial, of eight counts of unlawfully prescribing, administering,
furnishing or dispensing controlled substances between July 1985 and
January 1986. These convictions were affirmed by the Superior Court of
the State of California for the County of Los Angeles. Thereafter,
effective March 23, 1990, the California Board of Medical Quality
Assurance (Board) revoked Respondent's medical license, stayed the
revocation, suspended his license to practice medicine for 90 days, and
placed him on probation for five years. The Board's decision was
subsequently affirmed by the California Court of Appeals with the Court
finding that Respondent's appeal was frivolous because it was merely a
collateral attack on his convictions and fining Respondent $10,000. The
Court stated that Respondent must ``accept responsibility for his
actions.''
The then-Deputy Administrator found that at the prior hearing,
Respondent attacked his criminal convictions. Judge Bittner and then-
Deputy Administrator found that Respondent's convictions were res
judiciata and therefore Respondent was precluded from relitigating the
matter. In his final order, the then-Deputy Administrator noted that:
The administrative law judge found that during the
administrative hearing, although Respondent was free to offer new
evidence that he would never again engage in the type of conduct
that resulted in his conviction, he failed to do so. The
administrative law judge also found that while Respondent offered
evidence and expended time arguing the invalidity of his criminal
convictions, he offered no evidence of remorse for his prior
conduct, that he has taken rehabilitative steps, or that he
recognized the severity of his actions. The administrative law judge
concluded that Respondent is either unwilling or unable to discharge
the responsibilities inherent in a DEA registration, and therefore,
recommended that his application for DEA registration be denied. Id.
Respondent filed a Petition for Review of this final order with the
United States Court of Appeals for the Ninth Circuit. On August 5,
1996, the court denied Respondent's petition.
On December 13, 1996, Respondent submitted an application for a new
DEA registration. That application is the subject of these proceedings.
The Deputy Administrator concluded that the then-Deputy Administrator's
final order published on March 15, 1995, regarding Respondent is res
judicata for purposes of this proceeding. See Stanley Alan Azen, M.D.,
61 FR 57,893 (1996) (where the findings in a previous revocation
proceeding were held to be res judicata in a subsequent administrative
proceeding.) The then-Deputy Administrator's determination of the facts
relating to the previous denial of Respondent's application for
registration is conclusive. Accordingly, the Deputy Administrator
adopts the March 15, 1995 final order in its entirety. The Deputy
Administrator concluded that the critical consideration in this
proceeding is whether the circumstances, which existed at the time of
the prior proceeding, have changed sufficiently to support a conclusion
that Respondent's registration would be in the public interest.
The Deputy Administrator finds that as of the date of the hearing,
Respondent was practicing medicine at three different clinics in
California, and there were no restrictions on his medical license. In
1998, Respondent was awarded a fellowship in the American Contemporary
Society of Medicine and Surgery. In the three years preceding the
hearing, Respondent had been nominated for ``Who's Who,'' ``Who's Who
in the West,'' ``Who's Who in Europe,'' and ``Who's Who in the
Midwest,'' for outstanding achievement.
Respondent testified that he only needs to use controlled
substances in his practice on rare occasions. Respondent further
testified that he is ``very conservative in [his] approach to
(prescribing)'' and ``he ha(s) a dislike for controlled substances.''
However, he also testified that it is difficult for him to find
employment without a DEA registration.
When given the opportunity to explain his past behavior, Respondent
continued to blame others for his criminal convictions. Specifically
Respondent alleged that his then-employer ran ``a crooked operation,''
[[Page 25909]]
and Respondent's name had been forged on prescriptions. He contended
that his convictions were affirmed on appeal due to ineffective
counsel, and a Government witness ``perjured'' himself during DEA's
1993 administrative hearing.
The Government argued that Respondent's application should be
denied based upon the prior Board action, the underlying facts that led
to Respondent's conviction, Respondent's conviction, and Respondent's
continued denial of any wrongdoing which demonstrates a potential
threat to the public health and safety. The Government asserted that
there has been no change in Respondent's attitude since the 1993
hearing; that he fails to recognize the severity of his past conduct or
to express remorse or plans for rehabilitation; that he continues to
argue the errors of his prior judicial proceedings; and as a result, he
continues to avoid taking responsibility for his own culpable behavior.
Respondent argued that he should be granted a DEA registration
because his criminal convictions should not be relied upon since they
were defective. He further asserted that a narcotics registration in
California is a vested right. Respondent contended that if granted a
DEA registration, he would be more conservative in his prescribing
practices.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for a DEA Certificate of Registration if he determines that
the granting of a registration would be inconsistent with the public
interest. Section 823(f) requires that the following factors be
considered in determining the public interest:
(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 and
safety.
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any 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
denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422 (1989).
Regarding factor one, in 1990 the Board revoked Respondent's
medical license, stayed the revocation, but suspended his license for
90 days and then placed it on probation for five years. However, it is
undisputed that Respondent's California medical license is currently
unrestricted. But state licensure is a necessary but not sufficient
condition for registration, and therefore this factor is not
dispositive.
Factors two and four, Respondent's experience in dispensing
controlled substances and compliance with applicable controlled
substance laws are relevant in determining whether Respondent's
registration would be inconsistent with the public interest. Between
July 1985 and January 1986, Respondent prescribed or dispensed
controlled substances to undercover operatives who were not under
treatment for a pathology or condition other than addiction to a
controlled substance. Although Respondent has continued to argue that
he has done nothing wrong, a jury convicted him of eight counts of
unlawfully prescribing controlled substances, and this judgment was
affirmed on appeal. Therefore, the Deputy Administrator concludes that
Respondent clearly improperly handled controlled substances in the past
and failed to comply with laws relating to controlled substances.
Respondent has not handled controlled substances since his DEA
registration was revoked in 1990. He now uses the non-controlled
substance Nubain for the treatment of pain.
As to factor three, Respondent was convicted of eight misdemeanor
counts of illegally prescribing or dispensing controlled substances.
These convictions were affirmed on appeal. While Respondent continues
to profess his innocence and to try to introduce evidence to challenge
the validity of the convictions, the convictions cannot be relitigated
in this forum. Therefore, this factor is relevant in determining the
public interest since Respondent has been convicted of controlled
substance related offenses.
Regarding factor five, the Deputy Administrator concurs with Judge
Randall's finding that it is ``disturbing that the Respondent continues
to argue about his prior criminal convictions, despite Judge Bittner's
and a prior Acting (sic) Deputy Administrator's previous comments
concerning the importance of rehabilitation evidence. The Respondent
continues to blame others for his misconduct and refuses to accept
responsibility for his actions.''
After reviewing the record, Judge Randall concluded that this is a
difficult case however she recommended that Respondent's application be
granted subject to the requirement that he maintain a log of his
controlled substance handling for three years. In making this
recommendation, Judge Randall found it significant that Respondent was
forthcoming on his application for registration regarding his
convictions and the prior DEA action; that he has continued to make
valuable contributions to the medical profession; that he has continued
to participate in continuing medical education; that there are no
restrictions on his California medical license; that Respondent has
become more conservative in this approach to prescribing controlled
substances; that Respondent's convictions were 12 years ago and there
are no new allegations of Respondent improperly handling controlled
substances; and that Respondent has been actively practicing medicine
at three different clinics and there have been no complaints or adverse
actions taken against his medical license. Judge Randall recommended
that Respondent be granted a restricted registration in order to give
him the opportunity to demonstrate his ability to effectively handle
controlled substances while providing a measure of protection to the
public.
Respondent filed exceptions to Judge Randall's recommended ruling.
Instead of challenging aspects of the judge's decision, Respondent
continued to challenge the validity of his convictions and the previous
denial of his application for a DEA Certificate of Registration. As
previously stated these decisions are res judicata and as a result, the
Deputy Administrator finds no merit to Respondent's exceptions.
In its exceptions, the Government disagreed with several mitigating
factors considered by Judge Randall. First, the Government argued that
the fact that Respondent disclosed his convictions and the prior DEA
actions on his application should not be considered a mitigating
factor. The Government pointed out that Respondent answered truthfully
on his previous application and that application was nonetheless
denied. The Deputy Administrator agrees with the Government. An
applicant is required to fully disclose any convictions and/or prior
action by DEA or the state on applications for registration. The fact
that Respondent did so does not demonstrate that he can now be trusted
to responsibly handle controlled substances.
[[Page 25910]]
Second, the Government took exception to Judge Randall's finding
that Respondent has continued to make valuable contributions to the
medical profession. The Government argued ``that a factor is not
material in deciding whether a DEA registration application should be
granted.'' The Deputy Administrator concludes that it is appropriate to
consider what a registrant/applicant has done professionally since his/
her misconduct. However in this case, the Deputy Administrator finds it
significant that Respondent has continued to make valuable
contributions to the medical profession despite not being able to
handle controlled substances. The Deputy Administrator concludes that
this factor does not support granting Respondent a DEA registration,
since it appears that Respondent can make such contributions without a
DEA registration.
Next the Government disagreed with Judge Randall's reliance on
Respondent's assertion that he has become more conservative in his
handling of controlled substances as a mitigating factor. The
Government contended that Respondent's assertion is ``not necessarily
credible in light of Respondent's adamant denial of the conduct
underlying his criminal convictions.'' The Government further contended
that Respondent has not handled controlled substances since his DEA
registration was revoked. The Deputy Administrator agrees with the
Government. Since Respondent has not handled controlled substances
since 1990, there is no evidence that Respondent is more conservative
in his handling of such substances, and in light of his failure to
accept responsibility for his past actions, the Deputy Administrator is
not convinced that Respondent will be more conservative in the future.
Further the Government took exception to Judge Randall's reliance
on the fact that Respondent's convictions occurred 12 years ago and no
new allegations of improper handling of controlled substances or
adverse actions against Respondent's medical license were introduced in
this matter. The Government argued that no such allegations were made
in the previous proceeding regarding Respondent's last application for
registration and that application was denied. The Deputy Administrator
notes that Respondent has not been authorized to handle controlled
substances since 1990 so presumably he has not had the opportunity to
mishandle controlled substances.
The Deputy Administrator agrees with Judge Randall that passage of
time alone is not dispositive, however it is a factor to be considered.
See Norman Alpert, M.D., 58 FR 67,420. But, the Deputy Administrator
also notes that DEA has previously held that ``(t)he paramount issue is
not how much time has elapsed since (the Respondent's) unlawful
conduct, but rather, whether during that time (the) Respondent has
learned from past mistakes and has demonstrated that he would handle
controlled substances properly if entrusted with DEA registration.''
See John Porter Richard, D.O., 61 FR 13,878 (1996), Leonardo v. Lopez,
M.D., 54 FR 36,915 (1989). In this case, it is clear from Respondent's
continued denials of wrongdoing that he has not learned from his past
mistakes and other than saying that he is more conservative now, he has
not demonstrated that he would handle controlled substances properly in
the future.
The Deputy Administrator disagrees with Judge Randall's recommended
ruling that granting Respondent a restricted registration would be
appropriate. Other than the passage of time, the circumstances which
existed at the time of the prior proceeding have not changed sufficient
to warrant issuing Respondent a DEA registration. Respondent continues
to fail to acknowledge wrongdoing or accept responsibility for his
actions. Therefore, the Deputy Administrator is not convinced that
Respondent has been rehabilitated and would properly handle controlled
substances in the future, even on a restricted basis. As a result, the
Deputy Administrator concludes that Respondent's registration with DEA
would be inconsistent with the public interest at this time.
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
application for registration, executed by Robert A. Leslie, M.D., be,
and it hereby is, denied. This order is effective June 14, 1999.
Dated: May 6, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-12038 Filed 5-12-99; 8:45 am]
BILLING CODE 4410-09-M