[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Notices]
[Pages 33319-33321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15750]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-15]


Saihb S. Halil, M.D.; Revocation of Registration; Denial of 
Request for Modification

    On November 6, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Snow Cause to Saihb S. Halil, M.D. (Respondent) of California, 
notifying him of an opportunity to show cause as to why DEA should not 
revoke his DEA Certificate of Registration AH1993749, and deny any 
pending applications for renewal of such registration pursuant to 21 
U.S.C. 823(f) and 824(a)(3), for reason that his California medical 
license was revoked effective May 3, 1995, and he is therefore not 
currently authorized to handle controlled substances in that state. 
Following subsequent communication between Respondent and DEA, 
Respondent submitted a letter to DEA dated January 29, 1998, requesting 
that his DEA Certificate of Registration be modified to reflect a 
Puerto Rico address. On February 20, 1998, DEA issued an Amended Order 
to Show Cause to Respondent proposing to revoke his DEA Certificate of 
Registration pursuant to 21 U.S.C. 824(a)(1) and (a)(3), and to deny 
his request to modify his registration and to deny any pending 
applications for renewal of such registration under 21 U.S.C. 823(f) 
for reason that his continued registration would be inconsistent with 
the public interest.
    By letter dated March 2, 1998, Respondent timely filed a request 
for a hearing, and following prehearing procedures, a hearing was held 
in San Francisco, California on July 1, 1998, before Administrative Law 
Judge Gail A. Randall. At the hearing, both parties called a witness to 
testify and introduced documentary evidence. After the hearing, both 
parties filed proposed findings of fact, conclusions of law and 
argument. On November 19, 1998, Judge Randall issued her Opinion and 
Recommended Ruling, recommending that Respondent's DEA registration be 
revoked and that his request for modification and any pending 
applications for renewal be denied. Neither party filed exceptions to 
the Opinion and Recommended Ruling of the Administrative Law Judge, and 
on January 6, 1999, Judge Randall transmitted the record of these 
proceedings to the 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 findings of fact and 
conclusions of law of the Administrative Law Judge, and adopts Judge 
Randall's recommended ruling with one exception. 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 Deputy Administrator finds that Respondent was issued DEA 
Certificate of Registration AH1993749 on March 18, 1983.
    Effective July 10, 1995, the Medical Board of California (Board) 
revoked Respondent's license to practice medicine based upon his 
patient care in 1987 and 1988. The Board concluded that Respondent's 
license should be revoked (1) ``For gross negligence in his treatment 
of [3 named patients];'' (2) ``for repeated acts of negligence in his 
treatment of [3 named patients];'' (3) ``for acts and omissions which 
constitute incompetence in his treatment of [2 named patients];'' (4) 
``for dishonest and corrupt acts in his dealings with [1 named 
patient];'' and (5) ``for sexual misconduct with [1 named patient].'' 
Further the Board adopted the state administrative Law judge's finding 
that Respondent had been ``untruthful in his depositions in 1990, and 
he [had been] untruthful at trial in 1994.''
    In October 1995, Respondent submitted a renewal application for his 
DEA Certificate of Registration listing a California address. On this 
application, Respondent listed the license number for his revoked 
California medical license in response to the question regarding the 
status of his state licensure. Further, Respondent answered ``No'' in 
response to the question on the application (hereinafter referred to as 
the liability question'') which asks in relevant part: ``Has the 
applicant ever *  *  * had a State professional license or controlled 
substance registration revoked, suspended denied, restricted or placed 
on probation, or is any such action pending against the applicant?'' At 
the hearing in this matter, Respondent testified that he had not 
personally completed this renewal application nor had he signed it.
    On November 6, 1996, DEA issued the first Order to Show Cause to 
Respondent. By letter dated November 22, 1996, Respondent informed DEA 
that he currently was practicing medicine in Puerto Rico, and requested 
information concerning what other action he should take in response to 
the Order to Show Cause. DEA did not reply to Respondent's letter until 
December 30, 1997. DEA informed Respondent that he needed to request a 
modification of his DEA registration to reflect his Puerto Rico 
address. By letter dated January 29, 1998, Respondent requested 
modification of his DEA Certificate of Registration to reflect a Puerto 
Rico address.
    At the hearing in this matter, Respondent admitted that he lacked 
in-depth knowledge of the applicable DEA regulations. He further 
testified that although he has pursued extensive medical training while 
in Puerto Rico, the training did not include classes concerning the 
handling of controlled substances.
    The Government contends that Respondent's DEA Certificate of 
Registration must be revoked since he is no longer authorized to 
practice medicine or handle controlled substances in California, and 
state authorization is a necessary prerequisite to DEA registration. 
Further the Government contends that Respondent's request for 
modification of his DEA registration to reflect a Puerto Rico address 
should be denied based upon Respondent's material falsification of his 
October 1995 renewal application.
    Respondent asserts that his request for modification of his DEA 
Certificate of Registration should be granted because he did not 
materially falsify his renewal application; the Government failed to 
prove that modification of his registration would be inconsistent with 
the public interest; and the Government is estopped from taking adverse 
action based upon its failure to process his application in a timely 
manner. Respondent further asserts that if his request for modification 
is granted to reflect a Puerto Rico address, then the Government no 
longer has a basis for revoking his DEA registration.
    As to Respondent's estoppel argument, the Deputy Administrator 
agrees with Judge Randall that ``[t]he chronology of agency action in 
this case

[[Page 33320]]

is troubling * * *''. Respondent submitted a timely reply to the 
initial Order to Show Cause requesting further guidance; however the 
Government did not respond for 13 months.
    But, DEA has previously held that:

[P]rinciples of equitable estoppel cannot be applied to deprive the 
public of the protection of a statute because of the mistaken 
action, or lack of action, on the part of public officials * * *. 
Generally, a governmental unit is not estopped when functioning in a 
governmental capacity.

James Dell Potter, M.D., 49 FR 9970 (1994) (alteration and omission in 
original).
    The Deputy Administrator agrees with Judge Randall's conclusion 
that ``[a]lthough worthy of consideration and concern, such lack of 
timeliness does not overcome the public interest in this case. 
Equitable estoppel does not operate under these circumstances to 
preclude the DEA from protecting the public health and safety.'' 
Therefore, the Deputy Administrator must determine whether Respondent's 
registration should be revoked and his request for modification denied 
in light of the facts of this case and the relevant law.
    Initially, the Deputy Administrator notes that DEA does not have 
the statutory authority under the Controlled Substances Act to register 
a practitioner unless that practitioner is authorized to handle 
controlled substances by the state in which he or she practices. See 
802(21), 823(f), and 824(a)(3). DEA has consistently held that a 
practitioner may not maintain a DEA registration when the practitioner 
lacks authority to handle controlled substances in the state in which 
he or she practices. See, e.g., Charles Milton Waller, D.D.S., 62 FR 
34,310 (1997); Suzanne Kirkwood King, M.D., 62 FR 33,680 (1997); Anne 
Lazar Thorn, M.D., 62 FR 12,847 (1997).
    The Deputy Administrator finds that it is undisputed that 
Respondent is not currently authorized to practice medicine in the 
State of California, where he is registered with DEA. Therefore, it is 
reasonable to infer that he is also not authorized to handle controlled 
substances in that state. As a result, Respondent is not entitled to 
maintain a DEA registration in that state.
    However, Respondent has sought to modify his DEA registration to an 
address in Puerto Rico where he is authorized to handle controlled 
substances. Pursuant to 21 CFR 1301.51, requests for modification 
``shall be handled in the same manner as an application for 
registration.''
    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 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 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 denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16,422 
(1989).
    The Deputy Administrator agrees with Judge Randall that factors one 
and five are relevant in this case in determining the public interest. 
As to factor one, it is undisputed that Respondent's California medical 
license was revoked in July 1995. However, Respondent is currently 
licensed to practice medicine and handle controlled substances in the 
Commonwealth of Puerto Rico.
    The Government argues that Respondent's material falsification of 
his DEA renewal application should be considered under factor five in 
determining whether Respondent's continued registration is inconsistent 
with the public interest. Answers to liability questions are considered 
material, because DEA relies upon such answers to determine whether an 
investigation is needed prior to granting the application. See Ezzat E. 
Majd Pour, M.D., 55 FR 47,547 (1990). DEA has consistently held that 
the test for determining whether an applicant has materially falsified 
an application for registration is whether the applicant knew or should 
have known that the information he provided on the application was 
false. See Herbert J. Robinson, M.D., 59 FR 6304 (1994); Bobby Watts, 
M.D. 58 FR 46,995 (1993).
    Respondent's California medical license was revoked in July 1995, 
yet he indicated in his October 1995 renewal application that no action 
had been taken against his state license. Respondent knew or should 
have known, at the time that his renewal application was submitted, 
that his answer to the liability question was false.
    As Judge Randall noted, ``[a]though the Respondent testified that 
he had not personally completed the renewal application, such an 
assertion does not relieve him of the responsibility of assuring the 
truthfulness of information submitted to the DEA on his behalf.'' The 
Deputy Administrator agrees with Judge Randall that the Government has 
presented a prima facie case of material falsification.
    The Deputy Administrator also agrees with Judge Randall that 
Respondent's admission of a lack of in-depth knowledge of controlled 
substance regulations is relevant under factor five. Registrants must 
be familiar with the regulations relating to controlled substances to 
ensure that controlled substances are properly handled and not diverted 
for illicit purposes.
    Judge Randall concluded that Respondent's registration should be 
revoked based upon his lack of state authorization to handle controlled 
substances, and that his request for modification of his registration 
should be denied based upon his material falsification of his renewal 
application and his admitted lack of knowledge of controlled substance 
regulations. But Judge Randall further stated that:

given the extraordinary lapse of time since the Respondent's 
unacceptable medical practices in 1987 and 1988, should the 
Respondent (1) Apply for a new registration with a truthful 
application, disclosing his complete license history, and (2) submit 
evidence of recent training in the handling of controlled 
substances, then I would recommend that the Deputy Administrator 
consider granting such an application.

    The Deputy Administrator agrees that Respondent's request for 
modification of his DEA registration to reflect a Puerto Rico address 
should be denied as inconsistent with the public interest. Respondent 
was responsible for the material falsification of his renewal 
application. In addition, his admitted lack of knowledge concerning the 
proper handling of controlled substances is troubling to the Deputy 
Administrator. As a result, the Deputy Administrator is not convinced 
that Respondent can be trusted to responsibly handle controlled 
substances.
    The Deputy Administrator further concludes that since Respondent's 
request for modification is denied, Respondent is left with his DEA 
registration in California. Respondent cannot maintain his DEA 
registration in California based upon his lack of authorization to 
handle controlled

[[Page 33321]]

substances in that state. As a result, his DEA Certificate of 
Registration must be revoked.
    Therefore, the Deputy Administrator agrees with Judge Randall that 
Respondent's registration must be revoked and his request for 
modification denied. But, the Deputy Administrator declines to indicate 
under what circumstances DEA would consider granting any future 
applications. Any such applications will be considered in light of the 
facts and circumstances that exist at that 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 DEA 
Certificate of Registration AH1993749, issued to Saihb S. Halil, M.D., 
be, and it hereby is, revoked. The Deputy Administrator further orders 
that Dr. Halil's request to modify his registration, and any pending 
applications for renewal of his registration, be, and they hereby are, 
denied. This order is effective July 22, 1999.

    Dated: June 14, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-15750 Filed 6-21-99; 8:45 am]
BILLING CODE 4410-09-M