[Federal Register Volume 64, Number 151 (Friday, August 6, 1999)]
[Notices]
[Pages 42977-42981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20232]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No 98-8]


Mark Binette, M.D., Grant of Restricted Registration

    On September 19, 1997, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Mark J. Binette, M.D. (Respondent) of Mesa, 
Arizona, notifying him of an opportunity to show cause as to why DEA 
should not deny his application for registration as a practitioner 
pursuant to 21 U.S.C. 823(f), for reason that his registration would be 
inconsistent with the public interest.
    By letter dated January 22, 1998, Respondent, through counsel, 
requested a hearing on the issues raised by the Order to Show Cause. 
Following prehearing procedures, a hearing was held in Phoenix, Arizona 
on August 4 and 5, 1998, before Administrative Law Judge Mary Ellen 
Bittner. At the hearing, both parties called witnesses to testify and 
introduced documentary evidence. After the hearing, both parties 
submitted proposed findings of fact, conclusions of law and argument. 
On January 20, 1999, Judge Bittner issued her Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision, recommending 
that Respondent's application for registration be granted without 
restrictions. Neither party filed exceptions to Judge Bittner's 
opinion, and on February 22, 1999, Judge Bittner

[[Page 42978]]

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 the Opinion and Recommended Ruling, 
Findings of Fact, Conclusions of Law and Decision of the Administrative 
Law Judge, except as specifically noted below. 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 graduated from 
medical school in 1989. He previously possessed DEA Certificate of 
Registration BM3082283, however he let it expire on January 31, 1995, 
since he did not have an active state license at that time.
    According to Respondent, he first smoked marijuana in the 1970s 
when he was a teenager. He was arrested in 1977 for selling marijuana 
to an undercover police officer for $25. A search of Respondent's home 
incident to the arrest revealed lysergic acid diethylamide (LSD); 
however Respondent testified that the LSD was not his but had been left 
at his home after a party several weeks earlier. It appears that 
Respondent was convicted of charges relating to these events, that he 
was sentenced to a period of probation, and that the record of the 
conviction was expunged in 1984. Respondent further testified that he 
occasionally used marijuana between 1977 and 1992, but that he did not 
believe that he had an addiction problem at that time.
    In 1992, Respondent began an extramarital affair with a fellow 
resident who introduced him to methamphetamine, and who provided him 
with pharmaceutical methamphetamine. According to Respondent, his 
fellowship stipend was insufficient to make school loan payments and to 
support his wife and children, so he worked extra hours at several jobs 
and used the methamphetamine to help him stay awake. In early 1993, 
Respondent's relationship with the fellow resident ended when she 
tested positive for methamphetamine use and was forced to enter a drug 
treatment program. Respondent then began obtaining street 
methamphetamine from his cousin, and ultimately smoked methamphetamine 
several times a day.
    On April 10, 1993, while working an overnight shift in an emergency 
room at an air force base, Respondent was followed to his car by base 
officers who discovered methamphetamine in Respondent's car. Respondent 
was not arrested at that time, but blood and urine samples were 
collected which ultimately tested positive for methamphetamine use. 
Respondent was subsequently charged with possession of a controlled 
substance and released on his own recognizance.
    In November 1993, Respondent met informally with the executive 
director of the State of Arizona Board of Medical Examiners (Medical 
Board) and the co-director of the Medical Board's Monitored Aftercare 
Program. According to Respondent, he gave assurances that he no longer 
used amphetamines, and the Medical Board allowed Respondent to retain 
his medical license.
    However, Respondent tested positive for methamphetamine use several 
times between August 1993 and January 1994. In February 1994, 
Respondent's recognizance release was revoked due to his continued 
methamphetamine use and he was incarcerated. Several days later he was 
released from jail and he went to a drug treatment center in Georgia, 
which is tailored to health care professionals. Respondent left this 
facility before completing his treatment because he could not afford 
the cost of the treatment.
    Respondent met with the Medical Board again on April 15, and May 9, 
1994, and was told that he could not practice medicine in Arizona until 
he completed his treatment at the facility in Georgia. On May 13, 1994, 
the Medical Board issued an order which, among other things, prohibited 
Respondent from using controlled substances that were not obtained 
pursuant to a valid prescription of a treating physician.
    On May 17, 1994, a postal inspector was conducting a random profile 
of packages and identified a package that she suspected contained 
controlled substances. The package was opened pursuant to a search 
warrant and it contained a half ounce of methamphetamine with a street 
value of approximately $2,800. The package was then resealed and 
forwarded to Ohio for a controlled delivery. Law enforcement officers 
contacted a local prosecutor to review an affidavit for a search 
warrant to be executed after the controlled delivery of the package. 
During his conversation with the law enforcement officers, the 
prosecutor became suspicious because his brother had a friend with the 
same name as that of the addressee on the package. The prosecutor then 
learned that his brother's wife, from whom he was separated, lived in 
an apartment complex at the same address as the return address on the 
package. Later when the prosecutor saw the package, he recognized the 
handwriting on the package as his brother's and so informed the 
officers.
    On May 19, 1994, there was a controlled delivery of the package and 
the recipient was arrested and interviewed. During the interview, he 
mentioned an individual named ``Russ,'' but eventually told the 
officers that Respondent had mailed him the package. The individual 
also stated that Respondent had sent him a package of methamphetamine 
in April 1994, and that he had written Respondent a check for $500 as 
payment for the methamphetamine.
    On several occasions, Respondent contacted his brother who advised 
him to cooperate with the authorities. Eventually, on May 27, 1994, 
Respondent did have a conversation with local law enforcement officers 
during which he indicated that his cousin was the source of the 
methamphetamine and that he was willing to cooperate in an 
investigation of his cousin. He indicated that his cousin had asked him 
to review a recipe for methamphetamine, and that his cousin moved about 
40 pounds of methamphetamine per week.
    At the hearing, Respondent testified that he had loaned his cousin 
approximately $20,000 for a business venture, that by April 1994, his 
cousin had repaid all but $7,000 or $8,000 of the loan, and that he 
received methamphetamine from his cousin in lieu of interest payments 
on the loan. Respondent further testified that in April 1994, 
Respondent went to his cousin's apartment on several occasions and 
collected $500 on each of two visits. On the third visit, his cousin 
paid him another $500 and convinced Respondent to mail a package of 
methamphetamine to a mutual friend and in return, the friend would send 
payment for the methamphetamine directly to Respondent. According to 
Respondent he mailed one package of methamphetamine to the mutual 
friend in late April 1994 and another package on May 17, 1994.
    Respondent had another positive urine and was jailed for several 
days following his arrest on June 15, 1994. He was then released to go 
to Valley Hope Treatment Center where he stayed for thirty days. 
Thereafter, he was transferred to the House of Acceptance, Inc. (the 
House), a substance abuse treatment center.

[[Page 42979]]

    On August 11, 1994, Respondent was indicted in the United States 
District Court for the District of Arizona on one count of conspiracy 
to distribute a controlled substance in violation of 21 U.S.C. 846, 
three counts of distribution and possession with intent to distribute a 
controlled substance in violation of 21 U.S.C. 841(a)(1), three counts 
of using a communication facility to facilitate the distribution of a 
controlled substance in violation of 21 U.S.C. 843(b), and one count of 
establishment of a distribution operation in violation of 21 U.S.C. 
856(a)(2). On August 12, 1994, an Amended Information charged 
Respondent with one count of simple possession of a controlled 
substance in violation of 21 U.S.C. 844(a).
    On October 31, 1994, Respondent pled guilty to one felony count of 
using a communication facility to facilitate the distribution of a 
controlled substance on May 19, 1994, and to one misdemeanor count of 
simple possession of a controlled substance. On February 6, 1995, 
Respondent was convicted of these offenses in the United States 
District Court for the District of Arizona and sentenced to 15 months 
incarceration to be served at a drug rehabilitation center, followed by 
probation for one year.
    As part of the plea agreement, Respondent agreed to cooperate in 
the investigation and prosecution of others. However, Respondent 
testified that he was never asked to make any monitored telephone 
calls, asked to provide any additional documentation, or used in any 
manner in an investigation of his cousin.
    On October 20, 1994, the Medical Board placed Respondent's license 
to practice medicine in Arizona on inactive status after Respondent 
admitted that he violated the Medical Board's May 1994 Order by 
continuing to use methamphetamine.
    Respondent participated in in-patient treatment at the House from 
July 1994 until March 10, 1995. Thereafter, in August 1995, Respondent 
requested that his medical license be reactivated, and on January 18, 
1996, the Medical Board reinstated Respondent's medical license and 
placed it on probation for five years under the condition that he 
perform at least 150 hours of community service each year. On February 
13, 1996, the Medical Board issued a Rehabilitation Stipulation and 
Order that added conditions to its January 1996 order, including 
participation in the Medical Board's Monitored Aftercare Program; 
participation in a 12-step recovery program; obtaining a sole treating 
physician who was aware of his addiction; not consuming alcohol, poppy 
seeds, or controlled substances not prescribed by his treating 
physician; submission to random drug screening; maintenance of a log of 
all controlled substances prescribed by his treating physician; 
submission to periodic Medical Board ordered mental, physical, and 
medical competency examinations; participation in mental health 
treatment; attending meetings with the Medical Board; and participation 
in a treatment program in the event of a relapse.
    On March 28, 1997, the Medical Board issued an Order terminating 
the January 1996 Order of Probation, and on April 9, 1997, the Medical 
Board issued a Stipulation and Order. The April 1997 action is 
considered a slightly lesser sanction against Respondent's medical 
license than probation, but it did not change the substantive 
requirements of the Medical Board's January and February 1996 Orders.
    Respondent presented extensive evidence at the hearing regarding 
his treatment and rehabilitation. Respondent testified that he last 
used any illegal drug on or about June 10, 1994. As discussed above, he 
stayed at the House from July 1994 until March 10, 1995. Among other 
things, the House conducts classes addressing relapse prevention, anger 
management, life skills, and chemical dependency; requires 
participation in group therapy and 12-step programs; and provides 
extensive monitoring. In addition, the House performs drug screens on 
its participants approximately every four to five days. According to 
the director, Respondent's stay and performance at the House was 
``[a]bove reproach,'' and all of his urine screens were negative. Since 
his release from the House, Respondent has continued to offer his 
services there.
    Respondent participates in the Medical Board's Monitored Aftercare 
Program which requires participation in group therapy, random urine 
testing, and regular attendance at 12-step meetings, such as Alcoholics 
Anonymous or Narcotics Anonymous. In addition, the medical director of 
the program meets with individual participants periodically and a staff 
therapist meets with the participants more regularly.
    According to the program's medical director, he has collected 
between 25 to 30 urine samples from Respondent each year that he has 
been participating in the program and that they have all been negative. 
The medical director further testified that Respondent has complied 
with all of the terms of the program, that the quality of Respondent's 
recovery is excellent, that Respondent's prognosis for ongoing recovery 
is also excellent, and that he did not believe that any risk would 
result from granting Respondent a DEA registration.
    Respondent's probation officer testified that Respondent came under 
his supervision on May 18, 1995, with standard conditions of release as 
well as special conditions tailored to his substance abuse problem. 
These special conditions included Respondent's agreement to submit to a 
search if requested by the probation officer, to participate in a 
substance abuse treatment program, a mental health treatment program 
and financial counseling; and to perform 200 hours of community 
service. According to the probation officer, Respondent complied with 
all of the standard and special conditions required by his supervised 
release, and he was released from supervision on May 17, 1996.
    Respondent testified at the hearing that he was too proud and 
embarrassed to ask anyone for help with his addiction, and that had he 
not been arrested, he might not have received the help that he needed. 
He testified that upon accepting his addiction, he went to 180 
Alcoholics Anonymous meetings in 180 days, followed by five meetings 
per week for the next year, then about four meetings per week, and now 
he sponsors others in their recovery programs. In addition to his 
community service at the House, Respondent testified that he does 
volunteer counseling at another treatment center.
    Respondent further testified that he intends to continue working on 
his recovery after the conclusion of his five-year probationary period 
with the Medical Board because ``[addiction]'s a disease that needs to 
be treated on a daily basis for the rest of your life, because if not, 
if allowed to go uncontrolled, it will kill you.''
    As of the date of the hearing, Respondent was working as an 
independent contractor for several insurance companies performing 
physical examinations. He also helped cover several local nursing 
homes, and worked as a physician in the urgent care department of 
several medical centers in Tucson, Arizona. Respondent testified that 
he hopes to work as an internist at a local hospital beginning in the 
fall of 1999, but that this position is contingent upon him receiving a 
DEA registration.
    Respondent resumed practicing medicine in January 1996, and has 
experienced some difficulty as a result of not having a DEA 
registration. He has been unable to obtain staff privileges at some 
hospitals and to be designated as a provider by insurance companies. 
Respondent further testified that his

[[Page 42980]]

lack of a DEA registration has also affected his ability to treat 
patients at the urgent care facilities because he cannot prescribe them 
controlled substances without involving another physician.
    The Government contends that Respondent's application for 
registration should be denied based upon his violation of the laws 
relating to controlled substances, his criminal convictions, and the 
relatively short period of time that he has been in recovery. In 
arguing that his application should be granted, Respondent does not 
deny that he violated controlled substance laws and that he was 
convicted of controlled substance related offenses. Instead, Respondent 
contends that he has overcome his substance abuse problem and that 
during the course of his controlled substance abuse, he never misused 
his former DEA registration to obtain drugs illegally.
    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 conjunctive; the Deputy 
Administrator may rely on any one or an combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
a registration should be revoked or an application of registration 
denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16422 (1989).
    Regarding factor one, it is undisputed that in May 1994, the 
Medical Board issued a Rehabilitation Stipulation Order placing a 
number of probationary conditions on his license to practice medicine 
in Arizona. Thereafter, his medical license was inactivated in October 
1994, and when it was reactivated in January 1996, Respondent was 
placed on probation for five years. Respondent is currently licensed to 
practice medicine in Arizona with no restrictions on his ability to 
handle controlled substances. But as Judge Bittner noted, ``inasmuch as 
State licensure is a necessary but not sufficient condition for a DEA 
registration, * * * this factor is not determinative.''
    As to Respondent's experience in dispensing controlled substances, 
there is no evidence in Respondent ever improperly dispensed controlled 
substances to his patients. Concerning his own abuse of 
methamphetamine, there is not evidence that Respondent used his DEA 
registration to obtain the methamphetamine that he abused.
    Regardinig factor three, it is undisputed that Respondent was 
convicted in February 1995 for possession of a controlled substance in 
violation of 21 U.S.C. 844(a), a misdemeanor, and of the use of 
communication facility to facilitate the distribution of a controlled 
substance in violation of 21 U.S.C. 843(b), a felony. It also appears 
that Respondent was convicted of controlled substance related offenses 
in 1977 and that those convictions were later expunged. The Deputy 
Administrator agrees with Judge Bittner that as a general rule, 
convictions that have subsequently been expunged can be considered 
``convictions'' for purposes of these proceedings. As Judge Bittner 
noted, ``[a]ny other interpretation would mean that the conviction 
could be considered between the date it occurs and date it is expunged, 
but no thereafter, which is inconsistent with established rule in these 
proceedings that the lapse of time between conduct and the hearing 
effects only the weight to be given the evidence'' citing Thomas H. 
McCarthy, D.O., 54 FR 20938 (1989), aff'd, No. 89-3496 (6th Cir. Apr. 
5, 1990). However, unlike Judge Bittner, the Deputy Administrator finds 
that the record is unclear as to exactly what charges Respondent was 
convicted of in 1977 and therefore declines to consider these 
convictions is rendering his decision in this matter.
    But, the Deputy Administrator does agree with Judge Bittner that 
convictions for possession of a controlled substance cannot be 
considered under this factor. Pursuant to 212 U.S.C. 823(f)(3), the 
Deputy Administrator shall consider an ``applicant's conviction record 
* * * relating to the manufacture, distribution, or dispensing of 
controlled substances.'' Therefore, Respondent's 1995 misdemeanor 
conviction for possession of a controlled substance cannot be 
considered under this factor. Judge Bittner seems to suggest that this 
conviction can be considered under 21 U.S.C. 824(a)(2), however the 
Deputy Administrator disagrees since only felony convictions relating 
to controlled substances can be considered under 21 U.S.C. 824(a)(2).
    However, the Deputy Administrator has considered Respondent's 
conviction in 1995 of using a communication facility to facilitate the 
distribution of a controlled substance in violation of 21 U.S.C. 
843(b).
    As to factor four, Respondent's compliance with applicable laws 
relating to controlled substances, it is clear that Respondent 
illegally possessed controlled substances in 1977 and 1993, and that he 
illegally mailed methamphetamine in 1994. Respondent also admitted that 
he self-administered methamphetamine between 1992 and 1994 for no 
legitimate medical purpose and outside the scope of his medical 
practice.
    Regarding factor five, the Deputy Administrator agrees with Judge 
Bittner that it is significant that Respondent was addicted to 
methamphetamine between June 1992 and June 1994, and that he abused 
methamphetamine while performing his duties as a physician. However, 
the Deputy Administrator also finds it noteworthy that Respondent has 
not illegally used controlled substances since June 1994, and that he 
has undergone significant treatment for his addiction, and continues 
with his recovery efforts.
    The Deputy Administrator agrees with Judge Bittner that the 
Government has established a prima facie case for the denial of 
Respondent's application based upon Respondent's prior addiction to 
methamphetamine, his violation of controlled substance laws, his 1995 
felony conviction, and his abuse of methamphetamine while performing 
the duties of a physician. Nonetheless, the Deputy Administrator 
concurs with Judge Bittner's conclusion that ``[t]he record, however, 
establishes that Respondent has spent the last four years 
rehabilitating himself and has successfully remained sober during that 
time.'' In addition, Judge Bittner found Respondent's evidence 
regarding this rehabilitation and recovery to be credible. Judge 
Bittner found that ``Respondent now understands the gravity of his 
actions and is remorseful.'' Judge Bittner concluded ``that a 
preponderance of the evidence does not establish that it would be 
inconsistent with the public interest to grant Respondent's application 
for a new DEA registration,'' and therefore recommended that 
Respondent's application be granted.

[[Page 42981]]

    The Deputy Administrator agrees with Judge Bittner that denial of 
Respondent's application is not warranted. However, the Deputy 
Administrator believes that some restrictions on Respondent's 
registration are necessary to protect the public health and safety in 
light of Respondent's fairly recent abuse of controlled substances, his 
violation of controlled substance laws and his felony conviction.
    Therefore, the Deputy Administrator concludes that Respondent's 
application for registration should be granted subject to the following 
restrictions for three years from the date of issuance of the DEA 
Certificate of Registration.
    1. Respondent must continue his involvement with the Medical 
Board's Monitored Aftercare Program and abide by its requirements 
regardless of whether the Medical Board requires such involvement.
    2. Respondent shall consent to periodic inspections by DEA 
personnel based on a Notice of Inspection rather than an Administrative 
Inspection Warrant.
    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 
February 12, 1996 application for registration submitted by Mark 
Binette, M.D., be, and it hereby is, granted subject to the above 
described restrictions. This order is effective upon the issuance of 
the DEA Certificate of Registration, but no later than September 7, 
1999.

    Dated: July 27, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-20232 Filed 8-5-99; 8:45 am]
BILLING CODE 4410-09-M