[Federal Register Volume 64, Number 151 (Friday, August 6, 1999)]
[Notices]
[Pages 42990-42991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20235]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 99-2]
Dietrich A. Stoermer, M.D.; Denial of Application
On June 5, 1998, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Dietrich A. Stoermer, M.D. (Respondent) of Las
Vegas, Nevada. The Order to Show Cause notified Dr. Stoermer 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) and
824(a)(3), based in part on the fact that he is not currently
authorized to handle controlled substances in Nevada.
On October 26, 1998, Respondent filed a request for a hearing and
the matter was docketed before Administrative Law Judge Mary Ellen
Bittner. On November 2, 1998, Judge Bittner issued an Order requiring
Respondent to file a written statement indicating why his more than
four month delay in filing a request for a hearing should not be
considered a waiver of his right to a hearing. On November 12, 1998,
Respondent filed a written statement asserting that he received the
Order to Show Cause on August 6, 1998, and since it was more than
thirty days after the Order to Show Cause had been issued he believed
that he was precluded from responding. Respondent asserted that he
received a second Order to Show Cause on September 30, 1998, and timely
filed his request for a hearing on October 26, 1998. The Government did
not file an objection to Respondent's explanation. Thereafter, on
November 25, 1998, Judge Bittner issued a Memorandum and Order for
Prehearing Statements finding that Respondent did not waive his right
to a hearing.
In lieu of filing a prehearing statement, the Government filed a
Motion for Summary Disposition and Request for Stay of Deadline to File
Prehearing Statement on December 15, 1998, alleging that Respondent is
not authorized to handle controlled substances in Nevada, where he has
applied to be registered with DEA. On December 31, 1998, Respondent
submitted his response to the Government's motion, in which he did not
deny that he was not currently authorized to handle controlled
substances in Nevada.
On February 1, 1999, Judge Bittner issued her Opinion and
Recommended Decision, finding that Respondent lacks authorization to
handle controlled substances in the State of Nevada; granting the
Government's Motion for Summary Disposition; and recommending that
Respondent's application for a DEA Certificate of Registration be
denied. Neither party filed exceptions to her opinion, and on April 6,
1999, Judge Bittner 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 Opinion and Recommended
Decision of the Administrative Law Judge.
The Deputy Administrator finds that attached to the Government's
Motion for Summary Disposition was a letter dated March 5, 1998, from a
licensing specialist with the Nevada State Board of Pharmacy (Pharmacy
Board), which indicated that Respondent's state registration was not
renewed in October 1994, and that while Respondent reapplied for
registration in June of 1996, he did not complete the registration
process. In his response to the Government's motion, Respondent did not
deny that he was not currently authorized to handle controlled
substances in Nevada. However, he asserted that when he applied for a
state registration in June 1996, he was told not to pursue state
registration ``until the Federal problem is sorted out.'' Subsequently,
by letter dated January 25, 1999, Respondent forwarded a copy of his
application dated January 29, 1999, for a controlled substance
registration filed with the Pharmacy Board.
The Deputy Administrator finds that Respondent does not dispute
that he is not currently authorized to handle controlled substances in
Nevada, where he has applied for registration with DEA. However, he
asserts that the Pharmacy Board will not consider his application for
state registration until he receives a DEA Certificate of Registration.
Judge Bittner noted that ''[t]his agency has neither the authority nor
the obligation to discover why Respondent is not registered with the
Pharmacy Board, but only to ascertain if Respondent is authorized to
handle controlled substances in the State of Nevada.'' Therefore, the
Deputy Administrator concludes that Respondent is not currently
authorized to handle controlled substances in Nevada.
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. See 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 the State of Nevada. Since Respondent lacks
this authority, he is
[[Page 42991]]
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. The parties did not
dispute the fact that Respondent is currently unauthorized to handle
controlled substances in the State of Nevada. 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 Philip E. Kirk, M.D.,
48 FR 32887 (1993), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th
Cir. 1984); see also 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 432
(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
application for registration submitted by Dietrich A. Stoemer, M.D.,
be, and it hereby is, denied. This order is effective August 6, 1999.
Dated: July 27, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-20235 Filed 8-5-99; 8:45 am]
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