[Federal Register Volume 64, Number 177 (Tuesday, September 14, 1999)]
[Notices]
[Pages 49822-49823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23668]
[[Page 49822]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 99-19]
William D. Levitt, D.O.; Revocation of Registration
On February 10, 1999, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to William D. Levitt, D.O. (Respondent) of
Albuquerque, New Mexico. The Order to Show Cause notified Respondent of
an opportunity to show cause as to why DEA should not revoke his DEA
Certificate of Registration BL1242750 pursuant to 21 U.S.C. 824(a)(2),
824(a)(3), and 824(a)(4), and deny any pending applications for renewal
of such registration pursuant to 21 U.S.C. 823(f), for reason that he
has been convicted of a felony involving controlled substances, he is
not authorized to handle controlled substances in New Mexico, and his
continued registration is inconsistent with the public interest.
By letter dated March 26, 1999, Respondent, through counsel, filed
a request for a hearing and the matter was docketed before
Administrative Law Judge Gail A. Randall. On March 31, 1999, Judge
Randall issued an Order for Prehearing Statements. In lieu of filing a
prehearing statement, the Government filed a Motion for Summary
Disposition on April 8, 1999, and on April 26, 1999, Respondent filed
his response to the Government's motion.
On May 3, 1999, Judge Randall issued her Opinion and Recommended
Decision, finding that Respondent lacks authorization to handle
controlled substances in the State of New Mexico; granting the
Government's Motion for Summary Disposition; and recommending that
Respondent's DEA Certificate of Registration should be revoked if DEA
precedent remains viable under the circumstances of this case. Neither
party filed exceptions to her opinion, and on June 15, 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 finds that the Government alleged in its
Motion for Summary Disposition that Respondent is currently registered
with DEA to handle controlled substances in the State of New Mexico,
however he is currently without state authority to handle controlled
substances in that state. According to the Government, Respondent's New
Mexico controlled substance registration expired on March 31, 1998, and
has not been renewed. As a result, the Government contended that DEA
cannot maintain Respondent's DEA registration in New Mexico.
In its response to Government's motion, Respondent argued that
although his New Mexico controlled substance registration has expired,
he has filed a renewal application, but the New Mexico Board has failed
to Act upon the application. Respondent asserted that he has filed a
civil action in a New Mexico court requesting that the court order the
New Mexico Board to act upon his application. Accordingly, Respondent
argued that this administrative proceeding should be stayed pending the
outcome of the state proceedings. However, Respondent did not deny that
he was not currently authorized to handle controlled substances in New
Mexico.
As Judge Randall noted, DEA has consistently held that it does not
have the statutory authority under the Controlled Substances Act to
issue a registration for a practitioner unless that practitioner is
authorized by the state in which it practices to handle controlled
substances. Pursuant to 21 U.S.C. 823(f), DEA is authorized to register
a practitioner to dispense controlled substances only if the applicant
is authorized to dispense controlled substances under the laws of the
state in which it conducts business. Further, pursuant to 21 U.S.C.
802(21), a practitioner is defined as ``a physician * * * or other
person licensed, registered, or otherwise permitted, by the United
States or the jurisdiction in which he practices * * * to distribute,
[or] dispense * * *. controlled substance[s] in the course of
professional practice.''
Judge Randall further noted that DEA has also consistently held
that a DEA registration may not be maintained if the applicant or
registration lacks state authority to dispense controlled substances,
even if such lack of state authorization was a result of the expiration
of his/her state registration without further action by the state. See,
e.g., Mark L. Beck, D.D.S., 64 FR 40899 (1999); Gary D. Benke, M.D., 58
FR 65734 (1993); Carlyle Balgobin, D.D.S., 58 FR 46992 (1993); Charles
H. Ryan, M.D., 58 FR 14430 (1993); James H. Nickens, M.D., 57 FR 59847
(1992).
However, Judge Randall expressed concern regarding the Government's
reliance on 21 U.S.C. 824(a)(3) to support the summary revocation of a
registration if the registrant's state authorization has expired. This
section states that:
A registration pursuant to section 823 of this title to * * *
dispense a controlled substance * * * may be suspended or revoked *
* * upon a finding that the registration (3) has had his State
License or registration suspended, revoked, or denied by competent
State authority and is no longer authorized by State law to engage
in the * * * dispensing of controlled substances * * * or has had
the suspension, revocation, or denial of his registration
recommended by competent State authority.
21 U.S.C. 824(a)(3).
As Judge Randall noted, New Mexico has not suspended, revoked, or
denied Respondent's state authority to handle controlled substances,
nor is there any evidence that a competent state authority has
recommended that such action be taken against Respondent's state
authorization. Rather, Respondent's state controlled substance
registration has expired, and the state has failed to act upon his
renewal application. Judge Randall concluded that ``under these
circumstances, the statutory provisions do not seem to be met.''
Therefore, Judge Randall stated that:
[A]lthough contrary to current DEA precedent, I have difficulty
concluding that the Government has triggered section 824(a)(3) under
these circumstances. Consistent with the plain language of the
statute, the more viable resolution would be to deny the
Government's motion due to the state's failure to act in this case,
and to order the reinstatement of the Order for Prehearing
Statements. In that way, this case would continue to hearing on all
alleged bases for revocation. However, such a resolution would be
contrary to current DEA precedent. Accordingly, the Deputy
Administrator would need to intervene and order such an outcome
here.
As a result, Judge Randall found that consistent with DEA
precedent, the only relevant issue is whether Respondent is authorized
to handle controlled substances in New Mexico; that it is undisputed
that Respondent is not currently authorized to handle controlled
substances in New Mexico; and that as a result, a Motion for Summary
Disposition is properly granted.
It is well settled that where there is no material question of fact
involved, or when the facts are agreed upon, there is no need for a
plenary, administrative hearing. Congress did not intend for
administrative agencies to perform meaningless tasks. See Gilbert Ross,
M.D., 61 FR 8664 (1996); Dominick A. Ricci, M.D., 58 FR 51104 (1993);
Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd
[[Page 49823]]
sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
Consequently, Judge Randall recommended that if the Deputy
Administrator determines that the DEA precedent remains viable,
Respondent's DEA Certificate of Registration should be revoked.
The Deputy Administrator agrees with Judge Randall that the plain
language of U.S.C. 824(a)(3) states that a DEA registration may be
revoked if a registrant's state authorization is revoked, suspended, or
denied by competent state authority. However, this leaves DEA in a
dilemma since pursuant to 21 U.S.C. 823(f), DEA can only register a
practitioner if he is authorized by the state to handle controlled
substances, and there is no provision in the statute to deal with
situations where a practitioner is no longer authorized by the state,
yet his state registration was not revoked, suspended, or denied.
Since state authorization was clearly intended to be a prerequisite
to DEA registration, Congress could not have intended for DEA to
maintain a registration if a registrant is no longer authorized by the
state in which he practices to handle controlled substances due to the
expiration of his state license. Therefore, it is reasonable for DEA to
interpret that 21 U.S.C. 824(a)(3) would allow for the revocation of a
DEA Certificate of Registration where, as here, a registrant's state
authorization has expired.
Therefore, the Deputy Administrator concludes that Respondent is
not currently authorized to handle controlled substances in New Mexico,
and that consistent with DEA precedent, DEA cannot maintain his
registration in that state.
Since DEA does not have the authority to maintain Respondent's DEA
registration because he is not currently authorized to handle
controlled substances in New Mexico, the Deputy Administrator concludes
that it is unnecessary to determine whether Respondent's DEA
registration should be revoked based upon the other grounds alleged in
the Order to Show Cause.
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 BL 1242750, previously issued to William D.
Levitt, D.O., be, and it hereby is, revoked. The Deputy Administrator
further orders that any pending applications for renewal of such
registration, be, and they hereby are, denied. This order is effective
October 14, 1999.
Dated: August 24, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-23668 Filed 9-13-99; 8:45 am]
BILLING CODE 4410-09-M