[Federal Register Volume 65, Number 24 (Friday, February 4, 2000)]
[Notices]
[Page 5678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2530]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99-33]


Brett L. Lusskin, M.D.; Revocation of Registration

    On August 10, 1999, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Brett L. Lusskin, M.D. (Respondent), of 
Hallandale, Florida, notifying him of an opportunity to show cause as 
to why DEA should not revoke his DEA Certificate of Registration 
AL0133102, and deny any pending applications for renewal of such 
registration as a practitioner pursuant to 21 U.S.C. 823(f) and 
824(a)(3). The Order to Show Cause alleged that Respondent is not 
currently authorized to handle controlled substances in the State of 
Florida.
    By letter dated September 8, 1999, Respondent, through counsel, 
filed a request for a hearing, and the matter was docketed before 
Administrative Law Judge Gail A. Randall. On October 7, 1999, the 
Government filed a Motion for Summary Disposition, alleging that 
Respondent is currently registered with DEA to handle controlled 
substances in Florida, however he is not currently authorized by the 
State of Florida to handle controlled substances. On November 1, 1999, 
Respondent filed a response to the Government's motion arguing that 
Judge Randall does not have sufficient evidence to support the 
allegation that Respondent lacks authorization to handle controlled 
substances in Florida.
    On November 15, 1999, Judge Randall issued her Opinion and 
Recommended Decision finding that Respondent lacks authorization to 
handle controlled substances in the State of Florida; granting the 
Government's Motion for Summary Disposition; and recommending that 
Respondent's DEA Certificate of Registration be revoked. Neither party 
filed exceptions to her Opinion and Recommended Decision, and on 
December 14, 1999, Judge Randall transmitted the record of these 
proceedings to the Office of 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 Respondent currently possesses 
DEA Certificate of Registration AL0133102, issued to him at an address 
in Hallandale, Florida. The Deputy Administrator further finds that on 
May 7, 1998, the Medical Board of the State of Florida (Medical Board) 
issued a final order indefinitely suspending Respondent's medical 
license. In an Opinion filed on March 31, 1999, the District Court of 
Appeal of the State of Florida, Fourth District, granted Respondent a 
new hearing before the Medical Board but declined to stay the 
suspension of Respondent's medical license.
    In his response to the Government's motion, Respondent argued that 
he is retired from the active practice of medicine, and therefore, his 
continued registration poses no risk to the public interest. 
Additionally, Respondent noted that he has filed an Amended Complaint 
with the Agency for Health Care Administration and expects a hearing in 
the near future.
    In her Opinion and Recommended Decision, Judge Randall found that 
the Government presented credible evidence that Respondent's Florida 
medical license was indefinitely suspended, and the suspension has not 
been stayed. Respondent has presented no evidence to the contrary. As 
Judge Randall noted, ``[a] pending rehearing of the Medical Board's 
decision does not alter the Respondent's status in Florida. The outcome 
of a rehearing of the Medical Board's action is speculative, and the 
decision of the Medical Board is final until otherwise overturned.''
    Therefore, the Deputy Administrator finds that Respondent is not 
currently authorized to practice medicine in the State of Florida and 
as a result, it is reasonable to infer that he is also not authorized 
to handle controlled substances in that state.
    DEA does not have 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 16,193 (1997); Demetris A. Green, M.D., 
61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993).
    Here, it is clear that Respondent is not licensed to handle 
controlled substances in Florida. Since Respondent lacks this state 
authority, he is not entitled to a DEA registration in that state.
    In light of the above, Judge Randall 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 Florida. 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 Gilbert Ross, M.D., 61 FR 8664 (1996); 
Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk v. 
Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association 
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 
(9th Cir. 1977).
    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 
Certificates of Registration AL0133102, issued to Brett L. Lusskin, 
M.D., 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 March 6, 2000.


    Dated: January 18, 2000.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 00-2530 Filed 2-3-00; 8:45 am]
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