[Federal Register Volume 65, Number 161 (Friday, August 18, 2000)]
[Notices]
[Pages 50566-50567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21005]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Alfred R. Brown, D.D.S.; Denial of Application

    On October 8, 1999, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Alfred R. Brown, D.D.S. (Respondent) of Memphis, 
Tennessee, notifying him of an opportunity to show cause as to why DEA 
should not deny his application for a DEA Certificate of Registration 
pursuant to 21 U.S.C. 823(f) for reason that his registration would be 
inconsistent with the public interest.
    By letter dated November 9, 1999, Respondent file a request for a 
hearing and the matter was docketed before Administrative Law Judge 
Mary Ellen Bittner. On November 15, 1999, Judge Bittner issued an Order 
for Prehearing Statements, and on November 23, 1999, the Government 
filed its prehearing statement. Respondent was given until December 27, 
1999, to file his prehearing statement. In her Order for Prehearing 
Statements, the Administrative Law Judge cautioned Respondent ``that 
failure to file timely a prehearing statement as directed above may be 
considered a waiver of hearing and an implied withdrawal of a request 
for hearing.''
    Respondent did not file a prehearing statement. As a result, on 
January 6, 2000, Judge Bittner issued an Order Terminating Proceedings, 
finding that because Respondent did not file a prehearing statement he 
is deemed to have waived his opportunity for a hearing. Since 
Respondent has waived his right to a hearing, the Administrator hereby 
enters his final order without a hearing and based upon the 
investigative file pursuant to 21 CFR 1301.43(e) and 1301.46.
    The Administrator finds that Respondent previously possessed DEA 
Certificate of Registration AB5661980. This registration expired 
without being renewed and was subsequently retired in March 1987.
    The Administrator further finds that on February 6, 1990, the 
Tennessee Department of Health and Environment, Board of Dentistry 
(Board) issued an Order of Summary Suspension which suspended 
Respondent's license to practice dentistry. The Board found that 
between October 1987 and February 1990, Respondent prescribed, 
administered, dispensed, and acquired controlled substances when he was 
not authorized to do so in violation of 21 U.S.C. 841(a)(7). In 
addition, during this same period, Respondent indiscriminately 
prescribed controlled substances to patients in amounts in excess of 
those amounts medically necessary, prescribed controlled substances to 
known drug abusers, acquired controlled substances by prescription for 
office use, and failed to keep proper dental records, all in violation 
of State and Federal laws.
    Subsequently, in an Agreed Order filed on May 22, 1990, the Board 
limited the suspension of Respondent's license to a period of six 
months, ordered that he surrender his DEA registration, and placed his 
license on probation for five years. Thereafter, on three separate 
occasions during 1990 and 1992, the Board found that Respondent was not 
in compliance with the terms of his probation.
    On January 22, 1996, pursuant to another Agreed Order, the Board 
again suspended Respondent's dental license for a period of thirty 
days, based on his failure to refund proceeds from an insurance claim 
for services he did not provide.
    Evidence in the record indicates that it was not until June 11, 
1998, that the Board issued an Order allowing Respondent to seek a DEA 
registration.

[[Page 50567]]

    Pursuant to 21 U.S.C. 823(f), the 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:
    (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 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
an application should be denied. See Henry J. Schwarz, Jr., M.D., 54 FR 
16,422 (1989).
    As to factor one, documentation in the file indicates that 
Respondent's license to practice dentistry was summarily suspended in 
1990. Then effective May 22, 1990, Respondent and the Board entered 
into an Agreed Order whereby Respondent's license was suspended for six 
months followed by five years probation, he was fined $1,500.00, and he 
was precluded from seeking reinstatement of his DEA registration for at 
least five years. Respondent entered into another Agreed Order with the 
Board in January 1996, which suspended his license again for a 30 day 
period. As of 1998, Respondent's license was reinstated and he received 
permission from the Board to seek reinstatement of his DEA 
registration.
    Regarding factors two and four, Respondent's experience in handling 
controlled substances and his compliance with applicable laws relating 
to controlled substances, the Administrator has considered what 
evidence is available to him. The Board orders found in the 
investigative file indicate that between October 1987 and February 
1990, Respondent prescribed, administered, dispensed, and acquired 
controlled substances when he was not authorized to do so in violation 
of 21 U.S.C. 841(a)(1). In addition, during this same period, 
Respondent indiscriminately prescribed controlled substances to 
patients in amounts in excess of those amounts medically necessary, 
prescribed controlled substances to known drug abusers, acquired 
controlled substances by prescription for office use, and failed to 
keep proper dental records, all in violation of State and Federal laws.
    The Administrator notes that there is no evidence in the 
investigative file of the underlying facts which led to the Board's 
findings. However, it is also noted that Respondent has not submitted 
any contradictory evidence.
    As to factors three and five, there is no evidence in the 
investigative file that Respondent has been convicted of any controlled 
substance related offense nor of any other conduct by Respondent that 
may threaten the public health and safety.
    The Administrator concludes that while there is no evidence of the 
underling facts which led to the Board's actions, it is clear that 
Respondent's mishandling of controlled substances was serious enough to 
warrant the suspension of his dental license. Respondent has not 
presented any mitigating evidence. Therefore, the Administrator 
concludes that Respondent's registration would be inconsistent with the 
public interest.
    Accordingly, the Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 0.100(b), hereby orders that the application for 
registration submitted by Alfred R. Brown, D.D.S., be, and it hereby 
is, denied. This order is effective October 17, 2000.

    Dated: August 3, 2000.
Donnie R. Marshall,
Administrator.
[FR Doc. 00-21005 Filed 8-17-00; 8:45 am]
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