[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Notices]
[Pages 52937-52938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26178]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michael W. Dietz, D.D.S; Denial of Application

    On July 24, 2000, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause (OTSC) by certified mail to Michael Wayne Dietz, 
D.D.S., (Respondent) notifying him of an opportunity to show cause as 
to why the DEA should not deny his application dated June 21, 1999, for 
registration as a practitioner, pursuant to 21 U.S.C. 823(f), on the 
grounds that such registration would be inconsistent with the public 
interest. The order also notified Respondent that should no request for 
hearing be filed within 30 days, his right to a hearing would be deemed 
waived.
    By letter dated August 21, 2000, the Respondent, acting pro se, 
requested a hearing in this matter. On September 7, 2000, 
Administrative Law Judge Gail A. Randall issued an Order for Prehearing 
Statements, and also mailed a letter to Respondent informing him of his 
right to representation in these proceedings, attaching a copy of 21 
CFR 1316.50 (2000) to her letter.
    On September 11, 2000, Judge Randall timely received the 
Government's Prehearing Statement. By letter dated September 21, 2000, 
the Respondent requested an extension of three months from his October 
19, 2000, filing date to retain counsel and to address documents 
mentioned in the Government's Prehearing Statement. Judge Randall 
stayed these proceedings in an Order, issued October 2, 2000, and 
allowed the Government an opportunity to respond to the Respondent's 
request.
    On October 3, 2000, Judge Randall received the Government's 
Objection to Request for Extension. On October 6, 2000, Judge Randall 
issued an Order that extended Respondent's filing date and directed the 
Respondent to file a prehearing statement on or before November 9, 
2000. The Order included a warning that no further extensions in this 
matter would be granted absent extraordinary circumstances. There is no 
evidence in the investigative file that Respondent responded in any 
fashion to Judge Randall's October 6, 2000, Order.
    The Administrator of the Drug Enforcement Administration, having 
completely reviewed the investigative file in this matter, hereby 
issues his final order without a hearing, pursuant to 21 CFR 1301.43(d) 
and 1301.46 (2001).
    When a party fails to file a prehearing statement, that failure is 
deemed a waiver of that party's right to a hearing. See Bill Loyd Drug, 
64 FR 1823 (1999). Upon a finding of a waiver by the Administrative Law 
Judge, the record is transmitted to the Deputy Administrator's office 
for entry of a final order based upon the investigative file. See id 
See also 21 CFR 1301.43(e) (2001).
    In the instant matter, the Respondent received the Order for 
Prehearing Statements, as evidenced by his request for an extension of 
time. Moreover, the Respondent had ample time to respond, especially 
considering that an extension of more than one month was granted by 
Judge Randall. To date, Respondent has offered no submissions or 
explanations for his failure to continue his action. The Administrator 
concurs with Judge Randall's conclusion that the Respondent has waived 
his right to a hearing, and that this matter is now properly before the 
Administrator for the entry of his final order without a hearing, 
pursuant to the authority cited above.
    The Administrator finds as follows. By Order dated May 15, 1999, 
and published at 64 FR 15805, the then-Deputy Administrator revoked Dr. 
Dietz's DEA Certificate of Registration, based on his lack of state 
authorization to practice dentistry. The investigative file reveals 
that Respondent's license to practice dentistry was revoked by Order of 
the Tennessee Board of Dentistry (Board) dated May 27, 1998, based upon 
unprofessional conduct, personal misuse of controlled substances, and 
dispensing, prescribing, or otherwise distributing controlled 
substances not in the course of professional practice. Respondent was 
also assessed civil penalties in the amount of $4,000, and was required 
to contract with and maintain the advocacy of the Concerned Dentists 
Committee, and to seek treatment and rehabilitation for his drug 
addiction. By Order dated May 13, 1999, the Board reinstated 
Respondent's license to practice dentistry. Conditions of this 
reinstatement were that Respondent maintain the contract with the 
Concerned Dentists Committee, and be on probation for five years. 
Respondent applied for a new DEA Certificate of Registration by 
application dated June 21, 1999.
    The Board was subsequently notified on January 14, 2000, by the 
Concerned Dentists Committee that Respondent had tested positive for 
cocaine, and had refused treatment. A hearing before the Board was 
scheduled to determine what action should be taken with regard to 
Respondent's state dentistry license. Respondent subsequently entered 
treatment, which postponed the hearing and resulted in his license to 
practice dentistry being suspended indefinitely.
    Thereafter, in a Notice of Charges and Memorandum of Assessment of 
Civil Penalty (Notice) dated March 20, 2000, the Board proposed a 
penalty of $1,000 for Respondent's violation of his probation, and set 
the matter for hearing on May 11, 2000. The Notice also informed 
Respondent that the issues to be considered would include ``whether the 
proposed civil penalty shall be affirmed or whether a different type 
and amount of civil penalty is justified and assessable and/or whether 
the Respondent's license shall be revoked, suspended or otherwise 
disciplined.''
    Pursuant to 21 U.S.C. 823(f), the Administrator may deny an 
application for a DEA Certificate of Registration if he determines that 
granting the registration would be inconsistent with the public 
interest. Section 823(f) requires 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 disjunctive; the 
Administrator may rely on any one or combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
a registration should be revoked or an application for registration be 
denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16422 (DEA 1989).
    The Administrator has reviewed the five factors, and finds that 
factors (2), (3), (4), and (5) are most relevant to the instant matter.
    Specifically, the Administrator finds with regard to factor two 
that Respondent was convicted of two felony violations of unlawfully 
distributing a controlled substance, and further that his state 
dentistry license was revoked

[[Page 52938]]

based inter alia on his personal misuse of controlled substances; and 
therefore concludes that Respondent clearly mishandled controlled 
substances in the past, and failed to comply with laws relating to 
controlled substances. See Robert A. Leslie, 64 FR 25908 (1999). 
Respondent apparently continues to mishandle controlled substances, as 
evidenced by the January 14, 2000, report of the Concerned Dentists 
Committee to the Board regarding Respondent's testing positive for 
cocaine use, in violation of his probation.
    With regard to factor three, the investigative file reveals 
Respondent was convicted on or about January 6, 1999, in the Criminal/
Circuit Court of Putnam County, Tennessee, of two felony violations of 
unlawfully distributing the Schedule II controlled substance cocaine. 
Respondent was sentenced to five years imprisonment, with all but 
ninety days suspended.
    With regard to factor four, the Administrator finds that the 
investigative file reveals Respondent tested positive for the use of 
cocaine, as set forth in the January 14, 2000, report from the 
Concerned Dentists Committee to the Board, in violation of his 
probation. The Administrator therefore finds that Respondent continues 
to violate State and federal laws relating to controlled substances.
    With regard to factor five, the Administrator finds that the 
investigative file reveals substantial evidence that Respondent is a 
self-abuser, in that he ingests controlled substances for no legitimate 
medical reason. This is evidenced not only by the January 14, 2000, 
report set forth in factor four above, but also by evidence that 
Respondent's license to practice dentistry was revoked by the Board by 
Order dated May 27, 1998, for inter alia personal misuse of controlled 
substances. This pattern of self-abuse does not bode well for the 
health and safety of Respondent's patients, nor for Respondent's future 
compliance with State and Federal laws and regulations relating to 
controlled substances.
    Therefore, for the above-stated reasons, the Administrator 
concludes that it would be inconsistent with the public interest to 
grant Respondent's application.
    Accordingly, the 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 a DEA Certificate of Registration submitted by Michael 
Wayne Dietz, D.D.S., be, and it hereby is, denied. This order is 
effective November 19, 2001.

    Dated: October 10, 2001.
Asa Hutchinson,
Administrator.
[FR Doc. 01-26178 Filed 10-17-01; 8:45 am]
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