[Federal Register Volume 67, Number 97 (Monday, May 20, 2002)]
[Notices]
[Pages 35582-35583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12495]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Layfe Robert Anthony, M.D.; Revocation of Registration

    On June 22, 2001, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause (OTSC) by certified mail to Layfe Robert Anthony, 
M.D., (Respondent) notifying him of an opportunity to show cause as to 
why the DEA should not revoke his DEA Certificate of Registration 
BA4090320, pursuant to 21 U.S.C. 834(a)(3), and deny any pending 
applications for renewal of this registration, pursuant to 21 U.S.C. 
823(f), for the reason that Respondent is not currently authorized to 
practice medicine or to handle controlled substances in Utah, the state 
in which he is registered.
    By letter received August 6, 2001, Respondent, through counsel, 
requested a hearing in this matter. On August 10, 2001, the Government 
filed a Request for Stay of Proceedings and Motion for Summary 
Disposition. By Order dated August 15, 2001, Administrative Law Judge 
Gail A. Randall (Judge Randall) granted Respondent time to respond to 
the Government's Motion. On August 23, 2001, the Respondent timely 
filed Respondent's Memorandum in Opposition to Government's Request for 
Stay and Summary Disposition. On August 29, 2001, Judge Randall issued 
an Order Granting a Stay in this proceeding. The Stay was lifted by her 
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge dated October 2, 2001 (Opinion and 
Recommended Ruling), granting the Government's Motion for Summary 
Disposition. The record of these proceedings was subsequently 
transmitted to the Deputy Administrator for his final decision November 
20, 2001.
    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 Government requests summary disposition based upon its 
allegation that Respondent does not have state authority to handle 
controlled substances. The Government attached to its motion a copy of 
an Emergency Order, entered by J. Craig Jackson, R.Ph., Director of 
Occupational and Professional Licensing, Department of Commerce, State 
of Utah, dated April 3, 2001. In the Order, Director Jackson ordered 
the immediate suspension of the Respondent's licenses to perform 
surgery and to administer and prescribe controlled substances, 
``pending further order of the Division.'' Director Jackson further 
stated that the Division will issue a restricted license to the 
Respondent pending a formal adjudicative proceeding in the matter.
    The DEA does not have the statutory authority pursuant to the 
Controlled Substances Act to issue or to maintain a registration if the 
application or registrant is without state authority to

[[Page 35583]]

handle controlled substances in the state in which he or she practices. 
See 21 U.S.C. 802(21), 823(f), and 824(a)(3). This prerequisite has 
been consistently upheld in prior DEA cases. See Graham Travers 
Schuler, M.D., 65 FR 50,570 (2000); 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).
    In the instant case, the Deputy Administrator finds the Government 
has presented undisputed evidence demonstrating that the Respondent is 
not authorized to practice medicine or to administer or prescribe 
controlled substances in the State of Utah.
    Respondent contends the Emergency Order resulted from a closed 
hearing in which he was not permitted to appear, call witnesses, 
confront his accusers, or participate in any meaningful fashion. 
Respondent argues that because a formal hearing has yet to be 
concluded, the matter before the DEA should be stayed pending the 
outcome of the proceeding before the Utah State Division of 
Occupational and Professional Licensing. In support of this contention, 
Respondent cites to Hezekiah K. Heath, M.D., 51 FR 26,612 (1986) 
(Heath) for the proposition that the DEA has recognized it cannot rely 
upon a state's suspension where the respondent in a DEA hearing did not 
have the opportunity to contest the state's action in a plenary 
hearing.
    The Deputy Administrator concurs with Judge Randall's reading of 
Heath, which she found ``did not create an exception to the statutory 
mandate for cases in which a registrant's state license has been 
suspended by the appropriate state licensing authority without a 
hearing. Rather, the Administrator informed the Respondent that the DEA 
would accept as lawful and valid, a state regulatory board's order, 
unless and until such order had been overturned `by a state court or 
otherwise pursuant to state law.' '' Heath further found that he DEA 
proceedings were an inappropriate forum in which to challenge a state 
regulatory board's order. The Deputy Administrator hereby reaffirms 
Heath's conclusion that ``* * * 21 U.S.C. 824(a) clearly provides that 
a registrant's state license need only have been suspended to provide a 
lawful basis for revocation of a DEA registration.'' Id at 26,612.
    The Deputy Administrator further concurs with Judge Randall's 
finding that respondent's allegation that he was authorized to handle 
controlled substances in the State of Nevada is not supported by the 
evidence, meritless, and ultimately irrelevant. Respondent's DEA 
Certificate of Registration is for a Utah address, and Respondent is 
not authorized to practice medicine or to handle controlled substances 
in Utah.
    The Deputy Administrator also concurs with Judge Randall's finding 
that it is well settled that when there is no question of material fact 
involved, there is no need for a plenary, administrative hearing. 
Congress did not intend for administrative agencies to perform 
meaningless tasks. See Michael G. Dolin, M.D., 65 FR 5,661 (2000); 
Jesus R. Juarez, M.D., 62 FR 14,945 (1997); see also Philip E. Kirk, 
M.D., 48 FR 32,887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 
(6th Cir. 1984).
    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 BA4090320, issued to Layfe Robert Anthony, 
M.D., be, and it hereby is, revoked; and that any pending applications 
for the renewal or modification of said Certificate be, and hereby are, 
denied. This order is effective June 19, 2002.

    Dated: May 6, 2002.
John B. Brown, III,
Deputy Administrator.
[FR Doc. 02-12495 Filed 5-17-02; 8:45 am]
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