[Federal Register Volume 67, Number 238 (Wednesday, December 11, 2002)]
[Notices]
[Pages 76193-76195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31209]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


K-Nine Detectives; Denial of Application

    On July 16, 2001, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to K-Nine Detectives (Respondent), proposing to 
deny its application, executed on February 14, 2000, for DEA 
Certificate of Registration as a researcher. The application was 
submitted on behalf the Respondent by its owner, Shane Kessler (Mr. 
Kessler). The Order to Show Cause alleged that granting the 
Respondent's application would be inconsistent with the public interest 
as that term is used in 21 U.S.C 823(f).
    The Order to Show Cause was delivered by certified mail on July 23, 
2001, and the Respondent timely requested a hearing. However, after the 
matter was docketed before Administrative Law Judge Mary Ellen Bittner, 
and the Government submitted its prehearing statement, the Respondent 
withdrew its request for hearing. Accordingly, Judge Bittner terminated 
all proceedings before her and the matter was subsequently transmitted 
to the Deputy Administrator for Final Agency Decision.
    In light of the withdrawal of its request for hearing, the Deputy 
Administrator finds that the Respondent has waived its hearing right. 
After considering material from the investigative file in this matter, 
the Deputy Administrator now enters his final order without a hearing 
pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
    The Deputy Administrator finds that Mr. Kessler submitted a DEA 
registration application seeking to register K-Nine Detectives at his 
home address in Tigard, Oregon. The Respondent sought authorization to 
handle controlled substances in Schedules I through V as a researcher. 
Included among the Schedule I controlled substances the Respondent 
sought to handle were heroin and marijuana. The Respondent also 
requested authorization to handle Schedule II controlled substances, 
cocaine, opium, powdered opium and methamphetamine.
    Upon submission of Respondent's application, Mr. Kessler informed 
the DEA field office in Portland, Oregon that he planned to hire 
himself and his dogs to perform drug searches as schools, factories, 
and other private premises. DEA learned that Mr. Kessler had no 
previous experience with training dogs for purposes of drug detection.
    In light of his lack of experience in drug-detection, a DEA 
diversion investigator urged Mr. Kessler to contact local law 
enforcement authorities to discuss his planned business activities. The 
investigator also requested that Mr. Kessler determine whether there 
was a need for such services in his community as well as in other parts 
of Oregon. DEA subsequently learned from the Tigard Chief of Police and 
the Sheriff of Washington County (of which the city of Tigard is a 
part) that both sought to dissuade Mr. Kessler from his planned 
business venture because there was adequate coverage by law enforcement 
canine drug teams in the area.
    Mr. Kessler also submitted with his registration application the 
first of three research protocols. In the original protocol, Mr. 
Kessler reported that he would have on hand up to five lbs. each of 
heroin, marijuana, cocaine, opium, methamphetamine, and crack cocaine. 
In a subsequent revised protocol sent to DEA, Mr. Kessler then reduced 
the drug quantities to \1/2\ lb. of marijuana and \1/4\ lb. of the 
remaining substances. In the third protocol, Mr. Kessler again revised 
the quantities of controlled substances that he would have on hand. On 
all three protocols, Mr. Kessler stated that his canines would search 
for drugs and explosives, even though he previously reported that his 
dogs were trained to detect only drugs and not explosives. In addition, 
while the Respondent's DEA registration application sought 
authorization to handle controlled substances in Schedule I through V, 
the research protocols provided by the Respondent only made mention of 
drugs in Schedules I and II.
    DEA obtained additional information from the Washington County 
Sheriff's Department and the Drugs and Vice Division of the Portland 
Police Bureau (which both handle drug-detecting dogs) regarding the 
need for certifications for drug detecting dogs. DEA was informed that 
for purposes of court testimony, the handler of a drug-detecting dog 
would have to show that the dog had passed, at minimum, an annual 
certification. However, the Oregon Police Canine Association, the 
primary certifying organization for drug-detecting dogs, does not 
provide certifications for non-law enforcement dog handlers. The Deputy 
Administrator finds that the Respondent is not affiliated with any law 
enforcement entities.
    During a regulatory inspection of its proposed registered location 
on April 24, 2001, DEA learned that the

[[Page 76194]]

Respondent does not have any customers for which it will perform 
searches with dogs. Mr. Kessler also stated that he had not spoken to 
any business owners about hiring his company to perform drug-detection 
services. However, he informed DEA investigations that he had spoken to 
the principal and vice-principal of Century High School in Hillsboro, 
Oregon about hiring his company to perform drug searches of lockers and 
the school's personnel seemed receptive to the proposal. Mr. Kessler 
further informed DEA investigators that he had also approached the 
vice-principals of Tigard and Beaverton High School about performing 
drug detection services at their institutions.
    Despite Mr. Kessler's representations, DEA investigators 
subsequently learned from the principal of Century High that the 
governing board for the entire Hillsboro school district decided 
against general searches through any of the district's schools through 
the use of a drug-detecting dog. The principal stated that if 
circumstances warranted a search, they would utilize the services of 
drug dogs trained by the Washington County Sheriff's Department. The 
principal added that this arrangement would not cost the school any 
additional funds. DEA investigators also learned that Mr. Kessler had 
never approached the vice-principal of Century High School regarding 
the use of drug searching dogs.
    The Deputy Administrator finds that a DEA investigator also 
contacted officials from Tigard and Beaverton High Schools. Both 
schools reported that they had not been approached by Mr. Kessler 
regarding the use of drug detection dogs. In addition, both 
institutions had contingency plans in place for drug detection that 
relied upon the services of city and county law enforcement 
authorities.
    The Deputy Administrator also finds that a DEA investigator 
consulted with several law enforcement officers with experience in 
conducting drug searches with canines. One of the persons interviewed 
was a detective for the Gresham (Oregon) Police Department who was also 
a Task Force Officer (TFO) for DEA's Airport Task Force and a former 
President and ``Master Trainer'' of the Oregon Police Canine 
Association. Upon his review of the quantities of controlled substances 
the Respondent proposed for use in training, the officer found that 
there was no rationale for possessing more than 50 grams total of any 
drug for on-going dog training purposes. The officer concluded that the 
quantities outlined in the Respondent's Research Protocols far exceeded 
those required to conduct drug-detection training with canines.
    The Deputy Administrator also finds that DEA investigators 
interviewed individuals from the private sector involved in dog 
training for drug-detection purposes. The general response from those 
entities was that there is no demand in the private sector for drug-
detection services involving schools and businesses.
    The Deputy Administrator also finds that DEA investigators also 
consulted with the Chief Deputy of the Washington County Sheriff's 
Office regarding the Respondent's proposed registration with DEA. The 
Chief Deputy expressed concerns about Respondent's plan to possess 
controlled substances and conduct training at specified locations such 
as schools and businesses. Among his concerns was that the Respondent's 
registered location would be within a few hundred yards of a middle 
school. The Chief Deputy expressed further concern that introduction of 
controlled substances in close proximity to a school would pose a 
health and safety threat to schoolchildren. Finally, the Washington 
County Sheriff's Office further informed DEA of information received 
that the District Attorney of Washington County would not prosecute any 
case where controlled substances had been seized as a result of a 
search conducted by the Respondent.
    Pursuant to 21 U.S.C. 823(f), the Deputy 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 that 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 or 
safety.
    These factors are to considered in the disjunctive; the Deputy 
Administrator may rely on any one or a 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 
denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16422 (1989).
    It is clear that granting the Respondent's application for DEA 
Certificate of Registration would be inconsistent with the public 
interest. The Respondent has requested authorization to handle 
controlled substances in Schedules I through V although its research 
protocols only reference drugs in Schedules I and II. The Deputy 
Administrator finds that the drugs outlined in the protocols are in 
quantities far in excess of what is required to conduct research 
involving canines.
    The Deputy Administrator finds that the Respondent seeks to engage 
in an activity that is not needed in the area in which it seeks 
registration. The Deputy Administrator also finds that the Washington 
County Sheriff's Department, the Drugs and Vice Division of the 
Portland Police Bureau, and other local law enforcement entities have 
narcotics detection canines of sufficient numbers to service the needs 
of the law enforcement community, businesses and private citizens. DEA 
has previously found such factor relevant in denying an application for 
registration as a researcher. See, e.g., Albanoski, Broughton & 
Associates International, 57 FR 4646 (1992); K-9 Drug Detection 
Services of Florida, Inc., 56 FR 5238 (1991).
    DEA has also found that grounds exist to deny an application for 
registration as a researcher where, as in this matter, the applicant 
lacks relevant experience in training canines for drug detection 
purposes. Angelos Michalatos d/b/a/ Contraband Searches and 
Investigation, 54 FR 48161 (1989).
    No evidence has been submitted on behalf of the applicant. 
Therefore, the Deputy Administrator concludes that the Respondent has 
failed to demonstrate a need for, or the ability to perform, the 
activity for which it sought registration to handle controlled 
substances. Based on the above, the Deputy Administrator concludes that 
the Respondent's registration would be inconsistent with the public 
interest and therefore, its application for registration must be 
denied.
    Accordingly, the deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 28 CFR 0.100(b), hereby orders that the application for DEA 
Certificate of Registration as a researcher submitted by Shane Kessler 
on behalf of K-Nine Detectives be, and it hereby is, denied. This order 
is effective January 10, 2003.


[[Page 76195]]


    Dated: November 20, 2002.
John B. Brown, III,
Deputy Administrator.
[FR Doc. 02-31209 Filed 12-10-02; 8:45 am]
BILLING CODE 4410-09-M