[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Notices]
[Pages 10750-10754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5279]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 00-12]


Jeffrey Martin Ford, D.D.S. Grant of Restricted Registration

    On October 29, 1999, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Jeffrey Martin Ford, D.D.S. (Respondent), 
proposing to deny his application for a DEA Certificate of Registration 
pursuant to 21 U.S.C. 823(f) and 824(a).
    By letter dated November 22, 1999, the Respondent requested a 
hearing on the issues raised by the Order to Show Cause. Following 
prehearing procedures, a hearing was held on June 15, 2000, in Boston, 
Massachusetts. At the hearing, the Government called two witnesses to 
testify and the Respondent testified on his behalf. Both parties also 
introduced documentary evidence. After the hearing, both parties 
submitted proposed findings of fact, conclusions of law, and argument. 
On February 6, 2001, Administrative Law Judge Mary Ellen Bittner (Judge 
Bittner) issued her Opinion and Recommended Ruling, Findings of Fact, 
Conclusions of Law and Decision, recommending that Respondent's 
application for registration be granted subject to various conditions. 
Neither party filed exceptions to Judge Bittner's opinion, and on March 
6, 2001, Judge Bittner transmitted the record of these proceedings to 
the then-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 recommended rulings of 
fact, conclusions of law and decision of the Administrative Law Judge. 
His adoption is in no manner diminished by any recitation of facts, 
issues, or conclusions herein, or of any failure to mention a matter of 
fact or law.
    The Deputy Administrator finds that the Respondent graduated from 
dentistry school in 1972, and following 24-month residency in 
orthodontics at Case Western Reserve University School of Dentistry, he 
established an orthodontic practice in Boston Massachusetts in 1974. In 
1983, the Respondent relocated to Phoenix, Arizona, where he became 
licensed to practice dentistry, and then established

[[Page 10751]]

a solo practice in Tempe, Arizona the following year.
    On May 13, 1986, an Arizona State trooper stopped the Respondent's 
vehicle when he was apparently observed operating an automobile in an 
erratic fashion.Upon a search of the vehicle, the state trooper 
discovered what laboratory tests later revealed as 1.6 grains of 
cocaine and various marijuana cigarettes. The Respondent was arrested 
and charged with possession of a narcotic drug. On cross-examination 
during the hearing, the Respondent testified that the Arizona trooper 
was not justified in making the initial traffic stop of his vehicle, 
and made up a reason for stopping him.
    On January 23, 1987, the Respondent pled guilty to solicitation to 
possess a narcotic drug, a class 6 undesignated felony offense under 
Arizona law. During the administrative hearing, the Respondent 
acknowledged that the cocaine was his, and that the drug was for his 
personal use. The Respondent further testified that he regretted the 
incident, and admitted that he squandered his opportunities in Arizona 
``due to [his] own stupidity with drugs.''
    The Government introduced a copy of a Presentence Investigation 
Report (PSIR). The PSIR was compiled in conjunction with the Arizona 
criminal proceeding, to assist the state court judge in sentencing the 
Respondent following his conviction for possession of a narcotic drug. 
The PSIR revealed that the Respondent had used marijuana, LSD, 
mescaline and cocaine prior to the arrest that led to his conviction. 
The Respondent was also quoted in the PSIR as commenting that his 
sentence should be a ``slap on the wrist'' and that he should be sent 
back to work.
    At the hearing, the Respondent testified that he did not use 
cocaine until after his May 1986 arrest in Arizona. However, when 
confronted with his PSIR statement about his past drug use, he admitted 
that he used cocaine three or four times, but had not developed a 
``taste'' for it until after his May 1986 arrest.
    On February 19, 1987, the Respondent was sentenced to three years 
probation and 100 hours of community service, however that sentence was 
modified in June 1987 to allow the Respondent to pay a fine. The 
Respondent subsequently petitioned the court to modify the terms and 
conditions of his probation, and his probation was terminated. The 
court also designated the charged offense as a misdemeanor. The 
Respondent testified during the hearing, however, that following his 
release from probation, his application for reinstatement of his dental 
license was denied.
    On March 16, 1987, the Arizona State Board of Dental Examiners 
(Arizona Dental Board) summarily suspended the Respondent's dental 
license in that state, based upon his criminal conviction. On that same 
day, the Respondent provided a urine sample to the Arizona Board, which 
tested positive for cocaine. The Respondent did not deny the use of 
cocaine, and subsequently entered the St. Luke's Substance Abuse 
Program. On June 17, 1987, the Arizona Dental Board revoked the 
Respondent's dental license on grounds that he continued to practice 
dentistry notwithstanding the suspension of his license and had tested 
positive for cocaine on March 16, 1987.
    On September 23, 1987, the Respondent was notified by the DEA 
Phoenix office that his DEA Certificate of Registration was subject to 
revocation because of the revocation of his state dental license, and 
because he lacked state authorization to handle controlled substances. 
As a result, on February 10, 1988, the Respondent surrendered his 
previous DEA Certificate of Registration.
    In or around January 1990, the Respondent relocated to Fall River, 
Massachusetts where he worked temporarily in a dental clinic, before 
purchasing a dental practice in Springfield and renting a house in 
South Hadley in September of that year. At that time, the Respondent 
resumed his use of cocaine, and in March 1991, he resumed using 
marijuana.
    In February 1991, the United States Postal Service became aware 
that the Respondent had purchased $18,000 in money orders, and sent 
them via Express Mail to an individual by the name of Marty Shatz (Mr. 
Shatz) in Scottsdale, Arizona. On March 1, 1991, an Express Mail 
package weighing 5 ounces was mailed from Los Angeles, California to 
the Respondent at his residence in South Hadley. The U.S. Postal 
Service believed that the package contained controlled substances, and 
on July 24, 1991, requested and obtained a search warrant to inspect 
the contents of the package. The package was later opened and its 
contents tested positive for methamphetamine. The package was then 
returned to the mail stream, and the post office notified the 
Respondent that it has arrived. The Respondent, under the surveillance 
of law enforcement officers, was observed picking up the package and 
returning to this home with it.
    The Respondent was subsequently arrested by United States Postal 
Inspectors outside of his home. At the time of his arrest, the 
Respondent requested permission to re-enter his home. When the 
Respondent was accompanied into his home, arresting officers observed 
$13,000 in cash in the Respondent's bedroom, and a marijuana growing 
operation. The Respondent also replied in the negative when asked 
whether there were any weapons in his home.
    During the subsequent execution of a search warrant at the 
Respondent's home, U.S. Postal Inspectors located growing marijuana 
plants, packaged marijuana, items used to cultivate marijuana such as 
an electronic scale and a timer, and several postal receipts for 
Express Mail packages from the Respondent to Arizona. The search also 
revealed a loaded .357 Magnum handgun and two loaded speed loaders in a 
bedroom closet.
    The Respondent testified during the hearing that he received four 
packages of cocaine through the mail from Mr. Shatz, a long time 
acquaintance. The Respondent testified that Mr. Shatz acted as a 
broker, and that other money orders sent by the Respondent to Mr. Shatz 
were loans to allow the latter to purchase cocaine for himself. The 
Respondent also testified that he ended his relationship with Mr. Shatz 
after his 1991 arrest, and has not spoken to Mr. Shatz since the end of 
that year. The Respondent further testified that while in Arizona in 
the summer of 1983, he purchased as part of a self-defense course the 
.357 Magnum handgun that was subsequently found during the search of 
his home in Massachusetts. Nevertheless, the record in this proceeding 
demonstrated, and the Deputy Administrator finds, that the Respondent 
did not comply with the requirement under Massachusetts's law that a 
firearm be registered with the state.
    On February 13, 1992, the Respondent was indicted in the United 
States District Court for the District of Massachusetts on four felony 
counts: Conspiracy to possess with intent to distribute cocaine, in 
violation of 21 U.S.C. 846; possession with intent to distribute 
cocaine and possession with intent to distribute marijuana, in 
violation of 21 U.S.C. 841(a)(1); and use of the mail to facilitate a 
narcotics transaction, aiding and abetting, in violation of 21 U.S.C. 
843 and 18 U.S.C. 2.
    Following a jury trial, the Respondent was found guilty on all four 
counts. On June 14, 1993, the Respondent was sentenced to 51 months 
imprisonment and three years probation following his release. On 
November 30, 1995, the sentence was reduced to a term of 39 months due 
to retroactive changes to the

[[Page 10752]]

sentencing guidelines for the offenses which the Respondent was 
convicted.
    The Respondent subsequently appealed his convictions to the United 
States Court of Appeals for the First Circuit. The Respondent alleged 
in his appeal that the district court erred in denying a motion to 
suppress evidence seized during a warrantless search, that the district 
court erred in admitting into evidence a book entitled The Secrets of 
Methamphetamine Manufacture, and that there was insufficient evidence 
to support the conviction of possession of cocaine with intent to 
distribute since the drug was for his personal use. The Court of 
Appeals rejected each of the above arguments, and the Respondent's 
convictions were affirmed.
    On July 17, 1992, the Respondent entered into a consent agreement 
with the Commonwealth of Massachusetts, Board of Registration in 
Dentistry (Massachusetts Dental Board), which placed his state dental 
license on probation for five years. The Respondent however voluntarily 
surrendered his dental license on January 14, 1993, while he was 
incarcerated. Based on the surrender of his dental license, the 
Massachusetts Department of Public Health, Division of Food and Drug 
revoked the Respondent's state controlled substance registration on 
April 26, 1993.
    The record before the Deputy Administrator further reveals that 
shortly after his July 24, 1991, arrest, the Respondent began attending 
the Gosnold Drug Rehabilitation Treatment Center in Falmouth, 
Massachusetts, where he spent approximately 300 hours in group and 
individuals therapy and counseling over a two year period. In addition, 
during approximately nine of the 39 months the Respondent spent 
incarcerated at the Allenwood Federal Prison Camp, he participated in 
and graduated from the residential treatment program there. The 
Respondent testified that while at the Allenwood facility, he as well 
as the other inmates were exposed to comprehensive ``twenty-four hour a 
day'' drug treatment program.
    The Respondent then spent time at a halfway house in Boston, and in 
May 1996, he began a three-year period of probation. The Respondent 
testified that from the date of his arrest in July 1991 until his 
release from probation in May 1999, he was randomly drug tested ``close 
to a hundred times'' and never tested positive for drug use.
    In 1996, the Respondent requested the reinstatement of his 
Massachusetts dental license. In response to his request, the 
Massachusetts Dental Board required that the Respondent attend remedial 
education courses at one of the dental schools in Boston, and pass the 
Northeast Regional Dental Examination. The Respondent satisfied these 
requirements. As a result, the Massachusetts Dental Board reinstated 
the Respondent's dental license on a probationary basis pursuant to a 
December 3, 1997, consent agreement. The consent agreement required 
that the Respondent attend Massachusetts Dental Society Committee on 
Drug and Alcohol Dependency (C-DAD) meetings twice a month, undergo 
random urinalysis, and refrain from the use of alcohol or drugs of any 
kind, except those prescribed for a legitimate medical or dental 
purpose. The Respondent attended the required C-DAD meetings, and also 
attended on a monthly basis the non-mandatory meetings of C-DAD since 
the summer of 1999. On November 12, 1998, the Respondent was issued a 
Massachusetts Controlled Substance Registration, which was current as 
of the date of the administrative hearing.
    In October 1999, the Respondent successfully completed the board-
imposed probationary period. A December 8, 1999, letter from the 
chairman of the Massachusetts Dental Board, which was admitted as 
evidence during the hearing, revealed that the Respondent remained in 
full compliance with the terms of the consent agreement. In a separate 
letter dated March 22, 1999, the Dental Board chairman advised that no 
complaints had ever been filed against the Respondent regarding dental 
treatment or his relationship with his patients. The letter further 
revealed that the Respondent had passed the Northeast Regional Dental 
Exam with an outstanding score and had served as a mentor to young 
dental students who were preparing for the exam.
    The Deputy Administrator also finds that in January 1998, the 
Respondent began part-time work in an orthodontic practice in 
Marshfield, Massachusetts, where he assumed the responsibility for 
treating approximately 55 orthodontic patients. The Respondent was 
employed in this capacity as of the hearing date. From November 1998 to 
March 2000, the Respondent was employed full-time at the Health First 
Clinic in Fall River, Massachusetts, where his primary responsibilities 
included general dentistry, oral surgery and urgent care. The 
Respondent presented written testimony from several of his colleagues 
who attested to his high degree of competence and care in the field of 
dentistry, as well as a favorable letter from one of his patients.
    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 be 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 T. Schwartz, Jr., M.D., 54 FR 16422 (1989).
    As to factor one, the Deputy Administrator finds that the 
Massachusetts Dental Board has fully reinstated the Respondent's dental 
license with no restrictions, and the Commonwealth of Massachusetts has 
also issued Respondent a controlled substance registration. As noted by 
Judge Bittner, the chairman of the Massachusetts Dental Board has 
advised that that body supports the Respondent's application for a DEA 
registration. The Deputy Administrator agrees with Judge Bittner's 
finding that while Respondent's licensures to practice dentistry and to 
handle controlled substances in Massachusetts are not determinative in 
this proceeding, the positive recommendation of the Massachusetts 
Dental Board, and the reinstatement of his state controlled substance 
registration weigh in favor of granting the Respondent's application.
    As to factors two and four, Respondent's experience in handling 
controlled substances and his compliance with applicable controlled 
substance laws, are clearly relevant in determining the public interest 
in this matter. While there is no contention that Respondent has ever 
inappropriately prescribed, administered, or otherwise dispensed 
controlled substances to any patient, Respondent admitted that he 
purchased and/or used cocaine, marijuana, LSD and mescaline. The

[[Page 10753]]

Respondent was also arrested while in possession of marijuana in May 
1986 and on June 17, 1987, he tested positive for cocaine pursuant to 
an Arizona Dental Board Drug test. In addition, the Respondent 
testified that he procured a small amount of cocaine for his wife while 
living in Arizona, and admitted to sharing home grown marijuana with 
his girlfriend while living in South Hadley, Massachusetts. Therefore, 
the government has established that factors two and four should be 
weighed in favor of a finding that Respondent's registration would be 
inconsistent with the public interest.
    As to factor three, Respondent's conviction under Federal or State 
laws relating to controlled substances, it is undisputed that 
Respondent pled guilty in 1986 to solicitation to possess a narcotic 
drug in Arizona, and was convicted in 1993 of the felonies of 
conspiracy to possess with intent to distribute cocaine, possession 
with intent to distribute cocaine and marijuana, and the use of mail to 
facilitate a narcotics transaction in Massachusetts.
    With respect to favor five, other conduct that may threaten the 
public health and safety; the Deputy Administrator share the concern of 
the government regarding the Respondent's inconsistent and evasive 
testimony during the administrative hearing. The Deputy Administrator 
further shares the concerns of Judge Bittner and the government 
regarding the Respondent's apparent lack of respect for laws regulating 
the use of controlled substances, as reflected by his comments to a 
probation officer in Arizona that he deserved ``no more than a slap on 
the wrist'' and his insistent that ``sharing'' controlled substances 
does not constitute ``distribution.''
    Despite the Deputy Administrator's finding regarding evasive and 
inconsistent testimony by the Respondent, and in particular his 
testimony during cross-examination by government counsel, in fairness 
to the Respondent, several of the topics that he was asked about 
covered statements made, and events that occurred more than ten years 
prior to testimony at the hearing (i.e., the circumstances involving 
his 1986 arrest in Arizona, statements attributed to him in the 1987 
Presentence Investigative Report, etc.). While this finding does not 
necessarily mitigate the Respondent's apparent lack of candor, the 
passage of time between some of the events in question and the 
Respondent's testimony at the hearing regarding these events should be 
given some consideration when assessing the depth and clarity of his 
responses.
    The Deputy Administrator is concerned with the Respondent's fairly 
extensive history of substance abuse. As noted above, the Respondent 
has used on various occasions, marijuana, LSD, mescaline and cocaine. 
He not only used drugs in an illicit fashion, but also shared them with 
friends and at least one family member.
    The Deputy Administrator also finds disturbing the Respondent's 
maintenance of an unregistered firearm in his home in violation of 
Massachusetts law, his use of the United States mail service to 
facilitate drug transactions, and the fact that he provided money to 
Mr. Shatz so the latter could purchase cocaine. In addition, the Deputy 
Administrator is perplexed by the Respondent's apparent willingness to 
accept responsibility for past actions on the one hand (i.e., his 
statement in the PSIR that he learned ``the biggest lesson of his 
life'' following his 1986 conviction), and his seeming refusal to 
acknowledge wrong doing in other respects (i.e., asserting during the 
hearing that an Arizona law enforcement officer lied about the basis 
for a traffic stop which led to the Respondent's arrest).
    The Deputy Administrator also shares the concern of the 
Administrative Law Judge and the government that the Respondent has 
apparently failed to learn from the negative experiences surrounding 
his drug use. This apparent failure was reflected by the respondent's 
continued use of drugs following his 1986 arrest, as well as upon his 
return to Massachusetts. Therefore, the Deputy Administrator finds that 
the government has presented a prima facie case for the denial of the 
Respondent's application for registration.
    Having concluded that there is a lawful basis upon which to deny 
the Respondent's application, the question remains as to whether the 
Deputy Administrator should, in the exercise of his discretion, grant 
or deny the application. Ray Roya, 46 FR 45842 (1981). Like Judge 
Bitter, the Deputy Administrator concludes that it would be in the 
public interest to deny the Respondent's pending application.
    The Deputy Administrator also agrees with Judge Bittner's finding 
that the Respondent is now prepared to comply with laws regulating the 
use of controlled substances. The Respondent begin attending drug 
rehabilitation following his July 24, 1991, arrest, and has not abused 
controlled substances since that time, the Respondent satisfied all of 
the conditions for reinstatement of his Massachusetts dental license, 
including his participation in C-DAD meetings; on November 12, 1998, 
the Respondent was issued a Massachusetts Controlled Substance 
Registration, which was current as of the date of the administrative 
hearing; and, the Respondent presented letters of support from 
practitioners, colleagues and a patient attesting to his 
professionalism, and recommending that his DEA application be granted.
    However, given the Deputy Administrator's concerns about the 
Respondent's past mishandling of controlled substances, a restricted 
registration is warranted. This will allow the Respondent to 
demonstrate that he can responsibly handle controlled substances. 
Accordingly, the Deputy Administrator adopts the following restrictions 
upon the Respondent's DEA registration as recommended by Judge Bittner:
    1. Respondent's controlled substance handling authority shall be 
limited to the administering of controlled substances in his office and 
the writing of prescriptions only;
    2. Respondent shall not possess or store any controlled substance 
in his home except by prescribed pursuant to paragraph three below, and 
shall not dispense, other than by prescribing or administering, any 
controlled substances from his office;
    3. Respondent shall not write any prescription for himself, and 
shall not obtain or possess for his use any controlled substance except 
upon the written prescription of another licensed medical professional. 
In the event that another licensed medical professional prescribes a 
controlled substance for Respondent, Respondent shall immediately 
notify the Special Agent in Charge of the DEA's nearest office, or his 
designee; (a) that he plans to obtain a specified controlled substance 
for his personal use, and (b) the reasons the controlled substance is 
being prescribed;
    4. For at least two years from the date of the entry of a final 
order in this proceeding, Respondent shall continue to submit to random 
drug testing under the auspices of the Massachusetts Dental Board, or 
of the appropriate state dental board in another state where he 
practices; he shall continue to participate in Committee on Drug and 
Alcohol Dependency (C-DAD) meetings if he remains in Massachusetts; and 
he shall submit to the Special Agent in Charge of the DEA's nearest 
office or his designee every calendar quarter a log listing all the 
controlled substances Respondent has prescribed or administered during 
the previous quarter.
    Accordingly, the Deputy Administrator of the Drug Enforcement

[[Page 10754]]

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 submitted by Jeffrey Martin Ford, D.D.S. 
be, and it hereby is, granted, subject to the above described 
restrictions. This order is effective April 7, 2003.

    Dated: February 24, 2003.
John B. Brown III,
Deputy Administrator.
[FR Doc. 03-5279 Filed 3-5-03; 8:45 am]
BILLING CODE 4410-09-M