[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Notices]
[Pages 24759-24760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11430]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 02-52]


Francis A. Goswitz, M.D.; Revocation of Registration

    On June 24, 2002, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Francis A. Goswitz, M.D. (Respondent), proposing 
to revoke his DEA Certificate of Registration, AG0387604, pursuant to 
21 U.S.C. 824(a). The Order to Show Cause alleged, inter alia, that the 
Respondent's Tennessee State medical license had been suspended.
    By letter dated July 19, 2002, the Respondent, through legal 
counsel, requested a hearing in the matter. In the request for hearing, 
the Respondent's legal counsel acknowledged that the Respondent's 
medical license had been suspended by the Tennessee Department of 
Health, but argued that the matter ``is pending, and a hearing on the 
merits has not yet been held.''
    On August 13, 2002, the Government filed a Motion for Summary 
Disposition and Stay of Proceedings, arguing that as of August 6, 2002, 
the Respondent's medical license remained suspended. On August 15, 
2002, the presiding Administrative Law Judge Mary Ellen Bittner (Judge 
Bittner) issued a Memorandum to Counsel staying the filing of 
prehearing statements and providing the Respondent until September 4, 
2002, to respond to the Government's motion. However, the Respondent 
did not file a response to the motion.
    On October 8, 2002, Judge Bittner issued her Opinion and 
Recommended Decision of the Administrative Law Judge (Opinion and 
Recommended Decision) where she granted the Government's motion for 
summary disposition and found that the Respondent lacked authorization 
to handle controlled substances in the State of Tennessee. In granting 
the Government's motion, Judge Bittner also recommended that the 
Respondent's DEA Certificate of Registration be revoked and any pending 
applications for modification or renewal of that registration be 
denied. Neither party filed exceptions to her Opinion and Recommended 
Decision, and on November 12, 2002, Judge Bittner transmitted the 
record of these proceedings to the Office of the Deputy Administrator 
for a final agency decision.
    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 finds that the Respondent is currently 
registered as a practitioner under DEA Certificate of Registration 
AG0387604. On February 14, 2002, the Tennessee Board of Medical 
Examiners (Board) issued an Order of Summary Suspension with respect to 
the Respondent's Tennessee medical license. The Board's action was 
based in part upon a finding that the Respondent engaged in 
inappropriate sexual conduct with a patient, and subsequently attempted 
to influence her testimony by offering the patient money. The Board 
also found that in September 2001, the Respondent dispensed to a 
patient and her husband the controlled substances hydrocodone and 
alprazolam, for no legitimate medical purpose.
    In its Motion for Summery Disposition, the Government attached a 
declaration from the Administrator of the Board, who asserted that the 
Respondent's Tennessee medical license remains suspended. Judge Bittner 
agreed with the Government that the Respondent is without state 
authority to handle controlled substances in Tennessee, and 
accordingly, granted the Government's Motion for Summary Disposition.
    DEA does not have statutory authority under the Controlled 
Substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which he conducts business. See 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Muttaiya Darmarajeh, M.D., 66 FR 52936 (2001); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
    Here, it is clear that the Respondent is not licensed to handle 
controlled substances in Tennessee, the state where he currently holds 
a DEA registration. Therefore, he is not entitled to maintain that 
registration. Because the Respondent lacks state authorization to 
handle controlled substances, the Deputy Administrator concludes that 
it is unnecessary to address whether or not his Certificate of 
Registration should be revoked based upon allegations of his improper 
dispensing of controlled substances and other public interest grounds 
alleged in the Order to Show Cause. See Samuel Silas Jackson, D.D.D., 
67 FR 65145 (2002); Nathaniel-Aikens-Afful, M.D., 62 FR 16871 (1997);

[[Page 24760]]

Sam F. Moore, D.V.M. 58 FR 14428 (1993).
    In light of the above, Judge Bittner properly granted the 
Government's Motion for Summary Disposition. There is no dispute that 
the Respondent is currently without authorization to handle controlled 
substances in Tennessee. Therefore, it is well settled that when no 
question of material fact is involved, a plenary, adversary 
administrative proceeding involving evidence and cross-examination of 
witnesses is not obligatory. See Gilbert Ross, M.D., 61 FR 8664 (1996); 
Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk v. 
Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association 
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 
(9th Cir. 1977).
    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 AG0387604, issued to Francis A. Goswitz, 
M.D. be, and it hereby is, revoked. The Deputy Administrator further 
orders that any pending applications for renewal or modification of the 
aforementioned registration be, and they hereby are, denied. This order 
is effective June 9, 2003.

    Dated: April 21, 2003.
John B. Brown III,
Deputy Administrator.
[FR Doc. 03-11430 Filed 5-7-03; 8:45 am]
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