[Federal Register Volume 69, Number 115 (Wednesday, June 16, 2004)]
[Notices]
[Pages 33664-33665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13533]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 03-22]


Lewis B. Boone, M.D., Revocation of Registration, Denial of 
Request for Change of Registered Location

    On March 23, 2003, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Lewis B. Boone, M.D. (Respondent) of Russell, 
Kentucky, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, BB7108550, as a 
practitioner pursuant to 21 U.S.C. 824(a)(3) and deny, pursuant to 21 
U.S.C. 823(f), any pending applications or requests, including but not 
limited to, Respondent's request for a modification of his registration 
to reflect a move to an Ohio location. As a basis for revocation, the 
Order to Show Cause alleged that Respondent's license to practice 
medicine in Kentucky had been indefinitely restricted and that his 
medical license in Ohio had been permanently revoked. As a result, the 
Order alleged he was not authorized to handle controlled substances in 
either his current or proposed States of registration.
    On April 28, 2003, Respondent, acting pro se, timely requested a 
hearing in this matter. On May 1, 2003, the presiding Administrative 
Law Judge Mary Ellen Bittner (Judge Bittner) issued the Government, as 
well as Respondent, an Order for Prehearing Statements.
    On May 7, 2003, in lieu of filing a prehearing statement, the 
Government filed Government's Request for Stay of Proceedings and 
Motion for Summary Disposition. The Government argued Respondent was 
without authorization to handle controlled substances in the States of 
Kentucky and Ohio and, as a result, further proceedings in the matter 
were not required. Counsel for the Government subsequently filed a copy 
of the January 18, 2002, Commonwealth of Kentucky, State Board of 
Medical Licensure's Agreed Order of Indefinite Restriction, specifying 
Respondent ``shall not prescribe, dispense or otherwise professionally 
utilize controlled substances within the Commonwealth of Kentucky.'' 
The Government also filed copies of the State Medical Board of Ohio's 
August 14, 2002, Entry of Order permanently revoking Respondent's 
license to practice medicine in Ohio.
    On June 11, 2003, Judge Bittner issued a memorandum to the parties 
seeking clarification of what was encompassed by the term ``controlled 
substances'' as used in the Kentucky Agreed Order. Judge Bittner 
presumed that phrase referred to substances that were controlled 
pursuant to Kentucky's statutory and regulatory provisions, not the 
Federal Controlled Substances Act. Judge Bittner invited the parties to 
file statements (with supporting documents) as to whether there were 
any substances controlled pursuant to the Federal Controlled Substances 
Act, but not under Kentucky law. The memorandum reflected a concern 
that the Agreed Order's use of the State definition of ``controlled 
substances'' might not

[[Page 33665]]

include every substance defined as such under Federal law and thus, may 
not have restricted Respondent's ability to prescribe each and every 
substance controlled under the Federal scheme. The Government filed a 
response asserting such a comparison was unnecessary.
    On August 29, 2003, Judge Bittner issued her Opinion and 
Recommended Decision of the Administrative Law Judge (Opinion and 
Recommended Decision). As part of the recommended ruling, Judge Bittner 
granted the Government's Motion for Summary Disposition, in part, 
finding Respondent was not licensed to practice medicine in Ohio, the 
jurisdiction where he sought to be registered and further finding, to 
the extent that substances scheduled under the Federal Controlled 
Substances Act are controlled under Kentucky State law, that he lacked 
authorization to handle controlled substances in Kentucky. Judge 
Bittner recommended, to that extent, that Respondent's DEA Certificate 
of Registration be revoked. She also recommended denial of Respondent's 
application to modify his DEA registration to reflect an Ohio address.
    On September 9, 2003, along with a motion asking Judge Bittner to 
reconsider her Opinion and Recommended Decision, the Government filed 
newly obtained documentation showing Respondent's Kentucky medical 
license had recently been suspended. On September 24, 2003, Judge 
Bittner issued a Memorandum to the Parties, granting the Government's 
Motion for Reconsideration and rescinding the Opinion and Recommended 
Decision, insofar as it applied to the Kentucky registration. While 
reaffirming her findings and recommendations with regard to Ohio, she 
advised both parties that, with respect to Kentucky, she was 
considering the Government's motion as an amended motion for summary 
disposition, based on the ground that Respondent was not currently 
authorized to practice medicine in that State. Respondent did not avail 
himself of the opportunity afforded him to respond to the motion.
    On October 22, 2003, Judge Bittner issued a Supplemental Opinion 
and Recommended Decision of the Administrative Law Judge (Supplemental 
Opinion and Recommended Decision). In it, Judge Bittner found 
Respondent's Kentucky medical license had been suspended by that 
State's June 20, 2003, Emergency Order of Suspension. Further, she 
concluded that because he is not currently licensed to practice 
medicine in Kentucky, he is not eligible to hold a DEA registration in 
that State. Accordingly, Judge Bittner granted the Government's Motion 
for Summary Disposition, recommending that Respondent's DEA 
registration be revoked.
    No exceptions were filed by either party to the Supplemental 
Opinion and Recommended Decision or to those sections of Judge 
Bittner's initial Opinion and Recommended Decision which had not been 
rescinded. On November 24, 2003, the record of these proceedings was 
transmitted to the Office of the DEA Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety 
and pursuant to 21 CFR 1316.67, hereby issues her final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
As to the Kentucky registration, the Deputy Administrator adopts in 
full the Supplemental Opinion and Recommended Decision. Regarding 
Respondent's application for a change of registered location to Ohio, 
the Deputy Administrator adopts only those findings of fact and 
conclusions of law and recommendations in the Opinion and Recommended 
Decision which are relevant to that issue. The remaining findings of 
fact, conclusions of law and recommendations in the Opinion and 
Recommended Decision, pertaining to Respondent's Kentucky registration, 
were rescinded and the Deputy Administrator takes no action with regard 
to those findings, conclusions or recommendations.
    The Deputy Administrator finds Respondent holds DEA Certificate of 
Registration, BB7108550, as a practitioner on the Commonwealth of 
Kentucky. The Deputy Administrator further finds that on June 20, 2003, 
the Commonwealth of Kentucky, Board of Medical Licensure, issued an 
Emergency Order of Suspension, indefinitely suspending Respondent's 
authority to practice as a physician in the Commonwealth of Kentucky. 
The Deputy Administrator further finds that on August 14, 2002, the 
Ohio Medical Board permanently revoked Respondent's medical license in 
that State. There is no evidence in the record indicating that either 
the suspension or revocation has been stayed or modified or that 
Respondent's license to practice medicine in either jurisdiction has 
been reinstated. As a result, he is not authorized to prescribe, 
dispense, administer, or otherwise handle controlled substances in 
Kentucky, the place of current DEA registration, or in Ohio, the 
location of proposed registration.
    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 Karen Joe Smiley, M.D., 68 FR 48944 (2003); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988). 
Revocation is also appropriate when a State license has been suspended, 
but with a possibility of future reactivation. See Anne Lazar Thorn, 
M.D., 62 FR 12,847 (1997).
    Here, it is clear that because Respondent is not currently licensed 
to practice medicine in either jurisdiction, he currently lacks 
authority to handle controlled substances in Kentucky, the State where 
he is registered and in Ohio, the State where he seeks to be 
registered. Therefore, DEA does not have authority to maintain 
Respondent's DEA Certificate of Registration or grant any pending 
applications for renewal or modification of that registration, 
including, but not limited to, Respondent's application to change his 
registered location to Ohio.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration, BB7108550, issued to Lewis B. Boone, M.D., 
be, and it hereby is, revoked. The Deputy Administrator further orders 
that his application for modification of such registration be, and they 
hereby are, denied. This order is effective July 16, 2004.

    Dated: May 17, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-13533 Filed 6-15-04; 8:45 am]
BILLING CODE 4410-09-M