[Federal Register Volume 69, Number 160 (Thursday, August 19, 2004)]
[Notices]
[Pages 51477-51479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18973]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 03-1]


David A. Hoxie, M.D.; Revocation of Registration

    On August 21, 2002, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to David A. Hoxie, M.D. (Respondent), proposing to 
revoke his DEA Certificate of Registration, BH4678833, pursuant to 21 
U.S.C. 824(a)(1) and 824(a)(4), and deny any pending applications for 
renewal of registration as a practitioner under 21 U.S.C. 823(f). The 
Order to Show Cause alleged in relevant part that the Respondent 
materially falsified DEA applications for registration and that his 
continued registration would be inconsistent with the public interest.
    By letter dated September 15, 2002, the Respondent requested a 
hearing on the issues raised by the Order to Show Cause. Following pre-
hearing procedures, a hearing was held on August 26, 2003, in Columbus, 
Ohio. Counsel for the Government presented the testimony of three 
witnesses and introduced documentary evidence. The Respondent did not 
testify on his behalf or introduce any documentary evidence. After the 
hearing, both parties submitted written proposed findings of fact, 
conclusions of law, and argument.
    On April 7, 2004, Administrative Law Judge Gail A. Randall (Judge 
Randall) issued her Opinion and Recommended Ruling, Findings of Fact, 
Conclusions of Law and Decision (Opinion and Recommended Ruling), 
recommending that Respondent's DEA Certificate of Registration be 
revoked and that any pending applications to renew or modify that 
registration be denied. On May 24, 2004, counsel for the Respondent 
filed exceptions to Judge Randall's Opinion and Recommended Ruling and 
on May 26, 2004, Judge Randall transmitted the record of these 
proceedings to the Administrator of DEA.
    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. 
The Deputy Administrator adopts in full the recommended ruling, 
findings of fact, conclusions of law and decision of the Administrative 
Law Judge. Her 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 record before the Deputy Administrator shows that as of the 
date of the hearing, the Respondent was licensed to practice medicine 
in the State of Ohio. A review of the record in this proceeding reveals 
that in or around 2002, DEA's Columbus, Ohio office sought assistance 
from the agency's Los Angeles Field Division in obtaining information 
on any possible prior arrests in California involving the Respondent. 
To that end, a diversion investigator from the Los Angeles Field 
Division contacted the city's police department to obtain arrest 
records pertaining to the Respondent. The Los Angeles investigator also 
provided to the Bureau of Records, in Sacramento, Respondent's date of 
birth and Social Security number to further his search of arrest 
records involving the Respondent.
    According to a Los Angeles Police Department arrest report which 
was admitted into the record of this proceeding, on or around December 
15, 1973, the Respondent was arrested and charged with possession of 
marijuana. However, there is no record regarding the disposition of 
this charge. The record also contains an arrest report for September 
19, 1978, which documents the Respondent's arrest on a charge of ``Poss 
Controlled Substance.'' As with the Respondent's prior arrest, the 
record is silent with regard to the disposition of this charge.
    The record also contains a Los Angeles Consolidated Booking Form 
which documents the July 6, 1980, arrest of the Respondent on the 
charge of driving under the influence of drugs. However, the record is 
unclear as to the disposition of this charge. The record contains yet 
another arrest report dated July 11, 1981, which documents the arrest 
of the Respondent on the charge of driving under the influence of 
alcohol and drugs. A field sobriety test performed at the time of the 
arrest describes Respondent as having ``very poor'' coordination, 
``very thick and slurred'' speech, and ``tottering unsteady, falling/
stumbling'' balance. The report also notes that the Respondent later 
entered into treatment where he apparently conveyed to the treating 
physician that he had smoked two PCP (phenylcyclohexylamine) 
cigarettes.
    The above arrest record also contained a document entitled ``Los 
Angeles PD Disposition of Arrest and Court Action.'' The exhibit 
identifies the Respondent as the arrestee and lists his date of birth. 
However, the section of the form entitled ``Court Information'' was 
blank and therefore, the disposition of this charge is unclear.
    The Respondent was again arrested on August 7, 1983, and charged 
with possession of PCP. A Government witness testified that he obtained 
information that the Respondent had entered a final plea of ``Nolo'' to 
two misdemeanor charges, one for possession of a controlled substance 
in violation of the State Health and Safety Code, and a second charge 
related to a vehicle code violation. Pursuant to a

[[Page 51478]]

plea agreement, the Respondent received a suspended sentence for 90 
days in jail, and given credit for time served. On November 30, 1983, 
the charges were disposed of, and the Respondent was placed on 
prohibition for two years, ending on November 29, 1985.
    As with Respondent's prior arrests, the record is unclear as to the 
total sentence served. A Government witness testified at the hearing 
that the court had ``dismissed'' or ``put aside'' the sentence for 
count three. The court further ordered probation for 36 months for 
counts one and two. With respect to his compliance with probation, 
evidence was presented that on March 17, 1988, the Respondent was found 
in violation and was sentenced to 30 days in jail. However, the record 
is unclear as to the specific criminal violation the probation relates 
to, since the probation term for the Respondent's 1983 conviction was 
to end in November of 1985.
    On January 26, 1984, the Respondent was again arrested in Los 
Angeles, California and charged with being under the influence of PCP. 
However, there is no information in the record as to the disposition of 
this charge. Further evidence was presented that on September 25, 1984, 
in Los Angeles, California, the Respondent was arrested for driving 
with a suspended drivers' license and apparently provided a statement 
to the arresting officer that he (Respondent) was aware of the 
suspension of his license.
    On or about November 14, 1995, the Respondent was issued DEA 
Certificate of Registration BH4678833 for his medical practice in Ohio. 
The last renewal of this registration was issued to the Respondent on 
October 18, 2001, and its date of expiration is October 31, 2004.
    The two DEA applications at issue in the Government's allegation of 
material falsification are renewal applications dated October 31, 2001, 
and the second dated October 14, 1998. On both renewal applications, 
the Respondent was asked the following questions: ``Has the applicant 
ever been convicted of a crime in connection with controlled substances 
under State or Federal law?''; (2) ``Has the applicant ever surrendered 
or had a Federal controlled substance registration revoked, suspended, 
restricted or denied?''; and (3) ``Has the applicant ever had a State 
professional license or controlled substance registration revoked, 
suspended, denied, restricted, or placed on probation?'' On both 
applications, the Respondent provided a ``No'' response to these three 
questions.
    The record also contains the Respondent's application for an Ohio 
medical license, signed before a Notary Public on June 17, 1996. A 
review of that application reveals that Respondent provided a ``No'' 
response to the following question: ``Have you ever been convicted or 
found guilty of a violation of Federal law, State law, or municipal 
ordinance other than a minor traffic violation?''
    Also admitted into evidence was the Respondent's application for 
Virginia medical license, dated January 20, 1995. The Respondent 
provided a ``No'' response to the following question included on the 
application: ``Have you ever been convicted of a violation of/or pled 
Nolo Contendere to any Federal, State, or local statute, regulation or 
ordinance, or entered into any plea bargaining relating to a felony or 
misdemeanor (Excluding traffic violations, except convictions for 
driving under the influence)?''
    As noted above, in response to the Order to Show Cause the 
Respondent directed a letter to DEA dated September 15, 2002, 
requesting a hearing. In that letter, the Respondent denied that he had 
ever been arrested for drug charges, engaged in a plea bargain or 
received probation, and had never violated probation or received a 
sentence of an additional thirty days in jail.
    During an interview conducted in March of 2002 by a DEA diversion 
investigator and an investigator from the Ohio Medical Board, the 
Respondent again denied these events. Specifically, the Respondent 
denied ever having been arrested on any charge including those related 
to controlled substance violations, ever having been convicted, ever 
having entered into any plea bargains, and ever having served any 
probation time. When asked during that interview why it had taken him 
so long to complete his education, the Respondent attributed the delay 
to his having been in jail on several occasions. However, Respondent 
never acknowledged that he had been convicted of any Controlled 
Substances Act offenses.
    The Respondent further informed the DEA diversion investigator that 
he only possessed a drivers' license for the State of California. 
However, during a subsequent investigation by the Ohio Medical Board, 
it was revealed that the Respondent also had obtained driver licenses 
in New York and Michigan.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications for renewal of such registration if she determines 
that the continued 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 she 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 16,422 
(1989).
    First, pursuant to 21 U.S.C. 824(a)(1), a registration may be 
revoked if the registrant has materially falsified an application for 
registration. DEA has previously held that in finding that there has 
been a material falsification of application, it must be determined 
that the applicant knew or should have known that the response given to 
the liability question was false. See, James C. LaJavic, D.M.D., 64 FR 
55962, 55964 (1999); Martha Hernandez, M.D., 62 FR 61,145 (1997); 
Herbert J. Robinson, M.D., 59 FR 6304 (1994).
    As noted above, in August of 1983, the Respondent was charged with 
unlawful possession of PCP, a Schedule II controlled substance. On or 
about November 30, 1983, the charge was disposed of through a Nolo plea 
and the Respondent was placed on probation for a period of three years. 
Yet, a review of the Respondent's DEA renewal applications for 1998 and 
2001 reveal ``no'' responses to the liability question which asked 
whether the applicant has ever been convicted of a crime in connection 
with controlled substances under State or Federal law. In light of this 
evidence, as well as the Respondent's failure to provide evidence to 
the contrary, the Deputy Administrator is left to conclude that the 
Respondent knew or should have known that his ``no'' response to a 
liability question on a DEA registration application was false, and 
therefore he materially falsified his application for

[[Page 51479]]

registration. Accordingly, grounds exist to revoke the Respondent's 
registration pursuant to 21 U.S.C. 824(a)(1). Thomas E. Johnston, D.O., 
45 FR 72311, 72312 (1980); see also Bobby Watts, M.D. 58 FR 46995 
(1993).
    Next, the Deputy Administrator must consider whether Respondent's 
continued registration would be inconsistent with the public interest. 
As to factor one, the recommendation of the appropriate State licensing 
board or professional disciplinary authority, there is no evidence in 
the record of any actions, adverse or otherwise, regarding any 
professional license held by the Respondent. Similarly, with respect to 
factors two and three, there is no evidence in this matter with respect 
to Respondent's dispensing of controlled substances, or of any 
conviction under Federal or State laws relating to the manufacture, 
distribution, or dispensing of controlled substances.
    With regard to factor four, compliance with applicable State, 
Federal, or local laws relating to controlled substances, the Deputy 
Administrator agrees with Judge Randall's finding that the Respondent 
violated California State law by unlawfully (1) being under the 
influence of controlled substances in the 1980's, to include marijuana, 
(2) possessing PCP, (3) being under the influence of PCP, and (4) 
violating probation given as a result of these infractions.
    With regard to factor five, other conduct which may threaten the 
public health or safety, the Deputy Administrator is troubled by the 
extent and ease with which the Respondent has engaged in dishonest 
conduct. In addition to his material falsification of DEA registration 
applications, the Respondent provided false statements to a DEA 
investigator when he denied any previous arrests on drug charges and 
claimed to have a drivers' license only in California when he also held 
drivers' licenses in two additional jurisdictions. The Respondent 
repeated the same denials in his September 2002 letter to DEA, despite 
evidence to the contrary.
    The Respondent further demonstrated questionable candor when he 
provided false responses to questions on applications for medical 
licensure in Ohio and Virginia. His false responses to questions on 
State professional license applications further support the revocation 
of his DEA Certification of Registration. See, Bernard C. Musselman, 
M.D., 64 FR 55965 (1999).
    As referenced above, the Respondent did not testify during the 
hearing. The Deputy Administrator may draw a negative inference from 
Respondent's failure to testify during an administrative hearing. See, 
Michael G. Sargent, M.D., 60 FR 22076 (1995); Raymond A. Carlson, M.D., 
53 FR 7425 (1988); Antonio C. Camacho, M.D., 51 FR 11654 (1986). The 
negative inference which is drawn from Respondent's failure to testify 
is that he was unwilling to be forthright and completely honest with 
the Administrative Law Judge and the Drug Enforcement Administration. 
See Antonio C. Camacho, M.D., supra. In light of the Respondent's 
demonstrated lack of candor regarding his previous conduct, a similar 
inference is drawn here.
    On May 24, 2004, counsel for the Respondent filed exceptions to the 
Opinion and Recommended Ruling of Judge Randall. The Respondent argued 
in relevant part that: (1) The evidence in this proceeding did not 
establish that he materially falsified a DEA registration application; 
(2) Judge Randall should not have relied on arrest reports which were 
insufficient to prove a conviction; (3) there was only one reliable 
document in the record which established that Respondent did not 
falsify his DEA application; and (4) the Government's unproven 
assertions do not meet its burden of proving that the Respondent's 
continued registration is not consistent with the public interest.
    The Respondent's arguments relate primarily to the reliability of 
evidence regarding the disposition of his arrest for possession of PCP 
and the impact of that event on his subsequent responses to questions 
on DEA registration applications. As noted above, the Deputy 
Administrator agrees with Judge Randall's finding that evidence of 
Respondent's arrest and subsequent conviction on a controlled substance 
charge was established by a preponderance of evidence. While the 
Respondent subsequently raised questions regarding the reliability of 
arrest reports admitted into the record, the fact remains that he 
provided no similar evidence during the hearings to rebut these 
reports. Meanwhile, in addition to the arrest reports, the record 
contains corroborating testimony of the Respondent's ``Nolo'' plea to 
the charge of possession of PCP and the Government also provided 
documentary evidence regarding the disposition of the charges. Having 
addressed the Respondent's central contention regarding the reliability 
of evidence surrounding his criminal conviction, the Deputy 
Administrator does not find it necessary to address the remaining 
arguments raised in the Respondent's exceptions.
    In light of allegations regarding his prior arrests and conviction 
related in part to substance abuse, Respondent's failure to testify at 
the administrative hearing or provide evidence regarding these matters 
severely compromises any favorable consideration of his continued 
registration with DEA. As noted by Judge Randall, ``* * * DEA does not 
have any evidence that the Respondent takes responsibility for his past 
misconduct. Further, the DEA does not have any evidence that the 
Respondent wants to provide assurances that his future handling of 
controlled substances would be consistent with the public interest.''
    The Deputy Administrator finds that the Respondent has demonstrated 
conduct which raise questions regarding his character and ultimately, 
his fitness to possess a DEA Certificate of Registration. The 
Respondent has been involved in a series of arrests and at least one 
criminal conviction related primarily to substance abuse. Although many 
of these incidents occurred nearly two decades ago, the Respondent by 
choosing not to testify at the hearing or provide any evidence on his 
behalf has left the record bereft of any information that would support 
his continued registration with DEA. To exacerbate matters further, the 
Respondent falsified two DEA applications, two State professional 
licensing applications, and was not forthright regarding his arrests or 
conviction in a discussion with a DEA investigator or and in a 
subsequent letter to the agency. Given the totality of the 
circumstances, the only conclusion to be reached here in Respondent's 
continued registration would be inconsistent with the public interest 
and his DEA Certificate of Registration should be revoked.
    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, BH4678833, previously issued to David A. 
Hoxie, M.D., be, and it hereby is, revoked. The Deputy Administrator 
further orders that any pending applications to renew or modify said 
registration be denied. This order is effective September 20, 2004.

    Dated: July 27, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-18973 Filed 8-18-04; 8:45 am]
BILLING CODE 4410-09-M