[Federal Register Volume 70, Number 89 (Tuesday, May 10, 2005)]
[Notices]
[Pages 24628-24629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9248]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


John S. Poulter, D.D.S; Revocation of Registration

    On October 6, 2004, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to John S. Poulter, D.D.S., (Dr. Poulter) notifying 
him of an opportunity to show cause as to why DEA should not revoke his 
DEA Certification of Registration BP7418177, pursuant to 21 U.S.C. 
824(a)(2) and (4) and deny any pending applications for renewal of such 
registration pursuant to 21 U.S.C. 823(f). The order alleged in 
relevant part that Dr. Poulter had been arrested and convicted of 
several offenses relating to the unlawful possession and use of 
controlled substances, including one felony county; that he had been 
subject to discplinary action by state licensing authorities and that 
he violated DEA record-keeping requirements. The order also notified 
Dr. Poulter that should no request for a hearing be filed within 30 
days, his hearing right would be deemed waived.
    The Order to Show Cause was sent by certified mail to Dr. Poulter 
at his registered location in North Salt Lake City, Utah. An undated, 
signed notice of receipt was returned to DEA on October 26, 2004, 
indicating the Order to Show Cause was received on his behalf. DEA has 
not received a request for hearing or any other reply from Dr. Poulter 
or anyone purporting to represent him in this matter.
    Therefore, the Deputy Administrator of DEA, finding that: (1) 30 
days having passed since the delivery of the Order to Show Cause at Dr. 
Poulter's registered address, and (2) no request for hearing having 
been received, concludes that Dr. Poulter is deemed to have waived his 
hearing right. See Samuel S. Jackson, D.D.S., 67 FR 65145 (2002); David 
W. Linder, 67 FR 12579 (2002). After considering material from the 
investigative file in this matter, the Deputy Administrator now enters 
her final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) 
and 1301.46.
    Dr. Poulter is licensed under Utah law as a dentist and currently 
holds DEA Certificate of Registration BP7418177, as a practitioner, to 
handle schedule II through IV controlled substances. That registration, 
last renewed in March 2004, expires on March 31, 2007. He also holds a 
State of Utah Class IV Anesthesia Permit.
    On October 29, 2001, Dr. Poulter was seen by witnesses parked in 
front of a 7-Eleven store in Woods Cross, Utah, apparently injecting 
himself in the arm with an unknown substance. Local law enforcement 
authorities were called and after failing a field sobriety test and 
lying about taking a non-controlled allergy medication, Dr. Poulter 
eventually admitted that a vial recovered from his car, labeled 
``Lidocaine,'' actually contained Demerol, a schedule II narcotic 
controlled substance. He also admitted injecting himself with Demerol 
while seated in his automobile in front of the convenience store.
    Dr. Poulter was charged inthe Second Judicial District Court of 
Davis County, Utah, Case No. 011701966, with Unlawful Possession or Use 
of a Controlled Substance, to wit: Demerol, a felony of the third 
degree. While that charge was pending trial, Dr. Poulter entered into a 
Diversion Agreement with the Utah Division of Occupational & 
Professional Licensing (DOPL). That agreement, which was to run for a 
period of five years, referred to ``several instances'' of improper 
personal use of Fentanyl (a schedule II narcotic controlled substance) 
and Demerol by Dr. Poulter. Among the agreement's terms, he was to 
abstain from personal use or possession of mood altering substances, 
including contolled substances or illicit drugs, and could not write, 
fill or otherwise order or unlawfully obtain controlled substances or 
mood altering substances for himself or his family.
    On February 11, 2002, Dr. Poulter resolved the pending charge by 
entering into a Plea in Abeyance Agreement and Order with the 
prosecution. In exchange for a plea of guilty to the third degree 
felony of possession of a controlled substance, his plea would be held 
in abeyance by the court for up to 36 months. Dr. Poulter agreed not to 
violate any laws and to complete all requirements of a monitoring 
program for impaired professionals established by the state. Upon 
successful completion of all provisions of the Plea in Abeyance 
Agreement and Order, Dr. Poulter's guilty plea would be withdrawn and 
the charge dismissed. However, if he failed to successfully complete 
the terms of the agreement, the court would enter his plea of guilty 
and proceed to sentencing on the felony.
    On September 30, 2003, while the terms of the Plea in Abeyance 
Agreement and Order were in effect, Dr. Poulter was involved in a 
single car traffic accident in Utah County, Utah. Responding officers 
and medical personnel found him ``incoherent and very confused'' and 
there were visible needle marks on this left arm and both hands. He was 
also wearing a fanny pack with a syringe protruding through it into his 
stomach area. A search of the pack and his car revealed a bloody used 
syringe and plastic container holding, among other items, quantities of 
Demerol and Fentanyl.
    After injecting himself with drugs, Dr. Poulter had fallen asleep 
while driving, running his car off the road. He admitted buying 
Fentanyl over the Internet from a pharmacy in South Carolina and to 
obtaining the Demerol from a local hospital. A urine sample was taken 
and toxicology results corroborated the use of Demerol and Fentanyl.
    On February 2, 2004, Dr. Poulter was charged in the Fourth Judicial 
District Court for Utah County, Utah, Case No. 031403926 FS, with two 
felony counts of possession or use of a controlled substance (Demerol 
and Fentanyl) and two misdemeanor counts of driving under the influence 
of alcohol and/or drugs and possession of drug paraphernalia.
    Based on the conduct which was the basis for his September 2003 
arrest, the Second Judicial District Court then found that Dr. Poulter 
has violated the terms of his Plea in Abeyance and Order and entered 
the guilty plea to the initial felony charge. On July 19, 2004, that 
court sentenced Dr. Poulter to an indeterminate term in state prison, 
not to exceed five years. However, it suspended that sentence on 
condition he serve four weekends in jail, perform 100 hours of 
community service and complete eighteen months of supervised probation.
    On August 4, 2004, pursuant to a plea agreement, the Fourth 
Judicial District Court reduced the felony counts pending in that court 
to misdemeanors and sentenced him to 180 days in jail. However, the 
court suspended 136 days of that sentence and gave Dr. Poulter credit 
for 40 days spent in a rehabilitation clinic and one day of actual 
incarceration, essentially sentencing him to three days in jail, along 
with a year's probation.
    On December 30, 2003, Dr. Poulter met with DOPL investigators to 
discuss his controlled substance record keeping practices. He admitted 
to multiple violations, including: Failure to maintain complete and 
accurate records of controlled substances received and dispensed, in 
violation of 21 U.S.C. 827(a)(3) and 21 CFR 1304.04 and 1304.21; 
failure to take initial and biennial inventories of controlled

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substances, as required by 21 U.S.C. 827(a)(1) and 21 CFR 1304.11; and 
failure to preserve DEA order forms, as required by 21 CFR 1305.13.
    Pursuant to an April 20, 2004, Stipulation and Order with DOPL, Dr. 
Poulter's state license to handle controlled substances and his dental 
license were revoked. However, the revocation orders were stayed as to 
both licenses and he was placed on probation for a term of five years. 
He was again ordered to abstain from personal use of controlled 
substances and his Anesthesia Permit was restricted to certain 
enumerated drugs.
    Pursuant to 21 U.S.C. 824(a)(2), the Deputy Administrator may 
revoke a DEA Certificate of Registration and deny any pending 
applications for such a certificate upon a finding that the registrant 
has been convicted of a felony related to controlled substances under 
state or Federal law. The Deputy Administrator finds Dr. Poulter has 
been convicted of a state felony relating to controlled substances and 
that revocation of his registration is appropriate under 21 U.S.C. 
824(a)(2).
    Additionally, the Deputy Administrator may revoke a DEA Certificate 
of Registration and deny any pending applications for such certificate 
if she determines that the issuance of such registration would be 
inconsistent with the public interest, as determined pursuant to 21 
U.S.C. 823(a)(4) and 823(f). Section 823(f) requires the following 
factors be considered:
    (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 law 
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.
    As a threshold matter, it should be noted that the factors 
specified in section 823(f) are to be considered in the disjunctive: 
The Deputy Administrator may properly rely on any one or a combination 
of the factors, and give each factor the weight she deems appropriate, 
in determining whether a registration should be revoked or denied. See 
Henry J. Schwarz, Jr., M.D., 54 FR 16,422 (1989).
    With regard to the public interest factors of 21 U.S.C. 823(f), as 
to factor one, recommendation of the state licensing board/disciplinary 
authority, it is noted that the Utah DOPL took disciplinary action 
against Dr. Poulter. However, it allowed his state dental license and 
Anesthesia Permit to continue in a probationary status, with certain 
enumerated conditions. Accordingly, to the extent that Utah has allowed 
Dr. Poulter to continue practicing dentistry and handle some controlled 
substances, that weighs in favor of continued registration with DEA. 
However, ``inasmuch as State licensure is a necessary but not 
sufficient condition for a DEA registration * * * this factor is not 
dispositive.'' See Edson W. Redard, M.D., 65 FR 30616, 30619.
    Regarding factors two, three, four and five, the conduct and 
actions discussed earlier which resulted in his felony and misdemeanor 
convictions are all relevant and adverse to Dr. Poulter. While the 
controlled substances were apparently being diverted for personal use 
and not for others, the record reflects that simple opportunities and 
leniency were extended Dr. Poulter by the state criminal justice system 
and Utah's licensing authorities. He had an excellent chance to address 
his substance abuse problems with minimal personal and professional 
impact. Nevertheless, despite crystal clear notice of the consequences 
of violating the Plea in Abeyance Agreement and the benefits of a 
rehabilitative and monitoring program for impaired professionals, Dr. 
Poulter threw away the opportunities afforded him.
    Instead of getting his personal and professional life back on 
track, he chose to resume abusing controlled substances and whle doing 
so, endangered the public by operating a motor vehicle while under the 
influence of drugs. Through his inability to refrain from criminal and 
self-abusive behavior, Dr. Poulter has demonstrated poor judgment, 
questionable character and an inability to comply with the 
responsibilities of a DEA registrant.
    In light of the foregoing, the Deputy Administrator finds that Dr. 
Poulter's registration would be inconsistent with the public interest, 
as that term is used in 21 U.S.C. 823(f) and 824(a)(4).
    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 BP7418177, previously issued to John S. 
Poulter, D.D.C., be, and it hereby is, revoked. The Deputy 
Administrator further orders that any pending applications for renewal 
or modification of such registration be, and they hereby are, denied. 
This order is effective June 9, 2005.

    Dated: May 2, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-9248 Filed 5-9-05; 8:45 am]
BILLING CODE 4410-09-M