[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Notices]
[Pages 34327-34329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13609]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Craig H. Bammer, D.O.; Denial of Application

    On October 1, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Craig H. Bammer, D.O. (Respondent), of South Gulfport, 
Florida. The Show Cause Order proposed the revocation of Respondent's 
Certificate of Registration, BB1336456, as a practitioner, and the 
denial of any pending applications to renew or modify the registration, 
on three grounds. Show Cause Order at 1-2.
    More specifically, the Show Cause Order alleged that on both 
February 28 and April 27, 2007, the Pinellas County, Florida Sheriff's 
Office had arrested Respondent and charged him with prescribing 
controlled substances without a legitimate medical purpose, and that 
his conduct constituted acts inconsistent with the public interest. Id. 
at 1 (citing 21 U.S.C. 824(a)(4)). Next, the Show Cause Order alleged 
that on June 21, 2007, the Florida Department of Health revoked 
Respondent's state medical license and that Respondent was therefore 
without authority to handle controlled substances in the State in which 
he held his DEA registration. Id. (citing 21 U.S.C. 824(a)(3)). 
Finally, the Show Cause Order alleged that in July 2003, Respondent had 
materially falsified his renewal application for a DEA registration by 
failing to disclose that in 1999, he had surrendered his DEA 
registration and Ohio medical license based on allegations that he was 
``impaired by excessive or habitual use of drugs and alcohol.'' Id. at 
1-2 (citing 21 U.S.C. 824(a)(1)).
    On October 15, 2007, the Show Cause Order, which also informed 
Respondent of his right to a hearing, was served on him at the Pinellas 
County Jail, where

[[Page 34328]]

he was then residing.\1\ Since that time, neither Respondent, nor any 
one purporting to represent him, has requested a hearing. Because more 
than thirty days have passed since the service of the Show Cause Order 
and no request for a hearing has been received, I find that Respondent 
has waived his right to a hearing on the allegations. 21 CFR 
1301.43(d). Accordingly, I enter this Final Order without a hearing 
based on relevant material contained in the investigative file and make 
the following findings. Id. Sec.  1301.43(e).
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    \1\ A courtesy copy of the Show Cause Order was also sent to 
Respondent's counsel.
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Findings

    Respondent held DEA Certificate of Registration, BB1336456, which 
expired on July 31, 2006. Respondent did not file a renewal application 
until August 8, 2006. Because Respondent's renewal application was 
untimely, I find that Respondent does not have a current registration. 
See 5 U.S.C. 558(c). Respondent does, however, have an application 
which remains pending before the Agency.
    On June 9, 1999, Respondent voluntarily surrendered his Ohio 
medical license to avoid further formal proceedings based on his 
failure to comply with a consent agreement with the Ohio Medical Board 
under which he was required to surrender his DEA registration and could 
not apply for a new registration absent the state board's approval. 
According to the records of the Ohio board, Respondent had admitted 
that he ``suffered impairment due to excessive or habitual use of drugs 
and alcohol.'' See Ohio Medical Board Formal Actions Against Craig 
Howard Bammer, at 2. Respondent eventually did surrender his DEA 
registration.
    On July 24, 2003, Respondent submitted an application to renew his 
DEA registration.\2\ While on this application Respondent acknowledged 
that he had been subjected to disciplinary proceedings with respect to 
both his Ohio and Florida medical licenses, Respondent answered ``no'' 
to the question of whether he had ``ever surrendered'' his DEA 
registration. Moreover, according to the Agency's registration records, 
on his August 2006 application, Respondent again acknowledged the prior 
actions against his state licenses. The registration record does not, 
however, establish how Respondent answered the liability question 
related to his DEA registration.
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    \2\ By this date, Respondent had already regained a DEA 
registration, as a renewal application stated that ``your crrent 
registration expires on 07-31-2003.'' Renewal Application for 
Registration (Dtd. July 7, 2003).
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    As for the other allegations, the investigative file establishes 
that in January 2007, an undercover officer obtained a prescription for 
Roxicodone, a schedule II controlled substance from Respondent without 
the latter having performed a physical examination. Moreover, the 
undercover officer also obtained a prescription for a third person who 
was not present. The investigative file does not, however, indicate 
what drug the prescription was for.
    The investigative file also indicates that in February 2007, the 
undercover officer obtained additional prescriptions for Roxicodone in 
exchange for the officer's agreeing to pay Respondent's electric bill. 
Shortly thereafter, Respondent was arrested and charged with several 
counts of trafficking in illegal drugs, a felony offense under Florida 
law. See Fla. Stat. Ann. 893.135. According to the online records of 
the Pinellas County Courts, Respondent awaits trial on these charges.
    Moreover, on May 25, 2007, the Florida Department of Health issued 
an emergency order suspending Respondent's medical license. Thereafter, 
on June 21, 2007, the Florida Department of Health revoked Respondent's 
medical license.

Discussion

    Under section 304(a) of the Controlled Substances Act (CSA), a 
registration ``may be suspended or revoked by the Attorney General upon 
a finding that the registrant * * * has materially falsified any 
application filed pursuant to or required by this subchapter.'' 21 
U.S.C. 824(a)(1). The Attorney General may also suspend or revoke a 
registration ``upon a finding that the registrant * * * has had his 
State license or registration suspended, revoked, or denied by 
competent State authority and is no longer authorized by State law to 
engage in the * * * dispensing of controlled substances.'' Id. Sec.  
824(a)(3). Under agency precedent, the various grounds for revocation 
or suspension of an existing registration which Congress enumerated in 
section 304(a), 21 U.S.C. 824(a), are also properly considered in 
deciding whether to grant or deny a registration under section 303. See 
The Lawsons, Inc., 72 FR 74334, 74338 (2007); Kuen H. Chen, 58 FR 
65401, 65402 (1993).
    In this matter, the Order to Show Cause alleged three separate 
grounds for this proceeding. I conclude that it is unnecessary to 
address the allegations related to Respondent's prescribing of 
controlled substances without a legitimate medical purpose. Instead, I 
find that because Respondent materially falsified his 2003 application 
for a DEA registration and lacks authority under state law to prescribe 
a controlled substance, he is not entitled to hold a DEA registration. 
Accordingly, his application will be denied.

The Material Falsification Allegation

    Respondent materially falsified his 2003 application for a DEA 
registration when he failed to disclose that he had previously 
surrendered his DEA registration. As this Agency has repeatedly held, 
`` `[t]he provision of truthful information on applications is 
absolutely essential to effectuating [the] statutory purpose' of 
determining whether the granting of an application is consistent with 
the public interest.'' The Lawsons, 72 FR at 74338 (quoting Peter H. 
Ahles, 71 FR 50097, 50098 (2006)). See also Hoxie v. DEA, 419 F.3d 477, 
483 (6th Cir. 2005) (``Candor * * * is considered by the DEA to be an 
important factor when assessing whether a * * * registration is 
consistent with the public interest.'').
    A false statement is material if it ``has a natural tendency to 
influence, or was capable of influencing, the decision of the 
decisionmaking body to which it was addressed.'' Kungys v. United 
States, 485 U.S. 759, 770 (1988) (int. quotation and other citations 
omitted). Moreover, while the evidence must be ``clear, unequivocal, 
and convincing,'' the ``ultimate finding of materiality turns on an 
interpretation of the substantive law.'' Id. at 772 (int. quotations 
and other citation omitted).
    This Agency has previously held that ``[a]n applicant's answers to 
the various liability questions are material because [it] `relies upon 
such answers to determine whether an investigation is needed prior to 
granting the application.' ''The Lawsons, 72 FR at 74338 (quoting 
Martha Hernandez, 62 FR 61145, 61146 (1997)). Notably, in determining 
whether the granting of an application is in the public interest, the 
Agency is required to consider ``[t]he applicant's experience in 
dispensing * * * controlled substances,'' his ``[c]ompliance with 
applicable State, Federal or local laws relating to controlled 
substances,'' and ``other conduct which may threaten public health and 
safety.'' 21 U.S.C. 823(f). And in making determinations with respect 
to these factors, DEA has repeatedly considered an applicant's or an 
existing registrant's history of abusing controlled substances. See, 
e.g., Patrick K. Riggs, 72 FR 71959 (2007); Alan H. Olefsky, 72 FR 
42127 (2007); Alan H. Olefsky, 57 FR 928 (1992).

[[Page 34329]]

    I thus conclude that Respondent's failure to disclose the earlier 
surrender of his DEA registration was a material misrepresentation 
because it ``ha[d] a natural tendency to influence the * * * decision'' 
of the Agency as to whether to grant his application for a new 
registration.\3\ Under DEA precedent, this act ``provides an 
independent and adequate ground for denying'' Respondent's application. 
The Lawsons, 72 FR at 74338; Cf. Bobby Watts, 58 FR 46997 (1993).
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    \3\ While Respondent indicated on 2003 application that both his 
Florida and Ohio licenses had been subjected to discipline, he 
further stated that the basis of the discipline was his ``abuse of a 
non-controlled substance (Stadol nasal spray).'' Stadol nasal spray 
contains butorphanol tartrate, and is a schedule IV controlled 
substance. See 21 CFR 1308.14(f). Respondent's statement was thus an 
additional misrepresentation.
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The Lack of State Authority Allegation

    As found above, on May 25, 2007, the Florida Department of Health 
issued an order which imposed an emergency suspension of Respondent's 
state medical license. Shortly thereafter, on June 21, 2007, the 
Florida Department of Health issued a further order which revoked 
Respondent's state medical license.
    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to handle controlled substances in ``the 
jurisdiction in which he practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means 
a physician * * * licensed, registered, or otherwise permitted, by * * 
* the jurisdiction in which he practices * * * to distribute, dispense, 
[or] administer * * * a controlled substance in the course of 
professional practice''). See also id. Sec.  823(f) (``The Attorney 
General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which he practices.''). As these provisions make plain, 
possessing authority to dispense a controlled substance under the laws 
of the State in which a physician practices medicine is an essential 
condition for holding a DEA registration.
    Because Respondent's Florida medical license has been revoked, he 
is without authority under state law to handle controlled substance and 
does not meet an essential prerequisite under the CSA for obtaining a 
new DEA registration. See Richard Carino, M.D., 72 FR 71955, 71956 
(2007) (citing cases); 21 U.S.C. 823(f). Accordingly, his application 
will be denied for this reason as well.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) & 0.104, I hereby order that the application of 
Craig H. Bammer, D.O., for the renewal of his registration be, and it 
hereby is, denied. This order is effective July 17, 2008.

    Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E8-13609 Filed 6-16-08; 8:45 am]
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