[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Notices]
[Pages 75773-75774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29406]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-35]


Hicham K. Riba, D.D.S.; Revocation of Registration

    On February 1, 2008, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Hicham K. Riba, D.D.S. (Respondent), of Chicago, 
Illinois. The Show Cause Order proposed the revocation of Respondent's 
DEA Certificate of Registration, BR5325091, as a practitioner, on the 
ground that ``as a result of [disciplinary] action by the Illinois 
Department of Financial and Professional Regulation,'' Respondent is 
``currently without authority to handle controlled substances in * * * 
Illinois, the [S]tate in which [he is] registered with DEA,'' and is 
therefore not entitled to maintain his registration. Show Cause Order 
at 1.
    Respondent requested a hearing on the allegation; the matter was 
assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner. 
Thereafter, the Government moved for summary disposition and to stay 
further proceedings. Motion for Sum. Disp. at 1-2. The basis for the 
Government's motion was that on September 29, 2006, the Illinois 
Department of Professional Regulation suspended Respondent's dental 
license ``due to gross malpractice, professional incompetence, and 
dishonorable, unethical or unprofessional conduct.'' Id. at 1. Because 
Respondent lacks authority under Illinois law to dispense controlled 
substances and was therefore without authority to hold a DEA 
registration in Illinois, the Government maintained that his 
registration must be revoked. Id. at 1-2.
    Respondent opposed the Government's motion. Respondent contended 
that he was denied a fair hearing in the state proceeding because a 
member of the Illinois House of Representatives had written the 
Director of the Illinois Department of Financial and Professional 
Regulation and urged that Respondent ``should never have his dental 
license re-instated,'' and ``that this Dentist [should] never be 
allowed to practice in the State of Illinois * * * again.'' Response to 
Mot. for Sum. Disp. at 1. Respondent further argued that the letter was 
an improper ex parte communication, which was not made a part of the 
record as required by state law and which was not disclosed until the 
Director issued the final decision in the case, in which he rejected 
the recommendation of the state board that a lesser sanction be 
imposed. Id. at 1-2. Respondent further noted other cases in which 
dentists who had committed similar acts had received less harsh 
sanctions and contends that there is ``a reasonable inference that the 
Director was improperly influenced by the ex parte communication and 
that the [state] proceeding * * * was not fair.'' Id. at 3. Finally, 
Respondent maintained that the authorities cited by the Government in 
support of its motion were distinguishable because ``those cases did 
not discuss the issue of improper ex parte communication having 
prejudiced the proceeding of the state licensing agency.'' Id. at 4.\1\
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    \1\ Respondent further asserted that the proceeding should be 
stayed pending the resolution of his state appeal.
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    The ALJ was not persuaded. The ALJ noted that there was no dispute 
that Respondent was without authority to dispense controlled substances 
in Illinois, and that under agency precedent, he was not entitled to a 
stay of this proceeding during the pendency of his appeal of the state 
proceeding. ALJ Dec. at 3-4 (citing Wingfield Drugs, Inc., 52 FR 
27,070, 27,071 (1987)). The ALJ thus concluded that further delay in 
ruling on the Government's motion was unwarranted, granted the 
Government's motion for summary disposition, and recommended that 
Respondent's registration be revoked and that ``any pending 
applications be denied.'' Id at 4-5. The record was then forwarded to 
me for final agency action.
    Thereafter, Respondent filed exceptions to the ALJ's decision. 
Respondent's principal argument is that the ALJ's decision was overly 
broad because it recommended the denial of any pending applications and 
thus ``goes beyond the scope of this proceeding'' because he had moved 
to Tennessee and ``was granted a license to practice dentistry in'' 
that State. Resp. Exceptions at 2-3.
    Having considered the entire record in this matter, including 
Respondent's exceptions, I adopt the ALJ's decision in its entirety. I 
find that Respondent currently holds DEA Certificate of Registration, 
BR5325091, which authorizes him to dispense controlled substances in 
schedules II through V as a practitioner, at the registered location of 
Little Angel Dental Clinic, 3915 W. 26th Street, Chicago, Illinois. 
Respondent's registration does not expire until April 30, 2009.
    I further find that on September 29, 2006, the Illinois Division of 
Professional Regulation suspended Respondent's state dental license 
``due to gross malpractice, professional incompetence, and 
dishonorable, unethical or unprofessional conduct.'' Exh. A. to Gov. 
Motion for Summary Disp. Moreover, I take official notice of the online 
records of the Illinois Division of Professional Regulation, which 
indicate that both Respondent's state dental license and his controlled 
substance license remain suspended.\2\
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    \2\ An agency ``may take official notice of facts at any stage 
in a proceeding--even in the final decision.'' U.S. Dept. of 
Justice, Attorney General's Manual on the Administrative Procedure 
Act 80 (1947). In accordance with the Administrative Procedure Act 
and DEA's regulation, Respondent is ``entitled on timely request to 
an opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 
21 CFR 1316.59(e). Accordingly, Respondent may file a motion for 
reconsideration within fifteen days of service of this order which 
shall commence with the mailing of the order.

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[[Page 75774]]

    Under the Controlled Substances Act (CSA), ``[a] separate 
registration [is] required at each principal place of * * * 
professional practice where the [registrant] dispenses controlled 
substances,'' 21 U.S.C. 822(e), and 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 
dentist practices is an essential condition for holding a DEA 
registration.
    Accordingly, DEA has repeatedly held that the CSA requires the 
revocation of a registration issued to a practitioner whose state 
license has been suspended or revoked. See Sheran Arden Yeates, 71 FR 
39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 
824(a)(3)(authorizing the revocation of a registration ``upon a finding 
that the registrant * * * has had his State license or registration 
suspended [or] revoked * * * and is no longer authorized by State law 
to engage in the * * * distribution [or] dispensing of controlled 
substances'').
    Moreover, DEA has repeatedly held ``that a registrant cannot 
collaterally attack the results of a state criminal or administrative 
proceeding in a proceeding under section 304 of the CSA.'' Brenton D. 
Glisson, M.D., 72 FR 54296, 54297 (2007) (quoting Sunil Bhasin; M.D., 
72 FR 5082, 5083 (2007)); see also Shahid Musud Siddiqui, 61 FR 14818 
(1996); Robert A. Leslie, 60 FR 14004 (1995)). Respondent's contention 
that the state proceeding was fundamentally unfair because the Director 
was improperly influenced by an ex parte communication from a member of 
the Illinois House of Representatives is not addressable in this forum.
    Moreover, while it appears that Respondent is seeking judicial 
review of the state proceeding in the Illinois courts, the suspension 
nonetheless remains in effect. Respondent therefore remains without 
authority under Illinois law to dispense controlled substances in the 
State in which he is registered. Because possessing authority under 
state law is an essential condition for holding a registration under 
the CSA, see 21 U.S.C. 802(21) & 823(f), and Respondent's Illinois 
controlled substance license remains suspended, he is not entitled to a 
stay of this proceeding. See Wingfield Drugs, 52 FR at 27071.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA 
Certificate of Registration, BR5325091, issued to Hicham K. Riba, 
D.D.S., be, and it hereby is, revoked. I further order that any pending 
application of Hicham K. Riba, D.D.S., to renew this registration be, 
and it hereby is, denied.\3\ This order is effective January 12, 2009.
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    \3\ There is no evidence in the record as to whether Respondent 
has applied for a registration in Tennessee. Nor is there any 
evidence that Respondent requested a modification of his registered 
location from Illinois to Tennessee. Because this proceeding was 
based solely on Respondent's loss of authority under Illinois law, 
it is not res judicata on the question of whether granting 
Respondent a registration to dispense controlled substances in 
Tennessee would be consistent with the public interest.

    December 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-29406 Filed 12-11-08; 8:45 am]
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