[Federal Register Volume 80, Number 159 (Tuesday, August 18, 2015)]
[Notices]
[Pages 50029-50031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20352]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


John R. Kregenow, D.D.S.; Decision and Order

    On October 29, 2014, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to John R. Kregenow, D.D.S. (Registrant), of 
Milwaukee, Wisconsin. GX 1, at 1. The Show Cause Order proposed the 
revocation of Registrant's DEA Certificate of Registration AK8212348, 
and the denial of any pending applications for renewal

[[Page 50030]]

or modification of the registration, on the ground that he lacks 
authority to handle controlled substances in Wisconsin, the State in 
which he is registered with DEA. Id. (citing 21 U.S.C. 823(f) & 
824(a)(3)).
    The Show Cause Order specifically alleged that on September 3, 
2014, the Wisconsin Dentistry Examining Board (hereinafter, the Board) 
issued an Order of Summary Suspension, suspending Registrant's dental 
license and that the Order ``is still in effect.'' Id. The Show Cause 
Order thus asserted that ``DEA must revoke [Registrant's] registration 
based upon [his] lack of authority to handle controlled substances in 
the State of Wisconsin.'' \1\ Id. at 1-2 (citing 21 U.S.C. 802(21), 
823(f) and 824(a) (3)).
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    \1\ The Show Cause Order also notified Registrant of his right 
to request a hearing on the allegations or to submit a written 
statement in lieu of a hearing, the procedure for electing either 
option, and the consequence for failing to elect either option. Id. 
at 2 (citing 21 CFR 1301.43).
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    On November 6, 2014, a Diversion Investigator (DI) attempted to 
serve the Show Cause Order on Registrant by travelling to his residence 
but no one was home. GX 6, at 2. (Declaration of Diversion 
Investigator). The DI then left at Registrant's residence an envelope 
which contained a copy of the Show Cause Order, a Voluntary Surrender 
Form, and written ``instructions describing [Registrant's] options 
regarding his . . . registration.'' Id.
    The next day, the DI mailed a copy of the Show Cause Order by 
certified mail, return receipt requested, addressed to Registrant at 
his residence. Id. The same day, the DI also emailed an electronic copy 
of the Order to the two previous email addresses associated with his 
registration.\2\ Id.
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    \2\ The Government provided no further information regarding the 
adequacy of its attempts to serve the Show Cause Order by email, and 
in any event, under the Agency's cases, except for where the 
intended recipient is a fugitive, email is to be used only after the 
traditional methods of service have been used and been ineffective 
at accomplishing service. See Emilio Luna, 77 FR 4829, 4830 (2012); 
Robert Leigh Kale, 76 FR 48898, 48899-900 (2011).
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    On December 8, 2014, the DI received a return receipt card for the 
mailing which was signed by Registrant. Id. The card was dated December 
3, 2014. Id., see also GX 5, at 2. Based on the signed return receipt 
card, I find that the Government accomplished service on December 3, 
2014.
    Based on the Government's representation that since the date of 
service, neither Registrant, nor any person purporting to represent 
him, ``has requested a hearing or otherwise corresponded with DEA'' 
regarding the Show Cause Order, and finding that more than 30 days have 
now passed since the date of service, I find that Registrant has waived 
his right to either request a hearing on the allegations of the Show 
Cause Order or to submit a written statement in lieu of a hearing. See 
21 CFR 1301.43(c) & (d). I therefore issue this Decision and Final 
Order based on the record submitted by the Government. See 21 CFR 
1301.43(e). I make the following findings.

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration 
AK8212348, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 6015 West Forest Home Ave., Unit 1, Old Grove 
Shopping Center, Milwaukee, Wisconsin. GX 2. His registration does not 
expire until December 31, 2015. Id.
    On September 3, 2014, the Board summarily suspended Registrant's 
dental license, finding ``probable cause to believe [he] violated the 
provisions of Wis. Stat. Ch. 447'' and that ``the public health, safety 
or welfare imperatively requires emergency action.'' GX 3, at 10-11. 
While Registrant was entitled to a hearing to challenge the summary 
suspension, id. at 11, on March 11, 2015, Registrant waived his right 
to a hearing on the allegations and consented to the entry by the Board 
of a Final Decision and Order revoking his medical license. 
Stipulation, at 1, In re John R. Kregenow, D.D.S . (Wis. Dent. Exam'ng. 
Bd. 2015).
    On May 6, 2015, the Board issued its Final Decision and Order, 
revoking Registrant's license to practice dentistry.\3\ Final Decision 
and Order, at 2, In re Kregenow. The Board found that Registrant had 
engaged in unprofessional conduct, which included, inter alia, 
``[a]dministering, dispensing, prescribing, supplying or obtaining 
controlled substances . . . other than in the course of legitimate 
practice, or as otherwise prohibited by law.'' Wis. Admin. Code Sec.  
DE 5.02(6) (cited in Final Decision and Order, at 2). The Board further 
found that Registrant had ``elected to retire from the practice of 
dentistry'' and revoked his license to ``ensure protection of the 
public, rehabilitation of Respondent and general deterrence.'' Id.
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    \3\ This Order was obtained through an online search of the 
Board of Dentistry's Web site. Under the Administrative Procedure 
Act (APA), 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) (Wm. W. Gaunt & Sons, Inc., Reprint 1979); see also 5 
U.S.C. 556(e); 21 CFR 1316.59(e).
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    Based on the Board's order, I find that Registrant no longer 
possesses authority to dispense controlled substances in Wisconsin, the 
State in which he is registered under the Controlled Substances Act.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823, ``upon a 
finding that the registrant . . . has had his State license . . . 
suspended [or] revoked . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Moreover, the Agency has long held that the 
possession of authority to dispense controlled substances under the 
laws of the State in which a practitioner engages in professional 
practice is a fundamental condition for obtaining and maintaining a 
practitioner's registration. See James L. Hooper, 76 FR 71371 (2011), 
pet. for rev. denied, Hooper v. Holder, 481 Fed. App'x. 826 (4th Cir. 
2012).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``[t]he term `practitioner' [to] mean[ ] a . . 
. dentist . . . or other person 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he engages in professional practice. See, 
e.g., Sharad C. Patel, 80 FR 28693, 28695 (2015); Calvin Ramsey, 76 FR 
20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 
(2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 
FR 11919, 11920 (1988).
    Thus, because Registrant no longer possesses lawful authority to 
practice dentistry in the Wisconsin, see Wis. Stat. Sec. Sec.  
447.03(1) & 961.01(a), the State where he is currently registered, I 
will order that Registrant's DEA registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 
CFR 0.100(b) I order that DEA Certificate of Registration AK8212348 
issued to John R. Kregenow, D.D.S., be, and it hereby is, revoked. I 
further order that any

[[Page 50031]]

application of John R. Kregenow, D.D.S., to renew or modify this 
registration, be, and it hereby is, denied. This Order is effective 
immediately.\4\
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    \4\ For the same reasons that the Wisconsin Board summarily 
suspended Registrant's dental license, I conclude that the public 
interest requires that this Order be effective immediately. See 21 
CFR 1316.67.

    Dated: August 10, 2015.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2015-20352 Filed 8-17-15; 8:45 am]
 BILLING CODE 4410-09-P