[Federal Register Volume 81, Number 61 (Wednesday, March 30, 2016)]
[Notices]
[Pages 17738-17739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07111]



[[Page 17738]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Avi Weisfogel, D.D.S.; Decision and Order

    On November 2, 2015, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Avi Weisfogel, D.D.S. (Registrant), of Old 
Bridge, New Jersey. GX 1, at 1. The Show Cause Order proposed the 
revocation of Registrant's Certificate of Registration BW6474580, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II through V as a practitioner, the denial of any application 
to renew or modify the registration, and the denial of any application 
for any other DEA registration, on the ground that he ``do[es] not have 
authority to handle controlled substances in New Jersey, the [S]tate in 
which he is registered with the'' Agency. Id. (citing 21 U.S.C. 823(f) 
and 824(a)(3)).
    More specifically, the Show Cause Order alleged that Registrant 
entered into a consent order with the New Jersey State Board of 
Dentistry (Board), pursuant to which the Board revoked his license to 
practice dentistry effective November 13, 2014. Id. The Show Cause 
Order thus alleged that Registrant is ``without authority to handle 
controlled substances in New Jersey, the State in which [he is] 
registered.'' Id. The Order thus advised Registrant that his 
registration was subject to revocation ``based upon [his] lack of 
authority to handle controlled substances in the State of New Jersey.'' 
Id. (citing 21 U.S.C. 802(21), 823(f) and 824(a)(3)).\1\
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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. GX 
1, at 2 (citing 21 CFR 1301.43).
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    Having determined that Registrant was no longer practicing at his 
registered location, a Diversion Investigator obtained his residence 
address and initially attempted to serve the Show Cause Order on him by 
Certified Mail, Return Receipt Requested, which was addressed to him at 
his residence. GX 6, at 1-2 (Declaration of DI). However, the mailing 
was returned unclaimed. GX 3, at 1. Subsequently, on December 4, 2015, 
the DI mailed the Show Cause Order to Registrant's residence by regular 
first class mail. GX 6, at 2. The DI averred that the Order was not 
returned as undeliverable. Id.
    In its Request for Final Agency Action, the Government advises that 
neither Registrant, nor anyone representing him, has requested a 
hearing or sent any other correspondence to DEA. Request for Final 
Agency Action, at 6. Accordingly, the Government filed its Request for 
Final Agency Action seeking the revocation of Registrant's Registration 
along with the Investigative Record to support is Request. See 21 CFR 
1301.43(d) & (e).
    Based on the Government's submission, I conclude that Registrant 
has received constitutionally adequate notice of the proceeding. See 
Jones v. Flowers, 547 U.S. 220 (2006). I find that since the date of 
service of the Order to Show Cause, 30 days have now passed, and 
neither Registrant, nor anyone purporting to represent him, has either 
requested a hearing on the allegations or submitted a written statement 
in lieu of a hearing. See 21 CFR 1301.43(a) & (c). Accordingly, I find 
that Registrant has waived his right to a hearing or to submit a 
written statement. Id. Sec.  1301.43(c) & (d). I therefore issue this 
Decision and Final Order based on the Investigative Record submitted by 
the Government. Id. Sec.  1301.43(e). I make the following findings of 
fact.

Findings

    Registrant is the holder of DEA Certificate of Registration 
BW6474580, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, at the registered address of 30 
State Highway 18, Old Bridge, NJ. GX 2. The registration does not 
expire until May 31, 2017. Id.
    Registrant previously held a dental license issued by the New 
Jersey State Board of Dentistry. GX 5, at 1. Registrant also previously 
held a New Jersey Controlled Dangerous Substance Registration (CDS). 
However, on November 13, 2014, Registrant entered into a Consent Order 
with the Board of Dentistry in which he agreed that his dental license 
``is hereby permanently retired [and this] is to be deemed a revocation 
of licensure.'' GX 5, at 2. As for his New Jersey CDS Registration, it 
became inactive on the same date that Registrant entered into the 
Consent Order with the Board and has since expired. According to the 
online records of the State of New Jersey, as of the date of this 
Order, Registrant's New Jersey Dentist license remains revoked. See 
also https://newjersey.mylicense.com/verification.

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, DEA has repeatedly 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. James L. Hooper, 76 FR 71371 (2011), pet. 
for rev. denied, Hooper v. Holder, 481 Fed. Appx. 826 (4th Cir. 2012).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . 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 practices his profession. See, e.g., 
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).
    Because Registrant no longer holds authority to dispense controlled 
substances in New Jersey, the State in which he is registered with the 
Agency, I will order that his registration be revoked and that any 
pending application to renew or modify his registration be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 21 CFR 0.100(b), I order that DEA Certificate of 
Registration BW6474580, issued to Avi Weisfogel, D.D.S., be, and it 
hereby is, revoked. I further order that any pending application of Avi 
Weisfogel, D.D.S, to renew or modify his

[[Page 17739]]

registration, be, and it hereby is, denied. This Order is effective 
April 29, 2016.

    Dated: March 21, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-07111 Filed 3-29-16; 8:45 am]
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