[Federal Register Volume 82, Number 27 (Friday, February 10, 2017)]
[Notices]
[Pages 10398-10401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02729]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


John P. Moore, III, M.D.; Decision and Order

    On June 30, 2016, the Assistant Administrator, Division of 
Diversion Control, issued an Order to Show Cause to John P. Moore, III, 
M.D. (Respondent), of Centerville, Ohio. The Show Cause Order proposed 
the revocation of Respondent's DEA Certificate of Registration No. 
FM1335353. GX 2, at 1.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is the holder of Certificate of Registration 
No. FM1335353, which ``is valid for Drug Schedules II-V,'' at the 
address of 950 E. Alex Bell Road, Centerville, Ohio. Id. at 2. The 
Order further alleged that this registration does not expire until 
January 31, 2018. Id.
    The Show Cause Order further alleged three separate grounds for the 
proposed action. First, it alleged that on April 5, 2016, Respondent 
pled guilty in the Ohio courts to four state felony counts of knowingly 
selling or offering to sell zolpidem and diazepam (both schedule IV 
controlled substances) and Suboxone (buprenorphine and naloxone, a 
schedule III controlled substance), as well as a further felony count 
of knowingly permitting real estate or other premises to be used for 
drug trafficking. Id. (citing Ohio Rev. Code Sec. Sec.  2925.03, 
2925.13). See also 21 U.S.C. 824(a)(2).
    Second, the Show Cause Order alleged that on May 11, 2016, 
Respondent's Ohio medical license was suspended and that he is 
currently without authority to dispense controlled substances in the 
State in which he is registered with the Agency. GX 2, at 2 (citing 21 
U.S.C. 802(21), 824(a)(3)). And third, the Show Cause Order alleged 
that Respondent has also been ``convicted of felony Medicaid fraud,'' 
thus rendering him subject to mandatory exclusion from participation in 
federal health care programs under 42 U.S.C. 1320a-7(a) and subjecting 
his registration to revocation for this reason as well. GX 2, at 2 
(citing 21 U.S.C. 824(a)(5)).
    The Show Cause Order also notified Respondent of his right to 
request a hearing on the allegations of the Order or to submit a 
written statement of position while waiving his right to a hearing, the 
procedure for electing either option (including the time period for 
filing), and the consequence of failing to elect either option as well 
as the failure to do so in compliance with the Agency's regulations. 
Id. at 3 (citing 21 CFR 1301.43). Finally, the Show Cause Order 
informed Respondent of his right to submit a corrective action plan 
under 21 U.S.C. 824(c)(2)(C). Id.
    On or about June 30, 2016, the Government sent the Show Cause Order 
by certified mail, return receipt requested, addressed to Respondent at 
his residence in the Correctional Reception Center in Orient, Ohio. GX 
5, Appendix A, at 1, 3-4. As evidenced by the signed return receipt 
card, on July 6, 2016, the Government accomplished service.\1\ Id. at 
3,
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    \1\ While I find that the mailing provided constitutionally 
adequate service, the Government also produced evidence showing that 
it had emailed a copy of the Show Cause Order to corrections 
officers at the Ohio Correctional Reception Center and that 
Respondent was personally served with a copy of the order on July 7, 
2016. GX 5, Appendix A, at 2, 5.

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[[Page 10399]]

    On August 11, 2016, Respondent filed a request for a hearing with 
the Office of Administrative Law Judges and the matter was assigned to 
Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, 
CALJ). GXs 3, 4. In his hearing request, Respondent's counsel 
acknowledged that his request was out of time. GX 3, at 3. Respondent, 
however, invoked 21 CFR 1316.47(b), which provides that ``[t]he 
Administrative Law Judge, upon request and showing of good cause, may 
grant a reasonable extension of the time allowed for a response to an 
Order to Show Cause.'' \2\ Respondent thus argued that ``good cause 
exists for a reasonable extension of time'' to respond to the Show 
Cause Order because he ``did not have timely access to his mail while 
incarcerated.'' GX 3, at 3. Respondent's counsel further argued that 
the request came ``less than 7 days beyond the . . . 30-day time frame 
for a response'' and that the Agency was not ``materially prejudiced by 
the'' delay. Id.
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    \2\ While Respondent cited this provision as authority to excuse 
his untimely filing, it is clear that he submitted a hearing request 
which is also subject to the good cause standard. See 21 CFR 
1301.43(d). The Agency has previously explained on interlocutory 
review that ``where an ALJ receives an untimely hearing request, it 
is within [the ALJ's] authority to conduct such proceedings as are 
necessary to determine whether the respondent has established good 
cause.'' Mark S. Cukierman, Denial of Interlocutory Appeal, Slip Op. 
at 7. This is so even where a respondent does not establish good 
cause as part of the hearing request. Id. However, as also explained 
in Cukierman, once the Government submits a request for final agency 
action to this Office, the forwarding of the record divests the ALJ 
of authority to rule on whether there is good cause to excuse an 
untimely request for a hearing and the timeliness of the hearing 
request is to be reviewed by this Office. In those instances in 
which a respondent submits a hearing request after the Government 
has filed its Request for Final Agency Action, the Government should 
inform the ALJ that the matter has been forwarded to this Office and 
the ALJ should issue an order forwarding the hearing request to this 
Office.
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    Upon receipt of Respondent's hearing request, the CALJ issued an 
order, directing, inter alia, that the Government submit ``proof of the 
date of service'' of the Show Cause Order, as well as a response to 
Respondent's request for an extension or a motion to terminate the 
proceeding. GX 4, at 1-2. In response, the Government timely submitted 
a motion to terminate the proceeding and opposing Respondent's request 
for an extension. GX 5.
    Therein, the Government represented that the Show Cause Order had 
been served on Respondent by both certified mail which was received on 
July 6, 2016, as well as hand delivery by prison personnel on July 7, 
2016. Id. at 1-2. The Government then noted that Respondent ``was 
released from [prison] on approximately July 27, 2016'' and that the 
Ohio Medical Board had conducted a hearing on July 28, 2016, at which 
he was physically present and was represented by the same counsel that 
was representing him in the DEA proceeding. Id. at 2. The Government 
argues that ``[e]ven if Respondent did not have timely access to mail 
for communicating with his counsel regarding the'' Show Cause Order, he 
certainly could have done so on July 28 and thus, he has failed to 
offer good cause for the untimely submission of his hearing request. 
Id. While the Government acknowledged that it was not prejudiced by 
Respondent's untimely hearing request, it argued that Respondent was 
seeking to gain a ``tactical advantage'' by drawing out the proceedings 
in the hope that the Ohio Board would reinstate his license. Id. at 2-
3.
    Upon receipt of the Government's motion, the CALJ provided 
Respondent with an opportunity to respond to the Government's motion 
and Respondent filed a response. GXs 7, 8. Therein, Respondent 
explained that ``[b]ecause of [his] preoccupation with defending the 
[State Board's] allegations, he did not notify his counsel of the [DEA] 
matter until [t]he morning of August 8, 2016,'' on which date his 
``counsel immediately filed a request for [h]earing.'' GX 8, at 1. 
After noting the Government's concession that the untimely filing of 
the request had not caused it prejudice, Respondent ``denie[d]'' that 
he sought the extension to obtain ``a tactical advantage'' and stated 
that he ``is willing and able to defend his interests in this matter 
without a final determination by the Ohio Medical Board.'' Id. 
Respondent then argued that he had shown ``good cause'' under 21 CFR 
1316.47(b) based on ``the importance of the constitutionally protected 
interest involved in this matter'' and because only a ``minor 2-day 
extension'' was requested.\3\ Id. at 1-2.
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    \3\ In this filing, Respondent replied to the Government's 
Motion to Terminate by challenging the Government's Motion for 
Summary Disposition. GX 8, at 2-3. I address these arguments later 
in this Decision.
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    Upon review, the CALJ granted the Government's motion to terminate 
the proceeding. GX 9, at 5. The CALJ noted that the language of 21 CFR 
1316.47(b) ``is arguably supportive of an interpretation limiting the 
authority to extend the time to file a hearing request only during the 
time when the [Administrative Law] Judge has potential jurisdiction 
over the case, to wit, prior to the expiration of the thirty-day . . . 
period'' from the date of service for requesting a hearing. Id. at 2. 
However, the CALJ further noted that in contrast to several other 
agency regulations, including 21 CFR 1316.47(a), which states that 
``[a]ny person entitled to a hearing and desiring a hearing shall, 
within the period permitted for filing, file a request for a hearing,'' 
(emphasis added), section 1316.47(b) sets no time limit for requesting 
``a reasonable extension of the time allowed for response to an Order 
to Show Cause.'' GX 9, at 2-3. The CALJ concluded, however, that 
regardless of whether he had authority to rule on a request for an 
extension filed more than 30 days after the date of service of the Show 
Cause Order, ``the Agency has made clear that it is prepared to find a 
hearing waiver when an untimely hearing request is not supported by 
good cause for its tardiness.'' Id. at 3 (citing 21 CFR 1301.43(d) 
(``If any person entitled to a hearing . . . fails to file a request 
for a hearing . . . such person shall be deemed to have waived the 
opportunity for a hearing . . . unless such person shows good cause for 
such failure.''); Shannon L. Gallentine, 76 FR 45864, 45864 (2011)).
    The CALJ then found that while Respondent initially argued that he 
``did not have timely access to his mail while incarcerated,'' once the 
Government refuted this argument (by showing that he had been released 
from custody on July 27, 2016), he then changed his position and 
maintained that his ``pre-occupation'' with the Ohio Board's hearing 
had led him to miss the filing deadline.\4\ GX 9, at 4. The CALJ 
rejected the latter explanation as sufficient to establish ``good 
cause,'' explaining that ``in a regulatory environment where parallel 
proceedings . . . are common, even ubiquitous, `preoccupation' borne of 
participation in those proceedings, standing alone, cannot constitute 
good cause. . . . [T]he Respondent's only obligation--and the[ ] only 
task negligently accomplished--was to deliver his [Show Cause Order] to 
the attorney who was already representing him on related proceedings.'' 
Id. Continuing, the CALJ explained that although it is ``undeniably 
true that counsel promptly attended to the matter once the Respondent 
supplied the [Order], promptness on the part of his attorney can offer 
no dispensation here. No excuse has been propounded to

[[Page 10400]]

excuse his delay in providing his counsel with the'' Order. Id. at 4-5. 
The CALJ thus concluded that Respondent had not demonstrated ``good 
cause'' to excuse his untimely filing and granted the Government's 
motion to terminate the hearing. Id. at 5.
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    \4\ Of course, Respondent's initial contention is also refuted 
by the evidence that a correction officer hand-delivered the Show 
Cause Order to him on July 7, 2016, nearly three weeks before he was 
released from prison.
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    Thereafter, the Government submitted a Request for Final Agency 
Action and an evidentiary record to my Office. As an initial matter, I 
agree with the CALJ that Respondent has failed to demonstrate ``good 
cause'' to excuse the untimely filing of his hearing request.
    While DEA has interpreted the ``good cause'' standard for assessing 
the timeliness of hearing requests as encompassing cases of excusable 
neglect, mistake or inadvertence, see Keith Ky Ly, 80 FR 29025, 29027 & 
n.2 (2015) (citing Tony T. Bui, 75 FR 49979, 49980 (2010)), Respondent 
has failed to make a sufficient showing to warrant relief. While 
Respondent initially claimed that his untimely filing should be excused 
because he did not have timely access to his mail, the evidence shows 
that the Show Cause Order was hand-delivered to him. As for his 
subsequent claim that his untimeliness should be excused because he was 
preoccupied with the State Board proceeding, Respondent has failed to 
explain why he was so pre-occupied with the Board proceeding in the 
three weeks that passed from the date the Order was hand delivered to 
him until he was released from prison that he could not have devoted 
the de minimis amount of time it would have taken to mail the Order to 
his attorney or to personally prepare and mail his hearing request. 
Moreover, even assuming that Respondent was preoccupied with the Board 
hearing during the day(s) on which the hearing took place, he offers no 
explanation for why he did not provide the Show Cause Order to his 
attorney for another 10 days after the Board hearing concluded. And as 
for Respondent's contention that his untimeliness should be excused 
because of ``the importance of the constitutionally protected interest 
involved in this matter,'' this is true of every case brought by the 
Government against a registrant or applicant. It thus provides no 
reason to excuse his neglect, even if it the period of his untimeliness 
would not prejudice the Government.
    Accordingly, I conclude that Respondent has failed to established 
``good cause'' to excuse his untimely filing and has therefore waived 
his right to a hearing. See 21 CFR 1301.43(d). I therefore issue this 
Decision and Order based on the record submitted by the Government and 
make the following findings of fact.

Findings

    Respondent is the holder of DEA Certificate of Registration No. 
FM1335353, as well DATA-Waiver identification number XM1335353. GX 1. 
Pursuant to his registration, Respondent is authorized to dispense 
controlled substances in schedules II through V as a practitioner and 
pursuant to his DATA-Waiver identification number, he is authorized to 
dispense or prescribe schedule III-V narcotic controlled substances 
which ``have been approved by the Food and Drug Administration . . . 
specifically for use in maintenance or detoxification treatment'' for 
up to 100 patients.'' 21 CFR 1301.28(a) & (b)(iii); see also GX 1. 
Respondent's registered address is 950 E. Alex Bell Road, Centerville, 
Ohio; his registration and the authority provided by his DATA-Waiver 
number do not expire until January 31, 2018. GX 1.
    On April 5, 2016, the Prosecuting Attorney for Greene County, Ohio 
issued an Information which charged Respondent with multiple felony 
controlled substance offenses under Ohio law; the Information also 
charged Respondent with Medicaid Fraud. GX 11, at 2-4 (citing Ohio Rev. 
Code Sec.  2913.40(B) and (E); id. Sec.  2925.03) With respect to the 
controlled substance offenses, Respondent was charged with, inter alia: 
(1) Two counts of trafficking in zolpidem, a schedule IV controlled 
substance, from ``on or about February 12, 2009 to September 30, 
2014''; (2) trafficking in suboxone, a schedule III controlled 
substance, ``on or about February 12, 2009''; and (3) trafficking in 
diazepam, a schedule IV controlled substance, also ``on or about 
February 12, 2009.'' Id. at 2-3 (citing Ohio Rev. Code Sec.  2925.03). 
Finally, Respondent was charged with knowingly permitting real property 
to ``be use for the commission of a felony drug offense, to wit, 
trafficking . . . by another person.'' Id. at 3-4 (citing Ohio Rev. 
Code Sec.  2925.13).
    The same day, Respondent appeared in court and pled guilty to each 
of these offenses. Id. at 11-12. On May 26, 2016, the state court 
entered judgment and sentenced Respondent to a term of imprisonment of 
10 months on each of the above counts, but provided that the sentence 
for Medicaid Fraud and permitting real property to be used for the 
commission of a drug offense were ``to be served consecutively to each 
other, but concurrently to the remaining counts for a total sentence of 
20 months.'' Id. at 14, 17. The court also ordered that Respondent 
forfeit $85,000, which included $5,531.08 in restitution to two 
entities. Id. at 19. Thus, I find that Respondent has been convicted of 
felony offenses under Ohio law, ``relating to any substance defined in 
[the Controlled Substances Act] as a controlled substance.'' 21 U.S.C. 
824(a)(2); see also Ohio Rev. Code Sec.  2925.03(A)(1) (``No person 
shall knowingly . . . [s]ell or offer to sell a controlled substance or 
a controlled substance analog.''); id. Sec.  2925.03(C)(2)(a) (if drug 
is in schedules III through V, offense is a fifth degree felony). See 
also Ohio Rev. Code Sec.  2925.13(B) (``No person who is the owner, 
lessee, or occupant, or who has custody, control, or supervision, of 
premises or real estate . . . shall knowingly permit the premises or 
real estate . . . to be used for the commission of a felony drug 
offense by another person.'').\5\
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    \5\ See also Ohio Rev. Code Sec.  2925.13(C)(3) (``Permitting 
drug abuse is a felony of the fifth degree[.]'').
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    Moreover, on May 11, 2016, the State Medical Board of Ohio issued 
Respondent a Notice of Immediate Suspension and Opportunity for 
Hearing, pursuant to which his license to practice medicine and surgery 
in the State was suspended. GX 6, Attachment 1, at 1. The Board's Order 
was based on Respondent's guilty pleas to the four felony counts of 
Trafficking in Drugs (Ohio Rev. Code Sec.  2925.03) and the felony 
count of Permitting Drug Abuse (Ohio Rev. Code Sec.  2925.13). 
According to the Medical Board's Web site of which I take official 
notice,\6\ on October 19, 2016, the Board ordered the permanent 
revocation of Respondent's license to practice medicine and surgery 
based upon his convictions on the four trafficking counts, as well as 
the single counts of Permitting Drug Abuse and Medicaid Fraud; this 
Order became effective the next day. See Ohio License Center (John 
Pease Moore, III), https://license.ohio.gov/lookup/default.asp. (last 
visited February 1, 2017). I therefore find that Respondent is 
currently without authority to dispense controlled substances in Ohio.
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    \6\ In accordance with 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). In accordance with 
the APA and DEA's regulations, 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). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within 15 calendar 
days of the date of service of this Order which shall commence on 
the date this Order is mailed.

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[[Page 10401]]

    In addition, the record includes a July 29, 2016 letter from the 
Office of Inspector General, Department of Health and Human Services, 
to Respondent; the letter notified Respondent that he was ``being 
excluded from participation in any capacity in the Medicare, Medicaid, 
and all Federal health care programs as defined in section 1128B(f) of 
the Social Security Act . . . for the minimum period of 5 years.'' GX 
12, at 1. The letter explained that Respondent was being excluded based 
on his ``felony conviction[s]'' for ``a criminal offense related to the 
delivery of an item or service under the Medicare or a State health 
care program,'' and for ``criminal offense[s] related to the unlawful 
manufacture, distribution, prescription, or dispensing of a controlled 
substance as defined under Federal or State law.'' Id. (citing 42 
U.S.C. 1320a-7(a)(1) and (4)).

Discussion

    Under Section 304(a) of the Controlled Substances Act, ``[a] 
registration pursuant to section 823 of [the Act] to . . . dispense a 
controlled substance . . . may be suspended or revoked by the Attorney 
General upon a finding that the registrant--

* * * * *
    (2) has been convicted of a felony under this subchapter . . . 
or any other law of the United States, or of any State, relating to 
any substance defined in this subchapter as a controlled substance . 
. . ;
    (3) 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 . . . ;
* * * * *
    (5) has been excluded . . . from participation in a program 
pursuant to section 1320a-7(a) of Title 42.

    21 U.S.C. 824(a).
    The Government has ``the burden of proving that the requirements 
for such revocation or suspension pursuant to section 304(a) . . . (21 
U.S.C. 824(a) . . .) are satisfied. 21 CFR 1301.44(e). Thus, even where 
a registrant waives his right to a hearing, the Government is required 
to produce substantial evidence to support the proposed action. In this 
matter, having considered the evidence submitted by the Government, I 
conclude that there are three separate and independent grounds to 
revoke Respondent's registration.
    First, as found above, on May 26, 2016, the Common Pleas Court of 
Greene County, Ohio entered a judgment convicting Respondent of four 
counts of trafficking in drugs (suboxone, zolpidem, and diazepam) under 
Ohio law, as well as a single count of knowingly permitting real estate 
he owned or controlled to be used for drug trafficking. See Ohio Rev. 
Code Sec. Sec.  2925.03(A); 2925.13(B). Both of these provisions are 
felony offenses under Ohio law. Thus, I find that Respondent ``has been 
convicted of a felony offense . . . relating to any substance defined 
in [the CSA] as a controlled substance.'' 21 U.S.C. 824(a)(2). This 
finding provides reason alone to revoke Respondent's registration and 
his DATA-Waiver identification number.
    Second, the evidence shows that based on his guilty pleas in the 
criminal case, on May 11, 2016, the Ohio Board immediately suspended 
Respondent's license to practice medicine and surgery in the State, and 
that on October 20, 2016, the Board revoked his license. By virtue of 
the Board's actions, Respondent lacks authority to dispense controlled 
substances under the laws of the State of Ohio, the State in which he 
is registered with DEA, and thus, he is no longer a practitioner within 
the meaning of the Act. See 21 U.S.C. 802(21) (defining ``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''); 
see also id. Sec.  823(f) (directing 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'').
    As the Agency has long held, ``[s]tate authorization to dispense or 
otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
registration.'' Frederick Marsh Blanton, 43 FR 27616 (1978). Because 
the possession of state authority is a prerequisite to the maintenance 
of a practitioner's registration, the Agency has long held that 
revocation is the appropriate sanction whenever he is no longer 
authorized to dispense controlled substances under the laws of the 
State in which he practices medicine. See, e.g., James L. Hooper, 76 FR 
71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 
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); Blanton, 43 FR at 27616.\7\ Accordingly, Respondent's 
registration (and DATA-Waiver number) are subject to revocation for 
this reason as well. 21 U.S.C. 824(a)(3).
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    \7\ Thus, even if Respondent were to credibly accept 
responsibility for his criminal conduct and put forward sufficient 
evidence of remedial measures, the revocation of his state authority 
would still require that I revoke his DEA registration and DATA-
waiver number. I further reject Respondent's contention that I have 
discretion in the case of a practitioner to not revoke his 
registration based on his loss of state authority. See GX 8, at 2-3; 
see Hooper v. Holder, 481 Fed. Appx. at 827-28; see also Rezik A. 
Saqer, 81 FR 22122, 22124-27 (2016).
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    Finally, the evidence shows that Respondent has now been excluded 
``from participation in any Federal health care program'' based on his 
state conviction for Medicaid fraud, as well as his felony convictions 
relating to the distribution of controlled substances. See 42 U.S.C. 
1320a-7(a)(1) & (4); see also GX 12. Respondent has thus been excluded 
pursuant to the mandatory exclusion provisions of 42 U.S.C. 1320a-7(a). 
Accordingly, his registration (and DATA-Waiver number) are also subject 
to revocation under 21 U.S.C. 824(a)(5).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
FM1335353 issued to John P. Moore, III, M.D., be, and it hereby is, 
revoked. I further order that DATA-Waiver identification number 
XM1335353 issued to John P. Moore, II, M.D., be, and it hereby is, 
revoked. This Order is effective immediately.\8\
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    \8\ Based on the same reasons that led the Ohio Board to 
immediately suspend Respondent's medical license, I conclude that 
the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: February 2, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-02729 Filed 2-9-17; 8:45 am]
 BILLING CODE 4410-09-P