[Federal Register Volume 82, Number 171 (Wednesday, September 6, 2017)]
[Notices]
[Pages 42117-42119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18784]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Marcus W. Anderson, M.D.; Decision and Order

    On May 12, 2017, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (DEA), issued an Order

[[Page 42118]]

to Show Cause to Marcus W. Anderson, M.D. (Registrant), of Saint 
Augustine, Florida. The Show Cause Order proposed the revocation of 
Registrant's Certificate of Registration on the ground that he lacks 
``authority to handle controlled substances in the State of Florida, 
the State in which he is registered with the DEA.'' Order to Show 
Cause, Government Exhibit (GX) 1, at 1 (citing 21 U.S.C. 823(f), 
824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is registered as a practitioner in schedules II 
through V, pursuant to DEA Certificate of Registration FA3645213, at 
the address of 300 Health Park Boulevard, Suite 1004, Saint Augustine, 
Florida. Id. The Order also alleged that this registration does not 
expire until June 30, 2018. Id.
    As substantive grounds for the proceeding, the Show Cause Order 
alleged that Registrant's ``authority to prescribe and administer 
controlled substances in the State of Florida was suspended effective 
November 28, 2016.'' Id. As a result of the alleged suspension, the 
Order alleged that Registrant lacks ``authority to handle controlled 
substances in the State of Florida.'' Id. Thus, based on his lack of 
authority to dispense controlled substances in Florida, the Order 
asserted that ``the DEA must revoke'' his registration. Id. (citing 21 
U.S.C. 802(21), 823(f)(1), 824(a)(3)).
    The Show Cause Order 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). The Show Cause Order also notified Registrant of his right to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    The Government states that on May 22, 2017, ``DEA personally served 
a copy of the Order to Show Cause on [Registrant] at 206 27th Avenue 
South, Myrtle Beach, South Carolina.'' Government Request for Final 
Agency Action (RFFA), at 2 (citing GX 4). Specifically, a DEA Diversion 
Investigator (DI) from the DEA's Jacksonville, Florida, District Office 
states in a sworn affidavit that he mailed the Show Cause Order to 
Registrant'' via United States Postal Service (``USPS'') Certified 
Mail'' and ``addressed the envelope to his last known address \1\ at 
206 27th Avenue South, Myrtle Beach, South Carolina.'' GX 4 at 2.\2\ 
``On or about May 30, 2017,'' the DI ``accessed the USPS Web site,'' 
``entered the tracking number of the certified mail'' that he had sent 
to the Myrtle Beach address, and stated that ``[t]he Web site indicated 
that the package had been delivered on May 22, 201[7].'' Id.\3\
---------------------------------------------------------------------------

    \1\ Although neither the DI's affidavit nor the Request for 
Final Agency Action set forth the basis for the statement that this 
is the Registrant's ``last known address,'' the record does show 
that the Florida Board of Medicine and Florida's Assistant General 
Counsel for the Florida Department of Health both served Registrant 
at the 206 27th Avenue South, Myrtle Beach, South Carolina address. 
E.g., GX 3, at 6, 10. In addition, Florida's administrative 
complaint also states that ``Respondent's last known address is 206 
27th Avenue South, Myrtle Beach, South Carolina.'' Id. at 18.
    \2\ The DI states in his Affidavit that he mailed the Show Cause 
Order on ``May 19, 2016.'' GX 4, at 2. Given that the Show Cause 
Order was not issued until May 12, 2017, I find that this was a 
typographic error, and that the DI intended to state that he mailed 
the Show Cause Order on May 19, 2017.
    \3\ The DI stated in his affidavit that ``I accessed the USPS 
Web site at www.ups.com.'' GX 4, at 2. Although ``UPS'' is a known 
acronym for another delivery service, United Parcel Service, I find 
that this too was a typographic error, and that the DI had intended 
to state that he accessed the USPS Web site at www.usps.com. For 
these reasons, I also find that such service was done by mail and 
not by personal service. In addition, as the DI states that he had 
checked the USPS Web site on ``May 30, 2017,'' I find that his 
statement in the affidavit that the Web site indicated that the 
package had been delivered on ``May 22, 2016,'' id., was a 
typographical error and that the DI intended to state that the Web 
site indicated delivery on May 22, 2017.
---------------------------------------------------------------------------

    On June 28, 2017, the Government forwarded its Request for Final 
Agency Action and an evidentiary record to my Office. Therein, the 
Government represents that it has received neither a hearing request 
nor ``any other reply from'' Registrant regarding the Show Cause Order. 
RFFA, at 2. Based on the Government's representation and the record, I 
find that more than 30 days have passed since the Order to Show Cause 
was served on Registrant, and he has neither requested a hearing nor 
submitted a written statement in lieu of a hearing. See 21 CFR 
1301.43(d). Accordingly, I find that Registrant has waived his right to 
a hearing or to submit a written statement and issue this Decision and 
Order based on relevant evidence submitted by the Government. I make 
the following findings.

Findings of Fact

    Registrant is a physician who is registered as a practitioner in 
schedules II-V pursuant to Certificate of Registration FA3645213, at 
the address of 300 Health Park Boulevard, Suite 1004, Saint Augustine, 
Florida. GX 2. The registration does not expire until June 30, 2018. 
Id.
    On November 22, 2016, the Board of Medicine for the State of 
Florida issued a ``Final Order'' stating that Registrant's ``license to 
practice medicine in the State of Florida is hereby SUSPENDED until 
such time as he demonstrates the ability to practice medicine with 
reasonable skill and safety.'' GX 3, at 4-5. The Order also stated that 
it would take effect upon being filed with the Clerk of the Florida 
Department of Health, which occurred on November 28, 2016. GX 3, at 3, 
5. In light of the passage of time since the effective date of the 
Order, I have queried the Florida Department of Health Web site 
regarding the status of Registrant's license, and I take official 
notice that Registrant's Florida medical license remains suspended as 
of the date of this decision.\4\ Based on the above, I find that 
Registrant does not currently have authority under the laws of Florida 
to dispense controlled substances.
---------------------------------------------------------------------------

    \4\ 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, Registrant 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 Registrant the 
opportunity to refute the facts of which I take official notice, 
Registrant 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.
---------------------------------------------------------------------------

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 of Title 
21, ``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.'' With respect to a practitioner, 
DEA 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 registration. See, e.g., 
James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. 
Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton, 43 FR 
27616 (1978) (``State authorization to dispense or otherwise handle 
controlled substances is a prerequisite to the issuance and maintenance 
of a Federal controlled substances registration.'').
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . or other

[[Page 42119]]

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 [s]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., 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); Blanton, 43 FR 27616 (1978).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71371 (quoting 
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long 
held that revocation is warranted even where a practitioner has lost 
his state authority by virtue of the State's use of summary process and 
the State has yet to provide a hearing to challenge the suspension. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that the Florida 
State Board of Medical Examiners has employed summary process in 
suspending Registrant's state medical license. What is consequential is 
that Registrant is no longer currently authorized to dispense 
controlled substances in Florida, the State in which he is registered. 
I will therefore order that his registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration No. FA3645213, issued to Marcus W. Anderson, M.D., be, and 
it hereby is, revoked. I further order that any pending application of 
Marcus W. Anderson to renew or modify the above registration, or any 
pending application of Marcus W. Anderson for any other registration, 
be, and it hereby is, denied. This Order is effective immediately.\5\
---------------------------------------------------------------------------

    \5\ For the same reasons that led the Florida Board of Medicine 
to summarily suspend Registrant's medical license, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: August 28, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-18784 Filed 9-5-17; 8:45 am]
 BILLING CODE 4410-09-P