[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Notices]
[Pages 34877-34878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15743]



[[Page 34877]]

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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Decision and Order: Kenneth C. Beal, Jr., D.D.S.

    On December 22, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Kenneth C. Beal, Jr., 
D.D.S. (hereinafter, Registrant), of Tutwiler, Mississippi.\1\ Order to 
Show Cause (hereinafter, OSC), at 1. The Show Cause Order proposes the 
revocation of Registrant's Certificate of Registration on the ground 
that he has ``no state authority to handle controlled substances.'' Id. 
(citing 21 U.S.C. 824(a)(3)).
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    \1\ The Show Cause Order also lists a Post Office Box in Itta 
Bena, Mississippi in reference to Registrant's location.
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    Regarding jurisdiction, the Show Cause Order alleges that 
Registrant holds DEA Certificate of Registration No. FB0508993 at the 
registered address of Tallahachie Cty. Correc. Fac. Den. Clin., 415 
U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. OSC, at 1. This 
registration authorizes Registrant to dispense controlled substances in 
schedules II through V as a practitioner. Id. The Show Cause Order 
alleges that this registration expires on July 31, 2019. Id.
    The substantive ground for the proceeding, as alleged in the Show 
Cause Order, is that Registrant is ``currently without authority to 
practice dentistry or handle controlled substances in the State of 
Mississippi, the state in which . . . [he is] registered with the 
DEA.'' Id. at 2. Specifically, the Show Cause Order alleges that the 
Mississippi State Board of Dental Examiners revoked Registrant's 
``license to practice dentistry'' on August 16, 2017. Id.
    The Show Cause Order notifies Registrant of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The Show Cause Order also notifies 
Registrant of the opportunity to submit a corrective action plan. OSC, 
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated March 22, 2018, a Diversion Investigator 
(hereinafter, DI), who describes himself as being assigned to the New 
Orleans Field Division, states that he and another DI ``travelled to 
the residence of Registrant . . . to personally serve the . . . [OSC on 
him].'' Government Exhibit (hereinafter, GX) 4 (DI Declaration), at 1. 
The DI also states that, ``At approximately 11:30 a.m. on January 4, 
2018, I personally served Registrant with the [OSC].'' Id.
    In its Request for Final Agency Action dated March 27, 2018, the 
Government represents that ``[a]t least 30 days have passed since the 
time the . . . [OSC] was served on Registrant . . . [and] Registrant 
has not requested a hearing and has not otherwise corresponded or 
communicated with DEA regarding the . . . [OSC] served on him, 
including the filing of any written statement in lieu of a hearing.'' 
Request for Final Agency Action (hereinafter, RFAA), at 1. The 
Government requests the issuance of ``a Final Order revoking 
Registrant's DEA registration.'' Id. at 3.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government served the OSC on Registrant on January 4, 2018. I also find 
that more than 30 days have now passed since the date the Government 
served the OSC. Further, based on the Government's written 
representations, I find that neither Registrant, nor anyone purporting 
to represent him, requested a hearing, submitted a written statement 
while waiving Registrant's right to a hearing, or submitted a 
corrective action plan. Accordingly, I find that Registrant has waived 
his right to a hearing and his right to submit a written statement and 
corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). 
I, therefore, issue this Decision and Order based on the record 
submitted by the Government, which constitutes the entire record before 
me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FB0508993 at the registered address of Tallahachie Cty. Correc. Fac. 
Den. Clin., 415 U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. GX 1 
(Certification of Registration History), at 1. Pursuant to this 
registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on July 31, 2019. Id.

The Status of Registrant's State License

    On August 16, 2017, the Mississippi State Board of Dental Examiners 
revoked Registrant's license to practice dentistry, Dental License No. 
2459-89. RFAA, at 2; GX 3 (Mississippi State Board of Dental Examiners 
certified letter to Registrant dated August 16, 2017), at 2; GX 5 
(Mississippi State Board of Dental Examiners website screen print), at 
1.
    According to Mississippi's online records, of which I take official 
notice, Registrant's license to practice dentistry is still revoked.\2\ 
Mississippi State Board of Dental Examiners website, http://www.dentalboard.ms.gov (last visited July 9, 2018). Mississippi's 
online records show no State controlled substance registration issued 
to Registrant. Id.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 20 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Registrant files a motion, the Government 
shall have 20 calendar days to file a response.
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    Accordingly, I find that Registrant currently is neither licensed 
to engage in the practice of dentistry nor registered to dispense 
controlled substances in Mississippi, the State in which he is 
registered with the DEA.

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 the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration 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, the DEA has also 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, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress

[[Page 34878]]

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 CSA, the 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. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 
27,617.
    According to Mississippi statute, ``Every person who desires to 
practice dentistry . . . in this state must obtain a license to do 
so.'' Miss. Code Ann. Sec.  73-9-1 (West, Westlaw current with laws 
from the 2018 Regular Session). Further, ``[e]very person who . . . 
dispenses any controlled substance within this state . . . must obtain 
a registration issued by . . . the State Board of Dental Examiners . . 
. in accordance with its rules and the law of this state.'' Miss. Code 
Ann. Sec.  41-29-125(1)(a) (West, Westlaw current with laws from the 
2018 Regular Session).\3\ See also Miss. Code Ann. Sec.  73-9-53 (West, 
Westlaw current with laws from the 2018 Regular Session) (authorizing 
Mississippi pharmacists to fill prescriptions only of ``legally 
licensed and registered dentists of this state for any drugs to be used 
in the practice of dentistry'') and Miss. Admin. Code 30-2301:1.35(1) 
(West, current through the Mississippi Administrative Rules Listing of 
Filings, dated May 2018) (legally licensed and registered dentists may 
write prescriptions for any drugs to be used in the practice of 
dentistry).
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    \3\ ``Dispensing'' a controlled substance includes 
``prescribing'' and ``administering'' it. Miss. Code Ann. Sec.  41-
29-105(j) (West, Westlaw current with laws from the 2018 Regular 
Session).
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    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice dentistry and handle controlled 
substances in Mississippi. As already discussed, only a legally 
licensed and registered dentist may dispense a controlled substance or 
any drug to be used in the practice of dentistry in Mississippi. Thus, 
since Registrant lacks authority to practice dentistry in Mississippi, 
and is not registered in Mississippi to handle controlled substances, I 
will order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 
21 U.S.C. 824(a), I order that DEA Certificate of Registration No. 
FB0508993 issued to Kenneth C. Beal, Jr., D.D.S., be, and it hereby is, 
revoked. This Order is effective August 22, 2018.

    Dated: July 9, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-15743 Filed 7-20-18; 8:45 am]
 BILLING CODE 4410-09-P