[Federal Register Volume 84, Number 52 (Monday, March 18, 2019)]
[Notices]
[Pages 9836-9837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05013]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Joel A. Smithers, D.O.; Decision and Order

    On November 15, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Joel A. Smithers, D.O. (Registrant), of 
Martinsville, Virginia. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration No. FS4850459 on the 
ground that he ``has no state authority to handle controlled 
substances.'' Government Exhibit (GX) 2 (Order to Show Cause) to 
Government's Request for Final Agency Action (RFAA), at 1 (citing 21 
U.S.C. 824(a)(3)). For the same reason, the Order also proposed the 
denial of ``any applications for renewal or modification of such 
registration and any applications for any other DEA registrations.'' 
Id.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is the holder of Certificate of Registration 
No. FS4850459, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules II through V, at 
the registered address of 445 Commonwealth Blvd. East, Suite A, 
Martinsville, Virginia. Id. The Order also alleged that this 
registration does not expire until February 29, 2020. Id.
    Regarding the substantive grounds for the proceeding, the Show 
Cause Order alleged that on May 10, 2018, the Virginia Board of 
Medicine issued ``an Order of Summary Suspension'' that suspended 
Registrant's Virginia osteopathic medical license. Id. The Show Cause 
Order alleged that, as a result, he is ``currently without authority to 
handle controlled substances in the Commonwealth of Virginia, the 
[S]tate in which [he is] registered with the DEA.'' Id. Based on his 
``lack of authority to handle controlled substances in the Commonwealth 
of Virginia,'' the Order asserted that ``DEA must revoke'' his 
registration. Id. at 1-2 (citing 21 U.S.C. 824(a)(3); 21 CFR 
1301.73(b)). Id.
    The Show Cause Order notified Registrant of (1) his right to 
request a hearing on the allegations or to submit a written statement 
in lieu of a hearing, (2) the procedure for electing either option, and 
(3) the consequence for failing to elect either option. Id. at 2. 
(citing 21 CFR 1301.43). The 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)).
    With respect to service, a Task Force Officer (TFO) in the Roanoke 
Resident Office of DEA's Washington Field Division executed a 
Declaration on February 4, 2019, stating that she ``personally served 
Registrant with the'' Show Cause Order on November 20, 2018. GX 4 
(Declaration of TFO) to RFAA, at 1.
    On February 5, 2019, the Government forwarded its Request for Final 
Agency Action and evidentiary record to my Office. In its Request, the 
Government represents that more than 30 days have passed since 
Registrant had been served with the Show Cause Order and that 
``Registrant has not requested a hearing and has not otherwise 
corresponded or communicated with DEA regarding the Order served on 
him.'' RFAA, at 1. Based on the Government's representation and the 
record, I find that more than 30 days have passed since the Show Cause 
Order 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 and the 
findings below. See id. I make the following findings.

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration No. 
FS4850459 pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner at the 
registered address of 445 Commonwealth Blvd. East, Suite A, 
Martinsville, Virginia. GX 1 (Certification of Registration Status) to 
RFAA, at 1. This registration does not expire until February 29, 2020. 
Id.
    In addition, I take official notice of an ``Order of Summary 
Suspension'' (Suspension Order) on the Virginia Board of Medicine's 
website,\1\ which states that on May 10, 2018, the Executive Director 
of the Virginia Board of Medicine entered an order that Registrant's 
Virginia license to practice osteopathic medicine ``is SUSPENDED.'' 
Suspension Order, at 1. In its Suspension Order, the Virginia ``Board 
conclude[d] that a substantial danger to public health or safety 
warrants this action.'' Id. The Suspension Order also stated that it 
would apply to Registrant's ``multistate licensure privilege, if any, 
to practice osteopathic medicine in the Commonwealth of Virginia.'' Id. 
Finally, the Suspension Order ordered ``that a hearing be convened 
within a reasonable time of the date of entry of this Order to receive 
and act upon evidence in this matter.'' Id.
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    \1\ See http://www.dhp.virginia.gov/Notices/Medicine/0102204264/0102204264Order05102018.pdf. 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). 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 service of this order which shall commence on the date this 
order is mailed. The Government also attached an identical (but 
unverified) copy of the Suspension Order as an exhibit to its 
Request for Final Agency Action. GX 3 (Suspension Order) to RFAA.
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    I also take official notice of the results of a search of the 
Virginia Board of Medicine's license verification web page showing 
that, as of the date of this Decision, Registrant's Virginia medical 
license remains suspended.\2\ There is no evidence in the record that 
the Virginia Board of Medicine ever issued a superseding order or 
decision ending the suspension of Registrant's medical license. 
Accordingly, I find that Registrant currently does not possess a 
license to practice medicine in the Commonwealth of Virginia, the State 
in which he is registered with the DEA.
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    \2\ See https://dhp.virginiainteractive.org/Lookup/Detail/0102204264. I take official notice pursuant to the authority set 
forth supra in footnote 1.
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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 (CSA), ``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.'' Also, 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 practitioner's registration. See, e.g., James L. Hooper, 
76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826

[[Page 9837]]

(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 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 long held 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 Virginia 
Board of Medicine summarily suspended Registrant's state medical 
license.
    What is consequential is my finding that Registrant is no longer 
currently authorized to dispense controlled substances in the 
Commonwealth of Virginia, the State in which he is registered. 
Specifically, the Virginia Board of Medicine's decision to suspend 
Registrant's medical license also means that Registrant is currently 
without authority to dispense controlled substances under the laws of 
Virginia. See, e.g., Va. Code Ann. Sec. Sec.  54.1-2409.1 (2017) 
(felony to prescribe controlled substances without a current valid 
license); 54.1-2900 (2017); 54.1-3401 (2016). Accordingly, Registrant 
is not entitled to maintain his DEA registration, and 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. FS4850459, issued to Joel A. Smithers, D.O., be, and 
it hereby is, revoked. I further order that any pending application of 
Joel A. Smithers to renew or modify the above registration, or any 
pending application of Joel A. Smithers for any other DEA registration 
in the Commonwealth of Virginia, be, and it hereby is, denied. This 
Order is effective April 17, 2019.

    Dated: February 27, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-05013 Filed 3-15-19; 8:45 am]
 BILLING CODE 4410-09-P