[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]
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