[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5990-5992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01971]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Solomon Adu-Beniako, M.D.; Decision and Order

    On September 12, 2019, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement

[[Page 5991]]

Administration (hereinafter, DEA or Government), issued an Order to 
Show Cause to Solomon Adu-Beniako, M.D, (hereinafter, Registrant), of 
Southfield, Michigan. Order to Show Cause (hereinafter, OSC), at 1. The 
OSC proposed the revocation of Registrant's Certificate of Registration 
No. FA7485027 on the ground that Registrant does ``not have authority 
to handle controlled substances in Michigan, the state in which . . . 
[Registrant is] registered with the DEA.'' Id. (citing 21 U.S.C. 823(f) 
and 824(a)(3)).
    Specifically, the OSC alleged that the State of Michigan Board of 
Pharmacy (hereinafter, Board) issued a Final Order effective on July 
21, 2019, which revoked Registrant's Michigan controlled substance and 
drug control-location licenses (5315023991, 5307004648 and 5307004717). 
Id. at 1-2. The OSC alleged that because the Board had not modified or 
lifted its revocation order, Registrant lacks authority to handle 
controlled substances in the State of Michigan. Id. at 2, citing 21 
U.S.C. 802(21), 823(f) and 824(a)(3).
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. OSC, at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 4 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated November 8, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the Detroit Division Office, detailed his 
investigation in the matter involving Registrant. Request for Final 
Agency Action (hereinafter, RFAA), EX 8 (DI Declaration), at 1-2. The 
DI stated that he obtained a copy of the Michigan Board of Pharmacy's 
Final Order dated June 21, 2019, and as a result of that Final Order, 
DEA issued an Order to Show Cause on Registrant. Id. at 2. He further 
stated that on September 19, 2019, he and a DEA Special Agent 
(hereinafter, SA) attempted to serve the OSC on Registrant at 
Registrant's residence located at 31568 Bridge Street, Livonia, 
Michigan, but received no answer at that residence. Id. at 2. According 
to the DI, DEA personnel proceeded to Registrant's most recent place of 
employment, which was also his registered address, located at 20905 
Greenfield Road, Suite 702, Southfield, Michigan, but the receptionist 
at that location ``could not recall the last time [Registrant] was in 
the office or when [Registrant] was expected to report back to that 
location.'' Id. at 2-3. On the following day, the DI spoke to 
Registrant on the telephone, identified himself, and arranged to meet 
with him at a restaurant on that same day. Id. The DI stated that he 
and the same SA met with the Registrant, placed the OSC on the table in 
front of him, and explained that ``he was being served with an [OSC] 
because he lacked state authority to handle controlled substances in 
Michigan and that he would not be able to maintain a DEA registration 
without such authorization.'' Id. at 3. The DI stated that Registrant 
pushed the document away from him, and the SA ``attempted to again 
explain the Order to Show Cause process'' to Registrant, at which point 
Registrant ``stood up and quickly left the restaurant.'' Id. at 3. The 
DI ``mentioned to [Registrant] that his name appeared on the [OSC] 
document and that he should not leave the document on the table,'' but 
Registrant ``continued on to his automobile and drove away.'' Id. The 
DI and the SA then left the restaurant with the OSC. Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on November 18, 2019. In its RFAA, the 
Government contends that despite Registrant's refusal to take 
possession of the OSC, he is deemed to have been sufficiently served. 
RFAA, at 6. The Government requests a final order holding that 
Registrant has waived his opportunity for a hearing and otherwise 
failed to respond to the Show Cause Order, and revoking Registrant's 
DEA registration. Id. at 2.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on September 
20, 2019. I find that the Government has satisfied its obligation under 
the Due Process Clause ``to provide `notice reasonably calculated, 
under all the circumstances, to apprise interested parties of the 
pendency of the action and afford them an opportunity to present their 
objections.''' Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting 
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 
In this case, the Government tried to serve Registrant at his home and 
his registered address--both of which were locations where the 
Government reasonably believed Registrant would be located. RFAA, EX 8, 
at 2-3. When those efforts failed, the DI contacted Registrant by 
telephone and arranged an in-person meeting, during which the DI 
explained to Registrant the context of the OSC. Id. at 3. Registrant 
repeatedly refused to take possession of the OSC during this meeting, 
even after its relevance had been clearly communicated to Registrant, 
and the DI and SA made reasonable efforts to leave the papers with 
Registrant. Id. Thus, Registrant was reasonably apprised of the 
pendency of the action and his refusal to take possession of the papers 
does not mean service was inadequate. See United States v Miller, 2007 
WL 3173362 (E.D. Mich. Oct. 29, 2007) (The defendant of an institution 
of an action against him ```cannot claim that the court has not [sic] 
authority to act when he has willfully evaded the service of 
process.''' (quoting Ali v. Mid-Atl. Settlement Servs., Inc., 233 FRD. 
32, 36 (D.D.C. 2006) (citation omitted))).\1\
---------------------------------------------------------------------------

    \1\ See also Morgan v. United States, 304 U.S. 1, 18 (1938) 
(``The right to a hearing embraces not only the right to present 
evidence, but also a reasonable opportunity to know the claims of 
the opposing party and to meet them. . . . Those who are brought 
into contest with the Government in a quasijudicial proceeding aimed 
at the control of their activities are entitled to be fairly advised 
of what the Government proposes.'') (emphasis added).
---------------------------------------------------------------------------

    I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, 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 the right to a hearing and the 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. 
FA7485027 at the registered address of 20905 Greenfield Rd., Ste. 702, 
Southfield, Michigan. RFAA, EX 2 (Certification of Registration 
History). Pursuant to this registration, Registrant is authorized to 
dispense controlled substances in schedules II through V \2\ as

[[Page 5992]]

a practitioner.\3\ Registrant's registration expires on June 30, 2020, 
and is ``in an active pending status.'' RFAA, EX 1 (Copy of 
Registrant's Certificate of Registration).
---------------------------------------------------------------------------

    \2\ It is noted that the OSC mistakenly stated that Registrant 
was a practitioner in ``Schedules II-IIIN.'' I find this to be 
harmless error in that the Registration was appropriately identified 
by its number and so the Registrant had adequate notice of the 
registration subject to the proceeding.
    \3\ Registrant is also authorized as a Data-Waiver practitioner 
for up to 100 patients pursuant to 21 U.S.C. 823(g)(2)(a).
---------------------------------------------------------------------------

The Status of Registrant's State License

    On January 19, 2018, the Michigan Department of Licensing and 
Regulatory Affairs ``executed an Order of Summary Suspension and an 
Administrative Complaint charging [Registrant] with violating the 
Public Health Code, [Mich. Comp. Laws] Sec.  333.1101 et seq.'' RFAA, 
EX 3 (Final Order of the Board of Pharmacy Disciplinary Subcommittee, 
Bureau of Professional Licensing, Michigan Department of Licensing and 
Regulatory Affairs), at 1. On June 21, 2019, after an administrative 
hearing, the Michigan Board of Pharmacy issued a Final Order revoking 
Registrant's controlled substance license and drug control-location 
licenses. Id. at 2, 4. The Final Order became effective thirty days 
from its signature, on July 21, 2019. RFAA, EX 3, at 4.
    According to Michigan's online records, of which I take official 
notice,\4\ Registrant's controlled substance license and drug control-
location licenses remain revoked. https://aca3.accela.com/MILARA/GeneralProperty/PropertyLookUp.aspx (last visited January 3, 2020).
---------------------------------------------------------------------------

    \4\ 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 15 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 15 calendar days to file a response.
---------------------------------------------------------------------------

    Further, the Final Order states that reinstatement of Registrant's 
revoked licenses ``is not automatic and shall be in accordance with 
[Mich. Comp. Laws] Sec. Sec.  333.7315-333.7316.'' RFAA, EX 3, at 3. It 
is noted that pursuant to Section 333.7315, Registrant may not apply 
for reinstatement of his revoked licenses before the expiration of five 
years after the effective date of revocation. Mich. Comp. Laws Sec.  
333.7315.
    Accordingly, I find that Registrant currently does not possess a 
controlled substances license in Michigan, 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 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).
    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 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., James L. Hooper, 
M.D., 76 FR at 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 
(2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby 
Watts, M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, M.D., 
43 FR at 27617.
    Under Michigan law, ``a person who manufactures, distributes, 
prescribes, or dispenses a controlled substance in this state . . . 
shall obtain a license issued by the administrator.'' Mich. Comp. Laws 
Sec.  333.7303(1). Here, the undisputed evidence in the record is that 
Registrant currently lacks authority to manufacture, distribute, 
prescribe, or dispense controlled substances in Michigan. Thus, because 
Registrant lacks authority to distribute, prescribe, or dispense 
controlled substances in Michigan, Registrant is not eligible to 
maintain a DEA registration. Accordingly, I will order that 
Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
FA7485027 issued to Solomon Adu-Beniako. This Order is effective March 
4, 2020.

    Dated: January 3, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-01971 Filed 1-31-20; 8:45 am]
 BILLING CODE 4410-09-P