[Federal Register Volume 85, Number 155 (Tuesday, August 11, 2020)]
[Notices]
[Pages 48564-48566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17448]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Mark D. Beale, M.D.; Decision and Order

    On May 14, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Mark 
D. Beale, M.D. (hereinafter, Registrant) of Las Cruces, New Mexico. 
OSC, at 1. The OSC proposed the revocation of Registrant's Certificate 
of Registration No. FB0178194. Id. It alleged that Registrant has ``no 
state authority to handle controlled substances.'' Id. (citing 21 
U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that, ``[o]n April 17, 2019, the New 
Mexico Medical Board (hereinafter, NMMB) summarily suspended . . . 
[Registrant's] medical license.'' OSC, at 2. The OSC concluded that 
``DEA must revoke . . . [Registrant's] registration based on . . . 
[his] lack of authority to handle controlled substances in the State of 
New Mexico.'' Id.
    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. Id. (citing 21 CFR 
1301.43). The OSC also notified Registrant of the opportunity to submit 
a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a sworn Declaration dated January 17, 2020, a DEA Diversion 
Investigator assigned to the El Paso Division (hereinafter, EPDI) 
stated that she attempted personal service of the OSC on Registrant at 
his medical practice and at his residence on multiple occasions. 
Request for Final Agency Action, dated January 17, 2020 (hereinafter, 
RFAA), Exhibit (hereinafter, EX) 5 (Declaration of Attempted Service of 
Order to Show Cause, dated January 17, 2020), at 1-3. For the last 
attempt, EPDI was accompanied by two DEA Special Agents. Id. at 3. None 
of the attempts was successful. Id.
    EPDI's Declaration also describes her attempts to reach Registrant 
by telephone. Id. at 2. Due to these attempts, EPDI succeeded in 
speaking with Registrant's wife. Id. Registrant's wife told EPDI that 
their attorney was handling the matter. Id. EPDI contacted the attorney 
whose name Registrant's wife gave her. Id. This attorney, however, 
stated that ``he is only handling Registrant's criminal matter.'' Id.
    EPDI's Declaration details multiple instances of her transmitting 
the OSC to Registrant by mail. Id. at 2-3. Two of the mailings, one to 
Registrant's registered address and one to his residential address, 
were transmitted through the United States Postal Service (hereinafter, 
USPS) by prepaid postage and return receipt requested. Id. at 2. The 
mailing to Registrant's registered address was returned ``with a label 
stating `RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.' '' Id. Neither 
the mailing to Registrant's residence, nor the return receipt request 
attached to it, was returned. Id.
    EPDI's Declaration states that she attempted to serve the OSC on

[[Page 48565]]

Registrant by Federal Express mail delivery directed to his registered 
address. Id. at 3. The ``stickers on the returned package,'' according 
to EPDI's Declaration, ``indicate that FedEx unsuccessfully attempted 
delivery of the package'' on four dates. Id.
    According to EPDI's Declaration, she mailed the OSC to Registrant 
at his residence by USPS first-class mail, postage prepaid. Id. EPDI 
stated that this letter was not returned. Id.
    Finally, EPDI stated that she emailed the OSC to Registrant at the 
email address Registrant provided for his registration. Id. The email 
``did not bounce back as `undeliverable' and no response was 
received,'' EPDI stated. Id.
    Based on EPDI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government's service of the OSC on Registrant was legally 
sufficient.\1\ According to the Supreme Court, ``due process does not 
require actual notice.'' \2\ Jones v. Flowers, 547 U.S. 220, 225 (2006) 
(citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). Instead, 
the Court has repeatedly stated that, ``due process requires the 
government 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. at 226 (citing Mullane v. Central Hanover 
Bank & Trust Co., 339 U.S. 306, 314 (1950)). Moreover, ``the Due 
Process Clause does not require . . . heroic efforts by the 
Government'' to find Registrant. Dusenbery, 534 U.S. at 170.
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    \1\ The RFAA also includes evidence that personnel working at 
the DEA Office of Chief Counsel mailed a copy of the OSC by first-
class USPS mail to Registrant at his registered address and his 
mail-to address. RFAA, at 2; RFAA, EX 6 (Declaration of Service of 
Order to Show Cause, dated December 10, 2019), at 1.
    \2\ Nevertheless, I note that only three of the Government's 
multiple attempts to provide notice by mail were clearly 
ineffective; the others may very well have been effective.
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    Here, the Government made three attempts to accomplish personal 
service of the OSC on Registrant. RFAA, EX 5, at 1-3. In addition, the 
Government mailed the OSC to Registrant numerous times utilizing USPS 
and Federal Express, and directed to his registered address, his ``mail 
to'' address, and his residence. RFAA, EX 5, at 2-3; RFAA, EX 6, at 1. 
The Government also emailed the OSC to the email address Registrant had 
provided DEA. RFAA, EX 5, at 3. I find, therefore, that the 
Government's service efforts were reasonably calculated under all of 
the circumstances to apprise Registrant of the OSC and to afford him an 
opportunity to present his objections.
    I also find that more than thirty days have now passed since the 
Government's legally sufficient service of the OSC. Further, based on 
the Government's written representations and my review of the record, I 
find that neither Registrant, nor anyone purporting to represent 
Registrant, requested a hearing, submitted a written statement while 
waiving Registrant's right to a hearing, or submitted a corrective 
action plan. RFAA, at 2. Accordingly, I find that Registrant has waived 
his right to a hearing, to submit a written statement, and to submit a 
corrective action plan. 21 CFR 1301.43; 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). I make the following findings.

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FB0178194 at the registered address of 133 Wyatt Street, Suite 9, Las 
Cruces, New Mexico 88005 and the mail-to address of P.O. Box 13462, Las 
Cruces, New Mexico 88013. RFAA, EX 1 (Certification of Registration 
History for DEA No. FB0178194, dated May 16, 2019), 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, 2021. Id.

The Status of Registrant's State License and Registration

    The RFAA includes evidence in the form of a NMMB document 
concerning Registrant and his Medical License No. 93-208, entitled 
``Decision and Order Revoking Respondent's License.'' RFAA, EX 4 (NMMB 
Certified Decision and Order Revoking Respondent's License, dated July 
2, 2019 (hereinafter, Revocation Order)), at 1. According to the 
Revocation Order, Registrant ``failed to request a hearing on the 
Notice of Contemplated Action [NCA] . . . issued by the . . . [NMMB] on 
April 28, 2019, within the twenty days allowed by Section 61-1-4(D)(3) 
of the Uniform Licensing Act.'' Id. It explained that the failure to 
request a hearing allows the NMMB ``to revoke . . . [Registrant's] 
license based on the unrebutted and unexplained allegations contained 
in the NCA.'' Id. Accordingly, the Revocation Order revoked 
Registrant's New Mexico medical license, adding that ``this Order is 
not subject to judicial review.'' Id.
    According to New Mexico's online records, of which I take official 
notice, Registrant's Medical License No. 93-208 is revoked.\3\ New 
Mexico Medical Board Physician Profile, docfinder.docboard.org/nm/ 
(last visited July 21, 2020). As such, I find that Registrant's New 
Mexico medical license remains revoked.
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    \3\ 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, Applicant may dispute my finding by filing 
a properly supported motion for reconsideration of finding of fact 
within fifteen 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 Applicant files 
a motion, the Government shall have fifteen calendar days to file a 
response. Any such motion and response shall be filed and served by 
email on the other party at the email address the party submitted 
for receipt of communications related to this administrative 
proceeding, and on the Office of the Administrator, Drug Enforcement 
Administration at [email protected].
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    Further, according to other online records of New Mexico, of which 
I take official notice, Registrant's Controlled Substance License No. 
CS00016359 is expired.\4\ New Mexico Regulation and Licensing Web 
Lookup/Verification, http://verification.rld.state.nm.us (last visited 
July 21, 2020). Accordingly, I find that Registrant currently has 
neither an active medical license nor an active controlled substance 
license in New Mexico.
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    \4\ See footnote 3. If Registrant disputes this finding, he may 
do so according to the terms stated in footnote 3.
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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 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, 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,

[[Page 48566]]

M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 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 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, 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 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); Frederick Marsh 
Blanton, M.D., 43 FR at 27,617.
    According to New Mexico statute, ``A person who . . . dispenses a 
controlled substance or who proposes to engage in the . . . dispensing 
of a controlled substance shall obtain a registration issued by the 
board in accordance with its regulations.'' N.M. Stat. Ann. Sec.  30-
31-12(A) (West, current with 2020 Regular Session laws in effect 
through May 20, 2020). In turn, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user . . . pursuant to the lawful 
order of a practitioner.'' N.M. Stat. Ann. Sec.  30-31-2(H) (West, 
current with 2020 Regular Session laws in effect through May 20, 2020). 
Further, ``practitioner'' means a ``physician . . . licensed or 
certified to prescribe and administer drugs that are subject to the 
Controlled Substances Act.'' N.M. Stat. Ann. Sec.  30-31-2(S) (West, 
current with 2020 Regular Session laws in effect through May 20, 2020).
    Here, the undisputed evidence in the record is that Registrant's 
license to practice medicine is revoked. As such, he is not a 
``practitioner,'' a physician licensed or certified to prescribe a 
controlled substance according to New Mexico law. Further, under New 
Mexico law, a person who dispenses a controlled substance in New Mexico 
must be registered. The undisputed record evidence is that Registrant's 
New Mexico controlled substance license is expired.
    For all of these reasons, Registrant lacks authority to practice 
medicine and prescribe controlled substances in New Mexico. 
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. 
FB0178194 issued to Mark D. Beale, M.D. This Order is effective 
September 10, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-17448 Filed 8-10-20; 8:45 am]
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