[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Notices]
[Pages 15257-15258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05845]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Lawrence E. Stewart; Decision and Order

    On June 12, 2017, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Lawrence E. Stewart, M.D. 
(hereinafter, Respondent), of Summit, Mississippi. Order to Show Cause 
(hereinafter, OSC), at 1. The OSC proposed the denial of Respondent's 
application for a DEA Certificate of Registration because Respondent 
had committed acts that rendered his registration with DEA inconsistent 
with the public interest. Id. (citing 21 U.S.C. 823(f) and 824(a)(2), 
(4)).
    On July 27, 2017, Respondent submitted a timely written statement 
in response to the OSC waiving his right to a hearing. Request for 
Final Agency Action Exhibit (hereinafter, RFAAX) 3. In lieu of a 
hearing, Respondent submitted a Statement of Position on the Facts and 
Law (hereinafter, Statement) regarding the matters alleged in the OSC. 
Id.
    The Government filed a Request for Final Agency Action 
(hereinafter, RFAA) on March 25, 2019. In its RFAA, the Government 
stated that Respondent is no longer licensed to practice medicine in 
Mississippi and provided documentation from the Mississippi State Board 
of Medical Licensure to support this claim. RFAA at 2; see RFAAX 7, 
Appendices A-C. The Government then requested that I deny Respondent's 
application for a DEA registration on the grounds that Respondent lacks 
authority to handle controlled substances in the State of Mississippi, 
the state where he seeks a DEA registration. RFAA at 5-6. The 
Government had not alleged that Respondent lacked state authority in 
the OSC. OSC at 2.
    The Government is not required to issue an amended OSC to notice an 
allegation of a registrant's lack of state authority that arises during 
the pendency of a proceeding regarding a DEA registration. Hatem M. 
Ataya, M.D., 81 FR 8221, 8244 (2016). Previous Agency decisions have 
stated that because the possession of state authority is a prerequisite 
for obtaining and maintaining a registration, the issue of state 
authority can be raised at any stage of a proceeding, even sua sponte 
by the Administrator. See Ataya, 81 FR at 8244; Joe M. Morgan, D.O., 78 
FR 61,961, 61,973-74 (2013). I issued an Order on February 3, 2021, 
providing Respondent with notice of the Government's allegation that he 
currently lacks state authority to handle controlled substances in the 
State of Mississippi, and providing him with the opportunity to show 
the contrary. Respondent submitted a response to the Order on February 
4, 2021, stating ``I am not currently licensed to practice medicine.''
    I make the following findings of fact based on the record before 
me.

Findings of Fact

Respondent's Application for a DEA Registration

    On January 25, 2017, Respondent filed an application (Application 
Control No. H17068500C) for a DEA Certificate of Registration as a 
practitioner in schedules II-V, with a proposed registered location at 
1050 Daisy Lane, Summit, Mississippi 39666. RFAAX 1.

The Status of Respondent's State License

    At the time Respondent applied for a DEA registration, he held a 
Mississippi medical license. RFAAX 7, Appendix A (Mississippi State 
Board of Medical Licensure Determination and Order). On May 18, 2017, 
the Mississippi State Board of Medical Licensure (hereinafter, the 
Board) issued a Decision and Order suspending Respondent's medical 
license. Id. The Board suspended Respondent's license after finding him 
guilty of (1) having been convicted of violating a federal law 
regulating the distribution of a narcotic drug; (2) prescribing a drug 
having addiction forming or addiction sustaining liability otherwise 
than in the course of legitimate professional practice; and (3) 
unprofessional conduct. Id. The Decision and Order stayed Respondent's 
suspension contingent on his completion of certain requirements, 
including compliance with the Mississippi Professional Health Program 
(hereinafter, MPHP). Id. at 3-4.
    On March 19, 2018, the Board found that Respondent had failed to 
comply with an MPHP requirement to abstain from alcohol. RFAAX 7, 
Appendix B (Board Order of Prohibition). The Board, therefore, issued 
an Order of Prohibition prohibiting Respondent from practicing medicine 
in Mississippi ``until such time as the Board and MPHP determines that 
[Respondent] is able to return to the practice of medicine.'' Id.
    According to Mississippi's online records, of which I take official 
notice, Respondent's license is expired.\1\ Mississippi State Board of 
Medical Licensure, Licensee Lookup, https://gateway.msbml.ms.gov/verification/search.aspx (last visited date of signature of this 
Order). Respondent also confirmed in response to my Order that, as of 
February 4, 2021, he was not licensed to practice medicine.
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    \1\ 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 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 Registrant 
files a motion, the Government shall have fifteen calendar days to 
file a response. Any such motion and response may be filed and 
served by email ([email protected]).
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Mississippi, the State in which 
Registrant 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 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

[[Page 15258]]

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, 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, 43 
FR at 27,617.
    According to Mississippi statute, ``except when dispensed directly 
by a practitioner, other than a pharmacy, to an ultimate user, no 
controlled substance in Schedule II . . . may be dispensed without the 
written valid prescription of a practitioner,'' and ``except when 
dispensed directly by a practitioner, other than a pharmacy, to an 
ultimate user, a controlled substance included in Schedule III or IV . 
. . shall not be dispensed without a written or oral valid prescription 
of a practitioner.'' Miss. Code Ann. Sec.  41-29-137(a)(1) and (b) 
(West 2020). Further, ``a practitioner'' is defined as ``a physician, 
dentist, veterinarian, scientific investigator, optometrist . . . or 
other person licensed, registered or otherwise permitted to distribute, 
dispense, conduct research with respect to or to administer a 
controlled substance in the course of professional practice or research 
in this state.'' Miss. Code Ann. Sec.  41-29-105(y)(1) (West 2020). 
Mississippi regulations define a ``physician'' to be ``any person 
licensed to practice medicine, osteopathic medicine or podiatric 
medicine in the state of Mississippi.'' 30-2640 Miss. Code R. Sec.  
1.2(C). The regulations further state that ```prescriptive authority' 
means the legal authority of a professional licensed to practice in the 
state of Mississippi who prescribes controlled substances and is 
registered with the U.S. Drug Enforcement Administration in compliance 
with Title 21 CFR, Part 1301 Food and Drugs.'' 30-2640 Miss. Code R. 
Sec.  1.2(F).
    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to practice medicine in Mississippi. As 
already discussed, a physician must be licensed to practice medicine in 
order to have prescriptive authority for a controlled substance in 
Mississippi. Thus, because Respondent lacks authority to practice 
medicine in Mississippi and, therefore, is not authorized to prescribe 
controlled substances in Mississippi, Respondent is not eligible to 
receive a DEA registration. Accordingly, I will order that Respondent's 
application for a DEA registration be denied.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(f), I hereby order that the pending application for a 
Certificate of Registration, Control Number H17068500C, submitted by 
Lawrence E. Stewart, M.D., is denied, as well as any other pending 
application of Lawrence E. Stewart for additional registration in 
Mississippi. This Order is effective April 21, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-05845 Filed 3-19-21; 8:45 am]
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