[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Notices]
[Pages 54476-54479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21424]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 21-16]


William C. Gardner, D.D.S.; Decision and Order

    On May 11, 2021, the Acting Administrator, Drug Enforcement 
Administration (hereinafter, DEA or Government), issued an Order to 
Show Cause and Immediate Suspension of Registration (hereinafter, OSC) 
to William C. Gardner, D.D.S. (hereinafter, Respondent) of Albuquerque, 
New Mexico. OSC, at 1. The OSC informed Respondent of the immediate 
suspension of Respondent's Certificate of Registration No. BG9826427, 
because Respondent's continued registration constitutes ``an imminent 
danger to the public health or safety.'' Id. (citing 21 U.S.C. 824(d)). 
The OSC also proposed the revocation of Respondent's DEA registration 
pursuant to 21 U.S.C. 824(a)(3), because Respondent has ``no state 
authority to handle controlled substances.'' \1\Id.
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    \1\ The OSC also proposed the revocation of Respondent's DEA 
registration pursuant to 21 U.S.C. 824(a)(4) because 
``[Respondent's] continued registration is inconsistent with the 
public interest.'' Id. However, in its Submission of Evidence and 
Motion for Summary Disposition (hereinafter, Motion for Summary 
Disposition), the Government requested that the motion be granted 
based on the lack of state authority allegation and stated that if 
its motion was granted, ``the Government would not intend to 
continue with [the] proceedings regarding the allegations that 
Respondent's continued DEA registration would be inconsistent with 
the public interest.'' Motion for Summary Disposition, at 1 and 7. 
On July 19, 2021, the Administrative Law Judge assigned to this case 
issued an Order Granting the Government's Motion for Summary 
Disposition, and Recommended Rulings, Findings of Fact, Conclusions 
of Law, and Decision of the Administrative Law Judge (hereinafter, 
RD) that granted the Government's Motion for Summary Disposition. 
RD, at 10. Accordingly, I will not consider the Government's public 
interest allegations and will only consider the record as is 
relevant to the lack of state authority allegation.
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    Specifically, the OSC alleged that the New Mexico Board of Dental 
Health Care (hereinafter, Board) issued a Decision and Order on 
November 26, 2019. Id. at 2. According to the OSC, this Decision and 
Order revoked Respondent's New Mexico dental license following the 
Board's findings, inter alia, that Respondent submitted false claim 
forms to an insurance provider to obtain payment for an unnecessary 
dental procedure, falsified a radiography (x-ray), and failed to 
cooperate with the Board's investigation. Id. Respondent appealed and 
obtained a stay of the Board's Decision and Order, but the appeal was 
dismissed, the stay was lifted, and the

[[Page 54477]]

Board's Decision and Order was enforced as of July 17, 2020. Id. 
Additionally, Respondent's New Mexico controlled substances license 
expired by its terms on September 30, 2020. Id. According to the OSC, 
on December 12, 2020, the Board issued a Decision and Default Order 
confirming the revocation of Respondent's dental license.
    The OSC notified Respondent 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. at 6 (citing 21 
CFR 1301.43). By letter dated May 27, 2021, Respondent timely requested 
a hearing.\2\ Hearing Request, at 1. The Hearing Request asserted that 
Respondent's New Mexico dental license was not revoked as of July 17, 
2020. Id. The Hearing Request also asserted that the grounds recited 
for the alleged revocation of Respondent's New Mexico dental license 
were false, that the alleged lifting of the stay was solely the result 
of egregious errors by Respondent's prior counsel, that the alleged 
order lifting the stay was not a final order, and that the December 12, 
2020 order \3\ confirming the revocation of Respondent's dental license 
had been vacated. Id. at 2.
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    \2\ The Hearing Request was filed on May 28, 2021. Order 
Directing the Filing of Government Evidence Regarding its Lack of 
State Authority Allegation and Briefing Schedule (hereinafter, 
Briefing Schedule), at 1. I find that the Government's service of 
the OSC was adequate and that the Hearing Request was timely filed 
on May 28, 2021.
    \3\ The Hearing Request refers to ``Order in Case No.18-32-
COM.''
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Teresa A. Wallbaum 
(hereinafter, ALJ), who issued a Briefing Schedule on June 3, 2021, 
directing the parties to brief the Government's allegation that 
Respondent currently lacks authority to handle controlled substances in 
New Mexico. RD, at 2. The Government timely complied with the Briefing 
Schedule by filing its Motion for Summary Disposition on June 17, 2021. 
Id. The Government requested that the ALJ grant its Motion for Summary 
Disposition and recommend revocation of Respondent's DEA registration, 
because Respondent's New Mexico dental license was revoked, 
Respondent's New Mexico controlled substances license had expired, and 
thus, Respondent lacks authority to handle controlled substances in New 
Mexico, the state in which he is registered with the DEA. Motion for 
Summary Disposition, at 7.
    After the ALJ granted Respondent an extension of time, Respondent 
filed an Objection to Government's Submission of Evidence and Motion 
for Summary Disposition (hereinafter, Respondent's Objection) on July 
12, 2021. RD, at 2. Respondent's Objection argued that ``[a]lthough the 
Board has attempted to revoke [Respondent's] license twice, in each 
case that revocation is not yet effective.'' Respondent's Objection, at 
5. Specifically, Respondent's Objection asserted that the first Board 
order revoking Respondent's dental license on November 26, 2019,\4\ was 
not yet final and was still subject to ``two appeals and a motion to 
stay at the New Mexico Court of Appeals.'' Id. Respondent's Objection 
also asserted that the second Board order confirming Respondent's 
revocation on December 12, 2020,\5\ ``[had] been vacated and [would] 
not be the subject of an evidentiary hearing until at least September 
1, 2021.'' Id.
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    \4\ Respondent's Objection refers to ``[t]he Case 18-61 
revocation.''
    \5\ Respondent's Objection refers to ``[t]he Case 18-32 
revocation.''
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    On July 16, 2021, the Government filed a Reply in Support of Motion 
for Summary Disposition (hereinafter, Government's Reply). The 
Government's Reply argued that because New Mexico requires both a state 
professional license and a state controlled substances license for 
authorization to handle controlled substances, and because Respondent's 
controlled substances license had expired, which Respondent has not 
disputed, Respondent lacks authority to handle controlled substances in 
New Mexico, regardless of the status of his dental license. 
Government's Reply, at 1. Additionally, the Government's Reply argued 
that Respondent's argument that his dental license had not yet been 
revoked was factually erroneous based on the factual findings of an 
order issued by the New Mexico First Judicial District Court denying 
Respondent's request for a preliminary injunction against the December 
12, 2020 Board order. Id. at 2. Moreover, the Government's Reply argued 
that Respondent's argument that his dental license had not yet been 
revoked was also legally erroneous because, although he had sought a 
stay of the Board's first November 26, 2019 order, he had yet to 
actually obtain the stay. Id. Finally, the Government's Reply argued 
that even if Respondent's dental license had not yet been revoked, 
Respondent's agreement to not practice dentistry as a condition of 
release in his criminal cases, and therefore to not prescribe or 
administer controlled substances without a dental license, on its own 
sufficiently constitutes a lack of state authority to handle controlled 
substances. Id. at 2-3.
    On July 19, 2021, the ALJ granted the Government's Motion for 
Summary Disposition and recommended that Respondent's DEA registration 
be revoked, finding that ``[t]here is no genuine issue of material fact 
in this case'' and that ``[t]he Government has established that 
Respondent currently lacks both a dental license and the authority to 
handle controlled substances.'' RD, at 7 and 10. Specifically, the ALJ 
highlighted that Respondent failed to address or refute that his New 
Mexico controlled substances licensed had expired and found that 
``Respondent's arguments regarding his dental license are nothing more 
than an impermissible effort to relitigate the state revocation 
proceedings.'' Id. at 8. The ALJ concluded that ``the fact that 
Respondent may get his registration back, whether through an appeal or 
otherwise, does not change the answer to the sole inquiry in this case: 
whether he is currently authorized to handle controlled substances in 
New Mexico.'' Id. at 9.
    By letter dated August 13, 2021, the ALJ certified and transmitted 
the record to me for final Agency action. In that letter, the ALJ 
advised that neither party filed exceptions. I issue this Decision and 
Order based on the entire record before me. 21 CFR 1301.43(e). I make 
the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
BG9826427 at the registered address of 8200 Carmel Ave. NE Suite 101, 
Albuquerque, NM 87122. Government Motion Exhibit (hereinafter, GX) A 
(DEA Certificate of Registration). Pursuant to this registration, 
Respondent is authorized to dispense controlled substances in schedules 
II through V as a practitioner. Id. Respondent's registration expires 
on September 30, 2021. Id.

The Status of Respondent's State License

    On November 26, 2019, the Board issued a Decision and Order that 
revoked Respondent's dental license, effective January 1, 2020, after 
finding that Respondent ``submitted false claim forms to [an insurance 
provider] for the purpose of obtaining payment for an unnecessary 
dental procedure . . . falsified a [sic] x-ray/radiograph . . . [and] 
failed to cooperate with the Board

[[Page 54478]]

investigation.'' GX B, at 5-6. On December 19, 2019, the New Mexico 
County of Santa Fe First Judicial District Court (hereinafter, the 
Court) stayed the Board's November 26, 2019 Order. GX E. On July 7, 
2020, the Court issued an order, following a hearing on June 15, 2020, 
that dismissed Respondent's appellate case, lifted the December 19th 
stay, and ordered that the Board could enforce its Decision and Order 
starting on July 17, 2020. GX F, at 1-3.
    On December 12, 2020, the Board issued a Decision and Default Order 
that again revoked Respondent's dental license, as well as ordered that 
``this revocation of Respondent's license does not affect, modify, or 
change the earlier revocation of Respondent's license on July 17, 
2020.'' GX H, at 3. On January 20, 2021, Respondent filed an 
Application for a Temporary Restraining Order and Preliminary 
Injunction in which he requested a restraining order against the 
execution of the December 12, 2020 Board Decision, as well as an 
injunction regarding the enforcement of the Decision, which the Court 
denied on February 19, 2021. GX L, at 4-5; GX N, at 2-3 (the Court 
reasoned in part that Respondent's ``license to practice dentistry is 
currently revoked based on decisions made in a separate and unrelated 
case'').
    On February 4, 2021, the Second Judicial Court for Bernalillo 
County in a criminal matter involving Respondent issued a Stipulated 
Order Amending Conditions of Release ordering that Respondent ``shall 
not practice dentistry without a license from the [Board].'' GX Q. On 
April 30, 2021, in a separate criminal matter involving Respondent, the 
Second Judicial Court for Bernalillo County issued an Order Setting 
Conditions of Release again ordering that Respondent was not to 
practice dentistry without a license. GX S, at 1-2.\6\
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    \6\ I agree with the ALJ that it is unnecessary to rely on the 
conditions of Respondent's release as a basis for a finding that 
Respondent lacks state authority to handle controlled substances. 
See RD n.3.
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    On April 26, 2021, the Board issued an order that set aside its 
December 12, 2020 Decision but also ordered that ``Respondent's dental 
license remains revoked'' as of July 17, 2020. GX I, at 4. On April 26, 
2021, the Board also issued a Notice of Contemplated Action against 
Respondent alleging that Respondent was practicing dentistry without a 
license and not cooperating with the Board's investigations. GX J, at 4 
and 8. On May 21, 2021, the Board issued a Notice of Hearing regarding 
the allegations in the April 26, 2021 Notice of Contemplated Action. GX 
J, at 1. On June 1, 2021, Respondent filed an appeal of the denial of 
his motion to reconsider the Court's July 7, 2020 order and various 
other appeals. GX G, at 1-2; GX O, at 1-2; GX U, at 1.
    It remains uncontested that Respondent's New Mexico controlled 
substances license is expired. See GX W.
    According to New Mexico's online records, of which I take official 
notice, Respondent's New Mexico dental license remains revoked.\7\ New 
Mexico Regulation & Licensing Department Licensee Search and 
Verification, https://www.rld.nm.gov/about-us/public-information-hub/online-services (last visited date of signature of this Order). 
Further, New Mexico's online records, of which I take official notice, 
show that Respondent's New Mexico controlled substance license remains 
expired.\8\ Id. (last visited date of signature of this Order).
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    \7\ 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, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration of findings of fact 
within fifteen calendar days of the date of this Order. Any such 
motion and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at [email protected].
    \8\ See supra n.7 regarding official notice.
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    Accordingly, I find that Respondent is not currently licensed to 
engage in the practice of dentistry or to handle controlled substances 
in New Mexico, the state in which Respondent is registered with 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 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.
    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 71,371 
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has 
also long held that revocation is warranted even where a practitioner 
is still challenging the underlying action. Bourne Pharmacy, 72 FR 
18,273, 18,274 (2007); Wingfield Drugs, 52 FR 27,070, 27,071 (1987). 
Thus, it is of no consequence that the action is being appealed. What 
is consequential is my finding that Respondent is no longer currently 
authorized to dispense controlled substances in New Mexico, the state 
in which he is registered.
    According to New Mexico statute, ``A person who manufactures, 
distributes or dispenses a controlled substance or who proposes to 
engage in the manufacture, distribution or dispensing of a controlled 
substance shall obtain a registration issued by the board in accordance 
with its regulations.'' N.M.

[[Page 54479]]

Stat. Ann. Sec.  30-31-12(A) (West, current through the end of the 
First Regular Session and First Special Session, 55th Legislature 
(2021)). In turn, ``dispense'' means ``to deliver a controlled 
substance to an ultimate user or research subject pursuant to the 
lawful order of a practitioner, including the administering, 
prescribing, packaging, labeling or compounding necessary to prepare 
the controlled substance for that delivery.'' Id. at Sec.  30-31-2(H). 
Further, a ``practitioner'' means ``a physician . . . dentist . . . or 
other person licensed or certified to prescribe and administer drugs 
that are subject to the Controlled Substances Act.'' Id. at Sec.  30-
31-2(P).
    Here, the undisputed evidence in the record is that Respondent's 
New Mexico controlled substance license is expired; therefore, he 
cannot dispense controlled substances in New Mexico. Further, 
Respondent's New Mexico dental license has been revoked. As such, he is 
not a ``practitioner'' licensed or certified to prescribe and 
administer a controlled substance under New Mexico law. Thus, because 
Respondent lacks authority to handle controlled substances in New 
Mexico, Respondent is not eligible to maintain a DEA registration. 
Accordingly, I will order that Respondent'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. 
BG9826427 issued to William C. Gardner, D.D.S. Further, pursuant to 28 
CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I 
hereby deny any pending application of William C. Gardner to renew or 
modify this registration, as well as any other pending application of 
William C. Gardner, D.D.S. for additional registration in New Mexico. 
This Order is effective November 1, 2021.

Anne Milgram,
Administrator.
[FR Doc. 2021-21424 Filed 9-30-21; 8:45 am]
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