[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55072-55074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17385]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Stephen K. Jones, M.D.; Decision and Order

    On February 6, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Stephen K. Jones, 
M.D. (Respondent). Request for Final Agency Action (RFAA), Exhibit 
(RFAAX) 1, at 1, 3. The OSC proposed the revocation of Respondent's 
Certificate of Registration No. FJ1057430 at the registered address

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of 420 West 1500 South, Suite 100, Bountiful, Utah 84010. Id. at 1. The 
OSC alleged that Respondent's registration should be revoked because 
Respondent is ``currently without authority to handle controlled 
substances in the State of Utah, the state in which [he is] registered 
with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    The OSC notified Respondent that if Respondent ``request[ed] a 
hearing and fail[ed] to timely file an answer, plead, or otherwise 
defend, . . . [Respondent] shall be deemed to have waived the right to 
a hearing and to be in default.'' Id. at 2. Here, Respondent made some 
attempt to request a hearing,\1\ see RFAAX 3, but repeatedly failed to 
file an answer, see RFAAX 4-6. Ultimately the Administrative Law Judge 
determined that Respondent was in default and issued an Order 
Terminating Proceedings. See RFAAX 7. ``A default, unless excused, 
shall be deemed to constitute a waiver of the registrant's/applicant's 
right to a hearing and an admission of the factual allegations of the 
order to show cause.'' 21 CFR 1301.43(e).
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    \1\ Based on the Government's submissions, the Agency finds that 
service of the OSC was adequate. The ``Government Notice of Service 
of Order to Show Cause'' asserts that Respondent was personally 
served with the OSC on February 14, 2023; moreover, Respondent 
timely responded to the OSC via email on February 20, 2023. RFAAX 7, 
at 1; RFAAX 3. Though Respondent's email did not follow the format 
required to request a hearing, it did clearly state ``February 20, 
2023: Hearing Requested.'' RFAAX 3, at 2; see also 21 CFR 1316.47. 
The email ``provide[d] [Respondent's] perspective of events,'' but 
did not admit, deny, or otherwise answer the factual allegations in 
the OSC. Id., at 1; see also 21 CFR 1301.37(d)(3).
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    Under 21 CFR 1301.43(f)(1), where ``the presiding officer has 
issued an order terminating the proceeding . . . , DEA may then file a 
request for final agency action with the Administrator, along with a 
record to support its request. In such circumstances, the Administrator 
may enter a default final order pursuant to Sec.  1316.67 of this 
chapter.'' Here, the Government has requested final agency action based 
on Respondent's default pursuant to 21 CFR 1301.43(c), (f). See also 
id. at Sec.  1316.67.

Findings of Fact

    The Agency finds that, in light of Respondent's default, the 
factual allegations in the OSC are admitted. According to the OSC, on 
or about January 12, 2023, the Division of Professional Licensing of 
the Department of Commerce of the State of Utah issued an Amended Order 
of Adjudication suspending Respondent's license to practice as a 
physician and to administer controlled substances. RFAAX 1, at 2.
    According to Utah's online records, of which the Agency takes 
official notice, both Respondent's Utah physician license and 
Respondent's Utah controlled substance license are suspended.\2\ Utah 
Division of Occupational and Professional Licensing, Licensee Lookup & 
Verification System, https://secure.utah.gov/llv/search/index.html 
(last visited date of signature of this Order). Accordingly, the Agency 
finds that Respondent is not authorized to practice medicine nor to 
handle controlled substances in Utah, the state in which he is 
registered with the DEA.
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    \2\ 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 the Agency's 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 the DEA Office of the Administrator, 
Drug Enforcement Administration at [email protected].
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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 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 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27,617 
(1978).\3\
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    \3\ 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(g)(1) (this 
section, formerly section 823(f), was redesignated as part of the 
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L. 
117-215, 136 Stat. 2257 (2022)). 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 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, 43 FR 27617.
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    Under the Utah Controlled Substances Act, ``[e]very person who 
manufactures, produces, distributes, prescribes, dispenses, 
administers, conducts research with, or performs laboratory analysis 
upon any controlled substance in Schedules I through V within [the] 
state . . . shall obtain a license issued by the [Division of 
Professional Licensing].'' Utah Code Ann. section 58-37-6(2)(a)(i) 
(2022). Here, the admitted evidence in the record is that both 
Respondent's Utah physician license and Respondent's Utah controlled 
substance license are suspended. As such, Respondent is not authorized 
to handle controlled substances in Utah and thus is not eligible to 
maintain a DEA registration. Accordingly, the Agency 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. 
FJ1057430 issued to Stephen K. Jones, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of Stephen K. Jones, M.D., to 
renew or modify this registration, as well as any other pending 
application of Stephen K. Jones, M.D., for additional registration in 
Utah. This Order is effective September 13, 2023

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 7, 2023, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for

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publication, as an official document of DEA. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer Drug Enforcement Administration.
[FR Doc. 2023-17385 Filed 8-11-23; 8:45 am]
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