[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Notices]
[Pages 88412-88413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28013]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Joeseph Potter, D.D.S.; Decision and Order

    On July 12, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Joeseph Potter, 
D.D.S. (Registrant). Request for Final Agency Action (RFAA), Exhibit 
(RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. FP7517456 at the registered address of 
3145 Larimer Street, Denver, Colorado 80205. Id. at 1. The OSC alleged 
that Registrant's registration should be revoked because Registrant is 
``currently without authority to prescribe, administer, dispense, or 
otherwise handle controlled substances in the State of Colorado, the 
state in which [he is] registered with DEA.'' Id. at 2 (citing 21 
U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to have waived his right to a hearing and be in 
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request 
a hearing. RFAA, at 1-2.\1\ ``A default, unless excused, shall be 
deemed to constitute a waiver of the registrant's/applicant's right to 
a hearing

[[Page 88413]]

and an admission of the factual allegations of the [OSC].'' 21 CFR 
1301.43(e).
---------------------------------------------------------------------------

    \1\ Based on the Government's submissions in its RFAA dated 
September 7, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the Government's Notice of 
Service of Order to Show Cause included as an attachment a Form DEA-
12 signed by Registrant indicating that Registrant was personally 
served with the OSC on July 19, 2023. RFAAX 1, at 6.
---------------------------------------------------------------------------

    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . 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 [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 3; see 
also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, the 
Colorado Dental Board issued an Order of Suspension, effective October 
12, 2022, suspending Registrant from the practice of dentistry in the 
state of Colorado. RFAAX 2, at 2. According to Colorado online records, 
of which the Agency takes official notice, Registrant's Colorado dental 
license remains suspended.'' \2\ Colorado Division of Professions and 
Occupations License Search, https://apps2.colorado.gov/dora///licenselookup.aspx (last visited date of signature of this Order). 
Accordingly, the Agency finds that Registrant is not licensed to 
practice dentistry in Colorado, the state in which he is registered 
with DEA.
---------------------------------------------------------------------------

    \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, Registrant 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 DEA Office of the Administrator, 
Drug Enforcement Administration at [email protected].
---------------------------------------------------------------------------

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, D.O., 76 FR 71371, 71372 (2011), pet. for 
rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, 
D.O., 43 FR 27616, 27617 (1978).\3\
---------------------------------------------------------------------------

    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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 823(f), was redesignated as 
part of the Medical Marijuana and Cannabidiol Research Expansion 
Act, Public Law 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, 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, D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 
FR 51104, 51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 
(1988); Frederick Marsh Blanton, 43 FR 27617.
---------------------------------------------------------------------------

    According to Colorado statute, ``[e]very person who manufactures, 
distributes, or dispenses any controlled substance within this state . 
. . shall obtain . . . a registration, issued by the respective 
licensing board . . . . For purposes of this section and this article [ 
], `registration' or `registered' means . . . the licensing of dentists 
by the Colorado dental board . . . .'' Colo. Rev. Stat. 18-18-302(1) 
(2023).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice dentistry in Colorado. As discussed above, 
a dentist must be a licensed practitioner to dispense a controlled 
substance in Colorado. Thus, because Registrant lacks authority to 
practice dentistry in Colorado and, therefore, is not authorized to 
handle controlled substances in Colorado, Registrant is not eligible to 
maintain a DEA registration. Accordingly, the Agency 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. 
FP7517456 issued to Joeseph Potter, D.D.S. 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 Joeseph Potter, D.D.S, to renew 
or modify this registration, as well as any other pending application 
of Joeseph Potter, D.D.S., for additional registration in Colorado. 
This Order is effective January 22, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 12, 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 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. 2023-28013 Filed 12-20-23; 8:45 am]
BILLING CODE 4410-09-P