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Federal Register / Vol. 72, No.

18 / Monday, January 29, 2007 / Notices 4031

South Carolina DEPARTMENT OF JUSTICE moved to stay the proceedings until a

Bamberg County pending criminal case brought against
Drug Enforcement Administration him by the State of Georgia was
Bamberg Post Office, 11955 Heritage Hwy., resolved. Respondent’s counsel further
Bamberg, 07000074 [Docket No. 06–39]
noted that Respondent had been out of
Darlington County Gerald E. Dariah, M.D.; Revocation of the country for ‘‘the past five and a half
Registration months’’ and that ‘‘[h]e anticipate[d]
Dove Dale, Address Restricted, Darlington,
returning next month.’’ Letter from
07000075 On October 12, 2005, the Deputy Respondent’s Counsel to Hearing Clerk
Utah Assistant Administrator, Office of (Nov. 15, 2005). Alternatively,
Diversion Control, Drug Enforcement Respondent’s counsel sought an
Carbon County Administration, issued an Order to extension of time to respond to the
Verde Homestead, 233 200 East, Helper, Show Cause to Gerald E. Dariah, M.D. Show Cause Order. ALJ Dec. at 1. The
07000079 (Respondent) of Albany, Ga. The Show case was assigned to Administrative
Cause Order proposed the revocation of Law Judge (ALJ) Mary Ellen Bittner; the
Davis County
Respondent’s Certificate of Registration, ALJ then issued a memorandum which
Mills—Hancock House, (Centerville MPS), BD4754683, as a practitioner, and to offered the Government the opportunity
571 S. 400 West, Centerville, 07000077 deny any pending application for to respond.
Salt Lake County renewal of the registration, on the On January 9, 2006, the Government
grounds that Respondent’s state medical opposed Respondent’s motions.
Copperton Community Methodist Church,
license had been revoked, and that Specifically, the Government noted that
410 E. Hillcrest Rd., Copperton, 07000080
Respondent had committed acts that Respondent had failed to provide any
Evergreen Avenue Historic District, Roughly
rendered his registration inconsistent information regarding the dates of his
bounded by Evergreen Ave., 2300 East,
with the public interest. See 21 U.S.C. return to the country and the resolution
3300 South and 2700 East, East Mill Creek,
824(a)(3) & (4); id. section 823(f). of the State criminal proceeding. Gov.
The Show Cause Order specifically Resp. at 2. The Government further
Sandy Historic District, (Sandy City MPS),
alleged that Respondent had engaged in argued that because Respondent was
Roughly bounded by State St. 9000 South,
the pre-signing of prescriptions for unable to participate in a hearing he
700 East and Pioneer Ave., Sandy,
controlled substances which were then should be deemed to have waived his
issued to patients by Respondent’s right to a hearing. Id. The Government
Weber County nurse. Show Cause Order at 2. The urged the ALJ to deny Respondent’s
Dumke, John F., and Lillia, House, 1607 Show Cause Order further alleged that motions, to hold that Respondent had
Kiesel Ave., Ogden, 07000078 investigators from DEA and the Georgia waived his right to a hearing, and to
Board of Medical Examiners (Board) had issue an order terminating the
Virginia subsequently executed a search warrant proceeding. Id. at 3.
Loudoun County at Respondent’s office and seized On January 18, 2006, the ALJ denied
approximately thirty blank pre-signed Respondent’s motions. The ALJ
Locust Grove, 200 Locust Grove Dr.,
Purcellville, 07000083
prescriptions. See id. The Show Cause specifically noted that the motion had
Order also alleged that Respondent’s been filed more than two months earlier
Staunton Independent City nurse told investigators that each and that Respondent had subsequently
Western State Hospital (Boundary Increase), morning, Respondent provided her with failed to provide any information
301 Greenville Ave., SE. Corner of VA 11 four pages of blank, pre-signed regarding ‘‘the duration of his stay
and VA 250, Staunton, (Independent City), prescriptions. See id. abroad’’ and ‘‘when the criminal matters
07000082 The Show Cause Order next alleged will be resolved.’’ ALJ Memorandum
Requests for removals has been made for
that Respondent had authorized his staff and Ruling 1 (Jan. 18, 2006). The ALJ
the following resources: to fill in and issue numerous pre-signed thus denied both of Respondent’s
prescriptions between November 23rd motions and issued an Order for
Utah and December 29, 2003, when he was Prehearing Statements. Id. at 2.
Carbon County traveling abroad. See id. The Show Thereafter, on February 8, 2006, the
Cause Order alleged that during this Government moved for summary
Bruno, Giacomo and Maria, House and period, Respondent’s staff issued disposition. The basis of the
Farmstead, 524 N. Main St., Helper, prescriptions for Schedule II controlled Government’s motion was that
02000506 Respondent’s state medical license had
substances to several patients. See id.
Iron County Finally, the Show Cause Order alleged been summarily suspended by the
Hunter, Joseph S., House, 86 E. Center St.,
that on September 21, 2004, the Board Georgia Board, the suspension had not
Cedar City, 82004126
issued an order which summarily been lifted, and it was undisputed that
suspended Respondent’s medical Respondent was not authorized to
Salt Lake County license, that the order had not been handle controlled substances in Georgia,
Bonnyview Elementary School, (Murray City, stayed, and that his license had not been the State in which he holds his DEA
Utah MPS), 4984 S. 300 W., Murray, reinstated. See id. at 3. The Show Cause registration. Gov. Mot. for Summary
01000473 order thus alleged that Respondent was Disposition at 2. The Government
Redman Van and Storage Company Building, ‘‘not currently authorized to handle attached to its motion a copy of the
(Sugar House Business District MPS), 1240 controlled substances in the State of Georgia Board’s Order of Summary
East 2100 South, Salt Lake City, 03000635 Georgia.’’ Id. The Show Cause Order Suspension. Upon receipt of the
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Shupe-Williams Candy Company Factory, also informed Respondent of his right to Government’s motion, the ALJ offered
2605 Wall Ave., Ogden, 78002716 a hearing. Id. Respondent the opportunity to respond.
[FR Doc. E7–1295 Filed 1–26–07; 8:45 am] On November 15, 2005, Respondent, On March 15, 2006, Respondent filed
through his counsel, timely requested a a response. Respondent acknowledged
hearing. Respondent’s counsel also that his state license had been

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4032 Federal Register / Vol. 72, No. 18 / Monday, January 29, 2007 / Notices

suspended but asserted that the state Georgia law allows Respondent to DEA has consistently held that the CSA
superior court had ruled that his alleged engage in some activities involving requires the revocation of a registration
offenses were misdemeanors and not controlled substances, the CSA makes issued to a practitioner whose state
felonies and that he was currently in plain that one must be currently license has been suspended or revoked.
negotiations with the Board for the authorized by the State to engage in the See Sheran Arden Yeates, 71 FR 39130,
reinstatement of his license. specific activities for which he holds a 39131 (2006); Dominick A. Ricci, 58 FR
Respondent’s Response at 1. DEA registration.1 51104, 51105 (1993); Bobby Watts, 53
Respondent further contended that The CSA’s definition of the ‘‘[t]he FR 11919, 11920 (1988).
notwithstanding the suspension of his term ‘practitioner’ means a physician I therefore conclude that
medical license, ‘‘Georgia law allows * * * licensed, registered, or otherwise Respondent’s argument is without
unlicensed individuals to work as permitted, by * * * the jurisdiction in merit. Because Respondent has
subordinates and laborers in the which he practices * * * to distribute, produced no evidence that the Georgia’s
manufacturing, distributing, and dispense, [or] administer * * * a Board’s summary suspension order has
dispensing of controlled substances.’’ controlled substance in the course of been set aside or stayed, I conclude that
Id. at 3. Respondent further asserted that professional practice.’’ 21 U.S.C. Respondent lacks authority under
he was ‘‘still eligible to apply for 802(21) (emphasis added). Relatedly, Georgia law to handle controlled
employment in the state as a physician’s the CSA directs that ‘‘[t]he Attorney substances as a practitioner and is not
assistant, pharmacy technician, drug General shall register practitioners entitled to maintain his DEA
manufacturing employee or drug * * * if the applicant is authorized to registration.
representative, among other occupations dispense * * * controlled substances
involving the handling of controlled under the laws of the State in which he Order
substances.’’ Id. Respondent maintained practices.’’ Id. section 823(f). See also id. Accordingly, pursuant to the
that ‘‘[t]he fact that [21 U.S.C. 824(a)(3)] section 802(10) (‘‘the term ‘dispense’ authority vested in me by 21 U.S.C.
requires both action on the means to deliver a controlled substance 823(f) & 824(a), as well as 28 CFR
Respondent’s license and an inability to to an ultimate user * * * pursuant to 0.100(b) & 0.104, I order that DEA
engage in the manufacture, distribution, the lawful order of a practitioner’’) Certificate of Registration, BD4754683,
and dispensing of drugs would seem to (emphasis added). issued to Gerald E. Dariah, M.D., be, and
indicate that suspension of one’s license As the CSA’s definition of the term it hereby is, revoked. I further order that
does not necessarily render the ‘‘practitioner’’ makes plain, a physician any pending applications for renewal or
individual unable to handle controlled must be currently authorized to modification of such registration be, and
substances.’’ Id. Respondent thus dispense a controlled substance ‘‘in the they hereby are, denied. This order is
contended that there was an issue of fact course of professional practice.’’ Id. effective February 28, 2007.
presented and an evidentiary hearing section 802(21). A physician whose
Dated: January 19, 2007.
was required. Id. state license has been suspended or
Michele M. Leonhart,
On April 17, 2006, the ALJ issued her revoked does not have authority under
state law to engage in the ‘‘professional Deputy Administrator.
opinion and recommended decision.
The ALJ rejected Respondent’s practice’’ of medicine and cannot [FR Doc. E7–1320 Filed 1–26–07; 8:45 am]
argument explaining that ‘‘[i]mplicit in’’ lawfully issue an order to dispense a BILLING CODE 4410–09–P
DEA’s long-standing interpretation of controlled substance. Accordingly,
the Controlled Substances Act ‘‘is the section 304 of the CSA authorizes the
assumption that the authority at issue is revocation of a registration ‘‘upon a DEPARTMENT OF JUSTICE
that inuring to the registrant as a finding that the registrant * * * has had
Drug Enforcement Administration
practitioner, not whatever authority the his State license or registration
state grants to individuals who do not suspended or revoked * * * and is no Stephen J. Heldman, Denial Of
hold a license to practice medicine.’’ longer authorized by State law to engage Application
ALJ Dec. at 3. The ALJ further explained in the * * * dispensing of controlled
that ‘‘[t]o hold otherwise would permit substances.’’ Id. § section824(a)(3).2 On November 18, 2005, the Deputy
unlicensed physicians to maintain DEA Assistant Administrator, Office of
registrations, contrary to the plain 1 Contrary to the understanding of Respondent’s Diversion Control, Drug Enforcement
purpose of the CSA.’’ Id. counsel, the word ‘‘handle’’ as used in DEA cases Administration, issued an Order to
interpreting the CSA is a term of art. It refers to a
The ALJ also found that it was registrant’s authority to perform the specific
Show Cause to Stephen J. Heldman of
undisputed that Respondent’s state activities for which registration is required. Cincinnati, Ohio (Respondent). The
license was suspended and that he was 2Even if it is true, Respondent’s ‘‘contention that Show Cause Order proposed to deny
without authority to handle controlled he is still authorized by state law to engage in the Respondent’s pending application for a
manufacturing [and] distribution * * * of
substances as a practitioner. Id. Because controlled substances,’’ Respondent Resp. at 3, is
DEA Certificate of Registration as a
there was no factual issue in dispute, irrelevant. Respondent was registered under the distributor of the List I chemicals
the ALJ granted the Government’s CSA as a practitioner and not as a manufacturer or ephedrine and pseudoephedrine on the
motion for summary disposition and distributor. The Act specifically defines ‘‘the term ground that his registration would be
‘distribute’’’ to exclude ‘‘dispensing.’’ 21 U.S.C.
recommended that Respondent’s DEA § 802(11). The only activity which is relevant in inconsistent with the public interest.
registration be revoked. Id. at 4. assessing whether Respondent can maintain his See 21 U.S.C. 823(h) & 824(a).
Having considered the record as a practitioner’s registration is dispensing. See id. The Show Cause Order specifically
whole, I hereby issue this decision and § 823(f); see also 21 CFR 1301.13(e) (table) alleged that Respondent was proposing
(distributing and dispensing are independent
final order. I adopt the ALJ’s opinion activities and require separate registrations).
to distribute products containing
and recommended decision. Finally, even if ‘‘Georgia law allows unlicensed pseudoephedrine and ephedrine, which
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Respondent’s contention that he is individuals to work as subordinates * * * in the are precursor chemicals used to
entitled to maintain his DEA registration * * * dispensing of controlled substances,’’ Resp. manufacture methamphetamine, to non-
Resp. at 3, Respondent does not maintain that he
notwithstanding that he lacks authority can lawfully issue a prescription for a controlled
traditional retailers of these products
under Georgia law to practice medicine substance under state law, which is what matters such as convenience stores and gas
is easily dismissed. Even assuming that for purposes of the CSA. stations. See Show Cause Order at 1–2.

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