E7-24606. Richard Carino, M.D.; Revocation of Registration

On December 23, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Richard Carino, M.D. (Respondent), of Port Richey, Florida. The Show Cause Order proposed the revocation of Respondent's DEA Certificates of Registration, BC5048043 and BC7752024, as a practitioner, on the ground that he had committed acts which rendered his registration “inconsistent with the public interest.” Show Cause Order at 1 (citing 21 U.S.C. 823(f) and 824(a)(4)).

More specifically, the Show Cause Order alleged that between September 2003 and July 2004, Respondent, “while working for iPharmacy.MD,” had issued between “100 to 2000 prescriptions per month over the internet, most” of which were for controlled substances. Id. at 5. The Show Cause Order alleged that Respondent “never saw the customers and * * * had no prior doctor-patient relationship with them,” that he did not “conduct physical examinations of the customers and [that he] did not create or maintain patient records.” Id. The Show Cause Order further alleged that “[t]he only information [Respondent] reviewed prior to issuing a prescription was a questionnaire completed by the customer, and [that he] never consulted with the customer's primary care physician or obtained prior medical records.” Id. at 5-6. The Show Cause Order thus alleged that “[t]he controlled substance prescriptions issued by [Respondent] over the internet were not issued in the usual course of [his] professional practice, or for a legitimate medical purpose, in violation of 21 CFR 1306.04 and 21 U.S.C. 841(a).” Id. at 5.

Respondent timely requested a hearing on the allegations. The matter was assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner, who conducted a hearing on March 27, 2007, in Tampa, Florida.

On July 16, 2007, while the ALJ's decision was still pending, the Government moved for summary disposition. The basis of the motion was that on April 17, 2007, the Florida Board of Medicine had issued a final order which indefinitely suspended Respondent's state medical license and that because Respondent was no longer authorized to handle controlled substances under state law, he was not entitled to hold a DEA registration. Gov. Mot. for Summ. Disp. at 2. The Government supported its motion with a copy of the Florida Board's order. See id. at Attachment.

In his response to the motion, Respondent stated that he “does not, and cannot, dispute [the] assertion” that he “is no longer licensed to practice medicine in the State of Florida.” Respondent's Resp. at 1. Respondent also acknowledged that “the Government's motion * * * is well taken.” Id.

On August 7, 2007, the ALJ issued her recommended decision. Finding that Respondent had “concede[d] that he is without state authority * * * to handle controlled substances * * * in Florida,” the ALJ concluded that there were no material facts in dispute. ALJ Dec. at 3. Noting that this Agency has consistently held that a practitioner “must be currently authorized to dispense controlled substances `in the course of professional practice,' ” in order to hold a DEA registration, the ALJ granted the Government's motion and recommended that Respondent's registration be revoked. ALJ at 2-3 (quoting 21 U.S.C. 802(21)). The ALJ then forwarded the record to me for final agency action.

Having considered the record in this matter, I adopt the ALJ's recommended decision in its entirety. I find that although Respondent's registrations expired on August 31, 2005, Respondent submitted timely renewal applications for each registration and therefore, his registrations remain in effect pending the issuance of this Final Order. See 5 U.S.C. 558(c); GX 1. I also find that effective on April 17, 2007, the Florida Board of Medicine issued a final order which indefinitely suspended Respondent's medical license. See Gov. Mot. for Summ. Disp., Attachment at 1-3. I therefore further find that Respondent is without authority under Florida law to dispense or otherwise handle controlled substances in the course of medical practice.

Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which he practices” in order to maintain a DEA registration. See 21 U.S.C. 802(21) (“[t]he term `practitioner' means a physician * * * 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”). See also id. § 823(f) (“The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”). As these provisions make plain, possessing authority to dispense a controlled substance under the laws of the State in which a physician practices medicine is an essential condition for holding a DEA registration.

Accordingly, DEA has repeatedly held that the CSA requires the revocation of a registration issued to a practitioner whose state license has been suspended or revoked. See Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 824(a)(3)(authorizing the revocation of a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances”). Because Respondent's Florida medical license has been indefinitely suspended, he is not entitled to maintain his DEA registrations.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA Certificates of Registration, BC5048043 and BC7752024, issued to Richard Carino, M.D., be, and they hereby are, revoked. I further order that the pending applications of Richard Carino, M.D., for renewal or modification of each registration be, and they hereby are, denied. This order is effective January 18, 2008.

Dated: December 7, 2007.

Michele M. Leonhart,

Deputy Administrator.