[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Notices]
[Pages 54732-54733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27378]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-18]
Alan L. Ager, D.P.M.; Revocation of Registration
On December 13, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Alan L. Ager, D.P.M., (Respondent) of Nicasio,
California, notifying him of an opportunity to show cause as to why DEA
should not revoke his DEA Certificate of Registration, AA5561243, and
deny any pending applications for renewal of such registration as a
practitioner under 21 U.S.C. 823(f), for reason that his continued
registration would be inconsistent with the public interest pursuant to
21 U.S.C. 824(a)(4).
By letter dated January 17, 1995, Respondent filed a request for a
hearing, and following prehearing procedures, a hearing was held in San
Francisco, California on December 10 and 11, 1996, before
Administrative Law Judge Mary Ellen Bittner. At the hearing, the
Government called witnesses to testify and introduced documentary
evidence, however Respondent did not introduce any evidence. After the
hearing, the Government was the only party to submit proposed findings
of fact, conclusions of law and argument. On April 6, 1998, Judge
Bittner issued her Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision, recommending that Respondent's DEA
Certificate of Registration be revoked. Neither party filed exceptions
to her decision, and on May 8, 1998, Judge Bittner transmitted the
record of these proceedings to the Acting Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision
of the Administrative Law Judge, and his adoption is in no manner
diminished by any recitation of facts, issues and conclusions herein,
or of any failure to mention a matter of fact or law.
The Acting Deputy Administrator finds that Respondent is registered
with DEA as a practitioner to handle controlled substances in Schedules
II-V. The only controlled substance at issue in these proceedings is
marijuana which is a Schedule I controlled substance.
On September 2, 1993, DEA and state law enforcement agents
participated in the eradication of marijuana at several previously
identified sites in Marin County, California. Thereafter, the agents
conducted an aerial surveillance of Respondent's property since there
was intelligence information that marijuana was being grown there and
one of the state agents wanted to determine the general layout of the
property for future thermal imaging. While flying over Respondent's
property, the agents saw marijuana growing in a shed-like structure on
the property that had a semitransparent roof. The agents identified the
marijuana plants due to their distinctive brilliant green color.
A search warrant was obtained and executed at Respondent's property
on September 2 and 3, 1993. The search revealed 317 marijuana plants in
the shed-like structure, 712 marijuana plants in a barn-like structure,
and 150 marijuana plants in a structure that was constructed with bales
of hay and a white plastic sheeting roof, for a total of 1,719
marijuana plants. The agents also discovered electrical lines and fans
in the haystack structure. Fans are used to facilitate the movement of
carbon dioxide to the plants which encourages growth and to simulate
wind which encourages stronger stalks. In addition, the agents found 75
high intensity discharge lamps in the barn. Lamps such as these are
used to simulate sunlight and to facilitate the growth of the plants.
The power company was called to the property to turn off the
electricity, and an inspection revealed two illegal electrical
bypasses. The power company estimated the electricity stolen via the
bypasses was worth $421,000.00, including interest.
A search of Respondent's residence revealed a 30-gallon garbage can
containing ``shake'' material (the stalks and stems from marijuana
plants), a plastic container of ground marijuana leaves, marijuana
residue on a desk, half-smoked marijuana cigarettes in an ashtray,
several boxes of rolling paper, several books on marijuana cultivation,
a 12-gauge shotgun and $12,000.00 cash. The agents also found a key to
the barn on Respondent's person.
During the execution of the search warrant, one of the agents
interviewed Respondent's ex-wife. She stated that Respondent had been
growing marijuana at his residence for 14 years; that the bulk of the
family income came from marijuana sales; and that a friend of
Respondent's hooked up the electrical bypasses.
Random samples of the plants were taken from all three buildings
and analyzed. All of the samples were found to contain marijuana.
On September 22, 1993, Respondent was indicted in the United States
District Court for the Northern District of California and charged
under 21 U.S.C. 841(a)(1) with manufacturing and possessing marijuana
with intent to distribute. On January 31, 1995, a Superseding
Information charged Respondent with structuring currency transactions
in violation of 32 U.S.C. 5324(3) and 5322(a). Specifically, the
Information charged that Respondent did ``structure and assist in
structuring * * * currency transactions with one or more domestic
financial institutions, by causing approximately $129,100.00 in
currency (all of which constituted the proceeds of marijuana
trafficking) to be deposited in, exchange and credited to bank accounts
at various banks * * *.'' Pursuant to a plea agreement, Respondent pled
guilty to currency structuring and agreed to forfeit $129,100.00. On
April 25, 1995, Respondent was convicted of the charge and was placed
on probation for a term of three years, ordered to forfeit $129,000.00,
ordered to perform 600 hours of community service, and fined
$10,000.00.
On August 19, 1996, a local deputy sheriff participated in an
aerial overflight of Respondent's property. He identified marijuana
plants due to their distinctive green color. The plants were growing at
the bottom of a slope on the property. Two subsequent flyovers by the
deputy sheriff and others confirmed the deputy's opinion that marijuana
was growing on Respondent's property. On September 11, 1996, a search
warrant was executed at Respondent's property which revealed a total of
135 marijuana plants. These plants were subsequently analyzed which
confirmed that the plants were marijuana. A search of Respondent's
residence revealed dried marijuana and ``shake'' material.
On September 16, 1996, Respondent was charged in a criminal
complaint with violation of California Health and Safety Code Section
11358, a felony, for the willful and unlawful planting, cultivating,
harvesting, drying and processing of marijuana. There is no evidence in
the record of these
[[Page 54733]]
proceedings as to the disposition of these charges.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny and
pending applications, if he determines that the continued registration
would be inconsistent with the public interest. Section 823(f) requires
that the following factors be considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health or
safety. These factors are to be considered in the disjunctive; the
Deputy Administrator may rely on any one or a combination of factors
and may give each factor the weight he deems appropriate in determining
whether a registration should be revoked or an application for
registration be denied. see Henry J. Schwartz, Jr., M.D., Docket No.
88-42, 54 FR 16,422 (1989).
As to factor one, there is no evidence that any action has been
taken against Respondent's license to practice medicine or handle
controlled substances in California. However, the Acting Deputy
Administrator agrees with Judge Bittner's finding that this factor is
not dispositive ``inasmuch as state licensure is a necessary but not
sufficient condition for DEA registration.''
There is also no evidence regarding Respondent's experience in
dispensing or conducting research with Schedule II-V controlled
substances, the schedules that he's registered to handle. In addition,
there is no evidence that Respondent has ever been convicted of a crime
related specifically to the handling of controlled substances.
But, there is more than ample evidence that Respondent failed to
comply with Federal and State laws relating to controlled substances.
He operated an elaborate and sophisticated marijuana cultivation
enterprise on his property in 1993. Then in 1996, following the
dismantling of this operation, his arrest and conviction, Respondent
continued to cultivate marijuana and was again arrested and charged for
this conduct.
Respondent's blatant disregard for the laws relating to controlled
substances clearly justifies the revocation of his DEA Certificate of
Registration. At the hearing, Respondent offered no explanation for his
conduct nor any assurances that he will no longer engage in the illegal
manufacture of marijuana. As Judge Bittner and Government counsel note,
a negative inference may be drawn from Respondent's silence. See
Raymond A. Carlson, M.D., 53 FR 7425 (1988). Therefore, the Acting
Deputy Administrator agrees with Judge Bittner's conclusion that
Respondent's continued registration would be inconsistent with the
public interest.
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in him by
21 U.S.C. 823 and 824 and 28 C.F.R. 0.100(b) and 0.104, hereby orders
that DEA Certificate of Registration AA5561243, previously issued to
Alan L. Ager, D.P.M., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for the
renewal of such registration, be, and they hereby are, denied. This
order is effective November 12, 1998.
Dated: October 5, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-27378 Filed 10-9-98; 8:45 am]
BILLING CODE 4410-09-M
