01-26182. Lionel Resnick, M.D.; Revocation of Registration

The Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC), dated February 6, 2001, by certified mail to Lionel Resnick, M.D., (Respondent) notifying him of an opportunity to show cause as to why the DEA should not revoke his DEA Certificate of Registration AR9599309, pursuant to 21 U.S.C. 824(a)(3), and deny any pending applications for renewal or modification of this registration, pursuant to 21 U.S.C. 823(f). The OTSC alleged that Respondent's license to practice medicine in the jurisdiction in which Respondent practices, the State of Florida, was suspended effective October 19, 1999, by the Florida Department of Health based upon Respondent's convictions of eighteen felony counts of mail fraud, in violation of 18 U.S.C. 1341, by the United States District Court, Southern District of Florida. By letter filed March 21, 2001, Respondent requested a hearing in this matter.

On April 2, 2001, the Government filed a Motion for inter alia Summary Disposition, on the grounds that Respondent is not currently authorized to handle controlled substances in the jurisdiction in which he is currently registered with DEA. On April 3, 2001, Administrative Law Judge Mary Ellen Bittner issued a Memorandum to Counsel and Order allowing Respondent until April 24, 2001, to respond to the Government's motions, and holding a previously-issued Order for Prehearing Statements in abeyance pending a ruling on the Government's motions.

The Government attached to its Motion a copy of an Administrative Complaint issued by the Department of Health, State of Florida, and signed by the Secretary and Chief Medical Attorney for the Board of Medicine, and also a document from the Florida Department of Health, Health Licensee Information website, dated July 21, 2000, indicating Respondent's license status as suspended. In light of these attachments, the Government asserts that Respondent does not have a valid license to practice medicine or to handle controlled substances in Florida, the jurisdiction of his practice as indicated on his DEA Certificate of Registration. As of this date, the investigative file contains no response from Respondent nor anyone purporting to represent him.

Judge Bittner rendered her Opinion and Recommended Ruling on May 16, 2001, recommending that Respondent's DEA registration be revoked, and any pending applications for renewal or modification be denied. On June 18, 2001, Judge Bittner transmitted the record of these proceedings to the Office of the Deputy Administrator.

The 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 Administrator adopts in full the Opinion and Recommended Decision of the Administrative Law Judge.

The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he or she practices. See 21 U.S.C. 823(f) and 824(a)(3). This prerequisite has been consistently upheld in prior DEA cases. See Graham Travers Schuler, M.D., 65 FR 50570 (2000); Romeo J. Perez, M.D., 62 FR 16193 (1997); Demetris A. Green, M.D., 61 FR 60728 (1996); Dominick A. Ricci, M.D., 58 FR 51104 (1993).

In the instant case, the Administrator finds the Government has presented evidence demonstrating that the Respondent is not authorized to practice medicine in Florida, and therefore, the Administrator concluded that Respondent is also not authorized to handle controlled substances in Florida, where he conducts business, according to the address listed on his DEA Certificate of Registration. The Administrator finds that Judge Bittner allowed Respondent ample time to refute the Government's evidence, and that Respondent has submitted no evidence or assertions to the contrary. Thus, there is no genuine issue of material fact concerning Respondent's lack of authorization to practice medicine in Florida or to handle controlled substances in that State.

The Administrator concurs with Judge Bittner's finding that it is well settled that when there is no question of material fact involved, there is no need for a plenary, administrative hearing. Congress did not intend for administrative agencies to perform meaningless tasks. See Michael G. Dolin, M.D., 65 FR 5661 (2000); Jesus R. Juarez, M.D., 62 FR 14945 (1997); see also Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).

Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration AR 9599309, issued to Lionel Resnick, M.D., be, and it hereby is, revoked; and that any pending applications for the renewal or modification of said Certificate be denied. This order is effective November 19, 2001.

Dated: October 10, 2001.

Asa Hutchinson,

Administrator.