04-22421. Michael J. Schwartz, MD.; Revocation of Registration

On January 5, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Michael J. Schwartz, M.D. (Dr. Schwartz) who was notified of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, BS5860590, pursuant to 21 U.S.C. 824(a)(3). Specifically, the Order to Show Cause alleged that Dr. Schwartz was without State license to handle controlled substances in the State of Louisiana. The Order to Show Cause also notified Dr. Schwartz that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.

The Order to Show Cause was sent by certified mail to Dr. Schwartz at his registered location in Kenner, Louisiana, with a second copy sent to Dr. Schwartz' legal counsel in New Orleans. The order sent to Dr. Schwartz' address of record was subsequently returned to DEA by the United States Postal Service with a stamped notation: “attempted, not known.” According to the return receipt of the second order sent to the registrant's attorney, it was accepted on Dr. Schwartz' behalf on or around January 15, 2004. DEA has not received a request for hearing or any other reply from Dr. Schwartz or anyone purporting to represent him in this matter.

Therefore, the Deputy Administrator of DEA, finding that (1) thirty days having passed since the attempted delivery of the Order to Show Cause to the registrant's address of record, as well as to a second address, and (2) no request for hearing having been received, concludes that Dr. Schwartz is deemed to have waived his hearing right. See David W. Linder, 67 FR 12579 (2002). After considering material from the investigative file in this matter, the Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(d) and (3) and 1301.46.

The Deputy Administrator finds that Dr. Schwartz is currently registered with DEA as a practitioner authorized to handle controlled substances in Schedules II through V. According to information in the investigative file, on August 4, 2003, DEA received information from the Louisiana State Board of Medical Licensure (Board) that effective July 30, 2003, Dr. Schwartz was “no longer authorized to engage in the practice of medicine in any form in the State of Louisiana.” An accompanying document in the file reveals that the Board summarily suspended Dr. Schwartz' State Medical license. The underlying basis for the board's suspension order was not specified.

Also on August 4, 2003, DEA received information that in response to the aforementioned suspension order of the Board, the Louisiana State Department of Health and Hospitals (LSDHH) summarily suspended Dr. Schwartz' State Controlled Dangerous Substance License. According to a copy of a letter dated August 6, 2003 from LSDHH to Dr. Schwartz (obtained by a DEA investigator), Dr. Schwartz was prohibited from reapplying for reinstatement of his stated controlled substance registration “* * * until the [Board] notifies [LSDHH] in writing that [Dr. Schwartz'] controlled substance privileges have been reinstated.”

There is no evidence before the Deputy Administrator to rebut findings that Dr. Schwartz' Louisiana medical license, as well as his State controlled substance license, have been suspended, or that the suspensions have been lifted. Therefore, the Deputy Administrator finds that Dr. Schwartz is currently not authorized to handle controlled substances in Louisiana.

DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without State authority to handle controlled substances in the State in which he conducts business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Richard J. Clement, M.D., 68 FR 12103 (2003); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).

Here, it is clear that Dr. Schwartz' State controlled substance license has been suspended and there is no information before the Deputy Administrator which points to the suspension having been lifted. As a result, Dr. Schwartz is not licensed to handle controlled substances in Louisiana, where he is registered with DEA. Therefore, he is not entitled to maintain that registration.

Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration, BS5860590, issued to Michael J. Schwartz, MD., be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal or modification of the aforementioned registration be, and it hereby is, denied. This order is effective November 5, 2004.

Dated: September 8, 2004.

Michele M. Leonhart,

Deputy Administrator.