03-29965. Keith Perry, M.D. Revocation of Registration

On October 17, 2002, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Keith O'Neil Perry, M.D. (Respondent) notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, AP3109077 under 21 U.S.C. 824(a)(3) and (a)(4), and deny any pending applications for registration pursuant to 21 U.S.C. 823(f). The Order to Show Cause alleged that the Respondent's DEA Certificate of Registration should be revoked because the Respondent was without authorization to handle controlled substances. The Order to Show Cause further sought denial of any pending applications for registration based on allegations that the Respondent's continued registration would be inconsistent with the public interest. Specifically, the Order to Show alleged that effective April 8, 2002, the California Medical Board (Medical Board) suspended the Respondent's license to practice medicine. The Order to Show Cause further alleged that on or about February 29, 2000, the Respondent was convicted by jury verdict of the following federal offenses:

—Sixteen counts of Mail Fraud (21 U.S.C. 1341)

—Two counts of Making False Statements on Medi-Cal Group Provider Applications (18 U.S.C. 1001)

—Fifteen counts of Wire Fraud (18 U.S.C. 1343 & 2)

—Four counts Bankruptcy Fraud (18 U.S.C. 152(3))

—One count of Tax Evasion

By letter dated November 19, 2002, the Respondent, acting pro se, requested a hearing in this matter. On December 2, 2002, the presiding Administrative Law Judge Gail A. Randall (Judge Randall) issued to the Government as well as the Respondent an Order for Prehearing Statements.

In lieu of filing a prehearing statement, on December 16, 2002, the Government filed Government's Request for Stay of Proceedings and Motion for Summary Judgment. The Government asserted that the Respondent is without authorization to handle controlled substances in the State of California, and as a result, further proceedings in the matter were not required. Attached to the Government's motion was a copy of a Suspension Order, signed by the Medicaid Board's Chief of Enforcement, who averred among other things, that effective April 8, 2002, the Medical Board issued an Automatic Suspension Order, suspending the Respondent's Physician's and Surgeon's Certificate No. 54688. The Medical Board representative further stated that the Suspension Order remains in effect until further order of the Medical Board.

On December 19, 2002, Judge Randall issued an Order Staying Proceedings, and afforded the Respondent until January 8, 2003, to respond to the Government's Motion. The Respondent did not file a response. In his request for hearing, the Respondent pointed out that the suspension of his California medical license is temporary and that he is currently appealing the decision of the Medical Board. However, the Respondent did not rebut evidence presented by the Government his medical license remains suspended.

On February 13, 2003, Judge Randall issued her Opinion and Recommended Decision on the Administrative Law Judge (Opinion and Recommended Decision). As part of her recommended ruling, Judge Randall granted the Government's Motion for Summary Disposition and found that the Respondent lacked authorization to handle controlled substances in California, the jurisdiction in which he is registered with DEA. In granting the Government's motion, Judge Randall further recommended that the Respondent's DEA registration be revoked and any pending applications for modification nor renewal be denied. No exceptions were filed by either party to Judge Randall's Opinion and Recommended Decision, and on March 18, 2003, the record of these proceedings was transmitted to the Office of the DEA Deputy Administrator.

The Acting Deputy Administrator has considered the record in its entirety and pursuant to 21 CFR 1316.67, hereby issues her 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 Decision of the Administrative Law Judge.

The Acting Deputy Administrator finds that the Respondent currently possesses DEA Certificate of Registration AP3109077, and is registered to handle controlled substances in the State of California. The Acting Administrator further finds that effective April 8, 2002, the Medical Board of California issued a Suspension Order, suspending indefinitely the Respondent's medical license. There is no evidence before the Acting Deputy Administrator that the Suspension Order has been lifted or modified. Therefore, the Acting Deputy Administrator finds that the Respondent is currently not licensed to practice medicine in California and as a result, it is reasonable to infer that he is also without authorization to handle controlled substances in that state.

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. 801(21), 823(f) and 824(a)(30. This prerequisite has been consistently upheld. See Karen Joe Smiley, M.D., 68 FR 48944 (2003); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).

Here, it is clear that the Respondent is not currently licensed to handle controlled substances in California, where he is registered with DEA. Therefore, he is not entitled to maintain that registration. Because the Respondent is not entitled to a DEA registration in California due to his lack of state authorization to handle controlled substances, the Acting Deputy Administrator concludes that it is unnecessary to address whether the Respondent's registration should be revoked based upon the other grounds asserted in the Order to Show Cause. See Fereida Walker-Graham, M.D., 68 FR 24761 (20030; Nathaniel-Aikens-Afful, M.D., 62 FR 16871 (1997); Sam F. Moore, D.V.M., 58 FR 14428 (1993).

Accordingly, the Acting 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, AP3109077, issued to Keith O'Neil Perry, M.D., be, and it hereby is, revoked. The Acting Deputy Administrator further orders that any pending applications for renewal of such registration be, and there hereby are, denied. This order is effective January 2, 2004.

Dated: November 13, 2003.

Michele M. Leonhart,

Acting Deputy Administrator.