[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Notices]
[Pages 6657-6658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3831]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No 95-30]
Philip G. Marais, D.D.S., Denial of Application
On January 25, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Philip G. Marais, D.D.S., (Respondent) of Long
Beach, California, notifying him of an opportunity to show cause as to
why the DEA should not deny his pending application for a DEA
Certificate of Registration as a practitioner, under 21 U.S.C. 823(f),
as being inconsistent with the public interest.
On May 19, 1995, the Respondent filed a request for a hearing, and
on June 8, 1995, the Government filed a Motion for Summary Disposition,
alleging that the Respondent was no longer authorized to handle
controlled substances in the State of California. The motion was
supported by copies of the July 15, 1994, Decision After Nonadoption by
the State of California Board of Dental Examiners (Dental Board), and a
March 10, 1995, Default Decision in which the Dental Board reimposed a
seven-year revocation of the Respondent's license, effective April 10,
1995.
On June 9, 1995, Administrative Law Judge Mary Ellen Bittner sent
the Respondent, via certified, return receipt mail, an Order affording
him until June 30, 1995, to file a response to the Government's motion.
That Order was returned to the Office of the Administrative Law Judge
by the U.S. Postal Service on June 19, 1995, and re-sent to the
Respondent via certified, return receipt mail on June 22, 1995,
extending the response date to July 10, 1995. The Respondent did not
file a response or make any other attempt to deny that his state
license had been revoked.
On July 20, 1995, Judge Bittner issued her Opinion and Recommended
Decision, granting the Government's motion for summary disposition, and
recommending that the Respondent's DEA Certificate of Registration be
revoked. Neither party filed exceptions to her decision, and on August
28, 1995, Judge Bittner transmitted the record of these proceedings to
the Deputy Administrator.
The 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 Deputy Administrator adopts the Opinion and Recommended Decision of
the Administrator Law Judge, with one noted exception, 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 Deputy Administrator finds that on July 29, 1992, the
Respondent voluntarily surrendered DEA Certificate of Registration
AM8093875, based on his alleged failure to comply with Federal
requirements pertaining to controlled substances. On August 27, 1992,
the Respondent applied for a new DEA Certificate of Registration as a
practitioner. On July 15, 1994, the Dental board issued a Decision
After Nonadoption, ordering the suspension of the Respondent's license
to practice dentistry (license) for sixty (60 days, effective August
15, 1994. In addition, the Dental board revoked the Respondent's
license, but stayed the revocation and placed the Respondent on
probation for seven (7) years. However, on March 10, 1995, the Dental
[[Page 6658]]
Board issued a Default Decision, in which it revoked the Respondent's
license, effective April 10, 1995.
The DEA does not have statutory authority under the Controlled
Substances Act to register a practitioner unless that practitioner is
authorized by the state in which he conducts business to dispense
controlled substances. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). The
DEA has consistently so held. See Lawrence R. Alexander, M.D., 57 FR
22256 (1992); Bobby Watts, M.D., 53 FR 11919 (1988); Robert F. Witek,
D.D.S., 52 FR 47770 (1987).
Here it is clear that the Respondent is not currently authorized to
practice dentistry in the State of California. From this fact, Judge
Bittner inferred that since the Respondent was not authorized to
practice dentistry, he also was not authorized to handle controlled
substances. The Deputy Administrator agrees with Judge Bittner's
inference, and he notes that the Respondent has not filed an exception
to this portion of her decision. Therefore, because the Respondent
lacks state authority to handle controlled substances, he currently is
not entitled to a DEA registration.
The Deputy Administrator also finds that Judge Bittner properly
granted the Government's motion for summary disposition. It is well-
settled that when no question of fact is involved, a plenary, adversary
administrative proceeding involving evidence and cross-examination of
witnesses is not obligatory. See Dominick A. Ricci, M.D., 58 FR 51104
(1993) (finding that ``Congress did not intend administrative agencies
to perform meaningless tasks.''); see also Phillip E. Kirk, M.D., 48 FR
32887 (1983), aff'd sub nom Kirk V. Mullen, 749 F.2d 297 (6th Cir.
1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11873 (1978); NLRB v.
International Association of Bridge, Structural and Ornamental
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
Judge Bittner recommended that the Respondent's registration be
revoked. However, the Deputy administrator finds that, per the record,
the Respondent does not currently hold a DEA registration, since he
voluntarily surrendered it in July 1992. Therefore, the only matter
pending is the Respondent's application for a new Certificate of
Registration filed in August 1992. Accordingly, the Deputy
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 the Respondent's application for a DEA
Certificate of Registration be, and it hereby is, denied. This order is
effective March 22, 1996.
Dated February 14, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-3831 Filed 2-20-96; 8:45 am]
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