00-2528. Kenneth Leroy Jones, M.D.; Revocation of Registration

On August 24, 1999, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA) issued an Order to Show Cause to Kenneth Leroy Jones, M.D. (Respondent) of Paintsville, Kentucky, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration AJ1551399, and deny any pending applications for renewal of such registration as a practitioner pursuant to 21 U.S.C. 823(f) and 824(a)(3). The Order to Show Cause alleged that Respondent was not currently authorized to handle controlled substances in the Commonwealth of Kentucky.

By letter dated September 17, 1999, Respondent requested a hearing, and the matter was docketed before Administrative Law Judge Mary Ellen Bittner. On October 20, 1999, the Government filed a Motion for Summary Disposition, alleging that Respondent is currently registered with DEA to handle controlled substances in Kentucky, however, he is not currently authorized by the Commonwealth of Kentucky to handle controlled substances. Respondent was given until November 10, 1999, to file a response to the Government's motion. Respondent failed to file a timely response.

On November 18, 1999, Judge Bittner issued her Opinion and Recommended Decision finding that Respondent lacks authorization to handle controlled substances in the Commonwealth of Kentucky; granting the Government's Motion for Summary Disposition; and recommending that Respondent's DEA Certificate of Registration be revoked. Neither party filed exceptions to her Opinion and Recommended Decision, however on November 30, 1999, Respondent filed a letter with Judge Bittner indicating that he no longer wished to pursue this matter and asking that favorable consideration be given to any future applications for registration with DEA. On December 20, 1999, Judge Bittner transmitted the record of these proceedings to the Office of 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, in full, the Opinion and Recommended Decision of the Administrative Law Judge.

As a preliminary matter, the Deputy Administrator has not considered Respondent's letter filed on November 30, 1999, since it was not timely filed and Respondent has not offered any explanation for the late filing.

The Deputy Administrator finds that Respondent possesses DEA Certificate of Registration AJ1551399, issued to him at an address in Paintsville, Kentucky. The Deputy Administrator further finds that on January 7, 1999, the Commonwealth of Kentucky, State Board of Medical Licensure ordered the revocation of Respondent's Kentucky medical license. Respondent did not dispute that he is not currently authorized to practice medicine in Kentucky.

Therefore, the Deputy Administrator finds that Respondent is not currently authorized to practice medicine in the Commonwealth of Kentucky. As a result, it is reasonable to infer that he is also not authorized 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 his business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Romeo J. Perez. M.D., 62 FR 16,193 (1997); Demetris A. Green, M.D., 61 FR 60,728 (1996); Dominick A. Ricci, M.D. 58 FR 51.104 (1993).

Here it is clear that Respondent is not licensed to handle controlled substances in Kentucky. Since Respondent lacks this state authority, he is not entitled to a DEA registration in that state.

In light of the above, Judge Bittner properly granted the Government's Motion for Summary Disposition. The parties did not dispute the fact that Respondent is currently unauthorized to handle controlled substances in Kentucky. Therefore, it is well-settled that when no question of material fact is involved, a plenary, adversary administrative proceeding involving evidence and cross-examination of witnesses is not obligatory. See Gilbert Ross, M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).

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 0.014, hereby orders that DEA Certificate of Registration AJ1551399, issued to Kenneth Leroy Jones, M.D. be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal of such registration be, and they hereby are, denied. This order is effective March 6, 2000.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.