00-2537. Michael G. Dolin, M.D., Denial of Request for Modification of Registration

On December 17, 1998, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA) issued an Order to Show Cause to Michael Glen Dolin, M.D. (Respondent) of Rockville Center, New York, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration AD4476378 pursuant to 21 U.S.C. 824(a)(4), and deny any pending applications for modification or renewal of such registration pursuant to 21 U.S.C. 823(f), for reason that his registration would be inconsistent with the public interest.

On January 4, 1999, Respondent, through counsel, filed a request for a hearing. Following prehearing proceedings, a hearing was held in New York City, New York on May 26, 1999, and continued on July 13, 1999, before Administrative Law Judge Gail A. Randall. At the hearing, both parties called witnesses to testify and introduced documentary evidence.

On July 9, 1999, prior to the second hearing session, the Government filed a Motion to Amend Prehearing Statement and to Reopen Record, which was granted at the hearing on July 13, 1999. The Government introduced evidence that the New York Department of Health, State Board for Professional Medical Conduct (Medical Board), had revoked Respondent's license to practice medicine in New York, and that the New York State Supreme Court, Appellate Division, Third Judicial Department (Appellate Division), stayed the revocation, but precluded Respondent from prescribing controlled substances. Based upon this evidence, the Government made an oral Motion for Summary Disposition at the July 13, 1999 hearing session.

After being given an opportunity to reply to the Government's motion, on August 23, 1999, Respondent filed a motion requesting that Judge Randall deny the Government's motion and adjourn these proceedings until the Appellate Division renders its decision on the Respondent's appeal of the Medical Board's revocation of his medical license.

On September 1, 1999, the Government filed a Renewed Motion for Summary Disposition, and sought to reopen the record to introduce evidence of the Appellate Division's decision lifting the temporary stay of the revocation of Respondent's New York medical license. The Government asserted that since Respondent is no longer authorized to handle controlled substances in New York, DEA cannot register him in that state. In a letter dated September 8, 1999, Respondent replied to the Government's Renewed Motion for Summary Disposition.

On September 28, 1999, Judge Randall issued her Opinion and Recommended Decision finding that Respondent lacks authorization to handle controlled substances in the State of New York; denying Respondent's Motion to Adjourn; granting the Government's Motion for Summary Disposition; and recommending that Respondent's request for modification of his DEA registration be denied. Neither party filed exceptions to her Opinion and Recommended Decision, and on November 4, 1999, Judge Randall 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, in full, the Opinion and Recommended Decision of the Administrative Law Judge.

The Deputy Administrator finds that Respondent was issued DEA Certificate of Registration AD4476378 at an address in North Carolina with an expiration date of June 30, 1998. On June 14, 1998, Respondent submitted an application to modify his registration with DEA. On the application, Respondent crossed out the registered address in North Carolina and hand wrote in an address in Rockville, New York. Pursuant to 21 CFR 1301.51, this request for modification is treated like a new application for registration.

The Deputy Administrator further finds that in a decision dated May 17, 1999, the Hearing Committee of the Medical Board revoked Respondent's license to practice medicine in the State of New York. On June 10, 1999, the Appellate Division temporarily stayed the revocation, pending Respondent's appeal of the Medical Board's decision. Subsequently, in a decision dated August 6, 1999, the Appellate Division lifted the temporary stay of the Medical Board's revocation of Respondent's license to practice medicine in New York.

In arguing against summary disposition and for an adjournment of these proceedings pending a ruling on his appeal, Respondent asserted that if the Government's motion is granted and Respondent ultimately wins his appeal of the Medical Board's revocation of his medical license, he would be without a DEA registration to handle controlled substances. Respondent further argued that the public interest would be protected by delaying a decision in this matter pending the outcome of the appeal in the Appellate Division since he is currently without a medical license and he has not written a controlled substance prescription since his DEA registration expired in 1998.

The Deputy Administrator concludes that Respondent is not currently authorized to practice medicine in the State of New York and it is therefore reasonable to infer that he is also not authorized to handle controlled substances in that state. The 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 Michael J. Pine, D.D.S., 64 FR 33318 (1999); Eric Jones, M.D., 63 FR 10042 (1998); Romeo J. Perez, M.D., 62 FR 16193 (1997).

Here, it is clear that Respondent is not authorized to practice medicine or handle controlled substances in New York, and therefore, he is not eligible to possess a DEA registration in that state. As Judge Randall noted, “[a] pending judicial challenge to the Medical Board’s decision does not alter Respondent’s status in New York. The outcome of a potential judicial challenge to the Medical Board’s action is speculative, and the decision of the Medical Board is final until otherwise overturned.” Under these circumstances, Judge Randall found that it would be inappropriate to stay or adjourn these proceedings.

In light of the above, Judge Randall 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 New York. 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 Jesus R. Juarez, M.D., 62 FR 14945 (1997); Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).

The Deputy Administrator agrees with Judge Randall's conclusion that because Respondent lacks state authorization in New York, the state where he is seeking to be registered, it is unnecessary to address the other allegations raised in the Order to Show Cause.

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 request of Michael G. Dolin, M.D. to modify his DEA Certificate of Registration AD4476378, dated June 14, 1998, be, and it hereby is, denied. The Deputy Administrator notes that DEA Certificate of Registration AD4476378 is no longer valid since it expired without being renewed or modified. This order is effective March 6, 2000.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.