01-6909. Frank R. Pennington, M.D.; Denial of Application

On February 2, 2000, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Frank R. Pennington, M.D., notifying him of an opportunity to show cause as to why the DEA should not deny his pending application, dated September 10, 1996, for a DEA Certificate of Registration as a practitioner, pursuant to 21 U.S.C. 824(a)(3), for the reason that he is not currently authorized to handle controlled substances in the State of Tennessee. The order also notified Dr. Pennington that, should no request for hearing be filed within 30 days, his right to a hearing would be considered waived.

The DEA mailed the show cause order to Dr. Pennington by certified mail to two separate addresses, and received postal return receipts from each. No request for a hearing or any other response was received by DEA from Dr. Pennington or anyone purporting to represent him in this matter, however. Therefore, the Administrator of the DEA, finding that (1) thirty days have passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes Dr. Pennington is deemed to have waived his right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46(1999).

The Administrator finds that on December 14, 1994, Dr. Pennington surrendered his previous DEA Certificate of Registration, Number AP7244445, following his felony conviction by the United States District Court for the Western District of Tennessee of obtaining controlled dangerous substances by fraud or deceit on October 27, 1994. Dr. Pennington's previously revoked medical license was reinstated by the Tennessee Board of Medical Examiners on November 20, 1996, pursuant to an application by Dr. Pennington dated September 10, 1996. On October 21, 1999, in the United States District Court for the Western District of Tennessee, Dr. Pennington pleaded guilty to a felony count of unlawful possession with intent to distribute a Schedule II controlled substance. By order dated November 9, 1999, the Tennessee Board of Medical Examiners revoked Dr. Pennington's license to practice medicine in the State of Tennessee. There is no evidence in the investigative file that Dr. Pennington's medical license has been reinstated since that time. Therefore, the Administrator finds that Dr. Pennington is not currently authorized to practice medicine in the State of Tennessee and as a result, it is reasonable to infer that he also is not authorized to handle controlled substances in that State.

The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to 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 in prior DEA cases. See Romeo J. Perez, M.D., 62 FR 16, 193 (DEA 1997); Demetris A. Green, M.D., 61 FR 60,728 (DEA 1996); Dominick A. Ricci, M.D., 58 FR 51,104 (DEA 1993). Here it is clear that Dr. Pennington is not currently authorized to handle controlled substances in the State of Tennessee. As a result, he is not entitled to a DEA registration in that State.

Accordingly, the 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 application for a DEA Certificate of Registration submitted by Frank R. Pennington, M.D. be denied. This order is effective April 19, 2001.

Dated: March 8, 2001.

Donnie R. Marshall,

Administrator.