[Federal Register Volume 61, Number 61 (Thursday, March 28, 1996)]
[Notices]
[Pages 13878-13880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7499]
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DEPARTMENT OF JUSTICE
[Docket No. 95-2]
John Porter Richards, D.O.; Grant of Application
On October 4, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to John Porter Richards, D.O., (Respondent) of
Elkview, West Virginia, notifying him of an opportunity to show cause
as to why DEA should not deny his application for registration as a
practitioner under 21 U.S.C. 823(f), as being inconsistent with the
public interest. Specifically, the Order to Show Cause alleged that:
(1) In 1984, the Virginia State Police conducted a raid on a
sailing vessel docked in Lancaster County, Virginia, and seized six
tons of marijuana, a Schedule I controlled substance. The Respondent
was subsequently indicted for conspiracy to distribute, and with
distribution of marijuana, with respect to this seizure.
(2) On or about July 18, 1985, in the Circuit Court for Lancaster
County, Virginia, the Respondent was convicted of conspiracy to
distribute marijuana and possession with intent to distribute more than
five pounds of marijuana, both felony offenses related to controlled
substances. Upon conviction, the Respondent was sentenced to 30 years
imprisonment, 20 years of which were suspended.
(3) As a result of the criminal conviction, the Ohio State Board of
Medicine revoked the Respondent's license to practice osteopathic
medicine in the state, on or about April 9 1986.
On October 21, 1994, the Respondent, through counsel, filed a
timely request for a hearing, and following prehearing procedures, a
hearing was held in Arlington, Virginia, on February 16, 1995, before
Administrative Law Judge Mary Ellen Bittner. At the hearing, both
parties called witnesses to testify and introduced documentary
evidence, and after the hearing, counsel for both sides submitted
proposed findings of fact, conclusions of law and argument. On
September 6, 1995, Judge Bittner issued her Opinion and Recommended
Ruling, recommending that the Respondent's application for registration
be granted. Neither party filed exceptions to her decision, and on
October 6, 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, in full, the Opinion and Recommended
Ruling, Findings of Fact, Conclusions of Law, and Decision of the
Administrative Law Judge, 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 May 23, 1993, the
Respondent completed an application for a DEA Certificate of
Registration as a practitioner to handle controlled substances. On the
application, the Respondent disclosed that in 1985 he had received a
felony conviction related to marijuana, that in 1986, his medical
license in the State of Ohio had been revoked due to that conviction,
and that his prior DEA registration had had no action taken against it.
The Respondent testified before Judge Bittner that he had let his prior
DEA registration expire.
A DEA inquiry disclosed that on July 18, 1985, the Respondent was
convicted, after a jury trial, of one count of possession with intent
to distribute approximately 12,000 pounds of marijuana, and one count
of conspiracy to distribute the same quantity of marijuana. The
Respondent was sentenced to (1) thirty years confinement, with twenty
years suspended; (20 supervised probation for three years after his
release from confinement; and (3) payment of a $5,000.00 fine. Further,
by order dated April 16, 1986, the State Medical Board of Ohio revoked
the Respondent's license to practice osteopathic medicine and surgery
in that state as a result of this felony conviction.
On April 15, 1988, the State of West Virginia Board of Osteopathy
(Board) granted the Respondent a probationary license, with
stipulations to include serving a five-year period of probation and a
required reporting provision. By letter dated March 19, 1993, the Board
removed the restrictions from the Respondent's license to practice and
issued him an unrestricted license, effective April 15, 1993. Further,
the Respondent submitted a letter from the Board dated December 12,
1994, recommending that the Respondent be granted a DEA Certificate of
Registration.
The Respondent testified before Judge Bittner, stating that he had
graduated from the Philadelphia College of Osteopathic Medicine, is a
diplomat of the National Board of Examiners, and is Board certified in
family practice. He stated that he maintains a solo practice in
Elkview, West Virginia, a rural community approximately fifteen miles
[[Page 13879]]
from Charleston, that there are more than 6,000 patients in his
practice, and that he treats a large number of poor patients, about
forty percent of which receive Medicare and/or Medicaid benefits. The
Respondent testified that he did not have hospital privileges, for he
had been told that he needed a DEA Certificate of Registration to
qualify for such privileges in his local hospitals.
When asked on cross-examination whether, consistent with his not
guilty plea, he continued to maintain that he had not committed the
crimes for which he had been convicted, the Respondent testified, ``I
accept my conviction,'' and when asked to what extent he did so, he
replied, ``In its completeness.'' He also stated that this conviction
was his first, that he had no subsequent convictions, and that he did
not believe that he would ever again commit any crime ``involving the
drug laws.'' The Respondent testified that in October of 1990, he had
satisfactorily completed his court-ordered probation.
The Respondent submitted an affidavit from Robert R. Merhige, Jr.
The parties stipulated that ``Robert R. Merhige, Jr.[.] is a Senior
U.S. District Judge for the Eastern District of Virginia, at
Richmond.'' Judge Merhige wrote that he was aware of the Respondent's
prior conviction, that he had been told it was his first conviction,
and that he had had contact with the Respondent over the years since
his conviction. Judge Merhige also wrote that, based upon his
association with the Respondent, ``I am of the option that he is
unlikely to violate the law, and has the capacity and intention to
conduct himself as a worthy citizen,'' that he was ``of the sincere
belief that [the Respondent would] conduct himself appropriately and
[would] not be a threat to the public health and safety,'' and ``I
believe him to be a person worthy of the privilege of prescribing
controlled substances pursuant to a valid DEA license.''
The Respondent also submitted documents detailing the barriers he
faced as a result of his lack of a DEA Certificate of Registration.
Specifically, he submitted documents disclosing his inability to
participate in managed health care programs, difficulties in obtaining
liability insurance, as well as evidence of the economic decline of his
practice.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for registration as practitioner, if he determines that
granting the registration would be inconsistent with the public
interest. Section 823(f) requires that the following factors be
considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health or
safety.
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application for registration
denies. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422
(1989).
In this case, the Deputy Administrator agrees with Judge Bittner,
finding that factors one, three, four, and five are relevant in
determining whether the Respondent's registration would be inconsistent
with the public interest. As to factor one, ``recommendation of the
appropriate State licensing board,'' it is significant that, as a
result of his felony conviction related to controlled substances, the
Respondent's medical license was revoked by the Ohio State Board of
Medicine in 1986. Further, in 1988, when the State of West Virginia
Board of Osteopathy granted the Respondent a license, it chose to grant
a probationary license with reporting requirements. However, also
significant is the fact that in 1993, the Board issued the Respondent
an unrestricted license to practice medicine. Further, the Board also
supports the Respondent's application for a DEA Certificate of
Registration, as evidenced by its letter of December 12, 1994.
As to factor three, the Respondent's ``conviction record under
Federal or State laws relating to the * * * distribution * * * of
controlled substances'' and factor four, the Respondent's
``[c]ompliance with applicable State, Federal, or local laws relating
to controlled substances,'' It is undisputed that the Respondent
received a felony conviction for the unlawful possession with intent to
distribute, and for conspiracy to distribute, 12,000 pounds of
marijuana, a Schedule I controlled substance, in violation of State
law. As for factor five, ``[s]uch other conduct which may threaten the
public health or safety,'' there is no dispute that on the night of the
incident which resulted in the Respondent's conviction, he fled the
scene of the crime, thereby avoiding law enforcement officials. Thus,
the Deputy Administrator agrees with Judge Bittner's conclusion that
the ``Respondent's past misconduct constitutes sufficient grounds to
deny his application for DEA registration.''
However, the Deputy Administrator also agrees that factors exist
which support granting the Respondent's application. First, the
Respondent's criminal conduct occurred more than ten years ago. As the
Deputy Administrator has previously determined, `'[t]he paramount issue
is not how much time has elapsed since [the Respondent's] unlawful
conduct, but rather, whether during that time [the] Respondent has
learned from past mistakes and has demonstrated that he would handle
controlled substances properly if entrusted with DEA registration.''
Leonardo V. Lopez, M.D., 54 FR 36915 (1989). Even though it has been
previously found that time, alone, is not dispositive in such
situations, it is certainly an appropriate factor to be considered. See
Norman Alpert, M.D., 58 FR 67420, 67421 (1993), citing Thomas H.
McCarthy, D.O., 54 FR 20936 (DEA 1989), affirmed, Thomas H. McCarthy,
D.O. v. Drug Enforcement Administration, No. 89-3496 (6th Cir. Apr. 5,
1990) (unpublished opinion).
Next, there is no evidence or contention that the Respondent has
ever been involved in any other criminal activity. Also, Judge Bittner
noted that the Respondent had expressed remorse for his prior
misconduct and that ``there is no indication that those expressions of
remorse are not genuine.'' The Respondent also testified before Judge
Bittner that he certainly did not intend to commit any crime
``involving the drug laws'' in the future. His convictions were
corroborated by Judge Merhige's affidavit containing his opinion that
the Respondent was ``unlikely to violate the law.'' Further, since the
Respondent's release from confinement, he had taken positive steps to
improve his professional credentials by becoming Board certified in
family practice.
The Deputy Administrator strongly endorses Judge Bittner's
observation, that the ``Respondent's involvement in smuggling marijuana
was egregious criminal behavior.'' Without condoning such behavior,
however, the Deputy Administrator also agrees that granting the
Respondent's application for a DEA Certificate of Registration would be
consistent with the public's interest at this time and in this case.
The Deputy Administrator also finds that the public's interest, as well
as the interest
[[Page 13880]]
of the Respondent, will be served better by making this order effective
upon the date of publication in the Federal Register, rather than
thirty days thereafter.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823, and 28 CFR 0.100(b) and 0.104, hereby orders that the pending
application for a DEA Certificate of Registration of John Porter
Richards, D.O., be, and it hereby is, approved. This order is effective
upon publication in the Federal Register.
Dated: March 22, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-7499 Filed 3-27-96; 8:45 am]
BILLING CODE 4410-09-M
