[Federal Register Volume 60, Number 60 (Wednesday, March 29, 1995)]
[Notices]
[Page 16163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7642]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-70]
Zack B. Brown, M.D.; Denial of Application
On February 25, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Zack B. Brown, M.D. (Respondent) of Detroit,
Michigan, proposing to deny his application for registration as a
practitioner. The statutory basis for the Order to Show Cause was the
Respondent's registration would be inconsistent with the public
interest pursuant to 21 U.S.C. 823(f).
Respondent, through counsel, requested a hearing on the issues
raised in the Order to Show Cause and the matter was docketed before
Administrative Law Judge Mary Ellen Bittner.
On September 30, 1994, following prehearing procedures and prior to
any evidentiary hearing, the Government filed a motion for summary
disposition alleging that Respondent no longer held state authorization
to handle controlled substances following the suspension of
Respondent's license to practice medicine in Michigan by the Michigan
Board of Medicine. Respondent did not file a response to the
Government's motion and did not deny that his state license to handle
controlled substances had been suspended.
On October 17, 1994, the administrative law judge entered her
Opinion and Recommended Decision granting the Government's motion for
summary disposition and recommending that the Respondent's application
for DEA Certificate of Registration be denied. No exceptions were filed
by either party.
On November 21, 1995, the administrative law judge transmitted the
record to the Deputy Administrator. After a careful consideration of
the record in its entirely, the Deputy Administrator enters his final
order in this matter pursuant to 21 CFR 1316.67, based on findings of
fact and conclusions of law as set forth herein. On August 17, 1994,
the Michigan Board of Medicine summarily suspended the Respondent's
state license to practice medicine. On September 26, 1994, an Order
Continuing the Summary Suspension of August 17 was issued by the
Michigan Office of Legal Services (Department of Commerce). Judge
Bittner found that, by virtue of the suspension of Respondent's license
to practice medicine in Michigan, it was reasonable to infer, and
Respondent did not deny, that because he is not authorized to practice
medicine in Michigan, he also is not authorized to handle controlled
substances within that state. Judge Bittner concluded that DEA has no
authority to register a practitioner, unless that practitioner is
authorized by the state to dispense controlled substances. The DEA has
consistently held this position. See Bobby Watts, M.D., 53 FR 11919
(1988); Lawrence R. Alexander, M.D., 57 FR 22256 (1992).
In cases such as the present, where a Respondent is not authorized
to handle controlled substances in the state in which he proposes to
practice, a motion for summary disposition is properly entertained. It
is well settled that where no question of fact exists, or where the
material facts are agreed, a plenary administrative proceeding is not
required. See Phillip E. Kirk, M.D., 48 FR 32877 (1983), aff'd sub nom
Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). Congress did not intend
for administrative agencies to conduct hearings where no issues remain
in dispute. United States v. Consolidated Mines and Smelting Company,
Ltd., 445 F.2d 432, 453 (9th Cir. 1971); N.L.R.B. v. International
Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO,
549 F.2d 634 (9th Cir. 1977).
The Deputy Administrator adopts the opinion and recommended
decision of the administrative law judge in its entirety. Based on the
foregoing, the Deputy Administrator concludes that Respondent's
application for registration must be denied. 21 U.S.C. 823(f) and
824(a)(3). Accordingly, the Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority invested 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 registration of Zack B. Brown be, and hereby
is, denied. This order is effective April 28, 1995.
Dated: March 23, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-7642 Filed 3-28-95; 8:45 am]
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