[Federal Register Volume 63, Number 45 (Monday, March 9, 1998)]
[Notices]
[Pages 11453-11454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5997]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-6]
Nora Brayshaw, M.D.; Revocation of Registration
On October 7, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Nora Brayshaw, M.D. (Respondent), of Sausalito,
California. The Order to Show Cause notified her of an opportunity to
show cause as to why DEA should not revoke her DEA Certificate of
Registration AB9072618, and deny any pending applications for renewal
of such registration pursuant to 823(f) and 824, for reason that she is
not currently authorized to handle controlled substances in the State
of California.
By letter dated November 8, 1997, Respondent, through counsel,
filed a request for a hearing, and the matter was docketed before
Administrative Law Judge Mary Ellen Bittner. On November 18, 1997,
Judge Bittner issued an Order for Prehearing Statements. On November
20, 1997, the Government filed a Motion for Summary Disposition,
alleging that effective January 16, 1997, the Medical Board of
California (Board) revoked Respondent's license to practice medicine in
California and therefore, she is not authorized to handle controlled
substances in that state. Respondent submitted a response dated
December 8, 1997, to the Government's motion, arguing that the
revocation by the Board is under review, and therefore is not a final
decision. Respondent further agreed that no action should be taken by
DEA ``until the California matter is final.''
On January 6, 1998, Judge Bittner issued her Opinion and
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision,
finding that Respondent lacked authorization to handle controlled
substances in the State of California; 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 on February 9, 1998, Judge Bittner transmitted the
record of these proceedings to the Acting Deputy Administrator.
The Acting 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 Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision
of the Administrative Law Judge.
The Acting Deputy Administrator finds that by a Decision effective
January 16, 1997, the Board adopted the proposed decision of an
Administrative Law Judge of the Board recommending the revocation of
Respondent's license to practice medicine in the State of California.
Respondent argues that her DEA registration should not be revoked
[[Page 11454]]
at this time because she has filed a Petition for writ of Mandate to
Set Aside Order Imposing Discipline, and she expects that the Board's
decision will be set aside and her medical license will be reinstated.
However, the Acting Deputy Administrator further finds that Respondent
did not offer any evidence that the Board's revocation was stayed
pending review, nor did she deny that she is not currently authorized
to handle controlled substances in California. Therefore, the Acting
Deputy Administrator concludes that Respondent is not currently
authorized to practice medicine in the State of California.
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 she conducts her business. 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); Dermetris 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 practice
medicine in California. Consequently, it is reasonable to infer that
she is not authorized to handle controlled substances in California,
where she is registered with DEA. Since Respondent lacks this state
authority, she 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. Here, the parties did not
dispute the fact that Respondent was unauthorized to handle controlled
substances in California. 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 Phillip 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); United States v.
Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir. 1971).
Accordingly, the Acting 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
DEA Certificate of Registration AB9072618, previously issued to Nora
Brayshaw, M.D., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for renewal
of such registration be, and they hereby are, denied. This order is
effective April 8, 1998.
Dated: March 3, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-5997 Filed 3-6-98; 8:45 am]
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