2011-8535. Layfe Robert Anthony, M.D.; Denial of Application

On December 3, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Layfe Robert Anthony, M.D. (Respondent), of Salt Lake City, Utah. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BA8835449, and the denial of any pending applications to renew or modify the registration, on the ground that because of actions taken by the Utah Division of Occupational and Professional Licensing, he lacks “authority to practice medicine or handle controlled substances in the State of Utah,” the State in which he is registered. Show Cause Order at 1 (citing 21 U.S.C. 824(a)(3)). The Show Cause Order also notified Respondent of his right to request a hearing or to submit a written statement in lieu of a hearing, the procedures for doing so, and the consequences for his failing to do so. Id. at 2 (citing 21 CFR 1301.43 & 1316.47).

On December 14, 2009, the Show Cause Order was served on Respondent by certified mail addressed to him at his registered location. Since that date, more than thirty days have passed and neither Respondent, nor anyone purporting to represent him, has requested a hearing or submitted a written statement. 21 CFR 1301.43(b) & (c). Accordingly, I conclude that Respondent has waived his right to a hearing and issue this Final Order based on the evidence contained in the investigative record. 21 CFR 1301.43(d) & (e).

Respondent held DEA registration, BA8835449, which authorized him to dispense controlled substances in schedules II through V as a practitioner. According to the Agency's registration records, Respondent's registration expired on June 30, 2007, and Respondent did not submit his renewal application until July 2, 2007. Moreover, the Agency did not automatically renew his registration.

Under 5 U.S.C. 558(c), “[w]hen the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.” Based on this provision, the Government maintains that his registration has continued in effect.^[1] It has not. However, an application remains pending before the Agency.

On January 28, 2009, the Utah Department of Commerce, Division of Occupational and Professional Licensing (DOPL), revoked his “licenses to practice as a physician/surgeon and to administer and prescribe controlled substances.” Order, In re Layfe Robert Anthony, M.D., No. DOPL-OSC-2001-70 (Utah Div. Occ. & Prof. Lic. Jan. 28, 2009).^[2] Accordingly, Respondent lacks authority to dispense controlled substances in Utah, the State in which he holds his DEA registration.

The Controlled Substances Act defines the “[t]he term `practitioner' [to] mean[] a physician * * * licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practice * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice or research.” 21 U.S.C. 802(21). Moreover, under 21 U.S.C. 823(f), “[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.” DEA has therefore repeatedly held that holding state authority is an essential requirement for obtaining a registration and maintaining an existing one. See David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988); see also 21 U.S.C. 824(a)(3) (authorizing revocation “upon a finding that the registrant * * * has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances”).

As the Final Order of the Utah DOPL makes clear, Respondent does not possess authority under Utah law to dispense controlled substances. Because he does not meet this requirement, his application will be denied. See 21 U.S.C. 823(f).

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of Layfe Robert Anthony, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This Order is effective May 11, 2011.

Dated: April 1, 2011.

Michele M. Leonhart,

Administrator.

Footnotes

1.  The Government did not explain the basis for its position that an application filed after a registration expires is nonetheless timely.

2.  The Order was based on a recommended decision of a three-member panel designated by the Director of the DOPL to act as the presiding officer in the proceeding. The panel's findings included, inter alia, that: 1) Respondent had “stored controlled substances [Versed and Provigil] * * * in his personal vehicle,” as well as “41 prescription pads which contained multiple blank prescriptions that had been presigned by other physicians” at a clinic he was no longer affiliated with, id. at 9, 11-12, 16-17; that he had failed to comply with a previous state order that he “submit a triplicate copy” of a controlled substance prescription (for testosterone, a schedule III steroid) for review by the Division, id. at 21-22; that he had committed unprofessional conduct when he advised A.S. to administer to her son a controlled substance (Klonopin) which he had prescribed to her, id. at 21, 23-24; and that he had violated section 58-37-6(7)(o) of the Utah Controlled Substances Act by issuing controlled substance prescriptions “on forms which falsely identified his address.” Id. at 21 & 24.