[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9706]
[[Page Unknown]]
[Federal Register: April 22, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 93-66]
Felix L. Oliver, M.D.; Revocation of Registration
On June 15, 1993, the Deputy Assistant Administrator, (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Felix L. Oliver, M.D.
(Respondent), of 543 Lake Tower Drive, No. 119, Lexington, Kentucky
40502. The Order to Show Cause proposed to revoke Dr. Oliver's DEA
Certificate of Registration, AO1475993, and deny any pending
applications for renewal of such registration. The Order to Show Cause
alleged that Respondent was not currently authorized to handle
controlled substances in Kentucky and that Respondent's continued
registration would be inconsistent with the public interest, as that
term is used in 21 U.S.C. 823(f) and 824(a)(4).
The Order to Show Cause alleged that on or about June 1, 1992, the
Commonwealth of Kentucky State Board of Medical Licensure (Board)
ordered the indefinite suspension of Respondent's state license to
practice medicine, and as a result, he was longer authorized by state
law to handle controlled substances. It further alleged that between
May 1990 and February 1991, Respondent prescribed, dispensed,
administered and obtained controlled substances for his personal use
and/or the use of his family for no legitimate medical purpose.
Respondent filed a request for a hearing on the issues raised by
the Order to Show Cause, and the matter was docketed before
Administrative Law Judge Mary Ellen Bittner. On August 19, 1993, the
Government filed a motion for summary disposition, which was
accompanied by a Board Order of Probation dated November 19, 1992. The
Board order superseded the Board's June 1, 1992 order of suspension,
and placed Respondent's license to practice medicine on probation until
June 1, 1997, subject to terms and conditions. The Board ordered that
Respondent shall not prescribe, dispense, administer or otherwise
professionally utilize any controlled substances during the
probationary period. As a result, the Government contended that
Respondent is not authorized to handle controlled substances in the
Commonwealth of Kentucky.
On September 16, 1993, Respondent filed a response to the
Government's motion, asserting, in substance, that the basis of the
action taken by the Board is without any factual basis or merit and was
imposed illegally. Respondent further asserted that his appeal of the
Board's order before the Kentucky Court of Appeals is pending, and
therefore, the Board's action is not final.
On September 22, 1993, in her opinion and recommended decision, the
administrative law judge found that the Respondent did not deny that he
currently lacks authority from the Commonwealth of Kentucky to handle
controlled substances. The administrative law judge therefore, granted
the Government's motion for summary disposition and recommended that
Respondent's DEA Certificate of Registration be revoked.
On November 5, 1993, the administrative law judge transmitted the
record to the Administrator. The Administrator has carefully considered
the entire record in this matter and, pursuant to 21 CFR 1316.67,
hereby issues his final order in this matter based upon findings of
fact and conclusions of law as hereinafter set forth.
The Administrator adopts the opinion and recommended decision of
the administrative law judge in its entirety. The Drug Enforcement
Administration cannot register or maintain the registration of a
practitioner who is not duly authorized to handle controlled substances
in the state in which he conducts his business. 21 U.S.C. 802(21),
823(f) an 824(a)(3). This prerequisite has been consistently upheld.
See James H. Nickens, M.D., 57 FR 59847 (1992); Elliott Monroe, M.D.,
57 FR 23246 (1992); Bobby Watts, M.D., 53 FR 11919 (1988).
The administrative law judge properly granted the Government's
motion for summary disposition. It is well-settled that when no
question of fact is involved, or when the facts are agreed upon, a
plenary, adversary administrative proceeding involving evidence and
cross-examination of witnesses is not obligatory. The rationale is that
Congress does not intend administrative agencies to perform meaningless
tasks. Phillip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v.
Mullen, 749 F.2d 297 (6th Cir. 1984); Alfred Tennyson Smurthwaite,
N.D., 43 FR 11873 (1978); see also, NLRB v. International Association
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634
(9th Cir. 1977); United States v. Consolidated Mines and Smelting Co.,
Ltd., 455 F.2d 432, 453 (9th Cir. 1971).
Since Respondent is not currently authorized to handle controlled
substances in the Commonwealth of Kentucky, it is not necessary to
reach a conclusion regarding whether Respondent's continued
registration is inconsistent with the public interest. 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),
hereby orders that DEA Certificate of Registration, AO1475993,
previously issued to Felix L. Oliver, M.D., be, and it hereby is,
revoked and that any pending applications for renewal of such
registration be, and they hereby are, denied. This order is effective
May 23, 1994.
Dated: April 18, 1994.
Thomas A. Constantine,
Administrator.
[FR Doc. 94-9706 Filed 4-21-94; 8:45 am]
BILLING CODE 4410-09-M
