[Federal Register Volume 62, Number 65 (Friday, April 4, 1997)]
[Notices]
[Pages 16189-16190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8560]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-24]
Jose R. Castro, M.D.; Denial of Application
On February 20, 1996, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Jose R. Castro, M.D. (Respondent), of Alma,
Georgia, notifying him of an opportunity to show cause as to why DEA
should not deny his application for a DEA Certificate of Registration
as a practitioner under 21 U.S.C. 823(f), for reason that his
registration would be inconsistent with the public interest. The Order
to Show Cause alleged, in substance, that: (1) From August 1989 through
February 1990, Federal and state agents made 12 undercover visits to
Respondent's office and that on each occasion, Respondent issued the
agents prescriptions for
[[Page 16190]]
controlled substances for no legitimate medical use and outside the
scope of professional practice; (2) On or about January 10, 1991,
Respondent was indicted in the United States District Court for the
Southern District of Georgia and charged with 12 counts of illegal
distribution of controlled substances; (3) On May 8, 1991, Respondent
was found guilty in the United States District Court for the Southern
District of Georgia of four counts of illegal distribution of
controlled substances; (4) Between 1989 and 1991, Respondent prescribed
numerous different controlled substances to an individual for no
legitimate medical reason. On May 17, 1991, the individual died of a
drug overdose after consuming a combination of controlled substances
prescribed by Respondent. A subsequent autopsy revealed that the
individual died of multiple drug poisoning, consistent with the
controlled substances that Respondent prescribed; (5) On September 3,
1991, the Composite State Board of Medical Examiners, State of Georgia,
ordered the summary suspension of Respondent's privileges to handle
controlled substances. Pursuant to the Order, Respondent was ordered to
surrender DEA Certificate of Registration AC 9230311. Accordingly, on
September 10, 1991, Respondent voluntarily surrendered his DEA
registration.
On March 22, 1996, Respondent, through counsel, requested a hearing
on the issues raised by the Order to Show Cause, and the matter was
docketed before Administrative Law Judge Mary Ellen Bittner. Following
prehearing procedures, a hearing was scheduled to commence on January
29, 1997. On October 16, 1996, the Government filed a Motion for
Summary Disposition, alleging that Respondent was not currently
authorized to handle controlled substances in the State of Georgia. The
Government's motion was supported by a copy of a Consent Order entered
into by Respondent and the Composite State Board of Medical Examiners
for the State of Georgia (Board) on January 9, 1992, and a copy of a
letter from the Board to DEA dated October 11, 1996, stating that
Respondent was not authorized to possess or prescribe controlled
substances. Although provided an opportunity to do so, Respondent did
not file a response to the Government's motion.
On November 22, 1996, 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 Georgia; granting the Government's Motion
for Summary Disposition; and recommending that Respondent's application
for a DEA Certificate of Registration be denied. Neither party filed
exceptions to her opinion, and on January 8, 1997, 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 Laws and Decision
of the Administrative Law Judge.
The Acting Deputy Administrator finds that on January 9, 1992,
Respondent and the Board entered into a Consent Order whereby
Respondent's license to practice medicine was suspended for five years
with all but the first six months suspended and was then placed on
probation. As part of the Consent Order, Respondent relinquished, until
further order of the Board, ``his right to prescribe, administer,
dispense, order or possess * * * controlled substances.'' A letter from
the Board dated October 11, 1996, indicated that Respondent was ``not
authorized to possess or prescribe any controlled substance.'' There is
no evidence in the record that the Board has since reinstated
Respondent's controlled substance privileges. Therefore, the Acting
Deputy Administrator finds that Respondent is not currently authorized
to handle controlled substances in the State of Georgia.
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 he conducts business. 21 U.S.C. 802(21), 823(f),
and 824(a)(3). This prerequisite has been consistently upheld. See
Dominick A. Ricci, M.D., 58 FR 51,104 (1993); James H. Nickens, M.D.,
57 Fed. Reg. 59,847 (1992); Roy E. Hardman, M.D., 57 FR 49,195 (1992).
In the instant case, the record indicates that Respondent is not
currently authorized to handle controlled substances in the State of
Georgia. As Judge Bittner notes, ``[b]ecause Respondent lacks this
state authority, he is not currently entitled to a DEA registration.''
Because Respondent is not entitled to a DEA registration, the Acting
Deputy Administrator finds it unnecessary to address whether
Respondent's registration would be inconsistent with the public
interest as alleged in the Order to Show Cause.
Judge Bittner also 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 Georgia.
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 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
F2d 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 the application submitted by Jose R. Castro, M.D. for a DEA
Certificate of Registration, be, and it hereby is, denied. This order
is effective May 5, 1997.
Dated: March 24, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-8560 Filed 4-3-97; 8:45 am]
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