[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Notices]
[Pages 17577-17578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8403]
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DEPARTMENT OF JUSTICE
[Docket No. 93-46]
Ellis Turk, M.D.; Revocation of Registration
On April 15, 1993, the Deputy Assistant Administrator (then
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Ellis Turk, M.D. (Respondent),
of Baltimore, Maryland, proposing to revoke his DEA Certificate of
Registration, AT2444711, and deny any pending applications for renewal
of such registration as a practitioner. The statutory basis for the
Order to Show Cause was that Respondent's continued registration would
be inconsistent with the public interest pursuant to 21 U.S.C. 823(f)
and 824(a)(4).
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 November 11, 1993,
Respondent voluntarily discharged his counsel and continued pro se.
Following prehearing procedures, a hearing was held before Judge
Bittner in Arlington, Virginia on November 22, 1993. On February 16,
1994, after the Government submitted its post-hearing brief, Respondent
filed Response of Ellis Turk, M.D. to Government's Proposed Findings of
Fact, Conclusions of Law and Argument (the ``Respondent's Response'').
The Government filed a Motion to Strike Respondent's Response on
February 18, 1994, on the grounds that the rules governing DEA
administrative hearings (specifically 21 CFR 1316.64) do not permit
such a responsive pleading. The Respondent filed a Response to Motion
to Strike Respondent's Response on March 9, 1994.
On June 7, 1994, Judge Bittner issued her Opinion and Recommended
Ruling, Findings of Fact, Conclusions of Law and Decision recommending
that Respondent's DEA registration be revoked and any pending
applications be denied. As part of the opinion, Judge Bittner allowed
the Government's motion and struck Respondent's Response. Additionally,
she allowed the Government's motion to strike specific exhibits filed
by Respondent with his post-hearing brief. No exceptions to the Opinion
were filed by either party even after an extension of time to ensure
service of the opinion on the Respondent.
On July 8, 1994, the administrative law judge transmitted the
record to the Deputy Administrator, including the Respondent's Response
and the exhibits struck by Judge Bittner. On September 28, 1994,
Respondent, through newly retained counsel, filed a Motion to Remand
and Open the Record to Hear New Evidence with the Deputy Administrator
of the DEA. The Government filed its opposition to Respondent's motion
on October 13, 1994.
The Deputy Administrator has considered the record in its entirety,
and, 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.
The Deputy Administrator, concurring with the administrative law judge
in her decision to strike Respondent's Response and exhibits filed
post-hearing, did not consider those documents in rendering his final
order.
The administrative law judge found that, in 1987, DEA received
approximately ten reports from drug distributors that Respondent had
purchased excessive quantities of the controlled substances phentermine
and phendimetrazine. On two occasions in December 1988, DEA and
Maryland State drug inspectors, pursuant to an administrative
inspection warrant, conducted an accountability audit of controlled
substances at Respondent's office, covering the period from
[[Page 17578]] December 29, 1987 through December 12, 1988. the audit
revealed shortages in the Respondent's accountability of controlled
substances. These audit results were confirmed by a second audit
conducted by DEA in 1989.
On November 22, 1989, a civil complaint was filed in the United
States District Court for the District of Maryland against Respondent,
based on the findings of the 1988 investigation. Following a bench
trial on June 15 and 16, 1992, the court found that Respondent failed
to comply with recordkeeping requirements of the Controlled Substances
Act. On June 23, 1992, the court found Respondent liable for civil
penalties in the amount of $24,000 for violations of 21 U.S.C.
827(a)(3) and 21 U.S.C. 842(a)(5). The court's decision was upheld by
the U.S. Court of Appeals for the Fourth Circuit on February 18, 1993.
In her opinion of June 7, 1994, Judge Bittner noted that the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending application for such registration if he determines that the
continued registration would be inconsistent with the public interest
pursuant to the following factors set forth in 21 U.S.C. 823(f):
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing or conducting research
with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal or local laws
relating to controlled substances.
(5) Such other conduct which may threaten public health and safety.
Judge Bittner stated, as a threshold matter, the Deputy
Administrator may properly rely on any one or a combination of the five
factors set forth in Section 823(f) and give each factor the weight he
deems appropriate. See Henry J. Schwartz, Jr., M.D., 54 FR 16422
(1989). She further stated that all five factors under 21 U.S.C. 823(f)
were relevant in determining whether Respondent's continued
registration would be inconsistent with the public interest.
Judge Bittner held that the evidence provided by the Government
clearly established the shortages in Respondent's accountability of
controlled substances, and that, although Respondent offered various
documents into evidence, none of them offered any plausible or coherent
explanation for the discrepancies found in the investigation. She
further found that the Respondent, throughout the course of his
previous litigation, as well as the instant case, continuously had been
defensive, hostile, and uncooperative and had insisted on clouding the
issues with tangential arguments and rhetorical allegations of
political wrongdoing. Judge Bittner concluded that Respondent currently
was not in a position to properly discharge the obligations of a DEA
registrant, and, therefore, Respondent's continued registration would
not be in the public interest. The administrative law judge recommended
that Respondent's DEA Certificate of Registration be revoked and any
pending applications should be denied.
The Deputy Administrator adopts the opinion and recommended
decision of the administrative law judge in its entirety. The
Respondent's Motion to Remand and Reopen the Record is denied. During
the course of this administrative hearing, Respondent put forth
extensive argument, raised countless objections, and submitted numerous
motions in full support of his cause. The Deputy Administrator does not
find any support for Respondent's contention, as outlined in his
motion, that his medical condition had a deleterious effect on
Respondent's ability to represent himself throughout the course of this
proceeding. This matter has been fully and fairly litigated and there
is no need to relitigate this case.
Based on the foregoing, 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 DEA Certificate of Registration AT2444711, previously issued to
Ellis Turk, M.D. be, and it hereby is, revoked, and that any pending
applications for registration be denied. This orders is effective May
8, 1995.
Dated: March 30, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-8403 Filed 4-5-95; 8:45 am]
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