02-12485. Gary Phillip Venuto, M.D., Revocation of Registration

On July 6, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Gary Phillip Venuto, M.D., (Respondent) notifying him of an opportunity to show cause as to why the DEA should not revoke his DEA Certificate of Registration, AV2928022, and deny any pending applications for renewal, pursuant to 21 U.S.C. 823(f) and 824(a)(4). On August 6, 2001, Respondent filed a request for a hearing in this matter.

On August 29, 2001, the Government filed a Motion for Summary Disposition, asserting that Respondent is not currently authorized to handle controlled substances in Utah, the state in which he practices. Specifically, the Government contends that, on April 23, 2001, Respondent entered into a Stipulation and Order with the Utah Division of Occupational and Professional Licensing, Department of Commerce (Division), pursuant to which the Division revoked Respondent's controlled substance license. The Government argues that DEA cannot register or maintain a registration of a practitioner who is not duly authorized to handle controlled substances in the state in which he or she practices.

Respondent argues that pursuant to the Division's Order, which placed his medical license on probation for five years, “although (Respondent) is forbidden from direct contact with controlled substances, (he) is still a licensed practitioner who has authority to make decisions about his patients' controlled and addictive substance intake.” Respondent argues there is no case law on the issue regarding whether a physician who has authority to make decisions about treating patients with controlled substances may retain his DEA registration.

On October 3, 2001, Administrative law Judge Mary Ellen Bittner (Judge Bittner) issued her Opinion and Recommended Decision granting the Government's Motion for Summary Disposition. The matter was thereafter transmitted to the Deputy Administrator for final decision on November 19, 2001.

The 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 Deputy Administrator adopts in full the Opinion and Recommended Decision of the Administrative Law Judge.

The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he or she practices. See 21 USC 802(21), 823(f), and 824(a)(3). This prerequisite has been consistently upheld in prior DEA cases. See Graham Travers Schuler, M.D., 65 FR 50,570 (2000); Romeo J. Perez, M.D., 62 FR 16,193 (1997); Demetris A. Green, M.D., 61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993).

In the instant case, the Deputy Administrator finds the Government has presented evidence demonstrating that the Respondent is not authorized to handle controlled substances in Utah, the State in which he practices, according to the address listed on his DEA Certificate of Registration. The Deputy Administrator concurs with Judge Bittner's finding that the Division's Stipulation and Order prohibited Respondent from exercising independent judgment in determining whether patients should be treated with controlled substances, and further that Respondent was prohibited from handling controlled substances. The Stipulation and Order specifically states that Respondent “shall not be involved in any way regarding the patient's treatment regarding controlled substances or addictive medication.” Thus, there is no genuine issue of material fact concerning Respondent's lack of authorization to handle controlled substances in the State of Utah.

The Deputy Administrator concurs with Judge Bittner's finding that it is well settled that when there is no question of material fact involved, there is not need for a plenary, administrative hearing. Congress did not intend for administrative agencies to perform meaningless tasks. See Michael G. Dolin, M.D., 65 FR 5,661 (2000); Jesus R. Juarez, M.D., 62 FR 14,945 (1997); see also Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).

Accordingly, the 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 DEA Certificate of Registration AV2928022, previously issued to Gary Philip Venuto, M.D., be, and it hereby is, revoked; and any pending applications for renewal or modification of said Certificate be, and hereby are, denied. This is effective June 19, 2002.

Dated: May 6, 2002.

John B. Brown, III,

Deputy Administrator.