[Federal Register Volume 61, Number 102 (Friday, May 24, 1996)]
[Notices]
[Pages 26207-26208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13050]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 95-32]
Ying-Ming Chang, M.D., Revocation of Registration
On February 23, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Ying-Ming Chang, M.D., (Respondent), of San
Diego, California, notifying him of an opportunity to show cause as to
why DEA should not revoke his DEA Certificate of Registration,
BC0495122, under 21 U.S.C. 824(a)(4) and deny any pending applications
for registration as a practitioner under 21 U.S.C. 823(f), for the
reason that his continued registration was inconsistent with the public
interest.
The Respondent filed a timely request for a hearing, and the matter
was docketed before Administrative Law Judge Mary Ellen Bittner. After
a lengthy delay at the request of the Respondent, the hearing was
scheduled to commence on March 12, 1996. However, prior to that date,
the Government filed a Motion for Summary Disposition, noting that the
Respondent's license to practice medicine had been revoked by the
Division of Medical Quality, Medical Board of California, Department of
Consumer Affairs, State of California (Board) by final order effective
October 9, 1995, a copy of which was attached to the motion. The
Respondent filed a response on October 27, 1995, noting that he had
challenged the Board's final order in a pending Writ of Mandamus action
in the Superior Court of California, San Diego, California. The
Respondent then argued that the Board's final order should not be the
basis for granting the motion for summary disposition. The Respondent
also argued that an issue of fact remained for determination; whether
the Board's
[[Page 26208]]
decision was proper. Therefore, he concluded summary disposition of
this matter would not be appropriate. However, the Respondent did not
deny that his state Physician's and Surgeon's Certificate had been
revoked, or that he was, therefore, without authority to hand
controlled substances in the State of California.
On November 15, 1995, Judge Bittner issued her Opinion and
Recommended Decision, (1) finding that the Board had revoked the
Respondent's Physician's and Surgeon's Certificate and that, therefore,
the Respondent was without authority to handle controlled substances in
California, (2) granting the Government's Motion for Summary
Disposition, and (3) recommending that the Respondent's DEA Certificate
of Registration be revoked. On December 18, 1995, the Respondent filed
a Petition for Reconsideration of Recommendation of Administrative Law
Judge to Revoke Respondent's DEA Certificate of Registration, and by
ruling dated December 21, 1995, Judge Bittner denied his petition. On
January 11, 1996, Judge Bittner transmitted the record of these
proceedings and her opinion to the Deputy Administrator.
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, and his adoption is in no
manner diminished by any recitation of facts, issues and conclusions
herein, or of any failure to mention a matter of fact or law.
The Deputy Administrator finds that the parties do not dispute that
(1) the Board revoked the Respondent's Physician's and Surgeon's
Certificate by an order effective October 9, 1995, and (2)
consequently, the Respondent is without authority to handle controlled
substances in the State of California.
The Drug Enforcement Administration does not have statutory
authority under the Controlled Substances Act to 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), 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 FR 59,847 (1992); Roy E. Hardman, M.D., 57
FR 49,195 (1992); Myong S. Yi, M.D., 54 FR 30,618 (1989); Bobby Watts,
M.D., 53 FR 11,919 (1988).
Further, the Deputy Administrator finds that Judge Bittner properly
granted the Government's motion for summary disposition. Here, the
parties did not dispute that the Respondent was unauthorized to handle
controlled substances in California.Therefore, it is well-settled that
when no question of fact is involved, a plenary, adversary
administrative proceeding involving evidence and cross-examination of
witnesses is not obligatory. See Dominick A. Ricci, M.D., 58 FR at
51,104 (finding it well-settled that where there is no question of
material fact involved, a plenary, adversarial administrative hearing
was not required.); see also Phillip E. Kirk, M.D., 48 FR 32,887
(1983), aff'd sub nom Kirk v. McMullen, 749 F. 2d 297 (6th Cir. 1984);
Alfred Tennyson Smurthwaite, M.D., 43 FR 11,873 (1978); NLRB v.
International Association of Bridge, Structural and Ornamental
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
Also, the Deputy Administrator finds that Judge Bittner
appropriately denied the Respondent's petition for reconsideration. The
Respondent asserted that, since he was licensed to practice medicine in
Hawaii, the ``issue of whether [his] DEA registration should be revoked
is not moot,'' and that the hearing in this matter should proceed as
scheduled. However, as Judge Bittner noted, the Order to Show Cause
proposed to revoke the Respondent's registration to handle controlled
substances at his California place of business, and thus, the status of
the Respondent's licenses in other jurisdictions has no bearing on the
pending matter. On that basis, Judge Bittner denied the Respondent's
petition, and the Deputy Administrator concurs with her decision.
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 DEA
Certificate of Registration BC0495122, issued to Ying-Ming Chang, M.D.,
be, and it hereby is, revoked, and any application to renew this
registration is hereby denied. This order is effective June 24, 1996.
Dated: May 17, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-13050 Filed 5-23-96; 8:45 am]
BILLING CODE 4410-09-M
