E6-10781. William G. Hamilton, Jr., M.D.; Revocation of Registration

Procedural History

On July 23, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to William G. Hamilton, M.D. (Respondent), which proposed to revoke his DEA Certificate of Registration AH8873588, as a practitioner, see 21 U.S.C. 824(a)(3), and to deny any pending applications for renewal or modification. See 21 U.S.C. 823(f). As grounds for the proceeding, the Show Cause Order alleged that on March 3, 2004, the Medical Board of California had suspended Respondent's state medical license and that Respondent was without state authorization to handle controlled substances in that state. The Show Cause Order notified Dr. Hamilton that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.

On July 28, 2004, the Show Cause Order was sent by certified mail to Respondent at his home address in San Diego, California. However, the letter went unclaimed. On November 23, 2004, the Show Cause Order was sent via regular mail to Respondent at the same address, and on December 13, 2004, a DEA Diversion Investigator personally served him with the Order. At the time of personal service, Respondent acknowledged that he had received the Show Cause Order that was mailed to him on November 23, 2004. Subsequently, DEA has not received a request for a hearing or any other reply from Respondent or anyone purporting to represent him in this matter.

Therefore, finding that: (1) Thirty days have passed since the delivery of the Order To Show Cause to Respondent; and that (2) no request for a hearing has been received, I conclude that Respondent has waived his hearing right. See James E. Thomas, M.D., 70 FR 3,564 (2005); Steven A. Barnes, M.D., 69 FR 51,474 (2004); David W. Linder, 67 FR 12,579 (2002). After considering material from the investigative file in this matter, this final order is entered without a hearing pursuant to 21 CFR 1301.43(d) & (e), and § 1301.46.

Discussion

I find that Respondent is currently registered with DEA as a practitioner authorized to handle controlled substances in Schedules III through V under Certificate of Registration AH8873588, with an expiration date of October 31, 2005. Respondent's registration, however, has remained in effect during these proceedings.

According to information in the investigative file, on March 3, 2004, a California State Administrative Law Judge (ALJ) issued an Order, which immediately suspended Respondent's Physician and Surgeon's Certificate. The suspension was based, in part, on the ALJ's finding that Respondent was unable to safely practice medicine due to a mental or physical condition. Since then, I have become aware of further proceedings involving Respondent's state medical license.

It has long been recognized that “[a]gencies may take official notice of facts at any stage in a proceeding—even in the final decision.” U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). Therefore, pursuant to 5 U.S.C. 556(e) and 21 CFR 1316.59(e), I hereby take official notice of the fact that on May 12, 2005, the State of California revoked Respondent's medical license.^[1]

Respondent has submitted no evidence showing that the State's revocation order has been stayed or vacated. Therefore, I find that Respondent is currently not authorized to practice medicine in the State of California, and that he is also without authorization to handle controlled substances in that state.

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 practices medicine. See 21 U.S.C. 802(21), 823(f), & 824(a)(3). This prerequisite has been consistently applied. See Richard J. Clement, M.D., 68 FR 12,103 (2003); Dominick A. Ricci, M.D., 58 FR 51,104 (1993); Bobby Watts, M.D., 53 FR 11,919 (1988). Therefore, Respondent is not entitled to maintain his DEA registration.

Order

Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, I hereby order that DEA Certificate of Registration, AH8873588, issued to William G. Hamilton, Jr., M.D., be, and it hereby is, revoked. I further order that any pending applications for renewal or modification of the aforementioned registration be, and they hereby are, denied. This order is effective August 10, 2006.

Dated: June 12, 2006.

Michele M. Leonhart,

Deputy Administrator.

Footnotes

1.  In accordance with the Administrative Procedure Act and DEA's regulations, Respondent is “entitled on timely request, to an opportunity to show to the contrary.” 5 U.S.C. 556(e). See also 21 CFR 1316.59(e). DEA's regulations contain no provision for requesting reconsideration of a final order. See Robert A. Leslie, M.D., 60 FR 14004, 14005 (1995). To allow Respondent the opportunity to refute the facts of which I am taking official notice, publication of this final order shall be withheld for a fifteen-day period, which shall begin on the date of service by placing this order in the mail.