00-21005. Alfred R. Brown, D.D.S.; Denial of Application

On October 8, 1999, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Alfred R. Brown, D.D.S. (Respondent) of Memphis, Tennessee, notifying him of an opportunity to show cause as to why DEA should not deny his application for a DEA Certificate of Registration pursuant to 21 U.S.C. 823(f) for reason that his registration would be inconsistent with the public interest.

By letter dated November 9, 1999, Respondent file a request for a hearing and the matter was docketed before Administrative Law Judge Mary Ellen Bittner. On November 15, 1999, Judge Bittner issued an Order for Prehearing Statements, and on November 23, 1999, the Government filed its prehearing statement. Respondent was given until December 27, 1999, to file his prehearing statement. In her Order for Prehearing Statements, the Administrative Law Judge cautioned Respondent “that failure to file timely a prehearing statement as directed above may be considered a waiver of hearing and an implied withdrawal of a request for hearing.”

Respondent did not file a prehearing statement. As a result, on January 6, 2000, Judge Bittner issued an Order Terminating Proceedings, finding that because Respondent did not file a prehearing statement he is deemed to have waived his opportunity for a hearing. Since Respondent has waived his right to a hearing, the Administrator hereby enters his final order without a hearing and based upon the investigative file pursuant to 21 CFR 1301.43(e) and 1301.46.

The Administrator finds that Respondent previously possessed DEA Certificate of Registration AB5661980. This registration expired without being renewed and was subsequently retired in March 1987.

The Administrator further finds that on February 6, 1990, the Tennessee Department of Health and Environment, Board of Dentistry (Board) issued an Order of Summary Suspension which suspended Respondent's license to practice dentistry. The Board found that between October 1987 and February 1990, Respondent prescribed, administered, dispensed, and acquired controlled substances when he was not authorized to do so in violation of 21 U.S.C. 841(a)(7). In addition, during this same period, Respondent indiscriminately prescribed controlled substances to patients in amounts in excess of those amounts medically necessary, prescribed controlled substances to known drug abusers, acquired controlled substances by prescription for office use, and failed to keep proper dental records, all in violation of State and Federal laws.

Subsequently, in an Agreed Order filed on May 22, 1990, the Board limited the suspension of Respondent's license to a period of six months, ordered that he surrender his DEA registration, and placed his license on probation for five years. Thereafter, on three separate occasions during 1990 and 1992, the Board found that Respondent was not in compliance with the terms of his probation.

On January 22, 1996, pursuant to another Agreed Order, the Board again suspended Respondent's dental license for a period of thirty days, based on his failure to refund proceeds from an insurance claim for services he did not provide.

Evidence in the record indicates that it was not until June 11, 1998, that the Board issued an Order allowing Respondent to seek a DEA registration.

Pursuant to 21 U.S.C. 823(f), the Administrator may deny an application for a DEA Certificate of Registration if he determines that the registration would be inconsistent with the public interest. Section 823(f) requires that the following factors be considered:

(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 the public health and safety.

These factors are to be considered in the disjunctive; the Administrator may rely on any one or a combination of factors and may give each factor the weight he deems appropriate in determining whether an application should be denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16,422 (1989).

As to factor one, documentation in the file indicates that Respondent's license to practice dentistry was summarily suspended in 1990. Then effective May 22, 1990, Respondent and the Board entered into an Agreed Order whereby Respondent's license was suspended for six months followed by five years probation, he was fined $1,500.00, and he was precluded from seeking reinstatement of his DEA registration for at least five years. Respondent entered into another Agreed Order with the Board in January 1996, which suspended his license again for a 30 day period. As of 1998, Respondent's license was reinstated and he received permission from the Board to seek reinstatement of his DEA registration.

Regarding factors two and four, Respondent's experience in handling controlled substances and his compliance with applicable laws relating to controlled substances, the Administrator has considered what evidence is available to him. The Board orders found in the investigative file indicate that between October 1987 and February 1990, Respondent prescribed, administered, dispensed, and acquired controlled substances when he was not authorized to do so in violation of 21 U.S.C. 841(a)(1). In addition, during this same period, Respondent indiscriminately prescribed controlled substances to patients in amounts in excess of those amounts medically necessary, prescribed controlled substances to known drug abusers, acquired controlled substances by prescription for office use, and failed to keep proper dental records, all in violation of State and Federal laws.

The Administrator notes that there is no evidence in the investigative file of the underlying facts which led to the Board's findings. However, it is also noted that Respondent has not submitted any contradictory evidence.

As to factors three and five, there is no evidence in the investigative file that Respondent has been convicted of any controlled substance related offense nor of any other conduct by Respondent that may threaten the public health and safety.

The Administrator concludes that while there is no evidence of the underling facts which led to the Board's actions, it is clear that Respondent's mishandling of controlled substances was serious enough to warrant the suspension of his dental license. Respondent has not presented any mitigating evidence. Therefore, the Administrator concludes that Respondent's registration would be inconsistent with the public interest.

Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 0.100(b), hereby orders that the application for registration submitted by Alfred R. Brown, D.D.S., be, and it hereby is, denied. This order is effective October 17, 2000.

Dated: August 3, 2000.

Donnie R. Marshall,

Administrator.