00-21114. William C. Potter, D.V.M.; Revocation of Registration

On November 5, 1999, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to William C. Potter, D.V.M., of Paducah, Kentucky, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration BP2137847, and deny any pending applications for the renewal of such registration pursuant to 21 U.S.C. 823(f), 824(a)(2) and 824(a)(4), for reason that he was convicted of controlled substance related offenses and that his continued registration would be inconsistent with the public interest. The order also notified Dr. Potter that should no request for a hearing be filed within 30 days of receipt of the Order to Show Cause, his hearing right would be deemed waived.

A copy of the Order to Show Cause was mailed to Dr. Potter's register location, and a signed receipt indicates that the order was received by an individual on behalf of Dr. Potter on November 13, 1999. A second copy of the Order to Show Cause was mailed to Dr. Potter at an address in Marion, Illinois. DEA received a receipt signed on December 10, 1999, by an individual on behalf of Dr. Potter. No request for a hearing or any other reply was received by DEA from Dr. Potter or anyone purporting to represent him in this matter. Therefore, the Administrator, finding that (1) 30 days have passed since the receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Dr. Potter is deemed to have waived his hearing right. After considering material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43 (d) and (e) and 1301.46.

The Administrator finds that Dr. Potter is a registered veterinarian in Kentucky. In November 1991, investigators from the Kentucky Department of Human Resources (The Department) conducted an inspection of Dr. Potter's records. The inspection revealed that while Dr. Potter purchased various Schedule II controlled substances, he had no records of dispensing or administration. In addition, no inventory was taken for Schedule III and IV controlled substances, and there were no purchase records for these substances.

In June 1993, the Department conducted another inspection of Dr. Potter's veterinary practice. An audit was conducted of several controlled substances. Since Dr. Potter still had not conducted an inventory of these substances a zero beginning balance was used to conduct the audit. The audit revealed shortages, meaning that Dr. Potter could not account for all of the substances for which he was responsible. Further, because a zero beginning balance was used, the actual shortages were most likely greater than those revealed by the audit because Dr. Potter was not held responsible for what he had on hand at the start of the audit period. This inspection also revealed that Dr. Potter failed to maintain DEA official order forms, and failed to maintain Schedule II records separate from Schedule III through V records.

In May 1997, DEA conducted an investigation of Dr. Potter that revealed that between 1993 and 1997, he distributed large quantities of anabolic steroids, Schedule II controlled substances, to numerous individuals outside the scope of his veterinary practice and for no legitimate medical purpose.

Subsequently, in November 1998, Dr. Potter was indicted in the United States District Court for the Western District of Kentucky and charged with 432 felony counts of the unlawful distribution of controlled substances in violation of 21 U.S.C. 841(a)(1). Following a jury trial, Dr. Potter was found guilty of all 432 counts, and he was sentenced on May 16, 1999, to serve 21 months imprisonment and pay a fine and court costs.

Pursuant to 21 U.S.C. 824(a), “[a] registration pursuant to section 823 of this title to * * * dispense a controlled substance * * * may be suspended or revoked by the Attorney General upon a finding that the registrant—* * * (2) has been convicted of a felony under this subchapter or subchapter II of this chapter or any other law of the United States, or of any State, relating to any substance defined in this subchapter as a controlled substance. * * *”

In addition, pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Administrator may revoke a DEA Certificate of Registration and deny any pending application for renewal of such registration, if he determined that the continued registration would be inconsistent with the public interest. Section 823(f) requires that the following factors be considered in determining the public interest:

(1) The recommendation of the appropriate State licensing board of 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 a registration should be revoked or an application for registration denied. See Henry J. Schwarz, M.D., 54 FR 16,422 (1989).

It is undisputed that Dr. Potter was convicted in May 1999, in the United States District Court for the Western District of Kentucky of 432 felony counts relating to controlled substances. therefore, grounds exist to revoke Dr. Potter's DEA registration under 21 U.S.C. 824(a)(2).

Next the Administrator considers whether Dr. Potter's continued registration would be inconsistent with the public interest. As to factor one, there is no evidence in the investigative file of any action being taken against Dr. Potter's veterinary license or his ability to handle controlled substances in the Commonwealth of Kentucky. Therefore, it appears that Dr. Potter has an unrestricted state license.

Factors two and four, Dr. Potter's experience in handling controlled substances and his compliance with controlled substance laws, are clearly relevant in determining the public interest. Inspections in 1991 and 1993 revealed violations of controlled substance laws and regulations. Dr. Potter failed to maintain complete and accurate records as required by 21 U.S.C. 827 and 21 CFR 1304.21, to take and maintain an initial and a biennial inventory as required by 21 U.S.C. 827 and 21 CFR 1304.11, to maintain DEA official order forms reflecting the purchase of controlled substances a required by 21 U.S.C. 828 and 21 CFR 1305.09, to maintain Schedule II records separately from Schedule III through V records as required by 21 CFR 1304.04(f)(1) and (g), and he issued prescriptions to obtain controlled substances for office use in violation of 21 CFR 1306.04(b). These are all also violations of state law. Further from 1993 to 1997, Dr. Potter distributed anabolic steriods to a number of individuals for no legitimate medical purpose and outside the scope of professional practice in violation of 21 U.S.C. 841(a)(1).

As to factor three, it is undisputed that Dr. Potter was convicted of 432 felony offenses relating to his unlawful distribution of anabolic steriods.

Regarding factor five, there is no evidence in the investigation file of any other conduct which may threaten the public health and safety.

The Administrator concludes that Dr. Potter's continued registration would be inconsistent with the public interest based on his controlled substance record keeping violations, his unlawful distribution of anabolic steriods, and his conviction of 432 felony offenses. No evidence of explanation or mitigating circumstances was offered by Dr. Potter, or anyone purporting to represent him.

Accordingly, the 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), hereby orders that DEA Certificate of Registration BP2137847, previously issued to William C. Potter, D.V.M., be, and it hereby is, revoked. The Administrator further orders that any pending applications for renewal of such registration, be, and they hereby are, denied. This order is effective September 18, 2000.

Dated: August 3, 2000.

Donnie R. Marshall,

Administrator.