[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Notices]
[Pages 45739-45740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21694]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-7]
David W. Davis, D.O., Revocation of Registration
On October 7, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to David W. Davis, D.O., of
Houston, Texas (Respondent), proposing to revoke his DEA Certificate of
Registration, AD7600631, and deny any pending applications for
registration as a practitioner. The statutory basis for the Order to
Show Cause was that the continued registration of Respondent was
inconsistent with the public interest as that term is set forth in 21
U.S.C. 823(f) and 824(a)(4).
On November 5, 1993, Respondent, through counsel, requested a
hearing on the issues raised in the order to show cause and the matter
was docketed before Administrative Law Judge Paul A. Tenney. Following
prehearing proceedings, a hearing was held in Houston, Texas on October
20, 1994. The administrative law judge issued his findings of fact,
conclusions of law and recommended ruling on January 17, 1995,
recommending that Respondent's registration be revoked. No exceptions
to the ruling were filed by either party. On February 17, 1995, the
administrative law judge transmitted the record of the proceeding to
the Deputy Administrator of DEA. After careful consideration of the
record in its entirety, the Deputy Administrator enters his final order
in this matter, in accordance with 21 CFR 1316.67, based on findings of
fact and conclusions of law as set forth herein.
The administrative law judge found that DEA initiated an
investigation of Respondent after receiving reports from Houston area
pharmacies that Respondent prescribed large amounts of controlled
substances, particularly the combination of Tylenol No. 4 (a Schedule
III controlled substance) and Valium or Xanax (Schedule IV controlled
substances). DEA additionally was concerned about Respondent's
prescribing practices because he was listed as one of the top 1,000
Medicaid prescribers for the period of January 1991 to February 1992.
The administrative law judge further found that an undercover
officer from the Houston Police Department visited Respondent's office
on three occasions. The undercover officer's conversations with
Respondent were recorded and monitored by a DEA Diversion Investigator.
On the undercover officer's first visit, on May 14, 1991, the
officer asked Respondent for something ``to mellow out'' with,
specifically requesting Tylenol. Respondent asked the undercover
officer if he wanted Xanax or Valium and prescribed 30 dosage units of
Valium (10 mg) and 30 dosage units of Tylenol No. 4. There was no
discussion concerning any pain or anxiety experienced by the undercover
officer.
On June 21, 1991, the undercover officer made a second visit to
Respondent's office and, again, expressed his need for medication to
``chill out, mellow out.'' Although there was no previous discussion
concerning whether the undercover officer had experienced any pain.
Respondent, on this visit, inquired whether the officer still
experienced pain. The undercover officer responded ``No . . . I'm fine
doc.'' Respondent prescribed 30 dosage units of Valium (10 mg) and 30
dosage units of Tylenol No. 4. However, Respondent denied the
undercover officer's request for additional medication and warned him
against developing a drug habit.
On the third visit, on July 30, 1991, the undercover officer
requested Tylenol No. 4 and Valium, and specified that he did not have
any pain. Respondent again prescribed 30 dosage units of Valium (10 mg)
and 30 dosage units of Tylenol No. 4.
The administrative law judge found that each of the three visits
lasted no longer than ten minutes and that during that time the
undercover officer's blood pressure was taken on one visit and his
weight may have been taken. Respondent also examined the officer's
chest with a stethoscope. The undercover officer was in good health at
the time of the visits and exhibited no outward manifestations of a
drug abuser. At no point during any of the three office visits did the
undercover officer complain of any pain.
The administrative law judge found that, subsequent to the
execution of a search warrant, Respondent was indicted on three counts
of prescribing a Schedule III controlled substance to an undercover
officer without a valid medical purpose. On April 23, 1992, Respondent
pled nolo contendere to the first count, and the remaining two counts
were dismissed. An adjudication of guilt was withheld in favor of two
years probation and a $2,000 fine, notwithstanding the fact that the
District Court of Harris County, Texas, found that the evidence
substantiated Respondent's guilt.
Judge Tenney additionally found that DEA obtained copies of
Respondent's controlled substance prescriptions from a local pharmacy
for the year of 1991. These prescriptions revealed that Respondent
frequently prescribed combinations of Valium or Xanax with Tylenol No.
4, and that multiple individuals in the same household would receive
similar prescriptions. DEA also obtained written statements from
several Houston area pharmacists declaring that they refused to fill
prescriptions issued by Respondent.
Pursuant to 21 U.S.C. 824(a)(4), the Deputy Administrator of the
DEA may revoke the registration of a practitioner upon a finding that
the registrant has committed such acts as would render his registration
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f). In determining the public interest, the following factors will
be considered:
(1) The recommendation of the appropriate State licensing board or
disciplinary authority.
(2) The [registrant]'s experience in dispensing, or conducting
research with respect to controlled substances.
(3) The [registrant]'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 with may threaten the public health and
safety. 21 U.S.C. 823(f).
It is well established that these factors are to be considered in
the disjunctive, i.e., the Deputy Administrator may properly rely on
any one or a combination of factors, and give each factor the weight he
deems appropriate in assessing the public interest. See Mukand Lal
Arora, M.D., 60 FR 4447 (1995); Henry J. Schwartz, Jr., M.D., 54 FR
16422 (1989). The administrative law judge found that factors (2)
through (5) were relevant in determining whether to revoke Respondent's
registration, and that the Government
[[Page 45740]]
had met its burden in establishing these factors.
The administrative law judge found that, notwithstanding the
deferred adjudication of guilt, the Government had established a prima
facie case under factor (3). DEA has previously held that a registrant
may be found to have been convicted within the meaning of the
Controlled Substances Act despite the withholding of an adjudication of
guilt. See Clinton D. Nutt, D.O., 55 FR 30992 (1990); Eric A. Baum,
M.D., 53 FR 47272 (1988).
The administrative law judge additionally found that the Government
had proven, by a preponderance of the evidence, that Respondent had
prescribed controlled substances to the undercover officer on three
separate occasions, without a valid medical purpose, thereby
establishing a prima facie case under factors (2), (4) and (5).
The administrative law judge found that the Government failed to
prove that Respondent knew or should have known that the combination of
Tylenol No. 4 and Valium or Xanax was highly abused on the streets or
that the prescriptions issued to individuals other than the undercover
officer were for a non-legitimate purpose. The Government did, however,
establish that the combination controlled substances is abused among
low-income individuals in the Houston area, a group served by
Respondent. The administrative law judge also noted that the ease with
which the undercover officer obtained the combination of drugs warrants
serious concern by DEA.
The Deputy Administrator adopts the findings of fact, conclusions
of law and recommended ruling of the administrative law judge in its
entirety. 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, AD7600631, issued to David W. Davis, D.O.,
be, and it hereby is, revoked, and that any pending applications for
such registration as a practitioner be, and they hereby are, denied.
This order is effective on October 2, 1995.
Dated: August 28, 1995.
Stephen H. Greene,
Deputy Administrator.
FR Doc. 95-21694 Filed 8-31-95; 8:45 am]
BILLING CODE 4410-09-M
