[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22781]
[[Page Unknown]]
[Federal Register: September 15, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 93-58]
John Stanford Noell, M.D.; Denial of Application
On May 21, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to John Stanford Noell, M.D.
(Respondent), of Charlotte, North Carolina, proposing to deny his
application for a DEA Certificate of Registration, as a practitioner,
under 21 U.S.C. 823(f). The Order to Show Cause alleged that
Respondent's registration would be inconsistent with the public
interest, as that term is used in 21 U.S.C. 823(f). Specifically, the
Order to Show Cause alleged that in June 1962, Respondent surrendered
his Federal Narcotics Drug License for five years based upon his
prescribing of narcotic drugs to persons without a legitimate medical
purpose and not within the usual course of his professional practice;
in 1975, Respondent prescribed various Schedule II through IV
controlled substances to DEA undercover operatives for no legitimate
reason and outside the usual course of his professional practice; on
January 21, 1976, Respondent was convicted in the United States
District Court for the Eastern District of Louisiana, of 16 Felony
counts of illegal distribution of controlled substances, in violation
of 21 U.S.C. 841(a)(1); Respondent's prior DEA Certificate of
Registration, AN3396389, was revoked effective April 29, 1977; between
December 1985 and January 1987, Respondent issued 26 controlled
substance prescriptions as an employee of the Alcohol Rehabilitation
Center which were issued outside the scope of his exemption as an
employee of such facility; Respondent's application for a DEA
Certificate of Registration, dated May 14, 1986, was denied effective
May 25, 1988; in October 1989, Respondent manufactured or allowed
another to manufacture marijuana, a Schedule I controlled substance,
maintained a dwelling for selling marijuana and possessed drug
paraphernalia; and Respondent's application for a DEA Certificate of
Registration, dated November 3, 1988, was denied effective March 21,
1991.
Respondent, through counsel, timely filed a request for 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 procedures, a hearing was held, beginning on December 1,
1993.
On March 17, 1994, Judge Tenney issued his findings of fact,
conclusions of law and recommended ruling, recommending that
Respondent's application for a DEA Certificate of Registration be
granted without restrictions. The Government filed exceptions to the
administrative law judge's findings of fact, conclusions of law and
recommended ruling. Respondent did not file a response to the
Government's exceptions.
On April 22, 1994, Judge Tenney transmitted the record of the
proceedings to the Deputy Administrator. The Deputy Administrator has
considered the record in its entirety and adopts, in part, the findings
of fact and conclusions of law of the administrative law judge, and
rejects the recommended ruling of the administrative law judge.
Pursuant to 21 CFR 1316.67, the Deputy Administrator hereby issues his
final order in this matter based upon his findings of fact and
conclusions of law set forth below.
The Deputy Administrator finds that, in June 1962, Respondent
surrendered his Federal Drug License for a period of five years based
upon his prescribing of narcotic drugs to persons without a legitimate
medical purpose and not within the usual course of his professional
practice. On August 1, 1968, the Louisiana State Board of Medical
Examiners suspended Respondent's medical license for one year. In
February 1971, the Federal Bureau of Narcotics and Dangerous Drugs
conducted an accountability audit of Respondent's stock of dangerous
drugs and found significant, unexplained shortages of many of these
substances. As a result, Respondent's drugs were forfeited.
During 1975, Respondent prescribed a number of controlled
substances to two undercover DEA agents for no legitimate medical
purpose and outside the usual course of Respondent's professional
practice. Based upon these facts, in the United States District Court
for the Eastern District of Louisiana, Respondent pled nolo contendere
to and was convicted of 16 felony courts of violating 21 U.S.C.
841(a)(1).
Thereafter, DEA sought to revoke Respondent's DEA registration,
based upon the facts set forth above. After an evidentiary hearing,
Respondent's prior DEA Certificate of Registration, AN3396389, was
revoked effective April 29, 1977. The revocation was affirmed. Noell v.
Bensinger, 586 F.2d 554 (5th Cir. 1978).
On July 25, 1978, the Louisiana Board of Medical Examiners revoked
Respondent's medical license. Respondent applied for another DEA
registration in the State of North Carolina and in March 1987, DEA
sought to deny such application. The Government not only relied upon
Respondent's past transgressions, it also alleged that Respondent
issued 26 controlled substance prescriptions outside the scope of his
exemption while working as a physician for the Alcoholic Rehabilitation
Center (ARC) in Black Mountain, North Carolina.
Although Respondent had no DEA registration while he worked at ARC
between December 1985 and December 1986, he was allowed to write
controlled substance orders for ARC patients which could be dispensed
only by the pharmacy located at the ARC complex. It was discovered,
however, that Respondent issued 26 prescriptions for individuals who
were not patients and such prescriptions were dispensed by vaious
pharmacies other than the pharmacy located at the ARC complex. Most of
these prescriptions were written for former patients of ARC but some of
these prescriptions were issued to two indviduals who had no
affiliation with ARC whatsoever. Although Respondent testified at the
1987 hearing and at the present hearing that he had no knowledge that
issuing these prescriptions was unlawful, he admitted during cross-
examination that he issued a number of the prescriptions after he was
explicitly told by ARC personnel to stop issuing such prescriptions.
Respondent also testified at the present hearing that he did not recall
that a pharmacy existed at the ARC complex although the evidence
clearly points to a contrary conclusion. As a result of these
proceedings, Respondent's application for a DEA registration was denied
effective May 25, 1988.
Respondent field another application for a DEA registration on
November 3, 1988 and DEA again initiated proceedings to deny the
application. A few weeks before the hearing regarding this application,
Respondent was indicted in the State of North Carolina on one count of
manufacturing a controlled substance, one count of maintaining a
dwelling for selling a controlled substance and one count of possession
of drug paraphernalia. The then-Administrator issued an order denying
this application effective March 21, 1991; however, it was not based
upon the events giving rise to the North Carolina indictment.
In the present proceedings, the Government introducted into
evidence a trial transcript based upon the North Carolina indictment. A
jury acquitted Respondent of all three charges. Nevertheless, the
Deputy Administrator finds that Respondent was in constructive
possession of marijuana based upon the following facts as revealed in
the trial transcript.
On October 23, 1989, two state law enforcement investigators went
to Respondent's residence. Although the venetian blinds on the front
door were closed, the investigators could still see a bright light
shining through the blinds. No one was home at that time, so the
investigators returned the next day. A young man who lived with
Respondent answered the door and gave the investigators permission to
search the residence. On the upper level of the residence were
Respondent's bedroom and make-shift room that contained a pool table
with marijuana plants growing on it. A grow light was shining on the
plants. Located in this area was other paraphernalia, such as an
exhaust fan, bedding rocks and plastic trays. The plastic trays
contained lava or bedding rocks and were located just outside of a
bathroom that was shared between the make-shift room and Respondent's
bedroom.
The windows near the pool table had been painted black although
blinds covered these windows. Also located in the upstairs portion of
the house was a ``roach'' and a book on indoor horticulture located in
plain view in the living room. The marijuana plants growing in the
residence were at least a month old at the time of the search. In a
small study/storage area between Respondent's bedroom and the common
bathroom was a desk. Behind the desk were pots with marijuana growing
in them, several of which had grown to the ceiling.
Respondent had treated the individual who lived with him for
substance abuse sometime in the mid 1980's. This individual began
living with Respondent in 1986. This individual's room was where the
pool table was located.
Although Respondent testified in the current proceedings that he
had never been in the individual's room, when he was interviewed by a
state investigator, he admitted that he had been in the room on a prior
occasion. Although Respondent maintained at the hearing that he had no
idea that the individual was cultivating marijuana and that this
explanation was corroborated by the individual, who claimed that he hid
all the plants and paraphernalia from Respondent, in light of all of
the other circumstances, such an explanation is not credible.
In evaluating whether Respondent's registration by the Drug
Enforcement Administration would be inconsistent with the public
interest, the Deputy Administrator considers the factors enumerated in
21 U.S.C. 823(f). They are as follows:
(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.
In determining whether an applicant's registration would be
inconsistent with the public interest, the Deputy Administrator is not
required to make findings with respect to each of the factors listed
above. Instead, the Deputy Administrator has the discretion to give
each factor the weight he deems appropriate, depending upon the facts
and circumstances of each case. See David E. Trawick, D.D.S., Docket
No. 88-69, 53 FR 5326 (1988).
The Deputy Administrator concurs with the opinion and recommended
ruling of the administrative law judge to the extent that the first
through fourth factors apply but based upon Respondent's lack of candor
and inconsistent explanations disagrees with the administrative law
judge's finding that factor five was not established. The Deputy
Administrator also disagrees with the administrative law judge's
conclusion that Respondent has established sufficient mitigating
factors to justify granting the present application.
Although the Government highlighted Respondent's lack of candor and
inconsistent defenses,the administrative law judge attributed this
behavior to Respondent's past alcohol problem and his fading memory.
During the hearing pertaining to the illegal prescribing of controlled
substances to DEA undercover agents in 1975, Respondent maintained that
these prescriptions were issued for legitimate medical reasons. At the
present hearing, however, Respondent testified that he issued the
prescriptions because he was under the influence of alcohol.
During the present hearing, regarding Respondent's issuing of
controlled substance prescriptions outside the scope of his exemption
while employed at ARC, Respondent testified that he stopped this
practice after he was explicitly told to stop. It was only during
cross-examination that Respondent admitted that he wrote several other
prescriptions after he was instructed to not issue any more. This
testimony was in essence a repeat of what occurred at the 1987 hearing;
Respondent initially testified that he stopped issuing controlled
substance prescriptions when confronted by ARC personnel, but when
pressed during cross-examination, he admitted he issued several
prescriptions after such warning. Since the violations occurred as late
as December of 1986, it is unlikely that the 1987 testimony was due to
a fading memory. Moreover, Respondent's argument that his capacity was
diminished due to his use of alcohol was not at all applicable to the
1986 violations that occurred at ARC or to the constructive possession
of marijuana in 1989, since Respondent stopped using alcohol in the
late 1970's.
The Deputy Administrator finds that Respondent's inconsistent
statements and unfounded explanations, along with his thirty year
history of noncompliance with various controlled substance laws, are
all indicative of his failure to understand the seriousness of his past
violations. Moreover, Respondent has exhibited no remorse for his
illegal activities.
The administrative law judge also discounted the evidence of a 1971
audit of Respondent's stock of controlled substances which revealed
unexplained shortages, because this audit was not explicitly set forth
in the Order to Show Cause. Since these allegations were set forth in
the Government's Prehearing Statement, Respondent received adequate
notice. Therefore, the Deputy Administrator has considered this
evidence.
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 (59 FR 23637), hereby orders
that the application for a DEA Certificate of Registration, submitted
by John Stanford Noell, M.D., be, and it hereby is, denied. This order
is effective September 15, 1994.
Dated: September 9, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-22781 Filed 9-14-94; 8:45 am]
BILLING CODE 4410-09-M
