02-24276. Philip Washburn, M.D., Denial of Application

On November 8, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Philip Washburn, M.D. (Respondent), proposing to deny his pending application for DEA Certificate of Registration pursuant to 21 U.S.C. 824(a)(3). As a basis for the denial of his pending application, the Order to Show Cause alleged that the Respondent is not currently authorized to handle controlled substances in the State of Utah.

By letter dated December 8, 2001, the Respondent acting pro se, requested a hearing in this matter. On January 31, 2002, the Government filed Government's Motion for Summary Disposition, and further requested a stay of the proceedings pending a ruling on its summary disposition motion. On February 4, 2002, the presiding Administrative Law Judge Gail A. Randall (Judge Randall) issued an Order allowing the Respondent to file a response to the Government's Motion no later than February 22, 2002. Subsequently, the Respondent was granted an extension of time until April 8, 2002, to file a response to the Government's Motion. Despite the extension afforded by Judge Randall, the Respondent again did not file a response to the Government's motion.

On April 25, 2002, Judge Randall issued her Ruling, Opinion and Recommended Decision of the Administrative Law Judge (Opinion and Recommended Decision) in which she granted the Government's Motion for Summary Disposition and found that the Respondent lacks authorization to handle controlled substances in the State of Utah. Neither party filed exceptions to her Opinion and Recommended Decision, and of June 4, 2002, Judge Randall transmitted the record of these proceedings to the Office of the Deputy Administrator.

The Deputy Administrator has considered the record in its entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order based upon findings of fact and conclusions of law as hereinafter set forth. The Deputy Administrator adopts, in full, the Ruling, Opinion and Recommended Decision of the Administrative Law Judge.

The Deputy Administrator finds that on June 18, 1996, the Respondent entered into a Stipulation and Order with the Division of Occupational & Professional Licensing, Department of Commerce for the State of Utah (DOPL). Among the terms and conditions entered into by the parties, the Respondent agreed to the surrender of his state controlled substance license. The Respondent further agreed that he would not reapply for a controlled substance license in the future. On August 3, 2001, DEA received from the Respondent an application for DEA Certificate of Registration as a practitioner.

There is no evidence before the Deputy Administrator that the Respondent's state controlled substance license has been restored. In her Opinion and Recommended Decision, Judge Randall found that the Respondent lacks state authority in Utah to handle controlled substances, and is not entitled to a DEA registration for that state. Therefore, the Deputy Administrator similarly finds that the Respondent is not currently authorized to handle controlled substances in the State of Utah.

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 conducts business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Carla Johnson, M.D., 66 FR 52939 (2001); Graham Travers Schuler, M.D., 65 FR 50570 (2000); Demetris A. Green, M.D., 61 FR 60,728 (1996).

In the instant case, the Deputy Administrator finds the Government has presented evidence demonstrating that the Respondent is not authorized to handle controlled substances in the state in which he seeks a DEA registration. The Deputy Administrator also finds that Judge Randall provided the Respondent ample opportunity to refute the Government's contentions, however, the Respondent has provided no evidence or assertions to the contrary. Here, it is clear that the Respondent is not authorized to handle controlled substances in Utah. Since Respondent lacks such authority, he is not entitled to a DEA registration in that state.

In light of the above, Judge Randall properly granted the Government's Motion for Summary Disposition. The parties do not dispute the fact that Respondent is currently without authorization to handle controlled substances in Utah. Therefore, it is well-settled that when no question of material fact is involved, a plenary, adversary administrative proceeding involving evidence and cross-examination of witnesses is not obligatory. See Gilbert Ross, M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).

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 the application for DEA Certificate of Registration submitted by Philip Washburn, M.D. be, and it hereby is, denied. This order is effective October 25, 2002.

Dated: September 12, 2002.

John B. Brown III,

Deputy Administrator.