2017-18784. Marcus W. Anderson, M.D.; Decision and Order

On May 12, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Marcus W. Anderson, M.D. (Registrant), of Saint Augustine, Florida. The Show Cause Order proposed the revocation of Registrant's Certificate of Registration on the ground that he lacks “authority to handle controlled substances in the State of Florida, the State in which he is registered with the DEA.” Order to Show Cause, Government Exhibit (GX) 1, at 1 (citing 21 U.S.C. 823(f), 824(a)(3)).

With respect to the Agency's jurisdiction, the Show Cause Order alleged that Registrant is registered as a practitioner in schedules II through V, pursuant to DEA Certificate of Registration FA3645213, at the address of 300 Health Park Boulevard, Suite 1004, Saint Augustine, Florida. Id. The Order also alleged that this registration does not expire until June 30, 2018. Id.

As substantive grounds for the proceeding, the Show Cause Order alleged that Registrant's “authority to prescribe and administer controlled substances in the State of Florida was suspended effective November 28, 2016.” Id. As a result of the alleged suspension, the Order alleged that Registrant lacks “authority to handle controlled substances in the State of Florida.” Id. Thus, based on his lack of authority to dispense controlled substances in Florida, the Order asserted that “the DEA must revoke” his registration. Id. (citing 21 U.S.C. 802(21), 823(f)(1), 824(a)(3)).

The Show Cause Order notified Registrant of his right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedure for electing either option, and the consequence for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). The Show Cause Order also notified Registrant of his right to submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

The Government states that on May 22, 2017, “DEA personally served a copy of the Order to Show Cause on [Registrant] at 206 27th Avenue South, Myrtle Beach, South Carolina.” Government Request for Final Agency Action (RFFA), at 2 (citing GX 4). Specifically, a DEA Diversion Investigator (DI) from the DEA's Jacksonville, Florida, District Office states in a sworn affidavit that he mailed the Show Cause Order to Registrant” via United States Postal Service (“USPS”) Certified Mail” and “addressed the envelope to his last known address ^[1] at 206 27th Avenue South, Myrtle Beach, South Carolina.” GX 4 at 2.^[2] “On or about May 30, 2017,” the DI “accessed the USPS Web site,” “entered the tracking number of the certified mail” that he had sent to the Myrtle Beach address, and stated that “[t]he Web site indicated that the package had been delivered on May 22, 201[7].” Id.^[3]

On June 28, 2017, the Government forwarded its Request for Final Agency Action and an evidentiary record to my Office. Therein, the Government represents that it has received neither a hearing request nor “any other reply from” Registrant regarding the Show Cause Order. RFFA, at 2. Based on the Government's representation and the record, I find that more than 30 days have passed since the Order to Show Cause was served on Registrant, and he has neither requested a hearing nor submitted a written statement in lieu of a hearing. See 21 CFR 1301.43(d). Accordingly, I find that Registrant has waived his right to a hearing or to submit a written statement and issue this Decision and Order based on relevant evidence submitted by the Government. I make the following findings.

Findings of Fact

Registrant is a physician who is registered as a practitioner in schedules II-V pursuant to Certificate of Registration FA3645213, at the address of 300 Health Park Boulevard, Suite 1004, Saint Augustine, Florida. GX 2. The registration does not expire until June 30, 2018. Id.

On November 22, 2016, the Board of Medicine for the State of Florida issued a “Final Order” stating that Registrant's “license to practice medicine in the State of Florida is hereby SUSPENDED until such time as he demonstrates the ability to practice medicine with reasonable skill and safety.” GX 3, at 4-5. The Order also stated that it would take effect upon being filed with the Clerk of the Florida Department of Health, which occurred on November 28, 2016. GX 3, at 3, 5. In light of the passage of time since the effective date of the Order, I have queried the Florida Department of Health Web site regarding the status of Registrant's license, and I take official notice that Registrant's Florida medical license remains suspended as of the date of this decision.^[4] Based on the above, I find that Registrant does not currently have authority under the laws of Florida to dispense controlled substances.

Discussion

Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of Title 21, “upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, DEA has long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a registration. See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (“State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.”).

This rule derives from the text of two provisions of the CSA. First, Congress defined “the term `practitioner' [to] mean[ ] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which [s]he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he engages in professional practice. See, e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR 27616 (1978).

Moreover, because “the controlling question” in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a practitioner's registration “is currently authorized to handle controlled substances in the [S]tate,” Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long held that revocation is warranted even where a practitioner has lost his state authority by virtue of the State's use of summary process and the State has yet to provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is of no consequence that the Florida State Board of Medical Examiners has employed summary process in suspending Registrant's state medical license. What is consequential is that Registrant is no longer currently authorized to dispense controlled substances in Florida, the State in which he is registered. I will therefore order that his registration be revoked.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. FA3645213, issued to Marcus W. Anderson, M.D., be, and it hereby is, revoked. I further order that any pending application of Marcus W. Anderson to renew or modify the above registration, or any pending application of Marcus W. Anderson for any other registration, be, and it hereby is, denied. This Order is effective immediately.^[5]

Dated: August 28, 2017.

Chuck Rosenberg,

Acting Administrator.

Footnotes

1.  Although neither the DI's affidavit nor the Request for Final Agency Action set forth the basis for the statement that this is the Registrant's “last known address,” the record does show that the Florida Board of Medicine and Florida's Assistant General Counsel for the Florida Department of Health both served Registrant at the 206 27th Avenue South, Myrtle Beach, South Carolina address. E.g., GX 3, at 6, 10. In addition, Florida's administrative complaint also states that “Respondent's last known address is 206 27th Avenue South, Myrtle Beach, South Carolina.” Id. at 18.

2.  The DI states in his Affidavit that he mailed the Show Cause Order on “May 19, 2016.” GX 4, at 2. Given that the Show Cause Order was not issued until May 12, 2017, I find that this was a typographic error, and that the DI intended to state that he mailed the Show Cause Order on May 19, 2017.

3.  The DI stated in his affidavit that “I accessed the USPS Web site at www.ups.com.” GX 4, at 2. Although “UPS” is a known acronym for another delivery service, United Parcel Service, I find that this too was a typographic error, and that the DI had intended to state that he accessed the USPS Web site at www.usps.com. For these reasons, I also find that such service was done by mail and not by personal service. In addition, as the DI states that he had checked the USPS Web site on “May 30, 2017,” I find that his statement in the affidavit that the Web site indicated that the package had been delivered on “May 22, 2016,” id., was a typographical error and that the DI intended to state that the Web site indicated delivery on May 22, 2017.

4.  In accordance with the Administrative Procedure Act (APA), an agency “may take official notice of facts at any stage in a proceeding-even in the final decision.” U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and DEA's regulations, Registrant is “entitled on timely request to an opportunity to show to the contrary.” 5 U.S.C. 556(e); see also 21 CFR 1316.59(e). To allow Registrant the opportunity to refute the facts of which I take official notice, Registrant may file a motion for reconsideration within 15 calendar days of the date of service of this Order which shall commence on the date this Order is mailed.

5.  For the same reasons that led the Florida Board of Medicine to summarily suspend Registrant's medical license, I find that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67.