05-11243. Roger A. Rodriguez, M.D., Denial of Registration

On October 8, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Roger A. Rodriguez, M.D. (Respondent) of Peoria, Illinois, notifying him of an opportunity to show cause as to why DEA should not deny his application for a DEA Certificate of Registration as a practitioner pursuant to 21 U.S.C. 823(f).

As a basis for denial, the Order to Show Cause alleged, in substance, that Respondent: (1) Issued prescriptions and dispensed controlled substances to undercover law enforcement personnel on multiple occasions without an adequate physical examination or bona fide medical reason; (2) failed to maintain required controlled substance records; and (3) surrendered a prior DEA registration on June 19, 2003, and then used another practitioner's DEA registration number to issue a prescription for controlled substances.

Respondent, through counsel, timely requested a hearing in this matter. On November 22, 2004, the Presiding Administrative Law Judge Mary Ellen Bittner (Judge Bittner) issued the Government, as well as Respondent, an Order for Prehearing Statements.

In lieu of filing a prehearing statement, the Government filed a Motion for Summary Disposition. In its motion the Government asserted that as of December 20, 2004, Respondent was no longer authorized to handle controlled substances in Illinois, his state of applied-for registration. As a result, further proceedings in this matter were not required. Attached to the Government's motion was a copy of the Illinois Department of Financial and Professional Regulation, Division of Professional Regulation (Illinois Board) Order dated December 20, 2004. That Order temporarily suspended Respondent's Illinois medical license and state Controlled Substances Registration, pending further proceedings before the Illinois Board.

On January 4, 2005, Judge Bittner issued a Memorandum to Counsel providing Respondent until January 18, 2005, to respond to the Government's motion. Respondent then filed a motion on January 14, 2005, seeking an extension of time to file his response to the Government's motion. In it, he claimed there was a hearing scheduled before the Illinois Board on January 18, 2005, which could impact the suspension order. Over the Government's objections, Judge Bittner granted Respondent an extension until February 8, 2005, to file his response.

On February 8, 2005, Respondent filed his Response to the Motion for Summary Disposition. In that response he did not contest that his medical and controlled substance licenses were then-suspended, but asserted he was in negotiations with the Illinois Board that might result in an agreed-to four-month suspension of his medical license. Respondent asked Judge Bittner to stay action on the Government's motion until the state disciplinary proceeding was resolved.

On February 16, 2005, Judge Bittner issued her Opinion and Recommended Decision of the Administrative Law Judge (Opinion and Recommended Decision). As part of her recommended ruling, Judge Bittner denied Respondent's request to stay the proceedings and granted the Government's Motion for Summary Disposition, finding Respondent lacked authorization to handle controlled substances in Illinois, the jurisdiction where he was applying for registration. Judge Bittner recommended that Respondent's application for a DEA Certificate of Registration be denied.

No exceptions were filed by either party to Judge Bittner's Opinion and Recommended Decision and on March 22, 2005, the record of these proceedings was transmitted to the Office of the DEA Deputy Administrator.

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

The Deputy Administrator finds that Respondent previously held DEA Certificate of Registration BR4105032, which he surrendered on June 19, 2003, while a Federal Search Warrant was being executed upon his medical office. Three weeks later, Respondent filed the application for DEA registration which is the subject of these proceedings.

The Deputy Administrator further finds that, effective December 20, 2004, Respondent's license to practice medicine in Illinois and his Illinois Controlled Substances Registration were temporarily suspended, pending further proceedings, after the Illinois Board found “the public interest, safety, and welfare imperatively require emergency action to prevent the continued practice of the Respondent, in that Respondent's actions constitute an immediate danger to the public.” The Illinois Board's action was based primarily on the facts alleged in DEA's Order to Show Cause, coupled with Respondent's violation of an Agreement of Care, Counseling and Treatment, which he had entered into with state authorities.

The Deputy Administrator therefore finds Respondent is currently not licensed to practice medicine in Illinois and lacks authorization to handle controlled substances in that state.

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 Stephen J. Graham, M.D., 69 FR 11,661 (2004), Dominick A. Ricci, M.D., 58 FR 51,104 (1993); Bobby Watts, M.D., 53 FR 11,919 (1988). Denial or revocation is also appropriate when a state license has been suspended, but with the possibility of future reinstatement. See Paramabaloth Edwin, M.D., 69 FR 58,540 (2004); Alton E. Ingram, Jr., M.D., 69 FR 22,562 (2004); Anne Lazar Thorn, M.D., 62 FR 847 (1997).

Here, it is clear Respondent is not currently licensed to handle controlled substances in Illinois, the jurisdiction in which he has applied for a DEA registration. Therefore, he is not entitled to registration in that state.

Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by Roger A. Rodriguez, M.D., be, and it hereby is, denied. This order is effective July 7, 2005.

Dated: May 25, 2005.

Michele M. Leonhart,

Deputy Administrator.