[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Notices]
[Pages 16821-16823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7016]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 11-2]


Gregory F. Saric, M.D.; Decision and Order

    On November 2, 2010, Administrative Law Judge (ALJ) Timothy D. Wing 
issued the attached recommended decision. Thereafter, Respondent filed 
exceptions to the decision.
    Having reviewed the record in its entirety including the ALJ's 
recommended decision, I have decided to adopt the ALJ's rulings, 
findings of fact, conclusions of law, and recommended Order.
    In his Exceptions, Respondent argues that ``the ALJ's Recommended 
Decision fails to take into account certain exceptions where a 
suspension or stay of revocation has been granted in circumstances 
similar to that of Respondent's.'' Exceptions at 1 (citing Stuart A. 
Bergman, M.D., 70 FR 33193 (2005)). Respondent notes that ``[i]n 
Bergman[,], the ALJ delayed issuing her ruling on the Government's 
Motion for Summary Disposition for over two months to allow for a 
pending state board hearing.'' Id. Respondent states that ``he is 
currently receiving treatment in [an] approved rehabilitation program 
and will likely complete his treatment next month,'' that ``[h]e is in 
full compliance with the Florida Department of Health and the Florida 
Professionals Resource Network and will appear before the Florida Board 
of Medicine to have his license reinstated in early 2011.'' Id. at 1-2.
    Respondent contends that a stay of this Final Order ``will allow 
him time to complete his rehabilitation and have the state suspension 
of his medical license lifted'' and that ``such a stay * * * is within 
the Deputy Assistant Administrator's authority and would not disserve 
the public interest.'' Id. Respondent thus requests that the issuance 
of this Final Order be stayed for ninety (90) days \1\ in order to 
allow him ``time to have the temporary suspension of his Florida 
medical license lifted.'' Id.
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    \1\ While Respondent requested that the Deputy Assistant 
Administrator stay the issuance of the Final Order, given that the 
Deputy Assistant Administrator has no authority to issue the 
Agency's Final Order, I address the request as if it was directed to 
this Office.
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    However, more than ninety days have already passed since Respondent 
filed his Exceptions, and yet Respondent has submitted no evidence to 
this Office establishing that the Florida Board of Medicine has re-
instated his medical license. Nor has Respondent even submitted 
evidence as to when he is scheduled to appear before the Florida Board.
    Moreover, in circumstances similar to those raised by Respondent, 
DEA has repeatedly denied requests to stay the issuance of a final 
order of revocation, noting that ``[u]nder the Controlled Substances 
Act, `a practitioner must be currently authorized to handle controlled 
substances in ``the jurisdiction in which [he] practices'' in order to 
maintain [his] DEA registration.' '' Newcare Home Health Servs., 72 FR 
42126 (2007) (quoting Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007) 
(quoting 21 U.S.C. 802(21))). See also 21 U.S.C. 802(21) (``[t]he term 
`practitioner' means a physician * * * licensed, registered, or 
otherwise permitted, by * * * the jurisdiction in which he practices * 
* * to * * * dispense * * * a controlled substance in the course of 
professional practice''); id. Sec.  823(f) (``The Attorney General 
shall register practitioners * * * if the applicant is authorized to 
dispense * * * controlled substances under the laws of the State in 
which he practices.''); Bourne Pharmacy, 72 FR at 18274 (revoking 
registration; ``Under the CSA, it does not matter whether the 
suspension is for a fixed term or for a duration which has yet to be 
determined because it is continuing pending the outcome of a state 
proceeding. Rather, what matters--as DEA has repeatedly held--is 
whether Respondent is without authority under [state] law to dispense a 
controlled substance.'').
    Thus, Respondent's reliance on Bergman is misplaced.\2\ As I 
further explained in Newcare, ``[i]t is not DEA's policy to stay 
proceedings under section 304 while registrants litigate in other 
forums.'' 72 FR at 42127 (citing Bourne Pharmacy, 72 FR at 18273; 
Oakland Medical Pharmacy, 71 FR 50100 (2006); Kennard Kobrin, M.D., 70 
FR 33199 (2005)). This is so, because in addition to the CSA's 
requirement that a practitioner hold state authority in order to be 
registered, whether Respondent's state license will be re-instated is 
entirely speculative. Nor is there any evidence in the record as to 
when such action may occur.
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    \2\ While in Bergman, the ALJ stayed the proceeding until after 
the registrant's state board hearing, the decision of the Agency, 
which revoked his registration, did not endorse this practice. 
Moreover, the decision expressly noted that ``[d]enial or revocation 
is also appropriate when a state license has been suspended, but 
with the possibility of future reinstatement.'' 70 FR at 33193 
(collecting cases).
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    Therefore, I adopt the ALJ's recommendation that Respondent's 
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) and 0.104, I order that DEA 
Certificate of Registration, BS5109889, issued to Gregory F. Saric, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Gregory F. Saric, M.D., to renew or modify his 
registration, be, and it hereby is, denied. This Order is effective 
April 25, 2011.

    Dated: March 10, 2011.
Michele M. Leonhart,
Administrator.
Larry P. Cote, Esq., for the Government.
George F. Indest, III, Esq., for Respondent.

Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    Administrative Law Judge Timothy D. Wing. On September 9, 2010, the 
Deputy Assistant Administrator, DEA, issued an Order to Show Cause 
(OSC) of

[[Page 16822]]

DEA COR BS5109889, dated September 9, 2010, and served on Respondent on 
September 15, 2010. The OSC provided notice to Respondent of an 
opportunity to show cause as to why the DEA should not revoke 
Respondent's DEA COR BS5109889 pursuant to 21 U.S.C. 824(a)(3), on the 
grounds that Respondent lacks authority to handle controlled substances 
in Florida, the state in which he maintains his DEA registration. On 
October 8, 2010, Respondent, through counsel, in a letter dated October 
5, 2010, timely requested a hearing with the DEA Office of 
Administrative Law Judges (OALJ).
    I issued an Order for Prehearing Statements on October 13, 2010. On 
October 18, 2010, the Government filed a Motion for Summary 
Disposition. On October 18, 2010, I issued an order staying the 
proceedings pending the resolution of the Government's motion and 
directing Respondent to reply to the Government's motion, if at all, by 
October 25, 2010. On October 21, 2010, Respondent, through counsel, 
filed a Motion for Enlargement of Time and Motion to Require the 
Government to Serve Pleadings Via Facsimile. I granted that motion on 
October 21, 2010, and granted Respondent until November 1, 2010, to 
respond to the Government's motion.
    On October 29, 2010, Respondent timely filed his response to the 
Government's Motion for Summary Disposition.

II. The Parties' Contentions

A. The Government

    In support of its motion for summary disposition, the Government 
asserts that on August 24, 2010, the State of Florida Board of Medicine 
(Board) issued a final order indefinitely suspending Respondent's 
Florida Medical license, and that Respondent consequently lacks 
authority to possess, dispense or otherwise handle controlled 
substances in Florida, the jurisdiction in which he maintains his DEA 
registration. The Government notes that in Respondent's request for a 
hearing, Respondent admits that he is currently without a Florida 
medical license. (Gov't Mot. Sum. Disp. at 1 (citing Resp't Hg. Req. 
dated October 5, 2010, at 2.)) The Government contends that such state 
authority is a necessary condition for maintaining a DEA COR and 
therefore asks that I summarily recommend to the Deputy Administrator 
that Respondent's COR be revoked. In support of its motion, the 
Government attaches the Board's final order referred to above, marked 
for identification as Exhibit A.

B. Respondent

    Respondent opposes summary disposition, in sum and in substance 
``because he is in the process of cooperating completely with the 
Florida Board of Medicine, Department of Health, to have its temporary 
suspension of his license lifted and we expect this to happen in the 
near future.'' (Resp't Hg. Req. at 2; see also Resp't Opp'n Sum. Disp. 
at 2 ]] 4-5.) Respondent states that the revocation of his DEA COR 
``would cause him tremendous hardship upon his return to the active 
practice of medicine'' (Resp't Opp'n Sum. Disp. at 2 ] 6) and seeks to 
proceed with the pending administrative proceedings.
    In the alternative, Respondent argues that 21 U.S.C. 824(a)(3) 
allows the suspension of a DEA registration as an alternate remedy to 
revocation, and that ``suspension is a far more appropriate remedy 
given the facts of this matter and the temporary nature of the 
suspension of the Respondent's medical license.'' (Resp't Opp'n Sum. 
Disp. at 1 ]]2-3.) Respondent therefore argues that if summary 
disposition is proper, then I should not recommend revocation but 
instead ``order the immediate suspension of Respondent's DEA 
registration until such time as his Florida medical license has been 
reinstated.'' (Id. at 2 ]8.)

III. Discussion

    At issue is whether Respondent may maintain his DEA COR given that 
Florida has suspended his state license to practice medicine, even 
though the suspension may be temporary.
    Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority 
to engage in the practice of medicine and to handle controlled 
substances is grounds to revoke a practitioner's registration. 
Accordingly, this agency has consistently held that a person may not 
hold a DEA registration if he is without appropriate authority under 
the laws of the state in which he does business. See Scott Sandarg, 
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. 
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 
(DEA 1988).
    Summary disposition in a DEA suspension case is warranted even if 
the period of suspension of a respondent's state medical license is 
temporary, or even if there is the potential for reinstatement of state 
authority because ``revocation is also appropriate when a state license 
had been suspended, but with the possibility of future reinstatement.'' 
Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez, 
M.D., 70 FR 33,206 (DEA 2005).
    It is well-settled that when no question of fact is involved, or 
when the material facts are agreed upon, a plenary, adversarial 
administrative proceeding is not required, under the rationale that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael 
G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D., 
48 FR 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 
(6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 
F.3d 600, 605 (1st Cir. 1994).
    In the instant case, the Government asserts that Respondent's 
Florida medical license is presently suspended. (See Gov't Mot. Sum. 
Disp. at 1.) This allegation is confirmed by Government Exhibit A, as 
well as Respondent's own admission: In predicting that the suspension 
of his Florida medical license will soon be lifted, Respondent by 
necessity concedes the fact of its suspension. (Resp't Hg. Req. dated 
October 5, 2010, at 2; Resp't Opp'n Sum. Disp. at 2 ]4.) I therefore 
find there is no genuine dispute as to any material fact, and that 
substantial evidence shows that Respondent is presently without state 
authority to handle controlled substances in Florida. Consequently, I 
conclude that summary disposition is appropriate.
    Respondent's assertion that losing his DEA COR would cause him 
hardship does not alter this conclusion. Respondent cites no authority, 
and a review of agency precedent reveals none, for the contention that 
potential hardship to a registrant may prevent revocation of a DEA COR 
pursuant to 21 U.S.C. 824(a)(3) where the registrant lacks state 
authority to handle controlled substances.
    In the alternative, Respondent argues that even if revocation is 
warranted, Section 824(a)(3) permits me to recommend suspension instead 
of revocation. The crux of Respondent's argument turns on the 
disjunctive language of Sec.  824(a)(3), which provides that a 
registration ``may be suspended or revoked * * *'' where a registrant 
lacks state authority to handle controlled substances. Id. (emphasis 
supplied). Respondent cites no authority in support of his reading of 
Sec.  824(a)(3).
    Respondent's interpretation of Sec.  824(a)(3) ignores the weight 
of settled, contrary agency precedent that has consistently imposed 
revocation and not suspension on similar facts. See Stuart

[[Page 16823]]

A. Bergman, M.D., 70 FR 33,193 (DEA 2005) (denying respondent's request 
for temporary suspension and granting motion for summary disposition 
where respondent lacked state authority); see also Roy Chi Lung, 74 FR 
20,346, 20,346 (DEA 2009) (``Respondent * * * lack[s] authority to 
handle controlled substances in California * * * Respondent is 
therefore not entitled to maintain his DEA registration.'') (emphasis 
supplied); Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006) 
(``DEA does not have statutory authority under the Controlled 
Substances Act to maintain a registration if the registrant is without 
state authority to handle controlled substances in the state in which 
he practices.''). See generally 21 CFR 1301.01(17) (2010) (defining 
``individual practitioner'' as a person, other than a pharmacist, 
pharmacy or institutional practitioner, possessing state authority to 
dispense a controlled substance in the course of a professional 
practice). Under the circumstances discussed above, I conclude that 
further delay in ruling on the Government's Motion for Summary 
Disposition is not warranted.

Recommended Decision

    I grant the Government's motion for summary disposition and 
recommend that Respondent's DEA COR BS5109889 be revoked and any 
pending applications denied.

    Dated: November 2, 2010
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-7016 Filed 3-24-11; 8:45 am]
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