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19 During the interview, Applicant also denied 

that he had ever issued prescriptions to patients to 

have them obtain drugs for himself. There is, 

however, no evidence that this statement was false. 

influencing, the decisionmaking body to 

which it is addressed.’ ’’ United States v. 

Gaudin, 515 U.S. 506, 509 (1995) 

(quoting Kungys v. United States, 485 

U.S. 759, 770 (1988)). The Court has 

further explained: 

Deciding whether a statement is ‘‘material’’ 

requires the determination of at least two 

subsidiary questions: (a) ‘‘What statement 

was made?’’ and (b) ‘‘what decision was the 

agency trying to make?’’ The ultimate 

question: (c) ‘‘Whether the statement was 

material to the decision,’’ requires applying 

the legal standard of materiality (quoted 

above) to these historical facts. 

Gaudin, 515 U.S. at 512. The ‘‘evidence 

must be clear, unequivocal, and 

convincing.’’ Kungys, 485 U.S. at 772. 

While the DI’s affidavit establishes the 

falsity of Applicant’s statements, the 

Government does not explain what 

decision the statement had ‘‘the natural 

tendency’’ to influence or ‘‘was capable 

of influencing.’’ Gaudin, 515 U.S. at 509 

(quoting Kungys, 485 U.S. at 770). 

Among the possibilities are whether to 

grant or deny his application for 

registration, to pursue criminal charges 

against him, or to conduct further 

investigation to determine whether he 

had committed additional crimes or 

whether individuals (other than naı ̈ve 

patients 19) were involved in supplying 

him with fentanyl. However, because 

the DI’s affidavit does not offer any 

explanation as to why the false 

statement was ‘‘capable of influencing’’ 

any of the possible agency decisions, let 

alone identify which decision(s) the 

false statement was capable of 

influencing, I decline to address 

whether the statement was material. 

In any event, given the extensive 

evidence under factors two and four 

establishing that Respondent knowingly 

wrote hundreds of controlled substance 

prescriptions even though he had 

surrendered his registration, that he 

wrote prescriptions within weeks of 

having surrendered his registration, that 

he wrote prescriptions even after being 

told to stop and that he could not do so 

until he obtained a new registration, as 

well as the evidence that he abused 

fentanyl, it is clear that issuing him a 

new registration would ‘‘be inconsistent 

with the public interest.’’ 21 U.S.C. 

823(f). Accordingly, Respondent’s 

application will be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as by 28 CFR 

0.100(b) & 0.104, I order that the 

application of Glenn D. Krieger for a 

DEA Certificate of Registration as a 

practitioner be, and it hereby is, denied. 

This Order is effective immediately. 

Dated: April 1, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–8546 Filed 4–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–2] 

Alan H. Olefsky, M.D.; Denial of 

Application 

On August 22, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Alan H. Olefsky, M.D. 

(Respondent), of Chicago, Illinois. The 

Show Cause Order proposed the denial 

of Respondent’s application for a DEA 

Certificate of Registration as a 

practitioner, ‘‘for reason that 

[Respondent’s] registration would be 

inconsistent with the public interest, as 

that term is used in 21 U.S.C. 823(f).’’ 

ALJ Ex. 1, at 1 (citing 21 U.S.C. 823(f) 

& 824(a)(4)). 

The Show Cause Order specifically 

alleged that in 1989, Respondent issued 

‘‘two false prescriptions for [the] 

controlled substances [Percocet and 

Halcion (triazolam), schedule II and 

schedule IV drugs, respectively] in the 

names of others and attempted to have 

them filled at a pharmacy in Florida.’’ 

Id. The Show Cause Order alleged that 

on January 9, 1992, and after a hearing, 

the Administrator revoked Respondent’s 

then-existing DEA registration having 

found the allegations proved and that 

Respondent had lied during the hearing 

regarding ‘‘the circumstances 

surrounding [his] misconduct.’’ Id. 

Next, the Show Cause Order alleged 

that ‘‘[f]rom at least December 2002, 

through October 2004,’’ Respondent 

‘‘again issued false prescriptions for 

various controlled substances in the 

names of [M.G., V.G., and T.C.]’’ and 

that ‘‘[t]hese prescriptions were for 

[Respondent’s] personal use.’’ Id. The 

Show Cause Order then alleged that on 

May 25, 2005, ‘‘DEA issued an Order 

proposing to revoke [Respondent’s] DEA 

registration * * * based upon [his] 

issuing false prescriptions,’’ and that on 

July 20, 2007, the Deputy Administrator 

issued a final order denying 

Respondent’s application (his 

registration having expired), having 

found that he ‘‘had issued the 

prescriptions for [his] personal use and 

that such conduct violated federal law.’’ 

Id. at 1–2 (citing 21 U.S.C. 843(a)(3)). 

Finally, the Order alleged that 

Respondent has ‘‘also exhibited a 

pattern of abusing alcohol’’ that includes 

a June 2004 arrest for driving under the 

influence and a January 2007 

hospitalization ‘‘with a blood alcohol 

level of .327,’’ and that his ‘‘history of 

abusing controlled substances and 

alcohol shows that granting [his] 

application for a DEA registration would 

be inconsistent with the public interest.’’ 

Id. at 2. 

By letter of October 6, 2008, counsel 

for Respondent requested a hearing on 

the allegations, ALJ Ex. 2, and the 

matter was placed on the docket of the 

Agency’s Administrative Law Judges 

(ALJs). Following prehearing 

procedures, an ALJ conducted a hearing 

on June 2–3, 2009, in Chicago, Illinois. 

Both parties called witnesses to testify 

and introduced documentary evidence. 

After the hearing, both parties filed 

proposed findings of fact, conclusions of 

law, and argument. 

On February 22, 2010, the ALJ issued 

her Opinion and Recommended Ruling, 

Findings of Fact, Conclusions of Law 

and Decision (also ALJ or 

Recommended Decision). Therein, the 

ALJ considered the evidence pertinent 

to the five public interest factors and 

concluded that granting Respondent’s 

application ‘‘would be inconsistent with 

the public interest.’’ ALJ at 43. 

As to the first factor—the 

recommendation of the appropriate 

State licensing board—the ALJ noted 

that Respondent’s State licenses as a 

physician and as a handler of controlled 

substances ‘‘remain on indefinite 

probation and are subject to the 

restrictions stated in the May 22, 2007, 

consent order.’’ ALJ at 35. Noting that 

Respondent is ‘‘currently authorized to 

handle controlled substances in 

Illinois,’’ the ALJ concluded that ‘‘this 

factor weighs in favor of a finding that 

Respondent’s registration would not be 

inconsistent with the public interest.’’ 

Id. at 35–36. However, because ‘‘state 

licensure is a necessary but not 

sufficient condition for DEA 

registration,’’ the ALJ concluded that 

‘‘this factor is not dispositive.’’ Id. at 36. 

As to the second and fourth factors— 

Respondent’s experience in handling 

controlled substances and his 

compliance with applicable Federal, 

State or local laws—the ALJ first noted 

that Respondent testified ‘‘in the instant 

proceeding that the explanation he 

offered in the 1991 hearing’’ about the 

Halcion and Percocet prescriptions ‘‘was 

true.’’ Id. The ALJ did not, however, find 

his ‘‘explanation credible.’’ Id. 


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1For reasons explained throughout this decision, 

I reject the various arguments raised by Respondent 

in his exceptions. 

2Based on the Illinois proceeding, Medical 

Licensing Board of Indiana brought a proceeding 

against Respondent; the Indiana Board placed 

Respondent’s license on ‘‘indefinite probation.’’ RX 

6, at 1 & 5. 

Next, the ALJ found that ‘‘on 

numerous occasions between 2002 and 

2004, Respondent issued prescriptions 

for alprazolam in other persons’ names, 

had the prescriptions filled, and kept 

the drugs for his own use.’’ Id. While the 

ALJ recognized that both Respondent 

and a psychiatrist who was involved in 

his treatment maintained that his ‘‘abuse 

of alprazolam was limited to the manner 

of acquiring it,’’ she nonetheless 

concluded that his ‘‘fraudulent 

prescriptions for alprazolam indicate his 

willingness to misuse a DEA 

registration.’’ Id. 

The ALJ thus found that Respondent’s 

conduct in both 1989 and from 2002 to 

2004 violated 21 U.S.C. 843(a)(3), which 

prohibits acquiring a controlled 

substance by misrepresentation or fraud. 

Id. at 38. She also found that the 2002 

to 2004 alprazolam prescriptions 

violated 21 U.S.C. 829 and 21 CFR 

1306.04, because Respondent was not 

‘‘acting in the usual course of 

professional practice’’ when he 

‘‘appropriated to his own use the drugs 

he ostensibly prescribed to others.’’ Id. 

Moreover, the ALJ found that 

Respondent violated 21 U.S.C. 841(a)(1) 

in that Respondent distributed 

controlled substances without a valid 

prescription. Id. Finally, the ALJ 

concluded that ‘‘[b]ecause Respondent 

issued controlled substance 

‘prescriptions’ knowing that the person 

other than the one named on the 

prescription was the intended recipient 

of the controlled substances,’’ he 

violated 21 CFR 1306.05, which requires 

that a prescription ‘‘bear the full name 

and address of the patient.’’ Id. The ALJ 

thus concluded that ‘‘Respondent’s 

handling of controlled substances and 

lack of compliance with law and 

regulations weigh[] in favor of a finding 

that his registration would not be 

consistent with the public interest.’’ Id. 

at 39. 

As to the third factor—Respondent’s 

conviction record for offenses related to 

the distribution or dispensing of 

controlled substances—the ALJ noted 

that in 1989, Respondent had been 

charged with two state law counts of 

obtaining controlled substances by fraud 

but that ‘‘no conviction resulted from 

those proceedings.’’ Id. The ALJ likewise 

noted that Respondent had not been 

convicted of a controlled substance 

offense based on his conduct during the 

2002 to 2004 period. Id. The ALJ thus 

concluded that ‘‘this factor, although not 

dispositive, weighs against a finding 

that Respondent’s registration would be 

inconsistent with the public interest.’’ 

Id. 

With respect to the fifth factor—other 

conduct which may threaten the public 

health and safety—the ALJ reviewed 

Respondent’s history of arrests for 

various offenses, his history of alcohol 

abuse, as well as the evidence 

pertaining to his recovery and 

acceptance of responsibility. Id. at 39– 

41. The ALJ specifically found that 

‘‘Respondent’s criminal history advises 

against granting him a registration.’’ Id. 

at 41. Based on his having 

misrepresented to a law firm that he 

held an unrestricted medical license 

when he did not and his testimony that 

he could not recall the circumstances 

surrounding various arrests which 

appeared on his criminal record, the 

ALJ also found that Respondent had 

‘‘willing[ly] misrepresent[ed] the truth,’’ 

and that this ‘‘extends beyond his 

handling of controlled substances.’’ Id. 

While the ALJ further noted that 

‘‘Respondent has demonstrated that he 

is committed to his recovery from 

alcoholism [and] has taken steps to 

ensure that he remains sober,’’ she 

nonetheless found that ‘‘his past 

behavior poses serious questions as to 

whether he is capable of handling 

controlled substances responsibly and is 

willing and able to adhere to all 

applicable laws and regulations by 

which DEA registrants must abide.’’ Id. 

at 42. Also noting that Respondent ‘‘has 

[not] fully addressed other behavioral 

issues, nor does he seem fully to 

recognize the extent of his misconduct 

in falsifying prescriptions,’’ id. at 43, the 

ALJ thus concluded that this factor 

supports ‘‘a finding that granting 

Respondent’s application would not be 

consistent with the public interest’’ and 

recommended ‘‘that his pending 

application for registration be denied.’’ 

Id. 

Thereafter, Respondent filed 

Exceptions to the ALJ’s Recommended 

Decision. On March 23, 2010, the ALJ 

forwarded the record to me for final 

agency action. 

Having considered the record as a 

whole, I agree with the ALJ’s ultimate 

conclusion that granting Respondent’s 

application ‘‘would be inconsistent with 

the public interest’’ and her 

recommendation that his application be 

denied.1 As the ultimate fact finder, 5 

U.S.C. 557(b), I make the following 

findings. 

Findings 

Respondent is a physician licensed to 

practice medicine in Illinois and 

Indiana. RX 1, at 5 & 7. Respondent, 

however, has been no stranger to 

disciplinary proceedings brought by 

both this Agency and state licensing 

authorities. This matter is the third time 

he has been the subject of a DEA 

proceeding. See GX 3 (2007 Final Order 

denying Application), GX 4 (1992 Final 

Order revoking registration). Moreover, 

he has been subject to multiple 

proceedings brought by the Illinois 

Department of Financial and 

Professional Regulation including a 

1995 proceeding (which was based on 

the first DEA proceeding), GX 1, at 7; a 

2005 proceeding in which the State 

imposed a suspension because his 

‘‘actions constitute[d] an immediate 

danger to the public,’’ GX 10, at 1, a 

March 2007 suspension based on 

Respondent’s having violated a 

November 2006 consent order which 

had restored his medical license, GX 12, 

at 1–2, GX 13; and a December 2007 

consent order which, while restoring his 

Illinois Physician and Surgeon License 

and Controlled Substance License, 

placed him on probation for a minimum 

of five years.2 GX 1, at 9–10, 13. 

On February 24, 2005, Respondent 

submitted an untimely renewal 

application, his previous registration 

having expired on December 31, 2004. 

GX 3, at 3. Thereafter, based on 

Respondent’s loss of his state authority 

and evidence that he had obtained 

controlled substances by calling in 

fraudulent prescriptions, the Deputy 

Assistant Administrator issued an Order 

to Show Cause to him which proposed 

the denial of any pending applications. 

Id. at 2. Respondent did not timely 

request a hearing. Id. at 2–3. While 

Respondent’s application was treated as 

an application for a new registration, I 

found the allegations proved and issued 

a Final Order denying Respondent’s 

application for a DEA registration. Id. at 

9. On January 21, 2008, Respondent 

submitted a new application for 

registration; it is this application which 

is the subject of this proceeding. GX 1. 

The 1989 Incident 

On January 4, 1989, Respondent was 

arrested at Huntington Drug Depot, a 

pharmacy in Fort Lauderdale, Florida, 

after he presented two forged 

prescriptions for controlled substances: 

one for 60 dosage units of Percocet, a 

schedule II narcotic controlled 

substance which contains oxycodone, 

the other for 30 dosage units of Halcion 

.25 mg. (triazolam), a schedule IV 

controlled substance. GX 4, at 1. Both 

prescriptions were written on preprinted forms of an HMO named 


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3At the time of his arrest, Respondent was 

wearing sunglasses and a hat which was ‘‘pulled 

down over his head.’’ GX 14, at 4. When the police 

attempted to interview him at the station, 

Respondent refused to take off his sunglasses 

claiming he had glaucoma; he also initially refused 

to take off his hat claiming he was bald. Id. at 6. 

However, when Respondent eventually took off his 

hat for a brief moment, he was not bald. Id. 

4Respondent was charged with attempting to 

obtain a controlled substance by fraud in violation 

of state statute, but the charges were dismissed 

because ‘‘the information was filed incorrectly as to 

the charge.’’ GX 14, at 6–7. 

5 DEA granted Respondent a new registration in 

July 1993. 

6The informant also reported that Respondent 

had been arrested for DUI on June 22, 2004 and was 

driving ‘‘on a suspended license while under the 

influence of alcohol.’’ GX 5, at 6. At the hearing, 

Respondent admitted that he had been convicted of 

the DUI charge. Tr. 95. According to the report of 

a psychiatrist who evaluated him for the IDPFR, 

Respondent told her that the police officer thought 

he was drunk because he had difficulty walking due 

to a sprained ankle. Tr. 116–17. At the hearing, 

Continued 

‘‘Health America’’; the prescriptions 

were dated January 3, 1989, listed the 

patient as ‘‘Chris Pulin,’’ and bore the 

DEA registration number and purported 

signature of Evan K. Newman, M.D. Id.; 

see also GX 14, at 3–4. Respondent had 

previously worked at Health America 

but had resigned his position in 

November 1988. Id. at 3. 

Upon reviewing the prescriptions, a 

pharmacist became suspicious because 

they were ‘‘too legible,’’ and having been 

written on the HMO’s forms, could have 

been filled for a fraction of the price at 

one of the HMO’s participating 

pharmacies. GX 14, at 4–5. His 

suspicions aroused, the pharmacist 

called Dr. Newman, who told him that 

he did not have a patient named ‘‘Chris 

Pulin’’ and that he did not recall issuing 

the prescriptions. Id. at 5 n.6. The 

pharmacist then called the police; upon 

their arrival, both the owner of the store 

and his son, who was working as a 

pharmacy clerk, identified Respondent 

as the person who had presented the 

prescriptions and Respondent was 

arrested. Id. at 4–5. Moreover, a 

subsequent ‘‘search of Broward County 

and Fort Lauderdale records failed to 

disclose any record regarding a Chris 

Pulin.’’ Id. at 9. 

Respondent was then taken to the 

police station and interviewed. GX 4, at 

1. There, he refused to give his name or 

date of birth, stated that the incident 

could jeopardize his life and career, and 

insisted that someone else had 

presented the prescriptions and that the 

police had arrested the wrong 

person.3 Id. Respondent had no 

response when the officer told him that 

both pharmacists had identified him as 

the individual who had presented the 

prescriptions.4 GX 15, at 20. 

At his hearing, Respondent testified 

that he had received a phone call from 

a Ms. Schwartz, whom he did not know, 

and that she had asked him if he could 

help out an elderly friend of hers who 

had sustained a fall and lacked health 

insurance. GX 4, at 2; GX 15, at 100, 

148. Respondent claimed that he told 

Ms. Schwartz to take her friend to 

Health America, where he could be 

examined. GX 4, at 2; GX 15, at 101. 

According to Respondent, several 

days later, Ms. Schwartz called again 

stating that her friend had received a 

couple of prescriptions and asked 

Respondent if he could ‘‘have them 

filled at a reduced price.’’ GX 15, at 102. 

In his testimony, Respondent claimed 

that later that day, an envelope was 

slipped under his door which contained 

a note with Chris Pulin’s name and 

address and the two prescriptions. Id. at 

103–04. In his testimony, Respondent 

maintained that he went to the 

pharmacy intending to have the 

prescriptions filled and handed the 

piece of paper and the prescriptions to 

the pharmacist who was working as the 

clerk. Id. at 108. Respondent testified 

that he did not intentionally or 

knowingly take the two prescriptions for 

Halcion and Percocet to the pharmacy 

knowing that they were forged. Id. at 

113. In the instant matter, he also 

testified that he had never taken 

Halcion, Percocet, or generic 

oxycodone. Tr. 18. 

In her 1991 Recommended Ruling, the 

ALJ found that Respondent was ‘‘a less 

than candid witness’’ and was not 

‘‘generally credible.’’ GX 14, at 12. She 

further explained that ‘‘Respondent’s 

explanation of his conduct is most 

charitably described as inherently 

implausible,’’ as a physician agreeing ‘‘to 

obtain a highly abused medication such 

as Percocet for a total stranger is * * * 

totally at odds with any rational notion 

of professional responsibility.’’ Id. 

On January 2, 1992, the Honorable 

Robert C. Bonner, DEA Administrator, 

himself no stranger to tall tales having 

previously served as a United States 

District Judge, adopted the ALJ’s 

findings of fact and legal conclusions in 

their entirety and revoked Respondent’s 

registration. GX 4, at 3 (57 FR 928 

(1992)). The Administrator expressly 

found ‘‘that Respondent refuses to 

accept responsibility for his actions and 

does not even acknowledge the 

criminality of his behavior.’’ Id. at 2. The 

Administrator further found that 

‘‘Respondent’s version of the incident is 

simply unworthy of belief.’’ Id. He then 

noted that, although the state charges 

against Respondent had been dismissed, 

‘‘Respondent’s conduct demonstrates an 

absolute disregard for Federal and state 

law and nothing presented during 

Respondent’s case persuades the 

Administrator that the Respondent is 

now willing to carefully abide by the 

laws and regulations relating to 

controlled substances.’’ 5 Id. at 3. 

On both his recent application for a 

new DEA registration and in his 

testimony in the instant proceeding, 

Respondent maintained that his 1991 

story was true. For example, on his 

application, Respondent wrote: ‘‘From 

February 10, 1992 until February 10, 

1993, my DEA registration was revoked 

based on allegations that in 1989, in 

Florida, I attempted to fill two 

prescriptions, which were allegedly 

forged to try to help a person who did 

not have insurance.’’ GX 1, at 7 

(emphasis added). 

Moreover, in his testimony in the 

instant proceeding, Respondent told the 

exact same story of having been called 

‘‘out of the blue’’ by Ms. Schwartz, 

whom he did not know and had never 

spoken to before, and was asked by her 

to help her elderly friend who had 

fallen down some stairs; how several 

days later, Ms. Schwartz had called him 

back and stated that her friend had 

obtained two prescriptions and asked if 

he would get them filled for her friend; 

how the prescriptions were slipped 

under his door; and how he had not 

forged the prescriptions and that the 

only thing he had done wrong was to 

‘‘not look[] more into the authenticity of 

the prescriptions and doing what I did.’’ 

Tr. 25–32. While the Administrator’s 

(and ALJ’s) findings that Respondent’s 

story was not credible are res judicata, 

the ALJ explained that she did not find 

his story any more credible now than 

she had in 1991. ALJ at 36. 

The 2002—2004 Incidents 

In October 2004, an Investigator with 

the Illinois Department of Financial and 

Professional Regulation (IDFPR), 

Division of Professional Regulation 

(DPR), received an anonymous 

complaint, which alleged that 

Respondent was calling in to 

pharmacies false prescriptions for 

Xanax (alprazolam), Dilaudid 

(hydromorphone) and Viagra (a noncontrolled prescription drug), under the 

names of M.G., V.G., and T.C., and that 

Respondent was going to the 

pharmacies and picking up the 

prescriptions for his personal use. GX 5, 

at 1. The informant further stated that 

Respondent paid cash for the drugs to 

avoid them being traced to him and 

identified three Chicago pharmacies 

where the prescriptions were being 

filled.6 Id. The informant also reported 


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however, Respondent acknowledged that he had 

failed a breathalyzer test. Id. at 117. 

7The IPHP is ‘‘a statewide program sponsored by 

Advocate Medical Group, the Illinois State Medical 

Inter-Insurance Exchange, and other health 

professional organizations.’’ RX 1, part 3. It 

‘‘provides support and advocacy for health care 

professionals who have difficulties with stress 

management, substance abuse, medical or 

psychiatric illness or other issues that may impact 

the professional’s health, wellbeing, or ability to 

practice his or her profession.’’ Id. 

8Respondent testified that he relapsed because he 

didn’t ‘‘have the sponsor set up’’ and did not attend 

Alcoholics Anonymous (AA) meetings regularly; 

the relapse occurred while he was nursing his 

terminally ill mother and experiencing ‘‘licensing 

issues’’ and ‘‘a sense of isolation living in Des 

Plaines.’’ Tr. 86–87. 

9Following the DPR’s March 30, 2007 order 

which imposed a second suspension of 

Respondent’s medical license, the second DEA 

proceeding, which had been held in abeyance (after 

the DPR’s November 2006 order restoring 

Respondent’s medical license) was forwarded to me 

for final agency action. GX 3A, at 3. While I found 

that Respondent did not have a current registration, 

I found that he had an application pending before 

the Agency. Id. I denied the application for two 

independent reasons: (1) That Respondent lacked 

authority under Illinois law to dispense controlled 

substances, which is an essential prerequisite for 

obtaining a DEA registration, and (2) that 

Respondent had violated Federal law by ‘‘repeatedly 

issu[ing] false prescriptions’’ for alprazolam and 

Dilaudid, which he then filled and ‘‘personally 

abused.’’ See 72 FR at 42128 (citing 21 U.S.C. 

802(21), 823(f), and 843(a)(3)). 

that Respondent had been arrested for 

DUI on June 22, 2004 and was driving 

‘‘on a suspended license while under the 

influence of alcohol.’’ Id. at 6. 

Upon receipt of this information, the 

DPR Investigator and a DEA Diversion 

Investigator (DI) went to the pharmacies 

and obtained at each of them, a profile 

which listed the prescriptions 

Respondent had written in the names of 

M.G., V.G. and T.C. GX 7. Subsequently, 

the DPR Investigator prepared a 

spreadsheet of the prescriptions. Id. The 

Investigators confirmed the informant’s 

report that Respondent had issued 

prescriptions for alprazolam .5 mg. in 

the names of T.C., M.G., and V.G. 

More specifically, Respondent issued 

alprazolam prescriptions in V.G.’s name 

for 60 tablets on April 4, May 17, and 

June 8, 2004. Id. 4. He issued 

prescriptions in T.C.’s name for 30 

tablets on April 21 and May 7, 2004, as 

well as 60 tablets on September 8 and 

October 7, 2004. Id. at 3. Finally, he 

issued prescriptions in M.G.’s name for 

60 tablets on July 8 and July 28, 2004. 

Id. at 4. Thus, between April 4 and 

October 7, 2004, Respondent called in 

prescriptions for a total of 480 tablets of 

alprazolam. 

Moreover, in the order Respondent 

entered into with the Medical Licensing 

Board of Indiana, Respondent admitted 

that ‘‘from December 2002 to October 

2004, [he] prescribed Xanax, Dilaudid, 

and Viagra using other individuals’ 

names’’ and he ‘‘subsequently admitted 

that he consumed these drugs himself.’’ 

RX 6, at 2. 

Thereafter, the Chief of Medical 

Prosecutions for the IDFPR filed a 

complaint and a petition for temporary 

suspension of his medical license on the 

ground that Respondent’s continued 

practice of medicine was ‘‘a danger to 

the public interest, safety and welfare.’’ 

GX 9, at 1. The petition was supported 

by the affidavit of Larry G. McLain, 

M.D., Chief Medical Coordinator of the 

IDFPR, which stated that Respondent 

had ‘‘repeatedly issued false 

prescriptions for Xanax, Dilaudid and 

Viagra,’’ that Respondent ‘‘call[ed] in 

these prescriptions in the names of 

[M.G., V.G., and T.C.],’’ and that he paid 

cash for the drugs which he was 

obtaining for ‘‘personal use.’’ GX 9, at 5. 

Dr. McClain further noted Respondent’s 

June 2004 DUI arrest and that he had an 

extensive criminal history. 

On February 18, 2005, the DPR’s 

Acting Director ordered that 

Respondent’s medical license be 

suspended pending a hearing. GX 10. 

Thereafter, on May 25, 2005, the Deputy 

Assistant Administrator of the DEA 

Office of Diversion Control issued an 

Order to Show Cause to Respondent 

which proposed the revocation of his 

registration (and the denial of any 

renewal application) based on his 

having issued false controlled-substance 

prescriptions and his lack of authority 

under State law to dispense controlled 

substances, the latter being a 

requirement for holding a registration 

under Federal law. GX 3, at 2. 

Regarding the events of this time 

period, Respondent testified that his 

drinking first became problematic 

around 2003 to 2004, when he switched 

from primarily drinking beer to drinking 

more wine and vodka. Tr. 10. 

Respondent stated that his drinking 

increased at this stage in conjunction 

with marital troubles, id. at 13, and that 

at the height of his abuse of alcohol, he 

consumed ‘‘[m]aybe a 750 ml bottle [of 

vodka] a [sic] week, maybe threequarters of that.’’ Id. at 12. 

In the spring of 2006, Respondent 

underwent treatment at Lutheran 

General Hospital. Tr. 86. In June, 

Respondent completed inpatient 

treatment and signed an Aftercare 

Agreement with Illinois Professionals 

Health Program (IPHP).7 Id. at 124, 137. 

In September 2006, Respondent 

entered into a consent order with the 

IDFPR. The order, which became 

effective on November 21, 2006, 

restored Respondent’s medical license 

and placed him on ‘‘Indefinite 

Probation.’’ Alan H. Olefsky, M.D., 72 FR 

42127 (2007) (GX 3B, at 1). Among the 

conditions imposed by the order were 

that Respondent comply with the terms 

of an Aftercare Agreement and that he 

abstain from the use of alcohol and 

‘‘mood altering and/or psychoactive 

drugs,’’ except as prescribed by another 

physician. Id. at 42128. In the 

meantime, Respondent had been 

‘‘discharged from Caduceus on [October 

5, 2006] due to missing five consecutive 

group sessions,’’ had ‘‘discontinued 

individual therapy with’’ a psychologist, 

and had missed five urine drug screens 

between September 20 and December 

13, 2006. RX Group 11, at 1. 

Within one month of the State’s 

restoration of his license, Respondent 

resumed his drinking.8 Tr. 14. In 

January 2007, Respondent was 

hospitalized with a blood alcohol 

content of .327. GX 12, at 2. On or about 

March 30, 2007, the IDFPR again 

petitioned for and obtained a temporary 

suspension of Respondent’s medical 

license.9 GXs 3A, at 3; 12 & 13. 

Following his relapse, Respondent 

entered a treatment program for 

impaired professionals run by 

Resurrection Behavioral Health. GX 1, at 

18. On April 10, 2007, Respondent 

‘‘successfully completed treatment,’’ id., 

and the following day, Respondent 

entered into a second Aftercare 

Agreement. Id. at 25, 27. The Aftercare 

Agreement, which was in effect for a 

period of twenty-four months, required 

him to enroll in his ‘‘state Professional’s 

Assistance Program,’’ undergo random 

toxicology screens, attend Caduceus 

Aftercare meetings following 

completion of his long-term treatment 

program, attend AA meetings, and 

abstain from the ‘‘use of all moodaltering chemicals, except as prescribed 

by [his] primary or treating physicians.’’ 

Id. at 25–26. 

On April 10, 2007, Respondent also 

entered into a consent order with the 

IDFPR, which the latter approved on 

May 22, 2007. GX 1, at 16. The Consent 

Order ‘‘indefinitely suspended’’ 

Respondent’s medical license ‘‘for a 

minimum of 6 months’’ from the March 

30, 2007 suspension order but allowed 

him to regain his license by providing 

proof to an informal conference of the 

Medical Disciplinary Board that he had 

‘‘successfully participated in a substance 

abuse treatment program for a minimum 

of 6 months.’’ Id. at 13. 

The Consent Order also provided that 

upon the restoration of his medical 

license, Respondent would be placed on 

probation for a minimum of five years 

subject to various conditions. Id. at 13– 

14. These conditions include that he 


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10 In addition to the 1989 Florida and 2004 DUI 

arrests, the Government also introduced records 

showing he had been arrested in May 1993 in 

Chicago for criminal damage to property; in March 

1994 in Galena, Illinois for aggravated battery and 

criminal damage to property; in December 1995 for 

aggravated assault with a firearm; and in both 

December 1995 and November 2001 in Chicago for 

violation of a protective order. GX 6, at 1–2, 8–9; 

Tr. 45–46. 

With the exception of the 1989 incident, the 2004 

arrest for DUI, and one of the charges of having 

violated a protective order (which Respondent 

admitted having been convicted of, but then 

proceeded to minimize his culpability for, by 

claiming he had never been served with the 

protective order), the Government did not produce 

evidence apart from the arrest records and 

testimony based on the arrest records establishing 

that Respondent had committed any of these other 

offenses. As the Supreme Court has long noted, 

‘‘[t]he mere fact that a man has been arrested has 

very little, if any, probative value in showing that 

he has engaged in any misconduct. An arrest shows 

nothing more than that someone probably 

suspected the person apprehended of an offense.’’ 

Schware v. Board of Bar Exam’rs, 353 U.S. 232, 241 

(1957). Accordingly, I do not consider any of the 

arrests, by themselves, to establish that Respondent 

committed the underlying conduct. 

11While Respondent actually wrote the 

prescriptions during slightly more than a six month 

period, I assume that the October 7, 2004 

prescription would have lasted for several weeks. 

12As noted above, the psychiatrist’s report noted 

that Respondent ‘‘denied use of any other 

medications.’’ RX 12, at 3. Yet in the Indiana 

Consent Order, he stipulated that he had also 

obtained Dilaudid and that he had ‘‘consumed these 

drugs himself.’’ RX 6, at 2. 

The psychiatrist did, however, diagnose 

Respondent as having adult antisocial behavior. Id. 

at 6. While she concluded that Respondent’s 

‘‘behavior may be deemed inappropriate, illegal, or 

dangerous by the IDFPR,’’ and that the IDFPR could 

‘‘revoke his medical license or place restrictions 

upon it,’’ she concluded that his behavior was not 

‘‘due to a mental disorder.’’ Id. Dr. Angres, a 

psychiatrist and addiction specialist who was 

involved in treating Respondent, explained that 

while he engaged in antisocial behavior, this 

happened ‘‘historically when [he was] under the 

influence’’ and that such behavior ‘‘often occur[s] 

with alcoholism.’’ Tr. 202. 

comply with his Aftercare Agreement; 

that he abstain from use of alcohol and 

mind altering/psychoactive drugs unless 

prescribed to him by another physician; 

that he submit to random urine screens; 

that he not prescribe any controlled 

substances to himself, his family or 

friends; that his primary care physician 

file quarterly reports with the IDFPR 

regarding his ‘‘condition, prognosis, and 

any medication prescribed’’; that he be 

‘‘prohibited from ordering or maintain 

inventories of any controlled 

substance’’; that he ‘‘be prohibited from 

administering or writing prescriptions 

for controlled substances outside of his 

worksite’’; and that, if practicing as a 

physician, he do so where he was not 

‘‘the only physician actively involved in 

the practice of medicine.’’ Id. On 

December 5, 2007, the IDFPR restored 

Respondent’s license to active status 

and placed it on probation subject to the 

conditions set forth in the May 2007 

Consent Order.10 GX 1, at 9–10. 

Respondent’s Evidence Regarding the 

Post-2002 Incidents 

At the hearing, Respondent testified 

that while he was an alcoholic he had 

never been addicted to controlled 

substances and denied that he had ever 

taken a controlled substance for other 

than a legitimate medical purpose. Tr. 

16. While Respondent acknowledged 

that he had written between 20 and 50 

prescriptions in other persons’ names in 

order to obtain alprazolam, id. at 18 & 

21, and that he had not obtained the 

drug ‘‘correctly,’’ id. at 36, he maintained 

that he was not abusing the drug but 

‘‘was using it to sleep’’ as he ‘‘was not 

taking it in the amount over the 

recommended dose to use it for sleep 

purposes.’’ Id. Respondent also claimed 

that he had never had a problem with 

the abuse of controlled substances. Id. 

Subsequently, Respondent testified 

that he took the alprazolam only when 

he had ‘‘trouble sleeping’’ after having 

worked the night shift in the emergency 

room. Id. at 100. Respondent further 

explained that there ‘‘were just four or 

five shifts in the emergency room for a 

month. And it wasn’t all the time, it was 

occasionally.’’ Id. When further 

questioned as to how many tablets he 

took a day, Respondent testified that ‘‘I 

would take a half of one in the morning 

when I needed to fall asleep.’’ Id. at 101. 

Continuing, Respondent contended 

that ‘‘the amounts were common. A lot 

of the people * * * the person who 

evaluated me in terms of this case * * * 

found that the amount over the period 

of time was not a matter of abuse, in 

terms of the number of * * * Xanax.’’ 

Id. Respondent then noted that a 

psychiatrist who had evaluated him for 

the IDFPR had ‘‘made a comment * * * 

that considering the amount of 

medications in my evaluation I did not 

suffer from any substance abuse 

problem. I’m just reflecting off of that 

report. They substantiated that, this 

psychiatrist in that department.’’ Id. at 

102. See also id. at 105 (‘‘Her conclusion 

* * * was that I did not suffer from a 

drug problem, an addiction to drugs 

based on her interviewing me and the 

Xanax that was prescribed.’’). 

As part of his case, Respondent 

submitted a copy of the psychiatric 

evaluation done on him for the IDPFR. 

RX 12. With respect to his use of 

substances, the report noted that 

Respondent ‘‘stated that over the last 

one and one half years, his consumption 

[of alcohol] increased to one or two 

ounces every few days. He reported 

occasional use of alprazolam 0.25 mg for 

sleep for the past two to three years. He 

denied use of any other medications or 

illicit substances.’’ Id. at 3. While the 

psychiatrist also noted that she had 

reviewed pharmacy records (which 

showed that between April 4 and 

October 7, 2004, Respondent had issued 

alprazolam prescriptions totaling 180 

tablets to T.C., 120 tablets to M.G., and 

180 tablets to V.G.), she noted that the 

prescriptions ‘‘would have provided 

approximately 1 mg. daily of the 

substances during the time it was 

prescribed. Use of several milligrams at 

one time, especially if used with 

alcohol, could be dangerous and 

constitute abusive use. However, this 

examiner does not know who used the 

substance or how it was used.’’ Id. at 6. 

Noting that no records had been 

submitted to her substantiating the 

claim that Respondent had also 

prescribed and used Dilaudid, the 

psychiatrist concluded that ‘‘[a]side 

from the allegations of [his] ex-wife, 

there is no clear evidence that 

[Respondent] demonstrated abuse of or 

dependence upon alcohol, prescription 

medications, or illicit substances.’’ Id. 

Respondent did not call the 

psychiatrist to testify and I decline to 

give weight to her report (which 

apparently was based largely on her 

interview of him) for several reasons. 

First, she concluded that Respondent 

was not even abusing alcohol, yet even 

Respondent acknowledges that he is an 

alcoholic and was so at the time in 

question. Tr. 111–16; RX Group 11, at 1. 

Second, with respect to whether he 

was abusing alprazolam, while it is true 

that the total amount of alprazolam 

prescriptions noted above (480 tablets 

obtained between April 4 and October 7, 

2004) would provide slightly more than 

1 milligram per day, Respondent, during 

both his evaluation by the psychiatrist 

and in his testimony, claimed that he 

took only .25 mg. of alprazolam and that 

he did so only occasionally. RX 12, at 

3; Tr. 100–01. Were Respondent’s story 

true that he took half of a tablet five 

times a month to sleep following the 

night shift, over the approximately six 

to seven-month period in which he 

wrote the prescriptions,11 he would 

have required no more than eighteen 

tablets in total, an amount 1/26th of the 

quantity he obtained. Notably, in her 

report, the psychiatrist did not even 

acknowledge the glaring inconsistency 

between the amount of alprazolam 

Respondent had obtained and his 

claimed rate of usage.12

As for his evidence of rehabilitation, 

Respondent introduced into evidence 

various letters written by Dr. Daniel H. 

Angres, Director, Resurrection 

Behavioral Health Addiction Services 

Division, Rush University Medical 


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13Respondent submitted three letters written by 

Dr. Angres, all of which indicated that he had been 

in compliance with his after care program. RXs 1, 

part 6; 3 and 4. Respondent also submitted two 

letters from Mr. Romano, both of which stated that 

his ‘‘substance use disorder is in sustained, full 

remission which indicates to us that his petition to 

restore his DEA license is appropriate at this time.’’ 

RX 2 (letter of April 8, 2008), RX 11, at 2 (letter of 

April 10, 2009). 

Respondent also submitted letters supporting his 

application from an individual attesting to his work 

for Mobile Doctors, see RX 5, as well as from the 

social services directors at two nursing/ 

rehabilitation centers. RXs 9 and 10. 

14 Dr. Angres testified that Resurrection 

Addiction Services Behavioral Health runs a day 

hospital program and that most patients live in an 

‘‘independent living setting that [it] supervise[s].’’ 

Id. at 189. The day hospital program is a ‘‘form of 

intensive outpatient treatment’’ and is followed by 

an ‘‘intensive outpatient step-down program,’’ 

which averages seven weeks in length and is then 

followed by a 20-month to 2-year period of ‘‘weekly 

aftercare monitoring.’’ Id. The Caduceus Aftercare 

Program in which Respondent was participating 

typically lasts for two years, with facilitated weekly 

monitoring groups and random urine sampling by 

IPHP. Id. at 191. Aftercare in general usually lasts 

five years, during which time there is an 

expectation of continued 12-step/AA recovery and 

‘‘appropriate sponsorship.’’ Id. at 192. 

15While Dr. Angres testified that he attended 

some of the Caduceus aftercare groups and would 

have patients come in at different intervals, he did 

not specify the frequency with which he was seeing 

Respondent. Tr. 200–01. 

Center, and Russell Romano, Jr., 

Respondent’s case manager at IPHP.13

Respondent also called both Dr. Angres 

and Mr. Romano to testify. 

At the time of the hearing, Dr. Angres, 

who is board-certified in Psychiatry 

Neurology and Addiction Medicine, 

served as Medical Director, Resurrection 

Behavioral Health, Addiction Services 

Division. Tr. 179, 181, 187. Respondent 

was Dr. Angres’ patient in the ‘‘partial 

step-down outpatient program,’’14 and 

during this portion of Respondent’s 

treatment would see him ‘‘several times 

a week’’ both in a group setting and 

individually.15 Id. at 200. 

Dr. Angres testified that while 

Respondent ‘‘would act in ways [that] 

might be described as an anti-social type 

of way * * * he doesn’t present with 

any severe personality disorder.’’ Id. at 

202. Dr. Angres further testified that 

Respondent was in compliance with his 

Aftercare Agreement, that his urine 

screens were negative, and that his 

recovery was ‘‘[v]ery solid, it’s very 

solid.’’ Id. at 207–08. 

According to Dr. Angres, 

Respondent’s primary problem is 

alcohol dependence and that while 

Respondent was also diagnosed as 

having abused benzodiazepines (the 

class of drugs which includes 

alprazolam), the latter was based on the 

manner in which Respondent had 

obtained the drugs and not on the 

amount he was using. Id. at 199–200. 

Dr. Angres asserted that Respondent 

was using alprazolam ‘‘as [a] prescribed 

quantity for sleep,’’ and benzodiazepine 

dependence was ruled out as a 

diagnosis because his ‘‘use was of the 

level of what’s often prescribed.’’ Id. In 

Dr. Angres’ view, Respondent’s issuance 

of fraudulent prescriptions ‘‘sounded 

like [it] was more a matter of 

convenience.’’ Id. at 200. However, on 

cross-examination, Dr. Angres’ admitted 

that his knowledge as to how much 

alprazolam Respondent was using was 

based on what the latter had told him. 

Id. at 220. 

Mr. Romano testified that he has 

known Respondent since the spring of 

2006, when after the latter’s admission 

to Lutheran General Hospital, the 

Hospital contacted Dr. Doot, the IPHP’s 

medical director, to do a substance 

abuse consultation. Id. at 137. Dr. Doot 

recommended that Respondent undergo 

some ‘‘treatment for alcohol and 

chemical dependency’’ at the Advocate 

Addiction Treatment Program’’; 

Respondent completed treatment and 

signed an Aftercare Agreement with 

IPHP. Id.; RX Group 11, at 1. 

Mr. Romano testified that he had 

known Respondent throughout the 

period which included his relapse and 

admission to the Resurrection 

Behavioral Health treatment program. 

Id. at 141. Mr. Romano testified that 

since April 2007, when Respondent 

signed his second Aftercare Agreement, 

he had seen Respondent on a monthly 

basis. Id. at 140; RX 1, parts 4 and 5. Mr. 

Romano testified that ‘‘since that 

January 2007 treatment * * * [t]here’s 

been a remarkable turnaround as far as 

[Respondent’s] acceptance and 

understanding of his addiction’’ and that 

Respondent has shown ‘‘commitment’’ 

to his recovery. Id. at 142–43. Mr. 

Romano reported that Respondent’s 

urine tests had been reported as 

negative. Id. at 144. 

Respondent also testified concerning 

his rehabilitation efforts. At the time of 

hearing, Respondent had been in his 

current job for a year and a half which 

involves ‘‘doing group therapy and 

group treatment with nursing home 

patients that have mental illness, and 

actually also substance abuse problems.’’ 

Tr. 79–80. In addition, he was working 

as a ‘‘general physician’’ in a clinic with 

other physicians. Id. at 81. Respondent 

was also attending Alcoholics 

Anonymous (AA) meetings three to four 

times per week, id. at 81–82, talked with 

his AA sponsor between two and four 

times a week, id. at 83, and on 

Saturdays, attended his Caduceus 

group. Id. at 84. 

Respondent testified that a DEA 

registration ‘‘[i]s a privilege’’ and that he 

had ‘‘done a lot of wrong things.’’ Tr. 94. 

According to Respondent, he was 

‘‘totally sorry for the things [he had] 

done.’’ Id. Respondent stated that he 

‘‘know[s]’’ ‘‘what [he has] done’’ so that 

he’s ‘‘not sure on terms of what level 

* * * of * * * horrific punishment [he] 

need[s] to go through anymore.’’ Id. 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) provides that the 

Attorney General ‘‘may deny an 

application for such registration if he 

determines that the issuance of such a 

registration is inconsistent with the 

public interest.’’ 21 U.S.C. 823(f). In 

making the public interest 

determination, the CSA directs that the 

following factors be considered: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * 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. 

Id. 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 68 

FR 15227, 15230 (2003). I may rely on 

any one or a combination of factors and 

may give each factor the weight I deem 

appropriate in determining whether to 

revoke an existing registration or to 

deny an application for a registration. 

Id. Moreover, I am ‘‘not required to make 

findings as to all of the factors.’’ Hoxie 

v. DEA, 419 F.3d 477, 482 (6th Cir. 

2005); see also Morall v. DEA, 412 F.3d 

165, 173–74 (D.C. Cir. 2005). 

Where the Government has met its 

prima facie burden of showing that 

issuing a new registration to the 

applicant would be inconsistent with 

the public interest, the burden then 

shifts to the applicant to ‘‘present 

sufficient mitigating evidence’’ to show 

why he can be entrusted with a new 

registration. Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23848, 23853 (2007) (quoting Leo R. 

Miller, 53 FR 21931, 21932 (1988))). 

‘‘Moreover, because ‘past performance is 

the best predictor of future 

performance,’ ALRA Labs, Inc. v. DEA, 

54 F.3d 450, 452 (7th Cir.1995), [DEA] 

has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 


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16 I concur with the ALJ’s finding that there is no 

evidence that Respondent has been convicted of 

crimes related to the manufacture, distribution or 

dispensing of controlled substances. However, DEA 

has held that a finding that an applicant has not 

been convicted of such an offense is not dispositive. 

See, e.g., Edmund Chein, 72 FR 6580, 6593 n.22 

(2007). 

17 In addition, in a proceeding brought by the 

Medical Licensing Board of Indiana, Respondent 

admitted that he had consumed Dilaudid (in 

addition to the Xanax). RX 6, at 2. In the instant 

matter, Respondent offered no explanation as to his 

use of Dilaudid. 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Cuong Tron Tran, 63 FR 64280, 64283 

(1998); Prince George Daniels, 60 FR 

62884, 62887 (1995). Because of the 

authority conveyed by a registration and 

the extraordinary potential for harm 

caused by those who misuse their 

registrations, DEA places significant 

weight on an applicant/registrant’s 

candor in the proceeding. See also 

Hoxie v. DEA, 419 F.3d at 483 

(‘‘admitting fault’’ is ‘‘properly 

consider[ed]’’ by DEA to be an 

‘‘important factor[]’’ in the public 

interest determination). 

Having considered all of the factors, I 

hold that the Government has met its 

prima facie burden of showing that 

Respondent has committed acts which 

render his registration inconsistent with 

the public interest. Indeed, the 

Government satisfied its prima facie 

burden simply by introducing the 1992 

and 2007 Agency Orders. While I have 

carefully considered Respondent’s 

evidence as to his rehabilitation, as 

explained below, I hold that Respondent 

has not rebutted the Government’s 

prima facie case because he has failed 

to accept responsibility for his 

misconduct and gave false testimony in 

this proceeding. 

Factor One—The Recommendation of 

the State Licensing Board 

As an initial matter, while the IDFPR 

has restored Respondent’s medical and 

controlled substances licenses and 

placed them on active but indefinite 

probation, it has made no 

recommendation as to whether 

Respondent’s application should be 

granted. While under 21 U.S.C. 823(f), 

the possession of authority under state 

law to dispense controlled substances is 

an essential requirement for obtaining a 

registration, as the ALJ recognized, DEA 

has long held that a practitioner’s 

possession of state authority is not 

dispositive under the public interest 

standard. ALJ at 36. 

In his Exceptions, Respondent argues 

that the ALJ ‘‘failed to give proper 

consideration and weight to the 

circumstances’’ which led the IDFPR to 

restore his licenses as well as ‘‘the level 

of oversight and control’’ it has placed 

on his license. Resp. Exceptions at 3–4. 

DEA has long held, however, that it has 

‘‘ ‘a separate oversight responsibility 

with respect to the handling of 

controlled substances and has a 

statutory obligation to make its 

independent determination as to 

whether the granting of [a registration] 

would be in the public interest.’ ’’ Jeri 

Hassman, M.D., 75 FR 8194, 8227 (2010) 

(quoting Mortimer B. Levin, 55 FR 8209, 

8210 (1990)). See also Alvin Darby, 75 

FR 26993, 27000 n.32 (2010); Edmund 

Chein, 72 FR 6589, 6590 (2007), aff’d 

Chein v. DEA, 533 F.3d 828 (DC Cir. 

2008) (The authority to determine 

whether the issuance of a registration is 

consistent with the public interest has 

been granted to the Attorney General 

and ‘‘delegated solely to the officials of 

this Agency.’’). 

Contrary to Respondent’s contention, 

this case is best decided based on the 

record compiled in this proceeding and 

not in the IDPFR matter. The record in 

this matter shows that Respondent has 

violated Federal criminal laws related to 

the dispensing of controlled substances 

(in multiple instances no less) and has 

now lied about it in two separate agency 

proceedings. ALJ at 36. Moreover, the 

record establishes a glaring 

inconsistency between Respondent’s 

testimony as to his purported rate of 

alprazolam usage and the quantities of 

drugs he was obtaining. Whatever the 

IDPFR’s reasons were for ignoring this, 

I decline to do so. I thus conclude that 

while the IDPFR’s restoration of his 

state medical and controlled substances 

licenses renders him eligible to hold a 

DEA registration, it is not dispositive of 

whether his registration would be 

consistent with the public interest.16

Factors Two, Four, and Five— 

Respondent’s Experience in Dispensing 

Controlled Substances, Compliance 

With Laws Related to Controlled 

Substances, and Such Other Conduct 

Which May Threaten Public Health and 

Safety 

As found in two previous Agency 

Orders, Respondent has on multiple 

occasions either attempted to obtain, or 

successfully obtained, controlled 

substances ‘‘by misrepresentation, fraud, 

forgery, deception, or subterfuge,’’ in 

violation of 21 U.S.C. 843(a)(3). See also 

21 U.S.C. 846 (CSA’s attempt provision). 

More specifically, on January 4, 1989, 

Respondent attempted to fill forged 

prescriptions for 60 tablets of Percocet, 

a schedule II narcotic, and 30 tablets of 

Halcion, a schedule IV benzodiazepine, 

at a Fort Lauderdale pharmacy but was 

arrested. See GX 4. 

When questioned by the police, 

Respondent lied claiming that someone 

else had presented the prescriptions and 

that they had arrested the wrong person. 

At the 1991 hearing, however, 

Respondent changed his story claiming 

that he had been called out of the blue 

by a person he did not know who had 

asked him to fill the prescriptions for a 

friend and that several days later, the 

prescriptions were slid under his door. 

Then, as now, the ALJ found the story 

to be ‘‘inherently implausible’’ and the 

then-Administrator found that it was 

‘‘simply unworthy of belief.’’ 

Notwithstanding that in this proceeding, 

Respondent had a fresh opportunity to 

acknowledge his criminal behavior and 

accept responsibility for his 

misconduct, he repeated his lies. 

Moreover, as I found in my 2007 

Decision and Order, which denied his 

previous application, on multiple 

occasions during 2002 through 2004, 

Respondent called in fraudulent 

prescriptions in the names of three 

persons for alprazolam and Dilaudid 

(hydromorphone, a schedule II 

controlled substance) to obtain drugs for 

his personal abuse. While in this 

proceeding the Government primarily 

focused on Respondent’s prescribing 

and use of alprazolam, my finding that 

Respondent issued fraudulent 

prescriptions for both alprazolam and 

Dilaudid is res judicata. See University 

of Tennessee v. Elliot, 478 U.S. 788, 

797–98 (1986) (‘‘When an administrative 

agency is acting in a judicial capacity 

and resolves disputed issues of fact 

properly before it which the parties 

have had an adequate opportunity to 

litigate, the courts have not hesitated to 

apply res judicata[.]’’). While 

Respondent waived his right to contest 

the allegations, see 72 FR 42127, he 

nonetheless had a full and fair 

opportunity to litigate these issues in 

that proceeding.17

While at the hearing Respondent 

acknowledged that he had issued at 

least twenty fraudulent prescriptions for 

alprazolam during the 2002 through 

2004 period, his testimony regarding his 

rate of usage of the drug is glaringly 

inconsistent with the amount of the 

drug he obtained. As found above, 

between April 4 and October 7, 2004, 

Respondent obtained a total of 480 

tablets of this drug. Yet in his testimony 

he maintained that he used the drug 

only four to five times a month (to help 

him sleep) and that he cut the tablets in 

half. Were this true, he would have used 

at most only eighteen tablets. 

Respondent offered no explanation to 


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18To make clear, in light of the inconsistency 

between the amount of alprazolam Respondent 

obtained and his claimed rate of usage, I reject the 

ALJ’s conclusion ‘‘that Respondent’s abuse of 

alprazolam was limited to his manner of acquiring 

it.’’ ALJ at 36. 

19 In arguing that he has been adequately 

punished for his past misconduct, Respondent 

misapprehends the nature of this proceeding. This 

is a remedial proceeding aimed at protecting the 

public interest. See, e.g., Samuel S. Jackson, 72 FR 

at 23853 (citing Leo R. Miller, 53 FR 21931, 21932 

(1988)). My decision to deny Respondent’s 

application is not based on a determination that he 

needs to be punished but on the fact that his 

unwillingness to accept responsibility and testify 

truthfully establishes that he cannot be entrusted 

with a registration notwithstanding his efforts at 

rehabilitation. 

Respondent also argues that ‘‘it has been over 

three years since [he] engaged in any conduct that 

would suggest that it would be against the public 

interest to issue’’ him a new registration. Exceptions 

at 15. This argument ignores that Respondent’s 

testimony at the proceeding is itself conduct which 

demonstrates that granting his application would be 

inconsistent with the public interest. In addition, 

that three years have passed without further 

incident is hardly impressive given that he has been 

without a registration during this period, thus 

denying him of the means to issue more fraudulent 

prescriptions. 

20 I find it unnecessary to give any weight to the 

2005 incident in which Respondent represented to 

a Chicago law firm that he had an active and 

unrestricted medical license when his licensed had 

been suspended. See GX 8. Between his 

presentation of the two fraudulent prescriptions in 

1989, his false statement to the police following his 

arrest, his false testimony in the 1991 proceeding, 

and the more recent incidents of his calling in 

numerous fraudulent prescriptions, there is more 

than ample evidence to question his credibility. 

account for the other 460 tablets he 

obtained during this period. The 

inconsistency between the amounts he 

obtained and his testimony supports the 

conclusion that Respondent lied about 

his rate of usage and likely did so to 

portray himself as being only an 

alcoholic and not a drug abuser.18

Thus, while Respondent produced 

extensive evidence of his rehabilitation 

from alcohol abuse, there is ample 

reason to be skeptical of his claim that 

he is not a drug abuser and that he has 

learned from his mistakes. Moreover, 

even assuming the good faith of those 

who have treated (and/or evaluated) 

him, and that the treatment he received 

for his alcoholism would be efficacious 

in treating prescription drug abuse 

notwithstanding his apparent 

unwillingness to acknowledge the 

extent of his alprazolam misuse, it is 

nonetheless clear that Respondent has a 

serious aversion to telling the truth. I 

therefore hold that Respondent has 

failed to accept responsibility for his 

misconduct and has failed to rebut the 

Government’s prima facie case. 

In his Exceptions, Respondent 

contends that he ‘‘cannot eradicate his 

past criminal history’’ and that the ALJ’s 

recommendation that his application be 

denied ‘‘is tantamount to a permanent 

revocation * * * especially since the 

DEA considered most of the same 

information’’ in my 2007 order which 

denied his previous application. 

Exceptions, at 14. Respondent also 

contends that because the issues 

litigated in ‘‘the 1992 hearing before 

DEA are res judicata [they] should not 

be considered in any determination in 

this matter.’’ Id. at 6. Finally, he 

contends that he has been adequately 

punished for his past misconduct and 

that the proper focus should have been 

‘‘whether the circumstances in existence 

at the time of the prior denial in July 20, 

2007 have sufficiently changed to 

warrant the issuance of Respondent’s 

DEA registration.’’ Exceptions, at 6–12. 

Contrary to Respondent’s view, 

Congress expressly directed the Agency 

to consider an ‘‘applicant’s experience 

in dispensing * * * controlled 

substances.’’ 21 U.S.C. 823(f). 

Respondent’s previous incidents of 

presenting fraudulent prescriptions are 

thus properly considered in this 

proceeding. Moreover, while it is true 

that Respondent ‘‘cannot eradicate his 

past criminal history,’’ he could have 

testified truthfully in this proceeding 

and accepted responsibility for his 

misconduct.19 See Robert Leslie, 68 FR 

15227 (2003) (denying application based 

on physician’s continued unwillingness 

to accept responsibility for criminal 

conduct he engaged in seventeen years 

earlier). I am therefore wholly 

unpersuaded by Respondent’s 

contention that the circumstances have 

sufficiently changed to warrant granting 

his application. 

Respondent cites Azen v. DEA, 76 

F.3d 384 (tablet) (9th Cir. 1996), an 

unpublished decision, as support for his 

contention that in light of his evidence 

of rehabilitation, it would be ‘‘unduly 

harsh’’ to deny his application. Putting 

aside that the Ninth Circuit upheld the 

Agency’s decision to revoke Dr. Azen’s 

registration, Respondent ignores that in 

1993, the Agency previously gave him a 

second chance to demonstrate that he 

could be entrusted with a registration, 

yet he again breached this trust. 

Respondent also ignores under the 

Agency’s rules, he had a way back to 

regaining his registration. That he could 

not testify truthfully about either the 

1989 episode or his more recent 

criminal behavior and abuse of 

alprazolam makes clear that, 

notwithstanding his rehabilitation 

efforts, he cannot be entrusted with a 

new registration.20 Accordingly, 

Respondent’s application will be 

denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as by 28 CFR 

0.100(b) and 0.104, I hereby order that 

the application of Alan H. Olefsky, 

M.D., be, and it hereby is, denied. This 

Order is effective May 11, 2011. 

Dated: April 1, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–8543 Filed 4–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–7] 

Thomas E. Mitchell, M.D.; Dismissal of 

Proceeding 

On September 11, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Thomas E. Mitchell, 

M.D. (Respondent), of Santa Ana, 

California. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration and the denial of any 

pending applications to renew or 

modify his registration on the ground 

that, because of an action brought by the 

Medical Board of California (MBC), he 

lacks authority to dispense controlled 

substances in the State in which he is 

registered. Show Cause Order at 1. 

On October 13, 2009, Respondent’s 

counsel filed a letter in which he 

requested an extension of time (of 60 

days no less) to respond to the Show 

Cause Order. Letter from Robert H. 

McNeill, Jr., to Hearing Clerk (Oct. 9, 

2009). Therein, Respondent’s counsel 

stated that Respondent was currently 

awaiting trial on two felony counts of 

violating California’s tax laws. Id. 

Respondent’s counsel further stated that 

‘‘[t]he resolution of the criminal case 

will significantly affect Dr. Mitchell’s 

decision of whether to request a hearing 

on the Order to Show Cause.’’ Id. 

Deeming this letter to be a request for 

a hearing, on October 22, 2009, the ALJ 

issued an order directing that the 

Government file its pre-hearing 

statement on or before January 6, 2010, 

and that Respondent file his pre-hearing 

statement on February 8, 2010. Order for 

Prehearing Statements at 1–2. 

Thereafter, on November 2, 2009, the 

Government moved for summary 

disposition on the ground that, on 

December 18, 2008, the MBC had 

suspended Respondent’s Physician’s 

and Surgeon’s Certificate for failing to 


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