[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Notices]
[Pages 85664-85665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28677]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Brian M. Manjarres, M.D.; Decision and Order

    On September 28, 2020, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to Brian 
M. Manjarres, M.D. (hereinafter, Registrant). OSC, at 1. The OSC 
proposed the revocation of Registrant's Certificate of Registration No. 
FM0288363. Id. It alleged that Registrant is without ``authority to 
handle controlled substances in the State of California, the state in 
which [Registrant is] registered with the DEA.'' Id. at 2 (citing 21 
U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on January 1, 2020, Registrant 
surrendered his medical license ``after the Medical Board of California 
filed an Accusation against [him] alleging gross negligence, repeated 
negligent acts, incompetence, and failure to maintain adequate and 
accurate records in [his] care and treatment of numerous patients, and 
additionally alleging that [he] self-prescribed controlled substances 
and engaged in general unprofessional conduct.'' Id. at 1-2. The OSC 
further alleged that because Registrant surrendered his medical 
license, Registrant lacks the authority to handle controlled substances 
in the State of California. Id. at 2.
    The OSC notified Registrant of the right to either request a 
hearing on the allegations or submit a written statement in lieu of 
exercising the right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. 
(citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 2-3 (citing 21 
U.S.C. 824(c)(2)(C)).
    A DEA Diversion Investigator personally served Registrant with the 
OSC on October 21, 2020, and Registrant signed a DEA Form 12,

[[Page 85665]]

Receipt for Cash or Other Items, to acknowledge his receipt of the OSC. 
Request for Final Agency Action (hereinafter, RFAA) Exhibit 
(hereinafter, RFAAX) 4, at 1-2 (Declaration of Diversion Investigator), 
8 (DEA Form 12 signed by Registrant). I find that more than thirty days 
have now passed since the Government accomplished service of the OSC. 
Further, based on the Government's written representations, I find that 
neither Registrant, nor anyone purporting to represent Registrant, 
requested a hearing, submitted a written statement while waiving 
Registrant's right to a hearing ``or otherwise corresponded or 
communicated with DEA regarding the Order served on him.'' RFAA, at 1. 
Accordingly, I find that Registrant has waived the right to a hearing 
and the right to submit a written statement and corrective action plan. 
21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.46.

I. Findings of Fact

a. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FM0288363 at the registered address of Namaste Medical Group Inc., 1357 
7th Avenue, Suite A, San Diego, California, 92101-4381. RFAAX 1 
(Certification of Registration Status). Pursuant to this registration, 
Registrant is authorized to dispense controlled substances in schedules 
II through V as a practitioner-DW/30. Id. Registrant's registration 
expires on January 31, 2022, and ``is in an active pending status until 
the resolution of administrative proceedings.'' Id.

b. The Status of Registrant's State License

    Registrant and the Medical Board of California entered into a 
Stipulated Surrender of License and Order, whereby Registrant 
surrendered his California medical license. RFAAX 3. The accusations 
surrounding the surrender included gross negligence involving the 
prescribing of controlled substances and self-prescribing controlled 
substances. Id. at 14-60. On December 12, 2019, the Medical Board of 
California entered an Order adopting the Stipulated Surrender with an 
effective date of January 1, 2020. Id. at 1. The Medical Board of 
California's online records, of which I take official notice, document 
that Registrant's license is still surrendered.\1\ Medical Board of 
California License Verification, https://www.mbc.ca.gov/Breeze/License_Verification.aspx (last visited date of signature of this 
Order).
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    \1\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within fifteen 
calendar days of the date of this Order. Any such motion shall be 
filed with the Office of the Administrator and a copy shall be 
served on the Government. In the event Registrant files a motion, 
the Government shall have fifteen calendar days to file a response. 
Any such motion and response may be filed and served by email 
(<a href="/cdn-cgi/l/email-protection#93f7f6f2bdf2f7f7fcbdf2e7e7fce1fdf6eae0d3f7f6f2bde6e0f7fcf9bdf4fce5"><span class="__cf_email__" data-cfemail="513534307f3035353e7f3025253e233f342822113534307f2422353e3b7f363e27">[email protected]</span></a>).
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in California, the state in which 
Registrant is registered with the DEA.

II. 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 the CSA 
``upon a finding that the registrant . . . has had his State license or 
registration 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, the DEA has also 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 practitioner's 
registration. See, e.g., James L. Hooper, M.D., 76 FR 71,371 (2011), 
pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick 
Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    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 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 CSA, the 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 practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to California statute, ``[n]o person other than a 
physician . . . shall write or issue a prescription.'' Cal. Health & 
Safety Code Sec.  11150 (West 2020). Further, ``physician,'' as defined 
by California statute, is a person who is ``licensed to practice'' in 
California. Id. at Sec.  11024.
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, 
Registrant is not eligible to maintain a DEA registration. Accordingly, 
I will order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
FM0288363 issued to Brian M. Manjarres, M.D. Further, pursuant to 28 
CFR 0.100(b) and the authority vested in me by 21 U.S.C. Sec.  823(f), 
I hereby deny any pending application of Brian M. Manjarres, M.D. to 
renew or modify this registration or for any other registrations in the 
State of California. This Order is effective January 28, 2021.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-28677 Filed 12-28-20; 8:45 am]
BILLING CODE 4410-09-P


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