[Federal Register Volume 65, Number 24 (Friday, February 4, 2000)]
[Notices]
[Pages 5661-5662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2537]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99-9]


Michael G. Dolin, M.D., Denial of Request for Modification of 
Registration

    On December 17, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Michael Glen Dolin, M.D. (Respondent) of 
Rockville Center, New York, notifying him of an opportunity to show 
cause as to why DEA should not revoke his DEA Certificate of 
Registration AD4476378 pursuant to 21 U.S.C. 824(a)(4), and deny any 
pending applications for modification or renewal of such registration 
pursuant to 21 U.S.C. 823(f), for reason that his registration would be 
inconsistent with the public interest.
    On January 4, 1999, Respondent, through counsel, filed a request 
for a

[[Page 5662]]

hearing. Following prehearing proceedings, a hearing was held in New 
York City, New York on May 26, 1999, and continued on July 13, 1999, 
before Administrative Law Judge Gail A. Randall. At the hearing, both 
parties called witnesses to testify and introduced documentary 
evidence.
    On July 9, 1999, prior to the second hearing session, the 
Government filed a Motion to Amend Prehearing Statement and to Reopen 
Record, which was granted at the hearing on July 13, 1999. The 
Government introduced evidence that the New York Department of Health, 
State Board for Professional Medical Conduct (Medical Board), had 
revoked Respondent's license to practice medicine in New York, and that 
the New York State Supreme Court, Appellate Division, Third Judicial 
Department (Appellate Division), stayed the revocation, but precluded 
Respondent from prescribing controlled substances. Based upon this 
evidence, the Government made an oral Motion for Summary Disposition at 
the July 13, 1999 hearing session.
    After being given an opportunity to reply to the Government's 
motion, on August 23, 1999, Respondent filed a motion requesting that 
Judge Randall deny the Government's motion and adjourn these 
proceedings until the Appellate Division renders its decision on the 
Respondent's appeal of the Medical Board's revocation of his medical 
license.
    On September 1, 1999, the Government filed a Renewed Motion for 
Summary Disposition, and sought to reopen the record to introduce 
evidence of the Appellate Division's decision lifting the temporary 
stay of the revocation of Respondent's New York medical license. The 
Government asserted that since Respondent is no longer authorized to 
handle controlled substances in New York, DEA cannot register him in 
that state. In a letter dated September 8, 1999, Respondent replied to 
the Government's Renewed Motion for Summary Disposition.
    On September 28, 1999, Judge Randall issued her Opinion and 
Recommended Decision finding that Respondent lacks authorization to 
handle controlled substances in the State of New York; denying 
Respondent's Motion to Adjourn; granting the Government's Motion for 
Summary Disposition; and recommending that Respondent's request for 
modification of his DEA registration be denied. Neither party filed 
exceptions to her Opinion and Recommended Decision, and on November 4, 
1999, Judge Randall transmitted the record of these proceedings to the 
Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 CFR 1316.67, hereby issues his 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 was issued DEA 
Certificate of Registration AD4476378 at an address in North Carolina 
with an expiration date of June 30, 1998. On June 14, 1998, Respondent 
submitted an application to modify his registration with DEA. On the 
application, Respondent crossed out the registered address in North 
Carolina and hand wrote in an address in Rockville, New York. Pursuant 
to 21 CFR 1301.51, this request for modification is treated like a new 
application for registration.
    The Deputy Administrator further finds that in a decision dated May 
17, 1999, the Hearing Committee of the Medical Board revoked 
Respondent's license to practice medicine in the State of New York. On 
June 10, 1999, the Appellate Division temporarily stayed the 
revocation, pending Respondent's appeal of the Medical Board's 
decision. Subsequently, in a decision dated August 6, 1999, the 
Appellate Division lifted the temporary stay of the Medical Board's 
revocation of Respondent's license to practice medicine in New York.
    In arguing against summary disposition and for an adjournment of 
these proceedings pending a ruling on his appeal, Respondent asserted 
that if the Government's motion is granted and Respondent ultimately 
wins his appeal of the Medical Board's revocation of his medical 
license, he would be without a DEA registration to handle controlled 
substances. Respondent further argued that the public interest would be 
protected by delaying a decision in this matter pending the outcome of 
the appeal in the Appellate Division since he is currently without a 
medical license and he has not written a controlled substance 
prescription since his DEA registration expired in 1998.
    The Deputy Administrator concludes that Respondent is not currently 
authorized to practice medicine in the State of New York and it is 
therefore reasonable to infer that he is also not authorized to handle 
controlled substances in that state. The 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 his 
business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This 
prerequisite has been consistently upheld. See Michael J. Pine, D.D.S., 
64 FR 33318 (1999); Eric Jones, M.D., 63 FR 10042 (1998); Romeo J. 
Perez, M.D., 62 FR 16193 (1997).
    Here, it is clear that Respondent is not authorized to practice 
medicine or handle controlled substances in New York, and therefore, he 
is not eligible to possess a DEA registration in that state. As Judge 
Randall noted, ``[a] pending judicial challenge to the Medical Board's 
decision does not alter Respondent's status in New York. The outcome of 
a potential judicial challenge to the Medical Board's action is 
speculative, and the decision of the Medical Board is final until 
otherwise overturned.'' Under these circumstances, Judge Randall found 
that it would be inappropriate to stay or adjourn these proceedings.
    In light of the above, Judge Randall properly granted the 
Government's Motion for Summary Disposition. The parties did not 
dispute the fact that Respondent is currently unauthorized to handle 
controlled substances in New York. Therefore, it is well-settled that 
when no question of material fact is involved, a plenary, adversary 
administrative proceeding involving evidence and cross-examination of 
witnesses is not obligatory. See Jesus R. Juarez, M.D., 62 FR 14945 
(1997); Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v. 
Mullen, 749 F.2d 297 (6th Cir. 1984).
    The Deputy Administrator agrees with Judge Randall's conclusion 
that because Respondent lacks state authorization in New York, the 
state where he is seeking to be registered, it is unnecessary to 
address the other allegations raised in the Order to Show Cause.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
request of Michael G. Dolin, M.D. to modify his DEA Certificate of 
Registration AD4476378, dated June 14, 1998, be, and it hereby is, 
denied. The Deputy Administrator notes that DEA Certificate of 
Registration AD4476378 is no longer valid since it expired without 
being renewed or modified. This order is effective March 6, 2000.

    Dated: January 18, 2000.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 00-2537 Filed 2-3-00; 8:45 am]
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