4944 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices 

*A I have made minor, nonsubstantive, 

grammatical changes to the RD and nonsubstantive 

conforming edits. Where I have made substantive 

changes, omitted language for brevity or relevance, 

or where I have added to or modified the Chief 

ALJ’s opinion, I have noted the edits in brackets, 

and I have included specific descriptions of the 

modifications in brackets or in footnotes marked 

with an asterisk and a letter. Within those brackets 

and footnotes, the use of the personal pronoun ‘‘I’’ 

refers to myself—the Administrator. 

*BI have omitted the RD’s discussion of the 

procedural history to avoid repetition with my 

introduction. 

Virginia 22152. All request for a hearing 

should also be sent to: (1) Drug 

Enforcement Administration, Attn: 

Hearing Clerk/OALJ, 8701 Morrissette 

Drive, Springfield, Virginia 22152; and 

(2) Drug Enforcement Administration, 

Attn: DEA Federal Register 

Representative/DPW, 8701 Morrissette 

Drive, Springfield, Virginia 22152. 

SUPPLEMENTARY INFORMATION: In 

accordance with 21 CFR 1301.34(a), this 

is notice that on December 7, 2021, 

Mylan Pharmaceuticals Inc., 2898 

Manufacturers Road, Greensboro, North 

Carolina 27406–4600, applied to be 

registered as an importer of the 

following basic class(es) of controlled 

substance(s): 

Controlled 

substance 

Drug 

code 

Schedule 

Remifentanil ................... 9739 II 

The company plans to import the 

above controlled substance as a Federal 

Drug Administration-approved drug 

product in finished dosage form for 

commercial distribution to its 

customers. 

Approval of permit applications will 

occur only when the registrant’s 

business activity is consistent with what 

is authorized under 21 U.S.C. 952(a)(2). 

Brian S. Besser, 

Acting Assistant Administrator. 

[FR Doc. 2022–01817 Filed 1–28–22; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 21–11] 

Michael E. Smith, D.V.M.; Decision and 

Order 

On December 3, 2020, a former 

Assistant Administrator, Diversion 

Control Division, of the Drug 

Enforcement Administration 

(hereinafter, DEA or Government), 

issued an Order to Show Cause 

(hereinafter, OSC) to Michael E. Smith, 

D.V.M. (hereinafter, Respondent) of 

Zanesville, Ohio. Administrative Law 

Judge Exhibit (hereinafter, ALJX) 1 

(OSC), at 1 and 5. The OSC proposed 

the denial of Respondent’s application 

for DEA Certificate of Registration No. 

W20010614C (hereinafter, COR or 

registration) and the denial of any 

applications for any other DEA 

registrations pursuant to 21 U.S.C. 

824(a)(2) and 824(a)(4) because 

Respondent was convicted of a felony 

related to controlled substances and 

because ‘‘[Respondent’s] registration 

would be inconsistent with the public 

interest, as that term is defined in 21 

U.S.C. 823(f).’’ Id. at 1. 

On January 1, 2021, the Respondent 

timely requested a hearing, which 

commenced (and ended) on April 19, 

2021, at the DEA Hearing Facility in 

Arlington, Virginia with the parties, 

counsel, and witnesses participating via 

video teleconference (VTC). On June 30, 

2021, Administrative Law Judge Paul E. 

Soeffing (hereinafter, the ALJ) issued his 

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge 

(hereinafter, Recommended Decision or 

RD). 

By letter dated August 5, 2021, the 

ALJ certified and transmitted the record 

to me for final Agency action. In the 

letter, the ALJ advised that the 

Respondent filed untimely exceptions to 

the Recommend Decision on July 26, 

2021. The ALJ stated that the 

Respondent had received an extension 

of time to file his exceptions by 2:00 

p.m. ET on July 26, but did not file them 

until 2:58 p.m. ET. The ALJ also advised 

that the Government filed its Response 

to the Respondent’s Exceptions on 

August 5, 2021. 

Having reviewed the entire record, I 

find Respondent’s Exceptions without 

merit and I adopt the ALJ’s rulings, 

findings of fact as modified, conclusions 

of law and recommended sanction with 

minor modifications, where noted 

herein.*A Although Respondent’s 

Exceptions were untimely, in this case, 

I decided to nonetheless consider and 

address each of Respondent’s 

Exceptions, and issue my final Order in 

this case following the Recommended 

Decision. 

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge 

Paul E. Soeffing 

U.S. Administrative Law Judge 

June 30, 2021 

*B The issue in this case is whether 

the record as a whole establishes by a 

preponderance of the evidence that the 

Respondent’s application for a DEA 

COR, Control No. W20010614C, should 

be denied, and any other pending 

applications for additional registrations 

should be denied, pursuant to 21 U.S.C. 

824(a)(2) and (a)(4), because the 

Respondent has been convicted of a 

felony relating to controlled substances, 

and because his registration would be 

inconsistent with the public interest, as 

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

After carefully considering the 

testimony elicited at the hearing, the 

admitted exhibits, the arguments of 

counsel, and the record as a whole, I 

have set forth my recommended 

findings of fact and conclusions of law 

below. 

I. Findings of Fact 

A. Allegations 

The Government alleges that the 

Respondent’s application for a DEA 

COR, Control No. W20010614C, should 

be denied and any applications by the 

Respondent for any other DEA 

registrations should be denied, pursuant 

to 21 U.S.C. 824, because (1) 

Respondent has been convicted of a 

felony relating to controlled substances; 

and (2) that registration would be 

inconsistent with the public interest, as 

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

B. Stipulations 

The Government and the Respondent 

agreed to fourteen stipulations, which I 

recommend be accepted as fact in these 

proceedings: 

1. Respondent was previously registered 

with the DEA to handle controlled 

substances in Schedules II through V under 

DEA COR No. FS1126146 at 100 Sally Road, 

Zanesville, Ohio 43701. 

2. Respondent surrendered DEA COR No. 

FS1126146 for cause on or about July 20, 

2015, pursuant to his plea agreement in Case 

CR2015–0052, State of Ohio v. Michael E. 

Smith. 

3. Respondent submitted an electronic 

application for a new DEA COR on or about 

February 3, 2020. 

4. Government Exhibit No. 1 is a true and 

correct copy of Respondent’s February 3, 

2020 application for a DEA COR. 

5. Government Exhibit No. 2 is a true and 

correct copy of the Certification of 

Registration History showing Respondent’s 

answers to the liability questions from his 

February 3, 2020 application for a DEA COR. 

6. Government Exhibit No. 3 is a true and 

correct copy of the docket sheet in Case 

CR2015–0052, State of Ohio v. Michael E. 

Smith. 

7. Government Exhibit No. 4 is a true and 

correct copy of Respondent’s signed plea 

agreement, dated July 20, 2015, in Case 

CR2015–0052, State of Ohio v. Michael E. 

Smith. 

8. Government Exhibit No. 5 is a true and 

correct copy of the court’s entry of 

Respondent’s plea agreement, dated July 23, 


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1This includes whether an applicant had prior 

issues with controlled substances, convictions, or 

any disciplinary action on a state or federal 

controlled substance license. Tr. 16. 

2The Respondent submitted this application in 

February 2020. Stip. 3; Tr. 19; Gov’t Exs. 1, 2. 

3The Government presented evidence indicating 

that the Respondent pled guilty in State of Ohio v. 

Michael E. Smith, No. CR2015–0052 to ten counts 

of ‘‘Illegal Processing of Drug Documents,’’ in 

violation of Ohio Revised Code (‘‘ORC’’) 

§ 2925.23(B)(1), which is a fourth-degree felony. 

Gov’t Ex. 4. The Respondent also pled guilty to 

‘‘Having a Weapon While Under Disability’’ in 

violation of ORC § 2923.13(A)(3), a third-degree 

felony. Id. 

4Although the Government called K.P. as a 

rebuttal witness to introduce into evidence 

additional documentary evidence, the tribunal 

sustained the Respondent’s objection to proposed 

Government Exhibit 9 being admitted into 

evidence. Tr. 163–67. 

5Although not specified in the testimony, this 

appears to be when the Respondent graduated from 

Veterinary school. See Gov’t Ex. 1 at 1. 

6When questioned by the tribunal as to the year 

he first started abusing drugs, the Respondent stated 

that he ‘‘may have had casual use throughout my 

youth’’ which would presumably predate this 

cocaine use after he became a licensed veterinarian 

and was ‘‘well into [his] 30’s.’’ Tr. 119–20. 

7Respondent’s first drug conviction, for cocaine, 

was in 1997. Tr. 129; Gov’t Ex. 7 at 14:21–22. In 

the sentencing transcript for the Respondent’s 2015 

conviction, his defense attorney indicates the 

Respondent served a six-month sentence for the 

1997 conviction. Gov’t Ex. 8 at 6:4–5. 

8 During the testimony, there was some confusion 

as the Respondent’s Prehearing Statement indicated 

there was a settlement agreement with the Board in 

2005. ALJ Ex. 8 at 2. The Respondent’s counsel also 

referenced a 2005 settlement agreement with the 

Board, but the Respondent clarified that the 

settlement agreement was in 2000. Tr. 48. 

According to the Respondent and his counsel, the 

Continued 

2015, in Case CR2015–0052, State of Ohio v. 

Michael E. Smith. 

9. Government Exhibit No. 6 is a true and 

correct copy of the court’s entry of 

Respondent’s sentence, dated October 7, 

2015, in Case CR2015–0052, State of Ohio v. 

Michael E. Smith. 

10. Government Exhibit No. 7 is a true and 

correct copy of the transcript of Respondent’s 

plea hearing, dated July 20, 2015, in Case 

CR2015–0052, State of Ohio v. Michael E. 

Smith. 

11. Government Exhibit No. 8 is a true and 

correct copy of the transcript of Respondent’s 

sentencing hearing, dated October 5, 2015, in 

Case CR2015–0052, State of Ohio v. Michael 

E. Smith. 

12. DEA lists Dilaudid (hydromorphone) as 

a Schedule II controlled substance under 21 

CFR 1308.12(b)(1)(vii). 

13. DEA lists oxycodone as a Schedule II 

controlled substance under 21 CFR 

1308.12(b)(1)(xiii). 

14. Dr. Smith currently holds an 

unrestricted license to practice veterinary 

medicine and surgery in the State of Ohio. 

C. Government’s Case-in-Chief 

The Government presented its case in 

chief through the testimony of a single 

witness, Diversion Investigator (DI) K.P. 

K.P. has worked for the DEA as a DI 

in Columbus, Ohio since May 2019. Tr. 

14. She has been a DI since January 

2019. Tr. 14–15. Her mission is to 

prevent, detect, and investigate 

diversion of controlled substances. Tr. 

15. She conducts inspections, schedules 

investigations, and ensures registrants 

are in compliance with applicable laws. 

Tr. 15. If an applicant answers ‘‘yes’’ to 

a liability question 1 on the application, 

it will get flagged and assigned to a DI. 

Tr. 15–16. Once K.P. is assigned a new 

application for review, she will first 

read through the application and will 

then run a criminal history check. Tr. 

16–17. 

K.P. was assigned the Respondent’s 

case because Respondent answered 

‘‘yes’’ to three of the liability questions 

on the DEA Form 224, Application for 

Registration (‘‘application’’).2 Tr. 17–19; 

Gov’t Ex. 1 at 1. To the best of K.P.’s 

knowledge, the Respondent answered 

these questions correctly on his 

application. Tr. 38. After being assigned 

the case, K.P. called the Respondent. Tr. 

17. She then reviewed the Ohio 

Veterinary Medical Licensing Board 

(‘‘the Board’’) action on his previous 

state license and realized he had a new 

Ohio state license. Tr. 18. She then ran 

his criminal history and submitted a 

request to Muskingum County for 

documents relating to the Respondent’s 

criminal history. Tr. 18, 25–37; See 

Gov’t Exs. 3–8. Throughout the 

investigation, K.P. spoke to the 

Respondent two or three times on the 

phone. Tr. 39. Otherwise, she was in 

contact with his counsel, Mr. I. Tr. 39. 

K.P. never met with the Respondent in 

person. Tr. 39. 

In his answer to the first liability 

question, the Respondent stated that he 

pled guilty to ten counts of Illegal 

Processing of Drug Documents, had 

surrendered his vet license and his DEA 

registration, and served seventeen 

months of incarceration. Tr. 24; Gov’t 

Ex. 2.3 K.P. was concerned because the 

Respondent indicated he was addicted 

to opiates and had written prescriptions 

under his COR for dogs, but took them 

for his own personal use. Tr. 23–24; 

Gov’t Ex. 2. K.P. asserted that the DEA’s 

concern with granting the Respondent’s 

application for registration is that the 

Respondent would not be able to 

responsibly handle a DEA registration 

because he has a proven history of 

misusing it. Tr. 40. The Respondent’s 

guilty plea to ten counts of Illegal 

Processing of Drug Documents was 

significant to her because she believed 

it showed that the Respondent was not 

responsible with his registration. Tr. 24, 

40. 

K.P. did not believe that the 

Respondent had provided her with 

proof that he had been working on his 

addiction. Tr. 40. Although he provided 

her with certificates of the programs he 

completed, none were more recent than 

2017. Tr. 40–41. She did not have an 

opinion on how often the Respondent 

should be attending a rehabilitation 

program or attending meetings. Tr. 41– 

42. 

K.P.’s testimony was primarily 

focused on the non-controversial 

introduction of documentary evidence 

and her contact with this case.4 Her 

testimony was generally consistent and 

genuine and there was no indication she 

harbors any animosity towards the 

Respondent. As a public servant, K.P. 

has no personal stake in the DEA’s 

action on the Respondent’s application 

for registration. I therefore find her 

testimony to be entirely credible and it 

will be afforded considerable weight. 

D. Respondent’s Case 

The Respondent presented his case in 

chief through the testimony of four 

witnesses: himself and three character 

witnesses A.B., R.W., and G.G. 

Respondent 

The Respondent graduated from Ohio 

State University and obtained his degree 

in 1994. Tr. 44–45; Gov’t Ex. 1 at 1.5 He 

worked with his father in a private 

practice, where they saw over 10,000 

clients, including over thirty-seven 

species of animals from seven counties. 

Tr. 45. He is prepared to handle 

situations in internal medicine, 

emergency medicine, preventive care, 

and surgical procedures. Tr. 46. The 

Respondent currently has a veterinary 

practice, Smith Veterinary Services, in 

Muskingum County, Zanesville, Ohio, 

which is mainly a rural area. Tr. 44–46. 

Within a few years of graduating, the 

Respondent’s veterinary license was 

disciplined for the first time. Tr. 46–47. 

One night, sometime in the 1990’s, a 

client offered him cocaine, he took it, 

and ultimately became addicted to 

cocaine.6 Tr. 47, 122. He was arrested 

with a possession charge and 

reprimanded by the Board with a twoyear suspension of his license. Tr. 48, 

110. When he was first arrested, he was 

put on probation, but he violated that 

probation and served a sentence. Tr. 

128. He was incarcerated for eight 

months total for this drug conviction.7

Tr. 129. The Board set conditions on the 

reinstatement of his license in a 

settlement agreement in 2000, including 

the requirement that he complete a 

rehabilitation program and demonstrate 

that he was capable of operating in a 

proper manner.8 Tr. 48–49; 131–33. 


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2005 date listed in the Respondent’s Prehearing 

Statement is a typographical error and the year 

should actually be 2000. Tr. 130–32. 

9This appears to be a reference to the 

Respondent’s criminal activity of writing 

prescriptions in the names of dogs that he or others 

would then fill so that the Respondent could use 

the drugs to satisfy his addiction. 

10The Respondent later testified that this was a 

turning point for him where he realized that ‘‘[n]ot 

only was I destroying myself, now I put him in a 

position of where he shouldn’t have been and I 

came to the realization that what I was doing to 

myself, I may have been contributing this to 

happening to others as well.’’ Tr. 97. 

11The Respondent later testified that he took part 

in the program post-incarceration. Tr. 62. 

Furthermore, the certificate of completion for this 

ACTS program is dated August 16, 2017. Resp’t Ex. 

C. 

12The Respondent did not provide 

documentation of his attendance when he went to 

these meetings since he ‘‘went on [his] own accord’’ 

and ‘‘the only time [he] signed was when [he] was 

incarcerated’’ or ‘‘back in the 90s when [the Courts] 

wanted [him] to have a paper signed.’’ Tr. 57. 13The Respondent qualified his answer by saying 

‘‘[a] few of the prescriptions were actually for dogs 

that were damaged horribly.’’ Tr. 102. 14The Respondent was a convicted felon in 

possession of a firearm, which he had used after his 

felony conviction. Gov’t Ex. 8 at 19–20. At the 

hearing for the instant case, the Respondent 

admitted to having ‘‘a deer shotgun and a .22 rifle 

here for protection for [his] office and family.’’ Tr. 

127. 

15The Respondent testified that the Certificate of 

Completion for the Intensive Outpatient Program of 

Hocking County that was admitted into evidence as 

Respondent’s Exhibit B is the same program as the 

SAND program. Tr. 60–61, 103. 

When his license was reinstated, he 

went back to working with his father. 

Tr. 49. His father died in 2010, but he 

continued to work in the office with his 

half-sister, who was also a veterinarian. 

Tr. 50. They ultimately ‘‘parted ways’’ 

in the fall of 2011. Tr. 50–51. At this 

point, the Respondent had been sober 

for approximately thirteen years. Tr. 

120. 

In October of 2011, he learned that he 

had avascular necrosis of both of his 

hips, which he found to be quite 

painful. Tr. 51. He was prescribed 

opiates by the emergency room doctor, 

likely Percocet, after this diagnosis, and 

continued receiving opiate prescriptions 

after having hernias repaired in 

November 2011. Tr. 51, 52, 120. He had 

hip replacement surgery in January 

2012. Tr. 52. He continued to receive 

opiate prescriptions from various 

doctors until a doctor indicated that he 

would no longer prescribe him opiates. 

Tr. 52–53. He then reached out to a 

surgeon who prescribed him opiates 

after the Respondent ‘‘used an argument 

of professional courtesy,’’ but this 

doctor ultimately stopped prescribing 

opiates to him. Tr. 53. The Respondent 

then started doing illegal activities 9 to 

acquire his own drugs for about three or 

four months. Tr. 53 (‘‘went on for maybe 

three months’’); Tr. 83 (‘‘over a fourmonth period’’). A pharmacist friend 

called and asked about one of the 

prescriptions the Respondent wrote and 

he lied and told the pharmacist that the 

prescription was ‘‘okay.’’ 10 Tr. 53. This 

incident prompted him to seek help. He 

started going to meetings and took part 

in a faith-based rehabilitative program, 

Alcohol Chemical Tobacco Symposium 

(‘‘ACTS’’) prior to his incarceration.11

Tr. 53–55, 62; Resp’t Ex. C. 

The Respondent was ultimately 

served with a warrant in September 

2012. Tr. 56. After receiving the 

warrant, he went to church, attended 

Alcoholics Anonymous (‘‘AA’’) and 

Narcotics Anonymous (‘‘NA’’) meetings, 

and continued to practice as a vet.12 Tr. 

57. Criminal charges were filed against 

him in 2015, and he was arrested. Tr. 

58. The Respondent pleaded guilty to 

ten counts of Illegal Processing of Drug 

Documents. Tr. 58–59. The Respondent 

admitted that he pleaded guilty to ten 

counts of Illegal Processing of Drug 

Documents based on a scheme whereby 

he would write false prescriptions for 

dogs that he did not examine, and 

would either fill those prescriptions and 

take the pills for his own use or would 

sell the prescriptions to others.13 Tr. 

101–02. He also admitted that by issuing 

those prescriptions, in most cases, he 

did so without a legitimate medical 

purpose and outside the usual course of 

professional practice. Tr. 103. 

He denied using marijuana or 

smoking crack in 2011 or 2012. Tr. 122. 

But see Gov’t Ex. 8 at 21:1–11, 22:7–14 

(During the 2015 sentencing hearing, the 

Respondent testified that prior to his 

arrest he was smoking marijuana almost 

daily and started smoking crack again in 

2011). He testified that he did not recall 

making the statement to the trial judge 

in 2015 that he was smoking crack, 

although he may have used powdered 

cocaine in early 2012. Tr. 124. He also 

did not recall making the statement in 

2015 to the trial judge that he was 

smoking marijuana, and he did not 

recall smoking marijuana in 2011 or 

2012. Tr. 125. However, he later 

testified he probably last smoked 

marijuana during his opiate addiction in 

2011 or 2012. Tr. 125–26. He also did 

not recall a period when he was 

smoking marijuana almost daily. Tr. 

126–27. He stated that he did not ‘‘recall 

all that was going on’’ during the time 

of his opiate addiction and his ‘‘mind 

was horribly confused . . . and 

everything is a daze.’’ Tr. 126. 

The Respondent was also given a 

twenty-four-month sentence for a gun 

violation.14 Tr. 127; Gov’t Ex. 6 at 2; 

Gov’t Ex. 8 at 19–20. He served a 

seventeen-month prison sentence for his 

drug-related crimes from late 2015 until 

spring 2017, and received about thirty 

days off his sentence for good behavior. 

Tr. 59, 64. But see Tr. 127 (The 

Respondent testified that he served a 

concurrent twenty-four-month sentence 

for his gun-related crime with about 

thirty days off his sentence for good 

behavior.). While incarcerated, he 

surrendered his veterinary license to the 

Board. Tr. 63. 

While he was incarcerated, he applied 

to the Seeking a New Direction 

(‘‘SAND’’) program, which had limited 

seating, attended NA and AA meetings 

weekly to bi-weekly, and chaired some 

NA meetings. Tr. 59–61, 103; Resp’t Ex. 

B.15 Also while incarcerated, he applied 

to and was accepted into the Kairos 

Inside Weekend Program, which is a 

faith-based organization where a group 

of men take part in ‘‘a complete 

weekend of spirituality,’’ learning to 

love themselves and forgive others. Tr. 

60, 103; Resp’t Ex. D. 

After being released from jail, he 

thanked God, took care of his wife, 

found employment, and took part in the 

ACTS program. Tr. 62, 64; Resp’t Ex. C. 

This program focused him on 

maintaining his sobriety. Tr. 96. He also 

got a job at Winland’s Complete 

Landscaping as a laborer, then advanced 

to head mower and trained others. Tr. 

64, 66–67. Despite pain from his hip, he 

never used opiates or other illegal 

substances while employed there, and 

‘‘will never touch another one.’’ Tr. 65. 

Instead, he took over-the-counter 

Ibuprofen and Tylenol and was 

prescribed Meloxicam and Flexeril, a 

muscle relaxant. Tr. 65, 99. 

Post-release, he attended AA and NA 

meetings. Tr. 65. He ‘‘used to go a lot,’’ 

but he has ‘‘pulled back some’’ and now 

goes when he feels ‘‘a little stressed’’ to 

hear other addicts, including ‘‘ones that 

are newly trying to recover,’’ so he can 

‘‘recall the pain, the discomfort, the 

dysfunction.’’ Tr. 66. 

When the Respondent applied for his 

veterinary license to be reinstated in 

Ohio, the Board initially denied his 

application. Tr. 68. The Board then held 

a hearing and decided ‘‘the same day’’ 

to reinstate his license. Tr. 69; Resp’t Ex. 

A. His veterinary license was 

reactivated in January 2020. Tr. 67, 70, 

87. Despite the fact that the Board’s 

decision stated that it was issuing him 

a license ‘‘with a reprimand letter,’’ the 

Respondent asserts that he did not 

receive such a letter. Tr. 107, 109; Resp’t 

Ex. A at 3. The Respondent further 

testified that there are no restrictions on 

his veterinary license and there was no 

discipline or reprimand. Tr. 69. The 

Board did not require any particular 


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16Upon further questioning by the tribunal, the 

Respondent admitted that he did not know if the 

Ohio Physicians’ Health Plan counseling is 

currently an in-person program, nor did he know 

if financial assistance or a lower fee arrangement 

might be available to him. Tr. 134–35. The 

Respondent further admitted that ‘‘I don’t know 

what the program actually consists of or how they 

run it, at this time.’’ Tr. 134. It therefore appears 

that the Respondent rejected out of hand any 

consideration of participating in the program based 

on his understanding of the program as it existed 

over twenty years ago, without making any inquiry 

as to how he might take part in or benefit from the 

program as it exists today. There did not seem to 

be any inquiry or investigation by the Respondent 

since the 1990’s to justify his testimony that ‘‘[i]t’s 

very expensive’’ and ‘‘something [he] could not 

afford.’’ Tr. 108. 

17At the conclusion of his direct examination, the 

Respondent read a prepared statement to the 

tribunal. Tr. 81–86. He explained that he does not 

‘‘make light of the abuse of the trust given to my 

profession.’’ Tr. 83. He admitted that he was 

convicted of the Illegal Processing of Drug 

Documents and has not lied or denied any of that. 

Tr. 83. He stated that he realized his actions harmed 

himself and potentially others and he regrets that. 

Tr. 83–84. He has also reviewed the standards for 

record-keeping for controlled substances, purchased 

key locks and a key lockbox, and will comply with 

all necessary regulations. Tr. 85, 116. 

18The Respondent did not offer into evidence any 

documentation of any drug test results he may have 

had over the years. Nor did the Respondent testify 

regarding what drugs he was tested for or when he 

last submitted to a drug test. 

19Although the Board may not have ever taken 

action against his license, this certainly does not 

mean that the Respondent has at all times provided 

proper care. The Respondent testified that one of 

the illegal prescriptions he wrote drew the attention 

of the filling pharmacist who questioned the 

legitimacy of the prescription. Tr. 53, 97. Though 

this prescription was diverted for illegal human 

use, the medical records of the animal patient 

would presumably falsely reflect that the animal 

had been prescribed the drug. 

rehabilitation or monitoring by the 

Board for his current license. Tr. 110– 

11. In its Finding and Order, the Board 

did suggest that the Respondent 

‘‘operate his practice under direct 

supervision by a licensed veterinarian.’’ 

Tr. 107–08, 135–36; Gov’t Ex. A at 3. 

The Respondent is not doing that. Tr. 

107–08, 135. The Board’s Finding and 

Order also suggested that he attend Ohio 

Physicians’ Health Plan counseling for 

five years. Tr. 108, 134–35; Gov’t Ex. A 

at 3. Respondent is also not doing this 

because when he previously looked into 

it—back in the 1990’s—it was quite 

expensive and he would have to 

commute to Columbus, Ohio.16 Tr. 108, 

134–35. The Board has not checked in 

on the Respondent since reinstating his 

license. Tr. 69–70. 

The Respondent built up his practice 

and set up an office in his house as a 

sole practitioner with his wife as his 

secretary and assistant. Tr. 70, 93–94, 

106. He has seen approximately 1,000 

patients since his license was reinstated. 

Tr. 70. The Respondent is specifically 

seeking the use of Schedule III, IV, and 

V drugs including Ketamine, which he 

would use as an anesthetic. Tr. 71–72, 

90. He is also requesting Diazepam and 

Phenobarbital, which are used on 

animals having seizures. Tr. 73, 90. He 

is also seeking the use of testosterone 

and estrogen, which can be used on 

dogs with prostatitis. Tr. 74, 90. He is 

also seeking use of Nandrolene, an 

anabolic steroid, and Telazol, a shortacting narcotic. Tr. 75–76, 90. The 

Respondent would only administer 

these controlled substances, except for 

Phenobarbital, which he would 

prescribe to epileptic dogs. Tr. 91, 92. 

The Respondent is aware that Ketamine 

and Diazepam are controlled substances 

that are diverted. Tr. 94–95. 

Every day, he prays, and he has 

learned many concepts and tools 

through NA and his rehabilitation 

programs. Tr. 79, 137–38. He has 

learned that addiction is ‘‘a lifelong 

condition and it needs proper 

maintenance’’ and that sobriety ‘‘takes 

work, it takes maintenance.’’ Tr. 80, 111. 

He would describe himself as ‘‘a grateful 

recovered addict.’’ Tr. 112. He also 

believes that addiction is ‘‘part of [his] 

personality.’’ Tr. 121. He testified that 

he appreciates that the Board reinstated 

his license and ‘‘can guarantee [he] 

would never, ever, ever abuse that 

authority again.’’ Tr. 81.17

Since his incarceration, the 

Respondent has not taken any classes or 

continuing education regarding his 

responsibilities and duties as someone 

with the authority to prescribe and 

administer controlled substances, but he 

did review regulations for the storage of 

controlled substances and recordkeeping. Tr. 85, 116. The Respondent 

testified that he was ‘‘not aware of any 

classes’’ regarding responsibilities and 

duties of those with the authority to 

prescribe and administer controlled 

substances. Tr. 116. The last time the 

Respondent used an illegal controlled 

substance or any properly prescribed 

controlled substance was in 2012. Tr. 

56, 96–98. He has been drug tested 

‘‘[m]any times’’ since 2012 and has 

never had a positive result.18 Tr. 56. 

The Respondent stated that what is 

currently different as it relates to his 

prescribing or administering of 

controlled substances is the fact that he 

is no longer addicted to opiates. Tr. 

111–12. He also does not continue to 

associate with any of the people he 

provided false prescriptions to in 2012. 

Tr. 112. The Respondent asserts that he 

did not provide drugs to his son (or any 

other relatives), either by prescribing or 

diverting them. Tr. 113, 115–16, 117–18. 

But see Gov’t Ex. 8 at 16:17–18 (The 

Respondent stated that he ‘‘became 

addicted [himself] and [his] son as well 

. . . .’’); Gov’t Ex. 8 at 18:15–19 (At the 

sentencing hearing, the trial judge stated 

‘‘you probably don’t even know who all 

the victims are that got those drugs, do 

you?’’ to which the Respondent replied 

‘‘One was my son, one was myself, I 

know that.’’). 

The Respondent believes a DEA COR 

would allow him to ‘‘practice at a higher 

level’’ and would provide for a ‘‘better 

outcome or safety.’’ Tr. 71, 76–77. The 

State of Ohio has never taken an action 

against his veterinary license due to the 

care he provided or failed to provide to 

an animal.19 Tr. 77. The Respondent 

stated that he does not plan on writing 

prescriptions and trading them for drugs 

and he takes responsibility for his 

actions. Tr. 77, 137. 

Regarding the Respondent’s 

credibility, I note several areas of his 

testimony where there were 

inconsistencies or where his testimony 

was in direct opposition to previous 

testimony or established facts. First, the 

Respondent’s testimony in this hearing 

that he never provided drugs to his son 

is in direct conflict with testimony he 

provided in his 2015 criminal 

proceedings as reflected in the 

sentencing transcript. Second, the 

Respondent’s testimony in this hearing 

that he was not abusing other drugs, 

specifically crack and marijuana, at the 

time that he developed his addiction to 

opiates conflicts with testimony he 

provided, as reflected in the transcript, 

to the court during his 2015 sentencing. 

Third, the Respondent first testified that 

the Ohio Physicians’ Health Plan 

counseling was too expensive for him to 

afford and also too far away for him to 

attend the in-person sessions. However, 

upon further examination by the 

tribunal, Respondent admitted he did 

not make any inquiries into the program 

after receiving the Board’s Finding and 

Order and that his testimony was based 

on an inquiry he made back in the 

1990’s. Based on these inconsistencies 

in the Respondent’s statements, and 

Respondent’s uninformed (to be 

charitable) initial testimony regarding 

the Ohio Physicians’ Health Plan 

counseling, I cannot fully credit the 

Respondent’s testimony. 

A.B. 

A.B. has known the Respondent since 

1995 and has taken her pets to him as 

her veterinarian since that time, except 

when he was not able to practice. Tr. 

142–43. She is not a veterinarian and 

has never prescribed or administered 

controlled substances. Tr. 147–48. She 

knows that the Respondent was unable 


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20Tr. 140. 

21Although R.W. did not testify as to the type of 

business he operates, he did describe the 

Respondent’s responsibilities as ‘‘mowing’’ and 

being ‘‘in charge of the mowing crew.’’ Tr. 151. The 

Respondent also previously testified that he worked 

for W.’s Complete Landscaping, a landscaping 

service. Tr. 64. 

22Tr. 140. 

23The Respondent testified he did not graduate 

from veterinary school until 1994 and he then went 

into private practice with his father. Tr. 44–45. 

While G.G. may have been mistaken as to whether 

the Respondent had personally cared for his cats as 

early as 1990, the Respondent also testified that he 

had ‘‘managed dogs and horses and cats’’ since he 

was six, (Tr. 68), so it is plausible that the 

Respondent was assisting in his father’s practice in 

1990 in some capacity. 

24Tr. 140. 

to practice because he lost his license 

due to ‘‘some mistakes with drugs.’’ Tr. 

143. She has chronically ill animals— 

puppy mill survivors—that she takes to 

the Respondent for care because their 

severe illnesses require someone who 

will take the time to ‘‘keep these dogs 

going.’’ Tr. 143–45. The Respondent has 

always taken time to sit down and order 

lab tests. Tr. 144. She has never seen the 

Respondent appear to be under the 

influence of drugs or alcohol during any 

of her visits. Tr. 146–47. She trusts the 

Respondent. Tr. 147. 

A.B. was called as a character 

witness,20 and although the depth of her 

knowledge of the Respondent’s 

suitability to act as a responsible DEA 

registrant is extremely limited, she 

presented testimony that was 

sufficiently cogent, detailed, plausible, 

and internally consistent to be 

considered generally creditable. 

Although A.B. has known the 

Respondent for over twenty-five years, 

her interactions with him have been 

limited to the times over the years when 

she has brought her animals to him for 

care. Nevertheless, I credit her 

testimony that the Respondent has 

rendered compassionate care to her 

animals and has never appeared to be 

under the influence of alcohol or drugs. 

R.W. 

The Respondent was employed by 

R.W.’s landscaping 21 company about 

three and a half years ago. Tr. 150. R.W. 

is not a veterinarian and has never 

prescribed or administered controlled 

substances. Tr. 153. Although the 

Respondent had felony convictions, 

R.W. needed employees and the 

Respondent was ‘‘up front and honest’’ 

with him about his situation, so R.W. 

gave him a chance. Tr. 150. The 

Respondent passed the initial drug test 

and never appeared to be under the 

influence of drugs or alcohol while he 

worked for R.W. Tr. 150–51. He was a 

hard worker and R.W. trusts him. Tr. 

151. R.W. takes all of his pets to the 

Respondent for veterinary care. Tr. 151– 

52. The Respondent has never appeared 

to be under the influence of drugs or 

alcohol when R.W. brought his animals 

to the clinic. Tr. 152. 

R.W. was called as a character 

witness 22 and, like the first character 

witness, although the depth of his 

knowledge of the Respondent’s 

suitability to act as a responsible DEA 

registrant is extremely limited, he 

presented testimony that was 

sufficiently cogent, detailed, plausible, 

and internally consistent to be 

considered generally creditable. As a 

past employer, R.W. had more 

opportunities to observe the 

Respondent’s condition on a day-to-day 

basis and he also had a stake in the 

Respondent remaining sober while 

employed. I therefore credit his 

testimony that the Respondent passed 

an initial drug test and maintained 

sobriety during the course of his 

employment. 

G.G. 

The Respondent and the Respondent’s 

father had taken care of G.G.’s cats in 

1990.23 Tr. 156. G.G. ran an animal 

shelter, which he took over in 1992, 

until he retired in 2005. Tr. 156–57. 

G.G. does not keep in contact with 

anybody from the shelter. Tr. 159. The 

Respondent’s father and the Respondent 

worked with this shelter, taking care of 

animals. Tr. 156. G.G. is not a 

veterinarian and he does not have a 

DEA COR. Tr. 160–61. G.G. believed 

that the Respondent was very 

knowledgeable in pet care and would 

explain to his clients how to care for 

their pets. Tr. 158. G.G. currently takes 

his dog to the Respondent. Tr. 158. 

Despite the fact that the Respondent is 

a convicted felon, it has never come up 

in conversation because he believes the 

Respondent’s concern is what he can do 

for the pets. Tr. 158–59. G.G. has never 

seen the Respondent appear to be under 

the influence of drugs or alcohol. Tr. 

159. While G.G. worked at the shelter, 

he never heard any complaints about 

the Respondent’s care. Tr. 159–60. 

G.G. was called as a character 

witness 24 and, like the other two 

character witnesses, although the depth 

of his knowledge of the Respondent’s 

suitability to act as a responsible DEA 

registrant is extremely limited, he 

presented testimony that was 

sufficiently cogent, detailed, plausible, 

and internally consistent to be 

considered generally creditable. Because 

G.G. retired from the animal shelter in 

2005, well before the Respondent’s most 

recent drug violations, and because he 

has not kept in touch with people at the 

animal shelter, I find that the substance 

of his testimony is more relevant as a 

client who takes his dog to the 

Respondent for care. I therefore credit 

his testimony that the Respondent has 

rendered compassionate care to his dog 

and has never appeared to be under the 

influence of alcohol or drugs. 

Other facts necessary for a disposition 

of this case are set forth in the balance 

of this Recommended Decision. 

II. Discussion 

The burden of proof at this 

administrative hearing is a 

preponderance-of-the-evidence 

standard. Steadman v. SEC, 450 U.S. 91, 

100–01 (1981). The Administrator’s 

factual findings will be sustained on 

review to the extent they are supported 

by ‘‘substantial evidence.’’ Hoxie v. 

DEA, 419 F.3d 477, 482 (6th Cir. 2005). 

The Supreme Court has defined 

‘‘substantial evidence’’ as such 

‘‘relevant evidence as a reasonable mind 

might accept as adequate to support a 

conclusion.’’ Consolidated Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938). While 

‘‘the possibility of drawing two 

inconsistent conclusions from the 

evidence’’ does not limit the 

Administrator’s ability to find facts on 

either side of the contested issues in the 

case, Shatz v. U.S. Dep’t of Justice, 873 

F.2d 1089, 1092 (8th Cir. 1989), all 

‘‘important aspect[s] of the problem,’’ 

such as a respondent’s defense or 

explanation that runs counter to the 

Government’s evidence must be 

considered. Wedgewood Vill. Pharmacy 

v. DEA, 509 F.3d 541, 549 (D.C. Cir. 

2007). The ultimate disposition of the 

case must ‘‘be in accordance with the 

weight of the evidence, not simply 

supported by enough evidence to 

justify, if the trial were to a jury, a 

refusal to direct a verdict when the 

conclusion sought to be drawn from it 

is one of fact for the jury.’’ Steadman, 

450 U.S. at 99 (internal quotation marks 

omitted). 

Regarding the exercise of 

discretionary authority, the courts have 

recognized that gross deviations from 

past agency precedent must be 

adequately supported, Morall v. DEA, 

412 F.3d 165, 183 (D.C. Cir. 2005), but 

‘‘mere unevenness’’ in application does 

not, standing alone, render a particular 

discretionary action unwarranted. Chein 

v. DEA, 533 F.3d 828, 835 (D.C. Cir. 

2008) (citing Butz v. Glover Livestock 

Comm’n Co., 411 U.S. 182, 188 (1973)). 

It is well-settled that because the 

Administrative Law Judge has had the 

opportunity to observe the demeanor 

and conduct of hearing witnesses, the 

factual findings set forth in this 


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*CA provision of section 824 may be the basis for 

the denial of a practitioner registration application 

and allegations related to section 823 remain 

relevant to the adjudication of a practitioner 

registration application when a provision of section 

824 is involved. See Robert Wayne Locklear, M.D., 

86 FR 33,738, 33,744–45. 

25Ohio Rev. Code. Ann. § 2925.23(B)(1) states 

that ‘‘[n]o person shall intentionally make, utter, or 

sell, or knowingly possess any of the following that 

is false or forged: (1) Prescription.’’ 

*DAlthough discussed herein as background, I 

am not considering the weapons charge under 21 

U.S.C. 824(a)(2). 

26The Government provided a copy of the signed 

plea agreement from the Muskingum County Court 

of Common Pleas. Gov’t Ex. 4. The parties 

stipulated that this document is a true and correct 

copy of Respondent’s signed plea agreement, dated 

July 20, 2015, in Case CR2015–0052, State of Ohio 

v. Michael E. Smith. Stip. 7. 

27The Government ‘‘shared’’ this document on 

the screen so the Respondent, who was attending 

the hearing from a different physical location from 

his counsel, (Tr. 6), and did not have copies of the 

ALJ exhibits, was able to follow along with this line 

of questioning. Tr. 100. 

Recommended Decision are entitled to 

significant deference, Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 496 (1951), 

and that this Recommended Decision 

constitutes an important part of the 

record that must be considered in the 

Administrator’s decision. Morall, 412 

F.3d at 179. However, any 

recommendations set forth herein 

regarding the exercise of discretion are 

by no means binding on the 

Administrator and do not limit the 

exercise of that discretion. 5 U.S.C. 

557(b); River Forest Pharmacy, Inc. v. 

DEA, 501 F.2d 1202, 1206 (7th Cir. 

1974); Attorney General’s Manual on the 

Administrative Procedure Act § 8 

(1947). 

In the adjudication of a denial of a 

DEA registration, the DEA has the 

burden of proving that the requirements 

for such registration are not satisfied. 21 

CFR 1301.44(d). Where the Government 

has sustained its burden and made its 

prima facie case, a respondent must 

both accept responsibly for his actions 

and demonstrate that he will not engage 

in future misconduct. Patrick W. 

Stodola, M.D., 74 FR 20,727, 20,734 

(2009). Acceptance of responsibility and 

remedial measures are assessed in the 

context of the ‘‘egregiousness of the 

violations and the [DEA’s] interest in 

deterring similar misconduct by [the] 

Respondent in the future as well as on 

the part of others.’’ David A. Ruben, 

M.D., 78 FR 38,363, 38,364 (2013). 

A. 21 U.S.C. 824(a)(2): Felony Related to 

Controlled Substances 

The Government alleges that the 

Respondent’s COR application should 

be denied because he has been 

convicted of a felony related to 

controlled substances, pursuant to 21 

U.S.C. 824(a)(2). Under this provision, 

the Attorney General may deny,*C

revoke, or suspend a registration issued 

under 21 U.S.C. 823 ‘‘upon a finding 

that the registrant . . . has been 

convicted of a felony under this 

subchapter or subchapter II of this 

chapter or any other law of the United 

States, or of any State, relating to any 

substance defined in this subchapter as 

a controlled substance or a list I 

chemical.’’ 21 U.S.C. 824(a)(2)(emphasis 

added). Under 21 U.S.C. 824(a)(2), a 

felony conviction related to controlled 

substances is a lawful basis to revoke a 

COR, but the question of whether the 

registration is revoked is a matter of 

discretion. Alexander Drug Co., Inc., 66 

FR 18,299, 18,302 (2001). 

The Government alleges that on July 

20, 2015, the Respondent pleaded guilty 

to ten counts of Illegal Processing of 

Drug Documents in violation of Ohio 

Rev. Code. Ann. § 2925.23(B)(1),25 and 

that the Respondent was sentenced to 

seventeen months of imprisonment to 

be served concurrently with a twentyfour-month prison sentence for a 

weapons charge.*D ALJ Ex. 1 at 2 ¶ 7. 

The Government further alleges that 

these ten convictions were based on a 

scheme in which the Respondent 

prepared false prescriptions for opioid 

medications, including hydromorphone 

and oxycodone/acetaminophen, for 

canines that did not exist or that the 

Respondent did not examine, and that 

the Respondent would either fill these 

prescriptions for his personal use or sell 

the prescriptions to others in exchange 

for cash or other controlled substances. 

ALJ Ex. 1 at 2–3 ¶ 8. 

The Government provided a copy of 

the Respondent’s signed guilty plea in 

which the Respondent pleaded guilty to 

ten counts of Illegal Processing of Drug 

Documents and one count of Having a 

Weapon While Under Disability.26 Gov’t 

Ex. 4. The Respondent also admitted 

that he pleaded guilty to ten counts of 

Illegal Processing of Drug Documents in 

his Application for Registration, Form 

DEA 224 (‘‘application’’). Gov’t Ex. 2 at 

1–2. Specifically, in response to 

background question one on the 

application, which asks whether the 

applicant has ‘‘ever been convicted of a 

crime in connection with controlled 

substance(s) under state or federal law,’’ 

the Respondent responded ‘‘Yes’’ and 

indicated the following: 

Incident Date: 10/05/2015 Incident 

Location: MUSKINGUM COUNTY OHIO 

Incident Nature: IN 2012 I BECAME 

ADDICTED TO OPIATES AFTER 5 

STRAIGHT MONS OF DR. PRESCRIBED 

OPIATES FOR 2 MAJOR SURGERIES. WHEN 

THE DRS. FINALLY STOPPED THEM I 

WROTE OPIATE PRESCRIPTIONS FOR 

DOGS AND TOOK SOME FOR MY OWN 

USE. I DID THIS OVER A THREE MONTH 

PERIOD UNTIL I CAME TO MY SENSES 

AND SOUGHT HELP FOR MY ADDICTION. 

Incident Result: IN 2015 AFTER BEING 

CHARGED I PLEAD GUILTY TO 10 COUNTS 

OF ILLEGAL PROCESSING OF DRUG 

DOCUMENTS AND SURRENDERED MY 

VET. LICENSE AND MY DEA 

REGISTRATION. I SERVED 17 MONS. 

INCARCERATED AND COMPLETED 2 

REHABILITATION/RECOVERY PROGRAMS 

. . . . 

Gov’t Ex. 1 at 1–2 (emphasis in 

original). 

The Respondent also testified at the 

April 19, 2021 hearing that he had 

pleaded guilty to ‘‘10 counts . . . of 

illegal processing of drug documents’’ 

and that he received a seventeen-month 

sentence for these charges and served all 

seventeen months, except ‘‘possibly 30 

days off the sentence for good 

behavior.’’ Tr. 58–59, 101. 

During cross-examination, the 

Government referenced ALJ Exhibit 1, 

the Order to Show Cause for the instant 

case. Tr. 100.27 The Government read 

through Paragraphs 7 and 8, and the 

Respondent agreed he pleaded guilty to 

these ten counts of Illegal Processing of 

Drug Documents. Tr. 101. The 

Government also asked the Respondent 

whether these false prescriptions were 

based on a scheme whereby he would 

write false prescriptions for dogs the 

Respondent did not examine and would 

then fill those prescriptions for his own 

use or would sell the prescriptions to 

others. Tr. 102; ALJ Ex. 1 at 3 ¶ 11. The 

Respondent indicated that although a 

‘‘few of the prescriptions were actually 

for dogs that were damaged horribly,’’ 

he ‘‘did write prescriptions that should 

not have been written so [he] could 

acquire these drugs to feed [his] 

addiction. [He] fully admit[s] . . . freely 

admit[s] that.’’ Tr. 102. The Respondent 

also testified that he knew ‘‘some people 

did acquire’’ these false prescriptions. 

Tr. 102. Although the Respondent did 

not testify at the April 19, 2021 hearing 

that the specific controlled substances 

included hydromorphone and 

oxycodone, the transcript from his 

guilty plea, which was stipulated to by 

the parties, indicates that this scheme 

indeed included prescriptions for 

hydromorphone/Dilaudid, and 

oxycodone/APAP, which are both 

Schedule II controlled substances. Gov’t 

Ex. 7 at 14; See Stip. 10, 12, 13. 

Therefore, through the Respondent’s 

testimony, the exhibits, and the 

stipulations, there is no controversy that 

the Respondent has pleaded guilty to 

ten counts of Illegal Processing of Drug 

Documents in violation of Ohio Rev. 


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28The record contains no recommendation from 

any state licensing board or professional 

disciplinary authority (Factor One), but, aside from 

cases establishing a complete lack of state authority, 

the presence or absence of such a recommendation 

has not historically been a case-dispositive issue 

under the Agency’s precedent. Stodola, M.D., 74 FR 

20,730 n.16; Krishna-Iyer, 74 FR 461. Two different 

forms of recommendations have appeared in 

Agency decisions: (1) An explicit recommendation 

regarding the DEA’s decision to issue or sanction 

a COR; and (2) the action of the relevant state 

authority regarding state licensure under its 

jurisdiction on the same matter that is the basis for 

the OSC. Mark A. Wimbley, 86 FR 20,713, 20,725 

(2021); see also, Jennifer L. St. Croix, M.D., 86 FR 

19,010, 19,022 (2021) (Agency affords minimal 

weight to a state board reprimand due to differences 

in evidence considered by the state in issuing its 

order.); Jeanne E. Germeil, M.D., 85 FR 73,786, 

73,799 (2020) (Agency recognizes that its prior final 

orders have considered this dichotomy of sources 

for Factor One consideration). In the instant case, 

the Board did reinstate the Respondent’s veterinary 

license in a Finding and Order dated November 14, 

2019, after he surrendered it in 2015. See Resp’t Ex. 

A; ALJ Ex. 20 at 10 (‘‘There is approval from the 

Ohio Veterinary Medical Board. They granted Dr. 

Smith an unrestricted veterinary license, knowing 

his history of drug use and addiction.’’). The 

Respondent currently has an Ohio veterinary 

license. Therefore, although not determinative in 

this proceeding, Factor One tends to lean in favor 

of the Respondent. As the Government’s allegations 

and evidence fit squarely within the parameters of 

Factors Two, Three, and Four and do not raise 

‘‘other conduct which may threaten the public 

health and safety,’’ 21 U.S.C. 823(f)(5), Factor Five 

militates neither for nor against the sanction sought 

by the Government in this case. 

29The Respondent’s first and only DEA 

registration, COR No. FS1126146, was assigned to 

the Respondent on October 22, 2008, and was 

surrendered for cause on July 27, 2015. Gov’t Ex. 

2 at 1. 

30While OSC Allegation 11 charges the 

Respondent with violating Ohio Admin. Code 

4729:5–30, the Government did not present any 

evidence on this issue during the hearing and did 

not address the issue in its post-hearing brief. 

Therefore, the Government has apparently 

abandoned this particular portion of OSC 

Allegation 11. See George Pursley, M.D., 85 FR 

80,162, 80,181–82, 80,185 (2020) (finding the 

Government abandoned allegation by not 

addressing it within its post-hearing brief). I also 

take official notice that this particular 

administrative code section was rescinded, effective 

March 15, 2021. Ohio Admin. Code 4729:5–30 

(LexisNexis 2021). 

Code Ann. § 2925.23(B)(1), was 

sentenced to seventeen months 

imprisonment to be served concurrently 

with a twenty-four month prison 

sentence for a weapons charge, and that 

these counts were based on a scheme by 

which the Respondent prepared false 

prescriptions for canines that did not 

exist or that he did not examine, and 

that he either filled the prescriptions for 

his own use or sold the false 

prescriptions to others in exchange for 

cash or other controlled substances. 

Therefore, the allegations set forth in 

the OSC Allegations 7 and 8 are 

Sustained. 

B. 21 U.S.C. 823(f): Public Interest 

Determination 

Pursuant to 21 U.S.C. 823(f), the 

Administrator may deny an application 

for a registration if persuaded that 

maintaining such registration would be 

inconsistent with the public interest. 

The following factors shall be 

considered in determining the public 

interest: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing, or conducting research with 

respect to 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. 

21 U.S.C. 823(f). 

‘‘These factors are . . . considered in 

the disjunctive.’’ Robert A. Leslie, M.D., 

68 FR 15,227, 15,230 (2003). Any one or 

a combination of factors may be relied 

upon, and when exercising authority as 

an impartial adjudicator, the Agency 

may properly give each factor whatever 

weight it deems appropriate in 

determining whether a registrant’s 

registration should be revoked. Id.; 

David H. Gillis, M.D., 58 FR 37,507, 

37,508 (1993); see also Morall, 412 F.3d 

at 173–74 (D.C. Cir. 2005); Henry J. 

Schwarz, Jr., M.D., 54 FR 16,422, 16,424 

(1989). 

Moreover, the Agency is ‘‘not required 

to make findings as to all of the factors,’’ 

Hoxie, 419 F.3d at 482; see also Morall, 

412 F.3d at 173, and is not required to 

discuss consideration of each factor in 

equal detail, or even every factor in any 

detail. Trawick v. DEA, 861 F.2d 72, 76 

(4th Cir. 1988) (holding that the 

Administrator’s obligation to explain 

the decision rationale may be satisfied 

even if only minimal consideration is 

given to the relevant factors, and that 

remand is required only when it is 

unclear whether the relevant factors 

were considered at all). The balancing of 

the public interest factors ‘‘is not a 

contest in which score is kept; the 

Agency is not required to mechanically 

count up the factors and determine how 

many favor the Government and how 

many favor the registrant. Rather, it is 

an inquiry which focuses on protecting 

the public interest . . . .’’ Jayam 

Krishna-Iyer, M.D., 74 FR 459, 462 

(2009). 

Factors Two, Three, and Four 

The Government contends that 

granting the Respondent’s application 

for registration would be inconsistent 

with the public interest based on 

Factors Two, Three, and Four.28 ALJ Ex. 

1 at 3 ¶ 10. Under Factor Two, the DEA 

analyzes a registrant’s ‘‘experience in 

dispensing . . . controlled substances.’’ 

21 U.S.C. 823(f)(2). This analysis 

focuses on the registrant’s acts that are 

inconsistent with the public interest, 

rather than on a registrant’s neutral or 

positive acts and experience. Kansky J. 

Delisma, M.D., 85 FR 23,845, 23,852 

(2020) (citing Randall L. Wolff, M.D., 77 

FR 5106, 5121 n.25 (2012)). Likewise, 

under Factor Four, the DEA analyzes an 

applicant’s compliance with Federal 

and state laws, with the analysis 

focusing on violations of state and 

Federal laws and regulations concerning 

controlled substances. 21 U.S.C. 

823(f)(4); Kansky J. Delisma, M.D., 85 FR 

23,852 (citing Volkman v. DEA, 567 

F.3d 215, 223–24 (6th Cir. 2009). Under 

Factor Three, the tribunal may consider 

a registrant’s ‘‘conviction record under 

Federal or State laws relating to the 

manufacture, distribution, or dispensing 

of controlled substances.’’ 21 U.S.C. 

823(f)(3). A guilty plea may be 

considered under the third factor of the 

public interest standard. Mark P. Koch, 

D.O., 79 FR 18,714, 18,734 n.121 (2014). 

Regarding Factor Two, the 

Respondent has approximately seven 

years of experience 29 with dispensing 

controlled substances as a veterinarian. 

Gov’t Ex. 2 at 1. In 2015, after pleading 

guilty to ten counts of Illegal Processing 

of Drug Documents, the Respondent 

surrendered his registration. As 

discussed supra, the Respondent 

admitted that he wrote false 

prescriptions ‘‘that should not have 

been written so [he] could acquire these 

drugs to feed [his] addiction.’’ Tr. 102. 

He also admitted that ‘‘some people did 

acquire’’ some of these false 

prescriptions. Tr. 102, 112. These 

prescriptions included hydromorphone/ 

Dilaudid, a Schedule II controlled 

substance, and oxycodone/APAP, also a 

Schedule II controlled substance. Gov’t 

Ex. 7 at 14; Stips. 12, 13. 

As it relates to Factor Four, the record 

establishes multiple instances in which 

the Respondent failed to comply with 

applicable Federal and State laws. The 

Government alleges that the Respondent 

violated 21 U.S.C. 841(a), 842(a), and 

Ohio Admin. Code 4729:5–30.30 ALJ Ex. 

1 at 3 ¶ 11. The Controlled Substances 

Act’s (‘‘CSA’’) general criminal 

provision is contained in 21 U.S.C. 

841(a), and in relevant part states: 

‘‘[e]xcept as authorized by this 

subchapter, it shall be unlawful for any 

person knowingly or intentionally . . . 

to manufacture, distribute, or dispense, 

or possess with intent to manufacture, 

distribute, or dispense, a controlled 


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31Koch, 79 FR 18,734 n.121. 

substance.’’ 21 U.S.C. 841(a)(1). 

‘‘Congress devised a closed regulatory 

system making it unlawful to 

manufacture, distribute, dispense, or 

possess any controlled substance except 

in a manner authorized by the CSA’’ to 

prevent abuse and diversion of 

controlled substances. Gonzales v. 

Raich, 545 U.S. 1, 13 (2005). DEA 

regulations require that for a 

prescription for a controlled substance 

to be effective it must be issued for a 

legitimate medical purpose by an 

individual practitioner acting in the 

usual course of professional practice. 21 

CFR 1306.04(a). 

Under the CSA, a veterinarian falls 

within the definition of a practitioner, 

and upon obtaining a registration, a 

veterinarian has legal authority to 

prescribe, administer or distribute a 

controlled substance to an ‘‘ultimate 

user,’’ who is a person who has lawfully 

obtained a controlled substance ‘‘for an 

animal owned by him or a member of 

his household.’’ Daniel Koller, D.V.M., 

71 FR 66,975, 66,981 (2006) (citing 21 

U.S.C. 802(21), (27)). 

As discussed supra, the Government 

referenced ALJ Exhibit 1 and read 

through OSC Allegations 10 and 11. Tr. 

101–03. The Respondent indicated that 

he understood the allegations and that 

he was guilty of the alleged conduct. Tr. 

101–03. 

Regarding Factor Three, as discussed 

at length throughout this Recommended 

Decision, the Respondent’s guilty plea, 

which may be considered under the 

third factor of the public interest 

standard,31 included ten counts of 

Illegal Processing of Drug Documents, 

which related to a scheme by which the 

Respondent would write fraudulent 

prescriptions which he would either fill 

himself, taking the pills for his own use, 

or would sell to others. Tr. 101–02. The 

Respondent began doing these ‘‘illegal 

activities’’ to acquire drugs for himself 

after he was unable to obtain further 

valid opioid prescriptions from other 

practitioners. Tr. 53, 83. 

Therefore, OSC Allegation 10 is 

Sustained and OSC Allegation 11 is 

Sustained in Part to the extent that the 

Respondent unlawfully issued 

prescriptions for controlled substances 

in violation of 21 U.S.C. 841(a) and 

842(a), specifically, by issuing 

fraudulent prescriptions and then 

converting those prescriptions to his 

own use or selling them, and that the 

Respondent issued prescriptions for 

controlled substances outside the usual 

course of professional practice and not 

for a legitimate medical purpose, (21 

CFR 1306.04(a)). OSC Allegation 11 is 

Not Sustained in Part to the extent that 

the Respondent violated Ohio Admin. 

Code 4729:5–30. 

As it relates to the Respondent’s 

experience in dispensing controlled 

substances, the Respondent’s 

compliance with applicable State and 

Federal laws relating to controlled 

substances, and the Respondent’s 

conviction record under Federal or State 

laws relating to the manufacture, 

distribution, or dispensing of controlled 

substances, Factors Two, Three, and 

Four militate strongly in favor of the 

Government’s position that granting the 

Respondent a DEA registration is 

inconsistent with the public interest. 

Based upon my review of the 

allegations by the Government, it is 

necessary to determine if it has met its 

prima facie burden of proving the 

requirements for a sanction pursuant to 

21 U.S.C. 824(a). 

It is clear from the stipulations, the 

Government’s evidence, and the 

Respondent’s position in this matter 

that there is no controversy between the 

parties that the Respondent was 

convicted of the underlying criminal 

charges. The Government’s evidence 

clearly demonstrates the necessary 

elements of proof under 21 U.S.C. 824 

and I find that the Government has 

established a prima facie case for denial 

of the Respondent’s application for 

registration. 

III. Sanction 

A. Acceptance of Responsibility and 

Rehabilitative Measures 

With the Government’s prima facie 

burden having been met, an 

unequivocal acceptance of 

responsibility stands as a condition 

precedent for the Respondent to prevail. 

Jones Total Health Care Pharmacy, 

L.L.C. & SND Health Care, L.L.C., 81 FR 

79,188, 79,201 (2016). This feature of 

the Agency’s interpretation of its 

statutory mandate on the exercise of its 

discretionary function under the CSA 

has been sustained on review. MacKay 

v. DEA, 664 F.3d 808, 819–20 (10th Cir. 

2011). Accordingly, the Respondent 

must ‘‘present[ ] sufficient mitigating 

evidence to assure the Administrator 

that [he] can be entrusted with the 

responsibility carried by such a 

registration.’’ Medicine ShoppeJonesborough, 73 FR 363, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23,848, 23,853 (2007)). As past 

performance is the best predictor of 

future performance, the DEA has 

repeatedly held that where an applicant 

has committed acts inconsistent with 

the public interest, the applicant must 

accept responsibility for its actions and 

demonstrate that it will not engage in 

future misconduct. ALRA Labs, Inc. v. 

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

Although the Respondent ‘‘freely 

admit[s] [he] did wrong,’’ his language 

was conditional, and as opposed to 

taking unequivocal responsibility, the 

record is replete with examples of the 

Respondent placing the blame of his 

addiction on others, including a former 

client and his doctors. Tr. 112. For 

example, when he discussed using 

cocaine a few years after graduating 

from veterinary school, he prefaced this 

by explaining that a lot his previous 

friends from high school ‘‘were using 

illicit drugs including cocaine’’ and that 

he did not ‘‘know much about’’ cocaine 

until he ‘‘had a client one night offer’’ 

him some. Tr. 47. When the Respondent 

was prescribed opiates in October 2011 

and ultimately became addicted to 

them, he blamed a string of doctors who 

treated him for various ailments. He 

testified that he was ‘‘not aware of the 

force of opiate addiction’’ (Tr. 121) and 

that he ‘‘had no idea what it was like 

until I found out myself.’’ Tr. 84. He 

explained that he ‘‘trusted the doctors to 

help’’ him, (Tr. 121), and ‘‘maybe [he] 

should have told the doctors, please 

don’t give me these opiates.’’ Tr. 122. 

With this detached approach, the 

Respondent appears to have abdicated 

his responsibility to participate in the 

proper management of his pain by 

accounting for his history of drug 

addiction. Even in his application, 

which is the subject of these 

proceedings, he stated that he 

‘‘BECAME ADDICTED TO OPIATES 

AFTER 5 STRAIGHT MONS OF DR. 

PRESCRIBED OPIATES FOR 2 MAJOR 

SURGERIES. WHEN THE DRS. 

FINALLY STOPPED THEM I WROTE 

OPIATE PRESCRIPTIONS FOR DOGS 

AND TOOK SOME FOR MY OWN 

USE.’’ Gov’t Ex. 2 at 1 (emphasis in 

original). Essentially, the Respondent, 

despite his status as a medical 

professional and onetime DEA 

registrant, claimed ignorance of the 

potential for addiction of cocaine and 

opiates and instead blamed others for 

his addiction. 

When the Respondent was crossexamined by Government counsel 

regarding the ten prescriptions he wrote 

for which he was convicted of Illegal 

Processing of Drug Documents, the 

Respondent expressed ambivalence 

stating that a ‘‘few of the prescriptions 

were actually for dogs that were 

damaged horribly.’’ Tr. 102. During this 

same line of questioning regarding the 

ten prescriptions for which he was 

convicted, when asked if he issued the 

prescriptions ‘‘without a legitimate 

medical purpose and outside the usual 


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32 It is startling that the Respondent couched his 

diversion of Schedule II controlled substances as 

‘‘potentially’’ harming others when he also testified 

that he was diverting to a ‘‘very big drug dealer,’’ 

thereby implicitly acknowledging the widespread 

effect of his diversion. Tr. 112–13. Additionally, 

when testifying that, were he to obtain a new DEA 

registration, he would not divert drugs from his 

practice to his son, he also testified that he was 

‘‘almost thankful’’ his son is ‘‘in jail right now so 

I don’t read in the morning paper that he’s dead.’’ 

Tr. 118. Thus, while the Respondent is intimately 

familiar with his own struggles with drug addiction 

and that of his son, the fact that he couches his own 

diversion as having ‘‘potentially’’ harmed others 

leads this tribunal to conclude that he has not yet 

come to terms with his own role in this country’s 

opioid crisis. 

33Where a registrant has not accepted 

responsibility, it is not necessary to consider 

evidence of the registrant’s remedial measures. Ajay 

S. Ahuja, M.D., 84 FR 5479, 5498 n.33 (2019) (citing 

Jones Total Health Care Pharmacy, L.L.C. & SND 

Health Care, L.L.C., 81 FR 79,202–03 (2016)). [In 

this case, even if Respondent had accepted 

responsibility, his remedial measures were 

inadequate.] Although the Respondent stated he 

believes he is fully rehabilitated, the tribunal is not 

entirely convinced the Respondent is taking the 

necessary measures to maintain his sobriety long 

term. He attended a few programs while 

incarcerated and on an outpatient basis after his 

release from jail. Although he stated that he attends 

NA meetings, by his own admission, he only does 

so when he ‘‘feel[s] maybe a little stressed.’’ Tr. 66. 

Furthermore, although he has ‘‘reviewed the 

standards for record keeping,’’ ‘‘purchased keyed 

locks, key lockbox,’’ and ‘‘will acquire controlled 

substance logbooks and keep meticulous records,’’ 

he has not taken any classes that relate to 

prescribing controlled substances. Tr. 85, 94. 

Finally, the Respondent does not appear to have 

seriously considered the Board’s suggestions, when 

he was relicensed, that he attend counseling and 

practice under the supervision of another 

veterinarian. See supra at 9 n.19. Although the 

Respondent asserts that he ‘‘learned through 

education about addiction that it is a lifelong 

condition,’’ he does not appear to have in place an 

adequate support system (such as participating in 

the Ohio Physicians’ Health Plan counseling) or an 

oversight structure (such as operating his practice 

under direct supervision by a licensed veterinarian) 

such that the tribunal has confidence he can be 

entrusted with a registration. Tr. 80. 

34 I note that the Respondent did not include his 

1997 conviction related to cocaine possession or his 

two-year veterinary license suspension in the late 

1990’s in his liability question responses. Gov’t Ex. 

2 at 1–2. However, because the Government did not 

make any allegations regarding a material 

falsification of the Respondent’s application and 

also did not specifically rely on these events for 

denial of the instant application, I have not 

considered the previous conviction and license 

discipline except as historical information to put 

the Respondent’s 2015 conviction and loss of his 

veterinary license into the proper context given his 

past experience. Presumably, the Agency was aware 

of these incidents when it granted the Respondent’s 

previous application for registration in 2008— 

which the Respondent surrendered for cause in 

2015. Gov’t Ex. 2 at 1. 

35 In the Respondent’s mind, his cocaine 

addiction in the 1990’s and his opiate addiction 

years later are unconnected and he implies he could 

not have foreseen his later addiction to opiates 

because he was ‘‘never addicted to opiates’’ and 

‘‘didn’t go looking for a new addiction.’’ Tr. 121. 

The Respondent also took issue with the tribunal’s 

characterization of his opiate addiction as ‘‘a 

relapse.’’ Tr. 122. The Respondent made similar 

statements to the judge at his criminal sentencing 

in 2015 when the judge stated he was concerned 

because the Respondent had a drug addiction 

earlier in life and the Respondent replied ‘‘I never 

had a (sic) opiate problem.’’ Gov’t Ex. 8 at 16–17. 

The judge in the criminal proceeding did not 

appear to accept this rationale, stating ‘‘[y]ou had 

an addictive problem’’ and ‘‘[y]ou know how 

addictive opiates are. And you’re an addict. Were 

and are.’’ Gov’t Ex. 8 at 17. 

course of professional practice,’’ the 

Respondent would only allow that ‘‘[i]n 

most cases that is exactly correct.’’ Tr. 

103 (emphasis added). The 

Respondent’s answers to these pointed 

questions about the ten distinct 

prescriptions for which he was 

convicted do not exhibit an unequivocal 

acceptance of responsibility. 

He also appears to have regret mostly 

for what his actions caused to his own 

life and it is evident the Respondent 

does not fully comprehend the 

repercussions of his actions and the 

effects it had on the community at large. 

During his testimony, he stated that his 

‘‘actions had harmed [himself] and 

potentially others.’’ 32 Tr. 83–84; 102 

(emphasis added). He also discussed the 

fact that he went through bankruptcy 

proceedings and ‘‘lost everything that 

[he] ever worked for.’’ Tr. 108. When 

questioned regarding the other people 

who obtained false prescriptions 

through him, the Respondent was only 

able to ‘‘mainly recall two people 

[whose] prescriptions were improper,’’ 

one of which he ‘‘found out later . . . 

was a very big drug dealer in this area.’’ 

Tr. 112–13. The Respondent’s failure to 

fully grasp how his diversion adversely 

impacted his community is a failure to 

accept full responsibility for his actions. 

Therefore, I do not find that the 

Respondent has demonstrated an 

‘‘unequivocal acceptance of 

responsibility’’ for his actions. Jones 

Total Health Care Pharmacy, L.L.C., 81 

FR 79,201–02. Due to the fact that this 

is the Respondent’s second episode of 

addiction and the fact that he used his 

DEA registration to divert controlled 

substances for a period spanning several 

months, I do not have confidence in the 

Respondent’s statement that he ‘‘can 

guarantee [he] would never, ever, ever 

abuse that authority again.’’ Tr. 81.33

B. Egregiousness, Deterrence, and Lack 

of Candor 

While a registrant must accept 

responsibility and demonstrate that he 

will not engage in future misconduct in 

order to establish that his continued 

registration is consistent with the public 

interest, DEA has repeatedly held these 

are not the only factors that are relevant 

in determining the appropriate sanction. 

See, e.g., Joseph Gaudio, 74 FR 10,083, 

10,094 (2009); Southwood Pharm., Inc., 

72 FR 36,487, 36,502–04 (2007). The 

egregiousness and extent of a 

registrant’s misconduct are significant 

factors in determining the appropriate 

sanction. See Jacobo Dreszer, 76 FR 

19,386, 19,387–88 (2011) (explaining 

that a respondent can ‘‘argue that even 

though the Government has made out a 

prima facie case, his conduct was not so 

egregious as to warrant revocation’’); 

Paul H. Volkman, 73 FR 30,630, 30,644 

n.45 (2008). 

Further, in determining whether and 

to what extent imposing a sanction is 

appropriate, besides the egregiousness 

of the offenses established by the 

Government’s evidence, consideration 

must also be given to the Agency’s 

interest in both specific and general 

deterrence. Ruben, M.D., 78 FR 38,385. 

Here, the egregiousness of the offense 

favors denial of the application. The 

Respondent was convicted of ten counts 

of Illegal Processing of Drug Documents. 

These ten illegal prescriptions were for 

Schedule II controlled substances: Eight 

were for hydromorphone/Dilaudid and 

two were for oxycodone/APAP. Gov’t 

Ex. 7 at 14. The Respondent admitted 

that he diverted to numerous people, a 

few of whom he could recall and two of 

whom he specifically identified at the 

hearing. Tr. 112–13. The Respondent 

described one of these individuals as 

someone that he ‘‘found out later . . . 

was a very big drug dealer.’’ Tr. 112–13. 

Considerations of specific and general 

deterrence in this case militate in favor 

of denial of the application.34 As to 

specific deterrence, this is not the 

Respondent’s first bout with drug 

addiction, having suffered from cocaine 

addiction in the 1990’s and having 

served a term of incarceration for 

possession of that drug.35 Thus, the 

Respondent has acknowledged his past 

history of drug addiction, even going so 

far as to state he believes his ability to 

become ‘‘highly addicted’’ is ‘‘part of 

[his] personality.’’ Tr. 121. Thus, the 

interests of specific deterrence, even 

standing alone, motivate powerfully in 

favor of the denial of the Respondent’s 

application. 

The interests of general deterrence 

compel a like result. As the regulator in 

this field, the Agency bears the 

responsibility to deter similar 

misconduct on the part of others for the 

protection of the public at large. Ruben, 

78 FR 38,385. Where the record 

demonstrates that the Government has 

borne its burden and established that 

the Respondent was convicted of a 

felony related to controlled substances 

and abused his prescriptive privileges to 

actively divert controlled substances to 

himself and others by writing 

prescriptions in the names of purported 


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36 Gov’t Ex. 2 at 1. 

37The Respondent’s COR application was 

submitted on February 3, 2020. Gov’t Ex. 2 at 1. 

*E See Raymond A. Carlson, 53 FR 7425 (1988) 

(finding that none of the character ‘‘witnesses was 

in a position to make an adequate assessment of 

[r]espondent’s ability to properly handle controlled 

substances.’’). 

animal patients, the unmistakable 

message to the regulated community 

would be that such conduct can be 

overlooked after a period of nonregistration. Although the Respondent 

surrendered for cause his previous DEA 

registration in 2015,36 he was not 

eligible to reapply for a new registration 

until January 2020, when he reacquired 

his state veterinary license. The 

following month, he submitted his 

application for a new DEA 

registration.37 At this time, the 

Respondent has been without a DEA 

registration for nearly six years. I find 

that this is not an insignificant period of 

time. However, based on the 

egregiousness of the Respondent’s 

behavior discussed above, I find that the 

interests of general deterrence support 

the denial sought by the Government. 

Another factor that weighs 

significantly in favor of the denial 

sanction sought by the Government is 

lack of candor. In making the public 

interest determination, ‘‘this Agency 

places great weight on [a respondent’s] 

candor, both during an investigation 

and in [a] subsequent proceeding.’’ Fred 

Samimi, M.D., 79 FR 18,698, 18,713 

(2014) (quoting Robert F. Hunt, D.O., 75 

FR 49,995, 50,004 (2010)). 

Although the Agency did not make 

any allegations regarding a lack of 

candor by the Respondent during the 

investigation, in making my credibility 

determination, as discussed above, I 

found discrepancies between the 

Respondent’s prior testimony to the 

court at his sentencing hearing and 

statements made by the Respondent in 

this proceeding. During the instant 

proceeding, the Respondent 

downplayed the scope and extent of his 

drug use, contradicting statements he 

made at his sentencing hearing that he 

was doing crack around the same time 

he became addicted to opiates and 

disavowing his previously 

acknowledged ‘‘almost daily’’ use of 

marijuana by stating he was not using 

marijuana because he ‘‘was after 

something for [his] pain, not 

marijuana.’’ Tr. 126. Other statements at 

the hearing that his son was not the 

recipient of any of his diverted drugs 

again conflict with testimony he gave at 

his sentencing hearing that his son 

received drugs that he diverted from his 

false prescribing. Finally, I find that the 

Respondent’s initial testimony that he 

was not participating in the Ohio 

Physicians’ Health Plan counseling, due 

to its cost, exhibits a lack of candor 

where the basis for his statement 

regarding cost was from when he 

previously considered the program in 

the 1990’s relating to his cocaine 

addiction. I find that the Respondent’s 

statement that the program was too 

expensive for him to participate in 

demonstrated a lack of candor, 

inasmuch as he later admitted he had no 

idea how the program is run today and 

that he had not explored options 

regarding financial assistance or other 

accommodations regarding cost. Hence, 

the Respondent’s lack of candor 

undermines the confidence that the 

Agency can have in the Respondent’s 

ability to be a responsible DEA 

registrant. 

For the above reasons, I find that the 

Respondent’s misconduct is egregious 

and that deterrence considerations and 

the Respondent’s lack of candor weigh 

in favor of revocation. 

Considering the entire record before 

me, the conduct of the hearing, and 

observation of the testimony of the 

witnesses presented, I find that the 

Government has met its burden of proof 

and has established a prima facie case 

for denial of the Respondent’s 

application for registration. 

Furthermore, I find that the Respondent 

has failed to meet his burden to 

overcome the Government’s case. While 

the Respondent is to be commended for 

rebuilding his veterinary practice and 

while the testimony of his three 

character witnesses leads me to 

conclude that the Respondent is a caring 

and capable veterinarian, *E I cannot 

overlook the egregiousness of his 

offenses, his failure to unequivocally 

accept responsibility, and the need for 

specific and general deterrence in this 

case, each of which, even standing 

alone, provides a compelling reason for 

denial of the application. 

Therefore, I recommend that the 

Respondent’s application for a DEA 

registration, Control No. W20010614C, 

be Denied and any pending applications 

for other DEA registrations likewise be 

Denied. 

Respondent’s Exceptions 

On July 26, 2021, Respondent filed 

his Exceptions to the Recommended 

Decision. DEA regulations require that 

Exceptions ‘‘include a statement of 

supporting reasons for such exceptions, 

together with evidence of record 

(including specific and complete 

citations of the pages of the transcript 

and exhibits) and citations of the 

authorities relied upon.’’ 21 CFR 

1316.66. For the most part, 

Respondent’s Exceptions not only fail to 

comply with this regulatory 

requirement, but also lack evidentiary 

support in the Administrative Record. 

Additionally, some of Respondent’s 

Exceptions repeat arguments that were 

already raised throughout the 

proceedings and were adequately 

addressed in the adopted Recommended 

Decision. Therefore, I reject 

Respondent’s Exceptions and adopt the 

Recommended Decision of the ALJ as 

amended above. 

Exception 1 

In his first Exception, Respondent 

argues that the ALJ failed to properly 

consider Factor One in the public 

interest analysis under 21 U.S.C. 

823(f)(1). Respondent’s Exceptions, at 1. 

Respondent argues that ‘‘by granting 

[Respondent] a license to practice 

medicine and surgery in the State of 

Ohio after he surrendered it due to the 

criminal matter, the Ohio Veterinary 

Medical Licensing Board has given their 

stamp of approval for [Respondent] to 


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Dated: June 30, 2021 

~d <i5. <i&Of:lin? 

PAULE. SOEFFING 

U.S. Administrative Law Judge 
4954 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices 

use [sic] controlled substances in Ohio’’ 

and that ‘‘the Tribunal should have 

taken this into consideration.’’ Id. 

In determining the public interest 

under Factor One, the ‘‘recommendation 

of the appropriate State licensing board 

or professional disciplinary authority 

. . . shall be considered.’’ 21 U.S.C. 

823(f)(1). ‘‘Two forms of 

recommendations appear in Agency 

decisions: (1) A recommendation to 

DEA directly from a state licensing 

board or professional disciplinary 

authority (hereinafter, appropriate state 

entity), which explicitly addresses the 

granting or retention of a DEA COR; and 

(2) the appropriate state entity’s action 

regarding the licensure under its 

jurisdiction on the same matter that is 

the basis for the DEA OSC.’’ John O. 

Dimowo, M.D., 85 FR 15,800, 15,809 

(2020); see also Vincent J. Scolaro, D.O., 

67 FR 42,060, 42,065 (2002) (‘‘While the 

State Board did not affirmatively state 

that the Respondent could apply for a 

DEA registration, [the ALJ] found that 

the State Board by implication 

acquiesced to the Respondent’s 

application because the State Board has 

given state authority to the Respondent 

to prescribe controlled substances.’’). It 

is the Administrator who makes a 

determination of whether granting a 

registration is in the public interest as 

defined by the CSA, and the 

Administrator’s purview is focused on 

entrusting Respondent with a controlled 

substances registration. See Ajay S. 

Ahuja, M.D., 84 FR 5479, 5490 (2019). 

In Respondent’s case, contrary to 

Respondent’s Exception, the ALJ did 

consider in his Factor One analysis that 

the Board was aware of Respondent’s 

history of drug use and addiction and 

nonetheless reinstated Respondent’s 

Ohio veterinary license without 

restriction. RD, at 19 n.31. As such, the 

ALJ found that Factor One leaned in 

favor of Respondent. Id. 

Ultimately, the ALJ found, and I 

agree, that Factors Two, Three, and Four 

militate strongly in favor of the 

Government’s position that granting the 

Respondent a DEA registration is 

inconsistent with the public interest. 

Accordingly, I find Respondent’s 

assertion that the ALJ did not take the 

unrestricted reinstatement of 

Respondent’s veterinary license into 

consideration in the Factor One analysis 

to lack merit. 

Exception 2 

In his second Exception, Respondent 

argues that the ALJ improperly 

interpreted Respondent’s nervous 

demeanor as a lack of remorse or a 

‘‘conditional remorse,’’ citing the ALJ’s 

analysis of Respondent’s acceptance of 

responsibility. Respondent’s Exceptions, 

at 1–2; see RD, at 23–25. However, in 

his analysis regarding Respondent’s 

acceptance of responsibility, the ALJ 

made no reference whatsoever to 

Respondent’s demeanor or nervousness. 

RD, at 23–25. Instead, the ALJ found 

that Respondent had not demonstrated 

an unequivocal acceptance of 

responsibility because Respondent’s 

testimony itself demonstrated that he 

was ambivalent regarding the extent of 

his wrongdoing, consistently placed the 

blame of his addiction on others, and 

was primarily regretful for how his 

misconduct had affected his own life 

rather than the community at large. Id. 

Accordingly, I find Respondent’s 

argument that the ALJ improperly 

interpreted Respondent’s demeanor in 

the analysis of Respondent’s acceptance 

of responsibility to lack merit. I credit 

Respondent’s honest acknowledgment 

of his nerves during the proceeding. Tr. 

81. 

In spite of Respondent’s 

commendable sobriety thus far, I have 

reason to doubt his claim that he would 

always be a compliant registrant. See 

George R. Smith, M.D., 78 FR 44,972, 

44,980 (2013). Particularly, I remain 

concerned that if he relapsed, which the 

record has demonstrated previously 

occurred, while entrusted with a 

controlled substances registration, he 

could harm himself and others too 

quickly for detection by this Agency or 

his monitoring. See Robert Wayne 

Locklear, M.D., 86 FR 33,745. Ensuring 

that a registrant is trustworthy to 

comply with all relevant aspects of the 

CSA without constant oversight is 

crucial to the Agency’s ability to 

complete its mission of preventing 

diversion within such a large regulated 

population. Jeffrey Stein, M.D., 84 FR 

46,974. 

Exception 3 

In his third Exception, Respondent 

argues that ‘‘[t]he Tribunal gave too 

much weight to the DI [K.P.]’s opinions 

about [Respondent’s] work on his 

addiction.’’ Respondent’s Exceptions, at 

2. Respondent also argues that ‘‘[t]here 

was no reason to include this as part of 

the Government’s case’’ and that ‘‘there 

was no reason for the Tribunal to 

challenge [Respondent] about the Ohio 

Physicians’ Health Plan.’’ Id. However, 

where the Government has met its 

prima facie burden of showing that a 

ground for revocation exists, the burden 

shifts to the Respondent to show why he 

can be entrusted with a registration. See 

Jeffrey Stein, M.D., 84 FR 46,968, 46,972 

(2019). As such, because the 

Respondent presented evidence of his 

remedial measures in order to meet this 

burden, it was entirely relevant to the 

adjudication of this matter and 

appropriate for the Government to 

present its own evidence pertaining to 

Respondent’s remedial measures, as 

well as for the ALJ to question 

Respondent regarding these remedial 

measures. 

Moreover, in his third Exception, 

Respondent again argues the 

significance of the Board reinstating his 

license without restriction. 

Respondent’s Exceptions, at 2. As 

already discussed supra, the ALJ 

adequately addressed this point in his 

public interest Factor One analysis. 

Accordingly, I find the claims made in 

Respondent’s third Exception to lack 

merit. 

Exception 4 

In his fourth Exception, Respondent 

argues that rather than an unrestricted 

DEA registration, he should instead be 

granted a limited DEA registration ‘‘to 

utilize a limited number of [S]chedule 

III or lower substances.’’ Respondent’s 

Exceptions, at 2. However, Respondent 

does not provide adequate 

substantiation as to why I should accept 

this proposal, nor is there sufficient 

evidence in the Administrative Record 

to support it. Moreover, Respondent has 

not adequately demonstrated that he can 

be entrusted with a controlled substance 

registration at any schedule. See Larry 

C. Daniels, M.D., 86 FR 61,630, 61,664 

n.30 (2021). Accordingly, I find 

Respondent’s argument that he should 

be granted a limited DEA registration to 

lack merit. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

824(a) and 21 U.S.C. 823(f), I hereby 

deny the pending application for a 

Certificate of Registration, Control 

Number W20010614C, submitted by 

Michael E. Smith, D.V.M., as well as any 

other pending application of Michael E. 

Smith, D.V.M., for additional 

registration in Ohio. This Order is 

effective March 2, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–01840 Filed 1–28–22; 8:45 am] 

BILLING CODE 4410–09–P 


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