[Federal Register Volume 62, Number 65 (Friday, April 4, 1997)]
[Notices]
[Pages 16189-16190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8560]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-24]


Jose R. Castro, M.D.; Denial of Application

    On February 20, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Jose R. Castro, M.D. (Respondent), of Alma, 
Georgia, notifying him of an opportunity to show cause as to why DEA 
should not deny his application for a DEA Certificate of Registration 
as a practitioner under 21 U.S.C. 823(f), for reason that his 
registration would be inconsistent with the public interest. The Order 
to Show Cause alleged, in substance, that: (1) From August 1989 through 
February 1990, Federal and state agents made 12 undercover visits to 
Respondent's office and that on each occasion, Respondent issued the 
agents prescriptions for

[[Page 16190]]

controlled substances for no legitimate medical use and outside the 
scope of professional practice; (2) On or about January 10, 1991, 
Respondent was indicted in the United States District Court for the 
Southern District of Georgia and charged with 12 counts of illegal 
distribution of controlled substances; (3) On May 8, 1991, Respondent 
was found guilty in the United States District Court for the Southern 
District of Georgia of four counts of illegal distribution of 
controlled substances; (4) Between 1989 and 1991, Respondent prescribed 
numerous different controlled substances to an individual for no 
legitimate medical reason. On May 17, 1991, the individual died of a 
drug overdose after consuming a combination of controlled substances 
prescribed by Respondent. A subsequent autopsy revealed that the 
individual died of multiple drug poisoning, consistent with the 
controlled substances that Respondent prescribed; (5) On September 3, 
1991, the Composite State Board of Medical Examiners, State of Georgia, 
ordered the summary suspension of Respondent's privileges to handle 
controlled substances. Pursuant to the Order, Respondent was ordered to 
surrender DEA Certificate of Registration AC 9230311. Accordingly, on 
September 10, 1991, Respondent voluntarily surrendered his DEA 
registration.
    On March 22, 1996, Respondent, through counsel, requested a hearing 
on the issues raised by the Order to Show Cause, and the matter was 
docketed before Administrative Law Judge Mary Ellen Bittner. Following 
prehearing procedures, a hearing was scheduled to commence on January 
29, 1997. On October 16, 1996, the Government filed a Motion for 
Summary Disposition, alleging that Respondent was not currently 
authorized to handle controlled substances in the State of Georgia. The 
Government's motion was supported by a copy of a Consent Order entered 
into by Respondent and the Composite State Board of Medical Examiners 
for the State of Georgia (Board) on January 9, 1992, and a copy of a 
letter from the Board to DEA dated October 11, 1996, stating that 
Respondent was not authorized to possess or prescribe controlled 
substances. Although provided an opportunity to do so, Respondent did 
not file a response to the Government's motion.
    On November 22, 1996, Judge Bittner issued her Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
finding that Respondent lacked authorization to handle controlled 
substances in the State of Georgia; granting the Government's Motion 
for Summary Disposition; and recommending that Respondent's application 
for a DEA Certificate of Registration be denied. Neither party filed 
exceptions to her opinion, and on January 8, 1997, Judge Bittner 
transmitted the record of these proceedings to the Acting Deputy 
Administrator.
    The Acting 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 Acting Deputy Administrator adopts, in full, the Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Laws and Decision 
of the Administrative Law Judge.
    The Acting Deputy Administrator finds that on January 9, 1992, 
Respondent and the Board entered into a Consent Order whereby 
Respondent's license to practice medicine was suspended for five years 
with all but the first six months suspended and was then placed on 
probation. As part of the Consent Order, Respondent relinquished, until 
further order of the Board, ``his right to prescribe, administer, 
dispense, order or possess * * * controlled substances.'' A letter from 
the Board dated October 11, 1996, indicated that Respondent was ``not 
authorized to possess or prescribe any controlled substance.'' There is 
no evidence in the record that the Board has since reinstated 
Respondent's controlled substance privileges. Therefore, the Acting 
Deputy Administrator finds that Respondent is not currently authorized 
to handle controlled substances in the State of Georgia.
    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 business. 21 U.S.C. 802(21), 823(f), 
and 824(a)(3). This prerequisite has been consistently upheld. See 
Dominick A. Ricci, M.D., 58 FR 51,104 (1993); James H. Nickens, M.D., 
57 Fed. Reg. 59,847 (1992); Roy E. Hardman, M.D., 57 FR 49,195 (1992). 
In the instant case, the record indicates that Respondent is not 
currently authorized to handle controlled substances in the State of 
Georgia. As Judge Bittner notes, ``[b]ecause Respondent lacks this 
state authority, he is not currently entitled to a DEA registration.'' 
Because Respondent is not entitled to a DEA registration, the Acting 
Deputy Administrator finds it unnecessary to address whether 
Respondent's registration would be inconsistent with the public 
interest as alleged in the Order to Show Cause.
    Judge Bittner also properly granted the Government's Motion for 
Summary Disposition. Here, the parties did not dispute the fact that 
Respondent was unauthorized to handle controlled substances in Georgia. 
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 
Phillip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd d sub nom Kirk v. 
Mullen, 749 F.2d 297 (6th Cir. 1984); NLRB v. International Association 
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 
(9th Cir. 1977); United States v. Consolidated Mines & Smelting Co., 44 
F2d 432 (9th Cir. 1971).
    Accordingly, the Acting 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 application submitted by Jose R. Castro, M.D. for a DEA 
Certificate of Registration, be, and it hereby is, denied. This order 
is effective May 5, 1997.

    Dated: March 24, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-8560 Filed 4-3-97; 8:45 am]
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