Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 17525 

2Respondent did not file exceptions. 

3While there is a procedure available for 

terminating a registration, under the Agency’s 

regulation, a registrant who discontinues 

professional practice must ‘‘notify the [Agency] 

promptly of such fact.’’ 21 CFR 1301.52(a). 

Moreover, the registrant must return his certificate 

of registration to the Agency for cancellation, as 

well as any unexecuted order forms. Id. 1301.52(c). 

Notably, in Davis, the respondent did not comply 

with the regulation and indeed had continued 

professional practice. 

‘‘suspended, revoked or denied by 

competent State authority’’ and the 

registrant ‘‘is no longer authorized by 

State law to engage in the * * * 

dispensing of controlled substances.’’ 

Id. at 2. 

On November 7, 2008, the ALJ 

granted the Government’s motion, 

noting that ‘‘it is undisputed that the 

Respondent currently lacks authority to 

handle controlled substances in 

Missouri.’’ ALJ at 3. Because 

Respondent’s argument as to the scope 

of the Agency’s authority under 21 

U.S.C. 823(a)(3) had previously been 

rejected with respect to a practitioner 

who allowed his registration to expire, 

the ALJ found ‘‘no meaningful basis on 

which to distinguish expiration of a 

State authorization from automatic 

termination by operation of law.’’ Id. at 

5. The ALJ thus applied the Agency’s 

longstanding interpretation that it lacks 

authority under the Controlled 

Substances Act to maintain a 

registration if a registrant lacks authority 

under State law to dispense controlled 

substances. Id. at 4–5. The ALJ thus 

recommended that Respondent’s 

registration be revoked and that any 

pending application to renew or modify 

his registration be denied. 

After the period for filing exceptions 

lapsed,2 the record was forwarded to me 

for final agency action. Having 

considered the entire record in this 

matter, I adopt the ALJ’s decision in its 

entirety. 

I find that Respondent currently holds 

DEA Certificate of Registration, 

BF2847715, which authorizes him to 

dispense controlled substances in 

schedules II through V as a practitioner, 

at the registered location of 2232 S. 

Garrison Ave., Carthage, Missouri. I also 

find that Respondent’s Missouri 

Controlled Substances Registration has 

terminated. I therefore further find that 

Respondent is currently without 

authority to dispense controlled 

substances in Missouri, the State in 

which he practices medicine and holds 

his DEA Registration. Moreover, 

according to the Web site of the 

Missouri Department of Health and 

Senior Services, Respondent does not 

possess a State controlled substances 

registration. 

Under the Controlled Substances Act 

(CSA), a practitioner must be currently 

authorized to handle controlled 

substances in ‘‘the jurisdiction in which 

he practices’’ in order to maintain a 

DEA registration. See 21 U.S.C. 802(21) 

(‘‘[t]he term ‘practitioner’ means a 

physician * * * licensed, registered, or 

otherwise permitted, by * * * the 

jurisdiction in which he practices * * * 

to distribute, dispense, [or] administer 

* * * a controlled substance in the 

course of professional practice’’). See 

also id. § 823(f) (‘‘The Attorney General 

shall register practitioners * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices.’’). As these provisions make 

plain, possessing authority under state 

law to handle controlled substances is 

an essential condition for holding a DEA 

registration. 

Accordingly, DEA has held repeatedly 

that the CSA requires the revocation of 

a registration issued to a practitioner 

who lacks authority under state law to 

dispense controlled substances. 

Moreover, DEA has applied this rule not 

only where a registrant’s state authority 

has been suspended or revoked, but also 

where a practitioner with an existing 

DEA registration has lost his state 

authority for reasons other than through 

formal disciplinary action of a State 

board. 

For example, in William D. Levitt, 64 

FR 49882, 49823 (1999), DEA held that 

because ‘‘state authorization was clearly 

intended to be a prerequisite to DEA 

registration, Congress could not have 

intended for DEA to maintain a 

registration if a registrant is no longer 

authorized by the state in which he 

practices to handle controlled 

substances due to the expiration of his 

state license.’’ See also Mark L. Beck, 64 

FR 40899, 40900 (1999); Charles H. 

Ryan, 58 FR 14430 (1993). Moreover, in 

Marlou D. Davis, 69 FR 1307, 1310 

(2004), I addressed and rejected the 

same argument raised by Respondent in 

a case which involved the same factual 

scenario as is presented here—the 

termination under Missouri law of a 

practitioner’s authority which arose 

because of an address change. In Davis, 

I specifically relied on the reasoning of 

Levitt and rejected the argument that the 

respondent’s registration should be 

deemed terminated under 21 CFR 

1301.52 rather than revoked under 21 

U.S.C. 824(a)(3).3 Id. at 1310. Indeed, as 

the ALJ observed in her recommended 

decision in this matter, because 

possessing authority under State law is 

an essential requirement for holding a 

CSA registration, there is ‘‘no 

meaningful basis’’ for distinguishing 

between those registrants who allow 

their State authority to expire and those 

whose State authority expires by 

operation of law. ALJ at 5. 

Here, as in Davis, Respondent has not 

notified the Agency that he has 

permanently ceased the practice of 

medicine (or the dispensing of 

controlled substances in the course of 

medical practice). 21 CFR 1301.52(a). 

Nor is there any evidence that he has 

returned his certificate of registration for 

cancellation. Id. 1301.52(c). 

Accordingly, Respondent’s registration 

cannot be deemed terminated. Because 

Respondent does not have authority 

under Missouri law to dispense 

controlled substances, he does not meet 

the statutory requirement for holding a 

registration under Federal law. See 21 

U.S.C. 823(f). His registration must 

therefore be revoked. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) & 0.104, I order that 

DEA Certificate of Registration, 

BF2847715, issued to John B. Freitas, 

D.O., be, and it hereby is, revoked. I 

further order that any pending 

application of John B. Freitas, D.O., to 

renew or modify his registration, be, and 

it hereby is; denied. This Order is 

effective May 15, 2009. 

Dated: April 10, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8620 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 08–49] 

Joseph Baumstarck, M.D.; Revocation 

of Registration 

On May 19, 2008, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration to Joseph Baumstarck, 

M.D. (Respondent), of Lovell, Wyoming. 

The Order proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, BB2806480, which 

authorizes him to dispense controlled 

substances in schedules II through V, 

and proposed the denial of any pending 

applications to renew or modify his 

registration, on the ground that 

Respondent had committed acts which 

render his continued registration 

inconsistent with the public interest. 


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1The Order also alleged that on at least eight 

occasions, Respondent had violated Federal law by 

failing to include his registration number and the 

patient’s address on controlled-substance 

prescriptions. Show Cause Order at 2 (citing 21 

U.S.C. 842(a); 21 CFR 1306.05(a)). 

2The State Board’s Order also noted the 

allegations contained in my Order to Show Cause 

and Immediate Suspension of Registration. Ex B at 

2. 

Show Cause Order at 1 (citing 21 U.S.C. 

824(a)(4)). 

The Show Cause Order alleged that 

Respondent had repeatedly issued 

controlled-substance prescriptions 

without establishing a legitimate doctorpatient relationship in violation of 

Federal and state laws in that he failed 

to obtain adequate patient histories or 

failed to perform adequate physical 

examinations of his patients. Id. (citing 

21 U.S.C. 841(a)(1), 21 CFR 1306.04, & 

Wyo. Stat. § 33–26–402(a)). The Order 

further alleged that Respondent issued 

controlled-substance prescriptions to 

persons he knew to be drug addicts and 

that these persons were not using the 

drugs for a legitimate medical purpose. 

Id. Relatedly, the Order alleged that 

Respondent did ‘‘nothing to confirm 

that these patients are not diverting the 

controlled substances’’ that he 

prescribed. Id. at 1–2. 

The Show Cause Order further alleged 

that ‘‘on at least four occasions in 

January and February 2008, Respondent 

had prescribed schedule II controlled 

substances for the purpose of 

detoxification and/or maintenance 

treatment,’’ notwithstanding that he was 

not registered to conduct a narcotictreatment program, and that the drugs 

he prescribed were ‘‘not approved by 

the Food and Drug Administration 

(FDA) for detoxification and/or 

maintenance treatment in an officebased setting.’’ Id. at 2 (citing 21 U.S.C. 

823(g)(1) & 21 CFR 1306.07(a)). 

Relatedly, the Order alleged that in 

April 2008, Respondent had discussed 

with a police officer who claimed to be 

addicted to prescription pain killers, 

how he prescribed drugs containing 

oxycodone, a schedule II controlled 

substance, to treat addicts for 

addiction.1 Id. The Order also alleged 

that Respondent’s illegal practices were 

ongoing. Id. I thus concluded that 

Respondent’s ‘‘continued registration 

during the pendency of these proceeds 

would constitute an imminent danger to 

the public health and safety.’’ Id. (citing 

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

On May 22, 2008, the Order was 

served on Respondent. On June 16, 

2008, Respondent requested a hearing 

on the allegations. Letter of Joseph 

Baumstarck, Jr., to Hearing Clerk (June 

16, 2008). Respondent denied the 

allegations, but further stated that 

because he had been charged criminally, 

he was exercising his Fifth Amendment 

right against self-incrimination. Id. 

On June 25, 2008, the Government 

moved for summary disposition (and to 

stay the filing of pre-hearing statements) 

on the ground that on June 9, 2008, the 

Wyoming Board of Medicine had 

summarily suspended Respondent’s 

state medical license and that the 

suspension was to remain in effect 

pending the resolution of the Board’s 

proceeding. Gov. Mot. for Summ. Disp. 

at 2. The Government further noted that 

while a practitioner in Wyoming must 

hold both a medical license and a state 

issued controlled-substance registration 

(which is issued by the Board of 

Pharmacy), and Respondent still held a 

state controlled-substance registration, 

he was currently without authority to 

practice medicine and thus could not 

prescribe any drug (whether controlled 

or non-controlled). Id. at 3. 

In support of its motion, the 

Government attached the State Board’s 

order which summarily suspended 

Respondent’s medical license. Id. at Ex. 

B. As grounds for its action, the Board’s 

order noted that on May 19, 2008, 

Respondent had been indicted by a 

federal grand jury on four counts of 

unlawful distribution of hydrocodone 

and two counts of unlawful distribution 

of oxycodone. Id. at 1–2 (citing 21 

U.S.C. 841(a)(1)(B) & (1)(D) and id. 

§ 841(a)(1)(B) & (1)(C)). The order also 

noted that the Board had received an 

Adverse Action Report from the 

National Practitioner Data Bank 

indicating that on May 29, 2008, North 

Big Horn Hospital of Lovell, Wyoming, 

had summarily suspended Respondent’s 

clinical privileges pending the 

resolution of the criminal case. Id. at 3. 

The order further noted that on June 5, 

2008, the Board had received a report 

from the state Pharmacy Board that 

Respondent had prescribed Suboxone 

on multiple occasions ‘‘without the 

required DEA endorsement.’’ 2 Id. 

Finally, the Order noted that as a 

condition of his release from custody, 

the Federal District Court had imposed 

a restriction that Respondent could 

‘‘continue the practice of medicine only 

after the Board * * * creates a plan 

regarding the prescribing of any 

controlled substances’’ and that he 

‘‘shall not see patients without another 

licensed physician present in the room 

with him,’’ and that Respondent had 

told the Medical Board’s Executive 

Secretary that he intended to seek a 

removal of the condition that another 

physician directly supervise his 

practice. Id. at 2–3. Based on all of these 

findings, the State Board concluded that 

‘‘the public health, safety or welfare 

imperatively requires emergency action 

and that a summary suspension of 

[Respondent’s] license is necessary to 

protect the citizens of Wyoming.’’ Id. at 

4. 

Upon reviewing the Government’s 

motion, the ALJ issued a memorandum 

which provided Respondent with the 

opportunity to respond to the motion. 

Memorandum to Parties (June 25, 2008). 

The following day, Respondent 

submitted a letter to the Hearing Clerk 

in which he stated that he opposed the 

Government’s motion, but that because 

of the pending criminal case and his 

invocation of his Fifth Amendment 

privilege, he was ‘‘unable * * * to 

adequately address’’ the issues, and that 

the Agency was therefore denying him 

his right to Due Process. Ltr. of Joseph 

Baumstarck, Jr., to Hearing Clerk (June 

26, 2008). Respondent further 

contended that ‘‘[t]he actions which the 

government’s statement alleges as 

having occurred in regard to my ability 

to practice in Wyoming are the result of 

the DEA’s action which is the issue 

being contested here.’’ Id. Respondent 

then requested that the proceeding be 

postponed until his criminal case was 

resolved. Id. 

Thereafter, the Government moved to 

deny Respondent’s request for a 

postponement and also requested that 

the ALJ grant its motion for summary 

disposition. See Gov. Response to 

Resp.’s Req. for Postponement and 

Resp.’s Opp. In its motion, the 

Government maintained that under the 

Controlled Substances Act (CSA), the 

Agency does not have authority to 

maintain the registration of a 

practitioner who lacks state authority to 

handle controlled substances and ‘‘that 

the reason for [Respondent’s] state 

suspension is irrelevant.’’ Id. at 2 & n 1. 

The Government further argued that 

Respondent had also been ‘‘investigated 

by state and local law enforcement [and] 

thus, his assertion that DEA is the cause 

of his [s]tate medical license suspension 

is without merit.’’ Id. The Government 

also maintained that granting its motion 

for summary disposition would not 

violate Respondent’s right to Due 

Process because the granting of such 

motions (when no material facts are in 

dispute) is a common feature of 

adjudicatory proceedings. Id. at 2. 

Finally, the Government urged the ALJ 

to reject Respondent’s request for a 

postponement because the issue in the 

case—whether he is without state 

authority to handle controlled 

substances—could be litigated without 

Respondent having to testify (by 

submitting documentary evidence to the 


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Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 17527 

contrary), and because ‘‘there [was] no 

guarantee that’’ his criminal case would 

be resolved by date he claimed it would 

be. Id. at 3. 

On July 1, 2008, Respondent sent an 

additional letter to the Hearing Clerk in 

which he reiterated his previous 

objections to the Government’s position, 

including his contention that his 

inability ‘‘to practice medicine in 

Wyoming [is] the result of the DEA’s 

action which is the issue being 

contested here.’’ Letter of Respondent to 

Hearing Clerk (June 30, 2008). 

Respondent disputed the Government’s 

argument that he could reapply for a 

new registration as ‘‘beg[ging] the 

question of due process.’’ Id. He also 

contended that the Government’s 

argument that the criminal case could 

be rescheduled several times was 

irrelevant to the issue of whether this 

proceeding should be stayed because he 

had ‘‘no control over the scheduling of 

court cases.’’ Id. 

On the same day, the ALJ stayed the 

proceeding pending her review of the 

Government’s motion. ALJ at 6. On July 

16, 2008, the ALJ granted the 

Government’s motion. Id. at 7. Noting 

that it was ‘‘undisputed that Respondent 

is without state authority to hand 

controlled substances in Wyoming,’’ id., 

the ALJ applied the Agency’s longsettled ruled that a practitioner may not 

maintain his registration if he lacks 

authority to handle controlled 

substances under the laws of the State 

in which he practices. Id. at 6–7. The 

ALJ thus recommended that 

Respondent’s registration be revoked 

and that any pending applications be 

denied. 

On July 23, 2008, Respondent 

submitted his ‘‘formal objection’’ to the 

ALJ’s decision. Letter of Respondent to 

Hearing Clerk (July 23, 2008). 

Respondent ‘‘reiterate[d] [his] previous 

position that it is ludicrous that a 

government entity is able to cause by its 

original action a secondary action by 

another government entity and then use 

the second action to justify the original 

action.’’ Id. Respondent also restated his 

position that he was ‘‘unable to give a 

detailed statement’’ regarding the 

allegations because he had been 

criminally charged and was exercising 

his Fifth Amendment rights. 

Thereafter, the record was forwarded 

to me for final agency action. Having 

considered the entire record in this 

matter (including the issues raised by 

Respondent in his July 23, 2008 letter), 

I adopt the ALJ’s decision in its entirety. 

I find that Respondent currently holds 

DEA Certificate of Registration, 

BB2806480, which authorizes him to 

dispense controlled substances in 

schedule II through V as a practitioner 

at registered premises of 342 E. Main 

St., Lovell, Wyoming. Respondent’s 

registration does not expire until July 

31, 2009. 

On June 6, 2008, the Wyoming Board 

of Medicine summarily suspended 

Respondent’s physician’s license and 

further ordered that ‘‘such suspension 

shall continue pending proceedings for 

revocation or other action against’’ his 

license. GX B. The State’s order cited 

five different grounds as support for its 

order including: (1) That on May 19, 

2008, Respondent had been indicted in 

federal court on six counts of unlawful 

distribution of controlled substances; (2) 

the allegations of the Order to Show 

Cause; (3) the Adverse Action Report 

that Respondent’s privileges had been 

suspended by a local hospital; (4) the 

state Pharmacy Board’s report that 

Respondent had prescribed Suboxone 

on numerous occasions without holding 

the requisite endorsement to his DEA 

registration; and (5) that Respondent 

had told the Board’s Executive Secretary 

of his intent to seek the removal of 

certain conditions of his release which 

were imposed by the Federal District 

Court. According to the Wyoming Board 

of Medicine Web site, Respondent’s 

state license remains suspended. 

Under the CSA, a practitioner must be 

currently authorized to handle 

controlled substances in ‘‘the 

jurisdiction in which he practices’’ in 

order to maintain a DEA registration. 

See 21 U.S.C. 802(21) (‘‘[t]he term 

‘practitioner’ means a physician * * * 

licensed, registered, or otherwise 

permitted, by * * * the jurisdiction in 

which he practices * * * to distribute, 

dispense, [or] administer * * * a 

controlled substance in the course of 

professional practice’’). See also id. 

§ 823(f) (‘‘The Attorney General shall 

register practitioners * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices.’’). As these provisions make 

plain, possessing authority under state 

law to handle controlled substances is 

an essential condition for holding a DEA 

registration. 

Accordingly, the Agency has held 

repeatedly that the CSA requires the 

revocation of a registration issued to a 

practitioner whose state license has 

been suspended or revoked. David 

Wang, 72 FR 54297, 54298 (2007); 

Sheran Arden Yeates, 71 FR 39130, 

39131 (2006); Dominick A. Ricci, 58 FR 

51104, 51105 (1993); Bobby Watts, 53 

FR 11919, 11920 (1988). See also 21 

U.S.C. 824(a)(3) (authorizing the 

revocation of a registration ‘‘upon a 

finding that the registrant * * * has had 

his State license or registration 

suspended [or] revoked * * * and is no 

longer authorized by State law to engage 

in the * * * distribution [or] dispensing 

of controlled substances’’). Moreover, 

because the statutory text makes plain 

that a practitioner must have current 

authority to handle controlled 

substances under state law in order to 

maintain his CSA registration, the 

Agency has also held that revocation is 

warranted even when a practitioner’s 

state authority has only been suspended 

and there remains a possibility that the 

authority will be restored following a 

state proceeding. See Bourne Pharmacy, 

Inc., 72 FR 18273, 18274 (2007). 

Here, there is no dispute that 

Respondent does not have current 

authority under state law to dispense 

controlled substances. Respondent, 

however, maintains that the Agency’s 

revocation of his registration based on 

the State’s suspension of his medical 

license would violate his right to Due 

Process because the State’s action was 

based on my Order which immediately 

suspended his registration. 

Respondent ignores, however, that the 

State’s suspension order did not rely 

solely on my Order. Rather, the State 

Board also relied on Respondent’s 

indictment by a federal grand jury, 

which represents the judgment of an 

independent body of citizens that 

probable cause exists to believe that 

Respondent had committed six felony 

counts of unlawful distribution of 

controlled substances. See, e.g., FDIC v. 

Mallen, 486 U.S. 230, 241 (1988) (where 

‘‘[a] grand jury ha[s] determined that 

there was probable cause that [bank 

officer] had committed a felony,’’ the 

finding supported suspension followed 

by a hearing). 

Moreover, the State Board also relied 

on the Board of Pharmacy’s Report that 

Respondent had violated the law in 

prescribing Suboxone, the report from 

the National Practitioner Bank that a 

local hospital had suspended his 

privileges, and Respondent’s own 

statements to the Board’s Executive 

Secretary that he was seeking to remove 

the District Court’s requirement that 

another physician directly supervise his 

practice. In short, in concluding that 

Respondent posed ‘‘an immediate threat 

to the public health, safety or welfare of 

the people of * * * Wyoming,’’ GX B at 

3–4, the Board clearly conducted its 

own independent evaluation of the 

evidence against him and did not 

simply piggyback on my Order of 

Immediate Suspension. See Oakland 

Medical Pharmacy, 71 FR 50100, 50102 

(2006) (rejecting the contention that it is 

circular for DEA to rely on a state 

suspension order to revoke a registration 


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17528 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 

3 Due Process only requires that the Government 

provide a meaningful opportunity to test the 

Government’s proof and respond to the allegations; 

a litigant’s unwillingness to testify in a civil matter, 

because he fears incriminating himself, does not 

render a hearing opportunity unmeaningful in the 

constitutional sense. Ohio Adult Parole Authority v. 

Woodward, 523 U.S. at 272, 286 (1998). Indeed, the 

Supreme Court has even upheld the drawing of an 

adverse inference based on a respondent’s refusal 

to testify in an administrative proceeding. See 

Woodward, 523 U.S. at (1998) (citing Baxter v. 

Palmigiano, 425 U.S. 308, 316–18 (1976)); see also 

INS v. Lopez-Mendoza, 468 U.S. 1032, 1043–44 

(1984). 

1Respondent did not, however, dispute that he 

had subsequently been properly served. 

where the State did not rely solely on 

the DEA order in suspending a 

practitioner’s state license). 

Respondent also apparently argues 

that revoking his registration would 

violate his right to Due Process because 

he has invoked his Fifth Amendment 

privilege and is ‘‘unable’’ to address the 

allegations. This argument would be 

unpersuasive even if the Agency was 

still seeking to revoke based on the 

allegations that he unlawfully 

distributed controlled substances.3

Moreover, Respondent ignores that 

under the CSA, the loss of state 

authority provides an independent 

ground to revoke and that the only issue 

now in dispute is whether Respondent 

holds state authority. Respondent was 

provided with a meaningful opportunity 

to refute the Government’s evidence by 

showing that his state license had not 

been (or was no longer) suspended; such 

a showing would not require his 

testimony. That there is no such 

evidence (because the State’s 

suspension order remains in effect) 

likewise does not deprive Respondent of 

Due Process. 

Because Respondent remains without 

authority to dispense controlled 

substances under the laws of the State 

in which he practices medicine and is 

registered with the Agency, his 

registration will be revoked. Moreover, 

for the same reasons that I ordered the 

immediate suspension of Respondent’s 

registration, I further hold that this 

Order be effective immediately. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) & 0.104, I hereby order 

that DEA Certificate of Registration, 

BB2806480, issued to Joseph 

Baumstarck, M.D., be, and it hereby is, 

revoked. I further order that any 

pending application of Joseph 

Baumstarck, M.D., for renewal or 

modification of his registration be, and 

it hereby is, denied. This order is 

effective immediately. 

Dated: April 3, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8612 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 08–10] 

Scott Sandarg, D.M.D.; Revocation of 

Registration 

On July 25, 2007, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Scott Sandarg, D.M.D. 

(Respondent), of Irvine, California. The 

Show Cause Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, BS6026525, 

which authorizes him to dispense 

controlled substances in schedules II 

through V as a practitioner, and the 

denial of any pending applications to 

renew or modify the registration, on the 

ground that Respondent had committed 

numerous acts which were inconsistent 

with the public interest. Show Cause 

Order at 1. 

The Show Cause Order specifically 

alleged that Respondent had unlawfully 

obtained controlled substances for his 

own use which included illicit 

methamphetamine, anabolic steroids, 

drugs containing hydrocodone, and 

several benzodiazepines including 

alprazolam, through various means 

including by engaging in prescription 

fraud and by obtaining the controlled 

substances over the internet from 

practitioners with whom he did not 

establish a valid doctor-patient 

relationship. Id. at 1–3. The Order also 

alleged that on two separate occasions, 

Respondent had been arrested; that the 

police found various controlled 

substances in his possession during 

lawful searches of his property; and that 

Respondent had subsequently pled 

guilty to various offenses under 

California law including one felony 

count of unlawful possession of a 

controlled substance in violation of Cal. 

Health & Safety Code § 11377(a), one 

misdemeanor count of unlawfully being 

under the influence of a controlled 

substance in violation of Cal. Health & 

Safety Code section 11550(a), and two 

misdemeanor counts related to firearms 

violations under Cal. Penal Code section 

17(b). Show Cause Order at 2–3. 

On September 11, 2007, a DEA 

Diversion Investigator attempted to 

serve the Order to Show Cause on 

Respondent by faxing it to him. On 

November 9, 2007, Respondent 

requested a hearing on the allegations of 

the Show Cause Order, and the matter 

was assigned to an Administrative Law 

Judge (ALJ). Thereafter, the Government 

moved to terminate the proceeding on 

the ground that Respondent’s request 

was out of time. Respondent opposed 

the motion, submitting the declarations 

of himself and his office manager, both 

of which asserted that the fax had 

included the cover sheet but not the 

Show Cause Order. Thereafter, the 

Government submitted a DI’s 

declaration which maintained that 

Respondent’s office manager had 

informed him that she had received the 

entire fax. 

The ALJ denied the Government’s 

motion reasoning that there was a 

factual dispute as to when Respondent 

had received the Show Cause Order. 

The ALJ then allowed the Government 

to file an interlocutory appeal. On May 

12, 2008, I denied the appeal because 

there was a clear factual dispute as to 

whether Respondent had actually 

received the Show Cause Order on 

September 11, 2007, and the dispute 

could not be resolved without assessing 

the credibility of each party’s 

witnesses.1

Thereafter, the Government moved to 

terminate the proceeding on the ground 

that on December 19, 2007, the 

California Board of Dental Examiners 

had adopted the proposed decision of a 

State Administrative Law Judge and 

revoked Respondent’s State Dental 

Certificate with an effective date of 

January 21, 2008. Gov. Mot. for 

Summary Judgment 2–3. The 

Government argued that because 

Respondent is not authorized to handle 

controlled substances in the State in 

which he is registered with this Agency, 

he is not entitled to maintain his 

registration. Id. 

Respondent’s counsel opposed the 

motion arguing that he had filed for a 

writ of administrative mandamus in 

State court challenging the Board’s 

order. Respondent’s Resp. to ALJ’s May 

21, 2008 Memorandum to Counsel at 1. 

According to Respondent’s counsel, the 

writ raised multiple claims of error on 

the part of the State ALJ, and were the 

court to find any of the claims 

meritorious, Respondent’s license could 

be restored. Id. Respondent’s counsel 

further argued that DEA’s decision be 

stayed until the State proceeding was 

resolved. Id. The Government opposed 

Respondent’s motion on the ground that 

it was speculative whether the State 

court would grant any relief, and that 


rwilkins on PROD1PC63 with PROPOSALS