[Federal Register Volume 86, Number 115 (Thursday, June 17, 2021)]
[Notices]
[Pages 32280-32282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12753]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Johnny C. Benjamin, Jr., M.D.; Decision and Order

I. Procedural Background

    On September 28, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Johnny 
C. Benjamin, Jr., M.D. (hereinafter, Registrant) of Vero Beach, 
Florida. OSC, at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BB3725732. Id. It alleged that 
Registrant has ``been convicted of a felony relating to controlled 
substances and ha[s] no state authority to handle controlled 
substances.'' Id. (citing 21 U.S.C. 824(a)(2) & (a)(3)).
    Specifically, the OSC alleged that on April 27, 2018, Registrant 
was convicted by a Federal jury of: Conspiracy to possess with intent 
to distribute furanyl fentanyl resulting in death, in violation of 21 
U.S.C. 846; distribution of furanyl fentanyl resulting in death, in 
violation of 21 U.S.C. 841(a)(1); attempt to possess with intent to 
distribute acetyl fentanyl, in violation of 21 U.S.C. 846; possession 
with intent to distribute oxycodone, in violation of 21 U.S.C. 
841(a)(1); and conspiracy to possess with intent to distribute 
hydrocodone and oxycodone, in violation of 21 U.S.C. 846. Id. at 2. The 
OSC alleged that on July 6, 2018, the court issued its Judgment and 
sentenced Registrant to life in prison. Id. The OSC also alleged that, 
on May 3, 2018, ``the State of Florida Department of Health immediately 
suspended Registrant's Florida Medical License.'' Id. The OSC further 
alleged that, as a result, Registrant is ``currently without authority 
to handle controlled substances in the State of Florida, the state in 
which [Registrant] is registered with the DEA.'' Id. (citing 21 U.S.C. 
824(a)(3); 21 CFR 1301.37(b)). The OSC concluded that ``DEA must revoke 
. . . [Registrant's] DEA registration based on [his] lack of authority 
to handle controlled substances in the State of Florida.'' OSC, at 2.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 2-3 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. OSC, at 3-4 (citing 21 U.S.C. 
824(c)(2)(C)).

II. Adequacy of Service

    In a sworn Declaration, dated January 17, 2019, a DEA Diversion 
Investigator assigned to the West Palm Beach District Office of the 
Miami Division (hereinafter, DI) stated that she ``spoke by telephone 
with United States Penitentiary Coleman SIS Technician [T.B.] to 
determine what procedures the prison had in place for serving legal 
documents on prisoners and [to] make arrangements for service of the 
[OSC] on Registrant.'' Government's Request for Final Agency Action 
(hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 7 (DI Declaration), at 
1. DI stated that T.B. explained that T.B. ``would personally serve the 
[OSC] on [Registrant].'' Id. Accordingly, DI stated that, on October 
10, 2018, she sent the OSC via FedEx addressed to T.B. along with an 
unsigned Form DEA-12, Receipt for Cash or Other items. Id. DI further 
declared that on October 18, 2018, she ``received a FedEx package . . . 
from [T.B.] with the Form DEA-12 which had been signed by Registrant 
and witnessed by [T.B.], dated October 16, 2018.'' Id.; see also RFAAX 
7, Attachment (Form DEA-12).
    Additionally, on September 28, 2018, the DEA Office of Chief 
Counsel (hereinafter, CC) mailed the OSC to Registrant at both his 
registered address and his prison address. RFAAX 6 (CC Declaration of 
Service). Neither letter was returned to the Office of Chief Counsel as 
undeliverable. Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on January 23, 2019. In its RFAA, the Government 
represents that

[[Page 32281]]

``at least thirty days have passed since the time the [OSC] was served 
on Registrant'' and no request for hearing has been received by DEA. 
RFAA, at 2. The Government requests revocation of Registrant's DEA 
Certificate of Registration, because Registrant's ``conviction of a 
felony relating to controlled substances, even apart from his lack of 
state authority, is a basis upon which his registration should be 
revoked'' and because ``DEA does not have statutory authority to 
maintain a registration if the registrant is without state authority to 
handle controlled substances.'' Id. at 5.
    Based on the DI's and CC's Declarations, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on (or before) 
October 16, 2018. I also find that more than thirty days have now 
passed since the Government accomplished service of the OSC. Further, 
based on the Government's written representations, I find that neither 
Registrant, nor anyone purporting to represent the Registrant, 
requested a hearing, submitted a written statement while waiving 
Registrant's right to a hearing, or submitted a corrective action plan. 
Accordingly, I find that Registrant has waived the right to a hearing 
and the right to submit a written statement and corrective action plan. 
21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

III. Findings of Fact

A. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BB3725732 at the registered address of 1355 37th St., Suite 301, Vero 
Beach, FL 32960. RFAAX 1 (Certification of Registration Status). 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Registrant's registration expired on July 31, 2020.\1\ Id.
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    \1\ The fact that a Registrant's registration expires during the 
pendency of an OSC does not impact my jurisdiction or prerogative 
under the Controlled Substances Act (hereinafter, CSA) to adjudicate 
the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68,474 (2019).
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B. The Status of Registrant's State License

    The Government submitted evidence that the Florida Board of 
Medicine (hereinafter, the FBM) issued an emergency suspension of 
Registrant's Florida Medical License on May 3, 2018. RFAAX 4 (FBM Order 
of Emergency Suspension). In the Order of Emergency Suspension, the FBM 
noted that Registrant's ``attempts to disguise his participation in 
illicit drug trades by using his credentials as a physician licensed in 
the state of Florida to purportedly be able to `grow cannabis for 
patients' and to be able to traffic thousands of counterfeit oxycodone 
pills as `self-prescribed cancer pills' indicate that [Registrant] 
lacks the good judgment [and] moral character required of a physician 
licensed to practice medicine in the state of Florida.'' Id. at 21. 
Further, the FBM found that:

    [Registrant's] recurrent engagement in an unlawful and complex 
scheme to manufacture and distribute highly addictive and deadly 
controlled substances, continuing after [Registrant] had knowledge 
that his actions resulted in the death of another human being, and 
his attempts to limit his future criminal culpability by causing 
injury or death in a geographical location far away from him the 
next time it inevitably happens, indicate that [Registrant's] 
continued, unrestricted practice of medicine poses an immediate 
serious danger to the public health, safety or welfare.

Id.

    The Government also submitted evidence demonstrating that FBM 
issued a Final Order revoking Registrant's medical license effective 
December 20, 2018. RFAAX 5 (FBM Final Order), at 2-3. The FBM Final 
Order was issued based on a complaint related to Registrant's 
conviction of felonies related to controlled substances. Id. 
(Attachment).
    According to Florida's online records, of which I take official 
notice, Registrant's medical license remains revoked.\2\ Florida 
Department of Health MQA Search Services, Health Care Providers, 
https://appsmqa.doh.state.fl.us/MQASearchServices/HealthCareProviders 
(last visited date of signature of this Order). As such, I find that 
Registrant's Florida medical license is revoked.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Applicant may dispute my finding by filing 
a properly supported motion for reconsideration of finding of fact 
within fifteen calendar days of the date of this Order. Any such 
motion shall be filed with the Office of the Administrator and a 
copy shall be served on the Government. In the event Applicant files 
a motion, the Government shall have fifteen calendar days to file a 
response. Any such motion and response shall be filed and served by 
email on the other party at the email address the party submitted 
for receipt of communications related to this administrative 
proceeding, and on the Office of the Administrator, Drug Enforcement 
Administration at <a href="/cdn-cgi/l/email-protection#cbafaeaae5aaafafa4e5aabfbfa4b9a5aeb2b88bafaeaae5beb8afa4a1e5aca4bd"><span class="__cf_email__" data-cfemail="cca8a9ade2ada8a8a3e2adb8b8a3bea2a9b5bf8ca8a9ade2b9bfa8a3a6e2aba3ba">[email protected]</span></a>.
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C. Registrant's Conviction

    On April 27, 2018, Registrant was found guilty by a Federal jury 
of: Conspiracy to possess with intent to distribute furanyl fentanyl 
resulting in death, in violation of 21 U.S.C. 846; distribution of 
furanyl fentanyl resulting in death, in violation of 21 U.S.C. 
841(a)(1); attempt to possess with intent to distribute acetyl 
fentanyl, in violation of 21 U.S.C. 846; possession with intent to 
distribute oxycodone, in violation of 21 U.S.C. 841(a)(1); and 
conspiracy to possess with intent to distribute hydrocodone and 
oxycodone, in violation of 21 U.S.C. 846. RFAAX 3 (U.S. v. Johnny Clyde 
Benjamin, Jr., Judgment in a Criminal Case, Case No 17-80203-CR-
DIMITROULEAS (S.D. Fla. filed July 9, 2018)). On July 6, 2018, the 
court issued its Judgment and sentenced Registrant to life in prison. 
Id. at 2.

IV. DISCUSSION

A. Loss of State Authority

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA) ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the state in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . . , to distribute, 
dispense, . . . [or] administer . . . a

[[Page 32282]]

controlled substance in the course of professional practice.'' 21 
U.S.C. 802(21). Second, in setting the requirements for obtaining a 
practitioner's registration, Congress directed that ``[t]he Attorney 
General shall register practitioners . . . if the applicant is 
authorized to dispense . . . controlled substances under the laws of 
the State in which he practices.'' 21 U.S.C. 823(f). Because Congress 
has clearly mandated that a practitioner possess state authority in 
order to be deemed a practitioner under the CSA, the DEA has held 
repeatedly that revocation of a practitioner's registration is the 
appropriate sanction whenever he is no longer authorized to dispense 
controlled substances under the laws of the state in which he 
practices. See, e.g., James L. Hooper, 76 FR at 71,371-72; Sheran Arden 
Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 
FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 
(1988); Frederick Marsh Blanton, 43 FR at 27,617.
    According to Florida statute, ``A practitioner, in good faith and 
in the course of his or her professional practice only, may prescribe, 
administer, [or] dispense . . . a controlled substance.'' Fla. Stat. 
Ann. Sec.  893.05(1)(a) (West, Current with laws of the 2021 First 
Regular Session of the Twenty-Seventh Legislature in effect through May 
25, 2021). Further, ``practitioner,'' as defined by Florida statute, 
includes ``a physician licensed under chapter 458.'' \3\ Fla. Stat. 
Ann. Sec.  893.02(23) (West, Current with laws of the 2021 First 
Regular Session of the Twenty-Seventh Legislature in effect through May 
25, 2021).
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    \3\ Chapter 458 regulates medical practice.
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    Here, the undisputed evidence in the record is that Registrant's 
license to practice medicine is currently revoked. As such, he is not a 
``practitioner'' as that term is defined by Florida statute. As already 
discussed, however, a physician must be a practitioner to dispense a 
controlled substance in Florida. Thus, because Registrant lacks 
authority to practice medicine in Florida, he is not currently 
authorized to handle controlled substances in Florida.

B. Registrant's Felony Conviction

    Pursuant to section 304(a)(2) of the CSA, the Attorney General is 
authorized to suspend or revoke a registration ``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 . . . relating to any substance defined in this 
subchapter as a controlled substance or a list I chemical.'' 21 U.S.C. 
824(a)(2). Each subsection of Section 824(a) provides an independent 
ground to impose a sanction on a registrant. Arnold E. Feldman, M.D., 
82 FR 39,614, 39,617 (2017).
    Here, there is no dispute in the record that Registrant has been 
convicted of conspiracy to possess with intent to distribute furanyl 
fentanyl resulting in death, in violation of 21 U.S.C. 846; 
distribution of furanyl fentanyl resulting in death, in violation of 21 
U.S.C. 841(a)(1); attempt to possess with intent to distribute acetyl 
fentanyl, in violation of 21 U.S.C. 846; possession with intent to 
distribute oxycodone, in violation of 21 U.S.C. 841(a)(1); and 
conspiracy to possess with intent to distribute hydrocodone and 
oxycodone, in violation of 21 U.S.C. 846, which constitutes a felony 
conviction ``relating to'' controlled substances as those terms are 
defined in 21 U.S.C. 824(a)(2). 21 U.S.C. 846 and 841(a)(1); William J. 
O'Brien, III, D.O., 82 FR 46,527, 46,529 (2017).
    Where, as here, the Government has met its prima facie burden of 
showing that two grounds for revocation exist, the burden shifts to the 
Registrant to show why he can be entrusted with a registration. See 
Jeffrey Stein, M.D., 84 FR 46,968, 46,972 (2019). Registrant, as 
already discussed, failed to respond in any way to the OSC. See RFAA, 
at 6. Therefore, among other things, Registrant has not accepted 
responsibility for his criminality, shown any remorse for it, or 
provided any assurance that he would not repeat it. See Jeffrey Stein, 
M.D., 84 FR at 46,972-74. Such silence weighs against the Registrant's 
continued registration. Zvi H. Perper, M.D., 77 FR 64,131 64,142 (2012) 
(citing Medicine Shoppe-Jonesborough, 73 FR 264, 387 (2008); Samuel S. 
Jackson, 72 FR 23,848, 23,853 (2007)); see also Jones Total Health Care 
Pharmacy, LLC v. Drug Enf't Admin., 881 F3d. 823, 831 (11th Cir. 2018) 
(`` `An agency rationally may conclude that past performance is the 
best predictor of future performance.' '' (quoting Alra Laboratories, 
Inc. v. Drug Enf't Admin., 54 F.3d 450, 452 (7th Cir. 1995))).
    Further, the CSA authorizes the Attorney General to ``promulgate 
and enforce any rules, regulations, and procedures which he may deem 
necessary and appropriate for the efficient execution of his functions 
under this subchapter.'' 21 U.S.C. 871(b). This authority specifically 
relates ``to `registration' and `control,' and `for the efficient 
execution of his functions' under the statute.'' Gonzales v. Oregon, 
546 U.S. 243, 259 (2006). A clear purpose of this authority is to 
``bar[] doctors from using their prescription-writing powers as a means 
to engage in illicit drug dealing and trafficking . . . .'' Id. at 270. 
In this case, Registrant has demonstrated the precise behavior that the 
Agency's authority is intended to prevent by engaging in outright drug 
dealing with appalling disregard for the value of human life. 
Registrant's behavior is ``so obviously egregious that revocation is 
warranted.'' William J. O'Brien, III, D.O., 82 FR at 46,529.
    Based on the record before me, I conclude that Registrant's founded 
criminality and lack of state authority to handle controlled substances 
in his state of DEA registration each make him ineligible to maintain a 
DEA registration. Accordingly, I shall order the sanctions the 
Government requested, as contained in the Order below.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BB3725732 issued to Johnny C. Benjamin, Jr., M.D. Further, pursuant to 
28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I 
hereby deny any pending application of Johnny C. Benjamin, Jr., M.D. to 
renew or modify this registration, as well as any other pending 
application of Johnny C. Benjamin, Jr., M.D. for additional 
registration in Florida. This Order is effective July 19, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-12753 Filed 6-16-21; 8:45 am]
BILLING CODE 4410-09-P


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