Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52203 

responses Applicant provided in her 

North Carolina-based registration 

application were not ‘‘predictably 

capable of affecting, that is, had a 

natural tendency to affect, the official 

decision’’ of DEA given Applicant’s 

unrebutted record evidence of the input 

and instructions she said she received 

during her meeting with the DEA 

investigative team on January 31, 2019. 

The Government has the burden of 

proof in this proceeding. 21 CFR 

1301.44. For the above-stated reasons, I 

find that the Government has failed to 

meet its burden. The record evidence 

does not include clear, unequivocal, and 

convincing evidence that Applicant 

materially falsified her North Carolinabased registration application. 21 U.S.C. 

824(a)(1); Frank Joseph Stirlacci, M.D., 

85 FR 45,229 (2020). Accordingly, I am 

dismissing the OSC. 

However, as explained supra section 

II.B., Applicant is not currently 

‘‘authorized to dispense controlled 

substances under the laws of the State’’ 

of North Carolina, I have no statutory 

authority to grant Applicant’s North 

Carolina-based registration application. 

21 U.S.C. 823(f); 21 U.S.C. 802(21); 

supra section II.B. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

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

823(f) and 824(a), I hereby dismiss the 

Order to Show Cause issued to Lisa Mae 

Jones, N.P. Further, pursuant to 28 CFR 

0.100(b) and the authority vested in me 

by 21 U.S.C. 823(f), in conjunction with 

21 U.S.C. 802(21), I deny Application 

No. W19018692M. This Order is 

effective October 20, 2021. 

Anne Milgram, 

Administrator. 

[FR Doc. 2021–20241 Filed 9–17–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Humberto A. Florian, M.D.; Decision 

and Order 

On March 24, 2021, the Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Humberto A. 

Florian, M.D. (hereinafter, Registrant) of 

Anaheim, California. OSC, at 1. The 

OSC proposed the revocation of 

Registrant’s Certificate of Registration 

No. FF0235451. Id. It alleged that 

Registrant is ‘‘without authority to 

handle controlled substances in 

California, the state in which [he is] 

registered with DEA.’’ Id. at 2 (citing 21 

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

Specifically, the OSC alleged that the 

Medical Board of California, Department 

of Consumer Affairs (hereinafter, the 

Board) issued a Decision on November 

21, 2018, to revoke Registrant’s medical 

license. Id. at 2. On December 21, 2018, 

the Board issued an Order denying 

Registrant’s Petition for Reconsideration 

of the Decision and Registrant’s medical 

license was revoked. Id. The California 

Medical Board revoked Registrant’s 

medical license following its findings, 

inter alia, that Registrant was grossly 

negligent, committed repeated negligent 

acts, failed to maintain accurate and 

adequate medical records, and violated 

the California Medical Practice Act. Id. 

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. (citing 21 CFR 

1301.43). The OSC also notified 

Registrant of the opportunity to submit 

a corrective action plan. Id. at 3 (citing 

21 U.S.C. 824(c)(2)(C)). 

Adequacy of Service 

In a Declaration, dated August 11, 

2021, a Diversion Investigator 

(hereinafter, the DI) assigned to the 

Riverside District Office, Los Angeles 

Field Division, attempted to contact 

Registrant, including at his registered 

address in Anaheim, California, ‘‘to 

determine if he would voluntarily 

surrender his [DEA registration] in light 

of his lack of state authority to prescribe 

controlled substances.’’ Request for 

Final Agency Action (hereinafter, 

RFAA), Exhibit (hereinafter, RFAAX) 3 

(DI’s Declaration), at 1–2. The DI stated 

that a receptionist at the registered 

address said that ‘‘[Registrant] had 

retired, but [the] office still forwarded 

mail to him.’’ Id. at 2. Following the 

issuance of the OSC, the DI traveled 

with another DI on April 2, 2021, to 

‘‘the last known residence’’ of Registrant 

to attempt to serve Registrant with the 

OSC, but service was unsuccessful as 

‘‘no one appeared to be at the residence 

at that time.’’ Id. On April 12, 2021, the 

Riverside District Office, Los Angeles 

Field Division mailed a copy of the OSC 

to Registrant’s last know residence via 

first-class mail and the mailing was not 

returned as undeliverable. Id. On May 

14, 2021, the Los Angeles Field Division 

mailed a copy of the OSC to Registrant’s 

registered address via first-class mail 

with return receipt requested, to which 

the DEA received ‘‘an unsigned return 

receipt on May 24, 2021, indicating that 

the [OSC] had been delivered.’’ Id.; see 

also RFAAX 3, Appendix (hereinafter, 

App.) B. Finally, on May 20, 2021, the 

DI sent a copy of the [OSC] to Registrant 

via his registered email address and did 

not receive any error message that 

indicated that the email was not 

delivered. RFAAX 3, at 2.; see also 

RFAAX 3, App. C (copy of email). The 

DI also stated that a review of the email 

system showed that the email had been 

delivered. RFAAX 3, at 2. The DI 

concluded that, ‘‘[t]o date, neither 

[Registrant] nor any attorney 

representing [Registrant] has requested a 

hearing. Neither has [Registrant] nor any 

attorney for [Registrant] submitted a 

written statement.’’ Id. at 3. 

The Government forwarded its RFAA, 

along with the evidentiary record, to 

this office on August 12, 2021. In its 

RFAA, the Government represents that 

‘‘[Registrant] has not submitted a timely 

request for a hearing in this matter.’’ 

RFAA, at 1. The Government ‘‘seeks to 

revoke the [DEA registration] of 

[Registrant] because he lacks authority 

to handle controlled substances in the 

State of California, the state where he is 

registered with DEA.’’ Id. 

Based on the DI’s Declaration, 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 

May 20, 2021. I also find that more than 

thirty days have now passed since the 

Government accomplished service of 

the OSC. Further, based on the DI’s 

Declaration and 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). 

Findings of Fact 

Registrant’s DEA Registration 

Registrant is the holder of DEA 

Certificate of Registration No. 

FF0235451 at the registered address of 

2090 S Euclid St. Ste. 104, Anaheim, CA 

92802. RFAAX 1 (DEA Certificate of 

Registration). Pursuant to this 

registration, Registrant is authorized to 

dispense controlled substances in 

schedules III through V as a practitioner. 

52204 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 

1Under 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, 

Registrant 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 and response 

shall be filed and served by email to the other party 

and to Office of the Administrator, Drug 

Enforcement Administration at 

dea.addo.attorneys@dea.usdoj.gov. 

Id. Registrant’s registration expires on 

September 30, 2021. Id. 

The Status of Registrant’s State License 

On June 22, 2018, Administrative Law 

Judge Abraham M. Levy of the Office of 

Administrative Hearings, State of 

California (hereinafter, CA ALJ), issued 

a Proposed Decision (hereinafter, CA 

ALJ Decision). RFAAX 3, App. A, at 17 

and 30. According to the CA ALJ 

Decision, Registrant ‘‘committed gross 

negligence and repeated negligent acts, 

he failed to maintain adequate and 

accurate records relating to his 

treatment of Patient A, and he, in turn, 

violated the Medical Practice Act.’’ Id. 

at 18. The CA ALJ Decision summarizes 

that Registrant ‘‘saw Patient A five times 

between March 2014 and July 2014, 

ordered a chest x-ray and a lab work-up, 

and despite abnormal findings on the xray indicating further follow-up was 

needed, [Registrant] failed to follow up 

on the x-ray findings or clinically assess 

Patient A’s lung condition.’’ Id. at 17. 

According to the CA ALJ Decision 

summary, ‘‘[o]n August 14, 2014, 

Patient A died from respiratory failure 

and interstitial lung disease due to 

Chronic Obstructive Pulmonary Disease 

(COPD), pulmonary hypertension, and 

small cell lung cancer.’’ Id. Further, 

according to the ALJ Decision, 

‘‘[Registrant] failed to present any 

evidence of rehabilitation, or evidence 

showing he is amenable to probation, to 

justify placing him on probation.’’ Id. at 

18. The CA ALJ Decision concluded that 

‘‘public protection requires that 

[Registrant’s] license be revoked.’’ Id. 

On July 31, 2018, the Board issued an 

Order of Non-Adoption of Proposed 

Decision, which ordered that the ALJ 

Decision was not adopted and that a 

panel of the Board would decide the 

case upon the record. Id. at 16. On 

November 21, 2018, the Board issued a 

Decision after Non-Adoption 

(hereinafter, Board Decision). Id. at 2 

and 15. The Board Decision 

incorporated the factual findings of the 

CA ALJ. Id. at 2–4. The Board Decision 

ordered that Registrant’s medical license 

be revoked effective December 21, 2018. 

Id. at 15. On December 21, 2018, the 

Board issued an Order Denying Petition 

for Reconsideration that denied the 

Petition filed by Registrant for the 

reconsideration of the Board Decision. 

Id. at 1. 

According to California’s online 

records, of which I take official notice, 

Registrant’s license is still revoked.1

Medical Board of California License 

Verification, https://www.mbc.ca.gov/ 

License-Verification (last visited date of 

signature of this Order). California’s 

online records show that Registrant’s 

medical license remains revoked and 

that Registrant is not authorized in 

California to practice medicine. Id. 

Accordingly, I find that Registrant is 

not licensed to engage in the practice of 

medicine in California, the state in 

which Registrant is registered with the 

DEA. 

Discussion 

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 

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 California statute, 

‘‘dispense’’ means ‘‘to deliver a 

controlled substance to an ultimate user 

or research subject by or pursuant to the 

lawful order of a practitioner, including 

the prescribing, furnishing, packaging, 

labeling, or compounding necessary to 

prepare the substance for that delivery.’’ 

Cal. Health & Safety Code § 11010 

(West, current with urgency legislation 

through Ch. 115 of 2021 Reg. Sess). 

Further, a ‘‘practitioner’’ means a person 

‘‘licensed, registered, or otherwise 

permitted, to distribute, dispense, 

conduct research with respect to, or 

administer, a controlled substance in 

the course of professional practice or 

research in this state.’’ Id. at § 11026(c). 

Because Registrant is not currently 

licensed as a physician, or otherwise 

licensed in California, he is not 

authorized to dispense controlled 

substances in California. 

Here, the undisputed evidence in the 

record is that Registrant currently lacks 

authority to practice medicine in 

California. As already discussed, a 

physician must be a licensed 

practitioner to dispense a controlled 

substance in California. Thus, because 

Registrant lacks authority to practice 

medicine in California and, therefore, is 

not authorized to handle controlled 

substances in California, Registrant is 

not eligible to maintain a DEA 

registration. Accordingly, I will order 

that Registrant’s DEA registration be 

revoked. 

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. FF0235451 issued to 

Humberto A. Florian, 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 Humberto A. Florian to 

renew or modify this registration, as 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52205 

well as any other pending application of 

Humberto A. Florian, for additional 

registration in California. This Order is 

effective October 20, 2021. 

Anne Milgram, 

Administrator. 

[FR Doc. 2021–20246 Filed 9–17–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Steven P. French, M.D.; Decision and 

Order 

On February 11, 2021, the Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Steven P. 

French, M.D. (hereinafter, Registrant) of 

Jackson, Wyoming. OSC, at 1. The OSC 

proposed the revocation of Registrant’s 

Certificate of Registration No. 

FF5659505. Id. It alleged that Registrant 

is ‘‘without authority to handle 

controlled substances in Wyoming, the 

state in which [he is] registered with 

DEA.’’ Id. at 2 (citing 21 U.S.C. 

824(a)(3)). 

Specifically, the OSC alleged that the 

Wyoming Board of Medicine 

(hereinafter, the Board) issued a 

Findings of Fact, Conclusions of Law, 

and Order on April 17, 2020. Id. at 1. 

According to the OSC, the Board 

accepted Registrant’s voluntary 

relinquishment of his Wyoming medical 

license following its finding, inter alia, 

that Registrant was convicted of driving 

under the influence. Id. at 1–2. The 

Board further found that during 

Registrant’s arrest for driving under the 

influence, Wyoming authorities 

‘‘discovered in [Registrant’s] possession 

a prescription bottle of lorazepam 0.5 

mg pills belonging to one of [his] 

patients, but with one pill missing.’’ Id. 

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. (citing 21 CFR 

1301.43). The OSC also notified 

Registrant of the opportunity to submit 

a corrective action plan. Id. at 3 (citing 

21 U.S.C. 824(c)(2)(C)). 

Adequacy of Service 

In a Declaration, dated July 21, 2021, 

a Diversion Investigator (hereinafter, the 

DI) assigned to the Cheyenne Resident 

Office of the Denver Field Division, 

stated that on September 21, 2020, prior 

to the issuance of the OSC, he had 

communicated via email with Registrant 

regarding Registrant’s DEA registration. 

Request for Final Agency Action 

(hereinafter, RFAA), Exhibit 

(hereinafter, RFAAX) 3 (DI’s 

Declaration), at 1. The DI stated that the 

following day, ‘‘[Registrant] responded 

to the email [the DI] had sent him and 

indicated that he had moved to Alaska 

and that for any future communications 

[the DI] should contact him via email.’’ 

Id.; see also RFAAX 3, Appendix 

(hereinafter, App.) A (email exchange 

with Registrant). On February 12, 2021, 

the DI sent a copy of the OSC to 

Registrant via email. Id. at 1. The DI 

stated that later that day, Registrant 

‘‘responded to [the] email and indicated 

that he received a copy of the [OSC].’’ 

Id. at 1–2; see also RFAAX 3, App. B 

(email from Registrant). The DI stated 

that, as of July 21, 2021, ‘‘DEA has not 

received any correspondence from 

[Registrant] or any attorney acting on his 

behalf concerning the [OSC].’’ RFAAX 

3, at 2. 

The Government forwarded its RFAA, 

along with the evidentiary record, to me 

on August 10, 2021. In its RFAA, the 

Government represents that 

‘‘[Registrant] has not submitted a timely 

request for a hearing in this matter.’’ 

RFAA, at 1. The Government seeks to 

revoke Registrant’s DEA registration 

because ‘‘[Registrant] lacks authority to 

handle controlled substances in the 

State of Wyoming, the state where he is 

registered with DEA.’’ Id. 

Based on the DI’s Declaration, the 

Government’s written representations, 

and my review of the record, I find that 

the Government accomplished service 

of the OSC on Registrant on February 

12, 2021. I also find that more than 

thirty days have now passed since the 

Government accomplished service of 

the OSC. Further, based on the DI’s 

Declaration and 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). 

Findings of Fact 

Registrant’s DEA Registration 

Registrant is the holder of DEA 

Certificate of Registration No. 

FF5659505 at the registered address of 

6605 N Snake River Woods Dr., Jackson, 

WY 83001. RFAAX 1 (Certificate of 

Registration). Pursuant to this 

registration, Registrant is authorized to 

dispense controlled substances in 

schedules II through V as a practitioner. 

Id. Registrant’s registration expires on 

September 30, 2021. Id. 

The Status of Registrant’s State License 

On January 16, 2020, Registrant 

submitted a letter to the Board 

informing it that he was voluntarily 

relinquishing his Wyoming medical 

license. RFAAX 3, App. C, at 19. On 

March 19, 2020, a member of the Board 

petitioned the Board to accept 

Registrant’s voluntary relinquishment of 

his Wyoming Physician License. Id. at 

13. On April 17, 2020, the Board issued 

its Findings of Fact, Conclusions of 

Law, and Order Accepting Voluntary 

Relinquishment of the Wyoming 

Physician License of Steven P. French, 

M.D., Wyoming Physician License No. 

3068A (hereinafter, Board Order). Id. at 

1. 

According to the Board Order, in 

September 2018, Registrant’s clinical 

privileges were permanently revoked by 

Crook County Medical Services District 

in Sundance, Wyoming based upon an 

incident in August 2018 where 

Registrant was allegedly intoxicated and 

exhibited ‘‘disruptive, abusive, and 

threatening behavior’’ at the hospital 

while he was off-duty. Id. at 3. When 

the Wyoming Medicine Board opened a 

complaint on the matter, Registrant 

denied any inappropriate behavior and 

‘‘asserted that he had unilaterally 

resigned his clinical privileges as 

opposed to them being revoked.’’ Id. On 

July 2, 2019, while the first complaint 

was still pending, Registrant applied to 

renew his Wyoming medical license and 

indicated on his application that he 

‘‘was convicted of driving under the 

influence on November 26, 2018, related 

to an arrest incident that occurred on 

July 12, 2018.’’ Id. 

The Board opened an additional 

complaint concerning the arrest 

incident. Id. The Board Order states that 

Registrant was arrested for a DUI at a gas 

station, and ‘‘[d]uring the arrest, sheriff 

deputies also located a prescription 

bottle of [l]orazepam 0.5 mg for 30 pills, 

of which one pill was missing.’’ Id. at 

4. Further, ‘‘[t]he label indicated the 

prescription was written by [Registrant] 

for one of his patients’’ and ‘‘[i]t was 

determined that the prescription was