[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Notices]
[Pages 52203-52205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20246]


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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Registrant's medical license was revoked.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.

[[Page 52204]]

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 x-ray 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.
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    \1\ 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, 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 <a href="/cdn-cgi/l/email-protection#244041450a4540404b0a4550504b564a415d57644041450a5157404b4e0a434b52"><span class="__cf_email__" data-cfemail="f7939296d996939398d9968383988599928e84b7939296d9828493989dd9909881">[email protected]</span></a>.
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    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 
Sec.  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 
Sec.  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

[[Page 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


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