[Federal Register Volume 60, Number 36 (Thursday, February 23, 1995)]
[Notices]
[Pages 10109-10110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4334]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-67]


Barry S. Gleken, D.M.D.; Denial of Application

    On June 27, 1994, the Deputy Administrator, Office of Diversion 
Control, Drug Enforcement Administration (DEA), issued an Order to Show 
Cause to Barry S. Gleken (Respondent), of Methuen, Massachusetts, 
proposing to deny his application for a DEA Certificate of 
Registration, as a practitioner under 21 U.S.C. 823(f). The proposed 
action was predicated, inter alia, on Respondent's lack of 
authorization to handle controlled substances in the Commonwealth of 
Massachusetts. 21 U.S.C. 824(a)(3). The Order to Show Cause also 
alleged that Respondent's registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 823(f) based on a 
number of other allegations, including that Respondent materially 
falsified his present application by indicating that he was currently 
authorized to handle controlled substances in the state he was 
proposing to operate, when, in fact, he was not so authorized.
    The Order to Show Cause was sent to Respondent by registered mail. 
Respondent, through counsel, timely filed a request for a hearing. On 
August 18, 1994, the Government filed a motion for summary disposition 
based upon documentation that Respondent did not possess a valid 
Massachusetts Controlled Substances Registration and that such a 
registration was necessary before DEA could issue Respondent a 
registration to handle controlled substances in the Commonwealth of 
Massachusetts.
    Respondent filed a response which did not deny that Respondent was 
not currently authorized to handle controlled substances in 
Massachusetts. Respondent, however, urged the administrative law judge 
to recommend that Respondent be allowed to withdraw his application 
without prejudice and that no further action be taken by DEA. 
Respondent maintained that such action be taken because he intended to 
apply for a Massachusetts Controlled Substances Registration in the 
future.
    Respondent, in support of his response, asserted that Massachusetts 
recently enacted regulations requiring all dentists to be registered 
with the State Department of Health for authorization to handle 
controlled substances and that Respondent had just become aware of this 
requirement.
    On September 6, 1994, in his opinion and recommended decision, the 
administrative law judge found that Respondent was not currently 
authorized to handle controlled substances in Massachusetts. The 
administrative law judge also found that Respondent wanted to properly 
apply for a Massachusetts registration, thereby eliminating the 
``procedural'' defect to obtaining a DEA registration. Consequently, he 
concluded that no prejudice would accrue to DEA if Respondent were 
allowed to withdraw his application rather than denying the application 
based upon his lack of state authorization to handle controlled 
substances in Massachusetts. The administrative law judge recommended 
that Respondent be permitted to withdraw his application without 
prejudice.
    On September 26, 1994, the Government filed exceptions to the 
opinion and recommended decision of the administrative law judge, 
contending that Respondent's application should be denied based upon 
the lack of state authorization rather than allowing Respondent to 
voluntarily withdraw his application. The Government argued in the 
alternative, that the Deputy Administrator remand the case back to the 
administrative law judge to allow the Deputy Assistant Administrator, 
Office of Diversion Control, to decide whether to permit Respondent to 
withdraw his application, as provided under 21 CFR 1301.37 and 28 CFR 
0.104 Appendix to Subpart R, Section 7(a). Respondent did not file a 
response to the Government exceptions.
    The Deputy Administrator finds that, pursuant to 28 CFR 0.104 
Appendix to Subpart R, Section 7(a), it is within the discretion of the 
Deputy Assistant Administrator, Office of Diversion Control, to permit 
Respondent to withdraw his application after an Order to Show Cause has 
been filed. However, the Deputy Administrator has concluded that rather 
than remand the matter for consideration of a withdrawal of the 
application, the application should be denied based on Respondent's 
current lack of authorization to handle controlled substances in 
Massachusetts.
    As detailed in the Order to Show Cause, Respondent is alleged to 
have committed numerous wrongful acts, one of which is the 
falsification of the present application. Permitting the withdrawal of 
this application would be prejudicial to the Government and potentially 
the public. It would eliminate an important factor, the alleged 
falsification of an application, which should be considered in 
determining whether future applications should be granted.
    The Deputy Administrator finds that Respondent does not currently 
have state authority to handle controlled substances in the 
Commonwealth of Massachusetts, the state in which he proposes to be 
registered with the DEA. The Deputy Administrator concludes that the 
DEA does not have the 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. 
See 21 U.S.C. 823(f). The Deputy Administrator and his predecessors 
have consistently so held. See Howard J. Reuben, M.D., 52 FR 8375 
(1987); Ramon Pla, M.D., Docket No. 86-54, 51 FR 41168 (1986); Dale D. 
Shahan, D.D.S., Docket No. 85-57, 51 FR 23481 (1986); and cases cites 
therein. Since there is no disagreement that Respondent was not 
currently authorized to handle controlled substances in Massachusetts 
when he filed his application, the Deputy Administrator concludes that 
the Government's motion for summary disposition should be granted.
    Accordingly, the 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 [[Page 10110]] hereby orders 
that the application for a DEA Certificate of Registration, submitted 
by Barry S. Gleken, D.M.D., be, and it is hereby denied. This order is 
effective February 23, 1995.

    Dated: February 16, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-4334 Filed 2-22-95; 8:45 am]
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