[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Notices]
[Pages 17577-17578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8403]



-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE
[Docket No. 93-46]


Ellis Turk, M.D.; Revocation of Registration

    On April 15, 1993, the Deputy Assistant Administrator (then 
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Ellis Turk, M.D. (Respondent), 
of Baltimore, Maryland, proposing to revoke his DEA Certificate of 
Registration, AT2444711, and deny any pending applications for renewal 
of such registration as a practitioner. The statutory basis for the 
Order to Show Cause was that Respondent's continued registration would 
be inconsistent with the public interest pursuant to 21 U.S.C. 823(f) 
and 824(a)(4).
    Respondent, through counsel, requested a hearing on the issues 
raised in the Order to Show Cause and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. On November 11, 1993, 
Respondent voluntarily discharged his counsel and continued pro se.
    Following prehearing procedures, a hearing was held before Judge 
Bittner in Arlington, Virginia on November 22, 1993. On February 16, 
1994, after the Government submitted its post-hearing brief, Respondent 
filed Response of Ellis Turk, M.D. to Government's Proposed Findings of 
Fact, Conclusions of Law and Argument (the ``Respondent's Response''). 
The Government filed a Motion to Strike Respondent's Response on 
February 18, 1994, on the grounds that the rules governing DEA 
administrative hearings (specifically 21 CFR 1316.64) do not permit 
such a responsive pleading. The Respondent filed a Response to Motion 
to Strike Respondent's Response on March 9, 1994.
    On June 7, 1994, Judge Bittner issued her Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision recommending 
that Respondent's DEA registration be revoked and any pending 
applications be denied. As part of the opinion, Judge Bittner allowed 
the Government's motion and struck Respondent's Response. Additionally, 
she allowed the Government's motion to strike specific exhibits filed 
by Respondent with his post-hearing brief. No exceptions to the Opinion 
were filed by either party even after an extension of time to ensure 
service of the opinion on the Respondent.
    On July 8, 1994, the administrative law judge transmitted the 
record to the Deputy Administrator, including the Respondent's Response 
and the exhibits struck by Judge Bittner. On September 28, 1994, 
Respondent, through newly retained counsel, filed a Motion to Remand 
and Open the Record to Hear New Evidence with the Deputy Administrator 
of the DEA. The Government filed its opposition to Respondent's motion 
on October 13, 1994.
    The Deputy Administrator has considered the record in its entirety, 
and, enters his final order in this matter pursuant to 21 CFR 1316.67, 
based on findings of fact and conclusions of law as set forth herein. 
The Deputy Administrator, concurring with the administrative law judge 
in her decision to strike Respondent's Response and exhibits filed 
post-hearing, did not consider those documents in rendering his final 
order.
    The administrative law judge found that, in 1987, DEA received 
approximately ten reports from drug distributors that Respondent had 
purchased excessive quantities of the controlled substances phentermine 
and phendimetrazine. On two occasions in December 1988, DEA and 
Maryland State drug inspectors, pursuant to an administrative 
inspection warrant, conducted an accountability audit of controlled 
substances at Respondent's office, covering the period from 
[[Page 17578]] December 29, 1987 through December 12, 1988. the audit 
revealed shortages in the Respondent's accountability of controlled 
substances. These audit results were confirmed by a second audit 
conducted by DEA in 1989.
    On November 22, 1989, a civil complaint was filed in the United 
States District Court for the District of Maryland against Respondent, 
based on the findings of the 1988 investigation. Following a bench 
trial on June 15 and 16, 1992, the court found that Respondent failed 
to comply with recordkeeping requirements of the Controlled Substances 
Act. On June 23, 1992, the court found Respondent liable for civil 
penalties in the amount of $24,000 for violations of 21 U.S.C. 
827(a)(3) and 21 U.S.C. 842(a)(5). The court's decision was upheld by 
the U.S. Court of Appeals for the Fourth Circuit on February 18, 1993.
    In her opinion of June 7, 1994, Judge Bittner noted that the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending application for such registration if he determines that the 
continued registration would be inconsistent with the public interest 
pursuant to the following factors set forth in 21 U.S.C. 823(f):
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing or conducting research 
with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten public health and safety.
    Judge Bittner stated, as a threshold matter, the Deputy 
Administrator may properly rely on any one or a combination of the five 
factors set forth in Section 823(f) and give each factor the weight he 
deems appropriate. See Henry J. Schwartz, Jr., M.D.,  54 FR 16422 
(1989). She further stated that all five factors under 21 U.S.C. 823(f) 
were relevant in determining whether Respondent's continued 
registration would be inconsistent with the public interest.
    Judge Bittner held that the evidence provided by the Government 
clearly established the shortages in Respondent's accountability of 
controlled substances, and that, although Respondent offered various 
documents into evidence, none of them offered any plausible or coherent 
explanation for the discrepancies found in the investigation. She 
further found that the Respondent, throughout the course of his 
previous litigation, as well as the instant case, continuously had been 
defensive, hostile, and uncooperative and had insisted on clouding the 
issues with tangential arguments and rhetorical allegations of 
political wrongdoing. Judge Bittner concluded that Respondent currently 
was not in a position to properly discharge the obligations of a DEA 
registrant, and, therefore, Respondent's continued registration would 
not be in the public interest. The administrative law judge recommended 
that Respondent's DEA Certificate of Registration be revoked and any 
pending applications should be denied.
    The Deputy Administrator adopts the opinion and recommended 
decision of the administrative law judge in its entirety. The 
Respondent's Motion to Remand and Reopen the Record is denied. During 
the course of this administrative hearing, Respondent put forth 
extensive argument, raised countless objections, and submitted numerous 
motions in full support of his cause. The Deputy Administrator does not 
find any support for Respondent's contention, as outlined in his 
motion, that his medical condition had a deleterious effect on 
Respondent's ability to represent himself throughout the course of this 
proceeding. This matter has been fully and fairly litigated and there 
is no need to relitigate this case.
    Based on the foregoing, the Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority invested in him 
by 21 U.S.C. 823 and 824, and 28 CFR 0.100(b) and 0.104 hereby orders 
that DEA Certificate of Registration AT2444711, previously issued to 
Ellis Turk, M.D. be, and it hereby is, revoked, and that any pending 
applications for registration be denied. This orders is effective May 
8, 1995.

    Dated: March 30, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-8403 Filed 4-5-95; 8:45 am]
BILLING CODE 4410-09-M