Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices 17577

interest factors (1), (2), (4), and (5) under

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

The Deputy Administrator,

concurring with the Government’s

exceptions, does not agree with Judge

Tenney’s finding that Respondent’s

location in a low socio-economic area

constitutes a mitigating factor for

Respondent’s numerous violations of

the laws and regulations relating to

controlled substances. The Deputy

Administrator similarly rejects as a

mitigating factor, Respondent’s plea of

good faith ignorance in that he was not

actually informed of the reclassification

of glutethimide from a Schedule III to a

Schedule II controlled substance.

The Deputy Administrator disagrees

with, and declines to follow, Judge

Tenney’s proposed suspension of

Respondent’s registration. Judge

Tenney’s reliance on Buscema is not

applicable to the facts in the instant

case. In Buscema, Judge Tenney found

that Respondent’s actions in failing to

account for the disposition of Schedule

II controlled substances and his

subsequent guilty plea to a felony

charge of falsifying records concerning

controlled substances, occurred over a

limited period of time and was

motivated by his desire to protect his

wife, an employee of his office and a

subsequently rehabilitated drug addict

suspected of diverting the missing drugs

for her own use. In finding that the State

of New York had exacted ‘‘full and fair’’

retribution and recommending that Dr.

Buscema’s registration not be revoked,

Judge Tenney found, and the Deputy

Administrator concurred, that Dr.

Buscema had served his probationary

sentence, had been discharged from

probation two and one-half years early

and had accepted responsibility for his

conduct and failures regarding his

wife’s chemical dependency.

The Deputy Administrator finds that

the leniency exercised in Buscema

should not similarly be extended to

Respondent in this proceeding.

Respondent’s numerous recordkeeping

violations have resulted in the diversion

of large quantities of controlled

substances to a number of individuals,

including drug addicts. Further, these

violations were ongoing while previous

violations by the State of Michigan were

being appealed, and, therefore, the State

of Michigan cannot be found to have

exacted its ‘‘retribution’’ against

Respondent for violations which it

never had the opportunity to address.

Additionally, as noted in Judge

Tenney’s thorough Findings of Fact,

even aside from the numerous

recordkeeping violations, Respondent

also diverted large amounts of Tylenol

with codeine and glutethimide for no

legitimate medical purpose. Finally,

contrary to Dr. Buscema’s acceptance of

responsibility for his actions, Mr.

Goldstein, owner of Respondent

pharmacy, continues to deny any

misconduct, including those State

violations upheld on appeal.

The Deputy Administrator finds merit

in all of the Government’s exceptions,

and further finds that Respondent’s

ongoing violations of Federal and State

controlled substance rules and

regulations strongly indicate that his

continued registration with DEA would

not be consistent with the public

interest.

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,

hereby orders that DEA Certificate of

Registration, BF1175466, issued to

Frank’s Corner Pharmacy, be and it

hereby is, revoked, and that any

pending applications for registration be

denied.

This order is effective May 8, 1995.

Dated: March 30, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95–8402 Filed 4–5–95; 8:45 am]

BILLING CODE 4410–09–M

[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
17578 Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices

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

DEPARTMENT OF LABOR

Employment and Training

Administration

Job Training Partnership Act: Dropout

Prevention

AGENCY: Employment and Training

Administration, Labor.

ACTION: Notice of availability of funds

and solicitation for grant application

(SGA).

SUMMARY: All the information required

to submit a proposal is contained in the

announcement. The U.S. Department of

Labor (DOL), Employment and Training

Administration (ETA), announces the

availability of funds for demonstration

projects to replicate and formally

evaluate a successful model by the Ford

Foundation, known as the Quantum

Opportunities Project (QOP). The U.S.

Department of Education may also

provide funds for this demonstration.

The project is directed specifically

toward at-risk youth entering the ninth

grade. The objectives of the project are

to enable participants to complete high

school, and to improve their rate of

entering and succeeding in postsecondary education.

Initial grants of $200,000 will be made

to five local areas. Pending availability

of funds, these grants will be renewed

at the same level for three additional

years to cover the four years of high

school of participating students. To

receive these funds, local sites will need

to agree to participate in an evaluation

in which eligible youth will be

randomly assigned to receive or not to

receive QOP services.

These grants will be limited to service

delivery areas (SDAs) under the Job

Training Partnership Act (JTPA). To

apply for these grants, SDAs will need

to have the local public school district

as a co-applicant, and identify a

community-based organization (CBO) to

operate the demonstration. Matching

funds in the amount of $200,000 a year

will be required to operate a Quantum

Opportunity Project. Additionally, local

sites will need to commit to provide

summer jobs for QOP participants for

the three summers in which the

participants are in the program. This

demonstration is aimed at schools with

high dropout rates. Target schools will

need to have at least 40 percent fewer

graduating seniors in June of 1994 than

entering ninth graders in September of

1990 (For example, if a school had 300

entering ninth graders in September

1990, the graduating class in June of

1994 must have been 180 or fewer).

DATES: The closing date for receipt of

applications will be May 15, 1995 at

2:00 p.m. (Eastern Time) at the address

below.

ADDRESSES: Applications shall be

mailed to the U.S. Department of Labor,

Employment and Training

Administration, Division of Acquisition

and Assistance, Attention: Brenda M.

Banks, Reference: SGA/DAA 95–005,