[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Notices]
[Pages 2841-2847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1559]



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DEPARTMENT OF JUSTICE
[Docket No. 94-19]


Terrence E. Murphy, M.D.; Revocation of Registration

    On November 30, 1993, the Deputy Assistant Administrator (then 
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Terrence E. Murphy, M.D., 
(Respondent) of Tulsa, Oklahoma, notifying him of an opportunity to 
show cause as to why DEA should not revoke his DEA Certificate of 
Registration, AM2822876, under 21 U.S.C. 824(a), and deny any pending 
applications for renewal of his registration as a practitioner under 21 
U.S.C. 823(f), as being consistent with the public interest. 
Specifically, the Order to Show Cause alleged that:

    1. [The Respondent's] continued registration would be 
inconsistent with the public interest, as that term is used in 21 
U.S.C. 823(f) and 824(a)(4), as evidenced by, but not limited to, 
the following:
    a. Effective October 26, 1988, the State of Alabama, Alabama 
State Board of Medical Examiners, Medical Licensure Commission 
(Alabama Board) suspended [the Respondent's] medical license for one 
year and, thereafter, placed [his] medical license on indefinite 
probation.
    b. [The Respondent] materially falsified an application for a 
controlled substance license to the Oklahoma Board of Narcotics and 
Dangerous Drugs, submitted by [the Respondent] on June 20, 1990, by 
indicating on such application that [he] never had a previous 
registration suspended, when, in fact, [his] Alabama medical license 
had been suspended by the Alabama Board, effective October 26, 1988. 
[The Respondent] also materially falsified such application by 
answering that [he] had never been physiologically or 
psychologically addicted to controlled dangerous substances, when, 
in 

[[Page 2842]]
fact, the Jay Hospital, located in Jay[,] Florida, terminated [his] 
staff privileges at that facility based upon [his] excessive use of 
drugs, narcotics, alcohol, chemicals or other substances which 
rendered [him] unable to practice medicine with reasonable skill and 
safety to patients. Shortly thereafter [he] entered a drug treatment 
program for impaired physicians in the State of Florida and [he was] 
diagnosed as being in the early stages of substance abuse.
    2. [The Respondent] materially falsified an application for a 
DEA Certificate of Registration, submitted by [him] on December 27, 
1990, by indicating on such application that [he] had never had a 
State professional license or controlled substance registration 
suspended, denied, restricted or placed on probation, when, in fact, 
the Alabama Board suspended [his] medical license and placed [his] 
license on indefinite probation thereafter, effective October 26, 
1988. 21 U.S.C. 824(a)(1).

    On December 28, 1993, the Respondent, through counsel, filed a 
timely request for a hearing, and following prehearing procedures, a 
hearing was held in Tulsa, Oklahoma, on November 1-2, 1994, before 
Administrative Law Judge Paul A. Tenney. At the hearing, both parties 
called witnesses to testify and introduced documentary evidence, and 
after the hearing, counsel for both sides submitted proposed findings 
of fact, conclusions of law and argument. On March 2, 1995, Judge 
Tenney issued his Findings of Fact, Conclusions of Law, and Recommended 
Ruling, recommending that the Deputy Administrator permit the 
Respondent to retain his DEA Certificate of Registration in spite of 
the violation of 21 U.S.C. 824(a)(1), but that he issue a formal 
reprimand. Both parties filed exceptions to Judge Tenney's decision, 
and on April 11, 1995, Judge Tenney transmitted the record of these 
proceedings to the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety 
and the filings of the parties, and pursuant to 21 C.F.R. 1316.67, 
hereby issues his final order based upon findings of fact and 
conclusions of law as hereinafter set forth. The Deputy Administrator 
adopts, except to the extent noted below, the Findings of Fact, 
Conclusions of Law and Recommended Ruling of the Administrative Law 
Judge, and his adoption is in no manner diminished by any recitation of 
facts, issues and conclusions herein, or of any failure to mention a 
matter of fact or law.
    The Deputy Administrator finds that the parties stipulated that the 
Respondent is a physician who possesses an unrestricted license to 
practice medicine in the State of Oklahoma. Further, as of the time of 
the hearing before Judge Tenney, the Oklahoma Board of Medical 
Licensure (Oklahoma Board) did not have any disciplinary proceedings 
pending against the Respondent, had not recommended that any action be 
taken against the Respondent's registrations by the DEA or the Oklahoma 
Bureau of Narcotics and Dangerous drugs, and neither party has filed 
any information indicating that such proceedings or recommendations 
have been subsequently made by the Oklahoma Board.
    In the mid-1980's, the Respondent moved to Alabama and obtained an 
Alabama medical license. However, in July 1987, the Respondent moved to 
Jay, Florida, where he became licensed and practiced medicine until 
December 1987, when his staff privileges at the Jay Hospital were 
revoked. Conflicting evidence was admitted concerning allegations that 
the Respondent abused substances while practicing medicine at the Jay 
Hospital. The Respondent testified that, in an attempt to clear up 
these allegations, he had admitted himself into the Friary on the Shore 
(Friary), a substance abuse treatment center. He stayed there from 
January 18-20, 1988, but left despite the recommendation for inpatient 
treatment. According to Friary medical records, the Respondent had 
admitted to occasional alcohol use, use of Lorcet for neck pain, use of 
marijuana while in college, and occasional use of cocaine during his 
medical residency. The records further indicated that the Respondent's 
wife believed he took antidepressants and benzodiazepines. A 
psychologist at the Friary had concluded that the Respondent appeared 
to have

many of the compulsive, stressful, addictive personality traits that 
are often present among individuals who are prone to medicating 
psychological problems with psychoactive substances. He is likely to 
be a very unreliable reporter regarding addictive behavior, as are 
most individuals with the disease of chemical dependency. This 
complicates his current diagnosis with regard to addictive illness. 
However, on the basis of his life history and his denial of his 
responsibility for the situation in which he finds himself, 
intensive psychotherapy is recommended.

The psychologist gave the diagnostic impression of ``[p]sychoactive 
substance abuse, including cannabis, cocaine, amphetamines, and 
possible other substances.'' However, Dr. Perillo, to whom the 
Respondent was referred by the Friary on January 19, 1988, had 
concluded that there was ``[p]ossible chemical dependency and abuse, by 
history,'' and that he could not ``say with any certainty that this 
person has a definite substance abuse problem.''
    On October 11, 1988, the Respondent and the Alabama State Board of 
Medical Examiners (Alabama Board) entered into a stipulation in which 
the Respondent agreed, inter alia, that he had prescribed controlled 
substances to various individuals identified in an administrative 
complaint, but he denied that any of these prescriptions were for 
anything other than a legitimate medical purpose. However, he neither 
admitted nor denied the allegations set forth in the administrative 
complaint as follows:

    32. Knowingly permitting the dispensation of controlled 
substances to multiple patients from his medical office while he was 
absent from the State of Alabama.
    33. Failure to appear before the Board of Medical Examiners for 
an interview per the Board's request.
    34. In January 1988, summary suspension of medical staff 
privileges at a Florida hospital based for, inter alia, failure to 
maintain adequate medical standards, for engaging in disruptive 
behavior, for ``the reasonable belief of physical impairment which 
may adversely affect patient care'', for using inappropriate 
clinical judgment, and for patient and staff loss of confidence.
    35. Substance abuse.
    36(b). Intentional avoidance of service of an order for blood 
and urine samples for a drug screen.
    36(c). From February to May, 1988, writing prescriptions for 
``office use'' in violation of federal regulations.
    37. Continuation in practice of the Respondent would constitute 
an immediate danger to [the Respondent's] patients and to the 
public.

In the stipulation, the Alabama Board agreed to a disposition of the 
allegations ``without the necessity of making any further findings of 
fact or adjudications of fact with respect to these allegations,'' and 
the Respondent agreed to submit to blood and urine sampling for a drug 
screen, which tested negative. Although the Alabama administrative 
complaint contained allegations of substance abuse by the Respondent, 
he neither denied nor admitted the allegations, and they were never 
formally adjudicated.
    On October 26, 1988, by which time the Respondent had ceased 
practicing medicine in Alabama, a consent order was entered, in which 
the Chairman of the Medical Licensure Commission of Alabama found that 
sanctions were authorized against the Respondent because he had 
``committed multiple violations of Sec. 34-24-360(8), Code of Alabama, 
1975'' (prescribing, dispensing, furnishing or supplying controlled 
substances to persons for other than a legitimate medical purpose). 
Further, the order provided that the Respondent's license to practice 
medicine was suspended for one year, 

[[Page 2843]]
after which the license would be on indefinite probation, and the 
Respondent would need express, written permission from the Medical 
Licensure Commission to re-engage in the practice of medicine in 
Alabama. As a condition precedent to re-entering medical practice in 
Alabama, the Respondent also had to voluntarily admit himself to a 
substance abuse program approved in advance in writing by the State 
Board of Medical Examiners, and successfully complete all inpatient or 
residential treatment recommended by the supervising physician. Even if 
the Respondent became authorized to re-enter medical practice in 
Alabama, ``the Alabama Controlled Substances Registration Certificate 
of the Respondent shall be limited to Schedules IV and V.'' Also, the 
Respondent was ordered to pay a $500.00 fine. In 1989, the Respondent 
requested the termination of his probation in Alabama, but on March 19, 
1990, the Licensure Commission denied his request, finding that there 
had been ``insufficient objective evidence submitted to reasonably 
satisfy the Commission that [the Respondent] has complied with the 
Consent Order.''
    Further, after an administration proceeding was held by the Florida 
Department of Professional Regulation, a final order dated February 12, 
1991, was issued by the Florida Board of Medicine, finding that the 
Respondent had violated a Florida statute by having his license to 
practice medicine revoked, suspended, or otherwise acted against by the 
Alabama licensing authority, and ordered the Respondent to pay a 
$500.00 fine and, if the Respondent sought reactivation of his Florida 
license, ordering it to be placed on probation with the terms and 
conditions to be set by the Board.
    On October 24, 1988, the Respondent voluntarily submitted to the 
jurisdiction of the Oklahoma Board, and he agreed to a five-year 
probation on an Oklahoma Supervised Medical Doctor Certificate with 
numerous terms and conditions, including inter alia that during the 
probational period: (1) He would not ``prescribe, administer or 
dispense any medications for his personal use, to specifically include 
controlled dangerous substances''; (2) he would ``take no medication 
except that which is authorized by a physician treating him for a 
legitimate medical need'' and that he would ``inform any physician 
treating him of allegations made concerning [his] previous use of 
controlled dangerous substances''; (3) he would ``submit biological 
fluid specimens * * * for analysis''; (4) he would ``continue under 
psychiatric care and shall authorize said treating physician to report 
to the Board quarterly on [his] progress, and [he] shall continue all 
supportive programs and therapy recommended thereby''; (5) he would 
``not prescribe, administer or dispense any Schedule drugs or 
controlled dangerous substances, until authorized by the Board.'' The 
Respondent, however, made clear that his agreement was not ``to be 
construed as an admission * * * of any allegations made against him by 
licensing authorities in any other State, all material allegations of 
which are expressly denied.'' On January 13, 1990, the Respondent's 
application for reinstatement with the Oklahoma Board as a licensed 
physician and surgeon was granted and he was placed on probation for a 
period of three years.
    However, on May 24, 1990, the Oklahoma Board issued an order 
restoring an unrestricted medical license to the Respondent. The Board 
found that the Respondent had fulfilled the terms and conditions of his 
probation, and that he ``could function as a medical doctor with an 
unmodified license without endangering public health, safety, or 
welfare.'' Yet the Order also stated: ``In the event Dr. Murphy returns 
to active practice in Oklahoma, he will appear before the Oklahoma 
Board and comply with any terms and conditions imposed at that time, if 
any, and will submit to the normal post-probation visit by the Board 
staff,'' including the requirement that the Respondent submit to random 
blood and urine analysis. From August 3, 1988, until June 1989, the 
Respondent submitted random blood and urine samples for analysis to 
Gary K. Borrell, M.D., a physician appointed by the Oklahoma Board, 
with all test results being negative. Further, the Respondent submitted 
into evidence an affidavit from Dr. Borrell, attesting that he had 
never ``observed any of the physical symptoms that [he] would identify 
as indicative of an abstinence syndrome or of drug withdrawal[, nor 
any] indications that [he] would interpret as acute toxicity from a 
substance of abuse.'' Dr. Borrell also opined that the Respondent was 
not ``physiologically addicted'' to any substance.
    On June 11, 1990, the Respondent executed an application for 
registration with the Oklahoma State Bureau of Narcotics and Dangerous 
Drugs Control (Oklahoma Bureau) for authorization to handle controlled 
substances. Questions seven and eight of that application state:

    7. Has a previous registration held by the applicant under any 
name or corporate or legal entity, been surrendered, revoked, 
suspended, denied or is such action pending?
    8. Have you ever been physiologically or psychologically 
addicted to controlled dangerous substances?

The Respondent had answered ``No'' to both questions. At the hearing 
before Judge Tenney, the Respondent explained that he had provided the 
negative response because he read the question as distinguishing 
between ``license'' and ``registration'', and since his Oklahoma Bureau 
registration had not been suspended, he thought the correct answer was 
``No.'' The Respondent denied any drug use without a prescription since 
his ``college'' days.
    On August 10, 1990, the Oklahoma Bureau issued an order to show 
cause to the Respondent, referencing his answers to questions seven and 
eight, and on September 12, 1990, the Oklahoma Bureau and the 
Respondent entered into a stipulation. The Stipulation listed as 
findings of fact the Oklahoma Board's actions against the Respondent's 
medical license, and concluded as a matter of law that ``by virtue of 
the action of the Oklahoma State Board of Medical Licensure and 
Supervision, [the Respondent] has had a restriction or limitation 
placed upon his professional license'', and that ``upon such a finding, 
the Director of the Oklahoma State Bureau of Narcotics and Dangerous 
Drugs Control shall deny a request for registration. * * *'' The 
stipulation then recommended that the Respondent's request for 
registration be denied until September 15, 1990, ``after which time he 
may be registered.'' The Oklahoma Bureau then issued an order 
reflecting the terms of the stipulation.
    On October 3, 1984, DEA Certificate of Registration AM2822876 was 
assigned to the Respondent. The Respondent executed a renewal 
application for this registration on December 27, 1990, in which he 
answered ``No'' to the following question:

    2b. Has the applicant ever been convicted of a crime in 
connection with controlled substances under State or Federal law, or 
ever surrendered or had a Federal controlled substance registration 
revoked, suspended, restricted or denied, or ever had a State 
professional license or controlled substance registration revoked, 
suspended, denied, restricted or placed on probation?

On January 11, 1991, the DEA renewed the Respondent's Certificate of 
Registration AM2822876, for a period of three years.
    At the hearing before Judge Tenney, the Respondent's mother 
testified that when the Respondent had received the renewal 
application, the deadline was imminent, so he signed the blank form and 
she then filled in the application 

[[Page 2844]]
and mailed it. Further, she stated she knew that her son had had 
problems with his medical license but not with ``his drug licensing,'' 
which was the subject of the application. She also testified that she 
never intended to deceive the DEA by responding ``No'' to the question 
on the form now in dispute.
    The Respondent testified before Judge Tenney, explaining that his 
mother's recollection of events was consistent with his memory of how 
the December 1990 DEA renewal application had been completed. He stated 
he still found question 2(b) to be confusing, but that he had not 
intended to deceive the DEA about his licensing problems in Alabama and 
Florida. The Respondent further testified that he had signed the form 
before his mother had prepared it, and that he had not discussed the 
application with his mother. ``I don't discuss these things hardly at 
all. I go to work. I work seven days a week as a doctor. I work 100 
hours a week. I don't sit around worrying about these applications.'' 
However, when examined concerning the specific question, the Respondent 
testified that he did not remember telling the DEA Investigator that he 
had thought question 2(b) only applied to a conviction. He stated, 
``Now, I don't have a transcript of what I said to [the DEA 
Investigator], and I don't remember if I said that or not, I can just 
remember that--you know, that was 1990; it is 1994 now * * *. I can 
just remember the general gist of it. I didn't think I filled it out 
wrong, and I didn't intend to fill it out wrong.'' When asked: ``Well, 
if [the DEA Investigator], then, indicates that you told her that it 
only applies to a conviction, would you challenge her assertion? The 
Respondent stated: ``I would challenge anybody's memory four years 
later. Yes, I would.''
    However, the DEA Investigator testified that when she questioned 
the Respondent concerning question 2(b), he had first argued with her 
concerning the actual content of the question. After the Investigator 
had another investigator read the question from the application to him, 
then the Respondent stated that ``it hadn't been his intent to defraud 
or to lie, falsify his application * * * he basically said he thought 
the question had said convictions.''
    Regarding the Respondent's application before the Oklahoma Bureau 
and the resulting show cause order, the Investigator testified that the 
Respondent had informed her that he had never had any problems with the 
Oklahoma Bureau. However, when questioned further, the Respondent had 
told the Investigator that his attorney had taken care of any problems 
relating to that application.
    Between July 26 and August 3, 1992, the Respondent began working at 
the Physicians Injury Clinic (Clinic), located at 3015 East Skelly 
Drive, Tulsa, Oklahoma. Prior to that date, the Respondent had worked 
at a medical facility located at 1412 North Robinson Road, Oklahoma 
City, Oklahoma. On August 6, 1992, personnel from the Clinic's 
corporate headquarters, located in Oklahoma City, placed an order for 
controlled substances with a pharmaceutical distributor using the 
Respondent's DEA number. The order was to be delivered to the Skelly 
Drive clinic, where the Respondent was then the only physician. 
However, the address listed on the Respondent's DEA Certificate of 
Registration was the Robinson Road address.
    At the request of the distributor, personnel at the Clinic's 
headquarters sent a facsimile of the Respondent's DEA registration and 
a copy of a letter dated July 22, 1992, from the Clinic to the DEA, 
requesting that the Respondent's registration be changed to the Skelly 
Drive location. On August 11, 1992, a representative of the distributor 
telephoned a DEA Diversion Investigator to verify whether the change of 
address had been approved, and that Investigator informed the 
representative that the Respondent was still registered at Robinson 
Road and that the shipment could not be sent to the unregistered 
location. Subsequently, on August 25, 1992, DEA investigators took a 
notice of inspection to the Clinic, and the Clinic's office manager 
consented to an inspection, which was supervised by the Diversion 
Investigator. The office manager, in response to questions asked by the 
DEA investigators, took the investigators to ``a locked cabinet in a 
locked room,'' which contained various Schedules III and IV controlled 
substances. At the time of the search, the office manager explained to 
the Investigator that the substances ``belonged to the clinic,'' and no 
evidence was produced to indicate when the substances had been placed 
in the cabinet. The Clinic is not registered by the DEA or the Oklahoma 
Bureau to handle controlled substances. An inventory was conducted, and 
the controlled substances were sealed until the Respondent's 
registration change of address was approved by the DEA on October 9, 
1992. After such approval, DEA representatives returned to the clinic, 
unsealed the controlled substances, found no signs of tampering and, 
after conducting another inventory, found that all of the substances 
were still there.
    At the hearing before Judge Tenney, the Diversion Investigator 
testified that in approximately ten to twenty percent of the cases 
where a distributor calls to verify a potential purchaser's address, 
the DEA registration contains an outdated address. He then stated that 
he had never recommended revocation of a DEA Certificate of 
Registration on that basis alone. Another Investigator testified that 
personnel at the Clinic had placed the order, and that she had not 
discovered any evidence to indicate that the Respondent had personally 
placed such an order.
    On January 12, 1994, the Respondent executed a subsequent DEA 
renewal application to keep his registration active during the course 
of these proceedings. In filling out the application, the Respondent 
testified that he had sought the advice of counsel to ensure that all 
responses were correct. In response to question 2(b), which was 
answered incorrectly on the previous renewal application, the 
Respondent now correctly answered ``Yes.'' In a comment block, the 
Respondent wrote, inter alia: ``In summary, I hold a license to 
practice in Oklahoma. I have appeared before the Oklahoma State Bureau 
of Narcotics and Dangerous Drugs Control, who thoroughly investigated 
all of the previous allegations of Florida and Alabama and dismissed 
the Show Cause Order prior to the hearing. I have been found eligible 
for licensing in Oklahoma for the past six years.'' On this 
application, the Respondent did indicate his new address in Hartshorne, 
Oklahoma, although the Respondent had been living in Hartshorne since 
November 1993.
    Initially, 21 U.S.C. 824(a)(1) states:

    (a) A registration pursuant to section 823 of this title to * * 
* distribute, or dispense a controlled substance may be suspended or 
revoked * * * upon a finding that the registrant--
    (1) has materially falsified any application filed pursuant to 
or required by this subchapter * * *

    Thus, as Judge Tenney noted, the Deputy Administrator may revoke or 
suspend the Respondent's registration upon a showing that he 
``materially falsified'' any application filed pursuant to the 
applicable Controlled Substances Act provisions. Here, the Deputy 
Administrator concurs with Judge Tenney's finding that the Government 
did establish a prima facie case under 21 U.S.C. 824(a)(1). 
Specifically, the appropriate test in determining whether the 
Respondent materially falsified any application is whether the 
Respondent ``knew or should have known'' that he submitted a false 
application. See Bobby 

[[Page 2845]]
Watts, M.D., 58 Fed. Reg. 46,995 (1993); accord Herbert J. Robinson, 
M.D., 59 Fed Reg. 6,304 (1994).
    Here, written on the Respondent's 1990 DEA renewal application was 
a false answer to question 2(b), for the answer failed to acknowledge 
the adverse actions taken in Alabama and Florida against his 
professional license. In determining that such a false answer was also 
materially false, Judge Tenney wrote in his opinion at 29-30:

    The incorrect response to question 2(b) is clearly ``material.'' 
As noted by counsel for the Respondent in his closing argument, if 
the Respondent correctly had checked ``YES'' to the question, that 
would have been a red flag to [the] DEA to go check with the [State] 
licensing authorities. . . . Cf. . . . Gonzales v. United States, 
286 F.2d 118, 120 (10th Cir. 1960) (addressing a statute concerning 
``material false statements. . . ., i.e., statements that could 
affect or influence the exercise of a government function''), cert. 
denied, 365 U.S. 878, 81 S. Ct. 1028, 6 L.Ed. 2d 190 (1961).

    The Respondent attempted to mitigate this falsification by 
presenting evidence that his mother had completed the application after 
he had signed it, and she had mailed it without his reviewing the 
completed form. However, the Deputy Administrator agrees with Judge 
Tenney's conclusion: ``This lack of attention, or inattention, was the 
predominant reason for the wrong statement, and the Respondent `should 
have known' of the inaccuracy.'' Further, in an analogous case in which 
a practitioner blamed an application falsification upon a dental nurse 
who had assisted him in filling out the application, the Administrator 
of the DEA had held the practitioner responsible, finding it noteworthy 
that the practitioner signed his name to the application. Robert L. 
Vogler, D.D.S., 58 Fed. Reg. 51,385 (1993).
    Next, the Respondent argued that the DEA had failed to comply fully 
with the licensing requirements of the Administrative Procedure Act 
(APA) before initiating this administrative proceeding, and thus the 
DEA would be precluded from acting upon his registration. Specifically, 
the Respondent argued that 5 U.S.C. Sec. 558(c) requires DEA to provide 
him with prior written notice and an opportunity to correct his 
application errors, and that the DEA had failed to meet these 
requirements.
    Section 558(c) provides in relevant part:

    Except in cases of willfulness or those in which public health, 
interest, or safety requires otherwise, the . . . suspension, [or] 
revocation . . . of a license is lawful only if, before the 
institution of agency proceedings therefor, the licensee has been 
given--
    (1) Notice by the agency in writing of the facts or conduct 
which may warrant the action; and
    (2) Opportunity to demonstrate or achieve compliance with all 
lawful requirements.

    However, on this issue, the Deputy Administrator concurs with Judge 
Tenney's analysis and conclusion:

    To the extent that 5 U.S.C. Sec. 558 applies to the instant 
proceeding, the Respondent overlooks the ``willfulness'' exception 
to section 558's requirement of written notice and an opportunity to 
achieve compliance. In cases of ``willfulness,'' the registrant is 
not given ``another chance'' to achieve compliance.  . . . It is 
concluded that the material falsification in the instant case, which 
resulted because the Respondent grossly neglected his obligation to 
be truthful, is tantamount to ``willfulness'' under 5 U.S.C. 
Sec. 558(c). The DEA, therefore, was not required to give the 
Respondent written notice and an opportunity to correct the renewal 
application before initiating this proceeding.

    Further, the Respondent argued in his response to the Government's 
exceptions, that `` `Willfulness' means a voluntary, intentional 
violation of a known legal duty,'' requiring actual knowledge, and not 
the lesser standard of ``should have known.'' However, cases 
interpreting the meaning of ``willful'' as used in the APA have noted 
that the term is often used ``to characterize conduct marked by 
careless disregard'' of statutory requirements. Eastman Produce Co. v. 
Benson, 278 F.2d 606, 609 (3d Cir. 1960); see, e.g., Biological 
Resources, Inc., 55 Fed. Reg. 30,752 (Health and Human Services 1990) 
(noting that a ``number of cases that have considered the meaning of 
willfulness in license revocation proceedings have noted that willful 
conduct can be found either when a person intentionally does a 
prohibited act or when a person acts with careless disregard of 
statutory requirements''). The Deputy Administrator finds that the 
Respondent's conduct was ``willful,'' for he acted with ``careless 
disregard'' for the statutory and regulatory requirements when he 
submitted his 1990 DEA renewal application with the incorrect response 
to question 2(b). Thus, the Deputy Administrator agrees with Judge 
Tenney, that DEA's subsequent actions did not violate 5 U.S.C. 558.
    Next, pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration, or deny a 
pending application for registration, if he determines that the 
continued registration would be inconsistent with the public interest. 
Section 823(f) requires that the following factors be considered.
    (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 the public health or 
safety.
    These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
a registration should be revoked or an application for registration 
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 Fed. Reg. 
16,422 (1989).
    In this case, factors one, two, four, and five are relevant in 
determining whether the Respondent's certificate should be revoked and 
any pending application denied as being inconsistent with the public 
interest. As to factor one, ``recommendation of the appropriate State 
licensing board,'' the Government argued that actions taken against the 
Respondent's medical licenses in Alabama, Florida, and Oklahoma, as 
well as the suspension of his Oklahoma Bureau registration, support a 
finding that State licensing board's recommendations lead to a 
conclusion adverse to the Respondent's retention of his DEA 
registration. Judge Tenney disagreed with this proposition, finding 
instead that the Alabama and Florida adverse actions were five years 
old, and the factual bases for such action were ``sketchy at best.'' 
Further, Judge Tenney found more persuasive the fact that Oklahoma 
authorities had granted the Respondent an unrestricted medical license 
and an unrestricted controlled substances registration, and that since 
1990, there have been no negative allegations nor pending disciplinary 
proceedings against the Respondent. Thus, Judge Tenney concluded that 
``the whole evidence supports a favorable `recommendation [by] the 
appropriate State licensing board or professional disciplinary 
authority.' ''
    Here, although the Deputy Administrator agrees with Judge Tenney's 
factual findings, he disagrees with his conclusion. For the Deputy 
Administrator also finds significant that in the 1988 Alabama Consent 
Order, the Respondent's license was placed on indefinite probation, and 
that as a 

[[Page 2846]]
condition precedent for his receiving a medical license, the Respondent 
had to voluntarily admit himself to a substance abuse program and 
successfully complete it. Further, even if the Respondent became 
authorized to re-enter medical practice in Alabama, his controlled 
substances registration would remain limited to Schedules IV and V. 
Also, in 1990, the Alabama Licensure Commission denied the Respondent's 
request for termination of his probation, noting ``insufficient 
objective evidence submitted to reasonably satisfy the Commission that 
[the Respondent] has complied with the Consent Order.'' Similarly, in 
1991, the Florida Board ordered that, if the Respondent sought 
reactivation of his Florida license, such reinstatement would result in 
his receiving a probationary license with the terms and conditions to 
be set by the Board. Therefore, two States recommend, after 
investigating allegations of misconduct, that probationary requirements 
be levied against the Respondent's medical license, with stated 
conditions to be met in Alabama before even a probationary license 
would be issued.
    As to factor two, the Respondent's ``experience in dispening * * * 
controlled substances,'' the Deputy Administrator agrees with Judge 
Tenney's findings and conclusions. The Government noted that the 
Alabama Medical Board had found that the Respondent had allowed his 
staff to administer and prescribe controlled substances in his absence, 
and that the Respondent had abused drugs. The Government then argued 
that such conduct was adverse to the public interest.
    However, Judge Tenney concluded that a preponderance of the 
evidence failed to support this contention. Specifically, the evidence 
of improper dispensing of controlled substances merely consisted of a 
finding in the Alabama administrative complaint, which led to a consent 
order in which the Respondent ``neither admitted nor denied'' the 
factual allegations. No further adjudication of the facts was 
conducted. Based on this limited evidence of record, Judge Tenney 
concluded that ``I too am unable to find with any substantiality that 
the Respondent allowed his staff to administer and prescribe controlled 
substances in his absence.'' Furthermore, no other evidence of record 
supports a finding that the Respondent was unlawfully dispensing 
controlled substances.
    As to the allegation of the Respondent's drug abuse, Judge Tenney 
found that ``[i]n sum, there was some evidence of occasional past drug 
abuse, but no persuasive evidence indicative of drug use or abuse 
during the last decade that would threaten the current public interest 
under 21 U.S.C. 823(f)(2).'' Although the Deputy Administrator does not 
condone the Respondent's past conduct of admitted unlawful drug use, he 
agrees with Judge Tenney's conclusion. For the Respondent's drug 
screenings from August 1988 to May 1990 were negative, and no contrary 
evidence was submitted to show drug abuse from 1990 to 1994.
    As to factor four, the Respondent's ``[c]ompliance with applicable 
State, Federal, or local laws relating to controlled substances,'' 
Judge Tenney found that the Respondent had violated a Federal 
regulation related to controlled substances, 21 C.F.R. Sec. 1301.61. 
Specifically, the Respondent ``should have determined whether the July 
22, 1992, request by the [Clinic] to modify his registration address 
had been approved by the DEA before operating at Skelly Drive.'' The 
Deputy Administrator agrees with this finding. However, Judge Tenney 
found several mitigating facts, such as the fact that the July 22 
letter was generated prior to the Respondent's first day of work at the 
Clinic, that there was no evidence of diversion of controlled 
substances from the unregistered office at Skelly Drive, and that the 
DEA Investigator had never recommended revocation of a DEA registration 
on the basis of a failure to timely update an address.
    Although the Deputy Administrator acknowledges these mitigating 
facts, he also finds relevant the fact that the Alabama Consent Order 
found sanctions authorized because, inter alia, the Respondent had 
committed multiple violations of the Code of Alabama Section 34-24-
360(8) pertaining to the prescribing, dispensing, furnishing or 
supplying of controlled substances to persons for other than a 
legitimate medical purpose. Although the facts presented in the record 
are inadequate to determine the specific conduct underlying such a 
conclusion, it is still significant under factor four that a State 
licensing board found that the Respondent's conduct resulted in 
multiple violations of the State's controlled substances statute.
    As to factor five, ``[s]uch other conduct which may threaten the 
public health or safety,'' the Government argued that the Respondent's 
lack of candor raised doubts as to his suitability for DEA 
registration. However, the Deputy Administrator agrees with Judge 
Tenney's finding concerning the Respondent's change of address request 
to DEA. The Government failed to present preponderating evidence that 
the Respondent was less than candid when he denied placing the 
controlled substances order for the Clinic prior to receiving the 
change of address approval from the DEA. Judge Tenney found that the 
Respondent's testimony on this point was credible and was corroborated 
by the testimony of the Clinic's office manager.
    Further, Judge Tenney found as mitigating evidence, the 
Respondent's subsequent DEA renewal application with the correct answer 
to question 2(b). However, it is also significant that in the comment 
section of this 1994 application, the Respondent wrote that he had been 
``eligible for licensing in Oklahoma for the past six years.'' Yet the 
Respondent failed to disclose that from 1988 to 1990 he had an Oklahoma 
Supervised Medical Doctor Certificate with numerous terms and 
conditions, to include that he would ``not prescribe, administer or 
dispense any Schedule drugs or controlled dangerous substances, until 
authorized by the Board.'' Again, the Respondent has failed to be 
candid in his renewal application by stating he was ``eligible for'' 
his license, when in fact he knew that for two of the six years he 
referenced, his eligibility had relevant restrictions. Although his 
response may not reach the level of ``material falsification'', it 
certainly failed to disclose significant, relevant information. As 
noted by the Administrator in Bobby Watts, supra: ``Since DEA must rely 
on the truthfulness of information supplied by applicants in 
registering them to handle controlled substances, falsification cannot 
be tolerated.'' Here, the Respondent's lack of candor makes 
questionable his commitment to DEA regulatory requirements fostered to 
protect the public from the diversion of controlled substances.
    Further, the Respondent has failed to take responsibility for his 
past conduct. The Deputy Administrator finds significant that the 
Alabama Board required the Respondent to successfully complete a 
substance abuse treatment program before reinstating his medical 
license, even on a probationary basis. Further, when the respondent 
self-admitted himself into the Friary for evaluation, a psychologist 
had concluded that intensive psychotherapy was recommended based, not 
only upon the Respondent's addictive personality traits, but also upon 
the facts that (1) he was a ``very unreliable reporter regarding 
addictive behavior, as are most individuals with the disease of 
chemical dependency,'' and (2) ``his denial of his responsibility for 
the 

[[Page 2847]]
situation in which he finds himself.''. However, the record discloses 
that the Respondent did not follow this advice and enter the Friary or 
any other treatment program, and the record contains no evidence that 
he has since sought such treatment.
    Also significant was the Respondent's failure to acknowledge his 
responsibility to review his DEA renewal application before submission, 
instead he testified in 1994 that ``I don't sit around worrying about 
these applications.'' The Deputy Administrator agrees with the 
Government attorney that such conduct raises grave doubts as to the 
Respondent's commitment to precise regulatory compliance in the future, 
a commitment needed to meet the responsibilities of a DEA registration 
for the handling of controlled substances.
    Therefore, after reviewing the entire record, the Deputy 
Administrator finds that the public interest is best served by revoking 
the Respondent's DEA Certificate of Registration and denying any 
pending application. The Respondent's violations of statutory and 
regulatory provisions, his admitted past drug abuse and the lack of 
evidence that the Respondent completed a substance abuse treatment 
program as recommended by the Alabama Board and treating physicians at 
the Friary, and his continuing failure to take responsibility for 
compliance with DEA regulatory requirements, support a finding that the 
public interest is best served by revoking his registration and denying 
any pending applications at this time.
    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 C.F.R. 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration AM2822876 issued to Terrence E. Murphy, 
M.D., be, and it hereby is, revoked, and any pending applications for 
renewal of said registration are denied. This order is effective 
February 28, 1996.

    Dated: January 23, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-1559 Filed 1-26-96; 8:45 am]
BILLING CODE 4410-09-M