Federal Register / Vol. 75, No. 206 / Tuesday, October 26, 2010 / Notices 65663 

3For the same reason that I ordered the 

immediate suspension of Registrant’s DEA 

registrations, I conclude that the public interest 

requires that this Order shall be effective 

immediately. 

four), and such other conduct which 

may threaten public health and safety 

(factor five), establishes that he has 

committed acts which render his 

continued registration ‘‘inconsistent 

with the public interest.’’ 21 U.S.C. 

824(a)(4). This finding provides reason 

alone to revoke Registrant’s registrations 

and to deny any pending applications to 

renew or modify his registrations. 

The Loss of State Authority Ground 

Under the CSA, a practitioner must 

possess authority to dispense controlled 

substances under the laws of the State 

in which he engages in his professional 

practice in order to obtain and maintain 

a DEA registration. See 21 U.S.C. 

802(21) (defining the term ‘‘practitioner’’ 

as a person ‘‘licensed, registered, or 

otherwise permitted, by the United 

States or the jurisdiction in which he 

practices * * * to distribute, dispense 

* * * [or] administer * * * a 

controlled substance’’), id. § 823(f) (‘‘The 

Attorney General shall register 

practitioners * * * to dispense * * * 

controlled substances * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices.’’). As these provisions make 

plain, possessing authority under State 

law to handle controlled substances is 

an essential condition for holding a DEA 

registration. See John B. Freitas, 74 FR 

17524, 17525 (2009); Dominick A. Ricci, 

58 FR 51104, 51105 (1993); Bobby 

Watts, 53 FR 11919, 11920 (1988). 

DEA, has therefore, held repeatedly 

that the CSA requires the revocation of 

a registration issued to a practitioner 

whose State authority has been 

suspended or revoked. David W. Wang, 

72 FR 54297, 54298 (2007); Sheran 

Arden Yeates, 71 FR 39130, 39131 

(2006); Dominick A. Ricci, 58 FR 51104, 

51105 (1993); Bobby Watts, 53 FR 

11919, 11920 (1988). See also id. 

§ 824(a)(3) (a ‘‘registration pursuant to 

section 823 of this title to * * * 

dispense a controlled substance * * * 

may be suspended or revoked by the 

Attorney General upon a finding that 

the registrant * * * has had his State 

license suspended, revoked, or denied 

by competent State authority and is no 

longer authorized by State law to engage 

in the * * * dispensing of controlled 

substances’’). DEA has further held that 

revocation is warranted even where a 

practitioner’s State authority has been 

summarily suspended and the State has 

yet to provide the practitioner with a 

hearing to challenge the State’s action. 

See Robert Wayne Mosier, 75 FR 49950 

(2010) (‘‘revocation is warranted * * * 

even in those instances where a 

practitioner’s State license has only 

been suspended, and there is the 

possibility of reinstatement’’); accord 

Bourne Pharmacy, 72 FR 18273, 18274 

(2007). 

As found above, on May 5, 2010, the 

Florida Surgeon General immediately 

suspended Registrant’s State medical 

license. Registrant is therefore without 

authority to dispense controlled 

substances in the State where he holds 

his DEA registrations. Registrant’s loss 

of his State authority thus provides an 

additional basis for revoking his 

registrations. Accordingly, his 

registrations will be revoked and any 

pending application will be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a), as well 

as 28 CFR 0.100(b) and 0.104, I order 

that DEA Certificates of Registration 

BB2972140, XB2972140, and 

FB1490349, issued to Stephen B. 

Brown, M.D., be, and they hereby are, 

revoked. I further order that any 

pending application of Stephen B. 

Brown, M.D., to renew or modify such 

registrations, be, and it hereby is, 

denied. This order is effective 

immediately.3

Dated: October 15, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27031 Filed 10–25–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Gilbert Eugene Johnson, M.D.; 

Revocation of Registration 

On November 20, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Gilbert Eugene Johnson, 

M.D. (Respondent), of Idabel, 

Oklahoma. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, AJ6783535, as a 

practitioner, and the denial of any 

pending applications to renew or 

modify his registration, on the ground 

that Respondent’s ‘‘continued 

registration is inconsistent with the 

public interest, as that term is used in 

21 U.S.C. 823(f).’’ Show Cause Order at 

1. 

The Show Cause Order alleged that 

the Oklahoma State Board of Medical 

Licensure had found that: (1) 

Respondent ‘‘prescribed or administered 

a drug (i.e., meperidine, a schedule II 

controlled substance, and hydrocodone, 

a schedule III controlled substance) or 

treatment without sufficient 

examination or the establishment of a 

valid physician patient relationship’’; (2) 

Respondent ‘‘engaged in indiscriminate 

or excessive prescribing, dispensing or 

administering of controlled or narcotic 

drugs’’; and (3) Respondent ‘‘prescribed, 

dispensed or administered controlled 

substances or narcotic drugs in excess of 

the amount considered good medical 

practice or prescribed, dispensed or 

administered controlled substances or 

narcotic drugs without medical need.’’ 

Id. at 1–2. 

Next, the Show Cause Order alleged 

that on June 23, 2008, based on the 

Oklahoma Board’s action, the Medical 

Board of California ‘‘ordered the 

revocation of [Respondent’s] license to 

practice medicine in that state, effective 

July 23, 2008.’’ Id. at 2. Finally, the 

Order alleged that on July 7, 2008, 

Respondent ‘‘falsified’’ his application 

for renewal of his DEA registration ‘‘by 

answering ‘no’ to the question 

concerning whether [Respondent] had 

ever had a state professional license 

revoked or placed on probation or 

whether any such action was pending.’’ 

Id. 

On December 16, 2008, the Show 

Cause Order was served on Respondent 

by certified mail to him at the address 

which he had recently given the Agency 

as his new registered location on his 

application to modify his registration. 

On January 29, 2009, Respondent’s 

counsel filed a request for a hearing and 

the matter was placed on the docket of 

the Agency’s Administrative Law Judges 

(ALJs). 

Thereafter, the ALJ requested that the 

parties address whether Respondent had 

timely requested a hearing. See 

Corrected Order Cancelling Hearing and 

Terminating Proceedings, at 1. 

Following receipt of the parties’ 

submissions, the ALJ found that 

Respondent’s request was not timely 

because it was not filed within 30 days 

of service of the Show Cause Order as 

required by 21 CFR 1301.43(a). Id. at 2. 

Because Respondent had not 

‘‘provide[d] a basis upon which to find 

good cause,’’ the ALJ held that his 

failure to file a timely request 

constituted a waiver of his right to a 

hearing. Id. (citing 21 CFR 1301.43(d) 

and Brinton D. Glisson, 72 FR 54296 

(2007)). Accordingly, the ALJ canceled 

the scheduled hearing, terminated the 

proceedings, and directed that the 


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65664 Federal Register / Vol. 75, No. 206 / Tuesday, October 26, 2010 / Notices 

1Neither Soma (carisoprodol) nor But/Apap/Caf 

is a controlled substance under Federal law. 

However, the other drugs noted in the Board’s order 

are controlled under Federal law. 

matter be forwarded to me for final 

agency action pursuant to 21 CFR 

1301.43(d) and 1301.46. 

Thereafter, the Government forwarded 

the investigative record to me for final 

agency action. Having considered the 

record, I agree with the ALJ’s finding 

that Respondent has waived his right to 

a hearing because he failed to timely file 

his request and has not offered good 

cause for his failure to do so. I further 

find that Respondent materially falsified 

his July 2008 application and that he 

has committed acts which render his 

registration inconsistent with the public 

interest. 21 U.S.C. 823(f) & 824(a)(1) & 

(4). Accordingly, Respondent’s 

registration will be revoked and his 

pending application to modify his 

registration will be denied. I make the 

following findings. 

Findings 

Respondent previously held DEA 

registration, AJ6783535. While this 

registration expired on December 31, 

2007, on July 9, 2008, Respondent 

submitted a renewal application and the 

registration was reinstated with an 

expiration date of December 31, 2010. 

Moreover, on December 11, 2008, 

Respondent requested to change the 

address of his registered location. I 

therefore find that Respondent has a 

registration and that his application to 

modify his registration is pending before 

the Agency. 

On March 22, 2007, Respondent and 

the Oklahoma Board of State Medical 

Licensure and Supervision (Oklahoma 

Board) entered into an Order Accepting 

Voluntary Submittal to Jurisdiction 

(hereinafter, Order). Therein, 

Respondent pled guilty to the 

allegations in a Complaint and Citation 

which the Oklahoma Board had filed on 

January 27, 2007. 

In the Order, the Oklahoma Board 

found that Respondent treated another 

physician, DWW, from around January 

2004 through July 2006. During this 

period, Respondent issued ‘‘two (2) 

prescriptions for Meperidine, a 

Schedule II controlled dangerous 

substance * * * six (6) prescriptions for 

Testosterone and Hydrocodone, both 

Schedule III controlled dangerous 

substances * * * and twelve (12) 

prescriptions for Alprazolam, Soma, and 

But/Apap/Caf, Schedule IV controlled 

dangerous substances.’’ 1 Order at 2, 

Oklahoma ex rel. Bd. of Medical 

Licensure & Supervision v. Johnson 

(Okla. Bd. of Med. Lic. & Super. Mar. 22, 

2007). Respondent issued these 

prescriptions without ‘‘perform[ing] any 

physical examination on DWW’’ and 

without establishing either ‘‘a valid 

physician patient relationship’’ or ‘‘a 

legitimate medical need for the medical 

treatment.’’ Id. In addition, he ‘‘failed to 

maintain complete and accurate records 

of all controlled dangerous drugs 

prescribed.’’ Id. When questioned by an 

Oklahoma Board investigator, 

Respondent admitted that he did not 

keep a patient record on DWW. Id. 

The Oklahoma Board also found that 

Respondent treated JWW, DWW’s wife, 

from around November 2004 through 

February 2005. Id. at 3. Respondent 

issued to JWW, ‘‘one (1) prescription for 

Demerol, a Schedule II controlled 

dangerous substance[,] * * * one (1) 

prescription for Histinex HC, a Schedule 

III controlled dangerous substance, and 

six (6) prescriptions for Alprazolam and 

But/Apap/Caf, Schedule IV controlled 

dangerous substances.’’ Id. As in the 

case of DWW, Respondent issued these 

prescriptions to JWW without 

‘‘perform[ing] any physical 

examination’’ and without establishing 

‘‘a valid physician patient relationship’’ 

or ‘‘a legitimate medical need for the 

medical treatment.’’ Id. Again, 

Respondent failed to ‘‘maintain 

complete and accurate records of all 

controlled dangerous substances 

prescribed’’ and admitted to an 

Oklahoma Board investigator that he did 

not see JWW ‘‘as a patient.’’ Id. 

The Oklahoma Board further found 

that on two occasions, Respondent 

issued prescriptions to JOW, one of his 

employees, for ‘‘Diazepam, a Schedule 

IV controlled dangerous substance’’; the 

Board also found that on another 

occasion, he issued prescriptions for 

‘‘Fiorinal w/Codeine and Coughtuss, 

Schedule III controlled dangerous 

substances.’’ Id. at 3. As to these 

prescriptions, the Board found that ‘‘he 

failed to perform any physical 

examination on JOW prior to 

prescribing the controlled dangerous 

drugs in her name, that he did not 

establish a valid physician patient 

relationship prior to prescribing the 

medications, that he did not establish a 

legitimate medical need for the medical 

treatment, and that he failed to maintain 

complete and accurate records of all 

controlled dangerous drugs prescribed.’’ 

Id. Furthermore, the Board found that 

Respondent instructed JOW to fill the 

diazepam prescriptions at City Drug and 

then return them to him for ‘‘office use.’’ 

Id. 

The Oklahoma Board then found 

Respondent guilty of ‘‘unprofessional 

conduct’’ based on his violations of 

numerous provisions of state law and 

regulations. Id. at 4. The Board found, 

inter alia, that he: (1) ‘‘[p]rescribed or 

administered a drug or treatment 

without sufficient examination and the 

establishment of a valid physician 

patient relationship,’’ in violation of 59 

Okla. Stat. § 509(12); (2) ‘‘[e]ngaged in 

indiscriminate or excessive prescribing 

* * * of controlled or narcotic drugs,’’ 

in violation of Okla. Admin. Code 

435:10–7–4(1); (3) ‘‘[v]iolated * * * 

state or federal law or regulation relating 

to controlled substances,’’ in violation of 

Okla. Admin. Code 435:10–7–4(27); (4) 

‘‘[p]rescribed * * * controlled 

substances or narcotic drugs in excess of 

the amount considered good medical 

practice or prescribed * * * controlled 

substances or narcotic drugs without 

medical need in accordance with 

published standards,’’ in violation of 59 

Okla. Stat. § 509(16) and Okla. Admin. 

Code 435:10–7–4(2); 5) ‘‘[w]rote a false 

or fictitious prescription for any drugs 

or narcotics declared by the laws of 

[Oklahoma] to be controlled or narcotic 

drugs,’’ in violation of 59 Okla. Stat. 

§ 509(11); and 6) ‘‘[p]urchased or 

prescribed any regulated substance in 

Schedule I through V, as defined by the 

Uniform Controlled Dangerous 

Substances Act, for the physician’s 

personal use,’’ in violation of Okla. 

Admin. Code 435:10–7–4(5). Id. at 4–5. 

Based on its findings, the Oklahoma 

Board reprimanded Respondent. The 

Board also placed Respondent’s medical 

license on probation for one year, 

beginning March 22, 2007, subject to 

certain conditions including that he 

could not call in any controlledsubstance prescriptions, that he 

complete board-approved courses in 

controlled substance prescribing and 

recordkeeping, and that he maintain 

duplicate, serially-numbered 

prescriptions of controlled substances, 

which are readily retrievable and which 

must be provided on request to the 

Board’s investigators. Id. at 7. 

On June 23, 2008, the Medical Board 

of California (California Board) adopted 

a Default Decision and Order in a 

proceeding against Respondent’s 

California license. See Decision at 1, In 

re Gilbert E. Johnson, M.D. (Med. Bd. 

Cal. 2008). In the Default decision, the 

Board found that Respondent had been 

served with the accusation on 

September 25, 2007, and that his 

attorney had filed a response. Default 

Decision and Order at 1. The Board also 

noted that Respondent and his attorney 

had been served with a Notice of 

Hearing, which informed him of the 

scheduled date of the hearing, but that 

neither Respondent, nor his attorney, 

had appeared. Id. 


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2The form is stamped with the filing date of July 

9, 2008. 

Based on the findings of the 

Oklahoma Board, the California Board 

concluded that Respondent had 

committed unprofessional conduct by, 

inter alia, prescribing controlled 

substances ‘‘to several individuals 

without a prior physical examination, 

without a valid physician-patient 

relationship, without establishing a 

medical need for the treatment, and 

without maintaining complete and 

accurate records.’’ Id. at 2–3. The 

California Board further found that 

Respondent had committed 

unprofessional conduct when he issued 

the controlled substance prescriptions 

in the name of his employee, ‘‘without 

a prior physical examination or medical 

indications, and without maintaining an 

adequate medical record, and directed 

the employee to fill the prescriptions 

and then return the drugs to 

respondent.’’ Id. at 3. The Board then 

revoked Respondent’s California 

medical license, effective July 23, 2008. 

Decision at 1. 

On July 7, 2008, Respondent 

completed and signed his renewal 

application for his DEA registration.2 In 

section 4 of the application, Respondent 

was required to answer four ‘‘liability’’ 

questions. The third of these asked: ‘‘Has 

the applicant ever surrendered (for 

cause) or had a state professional license 

or controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation, or is any such 

action pending?’’ (emphasis added). 

Respondent answered ‘‘No.’’ 

Discussion 

Section 304(a)(1) of the Controlled 

Substances Act (CSA) provides that a 

registration ‘‘may be suspended or 

revoked by the Attorney General upon 

a finding that the registrant * * * has 

materially falsified any application 

pursuant to or required by this 

subchapter.’’ 21 U.S.C. 824(a)(1). Section 

304(a)(4) also provides that a 

registration to ‘‘dispense a controlled 

substance * * * may be suspended or 

revoked by the Attorney General upon 

a finding that the registrant * * * has 

committed such acts as would render 

his registration under section 823 of this 

title inconsistent with the public 

interest as determined under such 

section.’’ 21 U.S.C. 824(a)(4). With 

respect to a practitioner, the CSA 

requires that the following factors be 

considered in making the public interest 

determination: 

(1) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(2) The [registrant’s] experience in 

dispensing * * * controlled substances. 

(3) The [registrant’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 and safety.21 

U.S.C. 823(f). 

‘‘[T]hese factors * * * are considered 

in the disjunctive.’’ Robert A. Leslie, 68 

FR 15227, 15230 (2003). I may rely on 

any one or a combination of factors and 

give each factor the weight I deem 

appropriate in determining whether to 

revoke an existing registration or to 

deny an application to modify a 

registration. Id. Moreover, I am ‘‘not 

required to make findings as to all of the 

factors.’’ Morall v. DEA, 412 F.3d 165, 

173–74 (D.C. Cir. 2005); see also 

Volkman v. DEA, 567 F.3d 215, 222 (6th 

Cir. 2009). 

Having considered the evidence, I 

conclude that the record provides two 

independent grounds to evoke 

Respondent’s registration and to deny 

his pending application to modify his 

registration. First, Respondent 

materially falsified his July 2008 

application when he answered ‘‘no’’ to 

the question whether he had ever had a 

state licensed sanctioned or if any such 

action was pending. Second, based on 

the Oklahoma Board’s findings 

regarding his prescribing of controlled 

substances, I conclude that Respondent 

has committed acts which render his 

registration inconsistent with the public 

interest. 

The Material Falsification Allegation 

As found above, on his July 7, 2008 

application, Respondent provided a 

‘‘no’’ answer to the question: ‘‘Has the 

applicant ever surrendered (for cause) or 

had a state professional license or 

controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation, or is any such 

action pending?’’ Respondent’s answer 

was false for two reasons: (1) The 

Oklahoma Board had previously placed 

him on probation, and (2) the California 

Board had initiated a proceeding against 

him and had adopted the Default 

Decision, although the revocation of his 

license was not yet ‘‘effective.’’ 

Respondent knew that his statement 

was false with respect to both 

proceedings. As to his failure to disclose 

the Oklahoma proceeding, Respondent 

appeared in person before the Board and 

signed the Order Accepting Voluntary 

Submittal to Jurisdiction which he had 

entered into with the Board. He thus 

knew that the Oklahoma Board had 

placed him on probation. 

As for his failure to disclose the 

California proceeding, while at the time 

he submitted his application, the 

revocation of his state license had yet to 

go into effect, the Default Decision 

specifically noted that Respondent had 

been served with the accusation, that 

his attorney had filed a response to it, 

and that the State had received signed 

certified mail receipts establishing that 

both he and his attorney had received 

the Notice of Hearing. Thus, Respondent 

clearly knew that the Medical Board of 

California had brought an action against 

him which was then ‘‘pending.’’ 

It is likewise clear that Respondent’s 

failure to disclose both proceedings was 

a materially false statement under the 

CSA. A false statement is material if it 

‘‘has a natural tendency to influence, or 

was capable of influencing, the decision 

of the decisionmaking body to which it 

was addressed.’’ Kungys v. United 

States, 485 U.S. 759, 770 (1988) (int. 

quotation and other citations omitted). 

While the evidence must be ‘‘clear, 

unequivocal, and convincing,’’ the 

‘‘ultimate finding of materiality turns on 

a substantive interpretation of the law.’’ 

Id. at 772 (int. quotations and citations 

omitted). See also Craig H. Bammer, 73 

FR 34327, 34328 (2008). However, ‘‘[i]t 

makes no difference that a specific 

falsification did not exert influence so 

long as it had the capacity to do so.’’ 

United States v. Alemany Rivera, 781 

F.2d 229, 234 (1st Cir. 1985). 

Respondent’s false statement was 

material because, under the public 

interest standard, the Agency is required 

to consider, inter alia, an applicant’s 

experience in dispensing controlled 

substances and his compliance with 

applicable state and federal laws related 

to controlled substances. See 21 U.S.C. 

823(f)(2) & (4). As found above, both 

Boards’ actions were based on 

Respondent’s prescribing of various 

controlled substances including 

meperidine (a schedule II controlled 

substance), testosterone and 

hydrocodone (schedule III controlled 

substances), and diazepam and 

alprazolam (schedule IV controlled 

substances) without establishing a valid 

physician-patient relationship and 

without a legitimate medical purpose. In 

addition, Respondent issued fraudulent 

diazepam prescriptions in the name of 

his employee in order to obtain the 

drugs for his own use (whether he 

personally used them or sold them is 

legally irrelevant). Not only did these 

prescribings violate Oklahoma law (and 

provide grounds for discipline under 

California law), as explained more fully 

below, they also violated the 


emcdonald on DSK2BSOYB1PROD with NOTICES
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3While the Oklahoma Board placed Respondent 

on probation, it made no recommendation in this 

matter (factor one). Moreover, even were I to deem 

the Board’s decision to continue Respondent’s 

medical license as a recommendation, the Board’s 

decision is not dispositive. While holding authority 

under state law is a necessary prerequisite to 

obtaining a DEA registration, see 21 U.S.C. 823(f), 

DEA has long held that ‘‘the Controlled Substances 

Act requires that the Administrator * * * make an 

independent determination as to whether the 

granting of controlled substances privileges would 

be in the public interest.’’ Mortimer Levin, 57 FR 

8680 (1992). Of course, the California Board 

revoked Respondent’s California license based on 

the same conduct. 

It is also acknowledged that Respondent has not 

been convicted of either a State or Federal offense 

related to the distribution or dispensing of 

controlled substances (factor three). However, the 

absence of a criminal conviction is not dispositive 

of the public interest inquiry. See, e.g., Jayam 

Krishna-Iyer, 74 FR 459, 461 (2009); Edmund Chein, 

72 FR 6580, 6593 n.22 (2007). 

In light of the extensive evidence under factors 

two and four, I conclude that there is no need to 

make findings under factor five. 

prescription requirement of Federal law. 

See 21 CFR 1306.04(a) (‘‘A prescription 

for a controlled substance to be effective 

must be issued for a legitimate medical 

purpose by an individual practitioner 

acting in the usual course of his 

professional practice.’’). See also 21 

U.S.C. 841(a)(1) (prohibiting knowing or 

intentional distribution/dispensing of a 

controlled substance ‘‘[e]xcept as 

authorized by’’ the CSA); 21 U.S.C. 

843(a)(3) (‘‘It shall be unlawful for any 

person knowingly or intentionally 

* * * to acquire or obtain possession of 

a controlled substance by 

misrepresentation, fraud, forgery, 

deception, or subterfuge[.]’’). 

Because both the Oklahoma and 

California Board proceedings were 

based on his unlawful prescribing of 

controlled substances, his failure to 

disclose the proceedings on his 

application clearly had the capacity to 

influence (and did influence) the 

Agency’s decision to grant his July 2008 

application. I therefore hold that 

Respondent’s failure to disclose the 

Oklahoma and California proceedings 

was a material falsification of his 

application; this conclusion provides 

reason alone to revoke his registration 

and to deny his application to modify 

his registration. See 21 U.S.C. 824(a)(1). 

The Public Interest Allegations 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Compliance With State 

and Federal Laws Related to Controlled 

Substances 

As noted above, the Oklahoma Board 

found that, on multiple occasions, 

Respondent prescribed various 

controlled substances in schedules II 

through IV including Demerol 

(meperidine), hydrocodone (including 

both Histinex and Coughtuss), 

testosterone, Fiorinal with codeine, and 

alprazolam, to persons he had not 

physically examined prior to issuing the 

prescriptions. The Board further found 

that Respondent did not establish a 

valid physician-patient relationship 

with these persons, that he did not 

establish that these persons had a 

legitimate medical need for the 

controlled substances, and that he failed 

to maintain complete and accurate 

records of the controlled substances he 

prescribed. The Board also found that 

Respondent had issued diazepam 

prescriptions in the name of his 

employee (again without establishing a 

valid doctor-patient relationship and a 

legitimate medical need for the 

prescription) and directed the employee 

to fill the prescription and bring it back 

to the office. 

The Oklahoma Board further found 

that in issuing these prescriptions 

Respondent violated various provisions 

of state law including, inter alia, 

prohibitions against prescribing 

‘‘without sufficient examination and the 

establishment of a valid physician 

patient relationship,’’ 59 Okla. Stat. 

§ 509(12); ‘‘[e]ngag[ing] in 

indiscriminate or excessive prescribing 

* * * of controlled substances,’’ Okla. 

Admin Code 435:10–7–4(1); prescribing 

a controlled substance ‘‘without medical 

need in accordance with published 

standards,’’ 59 Okla. Stat. § 509(16); 

writing false prescriptions for controlled 

substances, id. § 509(11); and 

prescribing controlled substances for his 

‘‘personal use.’’ Okla. Admin. Code 

435:10–7–4(5). 

Both the Oklahoma Board’s factual 

findings and its legal conclusions that 

Respondent violated state law are 

entitled to preclusive effect in this 

proceeding. See University of Tennessee 

v. Elliot, 478 U.S. 788, 797–98 (1986) 

(‘‘When an administrative agency is 

acting in a judicial capacity and resolves 

disputed issues of fact properly before it 

which the parties have had an adequate 

opportunity to litigate, the courts have 

not hesitated to apply res judicata’’) (int. 

quotations and citations omitted). I 

therefore adopt the Board’s findings that 

Respondent violated Oklahoma law and 

regulations with respect to his 

prescribing to DWW, JWW, and JOW, of 

those drugs which are controlled under 

Federal law. 

I further hold that Respondent 

repeatedly violated Federal law when 

he prescribed controlled substances to 

these individuals. As noted above, 

under a longstanding Federal regulation, 

‘‘[a] prescription for a controlled 

substance to be effective must be issued 

for a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). 

As the Supreme Court recently 

explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

Gonzales v. Oregon, 546 U.S. 243, 274 

(2006) (citing United States v. Moore, 

423 U.S. 122, 135, 143 (1975)). 

Under the CSA, ‘‘it is fundamental 

that a practitioner must establish a bona 

fide doctor-patient relationship in order 

to act ‘in the usual course of * * * 

professional practice’ and to issue a 

prescription for a ‘legitimate medical 

purpose,’ ’’ as required by 21 CFR 

1306.04(a). Patrick W. Stodola, 74 FR 

20727, 20731 (2009) (citing Moore, 423 

U.S. at 141–43. The CSA generally looks 

to state law to determine ‘‘whether a 

doctor and patient have established a 

bona fide patient relationship.’’ Id.; see 

also Kamir Garces-Mejias, 72 FR 54931, 

54935 (2007); United Prescription 

Services, Inc., 72 FR 50397, 50407 

(2007). 

The Oklahoma Board found that 

Respondent did not establish a ‘‘valid 

physician patient relationship’’ with 

JWW, DWW and JOW, and that he did 

not establish that these individuals had 

a legitimate medical need for the 

prescriptions. Accordingly, I hold that 

in prescribing to these persons, 

Respondent acted outside of the usual 

course of professional practice and 

lacked a legitimate medical purpose and 

therefore violated Federal law as well. 

See 21 U.S.C. 841(a)(1); 21 CFR 

1306.04(a). I further hold that 

Respondent violated Federal law when 

he acquired diazepam by issuing 

fraudulent prescriptions to JOW and 

directed the latter to fill the 

prescriptions and bring them back to the 

office. See 21 U.S.C. § 843(a)(3). 

As the forgoing demonstrates, 

Respondent’s experience in dispensing 

controlled substance and his record of 

compliance with applicable laws is 

characterized by his numerous 

violations of both State and Federal 

drug laws.3 I therefore hold that 

Respondent has committed acts which 

render his registration ‘‘inconsistent 

with the public interest.’’ Id. § 824(a)(4). 

This conclusion provides an 

independent ground (apart from his 

material falsification) to revoke his 

registration and to deny his application 

to modify his registration. 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 206 / Tuesday, October 26, 2010 / Notices 65667 

Conclusion 

The investigative record shows that 

Respondent materially falsified his July 

2008 application and that he repeatedly 

prescribed controlled substances in 

violation of both Oklahoma and Federal 

law. The record thus establishes two 

independent and adequate grounds for 

revoking Respondent’s registration and 

denying his application to modify his 

registration. Accordingly, Respondent’s 

registration will be revoked and his 

application will be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) & 0.104, I order that 

DEA Certificate of Registration, 

AJ6783535, issued to Gilbert Eugene 

Johnson, M.D., be, and it hereby is, 

revoked. I further order that the pending 

application of Gilbert Eugene Johnson, 

M.D., to modify his registration, be, and 

it hereby is, denied. This Order is 

effective November 26, 2010. 

Dated: October 14, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27028 Filed 10–25–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Lincoln Pharmacy; Revocation of 

Registration 

On March 26, 2010, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration (Order) to Lincoln 

Pharmacy (Respondent), of Edison, New 

Jersey. The Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, BL4082222, 

and the denial of any pending 

applications to renew or modify its 

registration, on the ground that 

Respondent’s ‘‘continued registration is 

inconsistent with the public interest.’’ 

Order at 1 (citing 21 U.S.C. 823(f) & 

824(a)(4)). 

The Order alleged that Respondent 

‘‘routinely filled fraudulent 

prescriptions for highly addictive and 

abused controlled substances’’ and 

therefore violated 21 U.S.C. 841(a)(1) 

and 21 CFR 1306.04. Id. More 

specifically, the Order alleged that 

Respondent had filled six fraudulent 

prescriptions for Roxicodone and 

oxycodone, which are schedule II 

controlled substances, in exchange for 

cash on multiple occasions to wit: (1) 

On January 14, 2010, it filled three 

prescriptions totaling 540 dosage units 

of Roxicodone (30 mg.) for $975 in cash; 

(2) on January 21, 2010, it filled one 

prescription totaling 120 dosage units of 

oxycodone (30 mg.) for $215 in cash; 

and (3) on January 28, 2010, it filled two 

prescriptions totaling 360 tablets of 

oxycodone for $650 in cash. Id. at 1–2. 

Based on the above, I concluded that 

Respondent’s ‘‘continued registration 

during the pendency of these 

proceedings would constitute an 

imminent danger to the public health 

and safety.’’ Id. at 2. I therefore 

exercised my authority under 21 U.S.C. 

824(d) and immediately suspended 

Respondent’s registration. Id. 

On April 6, 2010, the Order, which 

also notified Respondent of its right to 

request a hearing on the allegations or 

to submit a written statement in lieu of 

a hearing, the procedures for doing so, 

and the consequence of failing to do so, 

was served on it. Id. at 2–3 (citing 21 

CFR 1301.43(a), (c), (d) & (e)). Since that 

time, neither Respondent, nor anyone 

purporting to represent it, has either 

requested a hearing or submitted a 

written statement in lieu of a hearing. 

Thirty days now having passed since 

the Order was served on Respondent, I 

conclude that Respondent has waived 

its right to a hearing. See 21 CFR 

1301.43(b) & (d). I therefore issue this 

Decision and Final Order based on the 

evidence contained in the investigative 

record submitted by the Government. Id. 

1301.43(e). I make the following 

findings. 

Findings 

Respondent is a retail pharmacy 

located at 52 Lincoln Highway, Edison, 

New Jersey, which is owned and 

operated by Mr. Vincent Hsia, a 

registered pharmacist. Respondent is the 

holder of Certificate of Registration, 

BL4082222, which authorizes it to 

dispense controlled substances in 

schedules II through V as a retail 

pharmacy. Respondent’s registration 

does not expire until March 31, 2012. 

On January 14, 2010, at shortly after 

7 p.m., a cooperating source (CS) went 

to Respondent and presented three 

prescriptions to Mr. Hsia. Each of the 

prescriptions was for 180 tablets of 

Roxicodone (oxycodone) 30 mg., 

contained dosing instructions, stated 

‘‘chronic intractable pain,’’ and was 

signed. While it is unclear whether the 

prescriptions the CS presented 

contained a patient name, the evidence 

which includes three cash-register 

receipts, the vials and the drugs, shows 

that at approximately 7:17 through 7:22 

p.m., Hsia delivered the three vials, 

each containing 180 tablets of 

Roxicodone 30 mg. (for a total of 540 

tablets), to the CS and charged him $325 

in cash for each vial for a total of $975. 

The prescriptions listed the patients as 

Chris DiMarco of Clark, NJ; Rudy Lore, 

also purportedly of Clark; and Paul 

Smith of Rahway, NJ. 

On January 21, 2010, at 7:45 p.m., the 

CS returned to Respondent and 

presented a prescription for 180 tablets 

of oxycodone 30 mg. This prescription 

listed the patient as Michael Williams of 

Newark, NJ. According to the transcript 

of a recording of the CS’s conversation 

with Mr. Hsia, at one point the CS 

asked: ‘‘Quick questions. Since I’m 

moving [expletive deleted] moving these 

things really fast, is there any way you 

could write for more than 180? There 

isn’t, right?’’ Hsia replied: ‘‘I don’t really 

even like filling for 180.’’ The CS then 

mentioned that an associate had told 

him that ‘‘you could get 240 all the time 

or somethin[g].’’ Hsia replied: ‘‘I can’t 

even give you 180. I have to give you 

120. Cause it doesn’t say chronic 

intractable pain.’’ Hsia subsequently 

distributed 120 tablets of oxycodone 30 

mg. to the CS. 

On January 27, 2010, the CS called 

Hsia to ask him what phrase needed to 

be on the prescription to justify 

dispensing the larger quantity. Hsia told 

him ‘‘chronic intractable pain.’’ The 

following day, the CS returned to 

Respondent and presented two more 

prescriptions for 180 tablets of 

oxycodone 30 mg. which appear to have 

included the notation of ‘‘chronic 

intractable pain.’’ One of the 

prescriptions listed the patient as Paul 

Fusatola of Belleville, NJ; the other as 

Rachel Billis of Nutley, NJ. The CS paid 

$325 in cash for each prescription and 

Hsia distributed two vials, each 

containing 180 tablets of oxycodone 30 

mg., to the CS. 

Discussion 

Section 304(a) of the Controlled 

Substances Act provides that ‘‘[a] 

registration * * * to * * * dispense a 

controlled substance * * * may be 

suspended or revoked by the Attorney 

General upon a finding that the 

registrant * * * has committed such 

acts as would render his registration 

under section 823 of this title 

inconsistent with the public interest as 

determined under such section.’’ 21 

U.S.C. 824(a)(4). In determining the 

public interest in the case of a 

practitioner, the Act directs that the 

Attorney General consider the following 

factors: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 


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