Nicholas J. Nardacci, M.D.; Decision and Order, 47409-47411 [2016-17264]
Download as PDF
<![CDATA[
Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Notices
ACTION:
Notice of public meeting.
DEPARTMENT OF THE INTERIOR
In accordance with the
Federal Land Policy and Management
Act and the Federal Advisory
Committee Act of 1972, the U.S.
Department of the Interior, Bureau of
Land Management (BLM) Southwest
Resource Advisory Council (RAC) is
scheduled to meet as indicated below.
SUMMARY:
The Southwest RAC meeting will
be held on August 19, 2016, in
Gunnison, Colorado.
DATES:
The Southwest RAC will
meet August 19 at the Gunnison County
Fairgrounds Multi-Purpose Building,
275 S. Spruce St., Gunnison, CO 81230.
The meeting will begin at 9 a.m. and
adjourn at approximately 4 p.m. A
public comment period regarding
matters on the agenda will occur at
11:30 a.m.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Shannon Borders, Public Affairs
Specialist, 970–240–5300; 2505 S.
Townsend Ave., Montrose, CO 81401.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 1–800–877–8339 to contact the
above individual during normal
business hours. The FIRS is available 24
hours a day, seven days a week, to leave
a message or question with the above
individual. You will receive a reply
during normal business hours.
The
Southwest RAC advises the Secretary of
the Interior, through the BLM, on a
variety of public land issues in
southwest Colorado. Topics of
discussion for all Southwest RAC
meetings may include field manager and
working group reports, recreation, fire
management, land use planning,
invasive species management, energy
and minerals management, travel
management, wilderness, land exchange
proposals, cultural resource
management and other issues as
appropriate. These meetings are open to
the public. The public may present
written comments to the RACs. Each
formal RAC meeting also has time, as
identified above, allocated for hearing
public comments. Depending on the
number of people wishing to comment,
the time for individual oral comments
may be limited.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
SUPPLEMENTARY INFORMATION:
Ruth Welch,
BLM Colorado State Director.
[FR Doc. 2016–17265 Filed 7–20–16; 8:45 am]
BILLING CODE 4310–JB–P
VerDate Sep<11>2014
17:15 Jul 20, 2016
Jkt 238001
Bureau of Land Management
[LLCON05000–L16100000.DU0000–16X]
Notice of Meetings, Northwest
Resource Advisory Council White
River Field Office Travel Management
Subgroup
Bureau of Land Management,
Interior.
ACTION: Notice of public meeting.
AGENCY:
In accordance with the
Federal Land Policy and Management
Act and the Federal Advisory
Committee Act of 1972, the U.S.
Department of the Interior, Bureau of
Land Management (BLM) Northwest
Resource Advisory Council’s (RAC)
White River Field Office (WRFO) Travel
Management Subgroup will meet as
indicated below.
DATES: The Northwest RAC’s WRFO
Travel Management Subgroup has
scheduled two meetings. The first
meeting is August 23, 2016, from 1 p.m.
to 3 p.m., with a public comment period
regarding matters on the agenda at 2
p.m. The second meeting is September
14, 2016, from 9 a.m. to 12 p.m., with
a public comment period regarding
matters on the agenda at 11 a.m. A
specific agenda for each meeting will be
available prior to the meetings at https://
www.blm.gov/co/st/en/BLM_Resources/
racs/nwrac.html.
ADDRESSES: The first meeting (August
23, 2016) will be held at the Meeker
Public Library, 490 Main St., Meeker,
CO 81641. The second meeting
(September 14, 2016) will be held at the
BLM WRFO, 220 E. Market St., Meeker,
CO 81641.
FOR FURTHER INFORMATION CONTACT:
Heather Sauls, Planning and
Environmental Coordinator, WRFO, 220
E. Market St., Meeker, CO 81641. Phone:
(970) 878–3855. Email: hsauls@blm.gov.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 1–800–877–8339 to contact the
above individual during normal
business hours. The FIRS is available 24
hours a day, seven days a week, to leave
a message or question with the above
individual. You will receive a reply
during normal business hours.
SUPPLEMENTARY INFORMATION: The 15member Northwest RAC advises the
Secretary of the Interior, through the
BLM, on a variety of planning and
management issues associated with
public land management in northwest
Colorado, which includes the WRFO,
Little Snake Field Office, Grand
SUMMARY:
PO 00000
Frm 00066
Fmt 4703
Sfmt 4703
47409
Junction Field Office, Colorado River
Valley Field Office and Kremmling
Field Office. The Northwest RAC has
formed a 12-member Travel
Management Subgroup to assist with the
WRFO’s Travel and Transportation
Management Resource Management
Plan (RMP) Amendment. The purpose
of the meetings is to discuss the RMP
Amendment’s preliminary alternatives.
At the first meeting (August 23, 2016),
the focus of the discussion will be to
explain the alternatives and the
rationale behind them to the Subgroup.
At the second meeting (September 14,
2016), the discussion will focus on
whether the BLM has developed an
adequate range of alternatives and if
those alternatives address the planning
issues. The Subgroup provides
recommendations to the RAC but does
not directly advise the BLM. The public
may make oral comments to the
Subgroup or submit written comments
for the Subgroup’s consideration.
Summary minutes for the Northwest
RAC’s WRFO Travel Management
Subgroup meetings will be maintained
in the WRFO and will be available for
public inspection and reproduction
during regular business hours within
thirty (30) days following the meeting.
Ruth Welch,
BLM Colorado State Director.
[FR Doc. 2016–17267 Filed 7–20–16; 8:45 am]
BILLING CODE 4310–JB–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16–15]
Nicholas J. Nardacci, M.D.; Decision
and Order
On December 7, 2015, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Nicholas J. Nardacci,
M.D. (hereinafter, Respondent), of
Albuquerque, New Mexico. Show Cause
Order, at 1. The Show Cause Order
proposed the revocation of
Respondent’s DEA Certificate of
Registration AN9444592, pursuant to
which he is authorized to dispense
controlled substances in schedules II
through V as a practitioner, as well as
the denial of pending applications, on
the ground that Respondent does not
have authority to dispense controlled
substances in New Mexico, the State in
which he is registered with the Agency.
Id. (citing 21 U.S.C. 823(f) and
824(a)(3)).
E:\FR\FM\21JYN1.SGM
21JYN1
asabaliauskas on DSK3SPTVN1PROD with NOTICES
47410
Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Notices
As factual support for the proposed
actions, the Show Cause Order alleged
that Respondent’s medical license had
expired on July 14, 2014 and had not
been reinstated by the New Mexico
Medical Board. Id. The Show Cause
Order also alleged that Respondent’s
New Mexico controlled substance
license had expired on October 31, 2013
and had not been reinstated by the New
Mexico Pharmacy Board. Id. The Show
Cause Order thus alleged that
Respondent is currently without
authority to handle controlled
substances in New Mexico, the State in
which he is registered, id., and
therefore, his DEA registration is subject
to revocation.1 Id. at 2.
On December 18, 2015, the
Government accomplished service of
the Show Cause Order on Respondent as
evidenced by the signed return-receipt
card. On January 19, 2016, Respondent
requested a hearing on the allegations as
well as an extension of time to find an
attorney. The matter was placed on the
docket of the Office of Administrative
Law Judges and assigned to ALJ Charles
Wm. Dorman.
On January 20, 2016, the ALJ issued
an Order which directed the
Government to submit evidence
supporting the allegation and an
accompanying dispositive motion by
February 4, 2016. The ALJ also granted
Respondent’s request for an extension
and ordered that if the Government filed
such a motion, Respondent was to file
his reply by February 25, 2016. Briefing
Schedule For Lack Of State Authority
Allegations, at 1.
On February 4, 2016, the Government
filed its Motion for Summary
Disposition. As support for its Motion,
the Government provided a copy of
Respondent’s registration information,
an affidavit from a Diversion
Investigator (DI) and printouts she
obtained from the New Mexico Medical
Board and New Mexico Board of
Pharmacy.2 The Medical Board printout
showed that Respondent’s medical
license had expired on July 1, 2014 and
subsequently lapsed. As for the
Pharmacy Board printout, it showed
that Respondent’s state controlled
substance license had expired on
October 31, 2013. The Government thus
argued that Respondent is without
authority to dispense controlled
1 The Show Cause Order also notified Respondent
of his right to request a hearing on the allegations
or submit a written statement while waiving his
right to a hearing, and the procedure for electing
either option. Show Cause Order, at 2 (citing 21
CFR 1301.43).
2 The DI averred that during a phone conversation
with Respondent, he acknowledged that both of his
state licenses had expired. DI Declaration, at 2.
VerDate Sep<11>2014
17:15 Jul 20, 2016
Jkt 238001
substances in New Mexico and does not
possess the authority required by the
Controlled Substances Act to be
registered and therefore, his registration
should be revoked. Mot. at 5.
On February 18, 2016, Respondent
submitted a letter to the ALJ wherein he
noted that he was negotiating with the
Medical Board over the withdrawal of
his application for reinstatement of his
state license. Letter from Respondent to
Hearing Clerk, OALJ (Feb. 16, 2016).
Respondent further requested that the
ALJ grant him ‘‘a 30 day extension to’’
allow him ‘‘to reach a settlement with
the Medical Board’’ after which he
would either withdraw his DEA
application or challenge the Show
Cause Order. Id. Respondent explained
that the Board was requiring him to pass
a competency exam in order to be
reinstated; he also noted that he was
having difficulty finding an attorney he
could afford. Id. at 2. Respondent
attached to his letter, a December 31,
2015 letter from the New Mexico Board
informing him that the Board was
offering him the opportunity to
withdraw his application, but that if he
chose not to do so, the Board would
issue him a Notice of Contemplated
Action to deny the reinstatement of his
license. Id. at 3. Respondent did not,
however, dispute the Government’s
contention that he is currently without
state authority to dispense controlled
substances in New Mexico.
Thereafter, the ALJ denied
Respondent’s request for a second
extension, finding unpersuasive his
contention that he was in negotiations
with the Board to reach a settlement and
needed more time. Order Denying The
Resp.’s Request For An Extension, Order
Granting Summary Judgment, And
Recommended Rulings, Findings Of
Fact, Conclusions Of Law, And
Decision, at 3. The ALJ also found
unpersuasive Respondent’s other
justification for needing an extension,
i.e., that he needed more time to find a
lawyer, noting that Respondent had
more than two months to find one. Id.
Turning to the Government’s Motion,
the ALJ found that there was no factual
dispute that Respondent does not
possess state authority to dispense
controlled substances and thus cannot
maintain his DEA registration. Id. at 4.
The ALJ thus granted the Government’s
Motion and recommended that
Respondent’s registration be revoked
and that any pending application be
denied. Id.
Neither party filed exceptions to the
ALJ’s Recommended Decision.
Thereafter, the record was forwarded to
my Office for Final Agency Action.
Having considered the record in its
PO 00000
Frm 00067
Fmt 4703
Sfmt 4703
entirety, I adopt the ALJ’s rulings, as
well as his findings of fact, legal
conclusion and recommended sanction.
I make the following finding of fact.
Findings
Respondent was the holder of DEA
Certificate of Registration AN9444592,
pursuant to which he was authorized to
dispense controlled substances in
schedules II through V as a practitioner
at the registered address of 2919
Commercial Street NE., Albuquerque,
New Mexico; this registration had an
expiration date of October 31, 2014.
Motion for Summ. Disp., Attachment 1,
at 1. Because Respondent did not
submit a renewal application until
November 28, 2014, this registration
expired, in accordance with its terms,
on October 31, 2014. Id. However,
because there is a pending application,
this case remains a live controversy.
Respondent also formerly held a
medical license issued by the New
Mexico Medical Board. However,
Respondent’s license expired on July 1,
2014 and was subsequently deemed by
the Board to have lapsed. Moreover,
according to the online records of the
New Mexico Medical Board of which I
take official notice, on February 22,
2016, Respondent entered into a
Stipulation And Order For Withdrawal
Of Application For Licensure, which the
Board approved on February 29, 2016,
pursuant to which he agreed to
withdraw his Application for
Reinstatement.3
Respondent also formerly held a New
Mexico Controlled Substances license.
However, this license expired on
October 31, 2013.
Discussion
Pursuant to 21 U.S.C. 823(f), ‘‘[t]he
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.’’ Id.
§ 823(f). Moreover, the Controlled
Substances Act defines the term
‘‘practitioner’’ to ‘‘mean[ ] a physician
. . . licensed, registered, or otherwise
permitted, by . . . the jurisdiction in
3 Under the Administrative Procedure Act (APA),
an agency ‘‘may take official notice of facts at any
stage in a proceeding-even in the final decision.’’
U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance
with the APA and DEA’s regulation, Respondent is
‘‘entitled on timely request to an opportunity to
show to the contrary.’’ 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent may dispute my
finding by filing a properly supported motion
within fifteen calendar days of this Order which
shall commence on the date this Order is mailed.
E:\FR\FM\21JYN1.SGM
21JYN1
Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Notices
which he practices . . . to distribute,
dispense, [or] administer . . . a
controlled substance in the course of
professional practice.’’ Id. § 802(21). See
also id. § 824(a)(3) (authorizing the
revocation of a registration upon a
finding that the registrant ‘‘has had his
State license or registration suspended,
revoked, or denied by competent State
authority and is no longer authorized by
State law to engage in the . . .
dispensing of controlled substances’’).
Based on these provisions, the Agency
has repeatedly held ‘‘that a practitioner
can neither obtain nor maintain a DEA
registration unless the practitioner
currently has authority under state law
to handle controlled substances.’’ James
L. Hooper, 76 FR 71371, 71372 (2011)
(collecting cases), pet. for rev. denied,
Hooper v. Holder, 481 F. App’x 826 (4th
Cir. 2012).
Here, there is no dispute as to the
material fact that Respondent does not
hold authority under New Mexico law
to dispense controlled substances and is
thus not a practitioner within the
meaning of the Act. See 21 U.S.C.
802(21). Accordingly, his application
must be denied. 21 U.S.C. 823(f).
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 28 CFR 0.100(b),
I order that the application of Nicholas
J. Nardacci, M.D., for a DEA Certificate
of Registration as a practitioner, be, and
it hereby is, denied. This Order is
effective immediately.
Dated: July 11, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016–17264 Filed 7–20–16; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10–71]
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Turning Tide, Inc. Decision and Order;
Procedural History
On August 17, 2010, the former
Administrator of the Drug Enforcement
Administration issued an Order to Show
Cause and Immediate Suspension of
Registration (hereinafter, Show Cause
Order or Order) to Turning Tide, Inc.
(Respondent), of Rockland, Maine.
Show Cause Order, at 1. The Show
Cause Order proposed the revocation of
Respondent’s DEA Certificate of
Registration RT0370015,1 which
authorized it to dispense controlled
1 The Order alleged that Respondent’s registration
was due to expire on November 30, 2010.
VerDate Sep<11>2014
17:15 Jul 20, 2016
Jkt 238001
substances as a Narcotic Treatment
Program pursuant to 21 U.S.C. 823(g)(1),
and the denial of any pending
applications to renew or modify its
registration, on the ground that its
‘‘continued registration is inconsistent
with the public interest, as that term is
defined in 21 U.S.C. 823(f).’’ Id. at 1.
The Show Cause Order specifically
alleged that ‘‘Respondent is owned by
Angel Fuller-McMahan’’ and that its
‘‘registration is conditioned upon a
Memorandum of Agreement (MOA)
with DEA which prohibits Ms. FullerMcMahan from (1) having physical
access to Respondent’s premises; (2)
ordering controlled substances on behalf
of Respondent; and (3) executing any
renewal applications . . . on behalf of
Respondent.’’ Id. at 1–2. The Order then
alleged that Ms. Fuller-McMahan had
been arrested on July 13, 2010 and
charged with unlawful possession of
cocaine, and that at the time of her
arrest, she had in her possession
approximately 25 grams of cocaine and
two hypodermic needles.2 Id. at 2. The
Order further alleged that Ms. FullerMcMahan had ‘‘arranged to purchase
cocaine’’ from both a patient and an
employee of Respondent. Id. The Order
also alleged that ‘‘[w]hile serving as
Respondent’s Program Director, Ms.
Fuller-McMahan approached another
patient . . . and offered to trade
methadone for cocaine’’ by ‘‘creat[ing] a
fraudulent order for methadone,’’ even
though she was then prohibited by the
MOA from ordering controlled
substances on behalf of Respondent. Id.
The Order then alleged that Ms. FullerMcMahan had purchased cocaine in
three separate ‘‘illegal drug transactions
with another of Respondent’s patients.’’
Id.
Next, the Show Cause Order alleged
that notwithstanding the MOA’s terms,
‘‘Ms. Fuller-McMahan continues to
retain control and have supervisory
authority over key aspects of
Respondent’s operation,’’ that she had
represented to a patient ‘‘that she has
access to controlled substances which
are ordered on behalf of Respondent,’’
and that she has ‘‘repeatedly violated
the terms of the MOA by entering the
physical premises of [Respondent] and
executing a renewal application on [its]
behalf.’’ Id. Finally, the Order alleged
that Respondent ‘‘continued to employ
Ms. Fuller-McMahan’s husband, Vance
McMahan, despite the fact that Mr.
McMahan has been convicted of illegal
drug possession and has access to
2 The Order also alleged that on August 31, 2001,
Ms. Fuller-McMahan had been convicted in state
court of unlawful possession of heroin. Show Cause
Order, at 2.
PO 00000
Frm 00068
Fmt 4703
Sfmt 4703
47411
Respondent’s controlled substances and
confidential patient information.’’ Id.
Based on the above allegations, the
former Administrator concluded that
Respondent’s continued registration
during the pending of the proceeding
would ‘‘constitute an imminent danger
to the public health and safety’’ and
therefore ordered that its registration be
suspended immediately. Id. at 3 (citing
21 U.S.C. 824(d)). The former
Administrator also authorized the
Special Agents and Diversion
Investigators who served the Order to
either ‘‘place under seal or to remove for
safekeeping all controlled substances
that [Respondent] possesses pursuant to
the registration which [was]
suspended.’’ Id. (citing 21 U.S.C. 824(f)
and 21 CFR 1301.36(f)).
Thereafter, Respondent requested a
hearing on the allegations and the
matter was placed on the docket of the
Agency’s Administrative Law Judges
(ALJ). Following the ALJ’s issuance of
an Order for Pre-Hearing Statements, the
Government moved for summary
disposition on the ground that on
September 7, 2010, the Maine
Department of Health and Human
Services (MDHHS) had temporarily
suspended Respondent’s Substance
Abuse Treatment license. ALJ Dec., at 3.
As support for the motion, the
Government attached a letter dated
September 7, 2010 from the Director of
the MDHHS’s Division of Licenses &
Regulatory Services to Ms. FullerMcMahan. Mot. for Summ. Disp., at Ex.
2. Therein, the Director stated that
MDHHS was ‘‘revoking on an
emergency basis for a period not to
exceed thirty days the agency’s licenses
to operate an Opioid Treatment Program
and . . . Outpatient Substances Abuse
Services.’’ Id. (citing 14–118 C.M.R. Ch.
5, § 2.10.9). The letter further stated that
‘‘[t]he Department reserves its right to
petition the District Court to extend the
period of license revocation in
accordance with 4 M.R.S.A. § 184(6) and
5 M.R.S.A. § 10003.’’ Id. at 2.
Upon reviewing the motion, the ALJ
directed Respondent to file a response
to the Government’s motion, which
Respondent did after obtaining an
extension.3 ALJ Dec., at 3. Thereafter,
the Government filed a further pleading
in which it noted that MDHHS had filed
a complaint in state court seeking the
temporary suspension and permanent
revocation of Respondent’s Maine
3 Respondent argued that the proposed revocation
of its DEA registration would violate its right to due
process because it was based on the MDHHS
suspension, which in turn, was based on the DEA
Order to Show Cause and Immediate Suspension of
Registration. See Response In Opposition To The
DEA Motion For Summary Disposition, at 2–5.
E:\FR\FM\21JYN1.SGM
21JYN1
]]>Agencies
[Federal Register Volume 81, Number 140 (Thursday, July 21, 2016)]
[Notices]
[Pages 47409-47411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17264]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16-15]
Nicholas J. Nardacci, M.D.; Decision and Order
On December 7, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Nicholas J. Nardacci, M.D. (hereinafter, Respondent), of
Albuquerque, New Mexico. Show Cause Order, at 1. The Show Cause Order
proposed the revocation of Respondent's DEA Certificate of Registration
AN9444592, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, as well as the
denial of pending applications, on the ground that Respondent does not
have authority to dispense controlled substances in New Mexico, the
State in which he is registered with the Agency. Id. (citing 21 U.S.C.
823(f) and 824(a)(3)).
[[Page 47410]]
As factual support for the proposed actions, the Show Cause Order
alleged that Respondent's medical license had expired on July 14, 2014
and had not been reinstated by the New Mexico Medical Board. Id. The
Show Cause Order also alleged that Respondent's New Mexico controlled
substance license had expired on October 31, 2013 and had not been
reinstated by the New Mexico Pharmacy Board. Id. The Show Cause Order
thus alleged that Respondent is currently without authority to handle
controlled substances in New Mexico, the State in which he is
registered, id., and therefore, his DEA registration is subject to
revocation.\1\ Id. at 2.
---------------------------------------------------------------------------
\1\ The Show Cause Order also notified Respondent of his right
to request a hearing on the allegations or submit a written
statement while waiving his right to a hearing, and the procedure
for electing either option. Show Cause Order, at 2 (citing 21 CFR
1301.43).
---------------------------------------------------------------------------
On December 18, 2015, the Government accomplished service of the
Show Cause Order on Respondent as evidenced by the signed return-
receipt card. On January 19, 2016, Respondent requested a hearing on
the allegations as well as an extension of time to find an attorney.
The matter was placed on the docket of the Office of Administrative Law
Judges and assigned to ALJ Charles Wm. Dorman.
On January 20, 2016, the ALJ issued an Order which directed the
Government to submit evidence supporting the allegation and an
accompanying dispositive motion by February 4, 2016. The ALJ also
granted Respondent's request for an extension and ordered that if the
Government filed such a motion, Respondent was to file his reply by
February 25, 2016. Briefing Schedule For Lack Of State Authority
Allegations, at 1.
On February 4, 2016, the Government filed its Motion for Summary
Disposition. As support for its Motion, the Government provided a copy
of Respondent's registration information, an affidavit from a Diversion
Investigator (DI) and printouts she obtained from the New Mexico
Medical Board and New Mexico Board of Pharmacy.\2\ The Medical Board
printout showed that Respondent's medical license had expired on July
1, 2014 and subsequently lapsed. As for the Pharmacy Board printout, it
showed that Respondent's state controlled substance license had expired
on October 31, 2013. The Government thus argued that Respondent is
without authority to dispense controlled substances in New Mexico and
does not possess the authority required by the Controlled Substances
Act to be registered and therefore, his registration should be revoked.
Mot. at 5.
---------------------------------------------------------------------------
\2\ The DI averred that during a phone conversation with
Respondent, he acknowledged that both of his state licenses had
expired. DI Declaration, at 2.
---------------------------------------------------------------------------
On February 18, 2016, Respondent submitted a letter to the ALJ
wherein he noted that he was negotiating with the Medical Board over
the withdrawal of his application for reinstatement of his state
license. Letter from Respondent to Hearing Clerk, OALJ (Feb. 16, 2016).
Respondent further requested that the ALJ grant him ``a 30 day
extension to'' allow him ``to reach a settlement with the Medical
Board'' after which he would either withdraw his DEA application or
challenge the Show Cause Order. Id. Respondent explained that the Board
was requiring him to pass a competency exam in order to be reinstated;
he also noted that he was having difficulty finding an attorney he
could afford. Id. at 2. Respondent attached to his letter, a December
31, 2015 letter from the New Mexico Board informing him that the Board
was offering him the opportunity to withdraw his application, but that
if he chose not to do so, the Board would issue him a Notice of
Contemplated Action to deny the reinstatement of his license. Id. at 3.
Respondent did not, however, dispute the Government's contention that
he is currently without state authority to dispense controlled
substances in New Mexico.
Thereafter, the ALJ denied Respondent's request for a second
extension, finding unpersuasive his contention that he was in
negotiations with the Board to reach a settlement and needed more time.
Order Denying The Resp.'s Request For An Extension, Order Granting
Summary Judgment, And Recommended Rulings, Findings Of Fact,
Conclusions Of Law, And Decision, at 3. The ALJ also found unpersuasive
Respondent's other justification for needing an extension, i.e., that
he needed more time to find a lawyer, noting that Respondent had more
than two months to find one. Id.
Turning to the Government's Motion, the ALJ found that there was no
factual dispute that Respondent does not possess state authority to
dispense controlled substances and thus cannot maintain his DEA
registration. Id. at 4. The ALJ thus granted the Government's Motion
and recommended that Respondent's registration be revoked and that any
pending application be denied. Id.
Neither party filed exceptions to the ALJ's Recommended Decision.
Thereafter, the record was forwarded to my Office for Final Agency
Action. Having considered the record in its entirety, I adopt the ALJ's
rulings, as well as his findings of fact, legal conclusion and
recommended sanction. I make the following finding of fact.
Findings
Respondent was the holder of DEA Certificate of Registration
AN9444592, pursuant to which he was authorized to dispense controlled
substances in schedules II through V as a practitioner at the
registered address of 2919 Commercial Street NE., Albuquerque, New
Mexico; this registration had an expiration date of October 31, 2014.
Motion for Summ. Disp., Attachment 1, at 1. Because Respondent did not
submit a renewal application until November 28, 2014, this registration
expired, in accordance with its terms, on October 31, 2014. Id.
However, because there is a pending application, this case remains a
live controversy.
Respondent also formerly held a medical license issued by the New
Mexico Medical Board. However, Respondent's license expired on July 1,
2014 and was subsequently deemed by the Board to have lapsed. Moreover,
according to the online records of the New Mexico Medical Board of
which I take official notice, on February 22, 2016, Respondent entered
into a Stipulation And Order For Withdrawal Of Application For
Licensure, which the Board approved on February 29, 2016, pursuant to
which he agreed to withdraw his Application for Reinstatement.\3\
---------------------------------------------------------------------------
\3\ Under the Administrative Procedure Act (APA), an agency
``may take official notice of facts at any stage in a proceeding-
even in the final decision.'' U.S. Dept. of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and
DEA's regulation, Respondent is ``entitled on timely request to an
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent may dispute my finding by filing a
properly supported motion within fifteen calendar days of this Order
which shall commence on the date this Order is mailed.
---------------------------------------------------------------------------
Respondent also formerly held a New Mexico Controlled Substances
license. However, this license expired on October 31, 2013.
Discussion
Pursuant to 21 U.S.C. 823(f), ``[t]he 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.'' Id.
Sec. 823(f). Moreover, the Controlled Substances Act defines the term
``practitioner'' to ``mean[ ] a physician . . . licensed, registered,
or otherwise permitted, by . . . the jurisdiction in
[[Page 47411]]
which he practices . . . to distribute, dispense, [or] administer . . .
a controlled substance in the course of professional practice.'' Id.
Sec. 802(21). See also id. Sec. 824(a)(3) (authorizing the revocation
of a registration upon a finding that the registrant ``has had his
State license or registration suspended, revoked, or denied by
competent State authority and is no longer authorized by State law to
engage in the . . . dispensing of controlled substances''). Based on
these provisions, the Agency has repeatedly held ``that a practitioner
can neither obtain nor maintain a DEA registration unless the
practitioner currently has authority under state law to handle
controlled substances.'' James L. Hooper, 76 FR 71371, 71372 (2011)
(collecting cases), pet. for rev. denied, Hooper v. Holder, 481 F.
App'x 826 (4th Cir. 2012).
Here, there is no dispute as to the material fact that Respondent
does not hold authority under New Mexico law to dispense controlled
substances and is thus not a practitioner within the meaning of the
Act. See 21 U.S.C. 802(21). Accordingly, his application must be
denied. 21 U.S.C. 823(f).
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28
CFR 0.100(b), I order that the application of Nicholas J. Nardacci,
M.D., for a DEA Certificate of Registration as a practitioner, be, and
it hereby is, denied. This Order is effective immediately.
Dated: July 11, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-17264 Filed 7-20-16; 8:45 am]
BILLING CODE 4410-09-P
