David D. Moon, D.O.; Decision and Order, 19385-19390 [2017-08452]
Download as PDF
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
an active registration and that the
Agency has jurisdiction.4
Respondent is also the holder of
license number DR–36651, pursuant to
which he is authorized to practice
medicine as a physician by the Medical
Board of Colorado. Mot. for Summ.
Disp., Ex. 1, at 1. However, effective on
July 19, 2016, the Board suspended
Respondent’s medical license ‘‘pending
proceedings for suspension or
revocation.’’ Id. at 2. According to the
online records of the Colorado Division
of Professions and Occupations,
Respondent’s suspension remains in
effect as of the date of this Decision and
Order. See 5 U.S.C. 556(e).
mstockstill on DSK30JT082PROD with NOTICES
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
Substances Act (CSA), ‘‘upon a finding
that the registrant . . . has had his State
license . . . suspended [or] revoked
. . . by competent State authority and is
no longer authorized by State law to
engage in the . . . dispensing of
controlled substances.’’ Moreover, DEA
has long held that the possession of
authority to dispense controlled
substances under the laws of the State
in which a practitioner engages in
professional practice is a fundamental
condition for obtaining and maintaining
a practitioner’s registration. See, e.g.,
James L. Hooper, 76 FR 71371 (2011),
pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); see also Frederick Marsh
Blanton, 43 FR 27616 (1978) (‘‘State
authorization to dispense or otherwise
handle controlled substances is a
prerequisite to the issuance and
maintenance of a Federal controlled
substances registration.’’).
This rule derives from the text of two
provisions of the CSA. First, Congress
defined ‘‘the term ‘practitioner’ [to]
mean[] a . . . physician . . . or other
person licensed, registered or otherwise
permitted, by . . . the jurisdiction in
which he practices . . . to distribute,
dispense, [or] administer . . . a
4 I note that the Government did not submit any
evidence regarding the status of Respondent’s
registration with its Motion for Summary
Disposition. DEA’s regulations do not require
responsive pleading to the allegations of a Show
Cause Order. Thus, the failure of a respondent to
refute an allegation in his hearing request does not
constitute an admission of the allegation and the
Government maintains the burden of providing
evidence establishing the Agency’s jurisdiction as
part of its Motion. The Agency has also noted in
several decisions that even in those matters which
are adjudicated on summary disposition, the ALJ is
obligated to make findings as to the Agency’s
jurisdiction. See James Alvin Chaney, 80 FR 57391,
57391 n.1 (2015); Sharad C. Patel, 80 FR 28693,
28694 n.3 (2015).
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
controlled substance in the course of
professional practice.’’ 21 U.S.C.
802(21). Second, in setting the
requirements for obtaining a
practitioner’s registration, Congress
directed that ‘‘[t]he Attorney General
shall register practitioners . . . if the
applicant is authorized to dispense . . .
controlled substances under the laws of
the State in which he practices.’’ 21
U.S.C. 823(f).
Because ‘‘the controlling question’’ in
a proceeding brought under 21 U.S.C.
824(a)(3) is whether the holder of a DEA
registration ‘‘is currently authorized to
handle controlled substances in the
[S]tate,’’ Hooper, 76 FR at 71371
(quoting Anne Lazar Thorn, 62 FR
12847, 12848 (1997)), the Agency has
also long held that revocation is
warranted even where a practitioner has
lost his state authority by virtue of the
State’s use of summary process and the
State has yet to provide a hearing to
challenge the suspension. Bourne
Pharmacy, 72 FR 18273, 18274 (2007);
Wingfield Drugs, 52 FR 27070, 27071
(1987). Thus, it is of no consequence
that the Colorado Medical Board has
employed summary process in
suspending Registrant’s state license
and that Respondent may prevail at the
hearing schedule for late June.
Here, there is no dispute over the
material fact that Respondent is no
longer currently authorized to dispense
controlled substances in Colorado, the
State in which he is registered.
Accordingly, I adopt the ALJ’s
recommendation that Respondent’s
registration be revoked.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a), as well as 28 CFR
0.100(b), I order that DEA Certificate of
Registration AM2281688, issued to
Robert Clark Maiocco, M.D., be, and it
hereby is, revoked. Pursuant to the
authority vested in me by 21 U.S.C.
823(f), I further order that any pending
application of Robert C. Maiocco, M.D.,
to renew or modify his registration, be,
and it hereby is, denied. This Order is
effective immediately.5
Dated: April 18, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–08450 Filed 4–26–17; 8:45 am]
19385
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
David D. Moon, D.O.; Decision and
Order
On December 8, 2015, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to David D. Moon, D.O.
(hereinafter, Registrant), the holder of
Certificates of Registration Nos.
M9879024, in Tulsa, Oklahoma, and
BM2782692, in Las Vegas, Nevada,
authorizing him to prescribe controlled
substances in Schedules II through V.1
GX 4. The Show Cause Order proposed
the revocation of his Certificates of
Registration and the denial of any
pending application for renewal or
modification of Registrant’s registrations
on the grounds that: (1) Registrant does
not have authority to dispense
controlled substances in the States in
which he is registered and (2) he has
committed acts which render his
registrations ‘‘inconsistent with the
public interest.’’ 2 Id. at 1 (citing 21
U.S.C. 824(a)(3) and (4)).
As the jurisdictional basis for the
proceeding, the Show Cause Order
alleged that both of Registrant’s
registrations expire on January 31, 2018.
Id.
As the substantive grounds for the
proceeding, the Show Cause Order
alleged that on June 18, 2015, the
Oklahoma State Board of Osteopathic
Examiners revoked his Oklahoma
osteopathic license, and that on August
11, 2015, the Nevada State Board of
Osteopathic Medicine revoked his
Nevada osteopathic license, which
resulted in the status of his Nevada
State Board of Pharmacy license
becoming ‘‘inactive.’’ Id. at 2. Thus, due
to the actions of the two Boards, the
Registrant is without authority to handle
controlled substances in the States in
which he is registered with DEA.
The Show Cause Order alleged that on
April 17, 2013, Registrant was arrested
at McCarran International Airport while
proceeding through a Transportation
Security Administration checkpoint. Id.
It further alleged that law enforcement
officers found in his carry-on baggage
drugs in pill bottles labeled for other
people, drugs in unlabeled pill bottles,
and loose drugs. Id. Based on the airport
BILLING CODE 4410–09–P
5 For
the same reasons that led the Colorado
Board to summarily suspend Registrant’s medical
license, I find that the public interest necessitates
that this Order be effective immediately. 21 CFR
1316.67.
PO 00000
Frm 00036
Fmt 4703
Sfmt 4703
1 The Registrant is also known in the
Government’s records as ‘‘David DeWayne Moon.’’
Government Exhibit (hereinafter, GX) 13 and 14.
2 The Show Cause Order also proposed the denial
of any applications by Registrant for any other DEA
registrations.
E:\FR\FM\27APN1.SGM
27APN1
mstockstill on DSK30JT082PROD with NOTICES
19386
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
arrest, the Show Cause Order alleged
that the Registrant possessed controlled
substances with the intent to
redistribute them to individuals for
whom they were not originally
dispensed, in violation of 21 U.S.C.
829(a) and (b), 21 U.S.C. 841(a)(1), 21
U.S.C. 842(a), 21 U.S.C. 843(a)(3), 21
U.S.C. 844(a), 21 U.S.C. 844a(a), and
Nev. Rev. Stat. §§ 453–337–.338. Id. at 4.
The Show Cause Order also alleged,
based on the airport arrest, that
Registrant possessed prescription bottles
without a label or with an unreadable or
illegible label in violation of 21 U.S.C.
825(a) and 21 U.S.C. 842(a). Id.
Based on a subsequent Government
investigation and the execution of an
Administrative Inspection Warrant
(hereinafter, AIW), the Show Cause
Order alleged that Registrant accepted
controlled substances from non-DEA
registered sources (patients) and
redistributed those illicitly obtained
controlled substances to other patients
in violation of 21 U.S.C. 844(a) and 21
U.S.C. 841(a)(1), respectively. Id. Based
on the execution of the AIW, the Show
Cause Order also alleged that Response
could not produce 32 controlled
substance invoices in violation of 21
U.S.C. 842(a)(5) and 21 CFR 1304.21(a).
Id. The Show Cause Order also alleged,
based on the AIW, that Registrant failed
to take a biennial inventory of
controlled substances stored at one of
his registered locations in violation of
21 U.S.C. 827(a) and (b) and 21 CFR
1304.11(c). Id. Also pursuant to the
AIW, the Show Cause Order alleged that
Registrant had significant shortages of
controlled substances at his registered
address in Tulsa, Oklahoma and was
missing purchase records and that
Registrant failed to maintain accurate
and complete records and to account for
controlled substances in violation of 21
U.S.C. 827(a)(3), 21 U.S.C. 842(a)(5), 21
CFR 1304.03, 21 CFR 1304.04, and 21
CFR 1304.21. Id. at 4–5.
Based on another Government
investigation, the Show Cause Order
alleged that Registrant issued at least 55
controlled substance prescriptions in
Nevada under a registration which
listed his registered address in
Oklahoma in violation of 21 U.S.C.
822(e) and 21 CFR 1301.12(a) and (b)(3).
Id. at 5.
The Show Cause Order also notified
Registrant of his right to request a
hearing on the allegations or to submit
a written statement while waiving his
right to a hearing, the procedure for
electing each option, and the
consequence for failing to elect either
option. Id. at 5–6 (citing 21 CFR
1301.43).
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
Adequacy of Service and Waiver
According to the ‘‘Affidavit of Service
of Order to Show Cause’’ submitted by
a Diversion Investigator (hereinafter, DI)
assigned to the DEA Tulsa Resident
Office, on January 7, 2016, ten separate
copies of the Show Cause Order were
sent to Registrant by certified mail, firstclass mail, and electronic mail to his
registered addresses, as well as his lastknown home and electronic mail
addresses. GX 5. Specifically, the DI
stated that the Government served the
Show Cause Order on Registrant (1) by
certified mail, return receipt requested
addressed to Registrant’s registered
address at 11445 East 20th Street, Tulsa,
Oklahoma 74128; (2) by regular firstclass U.S. mail addressed to Registrant’s
registered address at 11445 East 20th
Street, Tulsa, Oklahoma 74128; (3) by
certified mail, return receipt requested
addressed to Registrant’s registered
address at 241 N. Buffalo Drive, Bldg. 1,
Las Vegas, Nevada 89145; (4) by regular
first-class U.S. mail addressed to
Registrant’s registered address at 241 N.
Buffalo Drive, Bldg. 1, Las Vegas,
Nevada 89145; (5) by certified mail,
return receipt requested addressed to
Registrant’s last known home address in
Oklahoma at 2136 East 25th Street,
Tulsa 74114; (6) by regular first-class
U.S. mail addressed to Registrant’s last
known home address in Oklahoma at
2136 East 25th Street, Tulsa 74114; (7)
by certified mail, return receipt
requested addressed to Registrant’s last
known home address in Nevada at 2814
Soft Horizon Way, Las Vegas 89135; (8)
by regular first-class U.S. mail
addressed to Registrant’s last known
home address in Nevada at 2814 Soft
Horizon Way, Las Vegas 89135; (9) by
electronic mail at the email address that
appears in DEA’s registration database
for Registrant’s Tulsa registered
location; and (10) by electronic mail at
the email address that appears in DEA’s
registration database for Registrant’s Las
Vegas registered location.3 Id. at 1–2.
According to the ‘‘Supplemental
Affidavit of Service of Order to Show
Cause’’ (hereinafter, Supplemental
Affidavit) submitted by the Tulsa
Resident Office DI, the certified mail,
return receipt and regular first-class
mailings addressed to Registrant’s
registered address in Tulsa, Oklahoma
were returned with the notation ‘‘return
3 In Mikhayl Soliman, 81 FR 47826 (2016), I
acknowledged that service by email has its
limitations. See Rio Properties, Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1017–18 (9th Cir. 2002).
Here, the Government employed multiple means to
serve Registrant and, as in Soliman, used the email
address Registrant had previously provided it and
did not receive either an error or an undeliverable
message.
PO 00000
Frm 00037
Fmt 4703
Sfmt 4703
to sender, vacant.’’ GX 6, at 1. The
Supplemental Affidavit stated that the
mailings addressed to Registrant’s
registered address in Las Vegas and his
last known home address in Oklahoma
were not returned and the Government
did not receive the certified return
receipt green cards for those mailings
sent certified mail, return receipt. Id. at
2. The Supplemental Affidavit stated
that the regular first-class mailing
addressed to Registrant’s last known
home address in Las Vegas was not
returned. Id. at 3. The Supplemental
Affidavit stated that the certified mail,
return receipt mailing addressed to
Registrant’s last known home address in
Las Vegas was returned with the
notation ‘‘unclaimed.’’ Id. at 2.
According to the Supplemental
Affidavit, the electronic mailings did
not generate any error message that they
were not sent successfully or any
notification that they were
undeliverable. Id. at 3.
I find that the Government’s service of
the Show Cause Order on Registrant was
legally sufficient. According to the
Supreme Court, ‘‘due process does not
require actual notice.’’ 4 Jones v. Flowers,
547 U.S. 220, 225 (2006) (citing
Dusenbery v. United States, 534 U.S.
161, 170 (2002)). Instead, the Court has
repeatedly stated that, ‘‘due process
requires the government to provide
‘notice reasonably calculated, under all
the circumstances, to apprise interested
parties of the pendency of the action
and afford them an opportunity to
present their objections.’ ’’ Jones v.
Flowers, supra, 547 U.S. at 226 (citing
Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)).
Moreover, ‘‘the Due Process Clause does
not require . . . heroic efforts by the
Government’’ to find Registrant.
Dusenbery, supra.
Here, the Government mailed the
Show Cause Order by certified mail and
by regular first-class mail to Registrant’s
addresses of record and last-known
home addresses. The Government also
emailed the Order to Show Cause to the
email addresses which Registrant had
provided to the Government. I find
therefore that the Government’s efforts
were reasonably calculated under all the
circumstances to apprise Registrant of
the Order to Show Cause and to afford
him an opportunity to present his
objections.
On November 4, 2016, the
Government submitted a Request for
Final Agency Action (hereinafter,
4 Nevertheless, I note that only three of the
Government’s ten attempts to provide notice were
clearly ineffective; the other seven may very well
have been effective.
E:\FR\FM\27APN1.SGM
27APN1
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
RFAA) and an evidentiary record to
support its proposed action. On March
21, 2017, it updated its RFAA
representing that ‘‘because Registrant
has not requested a hearing within 30
days of any receipt of the . . . [Order to
Show Cause] and has not otherwise
corresponded or communicated with
DEA regarding the . . . [Order to Show
Cause], including the filing of any
written statement in lieu of a hearing, he
has waived his right to a hearing.’’ Id.
at 4.
Based on the Government’s
representations and my review of the
record, I find that more than 30 days
have now passed since the date on
which Registrant was served with the
Show Cause Order and neither
Registrant, nor anyone purporting to
represent him, has requested a hearing
or submitted a written statement while
waiving his right to a hearing.
Accordingly, I find that Registrant has
waived his right to a hearing and his
right to submit a written statement. 21
CFR 1301.43(d). I therefore issue this
Decision and Order based on the record
submitted by the Government. 21 CFR
1301.43(e).
Findings of Fact
Registrant’s DEA Registrations
Registrant currently holds DEA
practitioner registrations BM9879024
and BM2782692, pursuant to which he
is authorized to dispense controlled
substances in Schedules II through V.
GX 13 and 14. These registrations do not
expire until January 31, 2018. Id.
DEA practitioner registration
BM9879024 is assigned to Registrant at
11445 East 20th Street, Tulsa, OK
74128. GX 14, at 1. DEA practitioner
registration BM2782692 is assigned to
Registrant at ‘‘Accelerated Rehab & Pain
Ctr, 241 N. Buffalo Drive, Bldg. 1, Las
Vegas, NV 89145.’’ GX 13, at 1.
However, from August 11, 2014 until
December 15, 2014, the address
associated with Registrant’s BM2782692
registration was 11445 East 20th Street,
Tulsa, OK 74128. Id. On December 15,
2014, Registrant changed the address
associated with registration number
BM2782692 to 241 N. Buffalo Drive,
Bldg. 1, Las Vegas, NV 89145. Id.
mstockstill on DSK30JT082PROD with NOTICES
The Status of Registrant’s State Licenses
By Order dated June 18, 2015, the
Oklahoma State Board of Osteopathic
Examiners revoked Registrant’s license
number 2965 to practice osteopathic
medicine in the State of Oklahoma.
GX 7.
Effective August 11, 2015, the Nevada
State Board of Osteopathic Medicine
revoked Registrant’s license number 705
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
to practice osteopathic medicine in the
State of Nevada. GX 8, at 4. Also, the
status of Registrant’s Nevada State
Board of Pharmacy license number
CS07559 is ‘‘revoked by other agency.’’
GX 9.5
Arrest of Registrant
On April 17, 2013, Registrant was
arrested as he attempted to pass through
a McCarran International Airport
Transportation Security Administration
checkpoint with an unregistered
firearm. GX 10, at 2–3. Law enforcement
officers found a large quantity of pills in
Registrant’s carry-on bag along with the
firearm. Id. According to the Las Vegas
Metropolitan Police Department Arrest
Report (hereinafter, Arrest Report),
Registrant was ‘‘arrested for possession
of a controlled substance with intent to
sell/distribute schedule three,
possession of a controlled substance
with intent to sell/distribute schedule
four, possession of an unregistered
firearm, and possession of hypodermic
devices.’’ Id. at 7.
According to the Arrest Report,
Registrant possessed controlled
substances with the intent to
redistribute them to individuals for
whom they were not originally
dispensed. Id. at 4–7. The Arrest Report
contained a list of pills seized from
Registrant at the time of his arrest. Id.
at 4–5. Other than stating that the author
of the Arrest Report, ‘‘Detective Shulke
(phonetic), and Drug Enforcement
Administration Special Agent C.
Johnson conducted an inventory of the
pharmaceutical products located in
Moon’s (phonetic) possession,’’ the
Arrest Report did not include factual
support for the officers’ conclusions that
the seized pills were the controlled
substances the Arrest Report stated
them to be. Id. at 4. It did not, for
example, state that the officers
submitted the seized pills for lab testing
or analyzed them using a resource that
identified them based on size, shape,
color, and imprint. Thus, I cannot place
any weight on the statements in the
Arrest Report that the seized pills were,
in fact, controlled substances. The
Government has produced no other
evidence establishing that any of the
5 I take official notice that the online records of
the Oklahoma State Board of Osteopathic
Examiners and the Nevada State Board of
Osteopathic Medicine show Registrant does not
currently possess a license issued by the Oklahoma
State Board of Osteopathic Examiners or the Nevada
State Board of Osteopathic Medicine. Under the
Administrative Procedure Act, an agency ‘‘may take
official notice of facts at any stage in a proceeding—
even in the final decision.’’ United States
Department of Justice, Attorney General’s Manual
on the Administrative Procedure Act 80 (1947)
(Wm. W. Gaunt & Sons, Inc., Reprint 1979).
PO 00000
Frm 00038
Fmt 4703
Sfmt 4703
19387
pills seized from Registrant on the date
he was arrested were controlled
substances.
Further, while the Arrest Report
recounted Registrant ‘‘simply’’ stating
that ‘‘some of his folks that he had
previously treated were simply trying to
destroy their medication, and . . .
[Registrant] was willing to take
possession of those medications again
later to distribute to those that are
indigent and in need,’’ the Arrest Report
never stated that Registrant admitted
possessing controlled substances not
prescribed to himself or intended to
redistribute controlled substances to
individuals for whom they were not
originally dispensed.6 Id. at 6.
Similarly, the record contains scant
evidence regarding ‘‘the
unreadableness/illegibility of some
labels on the prescription bottles and
the absence of any label on other
prescription bottles.’’ GX 4, at 4.
However, as stated above, the Arrest
Report did not provide a basis for the
officers’ conclusions that the seized
pills were controlled substances.
Further, nothing else in the record
established that the seized pills were
controlled substances. Since the
statutory sections cited in the Show
Cause Order regarding these allegations
only apply to controlled substances, and
the record does not contain substantial
evidence that the pills seized from
Registrant at McCarran International
Airport were, in fact, controlled
substances, I cannot place any weight
on the evidence in the record to support
these alleged violations.’’ 7
Investigations of Registrant
After Registrant’s arrest, the
Government undertook a multi-faceted
investigation of Registrant.
According to the affidavit of a DI
assigned to DEA’s Tulsa Resident Office,
on May 2, 2013, she and other
Investigators executed an
Administrative Inspection Warrant at
Registrant’s Oklahoma registered
address. GX 12, at 1. At that time, she
6 In this portion of the Arrest Report, Registrant
did not admit taking possession of and
redistributing controlled substances, only
‘‘medications.’’ Id. at 6. Also according to the Arrest
Report, Registrant ‘‘saw nothing wrong with his
possession of the controlled substances.’’ Id. at 3.
However, this statement is imprecise; it could have
concerned Registrant’s possession of the
hydrocodone tablets the Arrest Report stated were
in a prescription bottle bearing Registrant’s name.
Id. at 4.
7 While substantial evidence regarding these
allegations may exist due to the Oklahoma State
Board of Osteopathic Examiners Order of Probation
with Conditions concerning David Moon, D.O.,
dated December 10, 2014 and effective December
31, 2014, the Order of Probation with Conditions
was not submitted as part of the RFAA.
E:\FR\FM\27APN1.SGM
27APN1
mstockstill on DSK30JT082PROD with NOTICES
19388
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
reviewed all pertinent documents and
controlled substances records that
Registrant was required to keep. Id. She
found that Registrant failed to maintain
a biennial inventory. Id.
According to the Tulsa DI’s affidavit,
she issued administrative subpoenas to
five entities for a complete sales history
of all of Registrant’s controlled
substances purchases for the previous
two years. Id. In comparing the
information received from the five
administrative subpoenas with the
records Registrant provided during the
inspection, she identified 32 invoices
for controlled substances that Registrant
failed to produce during the
administrative inspection of May 2,
2013. Id. at 2.
While the Government submitted
evidence concerning other portions of
its AIW investigation of Registrant, GX
11 and 12, the evidence lacked a
sufficient foundation. The evidence
consisted of a copy of the AIW, a
portion of the affidavit of a DI who
participated in the execution of the
AIW, and ‘‘a complete and accurate
copy of the DEA Computation Chart’’
prepared as part of the DI’s
accountability audit. Id. These materials
did not, however, provide a sufficient
foundation or sufficient detail
concerning the procedure followed
during the audit of Registrant. Thus, I
cannot place any weight on this
evidence.
Further, no portion of these materials
addressed the allegations in the AIW
portion of the Show Cause Order that
Registrant accepted controlled
substances from non-DEA registered
sources and redistributed those illicitly
obtained controlled substances to other
patients. GX 4, at 4. I examined the
entire record for evidence concerning
these two allegations. The Arrest Report
stated that Registrant possessed a ‘‘large
quantity’’ of ‘‘what appeared to be
prescription medication’’ that ‘‘belonged
to various family members and former
patients.’’ GX 10, at 3. As I stated above,
however, the Arrest Report did not
contain factual support that the seized
pills were controlled substances. Thus,
I cannot place any weight on that
evidence in the Arrest Report. For the
same reason, the Arrest Report evidence
cannot support the AIW-related
allegations that Registrant accepted
controlled substances from non-DEA
registered sources and redistributed
those illicitly obtained controlled
substances to other patients. I found no
other evidence in the record that
supports these two AIW-related
allegations.
According to the affidavit of a
Diversion Group Supervisor assigned to
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
the DEA Las Vegas District Office, on
October 30, 2014, she and other
Investigators conducted a Scheduled
Investigation at a SAV–ON Pharmacy in
Las Vegas, Nevada. GX 15, at 1. At that
time, the Investigators reviewed six
randomly selected bundles of
prescriptions and noticed prescriptions
written by Registrant during a period
when he did not have a DEA registration
in the State of Nevada. Id. On November
3, 2014, the Investigators obtained
copies of Registrant’s controlled
substance prescriptions filled at that
SAV–ON Pharmacy in Las Vegas from
August 11, 2014 through October 29,
2014. Id.
I examined each of prescriptions the
Government obtained from the Las
Vegas SAV–ON Pharmacy. Based on my
review of this evidence, from August 11,
2014 through October 29, 2014,
Registrant issued at least 55 controlled
substance prescriptions for drugs
including oxycodone (23), morphine
(17), adderall (six), tapentadol (six),
methadone (two), and hydrocodone
(one) on prescriptions showing
Registrant’s name as well as
‘‘Accelerated Rehabilitation & Pain
Center’’ and its Las Vegas, Nevada
contact information, Registrant’s Nevada
license number, and DEA registration
number BM2782692.
Discussion
Under Section 304 of the Controlled
Substances Act (hereinafter, CSA), ‘‘[a]
registration . . . to . . . dispense a
controlled substance . . . may be . . .
revoked by the Attorney General upon
a finding that the registrant . . . has had
his State license or registration . . .
revoked . . . by competent State
authority and is no longer authorized by
State law to engage in the . . .
dispensing of controlled substances
. . . .’’ 21 U.S.C. 824(a)(3). Section 304
also provides that a registration may be
revoked ‘‘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.’’ Id. § 824(a)(4).
In making the public interest
determination, the CSA requires the
consideration of the following factors:
(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.
PO 00000
Frm 00039
Fmt 4703
Sfmt 4703
(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.
Id. § 823(f)(1)–(5).
‘‘[T]hese factors are . . . considered
in the disjunctive.’’ Robert A. Leslie,
M.D., 68 FR 15227, 15230 (2003). It is
well settled that I ‘‘may rely on any one
or a combination of factors and may give
each factor the weight [I] deem[ ]
appropriate in determining whether’’ to
revoke a registration. Id.; see also
MacKay v. Drug Enforcement Admin.,
664 F.3d 808, 816 (10th Cir. 2011);
Volkman v. DEA, 567 F.3d 215, 222 (6th
Cir. 2009); Hoxie v. DEA, 419 F.3d 477,
482 (6th Cir. 2005). Moreover, while I
am required to consider each of the
factors, I ‘‘need not make explicit
findings as to each one.’’ MacKay,
supra, 664 F.3d at 816 (quoting
Volkman, 567 F.3d at 222); see also
Hoxie, supra, 419 F.3d at 481.8
Under DEA’s regulation, ‘‘[a]t any
hearing for the revocation or suspension
of a registration, the Administration
shall have the burden of proving that
the requirements for such revocation or
suspension pursuant to . . . 21 U.S.C.
[§ ] 824(a) . . . are satisfied.’’ 21 CFR
1301.44(e). The Government retains the
burden of providing substantial
evidence to support the proposed action
even when the registrant does not
request a hearing.
In this case, I conclude that the record
supports two independent grounds for
revoking Registrant’s registrations. First,
Registrant does not possess authority to
dispense controlled substances under
the laws of Oklahoma or Nevada, the
States in which he is registered. 21
U.S.C. 824(a)(3). Second, Registrant
violated multiple controlled substancesrelated regulatory requirements
incumbent on registrants, thereby
rendering his registrations ‘‘inconsistent
with the public interest.’’ Id. § 824(a)(4).
Registrant’s Lack of State Authority
DEA has long held that the possession
of authority to dispense controlled
substances under the laws of the State
in which a practitioner engages in
professional practice is a fundamental
8 ‘‘In short, this is not a contest in which score
is kept; the Agency is not required to mechanically
count up the factors and determine how many favor
the Government and how many favor the registrant.
Rather, it is an inquiry which focuses on protecting
the public interest; what matters is the seriousness
of the registrant’s misconduct.’’ Jayam Krishna-Iyer,
M.D., 74 FR 459, 462 (2009). Accordingly, as the
Tenth Circuit has recognized, findings under a
single factor can support the revocation of a
registration. MacKay, supra, 664 F.3d at 821.
Likewise, findings under a single factor can support
the denial of an application.
E:\FR\FM\27APN1.SGM
27APN1
mstockstill on DSK30JT082PROD with NOTICES
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
condition for obtaining and maintaining
a registration. Frederick Marsh Blanton,
43 FR 27616 (1978) (‘‘State
authorization to dispense or otherwise
handle controlled substances is a
prerequisite to the issuance and
maintenance of a Federal controlled
substances registration’’). See also Rezik
A. Saqer, 81 FR 22122, 22126 (2016)
(‘‘DEA has interpreted the CSA in this
manner for nearly 40 years.’’) and James
Hooper, 76 FR 71371 (2011) (collecting
cases), pet for rev. denied, 481 Fed.
Appx. 826 (4th Cir. 2012).
As DEA has repeatedly held, this rule
derives from multiple provisions of the
CSA. First, in section 802(21), Congress
defined the term ‘‘practitioner’’ to mean
‘‘a physician . . . or other person
licensed, registered or otherwise
permitted, by . . . the jurisdiction in
which he practices . . . to distribute,
dispense, . . . [or] administer . . . a
controlled substance in the course of
professional practice . . . .’’ 21 U.S.C.
802(21). Second, Congress directed that
the Attorney General ‘‘shall register
practitioners . . . if the applicant is
authorized to dispense . . . controlled
substances under the laws of the State
in which he practices.’’ Id. § 823(f).
Third, Congress authorized revocation
‘‘upon a finding that the registrant . . .
has had his State license . . .
suspended [or] revoked . . . by
competent State authority and is no
longer authorized by State law to engage
in the . . . dispensing of controlled
substances.’’ Id. § 824(a)(3).
Here, the Government has provided
substantial evidence establishing that
Registrant no longer possesses
authorization to dispense controlled
substances in Oklahoma and Nevada,
the States in which he is registered. As
found above, on June 18, 2015, the
Oklahoma State Board of Osteopathic
Examiners revoked Registrant’s
osteopathic license, GX 7, and effective
August 11, 2015, the Nevada State
Board of Osteopathic Medicine revoked
his osteopathic license. GX 8. See also
GX 9. Accordingly, I find the
Government has proved by substantial
evidence that Registrant’s authorizations
to prescribe controlled substances in
both Oklahoma and Nevada have been
revoked and I take official notice that
both States’ revocations remain in place
as of the date of this Decision and
Order. I, therefore, find that Registrant
is currently without authority to
dispense controlled substances in
Oklahoma and Nevada, the States in
which he is registered, and he is,
therefore, not entitled to maintain his
DEA registrations. Frederick Marsh
Blanton, supra. Accordingly, I will
order that his two registrations,
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
BM9879024 and BM2782692, be
revoked and that any pending
application for the renewal or
modification of these registrations be
denied. 21 U.S.C. 824(a)(3), id. § 823(f).
Acts Inconsistent With the Public
Interest
Pursuant to section 304(a)(4), the
Attorney General is also authorized to
revoke a registration ‘‘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 this matter, while I have
considered all of the factors, I find the
Government’s evidence as to factors two
and four dispositive.9 I find that the
record taken as a whole provides
substantial evidence that Registrant
violated provisions of the CSA requiring
(1) the holding of a separate registration;
(2) the taking of a biennial inventory;
and (3) the maintenance of ‘‘complete
and accurate’’ records.
Factors Two and Four—The
Registrant’s Experience in Dispensing
Controlled Substances and Compliance
With Applicable Laws Related to
Controlled Substances
The Dispensing Allegations
The CSA requires a ‘‘separate
registration . . . at each principal place
of business or professional practice
where the applicant . . . distributes
. . . or dispenses controlled substances
. . . .’’ 21 U.S.C. 822(e)(1). See also 21
CFR 1301.12(a); Clarification of
Registration Requirements for
Individual Practitioners, 71 FR 69478
(2006); Joe W. Morgan, 78 FR 61961
9 As to factor one, there is no evidence that either
the Oklahoma State Board of Osteopathic
Examiners or the Nevada State Board of Osteopathic
Medicine made a recommendation to DEA; both,
however, revoked Registrant’s licenses to practice
osteopathic medicine.
As to factor three, although the record contains
evidence concerning Registrant’s arrest at McCarran
International Airport, I acknowledge that there is no
evidence that Registrant has been convicted of an
offense under Federal, Oklahoma, or Nevada law
‘‘relating to the manufacture, distribution or
dispensing of controlled substances.’’ 21 U.S.C.
823(f)(3). However, there could be any number of
reasons why a person who has engaged in criminal
misconduct may never have been convicted of an
offense under this factor, let alone have been
prosecuted for one. Dewey C. MacKay, 75 FR 49956,
49973 (2010), pet. for rev. denied, MacKay v. Drug
Enforcement Admin., 664 F.3d 808 (10th Cir. 2011).
The DEA has therefore held that ‘‘the absence of
such a conviction is of considerably less
consequence in the public interest inquiry’’ and is
therefore not dispositive. Id.
The Government did not allege in the Show
Cause Order any misconduct exclusively with
respect to factor five.
PO 00000
Frm 00040
Fmt 4703
Sfmt 4703
19389
(2013). The CSA’s definition of
‘‘dispense’’ explicitly includes the
prescribing of a controlled substance. 21
U.S.C. 802(10).
Based on my review of the evidence
submitted by the Government, the
Registrant issued, from August 11, 2014
through October 29, 2014, at least 55
controlled substance prescriptions on
prescriptions showing Registrant’s name
as well as ‘‘Accelerated Rehabilitation &
Pain Center’’ and its Las Vegas, Nevada
contact information, Registrant’s Nevada
license number, and DEA registration
number BM2782692. Supra. Also during
this time period, according to the
evidence submitted by the Government,
the address associated with DEA
registration BM2782692 was in
Oklahoma. Supra.
The Order to Show Cause alleged that,
by issuing these 55 prescriptions ‘‘in
one state under a DEA registration
issued for another state,’’ Registrant
violated 21 U.S.C. 822(e) and 21 CFR
1301.12(a) and (b)(3). GX 4, at 5. These
legal provisions, however, do not
concern issuing a prescription ‘‘in one
state under a DEA registration issued for
another state.’’ Id. Instead, they require
a separate registration at each principal
place of business or professional
practice where controlled substances are
dispensed.
Under 21 CFR 1306.05(a), controlled
substance prescriptions are to ‘‘bear . . .
the name, address and registration
number of the practitioner,’’ among
other things. Registrant’s address on the
55 prescriptions the Government
submitted is in Nevada. Thus, I
conclude that Registrant maintained a
principal place of business or
professional practice in Nevada from
August 11, 2014 through October 29,
2014 from which he issued at least 55
prescriptions for controlled substances.
During this period, however, Registrant
was not registered with the DEA in
Nevada. Supra. Thus, I find that
Registrant violated the separate
registration requirements of 21 U.S.C.
822(e) and 21 CFR 1301.12(a) and (b)(3).
The Inventory and Recordkeeping
Allegations
The CSA requires ‘‘every registrant
. . . as soon . . . as such registrant first
engages in the . . . dispensing of
controlled substances, and every second
year thereafter, [to] make a complete
and accurate record of all stocks thereof
on hand . . . .’’ 21 U.S.C. 827(a)(1). See
also 21 U.S.C. 842(a)(5) (‘‘unlawful
acts’’ include ‘‘to refuse or negligently
fail to make, keep, or furnish any record,
report, notification, declaration, order or
order form, statement, invoice, or
information required . . .’’). As found
E:\FR\FM\27APN1.SGM
27APN1
19390
Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
above, during the execution of the AIW,
Registrant could not produce a biennial
inventory. Supra. Thus, I find that
Registrant violated the CSA by failing to
maintain a biennial inventory.
The CSA also requires registrants to
maintain, on a current basis, complete
and accurate records of each controlled
substance received or dispensed. See 21
U.S.C. 827(a)(3) and 21 CFR 1304.21(a).
See also 21 U.S.C. 842(a)(5). According
to the DI, during the administrative
inspection of May 2, 2013, Registrant
failed to produce 32 invoices for
controlled substances he had purchased.
Supra. Thus, I find that Registrant
violated the CSA by failing to comply
with its recordkeeping requirements
concerning controlled substances.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a) and 21 U.S.C. 823(f),
as well as 28 CFR 0.100(b), I order that
DEA Certificates of Registration
BM9879024 and BM2782692 issued to
David D. Moon, D.O., be, and they
hereby are, revoked. I further order that
any pending application of David D.
Moon, D.O., to renew or modify these
registrations, as well as any other
pending application, be, and it hereby
is, denied. This order is effective May
30, 2017.
Dated: April 17, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–08452 Filed 4–26–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
National Institute of Justice
[OMB Number 1121–NEW]
Agency Information Collection
Activities: Proposed New Information
Collection Activity; Comment Request,
Proposed Study Entitled ‘‘Tribal Youth
Victimization Methods Study’’
National Institute of Justice,
U.S. Department of Justice.
ACTION: 60-day notice.
AGENCY:
The Department of Justice
(DOJ), Office of Justice Programs,
National Institute of Justice, will be
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
DATES: Comments are encouraged and
will be accepted for 60 days until June
26, 2017.
mstockstill on DSK30JT082PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
17:07 Apr 26, 2017
Jkt 241001
If
you have additional comments
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Christine Crossland, National Institute
of Justice, Office of Research &
Evaluation, 810 Seventh Street NW.,
Washington, DC 20531 (overnight
20001) or via email at
Christine.Crossland@usdoj.gov.
SUPPLEMENTARY INFORMATION: This
process is conducted in accordance with
5 CFR 1320.10. Written comments and
suggestions from the public and affected
agencies concerning the proposed
collection of information are
encouraged. Your comments should
address one or more of the following
four points:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the National Institute of
Justice, including whether the
information will have practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Evaluate whether, and if so how, the
quality, utility, and clarity of the
information to be collected can be
enhanced; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
FOR FURTHER INFORMATION CONTACT:
Overview of This Information
Collection
1. Type of Information Collection:
Survey development; Cognitive testing;
Pilot testing of survey.
2. The Title of the Form/Collection:
Tribal Youth Victimization Methods
Study.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
The applicable component within the
U.S. Department of Justice is the
National Institute of Justice in the Office
of Justice Programs.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: There has never been a
national study of tribal youth regarding
their victimization experiences that
PO 00000
Frm 00041
Fmt 4703
Sfmt 4703
provides reliable, valid estimates of the
scope of the problem. As a result, the
incidence, prevalence, and nature of
victimization experienced by American
Indian and Alaska Native youth living
in tribal communities is unknown. As a
result, NIJ, in partnership with the
Office of Juvenile Justice and
Delinquency Prevention and the Office
for Victims of Crime has funded this
methods study that involves developing
and testing a survey instrument, testing
different modes of administration that
can effectively assess exposure to
violence and victimization, and
determining the feasibility of using
these procedures in tribal communities
and settings.
The sample includes tribal youth 12
to 20 years of age. Cognitive testing will
be conducted in four tribal settings with
between 12–15 youth at each site. The
pilot test involves the use of at least two
but no more than three different modes
of administration modes [e.g., face-toface interviews, self-administered
questionnaire in paper and pencil
format, audio computer assisted selfadministered interviews (required),
computer assisted telephone
interviews]. The target sample is 375
completed interviews from three tribal
settings (one in Alaska and two in the
lower 48.)
Among the key outcomes that will be
examined are the response and refusal
rates, missing data, interview length,
willingness to disclose sensitive
information, respondent comfort, cost,
ability to provide assistance to
respondents, and the ease and adequacy
of the human subjects’ protocol.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated range of burden
for respondents participating in the
cognitive interview is 90 minutes.
Approximately 48 youth will be
recruited to complete a cognitive
interview. The estimated range of
burden for respondents completing the
survey in the pilot phase is expected to
be 60 minutes for completion. The
following factors were considered when
creating the burden estimate: the
estimated total number of sites (i.e., 4
cognitive sites and 3 pilot sites),
respondents (i.e., 48 cognitive
interviews and 375 pilot interviews for
a total of 423 respondents), and parental
and youth informed consent procedures
for each phase.
6. An estimate of the total public
burden (in hours) associated with the
collection: The estimated public burden
associated with this collection is 447
hours. It is estimated that each of the
cognitive interviews will take 90
E:\FR\FM\27APN1.SGM
27APN1
Agencies
[Federal Register Volume 82, Number 80 (Thursday, April 27, 2017)]
[Notices]
[Pages 19385-19390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08452]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
David D. Moon, D.O.; Decision and Order
On December 8, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to David D. Moon, D.O.
(hereinafter, Registrant), the holder of Certificates of Registration
Nos. M9879024, in Tulsa, Oklahoma, and BM2782692, in Las Vegas, Nevada,
authorizing him to prescribe controlled substances in Schedules II
through V.\1\ GX 4. The Show Cause Order proposed the revocation of his
Certificates of Registration and the denial of any pending application
for renewal or modification of Registrant's registrations on the
grounds that: (1) Registrant does not have authority to dispense
controlled substances in the States in which he is registered and (2)
he has committed acts which render his registrations ``inconsistent
with the public interest.'' \2\ Id. at 1 (citing 21 U.S.C. 824(a)(3)
and (4)).
---------------------------------------------------------------------------
\1\ The Registrant is also known in the Government's records as
``David DeWayne Moon.'' Government Exhibit (hereinafter, GX) 13 and
14.
\2\ The Show Cause Order also proposed the denial of any
applications by Registrant for any other DEA registrations.
---------------------------------------------------------------------------
As the jurisdictional basis for the proceeding, the Show Cause
Order alleged that both of Registrant's registrations expire on January
31, 2018. Id.
As the substantive grounds for the proceeding, the Show Cause Order
alleged that on June 18, 2015, the Oklahoma State Board of Osteopathic
Examiners revoked his Oklahoma osteopathic license, and that on August
11, 2015, the Nevada State Board of Osteopathic Medicine revoked his
Nevada osteopathic license, which resulted in the status of his Nevada
State Board of Pharmacy license becoming ``inactive.'' Id. at 2. Thus,
due to the actions of the two Boards, the Registrant is without
authority to handle controlled substances in the States in which he is
registered with DEA.
The Show Cause Order alleged that on April 17, 2013, Registrant was
arrested at McCarran International Airport while proceeding through a
Transportation Security Administration checkpoint. Id. It further
alleged that law enforcement officers found in his carry-on baggage
drugs in pill bottles labeled for other people, drugs in unlabeled pill
bottles, and loose drugs. Id. Based on the airport
[[Page 19386]]
arrest, the Show Cause Order alleged that the Registrant possessed
controlled substances with the intent to redistribute them to
individuals for whom they were not originally dispensed, in violation
of 21 U.S.C. 829(a) and (b), 21 U.S.C. 841(a)(1), 21 U.S.C. 842(a), 21
U.S.C. 843(a)(3), 21 U.S.C. 844(a), 21 U.S.C. 844a(a), and Nev. Rev.
Stat. Sec. Sec. 453-337-.338. Id. at 4. The Show Cause Order also
alleged, based on the airport arrest, that Registrant possessed
prescription bottles without a label or with an unreadable or illegible
label in violation of 21 U.S.C. 825(a) and 21 U.S.C. 842(a). Id.
Based on a subsequent Government investigation and the execution of
an Administrative Inspection Warrant (hereinafter, AIW), the Show Cause
Order alleged that Registrant accepted controlled substances from non-
DEA registered sources (patients) and redistributed those illicitly
obtained controlled substances to other patients in violation of 21
U.S.C. 844(a) and 21 U.S.C. 841(a)(1), respectively. Id. Based on the
execution of the AIW, the Show Cause Order also alleged that Response
could not produce 32 controlled substance invoices in violation of 21
U.S.C. 842(a)(5) and 21 CFR 1304.21(a). Id. The Show Cause Order also
alleged, based on the AIW, that Registrant failed to take a biennial
inventory of controlled substances stored at one of his registered
locations in violation of 21 U.S.C. 827(a) and (b) and 21 CFR
1304.11(c). Id. Also pursuant to the AIW, the Show Cause Order alleged
that Registrant had significant shortages of controlled substances at
his registered address in Tulsa, Oklahoma and was missing purchase
records and that Registrant failed to maintain accurate and complete
records and to account for controlled substances in violation of 21
U.S.C. 827(a)(3), 21 U.S.C. 842(a)(5), 21 CFR 1304.03, 21 CFR 1304.04,
and 21 CFR 1304.21. Id. at 4-5.
Based on another Government investigation, the Show Cause Order
alleged that Registrant issued at least 55 controlled substance
prescriptions in Nevada under a registration which listed his
registered address in Oklahoma in violation of 21 U.S.C. 822(e) and 21
CFR 1301.12(a) and (b)(3). Id. at 5.
The Show Cause Order also notified Registrant of his right to
request a hearing on the allegations or to submit a written statement
while waiving his right to a hearing, the procedure for electing each
option, and the consequence for failing to elect either option. Id. at
5-6 (citing 21 CFR 1301.43).
Adequacy of Service and Waiver
According to the ``Affidavit of Service of Order to Show Cause''
submitted by a Diversion Investigator (hereinafter, DI) assigned to the
DEA Tulsa Resident Office, on January 7, 2016, ten separate copies of
the Show Cause Order were sent to Registrant by certified mail, first-
class mail, and electronic mail to his registered addresses, as well as
his last-known home and electronic mail addresses. GX 5. Specifically,
the DI stated that the Government served the Show Cause Order on
Registrant (1) by certified mail, return receipt requested addressed to
Registrant's registered address at 11445 East 20th Street, Tulsa,
Oklahoma 74128; (2) by regular first-class U.S. mail addressed to
Registrant's registered address at 11445 East 20th Street, Tulsa,
Oklahoma 74128; (3) by certified mail, return receipt requested
addressed to Registrant's registered address at 241 N. Buffalo Drive,
Bldg. 1, Las Vegas, Nevada 89145; (4) by regular first-class U.S. mail
addressed to Registrant's registered address at 241 N. Buffalo Drive,
Bldg. 1, Las Vegas, Nevada 89145; (5) by certified mail, return receipt
requested addressed to Registrant's last known home address in Oklahoma
at 2136 East 25th Street, Tulsa 74114; (6) by regular first-class U.S.
mail addressed to Registrant's last known home address in Oklahoma at
2136 East 25th Street, Tulsa 74114; (7) by certified mail, return
receipt requested addressed to Registrant's last known home address in
Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (8) by regular first-
class U.S. mail addressed to Registrant's last known home address in
Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (9) by electronic
mail at the email address that appears in DEA's registration database
for Registrant's Tulsa registered location; and (10) by electronic mail
at the email address that appears in DEA's registration database for
Registrant's Las Vegas registered location.\3\ Id. at 1-2.
---------------------------------------------------------------------------
\3\ In Mikhayl Soliman, 81 FR 47826 (2016), I acknowledged that
service by email has its limitations. See Rio Properties, Inc. v.
Rio Int'l Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002). Here,
the Government employed multiple means to serve Registrant and, as
in Soliman, used the email address Registrant had previously
provided it and did not receive either an error or an undeliverable
message.
---------------------------------------------------------------------------
According to the ``Supplemental Affidavit of Service of Order to
Show Cause'' (hereinafter, Supplemental Affidavit) submitted by the
Tulsa Resident Office DI, the certified mail, return receipt and
regular first-class mailings addressed to Registrant's registered
address in Tulsa, Oklahoma were returned with the notation ``return to
sender, vacant.'' GX 6, at 1. The Supplemental Affidavit stated that
the mailings addressed to Registrant's registered address in Las Vegas
and his last known home address in Oklahoma were not returned and the
Government did not receive the certified return receipt green cards for
those mailings sent certified mail, return receipt. Id. at 2. The
Supplemental Affidavit stated that the regular first-class mailing
addressed to Registrant's last known home address in Las Vegas was not
returned. Id. at 3. The Supplemental Affidavit stated that the
certified mail, return receipt mailing addressed to Registrant's last
known home address in Las Vegas was returned with the notation
``unclaimed.'' Id. at 2. According to the Supplemental Affidavit, the
electronic mailings did not generate any error message that they were
not sent successfully or any notification that they were undeliverable.
Id. at 3.
I find that the Government's service of the Show Cause Order on
Registrant was legally sufficient. According to the Supreme Court,
``due process does not require actual notice.'' \4\ Jones v. Flowers,
547 U.S. 220, 225 (2006) (citing Dusenbery v. United States, 534 U.S.
161, 170 (2002)). Instead, the Court has repeatedly stated that, ``due
process requires the government to provide `notice reasonably
calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present
their objections.' '' Jones v. Flowers, supra, 547 U.S. at 226 (citing
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
Moreover, ``the Due Process Clause does not require . . . heroic
efforts by the Government'' to find Registrant. Dusenbery, supra.
---------------------------------------------------------------------------
\4\ Nevertheless, I note that only three of the Government's ten
attempts to provide notice were clearly ineffective; the other seven
may very well have been effective.
---------------------------------------------------------------------------
Here, the Government mailed the Show Cause Order by certified mail
and by regular first-class mail to Registrant's addresses of record and
last-known home addresses. The Government also emailed the Order to
Show Cause to the email addresses which Registrant had provided to the
Government. I find therefore that the Government's efforts were
reasonably calculated under all the circumstances to apprise Registrant
of the Order to Show Cause and to afford him an opportunity to present
his objections.
On November 4, 2016, the Government submitted a Request for Final
Agency Action (hereinafter,
[[Page 19387]]
RFAA) and an evidentiary record to support its proposed action. On
March 21, 2017, it updated its RFAA representing that ``because
Registrant has not requested a hearing within 30 days of any receipt of
the . . . [Order to Show Cause] and has not otherwise corresponded or
communicated with DEA regarding the . . . [Order to Show Cause],
including the filing of any written statement in lieu of a hearing, he
has waived his right to a hearing.'' Id. at 4.
Based on the Government's representations and my review of the
record, I find that more than 30 days have now passed since the date on
which Registrant was served with the Show Cause Order and neither
Registrant, nor anyone purporting to represent him, has requested a
hearing or submitted a written statement while waiving his right to a
hearing. Accordingly, I find that Registrant has waived his right to a
hearing and his right to submit a written statement. 21 CFR 1301.43(d).
I therefore issue this Decision and Order based on the record submitted
by the Government. 21 CFR 1301.43(e).
Findings of Fact
Registrant's DEA Registrations
Registrant currently holds DEA practitioner registrations BM9879024
and BM2782692, pursuant to which he is authorized to dispense
controlled substances in Schedules II through V. GX 13 and 14. These
registrations do not expire until January 31, 2018. Id.
DEA practitioner registration BM9879024 is assigned to Registrant
at 11445 East 20th Street, Tulsa, OK 74128. GX 14, at 1. DEA
practitioner registration BM2782692 is assigned to Registrant at
``Accelerated Rehab & Pain Ctr, 241 N. Buffalo Drive, Bldg. 1, Las
Vegas, NV 89145.'' GX 13, at 1. However, from August 11, 2014 until
December 15, 2014, the address associated with Registrant's BM2782692
registration was 11445 East 20th Street, Tulsa, OK 74128. Id. On
December 15, 2014, Registrant changed the address associated with
registration number BM2782692 to 241 N. Buffalo Drive, Bldg. 1, Las
Vegas, NV 89145. Id.
The Status of Registrant's State Licenses
By Order dated June 18, 2015, the Oklahoma State Board of
Osteopathic Examiners revoked Registrant's license number 2965 to
practice osteopathic medicine in the State of Oklahoma. GX 7.
Effective August 11, 2015, the Nevada State Board of Osteopathic
Medicine revoked Registrant's license number 705 to practice
osteopathic medicine in the State of Nevada. GX 8, at 4. Also, the
status of Registrant's Nevada State Board of Pharmacy license number
CS07559 is ``revoked by other agency.'' GX 9.\5\
---------------------------------------------------------------------------
\5\ I take official notice that the online records of the
Oklahoma State Board of Osteopathic Examiners and the Nevada State
Board of Osteopathic Medicine show Registrant does not currently
possess a license issued by the Oklahoma State Board of Osteopathic
Examiners or the Nevada State Board of Osteopathic Medicine. Under
the Administrative Procedure Act, an agency ``may take official
notice of facts at any stage in a proceeding--even in the final
decision.'' United States Department of Justice, Attorney General's
Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt &
Sons, Inc., Reprint 1979).
---------------------------------------------------------------------------
Arrest of Registrant
On April 17, 2013, Registrant was arrested as he attempted to pass
through a McCarran International Airport Transportation Security
Administration checkpoint with an unregistered firearm. GX 10, at 2-3.
Law enforcement officers found a large quantity of pills in
Registrant's carry-on bag along with the firearm. Id. According to the
Las Vegas Metropolitan Police Department Arrest Report (hereinafter,
Arrest Report), Registrant was ``arrested for possession of a
controlled substance with intent to sell/distribute schedule three,
possession of a controlled substance with intent to sell/distribute
schedule four, possession of an unregistered firearm, and possession of
hypodermic devices.'' Id. at 7.
According to the Arrest Report, Registrant possessed controlled
substances with the intent to redistribute them to individuals for whom
they were not originally dispensed. Id. at 4-7. The Arrest Report
contained a list of pills seized from Registrant at the time of his
arrest. Id. at 4-5. Other than stating that the author of the Arrest
Report, ``Detective Shulke (phonetic), and Drug Enforcement
Administration Special Agent C. Johnson conducted an inventory of the
pharmaceutical products located in Moon's (phonetic) possession,'' the
Arrest Report did not include factual support for the officers'
conclusions that the seized pills were the controlled substances the
Arrest Report stated them to be. Id. at 4. It did not, for example,
state that the officers submitted the seized pills for lab testing or
analyzed them using a resource that identified them based on size,
shape, color, and imprint. Thus, I cannot place any weight on the
statements in the Arrest Report that the seized pills were, in fact,
controlled substances. The Government has produced no other evidence
establishing that any of the pills seized from Registrant on the date
he was arrested were controlled substances.
Further, while the Arrest Report recounted Registrant ``simply''
stating that ``some of his folks that he had previously treated were
simply trying to destroy their medication, and . . . [Registrant] was
willing to take possession of those medications again later to
distribute to those that are indigent and in need,'' the Arrest Report
never stated that Registrant admitted possessing controlled substances
not prescribed to himself or intended to redistribute controlled
substances to individuals for whom they were not originally
dispensed.\6\ Id. at 6.
---------------------------------------------------------------------------
\6\ In this portion of the Arrest Report, Registrant did not
admit taking possession of and redistributing controlled substances,
only ``medications.'' Id. at 6. Also according to the Arrest Report,
Registrant ``saw nothing wrong with his possession of the controlled
substances.'' Id. at 3. However, this statement is imprecise; it
could have concerned Registrant's possession of the hydrocodone
tablets the Arrest Report stated were in a prescription bottle
bearing Registrant's name. Id. at 4.
---------------------------------------------------------------------------
Similarly, the record contains scant evidence regarding ``the
unreadableness/illegibility of some labels on the prescription bottles
and the absence of any label on other prescription bottles.'' GX 4, at
4. However, as stated above, the Arrest Report did not provide a basis
for the officers' conclusions that the seized pills were controlled
substances. Further, nothing else in the record established that the
seized pills were controlled substances. Since the statutory sections
cited in the Show Cause Order regarding these allegations only apply to
controlled substances, and the record does not contain substantial
evidence that the pills seized from Registrant at McCarran
International Airport were, in fact, controlled substances, I cannot
place any weight on the evidence in the record to support these alleged
violations.'' \7\
---------------------------------------------------------------------------
\7\ While substantial evidence regarding these allegations may
exist due to the Oklahoma State Board of Osteopathic Examiners Order
of Probation with Conditions concerning David Moon, D.O., dated
December 10, 2014 and effective December 31, 2014, the Order of
Probation with Conditions was not submitted as part of the RFAA.
---------------------------------------------------------------------------
Investigations of Registrant
After Registrant's arrest, the Government undertook a multi-faceted
investigation of Registrant.
According to the affidavit of a DI assigned to DEA's Tulsa Resident
Office, on May 2, 2013, she and other Investigators executed an
Administrative Inspection Warrant at Registrant's Oklahoma registered
address. GX 12, at 1. At that time, she
[[Page 19388]]
reviewed all pertinent documents and controlled substances records that
Registrant was required to keep. Id. She found that Registrant failed
to maintain a biennial inventory. Id.
According to the Tulsa DI's affidavit, she issued administrative
subpoenas to five entities for a complete sales history of all of
Registrant's controlled substances purchases for the previous two
years. Id. In comparing the information received from the five
administrative subpoenas with the records Registrant provided during
the inspection, she identified 32 invoices for controlled substances
that Registrant failed to produce during the administrative inspection
of May 2, 2013. Id. at 2.
While the Government submitted evidence concerning other portions
of its AIW investigation of Registrant, GX 11 and 12, the evidence
lacked a sufficient foundation. The evidence consisted of a copy of the
AIW, a portion of the affidavit of a DI who participated in the
execution of the AIW, and ``a complete and accurate copy of the DEA
Computation Chart'' prepared as part of the DI's accountability audit.
Id. These materials did not, however, provide a sufficient foundation
or sufficient detail concerning the procedure followed during the audit
of Registrant. Thus, I cannot place any weight on this evidence.
Further, no portion of these materials addressed the allegations in
the AIW portion of the Show Cause Order that Registrant accepted
controlled substances from non-DEA registered sources and redistributed
those illicitly obtained controlled substances to other patients. GX 4,
at 4. I examined the entire record for evidence concerning these two
allegations. The Arrest Report stated that Registrant possessed a
``large quantity'' of ``what appeared to be prescription medication''
that ``belonged to various family members and former patients.'' GX 10,
at 3. As I stated above, however, the Arrest Report did not contain
factual support that the seized pills were controlled substances. Thus,
I cannot place any weight on that evidence in the Arrest Report. For
the same reason, the Arrest Report evidence cannot support the AIW-
related allegations that Registrant accepted controlled substances from
non-DEA registered sources and redistributed those illicitly obtained
controlled substances to other patients. I found no other evidence in
the record that supports these two AIW-related allegations.
According to the affidavit of a Diversion Group Supervisor assigned
to the DEA Las Vegas District Office, on October 30, 2014, she and
other Investigators conducted a Scheduled Investigation at a SAV-ON
Pharmacy in Las Vegas, Nevada. GX 15, at 1. At that time, the
Investigators reviewed six randomly selected bundles of prescriptions
and noticed prescriptions written by Registrant during a period when he
did not have a DEA registration in the State of Nevada. Id. On November
3, 2014, the Investigators obtained copies of Registrant's controlled
substance prescriptions filled at that SAV-ON Pharmacy in Las Vegas
from August 11, 2014 through October 29, 2014. Id.
I examined each of prescriptions the Government obtained from the
Las Vegas SAV-ON Pharmacy. Based on my review of this evidence, from
August 11, 2014 through October 29, 2014, Registrant issued at least 55
controlled substance prescriptions for drugs including oxycodone (23),
morphine (17), adderall (six), tapentadol (six), methadone (two), and
hydrocodone (one) on prescriptions showing Registrant's name as well as
``Accelerated Rehabilitation & Pain Center'' and its Las Vegas, Nevada
contact information, Registrant's Nevada license number, and DEA
registration number BM2782692.
Discussion
Under Section 304 of the Controlled Substances Act (hereinafter,
CSA), ``[a] registration . . . to . . . dispense a controlled substance
. . . may be . . . revoked by the Attorney General upon a finding that
the registrant . . . has had his State license or registration . . .
revoked . . . by competent State authority and is no longer authorized
by State law to engage in the . . . dispensing of controlled substances
. . . .'' 21 U.S.C. 824(a)(3). Section 304 also provides that a
registration may be revoked ``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.'' Id. Sec. 824(a)(4).
In making the public interest determination, the CSA requires the
consideration of the following factors:
(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 and
safety.
Id. Sec. 823(f)(1)-(5).
``[T]hese factors are . . . considered in the disjunctive.'' Robert
A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that I
``may rely on any one or a combination of factors and may give each
factor the weight [I] deem[ ] appropriate in determining whether'' to
revoke a registration. Id.; see also MacKay v. Drug Enforcement Admin.,
664 F.3d 808, 816 (10th Cir. 2011); Volkman v. DEA, 567 F.3d 215, 222
(6th Cir. 2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005).
Moreover, while I am required to consider each of the factors, I ``need
not make explicit findings as to each one.'' MacKay, supra, 664 F.3d at
816 (quoting Volkman, 567 F.3d at 222); see also Hoxie, supra, 419 F.3d
at 481.\8\
---------------------------------------------------------------------------
\8\ ``In short, this is not a contest in which score is kept;
the Agency is not required to mechanically count up the factors and
determine how many favor the Government and how many favor the
registrant. Rather, it is an inquiry which focuses on protecting the
public interest; what matters is the seriousness of the registrant's
misconduct.'' Jayam Krishna-Iyer, M.D., 74 FR 459, 462 (2009).
Accordingly, as the Tenth Circuit has recognized, findings under a
single factor can support the revocation of a registration. MacKay,
supra, 664 F.3d at 821. Likewise, findings under a single factor can
support the denial of an application.
---------------------------------------------------------------------------
Under DEA's regulation, ``[a]t any hearing for the revocation or
suspension of a registration, the Administration shall have the burden
of proving that the requirements for such revocation or suspension
pursuant to . . . 21 U.S.C. [Sec. ] 824(a) . . . are satisfied.'' 21
CFR 1301.44(e). The Government retains the burden of providing
substantial evidence to support the proposed action even when the
registrant does not request a hearing.
In this case, I conclude that the record supports two independent
grounds for revoking Registrant's registrations. First, Registrant does
not possess authority to dispense controlled substances under the laws
of Oklahoma or Nevada, the States in which he is registered. 21 U.S.C.
824(a)(3). Second, Registrant violated multiple controlled substances-
related regulatory requirements incumbent on registrants, thereby
rendering his registrations ``inconsistent with the public interest.''
Id. Sec. 824(a)(4).
Registrant's Lack of State Authority
DEA has long held that the possession of authority to dispense
controlled substances under the laws of the State in which a
practitioner engages in professional practice is a fundamental
[[Page 19389]]
condition for obtaining and maintaining a registration. Frederick Marsh
Blanton, 43 FR 27616 (1978) (``State authorization to dispense or
otherwise handle controlled substances is a prerequisite to the
issuance and maintenance of a Federal controlled substances
registration''). See also Rezik A. Saqer, 81 FR 22122, 22126 (2016)
(``DEA has interpreted the CSA in this manner for nearly 40 years.'')
and James Hooper, 76 FR 71371 (2011) (collecting cases), pet for rev.
denied, 481 Fed. Appx. 826 (4th Cir. 2012).
As DEA has repeatedly held, this rule derives from multiple
provisions of the CSA. First, in section 802(21), Congress defined the
term ``practitioner'' to mean ``a physician . . . or other person
licensed, registered or otherwise permitted, by . . . the jurisdiction
in which he practices . . . to distribute, dispense, . . . [or]
administer . . . a controlled substance in the course of professional
practice . . . .'' 21 U.S.C. 802(21). Second, Congress directed that
the Attorney General ``shall register practitioners . . . if the
applicant is authorized to dispense . . . controlled substances under
the laws of the State in which he practices.'' Id. Sec. 823(f). Third,
Congress authorized revocation ``upon a finding that the registrant . .
. has had his State license . . . suspended [or] revoked . . . by
competent State authority and is no longer authorized by State law to
engage in the . . . dispensing of controlled substances.'' Id. Sec.
824(a)(3).
Here, the Government has provided substantial evidence establishing
that Registrant no longer possesses authorization to dispense
controlled substances in Oklahoma and Nevada, the States in which he is
registered. As found above, on June 18, 2015, the Oklahoma State Board
of Osteopathic Examiners revoked Registrant's osteopathic license, GX
7, and effective August 11, 2015, the Nevada State Board of Osteopathic
Medicine revoked his osteopathic license. GX 8. See also GX 9.
Accordingly, I find the Government has proved by substantial evidence
that Registrant's authorizations to prescribe controlled substances in
both Oklahoma and Nevada have been revoked and I take official notice
that both States' revocations remain in place as of the date of this
Decision and Order. I, therefore, find that Registrant is currently
without authority to dispense controlled substances in Oklahoma and
Nevada, the States in which he is registered, and he is, therefore, not
entitled to maintain his DEA registrations. Frederick Marsh Blanton,
supra. Accordingly, I will order that his two registrations, BM9879024
and BM2782692, be revoked and that any pending application for the
renewal or modification of these registrations be denied. 21 U.S.C.
824(a)(3), id. Sec. 823(f).
Acts Inconsistent With the Public Interest
Pursuant to section 304(a)(4), the Attorney General is also
authorized to revoke a registration ``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 this matter, while I have considered all of the factors, I find
the Government's evidence as to factors two and four dispositive.\9\ I
find that the record taken as a whole provides substantial evidence
that Registrant violated provisions of the CSA requiring (1) the
holding of a separate registration; (2) the taking of a biennial
inventory; and (3) the maintenance of ``complete and accurate''
records.
---------------------------------------------------------------------------
\9\ As to factor one, there is no evidence that either the
Oklahoma State Board of Osteopathic Examiners or the Nevada State
Board of Osteopathic Medicine made a recommendation to DEA; both,
however, revoked Registrant's licenses to practice osteopathic
medicine.
As to factor three, although the record contains evidence
concerning Registrant's arrest at McCarran International Airport, I
acknowledge that there is no evidence that Registrant has been
convicted of an offense under Federal, Oklahoma, or Nevada law
``relating to the manufacture, distribution or dispensing of
controlled substances.'' 21 U.S.C. 823(f)(3). However, there could
be any number of reasons why a person who has engaged in criminal
misconduct may never have been convicted of an offense under this
factor, let alone have been prosecuted for one. Dewey C. MacKay, 75
FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. Drug
Enforcement Admin., 664 F.3d 808 (10th Cir. 2011). The DEA has
therefore held that ``the absence of such a conviction is of
considerably less consequence in the public interest inquiry'' and
is therefore not dispositive. Id.
The Government did not allege in the Show Cause Order any
misconduct exclusively with respect to factor five.
---------------------------------------------------------------------------
Factors Two and Four--The Registrant's Experience in Dispensing
Controlled Substances and Compliance With Applicable Laws Related to
Controlled Substances
The Dispensing Allegations
The CSA requires a ``separate registration . . . at each principal
place of business or professional practice where the applicant . . .
distributes . . . or dispenses controlled substances . . . .'' 21
U.S.C. 822(e)(1). See also 21 CFR 1301.12(a); Clarification of
Registration Requirements for Individual Practitioners, 71 FR 69478
(2006); Joe W. Morgan, 78 FR 61961 (2013). The CSA's definition of
``dispense'' explicitly includes the prescribing of a controlled
substance. 21 U.S.C. 802(10).
Based on my review of the evidence submitted by the Government, the
Registrant issued, from August 11, 2014 through October 29, 2014, at
least 55 controlled substance prescriptions on prescriptions showing
Registrant's name as well as ``Accelerated Rehabilitation & Pain
Center'' and its Las Vegas, Nevada contact information, Registrant's
Nevada license number, and DEA registration number BM2782692. Supra.
Also during this time period, according to the evidence submitted by
the Government, the address associated with DEA registration BM2782692
was in Oklahoma. Supra.
The Order to Show Cause alleged that, by issuing these 55
prescriptions ``in one state under a DEA registration issued for
another state,'' Registrant violated 21 U.S.C. 822(e) and 21 CFR
1301.12(a) and (b)(3). GX 4, at 5. These legal provisions, however, do
not concern issuing a prescription ``in one state under a DEA
registration issued for another state.'' Id. Instead, they require a
separate registration at each principal place of business or
professional practice where controlled substances are dispensed.
Under 21 CFR 1306.05(a), controlled substance prescriptions are to
``bear . . . the name, address and registration number of the
practitioner,'' among other things. Registrant's address on the 55
prescriptions the Government submitted is in Nevada. Thus, I conclude
that Registrant maintained a principal place of business or
professional practice in Nevada from August 11, 2014 through October
29, 2014 from which he issued at least 55 prescriptions for controlled
substances. During this period, however, Registrant was not registered
with the DEA in Nevada. Supra. Thus, I find that Registrant violated
the separate registration requirements of 21 U.S.C. 822(e) and 21 CFR
1301.12(a) and (b)(3).
The Inventory and Recordkeeping Allegations
The CSA requires ``every registrant . . . as soon . . . as such
registrant first engages in the . . . dispensing of controlled
substances, and every second year thereafter, [to] make a complete and
accurate record of all stocks thereof on hand . . . .'' 21 U.S.C.
827(a)(1). See also 21 U.S.C. 842(a)(5) (``unlawful acts'' include ``to
refuse or negligently fail to make, keep, or furnish any record,
report, notification, declaration, order or order form, statement,
invoice, or information required . . .''). As found
[[Page 19390]]
above, during the execution of the AIW, Registrant could not produce a
biennial inventory. Supra. Thus, I find that Registrant violated the
CSA by failing to maintain a biennial inventory.
The CSA also requires registrants to maintain, on a current basis,
complete and accurate records of each controlled substance received or
dispensed. See 21 U.S.C. 827(a)(3) and 21 CFR 1304.21(a). See also 21
U.S.C. 842(a)(5). According to the DI, during the administrative
inspection of May 2, 2013, Registrant failed to produce 32 invoices for
controlled substances he had purchased. Supra. Thus, I find that
Registrant violated the CSA by failing to comply with its recordkeeping
requirements concerning controlled substances.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 21
U.S.C. 823(f), as well as 28 CFR 0.100(b), I order that DEA
Certificates of Registration BM9879024 and BM2782692 issued to David D.
Moon, D.O., be, and they hereby are, revoked. I further order that any
pending application of David D. Moon, D.O., to renew or modify these
registrations, as well as any other pending application, be, and it
hereby is, denied. This order is effective May 30, 2017.
Dated: April 17, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-08452 Filed 4-26-17; 8:45 am]
BILLING CODE 4410-09-P