Michael F. Myers, M.D.; Revocation of Registration, 36484-36487 [E7-12771]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 72, Number 127 (Tuesday, July 3, 2007)]
[Notices]
[Pages 36484-36487]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-12771]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michael F. Myers, M.D.; Revocation of Registration

    On January 10, 2007, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration to Michael F. Myers, M.D. (Respondent) of 
Woodruff, South Carolina. The Order to Show Cause proposed the 
revocation of Respondent's DEA Certificate of Registration, BM5526009, 
as a practitioner, on the ground that Respondent's continued 
registration would be inconsistent with the public interest. Show Cause 
Order at 1 (citing 21 U.S.C. 824(a)(4)). The Immediate Suspension was 
imposed based on my preliminary finding that Respondent had ``diverted 
large quantities of controlled substances,'' and that there was a 
``substantial likelihood that [he] would continue to divert controlled 
substances to drug abusers.'' Id. at 1-2. I therefore concluded that 
Respondent's ``continued registration during the pendency of these 
proceedings would constitute an imminent danger to the public health 
and safety.'' Id.
    The Show Cause Order alleged that Respondent ``frequently grew 
marijuana in [his] residence,'' that he ``regularly purchased large 
quantities of marijuana,'' that ``he smoked marijuana throughout the 
day on a daily basis,'' and that he ``regularly distributed marijuana 
from [his] residence.'' Id. at 2. The Show Cause Order further alleged 
that Respondent ``regularly exchanged controlled substance 
prescriptions for marijuana and other prescription controlled 
substances.'' Id. The Show Cause Order also alleged that Respondent 
``routinely sold controlled substance prescriptions and large 
quantities of marijuana to known drug peddlers.'' Id.
    More specifically, the Show Cause Order alleged that Respondent had 
distributed marijuana on a continuing basis in quantities ranging from 
``small user amounts'' to as much as five pounds. Id. The Show Cause 
Order also alleged that Respondent had prescribed Adderall, a schedule 
II controlled substance, and hydrocodone, a schedule III controlled 
substance, for a person without ``performing any tests or formulat[ing] 
a diagnosis during the initial visit,'' and he had ``continued to 
authorize prescriptions for [these] controlled substances without an 
examination or further care.'' Id. Relatedly, the Show Cause Order 
alleged that Respondent subsequently ``received some of the hydrocodone 
from the prescriptions [he] wrote for this'' person. Id.
    Next, the Show Cause Order alleged that Respondent had 
``prescribe[d] controlled substances to a person [he] knew was addicted 
to [them],'' and that Respondent also ``knew [that] this person was 
selling the filled prescriptions to support [his] addiction.'' Id. The 
Show Cause Order further alleged that Respondent had engaged in a 
scheme to provide controlled prescription drugs to drug dealers. Id. 
According to the Show Cause Order, the dealers' runners would go to 
Respondent's residence to receive the prescriptions; after the 
prescriptions were filled, the dealer would provide Respondent with 
half of the drugs and sell the other half to drug abusers. Id. Finally, 
the Show Cause Order alleged that on May 10, 2006, law enforcement 
officers executed a search warrant at Respondent's home during which 
they found marijuana, pills which appeared to be prescription 
controlled substances, and assorted drug-related paraphernalia. Id.
    On January 12, 2007, DEA investigators personally served the Show 
Cause Order on Respondent. Since that time, neither Respondent, nor 
anyone purporting to represent him, has responded. Because (1) more 
than thirty days have passed since service of the Show Cause Order, and 
(2) no request for a hearing has been received, I conclude that 
Respondent has waived his right to a hearing. See 21 CFR 1301.43(d). I 
therefore enter this final order without a hearing based on relevant 
material contained in the investigative file and make the following 
findings.

Findings

    Respondent is the holder of DEA Certificate of Registration, 
BM5526009, as a practitioner, which authorizes him to dispense 
controlled substances in schedules II through V. Respondent's 
registration was last renewed on February 15, 2006, and expires on 
January 31, 2009.
    In July 1996, Respondent was disciplined by the State Board of 
Medical Examiners of South Carolina, which found that he had written 
prescriptions for Lortab 7.5 (hydrocodone), and Didrex 
(benzphetamine),\1\ using the names of other patients, which he then 
had filled and diverted to his personal use. Respondent admitted to the 
State's allegation. The Board fined him $7500, issued a reprimand, and 
imposed various conditions on his medical license including random drug 
testing. On October 17, 2000, however, the Board removed the 
conditions.
---------------------------------------------------------------------------

    \1\ Both drugs are schedule III controlled substances. See 21 
CFR 1308.13.
---------------------------------------------------------------------------

    According to the investigative file, the Board's conditions 
appeared to have had only a limited impact on Respondent. Beginning in 
the summer of 1999, while the Board's conditions were still in effect, 
Respondent purchased marijuana from a person who

[[Page 36485]]

lived with him. During an interview, this person related that from 1999 
until 2003, he had sold Respondent approximately 100 pounds of 
marijuana. The person further stated to investigators that he regularly 
traded marijuana for Lortab and Xanax prescriptions issued by 
Respondent. More specifically, Respondent would provide this person 
with prescriptions for 240 Lortab and 120 Xanax at the beginning of 
each month; Respondent would also write identical prescriptions in the 
name of the person's girlfriend at the end of each month. The person 
also told investigators that he could make more money selling the 
Lortab and Xanax than he could selling marijuana. Finally, the person 
related that Respondent gave him the combination to a safe that was 
located in Respondent's home and instructed him to place the marijuana 
in the safe.
    Investigators also interviewed a person who related that his father 
was the number one seller of OxyContin in the Williamston, South 
Carolina area. According to this person, his father was addicted to 
OxyContin, which Respondent had prescribed to him. This person stated 
that Respondent would write controlled substance prescriptions in other 
persons' names, and that his father would send a ``runner'' to 
Respondent's practice to pick up the prescriptions. The person further 
advised that after the prescriptions were filled, his father would give 
half of the drugs to the runner and swap the remaining half with 
Respondent for marijuana. The person also related that he had been 
present during a fall 2004 incident in which his father had gone to 
Respondent's home and obtained 2.5 pounds of marijuana. Moreover, 
during this incident, Respondent showed this person ten marijuana 
plants that he was growing in his basement. This person also told 
investigators of another fall 2004 incident in which he accompanied his 
father to Respondent's home as the latter retrieved one pound of 
marijuana from the mailbox.
    Finally, this person, who was being treated by Respondent for 
anxiety, related a late fall/early winter 2004 visit to Respondent's 
medical office. During the appointment, Respondent issued him 
prescriptions for both Xanax and Lortab. The person related to 
investigators that he was surprised to receive the Lortab prescription. 
Shortly after leaving Respondent's office, the person was contacted by 
his father who asked for half of the Lortab. The person further told 
investigators that he believed that Respondent had told his father 
about the issuance of the Lortab prescription.
    Subsequently, investigators interviewed the above person's brother, 
who corroborated his father's relationship with Respondent. 
Specifically, this person confirmed that for approximately five years, 
Respondent had provided his father with prescriptions for Lortab, 
Xanax, Roxicodone, Percocet and Oxycontin. The person stated that he 
had lived with his father from the year 2000 until 2003, during which 
time he observed his father sell large quantities of controlled 
substances to numerous individuals in the Williamston, South Carolina 
area. According to this person, his father would sell controlled 
substances to as many as twenty persons a day and made a significant 
amount of money doing so. The person further related that his father 
had both personally obtained controlled substance prescriptions from 
Respondent and also used a ``runner'' to obtain them.
    The person also stated that he was present on approximately five to 
seven occasions during which his father purchased marijuana from 
Respondent. The person also told investigators that while he was 
between the ages of fifteen to eighteen, he had purchased marijuana 
approximately twenty times from Respondent's son at his residence, and 
that on some occasions, he personally witnessed Respondent hand the 
marijuana to his son, who then delivered it to him.
    Investigators also interviewed a person who stated that he had sold 
marijuana for Respondent from the summer of 2004 through the summer of 
2005. The person further related that from the time he first met 
Respondent in the year 2003 until the summer of 2005, he had observed 
approximately twenty-five to thirty pounds of marijuana at Respondent's 
home, scales used to weigh marijuana for resale, and a box of index 
cards which contained records of customers to whom Respondent had 
extended credit. The person also related that Respondent provided him 
with discounted marijuana as payment for his selling the drug on the 
latter's behalf, and that he had observed Respondent give another 
individual five to six pounds of the drug to sell.
    This person also told investigators that anytime he was in 
Respondent's presence, Respondent would be smoking marijuana. The 
person also stated that he was present numerous times when Respondent 
came home for lunch and that Respondent would smoke marijuana before 
returning to work.
    Investigators interviewed another person who related that between 
1999 and the end of 2003, he had supplied Respondent with over one 
hundred pounds of marijuana. This person stated that during the last 
three to four months of 2003, he traveled to North Carolina every other 
week for the purpose of obtaining marijuana for Respondent. According 
to this person, prior to each trip, Respondent provided him with 
approximately $ 2000 to $ 3000 dollars, which was used to purchase 
three to four pounds of marijuana. Moreover, the person observed 
Respondent sell approximately twenty-five to thirty pounds of marijuana 
and that he was growing marijuana.
    The person also told investigators that from the end of 2002 
through the end of 2003, Respondent issued him and another person, 
prescriptions for 240 Lortab and 120 Xanax in exchange for one pound of 
marijuana. The person stated that after filling the prescriptions, he 
would sell the Lortab and Xanax on the street. Finally, this person 
related an incident in which he and Respondent had smoked marijuana 
prior to the latter's performing surgery on his girlfriend.
    Investigators next interviewed the father of the two individuals 
whose statements are related above. This person stated that he had been 
abusing drugs most of his adult life, but it was not until Respondent 
gave him prescriptions for 150 Oxycontin (80 mg.) per month that he 
developed the worst addiction he had experienced in his life. According 
to this person, he became ``hooked'' on Oxycontin within six to eight 
months after Respondent first prescribed it for him, and began taking 
the drug intravenously. According to this person, Respondent also 
provided him with prescriptions for 240 Roxicodone tablets each month.
    The person also told investigators that he had had numerous 
conversations with Respondent regarding his addiction to Oxycontin, 
that he had told Respondent that he was shooting up the drug, and that 
he told Respondent that he was selling the drug to support his habit. 
Respondent, however, never suggested taking him off of Oxycontin, or 
that he enter a treatment program.
    The person further related that he and Respondent would supply each 
other with marijuana when the other's supply was low. The person stated 
that he had supplied Respondent with approximately \1/4\ pound to one 
pound of marijuana and that Respondent had supplied him with three to 
four pounds. The person also told investigators that he had observed 
multiple pounds of marijuana while at Respondent's residence.

[[Page 36486]]

    On May 10, 2006, law enforcement authorities executed a search 
warrant at Respondent's residence. During the search, the authorities 
found marijuana roaches, marijuana seeds, two scales, and various 
paraphernalia including rolling papers, hemostats, pipes, and rollers.
    Thereafter, investigators interviewed an additional acquaintance of 
Respondent, who had met him through the latter's son. This person 
corroborated the information regarding Respondent's dealings in 
marijuana including the name of his primary supplier, his index card 
system for recording transactions, and his personal use. The person 
also stated that Respondent had given him marijuana to try on five to 
ten occasions, and that between 2003 and the end of 2004, he would 
obtain marijuana from a safe in Respondent's home approximately one to 
two times per week.
    The person further related that towards the end of 2004, he had 
told Respondent that he had knee pain and suspected that he suffered 
from Attention Deficit Disorder. Respondent told him to come to his 
office. While Respondent tested his reflexes during the visit, he 
conducted no further tests and gave no diagnosis. Nonetheless, 
Respondent prescribed Adderall, a schedule II controlled substance, and 
hydrocodone. Shortly after filling the initial prescription, the person 
visited Respondent's home and smoked marijuana. During this visit, 
Respondent asked the person to give him some of his hydrocodone. 
Moreover, upon filling a second prescription for hydrocodone, 
Respondent again asked the person to give him the tablets that he did 
not need.
    Respondent issued this person prescriptions for hydrocodone on a 
monthly basis between January 2005 and May 2006. The person admitted to 
investigators that he took very few hydrocodone tablets and regularly 
provided Respondent with sixty of them. The person further admitted to 
selling the majority of the remaining tablets to his mother. The person 
also stated that following Respondent's arrest, Respondent told him not 
to tell the authorities that he was giving hydrocodone to Respondent.
    On December 12, 2006, a federal grand jury indicted Respondent, 
charging him with conspiring to possess with the intent to distribute, 
and to distribute, marijuana, see 21 U.S.C. 846; and maintaining a 
residence for the purpose of distributing and using marijuana. See id. 
section 856(a)(1). The grand jury also indicted Respondent on twelve 
counts of knowingly and intentionally distributing Lortab 
(hydrocodone), and three counts of knowingly and intentionally 
distributing Xanax (alprazolam), outside of the usual course of medical 
practice and for other than a legitimate medical purpose, to an 
individual identified only as person A. See id. sections 841(a)(1), 
841(b)(1)(D), & 841(b)(2). Finally, the grand jury indicted Respondent 
on thirteen additional counts of knowingly and intentionally 
distributing Lortab, outside of the usual course of medical practice 
and for other than a legitimate medical purpose, to an individual 
identified only as person B. See 21 U.S.C. 841(a)(1) & 841(b)(1)(D).

Discussion

    Section 304(a) of the Controlled Substances Act provides that a 
registration to ``dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant * * * has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. 
824(a)(4). In making the public interest determination, the Act 
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 * * * 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. ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] 
deem[] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, case law establishes that I am ``not required 
to make findings as to all of the factors.'' Hoxie v. DEA, 419 F.3d 
477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173-74 
(D.C. Cir. 2005).
    Finally, section 304(d) provides that ``[t]he Attorney General may, 
in his discretion, suspend any registration simultaneously with the 
institution of proceedings under this section, in cases where he finds 
that there is an imminent danger to the public health or safety.'' 21 
U.S.C. 824(d). Here, analyzing the evidence under factors two and four 
establishes that Respondent has committed acts ``inconsistent with the 
public interest,'' and posed ``an imminent danger to public health or 
safety,'' which justified the immediate suspension of his registration. 
Relatedly, the record also demonstrates that Respondent's continued 
registration would be inconsistent with the public interest and that 
his registration should be revoked.

Factors Two and Four--Respondent's Experience in Dispensing Controlled 
Substances and Record of Compliance with Applicable Laws

    The evidence in this case overwhelmingly establishes that 
Respondent has engaged in the criminal distribution of controlled 
substances in violation of 21 U.S.C. 841. More specifically, the 
evidence shows that Respondent was a marijuana dealer/distributor and 
had engaged in this criminal conduct for a period of at least five 
years. Moreover, the evidence establishes that Respondent engaged in 
the illegal manufacturing of marijuana. Id.
    Furthermore, Respondent used his DEA registration for criminal 
purposes. More specifically, the evidence shows that Respondent issued 
prescriptions for controlled substances which included OxyContin and 
Percocet (schedule II), Lortab (hydrocodone, schedule III), and Xanax 
(schedule IV), which he then traded for marijuana.
    Respondent also issued prescriptions without a legitimate medical 
purpose. See 21 CFR 1306.04(a) (``A prescription for a controlled 
substance * * * must be issued for a legitimate medical purpose by an 
individual acting in the usual course of his professional practice.''). 
Relatedly, Respondent issued prescriptions in the names of other 
``patients'' so that he or his associates would then be able to acquire 
the drugs. Notably, Respondent had previously been sanctioned by the 
State Board for the same conduct. Finally, the record establishes that 
Respondent continued to prescribe Oxycontin to a ``patient,'' 
notwithstanding that the ``patient'' had told him: (1) That he was 
addicted to the drug, (2) that he was taking the drug intravenously, 
and (3) that he was selling the drug to support his habit.
    It is indisputable that Respondent's criminal conduct created an 
``imminent danger to public health or safety,'' 21 U.S.C. 824(d), and 
was ``inconsistent with the public interest.'' Id. 824(a)(4). I 
therefore hold that Respondent's continued registration would be 
``inconsistent with the public interest''

[[Page 36487]]

and that his registration should be revoked. Id. Moreover, for the same 
reasons that led me to find that Respondent posed ``an imminent danger 
to the public health or safety,'' id. section 824(d), I conclude that 
the public interest requires that his registration be revoked effective 
immediately.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA 
Certificate of Registration, BM5526009, issued to Michael F. Myers, 
M.D., be, and it hereby is, revoked. I further order that any pending 
applications for renewal or modification of such registration be, and 
they hereby are, denied. This order is effective immediately.

    Dated: June 22, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-12771 Filed 7-2-07; 8:45 am]
BILLING CODE 4410-09-P