Benjamin Levine, M.D.; Dismissal of Proceeding, 34329-34330 [E8-13617]
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Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Notices
I thus conclude that Respondent’s
failure to disclose the earlier surrender
of his DEA registration was a material
misrepresentation because it ‘‘ha[d] a
natural tendency to influence the * * *
decision’’ of the Agency as to whether
to grant his application for a new
registration.3 Under DEA precedent, this
act ‘‘provides an independent and
adequate ground for denying’’
Respondent’s application. The Lawsons,
72 FR at 74338; Cf. Bobby Watts, 58 FR
46997 (1993).
The Lack of State Authority Allegation
jlentini on PROD1PC65 with NOTICES
As found above, on May 25, 2007, the
Florida Department of Health issued an
order which imposed an emergency
suspension of Respondent’s state
medical license. Shortly thereafter, on
June 21, 2007, the Florida Department of
Health issued a further order which
revoked Respondent’s state medical
license.
Under the Controlled Substances Act
(CSA), a practitioner must be currently
authorized to handle controlled
substances in ‘‘the jurisdiction in which
he practices’’ in order to maintain a
DEA registration. See 21 U.S.C. 802(21)
(‘‘[t]he term ‘practitioner’ means a
physician * * * 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’’). See
also id. § 823(f) (‘‘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.’’). As these provisions make
plain, possessing authority to dispense
a controlled substance under the laws of
the State in which a physician practices
medicine is an essential condition for
holding a DEA registration.
Because Respondent’s Florida
medical license has been revoked, he is
without authority under state law to
handle controlled substance and does
not meet an essential prerequisite under
the CSA for obtaining a new DEA
registration. See Richard Carino, M.D.,
72 FR 71955, 71956 (2007) (citing
cases); 21 U.S.C. 823(f). Accordingly, his
application will be denied for this
reason as well.
3 While Respondent indicated on 2003
application that both his Florida and Ohio licenses
had been subjected to discipline, he further stated
that the basis of the discipline was his ‘‘abuse of
a non-controlled substance (Stadol nasal spray).’’
Stadol nasal spray contains butorphanol tartrate,
and is a schedule IV controlled substance. See 21
CFR 1308.14(f). Respondent’s statement was thus an
additional misrepresentation.
VerDate Aug<31>2005
17:16 Jun 16, 2008
Jkt 214001
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f), as well as 28 CFR
0.100(b) & 0.104, I hereby order that the
application of Craig H. Bammer, D.O.,
for the renewal of his registration be,
and it hereby is, denied. This order is
effective July 17, 2008.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–13609 Filed 6–16–08; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07–52]
Benjamin Levine, M.D.; Dismissal of
Proceeding
On August 7, 2007, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Benjamin Levine, M.D.
(Respondent), of East Brunswick, New
Jersey. The Show Cause Order proposed
the revocation of Respondent’s DEA
Certificate of Registration, BL3612480,
as a practitioner, and the denial of any
pending applications to renew or
modify his registration, on three
separate grounds. Show Cause Order at
1. More specifically, the Show Cause
Order alleged that: (1) Respondent had
materially falsified his renewal
application for his current registration;
(2) Respondent lacked authority to
handle controlled substances under the
laws of the State in which he practiced
medicine and held his DEA registration;
and (3) Respondent had committed acts
inconsistent with the public interest. Id.
at 1–3.
Respondent requested a hearing on
the allegations and the case was
assigned to Administrative Law Judge
(ALJ) Gail A. Randall. Shortly thereafter,
the Government moved for summary
disposition on the ground that the New
Jersey State Board of Medical Examiners
had suspended Respondent’s state
medical license. Motion for Summary
Judgment at 1–2.
Respondent requested additional time
to respond to the Government’s motion.
In his motion, Respondent did not deny
that his state license had been
suspended. Instead, Respondent noted
that he was appealing the State board’s
order. Resp. Br. in Support of Motion for
Additional Time at 3–4. Respondent
also cited a litany of legal proceedings
that he was litigating including a
criminal case, a tort action, a motion for
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Fmt 4703
Sfmt 4703
34329
post-conviction relief of a 1996
conviction, a suit for libel and slander,
another suit ‘‘related to the Medical
Board and * * * malpractice insurance
lawyers,’’ and a bankruptcy proceeding.
Id. at 3–4.
The ALJ, however, denied
Respondent’s motion (as well as his
Renewed Request for an extension of
time). Applying agency precedent, she
also rejected Respondent’s argument
that the Agency should not revoke his
registration because his state license
was only temporarily suspended. ALJ
Dec. at 6 (citing Alton E. Ingram, Jr., 69
FR 22562, 22563 (2004)). Because
‘‘Respondent lack[ed] authority to
practice medicine and handle controlled
substances in New Jersey,’’ the ALJ held
that ‘‘DEA lack[ed] authority to continue
* * * Respondent’s DEA registration.’’
ALJ Dec. at 7. The ALJ thus granted the
Government’s motion for summary
disposition and recommended that I
revoke Respondent’s registration. The
ALJ then forwarded the record to me for
final agency action.
Having considered the record as a
whole (including Respondent’s
exceptions), I conclude that this case is
now moot. It is undisputed that
Respondent’s registration expired on
March 31, 2008. See Order to Show
Cause at 1; see also Respondent’s
Counter-Statement of Material Facts at
1. Moreover, according to the
registration records of this Agency,
Respondent has not filed a renewal
application.1 I therefore find that
Respondent is not currently registered
with this Agency.
Under DEA precedent, ‘‘ ‘if a
registrant has not submitted a timely
renewal application prior to the
expiration date, then the registration
expires and there is nothing to revoke.’ ’’
David L. Wood, 72 FR 54936, 54937
(2007) (quoting Ronald J. Riegel, 63 FR
67132, 67133 (1998)). Moreover, while I
have recognized a limited exception to
this rule in cases which commence with
the issuance of an immediate
suspension order because of the
collateral consequences which may
attach with the issuance of such a
suspension, see William R. Lockridge,
1 Under the Administrative Procedure Act (APA),
an agency ‘‘may take official notice of facts at any
stage in a proceeding—even in the final decision.’’
U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance
with the APA and DEA’s regulations, Respondent
is ‘‘entitled on timely request, to an opportunity to
show to the contrary.’’ § 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent can dispute these facts
by filing a properly supported motion for
reconsideration within fifteen days of service of this
order, which shall begin on the date this order is
mailed.
E:\FR\FM\17JNN1.SGM
17JNN1
34330
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Notices
71 FR 77791, 77797 (2006), here, no
such order was issued. Because there is
neither an existing registration nor an
application to act upon, and there is no
suspension order to review, this case is
now moot.2
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 28 CFR 0.100(b) and 0.104, I hereby
order that the Order to Show Cause
issued to Benjamin L. Levine, M.D., be,
and it hereby is, dismissed.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–13617 Filed 6–16–08; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07–40]
jlentini on PROD1PC65 with NOTICES
William W. Nucklos, M.D.; Dismissal of
Proceeding
On June 18, 2007, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to William W. Nucklos,
M.D. (Respondent), of Powell, Ohio. The
Show Cause Order proposed the
revocation of Respondent’s registration,
BN2037314, as a practitioner, and the
denial of any pending application to
renew his registration, on two grounds.
First, the Show Cause Order alleged
that on March 8, 2006, the State Medical
Board of Ohio had suspended
Respondent’s state medical license.
Show Cause Order at 1 (citing 21 U.S.C.
824(a)(3)). Second, the Show Cause
Order alleged that on or about February
15, 2006, Respondent had been
‘‘convicted of ten felony counts of drug
trafficking and the illegal processing of
drug documents.’’ Id.; see also 21 U.S.C.
824(a)(2) & (a)(4).
Respondent requested a hearing on
the allegations; the matter was therefore
assigned to Administrative Law Judge
(ALJ) Mary Ellen Bittner. Thereafter, the
Government moved for summary
disposition and to stay the proceeding
on the ground that the Ohio board had
suspended Respondent’s medical
license, and Respondent was thus
without authority to handle controlled
substances in the State in which he
maintained his DEA registration. ALJ
2 The dismissal of a proceeding on mootness
grounds does not, however, have collateral estoppel
effect in the event that Respondent reapplies for a
DEA registration in the future.
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16:10 Jun 16, 2008
Jkt 214001
Dec. at 1–2. The Government supported
its motion with a copy of the Notice of
Immediate Suspension which had been
issued by the Ohio Board, and which
referenced Respondent’s indictment and
conviction on ten felony counts of
trafficking Oxycontin, and ten felony
counts of ‘‘[i]llegal [p]rocessing of [d]rug
[d]ocuments.’’ Notice of Immediate
Suspension and Opportunity for
Hearing (Mar. 8, 2006) (citing Ohio Rev.
Code 2925.03 & 2925.23).
Respondent opposed the
Government’s motion. Respondent’s
principal contention was that his
convictions had been reversed by the
Court of Appeals of Clark County, Ohio,
and that he had a pending request with
the State Medical Board to vacate the
suspension because it had been based
on the criminal convictions.
Respondent’s Resp. at 1.
The ALJ granted the Government’s
motion. According to the ALJ, there was
no dispute that Respondent’s state
medical license remained suspended
and that he was not ‘‘currently
authorized to handle controlled
substances in Ohio.’’ ALJ at 3. The ALJ
further explained that although
Respondent had requested that the Ohio
Board vacate his suspension, he ‘‘ha[d]
not demonstrated that the suspension
will be lifted.’’ Id. Reasoning that she
was ‘‘compelled to grant the
Government’s motion’’ because
Respondent’s license had been
suspended, the ALJ recommended that
Respondent’s registration be revoked
and that any pending applications be
denied. Id. Thereafter, the record was
forwarded to me for final agency action.
In reviewing the record, I have taken
official notice of the Agency’s records
pertaining to Respondent’s registration
status.1 According to the Agency’s
records, Respondent’s registration
expired on October 31, 2007. Moreover,
there is no evidence showing that
Respondent has filed a renewal
application, let alone a timely one. See
21 CFR 1301.36(i). Accordingly, I
conclude that there is neither a
registration nor an application to act
upon. Id.
Under DEA precedent, ‘‘ ‘if a
registrant has not submitted a timely
1 Under the Administrative Procedure Act (APA),
an agency ‘‘may take official notice of facts at any
stage in a proceeding-even in the final decision.’’
U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance
with the APA and DEA’s regulations, Respondent
is ‘‘entitled on timely request, to an opportunity to
show to the contrary.’’ 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent can dispute these facts
by filing a properly supported motion for
reconsideration within fifteen days of service of this
order, which shall begin on the date this order is
mailed.
PO 00000
Frm 00085
Fmt 4703
Sfmt 4703
renewal application prior to the
expiration date, then the registration
expires and there is nothing to revoke.’’’
David L. Wood, 72 FR 54936, 54937
(2007) (quoting Ronald J. Riegel, 63 FR
67132, 67133 (1998)). Moreover, while I
have recognized a limited exception to
this rule in cases which commence with
the issuance of an immediate
suspension order because of the
collateral consequences which may
attach with the issuance of such a
suspension, see William R. Lockridge,
71 FR 77791, 77797 (2006), here, no
such order was issued. Because there is
neither an existing registration nor an
application to act upon, and there is no
suspension order to review, this case is
now moot.2
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 28 CFR 0.100(b) and 0.104, I hereby
order that the Order to Show Cause
issued to William W. Nucklos, M.D., be,
and it hereby is, dismissed.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–13618 Filed 6–16–08; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
National Institute of Corrections
Solicitation for a Cooperative
Agreement—Inmate Behavior
Management: Implementation and
Evaluation
National Institute of
Corrections, Department of Justice.
ACTION: Solicitation for a Cooperative
Agreement.
AGENCY:
SUMMARY: This project has two areas of
focus: Assistance to selected jails in
implementing the six elements of
inmate behavior management and
evaluation of the process and impact of
implementation. The project award will
be for a two-year period, and the project
will be carried out in conjunction with
the NIC Jails Division. The awardee will
work closely with NIC Jails Division
staff.
DATES: Applications must be received
by 4 p.m. (EDT) on Friday, July 18,
2008.
ADDRESSES: Mailed applications must be
sent to: Director, National Institute of
2 The dismissal of a proceeding on mootness
grounds does not, however, have collateral estoppel
effect in the event that Respondent reapplies for a
DEA registration in the future.
E:\FR\FM\17JNN1.SGM
17JNN1
]]>Agencies
[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Notices]
[Pages 34329-34330]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13617]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07-52]
Benjamin Levine, M.D.; Dismissal of Proceeding
On August 7, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Benjamin Levine, M.D. (Respondent), of East Brunswick,
New Jersey. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BL3612480, as a
practitioner, and the denial of any pending applications to renew or
modify his registration, on three separate grounds. Show Cause Order at
1. More specifically, the Show Cause Order alleged that: (1) Respondent
had materially falsified his renewal application for his current
registration; (2) Respondent lacked authority to handle controlled
substances under the laws of the State in which he practiced medicine
and held his DEA registration; and (3) Respondent had committed acts
inconsistent with the public interest. Id. at 1-3.
Respondent requested a hearing on the allegations and the case was
assigned to Administrative Law Judge (ALJ) Gail A. Randall. Shortly
thereafter, the Government moved for summary disposition on the ground
that the New Jersey State Board of Medical Examiners had suspended
Respondent's state medical license. Motion for Summary Judgment at 1-2.
Respondent requested additional time to respond to the Government's
motion. In his motion, Respondent did not deny that his state license
had been suspended. Instead, Respondent noted that he was appealing the
State board's order. Resp. Br. in Support of Motion for Additional Time
at 3-4. Respondent also cited a litany of legal proceedings that he was
litigating including a criminal case, a tort action, a motion for post-
conviction relief of a 1996 conviction, a suit for libel and slander,
another suit ``related to the Medical Board and * * * malpractice
insurance lawyers,'' and a bankruptcy proceeding. Id. at 3-4.
The ALJ, however, denied Respondent's motion (as well as his
Renewed Request for an extension of time). Applying agency precedent,
she also rejected Respondent's argument that the Agency should not
revoke his registration because his state license was only temporarily
suspended. ALJ Dec. at 6 (citing Alton E. Ingram, Jr., 69 FR 22562,
22563 (2004)). Because ``Respondent lack[ed] authority to practice
medicine and handle controlled substances in New Jersey,'' the ALJ held
that ``DEA lack[ed] authority to continue * * * Respondent's DEA
registration.'' ALJ Dec. at 7. The ALJ thus granted the Government's
motion for summary disposition and recommended that I revoke
Respondent's registration. The ALJ then forwarded the record to me for
final agency action.
Having considered the record as a whole (including Respondent's
exceptions), I conclude that this case is now moot. It is undisputed
that Respondent's registration expired on March 31, 2008. See Order to
Show Cause at 1; see also Respondent's Counter-Statement of Material
Facts at 1. Moreover, according to the registration records of this
Agency, Respondent has not filed a renewal application.\1\ I therefore
find that Respondent is not currently registered with this Agency.
---------------------------------------------------------------------------
\1\ Under the Administrative Procedure Act (APA), an agency
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and
DEA's regulations, Respondent is ``entitled on timely request, to an
opportunity to show to the contrary.'' Sec. 5 U.S.C. 556(e); see
also 21 CFR 1316.59(e). Respondent can dispute these facts by filing
a properly supported motion for reconsideration within fifteen days
of service of this order, which shall begin on the date this order
is mailed.
---------------------------------------------------------------------------
Under DEA precedent, `` `if a registrant has not submitted a timely
renewal application prior to the expiration date, then the registration
expires and there is nothing to revoke.' '' David L. Wood, 72 FR 54936,
54937 (2007) (quoting Ronald J. Riegel, 63 FR 67132, 67133 (1998)).
Moreover, while I have recognized a limited exception to this rule in
cases which commence with the issuance of an immediate suspension order
because of the collateral consequences which may attach with the
issuance of such a suspension, see William R. Lockridge,
[[Page 34330]]
71 FR 77791, 77797 (2006), here, no such order was issued. Because
there is neither an existing registration nor an application to act
upon, and there is no suspension order to review, this case is now
moot.\2\
---------------------------------------------------------------------------
\2\ The dismissal of a proceeding on mootness grounds does not,
however, have collateral estoppel effect in the event that
Respondent reapplies for a DEA registration in the future.
---------------------------------------------------------------------------
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that the
Order to Show Cause issued to Benjamin L. Levine, M.D., be, and it
hereby is, dismissed.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-13617 Filed 6-16-08; 8:45 am]
BILLING CODE 4410-09-P
