Scott Sandarg, D.M.D.; Revocation of Registration, 17528-17529 [E9-8613]

Download as PDF 17528 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices where the State did not rely solely on the DEA order in suspending a practitioner’s state license). Respondent also apparently argues that revoking his registration would violate his right to Due Process because he has invoked his Fifth Amendment privilege and is ‘‘unable’’ to address the allegations. This argument would be unpersuasive even if the Agency was still seeking to revoke based on the allegations that he unlawfully distributed controlled substances.3 Moreover, Respondent ignores that under the CSA, the loss of state authority provides an independent ground to revoke and that the only issue now in dispute is whether Respondent holds state authority. Respondent was provided with a meaningful opportunity to refute the Government’s evidence by showing that his state license had not been (or was no longer) suspended; such a showing would not require his testimony. That there is no such evidence (because the State’s suspension order remains in effect) likewise does not deprive Respondent of Due Process. Because Respondent remains without authority to dispense controlled substances under the laws of the State in which he practices medicine and is registered with the Agency, his registration will be revoked. Moreover, for the same reasons that I ordered the immediate suspension of Respondent’s registration, I further hold that this Order be effective immediately. Order rwilkins on PROD1PC63 with PROPOSALS 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, BB2806480, issued to Joseph Baumstarck, M.D., be, and it hereby is, revoked. I further order that any pending application of Joseph Baumstarck, M.D., for renewal or modification of his registration be, and it hereby is, denied. This order is effective immediately. 3 Due Process only requires that the Government provide a meaningful opportunity to test the Government’s proof and respond to the allegations; a litigant’s unwillingness to testify in a civil matter, because he fears incriminating himself, does not render a hearing opportunity unmeaningful in the constitutional sense. Ohio Adult Parole Authority v. Woodward, 523 U.S. at 272, 286 (1998). Indeed, the Supreme Court has even upheld the drawing of an adverse inference based on a respondent’s refusal to testify in an administrative proceeding. See Woodward, 523 U.S. at (1998) (citing Baxter v. Palmigiano, 425 U.S. 308, 316–18 (1976)); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1043–44 (1984). VerDate Nov<24>2008 16:44 Apr 14, 2009 Jkt 217001 Dated: April 3, 2009. Michele M. Leonhart, Deputy Administrator. [FR Doc. E9–8612 Filed 4–14–09; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 08–10] Scott Sandarg, D.M.D.; Revocation of Registration On July 25, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Scott Sandarg, D.M.D. (Respondent), of Irvine, California. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration, BS6026525, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, and the denial of any pending applications to renew or modify the registration, on the ground that Respondent had committed numerous acts which were inconsistent with the public interest. Show Cause Order at 1. The Show Cause Order specifically alleged that Respondent had unlawfully obtained controlled substances for his own use which included illicit methamphetamine, anabolic steroids, drugs containing hydrocodone, and several benzodiazepines including alprazolam, through various means including by engaging in prescription fraud and by obtaining the controlled substances over the internet from practitioners with whom he did not establish a valid doctor-patient relationship. Id. at 1–3. The Order also alleged that on two separate occasions, Respondent had been arrested; that the police found various controlled substances in his possession during lawful searches of his property; and that Respondent had subsequently pled guilty to various offenses under California law including one felony count of unlawful possession of a controlled substance in violation of Cal. Health & Safety Code § 11377(a), one misdemeanor count of unlawfully being under the influence of a controlled substance in violation of Cal. Health & Safety Code section 11550(a), and two misdemeanor counts related to firearms violations under Cal. Penal Code section 17(b). Show Cause Order at 2–3. On September 11, 2007, a DEA Diversion Investigator attempted to serve the Order to Show Cause on Respondent by faxing it to him. On PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 November 9, 2007, Respondent requested a hearing on the allegations of the Show Cause Order, and the matter was assigned to an Administrative Law Judge (ALJ). Thereafter, the Government moved to terminate the proceeding on the ground that Respondent’s request was out of time. Respondent opposed the motion, submitting the declarations of himself and his office manager, both of which asserted that the fax had included the cover sheet but not the Show Cause Order. Thereafter, the Government submitted a DI’s declaration which maintained that Respondent’s office manager had informed him that she had received the entire fax. The ALJ denied the Government’s motion reasoning that there was a factual dispute as to when Respondent had received the Show Cause Order. The ALJ then allowed the Government to file an interlocutory appeal. On May 12, 2008, I denied the appeal because there was a clear factual dispute as to whether Respondent had actually received the Show Cause Order on September 11, 2007, and the dispute could not be resolved without assessing the credibility of each party’s witnesses.1 Thereafter, the Government moved to terminate the proceeding on the ground that on December 19, 2007, the California Board of Dental Examiners had adopted the proposed decision of a State Administrative Law Judge and revoked Respondent’s State Dental Certificate with an effective date of January 21, 2008. Gov. Mot. for Summary Judgment 2–3. The Government argued that because Respondent is not authorized to handle controlled substances in the State in which he is registered with this Agency, he is not entitled to maintain his registration. Id. Respondent’s counsel opposed the motion arguing that he had filed for a writ of administrative mandamus in State court challenging the Board’s order. Respondent’s Resp. to ALJ’s May 21, 2008 Memorandum to Counsel at 1. According to Respondent’s counsel, the writ raised multiple claims of error on the part of the State ALJ, and were the court to find any of the claims meritorious, Respondent’s license could be restored. Id. Respondent’s counsel further argued that DEA’s decision be stayed until the State proceeding was resolved. Id. The Government opposed Respondent’s motion on the ground that it was speculative whether the State court would grant any relief, and that 1 Respondent did not, however, dispute that he had subsequently been properly served. E:\FR\FM\15APN1.SGM 15APN1 rwilkins on PROD1PC63 with PROPOSALS Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices this Agency has previously rejected similar arguments. On July 10, 2008, the ALJ granted the Government’s motion. ALJ at 6. The ALJ noted that no material facts were in dispute and that Respondent did not deny that he is currently not authorized under California law to handle controlled substances. Id. Noting that this Agency has consistently held that a practitioner may not maintain his registration if he lacks authority to handle controlled substances under the laws of the State in which he practices, the ALJ granted the motion and recommended that Respondent’s registration be revoked and that any pending applications to renew or modify his registration be denied. Id. Thereafter, the ALJ forwarded the record to me for final agency action. Having considered the entire record in this matter, I adopt the ALJ’s decision in its entirety. I find that Respondent holds DEA Certificate of Registration, BS6026529, which authorizes him to dispense controlled substances in schedules II through V at the registered location of 17655 Harvard Place, Suite F, Irvine, California. I further find that while the expiration date of the registration was February 28, 2007, Respondent submitted a timely renewal application and therefore his registration has remained in effect pending the issuance of this Final Order. See 5 U.S.C. 554(e). I further find, however, that on December 19, 2007, the Dental Board of California ordered that Respondent’s State Dental Certificate be revoked with an effective date of January 21, 2008.2 Moreover, while it has been more than seven months since Respondent’s challenge to the Dental Board’s proceeding was heard in State court, Respondent has submitted no evidence to the Agency that the Board’s revocation order has been set aside or stayed, and according to the Board’s Web site, Respondent’s Dental Certificate remains revoked. 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 under State law to handle controlled substances is an essential condition for holding a DEA registration. Accordingly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner whose State license has been suspended or revoked. David Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 824(a)(3)(authorizing the revocation of a registration ‘‘upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances’’). Here, there is no dispute over the material fact that Respondent’s California Dental Certificate has been revoked and that Respondent lacks authority under California law to dispense control substances. Respondent is therefore not entitled to maintain his DEA registration. 2 The State ALJ’s decision concluded that the State had proved nine different causes to discipline Respondent, several of which related to his abuse of controlled substances. In re Sandarg, Proposed Dec. at 44–46, No. DBC 2006–36 (2007). On June 25, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to VerDate Nov<24>2008 16:44 Apr 14, 2009 Jkt 217001 Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA Certificate of Registration, BS6026529, issued to Scott Sandarg, D.D.S., be, and it hereby is, revoked. I further order that any pending application of Scott Sandarg, D.D.S., to renew or modify his registration, be, and it hereby is denied. This Order is effective May 15, 2009. Dated: April 3, 2009. Michele M. Leonhart, Deputy Administrator. [FR Doc. E9–8613 Filed 4–14–09; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 08–52] George C. Aycock, M.D.; Revocation of Registration PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 17529 Show Cause to George C. Aycock, M.D. (Respondent), of Sumter, South Carolina. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration, AA1071947, which authorizes him to dispense controlled substances as a practitioner, and the denial of any pending application to renew or modify the registration, on the grounds that: (1) Respondent’s state controlled substance registrations had been suspended, and thus he no longer has authority to handle controlled substances under South Carolina law; and (2) Respondent had committed acts inconsistent with the public interest. ALJ Ex. 1, at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)). With respect to the second ground for the proceeding, the Show Cause Order alleged that Respondent had ‘‘repeatedly failed to establish a proper physician-patient relationship, as required by state and federal law, and ha[d] authorized controlled substance[] prescriptions without a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 CFR 1306.04(a), 21 U.S.C. 841(a)(1), and S.C. Code Regs. 81–28.’’ Id. More specifically, the Order alleged that Respondent issued controlled-substance prescriptions to persons he knew were exhibiting drugseeking behavior, abusing controlled substances, or selling their drugs to others. Id. The Order further alleged that Respondent failed to obtain appropriate medical histories, perform appropriate physical examinations, discuss treatments options and create a therapeutic plan as required by state law.1 Id. at 2. Thereafter, the Government sought the Immediate Suspension of Respondent’s registration based on information that on July 3, 2008, the State of South Carolina had reinstated Respondent’s controlled-substance registration, and that on the same day, Respondent had issued to a person, who had traveled 250 miles to see him, prescriptions for sixty tablets of Oxycontin (80 mg.), 90 tablets of Lortab (10 mg.), and 90 tablets of Xanax (1 mg.). ALJ Ex. 2, at 1–2. The Order further alleged that this person had been receiving prescriptions from Respondent since July 2007, and that medical records which the Government had seized during the execution of a search warrant indicated that Respondent had not ‘‘perform[ed] an appropriate physical examination, ma[de] appropriate diagnoses or 1 On July 10, 2008, the Government served the Show Cause Order on Respondent. ALJ Ex. 3. E:\FR\FM\15APN1.SGM 15APN1

Agencies

[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17528-17529]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8613]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-10]


Scott Sandarg, D.M.D.; Revocation of Registration

    On July 25, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Scott Sandarg, D.M.D. (Respondent), of Irvine, 
California. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration, BS6026525, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, and the denial of any pending applications 
to renew or modify the registration, on the ground that Respondent had 
committed numerous acts which were inconsistent with the public 
interest. Show Cause Order at 1.
    The Show Cause Order specifically alleged that Respondent had 
unlawfully obtained controlled substances for his own use which 
included illicit methamphetamine, anabolic steroids, drugs containing 
hydrocodone, and several benzodiazepines including alprazolam, through 
various means including by engaging in prescription fraud and by 
obtaining the controlled substances over the internet from 
practitioners with whom he did not establish a valid doctor-patient 
relationship. Id. at 1-3. The Order also alleged that on two separate 
occasions, Respondent had been arrested; that the police found various 
controlled substances in his possession during lawful searches of his 
property; and that Respondent had subsequently pled guilty to various 
offenses under California law including one felony count of unlawful 
possession of a controlled substance in violation of Cal. Health & 
Safety Code Sec.  11377(a), one misdemeanor count of unlawfully being 
under the influence of a controlled substance in violation of Cal. 
Health & Safety Code section 11550(a), and two misdemeanor counts 
related to firearms violations under Cal. Penal Code section 17(b). 
Show Cause Order at 2-3.
    On September 11, 2007, a DEA Diversion Investigator attempted to 
serve the Order to Show Cause on Respondent by faxing it to him. On 
November 9, 2007, Respondent requested a hearing on the allegations of 
the Show Cause Order, and the matter was assigned to an Administrative 
Law Judge (ALJ). Thereafter, the Government moved to terminate the 
proceeding on the ground that Respondent's request was out of time. 
Respondent opposed the motion, submitting the declarations of himself 
and his office manager, both of which asserted that the fax had 
included the cover sheet but not the Show Cause Order. Thereafter, the 
Government submitted a DI's declaration which maintained that 
Respondent's office manager had informed him that she had received the 
entire fax.
    The ALJ denied the Government's motion reasoning that there was a 
factual dispute as to when Respondent had received the Show Cause 
Order. The ALJ then allowed the Government to file an interlocutory 
appeal. On May 12, 2008, I denied the appeal because there was a clear 
factual dispute as to whether Respondent had actually received the Show 
Cause Order on September 11, 2007, and the dispute could not be 
resolved without assessing the credibility of each party's 
witnesses.\1\
---------------------------------------------------------------------------

    \1\ Respondent did not, however, dispute that he had 
subsequently been properly served.
---------------------------------------------------------------------------

    Thereafter, the Government moved to terminate the proceeding on the 
ground that on December 19, 2007, the California Board of Dental 
Examiners had adopted the proposed decision of a State Administrative 
Law Judge and revoked Respondent's State Dental Certificate with an 
effective date of January 21, 2008. Gov. Mot. for Summary Judgment 2-3. 
The Government argued that because Respondent is not authorized to 
handle controlled substances in the State in which he is registered 
with this Agency, he is not entitled to maintain his registration. Id.
    Respondent's counsel opposed the motion arguing that he had filed 
for a writ of administrative mandamus in State court challenging the 
Board's order. Respondent's Resp. to ALJ's May 21, 2008 Memorandum to 
Counsel at 1. According to Respondent's counsel, the writ raised 
multiple claims of error on the part of the State ALJ, and were the 
court to find any of the claims meritorious, Respondent's license could 
be restored. Id. Respondent's counsel further argued that DEA's 
decision be stayed until the State proceeding was resolved. Id. The 
Government opposed Respondent's motion on the ground that it was 
speculative whether the State court would grant any relief, and that

[[Page 17529]]

this Agency has previously rejected similar arguments.
    On July 10, 2008, the ALJ granted the Government's motion. ALJ at 
6. The ALJ noted that no material facts were in dispute and that 
Respondent did not deny that he is currently not authorized under 
California law to handle controlled substances. Id. Noting that this 
Agency has consistently held that a practitioner may not maintain his 
registration if he lacks authority to handle controlled substances 
under the laws of the State in which he practices, the ALJ granted the 
motion and recommended that Respondent's registration be revoked and 
that any pending applications to renew or modify his registration be 
denied. Id. Thereafter, the ALJ forwarded the record to me for final 
agency action.
    Having considered the entire record in this matter, I adopt the 
ALJ's decision in its entirety. I find that Respondent holds DEA 
Certificate of Registration, BS6026529, which authorizes him to 
dispense controlled substances in schedules II through V at the 
registered location of 17655 Harvard Place, Suite F, Irvine, 
California. I further find that while the expiration date of the 
registration was February 28, 2007, Respondent submitted a timely 
renewal application and therefore his registration has remained in 
effect pending the issuance of this Final Order. See 5 U.S.C. 554(e).
    I further find, however, that on December 19, 2007, the Dental 
Board of California ordered that Respondent's State Dental Certificate 
be revoked with an effective date of January 21, 2008.\2\ Moreover, 
while it has been more than seven months since Respondent's challenge 
to the Dental Board's proceeding was heard in State court, Respondent 
has submitted no evidence to the Agency that the Board's revocation 
order has been set aside or stayed, and according to the Board's Web 
site, Respondent's Dental Certificate remains revoked.
---------------------------------------------------------------------------

    \2\ The State ALJ's decision concluded that the State had proved 
nine different causes to discipline Respondent, several of which 
related to his abuse of controlled substances. In re Sandarg, 
Proposed Dec. at 44-46, No. DBC 2006-36 (2007).
---------------------------------------------------------------------------

    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. Sec.  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 under State law to handle controlled substances is 
an essential condition for holding a DEA registration.
    Accordingly, DEA has held repeatedly that the CSA requires the 
revocation of a registration issued to a practitioner whose State 
license has been suspended or revoked. David Wang, 72 FR 54297, 54298 
(2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. 
Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 
(1988). See also 21 U.S.C. 824(a)(3)(authorizing the revocation of a 
registration ``upon a finding that the registrant * * * has had his 
State license or registration suspended [or] revoked * * * and is no 
longer authorized by State law to engage in the * * * distribution [or] 
dispensing of controlled substances'').
    Here, there is no dispute over the material fact that Respondent's 
California Dental Certificate has been revoked and that Respondent 
lacks authority under California law to dispense control substances. 
Respondent is therefore not entitled to maintain his DEA registration.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA 
Certificate of Registration, BS6026529, issued to Scott Sandarg, 
D.D.S., be, and it hereby is, revoked. I further order that any pending 
application of Scott Sandarg, D.D.S., to renew or modify his 
registration, be, and it hereby is denied. This Order is effective May 
15, 2009.

    Dated: April 3, 2009.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E9-8613 Filed 4-14-09; 8:45 am]
BILLING CODE 4410-09-P

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