Alvin Darby, M.D.; Denial of Application, 26993-27000 [2010-11431]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Notices]
[Pages 26993-27000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11431]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 09-6]


Alvin Darby, M.D.; Denial of Application

    On June 25, 2008, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Alvin Darby, M.D. (Respondent), of Gretna, Louisiana. The 
Show Cause Order proposed the denial of Respondent's pending 
application for a DEA Certificate of Registration as a practitioner on 
multiple grounds. ALJ Ex. 1, at 1 (citing 21 U.S.C. 823(f) and 
824(a)(1) and (2)).
    First, the Government alleged that on April 1, 1998, Respondent had 
pled guilty in the Criminal Court for Orleans Parish, Louisiana to one 
felony count of possession of cocaine and one misdemeanor county of 
carrying a concealed weapon. Id. The Order further alleged that 
Respondent ``materially falsified'' his application ``by failing to 
disclose [his] * * * felony conviction related to controlled 
substances.'' Id. at 2.
    Next, the Show Cause Order alleged that ``[o]n three separate 
occasions between May 13, and June 24, 2003, [Respondent] issued 
prescriptions for hydrocodone ([a] schedule III controlled substance) 
[and] alprazolam ([a] schedule IV controlled substance),'' to an 
undercover agent in exchange for cash, and that the prescriptions 
lacked a ``legitimate medical purpose'' and were issued outside of the 
``usual course of professional practice.'' Id. at 1. Finally, the Show 
Cause Order alleged that Respondent ``committed numerous recordkeeping 
violations under [his] previous * * * registration,'' which he had 
surrendered for cause, including that: (1) He had ``fail[ed] to take 
a[n] initial inventory of stocks of controlled substances,'' (2) he had 
``fail[ed] to take and maintain a biennial inventory,'' and (3) he had 
failed to ``maintain records of controlled substances [which he] 
dispensed.'' Id. at 2 (citing 21 CFR 1304.11(b), 1304.11(c), 
1304.22(c)).\1\
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    \1\ Moreover, in its Prehearing Statement, the Government 
notified Respondent that it intended to litigate the question of 
whether Respondent had also materially falsified his March 10, 2005 
application for registration by failing to disclose that on August 
18, 1999, he had entered into a Consent Order with the Louisiana 
State Board of Medical Examiners, which placed his medical license 
on probation for a five year period. ALJ Ex. 4, at 3, 6-7.
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    By letter of October 21, 2008, Respondent's counsel requested a 
hearing on the allegations. ALJ Ex. 2, at 2. According to Respondent, 
he did not receive the Show Cause Order ``in a timely manner because 
the notice was delivered to an old address.'' Id. Respondent further 
maintained that he ``was notified via facsimile on September 22, 2008 
that he has an opportunity to show cause as to why'' his application 
should not be denied and therefore ``request[ed] the opportunity to be 
heard.'' Id. The Government did not object to granting Respondent a 
hearing.\2\
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    \2\ The ALJ did not make any findings as to whether the 
Government's attempts to serve Respondent were constitutionally 
adequate, the date when service was initially attempted, and/or 
whether Respondent had shown good cause for failing to timely file.
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    The case was then assigned to an agency Administrative Law Judge 
(ALJ), who conducted a hearing on July 14 and 15, 2009, in New Orleans, 
Louisiana. At the hearing, both parties called witnesses and introduced 
documentary evidence. After the hearing, both parties submitted briefs 
containing their proposed findings of facts, conclusions of law, and 
argument.
    On September 10, 2009, the ALJ issued his Recommended Decision 
(hereinafter, also ALJ). Therein, the ALJ found that ``the credible 
evidence clearly establishes that Respondent prepared and submitted an 
application that falsely indicated that he had never been convicted of 
a crime in connection with a controlled substance and that he had never 
had a state professional license placed on probation.'' ALJ at 23. The 
ALJ further found that the falsification was material as it ``had the 
capacity to influence DEA's decision on the application'' and, second, 
that the Government ``ha[d] clearly established a prima facie case for 
the denial of Respondent's application based solely on the material 
falsifications contained in [Respondent's] application.'' Id. at 24.
    The ALJ then addressed the ``the public interest'' factors under 21 
U.S.C. 823(f). As for factor one (the recommendation of the state 
licensing board), the ALJ noted that the Board had restored 
Respondent's medical license. ALJ at 26-27. However, he further noted

[[Page 26994]]

that under Agency precedent, a State Board's restoration of a medical 
license is not dispositive in the public interest inquiry because DEA 
has an independent responsibility ``to determine whether a registration 
is in the public interest.'' Id. at 27 (citing cases). The ALJ thus 
concluded that this factor weighed neither for, nor against, a 
determination that granting Respondent a certificate of registration 
would be in the public interest. Id.
    The ALJ next addressed factor three (the applicant's conviction 
record under Federal and State laws related to the manufacture, 
distribution and dispensing of controlled substances) and whether 
Respondent's ``state felony'' conviction for ``criminal possession of 
crack cocaine'' constituted a conviction under this factor. Id. at 27-
28. While the ALJ concluded that Respondent's conviction for cocaine 
possession was not relevant under this factor, id. at 28, he 
subsequently noted that it could be considered under factor five as 
such other conduct which may threaten public health and safety. Id. at 
34-35.
    The ALJ then turned to factors two, four and five (Respondent's 
experience in dispensing controlled substances, his compliance with 
applicable State, Federal or local laws relating to controlled 
substances, and such other conduct which may threaten the public health 
and safety). With respect to the allegation that Respondent had sold 
controlled substance prescriptions to an undercover Agent for cash, the 
ALJ concluded that the Government ``failed to present evidence in 
sufficient[ly] credible detail to support [the] allegation by a 
preponderance of the evidence.'' Id. at 30. More specifically, the ALJ 
noted that the Agent who had made the undercover visits did not testify 
in the proceeding and that the Investigator who testified regarding 
them ``conceded'' that the Agent's vital signs were taken and that he 
had complained of a medical condition. Id. The ALJ also noted that 
while Respondent had diagnosed the Agent as having a ``leg-length 
disparity,'' there was ``not even evidence from which it could be 
inferred that [the Agent] did not, in fact have'' this condition. Id.
    However, the ALJ also found that Respondent had pre-signed 
controlled substance prescriptions and that such prescriptions were not 
``issued in the usual course of professional practice.'' Id. Moreover, 
the ALJ concluded that when this practice was coupled with various 
circumstances surrounding Respondent's practice (including the late 
night hours he maintained, the lack of specific appointment times, 
various instances of his patients negotiating drug deals in his parking 
lot, and the issuance of prescriptions to patients before Respondent 
even saw them) made it clear that ``Respondent's prescribing practices 
were not designed to issue prescriptions for legitimate medical 
purposes in the usual course of a professional practice.'' Id. at 30-
31. In this regard, the ALJ further noted that Respondent made the same 
diagnoses of a leg-length discrepancy in each of the 52 patient files 
that the Government had seized and that ``it is patently unreasonable 
to attribute [this diagnosis] to mere coincidence.'' Id. at 31. 
Finally, the ALJ noted that while during the execution of a search 
warrant, Respondent had various controlled substances on the premises, 
he did not have such required records as an initial inventory, the 
biennial inventory, and a dispensing log. Id. at 32.
    The ALJ further noted that it was ``remarkable that these actions 
took place even after * * *. Respondent had been through the criminal 
justice system * * * and had his medical license placed on probation.'' 
Id. at 33. Moreover, the ALJ found that Respondent had failed to accept 
responsibility for his actions and that he ``flatly denied preparing 
and submitting the application'' which he materially falsified even 
though his assertion ``was wholly inconsistent with the evidence 
developed at the hearing.'' Id. at 35.
    The ALJ thus concluded that ``the Government has established that 
the Respondent has committed acts that are inconsistent with the public 
interest'' and that Respondent has not ``accepted responsibility for 
his actions, expressed remorse for his conduct at any level, or 
presented evidence that could reasonably support a finding that the 
Deputy Administrator should again entrust him with a Certificate of 
Registration.'' Id. at 36. The ALJ thus recommended that Respondent's 
application be denied. Id.
    Neither party filed exceptions to the ALJ's decision. Thereafter, 
the record was forwarded to me for final agency action.
    Having considered the record in its entirety, I adopt the ALJ's 
findings of fact (including his credibility findings) except as 
expressly noted otherwise. I further adopt the ALJ's legal conclusion 
that Respondent's registration would be inconsistent with the public 
interest. Accordingly, I will adopt the ALJ's recommendation and deny 
Respondent's application. I make the following findings.

Findings

    Respondent is a physician licensed by the Louisiana State Board of 
Medical Examiners who practices physical medicine. GX 3 at 1. 
Respondent also previously held a DEA Certificate of Registration, 
which authorized him to dispense controlled substances as a 
practitioner at the address of 555 Holmes Boulevard, Gretna, Louisiana. 
GX 1. However, on June 2, 2004, following an investigation by DEA (the 
circumstances of which are set forth below), Respondent voluntarily 
surrendered his registration. Id.; GX 6.
    On March 9, 2005, Respondent applied for a new DEA registration 
using the Agency's Web site.\3\ GXs 1 & 8. While Respondent denied 
filing this application, Tr. 309, the Government produced evidence 
showing that the $390 application fee was charged to a credit card 
account held by him. GX 13, at 2 & 4.
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    \3\ As explained below, I agree with the ALJ that Respondent's 
testimony that he did not submit the March 10, 2005 application is 
not credible. According to the affidavit of a Diversion 
Investigator, while the application was submitted via the internet 
on March 9, 2005, the transaction was not posted until the following 
day. GX 13, at 2.
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    On the application, Respondent was required to answer four 
``liability'' questions. The first question asked: ``Has the applicant 
ever been convicted of a crime in connection with controlled 
substance(s) under state or federal law, or is any such action 
pending?'' GX 1. Respondent answered: ``no.'' Id.
    The third question asked: ``Has the applicant ever had a state 
professional license or controlled substance registration revoked, 
suspended, denied, restricted, or placed on probation, or is any such 
action pending?'' Id. Respondent again answered: ``no.'' Id.
    The second question asked: ``Has the applicant ever surrendered or 
had a federal controlled substance registration revoked, suspended, 
restricted or denied, or is any such action pending?'' Id. at 2. 
Respondent answered:

    On June 02, 2004, my primary office in Louisiana was visited by 
the Mississippi Division of DEA Diversion Unit. Officers of this 
unit expressed concerns regarding lack of Mississippi State DEA 
Registration. Advised to surrender Louisiana DEA Registration to 
facilitate investigation of other matters regarding patient 
prescription writing [sic] habits. As of this application 
submission, am uncertain of status of the investigation.

Id. at 2.\4\
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    \4\ The fourth liability question was not applicable.
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    Based on Respondent's ``yes'' answer to the second question, his 
application was assigned to a DEA Diversion

[[Page 26995]]

Investigator with the New Orleans Field Division Office.\5\ Tr. 189. 
However, because there was an open criminal investigation into his 
activities in Mississippi, no action was taken on the application until 
after the United States Attorney for the Southern District of 
Mississippi declined prosecution. Id.
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    \5\ According to a DI, an affirmative response to these 
``liability'' questions can trigger the referral of an application 
to a DEA Investigator, and the opening of an investigation. Tr. 184. 
Conversely, a negative answer to all ``liability'' questions results 
in an application being forwarded to a DEA registration technician 
for what is an essentially a pro forma examination with likely 
approval. Id. at 184-85, 201-04.
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    During the course of its investigation, DEA obtained a copy of a 
Consent Order which Respondent entered into with the Louisiana State 
Board of Medical Examiners (hereinafter, State Board or Board), which 
the latter approved on August 18, 1999. GX 3, at 11. Therein, 
Respondent admitted that on April 1, 1998, he had pled guilty to the 
offense of ``simple possession of cocaine,'' a felony under Louisiana 
law.\6\ Id. at 2; see also GX 2(2), at 1; GX 2(3), at 1. Respondent was 
given a suspended sentence of two years in the custody of the Louisiana 
Department of Correction for this offense, two years of probation, 
fined $600, and ordered to undergo drug counseling and rehabilitation. 
GX 3, at 2; GX 2(5).
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    \6\ In the same proceeding, Respondent pled guilty to carrying a 
concealed weapon, a misdemeanor under Louisiana law. GX 3, at 2.
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    In the consent order, Respondent further admitted that he had used 
marijuana on a daily basis, and that he had ``used cocaine in 1982, 
1985, and 1991,'' and that during 1991, ``he began using cocaine on a 
more regular and frequent basis [and] developed a dependency on crack 
cocaine and `primo,' a mixture of cocaine and marijuana smoked 
together.'' GX 3, at 2. However, the State Board found that Respondent 
had submitted to inpatient treatment and ``completed all four phases of 
residential treatment and made a commitment to long term recovery by 
establishing a relationship with the Physicians Health program.'' Id. 
at 2.
    Based on the above, the State Board concluded that there was ``just 
cause'' to charge Respondent with various violations of the Louisiana 
Medical Practice Act. Id. at 3. However, the Board placed Respondent on 
probation for a period of five years subject to various conditions. On 
May 16, 2008, the Board terminated Respondent's probation and fully 
reinstated his license. RX 1.
    At the hearing, the Government presented the testimony of a DEA 
Diversion Investigator (DI) from the Resident Office (RO) in Gulfport, 
Mississippi, who was involved in the criminal investigation of 
Respondent. Tr. 21-23. According to the DI, in 2003, his office 
received information from law enforcement agencies and ``concerned 
citizens and parents'' that Respondent was operating a medical practice 
in D'Iberville (a suburb of Biloxi, Mississippi) that catered to drug-
seeking patients and which was servicing its clientele very late at 
night. Id. at 28-29. The Gulfport RO also received information that 
Respondent was charging $200.00 for a patient's first visit, $100.00 
for subsequent visits, and that the transactions were being conducted 
in cash.\7\ Id. at 33. DEA also learned that the Respondent had an 
office location in Gretna, Louisiana.\8\ Id. at 25, 33.
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    \7\ According to the DI, in his experience a cash-based medical 
practice and a cash-based patient base are unusual features of a 
medical practice and raise investigatory red flags. Tr. at 34-35.
    \8\ The DI testified that a 2003 query of DEA databases 
indicates that the Respondent was registered at locations in New 
Orleans, Louisiana and Biloxi, Mississippi and that the latter 
registration expired in July 2003. Tr. 24-25, 27-28.
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    Based on this information, DEA conducted an undercover operation 
which focused on Respondent's practice in Mississippi. According to the 
DI, a Special Agent (who has since retired), using the name of Reggie 
Glorioso, made five undercover visits to Respondent's D'Iberville 
office as well as two undercover visits to a location in nearby 
Diamondhead, Mississippi, where Respondent eventually moved his 
office.\9\ Id. at 50-51, 54, 124. The DI testified that his role was to 
assemble the surveillance team that would monitor and record the 
progress of the operation through audio transmitters that the Agent 
wore. Id. at 47. According to DI, he listened to the visits as they 
were being conducted. Id. at 44-48.
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    \9\ According to the DI, undercover (uc) visits to the 
D'Iberville office were conducted in 2003 on May 14, May 28, June 
24, July 22, and August 22; visits to the Diamondhead office were 
conducted on November 20 and December 18. Tr. at 50-51. The 
Government, however, only presented evidence about the first three 
uc visits. Tr. 55-89.
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    The DI testified that the first visit was conducted on May 14, 
2003, with the Agent arriving at Respondent's D'Iberville office at 
about 5 p.m. Id. at 57. Respondent finally arrived at approximately 9 
p.m. Id. Respondent's office staff weighed the Agent, took his pulse 
and blood pressure, and at approximately 10:40 p.m. led him to an 
examination room. Id. at 57-58, 63. At 11:05 p.m., Respondent finally 
entered the exam room. Id. at 59.
    During his interaction with Respondent, the Agent told the 
Respondent that he had stiffness in his shoulders. Id. at 147. 
According to the DI, the Respondent had the Agent ``place one leg on a 
telephone book'' and then ``lifted'' the Agent's ``right hand.'' Id. at 
62. Based on this examination, Respondent told the Agent ``that he had 
a pelvic problem in which one foot was 3/4th of an inch lower than his 
right side, which caused stress to his entire body, [and] therefore 
caused him pain.'' Id. At approximately 12:22 a.m., Respondent gave the 
Agent prescriptions for 25 dosage units of Xanax,\10\ 50 dosage units 
of Vicodin,\11\ and 30 Soma (carisoprodol, a non-controlled drug). Id. 
at 63-65. The Agent paid a member of the Respondent's office staff 
$202.00 in cash and was given a follow-up appointment for May 28, 2003, 
but with no appointment time indicated. Id. at 66.
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    \10\ A Schedule IV controlled substance. ALJ Ex. 6, at 1.
    \11\ A Schedule III controlled substance. ALJ Ex. 6, at 1.
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    The Government did not offer either the transcript or a recording 
of the visit (or any of the other visits for that matter). Moreover, it 
did not call the Agent to testify.
    At approximately 5 p.m. on May 28, 2003, the Agent returned to 
Respondent's D'Iberville office.\12\ Id. at 72. The Agent signed in and 
was told by Andre, a member of the office staff that Respondent would 
not be in until later in the evening. Id. at 74. The Agent and Andre 
agreed that the former would call in and check with the latter to learn 
when Respondent was in the office. Id.
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    \12\ The DI testified that times were not assigned for 
appointments at the Respondent's D'Iberville office. Patients would 
sign in with a staff member and wait around the office, often in the 
parking lot, for Respondent to arrive.
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    At 9:37 p.m., the Agent called Andre and was told that Respondent 
was in. Id. The Agent returned to the office at 9:45 p.m., where he 
waited until 1:05 the following morning, when he was finally taken to 
an examination room. Id. at 67, 74. While in the examination room, the 
Agent was able to look through his patient file and noted that it 
contained pre-signed prescriptions for 35 dosage units of Xanax, 65 
dosage units of Vicodin, and 65 dosage units of Soma.\13\ Id. at 67-68. 
While the record is unclear as to what time Respondent entered the exam 
room, the visit ended at 2:15 a.m. and cost $100. Id. at 69, 75. The 
Agent received the aforementioned prescriptions as well as 
prescriptions for

[[Page 26996]]

naprosyn (a non-controlled drug) and for a modified shoe. Id. at 82-83.
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    \13\ According to the DI, this combination of drugs is highly 
sought after by drug abusers and is known on the street as the 
``holy trinity.'' Tr. 84. While Soma (carisoprodol) is not 
controlled, it ``enhances the euphoric effect of both the 
hydrocodone and * * * the Xanax.'' Id.
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    According to the DI, notwithstanding the hour, ``there were still 
individuals waiting in the parking lot to see'' Respondent. Id. at 70. 
Moreover, the DI testified as to the Agent's interaction with several 
of Respondent's ``patients'' that took place in his office parking lot. 
Id. at 75-79. One of these individuals, T.B., told the Agent that he 
was ``visiting more than one physician in order to obtain controlled 
substances.'' Id. at 79. The Agent asked T.B. if he was interested in 
selling his Xanax; the latter indicated that he might be interested and 
the two exchanged phone numbers. Id. at 78-79. The Agent and T.B. also 
discussed the latter's selling hydrocodone to the former and agreed on 
a price of $3 per dosage unit.\14\ Id. at 79-80.
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    \14\ A Schedule III controlled substance. ALJ Ex. 6, at 1.
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    The Agent also exchanged phone numbers with another individual at 
the scene, L.H., who told the former that he was seeing multiple 
physicians to obtain drugs. Id. at 80. In response to an inquiry by the 
Agent, L.H. agreed to sell him 100 Lortab \15\ for $300 and some 
OxyContin 80 mg.\16\ for $25 a tablet. Id. at 81.
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    \15\ A Schedule III controlled substance which contains 
hydrocodone. ALJ Ex. 6, at 1.
    \16\ A Schedule II controlled substance. ALJ Ex. 6, at 1.
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    On June 24, 2003, the Agent made his third visit to the D'Iberville 
office. Id. at 85. According to the DI, the Agent arrived a little 
after 9 p.m. and paid $100 for the visit. Id. at 86-87. At 
approximately 10:43 p.m., while he was still waiting to be see 
Respondent, a staff member called for Reggie Glorioso (the Agent's 
assumed name) and handed him an appointment card reflecting his next 
appointment date, a receipt for $100, and prescriptions for Vicodin, 
Soma, Naprosyn, and Xanax. Id. at 88. These prescriptions had been pre-
signed by Respondent and were given to the Agent before his interaction 
with Respondent, which commenced at 10:57 p.m. and ended five minutes 
later. Id. at 85-89.
    Following the additional visits \17\--the details of which were not 
elicited from the DI--the Investigators obtained a warrant to search 
Respondent's Gretna, Louisiana office, which was executed on June 2, 
2004.\18\ See GX 4 & 5. During the search, the Government seized 
various controlled substances including 22 tablets of hydrocodone 5 
mg., 45 tablets of Percocet 10/325 mg.,\19\ 23 tablets of Lorcet 10/650 
mg., 10 full vials and one partially full vial of diazepam 10 mg./
ml.,\20\ 5 vials of diazepam 5 mg./ml., and 1 vial of Stadol 2 mg./
ml.\21\ GX 5, at 3.
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    \17\ On cross examination, the DI testified that at the fifth uc 
visit, the Agent brought the prescribed shoe into the Respondent's 
office. Tr. 147-48. The cross examination also revealed that during 
the final uc visit, the Agent was given some exercises to do. Id. at 
149, 152. Neither the Government nor the Respondent elicited any 
further details regarding the uc visits.
    \18\ According to the DI, the investigators sought the warrant 
to search this office because it was where Respondent kept his 
patient files. Tr. 90. Tr. at 90.
    \19\ A Schedule II controlled substance which contains 
oxycodone. ALJ Ex. 6, at 1.
    \20\ A Schedule IV controlled substance. ALJ Ex. 6, at 1.
    \21\ The Officers also seized a .45 caliber pistol from his 
bedroom, which apparently was located upstairs from the office. Tr. 
90-103. According to the DI, Respondent was unable to produce any 
documentation for the firearm and offered no explanation regarding 
its presence on the premises. Id. at 98-99. Moreover, a serial 
number check with the Bureau of Alcohol, Tobacco, Firearms and 
Explosives (ATF) did not return a record showing who owned the gun. 
Id. at 102.
     While the DI had previous experience in a local sheriff's 
office, he was not familiar with Louisiana's firearms laws and did 
not know whether Respondent's possession of the gun violated either 
state or federal law. Id. at 103, 160-61. The ALJ further noted that 
later in the hearing, the Government introduced a document entitled 
``Verification of First Offender Pardon'' which was addressed to the 
Respondent and indicated that the pardon he was granted did not 
operate to restore any rights he might have regarding receiving, 
possessing or transporting a firearm. Govt. Ex. 11.
     In its brief, the Government argues that ``Respondent was found 
in violation of the First Offender Pardon when he was found in 
possession of a loaded pistol during [the] execution of [the] search 
warrant.'' Gov. Br. at 17. The Government does not, however, cite to 
any judicial finding that Respondent was in violation of either the 
terms of his probation or of state law. Nor, as the ALJ noted, does 
the Government cite any legal authority to support its contention 
that Respondent was permanently barred from possessing a handgun. I 
further agree with the ALJ that ``no valid legal conclusion can 
reasonably be drawn from the language of the letter or its issuance 
to the Respondent.'' ALJ at 8 n.23. Finally, the issue is of 
tangential relevance.
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    Notwithstanding the presence of these drugs, Respondent did not 
have various records which he was required to maintain, including an 
initial and/or biennial inventories, and a dispensing log. Tr. 113-15, 
123-24, 158; see also 21 CFR 1304.11(b) & (c), id. 1304.22(c). At the 
scene, the Respondent admitted to the agents that he kept no such 
records. Tr. at 115. The DI also testified that while Respondent had 
issued prescriptions at his Mississippi office, his DEA registration 
for this office had expired in July 2003. Id. at 28; see also 21 U.S.C. 
822(e); 21 CFR 1301.12(a) & (b)(3).
    The DI further testified that although he was not part of the 
initial entry team that executed the warrant, he was on the scene after 
the premises were secured. Tr. 154. According to the DI, he, along with 
three or four agents and a representative of the State Board of Medical 
Licensure, met with Respondent and interviewed him while the search was 
conducted. Id. at 176. The ALJ specifically found credible the DI's 
testimony that during the interview, the Respondent was seated in a 
chair, no threats or promises were made, and no weapons were 
brandished.\22\ ALJ at 8; see also Tr. 130-32, 154-55. The ALJ also 
found credible the DI's testimony that Respondent was informed that he 
was not under arrest, and that following some discussion about the 
status of the investigation, Respondent voluntarily surrendered his DEA 
registration and executed a DEA Form 104 (Voluntary Surrender of 
Controlled Substances Privileges). ALJ at 8. The ALJ further credited 
the DI's testimony that before Respondent signed the surrender form, he 
read the Respondent his ``surrender rights'' \23\ from the form and 
Respondent acknowledged that he understood the significance of signing 
the document. Id., see also Tr. at 132-38.
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    \22\ The ALJ found that while the weapons may have been drawn by 
other agents during the initial entry to the premises, there is no 
credible evidence to support the Respondent's claim that weapons 
were brandished during the DI's interview of Respondent. ALJ at 20.
    \23\ Actually, the form contains an explanation of the effects 
of the executed form, after the following statement: ``After being 
fully advised of my rights, and understanding that I am not required 
to surrender my controlled substances privileges, I freely execute 
this document and choose to take the actions described herein.'' GX 
6, at 1.
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    During the interview, Respondent stated that he charged about 
$200.00 for an initial office visit, $100.00 for subsequent visits, and 
offered a 10-20% discount for patients who paid in cash. Tr. at 104, 
175. Respondent also told the DI that the Internal Revenue Service had 
a judgment against him for between $180,000.00 and $190,000.00 and that 
he owed the entire amount. Id. at 105.
    Pursuant to the warrant, the Government seized fifty-two patient 
files from Respondent's Gretna, Louisiana office. Id. at 116. According 
to the DI's review of the patient files, Respondent had diagnosed each 
of the fifty two patients (including that of the Special Agent who used 
the name of Reggie Glorioso) as having a leg-length discrepancy.\24\ 
Id. at 116-17. Moreover,

[[Page 26997]]

each file contained evidence that Respondent had ``prescribed 
narcotics'' and ``a modified shoe.'' Id. at 117. While the ALJ noted 
that the Government ``introduced no expert testimony in this regard,'' 
he found it ``striking * * * that the same ailment and prescribed 
treatment that the Respondent assigned to SA Price would exist in all 
the files seized from his practice.'' ALJ at 9.
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    \24\ The Government elicited testimony from the DI that during 
his investigation he consulted with a physician who is an expert in 
pain management. Tr. 118-20. The Government, however, did not call 
the expert to testify nor introduce any documentary evidence setting 
forth his opinion as to the validity of Respondent's prescribing 
practices.
    According to the DI, the expert told him that leg-length 
discrepancy is a rare diagnosis, and that there were referrals to 
particular specialists and other treatment modalities that are 
customarily utilized during a pain practice. Id. However, there is 
no evidence as to how statistically rare this diagnosis is.
    The ALJ thus considered this evidence only as background 
information showing the reasonableness of the DI's continued 
investigation. The ALJ further noted that during its examination of 
the DI, the Government clarified that this was the sole purpose for 
which this portion of his testimony was being offered and that, in 
any event, the DI's testimony regarding his conversations with the 
expert ``w[as] vague in content and could not even be fixed with an 
approximate date and time.'' Given the Government's representation, 
I agree with the ALJ that testimony is entitled to no weight in 
determining the lawfulness of Respondent's prescribing practices. 
ALJ at 10.
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    While this is true enough, there is no testimony to establish how 
statistically improbable the condition is in even a single patient. Nor 
is there any evidence showing the extent and duration of Respondent's 
prescribing to the other fifty-one persons whose files were reviewed, 
nor evidence establishing that the prescriptions he issued to these 
persons lacked a legitimate medical purpose and were issued outside of 
the usual course of professional practice.
    The DI further testified that the patients came from all over the 
Southeastern United States and included persons from Alabama, Florida, 
and Louisiana. Tr. 121. According to the DI, he ran a criminal history 
check on each of the other patients and found that all of them had a 
history of illegal activity with regard to controlled substances, 
including such offenses as prescription fraud, offenses based on doctor 
shopping, as well as unlawful distribution apparently of both 
prescription and non-prescription controlled substances such as 
marijuana and cocaine. Id.\25\ However, as the ALJ noted, the 
Government did not offer any evidence specific to any of these persons 
such as their names, the exact nature or recency of the criminal 
activity, and most significantly, whether any of these persons had been 
convicted of criminal offenses.\26\ ALJ at 9 n.29.
---------------------------------------------------------------------------

    \25\ Tr. at 169-70.
    \26\ Tr. at 38, 40, 121.
---------------------------------------------------------------------------

    The ALJ further noted that while the Government initially indicated 
that it intended to call the retired Agent as a witness, it declined, 
without explanation, to do so at the hearing. ALJ at 9. The ALJ also 
noted that while the DI indicated that the audio recordings and 
transcripts of the undercover visits to the Respondent's offices were 
still in existence, he did not bring these items to the hearing because 
he was not asked to do so. Id. at 9-10.
    The ALJ further found that the DI's testimony concerning his 
recollection of the interaction that took place between SA Price and 
the Respondent was quite vague and that on several occasions he needed 
to review his case file and an unsigned copy of an affidavit he had 
prepared on previous occasion. Id. at 10. While the ALJ generally found 
the DI's testimony to be credible, he noted that it ``would have been 
more helpful if it had been preceded by a higher level of 
preparation.'' Id. Most significantly, the ALJ found that the DI's 
testimony regarding the interaction between the Respondent and the 
Special Agent during the undercover visits ``was insufficiently precise 
to shed significant light on the Respondent's prescribing practices as 
evidenced in those visits.'' Id.

Respondent's Evidence

    In his testimony, Respondent repeatedly denied filing the March 10, 
2005 application, and insisted that ``there [wa]s no way I could have 
left all this incomplete.'' Tr. 309, 313-14. He further asserted that 
he submitted an application in October or November 2005 after Hurricane 
Katrina and that he told the Chicago DEA office everything about his 
1998 guilty pleas and the probation of his state medical license. Id. 
at 313-15.
    As to Respondent's assertion that he never filed the March 10, 2005 
application, the ALJ found that it ``flies in the face of much of the 
credible evidence.'' ALJ at 19. In particular, the ALJ found it 
difficult to believe that an ``unidentified individual would possess 
[the] level of personally identifiable information [necessary to 
transact the credit card transaction] and be willing to pay $390.00 to 
file an application for a DEA Registration in secret, and to the 
Respondent's detriment.'' Id. (see also id. at 20: ``Perhaps the least 
credible in the litany of incredible assertions put forth by the 
Respondent is the testimony that he never filed the application for the 
[Certificate of Registration] containing his material falsifications, 
particularly in light of the fact that his credit card was utilized to 
pay the application fee.'').
    Moreover, the nature of the information that was provided in 
response to question 2 on the application included highly specific 
information regarding the circumstances surrounding Respondent's 
surrender of his previous registration. See GX 1, at 2. More 
specifically, the answer stated that ``[o]n June 2, 2004, my primary 
office in Louisiana was visited by'' a ``DEA Diversion Unit,'' which 
advised him to surrender his Louisiana DEA registration. Id. This, of 
course, was the exact date that the warrant was executed and on which 
Respondent surrendered his registration. This begs the question--which 
Respondent did not answer--what other individual would have known this 
information and used it (as well as Respondent's credit card) to file 
the application? I thus agree with the ALJ that Respondent completed 
the application and gave false testimony when he denied filing the 
March 10, 2005 application.
    At the hearing, Respondent did not deny either that he had a felony 
conviction for possession of cocaine or that his medical license had 
previously been placed on probation. While Respondent apparently 
admitted that his answer to the first liability question (which asked 
if he had ``ever been convicted of a crime in connection with 
controlled substances under state or federal law'') was false, he 
nonetheless insisted that his answer to the third liability question 
(regarding his state license) was ``correct.'' Tr. 341. He further 
testified that in answering the latter question, he interpreted the 
question as if it asked only whether his state prescription writing 
authority had been placed on probation. Id. at 346-47. However, as 
found above, the question encompasses--in plain English--discipline 
imposed against an applicant's professional license and not just his 
state controlled substance registration.\27\
---------------------------------------------------------------------------

    \27\ The Government further showed that on an application that 
Respondent submitted in June 2000, he had also provided a ``no'' 
answer to the question ``Has the applicant ever had a state 
professional license or controlled substance registration revoked, 
suspended, denied, restricted, or placed on probation?'' GX 12; Tr. 
344.
---------------------------------------------------------------------------

    Respondent also disputed that his patients came from other States, 
Tr. 406, and that he ran a cash-only practice. Id. at 401. As for why 
he saw patients so late at night as well as during the wee hours of the 
morning, Respondent testified that:

    [t]he only explanation I can give you * * * that makes sense in 
terms of * * * what I do as a physiatrist, my approach is fairly 
unique. We address the problems of, if you will, physical 
disfunction[sic] in a manner that typically required that type of 
extended, sit down, educational, this is what we're doing, this is 
how we have to approach it, you know, interacting with the patient 
to get them to understand what was expected of them in order to 
accomplish the goal.

Id. at 407.


[[Page 26998]]


    As for the DI's assertion that each of the fifty-one persons whose 
patient file was seized had some criminal behavior or drug history, 
Respondent testified that he used a questionnaire which asks various 
questions to identify problematic patients such as whether the patient 
had or was using illicit drugs, whether the patient had a psychiatric 
history, and that he would also do ``a general mental status 
assessment'' of each patient. Id. at 412-13. He further maintained that 
he discharged problematic patients, including those who were seeking 
drugs for self-abuse or to sell. Id. at 413-14.
    Putting aside the credibility of Respondent's testimony regarding 
his medical practices, it is notable that he failed to address several 
material issues that were proved by the Government. More specifically, 
he offered no testimony as to why he had pre-signed prescriptions, and 
why he failed to maintain inventories and a dispensing log.

Discussion

    Section 303(f) of the Controlled Substances Act (CSA) provides that 
an application for a practitioner's registration may be denied upon a 
determination ``that the issuance of such registration would be 
inconsistent with the public interest.'' 21 U.S.C. 823(f). 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 * * * 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.

    ``These 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 * * * an application for 
registration [should be] denied.'' Id. Moreover, I am not required to 
make findings as to all of the factors. Volkman v. DEA, 567 F.3d 215, 
222 (6th Cir. 2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005).
    Under Section 304(a)(1), a registration may be revoked or suspended 
``upon a finding that the registrant * * * has materially falsified any 
application filed pursuant to or required by this subchapter.'' 21 
U.S.C. 824(a)(1). Under agency precedent, the various grounds for 
revocation or suspension of an existing registration that Congress 
enumerated in section 304(a), 21 U.S.C. 824(a), are also properly 
considered in deciding whether to grant or deny an application under 
section 303. See The Lawsons, Inc., 72 FR 74334, 74337 (2007); Anthony 
D. Funches, 64 FR 14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 
(1998); Kuen H. Chen, 58 FR 65401, 65402 (1993). Thus, the allegation 
that Respondent materially falsified his application is properly 
considered in this proceeding. See The Lawsons, 72 FR at 74337; Samuel 
S. Jackson, 72 FR 23848, 23852 (2007). Moreover, just as materially 
falsifying an application provides a basis for revoking an existing 
registration without proof of any other misconduct, see 21 U.S.C. 
824(a)(1), it also provides an independent and adequate ground for 
denying an application. The Lawsons, 72 FR at 74338; cf. Bobby Watts, 
M.D., 58 FR 46995 (1993).
    Here, the record establishes two separate grounds for denying 
Respondent's application. First, Respondent materially falsified his 
March 2005 application for a registration. Second, Respondent has 
committed numerous acts which demonstrate that the issuance of a 
registration would be inconsistent with the public interest. Moreover, 
Respondent has failed to offer sufficient evidence to rebut the 
Government's prima facie showing that his registration would be 
inconsistent with the public interest.

The Material Falsification Allegation

    As found above, on March 9, 2005, Respondent, who had surrendered 
his DEA registration on June 2, 2004, applied for a new registration. 
While on the application Respondent acknowledged that he had previously 
surrendered his DEA registration, he provided a ``no'' answer to the 
questions of whether he had ``ever been convicted of a crime in 
connection with controlled substances under state or federal law'' and 
whether he had ``ever had a state professional license or controlled 
substance registration'' sanctioned. These statements were clearly 
false as Respondent had been convicted of possession of cocaine, a 
felony offense under the laws of Louisiana, and had also had his 
Louisiana Medical License placed on probation.
    Both of these falsifications were material. ``The most common 
formulation'' of the concept of materiality ``is that a concealment or 
misrepresentation is material if it `has a natural tendency to 
influence, or was capable of influencing, the decision of' the 
decisionmaking body to which it was addressed.'' Kungys v. United 
States, 485 U.S. 759, 770 (1988) (quoting Weinstock v. United States, 
231 F.2d 699, 701 (DC Cir. 1956)) (other citation omitted); see also 
United States v. Wells, 519 U.S. 482, 489 (1997) (quoting Kungys, 485 
U.S. at 770). The evidence must be ``clear, unequivocal, and 
convincing.'' Kungys, 485 U.S. at 772. However, ``the ultimate finding 
of materiality turns on an interpretation of substantive law.'' Id. at 
772 (int. quotations and other citation omitted).
    Moreover, ``[i]t makes no difference that a specific falsification 
did not exert influence so long as it had the capacity to do so.'' 
United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985). See 
also United States v. Norris, 749 F.2d 1116, 1121 (4th Cir. 1984) 
(``There is no requirement that the false statement influence or effect 
the decision making process of a department of the United States 
Government.'').
    DEA has previously held that ``[t]he provision of truthful 
information on applications is absolutely essential to effectuating 
[the] statutory purpose'' of determining whether the granting of an 
application is consistent with the public interest. See Peter H. Ahles, 
71 FR 50097, 50098 (2006).\28\ As a substantive matter, Congress has 
directed that the Agency consider five factors in determining whether 
the granting of an application is consistent with the public interest. 
See 21 U.S.C. 823(f). As noted above, the Agency is required to 
consider the status of the applicant's state authority to dispense 
controlled substances,\29\ the applicant's experience

[[Page 26999]]

in dispensing * * * controlled substances,'' his ``conviction record * 
* * relating to the * * * dispensing of controlled substances,'' his 
``[c]ompliance with applicable State, Federal, or local laws relating 
to controlled substances,'' and whether he has engaged in ``such other 
conduct which may threaten public health and safety.'' 21 U.S.C. 
823(f). Moreover, under the latter factor, DEA has frequently denied 
applications and revoked the registrations of practitioners who have a 
history of abusing controlled substances. See, e.g., Kenneth Wayne 
Green, Jr., 59 FR 51453 (1994); David E. Trawick, 53 FR 5326, 5327 
(1988).
---------------------------------------------------------------------------

    \28\ Cf. Martha Hernandez, M.D., 62 FR 61145, 61146 (1997) (An 
applicant's answers to the various liability questions are material 
because this Agency ``relies upon such answers to determine whether 
an investigation is needed prior to granting the application.''). A 
DI explained that, as a procedural matter, when an applicant 
provides ``no'' answers to the liability questions, the application 
is forwarded without further investigation to a registration 
technician for approval.
     It is acknowledged that Respondent truthfully disclosed that he 
had previously surrendered his registration and thus, his 
application would have been subjected to an investigation in any 
case. However, as the Supreme Court has explained, whether a false 
statement is material depends upon an interpretation of the 
substantive law. As explained above, Respondent's two false answers 
are clearly material to several of the factors which the Agency is 
charged with considering in making the public interest 
determination.
    \29\ Not only did Congress direct the Agency to consider ``[t]he 
recommendation of the appropriate State licensing board or 
professional disciplinary authority,'' a practitioner cannot be 
registered unless he ``is authorized to dispense * * * under the 
laws of the State in which he practices.'' 21 U.S.C. 823(f). See 
also 21 U.S.C. 802(21) (defining ``practitioner'' as ``a physician * 
* * licensed, registered, or otherwise permitted, by the United 
States or the jurisdiction in which he practices * * * to dispense * 
* * a controlled substance in the course of professional 
practice'').
---------------------------------------------------------------------------

    Congress has also explicitly granted the Agency authority to revoke 
a registration where a registrant ``has been convicted of a felony 
under [the CSA] or any other law of the United States, or of any State, 
relating to any substance defined in [the CSA] as a controlled 
substance.'' 21 U.S.C. 824(a)(2). As noted above, it has long been 
settled that the Agency has authority to deny an application on any of 
the grounds set forth in 21 U.S.C. 824.\30\
---------------------------------------------------------------------------

    \30\ To make clear, the Agency's authority to deny an 
application is not limited to those convictions enumerated in 21 
U.S.C. 823(f)(3), but also includes any conviction meeting the 
standards of 21 U.S.C. 824(a)(2) such as a conviction for simple 
possession.
---------------------------------------------------------------------------

    Thus, even though Respondent disclosed that he had previously 
voluntarily surrendered his registration and been the subject of an 
investigation with respect to his prescribing practices, his failure to 
disclose the previous state discipline (which was based on his abuse of 
various controlled substances as well as his conviction for cocaine 
possession) and this conviction, still had the capacity to influence 
the Agency's decision as to whether his application should be granted. 
It makes no difference that the Agency did not rely on the 
misrepresentations and grant his application. See United States v. 
Alemany Rivera, 781 F.2d at 234; United States v. Norris, 749 F.2d at 
1121.
    Under DEA precedent, the Government is not required to show that 
the falsification was intentional but only that the applicant ``knew or 
should have known that the response given to the liability question was 
false.'' The Lawsons, 72 FR at 74339; Samuel Arnold, 63 FR 8687, 8688 
(1998). Respondent obviously knew that he had ``been convicted of a 
crime in connection with controlled substances'' under Louisiana law. 
Likewise, he knew that his state license had previously been placed on 
probation. And contrary to his protestation that he thought the 
question was only directed at the loss of his prescription-writing 
authority, the question clearly encompassed the probationary sanction 
imposed on his Louisiana medical license.
    Thus, Respondent cannot credibly claim that the falsifications were 
the result of mere negligence or misunderstanding. Indeed, that 
Respondent denied having even submitted the application--an assertion 
which is patently false given the detailed information that the 
application included and the fact that the fee was paid for with his 
credit card--suggests that the falsification was intentional.
    I thus hold that Respondent materially falsified his March 2005 
application by failing to disclose his conviction for cocaine 
possession and the State Board's imposition of probation terms on his 
medical license. I further hold that Respondent--as evidenced by his 
having denied that he submitted the application--has failed to accept 
responsibility for his misconduct. See Samuel Jackson, 72 FR at 23853. 
Thus, Respondent's material falsification provides reason alone to deny 
his application.
    In addition, the evidence showed that Respondent, when he was 
previously registered, committed multiple acts which are properly 
considered under factors two and four and which render his 
``registration inconsistent with the public interest.'' 21 U.S.C. 
823(f). As found above, Respondent issued multiple prescriptions for 
controlled substances including hydrocodone and Xanax to an undercover 
Agent who visited him at his office in D'Iberville, Mississippi. While 
there is insufficient evidence to establish that these prescriptions 
lacked a legitimate medical purpose and were issued outside of the 
course of professional practice, see 21 CFR 1306.04(a), the evidence 
did show that at the undercover Agent's subsequent visits, Respondent 
had pre-signed prescriptions for both of the above controlled 
substances, and that during at least one of these visits, the Agent was 
given the prescriptions before he even saw Respondent.
    DEA has long interpreted the CSA as prohibiting the pre-signing of 
prescriptions. See Jayam Krishna-Iyer, 71 FR 52148, 52159 & n.9 (2006) 
(collecting cases), vacated on other grounds, 249 Fed. Appx. 159 (11th 
Cir. 2007). See also Walter S. Gresham, 57 FR 44213, 44214 (1992); 
James Beale, 53 FR 15149, 15150 (1988) (``It is a violation of 21 CFR 
1306.05(a) to pre-sign prescriptions for controlled substances.''). 
Respondent's practice of pre-signing prescriptions is indicative of 
drug dealing as he clearly had not evaluated the undercover Agent prior 
to writing the prescriptions to determine whether they were medically 
necessary to treat his purported condition.\31\
---------------------------------------------------------------------------

    \31\ The circumstantial evidence which includes his seeing 
patients in the wee hours of the morning, where the patients were 
coming from, the interactions that the Agent had with other 
``patients,'' and the uniformity of his diagnoses, create a strong 
suspicion that Respondent was not engaged in legitimate medical 
practice but rather drug dealing. However, under the substantial 
evidence test, the evidence must ``do more than create a suspicion 
of the existence of the fact to be established.'' NLRB v. Columbian 
Enameling & Stamping Co., 306 U.S. 292, 300 (1939). Given the 
numerous evidentiary gaps in the record, I do not make any findings 
regarding the lawfulness of Respondent's prescribing practices with 
respect to the other 51 patients whose files were seized.
---------------------------------------------------------------------------

    The evidence also showed that during the search of Respondent's 
Louisiana office, Investigators found various controlled substances 
including Percocet (a schedule II drug containing oxycodone), 
hydrocodone and Lorcet (both schedule III drugs containing 
hydrocodone), diazepam and Stadol (both schedule IV drugs). Respondent 
makes no claim that these drugs had been lawfully prescribed to him.
    Under the CSA, ``every registrant * * * shall * * * as soon * * * 
as such registrant first engages in the manufacture, distribution, or 
dispensing of controlled substances, and every second year thereafter, 
make a complete and accurate record of all stocks thereof on hand.'' 21 
U.S.C. 827(a)(1); see also 21 CFR 1304.11(b) & (c). Moreover, ``every 
registrant * * * manufacturing, distributing, or dispensing, a 
controlled substance or substances shall maintain, on a current basis, 
a complete and accurate record of each such substance manufactured, 
received, sold, delivered, or otherwise disposed of by him.'' 21 U.S.C. 
827(a)(3); see also 21 CFR 1304.22(c) (requirement for dispensing 
records). During the search, Respondent admitted to the Investigators 
that he did not have the required inventories and was not maintaining a 
dispensing log. I thus further hold that Respondent violated Federal 
law and DEA regulations by failing to maintain these records.
    Notably, Respondent offered no testimony addressing either his pre-
signing of prescriptions or his failure to maintain required records. 
Respondent

[[Page 27000]]

has thus failed to offer any evidence to rebut the Government's showing 
that he has committed acts which render granting him a registration 
inconsistent with the public interest.\32\ See Medicine Shoppe-
Jonesborough, 73 FR 364, 387 (2008) (``Where the Government has made 
out its prima facie case, the burden shifts to the Respondent to show 
why [his] continued registration would nonetheless be consistent with 
the public interest.''). Accordingly, these violations of the CSA and 
DEA regulations provide a further basis to deny Respondent's 
application.
---------------------------------------------------------------------------

    \32\ It is acknowledged that Respondent holds a valid state 
license (factor one) and has not been convicted of an offense 
related to the dispensing of controlled substances (factor three). 
However, neither of these factors is dispositive. See Edmund Chein, 
72 FR 6580, 6590 (2007), aff'd Chein v. DEA, 533 F.3d 828 (DC Cir. 
2008) (The authority to decide whether to grant an application for a 
DEA registration has been entrusted to the Attorney General and 
``has been delegated solely to the officials of this Agency.'') See 
also id. at 6593 n.22 (absence of criminal convictions not 
dispositive in public interest inquiry).
     I further note the DI's testimony that Respondent violated 
Federal law because he wrote prescriptions at his Mississippi office 
and did not have a registration in this State. However, the 
Government put forward no evidence that identifies specific 
prescriptions that Respondent issued after the expiration of his 
Mississippi registration. Moreover, in its brief, the Government 
does not rely on this conduct. Thus, I do not consider the 
allegation.
     The Government also argues that Respondent's conviction for 
possession of cocaine can be considered under factor three. However, 
the conviction was not for an offense related to the manufacture, 
distribution, or dispensing of controlled substances and is thus not 
properly considered under factor three. However, as the ALJ 
reasoned, consistent with Agency precedent, the conviction can be 
considered under factor five as such other conduct which may 
threaten public health and safety. See ALJ at 34-35. While there is 
evidence that Respondent underwent treatment, and the Government 
does not argue that Respondent has a continuing problem with drug 
abuse, when coupled with the other violations proved on this record, 
it buttresses the conclusion that Respondent is unwilling to conform 
to the law and that he cannot be entrusted with a new registration.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as by 28 CFR 0.100(b) and 0.104, I hereby order that the application of 
Alvin Darby, M.D., for a DEA Certificate of Registration as a 
practitioner, be, and it hereby is, denied. This order is effective 
immediately.

    Dated: April 16, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-11431 Filed 5-12-10; 8:45 am]
BILLING CODE 4410-09-P