Hung Thien Ly, M.D.; Revocation of Registration, 49955-49956 [2010-20209]
Download as PDF
<![CDATA[
Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Notices
sroberts on DSKD5P82C1PROD with NOTICES
methamphetamine laboratory
operators.’’ ALJ Ex. 1 (¶¶ 6 & 3).
As found above, the Government’s
figures for the expected sales range and
the statistical probability of certain sales
level of ephedrine products in
legitimate commerce at convenience
stores are not supported by substantial
evidence. Accordingly, there is no basis
for concluding that Respondent’s sales
of these products ‘‘greatly surpass the
expected sales range to meet legitimate
demand.’’ Id. at 2 (¶ 6).
The ALJ also acknowledged that when
compared to Respondent’s average
monthly sales to its other customers
($454), Respondent’s sales to the FISCA
Oil Company and some other stores
seem excessive. ALJ at 21–22. While
this evidence is disturbing, I agree with
the ALJ’s conclusion that this evidence
only creates a suspicion that diversion
was occurring.8 Id. at 22.
Finally, based on the DI’s testimony,
the ALJ also found that there is no
evidence that Respondent failed to
report any suspicious transactions. ALJ
at 6 & 18. Notwithstanding the DI’s
testimony, this finding is erroneous.
On March 9, 2006, the Combat
Methamphetamine Epidemic Act of
2005 was signed into law. See USA
PATRIOT Improvement and
Reauthorization Act of 2005, Public Law
109–177, Title VII, 120 Stat.192, 256–77.
Section 712(b) of the Act eliminated the
1,000 gram threshold for combination
ephedrine products. 102 Stat. 264.
While Congress provided an effective
date for other provisions of the Act, see,
e.g., section 711(b)(2) & (c)(3), 120 Stat.
261, it provided no effective date for
section 712(b).
As the Supreme Court has explained,
‘‘absent a clear direction by Congress to
the contrary, a law takes effect on the
date of its enactment.’’ Gozlon-Peretz v.
United States, 498 U.S. 395, 404 (1991)
(other citations omitted). And ‘‘‘where
Congress includes particular language in
one section of a statute but omits it in
another section of the same Act, it is
generally presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion.’’’ Id. at
404–05 (quoting Russello v. United
States, 464 U.S. 16, 23 (1983) (internal
quotations omitted)).
8 The record does not establish the standard
deviation for Respondent’s sales. Nor did the
Government rebut Respondent’s evidence regarding
the stores which purchased the largest quantities
such as their locations and the nature of their
businesses.
Moreover, the Government did not file a brief at
any stage of this matter. I thus conclude that the
Government does not rely on the disparity between
Respondent’s average sale and its sales to stores
such as FISCA to prove that Respondent’s products
were being diverted.
VerDate Mar<15>2010
18:51 Aug 13, 2010
Jkt 220001
It is therefore clear that the provision
eliminating the threshold for
combination ephedrine products
became effective with the Act’s
enactment on March 9, 2006.
Accordingly, thereafter every
transaction in a combination ephedrine
product by a distributor became a
regulated transaction under the CSA,
and thus, all transactions became
subject to the recordkeeping and
reporting requirements of 21 U.S.C. 830,
including the requirement to report ‘‘any
regulated transaction involving an
extraordinary quantity of a listed
chemical.’’ 21 U.S.C. 830(b).
Respondent’s sales to the FISCA Oil
Company, which occurred after the
threshold was eliminated and which
were more than ten times its average
monthly sale (as well as its sales to
several other stores which were also
multiple times greater than its average
sale) involved an ‘‘extraordinary
quantity’’ within the meaning of the
statute. While the evidence does not
establish that the products Respondent
sold in these transactions were diverted,
it cannot be seriously disputed that the
transactions were suspicious and should
have been reported to the Agency. See
ALJ at 25 (‘‘[T]he Respondent should
remain more vigilant in determining
when a customer is purchasing listed
chemical products in suspicious
amounts.’’).
It is acknowledged that the
Government did not allege that
Respondent violated Federal law by
failing to report these transactions.
Accordingly, consistent with the Due
Process Clause, the Agency cannot
impose a sanction on Respondent for
these violations. See, e.g., Darrell
Risner, D.M.D., 61 FR 728, 730 (1996).
However, while the Order to Show
Cause must be dismissed, Respondent is
now on notice that its failure to report
similar transactions in the future may
give rise to further proceedings seeking
the revocation of its registration.
Order
Pursuant to the authority vested in me
by 21 U.S.C. §§ 823(h) and 824(a), as
well as by 28 CFR 0.100(b) and 0.104,
I hereby order that the application of
Hilmes Distributing, Inc., for renewal of
its DEA Certificate of Registration be,
and it hereby is, granted. I further order
that the Order to Show Cause be, and it
hereby is, dismissed. This order is
effective immediately.
Dated: August 4, 2010
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010–20233 Filed 8–13–10; 8:45 am]
BILLING CODE 4410–09–P
PO 00000
Frm 00070
Fmt 4703
Sfmt 4703
49955
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Hung Thien Ly, M.D.; Revocation of
Registration
On August 28, 2009, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Hung Thien Ly, M.D.
(Respondent), of McRae, Georgia. The
Show Cause Order proposed the
revocation of Respondent’s DEA
Certificate of Registration, BL8586147,
which authorizes him to dispense
controlled substances as a practitioner,
and the denial of any pending
applications to renew or modify his
registration on two grounds. Show
Cause Order at 1–2.
First, the Order alleged that, on
August 6, 2009, the Georgia Composite
Medical Board (Board) revoked his
license to practice medicine in Georgia,
the State in which he holds his DEA
registration, and that therefore, he is not
entitled to maintain his registration. Id.
(citing 21 U.S.C. 824(a)(3)). Second, the
Order alleged that on August 14, 2008,
Respondent was convicted of 129
counts of violating 21 U.S.C. 841(a)(1),
by dispensing controlled substances
‘‘outside the usual course of professional
practice and for no legitimate medical
purpose.’’ Id. at 2; see also id. at 1 (citing
21 U.S.C. 824(a)(2)).
On September 30, 2009, Respondent
was served with a copy of the Order to
Show Cause. Thereafter, on November
2, 2009, Respondent filed letter waiving
his right to a hearing and responding to
the Show Cause Order. Waiver of
Hearing and Written Response to Order
to Show Cause at 1. Therein,
Respondent does not dispute either that
he has been convicted by a United
States District Court of violations of 21
U.S.C. 841 or that the Board has revoked
his medical license. Id. Rather, he
maintains that the Board’s action ‘‘was
based entirely’’ on his conviction and
that his ‘‘trial was fundamentally
flawed’’ because he was ‘‘denied
appointed counsel by the District Court
and represented himself at trial.’’
Moreover, he ‘‘is confident that the
Eleventh Circuit will grant a new trial
with appointed counsel and expert
medical testimony that will demonstrate
that his practice was consistent with the
good faith treatment of chronic pain.’’
Id. at 1–2. Accordingly, he ‘‘requests that
good cause is shown to suspend his
registration [rather than revoke it] * * *
until such time as the appeal [of his
conviction] and any subsequent
proceedings are complete.’’ Id.
E:\FR\FM\16AUN1.SGM
16AUN1
49956
Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Notices
Thereafter, the Government forwarded
the record to me for final agency action.
Having considered the record, I
conclude that it establishes two separate
grounds for revoking Respondent’s
registration. I further reject
Respondent’s request that his
registration should be suspended and
not revoked pending the completion of
his appeal. I make the following
findings.
sroberts on DSKD5P82C1PROD with NOTICES
Findings
Respondent is the holder of DEA
Certificate of Registration, BL8586147,
which authorizes him to dispense
controlled substances in schedules II
through V. Respondent’s registration
was last renewed on March 6, 2006, and
was to expire on March 31, 2009.
However, on February 13, 2009,
Respondent submitted an application to
renew the registration. I therefore find
that Respondent’s registration has
remained in effect pending the issuance
of this Decision and Final Order. See 5
U.S.C. 558(c).
I further find that on May 13, 2009,
the United States District Court for the
Southern District of Georgia entered a
judgment in which it found Respondent
guilty on 129 counts of violating 21
U.S.C. 841(a)(1), which prohibits
‘‘knowingly or intentionally * * *
distribut[ing], or dispens[ing] * * * a
controlled substance’’ except as
authorized by the Controlled Substances
Act (CSA). See United States v. Ly, No.
CR407–00286–001 (S.D. Ga. May 13,
2009) (judgment). According to the
indictment, the counts were for
distributing hydrocodone (combined
with acetaminophen), a schedule III
controlled substance; alprazolam, a
schedule IV controlled substance; and
amphetamine sulfate, a schedule II
controlled substance. For his crimes, the
District Court sentenced Respondent to
97 months in prison; the Court also
imposed an assessment of $12,900, a
fine of $200,000, and a term of
supervised release of five years
following his release from prison.
I further find that on August 6, 2009,
the Georgia Composite Medical Board
issued a final decision which revoked
Respondent’s State medical license
based on his convictions.
Discussion
Under Section 304(a) of the CSA, ‘‘[a]
registration * * * to dispense a
controlled substance * * * may be
suspended or revoked by the Attorney
General upon a finding that the
registrant * * * has been convicted of
a felony under this subchapter.’’ 21
U.S.C. 824(a)(2). The Attorney General
may also revoke a registration ‘‘upon a
VerDate Mar<15>2010
18:51 Aug 13, 2010
Jkt 220001
finding that the registrant * * * has had
his State license or registration
suspended, revoked, or denied by
competent State authority and is no
longer authorized by State law to engage
in the * * * dispensing of controlled
substances.’’ Id. § 824(a)(3).
As found above, Respondent has been
convicted of 129 counts of violating 21
U.S.C. 841(a)(1), a felony under
subchapter I (the CSA). See id. § 801
(note). These convictions provide reason
alone to revoke his registration.
Moreover, under the 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 W. 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). Respondent’s loss of his
State authority thus provides an
additional ground for revoking his DEA
registration.
I further reject Respondent’s request
that his registration only be suspended
during the pendency of his appeal. As
explained above, because Respondent
does not have authority under Georgia
law to prescribe controlled substances,
he no longer meets the statutory
requirement for holding a registration.
Moreover, in the event that
Respondent’s confidence in the merits
of his appeal is borne out, he can apply
for a new registration upon persuading
the Board to re-license him. However,
given that it is entirely speculative
whether both of these events will occur,
there is no reason to continue his
registration in the interim. Accordingly,
Respondent’s registration will be
revoked and his pending application to
renew his registration will be denied.
PO 00000
Frm 00071
Fmt 4703
Sfmt 4703
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,
BL8586147, issued to Hung Thien Ly,
M.D., be, and it hereby is, revoked. I
further order that any pending
application of Hung Thien Ly, M.D., to
renew or modify his registration, be, and
it hereby is, denied. This Order is
effective September 15, 2010.
Dated: August 3, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010–20209 Filed 8–13–10; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09–28]
Dewey C. Mackay, M.D.; Revocation of
Registration
On February 26, 2009, I, the Deputy
Administrator of the Drug Enforcement
Administration (DEA), issued an Order
to Show Cause and Immediate
Suspension of Registration to Dewey C.
MacKay, M.D. (Respondent), of Brigham
City, Utah. The Show Cause Order
proposed the revocation of
Respondent’s DEA Certificate of
Registration, AM9742380, which
authorizes him to dispense controlled
substances as a practitioner, as well as
the denial of any pending applications
to renew or modify the registration, on
the ground that his ‘‘continued
registration is inconsistent with the
public interest, as that term is defined
in 21 U.S.C. 823(f) and 824(a)(4).’’ ALJ
Ex. 1, at 1. The Order also immediately
suspended Respondent’s registration on
the ground that his continued
registration during the pendency of the
proceeding ‘‘constitutes an imminent
danger to public health and safety.’’ Id.
The Show Cause Order alleged that
‘‘[f]rom June 2005 to the present,’’
Respondent ‘‘issued numerous
purported prescriptions for controlled
substances without a legitimate medical
purpose and outside the usual course of
professional practice.’’ Id. at 1–2. As
evidence of his allegedly ‘‘unlawful
prescribing practices,’’ the Order alleged
that: (1) On four occasions, M.R., a
patient of his who cooperated with the
DEA, visited Respondent and, while she
‘‘did not exhibit any verifiable medical
indication warranting the prescribing of
controlled substances,’’ Respondent
‘‘issued prescriptions for controlled
substances to her’’ and did so even after
E:\FR\FM\16AUN1.SGM
16AUN1
]]>Agencies
[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49955-49956]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20209]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Hung Thien Ly, M.D.; Revocation of Registration
On August 28, 2009, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Hung Thien Ly, M.D. (Respondent), of McRae, Georgia. The
Show Cause Order proposed the revocation of Respondent's DEA
Certificate of Registration, BL8586147, which authorizes him to
dispense controlled substances as a practitioner, and the denial of any
pending applications to renew or modify his registration on two
grounds. Show Cause Order at 1-2.
First, the Order alleged that, on August 6, 2009, the Georgia
Composite Medical Board (Board) revoked his license to practice
medicine in Georgia, the State in which he holds his DEA registration,
and that therefore, he is not entitled to maintain his registration.
Id. (citing 21 U.S.C. 824(a)(3)). Second, the Order alleged that on
August 14, 2008, Respondent was convicted of 129 counts of violating 21
U.S.C. 841(a)(1), by dispensing controlled substances ``outside the
usual course of professional practice and for no legitimate medical
purpose.'' Id. at 2; see also id. at 1 (citing 21 U.S.C. 824(a)(2)).
On September 30, 2009, Respondent was served with a copy of the
Order to Show Cause. Thereafter, on November 2, 2009, Respondent filed
letter waiving his right to a hearing and responding to the Show Cause
Order. Waiver of Hearing and Written Response to Order to Show Cause at
1. Therein, Respondent does not dispute either that he has been
convicted by a United States District Court of violations of 21 U.S.C.
841 or that the Board has revoked his medical license. Id. Rather, he
maintains that the Board's action ``was based entirely'' on his
conviction and that his ``trial was fundamentally flawed'' because he
was ``denied appointed counsel by the District Court and represented
himself at trial.'' Moreover, he ``is confident that the Eleventh
Circuit will grant a new trial with appointed counsel and expert
medical testimony that will demonstrate that his practice was
consistent with the good faith treatment of chronic pain.'' Id. at 1-2.
Accordingly, he ``requests that good cause is shown to suspend his
registration [rather than revoke it] * * * until such time as the
appeal [of his conviction] and any subsequent proceedings are
complete.'' Id.
[[Page 49956]]
Thereafter, the Government forwarded the record to me for final
agency action. Having considered the record, I conclude that it
establishes two separate grounds for revoking Respondent's
registration. I further reject Respondent's request that his
registration should be suspended and not revoked pending the completion
of his appeal. I make the following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
BL8586147, which authorizes him to dispense controlled substances in
schedules II through V. Respondent's registration was last renewed on
March 6, 2006, and was to expire on March 31, 2009. However, on
February 13, 2009, Respondent submitted an application to renew the
registration. I therefore find that Respondent's registration has
remained in effect pending the issuance of this Decision and Final
Order. See 5 U.S.C. 558(c).
I further find that on May 13, 2009, the United States District
Court for the Southern District of Georgia entered a judgment in which
it found Respondent guilty on 129 counts of violating 21 U.S.C.
841(a)(1), which prohibits ``knowingly or intentionally * * *
distribut[ing], or dispens[ing] * * * a controlled substance'' except
as authorized by the Controlled Substances Act (CSA). See United States
v. Ly, No. CR407-00286-001 (S.D. Ga. May 13, 2009) (judgment).
According to the indictment, the counts were for distributing
hydrocodone (combined with acetaminophen), a schedule III controlled
substance; alprazolam, a schedule IV controlled substance; and
amphetamine sulfate, a schedule II controlled substance. For his
crimes, the District Court sentenced Respondent to 97 months in prison;
the Court also imposed an assessment of $12,900, a fine of $200,000,
and a term of supervised release of five years following his release
from prison.
I further find that on August 6, 2009, the Georgia Composite
Medical Board issued a final decision which revoked Respondent's State
medical license based on his convictions.
Discussion
Under Section 304(a) of the CSA, ``[a] registration * * * to
dispense a controlled substance * * * may be suspended or revoked by
the Attorney General upon a finding that the registrant * * * has been
convicted of a felony under this subchapter.'' 21 U.S.C. 824(a)(2). The
Attorney General may also revoke a registration ``upon a finding that
the registrant * * * has had his State license or registration
suspended, revoked, or denied by competent State authority and is no
longer authorized by State law to engage in the * * * dispensing of
controlled substances.'' Id. Sec. 824(a)(3).
As found above, Respondent has been convicted of 129 counts of
violating 21 U.S.C. 841(a)(1), a felony under subchapter I (the CSA).
See id. Sec. 801 (note). These convictions provide reason alone to
revoke his registration.
Moreover, under the 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 W. 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). Respondent's loss of his State authority thus provides an
additional ground for revoking his DEA registration.
I further reject Respondent's request that his registration only be
suspended during the pendency of his appeal. As explained above,
because Respondent does not have authority under Georgia law to
prescribe controlled substances, he no longer meets the statutory
requirement for holding a registration. Moreover, in the event that
Respondent's confidence in the merits of his appeal is borne out, he
can apply for a new registration upon persuading the Board to re-
license him. However, given that it is entirely speculative whether
both of these events will occur, there is no reason to continue his
registration in the interim. Accordingly, Respondent's registration
will be revoked and his pending application to renew his registration
will be denied.
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, BL8586147, issued to Hung Thien Ly, M.D.,
be, and it hereby is, revoked. I further order that any pending
application of Hung Thien Ly, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
September 15, 2010.
Dated: August 3, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20209 Filed 8-13-10; 8:45 am]
BILLING CODE 4410-09-P
