Sheryl Lavender, D.O. Decision and Order, 48897-48898 [2011-20068]

Download as PDF sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices performance,’ ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [DEA] has repeatedly held that where a registrant has committed acts inconsistent with the public interest, the registrant must accept responsibility for its actions and demonstrate that it will not engage in future misconduct.’’ Medicine Shoppe, 73 FR at 387; see also Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Cuong Trong Tran, 63 FR 64280, 62483 (1998); Prince George Daniels, 60 FR 62884, 62887 (1995). See also Hoxie v. DEA, 419 F.3d at 483 (‘‘admitting fault’’ is ‘‘properly consider[ed]’’ by DEA to be an ‘‘important factor[]’’ in the public interest determination). As the ALJ observed, both of Respondent’s owners invoked their Fifth Amendment privilege when called to testify by the Government and refused to answer any questions. ALJ at 24. I therefore find that Respondent (and its owners) have failed to accept responsibility for their misconduct. This alone provides reason to hold that Respondent has not rebutted the Government’s prima facie showing that issuing it a new registration ‘‘would be inconsistent with the public interest.’’ 21 U.S.C. 823(f). In its Exceptions, Respondent nonetheless contends that ‘‘even though the [Liddy’s] invoked their Fifth Amendment Privilege, the record * * * demonstrate[s] that the complained of conduct was no longer present’’ and that it had ceased the offending conduct prior to the execution of the search warrant in July 2007. Exceptions at 1– 2. Respondent thus asserts that it has changed its practices and that its then– existing registration should not be revoked. Id. at 2. However, the evidence shows that at some time in either 2005 or 2006, a DEA Investigator had visited Respondent and interviewed Respondent’s owners. Tr. 82. While the record does not establish the precise subject matter that was discussed, it is not everyday that the DEA comes knocking at one’s door, and it is reasonable to infer that the Investigator’s visit had something to do with the illegality of Respondent’s activities in dispensing the internet prescriptions. Accordingly, even were I to ignore the failure of Respondent’s owners to acknowledge their illegal behavior (which I decline to do), the weight to be given Respondent’s cessation of its unlawful practices is substantially diminished by the fact that this followed, rather than preceded, its owners becoming aware that they were under investigation. Moreover, as the ALJ noted, Respondent put on no evidence as to what steps it has VerDate Mar<15>2010 19:06 Aug 08, 2011 Jkt 223001 undertaken to reform its practices. ALJ at 24. I therefore concur with the ALJ’s conclusion that Respondent’s ‘‘extensive record of unlawful conduct * * *, its callous disregard for the serious responsibility of a DEA registrant, and its failure to present any evidence to show how it has corrected these practices outweigh’’ the fact that the State Pharmacy Board has taken no action against its license (factor one) and the absence of any criminal convictions (factor three). Id. at 25. I further adopt the ALJ’s conclusion that ‘‘it would be inconsistent with the public interest to allow * * * Respondent to maintain its registration.’’ Id. at 24. Accordingly, Respondent’s pending renewal application will be denied. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I deny the Government’s motion to terminate the proceeding as moot. I further order that the application of Liddy’s Pharmacy, L.L.C., for a DEA Certificate of Registration be, and it hereby is, denied. This Order is effective September 8, 2011. Dated: August 2, 2011. Michele M. Leonhart, Administrator. [FR Doc. 2011–20055 Filed 8–8–11; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 10–70] Sheryl Lavender, D.O. Decision and Order On October 28, 2010, Administrative Law Judge (ALJ) Timothy D. Wing, issued the attached recommended decision. The Respondent did not file exceptions to the decision. Having reviewed the record in its entirety 1 including the ALJ’s recommended decision, I have decided to adopt the ALJ’s rulings, findings of fact, conclusions of law, and recommended Order. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 21 CFR 0.100(b) and 0.104, I order 1 I note that the Government also cited 21 U.S.C. 824(a)(3) in both the Order to Show Cause and its Motion for Summary Judgment as authority for revoking Respondent’s registration. See Order to Show Cause, at 2; Mot. for Summ. Judg., at 2–3. PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 48897 that DEA Certificate of Registration, BL1667596, issued to Sheryl Lavender, D.O., be, and it hereby is, revoked. I further order that any pending application of Sheryl Lavender, D.O., to renew or modify her registration, be, and it hereby is, denied. This Order is effective immediately. Dated: July 27, 2011. Michele M. Leonhart, Administrator. Brian Bayly, Esq., for the Government. Shawn B. McKamey, Esq., for the Respondent. Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge Timothy D. Wing, Administrative Law Judge. On July 26, 2010, the Deputy Administrator, DEA, issued an Order to Show Cause and Immediate Suspension (OSC/IS) of DEA COR BL1667596, dated July 26, 2010, and served on Respondent on August 2, 2010. The OCS/IS alleged that Respondent’s continued registration constitutes an imminent danger to the public health and safety. The OSC/IS also provided notice to Respondent of an opportunity to show cause as to why the DEA should not revoke Respondent’s DEA COR BL1667596 pursuant to 21 U.S.C. 824(a)(4), on the grounds that Respondent lacks authority to handle controlled substances in Florida, the state in which she maintains her DEA registration, and on the grounds that Respondent’s continued registration would be inconsistent with the public interest under 21 U.S.C. 823(f). On August 31, 2010, Respondent, acting pro se, in a letter dated August 23, 2010, timely requested a hearing with the DEA Office of Administrative Law Judges (OALJ). I issued an Order for Prehearing Statements on September 8, 2010. On the same date, OALJ sent Respondent a letter informing her of her right to representation under 21 CFR 1316.50. On September 10, 2010, the Government filed a Motion for Summary Judgment. On September 13, 2010, I issued an order directing Respondent to reply to the Government’s motion by September 20, 2010. On September 17, 2010, Respondent, through counsel, filed Respondent’s Unopposed Motion for Extension of Time to Allow Respondent to Answer Motion for Summary Judgment, seeking an extension of time so that Respondent might obtain E:\FR\FM\09AUN1.SGM 09AUN1 48898 Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices permanent counsel.1 I granted that motion on September 17, 2010, and granted Respondent until October 12, 2010, to respond to the Government’s motion. On October 12, 2010, having secured permanent counsel,2 Respondent filed a second unopposed motion requesting additional time to respond. I granted that motion on October 13, 2010, and granted Respondent until October 15, 2010, to respond to the Government’s Motion for Summary Judgment. On October 15, 2010, Respondent timely filed her response to the Government’s Motion for Summary Judgment. II. The Parties’ Contentions A. The Government In support of its motion for summary judgment, the Government asserts that on May 7, 2010, the State of Florida, Department of Health, issued an Order of Emergency Suspension of Respondent’s osteopathic medical license, and that Respondent consequently lacks authority to possess, dispense or otherwise handle controlled substances in Florida, the jurisdiction in which she maintains her DEA registration. The Government contends that such state authority is a necessary condition for maintaining a DEA COR and therefore asks that I summarily recommend to the Deputy Administrator that Respondent’s COR be revoked. In support of its motion, the Government attaches three documents: (1) The Emergency Order of Suspension referred to above; (2) a copy of Respondent’s request for a hearing, filed August 31, 2010, in which Respondent denies that the state suspension ‘‘should remain in full force and effect, thereby prohibiting Sheryl Lavender, D.O., from practicing medicine, and prescribing medications to patients’’ (Gov’t Mot. Sum. J. at 2 ¶(3) (citing Resp’t Req. Hg. at 1 ¶(B)(2))); and (3) a printout dated September 9, 2010, from a Web site maintained by the Florida Department of Health indicating that Respondent’s suspension remained in effect as of that date. sroberts on DSK5SPTVN1PROD with NOTICES B. Respondent Respondent opposes summary judgment and seeks the opportunity to ‘‘discuss the merits of this matter.’’ 1 In Respondent’s first motion for an extension of time, counselor Patrick R. McKamey stated that he represents Respondent in a separate criminal case; that he practices exclusively in criminal litigation; and that he filed a limited appearance in this case only so that Respondent might retain permanent counsel for these administrative proceedings. 2 Shawn B. McKamey, Esq., filed his notice of appearance on October 13, 2010. VerDate Mar<15>2010 19:06 Aug 08, 2011 Jkt 223001 (Resp’t Opp’n Gov’t Mot. Sum. J. 2 ¶5.) In sum and in substance, Respondent argues that while ‘‘it is technically true Respondent lacks state authorization to practice medicine at this time, this shall soon be remedied and having the DEA registration withdrawn or otherwise revoked would unnecessarily elongate Dr. Lavender’s return to medicine * * *.’’ (Id. at 1 ¶2.) Respondent also seeks to present evidence contesting two assertions: first, that she failed to comply with federal law in prescribing controlled substances; and second, that her continued registration would be a danger to the public. (Id. at 2 ¶4.) Finally, Respondent raises an estoppel and detrimental reliance argument, but concedes ‘‘this particular tribunal is not the appropriate forum in which to argue [those] grounds.’’ (Id. at ¶3.) III. Discussion At issue is whether Respondent may maintain her DEA COR given that Florida has suspended her state license to practice medicine. Under 21 U.S.C. 824(a)(3), a practitioner’s loss of state authority to engage in the practice of medicine and to handle controlled substances is grounds to revoke a practitioner’s registration. Accordingly, this agency has consistently held that a person may not hold a DEA registration if she is without appropriate authority under the laws of the state in which she does business. See Scott Sandarg, D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 (DEA 1988). Summary judgment in a DEA suspension case is warranted even if the period of suspension of a Respondent’s state medical license is temporary, or even if there is the potential for reinstatement of state authority because ‘‘revocation is also appropriate when a state license had been suspended, but with the possibility of future reinstatement.’’ Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez, M.D., 70 FR 33,206 (DEA 2005). It is well-settled that when no question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required, under the rationale that Congress does not intend administrative agencies to perform meaningless tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 FR 32,887 (DEA 1983), aff’d PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994). In the instant case, the Government asserts, and Respondent concedes, that Respondent’s Florida medical license is presently suspended. While Respondent disagrees that the state suspension of her Florida medical license ‘‘should remain in full force and effect, thereby prohibiting [her] from practicing medicine and prescribing medication to patients,’’ (Resp’t Req. Hg. at 1 ¶ (B)(2) (emphasis supplied)), she does not deny that the state suspension presently removes the state authority upon which her DEA registration is premised. To the contrary, she admits ‘‘it is technically true Respondent lacks state authorization to practice medicine at this time * * * .’’ (Resp’t Opp’n Gov’t Mot. Sum. J. 1 ¶2.) I therefore find that there is no genuine dispute as to any material fact, and that substantial evidence shows that Respondent is presently without state authority to handle controlled substances in Florida. Because ‘‘DEA does not have statutory authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the state in which he practices,’’ Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006), I do not reach Respondent’s other contentions. Under the circumstances discussed above, I conclude that further delay in ruling on the Government’s Motion for Summary Judgment is not warranted. Recommended Decision I grant the Government’s motion for summary judgment and recommend that Respondent’s DEA COR BL1667596 be revoked and any pending applications denied. Dated: October 28, 2010. Timothy D. Wing, Administrative Law Judge. [FR Doc. 2011–20068 Filed 8–8–11; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Robert Leigh Kale, M.D., Decision and Order On September 9, 2010, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Robert Leigh Kale, M.D. (Registrant), of Fort Smith, Arkansas. E:\FR\FM\09AUN1.SGM 09AUN1

Agencies

[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48897-48898]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20068]


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

 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-70]


Sheryl Lavender, D.O. Decision and Order

    On October 28, 2010, Administrative Law Judge (ALJ) Timothy D. 
Wing, issued the attached recommended decision. The Respondent did not 
file exceptions to the decision.
    Having reviewed the record in its entirety \1\ including the ALJ's 
recommended decision, I have decided to adopt the ALJ's rulings, 
findings of fact, conclusions of law, and recommended Order.
---------------------------------------------------------------------------

    \1\ I note that the Government also cited 21 U.S.C. 824(a)(3) in 
both the Order to Show Cause and its Motion for Summary Judgment as 
authority for revoking Respondent's registration. See Order to Show 
Cause, at 2; Mot. for Summ. Judg., at 2-3.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 21 CFR 0.100(b) and 0.104, I order that DEA 
Certificate of Registration, BL1667596, issued to Sheryl Lavender, 
D.O., be, and it hereby is, revoked. I further order that any pending 
application of Sheryl Lavender, D.O., to renew or modify her 
registration, be, and it hereby is, denied. This Order is effective 
immediately.

    Dated: July 27, 2011.
Michele M. Leonhart,
Administrator.
Brian Bayly, Esq.,
    for the Government.

Shawn B. McKamey, Esq.,
    for the Respondent.

Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    Timothy D. Wing, Administrative Law Judge. On July 26, 2010, the 
Deputy Administrator, DEA, issued an Order to Show Cause and Immediate 
Suspension (OSC/IS) of DEA COR BL1667596, dated July 26, 2010, and 
served on Respondent on August 2, 2010. The OCS/IS alleged that 
Respondent's continued registration constitutes an imminent danger to 
the public health and safety. The OSC/IS also provided notice to 
Respondent of an opportunity to show cause as to why the DEA should not 
revoke Respondent's DEA COR BL1667596 pursuant to 21 U.S.C. 824(a)(4), 
on the grounds that Respondent lacks authority to handle controlled 
substances in Florida, the state in which she maintains her DEA 
registration, and on the grounds that Respondent's continued 
registration would be inconsistent with the public interest under 21 
U.S.C. 823(f). On August 31, 2010, Respondent, acting pro se, in a 
letter dated August 23, 2010, timely requested a hearing with the DEA 
Office of Administrative Law Judges (OALJ).
    I issued an Order for Prehearing Statements on September 8, 2010. 
On the same date, OALJ sent Respondent a letter informing her of her 
right to representation under 21 CFR 1316.50.
    On September 10, 2010, the Government filed a Motion for Summary 
Judgment. On September 13, 2010, I issued an order directing Respondent 
to reply to the Government's motion by September 20, 2010. On September 
17, 2010, Respondent, through counsel, filed Respondent's Unopposed 
Motion for Extension of Time to Allow Respondent to Answer Motion for 
Summary Judgment, seeking an extension of time so that Respondent might 
obtain

[[Page 48898]]

permanent counsel.\1\ I granted that motion on September 17, 2010, and 
granted Respondent until October 12, 2010, to respond to the 
Government's motion.
---------------------------------------------------------------------------

    \1\ In Respondent's first motion for an extension of time, 
counselor Patrick R. McKamey stated that he represents Respondent in 
a separate criminal case; that he practices exclusively in criminal 
litigation; and that he filed a limited appearance in this case only 
so that Respondent might retain permanent counsel for these 
administrative proceedings.
---------------------------------------------------------------------------

    On October 12, 2010, having secured permanent counsel,\2\ 
Respondent filed a second unopposed motion requesting additional time 
to respond. I granted that motion on October 13, 2010, and granted 
Respondent until October 15, 2010, to respond to the Government's 
Motion for Summary Judgment.
---------------------------------------------------------------------------

    \2\ Shawn B. McKamey, Esq., filed his notice of appearance on 
October 13, 2010.
---------------------------------------------------------------------------

    On October 15, 2010, Respondent timely filed her response to the 
Government's Motion for Summary Judgment.

II. The Parties' Contentions

A. The Government

    In support of its motion for summary judgment, the Government 
asserts that on May 7, 2010, the State of Florida, Department of 
Health, issued an Order of Emergency Suspension of Respondent's 
osteopathic medical license, and that Respondent consequently lacks 
authority to possess, dispense or otherwise handle controlled 
substances in Florida, the jurisdiction in which she maintains her DEA 
registration. The Government contends that such state authority is a 
necessary condition for maintaining a DEA COR and therefore asks that I 
summarily recommend to the Deputy Administrator that Respondent's COR 
be revoked. In support of its motion, the Government attaches three 
documents: (1) The Emergency Order of Suspension referred to above; (2) 
a copy of Respondent's request for a hearing, filed August 31, 2010, in 
which Respondent denies that the state suspension ``should remain in 
full force and effect, thereby prohibiting Sheryl Lavender, D.O., from 
practicing medicine, and prescribing medications to patients'' (Gov't 
Mot. Sum. J. at 2 ](3) (citing Resp't Req. Hg. at 1 ](B)(2))); and (3) 
a printout dated September 9, 2010, from a Web site maintained by the 
Florida Department of Health indicating that Respondent's suspension 
remained in effect as of that date.

B. Respondent

    Respondent opposes summary judgment and seeks the opportunity to 
``discuss the merits of this matter.'' (Resp't Opp'n Gov't Mot. Sum. J. 
2 ]5.) In sum and in substance, Respondent argues that while ``it is 
technically true Respondent lacks state authorization to practice 
medicine at this time, this shall soon be remedied and having the DEA 
registration withdrawn or otherwise revoked would unnecessarily 
elongate Dr. Lavender's return to medicine * * *.'' (Id. at 1 ]2.) 
Respondent also seeks to present evidence contesting two assertions: 
first, that she failed to comply with federal law in prescribing 
controlled substances; and second, that her continued registration 
would be a danger to the public. (Id. at 2 ]4.) Finally, Respondent 
raises an estoppel and detrimental reliance argument, but concedes 
``this particular tribunal is not the appropriate forum in which to 
argue [those] grounds.'' (Id. at ]3.)

III. Discussion

    At issue is whether Respondent may maintain her DEA COR given that 
Florida has suspended her state license to practice medicine.
    Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority 
to engage in the practice of medicine and to handle controlled 
substances is grounds to revoke a practitioner's registration. 
Accordingly, this agency has consistently held that a person may not 
hold a DEA registration if she is without appropriate authority under 
the laws of the state in which she does business. See Scott Sandarg, 
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. 
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 
(DEA 1988).
    Summary judgment in a DEA suspension case is warranted even if the 
period of suspension of a Respondent's state medical license is 
temporary, or even if there is the potential for reinstatement of state 
authority because ``revocation is also appropriate when a state license 
had been suspended, but with the possibility of future reinstatement.'' 
Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez, 
M.D., 70 FR 33,206 (DEA 2005).
    It is well-settled that when no question of fact is involved, or 
when the material facts are agreed upon, a plenary, adversarial 
administrative proceeding is not required, under the rationale that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael 
G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D., 
48 FR 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 
(6th Cir. 1984); Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 
600, 605 (1st Cir. 1994).
    In the instant case, the Government asserts, and Respondent 
concedes, that Respondent's Florida medical license is presently 
suspended. While Respondent disagrees that the state suspension of her 
Florida medical license ``should remain in full force and effect, 
thereby prohibiting [her] from practicing medicine and prescribing 
medication to patients,'' (Resp't Req. Hg. at 1 ] (B)(2) (emphasis 
supplied)), she does not deny that the state suspension presently 
removes the state authority upon which her DEA registration is 
premised. To the contrary, she admits ``it is technically true 
Respondent lacks state authorization to practice medicine at this time 
* * * .'' (Resp't Opp'n Gov't Mot. Sum. J. 1 ]2.)
    I therefore find that there is no genuine dispute as to any 
material fact, and that substantial evidence shows that Respondent is 
presently without state authority to handle controlled substances in 
Florida. Because ``DEA does not have statutory authority under the 
Controlled Substances Act to maintain a registration if the registrant 
is without state authority to handle controlled substances in the state 
in which he practices,'' Sheran Arden Yeates, M.D., 71 FR 39,130, 
39,131 (DEA 2006), I do not reach Respondent's other contentions. Under 
the circumstances discussed above, I conclude that further delay in 
ruling on the Government's Motion for Summary Judgment is not 
warranted.

Recommended Decision

    I grant the Government's motion for summary judgment and recommend 
that Respondent's DEA COR BL1667596 be revoked and any pending 
applications denied.

    Dated: October 28, 2010.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-20068 Filed 8-8-11; 8:45 am]
BILLING CODE 4410-09-P

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