James William Eisenberg, M.D.; Decision and Order, 45663-45675 [2012-18747]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Notices]
[Pages 45663-45675]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18747]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-27]


James William Eisenberg, M.D.; Decision and Order

    On April 5, 2012, Administrative Law Judge Timothy D. Wing issued 
the attached recommended decision.\1\ Neither party filed exceptions to 
the ALJ's decision.
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    \1\ All citations to the ALJ's decision are to the slip opinion 
as originally issued.
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    Having reviewed the entire record, I have decided to adopt the 
ALJ's findings of fact and conclusions of law except as noted below.\2\ 
Based on a recent action of the Arizona Medical Board, which is 
discussed more fully below, I reject the ALJ's conclusion that the 
Arizona Medical Board's ``action reflects a determination that 
Respondent, notwithstanding findings of unprofessional conduct in the 
recent past, can be entrusted with a medical license'' and that ``this 
action * * * weigh[s] against a finding that Respondent's continued 
registration would be inconsistent with the public interest under 
Factor One.'' ALJ at 21.
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    \2\ I do not adopt the ALJ's footnote 25. See Kwan Bo Jin, 77 FR 
35021, 35021 n.2 (2012).
     Moreover, regarding the ALJ's discussion of whether the Arizona 
Board's 2011 order, see GX 11, which provided that Respondent's 
admissions were ``not intended or made for any other use, such as in 
the context of another State or Federal government regulatory 
proceeding,'' is binding on this Agency, see ALJ at 20 n. 29, I 
further note that DEA has previously held that ``[s]tate officials * 
* * lack authority to resolve a matter pending before the [Agency] 
and [a] stipulated settlement [between state officials and a 
Registrant] cannot bind this Agency.'' Edmund Chein, 72 FR 6580, 
6590 (2007), pet. for rev. denied, 533 F.3d 828 (DC Cir. 2008)). See 
also Fourth Street Pharmacy v. DEA, 836 F.2d 1137, 1139 (8th Cir. 
1988) (absent proof of an agency relationship between a state 
Attorney General and the Agency regarding an agreement between the 
State and a registrant, a state Attorney General ``could not and did 
not have authority to bind the DEA to a promise to refrain from 
instituting lawful regulatory action to revoke'' a registration).
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    However, I do adopt the ALJ's findings and legal conclusions that 
Respondent lacked a legitimate medical purpose and acted outside of the 
usual course of professional practice when, on August 12, 2011, he 
prescribed both oxycodone and Xanax to an undercover officer, as well 
as on September 1, 2011, when he prescribed oxycodone to a second 
undercover officer. ALJ at 30-31. As the ALJ found, substantial 
evidence supports the conclusion that these were negotiated drug deals 
in which for an additional fee, Respondent, upon the requests of the 
undercover officers for the drugs, agreed to prescribe controlled 
substances and negotiated with the undercover officers over the 
quantity of the oxycodone and/or the strength of the drug.\3\ See id. 
23-27. Indeed, with respect to the second undercover officer, 
Respondent agreed to write a prescription for oxycodone before he had 
even performed a physical examination. See id. at 25-26. The findings 
with respect to the two undercover officers alone establish a prima 
facie case that Respondent has committed acts which render his 
registration inconsistent with the public interest. See 21 U.S.C. 
824(a)(4); see also MacKay v. DEA, 664 F.3d 808, 821 (10th Cir. 2011); 
Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (citing Alan H. Olefsky, 57 
FR 928, 928-29 (1992)).
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    \3\ While I adopt the ALJ's findings and legal conclusions that 
Respondent unlawfully distributed controlled substances to the 
undercover officers, I rely solely on the evidence regarding the 
circumstances of their visits with Respondent. To make clear, I 
reject the ALJ's legal conclusion that the hearsay statement of a 
former employee of AZ Go Green to the effect ``that Respondent was 
illegally prescribing oxycodone'' constitutes substantial evidence 
that Respondent was engaged in drug deals. ALJ at 27 n.35. Contrary 
to the ALJ's assertion, this information was initially provided by 
the informant to the Phoenix Police Department, which relayed it to 
the Arizona Attorney General's Office, which then passed it on to 
the DEA Special Agent, and was thus hearsay within hearsay within 
hearsay. Tr. 23.
    While the Special Agent testified that he knew the informant had 
been a former employee, he offered no further evidence to support 
that the declarant was reliable. See id. Most significantly, the 
Government offered the testimony for the limited purpose of showing 
what prompted the investigation, id. at 69, and when on cross-
examination, Respondent's counsel attempted to explore the issue of 
the informant's potential bias, the Government objected that the 
inquiry was not relevant to the issue of whether Respondent issued 
prescriptions for a legitimate medical purpose in the usual course 
of professional practice. Id. at 70-71. Indeed, the Government 
itself later objected to a further question on cross-examination 
contending that the informant's statements were hearsay, explaining 
that it had offered the statements ``just to show why the agents 
were at AZ Go Green.'' Id. at 74.
    I agree with the Government and conclude that the statement does 
not constitute substantial evidence that Respondent was engaged in 
drug deals. See Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 
(1938) (Substantial evidence * * * means such relevant evidence as a 
reasonable mind might accept as adequate to support a 
conclusion.''). Instead, I rely on the evidence pertaining to the 
specific undercover visits.
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    While I do not rely on the hearsay evidence cited by the ALJ as 
support for his conclusion that Respondent was engaged in drug deals, 
there is other evidence to support the conclusion that Respondent is a 
drug dealer. I take official notice \4\ that on April 4, 2012, the 
Arizona Medical Board issued to Respondent an Order For Decree Of 
Censure And Practice Restriction And Consent To The Same. See In re 
James W. Eisenberg, M.D. No. MD-11-1351A (Az. Med. Bd. Apr. 4, 2012). 
Therein, the Board found, with respect to four patients (including the 
owner of the clinic where he worked), that Respondent:
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    \4\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulations, Respondent is ``entitled on timely request to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). To allow Respondent the opportunity to refute the 
facts of which I take official notice, Respondent may file a motion 
for reconsideration within fifteen days of service of this order 
which shall commence with the mailing of the order.

    Failed to document any attempt to verify the diagnoses or to 
obtain medical records, imaging, diagnostic work up or specialty 
consultation. Respondent failed to consider any non-opioid 
management other than cannabis, and failed to review the Controlled 
Substance Prescription Monitoring Program (CSPMP); perform urine 
drug testing; counsel the patients regarding precaution, risks and 
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safe opioid use; or obtain a standard opioid treating agreement.

Id. at 2. The Board further found with respect to these patients, that 
Respondent:

    Deviated from the standard of care by performing an extremely 
limited pain history and physical exam, by failing to perform a 
medical record review or risk assessment for opioid use, by failing 
to perform a diagnostic evaluation or consider a multidisciplinary 
approach outside of cannabis and daily opioid, by failing to verify 
a medical diagnosis appropriately treated with daily high dose 
opioid, and by failing to monitor for compliance by urine drug 
testing or review of the CSPMP.

Id. at 3. The Board thus concluded that Respondent had committed 
``unprofessional conduct,'' by engaging in conduct ``that is or might 
be harmful or dangerous to the health of the patient or the public'' 
and by ``failing or refusing to maintain adequate records

[[Page 45664]]

on a patient.'' Id. at 4 (citing Ariz. Rev. Stat. Sec.  32-1401(27)(q) 
&(e)). Accordingly, the Arizona Board found that ``a practice 
restriction is needed in order to protect the public,'' and in addition 
to issuing a ``Decree of Censure,'' prohibited Respondent ``from 
prescribing, administering, or dispensing any [c]ontrolled [s]ubstances 
for a period of five years.'' \5\ Id.
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    \5\ Had Respondent been registered in Arizona, the Board's order 
prohibiting him from dispensing controlled substances would have 
provided a separate and independent ground to revoke his 
registration. See 21 U.S.C. 824(a)(3).
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    Substantial evidence also supports a finding that Respondent 
violated federal law by prescribing controlled substances without being 
registered in the State of Arizona. See ALJ at 35-36 (citing 21 U.S.C. 
822(a)(2) & (e); 21 CFR 1301.12(b)(3)); see also Clarification of 
Registration Requirements for Individual Practitioners, 71 FR 69478 
(2006).\6\ In addition, substantial evidence supports a finding that 
Respondent violated federal regulations by failing to include required 
information such as a patient's address on numerous controlled 
substance prescriptions he issued. ALJ at 31 (citing 21 CFR 
1306.05(a)); see also GX 3.
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    \6\ However, I do not adopt the ALJ's conclusion of law that 
Respondent violated Arizona Rev. Stat. Ann. Sec.  36-2522(A)(2) 
because he was not registered in Arizona. The Government raised no 
such allegation in either the Show Cause Order (ALJ Ex. 1) or its 
pre-hearing statement (ALJ Ex. 5), and it made no such argument in 
its brief.
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    I therefore conclude that Respondent has committed acts which 
render his continued registration inconsistent with the public interest 
and which support the revocation of his registration. See 21 U.S.C. 
824(a)(4); see also ALJ at 39. Moreover, while the burden then shifted 
to Respondent to accept responsibility for his misconduct and 
demonstrate that he will not engage in future misconduct, see Patrick 
W. Stodola, 74 FR 20727, 20734 (2009); the ALJ further found that 
Respondent lacked ``credibility during numerous material portions of 
his testimony'' and ``has not accepted responsibility for his * * * 
misconduct.'' ALJ at 38. See also MacKay, 664 F.3d at 821 (``Because 
Dr. MacKay has not accepted responsibility for his conduct, revocation 
of his registration is entirely consistent with DEA policy.''). 
Accordingly, I adopt the ALJ's conclusion that Respondent has not 
rebutted the Government's prima facie case, id. at 39; and will order 
that his registration be revoked and that any pending applications to 
renew or modify his registration 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), I order that DEA Certificate of 
Registration AE5382724, issued to James William Eisenberg, M.D., be, 
and it hereby is, revoked. I further order that any pending application 
of James William Eisenberg, M.D., to renew or modify his registration, 
be, and it hereby is, denied. This Order is effective immediately.\7\
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    \7\ For the same reasons which led me to order the Immediate 
Suspension of Respondent's registration, I conclude that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.

    Dated: July 24, 2012.
Michele M. Leonhart,
Administrator.
Carrie Bland, Esq., for the Government.

David K. Demergian, Esq., for Respondent.

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

I. Introduction

    This proceeding is an adjudication pursuant to the Administrative 
Procedure Act, 5 U.S.C. 551 et seq., to determine whether the Drug 
Enforcement Administration (DEA, Agency or Government) should revoke a 
physician's DEA Certificate of Registration (COR) as a practitioner 
pursuant to 21 U.S.C. 824(a)(4) and deny, pursuant to 21 U.S.C. 823(f), 
any pending applications for renewal or modification and any 
applications for any other DEA registrations. Without such 
registration, the physician, James William Eisenberg, M.D. 
(Respondent), of the State of California, would be unable to lawfully 
prescribe, dispense or otherwise handle controlled substances in the 
course of his practice.
    On December 14, 2011, the Administrator, DEA, issued an Order to 
Show Cause and Immediate Suspension of Registration (OSC/IS) to 
Respondent. The OSC/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 
AE5382724, pursuant to 21 U.S.C. 824(a)(4), and deny any pending 
applications for renewal or modification of that registration and any 
applications for any additional registrations, pursuant to 21 U.S.C. 
823(f), alleging that Respondent's continued registration is 
inconsistent with the public interest as that term is defined in 21 
U.S.C. 823(f). (ALJ Ex. 1, at 1.)
    The OSC/IS alleged that Respondent is registered with DEA as a 
practitioner in Schedules II through V under DEA COR AE5382724 at 8466 
Santa Monica Boulevard, West Hollywood, California 90069, with an 
expiration date of August 31, 2013. (Id.) The OSC/IS further alleged 
the following:
    That from August to September 2011, law enforcement personnel 
conducted two undercover visits to AZ Go Green, a clinic where 
Respondent authorizes the use of marijuana, located at 426 East 
Southern Avenue, Suite 102, Tempe, Arizona. That Respondent issued 
prescriptions for oxycodone, a Schedule II controlled substance, and 
alprazolam, a Schedule IV controlled substance, to the undercover 
officers (UCs) without a legitimate medical purpose in the usual course 
of professional practice, (ALJ Ex. 1, at 1-2);
    That Respondent is not authorized by DEA to prescribe, dispense or 
otherwise handle controlled substances in the State of Arizona; 
Respondent allowed the UCs to dictate the type and amount of controlled 
substances prescribed rather than prescribing based on his own medical 
judgment; and Respondent charged the UCs based on the type of 
prescriptions rather than on the medical treatment rendered, (ALJ Ex. 
1, at 2); and
    That Respondent authorized at least 190 controlled substance 
prescriptions, seventy-five percent of which were for oxycodone, in 
Arizona without a DEA registration for his Arizona practice location. 
The prescriptions were issued for other than a legitimate medical 
purpose in the usual course of professional practice in violation of 21 
U.S.C. Sec.  822, 829, 841(a); 21 CFR 1301.12, 1306.04, (Id.).
    In addition to the allegations set forth in the OSC/IS, the 
Government also noticed and alleged in its prehearing statement and 
documentary evidence that Respondent issued controlled substance 
prescriptions to the owner and employees of AZ Go Green without 
documenting the prescriptions in their respective patient charts, (ALJ 
Ex. 5, at 2); Respondent issued prescriptions using a variety of 
addresses, including the address for AZ Go Green, that were not 
registered practice addresses with DEA, (Id. at 2-3); Respondent failed 
to include the patients' addresses on prescriptions in violation of 21 
CFR 1306.05, (Id. at 3); Respondent issued medical marijuana 
authorizations and cards to the UCs (Id. at 3-4); and on February 3, 
2012, the Arizona Medical Board (Board) issued an Order for Letter of 
Reprimand and Consent to the Same (February 3, 2012 Order) finding that 
Respondent engaged in unprofessional

[[Page 45665]]

conduct by knowingly making a false or fraudulent statement in the 
practice of medicine, (Gov't Ex. 11).\1\
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    \1\ I find in this case that the Government's prehearing 
statements and documentary evidence noticed during prehearing 
procedures comports with the due process requirement to ``provide a 
Respondent with notice of those acts which the Agency intends to 
rely on in seeking the revocation of its registration so as to 
provide a full and fair opportunity to challenge the factual and 
legal basis for the Agency's action.'' CBS Wholesale Distributors, 
74 Fed. Reg. 36,746 (DEA 2009) (citing NLRB v. I.W.G., Inc., 144 
F.3d 685, 688-89 (10th Cir. 1998); Pergament United Sales, Inc., v. 
NLRB, 920 F.2d 130, 134 (2d Cir. 1990)).
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    Following prehearing procedures, a hearing was held in Phoenix, 
Arizona on February 28, 2012, with the Government and Respondent each 
represented by counsel. Both parties called witnesses to testify and 
introduced documentary evidence. After the hearing, both parties filed 
proposed findings of fact, conclusions of law and argument. All of the 
evidence and post-hearing submissions have been considered, and to the 
extent the parties' proposed findings of fact have been adopted, they 
are substantively incorporated into those set forth below.

II. Issue

    Whether the record establishes that Respondent's DEA COR AE5382724 
as a practitioner should be revoked and any pending applications for 
renewal or modification of that registration and any applications for 
additional registrations should be denied on the grounds that 
Respondent's continued registration would be inconsistent with the 
public interest pursuant to 21 U.S.C. 824(a)(4) and 823(f).

III. Evidence and Incorporated Findings of Fact \2\
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    \2\ In addition to the evidence discussed in this Section, 
additional evidence and findings of fact are discussed in later 
sections of this Recommended Decision.
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    I find, by a preponderance of the evidence, the following facts:
    Respondent graduated with a B.A. degree from the University of 
Pennsylvania in 1962. He then obtained an M.D. degree in 1967 from the 
New Jersey College of Medicine.\3\ (Tr. 154.) Respondent is licensed to 
practice medicine in California and Arizona, and he is board certified 
in internal medicine. (Tr. 154, 158.) Respondent is registered as a 
practitioner with DEA, with a registered practice address at 8466 Santa 
Monica Boulevard, West Hollywood, California 90069. (Tr. 28-29; Gov't 
Ex. 1.)
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    \3\ After graduating from medical school, Respondent interned in 
the Columbia Division at Belleview Hospital in New York City, and 
then completed his residency in internal medicine in the Columbia 
Division at Harlem Hospital in New York City in 1970. (Tr. 154.) He 
worked as a senior resident and assistant chief resident at New York 
Hospital/Cornell Medical Center from 1970 to 1971, during which time 
he was a post-doctoral fellow at the Rockefeller University in New 
York. (Id.)
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    Respondent practiced at AZ Go Green, located at 325 East Southern 
Avenue, Suite 120, Tempe, Arizona,\4\ from April 2011 until December 
2011. (Tr. 154-55; see Gov't Ex. 3.) It is undisputed that Respondent 
did not register AZ Go Green as a practice location with DEA, nor did 
he register any other Arizona practice location with DEA. (Tr. 165.) 
Although he is still licensed to practice medicine in Arizona, 
Respondent no longer practices there. He now conducts medical marijuana 
evaluations and practices pain management in California. (Tr. 155.)
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    \4\ But see ALJ Ex. 1, at 1 (alleging that AZ Go Green is 
located at 426 East Southern Avenue, Suite 102, Tempe, Arizona).
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B. The Government's Evidence

    The Government's evidence included testimony from Special Agent 
(SA) Stephen Lamkin (SA Lamkin) and two UCs--Officer Dustin Melton 
(Officer Melton) and Officer Bradford Knights (Officer Knights). In 
addition to testimonial evidence, the Government also introduced 
various documentary evidence, including, among others: an audio 
recording and transcript of one undercover visit with Respondent at AZ 
Go Green; \5\ copies of prescriptions issued by Respondent to the UCs 
and other patients; \6\ patient files for the UCs and other patients; 
\7\ and the February 3, 2012 Order entered by the Board.\8\
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    \5\ Gov't Ex. 2.
    \6\ Gov't Ex. 3.
    \7\ Gov't Exs. 4-9.
    \8\ Gov't Ex. 11.
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    SA Lamkin \9\ testified that DEA began investigating AZ Go Green 
and Respondent in the summer of 2011, after a former employee of AZ Go 
Green filed a complaint with the Phoenix Police Department that AZ Go 
Green was illegally distributing marijuana \10\ and oxycodone. (Tr. 22-
23, 69-71, 75.) Respondent was the physician at AZ Go Green, 
responsible for ``assessing and diagnosing patients who came in seeking 
medical marijuana.'' (Tr. 23.)
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    \9\ SA Lamkin has been a special agent with DEA for sixteen 
years. He has been assigned to the Diversion Group, which 
investigates the illegal use and distribution of pharmaceutical 
grade controlled substances, since 2005. (Tr. 22.)
    \10\ SA Lamkin testified that when the investigation was 
initiated, ``[t]here was no medical marijuana dispensaries allowed 
to be operating at that time in the state. There was a hold from the 
Department of Health Services on medical marijuana dispensaries 
licensing and operating * * *.'' (Tr. 82-83.)
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    SA Lamkin testified that DEA set up four undercover visits, using 
three UCs, in an attempt to obtain marijuana or pharmaceuticals from AZ 
Go Green. (Tr. 23-24, 77-78.) On all four visits, the UCs obtained 
marijuana, and on two of the visits, the UCs obtained prescriptions for 
oxycodone.\11\ (Tr. 26.) The first UC, Officer Melton, went to AZ Go 
Green on two occasions using the undercover name ``Dustin Darrow.'' 
(Tr. 48-49.) On his first visit, Officer Melton received prescriptions 
for 120 tablets of oxycodone 30 milligrams and 90 tablets of Xanax 2 
milligrams. (Tr. 50; Gov't Ex. 3, at 1.) Officer Melton did not get 
oxycodone on his second undercover visit because J.C., the owner of AZ 
Go Green, told Officer Melton that he could not see Respondent. (Tr. 
78-79.) The second UC, Officer Knights, conducted one undercover visit 
to AZ Go Green using the undercover name ``Bradley Kites.'' (Tr. 50, 
77-78.) Officer Knights obtained a prescription for 150 tablets of 
oxycodone 15 milligrams. (Tr. 50; Gov't Ex. 3, at 6-7.) The third UC, 
patient L.V., was denied an oxycodone prescription. (Tr. 78.)
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    \11\ One prescription for oxycodone was entered directly into 
evidence and the other was actually filled at the pharmacy by the 
UC. (Tr. 26.)
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    SA Lamkin testified that he obtained the prescription monitoring 
profile for Respondent through the Arizona Controlled Substances 
Prescription Monitoring Program (CSPMP),\12\ which showed that 
Respondent had issued controlled substance prescriptions in the State 
of Arizona. (Tr. 33.) SA Lamkin explained, however, that the CSPMP 
report should not have shown any prescriptions issued by Respondent in 
Arizona because Respondent did not have a DEA registration in Arizona. 
(Tr. 30, 32-33.) Respondent's only DEA registration was issued for a 
practice address at 8466 Santa Monica Boulevard, West Hollywood, 
California 90069. (Tr. 28-29, 30, 32-33; see Gov't Ex. 1.) SA Lamkin 
explained that if a practitioner maintains a clinic in Arizona, the 
practitioner must have a DEA registration for Arizona for that practice 
location. (Tr. 30.)
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    \12\ SA Lamkin testified that the CSPMP is a prescription 
monitoring program set up by the Arizona Board of Pharmacy that 
monitors any controlled substances, as defined by Arizona statutes. 
(Tr. 26-27.) The prescription monitoring profile for Respondent 
shows ``all of the prescriptions he had written for patients * * * 
in Arizona that had been filled. * * * The [CS]PMP lists the 
patient's address as it's given on the prescription.'' (Tr. 28.)
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    SA Lamkin testified that he retrieved some of the prescriptions 
issued by Respondent in Arizona, including those issued to the UCs. 
(Tr. 33-34; Gov't Ex. 3.) Additionally, SA Lamkin testified that on 
September 29, 2011, he executed a search warrant at AZ Go Green, where 
he seized approximately eight patient files, as well as other 
documentary

[[Page 45666]]

evidence and marijuana products. (Tr. 35-37, 61; Gov't Exs. 4-9.) 
Although there were more patient files at AZ Go Green, SA Lamkin 
testified that DEA only seized the patient files ``to show what we 
needed to show. To marry it up with actual undercover visits or people 
who were employees of the clinic who probably shouldn't have been 
getting marijuana in any case from a doctor that worked at the 
clinic.'' (Tr. 62, 67-68.)
    SA Lamkin testified that Respondent issued controlled substance 
prescriptions to patients M.F., L.H., and R.B., who were all AZ Go 
Green employees. (Tr. 38-45, 52-54; see Gov't Ex. 4, at 4.) In 
particular, Respondent issued a prescription for oxycodone to M.F. on 
June 30, 2011. (Tr. 38-40; Gov't Ex. 3, at 23.) On September 2, 2011, 
Respondent issued a prescription for testosterone to L.H. (Tr. 44-45, 
90-91; Gov't Ex. 3, at 25.) Between April 1, 2011 and August 12, 2011, 
Respondent issued the following controlled substance prescriptions to 
R.B.: four prescriptions for oxycodone; two prescriptions for Xanax; 
one prescription for codeine syrup; two prescriptions for Percocet; and 
one prescription for Adderall. (Tr. 53; Gov't Ex. 3, at 2-3, 8-11, 16-
18, 21-22.) SA Lamkin testified that none of these prescriptions were 
documented in the patient files for M.F., L.H., and R.B. (Tr. 43, 45, 
53; Gov't Exs. 4-5, 9.) \13\
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    \13\ But see Gov't Ex. 5, at 9 (noting that L.H. takes 
testosterone, Xanax, and Percocet), and Gov't Ex. 9, at 15 (listing 
four prescriptions issued by Respondent to R.B.).
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    Additionally, between April 1, 2011 and October 20, 2011, 
Respondent issued twelve controlled substance prescriptions to J.C., 
the owner of AZ Go Green. Specifically, Respondent issued eight 
prescriptions for oxycodone, two prescriptions for Xanax, one 
prescription for Adderall, and one prescription for Vicodin. (Tr. 46-
47; see Gov't Ex. 3, at 2-7, 12-15, 17-20, 24.) SA Lamkin testified 
that there is nothing contained within J.C.'s patient file to indicate 
that Respondent issued these prescriptions to J.C. (Tr. 48; see Gov't 
Ex. 6.)
    Finally, SA Lamkin testified that the controlled substance 
prescriptions issued to the UCs were not documented in the patient 
files for ``Dustin Darrow'' and ``Bradley Kites.'' (Tr. 50-51; Gov't 
Exs. 7-8.)
    Although the prescriptions issued to the UCs and AZ Go Green 
employees were not documented in the patient files, SA Lamkin testified 
the prescriptions were ``probably'' written on duplicate or triplicate 
prescription pads. (Tr. 85.) SA Lamkin testified that there was a 
prescription pad in Respondent's exam room that may have contained the 
carbon copies of the prescriptions. (Tr. 88-89, 93.) SA Lamkin 
testified that he was not medically qualified to assess the 
appropriateness of the prescriptions, but he is ``qualified to comment 
on whether [Respondent] met recordkeeping standards'' with respect to 
those prescriptions and patient files. (Tr. 89, 90, 92, 96, 98, 99.)
    Finally, SA Lamkin testified that in the course of his 
investigation of Respondent and AZ Go Green, he learned that the Board 
entered the February 3, 2012 Order against Respondent. SA Lamkin 
understood that the February 3, 2012 Order was the result of 
Respondent's failure to query the CSPMP before issuing prescriptions. 
(Tr. 56-57, 84-85; Gov't Ex. 11.)
    Officer Melton \14\ testified that in August 2011, SA Lamkin asked 
him to assist with the investigation of Respondent and AZ Go Green. 
(Tr. 106, 120.) On August 12, 2011, Officer Melton participated in an 
undercover visit to AZ Go Green, where his mission was to obtain a 
doctor's referral for a medical marijuana card, marijuana, prescription 
pills and any other drugs. (Tr. 107, 120.) Officer Melton went into AZ 
Go Green using the alias ``Dustin Darrow.'' (Tr. 107.) When he arrived 
at AZ Go Green, he was told he had to leave his bag, which contained a 
recording device, with security. (Tr. 107-08.) He then went to the 
receptionist and told her that he wanted to obtain a doctor's referral 
for a medical marijuana card. She told him it would cost $150.00, which 
he paid in cash.\15\ He then filled out some paperwork about his 
medical history, on which he indicated that he broke his back in 2010. 
(Tr. 108-10; Gov't Ex. 7, at 7, 9.)
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    \14\ Officer Melton testified that he has been in law 
enforcement for approximately seven years. (Tr. 105.) He has worked 
one year in investigations with the Arizona State University Police 
Department, one year on a bicycle task force with the City of Tempe, 
and approximately two years on a narcotics task force with the City 
of Tempe. (Tr. 105-06.) He has worked with DEA ``[o]n a couple of 
occasions.'' (Tr. 106.)
    \15\ Officer Melton also asked for cocaine, but he was told by 
``[t]he lady at the back desk'' that it was not available. (Tr. 120-
21.)
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    Officer Melton then met with Respondent. Officer Melton told 
Respondent that he fell off of an ATV and broke his back at his T3 
vertebrae, which Officer Melton actually did fracture. (Tr. 111, 121-
23.) He told Respondent that he went to the emergency room, but stated 
that he did not have a regular doctor. (Tr. 122-24.) When Respondent 
asked Officer Melton if he had pain, Officer Melton hesitated and then 
Respondent asked, ``Does the pain come and go from time to time?'' 
Officer Melton replied ``sure.'' (Tr. 111, 122.) Despite the notation 
in the patient file for ``Dustin Darrow,'' Officer Melton did not tell 
Respondent that the pain persisted with activity in cold weather. 
(Compare Gov't Ex. 7, at 10, with Tr. 124.) Respondent then asked 
Officer Melton if marijuana would help relieve his pain and help him 
sleep, to which Officer Melton replied, ``Okay.'' (Tr. 111-12.) Officer 
Melton does not recall stating that it would help, but told Respondent 
that he used marijuana in the past. (Tr. 124.)
    Respondent told Officer Melton about the benefits of medical 
marijuana and explained alternatives to smoking, such as using a 
vaporizer or taking edible marijuana. (Tr. 112.) Officer Melton 
testified that Respondent then ``put a pressure cuff on my right arm 
and he had a stethoscope. Those were the only pieces of medical 
equipment that I could see in the office.'' (Tr. 112, 127-28.) 
Respondent instructed Officer Melton to stand up and bend over, and 
Respondent pushed on the top portion of Officer Melton's spine while 
having Officer Melton breathe deeply. (Tr. 112, 128.) Officer Melton 
did not express any pain. (Tr. 128.) After the exam, Respondent told 
Officer Melton to go to the front desk to complete the paperwork for 
medical marijuana. (Tr. 113.)
    At that point, Officer Melton asked Respondent if he could ``get 
some oxies,'' referring to oxycodone. Respondent told Officer Melton 
``that was a different task'' and would be an additional $200.00. 
Officer Melton agreed and paid $200.00 cash, which Respondent ``kept 
himself.'' (Tr. 113, 125-26.) Respondent asked Officer Melton how many 
oxycodone tablets he would get from his doctor, and Officer Melton told 
him he had previously been prescribed 180 tablets of oxycodone 30 
milligrams. (Tr. 114, 126.) Respondent told him that he would give him 
a prescription for 120 tablets of oxycodone 30 milligrams. (Tr. 114.) 
Officer Melton then asked for a Xanax prescription. Respondent told him 
it would cost another $50.00, and Officer Melton agreed and paid $50.00 
cash. (Tr. 115.) Respondent asked Officer Melton how many tablets he 
wanted, and Officer Melton requested 90 tablets. Respondent issued 
prescriptions for 120 tablets of oxycodone 30 milligrams and 90 tablets 
of Xanax 2 milligrams.\16\ (Tr. 115-16, 127; Gov't Ex. 3, at 1.)
---------------------------------------------------------------------------

    \16\ Officer Melton did not fill the prescriptions. (Tr. 127.)

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

[[Page 45667]]

    Officer Melton testified that he never complained of any anxiety to 
Respondent, but did tell him that he had difficulty sleeping. (Tr. 116, 
127.) He also testified that Respondent failed to discuss the risks and 
benefits of oxycodone or Xanax. (Tr. 116.) Nor did Respondent ever ask 
Officer Melton whether he was currently taking oxycodone or whether he 
had ever taken or been prescribed Xanax. (Tr. 116, 127.) Officer Melton 
did not provide any medical records, and Respondent never requested any 
medical records. (Tr. 110, 112.) Officer Melton's visit lasted ``[f]ive 
to ten minutes.'' (Tr. 124-25.) Respondent did not set up a follow-up 
visit for Officer Melton and did not indicate when he would see Officer 
Melton again. (Tr. 116-17.)
    Officer Melton went to AZ Go Green for a second undercover visit on 
August 25, 2011. (Tr. 117.) Officer Melton told the receptionist that 
he wanted to get medical marijuana and that he also wanted to see 
Respondent. The receptionist told Officer Melton that he would have to 
ask J.C. if he wanted to see Respondent, and told him to go to the back 
office to obtain his marijuana. (Tr. 118.) After he obtained his 
marijuana, Officer Melton asked J.C. if he could see Respondent, but 
J.C. told him that he could not. J.C. did not give him a reason. (Tr. 
119.)
    Officer Knights \17\ testified that SA Lamkin asked him to 
participate in an undercover visit to AZ Go Green to attempt to obtain 
a medical marijuana permit and a prescription for oxycodone. (Tr. 132, 
145.) On September 1, 2011, Officer Knights went to AZ Go Green using 
the alias ``Bradley Kites.'' (Tr. 133, 149; see Gov't Ex. 2.) Officer 
Knights testified that when he entered AZ Go Green, he went to the 
counter and told the employees that he wanted to be prescribed medical 
marijuana. He was given three or four sheets of paper to fill out and 
he paid $150.00 cash for the visit and the medical marijuana card. (Tr. 
133-34, 143; Gov't Ex. 8, at 8-13.) \18\ He also paid an additional 
$50.00 fee for AZ Go Green to submit his paperwork to the State of 
Arizona so that he could get the medical marijuana card. (Tr. 143-44.)
---------------------------------------------------------------------------

    \17\ Officer Knights went to the Arizona Law Enforcement Academy 
in 1999, and then he worked in patrol for approximately six years. 
In 2006, Officer Knights became a narcotics detective with the City 
of Peoria, where he has worked for the past six years. He spent two-
and-a-half years assigned with the DEA Diversion Task Force. (Tr. 
131-32.)
    \18\ Officer Knights testified that although he filled out pages 
8 through 13 of the patient file for ``Bradley Kites,'' pages 10 and 
13 also include somebody else's writing. (Tr. 143; see Gov't Ex. 8, 
at 10, 13.)
---------------------------------------------------------------------------

    Officer Knights then met with Respondent. (Tr. 134.) Respondent 
asked Officer Knights why he was there, how much he weighed, and what 
medical condition he suffered from. (Tr. 137.) Officer Knights told 
Respondent that he had been suffering from fibromyalgia for the past 
six years, but that he had not seen a doctor even though his pain had 
gotten worse. (Tr. 137, 148.) Officer Knights told Respondent that the 
pain interfered with his sleep, and that smoking cannabis helped with 
the pain and helped him sleep. He told Respondent that he ``had always 
been smoking cannabis,'' but that he was not currently taking any other 
medication. (Tr. 137, 148.)
    Officer Knights testified that after Respondent conducted a ``brief 
physical exam, * * * I told him that oxies helped me and if I could 
have some of those. And he said that that would be possible.'' (Tr. 
137-38, 149.) Respondent told Officer Knights that the prescription 
would cost $200.00 and then ``he asked me what other prescriptions I 
wanted.'' (Tr. 138; see also Gov't Ex. 2, at 2, 5.) Officer Knights 
told Respondent that he only wanted ``the cannabis and the oxy,'' and 
Respondent then asked Officer Knights ``if 15s would be okay. * * * 
Because if I prescribe the 30's it will raise red flags. * * * But I 
can write you more of the 15s.'' (Tr. 138, 151; see also Gov't Ex. 2, 
at 5.) Officer Knights asked if the marijuana and oxycodone were 
$200.00 total, and Respondent replied, ``Oh yeah the $150 is for the 
marijuana and the $200 is for the oxy * * *.'' (Gov't Ex. 2, at 5.) 
Officer Knights gave Respondent $200.00 cash, and Respondent issued a 
prescription for 150 tablets of oxycodone 15 milligrams. (Tr. 138-39; 
Gov't Ex. 3, at 6.)
    Officer Knights testified that during the visit, Respondent ``did 
talk to me about different ways to imbibe the cannabis and some 
different things to do for pain, such as swimming, eating correctly, a 
good diet and things like that.'' (Tr. 139-40; see Gov't Ex. 2, at 3-
4.) Respondent did not discuss the risks and benefits of taking 
oxycodone. (Tr. 140.) Officer Knights also testified that he did not 
bring any medical records and Respondent never asked him for any 
medical records. When Officer Knights left Respondent's office, 
Respondent stated, `` `I'll see you in about a year.' '' (Tr. 140; see 
also Gov't Ex. 2, at 6.)

C. Respondent's Evidence

    Respondent's evidence included testimony from Respondent, as well 
as two patient charts submitted as documentary evidence.\19\
---------------------------------------------------------------------------

    \19\ Resp't Exs. 1, 3.
---------------------------------------------------------------------------

    Respondent testified that he is licensed to practice medicine in 
California and Arizona. (Tr. 154.) He conceded, however, that he is 
only registered in California, and despite practicing at AZ Go Green in 
Arizona, he never registered an Arizona practice address with DEA. 
Respondent testified that he never knew that it was a requirement to 
register with DEA in each state. (Tr. 165.)
    Respondent testified that he has never had any of his state medical 
licenses suspended, revoked, or denied. (Tr. 154, 159.) He testified 
that he consented to the February 3, 2012 Order entered by the Board. 
(Tr. 159; see Gov't Ex. 11.) He explained that before qualifying a 
patient for medical marijuana in Arizona, a physician is required to 
certify that the physician has reviewed the patient's profile on the 
Arizona Board of Pharmacy's CSPMP.\20\ (Tr. 160-62; see, e.g., Gov't 
Ex. 8, at 10.) Respondent testified:
---------------------------------------------------------------------------

    \20\ The patient's CSPMP profile indicates whether the patient 
has received any controlled substances, but it does not indicate 
whether the patient has received medical marijuana. (Tr. 162-63.)

    I had no idea what this Arizona Board of Pharmacy database was 
or how to apply for it. There is nothing comparable in California 
for physicians,\21\ so I was checking the boxes really based upon my 
reviewing the * * * patient's medical records or their statements to 
me * * *. As soon as I realized that--or became aware that--of how 
to do it, I applied for and received my ID and password and from 
that point onward continued to check the database on every 
subsequent patient.
---------------------------------------------------------------------------

    \21\ Respondent later clarified that California has something 
similar to the Arizona CSPMP, called CURE, but ``it's not a 
requirement for doctors to use that as opposed to'' Arizona. (Tr. 
196-97.)

    (Tr. 162.) Respondent admitted to the Board that from the time he 
applied to the database until the time he received the information to 
access the database, he continued to represent that he had verified 
each patient's profile. (Tr. 164.) Respondent testified that he did not 
obtain the patient profiles for any of the AZ Go Green employees to 
---------------------------------------------------------------------------
whom he issued prescriptions. (Tr. 201-02.)

    Respondent next testified that while the goal of a pain management 
practitioner is to relieve suffering, he is sensitive about addictive 
issues. (Tr. 156.) He explained, however, that sometimes patients do 
not want to take medical marijuana because they may be drug tested at 
work, they're worried about dosage, or they travel across state lines. 
Instead they prefer to take oxycodone. (Tr. 174-75.) He also testified 
that sometimes medical

[[Page 45668]]

marijuana does not ``completely control their pain and so they require 
some additional medication in order to control their pain.'' (Tr. 175.)
    Respondent testified that during his time practicing at AZ Go 
Green, from April 2011 to December 2011, he saw approximately 800 to 
1,000 patients. He testified that only about one percent of the 
patients asked for a prescription other than marijuana. (Tr. 154-55, 
166-67.) Of that one percent, Respondent declined a prescription for 
something other than marijuana to ``[p]robably fifty percent.'' (Tr. 
167.)
    Respondent testified that he refused to issue an oxycodone 
prescription to the third UC, patient L.V., who requested an oxycodone 
prescription at the end of her exam. (Tr. 167.) Likewise, L.V. asked 
for Xanax, which Respondent also denied, explaining that ``[a]t that 
point I just wasn't writing [prescriptions], other than for the people 
who were already under my care.'' (Tr. 168; see Resp't Ex. 3.) 
Additionally, Respondent testified that he stopped treating patient 
A.C., who was receiving oxycodone prescriptions, ``because it seemed 
that he was possibly diverting these medications. * * *'' (Tr. 174.) 
Respondent conceded that there is nothing in A.C.'s patient file 
indicating that Respondent stopped treating A.C. (Tr. 208; see Resp't 
Ex. 1.)
    Respondent next testified that he is aware of a regulation that 
discourages physicians from issuing prescriptions to family members, 
but he is not aware of any similar regulation prohibiting physicians 
from issuing prescriptions to employees. (Tr. 166.) Respondent 
testified that he issued a prescription to M.F. for 120 tablets of 
oxycodone 30 milligrams because she had back pain and ``she felt [she] 
was in need of additional medication and that was corroborated by my 
exam. * * *'' (Tr. 177.) Before issuing the prescription, Respondent 
testified that he obtained her medical history and performed a physical 
examination. (Tr. 178.) Additionally, because M.F. worked at AZ Go 
Green, he ``had some idea of both the nature of her illness and her 
reliability.'' (Tr. 181.) Respondent testified that the prescription 
was issued for a legitimate medical purpose in the course of his 
practice, explaining that M.F.'s back pain was increasing despite using 
cannabis. (Tr. 177, 179.) Respondent conceded, however, that although 
M.F. had not taken oxycodone before, he prescribed her the highest 
dosage unit possible. (Tr. 200-01.)
    Next, Respondent testified that he prescribed testosterone to L.H., 
the security guard at AZ Go Green, because he was a body builder and 
L.H. ``felt that he was * * * starting to have just physical weakness * 
* * so he requested the testosterone as a way of maintaining his 
energy.'' (Tr. 181-82.) Respondent testified that in his opinion, it 
was an appropriate prescription issued for a legitimate medical purpose 
in the usual course of practice. (Tr. 182.)
    Respondent testified that he initially issued a prescription for 
Percocet to J.C., who had an MRI-documented herniated disc. Respondent 
determined ``it was safer'' to prescribe just oxycodone rather than 
Percocet, which is a combination of oxycodone and acetaminophen. (Tr. 
184-85.) Respondent also prescribed Xanax to J.C., stating, ``I think 
he lived a complicated life. Let me just put it that way. And so he was 
having high levels of anxiety and asked for Xanax to help him sleep.'' 
(Tr. 185.) Based on J.C.'s medical history and the physical 
examination, Respondent opined that Xanax was an appropriate 
prescription. (Tr. 185-86.) Additionally, Respondent prescribed 
Adderall to J.C. because J.C. was ``having trouble concentrating and he 
was kind of a hyper guy. * * *'' (Tr. 186.) Respondent testified that 
all of the medications were issued for a legitimate medical purpose in 
the usual course of practice. Respondent followed J.C. on these 
medications and they were all successful. (Tr. 186.)
    Respondent testified that R.B. suffered from anxiety and ``some 
ADD,'' and she also suffered from severe low back pain from an injury 
she suffered while moving. (Tr. 191.) Respondent testified that he saw 
R.B. on ``a more or less daily basis,'' and he observed that she was in 
pain. (Tr. 191-92.) Respondent prescribed oxycodone for her severe 
lower back pain. (Tr. 191.) Respondent testified, however, that despite 
issuing so many prescriptions so frequently to J.C. and R.B., he never 
required either patient to take a urine drug screen to confirm that 
they were actually taking the medication as prescribed. (Tr. 206.)
    With respect to the UCs, Respondent testified that Officer Knights 
told Respondent that he suffered from fibromyalgia, and a physical 
examination corroborated Officer Knights' complaints. (Tr. 187.) 
Although Officer Knights told Respondent he had not seen another 
doctor, Respondent testified that fibromyalgia can be self-diagnosed. 
(Tr. 210, 213.) Respondent also testified that while there is no 
objective test to diagnose fibromyalgia, such as an x-ray or MRI, the 
``symptom complex [is] pretty well-defined'' and Officer Knights met 
each of the criteria. (Tr. 188-89.) Respondent conceded though that 
Officer Knights never told Respondent where he had pain until 
Respondent asked if he had pain in his back and shoulders. (Tr. 203-
04.)
    Respondent testified that he told Officer Knights that oxycodone 30 
milligrams would raise a red flag, explaining that

    several patients that I had had who had gone--especially those 
without insurance, who had gone to a pharmacy with a prescription 
for 30 milligrams of oxycodone and paid cash, found that the 
pharmacists either were unwilling to fill the prescription or made 
them wait while they contacted me, and since I was not here in 
Arizona continually, there were problems getting back to me for 
verification of the prescriptions.

(Tr. 211.) He testified that it was not an effort to conceal his 
prescription writing patterns. (Id.) Respondent testified that he based 
the prescription to Officer Knights on the patient history and the 
physical examination, and he ``prescribed the oxycodone because 
[Officer Knights] said that he had been taking it for two years.'' (Tr. 
214.)
    As for Officer Melton's undercover visit with Respondent, 
Respondent testified that Officer Melton indicated that he suffered a 
fracture of his T3 when he fell from an ATV. (Tr. 189.) Respondent 
conducted a physical examination, which was consistent with Officer 
Melton's complaint. (Tr. 189.) Although Officer Melton did not say 
``ouch'' or verbally indicate pain during the exam, Respondent 
testified that Officer Melton agreed when he asked Officer Melton if 
the pain came and went. (Tr. 202-03.) Respondent testified that he 
could have further confirmed Officer Melton's complaint by ``tak[ing] 
another x-ray of his thoracic spine and see[ing] the fracture, but * * 
* [h]e had said he had gone to the emergency room and they told him he 
had a T3 fracture. I don't think an additional x-ray would be of any 
value.'' (Tr. 190.)
    Respondent conceded that he charged the UCs $200.00 each for the 
oxycodone portion of the visit in addition to the $150.00 fee that he 
charged them for the office visit. (Tr. 197-98.) He explained, however, 
that since oxycodone can only be prescribed for a one-month supply, he 
charges his patients $200.00 at the initial visit, but that charge 
includes two additional ``follow-up prescriptions and * * * additional 
exam[s] at no charge because they'd already paid.'' (Tr. 156-57, 176.) 
He testified that he failed to tell either of the UCs that the $200.00 
fee was good for three months though. (Tr. 197.)
    Nonetheless, Respondent testified that in his opinion, the 
prescriptions to the UCs were issued for a legitimate medical purpose 
in the usual course of professional practice. (Tr. 187-88, 190-91.) 
Respondent conceded that he

[[Page 45669]]

issued the prescriptions without asking either of the UCs for past 
medical records. (Tr. 207-08.) He also testified that while he believed 
he kept adequate patient records, he agreed that there was nothing in 
the UCs' respective patient files to show that they were prescribed 
oxycodone. (Tr. 205.)
    Respondent testified that he kept carbon copies of all 
prescriptions that he wrote, which would ``eventually'' get put into 
the patient's file. (Tr. 170-71.) He did not have a timeframe for 
putting the copies into the patient files and agreed that waiting five 
to six months was a long time. (Tr. 204, 205-06.) Respondent also 
testified that to his knowledge he has not issued a prescription that 
was not for a legitimate medical purpose in the usual course of 
practice. (Tr. 159.) He explained:

    I come from a prior era of medical care where * * * MRI's were 
not available. And so I was taught about physical diagnosis. That 
you took a careful history from the patient, you performed a 
physical examination on the patient carefully and that was more 
valuable than even many diagnostic tests, which could be equivocal. 
And so that's part of how I practice medicine over the years as I've 
been trying to keep cost conscious and not over utilize diagnostic 
testing unless it's absolutely necessary.

(Tr. 193.)

IV. Discussion

A. The Applicable Statutory and Regulatory Provisions

    The Controlled Substances Act (CSA) provides that any person who 
dispenses (including prescribing) a controlled substance must obtain a 
registration issued by the DEA in accordance with applicable rules and 
regulations.\22\ ``A prescription for a controlled substance to be 
effective must be issued for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his professional 
practice. The responsibility for the proper prescribing and dispensing 
of controlled substances is upon the prescribing practitioner'' with a 
corresponding responsibility on the pharmacist who fills the 
prescription.\23\ It is unlawful for any person to possess a controlled 
substance unless that substance was obtained pursuant to a valid 
prescription from a practitioner acting in the course of his 
professional practice.\24\
---------------------------------------------------------------------------

    \22\ 21 U.S.C. Sec. Sec.  802(1), 822(a)(2).
    \23\ 21 CFR 1306.04(a).
    \24\ 21 U.S.C. 844(a).
---------------------------------------------------------------------------

B. The Public Interest Standard

    The CSA, at 21 U.S.C. 824(a)(4), provides, insofar as pertinent to 
this proceeding, that the Administrator may revoke a DEA COR if she 
finds that the continued registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 823(f). In 
determining the public interest, the Administrator is required to 
consider the following factors:
    (1) The recommendation of the appropriate state licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing or conducting research 
with respect to 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.\25\
---------------------------------------------------------------------------

    \25\ I conclude that the reference to ``other conduct which may 
threaten the public health and safety'' would as a matter of 
statutory interpretation logically encompass the factors listed in 
Sec.  824(a). See Kuen H. Chen, M.D., 58 FR 65,401, 65,402 (DEA 
1993).
---------------------------------------------------------------------------

    As a threshold matter, these factors are to be considered in the 
disjunctive: The Administrator may properly rely on any one or a 
combination of those factors, and give each factor the weight she deems 
appropriate, in determining whether a registration should be revoked or 
an application for registration denied. See David H. Gillis, M.D., 58 
FR 37,507, 37,508 (DEA 1993); see also D & S Sales, 71 FR 37,607, 
37,610 (DEA 2006); Joy's Ideas, 70 FR 33,195, 33,197 (DEA 2005); Henry 
J. Schwarz, Jr., M.D., 54 FR 16,422, 16,424 (DEA 1989). Application of 
the public interest factors requires an individualized determination 
and assessment of prescribing and record-keeping practices that are 
``tethered securely to state law * * * and federal regulations.'' 
Volkman v. DEA, 567 F.3d 215, 223 (6th Cir. 2009). Additionally, in an 
action to revoke a registrant's COR, the DEA has the burden of proving 
that the requirements for revocation are satisfied.\26\ The burden of 
proof shifts to the respondent once the Government has made its prima 
facie case.\27\
---------------------------------------------------------------------------

    \26\ See 21 CFR 1301.44(e).
    \27\ See Medicine Shoppe--Jonesborough, 73 Fed. Reg. 364, 380 
(DEA 2008); see also Thomas E. Johnston, 45 FR 72311 (DEA 1980).
---------------------------------------------------------------------------

C. The Factors To Be Considered

Factor 1: The Recommendation of the Appropriate State Licensing Board 
or Professional Disciplinary Authority
    In this case, regarding Factor One, it is undisputed that 
Respondent currently holds valid medical licenses in Arizona and 
California, but Respondent's Arizona medical license has been the 
subject of recent disciplinary action.\28\ On December 21, 2011, 
Respondent signed a consent agreement with the Arizona Medical Board 
(Board), which ultimately resulted in a February 3, 2012 Order for 
Letter of Reprimand and Consent to the Same (February 3, 2012 
Order).\29\ (Gov't Ex. 11.) The February 3, 2012 Order included various 
factual findings to include Respondent's admission to the allegation 
that he ``wrote 483 Medical Marijuana Certifications in which he 
attested to reviewing the qualifying patient's profile on the Arizona 
Board of Pharmacy Controlled Substances Prescription Monitoring Program 
(CSPMP) database prior to ever accessing the database through the 
Arizona Board of Pharmacy (Pharmacy Board) Web site.'' (Id. at 1.) 
Additionally, during the relevant time period, Respondent had not 
registered with the database ``so he was unable to access or make 
queries of the CSPMP prior to that time.'' (Id.; Tr. 163-64.)
---------------------------------------------------------------------------

    \28\ Respondent has never had his medical license in any state 
where he has held one suspended, revoked, or denied. (Tr. 159.)
    \29\ Respondent asserts that the February 3, 2012 Order includes 
a provision that his admissions to the Board for purposes of the 
February 3, 2012 Order were ``not intended or made for any other 
use, such as in the context of another State or Federal government 
regulatory agency proceeding, * * *'' (Resp't Br., at 9.) I do not 
find this argument to be persuasive, however, because the Government 
was not a party to those proceedings and is not bound by those 
terms. Cf. Robert Raymond Reppy, D.O., 76 FR 61,154, 61,159-60 (DEA 
2011) (refusing to apply res judicata where the respondent was not a 
party to the prior proceedings); see also United Ass'n of Journeymen 
& Apprentices of Plumbing & Pipefitting Indus., Steamfitters and 
Refrigeration Unit v. Valley Engineers, 975 F.2d 611, 615 (9th Cir. 
1992) (``The general rule is that a litigant is not bound by a prior 
decision in a proceeding to which it was not a party.'' (citing 
Hansberry v. Lee, 311 U.S. 32, 40 (1940))).
---------------------------------------------------------------------------

    The Board concluded that Respondent's conduct constituted 
``unprofessional conduct pursuant to A.R.S. Sec.  32-1401(27)(t) 
(`[k]nowingly making any false or fraudulent statement, written or 
oral, in connection with the practice of medicine or if applying for 
privileges or renewing an application for privileges at a health care 
institution').'' (Id. at 2.) As a result of the foregoing findings of 
fact and conclusions of law, the Board issued Respondent a ``Letter of 
Reprimand.'' (Id.)
    The Board's action reflects a determination that Respondent, 
notwithstanding findings of unprofessional conduct in the recent past, 
can be entrusted with a medical

[[Page 45670]]

license. While not dispositive,\30\ this action by the State of Arizona 
does weigh against a finding that Respondent's continued registration 
would be inconsistent with the public interest under Factor One. Cf. 
Robert A. Leslie, M.D., 68 FR 15,227, 15,230 (DEA 2003) (under Factor 
One, prior suspension of respondent's state medical license held not 
dispositive where state license currently under no restrictions).
---------------------------------------------------------------------------

    \30\ Mortimer B. Levin, D.O., 55 Fed. Reg. 8,209, 8,210 (DEA 
1990) (finding DEA maintains separate oversight responsibility and 
statutory obligation to make independent determination whether to 
grant registration).
---------------------------------------------------------------------------

Factor 3: Conviction Record under Federal or State Laws Relating to the 
Manufacture, Distribution or Dispensing of Controlled Substances
    Regarding Factor Three, there is no evidence that Respondent has 
ever been convicted under any federal or state law relating to the 
manufacture, distribution or dispensing of controlled substances. (See 
Tr. 159.) I therefore find that this factor, although not dispositive, 
see Leslie, 68 FR at 15,230, weighs against a finding that Respondent's 
registration would be inconsistent with the public interest.
Factors 2 and 4: Respondent's Experience in Handling Controlled 
Substances; and Compliance with Applicable State, Federal or Local Laws 
Relating to Controlled Substances
    In this case, the evidence demonstrates that Respondent has failed 
to remain in compliance with applicable federal and state law relating 
to controlled substances, and that his past experience in prescribing 
controlled substances is inconsistent with the public interest. 
Additionally, evidence at hearing centered on Respondent's record-
keeping practices, as well as his dispensing practices from an 
unregistered location.

1. Respondent's Prescribing Practices

    Evaluation of Respondent's prescribing conduct in this case is 
governed by applicable federal and state law. The applicable standard 
under federal law is whether a prescription for a controlled substance 
is ``issued for a legitimate medical purpose by an individual 
practitioner acting in the usual course of his professional practice.'' 
21 CFR 1306.04(a). The standard of care refers to that generally 
recognized and accepted in the medical community rather than a standard 
unique to the practitioner. Robert L. Dougherty, M.D., 76 FR 16,823, 
16,832 (DEA 2011) (citing Brown v. Colm, 11 Cal. 3d 639, 642-43 
(1974)). Although it is recognized that state law is a relevant factor 
in determining whether a practitioner is acting in the ``usual course 
of professional practice,'' it is also appropriate, in the context of 
an inquiry under federal law, to consider ``generally recognized and 
accepted medical practices'' in the United States. Bienvenido Tan, 
M.D., 76 FR 17,673, 17,681 (DEA 2011).
    ``Under the CSA, it is fundamental that a practitioner must 
establish a bona fide doctor-patient relationship in order to act `in 
the usual course of * * * professional practice' and to issue a 
prescription for a `legitimate medical purpose' as required by 21 CFR 
1306.04(a).'' Gilbert Eugene Johnson, M.D., 75 FR 65,663, 65,666 (DEA 
2010) (citing Patrick W. Stodola, M.D., 74 FR 20,727, 20,731 (DEA 2009) 
(citing United States v. Moore, 423 U.S. 122, 135, 143 (1975))). ``The 
CSA generally looks to state law to determine `whether a doctor and 
patient have established a bona fide patient relationship.' '' Id.; see 
also Kamir Garces-Mejias, M.D., 72 FR 54,931, 54,935 (DEA 2007); United 
Prescription Services, Inc., 72 FR 50,397, 50,407 (DEA 2007).
    Under applicable Arizona law, grounds for disciplinary action 
include ``[u]nprofessional conduct'' further defined as ``[v]iolating 
any federal or state laws, rules or regulations applicable to the 
practice of medicine.'' Ariz. Rev. Stat. Sec.  32-1401(27)(a). 
Additionally, unprofessional conduct includes ``[a]ny conduct or 
practice that is or might be harmful or dangerous to the health of the 
patient or the public.'' Ariz. Rev. Stat. Sec.  32-1401(27)(q).
(a) Undercover Law Enforcement Patient Visits
    Turning to the evidence in the instant case, the Government alleged 
and presented evidence that Respondent issued prescriptions for 
controlled substances in Arizona to two undercover law enforcement 
officers (UCs) posing as patients on August 12, 2011 and September 1, 
2011, that were not issued for a legitimate medical purpose and outside 
the usual course of professional practice.\31\ (ALJ Ex. 1, at 1-2; 
Gov't Exs. 2-3.) The Government's evidence also credibly established 
through the testimony of SA Lamkin that the undercover visits with 
Respondent during 2011 were initiated based on information provided by 
a former employee of Respondent's practice location, AZ Go Green, that 
Respondent and the owner of the clinic ``were illegally distributing 
marijuana out of the clinic and prescriptions for oxycodone as well.'' 
(Tr. 23.) SA Lamkin further explained that the primary purpose of his 
investigation was the oxycodone distribution. (Tr. 75.)
---------------------------------------------------------------------------

    \31\ The evidence at hearing also referenced a third UC, patient 
L.V., who went to Respondent's practice on September 22, 2011, but 
was denied oxycodone and Xanax prescriptions by Respondent. (Tr. 77-
78, 169; Resp't Ex. 3.)
---------------------------------------------------------------------------

    With regard to the August 12, 2011 undercover patient visit with 
Respondent, the Government presented testimony from Officer Melton, who 
credibly testified in substance that he visited Respondent's Arizona 
practice location for the purpose of obtaining a medical marijuana card 
and prescription pills. (Tr. 107.) Notably, office staff informed 
Officer Melton that any backpacks or purses must be left by the front 
door of the clinic.\32\ (Tr. 108.) The visit required the payment of 
$150.00 cash in advance to the receptionist, who informed Officer 
Melton the fee was required to ``obtain a referral from the doctor.'' 
(Tr. 109.) Prior to seeing Respondent, Officer Melton was also required 
to fill out forms to include a patient attestation not to divert 
marijuana and a form entitled Medical Marijuana Patient Summary, on 
which Officer Melton indicated a medical history of ``Broken Back 10/
2010.'' (Tr. 108-10; Gov't Ex. 7, at 7, 9.)
---------------------------------------------------------------------------

    \32\ Officer Melton was equipped with a recording device for 
purposes of the undercover visit, but it was not located on his 
person. Accordingly, the device remained with his belongings in the 
lobby area and no recording was made of his encounter with 
Respondent. (Tr. 107.)
---------------------------------------------------------------------------

    The testimony from Officer Melton also reflects that Respondent 
neither asked for nor obtained any medical records during the visit, 
and was told upon inquiry that Officer Melton did not currently have a 
doctor. (Tr. 110-12.) Respondent nonetheless falsely indicated in the 
patient chart that he had reviewed the patient's medical records, 
including medical records from other treating physicians. (Gov't Ex. 7, 
at 6.) The evidence further reflects that Respondent asked Officer 
Melton if he had pain from his broken back, suggesting that the pain 
comes and goes from time to time, to which Officer Melton agreed. (Tr. 
111.) After this exchange, Respondent asked if medical marijuana would 
help with pain and sleep, and Officer Melton replied ``Okay.'' (Tr. 
111-12.) Respondent then explained the benefits of marijuana and 
alternative means of ingestion, followed by an examination of Officer 
Melton that consisted of a ``pressure cuff'' and stethoscope, along 
with having Officer Melton stand, bend, and take deep breaths. 
Additionally, Respondent pushed on the top portions of Officer

[[Page 45671]]

Melton's spine, followed by a statement that the ``exam was over.'' 
(Tr. 112.)
    Respondent then informed Officer Melton about ``edibles'' and how 
to obtain marijuana, and ``walked him to the door suggesting we should 
leave.'' (Tr. 113.) At that point Officer Melton asked Respondent if he 
``could obtain some oxies'' referring to an oxycodone prescription, to 
which Respondent replied that was a ``different task'' and would 
require payment of an additional $200.00, to which Officer Melton 
stated ``fine'' and paid Respondent $200.00 in cash. (Tr. 114.) Officer 
Melton described Respondent's issuance of a prescription for 120 
tablets of oxycodone 30 milligrams and 90 tablets of Xanax 2 milligrams 
as follows:

    He then sat down at the desk and filled out a prescription pad, 
which he gave to me. He asked me questions. He said, `How many would 
you get from your doctor?' I said, `180.' He said he would only 
write it for 120. And actually before he asked that, I told him I 
got 30's from my doctor and he did complete the prescription for 30 
milligram oxycodone at a quantity of 120.

(Id.)

    Officer Melton testified that after Respondent handed him the 
prescription for oxycodone,\33\ he then asked Respondent for Xanax:
---------------------------------------------------------------------------

    \33\ Gov't Ex. 3, at 1.

    I asked him if I could get a prescription for Xanax and he said 
that would cost an additional $50.00. I said that was okay and I 
gave him $50.00 cash and he began to fill out another prescription. 
He asked how many I wanted. I said, `90.' And he completed a 
prescription for 90 2 milligram Xanax tablets and gave me the 
---------------------------------------------------------------------------
prescription for those.

(Tr. 115; Gov't Ex. 3, at 1.)

    Of significance, the evidence reflected that upon Officer Melton's 
return to Respondent's practice on August 25, 2011, he was told that he 
could not see Respondent, although no reason was given. (Tr. 119.)
    With regard to the September 1, 2011 undercover patient visit with 
Respondent, the Government presented testimony from Officer Knights, 
who credibly testified that he visited Respondent's Arizona practice 
location for the purpose of obtaining a ``medical marijuana license and 
a prescription for oxycodone.'' \34\ (Tr. 132.) Upon arrival, he 
indicated to AZ Go Green staff that he wanted to be prescribed 
marijuana and was given paperwork to fill out. He paid $150.00 cash for 
the visit and an additional $50.00 fee for the staff to submit his 
paperwork to the State of Arizona. (Tr. 143-44.)
---------------------------------------------------------------------------

    \34\ Officer Knights was wearing a recording device during the 
visit, the results of which are reflected in an audio recording and 
transcript admitted at hearing. (Gov't Ex. 2.)
---------------------------------------------------------------------------

    The recording and transcript of the encounter with Respondent 
reflects that Officer Knights related to Respondent a six-year history 
of fibromyalgia with problems in the shoulders and neck, and pain 
becoming worse. (Tr. 137; Gov't Ex. 2, at 1.) Officer Knights also 
noted sleep disturbance and told Respondent that he had not treated 
with a doctor at the time nor had he seen one after the pain became 
worse. (Gov't Ex. 2, at 1.) Officer Knights indicated to Respondent 
that he was not taking any medications, but stated cannabis had helped 
in the past. Prior to any physical examination, Officer Knights 
inquired of Respondent if oxycodone prescriptions were possible.

    [RESPONDENT]: Do you have a regular doctor that you see now?
    KNIGHTS: Um, no not regularly. But, um I mean oxy seemed to help 
too, I don't know if you guys doing anything like that here or * * 
*?
    [RESPONDENT]: Have * * * how long have you been taking 
oxycodone?
    KNIGHTS: Um, when I can get it for probably about 2 years.
    [RESPONDENT]: Mm-hmm.
    KNIGHTS: On and off.
    [RESPONDENT]: Mm-hmm.
    KNIGHTS: But um that really seems to help too.
    [RESPONDENT]: Okay, that's a separate fee but we can, I can 
write you a prescription.
    KNIGHTS: I, that would be great that would be awesome.

(Gov't Ex. 2, at 2.)

    Notably, Respondent's statement that he can write a prescription 
for oxycodone at the outset of the patient visit, prior to any 
examination and in response to a specific request by the patient, is 
inconsistent with a prescription being issued for a legitimate medical 
purpose or in the usual course of professional practice. 21 CFR 
1306.04(a).
    The patient visit continued with Respondent discussing diet along 
with alternatives to using marijuana, as well as a discussion about the 
appropriate amount to use to relieve symptoms. (Gov't Ex. 2, at 4.) The 
patient visit next turned back to the issue of oxycodone:

    [RESPONDENT]: Okay. Now it's $200 for today. I only do 15s. Is 
that ok?
    KNIGHTS: Oxy 15s?
    [RESPONDENT]: Yeah.
    KNIGHTS: I mean if that's all you can do I guess.
    [RESPONDENT]: Yeah that's all * * * it's just, it's such a red 
flag, the 30s are such a red flag, you know, but I will give you a 
few more, I'll give you a little bit more so that should help.
* * * * *
    KNIGHTS: How many can you do?
    [RESPONDENT]: 150.
    KNIGHTS: Alright 15s?
    [RESPONDENT]: Yeah.
    KNIGHTS: Alright. What's a, what's a red flag? What do you mean?
    [RESPONDENT]: You know when you go to the pharmacy when you 
bring in (unintelligible) you know they flag it with the Board of 
Pharmacy and it just becomes a problem for you and for me.
    KNIGHTS: Oh really?
    [RESPONDENT]: Yeah, (unintelligible) * * * with the 15s they 
don't really they don't have a problem with, but when you do the 
30s, that's when they get, you know, they just, they make a red flag 
and you know my name and your name get on to a list and you end up 
you know with a problem.
    KNIGHTS: Wow, I didn't know.

(Gov't Ex. 2, at 6.)

    Respondent concluded the visit with Officer Knights by stating that 
``we will see you in another year.'' (Id.) Respondent issued a 
prescription to Officer Knights for 150 tablets of oxycodone 15 
milligrams. (Gov't Ex. 3, at 6.)
    In response to the evidence regarding the two undercover visits by 
Officers Melton and Knights, Respondent testified in relevant part that 
he was of the opinion that his prescriptions in each instance were 
issued for a legitimate medical purpose while acting in the usual 
course of his professional practice. (Tr. 187-88, 190-91.) I do not 
find Respondent's testimony credible in various respects. As an initial 
matter, I find Respondent's prescribing of controlled substances to 
Officers Melton and Knights to reflect a cash transaction for 
controlled substances at the request of the UCs, to include a 
negotiated quantity, strength, and type, which was effectively devoid 
of any credible relationship to the purported medical reason for the 
visit. Simply put, these were transparent unlawful ``drug deals.'' \35\ 
21 U.S.C. 841 (a)(1); see Homayoun Homayouni, M.D., 61 FR 1,406, 1,408-
09 (DEA 1996).
---------------------------------------------------------------------------

    \35\ The credible evidence at hearing is consistent with the 
hearsay statement from a former employee of AZ Go Green that 
Respondent was illegally prescribing oxycodone. For purposes of this 
recommended decision, I find that the foregoing hearsay statement by 
the former employee constitutes substantial evidence, particularly 
in light of the fact that the informant was known to SA Melton and 
corroborated by extensive credible evidence of record. Calhoun v. 
Bailar, 626 F.2d 145, 149 (9th Cir. 1980); see also Richardson v. 
Perales, 402 U.S. 389, 402-06 (1971).
---------------------------------------------------------------------------

    Respondent's relatively brief testimony explaining the basis for 
his prescribing controlled substances to Officers Melton and Knights 
was inconsistent with other objective and credible evidence of record. 
Respondent testified in relevant part that he was of the opinion after 
his examination of

[[Page 45672]]

Officer Knights that the results were consistent with a diagnosis of 
fibromyalgia, which ``sometimes is associated with chronic fatigue.'' 
(Tr. 187.) While the patient file for Officer Knights briefly notes 
``fibromyalgia,'' the transcript of the encounter clearly demonstrates 
that Respondent had already agreed to issue Officer Knights a 
prescription for oxycodone in exchange for a separate cash fee in 
advance of the examination. Even more telling is Respondent's later 
statement to Officer Knights that he only does ``15s,'' followed by 
asking Officer Knights if that ``is ok'' with him, essentially 
deferring the strength of the prescription to the patient. Respondent's 
added explanation that issuance of 30s raises red flags with the 
pharmacy board, and that he will give Officer Knights ``a few more'' is 
fully inconsistent with any arguable legitimate medical purpose. 
Rather, it is fully consistent with an unlawful drug transaction.
    Respondent's testimony explaining the controlled substance 
prescriptions for oxycodone and Xanax to Officer Melton is equally 
incredible. Respondent testified in relevant part that in his 
experience fractures of the type reported by Officer Melton are 
``very'' painful, and found Officer Melton's symptomology consistent 
with that type of injury. (Tr. 189.) Respondent further explained that 
the examination performed for the medical marijuana evaluation 
encompassed many of the same things that would be examined for an 
oxycodone prescription, noting that he did not ``think that an 
additional x-ray would be of any value.'' (Tr. 190.)
    Respondent's testimony is significantly at odds with the credible 
testimony of Officer Melton. The timing of Respondent's issuance of two 
prescriptions to Officer Melton significantly undermines any legitimacy 
to Respondent's actions, as well as the credibility of his testimony at 
hearing. The issue of oxycodone came up after Respondent's examination 
was over and Officer Melton was being escorted to the door. Only after 
Officer Melton raised the issue of ``oxies'' did Respondent indicate 
that would be a different task and fee, and immediately proceed to sit 
down and issue a prescription for oxycodone in a strength that Officer 
Melton requested. Respondent's reluctance to issue the requested 
quantity of 150, settling instead on a quantity of 120, is consistent 
with Respondent's concerns expressed to Officer Knights about ``red 
flags'' with the pharmacy board.
    Officer Melton's patient file and evaluation is also inconsistent 
with Respondent's purported basis for issuing the oxycodone 
prescription. Respondent asked Officer Melton how many he would get 
from his doctor, yet Respondent's signed evaluation notes indicate 
``none'' for physician and medication.\36\ Respondent's own 
documentation reflects his actual knowledge that Officer Melton's 
statement of how many he would get from his doctor had no correlation 
to ongoing medical care.
---------------------------------------------------------------------------

    \36\ Tr. 114; Gov't Ex. 7, at 10.
---------------------------------------------------------------------------

    Respondent's testimony regarding his refusal to prescribe 
controlled substances to undercover patient L.V. on September 22, 2011, 
is also inconsistent with other credible evidence of record. (Tr. 167-
68; Resp't Ex. 3.) Respondent testified that he refused to issue a 
requested prescription for oxycodone and Xanax, explaining that ``[a]t 
that point I just wasn't writing * * * other than [for] the people who 
were, you know, in their cycle of receiving the prescriptions from 
previously--previous exams.'' (Tr. 168.) Respondent also testified that 
the $200.00 fee associated with the first examination for controlled 
substance prescriptions was good for two additional follow-up visits 
for three months.\37\ (Tr. 157, 176, 197.) Respondent elaborated on the 
purpose of the additional examinations: ``I wanted to see how they 
responded to the medication and how their condition had changed in any 
way. And of course, I thought it was necessary to do an exam before I 
could prescribe the medication.'' (Tr. 176.)
---------------------------------------------------------------------------

    \37\ Respondent acknowledged during cross-examination that he 
never informed the undercover patients that the fees related to 
oxycodone and Xanax prescriptions included follow-up visits good for 
three months. (Tr. 197.)
---------------------------------------------------------------------------

    While Respondent's testimony that he was no longer writing 
controlled substance prescriptions for new patients as of September 22, 
2011 may be accurate, his assertion that he was only writing 
prescriptions for patients ``in their cycle of receiving'' 
prescriptions is wholly at odds with his prescribing practices for 
Officers Melton and Knights. In the case of Officer Knights, Respondent 
concluded the visit with a statement that ``we will see you in another 
year.'' (Tr. 140; Gov't Ex. 2, at 6.) No follow-up appointment was 
scheduled nor is one indicated in the patient chart. (Gov't Ex. 8.) 
Contrary to Respondent's testimony, the evidence clearly indicates no 
intention to follow-up with Officer Knights during the three-month 
period after the initial visit.
    Respondent's prescribing practice with regard to Officer Melton is 
similar. At no time during the visit did Respondent indicate when or if 
he would see Officer Melton again. (Tr. 117.) Nor is there any mention 
of follow-up in the patient chart. (Gov't Ex. 7.) In fact, when Officer 
Melton returned to Respondent's Arizona office on August 25, 2011, his 
request to see Respondent was refused.
    In light of the foregoing, I do not find Respondent's testimony 
that he issued controlled substances to Officers Melton and Knights for 
a legitimate medical purpose and in the usual course of his medical 
practice remotely credible. Although the Government did not present any 
expert testimony pertaining to the undercover visits to AZ Go Green, 
other credible substantial evidence of record supports a finding by a 
preponderance of the evidence that Respondent's prescriptions for 
oxycodone and Xanax to Officer Melton on August 12, 2011, and his 
prescription of oxycodone to Officer Knights on September 1, 2011, were 
unlawful. 21 U.S.C. 841(a)(1); 21 CFR 1306.04(a); Ariz. Rev. Stat. 
Sec.  32-1401(27)(a). See Cynthia M. Cadet, M.D., 76 FR 19,450, 19,450 
n.3 (DEA 2011) (explaining that in cases of particularly flagrant 
conduct by a registrant ``expert testimony adds little to the proof 
necessary to establish a violation of Federal law''); see also Randall 
L. Wolff, M.D., 77 FR 5,106, 5,151-52 (DEA 2012) (giving little weight 
to the respondent's testimony that a prescription issued to an 
undercover agent was appropriate, despite the lack of medical expert 
testimony to the contrary, in light of other record evidence).\38\
---------------------------------------------------------------------------

    \38\ Respondent argues that the prescriptions presented by the 
Government, including those issued to the UCs, ``were written for 
legitimate medical purposes in the course of Respondent's practices, 
the evidence is undisputed that they were. The government has 
introduced not a scintilla of evidence to the contrary.'' (Resp't 
Br., at 13-14.) While I acknowledge Respondent's argument, I wholly 
reject it with regards to the prescriptions issued to the UCs. As 
noted above, I find Respondent's self-serving testimony on this 
matter incredible, and the evidence of record demonstrates that 
Respondent's prescribing to the UCs were transparent unlawful drug 
deals.
---------------------------------------------------------------------------

(b) Lack of Patient Address on Controlled Substance Prescriptions
    The Government alleged and presented evidence at hearing that 
Respondent failed to include patient addresses on controlled substance 
prescriptions in violation of 21 CFR 1306.05(a). (See ALJ Ex. 5, at 3.) 
Although the Government did not produce any testimonial evidence 
regarding this allegation, it introduced approximately thirty 
controlled substance prescriptions issued by Respondent between April 
2011 and

[[Page 45673]]

October 2011, to patients C.C., J.C., R.B., J.B., D.B., M.F., and L.H., 
as well as the UCs, that do not include the patients' addresses on the 
prescriptions. (Gov't Ex. 3.) Respondent did not dispute that he issued 
these prescriptions. (See Tr. 177-92.)
    In light of the undisputed evidence of record, I find by a 
preponderance of the evidence that Respondent knowingly issued numerous 
prescriptions between April and October 2011 in violation of 21 CFR 
1306.05(a) (``All prescriptions for controlled substances shall * * * 
bear the full name and address of the patient, * * *.''). See 
Christopher E. Castle, M.D., 67 Fed. Reg. 71,196, 71,198 (DEA 2002).
(c) Respondent's Positive Prescribing Practices
    Respondent presented evidence to demonstrate that in other cases, 
he acted in accord with the public interest standard. Respondent 
testified that he has not, to his knowledge, ever issued a prescription 
that was not for a legitimate medical purpose in the usual course of 
his practice. (Tr. 159.) He testified that he is ``sensitive to 
patients increasing their usage,'' and often denies prescribing the 
``amount or frequency'' that a patient requests. (Tr. 157.) He also 
testified that he has declined to issue controlled substance 
prescriptions to many patients, and he has stopped prescribing to 
patients who were receiving medication from other physicians. (Tr. 158, 
166.) In particular, Respondent testified that he denied issuing 
prescriptions for oxycodone to undercover patient L.V., and he stopped 
treating patient A.C. after learning that A.C. was ``possibly 
diverting'' his oxycodone. (Tr. 167-68, 172-74.)
    I do not find Respondent's testimony to credibly demonstrate 
positive prescribing practices. With regards to patient L.V., 
Respondent testified that he did not issue a controlled substance 
prescription to her because at the time of her undercover visit, he was 
not writing prescriptions for people who were not already receiving 
controlled substances prescriptions. (Tr. 168.) His basis for denying 
her a controlled substance prescription was not related in any way to 
his medical evaluation of L.V., or his medical judgment that a 
controlled substance prescription would not be appropriate for that 
particular patient. Regarding patient A.C., I do not find Respondent's 
testimony credible in light of the fact that A.C.'s patient chart 
contains no documentation that Respondent was either concerned with 
A.C. diverting medication or that Respondent ultimately terminated 
treatment of A.C. (See Resp't Ex. 1.)
    Even if Respondent's testimony was credible, it is, nonetheless, 
unavailing. Agency precedent has held that even a single act of 
intentional diversion is sufficient grounds upon which to revoke a 
registration,\39\ and ``evidence that a practitioner has properly 
treated thousands of patients does not negate a prima facie showing 
that the practitioner has committed acts inconsistent with the public 
interest.'' Jayam Krishna-Iyer, M.D., 74 FR 459, 463 (DEA 2009).
---------------------------------------------------------------------------

    \39\ See, e.g., Cynthia M. Cadet, M.D., 76 FR 19,450, 19,450 n.3 
(DEA 2011).
---------------------------------------------------------------------------

2. Respondent's Record-Keeping Practices

    Under Arizona law, unprofessional conduct includes ``[f]ailing or 
refusing to maintain adequate records on a patient.'' Ariz. Rev. Stat. 
Sec.  32-1401(27)(e). ``Adequate records'' is further defined as 
follows:

    [L]egible medical records containing, at a minimum, sufficient 
information to identify the patient, support the diagnosis, justify 
the treatment, accurately document the results, indicate advice and 
cautionary warnings provided to the patient and provide sufficient 
information for another practitioner to assume continuity of the 
patient's care at any point in the course of treatment.

Ariz. Rev. Stat. Sec.  32-1401(2).

    Although the Government did not allege violations of federal 
record-keeping regulations, it did allege that Respondent violated 
state law by failing to maintain adequate patient records. In 
particular, the Government alleged that Respondent prescribed Schedule 
II and IV controlled substances to various employees, as well as the 
owner of AZ Go Green, between April 2011 and October 2011, but made 
``no reference to the controlled substances prescribed were [sic] found 
in the medical files seized in violation of Arizona law.'' (ALJ Ex. 5, 
at 2.)
    Specifically, Respondent prescribed controlled substances to M.F., 
L.H., J.C., and R.B., however, SA Lamkin testified that there was 
nothing contained within each patient's chart to show that Respondent 
issued those prescriptions. (Gov't Exs. 3-6, 9; Tr. 38-45, 52-54.) 
Respondent did not dispute issuing these prescriptions, but instead 
testified that he is not aware of any regulation prohibiting him from 
writing prescriptions to employees of the clinic. (Tr. 166.) Respondent 
further testified, consistent with SA Lamkin's testimony, that he 
maintained carbon copies of prescriptions for controlled substances 
that he wrote on a prescription pad. (Tr. 93; 170-71.) Respondent 
testified that his intent was that ``[e]ventually they would get to the 
file.'' (Tr. 171.)
    The foregoing evidence arguably supports a finding that 
Respondent's failure to reference prescriptions for controlled 
substances in the patient files is contrary to applicable Arizona law. 
However, the plain language of the statute does not specifically 
require documentation of controlled substance prescriptions,\40\ and 
the Government offered no authority to support a finding that a patient 
chart must contain a carbon copy of a prescription for controlled 
substance. Nor did the Government produce any medical expert testimony 
or other qualified opinion evidence to establish that Respondent's 
charts for patients M.F., L.H., J.C., and R.B., were inadequately 
maintained under applicable Arizona law. In fact, the patient chart for 
R.B. does include a prescribing history for oxycodone and alprazolam on 
various dates in 2011.\41\ (Gov't Ex. 9, at 15.)
---------------------------------------------------------------------------

    \40\ See Arizona Medical Board, Guidelines for the Use of 
Controlled Substances for the Treatment of Chronic Pain (available 
at https://www.azmd.gov/Statutes-Rules/7_policy.aspx) (stating that 
to maintain ``adequate records'' for a chronic pain patient, ``the 
documentation should include * * * [p]rescribed medications and 
treatment.'' (emphasis supplied)).
    \41\ While the prescribing history is not complete, notably, 
Respondent submits that none of the prescriptions were noted in 
R.B.'s patient file. (See Resp't Br., at 7-8.)
---------------------------------------------------------------------------

    While I do not find Respondent's testimony that carbon copies of 
the prescriptions for controlled substances would ``eventually'' get to 
the patient file particularly credible, especially in light of his 
testimony as a whole, I nonetheless find that the Government has not 
sustained its burden to establish by a preponderance of the evidence 
that Respondent's record-keeping for Patients M.F., L.H., J.C., and 
R.B. violated applicable Arizona law.\42\
---------------------------------------------------------------------------

    \42\ Similarly, I do not find that the Government has adequately 
alleged or established a violation of Arizona law as it relates to 
Respondent's prescribing of controlled substances to ``employees,'' 
as compared to immediate family members. See e.g. Ariz. Rev. Stat. 
Sec.  32-1401(13).
---------------------------------------------------------------------------

3. Respondent's Prescribing From an Unregistered Location

    Federal law requires every person who dispenses (including 
prescribing) any controlled substance to obtain a registration from the 
Attorney General.\43\ ``A separate registration shall be required at 
each principal place of business or professional practice where the 
applicant manufactures, distributes, or dispenses controlled substances 
or list I chemicals.\44\ Federal regulations further mandate that a 
``separate

[[Page 45674]]

registration is required for each principal place of business or 
professional practice at one general location where controlled 
substances are manufactured, distributed, imported, exported, or 
dispensed by a person.'' \45\
    Applicable regulations exempt certain locations from the 
requirement of a separate registration to include ``a practitioner (who 
is registered at another location in the same state or jurisdiction of 
the United States) where controlled substances are prescribed but 
neither administered or dispensed as a regular part of the professional 
practice of the practitioner at such office * * *.''\46\ On December 1, 
2006, DEA amended its registration regulations to make it clear that 
when an individual practitioner practices in more than one state, the 
practitioner must obtain a separate DEA registration for each state. 
Clarification of Registration Requirements for Individual 
Practitioners, 71 FR 69,478 (DEA 2006.) The amended regulation makes 
clear that the secondary location exemption is limited to ``location[s] 
within the same State in which the practitioner maintains his/her 
registration.'' Id. at 69,479.
---------------------------------------------------------------------------

    \43\ 21 U.S.C. 822(a)(2).
    \44\ 21 U.S.C. 822(e).
    \45\ 21 CFR 1301.12(a). The term dispense includes the delivery 
of a controlled substance by prescribing. 21 U.S.C. Sec.  802(10).
    \46\ 21 CFR 1301.12(b)(3).
---------------------------------------------------------------------------

    Additionally, Arizona law requires that ``[e]very person who * * * 
prescribes * * * any controlled substance within this state * * * must 
first * * * [b]e a registrant under the federal controlled substances 
act (Pub. L. 91-513; 84 Stat. 1242; 21 United States Code section 801 
et seq.).'' Ariz. Rev. Stat. Ann. Sec.  36-2522(A)(2) (emphasis 
supplied).
    The evidence of record establishes that Respondent is licensed to 
practice medicine in Arizona and California, and his DEA registered 
practice address is 8466 Santa Monica Boulevard, West Hollywood, 
California 90069. (Gov't Ex. 1; see also Tr. 28-29, 154.) From April 
2011 until December 2011, Respondent practiced at AZ Go Green, located 
at 325 East Southern Avenue, Suite 120, Tempe, Arizona 85282. (Tr. 154-
55; see Gov't Ex. 3.) Respondent admits that he did not obtain a DEA 
registration for AZ Go Green, or any other Arizona practice location. 
(Tr. 165.)
    Despite not having a DEA registration in the State of Arizona, SA 
Lamkin testified that the CSPMP showed that Respondent issued 
controlled substance prescriptions to patients in Arizona.\47\ (Tr. 28-
33.) Specifically, Respondent issued at least twenty-three controlled 
substance prescriptions between June 2011 and October 2011 while 
practicing at AZ Go Green in Arizona to patients M.F., L.H., R.B., 
J.C., C.C., J.B. and D.B., as well as to the UCs. (See Gov't Ex. 3, at 
1-11, 16-20, 23-32.) Additionally, from April 2011 to May 2011, while 
Respondent was practicing at AZ Go Green in Arizona, he issued at least 
seven prescriptions to patients J.C., J.B., and R.B. using a 
prescription pad that listed an unregistered California address: 1017 
North La Cienega Boulevard, Suite 110, West Hollywood, California 
90069. (See Gov't Ex. 3, at 12-15, 17-18, 21-22; Tr. 28-29, 30, 154-
55.) \48\
---------------------------------------------------------------------------

    \47\ Despite the allegation in the OSC/IS that Respondent 
``authorized at least 190 prescriptions for controlled substances, 
more than 75 percent of which were for oxycodone,'' in Arizona, (ALJ 
Ex. 1, at 1; see also ALJ Ex. 5, at 2) there was no evidence 
produced at hearing to indicate the total number of controlled 
substance prescriptions Respondent issued in Arizona, or what 
percentage of those prescriptions pertained to oxycodone. See Gregg 
& Son Distributors, 74 FR 17,517, 17,517 n.1 (DEA 2009) (noting that 
it is the Government's obligation, as part of its burden of proof, 
``to sift through the records and highlight that information which 
is probative of the issues in the proceeding'').
    \48\ There is evidence of record that Respondent prescribed 
controlled substances while in Arizona using his 1017 North La 
Cienega Boulevard address. (Compare Gov't Ex. 3, at 14, with Gov't 
Ex. 6, at 5.)
---------------------------------------------------------------------------

    Respondent testified in relevant part that he never registered his 
Arizona practice location with DEA, explaining that in his over forty 
years of practice, he ``had never heard that that was a requirement.'' 
(Tr. 165.) Respondent elaborated: ``I mean, just my common sense, I'm 
wrong of course, but my common sense is, it's a federal drug license. 
So why shouldn't it be transferable from state-to-state?'' (Id.) As 
with other areas of Respondent's testimony, I do not find his testimony 
that he had never heard of the requirement credible. For example, a 
review of Respondent's DEA COR, issued on July 21, 2010, bearing a 
registration address in West Hollywood, California, states in bold 
print: ``THIS CERTIFICATE IS NOT TRANSFERABLE ON CHANGE OF OWNERSHIP, 
CONTROL, LOCATION, OR BUSINESS ACTIVITY, AND IS NOT VALID AFTER THE 
EXPIRATION DATE.'' (Gov't Ex. 1.)
    Aside from the statutory and regulatory notice, Respondent was 
clearly on actual notice that his DEA registration was not transferable 
to an Arizona location.\49\ Thus, I find by substantial evidence that 
Respondent knowingly issued prescriptions for controlled substances 
from an unregistered practice location on numerous occasions between 
April and October 2011 in violation of applicable state and federal 
law. 21 U.S.C. 822 (a)(2), (e); 21 CFR 1301.12 (b)(3); Ariz. Rev. Stat. 
Ann. Sec.  36-2522(A)(2).
---------------------------------------------------------------------------

    \49\ Although Respondent stopped practicing in Arizona in 
December 2011, I do not find this to be sufficient mitigating 
evidence, particularly in light of the fact that the OSC/IS was 
issued in December 2011. (See ALJ Ex. 1, at 1.)
---------------------------------------------------------------------------

    Based upon the foregoing, I find the Government has established by 
a preponderance of the evidence under Factors Two and Four that 
Respondent's prescribing practices and compliance with applicable state 
and federal law from April 2011 until October 2011 was inconsistent 
with the public interest. This weighs heavily in favor of a finding 
that Respondent's continued registration would be inconsistent with the 
public interest.
Factor 5: Such Other Conduct Which May Threaten the Public Health and 
Safety
    Under Factor Five, the Administrator is authorized to consider 
``other conduct which may threaten the public health and safety.'' 5 
U.S.C. 823(f)(5). The Agency has accordingly held that ``where a 
registrant has committed acts inconsistent with the public interest, 
the registrant must accept responsibility for his or her actions and 
demonstrate that he or she will not engage in future misconduct. 
Patrick W. Stodola, 74 FR 20,727, 20,734 (DEA 2009).\50\ A 
``[r]espondent's lack of candor and inconsistent explanations'' may 
serve as a basis for denial of a registration. John Stanford Noell, 
M.D., 59 FR 47,359, 47,361 (DEA 1994). Additionally, ``[c]onsideration 
of the deterrent effect of a potential sanction is supported by the 
CSA's purpose of protecting the public interest.'' Joseph Gaudio, M.D., 
74 FR 10,083, 10,094 (DEA 2009).
---------------------------------------------------------------------------

    \50\ See also Hoxie v. DEA, 419 F.3d 477, 484 (6th Cir. 2005) 
(decision to revoke registration ``consistent with the DEA's view of 
the importance of physician candor and cooperation.'')
---------------------------------------------------------------------------

    Turning first to ``other conduct,'' the Government alleged and 
presented evidence related to the illegal distribution of marijuana at 
Respondent's Arizona practice location. The evidence included testimony 
from SA Lamkin that a former employee of AZ Go Green stated Respondent 
and the owner of the clinic ``were illegally distributing marijuana out 
of the clinic and prescriptions for oxycodone as well.'' (Tr. 23.) 
While the evidence of record corroborated the prescribing of oxycodone 
by Respondent, SA Lamkin's credible testimony at hearing does not 
support a finding that Respondent participated in the illegal 
distribution of marijuana.
    SA Lamkin testified that Respondent ``took it a little farther'' 
than just

[[Page 45675]]

certifying or diagnosing a patient as needing medical marijuana, but 
acknowledged a lack of investigative information that Respondent ``ever 
handed any marijuana to anybody for cash.'' (Tr. 77-78.) The weight of 
the evidence demonstrates that Respondent's activities, as it relates 
to marijuana, were primarily limited to medical marijuana 
recommendations. (See, e.g., Gov't Ex. 2, at 3-4.)
    Accordingly, I find that the Government has not established by a 
preponderance of the evidence that Respondent ``distributed 
marijuana[,] * * * aided and abetted the distribution of marijuana[,]'' 
or engaged in other related conduct. Cf. Marion ``Molly'' Fry, M.D., 67 
Fed. Reg. 78,015 (DEA 2002) (the respondent's registration not revoked 
```merely because' she recommended marijuana to a patient `based on a 
sincere medical judgment' '' but primarily because she distributed 
marijuana and aided and abetted in distribution of marijuana).
    A remaining issue in this case is whether Respondent has accepted 
responsibility for his past misconduct, and demonstrated that he will 
not engage in future misconduct. The Government argues that there ``is 
nothing in the record that evinces Respondent's acceptance of 
responsibility * * *.'' (Gov't Br., at 18.) The Government also notes 
that Respondent lacked candor throughout his testimony, simply claiming 
that he was unaware of certain regulations or attempting to justify his 
prescribing practices by ``fabricat[ing] a story * * *.'' (Id. at 18-
19.) Respondent does not specifically address acceptance of 
responsibility in his post-hearing brief, but he instead claims that 
the Government did not meet its burden of proof because he did not 
intentionally violate any state or federal regulations, and because 
``the government's case rests entirely upon a web of lies spun by two 
undercover agents * * *.'' (Resp't Br., at 14-15.)
    As discussed above, Respondent's testimony as a whole fails to 
adequately accept responsibility for his past misconduct, particularly 
with regard to his prescribing practices to the UCs. Under Agency 
precedent, in the absence of a credible explanation by the 
practitioner, as few as two incidents of diversion are sufficient to 
revoke a registration. Alan H. Olefsky, M.D., 57 FR 928, 929 (DEA 
1992). Respondent's lack of credibility during numerous material 
portions of his testimony weighs heavily against a finding that 
Respondent has accepted responsibility, let alone demonstrated that he 
will not engage in future misconduct. See Hoxie v. DEA, 419 F.3d 477, 
483 (6th Cir. 2005) (DEA properly considers physician's candor, 
forthrightness in assisting investigation, and admitting of fault as 
important factors in determining whether registration is consistent 
with public interest).
    I find by a preponderance of the evidence that Respondent has not 
accepted responsibility for his past misconduct, nor has he credibly 
demonstrated that he has learned from his past mistakes and would 
properly handle controlled substances in the future. An ``agency 
rationally may conclude that past performance is the best predictor of 
future performance.'' Alra Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th 
Cir. 1995). I find that Factor Five weighs heavily in favor of a 
finding that Respondent's registration would be inconsistent with the 
public interest.

VI. Conclusion and Recommendation

    After balancing the foregoing public interest factors, I find that 
the Government has established by substantial evidence a prima facie 
case in support of revoking Respondent's DEA COR AE5382724, based on 
Factors Two, Four and Five of 21 U.S.C. 823(f). Once DEA has made its 
prima facie case for revocation or denial, the burden shifts to the 
respondent to show that, given the totality of the facts and 
circumstances in the record, revoking or denying the registration would 
not be appropriate. See Morall v. DEA, 412 F.3d 165, 174 (DC Cir. 
2005); Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. 
United States Dep't of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); 
Thomas E. Johnston, 45 Fed. Reg. 72, 311 (DEA 1980).
    The record reveals that Respondent has not sustained his burden in 
this regard. In fact, as discussed above, Respondent's testimony in 
numerous instances was not credible and reflected an overall lack of 
admission of past misconduct. Respondent's testimony was also 
effectively devoid of any credible demonstration that he has learned 
from his past mistakes and will not engage in future misconduct. In 
light of the foregoing, Respondent's evidence as a whole fails to 
sustain his burden to accept responsibility for his past misconduct and 
demonstrate that he will not engage in future misconduct.
    I recommend revocation of Respondent's DEA COR AE5382724 as a 
practitioner, and denial of any pending applications for renewal or 
modification, on the grounds that Respondent's continued registration 
would be fully inconsistent with the public interest as that term is 
used in 21 U.S.C.Sec.  824(a)(4) and 823(f).

Dated: April 5, 2012

s/Timothy D. Wing
Administrative Law Judge

[FR Doc. 2012-18747 Filed 7-31-12; 8:45 am]
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