George R. Smith, M.D.; Decision and Order, 44972-44980 [2013-17890]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 78, Number 143 (Thursday, July 25, 2013)]
[Notices]
[Pages 44972-44980]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17890]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-52]


George R. Smith, M.D.; Decision and Order

    On February 5, 2013, Administrative Law Judge (ALJ) Gail A. Randall 
issued the attached Recommended Decision. Therein, the ALJ recommended 
that I deny Respondent's pending application for a DEA Certificate of 
Registration as a practitioner. Respondent did not file exceptions to 
the Recommended Decision.
    Having reviewed the entire record, I have decided to adopt the 
ALJ's Recommended Decision in its entirety. Accordingly, Respondent's 
application will be denied.

Order

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

    Dated: July 16, 2013.
Michele M. Leonhart,
Administrator.

Krista Tongring, Esq., for the Government
Louis Leichter, Esq. and Andre D'Souza, Esq., for the Respondent

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

I. Introduction

    Gail A. Randall, Administrative Law Judge. 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'' or ``Government'') should deny a physician's application for a 
DEA Certificate of Registration pursuant to 21 U.S.C. 823(f) (2006). 
Without such registration, the physician, George R. Smith, M.D. 
(``Respondent'' or ``Dr. Smith''), would be unable to lawfully

[[Page 44973]]

prescribe, dispense or otherwise handle controlled substances in the 
course of his medical practice.

II. Procedural Background

    The Deputy Assistant Administrator, Drug Enforcement 
Administration, issued an Order to Show Cause (``Order'') dated June 5, 
2012, proposing to deny the application of George R. Smith, M.D. for a 
DEA Certificate of Registration pursuant to 21 U.S.C. 823(f) (2006), 
because Respondent's registration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. Sec.  823(f). 
[Administrative Law Judge Exhibit (``ALJ Exh.'') 1 at 1]. The Order 
stated that on November 18, 2011, Respondent applied for a DEA 
registration as a practitioner in Schedules II-V at 4721 Bob White 
Road, Gilmer, Texas 75645. [Id.]. Additionally, the Order stated that 
Respondent had twice previously surrendered his DEA registrations for 
cause. [Id.]. Respondent first voluntarily surrendered his DEA 
registration, DEA number BS2388381, on March 6, 2002. [Id.]. Respondent 
then voluntarily surrendered his second DEA registration, DEA number 
FS0339817, on April 27, 2011. [Id.].
    The Order alleged that between November 1998 and June 2001, 
Respondent issued prescriptions for large quantities of hydrocodone, a 
Schedule III controlled substance, to his family members for his own 
personal use for other than legitimate medical purposes. [Id.]. In 
relation to this allegation, the Order asserted that during this time 
period, Respondent obtained and filled prescriptions for hydrocodone 
from at least ten different doctors for his own personal use for other 
than legitimate medical purposes. [Id.]. Additionally, the Order 
asserted that between June 2001 and August 2001, Respondent issued 
prescriptions for hydrocodone and alprazolam to third-party non-
patients in order for Respondent to obtain these controlled substances 
for his own personal use for other than legitimate medical purposes. 
[Id.]. As a result of issuing these unlawful prescriptions for 
controlled substances, Respondent pled guilty to one count of obtaining 
controlled substances by fraud, in violation of 21 U.S.C. Sec.  
843(a)(3), a felony, on November 26, 2001, before the United States 
District Court for the Eastern District of Texas. [Id. at 2].
    Lastly, the Order alleged that Respondent had prescribed Schedule 
III and IV controlled substances between January 2010 and January 2011 
in violation of his medical license, his Texas controlled substance 
registration, and his DEA registration. [Id.]. In regards to this 
allegation, the Order stated that Respondent only had authority to 
prescribe Schedule V controlled substances because in March 2007 
Respondent had applied for a DEA registration as a practitioner and was 
subsequently issued a DEA registration, DEA number FS0339817, for 
Schedule V controlled substances only. [Id.]. The Deputy Assistant 
Administrator then gave Respondent the opportunity to show cause as to 
why his registration application should not be denied on the basis of 
those allegations. [Id.].
    On July 3, 2012, Respondent, through counsel, timely filed a 
request for a hearing in the above-captioned matter. [ALJ Exh. 2].
    On December 3, 2012, a Protective Order was issued to protect 
patient names and patient files used in this proceeding. [ALJ Exh. 8].
    After authorized delays, a hearing was held in Austin, Texas on 
December 12, 2012 through December 13, 2012, with the Government and 
Respondent each represented by counsel. [ALJ Exh. 3-4, 6-7]. At the 
hearing, counsel for the Government called one witness to testify and 
introduced documentary evidence. [Transcript (``Tr.'') Volume I-II]. 
Counsel for the Respondent called two witnesses to testify, including 
the Respondent, and introduced documentary evidence. [Id.].
    After the hearing, the Government and the Respondent submitted 
Proposed Findings of Fact, Conclusions of Law and Argument (``Govt. 
Brief'' and ``Resp. Brief'').

III. Issue

    The issue in this proceeding is whether or not the record as a 
whole establishes by a preponderance of the evidence that the Drug 
Enforcement Administration should deny the application of George R. 
Smith, M.D., for a DEA Certificate of Registration as a practitioner, 
pursuant to 21 U.S.C. Sec.  823(f) (2006), because to grant Dr. Smith's 
application would be inconsistent with the public interest as that term 
is defined in 21 U.S.C. 823(f). [ALJ Exh. 3; Tr. 5].

IV. Findings of Fact

A. Stipulated Facts

    The parties have stipulated to the following facts:
    1. Respondent holds Texas Medical license H-8411 (expiration 
February 28, 2013),\1\ and Texas Department of Public Safety Controlled 
Substances Registration (Texas DPS Registration) Certificate 60184908 
(expiration November 30, 2012) \2\ which allows Respondent to issue 
prescriptions for controlled substances listed in Schedules II-V.
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    \1\ On January 31, 2013, the parties filed Joint Stipulations of 
Fact No. 2 with the Court. Therein, the parties stipulated ``[a]fter 
the conclusion of the Hearing on the Merits Respondent submitted a 
renewal request to the Texas Medical Board (``TMB'') for his Texas 
Medical License H-8411 which was set to expire at the end of 
February 2013. The TMB renewed Respondent's medical license for the 
ordinary term of two years. Respondent's Texas Medical License is 
now current through February 28, 2015.''
    \2\ On January 31, 2013, the parties filed Joint Stipulations of 
Fact No. 2 with the Court. Therein, the parties stipulated ``[p]rior 
to the Hearing on the Merits the Respondent submitted a request to 
the Texas Department of Public Safety (``DPS'') to renew his Texas 
Controlled Substances Registration. The DPS renewed Respondent's DPS 
Controlled Substances Registration for the ordinary term of one 
year. Respondent's DPS Registration is now current through November 
30, 2013.''
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    2. On March 4, 1995, the Texas State Board of Medical Examiners 
(Medical Board) suspended Respondent's medical license because 
Respondent had developed a drug addiction due to the self-
administration of hydrocodone and codeine. The suspension was stayed 
and Respondent was placed on probation for five (5) years.
    3. Respondent's probation was terminated on October 24, 1998.
    4. On October 24, 2001, Respondent's medical license was 
temporarily suspended because his ``continuation in the practice of 
medicine would constitute a continuing threat to public welfare.''
    5. On November 26, 2001, before the United States District Court 
for the Eastern District of Texas, Respondent pleaded guilty to one 
count of obtaining a controlled substance by fraud, a felony. 
Respondent was sentenced to a three (3) year term of probation on March 
21, 2002.
    6. On March 6, 2002, Respondent voluntarily surrendered his DEA 
Certificate of Registration Number BS2388381 for cause.
    7. By order dated May 17, 2002, the Medical Board revoked 
Respondent's medical license. The revocation was stayed, Respondent was 
placed on probation for ten (10) years, and Respondent was required to 
surrender his DEA (surrendered prior to the order) and Texas controlled 
substance registrations.
    8. By Medical Board Order dated June 2, 2006, Respondent was 
permitted to apply to the DEA and the Texas DPS for Certificates of 
Registration for Schedule V controlled substances only. Respondent was 
further limited to prescribing Schedule V controlled substances to 
hospital admission patients only.

[[Page 44974]]

    9. In March 2007, Respondent applied for a DEA Registration for 
Schedule V controlled substances, which was approved, and DEA 
Registration Number FS0339817 was issued.
    10. DEA Registration Number FS0339817 was renewed in February 2010.
    11. Respondent applied to the Medical Board four times for 
modification of his Board order to allow him to apply for unrestricted 
DEA and DPS registrations. He made such applications on August 18, 
2007; November 2, 2008; March 14, 2010; and November 17, 2010.
    12. On April 27, 2011, Respondent voluntarily surrendered DEA 
Registration Number FS0339817 for cause after it was discovered that he 
was issuing prescriptions for Schedule III and IV controlled substances 
to non-hospital admission patients.
    13. By Medical Board Order dated August 26, 2011, Respondent was 
permitted to apply to the DEA and the Texas DPS for unrestricted 
controlled substance registrations so that he may prescribe Schedule 
II, III, IV, and V controlled substances.
    14. Respondent remains under a Medical Board order that requires 
random drug screens, drug screens upon request of any of Respondent's 
healthcare providers, treatment for addiction by a physician, and 
attendance at AA meetings. Any positive drug screen or refusal to 
submit to testing is grounds for immediate suspension of Respondent's 
medical license.
    15. The August 26, 2010 \3\ Medical Order remains in effect until 
May 17, 2017, and is not eligible for early termination.
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    \3\ It appears that both counsel are referring to the August 26, 
2011 Medical Order. See Government Exhibit (``Govt. Exh.'') 11 and 
Respondent Exhibit (``Resp. Exh.'') 1.
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    16. In September 2011, the Texas DPS issued Respondent a Texas 
Controlled Substances Registration in all schedules.
    17. On November 18, 2011, Respondent applied for an unrestricted 
DEA Certificate of Registration.\4\
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    \4\ The November 18, 2011 application is the subject of this 
administrative hearing.
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    [ALJ Exh. 5; Tr. 6].

B. Respondent's History

1. Respondent's Education and Training
    Respondent received a Bachelor of Science degree from East Texas 
State University, majoring in Molecular Biology. [Tr. 77-78]. Upon 
graduating from college, Respondent attended the University of Texas 
Southwestern Medical School, where he later graduated in the top 10% of 
his class. [Tr. 78-79]. After completing medical school, Respondent 
completed a four year post-graduate residency program in internal 
medicine at Presbyterian Hospital of Dallas. [Tr. 79-81]. In his final 
year of residency training, Respondent was elected the Chief Resident 
and during his year as Chief Resident he served as a critical care 
medicine trainee. [Tr. 80-82]. After completing his residency training, 
the Respondent was offered a critical care fellowship at Parkland 
Hospital in Dallas, Texas but, the Respondent declined this 
opportunity. [Tr. 82-83].
    In 1994, the Respondent entered private practice after the 
completion of his residency training. [Tr. 82, 84]. The Respondent 
began practicing with an internist in Mount Pleasant, Texas. [Id.]. In 
addition to seeing patients at his own office, the Respondent served as 
the critical care unit director at Titus Regional Medical Center. [Tr. 
84]. Respondent practiced with the internist and served as the critical 
care unit director at Titus Regional Medical Center for a period of 6-7 
years. [Id.].
    In 2000, the Respondent became Board Certified in Internal 
Medicine.\5\ [Tr. 89]. Following his time in private practice and 
working as the critical care unit director at Titus Regional Medical 
Center, Respondent conducted pilot exams for American Airlines for a 
period of 6-8 months. [Tr. 113]. After this position was eliminated, 
the Respondent began working for a county hospital in Mineral Wells, 
Texas as the hospitalist. [Id.]. Next, the Respondent conducted routine 
pre-employment physicals for a company before becoming employed at 
Hugman-Kent Clinic, in Gladewater, Texas, in 2006.\6\ [Tr. 113-115]. 
Respondent continues to practice at Hugman-Kent Clinic. [Tr. 114-115]. 
Approximately 85% of the Respondent's patients are Medicare patients. 
[Tr. 115]. The median age of the Respondent's patients is about 60-65 
years old. [Tr. 119]. A significant number of the Respondent's patients 
have co-morbidities that require complex medical management. [Tr. 116-
117].
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    \5\ Respondent is no longer Board Certified in Internal Medicine 
because his certification expired December 31, 2010. He is not 
permitted to sit for recertification because he is currently under 
an Agreed Order with the Texas Medical Board. [Tr. 111-112, 217; 
Govt. Exh. 11; Resp. Exh. 1].
    \6\ The reasoning for Respondent's constant movement from job to 
job will be discussed below. However, such job hopping was due in 
large part to his addiction problems and the restrictions placed on 
his medical license by the Texas Medical Board.
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2. Respondent's Addiction to Controlled Substances
    In 1993, the Respondent developed an addiction to hydrocodone after 
he had injured his back from working on his car. [Tr. 85, 185; Govt. 
Exh. 3 at 2]. Respondent began self-administering hydrocodone after 
previously obtaining hydrocodone from physicians and from samples. [Tr. 
86-87; Govt. Exh. 3 at 2]. As a result of his addiction, while 
Respondent was working at Presbyterian Hospital of Dallas in April of 
1993, his clinical privileges were suspended after Respondent exhibited 
behavioral changes and failed to respond to telephone calls and his 
beeper. [Tr. 87; Govt. Exh. 3 at 2]. The Respondent subsequently 
entered treatment for his addiction to hydrocodone and was placed under 
the care of Dr. Michael Healy, an addiction specialist. [Tr. 87-88].
    After practicing medicine for only two and one half years, the 
Respondent entered into an Agreed Order with the Texas State Board of 
Medical Examiners (``the Board'' or ``the Texas Medical Board'') on 
March 4, 1995, in which his Texas medical license was suspended as a 
result of his addiction to hydrocodone; however, the Texas Medical 
Board stayed the suspension of Respondent's medical license and placed 
him on probation for a term of five years. [Govt. Exh. 3; Tr. 85]. As a 
result of the 1995 Agreed Order, restrictions were placed on the 
Respondent's ability to practice medicine. [Govt. Exh. 3; Tr. 88-89]. 
The Respondent was required to abstain from the consumption of alcohol 
and drugs unless prescribed by another physician for a legitimate 
purpose, submit to drug testing at the request of the Board, and 
continue under the care of Dr. Michael Healy. [Id.].
    The Respondent subsequently sought termination of the March 4, 1995 
Agreed Order. [Tr. 90; Govt. Exh. 4]. However, on September 20, 1997, 
the Texas Medical Board denied Respondent's request to terminate the 
1995 Agreed Order due to the nature of the violation and the fact that 
less than three of the five year probation term had been served. [Id.]. 
But, on October 24, 1998, the Texas Medical Board did terminate the 
March 4, 1995 Agreed Order. [Govt. Exh. 5; Tr. 90].
    However, the Respondent started abusing controlled substances again 
in 1999, approximately one year after the Texas Medical Board had 
terminated the 1995 Agreed Order. [Tr. 185]. Around November of 1999, 
the Respondent suffered two compression fractures. [Tr. 92]. The 
Respondent then began taking hydrocodone for pain. [Id.]. Respondent

[[Page 44975]]

initially began obtaining hydrocodone from physicians and then later 
started writing prescriptions for it himself. [Id.]. In addition to 
abusing hydrocodone, Respondent prescribed hydrocodone to family 
members and Respondent would consume the hydrocodone that he prescribed 
to family members a majority of the time. [Tr. 93, 185; Govt. Exh. 6]. 
Respondent also approached nurses and employees of the Titus Regional 
Medical Center, where he was working in 2001, and asked them to fill 
controlled substance prescriptions for him. [Govt. Exh. 6 at 2]. As a 
result of his addiction problems, the Titus Regional Medical Center 
suspended Respondent's hospital privileges. [Tr. 93; Govt. Exh. 6 at 
3].
    On October 24, 2001, the Texas Medical Board entered a Temporary 
Suspension Order, which temporarily suspended the Respondent's Texas 
medical license as a result of his return to addiction. [Govt. Exh. 6]. 
Following the 2001 Temporary Suspension, the Board entered an Agreed 
Order on May 17, 2002. [Govt. Exh. 7; Resp. Exh. 4]. The Order revoked 
the Respondent's Texas medical license; however, the Board stayed the 
revocation and placed the Respondent on probation for a term of ten 
years. [Govt. Exh. 7 at 4; Resp. Exh. 4 at 4]. The 2002 Agreed Order 
required the Respondent to abstain from the consumption of alcohol and 
controlled substances unless prescribed by a physician for a legitimate 
purpose, to report any prescription of controlled substances to the 
Board, to give a copy of the Agreed Order to all treating physicians, 
to submit to drug testing at the request of the Board, to remain under 
the care of Dr. Michael Healy,\7\ to attend Alcoholics Anonymous 
(``AA'') meetings, to surrender all controlled substances 
registrations,\8\ and to limit his medical practice to a group or 
institutional setting approved by the Board. [Govt. Exh. 7; Resp. Exh. 
4]. Should the Respondent test positive for drug use, then his medical 
license could be automatically revoked without the need for further 
hearings. [Tr. 103; Govt. Exh. 7]. The agreement also prohibited the 
Respondent from applying for a controlled substances registration 
absent Board approval. [Govt. Exh. 7]. Further, the Respondent was only 
allowed to file a request to modify this order once a year thereafter. 
[Id.].
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    \7\ After the retirement of Dr. Michael Healy, the Respondent 
has been under the care of Dr. Jonathon Lockhart and continues to 
see Dr. Lockhart once a month per the 2002 Agreed Order. [Tr. 109].
    \8\ Respondent voluntarily surrendered his Texas DPS and DEA 
registrations prior to the date of the 2002 Agreed Order. [Tr. 110].
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    Respondent subsequently sought treatment for his relapse in 
addiction. [Tr. 94]. Respondent went to Baylor, in Dallas, where he 
underwent a three-month treatment program for his addiction. [Id.]. 
Respondent has been required to submit to over 600 drug tests as a 
result of the 2002 Agreed Order and has never failed to appear for a 
drug test nor has the Respondent tested positive.\9\ [Tr. 103-108]. As 
a result of the Respondent's treatment and willingness to stay sober, 
the Respondent reports a sobriety date of October 22, 2001.\10\ [Tr. 
96; Govt. Exh. 7; Resp. Exh. 4]. Respondent admits that his return to 
addiction and his prescribing to family members, self-administration, 
and solicitation of colleagues was an abuse of the authority of his 
Texas medical license, his Texas DPS registration, and his DEA 
registration. [Tr. 92]. The 2002 Agreed Order was subsequently modified 
on October 10, 2003 and June 2, 2006. [Govt. Exh. 8 and 10; Resp. Exh. 
3 and 2].
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    \9\ The drug testing that Respondent must submit to as a result 
of his 2002 Agreed Order and subsequent modifications to this Agreed 
Order are intense. Respondent must call an automated mechanism every 
morning in order to determine if he must give a specimen on that 
particular day. If Respondent is required to give a specimen on a 
particular day, then he must report to give the specimen before the 
early afternoon. Respondent has never failed to call or failed to 
provide a specimen over the eleven year period that he has been 
required to submit to this drug testing. The Respondent pays the 
costs for the drug tests. [Tr. 103-108, 314-316].
    \10\ The Government does not challenge this sobriety date. [Tr. 
313-314].
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    The October 10, 2003 Modified Agreed Order permitted the Respondent 
to practice in a setting where there is at least one other physician 
located in the place that services are being rendered, rather than the 
previous requirement under the 2002 Order, which restricted 
Respondent's practice to a group or institutional setting. [Govt. Exh. 
8 at 9; Govt. Exh. 3 at 9]. In addition, the 2003 Modified Agreed Order 
required the Respondent to take and pass the Special Purpose 
Examination (SPEX). [Id. at 10]. The Respondent again sought 
modification of the 2002 Agreed Order; however, his modification 
request was denied by the Board on December 10, 2004. [Govt. Exh. 9]. 
But, on June 2, 2006, the Board issued an Order Granting Modification 
to the 2002 Agreed Order, in which Respondent was authorized to reapply 
for a Texas DPS registration and a DEA registration in Schedule V 
controlled substances only. [Govt. Exh. 10 at 2; Resp. Exh. 2 at 2]. 
Additionally, the 2006 Order Granting Modification restricted the 
Respondent's prescribing authority to hospital admission patients only. 
[Id.].
    After the entry of the Medical Board's orders, the Respondent was 
terminated from multiple third-party payer insurance plans. [Tr. 112]. 
With the loss of his DEA registration, the Respondent experienced even 
more third-party payer loss, leaving him with mostly cash-only patients 
or Medicare patients. [Id.]. Subsequently, the Respondent moved from 
job to job as work became available. [Tr. 113].
    The Respondent continues to see a psychiatrist once a month. [Tr. 
109]. He currently has no mental health diagnosis that would impair his 
abilities as a physician. [Id.].

C. Respondent Prescribing Controlled Substances Outside the Scope of 
His Registration

    Pursuant to the 2002 Agreed Order and the subsequent 2003 and 2006 
modifications to the Agreed Order, the Respondent re-applied for DPS 
and DEA registrations for only Schedule V controlled substances in 
March 2007. [Govt. Exh. 10; Resp. Exh. 2; ALJ Exh. 5]. He obtained 
these registrations. [Id.]. But, under the June 2, 2006 Order Granting 
Modification, the Respondent's prescribing authority was restricted to 
hospital patients only. [Id.].
    In late 2009, Respondent began prescribing Schedules III and IV 
controlled substances to his patients at the Hugman-Kent Clinic. [Tr. 
139]. Respondent continued prescribing outside the scope of his Texas 
DPS and DEA registrations up until he was visited by Diversion 
Investigator (``DI'') Thomas McLaughlin \11\ on April 6, 2011. [Tr. 23, 
139]. Yet, the Respondent credibly testified that he prescribed these 
controlled substances to adequately treat his patients. [Tr. 130, 135].
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    \11\ DI McLaughlin is employed by the DEA at the Tyler Resident 
Office of the Dallas Field Division. [Tr. 8]. DI McLaughlin has been 
a Diversion Investigator for over 15 years. [Tr. 9]. Prior to being 
employed with DEA, DI McLaughlin served as a Correctional Officer 
for the Illinois Department of Corrections, served as an 
Investigator with the City of Chicago, and served a total of 21 
years in the Air Force. [Id.]. As part of his training in being a 
Diversion Investigator, DI McLaughlin has attended the basic 
diversion investigator course in Quantico, Virginia, and has 
received continuing training throughout his tenure as a Diversion 
Investigator. [Tr. 9-10].
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    DI McLaughlin first began investigating the Respondent after he 
received information from Sandra Atkins, a DEA registration technician, 
that Respondent was writing Schedule III and IV prescriptions when he 
was only authorized to write Schedule V prescriptions. [Tr. 10-11]. DI 
McLaughlin requested information from the Texas Prescription Monitoring

[[Page 44976]]

Program (``PMP'') \12\ from the time period of January 2010 through 
January 2011, and discovered through the report that Respondent 
prescribed 1,532 prescriptions in Schedules III, IV, and V to 335 
patients. [Tr. 14-18; Govt. Exh. 2]. These prescriptions were issued to 
non-hospital admission patients. [Tr. 22]. Of the 1,532 prescriptions 
issued during this time period, over 1,400 were for Schedule III and IV 
controlled substances. [Tr. 18-19; Govt. Exh. 2]. DI McLaughlin also 
requested copies of original prescriptions from the pharmacies that 
filled Respondent's issued prescriptions. [Tr. 20-22; Govt. Exh. 2, 
12]. He noted that there were no discrepancies between the Prescription 
Monitoring Program Data and the prescription slips that he received. 
[Id.].
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    \12\ Under Texas law all pharmacies must submit prescription 
information on controlled substances to the PMP when the 
prescriptions are filled. The information includes the date, the 
drug, the practitioner's name and DPS registration numbers. [Tr. 
12].
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    The Respondent contends that he has no record of 47 patients named 
in the Prescription Monitoring Program Data Report as being treated by 
him at the Hugman-Kent Clinic. [Tr. 173-178; Resp. Exh. 15]. However, 
only 41 of these contested names were listed on the Prescription 
Monitoring Program Data. [Resp. Exh. 15; Govt. Exh. 2; Tr. 59]. These 
41 people were prescribed a total of 155 prescriptions. [Govt. Exh. 2; 
Tr. 59]. Therefore, rather than the Respondent prescribing 1,532 total 
prescriptions during the time of January 2010 through January 2011, he 
issued 1,377 prescriptions. [Govt. Exh. 2]. Although Respondent did not 
prescribe to 41 of those listed on the Prescription Monitoring Program 
Data Report, the Respondent did prescribe to the remaining 294 people 
and prescribed 1,071 prescriptions for Schedule III and IV controlled 
substances. [Id.].
    Finding Respondent's testimony to be credible, it is probable that 
someone had in fact abused Respondent's DEA registration because 
neither the Respondent nor the Clinic have any records of these 41 
patients being prescribed controlled substances.\13\ [Tr. 173-178; 
Resp. Exh. 15]. However, Respondent acknowledges that his actions were 
still wrong and that he did prescribe outside the scope of his Texas 
DPS and DEA registrations. [Tr. 23, 59, 139, 174]. Regardless of the 
controversy concerning the 41 patients, he ceased prescribing Schedule 
III and IV controlled substances after a visit by DI McLaughlin in 
April of 2011. [Tr. 139].
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    \13\ There was some testimony that implicated an employee of the 
Hugman-Kent Clinic, who was functioning as a nurse, had illegally 
used Respondent's prescriptive authority to help others obtain 
controlled substances. [Tr. 174-178]. But, there is no concrete 
evidence that this unidentified nurse had in fact used Respondent's 
prescriptive authority to help 41 people obtain controlled 
substances under the guise of Respondent's Texas DPS and DEA 
registrations. [Id.]. However, this unidentified nurse was later 
fired from the Clinic after it had been discovered that she had 
taken samples from the Clinic. [Tr. 177].
    Further, the Respondent asserted in his Prehearing Statement 
that some of the patients attributed to him may actually be patients 
of other Dr. George Smiths in Texas. However, this assertion was not 
pursued by the Respondent during the hearing. [But see Tr. 41-44; 
Govt. Exh. 14-17].
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    Although, Respondent admitted his fault, he repeatedly gave 
justifications for his actions; these included: prescribing for the 
patient's best interest and patient care; and continuing prescriptions 
for patients of a retiring doctor out of the Hugman-Kent Clinic.\14\ 
[Tr. 134-139, 168-172, 204, 206; Resp. Exh. 13]. The Respondent later 
admitted on cross-examination that he would have had fewer patients if 
he did not prescribe Schedule III and IV controlled substances, and the 
Clinic could therefore have lowered his salary. [Tr. 191]. 
Additionally, the Respondent admitted that there are hundreds of 
physicians located in Longview, Texas, which is about 20 miles away 
from the Respondent's place of business. [Tr. 202, 39-40]. Finally, 
there were other physicians in Gladewater, Texas, who had unrestricted 
DEA registrations at the time the Respondent was prescribing outside 
the scope of his registration. [Tr. 39-40]. Yet the Respondent credibly 
testified that other physicians working at the Hugman-Kent Clinic were 
not comfortable writing controlled substance prescriptions for the 
Respondent's patients because ``they didn't know the patients.'' [Tr. 
138].
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    \14\ Respondent offered justifications as to why he prescribed 
Schedules III and IV controlled substances to five patients under 
his care. The Respondent found there was a medical need for each of 
the patients to be prescribed controlled substances. Yet, Respondent 
did not have the authority to prescribe these controlled substances 
to these patients. However, there is no dispute concerning the 
medical necessity for these prescriptions. [Resp. Exh. 13; Tr. 140-
161].
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    As a result of the Respondent's unauthorized prescribing of 
Schedule III and IV controlled substances, he voluntarily surrendered 
his DEA registration on April 27, 2011. [ALJ Exh. 5]. The Respondent 
also violated his modified 2002 Agreed Order.\15\ [Govt. Exh. 11 at 4; 
Resp. Exh. 1 at 4]. Also, the Respondent had been reporting to his 
compliance officer that he was in full compliance with the 2002 Agreed 
Order, when in fact he admitted at the hearing that he had not been in 
compliance. [Resp. Exh. 5-6; Tr. 186-192].
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    \15\ The Respondent had been requesting modification of his 2002 
Agreed Order through letters that he sent to the Texas Medical Board 
on four separate occasions. Yet each time that he requested 
modification, he was not in compliance with the 2002 Agreed Order. 
[Resp. Exh. 7-10; Tr. 188-192]. In fact, at the March 2011 
modification hearing that the Respondent had with the Texas Medical 
Board, he represented that he was in compliance with the 2002 Agreed 
Order but, he was not. [Tr. 192].
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    On August 26, 2011, the Respondent again entered into an Agreed 
Order with the Texas Medical Board. [Govt. Exh. 11; Resp. Exh. 1; Tr. 
162-165]. Pursuant to the 2011 Agreed Order, which was issued after the 
Respondent took part in an Informal Settlement and Show Cause 
Proceeding (``ISC'') \16\ on July 28, 2011, the Respondent is to remain 
under the terms of the 2002 Agreed Order, as modified, without the 
right to seek an early termination. [Tr. 308; Govt. Exh. 11 at 5; Resp. 
Exh. 1 at 5]. The Board modified the 2002 Agreed Order to authorize the 
Respondent to reapply to the DEA and the Texas DPS to obtain 
registrations in Schedule II, III, IV, and V controlled substances. 
[Id.]. But, the decision to grant or deny the Respondent's application 
remains ``a matter for appropriate determination by the DEA and DPS.'' 
[Govt. Exh. 11 at 5-6; Resp. Exh. 1 at 5-6]. In addition, the 
Respondent was ordered to pay an administrative penalty of $10,000, 
which he has paid. [Tr. 164; Govt. Exh. 11 at 6; Resp. Exh. 1 at 6]. 
Thus, after the Respondent had been found to be in violation of both 
his Texas DPS and DEA registrations and his 2002 Agreed Order, the 
Respondent was permitted to reapply for unrestricted registrations, and 
he obtained an unrestricted Texas DPS registration in Schedules II 
through V in September 2011. [ALJ Exh. 5]. Now, in spite of his 
violations, the Respondent seeks a DEA registration for Schedules II 
through V. [ALJ Exh. 5; Govt. Exh. 1].
---------------------------------------------------------------------------

    \16\ The record contains testimony concerning the ISC process. 
[Tr. 308-311]. Since there is no dispute concerning this due process 
procedure, I do not explain this Medical Board process here.
---------------------------------------------------------------------------

D. Respondent's Felony Convictions

1. 2001 Felony Conviction
    As a result of Respondent's addiction to hydrocodone and his self-
administration of hydrocodone, he pled guilty to one count of obtaining 
a controlled substance by fraud, a felony, on November 26, 2001, before 
the United States District Court for the Eastern District of Texas. 
[ALJ Exh. 5; Tr. 99]. Respondent was then sentenced to a three year 
term of probation on March 21, 2002. [ALJ Exh. 5].

[[Page 44977]]

2. 2012 Felony Conviction
    As a result of the Respondent's admitting that he prescribed 
Schedule III and IV controlled substances, when he was only authorized 
to prescribe Schedule V controlled substances, he pled guilty to 
violating 21 U.S.C. 842(a)(1) and (c)(2)(B) (2006) for illegal 
dispensing before the United States District Court for the Eastern 
District of Texas, Tyler Division on September 5, 2012. [Govt. Exh. 13; 
Tr. 36-38, 167-168]. Respondent has not yet been sentenced for this 
conviction; however, the sentencing recommendation is a probationary 
term and a fine. [Tr. 38, 168].

E. Respondent's Remedial Actions

    Respondent has taken remedial actions to help ensure that the terms 
of his medical license agreement would not be violated. [Tr. 178-179]. 
Because Respondent claims that there may have been some instances where 
his DEA registration was abused by others, although he fully admits to 
prescribing outside the scope of his registration, he intends to take 
the following actions to ensure others do not abuse his medical license 
and/or a future DEA registration: use the Prescription Access Texas 
Program to monitor patients' prescriptions; implement a better 
screening process prior to hiring employees at the Clinic; use only 
hard copy prescriptions, rather than calling in prescriptions to 
pharmacies; and notify local pharmacies regarding his use of hard copy 
prescriptions. [Tr. 178-179]. The Respondent admitted that he could 
have implemented these remedial measures when he first gained 
employment at Hugman-Kent Clinic but, he did not. [Tr. 192-193].
    Currently any patient who calls for an appointment is told that the 
Respondent is unable to prescribe controlled substances. [Tr. 180, 
219]. The Respondent also credibly testified that he would expect his 
DEA registration would contain conditions, such as the keeping of a log 
book. [Tr. 205, 214-215]. The Respondent testified that he would not 
violate his DEA registration again. [Tr. 207-208]. The last time the 
Respondent prescribed controlled substances in Schedules III and IV to 
a patient was in the Spring of 2011. [Tr. 219].
    The Respondent also provided testimony as to why having a DEA 
registration would be beneficial to his patients. [Tr. 166, 218]. He 
would be able to participate in more third-party payer plans, and he 
could take steps to obtain hospital privileges to better treat his 
patients. [Id.].

V. Statement of Law and Discussion

A. The Position of the Parties

1. Government's Position
    The Government asserts that the Respondent's application for a DEA 
Certificate of Registration should be denied. [Govt. Brief at 18]. 
Specifically, the Government argues that granting the Respondent's 
application is inconsistent with the public interest, under 21 U.S.C. 
823(f) (2006), because the Respondent has previously failed to be a 
responsible registrant, has violated the Controlled Substances Act, has 
two felony convictions, and has failed to take responsibility for his 
actions. [Id.].
    The Government argues that the recommendation of the Texas Medical 
Board, which allows the Respondent to reapply for a DEA registration in 
Schedule II through V controlled substances, should be given ``nominal 
weight.'' [Id. at 12-13]. In support of its argument, the Government 
contends that the Respondent has ``been the subject of Texas Medical 
Board orders from 1995 through 1998 and again from 2001 through the 
present day based on Respondent's misconduct involving controlled 
substances.'' [Id. at 12].
    In addition, the Government argues that the Respondent's experience 
in dispensing controlled substances, his conviction record, and his 
compliance with federal and state laws relating to controlled 
substances ``all strongly weigh in favor of the denial of Respondent's 
application'' for a DEA Certificate of Registration. [Id. at 13]. The 
Government argues that Respondent has had his Texas medical license 
revoked (although stayed) twice due to his addiction to hydrocodone and 
his prescribing hydrocodone to his family members. [Id. at 13-14]. 
Additionally, the Government argues that the Respondent has had two 
felony convictions related to controlled substances, one for issuing 
fraudulent prescriptions and another for prescribing controlled 
substances outside the scope of his prescriptive authority. He has 
twice surrendered his DEA registrations. [Id.]. The Government also 
argues that Respondent violated federal and local law on several 
occasions when he prescribed Schedule III and IV controlled substances 
to his non-hospital patients. [Id. at 14].
    Lastly, the Government argues that the Respondent's application for 
a DEA registration is inconsistent with the public interest because 
Respondent has failed to be a compliant registrant in the past and will 
likely fail to be a compliant registrant in the future. [Id. at 15]. 
The Government also argues that the Respondent has failed to take full 
responsibility for his actions. [Id. at 16]. The Government 
additionally argues that the Respondent's excuses for his failure to be 
a compliant registrant, i.e. the need of the community and his 
patients, is not a viable argument and does not support the granting of 
Respondent's application for a DEA registration. [Id. at 17]. In 
conclusion, the Government asserts that ``Respondent failed in his 
responsibilities as a DEA registrant, not once but two times. Both 
failures involved Respondent's knowing and willful violations of the 
Controlled Substances Act and resulted in criminal convictions.'' [Id. 
at 18]. For these reasons, the Government concludes that the 
Respondent's application should be denied.
2. Respondent's Position
    The Respondent asserts that his application for a DEA registration 
should be granted because granting his registration is consistent with 
the public interest.\17\ [Resp. Brief at 13]. First, Dr. Smith argues 
that the Texas Medical Board has recommended that he be able to apply 
for an unrestricted DEA registration, in spite of his past disciplinary 
history with the Texas Medical Board. [Id. at 13-14]. Additionally, the 
Respondent notes that he has already obtained an unrestricted Texas DPS 
registration for controlled substances that weighs in favor of the DEA 
granting his registration. [Id. at 14].
---------------------------------------------------------------------------

    \17\ Although the Respondent contends that granting his 
application for a DEA registration is in the public interest, he 
recognizes that restrictions could be placed on his registration, 
such as maintaining a log book and agreeing to inspections without 
the need for an administrative warrant. [Resp. Brief at 13].
---------------------------------------------------------------------------

    The Respondent next argues that he has sufficient knowledge and 
experience in dispensing controlled substances. [Id.]. Respondent 
claims that he has ``a good working knowledge of complex medical 
management.'' [Id.].
    Although the Respondent acknowledges that he has had two felony 
convictions and has not complied with state, federal, or local laws 
relating to controlled substances, he asserts that he has rehabilitated 
himself and thus, these factors do not warrant the denial of his DEA 
registration application. [Id. at 14-16]. Specifically, the Respondent 
asserts that he has been sober since October of 2001, and has submitted 
to over 600 drug tests, in which he has never tested positive. [Id. at 
15]. Additionally, the Respondent argues that, although he prescribed 
outside the scope of his

[[Page 44978]]

registration, he did so because it was in the best interest of his 
patients and he never ``non-therapeutically prescribed drugs since his 
2002 arrest.'' [Id.]. Moreover, Respondent asserts that since his 
noncompliance was discovered in 2011, he has been in full compliance 
with his Texas Medical Board Orders, his Texas DPS registration and his 
DEA registration. [Id. at 15-16].
    Lastly, the Respondent argues that a DEA registration in Schedules 
II through V will not threaten the public health and safety because he 
is committed to remaining sober and complying with all laws. [Id. at 
16-18]. Dr. Smith asserts that he has taken responsibility for his past 
wrongdoing and if he were to receive a DEA registration, he would 
understand and comply with any stipulations that were included with his 
DEA registration. [Id. at 17-18]. Moreover, Dr. Smith argues that 
granting his DEA registration application is in fact in the public's 
best interest because he will be better equipped to handle his patients 
and the community will be effected in a positive way. [Id. at 17]. 
Therefore, Dr. Smith requests that his DEA registration application be 
granted with any provisions the Court deems fit. [Id. at 18].

B. Statement of Law and Analysis

    Pursuant to 21 U.S.C. 823(f) (2006), the Deputy Administrator may 
deny an application for a DEA Certificate of Registration if he 
determines that such registration would be inconsistent with the public 
interest.\18\ In determining the public interest, the following factors 
are considered:
---------------------------------------------------------------------------

    \18\ The Deputy Administrator has the authority to make such a 
determination pursuant to 28 C.F.R. Sec. Sec.  0.100(b), 0.104 
(2012).
---------------------------------------------------------------------------

    (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. 21 U.S.C. Sec.  823(f) (2006).
    These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
an application should be denied. See Robert A. Leslie, M.D., 68 Fed. 
Reg. 15,227, 15,230 (DEA 2003). Moreover, the Deputy Administrator is 
``not required to make findings as to all of the factors.'' Hoxie v. 
DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 
F.3d 165, 173-74 (DC Cir. 2005).
    The Government bears the ultimate burden of proving that the 
requirements for registration are not satisfied. 21 CFR 1301.44(d) 
(2012). However, where the Government has made out a prima facie case 
that Respondent's application would be ``inconsistent with the public 
interest,'' the burden of production shifts to the applicant to 
``present[] sufficient mitigating evidence'' to show why he can be 
trusted with a new registration. See Medicine Shoppe--Jonesborough, 73 
FR 364, 387 (DEA 2008). To this point, the Agency has repeatedly held 
that the ``registrant must accept responsibility for [his] actions and 
demonstrate that [he] will not engage in future misconduct. Id.; see 
also Samuel S. Jackson, D.D.S., 72 FR 23,848, 23,853 (DEA 2007). In 
short, after the Government makes its prima facie case, the Respondent 
must produce sufficient evidence that he can be trusted with the 
authority that a registration provides by demonstrating that he accepts 
responsibility for his misconduct and that the misconduct will not 
reoccur. Yet, the DEA has consistently held the view that ``past 
performance is the best predictor of future performance.'' Alra 
Laboratories, 59 FR 50,620 (DEA 1994), aff'd Alra Laboratories, Inc. v. 
DEA, 54 F.3d 450, 451 (7th Cir 1995).
1. Factor One: Recommendation of Appropriate State Licensing Board
    Although the recommendation of the applicable state licensing board 
is probative to this factor, the Agency possesses ``a separate 
oversight responsibility with respect to the handling of controlled 
substances'' and therefore, must make an ``independent determination as 
to whether the granting of [a registration] would be in the public 
interest.'' Mortimer B. Levin, D.O., 55 Fed. Reg. 8,209, 8,210 (DEA 
1990); see also Jayam Krishna-Iyer, M.D., 74 Fed. Reg. 459, 461 (DEA 
2009). It is well-established Agency precedent that a ``state license 
is a necessary, but not a sufficient condition for registration.'' 
Leslie, 68 Fed. Reg. at 15,230; John H. Kennedy, M.D., 71 FR 35,705, 
35,708 (DEA 2006). Even the reinstatement of a state medical license 
does not affect the DEA's independent responsibility to determine 
whether a registration is in the public interest. Levin, 55 FR at 
8,210. The ultimate responsibility to determine whether a registration 
is consistent with the public interest has been delegated exclusively 
to the DEA, not to entities within a state government. Edmund Chein, 
M.D., 72 Fed. Reg. 6,580, 6,590 (DEA 2007), aff'd Chein v. DEA, 533 
F.3d 828 (DC Cir. 2008). So while not dispositive, state board 
recommendations are relevant to the issue of granting a DEA 
registration. See Gregory D. Owens, D.D.S., 74 FR 36,751, 36,755 (DEA 
2009); Martha Hernandez, M.D., 62 FR 61,145, 61,147 (DEA 1997).
    The Respondent has been the subject of numerous orders from the 
Texas Medical Board throughout his medical career. [Govt. Exh. 3-11; 
Resp. Exh. 1-4]. The disciplinary proceedings regarding the Respondent 
with the Texas Medical Board span over a decade. [Id.]. The Respondent 
initially had his Texas medical license suspended in 1995 after it was 
discovered that the Respondent had become addicted to hydrocodone and 
codeine. [Govt. Exh. 3]. Then again, in October of 2001, the 
Respondent's medical license was suspended after the Texas Medical 
Board discovered that the Respondent had relapsed in his drug 
addiction. [Govt. Exh. 6]. Thereafter, on May 17, 2002, the Texas 
Medical Board revoked Respondent's Texas medical license in light of 
his abuse of controlled substances and his prescribing controlled 
substances to his family members for his own personal use; however, the 
revocation was stayed and the Respondent was placed on a term of 
probation for ten years. [Govt. Exh. 7; Resp. Exh. 4]. In addition to 
the stay of revocation and the term of probation, the Respondent was 
required to surrender his DEA Certificate of Registration and his Texas 
DPS controlled substance registration. [Id.].
    However, in 2006, the Texas Medical Board allowed the Respondent to 
seek a modification of the May 17, 2002 Order, and the Respondent was 
subsequently permitted to apply to the DEA and the Texas DPS for 
controlled substance registrations in Schedule V only. [Govt. Exh. 10; 
Resp. Exh. 2]. Additionally, the June 2, 2006 Order mandated that, if 
Respondent were to receive authority to prescribe Schedule V controlled 
substances, then his prescribing authority would be restricted to 
hospital admission patients only. [Id.].
    In spite of the Respondent's past history, the most recent Texas 
Medical Board Order, dated August 26, 2011, permits Respondent to 
reapply to the DEA and the Texas DPS for controlled substance 
registrations in Schedules II through V. [Govt. Exh. 11; Resp. Exh. 1].

[[Page 44979]]

However, the 2011 Order notes that, although the Board will allow the 
Respondent to reapply for these registrations, the decision of whether 
to grant or deny the Respondent's application is reserved for the 
issuing agency. [Id.].
    Therefore, while the Respondent's Texas medical license is not 
currently suspended or revoked, the Respondent is currently the subject 
of the 2011 Agreed Order, by which the Respondent must abide. [Id.]. 
Although the Respondent's medical license has been the subject of 
numerous disciplinary actions by the Texas Medical Board, I find that 
the current recommendation of the Texas Medical Board permits the 
Respondent to apply for a DEA registration in Schedules II through V. 
[Id.]. However, the Texas Medical Board did not directly recommend that 
the Respondent's DEA application for registration should be granted. 
[Id.]. In fact, the Texas Medical Board recognizes that the decision of 
whether to grant or deny the Respondent's DEA application is entirely 
reserved to the DEA. [Id.]. Thus, I find that the decision of the Texas 
Medical Board neither weighs in favor of granting nor denying the 
Respondent's application for a DEA Certificate of Registration in 
Schedules II through V.
2. Factors Two and Four: Applicant's Experience With Controlled 
Substances and Applicant's Compliance With Applicable State, Federal, 
or Local Laws Relating to Controlled Substances
    Respondent's experience with controlled substances and his 
compliance with applicable laws related to the handling of controlled 
substances are relevant to determining the public interest in this 
case. ``Pursuant to 21 U.S.C. 822(b), `[p]ersons registered by the 
Attorney General under this subchapter to . . . dispense controlled 
substances . . . are authorized to possess . . . or dispense such 
substances . . . to the extent authorized by their registration and in 
conformity with the other provisions of this subchapter.' '' Leonard E. 
Reaves, III, M.D., 63 FR 44,471, 44,473 (DEA 1998) (registration 
revoked after physician was prescribing outside the scope of his DEA 
registration). Additionally, except as authorized, ``it shall be 
unlawful for any person knowingly or intentionally to . . . dispense, 
or possess with intent to . . . dispense a controlled substance.'' 21 
U.S.C. 841(a)(1) (2006); see 21 U.S.C. 802(10) (```dispense' means to 
deliver a controlled substance to an ultimate user . . . pursuant to 
the lawful order of, a practitioner, including the prescribing . . . of 
a controlled substance''); see also 21 CFR 1301.13(a) (providing that 
``[n]o person required to be registered shall engage in any activity 
for which registration is required until the application for 
registration is granted and a Certificate of Registration is issued by 
the Administrator to such person.'').
    In this case, the Respondent's experience with controlled 
substances has been troubled for a majority of his career. [Govt. Exh. 
3-11; Resp. Exh. 1-4]. Respondent has struggled with addiction to 
controlled substances; although, now the Respondent is sober and has 
been sober for eleven years. [Tr. 96, 122]. Additionally, the 
Respondent prescribed controlled substances to his family members 
without maintaining proper records and a majority of those 
prescriptions Respondent obtained for his own addiction purposes. [Tr. 
93].
    Respondent also prescribed Schedule III and IV controlled 
substances in violation of his 2002 Agreed Order, modified in 2006, and 
Texas DPS and DEA registrations. [Govt. Exh. 10; Resp. Exh. 2]. 
Specifically, the Respondent was only authorized by his DEA 
registration to prescribe Schedule V controlled substances, and by his 
modified Agreed Order, to prescribe such substances to hospital 
admitted patients. Yet, the Respondent prescribed 1,071 Schedule III 
and IV controlled substances to non-hospital admitted patients over the 
course of one year. [Govt. Exh. 2, 10; Resp. Exh. 2]. In fact, the 
Respondent had been prescribing outside the scope of his registration 
since 2009 and only stopped doing so in April of 2011, after DI 
McLaughlin visited the Respondent at the Clinic and informed him that 
he could not prescribe Schedule III and IV controlled substances when 
his DEA registration was restricted to Schedule V controlled 
substances. [Tr. 23, 139].
    The Respondent blatantly disregarded the restrictions that had been 
placed on his authority to prescribe controlled substances. Although 
the Respondent claims that he would not abuse his registration in the 
future, in light of his past behavior his claim cannot be trusted. His 
history and experience with controlled substances throughout his 
medical career is not indicative of a compliant registrant. Thus, I 
find that these factors weigh against the granting of Respondent's 
application for a DEA Certificate of Registration.
3. Factor Three: Applicant's Conviction Record Relating to Controlled 
Substances
    Pursuant to 21 U.S.C. 823(f)(3) (2006), the Deputy Administrator 
may deny a pending application for a DEA Certificate of Registration 
upon a finding that the applicant has been convicted of a felony 
related to controlled substances under state or federal law. See Barry 
H. Brooks, M.D., 66 FR 18,305, 18,307 (DEA 2001); John S. Noell, M.D., 
56 FR 12,038, 12,039 (DEA 1991); Thomas G. Easter II, M.D., 69 FR 
5,579, 5,580 (DEA 2004).
    In this case, the record contains ample evidence that Respondent 
has been convicted of two felony offenses related to the dispensing of 
controlled substances. [ALJ Exh. 5; Govt. Exh. 13]. Respondent has a 
2001 felony conviction for obtaining a controlled substance by fraud in 
violation of 21 U.S.C. 843(a)(3). [ALJ Exh. 5]. In addition, the 
Respondent has a 2011 felony conviction for issuing prescriptions for 
Schedule III and IV controlled substances in violation of his 
restricted Schedule V DEA registration, thus violating 21 U.S.C. 
842(a)(1) and (c)(2)(B). [Govt. Exh. 13]. Therefore, I find that this 
factor weighs against the granting of Respondent's application for a 
DEA Certificate of Registration.
4. Factor Five: Such Other Conduct Which May Threaten the Public Health 
and Safety
    Under Factor Five, the Deputy Administrator is authorized to 
consider ``other conduct which may threaten the public health and 
safety.'' 21 U.S.C. 823(f)(5) (2006). This factor encompasses ``conduct 
which creates a probable or possible threat (and not only an actual 
[threat]) to public health and safety.'' Jacobo Dreszer, M.D., 76 FR 
19,386, 19,401 FN2 (DEA 2011). The Agency has long held that a 
practitioner's self-abuse of controlled substances constitutes 
``conduct which may threaten public health and safety.'' 21 U.S.C. 
Sec.  823(f)(5) (2006); see also Tony T. Bui, M.D., 75 Fed. Reg. 
49,979, 49,990 (DEA 2010); Kenneth Wayne Green, Jr., M.D., 59 FR 51,453 
(DEA 1994); David E. Trawick, D.D.S., 53 Fed. Reg. 5,326 (DEA 1988). 
Additionally, the DEA has consistently held that ``[c]andor during DEA 
investigations, regardless of the severity of the violations alleged, 
is considered by the DEA to be an important factor when assessing 
whether a . . . registration is consistent with the public interest'' 
and noting that a registrant's ``lack of candor and failure to take 
responsibility for his past legal troubles . . . provide substantial 
evidence that his registration is inconsistent with the public 
interest.'' Jeri Hassman, M.D., 75 FR 8,194, 8,236 (DEA 2010); see also 
Prince George Daniels DDS, 60 FR 62,884, 62,887 (DEA 1995); see also 
Ronald Lynch, M.D., 75 FR 78,745, 78,749 (DEA 2010)

[[Page 44980]]

(Respondent's attempts to minimize misconduct held to undermine 
acceptance of responsibility). Furthermore, the Agency is not required 
to ``consider community impact evidence in exercising its authority.. . 
.'' Linda Sue Cheek, M.D., 76 FR 66,972, 66,973 (DEA 2011); see also 
Steven M. Abbadessa, D.O., 74 FR 10,077, 10,078 (DEA 2009) (the 
hardship imposed because Respondent lacks a registration is not a 
relevant consideration under the Controlled Substances Act).
    Here, Respondent self-abused and prescribed significant quantities 
of controlled substances to his family members, from approximately 1993 
through October 22, 2001, which he reports as his sobriety date. [Govt. 
Exh. 3-10]. Such unlawful ingestion and prescribing of controlled 
substances clearly places the public health and safety in jeopardy. 
This unlawful conduct led to the temporary suspension of Respondent's 
Texas medical license, a felony conviction, the surrender of 
Respondent's DEA registration, and revocation of Respondent's Texas 
medical license.\19\ [Govt. Exh. 3, 6-7; ALJ Exh. 5; Resp. Exh. 4].
---------------------------------------------------------------------------

    \19\ Although the Respondent's medical license was temporarily 
suspended and later revoked, both of these actions were stayed and 
the Respondent was placed on probation each time. See Govt. Exh. 3, 
6, 7 and Resp. Exh. 4.
---------------------------------------------------------------------------

    Yet, I find that Respondent has successfully addressed his 
addiction problem and returned to the practice of medicine by regaining 
his medical license in 2002. [Govt. Exh. 7; Resp. Exh. 4]. At the 
hearing, Respondent proffered substantial and detailed evidence 
regarding his impressive recovery program, including numerous negative 
drug screens he has taken over the past eleven years. [Tr. 103-108]. As 
the Deputy Administrator has previously determined, ``[t]he paramount 
issue is not how much time has elapsed since [the Respondent's] 
unlawful conduct, but rather, whether during that time [the] Respondent 
has learned from past mistakes and has demonstrated that he would 
handle controlled substances properly if entrusted with a DEA 
registration.'' Leonardo V. Lopez, M.D., 54 FR 36,915 (DEA 1989). Even 
though it has been previously found that time, alone, is not 
dispositive in such situations, it is certainly an appropriate factor 
to be considered. See Robert G. Hallermeier, M.D., 62 FR 26,818 (DEA 
1997) (four years); John Porter Richards, D.O., 61 FR 13,878 (DEA 1996) 
(ten years); Norman Alpert, M.D., 58 FR 67,420, 67,421 (DEA 1993) 
(seven years).
    In Respondent's case, the fact that he has been sober for over 
eleven years and continues to abide by all terms and conditions imposed 
upon him regarding his sobriety shows that Respondent intends to remain 
sober. In addition, there has been no evidence that the Respondent has 
suffered any sort of relapse to addiction since his reported sobriety 
date of October 22, 2001. Therefore, the public interest is not being 
threatened by the Respondent's previous addiction to hydrocodone, 
because it does not appear that the Respondent will return to this 
conduct.
    However, although the Respondent attempted to take responsibility 
for his unlawful prescribing of Schedules III and IV controlled 
substances by admitting that his actions were wrong, he continuously 
provided justifications for his actions in an effort to persuade the 
Court that his violations of his DEA registration were justified under 
the circumstances. [Tr. 134-139, 168-172, 204, 206; Resp. Exh. 13]. 
Moreover, Respondent repeatedly provided the Court with reasons as to 
why it was not feasible for him to refer his patients to another doctor 
who could prescribe the necessary scheduled controlled substance, or to 
simply refuse to prescribe outside of his DEA and Texas DPS 
registrations. [Id.]. I find that Respondent's misplaced justifications 
amount to a failure to take full responsibility for his actions.
    Moreover, although the Respondent attempts to justify the need for 
his DEA registration because it would be in his patient's and the 
community's best interest, this reasoning has failed in determining 
whether the Respondent's application should be granted. Community 
impact evidence has been found irrelevant in DEA precedent. Linda Sue 
Cheek, M.D., 76 FR at 66,973; see also Steven M. Abbadessa, D.O., 74 FR 
at 10,078.
    As to candor, the record demonstrates that the Respondent falsely 
reported his compliance with the Agreed Order when he was in fact 
noncompliant. Specifically, the Respondent reported that he was abiding 
by his restricted prescribing authority, when he was actually 
prescribing outside the scope of that authority. Such lack of candor to 
government officials weighs against the Respondent's application being 
granted. [Resp. Exh. 5, 6].
    In sum, Respondent has conclusively demonstrated his strong 
recovery from his previous addiction and his successful maintenance of 
his sobriety for the past eleven years. Therefore, I find that 
Respondent's history of substance abuse does not weigh against the 
granting of Respondent's application for a DEA Certificate of 
Registration.
    The Respondent has admitted his wrongdoing in prescribing outside 
his authority. However, each time Respondent admitted that his past 
conduct was a violation, he attempted to offer justifications for his 
conduct in an effort to minimize his wrongdoing. Therefore, I find that 
Respondent's half-hearted attempt to take responsibility for these 
actions weighs against the granting of Respondent's application for a 
DEA Certificate of Registration.

C. Conclusion and Recommendation

    I conclude that the Government has proven, by a preponderance of 
the evidence, that Respondent's application for a DEA registration in 
Schedules II through V should be denied. Respondent has previously been 
granted numerous opportunities to act as a responsible DEA registrant 
and has failed each time. I do not see any conditions that could be 
placed on Respondent's registration now that would ensure that 
Respondent would be a responsible DEA registrant, especially 
considering that Respondent was afforded the opportunity to hold a DEA 
registration for Schedule V controlled substances after his substance 
abuse and felony conviction, and yet, Respondent violated his 
registration.
    Moreover, had the Respondent not been caught violating his 
prescriptive authority, it is likely that Respondent would have 
continued prescribing outside the scope of his registration. Although 
Respondent now claims that he would be a compliant registrant, if he 
were to receive a DEA registration, I find reason to doubt this claim. 
Respondent has been noncompliant, yet has represented himself as 
compliant on several occasions to Board representatives.
    In this case, the Respondent has shown that his ability to properly 
handle controlled substances and abide by the law has been tainted. I 
find that Respondent has not taken full responsibility for his 
mistakes. Therefore, I find that granting Respondent's application for 
a DEA Certificate of Registration is against the public interest, and I 
recommend that his application be denied.

Date: February 5, 2013.

Gail A. Randall,

Administrative Law Judge.

[FR Doc. 2013-17890 Filed 7-24-13; 8:45 am]
BILLING CODE 4410-09-P