Ronald F. Lambert, D.D.S.; Decision and Order, 62662-62666 [2013-24698]

Download as PDF 62662 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to United States v. ConAgra Foods, Inc., and ConAgra Grocery Products, LLC, Civil Action No. 2:13-cv-02756, D. J. Ref. No. 90–5–1–1–10403. All comments must be submitted no later than thirty (30) days after the publication date of this notice. Comments may be submitted either by email or by mail: To submit comments: Send them to: By e-mail ...... pubcomment-ees.enrd@ usdoj.gov. Assistant Attorney General, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044–7611. By mail ......... During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site: http:// www.usdoj.gov/enrd/Consent_ Decrees.html. We will provide a paper copy of the Consent Decree upon written request and payment of reproduction costs. Please mail your request and payment to: Consent Decree Library, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044–7611. Please enclose a check or money order for $6.25 (25 cents per page reproduction cost) payable to the United States Treasury for the Consent Decree. Henry S. Friedman, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. 2013–24336 Filed 10–21–13; 8:45 am] BILLING CODE 4410–15–P DEPARTMENT OF JUSTICE Drug Enforcement Administration sroberts on DSK5SPTVN1PROD with FRONT MATTER Ronald F. Lambert, D.D.S.; Decision and Order On November 17, 2011, the Deputy Assistant Administrator issued an Order to Show Cause to Ronald Lambert, D.D.S. (hereinafter, Respondent), of Longmont, Colorado. The Show Cause Order proposed the denial of Respondent’s application for a DEA VerDate Mar<15>2010 21:08 Oct 21, 2013 Jkt 232001 Certificate of Registration as a practitioner, on the ground that Respondent’s ‘‘registration would be inconsistent with the public interest.’’ Show Cause Order at 1 (citing 21 U.S.C. 823(f)). The Show Cause Order alleged that on January 1, 2011, Respondent had applied for a practitioner’s registration with authority to dispense controlled substances in schedules III through V. Id. The Order alleged that during an interview by DEA investigators, Respondent admitted to having possessed and used methamphetamine, a schedule II controlled substance, ‘‘on numerous occasions,’’ in violation of federal and state law. Id. (citing 21 U.S.C. 844(a); Colo. Rev. Stat. § 18–18– 404(1)(a)). The Order also alleged that, during the interview, Respondent also admitted to working with an outlaw motorcycle gang to improve their process of manufacturing methamphetamine. Id. at 1–2 (citations omitted). Next, the Show Cause Order alleged that on June 10, 2003, Respondent’s dental license was suspended by the Colorado State Board of Dental Examiners (hereinafter, the Board), and that on November 5, 2003, the Board revoked his license. Id. Finally, the Order alleged that on March 13, 2008, Respondent entered into a Stipulation and Final Agency Order with the Board, in which he admitted that he had a history of abusing substances including alcohol, marijuana, methamphetamine, and cocaine, as well as a criminal history that includes a conviction for burglary and a conviction for manufacturing and possession of a controlled substance. Id. The Order then alleged that the Board had placed Respondent on probation for a period of five years and had prohibited him from having controlled substances in his dental practice. Id. On November 22, 2011, the Show Cause Order, which also notified Respondent of his right to request a hearing on the allegations, or to submit a written statement of position in lieu of a hearing, the procedure for electing either option, and the consequence for failing to elect either option, was served on Respondent by certified mail addressed to him at his proposed registered location. Id. (citing 21 CFR PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 1301.43 (a)–(e), id. § 1316.47). Thereafter, on December 15, 2011, Respondent’s counsel filed a letter waiving his right to a hearing, but submitting a statement of position as to why his application should not be denied. GX 2. On August 8, 2012, the Government submitted a Request for Final Agency Action, along with the Investigative Record it had compiled. Having considered the entire record, including Respondent’s statement of position, I conclude that the evidence submitted by the Government makes out a prima facie case for denial of Respondent’s application. However, the Government concedes that Respondent has accepted responsibility for his misconduct and that he has demonstrated his sobriety for an extensive period. While the Government argues that notwithstanding these concessions, Respondent’s application should be denied for various reasons, I conclude that the Government’s arguments are not persuasive and will therefore grant Respondent’s application and order that he be issued a restricted registration. I make the following factual findings. Findings of Fact Respondent is a dentist licensed by Colorado State Board of Dental Examiners. GX 10. While on November 5, 2003, the Board revoked Respondent’s dental license based on his having engaged in substance abuse and criminal activity, on March 13, 2008, the Board approved a Stipulation and Final Agency Order, pursuant to which it reinstated Respondent’s dental license while placing him on probation for five years. Id. Respondent’s state license was last renewed on March 1, 2012 and does not expire until February 28, 2014. GX 3. In the Stipulation and Final Agency Order, Respondent admitted that he ‘‘has a history of substance abuse with alcohol, marijuana, methamphetamine and cocaine.’’ GX 10, at 1. He also admitted to having a felony conviction for manufacture and possession of a schedule II controlled substance on November 11, 2003.1 Id. 1 Respondent also admitted to a felony conviction for first degree burglary in 1983. E:\FR\FM\22OCN1.SGM 22OCN1 sroberts on DSK5SPTVN1PROD with FRONT MATTER Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices Respondent previously held a DEA practitioner’s registration, which expired on March 31, 2004. GX 12. On January 11, 2011, Respondent applied for a new registration, seeking authority to dispense controlled substances in schedules III through V. GX 4. On his application, Respondent disclosed that on April 22, 2003, he pled guilty to manufacturing a controlled substance and that he was sentenced to two years in jail and four years of supervised probation, which he had successfully completed. Id. He also disclosed that on November 15, 2002, his dental license had been revoked due ‘‘to undefended allegations of substance abuse.’’ Id. Respondent further explained that ‘‘after successful rehabilitation from drug addiction and proving this to the Board’s satisfaction with documented clean time, I was granted a new license to practice dentistry in March 2008.’’ 2 Id. On June 29, 2011, two DEA Diversion Investigators interviewed Respondent.3 GX 13. During the course of the interview, Respondent admitted that in the 1970s he had regularly used marijuana; that in April 1983, he had participated, while intoxicated, in a burglary during which his partner had murdered the victim of the burglary; and that in April 2003, police, who had been requested by his ex-wife to perform a welfare check on him at his residence, found methamphetamine. Id. at 1–2. Further, Respondent engaged in a struggle with the police. Id. at 2. Thereafter, Respondent was taken to a local hospital for a 72-hour mental health hold. GX 8, at 2. Upon his arrival, ‘‘Respondent was cursing, screaming and refus[ed] all treatment.’’ Id. After he ‘‘bit a security guard,’’ he was ‘‘placed in restraints.’’ Id. Respondent admitted that he had used a half-gram of methamphetamine on the day of this incident, and a urine drug screen was positive for meth. Id. at 2–3. The same day, Respondent was transferred to another hospital where he was evaluated; the evaluation determined that he met the criteria for a diagnosis of methamphetamine abuse and depressive disorder. Id. at 3. The following day, Respondent admitted to methamphetamine use; he also admitted to daily use of marijuana in the preceding six months. Id. Respondent stated that he started using 2 While the dates Respondent provided on the application for the Board actions were not the actual dates of the various actions, these errors are not material misstatements as they have no capacity to influence the decision in this matter. 3 It is noted that this affidavit was not executed until more than a year after the interview. GX 13, at 1 & 4. VerDate Mar<15>2010 21:08 Oct 21, 2013 Jkt 232001 methamphetamine ‘‘because of a depressed mood.’’ Id. However, he denied needing treatment for substance abuse. Id. Upon being discharged from the hospital, family members took Respondent to the Talbot Recovery Center in Atlanta to undergo residential treatment. GX 7, at 6; GX 13, at 2. However, five days after entering treatment, Talbot discharged him alleging that he had brought a vial of methamphetamine with him. GX 13, at 2. Upon his return to Colorado, Respondent learned that he had criminal charges pending against him based on the April 21, 2003 incident. Id. Respondent admitted to DEA Investigators that on returning to Colorado, he purchased methamphetamine from street dealers. Id. He also admitted to being friends with two individuals who were associated with the President of the local chapter of the Bandidos, a designated outlaw motorcycle gang. Id. at 3. According to the affidavit, Respondent admitted that he helped the Bandidos manufacture methamphetamine. Id. As a condition of his bond, Respondent was required to undergo urine drug screening. Id. Respondent tested positive for methamphetamine on various occasions and was charged with seventeen counts of violating the bond conditions. Id. On November 11, 2003, Respondent met with several members of the Bandidos at a home in Denver. Id. The gang members had unsuccessfully attempted to manufacture a batch of methamphetamine. Id. Respondent took the batch and placed it in his car, with the aim of reversing the chemistry of the batch and making it into methamphetamine. Id. Respondent drove to an address in Arvada, Colorado, where someone reported to the police that he/she had observed him cursing, screaming at two girls who were walking in a nearby park, and slamming the trunk of his car. GX 5, at 1. Two police officers were dispatched to the scene; upon their arrival they observed Respondent standing near the trunk of his car, which was open. Id. The officers also saw two battery chargers lying in the street next to car. Id. When the officers asked Respondent what he was doing, he was uncooperative and would not answer their questions. Id. Respondent became agitated, could not provide his vehicle’s registration and would not tell the officers his name. Id. When asked if he had any identification, Respondent said no. Id. PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 62663 The officers observed a bulge in Respondent’s left front pants pocket and that Respondent’s left hand was in the pocket. Id. When one of the officers asked Respondent to remove his hand from his pocket, he refused. Id. The officer then forcibly removed Respondent’s hand, and subdued him. Id. While conducting a pat-down search, the officers found a small zip-lock bag containing a white powder which they suspected to be a controlled substance; Respondent then complained that the officers had planted drugs on him. Id. Thereafter, the officers determined that Respondent was the owner of the car and conducted an inventory search, during which they found a variety items used to manufacture methamphetamine. Id. at 2. Specifically, the officers found a box holding 50 books of redphosphorous matches; a small bottle of iodine tincture; a package of pseudoephedrine; a one liter bottle containing a two-layer liquid, the top layer of which tested positive for amphetamine; and a book of handwritten recipes for manufacturing narcotics. Id. In addition, the officers field tested the substance they had previously found on Respondent and determined that it was methamphetamine. Id. Respondent was then charged with manufacturing methamphetamine, possession of a schedule II controlled substance, and disorderly conduct. GX 13, at 3–4. Respondent was offered a plea bargain, pursuant to which he pled guilty to the manufacturing charge; the other charges, including those which were brought after the April 2003 incident, were dismissed. Id. at 4. On March 22, 2004, Respondent pled guilty to the charge and was sentenced to two years in prison and four years of probation; Respondent was imprisoned for fifteen months. GX 6, at 8. In February 2006, Respondent returned to the Talbot Recovery Center, and in May 2006, he successfully completed the Center’s in-patient treatment program. Id.; GX 10, at 1. Moreover, as the Board found in the Stipulation and Final Agency Order, at least through the date of the 2008 order, Respondent ‘‘ha[d] been actively involved in the Peer Assistance Service Program, 12 step work, the ARC relapse prevention class and regular toxicity screens.’’ GX 10, at 1–2. The Board also noted that ‘‘Respondent had over four years of documented sobriety.’’ Id. at 2. Pursuant to the Board’s Order, Respondent was placed on probation for five years. The terms of his probation included, inter alia, that he: (1) Enter a new Dentist Rehabilitation Contract (DRC); (2) maintain full compliance E:\FR\FM\22OCN1.SGM 22OCN1 sroberts on DSK5SPTVN1PROD with FRONT MATTER 62664 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices with his treatment program and any other conditions of the DRC; (3) provide random urine screens and that if he failed to appear, such failure would be deemed a positive test and a violation of his probation; (4) notify the Dentist Peer Assistance Program of any drug (and its dosage) prescribed to him; and (5) totally abstain from using ‘‘any habitforming drugs, controlled substances, or prescription substances other than those prescribed for him by a licensed treating physician or dentist,’’ and that he take such drugs ‘‘only within the scope of treatment’’ and only ‘‘as prescribed.’’ Id. at 3–4. Finally, ‘‘Respondent agree[d] to have no controlled substances in his dental practice throughout his period of probation.’’ Id. at 4. In his statement of position, Respondent states that he ‘‘has been very honest with the DEA and the [State Board] by admitting his past struggles with substance abuse as well as his past felony convictions, one of which was related to the manufacture and possession of a Schedule II controlled substance.’’ GX 2, at 2. However, Respondent denies that he ‘‘work[ed] directly with the Banditos to illegally manufacture methamphetamine,’’ stating that ‘‘[h]e helped a person illegally manufacture methamphetamine, and . . . later learned that this man was associated with the Banditos.’’ Id. Respondent acknowledges that he ‘‘has a history of substance abuse as well as a Major Depressive Disorder,’’ but states that he ‘‘has sought, and continues to seek, treatment for this disease.’’ Id. He further notes that he completed the recovery program at Talbot; that he currently participates in the Peer Assistance Program in Colorado, the 12-step program, and in a relapse prevention class; and that he provides regular urine drug screens. Id. In addition, Respondent advises that ‘‘[h]e is under the care of a psychiatrist, and [that] his major depression is currently stable.’’ Id. Moreover, ‘‘he has been sober since February 11, 2004.’’ Id. Respondent states that he ‘‘has fully complied with the terms of’’ the Board’s 2008 Order. Id. Finally, Respondent states that he ‘‘is not trying to ignore his past nor make excuses for his conduct.’’ Id. Indeed, he admits that he ‘‘has made mistakes in the past’’ and that ‘‘he has suffered the criminal consequences for these transgressions.’’ Id. at 3. However, Respondent argues that he has ‘‘embraced his recovery and sobriety’’ and ‘‘has made significant changes in his life and is not a threat to public safety.’’ Id. Respondent thus contends that ‘‘the issuance of a . . . registration VerDate Mar<15>2010 21:08 Oct 21, 2013 Jkt 232001 would not be inconsistent with the public interest,’’ and recognizes that the issuance of a ‘‘registration would likely be subject to the terms of a’’ memorandum of understanding. Discussion Section 303(f) of the Controlled Substances Act (CSA) provides that an application for a practitioner’s registration may be denied upon a determination ‘‘that the issuance of such registration would be inconsistent with the public interest.’’ 21 U.S.C. 823(f). In making the public interest determination in the case of a practitioner, Congress directed that the following factors be considered: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant’s experience in dispensing . . . controlled substances. (3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. ‘‘[T]hese factors are considered in the disjunctive.’’ Robert A. Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a combination of factors and may give each factor the weight I deem appropriate in determining whether . . . to deny an application. Id. Moreover, I am ‘‘not required to make findings as to all of the factors.’’ Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005) (citing Morall v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 2005)). The Government has the burden of proving, by a preponderance of the evidence, that the requirements for denial of an application pursuant to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, ‘‘once the [G]overnment establishes a prima facie case showing a practitioner has committed acts which render his registration inconsistent with the public interest, the burden shifts to the practitioner to show why [granting his application for] registration would be consistent with the public interest. ’’ MacKay, 664 F.3d at 817 (citing Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) (citing cases)). Having considered all of the factors, I conclude that the Government’s evidence with respect to factors three, four, and five establishes its prima facie burden of showing that issuance of registration to Respondent would be PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 inconsistent with the public interest.4 However, as explained below, in its Request for Final Agency Action, the Government essentially concedes that Respondent has rebutted its prima facie case. Having considered the Government’s various arguments as to why Respondent’s application should nonetheless be denied, I conclude that his application should be granted. Factors Three, Four and Five— Respondent’s Record of Convictions for Offenses Related to the Manufacture or Distribution of Controlled Substances, His Compliance with Applicable Laws Related to Controlled Substances, and Such Other Conduct Which May Threaten Public Health and Safety It is undisputed that in March 2004, Respondent pled guilty to, and was convicted of, the state law offense of manufacturing methamphetamine, a schedule II controlled substance. GX 6, at 3 (citing Colo. Rev. Stat. § 18–18– 405(1)(a)(2)(a)(I)(A)). Respondent’s conviction of this offense, which arose out of the November 2003 incident, supports an adverse finding under factor three, and by itself, satisfies the Government’s prima facie burden of demonstrating that Respondent’s registration would be inconsistent with the public interest.5 See 21 U.S.C. 823(f). Buttressing the Government’s case is the undisputed evidence that Respondent possessed and abused controlled substances including methamphetamine, cocaine and marijuana. For example, the evidence 4 With respect to factor one—the recommendation of the state licensing board—it should be noted that the Board has not made a recommendation in this matter. Moreover, while Respondent now apparently has authority under Colorado law to engage in some controlled substance activities (such as prescribing), and thus meets a prerequisite for obtaining a new practitioner’s registration, see 21 U.S.C. 802(21) and 823(f), the Agency has long held that possession of state authority is not dispositive of the public interest inquiry. George Mathew, 75 FR 66138, 66145 (2010), pet. for rev. denied, Mathew v. DEA, No. 10–73480, slip op. at 5 (9th Cir., Mar. 16, 2012); see also Patrick W. Stodola, 74 FR 20727, 20730 n.16 (2009); Robert A. Leslie, 68 FR 15227,15230 (2003). As the Agency has long held, ‘‘[T]he Controlled Substances Act requires that the Administrator . . . make an independent determination [from that made by state officials] as to whether the granting of controlled substance privileges would be in the public interest.’’ Mortimer Levin, 57 FR 8680, 8681 (1992). Thus, this factor neither weighs in favor of granting, or denying, his application. Paul Weir Battershell, 76 FR 44359, 44366 (2009) (citing Edmund Chein, 74 FR 6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008)). It is further noted that there is no evidence regarding factor two, Respondent’s experience in dispensing controlled substances. 5 While Respondent was not charged under federal law, his conviction for the state law offense supports a finding under factor four that he violated federal law as well. See 21 U.S.C. 841(a)(1). E:\FR\FM\22OCN1.SGM 22OCN1 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices sroberts on DSK5SPTVN1PROD with FRONT MATTER shows that, at the time of the April 2003 incident which led to his arrest and hospitalization, Respondent possessed and used a half-gram of methamphetamine; indeed, Respondent admitted to using methamphetamine and tested positive for the drug. He also admitted to purchasing methamphetamine after being discharged by Talbot and, while on bond, tested positive on multiple occasions for methamphetamine. Thus, Respondent clearly violated federal law. 21 U.S.C. 844(a). Moreover, during the April 2003 hospitalization, Respondent admitted that he had used marijuana on a daily basis for the past six months. And finally, in the 2008 Board Order, he admitted to abusing cocaine. Thus, Respondent clearly possessed controlled substances in violation of federal law; his failure to comply with federal laws related to controlled substances likewise supports an adverse finding under factor four. So too, DEA has long held that a practitioner’s self-abuse of controlled substances constitutes ‘‘[s]uch other conduct which may threaten the public health and safety.’’ See Tony T. Bui, 75 FR 49979, 49989 (2010); id. at 49988 (quoting David E. Trawick, 53 FR 5326, 5327 (1988) (factor five ‘‘encompasses ‘wrongful acts relating to controlled substances committed by a registrant outside of his professional practice but which relate to controlled substances’’)). Moreover, by itself, a practitioner’s selfabuse of a controlled substance provides an adequate ground to deny an application even where there is no evidence that the registrant abused his prescription-writing authority, Trawick, 53 FR at 5326, or committed acts involving unlawful distribution to others. See Bui, 75 FR at 49989 (citing Kenneth Wayne Green, Jr., 59 FR 51453 (1994); Allan L. Gant, 59 FR 10826 (1994); William H. Carranza, 51 FR 2771 (1986)). Thus, this factor also supports the Government’s contention that Respondent’s registration would be inconsistent with the public interest and supports denial of his application.6 21 U.S.C. 823(f). Sanction This Agency has repeatedly held that a proceeding under section 303 ‘‘ ‘is a remedial measure, based upon the public interest and the necessity to protect the public from those 6 I place no weight, however, on the evidence regarding Respondent’s thirty-year old conviction, both because the Government did not establish the conviction’s nexus to Respondent’s activities as a practitioner, and because the event is too remote in time. VerDate Mar<15>2010 21:08 Oct 21, 2013 Jkt 232001 individuals who have misused controlled substances or their DEA Certificate of Registration, and who have not presented sufficient mitigating evidence to assure the Administrator that they can be entrusted with the responsibility carried by such a registration.’ ’’ Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988)). Therefore, where, as here, ‘‘the Government has proved that a registrant has committed acts inconsistent with the public interest, a registrant must ‘ ‘‘present sufficient mitigating evidence to assure the Administrator that [he] can be entrusted with the responsibility carried by such a registration.’’ ’ ’’ Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) (quoting Jackson, 72 FR at 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988))), aff’d, Medicine Shoppe-Jonesborough v. DEA, 300 F. App’x 409 (6th Cir. 2008). ‘‘Moreover, because ‘past performance is the best predictor of future performance,’ ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [DEA] has repeatedly held that where a registrant has committed acts inconsistent with the public interest, the registrant must accept responsibility for [his] actions and demonstrate that [he] will not engage in future misconduct.’’ Medicine Shoppe, 73 FR at 387; accord Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Prince George Daniels, 60 FR 62884, 62887 (1995). See also Hoxie v. DEA, 419 F.3d at 483 (‘‘admitting fault’’ is ‘‘properly consider[ed]’’ by DEA to be an ‘‘important factor[]’’ in the public interest determination). With respect to the first prerequisite for rebutting the Government’s prima facie case, the Government itself acknowledges that Respondent ‘‘has accepted responsibility for his actions and other than clarifying his involvement with the Bandidos, he has not attempted to minimize or justify his conduct.’’ Req. for Final Agency Action, at 16–17. And with respect to the second prerequisite, the Government concedes that ‘‘[s]ince reinstatement of his dental license, it is of some significance that Respondent’s professional practice has continued without blemish and that he has avoided illicit drugs for what appears to be eight years.’’ Id. at 16. Notwithstanding its concessions that Respondent has provided sufficient evidence as to both prongs necessary to rebut the Government’s prima facie case, the Government argues that he cannot be entrusted with a registration. Id. at 17. First, it argues that Respondent’s misconduct goes beyond PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 62665 simple possession and abuse, and that he ‘‘willingly participated in the production of methamphetamine for illegitimate purposes’’ and did so ‘‘for an outlaw motorcycle gang.’’ Id. at 13. Noting the circumstances of his November 2003 arrest, the Government contends that ‘‘Respondent sought to ‘reverse’ the chemistry of the failed batch and turn it into methamphetamine’’ and ‘‘[h]ad it been sold or distributed, the [drug] would have had an enormous potential for injury to [the] community.’’ Id. Second, the Government argues that Respondent has a ‘‘long-standing history’’ of substance abuse, which could have placed his patients at risk, and that even if his ‘‘addiction did not adversely affect his dental practice, it would come to mean that Respondent was able to hide his addiction for all those years.’’ Id. at 14–16. The Government thus argues that ‘‘[w]hile his recovery is commendable and indicates potential for future registration, Respondent’s historically reckless abandonment of his responsibility as a registrant and ‘willingness to risk serious criminal and professional sanctions do not augur well’ [sic] as consistent with the public interest.’’ Id. at 17 (quoting Imran I. Chaudry, 69 FR 62081, 62084 (2004)). Accordingly, the Government seeks the denial of Respondent’s application. Id. (citing Mark Binette, 64 FR 42977, 42980 (1999)). It cannot be disputed that Respondent committed serious misconduct in possessing and abusing various controlled substances; his participation in the manufacturing of methamphetamine is especially egregious. Yet the record demonstrates that he was addicted to methamphetamine and started using methamphetamine because of his depression. Nor can it be disputed that at the time he committed the offense of manufacturing methamphetamine, he was in the throes of his addiction. In Chaudry, I rejected an ALJ’s recommendation that I grant a restricted registration to a physician who had purchased, abused and distributed methamphetamine. 69 FR at 62084. Therein, I specifically explained that Dr. Chaudry’s ‘‘illicit purchase and use of methamphetamine [were] particularly serious acts of misconduct.’’ Id. Yet I further observed that the evidence showed that the ‘‘[r]espondent was not chemically dependent,’’ and explained that this suggested ‘‘that it was neither addiction nor dependency that motivated his ‘street’ purchases of methamphetamine,’’ but rather, the physician’s ‘‘unhindered judgment to illegally obtain and use’’ the drug. Id. E:\FR\FM\22OCN1.SGM 22OCN1 62666 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices sroberts on DSK5SPTVN1PROD with FRONT MATTER By contrast, the evidence here shows that Respondent was addicted to methamphetamine throughout the period in which he committed the various acts of misconduct involving that drug, a substance which this Agency has recognized is a highly addictive controlled substance.7 See Sunny Wholesale, Inc., 73 FR 57655, 57657 (2008). While this does not excuse Respondent’s criminal acts, here, in contrast to the case of Dr. Chaudry, who did not testify at his hearing and thus ‘‘left the record silent as to possible remorse,’’ 69 FR at 62083, the Government concedes that Respondent ‘‘has accepted responsibility for his actions.’’ Req. for Final Agency Action, at 16. As for the Government’s contention that Respondent has a long-standing history of substance abuse, which could have placed his patients at risk, the argument is refuted by its acknowledgment that Respondent ‘‘has avoided illicit drugs for what appears to be eight years’’ and that his ‘‘professional practice has continued without blemish.’’ Id. Indeed, the evidence establishes that, at the time of this review, Respondent had nearly completed the five year probation imposed by the State Board without incident and had been sober for nearly nine years. The Government’s contention that this merely ‘‘indicates potential for future registration,’’ id. at 17, begs the question of how many years of sobriety must Respondent demonstrate to be granted a registration. And as for the suggestion that even if Respondent did not harm any of his patients, his application should nonetheless be denied because of his putative ability to hide his addiction from others, it is significant that the State subjected him to random urine drug screening for a period of five years and there is no evidence that Respondent yielded a positive test result or that it is possible to beat such a test.8 7 While the Government argues that Respondent ‘‘actively endeavored to improve the Bandidos’ process to manufacture methamphetamine,’’ Req. for Final Agency Action at 13, it does not appear to take issue with Respondent’s assertion that he did not learn until after the fact that the person he helped to manufacture methamphetamine was a member of the gang. GX 2, at 2; Req. for Final Agency Action, at 17. 8 The Government also asserts that ‘‘[w]hile the Administrator has granted applications to recovering addicts, such self-abuse often arose pursuant to’’ being prescribed controlled substances to treat a legitimate medical condition. Req. for Final Agency Action, at 16. While this may be, the Agency has never held that the only category of practitioners, who are entitled to regain their registrations, are those whose substance abuse problem arose out of being prescribed controlled substances for the treatment of a legitimate medical condition. VerDate Mar<15>2010 21:08 Oct 21, 2013 Jkt 232001 Accordingly, I will grant Respondent’s application for a new registration. However, Respondent’s registration shall be subject to the following conditions: 1. Respondent shall only be authorized to prescribe controlled substances in schedules III through V and may not administer or dispense directly any controlled substances to his patients. Respondent may not store any controlled substance at his registered location except for a controlled substance which has been prescribed to him by another practitioner, who is authorized to prescribe controlled substances, for the purpose of treating a legitimate medical condition. Respondent shall not accept any samples of controlled substances from any representative of a manufacturer, distributor or pharmacy. 2. Respondent shall maintain a log of all controlled substance prescriptions he issues, which shall list in chronological order, the date of the prescription, the patient name, the drug name and strength, dosage, and quantity. Respondent shall submit a copy of the log to the nearest DEA Field Office no later than ten (10) days following the last day of each quarter (March 31, June 30, September 30, and December 31). 3. Respondent shall consent to unannounced inspections of his registered location and agrees to waive his right to require that DEA personnel obtain an Administrative Inspection Warrant prior to conducting any inspection. 4. In the event Respondent’s probation is continued by the State Board past its ending date, Respondent shall notify the DEA Field Office within five days of the Board’s order and provide a copy of the order to the DEA Field Office. 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 Ronald F. Lambert, D.D.S., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, granted subject to the conditions set forth above. This Order is effective immediately. Indeed, in Binette, which the Government cites in supports of its contention that Respondent’s application should be denied, see id. at 17, the Agency granted a restricted registration to a physician who had both used methamphetamine and had engaged in the unlawful distribution of the drug. See Binette, 64 FR at 42978–79. Like the Respondent here, Dr. Binette expressed remorse for his actions and demonstrated a substantial period of rehabilitation and sobriety. See id. at 42980. Significantly, Respondent has been sober for nearly twice as long as Dr. Binette was at the time that the Agency granted his application. See id. at 42979, 42981. PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 Dated: September 23, 2013. Michele M. Leonhart, Administrator. [FR Doc. 2013–24698 Filed 10–21–13; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 11–22] Kenneth Harold Bull, M.D.; Decision and Order On December 14, 2010, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Kenneth Harold Bull, M.D. (Respondent), of Albuquerque, New Mexico. ALJ Ex. 1. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, on the ground that because of actions taken by the New Mexico Medical Board, Respondent was without authority to handle controlled substances in New Mexico, the State in which he holds his DEA registration. Id.; see also 21 U.S.C. 824(a)(3). Respondent timely requested a hearing. ALJ Ex. 2. The matter was placed on the docket of the DEA Office of Administrative Law Judges (ALJ) and assigned to ALJ Wing, who, on January 19, 2011, issued an Order for Prehearing Statements. ALJ Ex. 3. The next day, the Government moved to stay the proceeding and for summary disposition; its motion was based on the New Mexico Medical Board’s (hereinafter, Board) issuance, on October 1, 2010, of an order which summarily suspended Respondent’s state medical license ‘‘[u]ntil further [o]rder of the Board.’’ ALJ Ex. 4 (Appendix A). On January 25, 2011, Respondent opposed the motion, arguing that the Board’s hearing was scheduled for February 11, 2011 and that the Government ‘‘will not be prejudiced by this short delay.’’ ALJ Ex. 5. On February 9, 2011, the ALJ issued his ruling on the motion, ‘‘conclud[ing] that further delay in ruling on the Government’s motion for summary disposition is not warranted.’’ ALJ Ex. 6, at 4. Because Respondent did not dispute that he ‘‘is presently without state authority to handle controlled substances,’’ the ALJ granted the Government’s motion and recommended that his registration be revoked. Id. at 4–5. On March 18, 2011, E:\FR\FM\22OCN1.SGM 22OCN1

Agencies

[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Notices]
[Pages 62662-62666]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24698]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Ronald F. Lambert, D.D.S.; Decision and Order

    On November 17, 2011, the Deputy Assistant Administrator issued an 
Order to Show Cause to Ronald Lambert, D.D.S. (hereinafter, 
Respondent), of Longmont, Colorado. The Show Cause Order proposed the 
denial of Respondent's application for a DEA Certificate of 
Registration as a practitioner, on the ground that Respondent's 
``registration would be inconsistent with the public interest.'' Show 
Cause Order at 1 (citing 21 U.S.C. 823(f)).
    The Show Cause Order alleged that on January 1, 2011, Respondent 
had applied for a practitioner's registration with authority to 
dispense controlled substances in schedules III through V. Id. The 
Order alleged that during an interview by DEA investigators, Respondent 
admitted to having possessed and used methamphetamine, a schedule II 
controlled substance, ``on numerous occasions,'' in violation of 
federal and state law. Id. (citing 21 U.S.C. 844(a); Colo. Rev. Stat. 
Sec.  18-18-404(1)(a)). The Order also alleged that, during the 
interview, Respondent also admitted to working with an outlaw 
motorcycle gang to improve their process of manufacturing 
methamphetamine. Id. at 1-2 (citations omitted).
    Next, the Show Cause Order alleged that on June 10, 2003, 
Respondent's dental license was suspended by the Colorado State Board 
of Dental Examiners (hereinafter, the Board), and that on November 5, 
2003, the Board revoked his license. Id. Finally, the Order alleged 
that on March 13, 2008, Respondent entered into a Stipulation and Final 
Agency Order with the Board, in which he admitted that he had a history 
of abusing substances including alcohol, marijuana, methamphetamine, 
and cocaine, as well as a criminal history that includes a conviction 
for burglary and a conviction for manufacturing and possession of a 
controlled substance. Id. The Order then alleged that the Board had 
placed Respondent on probation for a period of five years and had 
prohibited him from having controlled substances in his dental 
practice. Id.
    On November 22, 2011, the Show Cause Order, which also notified 
Respondent of his right to request a hearing on the allegations, or to 
submit a written statement of position in lieu of a hearing, the 
procedure for electing either option, and the consequence for failing 
to elect either option, was served on Respondent by certified mail 
addressed to him at his proposed registered location. Id. (citing 21 
CFR 1301.43 (a)-(e), id. Sec.  1316.47). Thereafter, on December 15, 
2011, Respondent's counsel filed a letter waiving his right to a 
hearing, but submitting a statement of position as to why his 
application should not be denied. GX 2.
    On August 8, 2012, the Government submitted a Request for Final 
Agency Action, along with the Investigative Record it had compiled. 
Having considered the entire record, including Respondent's statement 
of position, I conclude that the evidence submitted by the Government 
makes out a prima facie case for denial of Respondent's application. 
However, the Government concedes that Respondent has accepted 
responsibility for his misconduct and that he has demonstrated his 
sobriety for an extensive period. While the Government argues that 
notwithstanding these concessions, Respondent's application should be 
denied for various reasons, I conclude that the Government's arguments 
are not persuasive and will therefore grant Respondent's application 
and order that he be issued a restricted registration. I make the 
following factual findings.

Findings of Fact

    Respondent is a dentist licensed by Colorado State Board of Dental 
Examiners. GX 10. While on November 5, 2003, the Board revoked 
Respondent's dental license based on his having engaged in substance 
abuse and criminal activity, on March 13, 2008, the Board approved a 
Stipulation and Final Agency Order, pursuant to which it reinstated 
Respondent's dental license while placing him on probation for five 
years. Id. Respondent's state license was last renewed on March 1, 2012 
and does not expire until February 28, 2014. GX 3.
    In the Stipulation and Final Agency Order, Respondent admitted that 
he ``has a history of substance abuse with alcohol, marijuana, 
methamphetamine and cocaine.'' GX 10, at 1. He also admitted to having 
a felony conviction for manufacture and possession of a schedule II 
controlled substance on November 11, 2003.\1\ Id.
---------------------------------------------------------------------------

    \1\ Respondent also admitted to a felony conviction for first 
degree burglary in 1983.

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

[[Page 62663]]

    Respondent previously held a DEA practitioner's registration, which 
expired on March 31, 2004. GX 12. On January 11, 2011, Respondent 
applied for a new registration, seeking authority to dispense 
controlled substances in schedules III through V. GX 4. On his 
application, Respondent disclosed that on April 22, 2003, he pled 
guilty to manufacturing a controlled substance and that he was 
sentenced to two years in jail and four years of supervised probation, 
which he had successfully completed. Id. He also disclosed that on 
November 15, 2002, his dental license had been revoked due ``to 
undefended allegations of substance abuse.'' Id. Respondent further 
explained that ``after successful rehabilitation from drug addiction 
and proving this to the Board's satisfaction with documented clean 
time, I was granted a new license to practice dentistry in March 
2008.'' \2\ Id.
    On June 29, 2011, two DEA Diversion Investigators interviewed 
Respondent.\3\ GX 13. During the course of the interview, Respondent 
admitted that in the 1970s he had regularly used marijuana; that in 
April 1983, he had participated, while intoxicated, in a burglary 
during which his partner had murdered the victim of the burglary; and 
that in April 2003, police, who had been requested by his ex-wife to 
perform a welfare check on him at his residence, found methamphetamine. 
Id. at 1-2. Further, Respondent engaged in a struggle with the police. 
Id. at 2.
---------------------------------------------------------------------------

    \2\ While the dates Respondent provided on the application for 
the Board actions were not the actual dates of the various actions, 
these errors are not material misstatements as they have no capacity 
to influence the decision in this matter.
    \3\ It is noted that this affidavit was not executed until more 
than a year after the interview. GX 13, at 1 & 4.
---------------------------------------------------------------------------

    Thereafter, Respondent was taken to a local hospital for a 72-hour 
mental health hold. GX 8, at 2. Upon his arrival, ``Respondent was 
cursing, screaming and refus[ed] all treatment.'' Id. After he ``bit a 
security guard,'' he was ``placed in restraints.'' Id. Respondent 
admitted that he had used a half-gram of methamphetamine on the day of 
this incident, and a urine drug screen was positive for meth. Id. at 2-
3. The same day, Respondent was transferred to another hospital where 
he was evaluated; the evaluation determined that he met the criteria 
for a diagnosis of methamphetamine abuse and depressive disorder. Id. 
at 3.
    The following day, Respondent admitted to methamphetamine use; he 
also admitted to daily use of marijuana in the preceding six months. 
Id. Respondent stated that he started using methamphetamine ``because 
of a depressed mood.'' Id. However, he denied needing treatment for 
substance abuse. Id.
    Upon being discharged from the hospital, family members took 
Respondent to the Talbot Recovery Center in Atlanta to undergo 
residential treatment. GX 7, at 6; GX 13, at 2. However, five days 
after entering treatment, Talbot discharged him alleging that he had 
brought a vial of methamphetamine with him. GX 13, at 2. Upon his 
return to Colorado, Respondent learned that he had criminal charges 
pending against him based on the April 21, 2003 incident. Id.
    Respondent admitted to DEA Investigators that on returning to 
Colorado, he purchased methamphetamine from street dealers. Id. He also 
admitted to being friends with two individuals who were associated with 
the President of the local chapter of the Bandidos, a designated outlaw 
motorcycle gang. Id. at 3. According to the affidavit, Respondent 
admitted that he helped the Bandidos manufacture methamphetamine. Id.
    As a condition of his bond, Respondent was required to undergo 
urine drug screening. Id. Respondent tested positive for 
methamphetamine on various occasions and was charged with seventeen 
counts of violating the bond conditions. Id.
    On November 11, 2003, Respondent met with several members of the 
Bandidos at a home in Denver. Id. The gang members had unsuccessfully 
attempted to manufacture a batch of methamphetamine. Id. Respondent 
took the batch and placed it in his car, with the aim of reversing the 
chemistry of the batch and making it into methamphetamine. Id.
    Respondent drove to an address in Arvada, Colorado, where someone 
reported to the police that he/she had observed him cursing, screaming 
at two girls who were walking in a nearby park, and slamming the trunk 
of his car. GX 5, at 1. Two police officers were dispatched to the 
scene; upon their arrival they observed Respondent standing near the 
trunk of his car, which was open. Id. The officers also saw two battery 
chargers lying in the street next to car. Id.
    When the officers asked Respondent what he was doing, he was 
uncooperative and would not answer their questions. Id. Respondent 
became agitated, could not provide his vehicle's registration and would 
not tell the officers his name. Id. When asked if he had any 
identification, Respondent said no. Id.
    The officers observed a bulge in Respondent's left front pants 
pocket and that Respondent's left hand was in the pocket. Id. When one 
of the officers asked Respondent to remove his hand from his pocket, he 
refused. Id. The officer then forcibly removed Respondent's hand, and 
subdued him. Id. While conducting a pat-down search, the officers found 
a small zip-lock bag containing a white powder which they suspected to 
be a controlled substance; Respondent then complained that the officers 
had planted drugs on him. Id.
    Thereafter, the officers determined that Respondent was the owner 
of the car and conducted an inventory search, during which they found a 
variety items used to manufacture methamphetamine. Id. at 2. 
Specifically, the officers found a box holding 50 books of red-
phosphorous matches; a small bottle of iodine tincture; a package of 
pseudoephedrine; a one liter bottle containing a two-layer liquid, the 
top layer of which tested positive for amphetamine; and a book of 
handwritten recipes for manufacturing narcotics. Id. In addition, the 
officers field tested the substance they had previously found on 
Respondent and determined that it was methamphetamine. Id.
    Respondent was then charged with manufacturing methamphetamine, 
possession of a schedule II controlled substance, and disorderly 
conduct. GX 13, at 3-4. Respondent was offered a plea bargain, pursuant 
to which he pled guilty to the manufacturing charge; the other charges, 
including those which were brought after the April 2003 incident, were 
dismissed. Id. at 4. On March 22, 2004, Respondent pled guilty to the 
charge and was sentenced to two years in prison and four years of 
probation; Respondent was imprisoned for fifteen months. GX 6, at 8.
    In February 2006, Respondent returned to the Talbot Recovery 
Center, and in May 2006, he successfully completed the Center's in-
patient treatment program. Id.; GX 10, at 1. Moreover, as the Board 
found in the Stipulation and Final Agency Order, at least through the 
date of the 2008 order, Respondent ``ha[d] been actively involved in 
the Peer Assistance Service Program, 12 step work, the ARC relapse 
prevention class and regular toxicity screens.'' GX 10, at 1-2. The 
Board also noted that ``Respondent had over four years of documented 
sobriety.'' Id. at 2.
    Pursuant to the Board's Order, Respondent was placed on probation 
for five years. The terms of his probation included, inter alia, that 
he: (1) Enter a new Dentist Rehabilitation Contract (DRC); (2) maintain 
full compliance

[[Page 62664]]

with his treatment program and any other conditions of the DRC; (3) 
provide random urine screens and that if he failed to appear, such 
failure would be deemed a positive test and a violation of his 
probation; (4) notify the Dentist Peer Assistance Program of any drug 
(and its dosage) prescribed to him; and (5) totally abstain from using 
``any habit-forming drugs, controlled substances, or prescription 
substances other than those prescribed for him by a licensed treating 
physician or dentist,'' and that he take such drugs ``only within the 
scope of treatment'' and only ``as prescribed.'' Id. at 3-4. Finally, 
``Respondent agree[d] to have no controlled substances in his dental 
practice throughout his period of probation.'' Id. at 4.
    In his statement of position, Respondent states that he ``has been 
very honest with the DEA and the [State Board] by admitting his past 
struggles with substance abuse as well as his past felony convictions, 
one of which was related to the manufacture and possession of a 
Schedule II controlled substance.'' GX 2, at 2. However, Respondent 
denies that he ``work[ed] directly with the Banditos to illegally 
manufacture methamphetamine,'' stating that ``[h]e helped a person 
illegally manufacture methamphetamine, and . . . later learned that 
this man was associated with the Banditos.'' Id.
    Respondent acknowledges that he ``has a history of substance abuse 
as well as a Major Depressive Disorder,'' but states that he ``has 
sought, and continues to seek, treatment for this disease.'' Id. He 
further notes that he completed the recovery program at Talbot; that he 
currently participates in the Peer Assistance Program in Colorado, the 
12-step program, and in a relapse prevention class; and that he 
provides regular urine drug screens. Id. In addition, Respondent 
advises that ``[h]e is under the care of a psychiatrist, and [that] his 
major depression is currently stable.'' Id. Moreover, ``he has been 
sober since February 11, 2004.'' Id. Respondent states that he ``has 
fully complied with the terms of'' the Board's 2008 Order. Id.
    Finally, Respondent states that he ``is not trying to ignore his 
past nor make excuses for his conduct.'' Id. Indeed, he admits that he 
``has made mistakes in the past'' and that ``he has suffered the 
criminal consequences for these transgressions.'' Id. at 3. However, 
Respondent argues that he has ``embraced his recovery and sobriety'' 
and ``has made significant changes in his life and is not a threat to 
public safety.'' Id. Respondent thus contends that ``the issuance of a 
. . . registration would not be inconsistent with the public 
interest,'' and recognizes that the issuance of a ``registration would 
likely be subject to the terms of a'' memorandum of understanding.

Discussion

    Section 303(f) of the Controlled Substances Act (CSA) provides that 
an application for a practitioner's registration may be denied upon a 
determination ``that the issuance of such registration would be 
inconsistent with the public interest.'' 21 U.S.C. 823(f). In making 
the public interest determination in the case of a practitioner, 
Congress directed that the following factors be considered:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing . . . controlled 
substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.
    ``[T]hese factors are considered in the disjunctive.'' Robert A. 
Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a 
combination of factors and may give each factor the weight I deem 
appropriate in determining whether . . . to deny an application. Id. 
Moreover, I am ``not required to make findings as to all of the 
factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005) (citing 
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005)).
    The Government has the burden of proving, by a preponderance of the 
evidence, that the requirements for denial of an application pursuant 
to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, ``once the 
[G]overnment establishes a prima facie case showing a practitioner has 
committed acts which render his registration inconsistent with the 
public interest, the burden shifts to the practitioner to show why 
[granting his application for] registration would be consistent with 
the public interest. '' MacKay, 664 F.3d at 817 (citing Medicine 
Shoppe-Jonesborough, 73 FR 364, 387 (2008) (citing cases)).
    Having considered all of the factors, I conclude that the 
Government's evidence with respect to factors three, four, and five 
establishes its prima facie burden of showing that issuance of 
registration to Respondent would be inconsistent with the public 
interest.\4\ However, as explained below, in its Request for Final 
Agency Action, the Government essentially concedes that Respondent has 
rebutted its prima facie case. Having considered the Government's 
various arguments as to why Respondent's application should nonetheless 
be denied, I conclude that his application should be granted.
---------------------------------------------------------------------------

    \4\ With respect to factor one--the recommendation of the state 
licensing board--it should be noted that the Board has not made a 
recommendation in this matter. Moreover, while Respondent now 
apparently has authority under Colorado law to engage in some 
controlled substance activities (such as prescribing), and thus 
meets a prerequisite for obtaining a new practitioner's 
registration, see 21 U.S.C. 802(21) and 823(f), the Agency has long 
held that possession of state authority is not dispositive of the 
public interest inquiry. George Mathew, 75 FR 66138, 66145 (2010), 
pet. for rev. denied, Mathew v. DEA, No. 10-73480, slip op. at 5 
(9th Cir., Mar. 16, 2012); see also Patrick W. Stodola, 74 FR 20727, 
20730 n.16 (2009); Robert A. Leslie, 68 FR 15227,15230 (2003). As 
the Agency has long held, ``[T]he Controlled Substances Act requires 
that the Administrator . . . make an independent determination [from 
that made by state officials] as to whether the granting of 
controlled substance privileges would be in the public interest.'' 
Mortimer Levin, 57 FR 8680, 8681 (1992). Thus, this factor neither 
weighs in favor of granting, or denying, his application. Paul Weir 
Battershell, 76 FR 44359, 44366 (2009) (citing Edmund Chein, 74 FR 
6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 828 
(D.C. Cir. 2008)).
    It is further noted that there is no evidence regarding factor 
two, Respondent's experience in dispensing controlled substances.
---------------------------------------------------------------------------

Factors Three, Four and Five--Respondent's Record of Convictions for 
Offenses Related to the Manufacture or Distribution of Controlled 
Substances, His Compliance with Applicable Laws Related to Controlled 
Substances, and Such Other Conduct Which May Threaten Public Health and 
Safety

    It is undisputed that in March 2004, Respondent pled guilty to, and 
was convicted of, the state law offense of manufacturing 
methamphetamine, a schedule II controlled substance. GX 6, at 3 (citing 
Colo. Rev. Stat. Sec.  18-18-405(1)(a)(2)(a)(I)(A)). Respondent's 
conviction of this offense, which arose out of the November 2003 
incident, supports an adverse finding under factor three, and by 
itself, satisfies the Government's prima facie burden of demonstrating 
that Respondent's registration would be inconsistent with the public 
interest.\5\ See 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \5\ While Respondent was not charged under federal law, his 
conviction for the state law offense supports a finding under factor 
four that he violated federal law as well. See 21 U.S.C. 841(a)(1).
---------------------------------------------------------------------------

    Buttressing the Government's case is the undisputed evidence that 
Respondent possessed and abused controlled substances including 
methamphetamine, cocaine and marijuana. For example, the evidence

[[Page 62665]]

shows that, at the time of the April 2003 incident which led to his 
arrest and hospitalization, Respondent possessed and used a half-gram 
of methamphetamine; indeed, Respondent admitted to using 
methamphetamine and tested positive for the drug. He also admitted to 
purchasing methamphetamine after being discharged by Talbot and, while 
on bond, tested positive on multiple occasions for methamphetamine. 
Thus, Respondent clearly violated federal law. 21 U.S.C. 844(a).
    Moreover, during the April 2003 hospitalization, Respondent 
admitted that he had used marijuana on a daily basis for the past six 
months. And finally, in the 2008 Board Order, he admitted to abusing 
cocaine. Thus, Respondent clearly possessed controlled substances in 
violation of federal law; his failure to comply with federal laws 
related to controlled substances likewise supports an adverse finding 
under factor four.
    So too, DEA has long held that a practitioner's self-abuse of 
controlled substances constitutes ``[s]uch other conduct which may 
threaten the public health and safety.'' See Tony T. Bui, 75 FR 49979, 
49989 (2010); id. at 49988 (quoting David E. Trawick, 53 FR 5326, 5327 
(1988) (factor five ``encompasses `wrongful acts relating to controlled 
substances committed by a registrant outside of his professional 
practice but which relate to controlled substances'')). Moreover, by 
itself, a practitioner's self-abuse of a controlled substance provides 
an adequate ground to deny an application even where there is no 
evidence that the registrant abused his prescription-writing authority, 
Trawick, 53 FR at 5326, or committed acts involving unlawful 
distribution to others. See Bui, 75 FR at 49989 (citing Kenneth Wayne 
Green, Jr., 59 FR 51453 (1994); Allan L. Gant, 59 FR 10826 (1994); 
William H. Carranza, 51 FR 2771 (1986)). Thus, this factor also 
supports the Government's contention that Respondent's registration 
would be inconsistent with the public interest and supports denial of 
his application.\6\ 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \6\ I place no weight, however, on the evidence regarding 
Respondent's thirty-year old conviction, both because the Government 
did not establish the conviction's nexus to Respondent's activities 
as a practitioner, and because the event is too remote in time.
---------------------------------------------------------------------------

Sanction

    This Agency has repeatedly held that a proceeding under section 303 
`` `is a remedial measure, based upon the public interest and the 
necessity to protect the public from those individuals who have misused 
controlled substances or their DEA Certificate of Registration, and who 
have not presented sufficient mitigating evidence to assure the 
Administrator that they can be entrusted with the responsibility 
carried by such a registration.' '' Samuel S. Jackson, 72 FR 23848, 
23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988)). 
Therefore, where, as here, ``the Government has proved that a 
registrant has committed acts inconsistent with the public interest, a 
registrant must ` ``present sufficient mitigating evidence to assure 
the Administrator that [he] can be entrusted with the responsibility 
carried by such a registration.'' ' '' Medicine Shoppe-Jonesborough, 73 
FR 364, 387 (2008) (quoting Jackson, 72 FR at 23853 (2007) (quoting Leo 
R. Miller, 53 FR 21931, 21932 (1988))), aff'd, Medicine Shoppe-
Jonesborough v. DEA, 300 F. App'x 409 (6th Cir. 2008). ``Moreover, 
because `past performance is the best predictor of future performance,' 
ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [DEA] has 
repeatedly held that where a registrant has committed acts inconsistent 
with the public interest, the registrant must accept responsibility for 
[his] actions and demonstrate that [he] will not engage in future 
misconduct.'' Medicine Shoppe, 73 FR at 387; accord Jackson, 72 FR at 
23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Prince George 
Daniels, 60 FR 62884, 62887 (1995). See also Hoxie v. DEA, 419 F.3d at 
483 (``admitting fault'' is ``properly consider[ed]'' by DEA to be an 
``important factor[]'' in the public interest determination).
    With respect to the first prerequisite for rebutting the 
Government's prima facie case, the Government itself acknowledges that 
Respondent ``has accepted responsibility for his actions and other than 
clarifying his involvement with the Bandidos, he has not attempted to 
minimize or justify his conduct.'' Req. for Final Agency Action, at 16-
17. And with respect to the second prerequisite, the Government 
concedes that ``[s]ince reinstatement of his dental license, it is of 
some significance that Respondent's professional practice has continued 
without blemish and that he has avoided illicit drugs for what appears 
to be eight years.'' Id. at 16.
    Notwithstanding its concessions that Respondent has provided 
sufficient evidence as to both prongs necessary to rebut the 
Government's prima facie case, the Government argues that he cannot be 
entrusted with a registration. Id. at 17. First, it argues that 
Respondent's misconduct goes beyond simple possession and abuse, and 
that he ``willingly participated in the production of methamphetamine 
for illegitimate purposes'' and did so ``for an outlaw motorcycle 
gang.'' Id. at 13. Noting the circumstances of his November 2003 
arrest, the Government contends that ``Respondent sought to `reverse' 
the chemistry of the failed batch and turn it into methamphetamine'' 
and ``[h]ad it been sold or distributed, the [drug] would have had an 
enormous potential for injury to [the] community.'' Id. Second, the 
Government argues that Respondent has a ``long-standing history'' of 
substance abuse, which could have placed his patients at risk, and that 
even if his ``addiction did not adversely affect his dental practice, 
it would come to mean that Respondent was able to hide his addiction 
for all those years.'' Id. at 14-16. The Government thus argues that 
``[w]hile his recovery is commendable and indicates potential for 
future registration, Respondent's historically reckless abandonment of 
his responsibility as a registrant and `willingness to risk serious 
criminal and professional sanctions do not augur well' [sic] as 
consistent with the public interest.'' Id. at 17 (quoting Imran I. 
Chaudry, 69 FR 62081, 62084 (2004)). Accordingly, the Government seeks 
the denial of Respondent's application. Id. (citing Mark Binette, 64 FR 
42977, 42980 (1999)).
    It cannot be disputed that Respondent committed serious misconduct 
in possessing and abusing various controlled substances; his 
participation in the manufacturing of methamphetamine is especially 
egregious. Yet the record demonstrates that he was addicted to 
methamphetamine and started using methamphetamine because of his 
depression. Nor can it be disputed that at the time he committed the 
offense of manufacturing methamphetamine, he was in the throes of his 
addiction.
    In Chaudry, I rejected an ALJ's recommendation that I grant a 
restricted registration to a physician who had purchased, abused and 
distributed methamphetamine. 69 FR at 62084. Therein, I specifically 
explained that Dr. Chaudry's ``illicit purchase and use of 
methamphetamine [were] particularly serious acts of misconduct.'' Id. 
Yet I further observed that the evidence showed that the ``[r]espondent 
was not chemically dependent,'' and explained that this suggested 
``that it was neither addiction nor dependency that motivated his 
`street' purchases of methamphetamine,'' but rather, the physician's 
``unhindered judgment to illegally obtain and use'' the drug. Id.

[[Page 62666]]

    By contrast, the evidence here shows that Respondent was addicted 
to methamphetamine throughout the period in which he committed the 
various acts of misconduct involving that drug, a substance which this 
Agency has recognized is a highly addictive controlled substance.\7\ 
See Sunny Wholesale, Inc., 73 FR 57655, 57657 (2008). While this does 
not excuse Respondent's criminal acts, here, in contrast to the case of 
Dr. Chaudry, who did not testify at his hearing and thus ``left the 
record silent as to possible remorse,'' 69 FR at 62083, the Government 
concedes that Respondent ``has accepted responsibility for his 
actions.'' Req. for Final Agency Action, at 16.
---------------------------------------------------------------------------

    \7\ While the Government argues that Respondent ``actively 
endeavored to improve the Bandidos' process to manufacture 
methamphetamine,'' Req. for Final Agency Action at 13, it does not 
appear to take issue with Respondent's assertion that he did not 
learn until after the fact that the person he helped to manufacture 
methamphetamine was a member of the gang. GX 2, at 2; Req. for Final 
Agency Action, at 17.
---------------------------------------------------------------------------

    As for the Government's contention that Respondent has a long-
standing history of substance abuse, which could have placed his 
patients at risk, the argument is refuted by its acknowledgment that 
Respondent ``has avoided illicit drugs for what appears to be eight 
years'' and that his ``professional practice has continued without 
blemish.'' Id. Indeed, the evidence establishes that, at the time of 
this review, Respondent had nearly completed the five year probation 
imposed by the State Board without incident and had been sober for 
nearly nine years. The Government's contention that this merely 
``indicates potential for future registration,'' id. at 17, begs the 
question of how many years of sobriety must Respondent demonstrate to 
be granted a registration. And as for the suggestion that even if 
Respondent did not harm any of his patients, his application should 
nonetheless be denied because of his putative ability to hide his 
addiction from others, it is significant that the State subjected him 
to random urine drug screening for a period of five years and there is 
no evidence that Respondent yielded a positive test result or that it 
is possible to beat such a test.\8\
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    \8\ The Government also asserts that ``[w]hile the Administrator 
has granted applications to recovering addicts, such self-abuse 
often arose pursuant to'' being prescribed controlled substances to 
treat a legitimate medical condition. Req. for Final Agency Action, 
at 16. While this may be, the Agency has never held that the only 
category of practitioners, who are entitled to regain their 
registrations, are those whose substance abuse problem arose out of 
being prescribed controlled substances for the treatment of a 
legitimate medical condition.
    Indeed, in Binette, which the Government cites in supports of 
its contention that Respondent's application should be denied, see 
id. at 17, the Agency granted a restricted registration to a 
physician who had both used methamphetamine and had engaged in the 
unlawful distribution of the drug. See Binette, 64 FR at 42978-79. 
Like the Respondent here, Dr. Binette expressed remorse for his 
actions and demonstrated a substantial period of rehabilitation and 
sobriety. See id. at 42980. Significantly, Respondent has been sober 
for nearly twice as long as Dr. Binette was at the time that the 
Agency granted his application. See id. at 42979, 42981.
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    Accordingly, I will grant Respondent's application for a new 
registration. However, Respondent's registration shall be subject to 
the following conditions:
    1. Respondent shall only be authorized to prescribe controlled 
substances in schedules III through V and may not administer or 
dispense directly any controlled substances to his patients. Respondent 
may not store any controlled substance at his registered location 
except for a controlled substance which has been prescribed to him by 
another practitioner, who is authorized to prescribe controlled 
substances, for the purpose of treating a legitimate medical condition. 
Respondent shall not accept any samples of controlled substances from 
any representative of a manufacturer, distributor or pharmacy.
    2. Respondent shall maintain a log of all controlled substance 
prescriptions he issues, which shall list in chronological order, the 
date of the prescription, the patient name, the drug name and strength, 
dosage, and quantity. Respondent shall submit a copy of the log to the 
nearest DEA Field Office no later than ten (10) days following the last 
day of each quarter (March 31, June 30, September 30, and December 31).
    3. Respondent shall consent to unannounced inspections of his 
registered location and agrees to waive his right to require that DEA 
personnel obtain an Administrative Inspection Warrant prior to 
conducting any inspection.
    4. In the event Respondent's probation is continued by the State 
Board past its ending date, Respondent shall notify the DEA Field 
Office within five days of the Board's order and provide a copy of the 
order to the DEA Field Office.

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 Ronald F. Lambert, 
D.D.S., for a DEA Certificate of Registration as a practitioner, be, 
and it hereby is, granted subject to the conditions set forth above. 
This Order is effective immediately.

    Dated: September 23, 2013.
Michele M. Leonhart,
Administrator.
[FR Doc. 2013-24698 Filed 10-21-13; 8:45 am]
BILLING CODE 4410-09-P