Mark P. Koch, D.O.; Decision and Order, 18714-18737 [2014-07450]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Notices]
[Pages 18714-18737]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07450]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 13-14]


Mark P. Koch, D.O.; Decision and Order

    On July 18, 2013, Administrative Law Judge Gail A. Randall issued 
the attached Recommended Decision (R.D.). Therein, the ALJ found that 
while Respondent had previously abused

[[Page 18715]]

cocaine, he had successfully demonstrated his sobriety since 2005. R.D. 
at 60, 62. However, the ALJ also found that Respondent had been 
convicted of conspiring to dispense, and possess with intent to 
distribute and dispense, testosterone and primobolan depot, which are 
schedule III controlled substances, in violation of 21 U.S.C. 846, id. 
at 29-30, and that his conviction ``strongly supports a finding that 
continuing his registration and granting his renewal applications would 
be inconsistent with the public interest.'' Id. at 57.
    The ALJ further found that Respondent ``failed to testify credibly 
about his handling of anabolic steroids,'' that he ``blamed his ex-wife 
for [the] conduct to which he pled guilty, thereby undermining the 
circumstances where he had had actually accepted responsibility for his 
actions,'' as well as ``demonstrate[d] a lack of candor.'' Id. at 62. 
The ALJ also found that while ``Respondent has been granted numerous 
opportunities to act as a responsible DEA registrant [he] has failed 
each time'' and that he ``has not shown that he has learned from his 
past mistakes in a way that will prevent future misconduct.'' Id. at 
64. The ALJ thus concluded that Respondent's registration is 
inconsistent with the public interest and recommended that I revoke his 
existing registrations and deny his renewal application. Id. at 65.
    Respondent filed exceptions to the Recommended Decision. Having 
reviewed the record in its entirety, I reject the ALJ's conclusion that 
Respondent violated federal law because he was not registered at his 
principal place of professional practice in Minnesota as unsupported by 
substantial evidence. See R.D. at 53. While I also reject the ALJ's 
legal conclusion that a registrant is not required to notify the Agency 
if he changes the address of his principal place of professional 
practice, I find that there is insufficient evidence to prove a 
violation. See id. at 52. I also find several of Respondent's 
exceptions to be well taken. However, I nonetheless conclude that the 
ALJ's ultimate finding that Respondent's registration is inconsistent 
with the public interest is supported by substantial evidence.
    Accordingly, I will adopt the ALJ's recommended order. Before 
proceeding to discuss Respondent's exceptions, I will address the ALJ's 
conclusions regarding Respondent's Minnesota registration.
    On cross-examination of Respondent, the Government raised for the 
first time the issue of whether he violated DEA regulations because he 
was not practicing at the address which was his registered location in 
Minnesota.\1\ Tr. 187. According to Respondent, the address he listed 
was a location of the company he worked for as a locum tenens 
practitioner, but he was not practicing at this address. Id. When asked 
whether any mail that was sent to this address would be given to him, 
Respondent initially answered ``yes'' but then added that his mailing 
address for this registration was in Alabama. Id. Moreover, when 
questioned by the ALJ as to whether the Minnesota Board had placed any 
restrictions on his medical license, Respondent testified that he had 
listed his ``practice address with'' the Board and that ``the lion 
share of [his] work'' was at an emergency room in Thief Rivers Fall, 
Minnesota. Tr. 200.
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    \1\ The Government did not allege a violation of the 
registration provisions in the Show Cause Order, nor raised the 
issue in either of its pre-hearing statements. Indeed, it did not 
even raise the issue in its case in chief and Respondent did not 
open the door during his testimony on direct examination. I need not 
decide, however, whether the issue was litigated by consent because 
I find that the Government failed to prove an element of the 
violation.
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    In its rebuttal case, and over the objection of Respondent who 
claimed inadequate foundation but not a lack of notice, the Government, 
through the testimony of a DI, was allowed to admit into evidence an 
envelope which was mailed to him from the DEA Office of Chief Counsel 
and addressed to Respondent at his Minnesota registered location. See 
GX 44. The mailing was returned unclaimed and marked: ``UNDELIVERABLE 
AS ADDRESSED FORWARDING ORDER EXPIRED'' and ``RETURN TO SENDER UNABLE 
TO FORWARD.'' Id.\2\ Subsequently, the ALJ found that ``Respondent was 
not registered at his principal place of business while working in a 
locum tenens capacity in Minnesota, in violation of 21 CFR 1301.12.'' 
R.D. at 53.
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    \2\ While I conclude that the Government did not lay an adequate 
foundation to admit the document, I conclude that the error was not 
prejudicial because Respondent's testimony established that he was 
not practicing at his registered location in Minnesota.
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    Under 21 U.S.C. 822(e), ``[a] separate registration [is] required 
at each principal place of business or professional practice where the 
applicant . . . dispenses controlled substances.'' (emphasis added). 
But while it may seem obvious that an emergency room physician would 
have dispensed controlled substances in the course of his employment, 
the Government never asked Respondent if he dispensed controlled 
substances at any of the emergency rooms he worked at in Minnesota, nor 
produced any other evidence to show that he did.\3\ Because there is no 
evidence in the record that Respondent dispensed controlled substances 
in Minnesota, and the registration requirement only applies to a 
``principal place of . . . professional practice where the applicant . 
. . dispenses controlled substances,'' I reject the ALJ's finding as 
unsupported by substantial evidence.
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    \3\ While the director of the emergency room at one of the 
Minnesota hospitals where Respondent worked testified that he and 
the nursing staff had not had any problems with Respondent's 
prescriptions, the Government did not clarify whether his 
prescriptions included controlled substances. Tr. 115.
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    In her discussion of the registration requirements, the ALJ also 
rejected the Government's contention that ``Respondent violated a duty 
to notify DEA of a change in his registered address[,]'' reasoning that 
``no such duty exits under the statute or regulations.'' Id. While I 
agree that the Government did not establish a violation, I reject the 
ALJ's reasoning that there is no such duty under federal law.
    In reaching her conclusion, the ALJ relied entirely on 21 CFR 
1301.51 and reasoned that the Agency's ``regulations do not explicitly 
define a registrant's duty to notify the DEA of a change in address.'' 
R.D. at 52. This regulation provides that ``[a]ny registrant may apply 
to modify his/her registration . . . or change his/her name or address, 
by submitting a letter of request to the'' Agency. 21 CFR 1301.51. 
Reasoning that if the Agency ``wanted to create a responsibility to 
notify the agency of a change in address, it could have used `shall' 
instead of `may' in the regulation,'' the ALJ concluded that the 
regulation does not create ``an affirmative responsibility . . . to 
provide such notice.'' R.D. at 52.
    The ALJ did not, however, acknowledge 21 U.S.C. 827(g), which 
provides that ``[e]very registrant under this subchapter shall be 
required to report any change of professional or business address in 
such manner as the Attorney General shall by regulation require.'' 
(emphasis added). Thus, the CSA itself imposes a mandatory duty on the 
part of a registrant to report to DEA that he has changed his 
registered address.
    Moreover, in Anthony E. Wicks, 78 FR 62676 (2013), the Agency held 
that ``[b]ecause section 827(g) clearly creates a substantive 
obligation on the part of a registrant to notify the Agency if he 
changes his professional address, the regulation's use of the words 
`may apply to modify' cannot alter (and cannot reasonably be read as 
altering) the binding nature of a registrant's

[[Page 18716]]

obligation to notify the Agency.'' Id. at 62678; cf. Chevron, U.S.A., 
Inc. v. NRDC, 467 U.S. 837, 842-43 & n.9 (1984); United States v. 
Rodgers, 461 U.S. 677, 706 (1983) (while ``[t]he word `may' . . . 
usually implies some degree of discretion,'' this meaning ``can be 
defeated by indications of legislative intent to the contrary or by 
obvious inferences from the structure and purpose of the statute'') 
(other citations omitted); see also United States v. Marte, 356 F.3d 
1336, 1341 (11th Cir. 2004) (``When a regulation implements a statute, 
the regulation must be construed in light of the statute[.]'') 
(citation omitted).
    In Wicks, the Agency also noted that the regulation further 
provides that a modification is ``handled in the same manner as an 
application for registration,'' 78 FR at 62678, and under another DEA 
regulation, a registrant may ``not engage in any activity for which 
registration is required until the application . . . is granted and a . 
. .[r]egistration is issued.'' 21 CFR 1301.13(a). Thus, in Wicks, the 
Agency held that notwithstanding its use of the words ``may apply to 
modify his/her registration,'' the regulation is properly construed as 
imposing on a registrant who changes his professional address, the 
binding obligation to both: (1) notify the Agency of an address change, 
and (2) refrain from dispensing activities at his new address until his 
request is approved.\4\ Id.
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    \4\ Wicks did not, however, raise the question of whether a 
practitioner could prescribe at his new address if he was otherwise 
registered in the same State. See 78 FR at 62676-78; see also 21 CFR 
1301.12(a)(3).
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    To make clear to the regulated community, I reject the ALJ's 
reasoning that a registrant has no duty ``under the statute or 
regulations'' to notify the Agency that he has changed his registered 
address. Rather, that duty is imposed by 21 U.S.C. 827(g). However, 
because there is no evidence that Respondent dispensed any controlled 
substance while working in Minnesota, I do not find a violation proved 
on this record.

Respondent's Exceptions

Exception 1

    Respondent argues that the ALJ's reference to count II of the 
indictment filed against him should not have been given any weight in 
the Recommended Decision because the count was dismissed. Exceptions, 
at 2-3. I reject the exception because while, in her factual findings, 
the ALJ discussed both counts of the indictment, she also acknowledged 
that count II was dismissed, and in her discussion of the public 
interest factors, the ALJ relied only on the count to which he pled 
guilty. Thus, the ALJ did not give any weight to the dismissed count in 
concluding that Respondent's registration is inconsistent with the 
public interest. I therefore reject the exception.

Exception 2

    Next, Respondent argues that the ALJ allowed the Government ``to 
relitigate [his] guilty plea while [he] was not allowed to provide an 
accounting of the circumstances related to it and the actions leading 
to said plea, which would have been favorable toward'' him. Exceptions, 
at 3 (citing Tr. 176-78). This exception is frivolous, as the record 
clearly shows that Respondent, on direct examination by his counsel, 
was allowed to testify extensively regarding the circumstances 
surrounding his guilty plea:

    Resp. Counsel: Did you enter a guilty plea in the Lower District 
of Alabama to one count of conspiracy to possess and intent to 
distribute anabolic steroids?
    Resp: Yes.
    Resp. Counsel: Tell the Court what your involvement was as far 
as any purchase that was made.
    Resp: My wife was going up to north Alabama to purchase steroids 
for herself and apparently for two other people. And my involvement 
was to buy some Viagra and Cialis.
    Resp. Counsel: Were you aware that she was purchasing steroids 
in north Alabama?
    Resp: Yes, I was aware of it.
    Resp. Counsel: Where is your wife originally--excuse me, your 
former wife originally from?
    Resp: From north Alabama.
    Resp. Counsel: Do you have knowledge whether--personal knowledge 
yourself as to whether or not your wife--how she knew these 
individuals?
    Resp: It was actually a friend of my wife's.

Tr. 126-27.\5\
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    \5\ As for Respondent's assertion that ``testimony was taken 
regarding the plea, at length, from Government witnesses,'' 
Exceptions, at 3 (citing Tr. 82-84); the cited testimony was 
provided by a Diversion Investigator who simply explained that after 
receiving notification from the Alabama State Board of Medical 
Examiners that it had suspended Respondent's medical license, he 
determined that Respondent ``had pled guilty to a criminal case 
involving anabolic steroids and had been sentenced . . . to five 
years probation and a $10,000 fine,'' that the plea had been ``to 
conspiracy to obtain and distribute anabolic steroids,'' and that 
Respondent ``was supposed to be self-using the anabolic steroids.'' 
Tr. 82-84.
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    Still later in his testimony, Respondent was allowed to provide an 
even more extensive explanation of the events which led to the 
indictment and his conviction. See id. at 194-97.\6\ This concluded 
with Respondent providing the following testimony:
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    \6\ During this portion of his testimony, Respondent claimed 
that: (1) His ``wife had been on steroids for the past six years'' 
because she is ``a fitness buff''; (2) that he had never actually 
spoken with any of the three indicted co-conspirators (whether the 
person who sold the steroids to him or the two persons he was 
selling them to); (3) that he gave his ex-wife money to buy only 
Viagra and Cialis; and (4) that because he ``knew what [his 
estranged wife] was doing,'' his lawyer advised him that ``he 
thought that I was guilty.'' Tr. 194-96.

    I definitely used poor judgment and I accept responsibility for 
that and that's why I pled guilty. But as far as using them 
[steroids] or soliciting them, I did not do that. But I am guilty of 
giving her [his estranged wife] money to buy Cialis and did know 
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about it.

Id. at 197.
    Thus, contrary to Respondent's contention, he was allowed ``to 
provide an accounting of the circumstances related to'' his guilty 
plea. However, for reasons more fully below, I agree with the ALJ's 
finding that that Respondent's testimony regarding his role in the 
conspiracy was disingenuous, see R.D. at 62, and that he ``has not 
taken full responsibility for his mistakes and genuinely expressed 
remorse.'' Id. at 65. Indeed, Respondent's testimony suggests that he 
is only remorseful for having been caught.

Exceptions 3 & 4

    Next, Respondent takes exception to the ALJ's finding that he 
lacked candor when he testified that ``he had never missed a random 
drug screening.'' Exceptions, at 4 (citing R.D. at 11 (citing Tr.122 & 
138)). More specifically, the ALJ found: ``He testified that he had 
never missed a random drug screening. This testimony, however, was 
squarely refuted by Respondent's drug-testing results, which showed he 
missed twelve drug tests from July 2002 to February 2005.'' R.D. at 11 
(citing Tr. 122 & 138; GX 17, at 53-55).
    Respondent contends that the ALJ took his testimony out of context 
because he was questioned only about his participation in the Alabama 
Physicians Health Program, which he entered on May 12, 2005 after 
undergoing inpatient treatment at Talbot Recovery Center. Exceptions, 
at 4. Respondent further challenges the ALJ's findings as to the number 
of drug tests he missed, arguing that ``[a] closer look at the 
documentary evidence . . . shows that while he missed some `check-in' 
calls with the Pennsylvania PHP, he only missed six scheduled 
screenings, all of which were set during his stay at Talbot.'' Id. 
(citing GX 17, at 46, 52-56).
    As for the latter contention, the evidence showed that Respondent 
was treated at Talbot from February 1, 2005

[[Page 18717]]

through approximately May 10, 2005. Tr. 121-22. While it is true that 
the evidence does not support the ALJ's finding as to the number of 
missed drugs tests, the evidence nonetheless shows that Respondent 
missed scheduled tests on January 1, 2003 and August 13, 2004, well 
before he entered Talbot. In addition, the evidence shows that 
Respondent missed eleven calls before he entered Talbot, as well as 
eight calls after May 10, 2005, including six calls after he entered 
the Alabama Physicians Health Program. See GX 17.
    However, a review of the record supports Respondent's contention 
that when he denied missing tests, he was being questioned only about 
his participation in the Alabama Physicians Health Program. See Tr. 
122-23; 136-38. Accordingly, I reject the ALJ's finding that Respondent 
lacked candor when he testified that he had never missed a random drug 
screening.
    Respondent also takes exception to the ALJ's finding that 
``Respondent failed to show genuine remorse for'' his abuse of both 
cocaine and alcohol, that this could ``have had very devastating 
personal and professional consequences,'' and that ``his conduct and 
lack of remorse weighs against [his] maintenance of a DEA 
registration.'' \7\ Exceptions, at 6 (quoting R.D. at 60). Respondent 
then contends that ``[h]is `history' of drug use prior to the summer of 
2005 was held against him while little, if any, credit was given for 
his eight years of total sobriety.'' Id.
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    \7\ Prior to stating her finding that Respondent failed to show 
genuine remorse, the ALJ explained that:
     Here, Respondent credibly testified that he struggled with his 
addiction from 1985 to 2005. Respondent openly admitted that he 
abused both drugs and alcohol, during this time period. Respondent 
said he used cocaine several times a year while on vacation in the 
Caribbean. He also used to drink alcohol three times a week, 
consuming up to eight to ten cans of beers each episode.
    R.D. at 60.
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    I need not decide whether Respondent's more recent period of 
sobriety outweighs his years of substance abuse, nor whether to adopt 
the ALJ's finding that Respondent lacked remorse with respect to his 
substance abuse, because I reject Respondent's exceptions to the ALJ's 
findings regarding his conviction on the conspiracy charge. I further 
hold that this conviction provides reason alone to revoke his 
registration given the recentness of his misconduct and Respondent's 
utterly disingenuous attempt to blame his wife for it.
    In his exceptions, Respondent contends that ``every fact entered 
into evidence supports'' his statement ``that the criminal charge 
against him never would have occurred if not for his estranged wife.'' 
Exceptions, at 6. He then sets forth a litany of assertions to the 
effect that he was set up by his ex-wife and that the FBI's 
investigation was inadequate because it failed to drug test his 
estranged wife to determine if she was the one who was actually using 
the steroids.\8\ Id. at 7.
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    \8\ There is no support in the record for this assertion, and in 
any event, Respondent's admissions in the factual resume establish 
that the assertion is frivolous.
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    The evidence showed that Respondent pled guilty to count one of the 
indictment, which alleged that he conspired with at least two other 
persons, to dispense and possess with intent to distribute and 
dispense, testosterone and primobolan depot, which are schedule III 
controlled substances and anabolic steroids. GX 23, at 1; see also GX 
26, at 1 (Judgment). Moreover, count one alleged that the conspiracy 
began ``on or about August 2005 and continu[ed] through on or about 
July 8, 2011.'' GX 23, at 1. Also, in the factual resume, which was 
incorporated into the plea agreement, see GX 25, at 3, Respondent 
admitted to the allegations of count one, as well as that he that he 
``purchased, consumed,\9\ and trafficked anabolic steroids.'' Id. at 
14. He also admitted that ``[o]n or about June 24, 2011, a recording 
showed him ``discussing the pending purchase of anabolic steroids 
from'' a co-defendant by a cooperating source; that ``[o]n or about 
June 28, 2011, the cooperating individual traveled'' to the co-
defendant and purchased various ``forms of anabolic steroids''; and 
that ``the cooperating individual paid [the codefendant] approximately 
$2000 which was given to'' the cooperating individual by Respondent and 
two other co-defendants ``to purchase the steroids.'' Id. at 15.
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    \9\ The ALJ found that while there was ``some evidence that 
Respondent consumed anabolic steroids,'' the Government did not 
prove his ``consumption was unlawful'' because the indictment did 
not mention his ``unlawful consumption'' and did not cite ``a 
specific statute that Respondent had violated by such consumption.'' 
R.D. at 51. The ALJ's reasoning ignores that Respondent's admission 
was part of the ``offense conduct'' described in the factual resume. 
See GX 25, at 14. In addition, while consuming a controlled 
substance is not itself an offense under the CSA, the simple knowing 
possession of a controlled substance is an offense even in the 
absence of intent to distribute, see 21 U.S.C. 844(a), and 
generally, one cannot consume a controlled substance without first 
possessing it.
     Furthermore, Respondent offered no evidence that he obtained 
the steroids either ``directly, or pursuant to a valid prescription 
or order, from a practitioner, while acting in the course of his 
professional practice,'' or in a manner ``otherwise authorized by'' 
the CSA (i.e., by purchasing them from a registered distributor for 
dispensing in the course of his professional practice). Id.; see 
also 21 U.S.C. 885 (providing that the Government is not required 
``to negative any exemption or exceptions set forth in [the CSA] in 
any . . . pleading or in any . . . hearing, or other proceeding 
under'' the CSA).
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    As for the contention that ``that the criminal charge against him 
never would have occurred if not for his estranged wife,'' it may be 
true that absent his estranged wife's involvement, Respondent's 
criminal conduct would not have come to the attention of the FBI. 
However, Respondent cannot claim entrapment given that he pled guilty 
to participating in a conspiracy to possess with intent to distribute 
and to distribute anabolic steroids, which, at the time of his arrest, 
had been ongoing for six years. See Jacobson v. United States, 503 U.S. 
540, 548-49 (1992).
    Moreover, the record also includes the sworn affidavit of the FBI 
Special Agent who conducted the investigation which led to Respondent's 
indictment and conviction. Therein, the Agent stated that recordings 
(which were done on June 24, 2011) of Respondent showed him 
``discuss[ing ] the pending purchase of anabolic steroids from'' a 
supplier in North Alabama, as well as ``the amounts of money [two of 
the co-conspirators] owe him for their steroids.'' GX 22, at 2. The 
Agent further stated that a June 24, 2011 consensual video recording 
``showed [Respondent] opening a portable safe and removing a vial of 
liquid which resembled vials of the anabolic steroids, which were 
subsequently sold to him by a co-conspirator four days later, and that 
Respondent ``injected the anabolic steroids into his person.'' Id. at 
3. While in his testimony Respondent asserted that his ``involvement'' 
was limited to buying Viagra and Cialis, I find the Agent's statements 
to be sufficiently reliable to constitute substantial evidence.\10\ 
See, e.g., J.A.M. Builders v. Herman, 233 F.3d 1350, 1354 (11th Cir. 
2000); Hoska v. United States Dep't of the Army, 677 F.2d 131, 138-39 
(D.C. Cir. 1982).
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    \10\ In concluding that the FBI Agent's statements are reliable 
notwithstanding that they are hearsay, I note that the statements 
were sworn and disclosed to Respondent in advance of the hearing, 
that the Agent was available to testify (in fact, he was even called 
as a witness), and that they were corroborated to some degree by 
Respondent's admissions as set forth in the factual resume which was 
incorporated into the plea agreement.
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    Accordingly, consistent with his guilty plea, I conclude that 
Respondent's involvement in the conspiracy included purchasing anabolic 
steroids and distributing them to others. As did the ALJ, I also find 
incredible Respondent's testimony that his involvement in the 
conspiracy was limited to buying the aforesaid non-

[[Page 18718]]

controlled drugs and conclude that he does not accept responsibility 
for his misconduct.\11\ I therefore reject Respondent's exception that 
the ALJ failed to properly weigh the evidence.
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    \11\ As noted in his Exceptions, Respondent asserts that he 
accepted responsibility for his criminal conduct when testified that 
``I used very poor judgment and I accepted responsibility--I knew my 
wife was doing something illegal and I should not have gotten 
involved with it.'' Exceptions, at 6-7 (quoting Tr. 140). However, 
given that Respondent pled guilty to participating in a criminal 
conspiracy that went on for six years, and that the reliable 
evidence shows that he was engaged in the distribution of anabolic 
steroids, his testimony suggests that what he regrets is not his 
criminal conduct but having gotten caught.
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Exception 5

    Respondent also takes exception to the ALJ's finding that he 
violated the terms of the 2003 Memorandum of Agreement (MOA) he entered 
into with DEA, pursuant to which he was granted a new registration. 
Exceptions, at 10. According to Respondent, the ALJ erred in finding 
that he failed to comply with the MOA when she observed that he 
``credibly testified that he failed to meet the restrictions concerning 
the purchasing of controlled substances and the prescribing, 
dispensing, and administering of controlled substances to family 
members.'' Id. (quoting R.D. at 48-49).
    It is true (as Respondent argues) that there is no evidence that he 
violated the MOA provision that he ``not prescribe, dispense, or 
administer controlled substances to any relative.'' GX 9, at 2. 
However, the MOA also required that he ``obey all federal and state 
laws concerning controlled substances,'' as well as that he ``not 
possess any controlled substances not prescribed for him for a 
legitimate medical condition by a physician or other health care 
professional other'' than himself. Id. at 1. Moreover, the evidence 
also showed (and it is undisputed) that on December 21, 2004, 
Respondent was subjected to a drug test and tested positive for 
cocaine.\12\ GX 13, at 1; GX 17, at 53. Thus, while the ALJ erred in 
referring to the MOA's provision which prohibited him from dispensing 
to his relatives, her finding that Respondent tested positive for 
cocaine when the MOA was in effect, see R.D. at 49, establishes that he 
violated the MOA, as well as the CSA,\13\ and the order of the 
Pennsylvania Board. Thus, the ALJ's error was not prejudicial.
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    \12\ While cocaine has recognized medical uses, Respondent does 
not maintain that he used cocaine in the course of receiving medical 
treatment. Moreover, in his testimony, he admitted that he did not 
``stay away from illegal drugs'' and failed to abide by the MOA. Tr. 
161.
    \13\ While the ALJ found that Respondent's use of cocaine 
violated Alabama law, it is unclear where he was located when he 
used the cocaine that gave rise to the positive drug test in 
December 2004. Nor, given that this use of cocaine violated the CSA, 
is it necessary to determine what State he was in when he used 
cocaine.
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Exception 6

    Next, Respondent argues that the ALJ erred because he was not 
``allowed to discuss and/or explain his understanding of the plea 
agreement regarding steroid use and [sic] his testimony regarding 
steroid use.'' Exceptions, at 11. Respondent asserts that while he 
``understood that there was a statement in his written plea agreement 
that he had use steroids, but since his steroid use was prior to his 
treatment at Talbot Recovery in 2005, and the plea he entered was only 
to Count I,'' the other count being dismissed, he entered the plea. Id. 
Respondent also asserts that the ALJ improperly allowed the FBI Agent 
to testify that he (Respondent) ``was supposed to be self-using the 
anabolic steroids.'' Id. (citing Tr. 84).\14\ Respondent argues that 
this was a violation of the ALJ's pre-hearing ruling that the factual 
circumstances surrounding his guilty plea were not subject to 
relitigation in this proceeding and that the plea and plea agreement 
``speak for themselves.'' Id. Finally, Respondent asserts that 
``[t]here is nothing to show that Respondent used steroids since his 
treatment in 2005.'' Id.
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    \14\ Notably, the testimony cited by Respondent was given by a 
DEA Investigator who merely discussed the scope of the investigation 
he conducted upon being notified that the Alabama Board of Medical 
Examiners had suspended his medical license. See Tr. 82-86. While 
the FBI Agent also testified for the Government, he was not asked a 
single question about the steroid investigation, his testimony being 
limited to an allegation that Respondent had traded controlled 
substance prescriptions for sex or cash and was apparently doing so 
at the time he was arrested. Id. at 100, 104-05. Upon the objection 
of Respondent's counsel, the ALJ barred this testimony because the 
Agent did not personally observe the alleged acts and because it was 
``uncharged misconduct.'' Id. at 105.
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    As for Respondent's understanding of the plea agreement, Respondent 
signed the factual resume in which he ``admit[ted] in open court and 
under oath'' that the statement that he ``purchased, consumed, and 
trafficked anabolic steroids'' was ``true and correct and constitute[d] 
evidence in the case.'' GX 25, at 14. Moreover, in the plea agreement, 
Respondent acknowledged that he had ``discussed the facts of the case 
with his attorney, and [that] his attorney has explained to [him] the 
essential legal elements of the . . . charges which ha[d] been brought 
against him.'' Id. at 2.
    Moreover, upon signing the plea agreement, Respondent 
``stipulate[d] that the Factual Resume, incorporated herein, is true 
and accurate in every respect, and that had the matter proceeded to 
trial, the United States could have proved the same beyond a reasonable 
doubt.'' Id. at 13. He also stated that he understood the agreement and 
he had ``voluntarily agree[d] to it.'' Id. Finally, the plea agreement 
provided that it ``is the complete statement of the agreement between 
the defendant and the United States and may not be altered unless done 
so in writing and signed by all the parties.'' Id. at 12. Accordingly, 
the ALJ properly ruled that the plea agreement spoke for itself and 
that Respondent could not testify as to his understanding of it. 
However, as explained previously, Respondent was allowed to testify 
regarding the events which led to his arrest, the indictment, and 
conviction.
    As for Respondent's contention that the ALJ improperly allowed the 
testimony that he ``was supposed to be self-using the anabolic 
steroids,'' Respondent's counsel did not object to the testimony. Tr. 
84. Accordingly, I hold that Respondent has waived his objection.
    Finally, Respondent contends that there is no evidence to show that 
he has used steroids since he completed inpatient treatment in 2005. 
Indeed, at the hearing, he repeatedly denied that he had purchased, 
consumed and trafficked in anabolic steroids. Tr. 178. However, 
Respondent admitted to the contrary when he ``stipulate[d] that the 
Factual Resume . . . is true and accurate in every respect'' and that 
Government ``could have proved the same beyond a reasonable doubt'' had 
he gone to trial. GX 25, at 13. By itself, Respondent's admission in 
the plea agreement provides sufficient evidence to find his denial of 
having used steroids incredible. Moreover, as explained previously, as 
ultimate factfinder, I find that the FBI Agent's affidavit is 
sufficiently reliable to constitute substantial evidence which further 
supports a finding that Respondent engaged in all three actions as set 
forth in the factual resume. Thus, I also reject Respondent's 
contention that there is no evidence that he has ``used steroids since 
his treatment in 2005.'' Exceptions, at 11.

Exception 7

    Next, Respondent takes exception to the ALJ finding, sua sponte, 
``that Respondent should have notified the DEA when he decided in 2004 
that he no longer had any intention of practicing medicine in 
Alabama.'' R.D. at 55 (quoted in Exceptions, at 11-12). As support for 
her finding, the ALJ

[[Page 18719]]

relied on Respondent's testimony that ``in 2004 he notified both his 
attorney and the Alabama [Board] that he would not pursue'' the 
reinstatement of his medical license, and the Board then ``rescinded 
its offer to reinstate his'' license. Id. The ALJ thus found that 
because Respondent ``expressed a clear intent to cease professional 
practice,'' under DEA's regulations, he had ``the duty to notify'' the 
Agency of this. Id. (citing 21 CFR 1301.52(a)).
    Respondent contends, however, that at the time he informed the 
Alabama Board that he did not intend to pursue reinstatement, he was 
not then registered in Alabama. Exceptions, at 12. On this issue, the 
evidence is limited to a Certification of Registration History, which 
was submitted by the Chief of DEA's Registration and Program Support 
Section, and which sets forth, inter alia, the date Respondent was 
assigned a DEA registration, as well as the dates and addresses for 
various changes of his registered location. See GX 33.
    Relevant here, the Certification lists an address change on January 
27, 1994 from one location to another in Russellville, Alabama and an 
address change on November 16, 2005 from a location in Erie, 
Pennsylvania \15\ to a location in Jacobus, Pennsylvania. Id. at 1. 
Notably, the Certification contains no information as to when 
Respondent changed his registered location from Russellville, Alabama 
to Erie, Pennsylvania. See id. Moreover, Respondent testified that he 
switched his registration back to Pennsylvania in either 1997 or 2000, 
see Tr. 155-56, and the 2003 Memorandum of Agreement was issued by the 
DEA Pittsburgh Office and was addressed to Respondent at an address in 
Erie, thus suggesting that he was then registered in Pennsylvania. 
There being no evidence that Respondent changed his registered location 
to a place in Alabama between the time he entered the Memorandum of 
Agreement and the 2005 address change, I find Respondent's exception 
well taken.
---------------------------------------------------------------------------

    \15\ While the certification does not list the State that Erie 
is located in, using the Web site of the U.S. Postal Service, I have 
taken official notice that the listed zip code of 16504 is for Erie, 
Pennsylvania.
---------------------------------------------------------------------------

    Thus, I reject the ALJ's finding that Respondent had a duty to 
notify DEA when, in 2004, he decided not to pursue the reinstatement of 
his Alabama medical license. However, given the evidence of 
Respondent's criminal conduct and his failure to accept responsibility 
for it, I conclude that the ALJ's error was not prejudicial.

Exception 8

    Finally, Respondent takes exception to the ALJ's conclusions that 
``Respondent has been granted numerous opportunities to act as a 
responsible DEA registrant and has failed each time'' and that there 
are no ``conditions that could be placed on [his] registration . . . 
that would ensure that [he] would be a responsible DEA registrant.'' 
Exceptions, at 12. While ``Respondent acknowledges [having] made 
several personal and professional mistakes,'' he asserts that ``since 
his recovery from drug and alcohol addiction . . . [he] has made every 
effort to remain a responsible DEA registrant.'' Id. He further argues 
that ``[d]espite his felony conviction, the State Licensing Boards of 
Minnesota and Alabama both agree that Respondent should be allowed to 
remain medically licensed in their state.'' Id.
    I reject the exception. Even acknowledging Respondent's successful 
efforts to address his abuse of cocaine, the record fully supports the 
ALJ's conclusion that Respondent's registration is ``inconsistent with 
the public interest.'' 21 U.S.C. 823(f) & 824(a)(4). Contrary to 
Respondent's understanding of his obligations as the holder of a DEA 
registration, a ``responsible DEA registrant'' does not engage in 
criminal activity, let alone a six-year long conspiracy to distribute 
controlled substances. Nor does a ``responsible DEA registrant'' 
proceed to lie under oath in either an administrative or judicial 
proceeding.\16\
---------------------------------------------------------------------------

    \16\ Were it the case that Respondent told the truth in this 
proceeding regarding his involvement in the conspiracy--which, of 
course, is totally contrary to the reliable evidence--I would then 
have to conclude that he provided a false statement in the criminal 
proceeding when he ``stipulate[d] that the Factual Resume . . . is 
true and accurate in every respect.'' GX 25, at13. In either case, 
it is clear that a DEA registration cannot be entrusted to a person 
who views his obligation to tell the truth with such disregard.
---------------------------------------------------------------------------

    Here, even assuming that Respondent told the same disingenuous 
story regarding his involvement in the criminal conspiracy to the 
medical boards of Alabama and Minnesota as he told in this proceeding, 
their decisions to allow him to practice medicine do not persuade me 
that he should be allowed to retain his DEA registration. Cf. David A. 
Ruben, 78 FR 38363, 38387 n.54 (2013) (holding that while a State can 
adopt a policy which favors improving the performance of a physician 
over preventing him from practicing, Congress has directed the Agency 
to protect the public interest and is not bound by a State's policy). 
Indeed, DEA has repeatedly held that while the possession of authority 
to dispense controlled substances under the laws of the State in which 
a physician practices is a prerequisite for obtaining and maintaining a 
registration, ``it `is not dispositive of the public interest inquiry.' 
'' Id. at 38379 n.35 (quoting 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) (internal quotations and other citations 
omitted)). Rather, the Controlled Substances Act requires the Agency to 
make an independent determination from that made by state officials as 
to whether the granting or continuation of controlled substance 
dispensing authority is consistent with the public interest. Id. at 
n.35; see also Mortimer Levin, 57 FR 8680, 8681 (1992).
    Here, notwithstanding Respondent's previous issues with controlled 
substances, he entered into a conspiracy to violate the Controlled 
Substances Act and further violated the CSA by unlawfully possessing 
and distributing anabolic steroids. Because Congress did not limit the 
Agency's authority to protect the public interest to those instances in 
which a DEA registrant has used his registration to commit criminal 
acts, it is of no consequence that Respondent did not need to use his 
registration to acquire and distribute the steroids. See Michael S. 
Moore, 76 FR 45867, 45868 (2011) (suspending registration based on 
physician's manufacturing of marijuana); Tony T. Bui, 75 FR 49979, 
49989 (2010) (revoking registration based, in part, on physician's 
abuse of cocaine); David E. Trawick, 53 FR 5326 (1988) (revoking 
registration based on conviction for cocaine possession; ``[a]lthough 
[physician's] unlawful activities relating to controlled substances 
occurred outside of his professional practice, the Administrator finds 
that such activities are of a sufficient magnitude to warrant the 
revocation of his'' registration).
    Respondent's criminal conduct went on for six years and constitutes 
a felony offense. Moreover, at the hearing, he offered the disingenuous 
claims that he was entrapped or set up by his estranged wife and that 
his involvement was limited to purchasing non-controlled drugs. 
Accordingly, I find the ALJ's conclusion that Respondent does not 
accept responsibility for his criminal conduct to be supported by 
substantial evidence. I therefore reject Respondent's exception.

Summary

    Notwithstanding my conclusion that several of Respondents' 
exceptions are

[[Page 18720]]

well taken, I adopt the ALJ's findings that Respondent participated in 
a six-year long conspiracy to violate the CSA by purchasing and 
distributing anabolic steroids, that he lacked candor, and that he has 
not accepted responsibility for his misconduct. I further adopt the 
ALJ's ultimate finding that Respondent's registration is ``inconsistent 
with the public interest.'' 21 U.S.C. 824(a)(4). Because Respondent's 
misconduct is egregious and he has failed to fully acknowledge his 
misconduct, I conclude that the issuance of a registration with 
conditions would not adequately protect the public interest. 
Accordingly, I will adopt the ALJ's recommended order.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(2) & (4), as well as 28 CFR 0.100(b), I order that DEA 
Certificates of Registration BK1391729 and FK1953327 issued to Mark P. 
Koch, D.O., be, and they hereby are, revoked. I further order that any 
application of Mark P. Koch, D.O., to renew or modify either of the 
above registrations, be, and it hereby is, denied. This Order is 
effective May 5, 2014.

    Dated: March 25, 2014.
Michele M. Leonhart,
Administrator.

Theresa Krause, Esq., for the Government.
Elizabeth McAdory Borg, 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 revoke a physician's DEA 
Certificates of Registration and deny any pending applications to renew 
or modify such registrations, pursuant to 21 U.S.C. 823(f) and 
824(a)(2), (a)(4) (2011). Without his registrations, the physician, 
Mark P. Koch, D.O. (``Respondent'' or ``Dr. Koch''), would be unable to 
lawfully prescribe, dispense or otherwise handle controlled substances 
in the course of his medical practice.

II. Procedural Background

    The Deputy Assistant Administrator of the DEA, issued an Order to 
Show Cause (``Order'') dated January 16, 2013, proposing to revoke two 
DEA Certificates of Registration (``COR''), pursuant to 21 U.S.C. 
824(a)(2) and 824(a)(4), and deny any pending renewal or modification 
applications, pursuant to 21 U.S.C. 823(f), because the Respondent's 
continued registration is inconsistent with the public interest, as 
that term is defined in 21 U.S.C. 823(f). [Administrative Law Judge 
Exhibit (``ALJ Exh.'') 1, at 1].\17\ The Order stated that the 
Respondent was registered as a practitioner in Schedules II through V, 
pursuant to his DEA COR No. BK1391729,\18\ in Monroeville, Alabama. 
This registration expires by its own terms on December 31, 2014. The 
Respondent is also registered as a practitioner in Schedules II through 
V, pursuant to his DEA COR No. FK1953327,\19\ in Virginia, Minnesota. 
This registration expired by its own terms on December 31, 2012, but 
the Respondent submitted a timely request to renew the registration. 
[Id. at 1].
---------------------------------------------------------------------------

    \17\ Administrative Law Judge (``ALJ'') Exhibits 1-6 were 
admitted into the record, not for the truth of the factual matters 
asserted therein, but to the extent that they represent the 
procedural history of this case. [Tr. 5-7]. ALJ Exhibits 7 and 8 
were similarly admitted into the record following the testimony of 
Ms. McDonnell. [Tr. 54-55].
    \18\ A copy of Respondent's DEA COR No. BK1391729 was admitted 
into evidence without objection through the testimony of Diversion 
Investigator, Martin Craig Riley. [Tr. 92; Gov't Ex. 33].
    \19\ A copy of Respondent's DEA COR No. FK1953327 was admitted 
into evidence without objection through the testimony of Diversion 
Investigator, Martin Craig Riley. [Tr. 93-94; Gov't Ex. 34].
---------------------------------------------------------------------------

    The Order outlined the past disciplinary actions taken by the 
Alabama, Pennsylvania, and Minnesota medical boards, which resulted 
from Respondent's long history of substance abuse involving cocaine and 
alcohol. [Id. at 2]. Additionally, the Order described Respondent's 
Memorandum of Agreement (``MOA'') with the DEA, which he entered into 
on July 15, 2003. [Id.]. Most importantly, the Order asserted that 
Respondent failed to comply with federal law relating to controlled 
substances, as evidenced by his recent drug-related felony conviction 
in 2012. [Id.].\20\
---------------------------------------------------------------------------

    \20\ In his plea agreement, Respondent admitted that for six 
years, from on or about August 2005 through on or about July 8, 
2011, he willfully, knowingly, and unlawfully conspired with others 
to dispense testosterone and Primobolan Depot (methenolone), both of 
which are Schedule III controlled substances, in violation of 21 
U.S.C. 841 (a)(1) and 846. [ALJ Exh. 1, at 2]. Pursuant to a plea 
agreement, the Respondent was found guilty in the District Court for 
the Southern District of Alabama, of one count of conspiring to 
dispense and possession with intent to distribute anabolic steroids. 
[Id. at 1-2].
---------------------------------------------------------------------------

    In summary, the Deputy Assistant Administrator alleged that 
Respondent's conduct from September 1997 to February 2012 violated 
multiple state and federal laws. [Id.]. As a result, Respondent was 
given the opportunity to show cause as to why his renewal application 
should not be denied and why his existing registration should not be 
revoked on the basis of such allegations. [Id.]. Respondent was 
personally served with the Order to Show Cause on January 18, 2013. 
[ALJ Exh. 2].
    On February 5, 2013, Respondent, through counsel, timely filed a 
request for a hearing in the above-captioned matter. [ALJ Exh. 3].
    On May 14, 2013 through May 15, 2013, the hearing was held at the 
U.S. Bankruptcy Court in Montgomery, Alabama, with the Government and 
Respondent each represented by counsel. [ALJ Exh. 3-4, 6-7]. At the 
hearing, counsel for the Government called five witnesses \21\ to 
testify and introduced documentary evidence. [Transcript (``Tr.'') 3]. 
Counsel for the Respondent called eight witnesses to testify, including 
the Respondent, and introduced documentary evidence. [Tr. 3, 216].
---------------------------------------------------------------------------

    \21\ At the outset of the hearing, Respondent requested 
sequestration of all of the witnesses. [Tr. 7-8]. I granted the 
request and ordered sequestration of the witnesses, with the 
exception of Mr. Martin Craig Riley and the Respondent. [Id.]
---------------------------------------------------------------------------

    At the beginning of the hearing, I allowed Mr. Jim Hoover \22\ 
(``Mr. Hoover'') to present his arguments on the Motion to Quash 
Subpoena Duces Tecum, which his colleague filed on behalf of Fay 
McDonnell, the Government's first witness, and the APHP. [Tr. 9]. Mr. 
Hoover argued that under Alabama Code Sec. Sec.  34-24-404 and 540-X-
13-.06, APHP must hold physician participation in the program 
``absolutely confidential'' since it is protected by ``a privilege.'' 
[Tr. 11]. Thus, without a participating physician's consent to release 
the information, APHP ``is prohibited from disclosing'' the physician's 
records. [Id.]. Government counsel argued that federal law, 
specifically HIPAA, applies to the physician's records. [Tr. 16]. 
Government counsel explained that, under HIPAA, there is a law 
enforcement exception that would allow for disclosure of the protected 
records. [Id.]. Mr. Hoover responded by explaining that before you can 
consider the exceptions to HIPAA, it is necessary to consider the 
relevant rules under preemption. [Tr. 18]. Mr. Hoover explained that 
HIPAA sets a minimum floor of health information privacy

[[Page 18721]]

protections, but defaults to state laws that are more restrictive than 
the federal law. [Tr. 18-19]. Mr. Hoover added that the Alabama law can 
be analogized to a privilege, which can be waived with a physician's 
consent. [Tr. 19-20]. Mr. Hoover then produced a written consent form 
that was signed by Respondent and accompanied by a cover letter. [Tr. 
25-26; ALJ Exh. 8]. The letter granted consent for the release of all 
drug test results. [Tr. 28-29].
---------------------------------------------------------------------------

    \22\ Mr. Hoover is associated with the law firm of Burr & 
Forman. [Tr. 9]. He appeared on behalf of Cheairs Porter, who serves 
as legal counsel to the Alabama Physician Health Program. [Id.].
---------------------------------------------------------------------------

    Ultimately, I ruled on the subpoena, finding that: (1) Alabama 
Administrative Code establishes a privilege concerning ``[a]ll 
information, interviews, reports, statements, memoranda or other 
documents furnished to or produced by the Alabama Physician Wellness 
Committee. . . .''; (2) the privileged information may only be 
disclosed ``when its release is authorized in writing by the 
physician''; and (3) testimony and documents from APHP ``will be 
considered within the scope of the release only.'' [Tr. 29-31].
    On May 17, 2013, a Protective Order was issued to protect testimony 
and documentary evidence concerning Respondent's participation in APHP 
and his corresponding drug results. [ALJ Exh. 9; see Tr. 27].
    After the hearing, the Government and the Respondent submitted 
Proposed Findings of Fact, Conclusions of Law and Argument (``Gov't 
Brief'' and ``Resp't 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 revoke DEA COR Nos. BK1391729 and 
FK1953327, of Mark P. Koch, D.O., as practitioner, pursuant to 21 
U.S.C. 824(a)(4), and deny any pending applications to renew or modify 
these registrations, pursuant to 21 U.S.C. 823(f), because to continue 
Dr. Koch's registration would be inconsistent with the public interest, 
as that term is defined in 21 U.S.C. 823(f). [ALJ Exh. 4; Tr. 5].

IV. Findings of Fact

A. Stipulated Facts

    The parties have stipulated to the following facts:
    1. The Respondent is registered with the DEA as a practitioner in 
Schedules II through V pursuant to DEA registration number BK1391729 at 
336 Barnes Road, Monroeville, AL 36460. DEA registration number 
BK1391729 expires by its terms on December 31, 2014.
    2. The Respondent is registered with the DEA as a practitioner in 
Schedules II through V pursuant to DEA registration number FK1953327 at 
815 12th Street North, Virginia, MN 55792. DEA registration number 
FK1953327 expired by its terms on December 31, 2012. On or about 
November 21, 2012, Dr. Koch submitted a timely request to renew the 
registration, the registration continues in effect until final action 
is taken by the DEA on the renewal application.
    3. On or about February 24, 2012, the Respondent pled guilty to one 
felony count of conspiracy to dispense and possess with intent to 
distribute anabolic steroids. Government exhibits 22 through 26 refer 
to this criminal case, that is, United States v. Mark Peter Koch, 
United States District Court for the Southern District of Alabama, 
criminal case number 11-00191-001-WS.
    4. On or about July 7, 2011, a federal arrest warrant was executed 
for the Respondent at 336 Barnes Road, Monroeville, Alabama.
    5. The parties stipulate to the prior disciplinary history of 
Respondent in the states of Alabama, Minnesota and Pennsylvania as 
submitted in written form to the ALJ without testimony by any third 
party not involved in those actions, to include:
    Government Exhibits 1 through 8; 10 through 12; 14 through 21; 27 
through 30; 35 and 43.

[ALJ Exh. 6; Tr. 6].

B. Respondent's Licensure and Employment

    Dr. Koch holds an active, conditional license \23\ as a doctor of 
osteopathy in the state of Alabama, as well as a state certificate of 
registration to handle controlled substances in Schedules II through V. 
[Gov't Ex. 31, at 1]. Respondent has maintained DEA COR No. BK1391729 
with a registered address of 336 Barnes Road, Monroeville, Alabama 
36460.\24\ [Tr. 184-85].
---------------------------------------------------------------------------

    \23\ The details of Respondent's Alabama medical license and 
state registration to handle controlled substances were admitted 
into the record without objection. [Tr. 95; Gov't Ex. 31].
    \24\ After Respondent's divorce, this address became a location 
where he would see patients a few days a week. [Tr. 184]. Respondent 
explained he has since returned to using this address as his 
permanent residence. [Tr. 185].
---------------------------------------------------------------------------

    Respondent also holds an active license \25\ as a physician and 
surgeon in Minnesota. [Gov't Ex. 32, at 1]. Respondent has maintained 
DEA COR No. FK1953327 with a registered address of 815 12th Street 
North, Virginia, Minnesota 55792. [Tr. 186-87]. On January 31, 2013, 
Respondent was not available at his registered address to accept 
mail.\26\ During his testimony, Respondent explained that he uses 
Monroeville, Alabama as a mailing address for both of his DEA CORs 
because it remains his permanent address. [Id.].
---------------------------------------------------------------------------

    \25\ The details of Respondent's Minnesota medical license and 
state registration to handle controlled substances were admitted 
into the record without objection. [Tr. 95-96; Gov't Ex. 32].
    \26\ DI Riley was called back to testify about an envelope, 
which DEA sent to Respondent's registered address, but which was 
returned as ``undeliverable as addressed, forwarding order expired'' 
on January 31, 2013. [Tr. 269]. On cross-examination, DI Riley 
admitted he first saw the envelope one day earlier when Government 
counsel gave it to him. [Tr. 270]. DI Riley also acknowledged that 
the physical address and mailing address for a registration can be 
different. [Id.]. DI Riley clarified that the significance of the 
``undeliverable'' stamp is that there should be someone at the 
physical address, who recognizes Respondent and can deliver the 
mail. [Tr. 271]. DI Riley agreed with Respondent's counsel, however, 
that the purpose of a mailing address is to identify where mail 
should be sent. [Tr. 272]. On the other hand, DI Riley asserted that 
it is the duty of a DEA registrant to be located at a registered 
address. [Tr. 273]. No legal basis was offered in support of this 
duty. [See Gov't Brief, at 7]. Respondent's counsel objected to 
admission of the envelope into evidence. [Tr. 275]. The envelope was 
ultimately admitted into the record over Respondent's objection and 
labeled as Government Exhibit 44. [Tr. 276; Gov't Ex. 44].
---------------------------------------------------------------------------

    Dr. Koch is currently employed by Wapiti Medical Center (``WMC''). 
[Tr. 120]. Although WMC is based in South Dakota, Respondent physically 
works in Minnesota, taking shifts in the emergency room. [Id.]. 
Respondent has previously worked in several emergency rooms in 
Minnesota, as well as emergency rooms located in Thomasville, Camden, 
Brooke, and Luverne Hospital in Alabama. [Tr. 127-28]. After 
Respondent's Alabama medical license was temporarily reinstated in 
2010, he became responsible for the emergency room and for an 
outpatient clinic. [Tr. 128]. He was also the director of a nursing 
home. [Id.]. However, in January 2013, the hospital that owned the 
clinic went bankrupt. [Id.]. Since the end of February 2013, Respondent 
has primarily worked as a ``locum tenens'' in Minnesota. [Id.].

C. Respondent's History of Drug Abuse

    Dr. Koch testified that he has had ``a long history of substance 
abuse.'' [Tr. 120]. He estimated that this addiction lasted from 1985 
to 2005. [Tr. 120]. Dr. Koch admitted on cross-examination that the 
primary drugs he abused were cocaine and alcohol. [Tr. 144]. 
Specifically, he testified that he used cocaine four or five times a 
year when he was out of the country in the Caribbean. [Tr. 144]. He 
admitted to

[[Page 18722]]

consuming a few grams of cocaine on each occasion. [Tr. 145]. He also 
used to drink alcohol approximately three times a week, drinking up to 
eight or ten cans of beer during each episode. [Id.].

D. Respondent's Participation in Drug Monitoring Programs

    Respondent has participated in mandatory and voluntary drug 
monitoring programs for several years in two different states. 
Respondent specifically testified that he was continuously monitored 
for drug use in Pennsylvania from 1997 to 2005.\27\ [Tr. 186]. He has 
also been monitored in Alabama from 2005 \28\ to the present. [Id.]. In 
2007, when Respondent's Alabama license to practice medicine was 
restored, Respondent testified that he was required to participate in 
the Alabama Physician Health Program (``APHP'') until the medical 
board's order expired in July 2010. [Tr. 121]. After the order expired, 
Dr. Koch said he voluntarily remained in APHP. [Id.]. Respondent 
recalled that from 2010 to 2012, he voluntarily participated in drug 
screening by urine analysis. [Tr. 123-24].
---------------------------------------------------------------------------

    \27\ For purposes of clarification, documentary evidence of 
Respondent's drug-testing through PHM in Pennsylvania actually 
indicate the results of drug tests as late as June 2006. [Gov't Ex. 
17, at 56].
    \28\ When Respondent consented to the release of all drug-
testing records at APHP, Respondent said he consented to all results 
from 2005 to 2011, since it was his impression that these were the 
only test results APHP has on him. Government counsel tried to show 
that Respondent did not consent to release of all of the records 
[see ALJ Exh. 8], however, Respondent credibly testified that he did 
not participate in APHP prior to 2005. [Tr. 189]. Respondent 
clarified that he has continuously participated in APHP from 2005 to 
the present, sometimes voluntarily. [Tr. 190].
---------------------------------------------------------------------------

    Under the APHP monitoring program, Respondent explained that he 
could not select the type of testing conducted, since this decision was 
made by the supervising physician, Dr. Skipper. [Tr. 168]. Respondent 
added that he similarly lacked control over when the testing occurred 
because the date on which he had to submit urine samples was randomly 
generated by a computer. [Tr. 125, 137]. In the past, the Respondent 
said he had to ``make arrangements'' while working a shift in order to 
ensure that his urine sample made it to the clinic for testing by the 
deadline of four o'clock in the afternoon. [Tr. 138]. He testified that 
he had never missed a random drug screening. [Tr. 122, 138]. This 
testimony, however, was squarely refuted by Respondent's drug-testing 
results, which showed he missed twelve drug tests from July 2002 to 
February 2005. [Gov't Ex. 17, at 53-55]. Respondent also testified that 
he had submitted all of the quarterly reports required by worksite 
monitors. [Tr. 137]. No documentary evidence in the record refutes this 
claim. During his testimony, Respondent added that he generally did not 
know the results of each test, but explained that he would have been 
notified by APHP, if the results of the test were positive. [Tr. 124].
    Fay Donnell (``Ms. McDonnell'') \29\ confirmed that Respondent 
participated in APHP drug-testing both voluntarily and in response to 
the conditions of state licensing board orders. Ms. McDonnell 
specifically testified that Respondent came under agreement with APHP 
to participate in random drug-testing in 2005. [Tr. 39]. Records 
associated with Respondent's participation in APHP have been maintained 
by the program coordinator.\30\ [Tr. 34]. The APHP records include the 
results of any positive or negative drug tests, as well as any missed 
drug tests or ``no-show[s].'' [Tr. 38]. However, Ms. McDonnell 
explained that APHP only has complete records from 2008 to the present. 
[Tr. 39]. The records presently available to APHP from 2005 to 2008 are 
only positive test results due to a change in the drug-testing 
contract. [Tr. 40]. According to the records, Respondent does not have 
any positive results in his file for this time period. [Id.].
---------------------------------------------------------------------------

    \29\ As the program coordinator of APHP, Ms. McDonnell 
maintained physician records, scanned documents for case files, took 
phone calls, and coordinated the physicians' schedules around their 
drug-testing requirements. [Tr. 34-35].
    \30\ Fay McDonnell is the former program coordinator of APHP. 
[Tr. 34]. She served in this role from March 2007 to January 2013. 
[Tr. 36]. She retrieved Respondent's record in response to the 
subpoena duces tecum. Ms. McDonnell currently works as a case 
manager of individual physicians in APHP. [Tr. 35].
---------------------------------------------------------------------------

    Ms. McDonnell recalled that Respondent consented to the release of 
records from 2005 to the present. [Tr. 44].\31\ Ms. McDonnell testified 
that the date entered into the computer to fulfill the subpoena request 
was 1994, but the first record that appeared in Respondent's file was 
January 25, 2008. [Id.]. Ms. McDonnell credibly testified that in 
anticipation of this hearing, she made two certifications of documents 
from Respondent's APHP file. The first certification \32\ occurred on 
June 1, 2012 and the second certification \33\ occurred on May 1, 2013. 
[Tr. 41]. The second certification corrected a previous error where Ms. 
McDonnell had incorrectly stated that Respondent's first anabolic 
steroid test \34\ on July 18, 2011 \35\ test was a hair test, not a 
urine analysis. [Tr. 46; see also Resp't Ex. 1(A), at 3]. The error was 
brought to Ms. McDonnell's attention by Government counsel. [Tr. 46]. 
Ms. McDonnell testified that she did not decide what type of test 
should be ordered for each physician. [Tr. 47-48]. She explained, 
however, that she could determine what test had been administered from 
the documentation in the case file. [Tr. 48]. When commenting 
specifically on Respondent's test for steroids, which she initially 
mischaracterized as a hair sample, Ms. McDonnell explained that 
Respondent had not been able to provide a sufficient hair sample for 
the anabolic steroid test, so it was reordered \36\ as a urine 
analysis. [Tr. 49-50; see also Resp't Ex. 1(B), at 3, 7].\37\ Ms. 
McDonnell's testimony was sufficiently detailed, consistent, and 
plausible to be fully credited in this recommended decision.
---------------------------------------------------------------------------

    \31\ The release requested ``all drug screens that [the 
Respondent] has passed since voluntarily enrolling into the 
program.'' [ALJ Exh. 8]. However, the record demonstrates that the 
Respondent had a positive drug test in December of 2004. [Gov't Ex. 
17, at 48]. Also, positive test results from 2001 to 2005 and missed 
urine tests were documented. [Id. at 49-56].
    \32\ The original certification was admitted into evidence 
without objection. [Tr. 51; Resp't Ex. 1(A)]. Respondent's Exhibit 
1(A) is the original copy of Respondent's records from APHP that Ms. 
McDonnell certified. Ms. McDonnell admitted during her testimony 
that this was the certification the Alabama Commission relied on in 
2012 when hearing Respondent's case. [Tr. 47]. I will deny the 
Government's motion to exclude this exhibit from evidence, since I 
find Ms. McDonnell's testimony on the document, her error, and the 
correction credible. [Gov't Brief, at 36, 38].
    \33\ The revised certification was admitted into evidence 
without objection. [Tr. 51; Resp't Ex. 1(B)]. Respondent's Exhibit 
1(B) is the updated copy of Respondent's records from APHP that Ms. 
McDonnell certified. Ms. McDonnell testified that she certified the 
second set of documents, even though she no longer served as the 
program coordinator, since she made the error on the first 
certification. [Tr. 42-43]. I will deny the Government's motion to 
exclude this exhibit from evidence, since I find Ms. McDonnell's 
testimony on the document, her error, and the correction credible. 
[Gov't Brief, at 36, 38].
    \34\ From the record and Ms. McDonnell's testimony, July 18, 
2011 appears to be the first date that Respondent was tested for 
anabolic steroids. [Tr. 52; see also Resp't Ex. 1(B), at 7]. This 
occurred just over a week after Respondent was arrested on drug-
related felony charges.
    \35\ Respondent incorrectly recalled that he was first tested 
for steroids through a hair sample in January or February of 2013 by 
APHP. [Tr. 123-24].
    \36\ Respondent incorrectly testified that he provided a hair 
sample on two occasions for the steroid test, explaining that the 
first test resulted in an insufficient sample and the second test to 
his knowledge was negative. [Tr. 124].
    \37\ Respondent clarified on recross-examination that in January 
of 2012, while he was under voluntary contract with the physician 
monitoring program, he was asked to give a hair sample. [Tr. 202]. 
Respondent maintains that he had shaved his whole body since at 
least 1998, but as long ago as the 1980's. [Tr. 204]. Furthermore, 
there was not a lab nearby that would do the fingernail testing as 
an alternative. [Tr. 202-03]. Respondent says he has since grown 
chest hair in order to comply with the January 2012 Alabama Board 
Order. [Tr. 203].

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

[[Page 18723]]

E. Federal Investigations of Respondent

1. Drug Enforcement Administration (DEA)
    In February 2000, Kurt Dittmer (``Supervisor Dittmer'') \38\ 
investigated Respondent's renewal application for his Pennsylvania 
registration, since Respondent had checked ``yes'' to whether the 
applicant had previous ``liability issues'' with licensing 
organizations or law enforcement. [Tr. 58]. Dr. Koch's positive 
response to the liability question on his application concerned his use 
of cocaine while on vacation in the Caribbean. [Tr. 59]. During a phone 
conversation, Respondent told Supervisor Dittmer that he had tested 
positive for his cocaine use through a urine analysis. [Tr. 60]. 
Respondent told Supervisor Dittmer that his state of Pennsylvania 
medical license was subsequently put under active suspension. [Id.] 
\39\ Once Respondent indicated he was represented by an attorney, 
Supervisor Dittmer said he contacted the attorney, Grant Palmer, for 
further questioning. [Tr. 60-61].
---------------------------------------------------------------------------

    \38\ Supervisor Dittmer has been employed by the DEA for 18 
years. [Tr. 56]. He was initially trained as a Diversion 
Investigator for the DEA, but returned to Quantico, Virginia in 2005 
to train as a Group Supervisor. [Tr. 57]. Supervisor Dittmer is 
responsible for overseeing 20,000 registrants in 27 counties of 
western Pennsylvania. [Id.]. The registrants include methadone 
clinics, physicians, dentists, and pharmacies. [Id.].
    \39\ Respondent's attorney at the time of the investigation 
helped confirm that Respondent did not write any prescriptions for 
controlled substances while his medical license was under 
suspension. [Tr. 64].
---------------------------------------------------------------------------

    Supervisor Dittmer credibly testified that at the time of the 
investigation, Respondent had a valid medical license in Pennsylvania, 
but explained that the license was subject to probationary conditions. 
[Tr. 61].\40\ At this point in the investigation, Supervisor Dittmer 
said that he memorialized his findings in a report and renewed 
Respondent's registration. [Tr. 64]. DEA was satisfied that the 
probationary conditions, which involved monitoring through drug-
testing, were sufficient protections to support renewal of Respondent's 
registration. [Tr. 65]. Supervisor Dittmer's testimony was sufficiently 
detailed, consistent, and plausible to be fully credited in this 
recommended decision.
---------------------------------------------------------------------------

    \40\ Supervisor Dittmer testified that he told Respondent's 
attorney during the investigation that while Respondent's medical 
license had been suspended, Respondent should have surrendered his 
registration. [Tr. 62]. Supervisor Dittmer did not provide the legal 
basis for such testimony. I find it noteworthy that neither the 
statutes, nor DEA regulations define such a responsibility, as 
described by Supervisor Dittmer, which requires a registrant to 
surrender their registration in the event that their medical license 
is suspended.
---------------------------------------------------------------------------

    In 2003, Frank Younker (``Supervisor Younker'') \41\ came into 
contact with Respondent when he was asked by the Philadelphia office to 
investigate an application filed by the Respondent for renewal of his 
Pennsylvania registration. [Tr. 68]. Similar to Supervisor Dittmer's 
testimony, Younker's investigation began when Respondent checked 
``yes'' to the liability question on the application. [Id.]. Respondent 
indicated on the application that he had a history of drug abuse and 
was currently participating in a monitoring agreement with the board of 
medicine in Pennsylvania. [Id.].
---------------------------------------------------------------------------

    \41\ Supervisor Younker has been employed with DEA for 28 years. 
[Tr. 67]. He has worked as a Senior Investigator and Group 
Supervisor out of the Cincinnati Resident Office. [Id.]. His 
responsibilities include attending training sessions at Quantico, 
Virginia, conducting investigations, and interviewing registrants. 
[Tr. 68].
---------------------------------------------------------------------------

    As part of the investigation, Supervisor Younker contacted the 
Pennsylvania State Board of Osteopathic Medicine (``SBOM''). [Tr. 69]. 
The SBOM indicated that they were ``acting on behalf of something that 
was done in Alabama.'' [Tr. 70]. Specifically, Younker added that it 
concerned Respondent's cocaine and alcohol abuse. [Id.]. Since 
Supervisor Younker was aware of Supervisor Dittmer's prior 
investigation, Younker testified that he decided to offer Respondent 
the opportunity to enter into a memorandum of agreement (``MOA'') \42\ 
with the DEA concerning his application. [Id.].
---------------------------------------------------------------------------

    \42\ Government Exhibit 9 was identified by Supervisor Younker 
during his testimony as the Memorandum of Agreement. [Tr. 71]. The 
MOA was signed by Dr. Koch on June 30, 2003 and signed by Diversion 
Program Manager for the Philadelphia Field Division, Ann L. Carter, 
on July 15, 2003. [Gov't Ex. 9; Tr. 74, 77]. Government Exhibit 9 
was admitted into evidence without objection. [Tr. 76].
---------------------------------------------------------------------------

    Supervisor Younker explained that his decision to draft an MOA was 
prompted by Respondent's past history of drug use and non-compliance. 
[See Tr. 70-71]. In drafting the MOA, Younker credibly testified that 
he took into account Dr. Koch's past history of drug use, non-
compliance with monitoring, adverse actions by state medical boards, 
and current employment status. [Tr. 72]. Supervisor Younker said of the 
MOA, ``[i]t's not like a cookie cutter document.'' [Id.].
    Under the MOA, Respondent was not only required to abide by all 
federal and state laws, he was also required to abide by monitoring and 
treatment programs in Pennsylvania and maintain logs of all controlled 
substances he prescribed for two years, which would allow DEA to 
identify any unusual prescribing habits.\43\ [Tr. 72, 77-78]. 
Additionally, Respondent was prohibited under the MOA from possessing 
any controlled substances, unless he had a legitimate medical 
prescription. [Tr. 73]. He was also prohibited from prescribing, 
dispensing or administering controlled substances to a family member 
and prohibited from purchasing or prescribing controlled substances for 
himself. [Id.].
---------------------------------------------------------------------------

    \43\ Supervisor Younker testified that he would not actively 
seek out information concerning Respondent's unusual prescribing 
habits. [Tr. 79]. He would only rely on information that was 
provided to him by Respondent, the required log, or the prescription 
monitoring program (``PMP''). [Tr. 80].
---------------------------------------------------------------------------

    While the MOA was in effect, from July 15, 2003 through July 15, 
2005, Supervisor Younker was not aware of any violations committed by 
Respondent when Younker left the office in November 2004. [Tr. 75, 78; 
Gov't Ex. 9, at 2]. However, during his testimony, Respondent was shown 
the MOA written by Supervisor Younker in 2003. [Gov't Ex. 9; Tr. 161]. 
Respondent admitted that he, prior to 2005, failed to comply with the 
conditions of the MOA that prohibited him from possessing or purchasing 
controlled substances for personal or office use and that also 
prohibited him from prescribing, dispensing, or administering 
controlled substances to relatives. [Gov't Ex. 9, at 1-2; Tr. 161]. 
Supervisor Younker's testimony was sufficiently detailed, consistent, 
and plausible to be fully credited in this recommended decision.
    In April 2012, Martin Craig Riley (``DI Riley'') \44\ began an 
investigation of Respondent on the basis of a notice he received from 
the Alabama State Board of Medical Examiners, Medical Licensure 
Commission (``SBME''), which indicated that Respondent's Alabama 
medical license \45\ had been temporarily suspended. [Tr. 82.]. The 
suspension was in response to Respondent having pled guilty to a 
``conspiracy to distribute and possess with intent to distribute 
anabolic steroids'' \46\ DI Riley confirmed this information from 
public records on the board of medical examiner's Web site

[[Page 18724]]

and from its investigator, William Perkins. [Tr. 83].
---------------------------------------------------------------------------

    \44\ DI Riley has spent 25 years as a Diversion Investigator 
with DEA. [Tr. 81-82]. His responsibilities include conducting 
regulatory, civil and criminal investigations arising out of 
individuals and corporations who are registered with the DEA. [Tr. 
82].
    \45\ Government Exhibit 31 contains the details of Respondent's 
Alabama medical license. [Tr. 94]. This exhibit was identified by DI 
Riley and admitted into evidence. [Tr. 94-95].
    \46\ [Gov't Ex. 25, at 1]. Government Exhibits 22-26 are 
stipulated to and admitted into evidence. [Tr. 90].
---------------------------------------------------------------------------

    During the investigation, DI Riley testified that he also 
discovered Respondent held DEA registrations in Alabama and 
Minnesota.\47\ [Tr. 84]. DI Riley clarified that Respondent no longer 
had a DEA registration in Pennsylvania, even though he maintained an 
active medical license in Pennsylvania. [Tr. 84, 96]. Additionally, DI 
Riley explained that he had obtained orders from the Pennsylvania 
Medical Board \48\ concerning Respondent's cocaine use, orders from the 
Alabama Medical Board \49\ concerning Respondent's cocaine and alcohol 
abuse, and an order from the Minnesota Medical Board \50\ concerning 
Respondent's felony conviction involving anabolic steroids.\51\ 
Attached to one of the orders in Pennsylvania was a letter \52\ from 
Dr. Koch to Kevin Knight, program director, at the Bureau of 
Professional and Occupational Affairs in Pennsylvania. [Tr. 87]. In the 
letter, Respondent admitted to a positive drug screen in December 2004. 
[Gov't Ex. 13; Tr. 87]. DI Riley credibily testified that the 
monitoring required by the state medical board orders involved random 
drug-testing, and the Alabama Order required testing through hair 
samples. [Tr. 85]. DI Riley's testimony was sufficiently detailed, 
consistent, and plausible to be fully credited in this recommended 
decision.
---------------------------------------------------------------------------

    \47\ Dr. Koch had explained to DI Riley he wanted to obtain a 
DEA registration in Minnesota so that he could work as a locum 
tenens physician in Minnesota. [Tr. 86].
    \48\ Government Exhibits 2-4, 7-8, 17, 20, 30 are Pennsylvania 
Medical Board orders that were stipulated to by the parties and 
admitted into evidence. [Tr. 89].
    \49\ Government Exhibits 1, 5, 6, 12, 14-16, 18-19, 21, 27-29 
are Alabama Medical Board orders that were stipulated to by the 
parties and admitted into evidence. [Tr. 89]. Similarly, Government 
Exhibits 10 and 11 are additional orders stipulated to and admitted 
into evidence. [Tr. 91-92].
    \50\ Government Exhibit 43 is a Minnesota Medical Board order 
stipulated to by the parties and admitted into evidence. [Tr. 89]. A 
professional profile of Respondent is available on the Minnesota 
Board of Medical Practice's Web site, which includes the status of 
his license. This information was proposed Government Exhibit 32. 
[Tr. 95-96]. It was identified by DI Riley through his testimony and 
admitted into evidence without objection. [Id.; Gov't Ex. 32].
    \51\ DI Riley indicated that part of the charge, which 
Respondent pled guilty to, was ``self-using the anabolic steroids.'' 
[Tr. 84]. Even though Count I of the indictment makes no mention of 
consumption of anabolic steroids [Gov't Ex. 23, at 1], such conduct 
is included in the factual resume of the indictment [Gov't Ex. 25, 
at 14]. ``Mark Peter Koch, a physician practicing in Camden, Alabama 
and Monroeville, Alabama, purchased, consumed, and trafficked 
anabolic steroids.'' [Gov't Ex. 25, at 14]. The factual resume also 
reveals that Respondent: (1) discussed pending purchases of anabolic 
steroids with co-defendants; (2) contributed money to purchases of 
steroids; (3) acquired drugs that appeared to be manufactured in 
``underground labs''; and (4) acquired drugs that exceeded 300 
grams. [Id.].
    \52\ During his testimony, DI Riley identified Government 
Exhibit 13 as a letter sent by Dr. Koch. [Tr. 87]. This exhibit was 
admitted into evidence, without objection. [Id.; Gov't Ex. 13].
---------------------------------------------------------------------------

2. Federal Bureau of Investigation (FBI)
    Jeffrey Young (``Agent Young'') \53\ credibly testified that he was 
involved in Dr. Koch's arrest for drug-related felony charges. On July 
7, 2011, Agent Young was at the Mobile, Alabama headquarters 
communicating with both management and the arrest team by telephone 
when Respondent was arrested for felony charges related to anabolic 
steroids. [Tr. 101].\54\ Agent Young's testimony was sufficiently 
detailed, consistent, and plausible to be fully credited in this 
recommended decision.
---------------------------------------------------------------------------

    \53\ Agent Young has worked for the Federal Bureau of 
Investigation (FBI) for over nine years as a special agent. [Tr. 
98]. His responsibilities include investigating crimes involving 
white collar, violent crime, and crimes with national security 
issues. [Tr. 99].
    \54\ I ruled that any testimony concerning the uncharged 
misconduct at the time of the arrest is inadmissible because the 
witness has no personal knowledge of the conduct. [Tr. 102-03, 105].
---------------------------------------------------------------------------

F. Respondent's State Disciplinary Actions

1. Alabama State Board of Medical Examiners; Licensure Commission
    In 1997, Respondent voluntarily agreed to abstain from alcohol and 
drugs, as well as participate in a drug-testing program that complied 
with the aftercare requirements of Talbot Recovery Campus (``Talbot''). 
[Gov't Ex. 1, at 1-2]. The Alabama State Board of Medical Examiners 
(``SBME'') maintained the discretion to remove these restrictions from 
Respondent's license, if he demonstrated compliance. [Id. at 1]. 
However, in the following years, he failed to do so. [Tr. 146].
    On January 25, 2000, the SBME filed an administrative complaint 
\55\ against Dr. Koch in response to disciplinary actions taken against 
him in Pennsylvania and evidence indicating Respondent had violated the 
voluntary restrictions placed against his medical license in Alabama. 
[Gov't Ex. 5, at 1]. In the complaint, the SBME requested revocation of 
Respondent's medical license. [Id. at 4].
---------------------------------------------------------------------------

    \55\ This Administrative Complaint was admitted into the record 
without objection. [Tr. 89; Gov't Ex. 5].
---------------------------------------------------------------------------

    In June of 2000, the SBME made factual findings and legal 
conclusions, which supported the revocation of Respondent's medical 
license.\56\ [Gov't Ex. 6, at 3; Tr. 155]. As a result, Respondent lost 
his license to practice medicine in the state of Alabama.
---------------------------------------------------------------------------

    \56\ Government counsel asked Respondent whether he notified DEA 
that he no longer had state authority to handle controlled 
substances in Alabama. [Tr. 155]. Respondent said he had not, 
because his DEA registration was in Pennsylvania at the time. [Id.]. 
Respondent believes he switched his DEA registration to Alabama most 
recently in 2000. [Id.]. Again, Government has not provided the 
legal basis for a registrant's responsibility to notify the DEA of 
his loss of state authority to prescribe controlled substances.
---------------------------------------------------------------------------

    Then, in March 2004, the Alabama SBME issued the Respondent an 
Order to Show Cause,\57\ which asked Respondent to ``show cause, if any 
he has, why [his] request for reinstatement [of his medical license] 
should not be denied.'' [Gov't Ex. 10; Tr. 162]. Respondent testified 
that at the time of this Order and corresponding hearing, his DEA COR 
was in Pennsylvania and he had no intention of maintaining an Alabama 
medical license for purposes of a DEA COR registered in Alabama. [Tr. 
162-63].\58\
---------------------------------------------------------------------------

    \57\ The Order to Show Cause was admitted into the record 
without objection. [Tr. 92; Gov't Ex. 10].
    \58\ Respondent added that his DEA registration was in 
Pennsylvania from 1997 until 2007. [Tr. 163]. However, in previous 
testimony, he said he had reassigned his DEA registration to Alabama 
as recent as 2000. [Tr. 155]. I have noted the inconsistency in 
Respondent's testimony, but I do not find that it affects his 
credibility.
---------------------------------------------------------------------------

    Later, in May 2004, the Alabama SBME ordered \59\ reinstatement of 
his medical license. However, conditions were ordered, to include that 
the Respondent is to participate in APHP, which included drug-testing 
for controlled substances and alcohol using hair samples. [Gov't Ex. 
11, at 1]. Respondent explained that he did not comply with this Order 
since he decided not to pursue an Alabama medical license. [Tr. 164]. 
Respondent also explained that he never filled out the paperwork in 
order to obtain a license in Alabama. [Id.]. He alleged that he told 
both his attorney and the Alabama SBME that he was not going to pursue 
a license at that time. [Tr. 165]. Consequently, Respondent's privilege 
to have an Alabama license was withdrawn \60\ as a result of 
Respondent's failure to comply with the May 2004 Order. [Gov't Ex. 12; 
Tr. 165].
---------------------------------------------------------------------------

    \59\ This Order was admitted into the record without objection. 
[Tr. 92; Gov't Ex. 11].
    \60\ This Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 12].
---------------------------------------------------------------------------

    When testifying on this issue, Respondent admitted that prior to 
2005 he was in a ``power struggle with the Alabama Physician Recovery 
Network and the Board of Medicine'' because he was not cooperative and 
not willing to acknowledge he had a drug problem. [Gov't Ex. 8, at 5 ] 
13; Tr. 158]. During this time, the Alabama SBME remarked that 
Respondent did not see his ``use of

[[Page 18725]]

illegal drugs and other mood altering substances as inappropriate.'' 
[Gov't Ex. 8, at 9]. Respondent credibly admitted in his testimony that 
he was told multiple times to stop using illegal drugs prior to 2005, 
but he failed to comply. [Tr. 160].
    When Respondent was released from a rehabilitation program in 2005, 
he sought reinstatement of his medical license in Alabama. [Gov't Ex. 
14; Tr. 167]. The state of Alabama again issued an Order to Show Cause 
\61\ on May 26, 2005 for Respondent to appear and explain why his 
reinstatement should not be denied. [Gov't Ex. 14, at 1; Tr. 167]. 
Respondent attended the administrative hearing, which took place on 
September 28, 2005. [Gov't Ex. 15; Tr. 167]. In an order \62\ issued 
October 4, 2005, the Alabama SBME concluded that Dr. Koch had ``failed 
to present sufficient evidence to warrant the reinstatement of his 
license.'' [Gov't Ex. 15, at 1].
---------------------------------------------------------------------------

    \61\ The Order to Show Cause was admitted into the record 
without objection. [Tr. 89; Gov't Ex. 14].
    \62\ The Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 15].
---------------------------------------------------------------------------

    Nonetheless, on October 2, 2006, an order \63\ reinstated 
Respondent's medical license on the condition that Respondent maintain 
an indefinite contract with APHP. [Gov't Ex. 16; Tr. 168]. According to 
the October 2006 Order, Respondent was to provide hair samples, 
although Respondent testified that in reality the method of drug-
testing was up to Dr. Skipper at APHP. [Gov't Ex. 16, at 1; Tr. 168, 
200].\64\
---------------------------------------------------------------------------

    \63\ The Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 16].
    \64\ During this part of the testimony, Government counsel tried 
to prove Respondent's non-compliance with the Board Order since he 
did not provide hair samples for drug-testing. [See Tr. 168-70]. 
However, I find this line of inquiry carries little weight since 
Respondent provided urine samples in accordance with the 
requirements of Dr. Skipper's program at APHP and the Alabama SBME 
mandated Respondent's participation in APHP. [Gov't Ex. 16, at 1; 
Tr. 168, 200].
---------------------------------------------------------------------------

    On June 28, 2007, the Alabama SBME issued an order \65\ indicating 
that an administrative hearing took place and Respondent had been in 
attendance. [Gov't Ex. 18, at 1]. Furthermore, the SBME found that 
Respondent's request for amendment of his license ``is due to be 
granted.'' [Id.]. Respondent was conditionally permitted to practice 
medicine in Frisco City, Alabama for Tri County Medical Center. [Id.].
---------------------------------------------------------------------------

    \65\ The Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 18].
---------------------------------------------------------------------------

    On July 30, 2008, all restrictions were removed from Respondent's 
Alabama medical license through an order.\66\ [Gov't Ex. 19]. However, 
the order clarified that Respondent was nonetheless required to 
maintain a contract with APHP. [Id.]. The order also required random 
drug-testing through the use of hair samples. [Id.].
---------------------------------------------------------------------------

    \66\ The Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 19].
---------------------------------------------------------------------------

    On July 13, 2010, the Alabama SBME issued an order \67\ that lifted 
all restrictions from Respondent's license. [Gov't Ex. 21; Tr. 175]. 
Most noteworthy was the condition to participate in APHP indefinitely, 
which was removed so that Respondent held a ``full unrestricted 
licenses to practice medicine in Alabama.'' [Gov't Ex. 21; Tr. 175].
---------------------------------------------------------------------------

    \67\ This Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 21].
---------------------------------------------------------------------------

    However, on April 18, 2012, the Alabama SBME ``immediately 
suspended'' \68\ Dr. Koch's license to practice medicine and osteopathy 
as a result of his felony conviction. [Gov't Ex. 27, at 1; Tr. 179-80]. 
The Alabama SBME subsequently placed Respondent on ``indefinite 
probation,'' which required Respondent to once again ``maintain, 
indefinitely, a contract with the Alabama Physicians Health Program.'' 
[Gov't Ex. 29, at 4; Tr. 180-81]. The order \69\ specified that ``[i]f, 
at any time, Dr. Koch shall have insufficient hair and/or nails to 
perform a valid test, he will, in such event, be considered to have had 
a positive test and he will be referred to the Medical Licensure 
Commission for appropriate action.'' [Gov't Ex. 29, at 4]. After the 
Respondent's arrest on July 7, 2011, he voluntarily called the APHP and 
requested a drug test for steroids. [Tr. 190-91]. This test was 
negative. [Resp't Ex. 1(B), at 3; Tr. 124].
---------------------------------------------------------------------------

    \68\ The Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 27]. Respondent testified that he did not report 
the suspension to the DEA. [Tr. 180]. Respondent's initial hearing 
date of June 20, 2012 was extended to July 25, 2012, through an 
Order of Continuance, which was admitted into the record. [Tr. 89; 
Gov't Ex. 28].
    \69\ This Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 29]. Under this Order Respondent was fined 
$10,000.00 and required to pay the administrative fees associated 
with the hearing. [Gov't Ex. 29, at 4].
---------------------------------------------------------------------------

    Before returning to the practice of medicine, the April 2012 Order 
also required Respondent to seek ``prior approval'' for ``a detailed 
plan of practice'' from the Alabama SBME. [Id.]. Respondent testified 
that he submitted such plan and it was approved. [Tr. 181-82]. 
Respondent indicated that the plan involved him practicing family and 
emergency medicine in Mobile, Alabama and practicing as a locum tenens 
for emergency rooms in Minnesota. [Id.].
2. Pennsylvania State Board of Osteopathic Medicine
    In 1998, the Pennsylvania State Board of Osteopathic Medicine 
(``SBOM'') issued a consent agreement and order \70\ acknowledging the 
voluntary restrictions Respondent had agreed to in Alabama as a result 
of his cocaine use. [Gov't Ex. 2, at 2]. Even though Respondent's 
license could have been suspended for three years because of 
disciplinary actions against his license in Alabama, the SBOM of 
Pennsylvania ruled that the suspension would be ``stayed in favor of 
probation.'' [Id.].
---------------------------------------------------------------------------

    \70\ This Order was admitted into evidence without objection. 
[Tr. 89; Gov't Ex. 2].
---------------------------------------------------------------------------

    However, in 1999, the stay was ``VACATED'' and the probationary 
period ``TERMINATED'' in an order \71\ concerning Dr. Koch's medical 
license in Pennsylvania.\72\ [Tr. 148-49; Gov't Ex. 3]. Respondent was 
ordered to ``immediately cease practicing the profession'' for a 
duration of three years. [Gov't Ex. 3, at 1]. When asked about the 
order during his testimony, Respondent did not recall the details of 
the suspension, explaining that he was never even informed of the 
details regarding the positive drug test that he believes triggered the 
suspension. [Gov't Ex. 3, at 6; Tr. 150]. Respondent said he thought 
the positive drug was caused by an injection of pain medication \73\ 
into his back during a visit to the emergency room. [Tr. 149]. 
Respondent's confusion is easily resolved by the factual findings in a 
subsequent Consent Agreement and Order,\74\ which indicated that 
Respondent tested positive for cocaine on September 29, 1999 in 
violation of the SBOM's 1998 Order. [Gov't Ex. 3, at 6; Gov't Ex. 4, at 
3; Tr. 150]. The Consent Agreement and Order also indicated that 
Respondent was required to enroll in the Talbot for a minimum of 96 
hours of assessment. [Gov't Ex. 4, at 3-4]. Also, he was again ordered 
to stop using controlled substances. [Gov't Ex. 4, at 10]. Respondent 
credibly admitted during his testimony that he failed to comply. [Tr. 
153-54]. The

[[Page 18726]]

Respondent did not report this suspension to the DEA. [Tr. 148-49].
---------------------------------------------------------------------------

    \71\ This Order was admitted into evidence without objection. 
[Tr. 89; Gov't Ex. 3].
    \72\ Government counsel asked Respondent whether he notified DEA 
of the suspension. [Tr. 149]. Respondent replied in the negative. 
[Id.]. Government has not provided the legal basis for a 
registrant's responsibility to notify the DEA of a suspended medical 
license. Thus, the relevance of this question is unclear.
    \73\ The Order indicates that the ``completely synthetic 
drugs,'' which Respondent said were injected into his back for pain, 
``would not register as cocaine metabolites on a urine screen 
test.'' [Gov't Ex. 3, at 7].
    \74\ This Order was admitted into evidence without objection. 
[Tr. 89; Gov't Ex. 7].
---------------------------------------------------------------------------

    On July 3, 2001, an adjudication \75\ and order \76\ by the 
Pennsylvania SBOM suspended Respondent's medical license indefinitely, 
with the possibility of it being restored should Respondent comply with 
the terms and conditions of the Consent Agreement and Order. [Gov't Ex. 
7, at 8; Gov't Ex. 4; Tr. 156]. Respondent explained during his 
testimony that his attorney at the time had negotiated with the 
Pennsylvania SBOM and it was his understanding that his stay at Talbot 
was a sufficient program to satisfy the probationary terms. [Tr. 156-
57]. In other words, he did not believe he had to participate in 
further drug-monitoring after his assessment at Talbot, even though it 
was described in detail throughout the terms of the Consent Agreement 
and Order. [See Gov't Ex. 4, at 6].
---------------------------------------------------------------------------

    \75\ An administrative hearing was held on April 4, 2001. [Gov't 
Ex. 7, at 2].
    \76\ Government counsel asked Respondent if he had notified DEA 
of the indefinite suspension of his medical license, to which the 
Respondent said he did not recall providing the notification. [Tr. 
157]. Again, the basis for such a responsibility is unclear.
---------------------------------------------------------------------------

    As a result, in December 2001, after Respondent failed to comply 
with the extent of the probationary terms outlined in the Consent 
Agreement and Order,\77\ the Pennsylvania SBOM ordered \78\ that 
Respondent's ``license to practice osteopathic medicine and surgery'' 
be ``indefinitely suspended,'' but indicated that ``[s]uch suspension 
is to be immediately stayed in favor of not less than five years 
probation. . . .'' [Gov't Ex. 8, at 11]. The terms of the probation 
required Respondent to: (1) abide by state and federal laws; (2) 
cooperate with professional organizations; (3) submit truthful 
information to the SBOM; (4) avoid leaving the Commonwealth of 
Pennsylvania for more than 20 days at a time; (5) enroll in a new 
monitoring program or notify the local medical board if Respondent 
moves jurisdictions; (6) notify the PHMP of criminal charges against 
him; and (7) notify the PHMP of changes to his address or contact 
information. [Id. at 11-13]. The Order indicated that upon successful 
completion of the probationary term, Respondent could petition the SBOM 
to obtain an unrestricted license to practice medicine in Pennsylvania. 
[Gov't Ex. 8, at 23].
---------------------------------------------------------------------------

    \77\ [Gov't Ex. 4].
    \78\ This was contained in an adjudication and order, which was 
admitted into the record without objection. [Tr. 89; Gov't Ex. 8].
---------------------------------------------------------------------------

    Several years later, Dr. Koch wrote a letter dated May 19, 2005 to 
the Pennsylvania Bureau of Professional and Occupational Affairs, of 
the PHMP Unit II. [Gov't Ex. 13; Tr. 166]. In the letter Dr. Koch 
admitted to a ``long standing problem with substance abuse (alcohol and 
cocaine)'' and explained that for years he had ``been in denial of this 
problem.'' [Gov't Ex. 13, at 1]. Respondent further indicated that he 
``recently realized'' the problem and that he ``need[s] professional 
help.'' [Id.]. Respondent associated this turning point with a positive 
drug screen in December 2004.\79\ [Id.]. Based on the advice of an APHP 
physician, Respondent said he entered Talbot Recovery Campus in 
Atlanta, Georgia on February 1, 2005, and completed treatment on May 7, 
2005. [Id.].
---------------------------------------------------------------------------

    \79\ During his testimony, Respondent could not remember if he 
had a positive drug screen in December 2004. He responded, however, 
``[i]t's possible.'' [Tr. 166]. According to Government's 
documentary evidence, the positive drug screen occurred December 21, 
2004. [Gov't Ex. 17, at 53].
---------------------------------------------------------------------------

    In November 2006, the Pennsylvania SBOM issued a Consent Agreement 
and Order.\80\ [Gov't Ex. 17; Tr. 171]. The Order indicated that 
Respondent failed to submit to six \81\ drug screens. [Gov't Ex. 17, at 
2]. While Respondent testified that the missed drug tests occurred 
while he was in rehabilitation at Talbot in 2005, the drug-testing 
results indicate that there were twelve missed calls before he entered 
the rehabilitation program on February 1, 2005 and eight missed calls 
after he left Talbot on approximately May 10, 2005. [Gov't Ex. 17, at 
2, 53-55; Tr. 171].\82\ Government counsel also called Respondent's 
attention to a condition of the Consent Agreement and Order, which 
prohibited Respondent from using controlled substances. [Gov't Ex. 17, 
at 9; Tr. 172]. Respondent credibly responded ``I've actually complied 
with'' this order.\83\ [Tr. 172]. Yet, the Respondent was not randomly 
drug-tested for steroids while in the Pennsylvania monitoring program. 
[Tr. 174].
---------------------------------------------------------------------------

    \80\ This Order was admitted to the record without objection. 
[Tr. 89; Gov't Ex. 17].
    \81\ Documentary evidence contained in Government Exhibit 17 
indicates that Respondent actually missed eight drug tests after he 
was discharged from Talbot in 2005. [Gov't Ex. 17, at 55]. The dates 
of the missed drug tests are 5/11/2005, 5/12/2005, 5/13/2005, 5/16/
2005, 5/17/2005, 5/18/2005, 5/19/2005, and 5/20/2005.
    \82\ On redirect examination, Respondent testified that he 
submitted a few drug tests every week at Talbot and assumed that 
Pennsylvania had access to these drug results. [Tr. 198]. 
Furthermore, Respondent added that he signed releases for 
Pennsylvania and Alabama to receive his records from Talbot. [Tr. 
199].
    \83\ As previously mentioned, Government counsel tried again to 
show Respondent's non-compliance with a Board Order by having 
Respondent admit he never provided hair samples. [See Tr. 174-75]. 
However, I find this testimony similarly insignificant since 
Respondent provided the type of sample requested by the physician 
coordinator the PHP monitoring. Therefore, I will disregard similar 
questioning by the Government attorney concerning Government 
Exhibits 18 and 19. [Id.].
---------------------------------------------------------------------------

    On February 4, 2010, Respondent's medical license was reinstated as 
unrestricted in Pennsylvania through an order \84\ issued by the SBOM. 
[Gov't Ex. 20, at 1; Tr. 175]. However, there is currently an 
unresolved action against Respondent's license concerning Respondent's 
felony conviction in 2012. [Tr. 175]. Thus, Pennsylvania is in the 
process of reacting \85\ to Respondent's recent drug-related felony 
conviction. As of the time of the hearing in this case, the Respondent 
had not had a hearing before the Pennsylvania SBOM. [Gov't Ex. 30, at 
1; Tr. 182-83].
---------------------------------------------------------------------------

    \84\ The ``Final Order Reinstating Respondent's License'' was 
admitted into the record without objection. [Tr. 89; Gov't Ex. 20].
    \85\ An Order to Show Cause filed on November 14, 2012 was 
admitted into the record without objection. [Tr. 89; Gov't Ex. 30]. 
Respondent was asked to respond to ``why the State Board of 
Osteopathic Medicine . . . should not suspend, revoke, or otherwise 
restrict Respondent's license, impose a civil penalty, or impose the 
costs of investigation.'' [Gov't Ex. 30, at 2].
---------------------------------------------------------------------------

3. Minnesota Board of Medical Practice
    Since Respondent is employed in Minnesota, the Minnesota Board of 
Medical Practice (``BMP'') has also investigated Respondent's case and 
plan to ``mirror'' Alabama's action. [Gov't Ex. 43; Tr. 183, 199]. An 
Order \86\ from August 30, 2012 indicates that when Alabama releases 
Respondent from probation, Minnesota intends to grant Respondent an 
``unconditional license.'' [Gov't Ex. 43, at 4; see Tr. 183, 199-200]. 
The Order also served as a formal reprimand. [Gov't Ex. 43, at 3].
---------------------------------------------------------------------------

    \86\ This Order was admitted into the record without objection. 
[Tr. 89; Gov't Ex. 43].
---------------------------------------------------------------------------

G. Respondent's Felony Conviction

    On July 7, 2011,\87\ Respondent was arrested for felony charges 
related to anabolic steroids. [Gov't Ex. 22]. The arrest was made at 
Respondent's home, which he had access to on certain days of the week 
as a result of his divorce proceedings. [Tr. 141]. Respondent testified 
that Jim Hewette, an investigator for the Alabama SBME, said he was 
permitted to see patients in his home so long as his address was 
registered with the Board. [Tr. 142]. On the day of the arrest, 
Respondent was locked out of his house, with six patients waiting in 
the driveway. [Id.].
---------------------------------------------------------------------------

    \87\ Respondent had been asked to provide a urine sample earlier 
that day for drug-testing. [Tr. 126]. Respondent believes the 
results were negative. [Tr. 126].
---------------------------------------------------------------------------

    The basis for the charges \88\ against Respondent was a violation 
of 21 U.S.C.

[[Page 18727]]

841(a)(1), which prohibits ``possession with [the] intent to distribute 
anabolic steroids,'' as well as 21 U.S.C. 846, which prohibits a 
``conspiracy'' to distribute anabolic steroids. [Gov't Ex. 22].
---------------------------------------------------------------------------

    \88\ The criminal complaint filed against Respondent was 
admitted into the record without objection. [Tr. 91; Gov't Ex. 22].
---------------------------------------------------------------------------

    During his testimony, Respondent explained that his wife had 
purchased steroids for herself and two other people from someone in 
northern Alabama. [Tr. 126, 195-96]. He had requested that his wife buy 
him some Viagra and Cialis. [Tr. 126, 129-30, 196]. Respondent admits 
that he was aware of his wife's drug purchases. [Tr. 127, 196]. 
Respondent testified that he just wanted to ``get some cheap Viagra and 
Cialis and wound up getting drug (sic) into a steroid charge.'' [Tr. 
129-30].
    On his applications to renew his DEA registration, Respondent 
described the situation that gave rise to the charges:

    Going thru a contentious divorce and my wife set me up and 
entrapped me in a scheme to purchase and distribute steriods (sic). 
On advice of my attorney I plead guilty to a felony of conspiracy to 
possess and distribute steriods (sic) in order to minimize the 
consequences. This had nothing to do with my medical practice. I 
have and continue to maintain compliance with the Alabama Physicians 
Health Program for 6 \1/2\ years. [Gov't Ex. 33, at 2].

    Respondent wrote a similar description of the events on the renewal 
application for his Minnesota DEA COR. [See Gov't Ex. 34, at 1-2]. 
While Respondent failed to accept responsibility and repeatedly blamed 
his ex-wife for the felony charges, he also repeatedly testified that 
he too ``us[ed] poor judgment.'' [Tr. 140, 196, 197, 199.] \89\ 
Respondent reflected on the conviction saying, ``I mean I used very 
poor judgment and I accepted responsibility--I knew my wife was doing 
something illegal and I should not have gotten involved with it.'' [Tr. 
140].\90\
---------------------------------------------------------------------------

    \89\ Respondent also offered evidence of his acceptance of 
responsibility through an Order Denying Motion to Revoke Conditions 
of Release. The order was admitted in to the record as Respondent 
Exhibit 2, over Government's objection. [Resp't Ex. 2, at 11; Tr. 
209-10]. I deny Government's motion to exclude this exhibit, since 
it is relevant and material evidence relating to Respondent's 
willingness and unwillingness to comply with court orders. [Gov't 
Brief, at 36, 38].
    \90\ Respondent's statements during his sentencing hearing, a 
transcript of which was admitted into evidence as Respondent Exhibit 
3, indicate that he accepted responsibility for the drug-related 
conviction. [Resp't Ex. 3]. Respondent said, ``I'd just like to 
apologize to the Court. I made a mistake. I used poor judgment. I 
accept full responsibility for my behavior. And I wish that you 
would have leniency on me so I can continue to serve my patients and 
the community.'' [Id. at 6-7]. I note that a similar apology was not 
offered by the Respondent to this Court.
---------------------------------------------------------------------------

    On July 28, 2011, Respondent was indicted \91\ on Count I: 
``willfully, knowingly, and unlawfully'' conspiring with co-defendants 
to ``dispense and possess with the intent to distribute and dispense 
testosterone \92\ and primobolan depot \93\ from about August 2005 \94\ 
to approximately July 8, 2011; and Count II: ``knowingly and 
intentionally unlawfully dispens[ing] and possess[ing] with intent to 
distribute and dispense testosterone and primobolan depot'' on or about 
June 28, 2011. [Gov't Ex. 23, at 1-2; see also Gov't Ex. 24]. 
Respondent testified that he pled guilty to Count I concerning the 
conspiracy. [Tr. 177].
---------------------------------------------------------------------------

    \91\ A copy of the indictment was admitted into the record 
without objection. [Tr. 91; Gov't Ex. 23]. A copy of a document 
styled as a ``Penalty Page'' was similarly admitted into evidence. 
[Tr. 91; Gov't Ex. 24].
    \92\ Testosterone is a steroid regulated under Schedule III of 
the Controlled Substances Act. 21 U.S.C. 812; 21 CFR 1308.13; see 
also 21 CFR 1300.01 (b)(60).
    \93\ Primobolan Depot is an injectable steroid that is 
generically known as, methenolone. It is regulated under Schedule 
III of the Controlled Substances Act. 21 U.S.C. 812; 21 CFR 1308.13.
    \94\ Government counsel brought to Respondent's attention that 
the criminal conduct began just one month after Respondent's MOA 
with the DEA ended in July 2005. [Tr. 177].
---------------------------------------------------------------------------

    On September 20, 2011, in the Southern District Court of Alabama, 
Respondent entered into a plea agreement \95\ and pled guilty to the 
first count of the indictment, which ``charg[ed] a violation of Title 
21, United States Code, Section 846--conspiracy to distribute and 
possess with intent to distribute anabolic steroids.'' [Gov't Ex. 25, 
at 1; Tr. 126, 178].\96\ When Respondent signed the plea agreement, he 
agreed to the statements contained therein, including: ``[t]he plea of 
guilty is freely and voluntarily made and is not the result of force, 
threats, promises, or representations, apart from those representations 
set forth in the Plea Agreement. . . . [and] [t]he defendant is 
pleading guilty because he is guilty.'' [Gov't Ex. 25, at 3 ] 10].
---------------------------------------------------------------------------

    \95\ Respondent's plea agreement was admitted into the record 
without objection. [Tr. 90; Gov't Ex. 25].
    \96\ Even when Respondent testified about this issue on direct 
examination, he maintained that he did not consume and traffic 
anabolic steroids, but his ex-wife had. [Tr. 178].
---------------------------------------------------------------------------

    On November 15, 2011, a magistrate made findings \97\ regarding 
Respondent's compliance with his order of release while he was awaiting 
sentencing for his felony charges. [Resp't Ex. 2]. The magistrate wrote 
in an order, which denied the Government's motion to revoke his order 
of release, that ``[w]ithout question, the defendant has violated the 
Court's release order by contacting his wife by phone, te[x]t 
messaging, and at least one personal visit.'' [Id. at 12]. However, the 
magistrate found that the violations were ``an insufficient reason to 
revoke and detain the defendant.'' [Id. at 13].\98\
---------------------------------------------------------------------------

    \97\ After I deferred ruling on its admissibility, an order 
dated November 15, 2011 regarding Respondent's violation of a 
previous release order was admitted into evidence. [Tr. 264-65]. 
Government's objection to admission of the exhibit will go to the 
weight I afford to the document. [Tr. 265; Resp't Ex. 2].
    \98\ In arriving at this conclusion, the magistrate found that 
Respondent has ``appeared at all times when his presence was 
required, and admitted his guilt without a guarantee that the 
district judge would agree to his continued release.'' [Resp't Ex. 
2, at 11]. This statement about Respondent's admission of guilt was 
made pursuant to a determination of flight risk and not a 
determination of guilt or innocence. Thus, I weigh the statement 
accordingly.
---------------------------------------------------------------------------

    On February 24, 2012, Respondent was sentenced \99\ to five years 
of probation, which he is currently still serving. [Gov't Ex. 26, at 2; 
Tr. 132, 178-79]. As a result of his guilty plea, Respondent must also 
serve two hundred hours \100\ of community service and pay a $10,000 
fine. [Tr. 132]. The second count, on which Respondent had been 
indicted, was dismissed. [Gov't Ex. 26, at 1]. The Respondent denied 
ever purchasing, consuming, or trafficking anabolic steroids. [Tr. 178; 
Gov't Ex. 25, at 14]. The Respondent did not take responsibility for 
these acts as presented in the Factual Resume provided to the Court. 
[Gov't Ex. 25].
---------------------------------------------------------------------------

    \99\ Respondent's Exhibit 3, the transcript of Respondent's 
sentencing hearing, was admitted into the record. [Resp't Ex. 3; Tr. 
130, 133, 264]. The court's judgment concerning Respondent's plea 
was admitted into the record. [Tr. 91; Gov't Ex. 26]. I deny 
Government's motion to exclude this exhibit from the record, since 
the exhibit contains relevant and material evidence concerning 
Respondent's sentencing for pleading guilty to a drug-related 
felony. [Gov't Brief, at 36, 38].
    \100\ Dr. Koch testified that he has already paid the fine and 
served 256 hours of community service. [Tr. 132]. Respondent 
identified proposed Respondent Exhibit 6 as containing information 
about the two places he conducted community service: Habitat for 
Humanity and Elba Hospital. [Tr. 133-34; see also Resp't Ex. 6, at 
1-2]. Respondent's Exhibit 6 was admitted into the record without 
objection. [Tr. 134].
---------------------------------------------------------------------------

H. Respondent's Reputation

    Jawad Khan (``Dr. Khan'') \101\ testified about Respondent's 
reputation, in addition to offering a signed and notarized 
affidavit.\102\ [Tr. 113]. Dr. Khan admitted during his testimony that 
Respondent ``had some problems in Alabama'' and ``has a conditional 
license both in Alabama and in

[[Page 18728]]

Minnesota.'' [Tr. 114]. Prior to hiring Respondent, Dr. Khan testified 
that he conducted an internal investigation. [Id.]. Dr. Khan mentioned 
he was aware Respondent had ``at one time pled guilty to some drug 
related offense.'' [Id.]. However, he added that he did not know any of 
the facts about Respondent's substance abuse. [Id.].
---------------------------------------------------------------------------

    \101\ Dr. Khan is the Director of the Emergency Room at Sanford 
Health in Thief River Falls, Minnesota. [Tr. 111].
    \102\ Dr. Jawad Khan's affidavit, which was identified as 
Respondent's Exhibit 9, was admitted into the record over 
Government's objection. [Tr. 118; Resp't Ex. 9]. His affidavit was 
signed and notarized. [Resp't Ex. 9, at 1-2].
---------------------------------------------------------------------------

    Dr. Khan concluded that Minnesota has not said Respondent cannot 
work in the state. [Id.]. He added that ``as long as the state Board 
allows him to practice and we don't have any personal concerns about 
him, we don't have any problems with him practicing with us.'' [Tr. 
116]. Dr. Khan emphasized that his primary concern with regards to 
Respondent's employment is whether he has a valid state license to 
practice medicine. [Tr. 117].
    Furthermore, Dr. Khan explained that his personal opinion of the 
Respondent is based on his ``personal contact with him.'' [Tr. 115]. He 
stated generally that Respondent ``has done a good job and we have not 
had any problems with him.'' [Id.]. Specifically, with regards to 
prescription drugs, Dr. Khan credibly testified that ``we have never 
had any concerns about him'' working in the emergency room where there 
are ``a lot of people who have problems with drugs.'' [Id.]. Dr. Khan's 
affidavit similarly noted that, ``during his tenure at the [Thief River 
Falls Emergency Room], there has never been any issue regarding any 
prescriptions that he has written nor has there been any misuse of his 
DEA certificate.'' [Resp't Ex. 9, at 1].
    Also testifying regarding Respondent's reputation was Gladys Luker 
(``Ms. Luker''), who is a registered nurse at J. Paul Jones Hospital in 
Camden, Alabama. [Tr. 218]. Ms. Luker first met Respondent in 
approximately 2008 when he began taking shifts at the hospital. [Tr. 
219]. Ms. Luker said she has had the opportunity to observe him taking 
care of patients. [Id.]. She has accompanied him to see patients in the 
emergency room, assist while he does procedures, and carried out his 
medical orders. [Tr. 220]. Overall, Ms. Luker credibly testified that 
Respondent's professional reputation is ``[e]xcellent.'' [Tr. 219-20].
    Ms. Luker admitted that she is aware of Respondent's guilty plea, 
but maintained that this does not affect her opinion of him. [Tr. 220]. 
However, she testified that she is not really sure what the drug 
conviction was for. [Tr. 221]. Ms. Luker has also not discussed 
Respondent's long history with drug use and abuse, prior disciplinary 
actions, and news articles about Respondent's conviction. [Tr. 221-22].
    Respondent then called Shirley Candies (``Ms. Candies'') to 
testify. Ms. Candies is a registered nurse and the assistant director 
of nursing at J. Paul Jones Hospital in Camden, Alabama. [Tr. 223-24]. 
Ms. Candies worked with Respondent from approximately 2009 to 2012. 
[Tr. 224, 227]. Ms. Candies credibility testified that she has 
``observed him to be a very professional doctor'' with ``good bedside 
manner.'' [Tr. 224].
    Ms. Candies admitted that she is aware of Dr. Koch's history of 
substance abuse, but has not discussed it with other people. [Tr. 225]. 
She also testified that she is aware Respondent ``pled guilty to some 
type of steroid charge,'' but maintains that it does not have an impact 
on her impression of Respondent. [Tr. 225-26]. Finally, Ms. Candies 
admitted there have been disciplinary actions taken against Respondent 
by three medical boards, but testified that it does not change her 
impression of him. [Tr. 226].
    Next, Sheila Roe (``Ms. Roe'') testified about Respondent's 
reputation. She is a registered nurse at J. Paul Jones Hospital, in 
Camden, Alabama. [Tr. 228]. Ms. Roe last worked with Respondent in 
approximately 2012. [Tr. 233]. In total, she worked with Respondent for 
over four years. [Id.]. She testified that Dr. Koch ``is a very 
excellent, thorough and intelligent physician.'' [Tr. 229]. She 
testified that she has never questioned a written or verbal order from 
the Respondent with regards to patient care. [Id.]. Specifically, she 
credibly testified that she has never questioned Respondent when 
writing prescriptions for patients. [Tr. 230].
    Ms. Roe testified, however, that she is not aware of Respondent's 
history of drug abuse, or the specific details concerning Respondent's 
felony conviction. [Tr. 231-32]. She also testified that she has not 
read any newspaper articles about him, nor was she aware of the 
administrative proceedings against him. [Tr. 232]. The witness has not 
discussed any of these subjects with other employees, patients or 
Respondent. [Tr. 232-33]. The witness explained, she just wants to work 
with a physician who ``know[s] what he's doing,'' even if they have a 
few ``issue[s].'' [Id.].
    Then, Respondent called Jan Wicker (``Ms. Wicker'') to testify. 
[Tr. 237]. She is a registered nurse, director of nurses, and assistant 
administrator. [Tr. 238, 240]. Ms. Wicker worked with Respondent in the 
emergency room as locum tenens in early 2011 and then in a clinic from 
October 2011 to October 2012. [Tr. 240]. Then she worked with him on a 
daily basis, Monday through Friday, until February 28, 2013. [Tr. 243].
    Ms. Wicker testified that she was aware of Respondent's drug use 
and abuse, specifically with regards to steroids. [Id.]. She learned 
this from court documents when the hospital was considering whether to 
hire Respondent. [Id.]. She credibly testified that this does not 
concern her as long as he is rehabilitated and being monitored. [Tr. 
245]. She further testified that she was not aware, however, that he 
had previously abused cocaine and alcohol. [Tr. 241]. The witness was 
familiar with the disciplinary actions in Alabama, but not Pennsylvania 
and Minnesota. [Id.]. The witness added that she was aware Respondent's 
Medicare and Medicaid numbers were ``denied.'' [Tr. 242]. Ms. Wicker 
testified that she had privately discussed some of Respondent's issues 
with the administrator, specifically Respondent's recent guilty plea. 
[Tr. 244-45]. However, she added that it had not impacted the 
administrator's hiring decision. [Id.]. The witness later clarified 
that she, personally, does not make decisions on hiring and firing 
physicians, or whether a physician should be credentialed. [Tr. 246].
    During her testimony, Ms. Wicker laid the foundation for Respondent 
Exhibit 8,\103\ which is a quarterly report of Respondent's conduct by 
a worksite monitor. [Tr. 238-39; Gov't Ex. 8]. The report was completed 
on April 5, 2013. [Tr. 243]. The report covers Respondent's conduct up 
until the facility closed on February 28, 2013. [Id.]. Ms. Wicker 
credibly testified that the report was written at the request of the 
Physician Health Program on April 4th or 5th of this year. [Id.]. The 
Program provided Ms. Wicker with the form. [Tr. 247]. The witness had 
completed similar reports in the past. [Tr. 244]. Ms. Wicker testified 
that Respondent's decision to leave the area and the clinic was the 
result of ``the closing of the hospital and clinic due to financial 
decline.'' [Id.; see also Resp't Ex. 8, at 1]. Ms. Wicker also wrote 
that ``[w]e were looking forward to a long and mutually beneficial 
relationship with Dr. Koch.'' [Resp't Ex. 8, at 1].
---------------------------------------------------------------------------

    \103\ The Quarterly Report completed by worksite monitor, Jan 
Wicker, was admitted into the record without objection as 
Respondent's Exhibit 8. [Resp't Ex. 8; Tr. 247].
---------------------------------------------------------------------------

    Judy Holloway (``Ms. Holloway'') followed with testimony concerning 
the Respondent. She has been licensed as a registered nurse for thirty 
years. [Tr. 250]. She testified that she has worked with the Respondent 
as an emergency

[[Page 18729]]

room nurse at Elba General Hospital for approximately 300 hours, most 
recently in February 2012. [Tr. 251, 252, 254]. Ms. Holloway credibly 
testified that Dr. Koch's work is ``excellent.'' [Tr. 251]. She added 
that ``all [of] the patients liked him.'' [Id.].
    Ms. Holloway said she was not aware of Respondent's drug abuse 
problem, but knew he had an issue with steroids. [Tr. 253]. Ms. 
Holloway added that her opinion of him did not change even knowing he 
had been disciplined by multiple state medical boards. [Tr. 253-54].
    Thereafter, Rosanne Cook (``Dr. Cook'') testified telephonically. 
[Tr. 256-63]. Dr. Cook is a primary care physician in a community 
health center located in Pineapple, Alabama and staff member at J. Paul 
Jones Hospital in Camden, Alabama. [Tr. 257-58]. The witness testified 
that she has had an opportunity to work with him and has ``no 
complaints about his clinical skills, his diagnostic skills, and his 
ability to provide the right care for patients, both coming in to the 
emergency room and also in the in-patients in our little hospital. He 
took care of my patients quite well when I was not available, and I 
could trust his judgment.'' [Tr. 258]. Dr. Cook clarified that she does 
not know Dr. Koch socially. [Tr. 259]. She last worked with Dr. Koch 
approximately two years ago. [Tr. 263].
    Dr. Cook said she was aware Respondent had a drug problem and had 
talked with him about it briefly. [Tr. 260-61]. She was aware of his 
drug-related felony conviction and five-year probationary term. [Tr. 
261]. She was also aware of the disciplinary actions against 
Respondent's medical license. [Id.]. However, Dr. Cook offered credible 
testimony clarifying that when Dr. Koch has been at work in the 
hospital he had ``never in any way act[ed] like he was under any 
influences, other than just good judgment.'' [Tr. 262]. Dr. Cook 
admitted that she had never drug-tested him. [Id.].
    Dr. Cook concluded that her impression of Dr. Koch's reputation was 
based on his ``clinical judgment.'' [Tr. 262]. Dr. Cook's affidavit 
\104\ also noted that ``there has never been any complaint or problem 
with the care that he has given nor any misuse of his DEA certificate. 
I have never seen him impaired in any way.'' [Resp't Ex. 10, at 1].
---------------------------------------------------------------------------

    \104\ Dr. Cook's affidavit was admitted into evidence without 
objection. [Resp't Ex. 10; Tr. 265]. Dr. Cook's affidavit was signed 
and notarized. [Resp't Ex. 10, 1-2].
---------------------------------------------------------------------------

    Finally, although Jana Wyatt (``Ms. Wyatt'') was not able to 
testify, she noted in her affidavit \105\ that as CEO of Mizell 
Memorial Hospital in Opp, Alabama she was ``familiar with Dr. Koch 
through the physician recruitment process.'' [Resp't Ex. 11, at 1; Tr. 
207]. Ms. Wyatt said ``he could be a welcome addition to our staff,'' 
however, Ms. Wyatt admitted her opinion is only based on ``brief 
discussions'' with him. [Resp't Ex. 11, at 1].\106\ Ms. Wyatt did not 
provide any insight into Respondent's experience handling controlled 
substances.
---------------------------------------------------------------------------

    \105\ Jana Wyatt's affidavit was admitted into evidence without 
objection. [Resp't Ex. 11; Tr. 207]. Her affidavit is signed and 
notarized. [Resp't Ex. 11, at 1-2].
    \106\ Wyatt also mentions that she has heard Dr. Koch has 
``billing issues with Medicare and Medicaid,'' but does not go into 
detail about them. [Resp't Ex. 11, at 1].
---------------------------------------------------------------------------

    Generally, I find that the witnesses, who testified regarding 
Respondent's reputation, are credible. However, I will take into 
account the fact that the witnesses did not rely on Respondent's past 
misuse and abuse of controlled substances or his steroid conviction 
when forming their opinions. This consideration will affect the weight 
I afford to the witnesses' testimony.

I. Respondent's Remedial Actions

    During his testimony, the Respondent said ``I'd been in denial of 
my problem,'' but ``once I realized I did have a problem, I accepted 
responsibility for it.'' [Tr. 120]. On February 1, 2005, he entered 
Talbot Recovery Center (``Talbot'') in Atlanta, Georgia and spent 14 
weeks in rehabilitation.\107\ [Tr. 120-21]. After being ``discharged 
with advocacy'' from Talbot, he signed an agreement with the Alabama 
Physician Health Program (``APHP''). [Tr. 121]. Respondent testified 
that ``since 2005 [he has] been compliant.'' [Tr. 197].
---------------------------------------------------------------------------

    \107\ Dr. Koch said he entered Talbot on February 1, 2005 and 
was discharged on or about May 8 or May 10, 2005. [Tr. 122]. During 
this time period, he was being monitored in Pennsylvania. [Tr. 143-
44]. Assuming Respondent was discharged on May 10, 2005, results 
from the Pennsylvania monitoring program indicate that Respondent 
missed eight drug tests, none of which can be attributed to 
Respondent's participation in the rehabilitation program. [Gov't Ex. 
17, at 53-55]. Respondent added that he was not monitored by Alabama 
until May 2005. [Tr. 143].
---------------------------------------------------------------------------

    Dr. Koch credibly testified that he has not used cocaine since 
January 2005. [Tr. 121]. As a result, he has not had a positive drug 
test result since then. [Tr. 123]. Respondent also maintained that he 
has been drug-free since he completed the Talbot Program and alcohol-
free since January 2005. [Tr. 139]. Respondent cited that the biggest 
change from pre-2005 to post-2005 was ``recogniz[ing] [he] had a 
problem'' and ``needed help with it.'' [Id.]. To this point, Respondent 
added that he has ``been compliant with everything that the State Board 
plus the Alabama Physician Health Program has asked me to do.'' [Id.]. 
Respondent also said ``[s]ince the day I've taken responsibility for 
[his] actions, [he has] not had any relapses. Nor [has he] used any 
alcohol or drugs.'' [Id.]. Throughout his testimony, Respondent did not 
deny that he violated past board orders as a result of using illegal 
drugs prior to 2005. [Tr. 160]. However, in accepting responsibility, 
he also failed to show genuine remorse for the risks associated with 
his previous actions. [See Tr. 160-61].
    I find Respondent generally credible, with the exception of 
specific areas of Respondent's testimony that I do not find 
sufficiently detailed, consistent, and plausible to be fully credited 
in this recommended decision. First, I do not find the Respondent 
credible with respect to his testimony that he never missed a drug 
test. [Tr. 122, 138]. It is inconsistent with documentary evidence in 
the record that he missed twelve drug tests from July 2002 to February 
2005. [Gov't Ex. 17, at 53-55]. It is also inconsistent with 
documentary evidence indicating he missed eight drug tests after his 
release from Talbot in May 2005. [Id.].
    Secondly, when Government counsel asked Respondent if he had 
purchased, consumed or trafficked anabolic steroids, Respondent lacked 
credibility when he responded, ``[t]hat I did not do that.'' [Tr. 178]. 
Respondent's statement is contradictory to evidence contained in the 
factual resume of his indictment, which states: ``Mark Peter Koch, a 
physician practicing in Camden, Alabama and Monroeville, Alabama, 
purchased, consumed, and trafficked anabolic steroids.'' [Gov't Ex. 25, 
at 14]. The factual resume was incorporated into his plea agreement by 
reference. [Gov't Ex. 25, at 3].
    Finally, I do not find that Respondent was credible when he 
testified that he has been ``compliant'' since 2005. [Tr. 197]. In 
2012, Respondent was in violation of 21 U.S.C. 841(a)(1), which 
prohibits ``possession with [the] intent to distribute anabolic 
steroids,'' as well as 21 U.S.C. 846, which prohibits a ``conspiracy'' 
to distribute anabolic steroids. [Gov't Ex. 22]. While awaiting his 
sentencing for the conviction, a magistrate wrote in an order, which 
denied the Government's motion to revoke Respondent's order of release, 
that ``[w]ithout question, the defendant has violated the Court's 
release order by contacting his wife by phone, te[x]t messaging, and at 
least one personal visit.'' [Resp't Ex. 2, at 12]. This

[[Page 18730]]

evidence is contrary to Respondent's testimony about compliance with 
state and federal laws, which I do not find credible.

V. Statement of Law and Discussion

A. Positions of the Parties

1. Government's Position
    The Government timely filed its closing brief (``Government's 
Brief'') with this Court on June 26, 2013. [Gov't Brief, at 1]. The 
Government offered proposed findings of fact and conclusions of law 
that support the denial of Respondent's renewal application and the 
revocation of Respondent's existing registrations. [Gov't Brief, at 2]. 
Government addressed its proposed factual findings and conclusions of 
law within the framework of the public interest analysis.
    Concerning Respondent's conviction related to controlled 
substances, the Government proposed I find that Respondent pled guilty 
to a drug-related felony involving a conspiracy to distribute anabolic 
steroids. [Gov't Brief, at 21-22]. Government suggested I conclude that 
this conviction, on its own, is sufficient justification to revoke 
Respondent's registration. [Id.].
    Additionally, with regards to Respondent's experience handling 
controlled substances, the Government suggested I find that Respondent 
had a long history of controlled substance abuse, which led to various 
violations of both state and federal law. [Id. at 23]. Specifically, 
the Government proposed I find that the various administrative board 
orders demonstrate a general pattern of Respondent's noncompliance with 
state law. [See id. at 13, 23-26]. The Government also proposed that I 
make factual findings concerning the various DEA investigations that 
arose when Respondent applied for DEA CORs, as well as the Memorandum 
of Agreement (``MOA'') that DEA entered into with Respondent, because 
they show a pattern of non-compliance with federal laws. [Id. at 4-5, 
23-27].
    Government further suggested that I find Respondent failed to take 
complete responsibility for his actions. [Id. at 14-16]. In support, 
the Government noted that the Respondent denied he had purchased, 
consumed, or trafficked anabolic steroids and instead testified that 
his ex-wife purchased the steroids, which he had neither consumed, nor 
trafficked. [Id.]. Government added that on other occasions, when 
Respondent took partial responsibility, I should find that he did so 
without remorse and without an apology. [Id. at 13, 29].
    Government also pointed to evidence supporting their contention 
that the Respondent failed to take corrective actions concerning his 
future intentions to handle controlled substances. [Id. at 32-33]. The 
Government asserted that the Respondent failed to present a plan 
demonstrating that his past illegal conduct would not be repeated. [Id. 
at 33].
    Government then proposed that I give limited weight to the 
testimony offered concerning Respondent's reputation, since it was 
based on general opinions of Respondent's patient care, and not his 
ability to handle controlled substances. [Id. at 9]. Government also 
suggested I find that the testimony from Respondent's colleagues 
carries little weight because they are not well-informed of 
Respondent's history of drug abuse and recent drug-related conviction. 
[See id. at 17-19, 34].
    In conclusion, the Government urged that I find it has satisfied 
its prima facie case, but Respondent has failed to properly rebut it. 
[Id. at 29-30]. In reaching this result, Government requested that I 
exclude documentary evidence contained in Respondent's Exhibits 2 and 
3, on the basis that they are irrelevant and immaterial, as well as 
exclude documentary evidence in Respondent's Exhibits 1(A) and 1(B) 
because they are inaccurate and unreliable. [Id. at 36, 38].
2. Respondent's Position
    The Respondent filed a timely closing brief (``Respondent's 
Brief'') with this Court on June 27, 2013. [Resp't Brief, at 1]. The 
brief proposed several factual findings and legal conclusions.
    First, Respondent suggested that I find he has not abused the 
discretionary authority granted to him pursuant to DEA CORs No. 
BK1391729 and FK1953327. [Id. at 2]. Second, he asserted I should find 
that he provided excellent medical care to his patients and further has 
never been subject of any complaint from his patients, peers, or 
employers. [Id. at 4]. Third, Respondent asserted that contrary to his 
drug convictions, there is no evidence he ever actually obtained or 
distributed the steroids alluded to in the criminal matter. [Id. at 5]. 
Fourth, Respondent proposed I find that he has not consumed any illegal 
substances since entering Talbot Recovery Campus in 2005, nor has he 
tested positive for any controlled substances since he has been 
enrolled in the APHP in May 2005. [Id. at 6-7].
    Finally, Respondent suggested I find that the Government has not 
presented any evidence that shows his continued registration would be 
inconsistent with the public interest. [Id. at 6]. Respondent urged me 
to find that Government failed to meet its prima facie case to revoke 
Respondent's existing registrations and deny any applications for 
renewal or modification. [Id. at 8]. In conclusion, Respondent 
requested I issue an order denying Government's motion to revoke or 
suspend the DEA CORs of Dr. Koch, or in the alternative, continue the 
DEA CORs of Dr. Koch, subject to ``any conditions the ALJ might deem 
proper while Respondent's medical license is on a probationary basis.'' 
[Id. at 9].

B. Statement of Law and Analysis

    Pursuant to 21 U.S.C. 823(f) (2011), the Deputy Administrator may 
deny an application for a DEA COR, if he determines that such 
registration would be inconsistent with the public interest.\108\ 
Similarly, pursuant to 21 U.S.C. 824(a)(4), the Deputy Administrator 
may revoke a DEA COR, if he determines that such registration would be 
inconsistent with the public interest. In determining the public 
interest, the following factors are considered:
---------------------------------------------------------------------------

    \108\ The Deputy Administrator has the authority to make such a 
determination pursuant to 28 CFR 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. 823(f) (2011).
    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 
a registration should be revoked or an application for registration be 
denied. See Robert A. Leslie, M.D., 68 FR 15,227, 15,230 (DEA 2003) 
(citing Henry J. Schwartz, Jr. M.D., 54 FR 16,422, 16,424 (DEA 1989)). 
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 (D.C. Cir. 2005). 
Thus, ``this is not a contest in which score is kept; the Agency is not 
required to mechanically count up the factors and

[[Page 18731]]

determine how many favor'' each party. Jayam Krishna-Iyer, M.D., 74 FR 
459, 462 (DEA 2009). ``Rather, it is an inquiry which focuses on 
protecting the public interest[.]'' Id.
    The Government bears the ultimate burden of proving that the 
requirements for registration are not satisfied. 21 CFR Sec.  
1301.44(d) (2012). Specifically, the Government must show that 
Respondent has committed acts that are inconsistent with the public 
interest. 21 U.S.C. 823(f); Jeri Hassman, M.D., 75 FR 8,194, 8,227 (DEA 
2010) (citing Paul J. Caragine, Jr., 63 FR 51,592, 51,601 (DEA 1998)). 
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). 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. See id.; see also, Samuel S. Jackson, D.D.S., 72 FR at 
23,853. 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).
    On review, the Deputy Administrator must ``examine the relevant 
data'' and demonstrate in the record ``a rational connection between 
the facts found and the [decision] made.'' Hoxie v. DEA, 419 F.3d at 
482. The Deputy Administrator's factual findings ``are conclusive if 
supported by substantial evidence.'' Hoxie v. DEA, 419 F.3d at 482; 21 
U.S.C. Sec.  877. Substantial evidence is ``more than a scintilla, and 
must do more than create a suspicion of the existence of the fact to be 
established.'' Hoxie v. DEA, 419 F.3d at 482; Morall v. DEA, 412 F.3d 
at 176 (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 
292, 299-300, 59 S.Ct. 501, 505 (1939)). Even if there is a 
``possibility of drawing two inconsistent conclusions from the 
evidence,'' an agency's findings may nonetheless be ``supported by 
substantial evidence.'' Shatz v. U.S. Dep't of Justice, 873 F.2d 1089, 
1092 (8th Cir. 1989) (citing Trawick v. DEA, 861 F.2d at 77 (internal 
citations omitted)). The Deputy Administrator's decision will be 
considered ``less substantial,'' however, when the Administrative Law 
Judge (ALJ) ``who has observed the witnesses and lived with the case 
has drawn [different] conclusions. . . . '' Universal Camera Corp. v. 
NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 469 (1951); 5 U.S.C. Sec.  557 
(b) (explaining that an ALJ's decisions are part of the record, but 
they are not binding on the Deputy Administrator). Thus, the ALJ's 
factual findings in this decision ``are entitled to significant 
deference.'' Roni Dreszer, M.D., 76 FR 19,434, 19,444 (DEA 2011) 
(citing Universal Camera Corp. v. NLRB, 340 U.S. at 496).
    On appeal, the Administrator's decision will be ``set aside if it 
is `arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law.' '' Hoxie v. DEA, 419 F.3d at 482; 5 U.S.C. 
706(2)(A); Morall v. DEA, 412 F.3d at 181 (vacating the DEA's decision 
to revoke a physician's registration because the agency had departed 
from its precedent without explanation); cf. Chein v. DEA, 533 F.3d 
828, 835 (D.C. Cir. 2008) (finding that ``mere unevenness in the 
application of a sanction will not render [it] . . . `unwarranted in 
law' '') (internal citations omitted).
Factor One: Recommendation of Appropriate State Licensing Board
    Recommendations of state licensing boards are relevant, but not 
dispositive, in determining whether a respondent should be permitted to 
maintain a registration. See Gregory D. Owens, D.D.S., 74 FR 36,751, 
36,755 (DEA 2009); see also Martha Hernandez, M.D., 62 FR 61,145, 
61,147 (DEA 1997). According to clear agency precedent, a ``state 
license is a necessary, but not a sufficient condition for 
registration.'' Robert A. Leslie, M.D., 68 FR at 15,230; John H. 
Kennedy, M.D., 71 FR 35,705, 35,708 (DEA 2006).
    DEA possesses ``a separate oversight responsibility with respect to 
the handling of controlled substances,'' which requires the Agency to 
make an ``independent determination as to whether the granting of [a 
registration] would be in the public interest.'' Mortimer B. Levin 
D.O., 55 FR 8,209, 8,210 (1990); see also Jayam Krishna-Iyer, M.D., 74 
FR at 461. Even the reinstatement of a state medical license does not 
affect this Agency's independent responsibility to determine whether a 
DEA registration is in the public interest. Mortimer B. 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 FR 6,580, 6,590 (DEA 2007), aff'd Chein v. DEA, 533 F.3d 828 
(D.C. Cir. 2008).
    Here, records from the Alabama SBME demonstrate that Respondent 
satisfies the state license and registration requirements for purposes 
of maintaining his DEA COR No. BK1391729 in Alabama. [Gov't Ex. 31, 
33]. Documentary evidence confirms that Respondent currently has a 
probationary license to practice medicine in the state of Alabama. 
[Gov't Ex. 29, at 4; see also Gov't Ex. 31]. His probationary license 
is subject to the condition that Respondent ``maintain, indefinitely, a 
contract with the Alabama Physicians Health Program.'' [Gov't Ex. 29, 
at 4; Tr. 180-81]. Additionally, Respondent has been permitted to 
retain a full and unrestricted Alabama registration to handle 
controlled substances in Schedules II-V. [Gov't Ex. 31].
    Likewise, records from the Minnesota BMP indicate that Respondent 
also has a state medical license for purposes of maintaining DEA COR 
No. FK1953327 in Minnesota. [Gov't Ex. 32, 34]. Respondent currently 
holds an active license as a physician and surgeon in the state of 
Minnesota. [Gov't Ex. 32]. At this time, there are no disciplinary 
actions pending against the Respondent in Minnesota. [Id.]. Although, 
Minnesota has indicated it will be deferential to any disciplinary 
actions taken by Alabama. [Gov't Ex. 43, at 3-4; Tr. 183, 199].
    With regards to Respondent's Minnesota registration to handle 
controlled substances, the documentary evidence does not explicitly 
support the fact that Respondent maintains a valid state controlled 
substances certificate of registration. However, I find that Respondent 
has the authority to prescribe, administer, and dispense controlled 
substances within Schedules II through V, simply by having a valid 
license to practice osteopathic medicine in the state of Minnesota. 
According to state statutes, ``[a] doctor of osteopathy . . . in the 
course of professional practice only, may prescribe, administer, and 
dispense a controlled substance included in Schedules II through V. . . 
.'' Minn. Stat. Ann. Sec.  152.12 (West 2013). Therefore, in accordance 
with 5 U.S.C. Sec.  556(e), I take official notice that, pursuant to 
Minn. Stat. Ann. Sec.  152.12, Respondent has state authority to handle 
controlled substances in Minnesota, by the very nature of his valid 
state license to

[[Page 18732]]

practice osteopathic medicine.\109\ [Gov't Ex. 25].
---------------------------------------------------------------------------

    \109\ ``Under the Administrative Procedure Act, `[a]gencies may 
take official notice of facts at any stage in a proceeding-even in 
the final decision.' '' Attorney General's Manual on the 
Administrative Procedure Act 80 (1946) (Wm. W. Gaunt & Sons, Inc., 
reprint 1979). In accordance with the Act, Respondent may `` `show 
to the contrary' by filing a request for reconsideration which 
includes supporting documentation within fifteen days of receipt of 
this order.'' Id.
---------------------------------------------------------------------------

    While I find Respondent currently holds valid state medical 
licenses and registrations in Alabama and Minnesota, which satisfy the 
prerequisites for his DEA CORs under the first factor of the public 
interest analysis, this is not the end of the inquiry. This Agency is 
nonetheless required to make an independent determination of whether 
Respondent's continued registration is within the public interest. See 
Mortimer B. Levin, 55 FR at 8,210. I find that the plethora of state 
administrative actions against Respondent's license in the past sixteen 
years diminishes the weight I can give to the current state license 
status.
    Specifically, in 2000, Alabama SBME revoked Respondent's medical 
license for cocaine use. [Gov't Ex. 6, at 3; Tr. 155]. A year later, 
Respondent's Pennsylvania medical license was suspended, the suspension 
was stayed, and his medical license was placed on probation. [Gov't Ex. 
8, at 11]. It took Respondent nearly ten years to once again receive an 
unrestricted medical license. [See Gov't Ex. 21; Tr. 175]. However, no 
sooner had his license been fully reinstated, than he pled guilty to a 
drug-related felony. [Gov't Ex. 25, at 1; Tr. 126, 178]. As a result of 
this conviction, Respondent's Alabama license was again placed on 
indefinite probation and Minnesota \110\ responded in a similar 
fashion. [Gov't Ex. 29, 43]. I find that the history of state 
administrative orders, which ranged in effect from revocation to 
complete reinstatement, to probation, diminishes the weight of the 
current state medical license status, which permits Respondent to 
practice medicine and handle controlled substances.
---------------------------------------------------------------------------

    \110\ At this time, Respondent no longer maintains a DEA COR in 
Pennsylvania. [Tr. 84].
---------------------------------------------------------------------------

    Thus, I conclude that the evidence offered under this public 
interest factor satisfies the state prerequisite for a DEA COR, but 
does not weigh in favor of permitting Respondent to maintain his DEA 
CORs.
Factors Two and Four: Registrant's Experience With Controlled 
Substances and Registrant's Compliance With Applicable State, Federal, 
or Local Laws Relating to Controlled Substances
    Respondent's experiences with handling controlled substances, as 
well as his compliance with laws related to controlled substances, are 
relevant considerations under the public interest analysis. Pursuant to 
21 U.S.C. Sec.  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); 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.'').
    DEA regulations that apply to practitioner registrants address how 
to modify a registration,\111\ maintain records and inventories,\112\ 
and issue prescriptions.\113\ This Agency examines a ``registrant's 
actions against a backdrop of how she has performed activity within the 
scope of the certificate.'' Cynthia M. Cadet, M.D., 76 FR 19,450, 
19,460 (DEA 2011). Specifically, the Agency considers the ``qualitative 
manner'' and ``quantitative volume'' of a respondent's handling of 
controlled substances. Id.
---------------------------------------------------------------------------

    \111\ 21 CFR 1301.51 (stating that a registrant ``may apply to 
modify his/her registration . . . or to change his/her name or 
address . . . by submitting a letter'' to the DEA).
    \112\ 21 CFR 1304.04.
    \113\ 21 CFR 1306.04.
---------------------------------------------------------------------------

    In the absence of authorization to handle controlled substances, it 
is ``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); 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'').
1. Respondent's Use of Cocaine Violated State and Federal Law
    Respondent's ability to prescribe controlled substances as a 
registered practitioner, while briefly mentioned by Respondent's 
colleagues during their testimony, is not the basis for any of the 
allegations in this case. Rather, the relevant experience I must 
consider is Respondent's addiction to cocaine and illegal handling of 
anabolic steroids. [Tr. 144]. In order to follow agency precedent, I 
will take into consideration evidence of Respondent's drug abuse under 
the fifth public interest factor. Tony T. Bui, M.D., 75 FR 49,979, 
49,989 (DEA 2010). To this point, however, the violations of state and 
federal law between September 1997 and January 2005, which arose from 
Respondent's cocaine addiction and unlawful conspiracy to handle 
steroids, are relevant considerations under this public interest 
factor.
    The manner in which the Respondent used cocaine was a violation of 
federal law.\114\ Specifically, Respondent's use of cocaine \115\ 
violated 21 U.S.C. 844(a), which provides that it is ``unlawful for any 
person knowingly or intentionally to possess a controlled substance 
unless such substance was obtained directly, or pursuant to a valid 
prescription or order, from a practitioner, while acting in the course 
of his professional practice . . . .'' No one disputes that Respondent 
did not have such a prescription.
---------------------------------------------------------------------------

    \114\ Respondent's involvement in a conspiracy to purchase 
anabolic steroids violated 21 U.S.C. 846 and 841(a)(1), which 
resulted in a felony conviction. [See Gov't Ex. 23, 26]. This is 
discussed in more detail under Factor 3 of the public interest 
analysis.
    \115\ Cocaine is regulated under Schedule II of the Controlled 
Substances Act. 21 U.S.C. 812; 21 CFR 1308.12(b)(4).
---------------------------------------------------------------------------

    Further, Respondent failed to comply with the MOA he entered into 
with the DEA. [Gov't Ex. 9]. Even though Supervisor Younker, the author 
of the document, testified that he was not aware of any violations 
\116\ Respondent committed under the MOA, Respondent credibly testified 
that he failed to meet the restrictions concerning the purchasing of 
controlled substances and the prescribing, dispensing, and 
administering of controlled substances to family members. [Gov't Ex. 9, 
at 1-2; Tr. 161]. Evidence in the record also indicates that Respondent 
had a positive drug test on December 21, 2004, which fell squarely 
between the July 2003 and July 2005 term of the MOA. [Gov't Ex. 13; Tr. 
87; Gov't Ex. 9, at 1-2].
---------------------------------------------------------------------------

    \116\ [Tr. 75, 78; Gov't Ex. 9, at 2].
---------------------------------------------------------------------------

    Respondent's cocaine use also violated Alabama law and 
administrative orders. Under Alabama law, Respondent's use of cocaine 
was a violation of Ala. Code 1975 Sec. Sec.  20-2-1, 13A-12-210, and 
specifically 13A-12-212, which provides that ``[a] person commits a 
crime of unlawful possession of controlled substance if: (1) [e]xcept 
as

[[Page 18733]]

otherwise authorized, he or she possesses a controlled substance 
enumerated in Schedules I through V.'' Ala. Code 1975 Sec.  13A-12-212. 
Such behavior also caused Respondent to lose his Alabama license to 
practice medicine in 2000 for failing to comply with the voluntary 
restrictions placed on his license, in violation of Ala. Code 
Sec. Sec.  34-24-360 (2), (3), (15) and (19). [Gov't Ex. 6, at 2-3; Tr. 
155]. Then, in 2004, after requesting reinstatement of his medical 
license, he failed to comply with drug-monitoring requirements and his 
Alabama medical license was once again suspended. [Gov't Ex. 12; Tr. 
165]. Eventually, in 2006, Respondent successfully had his medical 
license reinstated subject to an indefinite contract with APHP. [Gov't 
Ex. 16, at 1]. In 2010, all restrictions were lifted from Respondent's 
medical license. [Gov't Ex. 21; Tr. 175]. However, in 2012, all of his 
progress quickly unraveled when his license was immediately suspended 
as a result of his drug-related felony conviction. [Gov't Ex. 27, at 
1].
    Respondent has a similar pattern of non-compliance with 
Pennsylvania laws and administrative orders. In 1998, Respondent agreed 
to voluntary restrictions on his medical license after he was found to 
be in violation of section 63 P.S. Sec.  271.15(a)(4) of the 
Osteopathic Medical Practice Act as a result of his cocaine use. [Gov't 
Ex. 2, at 2]. But, he demonstrated his inability to comply with the 
restrictions when he later tested positive for cocaine. [Gov't Ex. 4, 
at 3]. Thus, in 1999, he was suspended from practicing medicine and 
entered into a consent agreement, which required him to stop using 
controlled substances. [Id. at 10, 21]. However, Respondent admitted 
during his testimony that he once again did not comply. [Tr. 153-54]. 
In 2001, Respondent's Pennsylvania license was put on probation for not 
less than five years for failing to comply with previous administrative 
orders, in violation of 63 P.S. Sec.  271.15(a)(6). [Gov't Ex. 8, at 2, 
11]. In 2007, Respondent entered into another consent agreement subject 
to licensing restrictions because, pursuant to 63 P.S. Sec.  
271.5(a)(5), Respondent was ``unable to practice the profession with 
reasonable skill and safety to patients by reason of illness, addiction 
to drugs or alcohol. . . .'' [Gov't Ex. 17, at 3]. While Respondent 
ultimately received an unrestricted medical license in 2010, 
Pennsylvania has issued an Order to Show Cause concerning Respondent's 
felony conviction. [Gov't Ex. 20, at 1; Gov't Ex. 30, at 1].
2. There Is Insufficient Evidence That Respondent's Use of Anabolic 
Steroids Violated Federal Law
    As for Respondent's use of anabolic steroids, the Government 
asserted that Respondent unlawfully consumed anabolic steroids. 
Specifically, the Government stated that Respondent's use of anabolic 
steroids: (1) Violated 21 U.S.C. 844, which prohibits illegal 
possession of anabolic steroids; (2) violated 21 U.S.C. 841(a)(1), 
which prohibits distribution of anabolic steroids; and (3) violated 21 
U.S.C. 846, which penalizes participation in a conspiracy related to 
the possession or distribution of controlled substances. [Gov't Brief, 
at 23].
    During his testimony, Respondent said that he did not purchase or 
consume anabolic steroids. [Tr.178]. However, Respondent admitted that 
he pled guilty to ``self-using the anabolic steroids.'' [Tr. 84]. 
Additionally, the factual resume of his indictment states that 
Respondent ``purchased, consumed, and trafficked anabolic steroids'' 
and Respondent ``admits in open court and under oath that [this] . . . 
statement is true and correct and constitutes evidence in the case.'' 
[Gov't Ex. 25, at 14].\117\
---------------------------------------------------------------------------

    \117\ The factual resume of the indictment was incorporated into 
Respondent's plea agreement by reference. [Gov't Ex. 25, at 3].
---------------------------------------------------------------------------

    While the record contains some evidence that Respondent consumed 
anabolic steroids, I find that the Government has not met its burden of 
proving such consumption was unlawful. None of the counts in the 
indictment mentioned Respondent's unlawful consumption of steroids or 
offered a specific statute that Respondent had violated by such 
consumption. [See generally Gov't Ex. 23]. Furthermore, the only count 
from the indictment to which Respondent pled guilty was conspiracy to 
distribute anabolic steroids. [Gov't Ex. 23; Gov't Ex. 26]. Thus, the 
guilty plea made no mention of illegal consumption. [Gov't Ex. 25]. As 
a result, I find that since Respondent did not plead guilty to unlawful 
consumption and the evidence in the record does not support such 
consumption,\118\ the record failed to prove that Respondent violated 
state or federal law with regards to the unlawful consumption of 
anabolic steroids.
---------------------------------------------------------------------------

    \118\ The Administrator has explained that ``in the absence of 
probative and reliable evidence'' of a charge, ``Respondent ha[s] no 
obligation to refute the charge.'' David A. Ruben, M.D., 78 FR 
38,363, 38,384 n.45 (DEA 2013). Here, since the record did not 
contain probative and reliable evidence that Respondent unlawfully 
consumed anabolic steroids, the Respondent is not required to refute 
it according to agency precedent.
---------------------------------------------------------------------------

3. Respondent's Failure to Maintain a DEA COR at his Principal Place of 
Business Violated a Duty of Registrants Under the CSA and Agency 
Regulations
a. Change of Address
    The Government incorrectly asserted that Respondent's failure to 
notify the DEA of his change in address for his DEA COR in Minnesota 
demonstrated that Respondent violated a duty arising under agency 
regulations. [Gov't Brief, at 7]. Government grounded the existence of 
Respondent's duty to notify the DEA of a change in address in DI 
Riley's testimony, where he answered in the affirmative to Government 
counsel's question, ``Investigator Riley, is it the duty and 
responsibility of the DEA registrant to be able to be located at their 
registered address?'' [Id.; Tr. 273]. Government then offered as proof 
of Respondent's violation an envelope sent to Respondent's registered 
address in Virginia, Minnesota, which was returned to the DEA with 
stamps saying ``Undeliverable as Addressed,'' ``Return to Sender,'' and 
``Unable to Forward.'' [Gov't Ex. 44].
    DEA regulations do not explicitly define a registrant's duty to 
notify the DEA of a change in address. Under 21 CFR 1301.51, a 
``[r]egistrant may apply to modify his/her registration . . . or change 
his/her name or address, by submitting a letter of request'' to the 
DEA. However, Respondent's ability to change the registered address, as 
indicated by ``may'' in the regulatory language, should not be confused 
with an affirmative responsibility of the Respondent to provide such 
notice under the regulations. If the DEA wanted to create a 
responsibility to notify the agency of a change in address, it could 
have used ``shall'' instead of ``may'' in the language of the 
regulation. Thus, pursuant to Sec.  1301.51, a Respondent does not have 
a duty to notify the DEA of his change in address. Consequently, 
Government incorrectly asserted that Respondent violated such duty in 
an effort to prove Respondent has a history of non-compliance.
b. Principal Place of Business
    Sua sponte, however, I find that the envelope,\119\ which was 
returned to the DEA, is evidence that Respondent violated 21 CFR 
1301.12. Under both the CSA and agency regulations, a registrant is 
required to obtain a ``separate registration . . . at each principal 
place of business or professional practice.'' 21 U.S.C. 822(e);

[[Page 18734]]

21 CFR 1301.12.\120\ Published guidance from the DEA concerning the 
``Registration Requirements for Individual Practitioners Operating in a 
`Locum Tenens' Capacity'' instructs that the location where a 
practitioner will work in a locum tenens capacity is considered his 
``principal place of business or professional practice'' for purposes 
of a DEA registration. Registration Requirements for Individual 
Practitioners Operating in a ``Locum Tenens'' Capacity, 74 FR 55,499, 
55,501 (DEA 2009).
---------------------------------------------------------------------------

    \119\ [Gov't Ex. 44].
    \120\ I find Government's citation to 21 CFR 1301.52, which 
discusses the conditions that may terminate registrations, and the 
citation to 21 CFR 1301.11, which addresses who is required to 
obtain a registration, are equally unhelpful. [Gov't Brief, at 26-
27].
---------------------------------------------------------------------------

    Here, Respondent testified that he was working in a locum tenens 
capacity in Minnesota. [Tr. 128]. The envelope sent by the DEA to 
Respondent, which was returned to DEA as undeliverable, listed the 
following address: 815 12th Street North, Virginia, Minnesota 55792. 
[Gov't Ex. 44]. Such address is the Respondent's registered address. 
[Gov't Ex. 34, at 1]. Because the envelope was returned to DEA having 
been marked as undeliverable, I find that Respondent was not registered 
at his principal place of business while working in a locum tenens 
capacity in Minnesota, in violation of 21 CFR 1301.12 (requiring any 
person to have a separate registration to handle controlled substances 
for each principal place of business or professional practice).
    In conclusion, I find that Government incorrectly asserted that 
Respondent violated a duty to notify DEA of a change in his registered 
address. I do not find that such duty exists under the statute or 
regulations. However, I find that Respondent, by failing to maintain 
his registration at his principal place of business, violated 21 CFR 
1301.12. Therefore, Respondent failed to obtain a separate registration 
for his principal place of business in Minnesota where he was working 
in a locum tenens capacity. Thus, Respondent's violation of Sec.  
1301.12 weighs in favor of finding that Respondent's continued 
registration is inconsistent with the public interest.
4. Respondent's Failure To Notify DEA of His Intention to Cease Medical 
Practice in Alabama Violated His Duties as a Registrant
    Government argued that Respondent failed to comply with agency 
regulations when he failed to notify DEA that his Alabama medical 
license and certificate of registration were suspended in 2012. [Gov't 
Brief, at 15; Tr. 180; Gov't Ex. 27]. Government added that Respondent 
violated agency regulations when he failed to surrender his DEA COR 
during periods of time when he did not have a valid medical license or 
state registration. Specifically, Supervisor Dittmer indicated during 
his testimony that he believed Respondent had a responsibility to 
surrender his registration upon losing his Pennsylvania medical license 
in 2001. [Gov't Brief, at 4; Tr. 62; Gov't Ex. 3, at 7].
    The Government offered as a legal basis for such duties, 21 CFR 
1307.02, which provides that ``[n]othing in [the regulations] shall be 
construed as authorizing or permitting any person to do any act which 
such person is not authorized or permitted to do under other Federal 
laws . . . or under the law of the State in which he/she desires to do 
such act. . . .'' It also cited to 21 U.S.C. 824(a)(3), which indicates 
that a DEA COR may be revoked or suspended if the registrant ``has had 
his State license or registration suspended, revoked, or denied by 
competent State authority. . . .'' I find that the Government 
incorrectly inferred a duty to notify and surrender a DEA COR from 
these broad provisions.
    ``[T]he registration of any person . . . shall terminate . . . if 
and when such person dies, ceases legal existence or discontinues 
business or professional practice.'' 21 CFR 1301.52(a). Agency 
precedent has interpreted this language to mean that such duty to 
notify arises when a registrant establishes that ``he intends to 
permanently cease the practice of medicine.'' William R. Lockridge, 
M.D., 71 FR 77,791, 77,797 (DEA 2006). A registrant may also 
demonstrate his intent through returning his DEA COR for cancellation. 
See 21 CFR 1301.52(c); John B. Freitas, D.O., 74 FR 17,524, 17,525 (DEA 
2009). Here, Respondent never testified that he intended to cease the 
practice of medicine in 2001 when his Pennsylvania license was 
suspended or in 2012 when his Alabama license was suspended. See Wayne 
D. Longmore, M.D., 77 FR 67,669, 67,671 (DEA 2012). Thus, Respondent 
did not violate a duty of notice under the agency regulations with 
respect to these circumstances.
    Sua sponte, however, I find that Respondent should have notified 
the DEA when he decided in 2004 that he no longer had any intention of 
practicing medicine in Alabama. [Tr. 165]. Respondent testified that in 
2004 he notified both his attorney and the Alabama SBME that he would 
not pursue an Alabama license. [Tr. 165]. As a result, the Alabama SBME 
rescinded its offer to reinstate his medical license. [Gov't Ex. 12]. 
Under these circumstances, Respondent expressed a clear intent to cease 
professional practice, which triggered 21 CFR Sec.  1301.52(a) and the 
duty to notify DEA.
    Even so, this does not mean that Respondent was also required to 
surrender his or her DEA COR. Surrendering a registration is a 
voluntary decision under agency regulations. See 21 CFR 1301.52(a); 
Voluntary Surrender of Certificate of Registration, 76 FR 61,563, 
61,563 (DEA 2011). Upon receiving notice, DEA can decide whether to 
institute proceedings against a registrant to revoke his registration, 
but the registrant is not obligated to surrender his registration. 
Consequently, I find that Respondent violated the regulations and 
failed to notify the DEA in 2004 of his intentions to cease the 
practice of medicine in Alabama. However, I do not find that the other 
circumstances described by the Government in 2001 and 2012 constituted 
non-compliance with agency regulations.
    In conclusion, I find that the evidence offered in support of 
Factors 2 and 4 proves several violations of federal and state laws, as 
well as administrative orders, which illustrate a pattern of non-
compliance that heavily weighs in favor of finding that Respondent's 
maintenance of a DEA COR would be inconsistent with the public 
interest.
Factor Three: Registrant's Conviction Record Relating to Controlled 
Substances
    Pursuant to 21 U.S.C. 823(f)(3), the Deputy Administrator may deny 
a pending application for a certificate of registration upon a finding 
that the applicant has been convicted \121\ of a felony related to 
controlled substances under state or federal law. See Thomas G. Easter 
II, M.D., 69 FR 5,579, 5,580 (DEA 2004); 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).
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    \121\ The Administrator interprets the term ``conviction'' by 
affording it the ``broadest possible meaning.'' Donald Patsy Rocco, 
D.D.S., 50 FR 34,210, 34,211 (DEA 1985). Thus, evidence of a guilty 
plea is probative under the third factor of the public interest 
analysis. See e.g., Farmacia Ortiz, 61 FR 726, 728 (DEA 1996); Roger 
Pharmacy, 61 FR 65,079, 65,080 (DEA 1996).
---------------------------------------------------------------------------

    The Deputy Administrator may revoke a respondent's certificate of 
registration on a similar basis. Pursuant to 21 U.S.C. Sec.  824(a)(4), 
a registration may be suspended or revoked by the [Deputy 
Administrator] upon a finding that the registrant . . . has been 
convicted of a felony . . . relating to any substance defined . . . as 
a controlled substance.'' See Algirdas J.

[[Page 18735]]

Krisciunas, M.D., 76 FR 4,940, 4,944 (DEA 2011); Ivan D. Garcia-
Ramirez, M.D., 69 FR 62,092, 62,093 (DEA 2004); William C. Potter, 
D.V.M., 65 FR 50,569, 50,569 (DEA 2000). The drug-related activity that 
gives rise to the convictions does not have to involve the registrant's 
DEA COR in order to justify the revocation. See e.g., Paul Stepak, 
M.D., 51 FR 17,556, 17,556-57 (DEA 1986) (revocation of registration 
for distributing LSD); William H. Carranza, M.D., 51 FR 2,771, 2,771-72 
(DEA 1986) (denial of registration application for possessing heroin 
and cocaine); Aaron Moss, D.D.S., 45 FR 72,850, 72,851 (DEA 1980) 
(denial of registration application for smuggling cocaine).
    It is important to note that the doctrine of res judicata precludes 
a respondent from re-litigating previous criminal convictions in a DEA 
administrative proceeding. See Robert L. Dougherty, M.D., 76 FR 16,823, 
16,830 (DEA 2011); Dan E. Hale, D.O., 69 FR 69,402, 69,406 (DEA 2004) 
(citing Robert A. Leslie, M.D., 64 Fed Reg. at 25,908-25,910). 
Likewise, collateral estoppel precludes a respondent from re-litigating 
the underlying factual findings of his criminal convictions in a DEA 
administrative hearing. Shahid Musus Siddiqui, M.D., 61 FR 14,818, 
14,818-19 (DEA 1996). The purpose of both doctrines is to ``protect[t] 
the litigants from the burden of relitigating'' and ``promot[e] 
judicial economy.'' Jose G. Zavaleta, M.D., 78 FR 27,431, 27,434 (DEA 
2013) (citing Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 326 
(1979)).
    In this case, Respondent's September 2011 guilty plea is considered 
a conviction for purposes of this factor of the public interest 
analysis. See Farmacia Ortiz, 61 FR at 728. Thus, Respondent has a 
recent drug-related felony conviction that strongly supports a finding 
that continuing his registration and granting his renewal application 
would be inconsistent with the public interest. [Gov't Ex. 25].
    Furthermore, I find that since Respondent has already pled guilty 
to the charges, he has waived his ability to defend his actions. I will 
not reconsider Respondent's conviction, or the underlying facts of his 
case, in accordance with the doctrines of res judicata and collateral 
estoppel. See Dan E. Hale, D.O., 69 FR at 69,406 (citing Robert A. 
Leslie, M.D., 64 FR at 25,908-25,910). I will simply adopt the findings 
in the factual resume of Respondent's plea agreement. [See Gov't Ex. 
25, at 14-16]. By signing the plea agreement, Respondent agreed that he 
entered into it freely and he ``plea[d] guilty because he is guilty.'' 
[Gov't Ex. 25, at 3 ] 10]. This conviction weighs heavily in favor of 
revoking Respondent's registration and denying Respondent's renewal 
application because it is related to controlled substances. It carries 
even greater weight because the conviction is in close proximity to 
this adjudication. Additionally, the events that gave rise to the 
conviction began within a month \122\ or so of the expiration of the 
Respondent's DEA MOA. [Gov't Brief, at 3].
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    \122\ Respondent's MOA with DEA expired July 15, 2005. [Gov't 
Ex. 9, at 2]. Count I of the indictment indicates that Respondent 
became involved with the conspiracy in approximately August 2005. 
[Gov't Ex. 23, at 1].
---------------------------------------------------------------------------

    Despite significant documentary evidence regarding the conviction, 
Respondent nevertheless attempted to downplay his involvement in the 
events that gave rise to the conviction. Respondent tried to pass blame 
for the conviction to his ex-wife because she was allegedly the one 
purchasing steroids from individuals in northern Alabama. [Tr. 126, 
195-96]. He explained that he ``wound up getting drug (sic) into a 
steroid charge'' because he gave his ex-wife money to buy Viagra and 
Cialis during the same transaction. [Tr. 130]. I find that this 
testimony in no way mitigates the weight of Respondent's conviction. If 
anything, Respondent's failure to apologize or show remorse for such 
actions is an aggravating circumstance under this factor of the public 
interest analysis.
    Finally, in its closing brief, the Government identified agency 
precedent that permits the Deputy Administrator to revoke a 
respondent's registration solely based on a felony conviction, even if 
the drug-related activity did not specifically involve the 
registration. [Gov't Brief, at 21-22]. While I acknowledge that a drug-
related felony conviction could provide sufficient basis to recommend 
revocation of the Respondent's registration or denial of his renewal 
application, I will still make findings as to the other public interest 
factors. However, the findings under this factor weigh heavily in favor 
of revoking Respondent's registration and denying his renewal 
application since a drug-related felony conviction is extremely 
inconsistent with the public interest.
Factor Five: Such Other Conduct Which May Threaten the Public Health 
and Safety
    Under the fifth public interest factor, the Agency considers 
``[s]uch other conduct which may threaten the public health and 
safety.'' 21 U.S.C. Sec.  823(f)(5) (emphasis added). The Administrator 
has clarified this language by reasoning that since Congress used the 
word ``may,'' factor five includes consideration of conduct, ``which 
creates a probable or possible threat (and not an actual) threat to 
public health and safety.'' Roni Dreszer, M.D., 76 FR at 19,434; 
Michael J. Aruta, 76 FR 19,420, 19,420 (DEA 2011); Beau Boshers, M.D., 
76 FR 19,401, 19,403 (DEA 2011); Jacobo Dreszer, M.D., 76 FR 19,386, 
19,386 (DEA 2011).
    Taking into consideration Congress's clear statutory language and 
legislative intent under the CSA, misconduct considered under factor 
five also ``must be related to controlled substances.'' Terese, Inc. D/
B/A Peach Orchard Drugs, 76 FR 46,843, 46,848 n.11 (DEA 2011); Tony T. 
Bui, M.D., 75 FR at 49,989 (finding that prescribing practices related 
to a non-controlled substance, such as human growth hormone, may not 
provide an independent basis for concluding that a registrant has 
engaged in conduct, which may threaten public health and safety); cf., 
Paul Weir Battershell, N.P., 76 FR 44,359, 44,360, 44,368 n.27 (DEA 
2011) (reasoning that while respondent's violation of the Food, Drug, 
and Cosmetic Act for improperly dispensing Human Growth Hormone does 
not relate to a controlled substance, such violation is relevant in 
assessing respondent's future compliance with the CSA).
    Long-standing agency precedent indicates that a ``practitioner's 
self-abuse of a controlled substance is a relevant consideration under 
factor five.'' Tony T. Bui, M.D., 75 FR at 49,989; Allan L. Gant, D.O., 
59 FR 10,826, 10,827 (DEA 1994); David E. Trawick, D.D.S, 53 FR 5,326 
(DEA 1988). This Agency has upheld such a position, ``even when there 
[was] no evidence that the registrant abused his prescription writing 
authority'' or when there was ``no evidence that the practitioner 
committed acts involving unlawful distribution to others.'' Tony T. 
Bui, M.D., 75 FR at 49,989.
    Here, Respondent credibly testified that he struggled with his 
addiction from 1985 to 2005. [Tr. 120]. Respondent openly admitted that 
he abused both drugs and alcohol, during this time period. [Tr. 144]. 
Respondent said he used cocaine several times a year while on vacation 
in the Caribbean. [Tr. 145]. He also used to drink alcohol three times 
a week, consuming up to eight or ten cans of beers each episode. [Id.]. 
I find that Respondent failed to show genuine remorse for these actions 
that could have had very devastating personal and professional 
consequences. [Tr. 160-61]. Thus, his conduct and lack of remorse 
weighs

[[Page 18736]]

against Respondent's maintenance of a DEA registration.
    As previously explained by the Deputy Administrator, ``[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, 36,915 (DEA 
1989). Nonetheless, time is certainly an appropriate factor to be 
considered. See Robert G. Hallermeier, M.D., 62 FR 26,818, 26,821 (DEA 
1997) (four years); John Porter Richards, D.O., 61 FR 13,878, 13,879 
(DEA 1996) (ten years); Norman Alpert, M.D., 58 FR 67,420, 67,421 (DEA 
1993) (seven years).
    In this case, the record demonstrates that the Respondent's cocaine 
abuse occurred from 1985 to January 2005. [Tr. 120]. The record 
contains no other use evidence of cocaine abuse. I find that 
Respondent's sobriety since 2005 weighs in Respondent's favor.
    However, an issue arises concerning the Respondent's handling of 
steroids. Respondent denied purchasing, consuming, and trafficking 
anabolic steroids,\123\ even though contradictory evidence was 
contained in the factual resume \124\ of his indictment, which stated: 
``Mark Peter Koch, a physician practicing in Camden, Alabama and 
Monroeville, Alabama, purchased, consumed, and trafficked anabolic 
steroids.'' [Gov't Ex. 25, at 14]. Since I determined that Respondent's 
testimony on this issue was not credible, I find that his recent 
conduct of purchasing and trafficking anabolic steroids, as documented 
in the factual resume, demonstrates he has not learned from his past 
mistakes concerning the handling of controlled substances. Thus, his 
conduct weighs against the Respondent's maintenance of a DEA 
registration.
---------------------------------------------------------------------------

    \123\ [See Tr. 178].
    \124\ The factual resume was incorporated into his plea 
agreement by reference. [Gov't Ex. 25, at 3]. However, I have found 
that Government failed to prove that the Respondent unlawfully 
consumed steroids.
---------------------------------------------------------------------------

    Overall, I conclude that the evidence under factor five weighs 
against a finding that Respondent's continued registration and renewal 
application are consistent with the public interest.
1. Mitigating Evidence
a. Respondent's Candor
    Once the Government has proved that Respondent has ``committed acts 
inconsistent with the public interest'' the Respondent must ``present 
sufficient mitigating evidence to assure the Deputy Administrator that 
it can be entrusted with the responsibility carried by such a 
registration.'' Medicine Shoppe--Jonesborough, 73 FR at 387 (internal 
citations omitted). 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 at 8,236; see also Prince 
George Daniels, D.D.S., 60 FR 62,884, 62,887 (DEA 1995); see also 
Ronald Lynch, M.D., 75 FR 78,745, 78,749-750 (DEA 2010) (Respondent's 
attempts to minimize misconduct held to undermine acceptance of 
responsibility).
    During the hearing, Respondent discussed his sincere efforts to 
rehabilitate. He described how he experienced a major turning point in 
2005, which enabled him to recognize that he had a substance abuse 
problem. [See Tr. 139]. He further explained that in February of 2005 
he entered Talbot Recovery Center. [Tr. 120-21]. With the help of this 
treatment, Respondent testified he has been drug-free since February 
2005 and alcohol-free since January 2005. [Tr. 139]. From his demeanor, 
I find that Respondent's testimony on his rehabilitation was credible. 
His ability to completely abstain from drugs and alcohol for eight 
years certainly weighs in Respondent's favor.
    However, while I find that Respondent's candor during this 
testimony was very open and honest about his addiction, he failed to 
testify credibly about his handling of anabolic steroids. Respondent 
blamed his ex-wife for conduct to which he pled guilty, thereby 
undermining the circumstances where he had actually accepted 
responsibility for his actions. This demonstrates a lack of candor and 
weighs against the Respondent's continued registration.
b. Evidence of Respondent's Community Impact and Professional 
Reputation
    The Agency does not ``consider community impact evidence in 
exercising its authority . . .'' to either deny an application for 
registration or revoke an existing registration. 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).
    With regards to evidence offered in support of Respondent's 
professional reputation, I find such testimony supportive, as far as it 
goes. The Government never challenged Respondent's practice of 
medicine. Therefore, the Respondent's professional reputation does not 
mitigate the Respondent's misconduct in this case.
    However, I have considered the Respondent's evidence, specifically 
the testimony from his colleagues concerning Respondent's ability to 
practice medicine. For example, Ms. Luker and Ms. Holloway described 
his professional reputation as ``[e]xcellent.'' [Tr. 219-20, 251]. Ms. 
Candies commented that she ``observed [Dr. Koch] to be a very 
professional doctor'' with ``good bedside manner.'' [Tr. 224]. Dr. Khan 
testified that ``as long as the state Board allows him to practice and 
we don't have any personal concerns about him, we don't have any 
problems with him practicing with us.'' [Tr. 116]. I find this 
testimony carries little value under the public interest analysis 
because it does not bear a connection to Respondent's ability to handle 
controlled substances. Terese, Inc. D/B/A Peach Orchard Drugs, 76 FR at 
46848 n.11. The fundamental issue in this case is not Respondent's 
ability to practice medicine, but rather Respondent's ability to handle 
controlled substances. Whether Respondent is qualified to maintain a 
medical license is for the state medical boards to decide. As a result, 
I find that any general testimony offered in support of Respondent's 
reputation to practice medicine is of little value for purposes of the 
public interest analysis in this case.
    On the other hand, I acknowledge that Respondent's colleagues 
offered a few general comments about Respondent's reputation related to 
drugs, which deserve some consideration. Dr. Khan credibly testified 
that ``we have never had any concerns about [Dr. Koch]'' working in the 
emergency room where there are ``a lot of people who have problems with 
drugs.'' [Tr. 115]. Ms. Roe said she has never questioned Respondent 
when he wrote prescriptions for patients. [Tr. 230]. Dr. Cook said she 
never thought he was acting under the influence of drugs or alcohol 
while on the job. [Tr. 262]. While this testimony is more probative 
than the testimony on Respondent's ability to practice medicine, it 
still does not carry significant weight for purposes

[[Page 18737]]

of this public interest factor because: (1) The witnesses did not 
specifically mention controlled substances; (2) they were not asked 
follow-up questions that would have given context to these comments; 
and (3) they were not well-informed about the facts involved in the 
Respondent's history of drug abuse or his drug-related conviction.
    Finally, I am not persuaded by Respondent's testimony that his 
registration is in the ``best interest of the community,'' \125\ 
because long-standing agency precedent indicates this is not a relevant 
consideration. See e.g., Linda Sue Cheek, M.D., 76 FR at 66973.
---------------------------------------------------------------------------

    \125\ [Tr. 229; Resp't Brief, at 4].
---------------------------------------------------------------------------

C. Conclusion and Recommendation

    I conclude that the Government has proven, by a preponderance of 
the evidence, that Respondent's renewal application for DEA COR No. 
FK1953327 in Minnesota should be denied and Respondent's DEA COR No. 
BK1391729 in Alabama should be revoked. Respondent has 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 
has been the subject of numerous state medical board orders that 
imposed probationary periods, that Respondent violated his DEA MOA, and 
that Respondent recently pled guilty to a felony concerning controlled 
substances. Furthermore, Respondent has not shown that he has learned 
from his past mistakes in a way that will prevent future misconduct.
    Although Respondent offered ample testimony concerning his 
reputation as a practicing physician and his impact on the medical 
community, the only probative mitigating evidence offered was 
generalized testimony about his ability to handle prescription drugs. 
Because Respondent has not taken full responsibility for his mistakes 
and genuinely expressed remorse, I find that granting Respondent's 
renewal application for the DEA COR in Minnesota is against the public 
interest and revoking Respondent's DEA COR in Alabama is appropriate. 
Consequently, I recommend that Dr. Koch's renewal application for DEA 
COR No. FK1953327 be denied and DEA Registration No. BK1391729 be 
revoked.

Dated: July 18, 2013.
Gail A. Randall,
Administrative Law Judge.

[FR Doc. 2014-07450 Filed 4-2-14; 8:45 am]
BILLING CODE 4410-09-P