Franklyn Seabrooks, M.D.; Decision and Order, 44196-44197 [2014-17893]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 79, Number 146 (Wednesday, July 30, 2014)]
[Notices]
[Pages 44196-44197]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17893]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Franklyn Seabrooks, M.D.; Decision and Order

    On April 8, 2014, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Franklyn Seabrooks, M.D. (hereinafter, Registrant), of 
Fairfield, California. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration BS4003795, which 
authorizes him to dispense controlled substances in schedules II-V as a 
practitioner, on the ground that he does ``not have authority to 
practice medicine or handle controlled substances in the [S]tate of 
California.'' Show Cause Order at 1 (citing 21 U.S.C. 823(f) and 
824(a)(3)).
    The Show Cause Order alleged that Registrant is registered as a 
practitioner in Schedules II-V at the registered address of 5140 
Business Center Drive, Suite 109, Fairfield, California. Show Cause 
Order at 1. The Show Cause Order further alleged that this registration 
does not expire until February 28, 2015. Id.
    Next, the Show Cause Order alleged that Registrant is currently 
without authority to handle controlled substances in California, the 
State in which he is registered, because on July 12, 2012, the Medical 
Board of California (MBC) filed a ``Petition for Ex Parte Interim 
Suspension Order,'' which was granted the following day by the Medical 
Quality Hearing Panel (``Hearing Panel'') of the State's Office of 
Administrative Hearings, thereby suspending Registrant's Physician's 
and Surgeon's license on an interim basis. Id. The Show Cause Order 
then alleged that on November 7, 2012, an MBC Hearing Panel ordered 
that the suspension be continued, and that following a further hearing, 
the MBC revoked his license effective November 22, 2013. Id. The Order 
thus asserted that based upon his lack of authority to handle 
controlled substances in the State of California, Registrant's 
Registration must be revoked. Id. (citing 21 U.S.C. 802(21), 823(f) and 
824(a)(3)). The Order also notified Registrant of his right to request 
a hearing on the allegations or to submit a written statement in lieu 
of a hearing, the procedure for electing either option, and the 
consequence of failing to elect either option. Id. (citing 21 CFR 
1301.43).
    According to the Declaration of a DEA Diversion Investigator (DI), 
on April 11, 2014, the Order to Show Cause was served on Registrant at 
his home unit at the Napa State Hospital. GX 2. The DI stated on that 
date, he and a DEA Special Agent attempted to personally serve 
Respondent after being advised by Respondent's attorney that Respondent 
was a patient at that facility. Id. The DI further stated that upon 
arriving at the hospital gate, he was told that service of the Show 
Cause Order would have to be performed by a police officer, who would 
then confirm service by an email to the DI. Id. On April 14, 2014, the 
DI received an email from a police officer confirming that service had 
occurred. Id.
    On May 5, 2014, the DEA Office of Administrative Law Judges 
received a letter from David Brown, Esq., an attorney with the law firm 
of Beyer, Pongratz & Rosen, in Sacramento, CA. GX 8. The letter, which 
is dated April 30, 2014 and appears to be printed on the law firm's 
letterhead, states: ``The undersigned, David L. Brown, hereby waives a 
hearing regarding the Order to Show Cause regarding Franklyn E. 
Seabrooks, M.D. and his DEA Certificate of Registration.'' Id. The 
printed signature line for David L. Brown states: ``Attorney for 
Respondent, Franklyn E. Seabrooks, II''; however, the letter is 
unsigned. Id. at 3. Attached to this letter is a copy of the April 8, 
2014 Order to Show Cause issued to Registrant. Id. at 4-5.
    Notwithstanding that the letter was not signed, I note that the law 
firm on the letterhead is the same firm that represented Registrant 
before the MBC. I therefore find that Mr. Brown is Registrant's 
attorney and based on his representation in the letter, I find that 
Registrant has waived his right to a hearing or to submit a written 
statement in lieu of a hearing. 21 CFR 1301.43(e). I therefore issue 
this Decision and Order based on relevant material contained in the 
record submitted by the Government. I make the following factual 
findings:

Findings

    Registrant is the holder of DEA Certificate of Registration 
BS4003795, which authorizes him to dispense controlled substances in 
schedules II-V as a practitioner, at the registered address of 5140 
Business Center Drive, Suite 109, Fairfield CA. GX 3. This registration 
does not expire until February 28, 2015. Id.
    On July 13, 2012, an administrative law judge (ALJ) of the Office 
of Administrative Hearings, Department of Consumer Affairs, State of 
California, heard a petition for Ex Parte Interim Suspension of 
Registrant's Physician's and Surgeons' Certificate (hereinafter, 
medical license). GX 4. Following an evidentiary hearing during which 
Registrant was neither present nor represented but submitted documents 
for consideration by the ALJ, the ALJ ordered the immediate suspension 
of Registrant's medical license. The ALJ found, inter alia, that 
Registrant had ``engaged in actions constituting violations of various 
laws and regulations involving the practice of medicine,'' that 
permitting him to continue ``in the practice of medicine will endanger 
the public health, safety and welfare,'' and that ``serious injury will 
result to the public before the matter may be heard on regular 
notice.'' Id. at 2. The ALJ then scheduled a further hearing on the 
State's petition. Id.
    On October 29, 2012, the hearing was held before another state ALJ. 
GX 5. At the hearing, Registrant was represented by counsel, oral and 
documentary evidence was presented, and oral argument was offered. 
Following the hearing, the ALJ found that Registrant ``has engaged in 
acts or omissions constituting a violation of the Medical Practice Act 
and that he is unable to practice medicine safely due to a mental or 
physical condition, and that permitting [him] to continue to engage in 
the practice of medicine will endanger the public health, safety or 
welfare.'' Id. at 19-20. Further finding ``that the likelihood of 
injury to the public in not issuing the order outweighed the likelihood 
of injury to [Registrant] in issuing the order,'' on November 7, 2012, 
the ALJ ordered that the Interim Suspension Order on Registrant's 
medical license remain in effect. Id. at 20.
    On September 30, 2013, a further hearing was held before a third 
state ALJ. GX 6. Registrant was represented by counsel but did not 
personally appear. The ALJ found that ``due to his mental impairment, 
[Registrant] has engaged in unprofessional conduct on multiple 
occasions,'' that ``[c]ause exists to revoke [his] Physician's and 
Surgeon's certificate,'' that his ability to practice medicine safely 
is impaired because he is ``mentally ill, or physically ill affecting 
competency,'' and that ``at this time, protection of the public can be 
achieved only through license revocation.'' Id. at 20. The ALJ

[[Page 44197]]

then proposed that Registrant's license be revoked. Id. at 21. The MBC 
adopted the proposed decision, which became effective on November 22, 
2013. GX 7.
    In his letter waiving Registrant's right to a hearing, Registrant's 
counsel acknowledges that Registrant's medical certificate had been 
revoked by the MBC. GX 8, at 2. The letter then states that the state 
ALJ ``specifically left open the possibility of reinstatement of 
[Registrant's] medical certificate upon satisfaction of Business and 
Professions Code section 822.'' Id. Continuing, Registrant 
``respectfully requests the Drug Enforcement Administration allow the 
same remedy to remain available for purposes of DEA certificate and 
registration.'' Id. The waiver letter also contains a ``prayer . . . 
for reservation of rights. . . . If [Registrant's] Medical Certificate 
is reinstated, the next logical progression would to [sic] apply for 
reinstatement of his DEA Certificate. [Registrant] humbly seeks this 
avenue to remain available to him, should he return to the practice of 
medicine.'' Id. at 2-3.
    An internet search of the MBC's public record actions Web page 
reveals that Registrant's medical license remains revoked.

Discussion

    The Controlled Substances Act (CSA) grants the Attorney General 
authority to revoke a registration ``upon a finding that the registrant 
. . . has had his State license or registration suspended [or] revoked 
. . . and is no longer authorized by State law to engage in the . . . 
distribution [or] dispensing of controlled substances.'' 21 U.S.C. 
824(a)(3). Moreover, DEA has long held that a practitioner must be 
currently authorized to handle controlled substances in the 
``jurisdiction in which [he] practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``the term `practitioner' means a 
. . . physician . . . or other person licensed, registered or otherwise 
permitted, by . . . the jurisdiction in which he practices . . . to 
distribute, dispense, [or] administer . . . a controlled substance in 
the course of professional practice.''); see also id. Sec.  823(f) 
(``The Attorney General shall register practitioners . . . if the 
applicant is authorized to dispense . . . controlled substances under 
the laws of the State in which he practices.''). As these provisions 
make plain, possessing authority under state law to dispense controlled 
substances is an essential condition for holding a DEA registration. 
See David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 
FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988).
    Here, the evidence shows that Respondent's medical license has been 
revoked and that he no longer holds authority under California law to 
dispense controlled substances. Registrant is therefore not entitled to 
maintain his DEA registration. See 21 U.S.C. 802(21), 823(f), and 
824(a)(3). Accordingly, Registrant's registration will be revoked.\1\
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    \1\ In the event the MBC reinstates Registrant's Physician's and 
Surgeon's Certificate, he may apply for a new DEA Certificate of 
Registration.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA 
Certificate of Registration BS4003795, issued to Franklyn Seabrooks, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Franklyn Seabrooks, M.D., to renew or modify his 
registration, be, and it hereby is, denied. This Order is effective 
August 29, 2014.

    Dated: July 22, 2014.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2014-17893 Filed 7-29-14; 8:45 am]
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