Daniel A. Glick, D.D.S.; Decision and Order, 74800-74810 [2015-30256]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 80, Number 229 (Monday, November 30, 2015)]
[Notices]
[Pages 74800-74810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30256]



[[Page 74800]]

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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 14-19]


Daniel A. Glick, D.D.S.; Decision and Order

    On January 9, 2015, Chief Administrative Law Judge John J. 
Mulrooney, II (hereinafter, CALJ), issued the attached Recommended 
Decision (cited as R.D.).\1\ Therein, the CALJ found that Respondent 
knowingly and materially falsified three renewal applications he 
submitted (in 2006, 2009, and 2012) for his DEA registration, when he 
failed to disclose that in 2003, he entered into a Consent Agreement 
with the Ohio State Dental Board pursuant to which his dental license 
was indefinitely suspended, and after his license reinstated, he was 
placed on probation. R.D. at 19-22.
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    \1\ All citations to the Recommended Decision are to the slip 
opinion as issued by the CALJ.
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    Having concluded that the Government had ``made out a prima facie 
case'' to revoke Respondent's registration, id. at 22, the CALJ further 
found that he ``has not tendered an unequivocal acceptance of 
responsibility'' and was therefore ``foreclosed from a favorable result 
in these proceedings.'' Id. at 23. And, after finding that the 
egregiousness of Respondent's misconduct was ``enhanced by the fact 
that it was repeated on three occasions,'' id., the CALJ further found 
that the Agency's interests in both specific and general deterrence 
supported the revocation of his registration. Id. at 23-25.
    Respondent filed Exceptions to the CALJ's Decision. Having 
considered the record in its entirety including Respondent's 
Exceptions, I have decided to adopt the CALJ's factual findings, 
conclusions of law, and recommended order. A discussion of Respondent's 
Exceptions follows.
    Respondent takes exception to the CALJ's finding that he did not 
adequately accept responsibility for his misconduct. Specifically, 
Respondent takes issue with the following reasoning in the CALJ's 
Recommended Decision:

[t]o satisfy his modest burden to accept responsibility would have 
required, at a minimum, an acknowledgment that he knew and 
understood the answers were false when the applications were 
presented and thereafter. Even in his Closing Brief, the Respondent 
does not unequivocally state he was wrong and unreasonable at the 
time the DEA . . . renewal applications were submitted, but merely 
posits that he ``now agrees that he should have consulted with an 
attorney, someone with the federal government, or with the DEA 
specifically, before answering the liability question [on] the . . . 
application.''

R.D. 23 (quoting Resp. Post-Hrng. Br. at 3); see also Resp. Exceptions 
at 2-3.
    According to Respondent, he ``did in fact accept responsibility and 
present an understanding that his answers were false.'' Exceptions at 
2. Quoting from his proposed factual findings, his counsel argues that 
`` `[i]n retrospect, Respondent understands that he made a mistake in 
providing `no' [answers] to various liability questions. Respondent had 
no intention of being deceitful.' '' Id. at 3 (quoting Post-Hrng. Br., 
at ] 11 (citing Tr. 124)). Further quoting from his proposed factual 
findings, Respondent's counsel argues that he `` `is now fully aware of 
the importance of providing truthful answers' '' to the application's 
questions. Id. (quoting Post-Hrng. Br., at ] 12 (citing Tr. 127)). 
According to Respondent, ``these statements indicate that not only was 
Respondent aware that the statements he made on his application were 
false, but also that he now appreciated the importance of providing 
truthful answers.'' Id.
    Having reviewed Respondent's testimony, I agree with the CALJ's 
conclusion that Respondent has not unequivocally acknowledged his 
misconduct. To be sure, Respondent did answer ``yes'' when asked by his 
counsel whether ``[i]n retrospect, would you say that was a mistake?'' 
Tr. 124. Yet a review of the record shows that ``that'' was not a 
reference to the three DEA applications he falsified but rather to an 
application for malpractice insurance. See id. at 122-24. As for 
Respondent's citation to the testimony at Tr. 127, here too, the 
questions failed to specifically refer to his DEA applications, rather 
than such generalities as his ``obligation to the patient populations 
that you treat,'' id. at 126, ``the importance of answering truthfully 
questions that may impact on that ability,'' and ``questions that were 
placed to you by PPOs.'' Id. at 127.
    When Respondent did address why he provided a ``no'' answer to the 
question on the DEA applications regarding whether he had ever been 
disciplined by state licensing or controlled substance authorities, he 
claimed that he called either of two investigators for the State Dental 
Board and was ``specifically told'' that he could ``answer no'' on his 
DEA applications. Tr. 115-16. When pressed by the CALJ as to why he 
would ask investigators for the Dental Board how to answer questions on 
the DEA applications, Respondent testified:

    At the time I was asking about everything. So their answers 
were, and obviously I jumped and assumed, but their answers were, 
yeah, you can answer no. When I did and nothing happened, I took 
that as they know what they're talking about. I never had dealt with 
this previously, so I didn't know, you know, how to deal with it, 
and they're the only people I could talk to.

Tr. 116-17. When then asked by the CALJ ``why wouldn't you call DEA?'' 
Respondent answered:

I don't know. I just--I think I assumed that the Ohio State Dental 
Board is my governing board of everything. In my mind, I don't 
separate it out, but I know it is a different thing and a different 
application, but, you know, without a dental license I can't get a 
DEA license, so my assumption is that the Ohio State Dental Board 
regulates or oversees all of my aspects of my license.

Id. at 117. And when asked by the CALJ whether, if he ``issued a 
subpoena to these two investigators . . . they would remember that they 
gave you advice on the DEA application and . . . didn't just say you 
need to talk to DEA about DEA's requirement?'' Respondent testified 
that ``they might not remember a specific conversation, but they may 
recollect it.'' Id. at 117-18. Respondent did not, however, call to 
testify either of the Board's Investigators who purportedly told him 
that he could provide a ``no'' answer to the DEA question.\2\
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    \2\ The record shows that one of the Board's investigators was 
subpoenaed by Respondent but did not appear because of illness. See 
Order Canceling Hearing and Setting Filing Deadlines, at 1 (Dec. 1, 
2014). While the CALJ continued the matter to allow Respondent to 
call this witness, Respondent eventually decided not to call the 
witness and rested on the evidence he had previously presented. Id.; 
see also R.D. 21 n.40.
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    Later, on cross-examination, the Government asked Respondent: ``. . 
. if DEA asked you or if the PPO asked you or if the pharmacy board 
asked you about any previous disciplinary actions, do you understand 
the objective in their asking you whether you had any previous 
disciplinary actions with a licensing board?'' Tr. 129. Respondent 
answered: ``I don't think they explain the reason why they're asking.'' 
Id. After Respondent eventually conceded that protecting the public was 
the reason why these entities asked this question, the Government asked 
Respondent: ``[s]o how do you balance your reputational concerns with 
protection of the public?'' Id.\3\ Respondent answered: ``I didn't feel 
I was a threat to the

[[Page 74801]]

public.'' Id. Still later, on questioning by the CALJ, Respondent 
answered ``yes'' when asked if he was ``concerned that [providing a yes 
answer] would trigger some other response both in insurance or the 
regulatory boards?'' Id. at 132.
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    \3\ Earlier, in questions that did not specifically address his 
falsification of his DEA applications but appear to have been 
related to his admitted falsifications of his applications to 
participate in insurance plans, Respondent explained that he 
provided false answers ``[f]or fear that it would do more harm to my 
reputation . . . it was more a reputational immaturity, if you 
will.'' Tr. 128.
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    Returning to the issue of why he did not contact DEA and ask how he 
should answer the question on his DEA applications, Respondent 
explained:

    I never had a relationship with anybody from the DEA. I never 
thought to call them directly, and my sole contact was with the 
governing board of my license. So I assumed they knew--they were the 
umbrella. So, if you go to the top, everything else falls underneath 
them. That's what I assumed.

Id. at 134.
    After he again asserted that both the Dental Board and Ohio 
Pharmacy Board knew about his disciplinary record, the CALJ asked: 
``[b]ut if DEA wasn't part of that, there was no reason that you had to 
know that DEA would know any of this . . . ?'' Id. at 135. Respondent 
answered: I assumed that DEA is under the pharmacy board.'' Id. When 
the CALJ then asked Respondent how he could ``assume that DEA would 
know any of it if you didn't report it or didn't tell them,'' and ``how 
would [DEA] know?'' Respondent answered:

    Either . . . I assumed that they're all in conjunction with each 
other, I assume, and if they didn't know about it, I don't know. Why 
wouldn't they know about it? If the board was able to find out about 
it, why wouldn't the--you know, if the dental board found out about 
it, I'm sure that the pharmacies--the drug board would find out 
about it.

Id. at 136.
    Still later, on re-direct examination, Respondent agreed with his 
counsel that he had ``answered no to these liability questions on 
numerous applications.'' Id. at 141. Respondent's counsel then asked 
him if ``[w]hen you first started answering no to that question, were 
you under an impression that that was the proper answer, and if you 
were, how did you get that impression?'' Id. Respondent testified: ``I 
was led to believe that that was the proper answer from various people, 
and once I answered no and it passed, so to speak, then I was in the 
clear.'' Id.
    Respondent then asserted that at the time, he thought these 
``people'' were, in the words of his counsel, ``people in authority at 
least in the State of Ohio'' and with the Dental Board. Id. Respondent 
then agreed with his counsel ``that not consulting with an attorney or 
at least somebody'' at the DEA, was ``a grave mistake.'' Id. at 142. 
When then asked if ``you had to do it over again, how would you handle 
this?'' Respondent testified: ``I would answer yes with a form letter 
attached to the applications.'' Id.
    The Agency has repeatedly held that where, as here, the Government 
has made out a prima facie case to support a finding that a 
registration should be suspended or revoked under one of the five 
grounds set forth in 21 U.S.C. 824(a), a registrant must ` ``present 
sufficient mitigating evidence to assure the Administrator that [he] 
can be entrusted with the responsibility' '' that attaches with holding 
a registration. Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) 
(quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting Leo R. 
Miller, 53 FR 21931, 21932 (1988))). ``Moreover, because `past 
performance is the best predictor of future performance,' ALRA Labs, 
Inc. v. DEA, 54 F.3d 450, 452 (7th Cir.1995), [DEA] has repeatedly held 
that where a registrant has committed acts [which subject his 
registration to suspension or revocation], the registrant must accept 
responsibility for [his] actions and demonstrate that [he] will not 
engage in future misconduct.'' Medicine Shoppe, 73 FR at 387; see also 
Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 (2006); 
Prince George Daniels, 60 FR 62884, 62887 (1995). See also Hoxie v. 
DEA, 419 F.3d at 483 (``admitting fault'' is ``properly consider[ed]'' 
by DEA to be an ``important factor[]'' in the public interest 
determination). A registrant's acceptance of responsibility must be 
unequivocal. See Michael A. White, 79 FR 62957, 62958 (2014); The 
Medicine Shoppe, 79 FR 59504, 59510 (2014); Ronald Lynch, 75 FR 78745, 
78754 (2010).
    While Respondent had the burden of production on the issue of 
whether he accepted responsibility for his misconduct and can be 
entrusted with a registration, the CALJ found his evidence insufficient 
to rebut the Government's prima facie case. I agree with the CALJ. As 
discussed above, the testimony which Respondent cites in his Exceptions 
as evidence that he acknowledges his misconduct did not even address 
his falsifications of the three DEA applications. When Respondent did 
address why he falsified his DEA applications, he asserted that he was 
told by investigators for the Ohio Dental Board that he could answer 
``no.'' Notably, while the CALJ continued the proceeding to allow 
Respondent to present the testimony of one of the Dental Board 
investigators who purportedly would have corroborated his claim, 
Respondent eventually rested his case without calling this witness.
    The CALJ found implausible Respondent's testimony that a Dental 
Board investigator told him he could answer ``no'' to the DEA 
application's liability question. R.D. at 15-16. I agree and find that 
Respondent provided false testimony on this issue. Indeed, the only 
respect in which Respondent provided truthful testimony related to this 
issue was when he acknowledged that he was concerned that if he 
answered ``yes'' to questions on the various applications ``it would 
trigger some other response both in insurance or the regulatory 
boards.'' Tr. 132. Disturbingly, even at the hearing, Respondent 
persisted in offering excuses rather than admit that he lied on his 
three DEA applications. His false testimony is fatal to his contention 
that he acknowledges his misconduct and his claim that he is entitled 
to remain registered.
    As the ALJ noted, because Respondent has failed to acknowledge his 
misconduct, his assurance (even if I found it credible) that he will 
provide truthful answers on future DEA applications is irrelevant. R.D. 
23. Moreover, in his Exceptions, Respondent ignores that there are 
additional factors that are relevant in determining the appropriate 
sanction. See, e.g., Joseph Gaudio, 74 FR 10083, 10094 (2009); 
Southwood Pharmaceuticals, Inc., 72 FR 36487, 36504 (2007).
    These include the egregiousness and extent of a registrant's 
misconduct. See Jacobo Dreszer, 76 FR 19386, 19387-88 (2011) 
(explaining that a respondent can ``argue that even though the 
Government has made out a prima facie case, his conduct was not so 
egregious as to warrant revocation''); Paul H. Volkman, 73 FR 30630, 
30644 (2008); see also Paul Weir Battershell, 76 FR 44359, 44369 (2011) 
(imposing six-month suspension, noting that the evidence was not 
limited to security and recordkeeping violations found at first 
inspection and ``manifested a disturbing pattern of indifference on the 
part of [r]espondent to his obligations as a registrant''); Gregory D. 
Owens, 74 FR 36751, 36757 n.22 (2009). They also include the Agency's 
need to deter similar acts, both with respect to the respondent in a 
particular case and the community of registrants. See Gaudio, 74 FR at 
10095 (quoting Southwood, 71 FR at 36503). Cf. McCarthy v. SEC, 406 
F.3d 179, 188-89 (2d Cir. 2005) (upholding SEC's express adoption of 
``deterrence, both specific and general, as a component in analyzing 
the remedial efficacy of sanctions'').
    The CALJ found that Respondent's misconduct was egregious in that 
he materially falsified his applications three times and was 
``motivated by his desire to avoid drawing negative

[[Page 74802]]

attention to himself and his practice.'' R.D. 23. In other words, 
Respondent intended to deceive the Agency. Notably, in his Exceptions, 
Respondent does not challenge the CALJ's finding that his conduct is 
egregious. I agree with the CALJ and conclude that Respondent's 
multiple falsifications warrant the revocation of his registration.
    Finally, the CALJ also found that the Agency's interests in both 
specific and general deterrence support the revocation of his 
registration. Here too, Respondent does not challenge the CALJ's 
findings. I agree with the CALJ's findings that the Agency's interests 
in both specific and general deterrence support the revocation of 
Respondent's registration.
    Accordingly, I reject Respondent's Exceptions and will adopt the 
CALJ's recommended order.

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), I order that DEA Certificate of 
Registration BG1606219 issued to Daniel A. Glick, D.D.S, be, and it 
hereby is, revoked. I further order that any application of Daniel A. 
Glick, D.D.S., to renew or modify his registration, be, and it hereby 
is, denied. This Order is effective December 30, 2015.

    Dated: November 19, 2015.
Chuck Rosenberg,
Acting Administrator.
    Robert W. Walker, Esq. for the Government.
    Michael J. Goldberg, Esq., for the Respondent.

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION 
OF THE ADMINISTRATIVE LAW JUDGE

    Chief Administrative Law Judge John J. Mulrooney, II. On August 4, 
2014, the Deputy Assistant Administrator of the Drug Enforcement 
Administration (DEA) issued an Order to Show Cause (OSC) \4\ proposing 
to revoke the DEA Certificate of Registration (COR) Number 
BG1606219,\5\ and deny any pending applications of Daniel A. Glick, 
D.D.S. (Respondent) pursuant to 21 U.S.C. 824(a) (2012), on the basis 
that the Respondent allegedly materially falsified multiple 
applications to renew his DEA COR.\6\ On August 15, 2014, the 
Respondent filed a timely request for a hearing.\7\ A hearing was 
conducted in this matter on November 19, 2014, in Cleveland, Ohio.
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    \4\ ALJ Ex. 1.
    \5\ Gov't Exs. 1, 7.
    \6\ ALJ Ex. 1, at 1-2.
    \7\ ALJ Ex. 2.
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    The issue ultimately to be adjudicated by the Administrator, with 
the assistance of this recommended decision, is whether the record as a 
whole establishes by substantial evidence that the Respondent's 
continued registration with the DEA should be revoked pursuant to 21 
U.S.C. 824(a).
    After carefully considering the testimony elicited at the hearing, 
the admitted exhibits, the arguments of counsel, and the record as a 
whole, I have set forth my recommended findings of fact and conclusions 
of law below.

The Allegations

    In its OSC, in support of the revocation it seeks, the Government 
alleges that the Respondent ``materially falsif[ied] [his] renewal 
applications for continuing authorization to handle controlled 
substances under [his] DEA COR,'' in violation of 21 U.S.C. 824(a)(1).

The Stipulations of Fact

    The Government and the Respondent, through counsel, have entered 
into stipulations regarding the following matters:
    1) Respondent is currently registered with DEA as a practitioner in 
Schedules II-V under DEA registration number BG1606219 at a registered 
location of 22901 Millcreek Boulevard, Suite 140, Beachwood, Ohio 
44122. His DEA COR is current, and reflects an expiration date of 
September 30, 2015.
    2) On November 6, 2003, Respondent entered into a Consent Agreement 
with the Ohio State Dental Board (Dental Board).
    3) On or about September 19, 2003, Respondent was charged with 
felony possession of cocaine in the Cuyahoga County Court in Ohio.
    4) On October 22, 2003, Respondent entered a plea of no contest to 
the above charges. On or about that same date, Respondent successfully 
petitioned the court for treatment in lieu of conviction, and on or 
about October 6, 2004, the charge of cocaine possession was dismissed, 
and Respondent's plea of no contest was vacated.
    5) On January 7, 2004, Respondent's dental license was reinstated 
by the Dental Board.
    6) Cocaine is a Schedule II controlled substance pursuant to 21 CFR 
1308.12(b)(4).

The Evidence

The Government's Evidence

    The Government's case-in-chief included the testimony of two 
witnesses: Ohio State Dental Board Executive Director Lili Reitz, Esq. 
and DEA Diversion Group Supervisor Scott Brinks.
    Diversion Group Supervisor (GS) Scott Brinks, the lead DEA 
investigator on the Government's case, testified that he is a fifteen-
year DEA investigator, retired Department of Veterans Affairs police 
officer, and former military police officer.\8\ Tr. 64. GS Brinks 
testified that his contact with this case began as result of his 
independent investigation of the Respondent's brother, who, at the 
time, was also a practicing dentist and DEA registrant. In the course 
of investigating the Respondent's brother, GS Brinks happened upon the 
Respondent's 2003 airport arrest for cocaine possession and followed 
up.\9\ Tr. 65-66. After conducting some additional research in DEA's 
Registration Information Consolidation System (RICS),\10\ GS Brinks 
discovered that the Respondent answered ``no'' to a liability question 
(Question 3) on his DEA COR renewal application asking whether his 
state license had ever been suspended, notwithstanding the existence of 
a consent agreement with the Ohio State Dental Board (Dental Board) 
wherein his state license had been suspended as a result of his 
arrest.\11\ Tr. 66; Gov't Ex. 7. GS Brinks explained the system by 
which DEA processes renewal applications for registrants, and stated 
that if a registrant enters a remarkable or ``yes'' answer to a 
liability question, the file is assigned to a field office for further 
investigation. Tr. 68. An application received with no remarkable 
answers to the liability questions is routinely processed without any 
field investigation, and according to GS Brinks, ``[i]t will just 
automatically be renewed.'' Tr. 68-69.
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    \8\ Diversion Group Supervisor (GS) Brinks testified that at the 
time he investigated the Respondent, he served as a Diversion 
Investigator (DI) in DEA's Cleveland office, but that he was 
subsequently promoted to his current position as Diversion Group 
Supervisor at the Merrillville (Indiana) Resident Office. Tr. 64-65.
    \9\ The Respondent's brother was the subject of an unrelated 
Order to Show Cause before this tribunal (Docket No. 14-18).
    \10\ A printout of the relevant RICS inquiry result (RICS 
printout) was received into the record without objection.
    \11\ The RICS printout reflected that all liability questions 
were answered in the negative.
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    Through GS Brinks's testimony, the Government offered three COR 
renewal applications submitted by the

[[Page 74803]]

Respondent on August 7, 2006, August 8, 2009, and August 19, 2012.\12\ 
Gov't Exs. 4, 5, 6. Each of the three COR renewal applications 
reflected a negative answer to Question 3, which, in pertinent part, 
asks:
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    \12\ These exhibits were received over the Respondent's 
foundation objection. Tr. 72-78.
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    Has the applicant ever . . . had a state professional license or 
controlled substance registration . . . suspended . . . or placed on 
probation. . . .
    The testimony presented by GS Brinks was essentially 
uncontested.\13\ Beyond that, he presented as an objective, experienced 
\14\ regulator who has no stake in the outcome of the Respondent's 
proceedings. Taken as a whole, his testimony was sufficiently detailed, 
plausible, and internally consistent to merit full credibility in the 
instant matter.
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    \13\ The Respondent waived cross-examination of this witness. 
Tr. 79.
    \14\ GS Brinks testified that along with his education, prior 
law enforcement experience, and DEA training, he had been involved 
in ``well over 100'' diversion regulatory investigations. Tr. 65.
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    The Government also introduced, without objection, an affidavit 
executed by DEA's Chief of the Registration and Program Support 
Section, Richard A. Boyd, regarding the history of the Respondent's 
registration with the DEA (DEA Records Affidavit). Gov't Ex. 2. The DEA 
Records Affidavit states that DEA initially assigned the Respondent COR 
BG1606219 on October 20, 1988. Id. at 1. The DEA Records Affidavit 
further provides that the Respondent most recently renewed this 
registration on August 19, 2012. Id. The DEA Records Affidavit states 
that at the time of the August 19, 2012 license renewal application, 
the Respondent answered in the negative to all four mandatory 
``Background Investigation'' liability questions, including question 
one, whether he had ``ever been convicted of a crime in connection with 
controlled substance(s) under state or federal law . . .''; and 
Question 3, whether he had ``ever surrendered (for cause) or had a 
state professional license or controlled substance registration 
revoked, suspended, denied, restricted, or placed on probation, or is 
any such action pending?'' Id. The DEA Records Affidavit likewise 
certifies that the Respondent submitted additional DEA COR renewal 
applications on August 7, 2006 and August 8, 2009.\15\ In both the 2006 
and 2009 renewal applications, the Respondent also answered in the 
negative to Question 3 and the other liability questions. Id. at 2-3.
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    \15\ A copy of the August 19, 2012 renewal application was 
received into the record. Gov't Ex. 6. Copies of the August 19, 2012 
(Gov't Ex. 6), August 8, 2009 (Gov't Ex. 5), and August 7, 2006 
(Gov't Ex. 4) renewal applications were also received into the 
record over the Respondent's (foundation) objection.
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    Executive Director (Exec. Dir.) Lili E. Reitz also testified for 
the Government. Exec. Dir. Reitz testified that she is and has been the 
Executive Director of the Dental Board since May 1996 and that she is 
also an attorney. Tr. 25. Exec. Dir. Reitz testified that as executive 
director, her responsibilities include overseeing the operations of the 
Dental Board's three ``primary functions'' regarding dental 
professionals in the state, to wit, licensing, regulation, and 
enforcement. Tr. 26, 28-29. As a result of her job functions, Exec. 
Dir. Reitz testified that she was familiar with the Dental Board's 
licensing requirements and renewal application process, and that in 
preparation for her testimony, she ``reviewed the files regarding [the 
Respondent] and [the Dental Board's] history with [the Respondent,] and 
the consent agreements, renewal information, anything relevant.'' Tr. 
25-26, 35-36. According to Exec. Dir. Reitz, one of her job 
responsibilities is to review the renewal paperwork before it is made 
available to potential applicants each year. Tr. 37.
    Although produced by the Government ostensibly to explain the finer 
points of the application and renewal procedures at the Dental Board, 
Exec. Dir. Reitz's testimony was regrettably marked by a significant 
level of inconsistency and confusion. Exec. Dir. Reitz initially 
explained that in Ohio, as dentists renew their state licenses every 
two years, they are only required to report disciplinary actions that 
occurred within that biennium and are likewise not required to report 
disciplinary actions occurring in a previous renewal period. Tr. 26-28. 
Early in her testimony, Exec. Dir. Reitz indicated that it was her 
belief that the pertinent liability question on the renewal application 
asks applicants to disclose only those disciplinary actions occurring 
in the two years prior to submission. Tr. 27-28. Exec. Dir. Reitz went 
on to explain that even where a disciplinary matter has been completed 
within the biennium, a dentist is still required to disclose it if the 
matter occurred within the relevant period for the application. Tr. 33-
34. Exec. Dir. Reitz was unequivocal in her testimony that the biennium 
language in the renewal applications has been in place ``at least'' 
since May 1996, when she began her career at the Dental Board. Tr. 28, 
37. Exec. Dir. Reitz even offered that the guidance to the 
practitioners in this regard is ``the way the question is worded [, 
which is] pretty clear.'' Tr. 34.
    Later in her testimony, Exec. Dir. Reitz was compelled to admit 
that she was mistaken regarding the language in the renewal 
applications utilized by the Dental Board at the time of the renewal 
applications at issue in these proceedings. Tr. 39-41. When confronted 
with the undeniable reality that the language of the renewal 
applications in issue for the Respondent did not self-limit to two 
years, but rather stated ``at any time,'' Exec. Dir. Reitz conceded 
that she was unfamiliar with the language in the renewal applications 
in question. Tr. 44. It was only after the language utilized in the 
relevant forms was inflicted on her as she testified that she reasoned 
(with a level of conviction that equaled her earlier, likewise 
confident assurances) that the ``at any time'' language required a 
licensure renewal applicant at that time to disclose any and all 
previous disciplinary action taken against him or her at any time. Tr. 
50. Exec. Dir. Reitz testified that she is confident that the current 
2013 renewal applications now specify a two-year period, and that the 
Dental Board must have made the change to the liability question 
sometime between 2009 and 2013. Tr. 41-42. Her estimation as to why the 
Dental Board changed the question to limit the disclosure time to two 
years was because the Dental Board was ``getting the same information 
renewal period after renewal period for older types of actions.'' Tr. 
45. Thus, the focus of the change was to ensure that the Dental Board 
was apprised of actions that had not been processed through its own 
disciplinary apparatus. Exec. Dir. Reitz testified that even prior to 
the application language modification, a renewal applicant ``would be 
expected to answer the question as written . . . [but f]rom the board 
standpoint, if they did not disclose something that occurred between 
the board and the licensee, we were aware of it anyway.'' Tr. 46. She 
explained that the liability question was more geared toward dentists 
disclosing disciplinary actions taken against them in other states, or 
by a different regulatory entities, and that the Dental Board has 
``never disciplined a licensee for not disclosing to [them] an action 
that [it] took against that licensee.'' Tr. 48-49, 53. Exec. Dir. Reitz 
testified that the Dental Board would not necessarily know if an 
individual answered one of its liability questions incorrectly unless 
it conducted an audit, because the system does not ``flag'' an 
application for further review. Tr. 47. Exec. Dir. Reitz testified that 
because the Dental Board is aware of its own actions, the failure by an 
applicant to

[[Page 74804]]

disclose a Dental Board matter would not be ``a major concern'' to the 
Dental Board. Tr. 53.
    When pressed for details on any guidance that Ohio dentists would 
have had regarding the correct way to answer the ``at any time'' 
language in the 2009 Ohio dental license renewal application, Exec. 
Dir. Reitz testified that there was no internal guidance on this issue, 
no additional supplemental publications (such as a ``frequently asked 
questions'' resource) available to renewal applicants to assist in the 
process, and that the expectation was that the applicant would be 
required to comply with the plain language in the application in use at 
the time, to include the question that seeks disclosure of disciplinary 
actions that occurred ``at any time.'' Tr. 33-34, 42-43, 49. According 
to Exec. Dir. Reitz, telephonic inquiries by license renewal applicants 
are fielded by a cadre of experienced Dental Board staff members who 
``have been there many years.'' Tr. 52. Exec. Dir. Reitz testified that 
she would be surprised if she were to learn that a Dental Board staff 
member ever provided advice to a caller that limited the temporal scope 
of the ``at any time'' question on the 2009 application. Id. When 
queried about whether staff members at the Dental Board routinely 
provide advice to state dental licensees about the requirements of 
other agencies, Exec. Dir. Reitz answered, ``We don't have any 
jurisdiction over those processes.'' Tr. 35.
    Exec. Dir. Reitz also testified about a Consent Agreement that was 
entered into between the Respondent and the Dental Board in 2003 
(Consent Agreement).\16\ Gov't Ex. 3. In the Consent Agreement, the 
Respondent agreed to an indefinite suspension of his license to 
practice dentistry in exchange for the Dental Board not pursuing formal 
disciplinary proceedings against him.\17\ Id. at 1; Tr. 31. The Consent 
Agreement expressly states that the Respondent's license was 
indefinitely suspended and could only be reinstated upon the Respondent 
having completed certain conditions and providing documentation to the 
Dental Board regarding the completion of those conditions. Gov't Ex. 3, 
at 1-2; Tr. 31. The Consent Agreement also specified that following 
reinstatement, the Respondent would be subject to a five-year 
probationary period, in which he was to ``abstain completely from the 
personal use or possession of drugs, except those prescribed, 
dispensed, or administered to him by another so authorized by law who 
has full knowledge of [the Respondent's] chemical dependency and the 
terms of the [Consent Agreement]'' and also to ``abstain completely 
from the use of alcohol.'' \18\ Id. at 3.
---------------------------------------------------------------------------

    \16\ Gov't Ex. 3; Tr. 30, 33.
    \17\ In response to a question on the subject, Exec. Dir. Reitz 
indicated that the Respondent and the Dental Board entered into 
another consent agreement that is unrelated to the issues in this 
DEA enforcement action. Tr. 36.
    \18\ The Consent Agreement also required the Respondent to 
continue participation in drug and alcohol programs and to be 
subject to random screenings for drugs and alcohol. Id. The Consent 
Agreement also provided that should Respondent test positive for 
drugs or alcohol, or should he refuse to submit to testing in the 
probationary period, his license would be indefinitely suspended. 
Although the Agency has sustained adverse actions against the 
registrations of practitioners based on violations of 21 U.S.C. 
843(a)(3) and personal abuse of controlled substances thus obtained, 
Roger A. Pellmann, M.D., 76 FR 17704, 17709 (2011); Randall Relyea, 
D.O., 72 FR 40378, 40380 (2008); Alan H. Olefsky, M.D., 72 FR 42127, 
42128 (2007), the Government does not allege in the instant case 
that self-abuse of drugs or alcohol is a basis for the revocation of 
the Respondent's COR.
---------------------------------------------------------------------------

    According to Exec. Dir. Reitz, the Dental Board worked in 
conjunction with the state pharmacy board and the Cleveland Police 
Department regarding the Respondent's possession of a controlled 
substance. Tr. 29. Exec. Dir. Reitz referred to the Consent Agreement 
as a ``typical impairment consent agreement that [the Dental Board] 
enter[s] into with dentists.'' Tr. 32. According to Exec. Dir. Reitz, 
the Board ``had concerns about [the Respondent's] alcohol and drug 
use.'' \19\ Tr. 59. Exec. Dir. Reitz further testified that the 
Respondent completed intensive outpatient treatment as required by the 
Consent Agreement and that his license was reinstated in early 2004. 
Tr. 60-61.
---------------------------------------------------------------------------

    \19\ Although the Consent Agreement does not list any findings 
of fact among its stipulations, admissions, and understandings, a 
close reading of the Consent Agreement suggests a significant level 
of concern on the part of the Dental Board that the Respondent could 
have been drug and/or alcohol dependent prior to entering into the 
Consent Agreement. For example, as a condition of reinstatement, the 
Respondent was required to obtain documentation from a treating 
provider that he was ``no longer drug or alcohol dependent and that 
he [was] able to practice dentistry in accordance with the accepted 
standards of the profession.'' Gov't Ex. 3, at 2. The Respondent 
also had to provide documentation of having completed treatment from 
an ``approved treatment provider'' before the Dental Board would 
reinstate his license. Id.
---------------------------------------------------------------------------

    Exec. Dir. Reitz's testimony was certainly not without its warts. 
She presented as a witness who was as committed to her first version of 
licensee application expectations as she was to her second, corrected 
version. As the Dental Board's Executive Director for eighteen years, 
it would not be unreasonable to expect that she understood the 
requirements of the application language that, according to her own 
testimony, each new iteration of which she was obligated ``to review . 
. . before it gets issued for each licensing or renewal period.'' Tr. 
37. Her testimonial deficiencies were amplified by her initial 
representation that, prior to taking the witness stand in this case, 
she ``reviewed the files regarding [the Respondent] and [the Board's] 
history with [the Respondent] and the consent agreements, renewal 
information, anything relevant.'' \20\ Tr. 25. It was clear that she 
was surprised on the stand by the language utilized in the 2009 Renewal 
Application, which indicates that she either did not pay attention to 
the contents of the documents she reviewed, or (contrary to her initial 
testimony) did not really review them ahead of time. Although she 
testified unequivocally that the language had not changed in eighteen 
years, she was forced to backtrack and admit that she did not know what 
the earlier language said, or when it may have changed. Will Rogers 
once famously said that ``[i]t isn't what we don't know that gives us 
trouble, it's what we know that ain't so.'' Considering the complex and 
varied responsibilities associated with her duties as the executive 
director of a dental board with statewide jurisdiction, the fact that 
Ms. Reitz was not intimately familiar with the intricacies of each 
yearly iteration of that body's renewal application questions should be 
of no surprise, and only of modest significance here. Still, the 
confidence with which she declared both the earlier and corrected 
versions of the renewal application questions as established facts 
provides cause for some reflection.
---------------------------------------------------------------------------

    \20\ Exec. Dir. Reitz later clarified that she had not reviewed 
the Respondent's renewal applications. Tr. 54.
---------------------------------------------------------------------------

    Still, even with its blemishes, Exec. Dir. Reitz's testimony was 
credible. Notwithstanding the aforementioned single internal 
inconsistency, Exec. Dir. Reitz presented as an impartial and generally 
knowledgeable state regulator who was mistaken on one (ultimately non-
dispositive) issue. When confronted with the issue, Exec. Dir. Reitz 
quickly, candidly, and commendably addressed and persuasively explained 
the basis for her mistake and did not equivocate in any way.\21\ Tr. 
41, 44, 54, 62. Exec. Dir. Reitz obviously has no stake in the outcome 
of the Respondent's DEA proceedings, and her testimony was sufficiently 
objective, detailed, and plausible to be fully credited in this 
recommended decision.
---------------------------------------------------------------------------

    \21\ In fact, upon leaving the witness stand, Exec. Dir. Reitz 
offered an apology for any confusion caused by this aspect of her 
testimony. Tr. 62.

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

[[Page 74805]]

The Respondent's Evidence

    The Respondent presented his case-in-chief through his own 
testimony and two exhibits.\22\ In the course of his testimony, the 
Respondent briefly described his career in the practice of dentistry, 
which along with his regular practice includes a history of some 
community service (including service to underserved patients), 
membership in professional organizations, and some modest involvement 
in academia. Tr. 81-84. He explained that he is a licensed dentist 
(D.D.S.) in the state of Ohio and that he has been practicing 
continuously \23\ since his licensure in August 1988, at which time he 
joined his father and brother's dental practice after dental school. 
Tr. 81.
---------------------------------------------------------------------------

    \22\ At the commencement of the hearing on November 19, 2014, 
the parties represented that Kathy Carson, a witness noticed by the 
Respondent in his Prehearing Statement, was unavailable to testify 
due to illness. Tr. 5-11. The Respondent was offered the option of 
presenting this witness at a later date when she was well enough to 
testify. Tr. 146. The Respondent initially sought and was granted a 
continuance to present Ms. Carson's testimony at a later date, and 
subsequently withdrew that request after consulting with her. On 
December 1, 2014, the Respondent's counsel telephonically informed 
chambers staff that he was no longer seeking to present Ms. Carson's 
testimony and that he wished to rest his case on the evidence 
presented at the November 19, 2014 hearing.
    \23\ The Respondent indicated that he has been in continuous 
practice with the exception of the suspension mandated by the Dental 
Board consent order at issue here. Tr. 81.
---------------------------------------------------------------------------

    Although the Government's case focused on the three COR renewal 
applications at issue, the Respondent, during his direct testimony, 
raised the issue of, and spoke at some length about, the events 
precipitating his 2003 airport arrest and corresponding criminal charge 
for possession of cocaine. According to the Respondent, cocaine was 
found at the airport in his checked luggage as he was preparing to 
depart with some high school friends for Key West for a fortieth 
birthday party. Tr. 96-97. The Respondent testified in essence that the 
cocaine was brought to enhance the vacation experience, which in his 
words:

was going to be a reunion of 12 high school friends that were [sic] 
going to be a party weekend, hell raising, all that fun stuff that 
you did back in the day. Me being a big--trying to be the big man on 
campus, I thought I would be the one to lead the parade, if you 
will.

Tr. 136-37. The Respondent related that after being stopped at the gate 
when drugs were discovered in his suitcase, he was placed in a 
detention room at the airport and subsequently arrested, booked, 
processed, and jailed for three days until he was released on his own 
recognizance. Tr. 89-90, 98. Although at the DEA hearing he ultimately 
agreed that his luggage contained cocaine that he placed there himself, 
he also was steadfast in his opinion that he was not a cocaine user, 
and pointed out more than once that at the time of his arrest, there 
was no cocaine in his system. Tr. 136, 140.
    The Respondent's testimony regarding the cocaine was uneven and 
confusing. At one point, the Respondent testified that ``[t]here was 
cocaine in a suitcase that was registered in my name.'' Tr. 96. He then 
offered that ``one of the bags that was checked in under my name had 
cocaine in it'' and that the bag ``[h]ad cocaine in it, and that's why 
I was arrested.'' Tr. 97. When pressed on the issue of how it was that 
the cocaine ended up in his bag, the Respondent answered: ``I will take 
ownership of it. I always have and I always will. I had the cocaine in 
my bag.'' Tr. 97. After multiple questions and an equal number of 
equivocations, the Respondent's answers eventually morphed from his 
``tak[ing] ownership'' and ``accept[ing] responsibility'' for the 
cocaine to his reluctant admission that he had actually placed the 
cocaine in his own bag. Tr. 97-98. Later in his testimony, the 
Respondent described how another member of his party was carrying 
fireworks, and that he (the Respondent) ``was able to get the cocaine'' 
and that he was ``the one that was going to carry it.'' Tr. 139. The 
Respondent, at another point in his testimony, did volunteer that he 
now feels his actions were a ``stupid mistake'' and a ``stupid, hugely 
horrible mistake.'' Tr. 97, 99. The testimony the Respondent offered 
regarding his arrest veered wildly, and was styled much less as an 
acceptance of responsibility than as an innocent man nobly accepting 
culpability for a high school chum. Suffice it to say that this 
narrative structure did not enhance the credibility of the Respondent's 
testimony.
    The Respondent also testified about the criminal proceedings 
associated with his arrest. According to the Respondent, following his 
arrest, he was offered the option to participate in a drug court 
program \24\ for one year because his infraction was an ``isolated 
incident.'' Tr. 85. According to the Respondent, the drug court program 
required that he undergo urinalysis testing, attend AA meetings, and 
counsel/mentor other individuals in the program once a month.\25\ Tr. 
87. Under his understanding of this legal process, his participation in 
drug court would reduce his felony charge to a misdemeanor charge, and 
following completion of the process, he would obtain an expungement. 
Tr. 88-89. According to the Respondent, he understood was that as a 
result of his participation in the drug court program, ``from a legal 
standpoint I was told the incident never happened because I complied 
and everything went well.'' Tr. 85.
---------------------------------------------------------------------------

    \24\ Counsel for the Respondent clarified for this tribunal that 
the name of the diversion court was the Greater Cleveland Drug 
Court. Tr. 85.
    \25\ In fact, the Respondent testified that he continued to 
attend court to counsel other people for ``a year or so'' after his 
obligation to do so was completed. Tr. 88.
---------------------------------------------------------------------------

    The Respondent testified that approximately two months after his 
arrest, a Dental Board investigator visited his office.\26\ Tr. 92-93. 
According to the Respondent, right from his initial contact with the 
Dental Board, the investigator advised him to enter into a consent 
agreement and told him that his dental license would likely be 
suspended. Tr. 92. The Respondent testified that one of the terms of 
the Dental Board Consent Agreement required that he undergo an 
evaluation for drug rehabilitation, but he was quickly rejected from 
the program because he was not addicted. Tr. 95-96. According to the 
Respondent, the evaluator told him: ``look, you're not a drug addict, 
you're an idiot.'' Id. As a result, the Respondent entered into a 
weekly program for approximately six weeks that he described as ``group 
therapy.'' Tr. 96.
---------------------------------------------------------------------------

    \26\ The Respondent believes the Dental Board was tipped off by 
the Cleveland Police Department. Tr. 93.
---------------------------------------------------------------------------

    The Respondent testified that the airport incident and its 
consequences burdened him with some financial hardships, the most 
significant of which was apparently his removal from some insurance 
company panels as a result of having been placed on probation by the 
Consent Agreement.\27\ Tr. 99-100. According to the Respondent, removal 
from these panels resulted in his patients losing the benefit of lower, 
in-network rates for his dental services. The Respondent related that 
this development caused ``inner turmoil internally within my practice 
with the patients.'' Tr. 100. The Respondent testified that as a result 
of this financial hardship on his patients, he petitioned the Dental 
Board to be removed from probation early; a request which was granted. 
Tr. 101. The Respondent stated that his patients never knew the reason 
why he was removed from the insurance panels, and that there was no 
press

[[Page 74806]]

attention devoted to his dalliance at the airport. Tr. 101.
---------------------------------------------------------------------------

    \27\ The Respondent also vaguely alluded to some impact on his 
family, but did not elaborate. Tr. 101.
---------------------------------------------------------------------------

    Boiled down to its essence, the Respondent's position in these 
proceedings has consistently been that his DEA COR application answers 
were incorrect because in 2009, he completed his Ohio state license 
renewal application (apparently incorrectly), and applied the same 
(incorrect) rule he used at the state level to his (federal) DEA 
application. In support of this position, the Respondent supplied the 
record with a copy of his 2009 Ohio State Dental Board license renewal 
application (2009 Renewal Application).\28\ Tr. 103, 115; Resp't Ex. 1. 
Among the questions included on the 2009 Renewal Application regarding 
``Discipline'' were the following: (1) ``Have you at any time had any 
disciplinary action initiated against you by any state licensing board? 
If yes, provide details'' and (2) Have you at any time surrendered, or 
consented to limitation upon: a) a license to practice dentistry/dental 
hygiene; OR b) state or federal privileges to prescribe controlled 
substances? If yes, provide details.'' Resp't Ex. 1, at 1-2 (emphasis 
supplied). The Respondent answered in the negative to both 
questions.\29\ Before submitting the 2009 Renewal Application, the 
Respondent was also required to ``Agree'' to the following statements: 
(1) ``I understand that submitting a false, fraudulent, or forged 
statement or document or omitting a material fact in obtaining 
licensure may be grounds for disciplinary action against my license'' 
and (2) ``Under penalty of law, I hereby swear or affirm that the 
information I have provided in the application is complete and correct, 
and that I have complied with all criteria for applying on line.'' Id. 
at 3.
---------------------------------------------------------------------------

    \28\ The exhibit was admitted without objection from the 
Government. Tr. 125.
    \29\ The Respondent also answered in the negative the following 
two inquiries under ``Legal Questions'': ``(1) Have you been found 
guilty of, or plead guilty or no contest to a felony or misdemeanor? 
(exclude all traffic violations other than those involving driving 
under the influence of alcohol or drugs). If yes, provide details'' 
and (2) ``Have you been found guilty of, plead guilty or no contest 
to a federal or state law regulating the possession, distribution or 
use of any drug? If yes, provide details.'' Resp't Ex. 1. 
Additionally, the Respondent answered in the negative to the 
following question regarding ``Addiction'': ``In the past biennium, 
have you been addicted to or dependent upon alcohol or any chemical 
substance? You may answer `no' to this question if you have 
successfully completed treatment at a program approved by the Ohio 
State Dental Board, and have subsequently adhered to all statutory 
requirements as contained in ORC Section 4715, or you are currently 
enrolled in a Board-approved program . . . If yes, provide 
details.'' Id.
---------------------------------------------------------------------------

    The Respondent testified that before filing his 2009 Renewal 
Application, he called investigators at the Dental Board for guidance 
in responding to the ``Discipline'' questions. Tr. 104. At the hearing, 
the Respondent said that he conceived the idea to call the Dental Board 
investigators after participating in the Caduceus program, which was a 
series of substance abuse rehabilitation meetings geared toward the 
special needs of professionals in the medical and dental communities. 
Tr. 108-10. According to the Respondent, the Dental Board investigator 
that he spoke to \30\ told him that he could answer ``no'' to the 
Discipline questions because the Dental Board was aware of its own 
proceedings. Tr. 104-05. The Respondent stated that, by his reckoning 
(apparently in spite of the plain language of the question),\31\ the 
Discipline question really queried whether discipline had occurred 
within the prior biennium. Tr. 105. The Respondent further explained: 
``I was told after the expungement this incident never happened, and I 
wanted it to never happen, and so I thought in my mind it never 
happened.'' Tr. 107. In a revealing moment during his testimony, the 
Respondent provided the following insight about his thought process in 
answering the 2009 Renewal Application Discipline questions the way he 
did:
---------------------------------------------------------------------------

    \30\ The Respondent stated that the investigator he spoke to was 
named Gail Noble, who was at that time his contact with the Dental 
Board. Tr. 105.
    \31\ The Discipline questions in the 2009 Renewal Application 
consistently use the phrase ``at any time,'' whereas the question in 
the next section, entitled ``Addiction,'' uses the phrase ``[i]n the 
past biennium.'' Resp't Ex. 1, at 1-2.

So I was looking to answer it as no. So, when I found somebody to 
---------------------------------------------------------------------------
tell me to answer it as no, I'm like, okay, I got it.

Tr. 113.
    The Respondent likewise testified to his process of answering 
``no'' to the DEA liability question regarding whether he had ever had 
his license suspended or placed on probation. He stated that he asked 
the (state) Dental Board investigators about how to answer the 
(federal) DEA liability questions, and that, according the Respondent, 
the investigators told him that he could answer the DEA questions in 
the negative. Tr. 115. The Respondent clarified:

At the time I was asking [the Dental Board investigators] about 
everything. So their answers were, and obviously I jumped and 
assumed, but their answers were, yeah, you can answer no. When I did 
and nothing happened, I took that as they know what they're talking 
about.

Tr. 116-17.
    Additionally, the Respondent said that he believed that the (state) 
Dental Board oversees his (federal) DEA registration. The Respondent 
said:

I just--I think I assumed that the Ohio State Dental Board is my 
governing board of everything. In my mind, I don't separate it out, 
but I know it is a different thing and a different application, but, 
you know, without a dental license I can't get a DEA license, so my 
assumption is that the Ohio State Dental Board regulates or oversees 
all of my [sic] aspects of my license.

Tr. 117.
    At his DEA hearing, in addition to his misperception that 
investigators at the state Dental Board wielded authority over his 
(federal) DEA COR, the Respondent also attributed his decision not to 
check with DEA to his (equally inexplicable) assumption that all 
regulatory authority (even federal DEA regulatory authority) fell under 
the jurisdiction of his state pharmacy board, and that the state 
pharmacy board was notified in some way by the state Dental Board. Tr. 
134-35. When pressed on the patent illogic of his reasoning, the 
Respondent had the following to say:

Either (a) I assumed that they were all in conjunction with each 
other, I assume, and if they didn't know about it, I don't know. Why 
wouldn't they know about it? If the board was able to find out about 
it, why wouldn't the--you know, if the dental board found out about 
it, I'm sure that the pharmacies--the drug board would find out 
about it.

Tr. 136. Needless to say, the offered explanation does little to 
persuasively account for placing a patently false answer on three DEA 
COR renewal applications. The Respondent did allow that if he ``had to 
do it over again [he] would answer yes with a form letter attached to 
the applications.'' Tr. 142.
    The Respondent, in a perhaps more candid moment during his 
testimony, admitted that at the time he completed the various 
applications, he was concerned about a ``trickle-down'' effect on other 
applications should he answer in the affirmative to the liability 
questions asked by the Dental Board in its Renewal Application. Tr. 
131. He stated:

I don't know, but my assumption is if you were to--once you start 
answering yes, there is an alleged trickle-down effect of 
repercussions, that once you can--and the presumption is if you 
continue to answer no and you've gone through treatment and you can 
answer no, then you're okay with other, you know, boards, with other 
insurance companies, with other things. It's a dumb assumption.

Tr. 131. The Respondent testified when completing the applications, he 
was concerned that if he answered ``yes'' to the liability questions, 
it would ``trigger'' some response from the

[[Page 74807]]

insurance companies or regulatory boards. Tr. 132. However, as he 
conceded, this plan met with limited success. A negative answer he 
supplied to a liability question in an insurance company renewal 
application did not shield him from scrutiny from the insurance 
carrier. His insurance agent confronted him with a report from the 
National Practitioner Data Bank \32\ reflecting the Consent Agreement 
he entered into with the Dental Board. Tr. 120-22. In his testimony, 
the Respondent explained his approach in this way:
---------------------------------------------------------------------------

    \32\ Resp't Ex. 2. According to the exhibit, the reports contain 
information on adverse actions against practitioners that is 
``confidential and is disclosed only to legally authorized queriers 
for specified uses.'' Id. at 1. The Data Bank Report includes a copy 
of the ``Adverse Action Report: State Licensure Action'' by the Ohio 
State Dental Board. Id. at 4. The Data Bank Report classifies the 
adverse action as ``Probation of License'' and ``Suspension of 
License'' and states that the action was the result of a consent 
agreement. Id. at 5. The Data Bank Report states that the adverse 
action came about on the grounds of ``Impairment'' and that the 
basis was that the Respondent was ``unable to practice safely by 
reason of alcohol or other substance abuse.'' Id. at 5-6. The Data 
Bank Report further provides that the Respondent's license to 
practice was reinstated on January 7, 2004, that the last four years 
of the probationary period were ``lift[ed]'' effective March 9, 
2005, and that the Respondent's license was ``in good standing and 
not subject to any conditions, restrictions or limitations.'' Id.

I can only use the analogy of when you're applying for car insurance 
and the guy goes, oh, we looked it up. You've gotten these many 
tickets and bumped a red light. [The insurance agent] was renewing 
my malpractice insurance and he said, hey, there's something, 
---------------------------------------------------------------------------
there's a blip on your screen. And I was like, oh, okay.

Tr. 121-22. There was no confusion in this scenario. No advice from the 
Dental Board. The Respondent was merely unaware that his insurance 
carrier would ever find out about his disciplinary action, so he lied 
on his policy renewal paperwork and got caught. Essentially, he played 
the game and lost.
    The Respondent's assessment of whether he was intending to deceive 
with his false DEA COR renewal application answers was all over the 
place. At one point in his testimony, he denied there was any attempt 
to deceive or mislead. Tr. 124. At another point, when asked by his 
counsel whether he felt he was ``being misleading or duplicitous,'' the 
Respondent's answer was more introspective: ``I think initially the 
first time, yes, but since then no. No. No.'' Tr. 125. When he was 
asked ``why not be truthful . . . ?'', the Respondent replied:

For fear that it would do more harm to my reputation. I know it was 
pretty self--I don't know what the word is, it's escaping me right 
now, but it was more of a reputational immaturity, if you will.

Tr. 128. The Respondent conceded that at the time he completed his DEA 
COR renewal applications, he was more concerned about how the matter 
would have affected him professionally than he was concerned about 
``any protection or any service to the public.'' Tr. 133-34.
    The Respondent's testimony was problematic from a credibility 
standpoint. As discussed, supra, his presentation was marked with 
significant equivocations and inconsistencies. Although the Respondent 
entered a no contest plea to carrying cocaine in a suitcase bound for a 
reunion in Puerto Rico with childhood friends, when he testified 
initially at his DEA administrative hearing, he equivocated that the 
drugs were in a suitcase ``checked in under [his] name.'' Tr. 97. When 
pressed on the issue at his DEA hearing, he ultimately said that he 
would ``take ownership'' of the cocaine and had done so at the time of 
his criminal case. Tr. 97. Ironically, this is a minimization that, 
even if credited, would not have fortified his position in this case, 
yet the equivocation and attempt to minimize his own responsibility 
served to undermine his credibility.
    In addition to its equivocations and inconsistencies, the 
Respondent's testimony was implausible. His theory, that, even as an 
experienced practitioner, he was misled by errant advice supplied by 
state investigators is simply not supported by reason. The language in 
the 2009 Renewal Application further undermines his position. The 2009 
Renewal Application he points to actually distinguishes between the 
Discipline questions, which are phrased in terms of ``at any time,'' 
and Addiction questions, which are targeted at ``the past biennium.'' 
Resp't Ex. 1, at 1-2. The Respondent's credibility also is profoundly 
compromised by his admission that, when it suited him to do so, he 
intentionally attempted to mislead his insurance carrier by providing 
false information on his policy renewal form and was caught. The 
Respondent's testimony in these proceedings, taken as a whole, suffered 
from inconsistencies, equivocations, and implausibility that preclude a 
finding that he was entirely credible.

The Analysis

    The Government seeks revocation of the Respondent's COR based on 
its evidence that on three occasions, the Respondent filed COR renewal 
applications wherein he falsely declared that his state professional 
license had never been suspended or placed on probation.\33\ ALJ Ex. 1. 
Under the Controlled Substances Act (CSA), the material falsification 
of any application for a DEA COR (including a renewal application \34\) 
constitutes a basis for revocation or other sanction. 21 U.S.C. 
824(a)(1).
---------------------------------------------------------------------------

    \33\ The parties have stipulated that in 2003, the Respondent 
entered a plea of no contest to a state charge of felony cocaine 
possession. Stip. 3-4. Agency precedent is clear that a conviction 
obtained pursuant to a nolo contendere plea, or even one where 
adjudication is withheld or even subsequently dismissed, constitutes 
a conviction under this provision. See Kimberly Maloney, N.P., 76 FR 
60922 (2011) (collecting cases). The Agency has also held that 
failure to disclose a conviction of a crime in connection with 
controlled substances is material to the Agency's decision whether 
an individual should be in possession of a DEA COR. ``[T]he failure 
to disclose such a conviction constitutes a material falsification 
because it is `capable of influencing' the decision as to whether to 
grant an application.'' Pamela Monterosso, D.M.D., 73 FR 11146, 
11148 (2008). Thus, on the present record, it is clear that, if 
charged, the Respondent's negative responses in his COR renewal 
applications regarding his cocaine possession conviction could have 
formed the basis to sustain multiple incidents of material 
falsification under the CSA. However, Agency precedent is equally 
clear that that the parameters of DEA administrative hearings are 
circumscribed by the charging document and the prehearing 
statements. CBS Wholesale Distribs., 74 FR 36746, 36750 (2009) 
(citing Darrel Risner, D.M.D., 61 FR 728, 730 (1996)); see also Roy 
E. Berkowitz, M.D., 74 FR 36758, 36759-60 (2009). To have these 
material application falsifications available to form the basis of a 
sanction, the Government would have had to sufficiently allege them 
and provide the Respondent with adequate notice. See CBS Wholesale 
Distribs., 74 FR at 36750 (``The Government's failure to set forth 
its legal theory indisputably denied Respondent a meaningful 
opportunity to present an argument to the contrary.''). At the 
outset of the hearing, the Government, through its counsel, affirmed 
that it would not proceed on a theory that the Respondent's false 
answer regarding whether he had ever been convicted constitutes a 
material false statement. Tr. 15. Hence, while the Respondent's 
arguably false statements about his drug conviction could, if 
offered, have been considered for other purposes, it could not (and 
did not) serve as an independent basis for a sanction against his 
COR.
    \34\ See, e.g., Smith, 76 FR at 53964 (revoking a registrant's 
COR upon finding that the registrant had materially falsified 
multiple renewal applications); Therial L. Bynum, M.D., 61 FR 3948, 
3948-50 (1996) (revoking a registrant's COR upon finding that the 
registrant had materially falsified a renewal application).
---------------------------------------------------------------------------

    For the Government to prevail under a theory of material 
falsification, its evidence must establish, by ``clear, unequivocal, 
and convincing'' evidence \35\ that a registrant has provided false 
information in his or her application and that the false information 
provided is material. Id. A material falsification requires a showing 
that a statement tendered in a COR application is one that ``has a 
natural tendency to influence, or was capable of

[[Page 74808]]

influencing, the decision of the decisionmaking body to which it was 
addressed.'' The Lawsons, Inc., t/a The Med. Shoppe Pharmacy, 72 FR 
74334, 74338 (2007) (quoting Kungys v. United States, 485 U.S. 759, 
770, 772 (1988)); see also Robles v. United States, 279 F.2d 401, 404 
(9th Cir. 1960), cert. denied, 365 U.S. 836 (1961). To prevail, the 
Government need not prove that any Government decision, including the 
decision regarding the registration application, was actually 
influenced. The Lawsons, 72 FR at 74339. The touchstone is whether the 
statement had the capacity to influence. See United States v. Alemany 
Rivera, 781 F.2d 229, 234 (1st Cir. 1985), cert. denied, 475 U.S. 1086 
(1986); Alvin Darby, M.D., 75 FR 26993, 26998 (2010).
---------------------------------------------------------------------------

    \35\ Kam, 78 FR at 62696 (quoting Kungys, 485 U.S. at 772).
---------------------------------------------------------------------------

    As a materiality determination turns on an analysis of the relevant 
substantive law, Kungys, 485 U.S. at 772, the allegedly false statement 
must be analyzed in the context of the decision before the DEA, namely, 
whether a registrant is entitled to remain registered. Hoi Y. Kam, 
M.D., 78 FR 62694, 62696 (2013). The falsification must relate to a 
ground that could affect the decision, not merely a basis upon which an 
investigation could be initiated. Darryl J. Mohr, M.D., 77 FR 34998, 
34998 n.2 (2012); Harold Edward Smith, M.D., 76 FR 53961, 53964 (2011); 
Scott C. Bickman, M.D., 76 FR 17694, 17701 (2011). The entire 
application will be examined to determine whether there was an 
intention to deceive the agency. See Samuel S. Jackson, D.D.S., 72 FR 
23848, 23852-53 (2007). Furthermore, the correct analysis depends on 
whether the registrant knew or should have known that he or she 
submitted a false application. Dan E. Hale, D.O., 69 FR 64902, 69406 
(2004); The Drugstore, 61 FR 5031, 5032 (1996); Bobby Watts, M.D., 58 
FR 46995, 46995 (1993). Although even an unintentional falsification 
can serve as a basis for adverse action regarding a registration, lack 
of intent to deceive and evidence that the falsification was not 
intentional or negligent are all relevant considerations. Anthony D. 
Funches, 64 FR 14267, 14268 (1999). The Agency considers the ``totality 
of the circumstances'' in evaluating whether a registrant's COR should 
be revoked based on a material falsification. Thomas G. Easter II, 
M.D., 69 FR 5579, 5581 (2004).
    The Agency has held that a material falsification existed when a 
registrant failed to disclose on DEA renewal applications that he had 
entered into consent agreements with the state licensing agency which 
had either placed him on probation or suspended his state license. 
Smith, 76 FR at 53964. In Smith, the Agency found that on two renewal 
applications, the Respondent had answered ``no'' to the liability 
question of whether he had ``ever surrendered or had a state 
professional license or controlled substance registration revoked, 
suspended, denied, restricted, or placed on probation.'' Id. In 
evaluating the materiality of the false statement, the Agency looked to 
the public interest standard articulated in 21 U.S.C. 823(f) and 
concluded that the information withheld from the Agency (allegations in 
a state proceeding that the Respondent had been accused of writing 
false prescriptions) would have been ``material to the Agency's 
investigation and assessment of Respondent's experience in dispensing 
controlled substances and his compliance with applicable laws related 
to the dispensing of controlled substances.'' Id. The Agency also noted 
that the false statement in omitting the state proceedings was material 
because it would have yielded information about the Respondent's drug 
abuse, which is relevant to the public interest under Factor Five of 
section 823. Id.; see also Gilbert Eugene Johnson, M.D., 75 FR 65663, 
65665 (2010) (considering Respondent's failure to disclose past state 
disciplinary action under section 823 public interest factor relating 
to a registrant's experience in dispensing). Where the Government has 
based its material falsification case on state controlled substance 
handling privileges that have been suspended and restored before the 
filing of a COR application, the Agency has held that the basis for the 
state's action must constitute a ground that could constitute 
actionable misconduct against a DEA registration under the CSA. Richard 
D. Vitalis, D.O., 79 FR 68701, 98706 (2014).
    In the present case, the Respondent's state controlled substance 
privileges were suspended based on his arrest and no contest plea \36\ 
regarding possession of controlled substances, to wit, cocaine. Stip. 
3, 4; Tr. 93-95. The Agency has long held that possession of illicit 
drugs in contravention of state and/or federal controlled substance 
laws is an adverse consideration under the fourth CSA public interest 
factor.\37\ David E. Trawick, D.D.S., 53 FR 5326, 5327 (1988) (even 
though the respondent's illicit drug possession and distribution was 
outside the realm of his professional practice, it related to 
controlled substances and could serve as a proper basis for a sanction 
against his DEA COR), aff'd, Trawick v. DEA, 861 F.2d 72 (4th Cir. 
1988) (``It is clearly reasonable to interpret th[e] unambiguous 
language [in 21 U.S.C. 824(a)(4)] as allowing a negative action on a 
DEA [COR] based on a misdemeanor possession conviction that is 
unrelated to the registrant's practice or the diversion concerns of the 
amendment itself.''); see also Michael S. Moore, M.D., 76 FR 45867, 
45868 (2011) (COR sanction sustained on basis of the respondent's state 
conviction for manufacture of marijuana, which was unrelated to his 
professional medical practice as an emergency room physician). Thus, 
inasmuch as the conduct that culminated in the Dental Board's Consent 
Agreement was squarely in violation of ``applicable State . . . laws 
related to controlled substances,'' that conduct clearly relates to a 
ground that could have affected \38\ each of the three renewal 
applications from which its disclosure was intentionally omitted. 
Vitalis, 79 FR at 98708 (``[W]here an applicant currently holds 
unrestricted state authority to dispense controlled substances, the 
failure to disclose state action against his medical license may be 
material if the action was based on conduct . . . which is actionable 
under either the public interest factors or the grounds for denial, 
suspension, and revocation set forth in [21 U.S.C.] 824.'').
---------------------------------------------------------------------------

    \36\ While it is true that during the hearing conducted in this 
matter (Tr. 18-19, 85) and in his closing brief (Resp't Brf. at 2) 
the Respondent's current counsel urges that no plea of guilty of any 
kind was entered by the Respondent on the criminal case, this is 
inconsistent with the parties' stipulations and not supported by any 
documentary evidence of record. The Respondent's counsel was invited 
to provide statutory authority regarding the state procedural 
structure that may have been employed at the time of the resolution 
of the Respondent's criminal case (Tr. 20, 86), but no citations in 
this regard were ever supplied to assist this tribunal to resolve 
the inconsistency. Resp't Brf. at 2 n.2. It is interesting that in 
describing his own understanding of what occurred, the Respondent 
stated that ``this was going to take the incident from a felony to a 
misdemeanor, and then the misdemeanor, and then the misdemeanor, by 
going through this drug court, it was a misdemeanor, so it was from 
a legal standpoint not--from my standpoint not a big deal, and then 
going through this process I was able to get an expungement, which 
was the ultimate thing I wanted.'' Tr. 88-89.
    \37\ 21 U.S.C. 823(f)(4) (``Compliance with applicable State, 
Federal, or local laws relating to controlled substances.'')
    \38\ Mohr, 77 FR at 34998 n.2; Smith, 76 FR at 53964; Bickman, 
76 FR at 17701.
---------------------------------------------------------------------------

    In this case, the pertinent inquiry is whether the Respondent knew, 
or should have known that he submitted false applications for renewal 
of his DEA COR in 2006, 2009, and 2012. The Respondent does not contest 
that he did not disclose the Consent Agreements that he had entered 
into with the Dental Board, or that it is important to answer liability 
questions truthfully as part of a

[[Page 74809]]

practitioner's obligation to the public. Tr. 21, 127. The Respondent 
does, however, contest the revocation sanction sought by the 
Government, arguing that taken in context with parallel state licensure 
requirements, his answers to the liability questions, though not 
correct, were based on an interpretation of his obligations that was, 
at least in his view, not unreasonable. Tr. 21.
    The liability question in the three DEA COR renewal applications 
was worded in straightforward terms that left scarce little to the 
imagination of even the most unschooled of applicants. In pertinent 
part, the question to which the Respondent replied in the negative 
queried: ``Has the applicant ever . . . had a state professional 
license . . . suspended . . . or placed on probation, or is any such 
action pending?'' Gov't Exs. 4-6. In fact, the Agency has specifically 
confirmed the clarity of the language utilized here in sustaining 
findings of materially falsified applications under 21 U.S.C. 
824(a)(1). Felix K. Prakasam, M.D., 70 FR 33203, 33205-06 (2005); Anne 
D. DeBlanco, M.D., 62 FR 36844, 36845 (1997). With like clarity, the 
Consent Agreement with the Dental Board comprising the center of the 
case provides in pertinent part that the Respondent ``knowingly and 
voluntarily agrees with the [Ohio] Board, to the following PROBATIONARY 
\39\ terms conditions and limitations,'' the first of which states that 
the Respondent's ``license to practice dentistry is indefinitely 
suspended.'' Gov't Ex. 3 at 1.
---------------------------------------------------------------------------

    \39\ All caps in original document. Gov't Ex. 3.
---------------------------------------------------------------------------

    The Respondent is highly educated \40\ and has been a practicing 
dentist and DEA registrant for over twenty-five years.\41\ Gov't Ex. 7. 
Like all DEA registrants, the Respondent is responsible for 
understanding the concepts and duties as a dentist and his obligations 
as a registrant. As DEA has held in the past, a registrant's 
``ignorance of the law is no excuse'' for actions that are inconsistent 
with responsibilities attendant upon a registration. Sigrid Sanchez, 
M.D., 78 FR 39331, 39336 (2013) (citing Patrick W. Stodola, 74 FR 
20727, 20735 (2009) and Hageseth v. Superior Ct., 59 Cal. Rptr. 3d 385, 
403 (Ct. App. 2007) (a ``licensed health care provider cannot 
`reasonably claim ignorance' of state provisions regulating medical 
practice'')). Under Agency precedent, ``[a]ll registrants are charged 
with knowledge of the CSA, its implementing regulations, as well as 
applicable state laws and rules.'' Id. at 39333. The Respondent's 
argument that he was somehow understandably befuddled in his 
obligations to answer the straightforward liability question in issue 
is mortally undermined by his level of experience and education, as 
well as the stark clarity of the language employed by both the Dental 
Board in its Order and the DEA in Question 3 of the COR renewal 
application.
---------------------------------------------------------------------------

    \40\ Tr. 81-82.
    \41\ The Respondent was admitted to the practice of dentistry in 
1988 and first became a DEA registrant that same year. Tr. 81; Gov't 
Ex. 7. Thus, at the time he submitted the first of the charged DEA 
COR renewal applications in 2006, he had been a dentist and DEA 
registrant for eighteen years.
---------------------------------------------------------------------------

    Another fatal blow to his defense stems from the fact that his case 
in this regard is entirely dependent upon the strength of his 
testimony, which, as discussed in detail, supra, was none too credible. 
In this case, the Respondent's testimony was regrettably marked with a 
level of equivocation, implausibility, and inconsistency that 
profoundly undermined his efforts to ameliorate his culpability.
    The Respondent's evidence that he was confused by Ohio Dental Board 
policy is wholly unpersuasive. Moreover, no evidence about how that 
policy (even if conceded arguendo as having been validly understood by 
the Respondent) was communicated to him was presented in a manner that 
was deserving of reliance. Further, the Respondent's assertion that he 
attempted to ascertain his DEA COR application obligations through 
inquiry with an employee of the Dental Board is not only incredible, it 
is also not reasonable. There is nothing in the record or in common 
sense that would even theoretically imbue officials of the Dental Board 
with authority or expertise regarding the requirements of a DEA COR 
renewal form. In fact, Exec. Dir. Lili Reitz explicitly stated that the 
state dental board has ``no jurisdiction'' over other licensing 
agencies, which would naturally include the DEA. Tr. 35. Either the 
Respondent asked Dental Board officials (who had no basis to speak with 
knowledge or authority on DEA applications) in the hopes of securing an 
answer (even an incorrect one) that served his purposes (which the 
Respondent alluded to as a strategy following his completion of the 
drug court program \42\), or the Respondent never asked the Dental 
Board officials anything about his DEA application.\43\ Either scenario 
does not advance the Respondent's position, and more fundamentally, 
even if the Respondent's (na[iuml]ve) version were credited (a big 
``if''), there is no policy of any state board that does or can affect 
the obligations of a DEA registrant to truthfully answer plainly-stated 
questions in a COR renewal application. State officials possess no 
authority to alter DEA registrant applications, and this is a fact that 
the Respondent, a DEA registrant, clearly knew or should have known. 
Likewise, the Respondent's testimony that he believed that the DEA, a 
federal agency in the United States Department of Justice, was 
``under'' the control of the Ohio state pharmacy board \44\ does 
nothing other than further undermine his credibility. In short, on 
these facts, the Respondent's understanding of how much of the 
information he was obligated by Dental Board policy to include 
accurately on his application to renew his state dental license is 
little more than a red herring. His reliance on that theory here 
mortally undermines any argument that he has accepted responsibility 
for his actions by any measure that would militate in his favor in 
these proceedings.
---------------------------------------------------------------------------

    \42\ Tr. 112-113.
    \43\ Although the Respondent initially noticed and subpoenaed 
Kathy S. Carson, one of the two employees that the Respondent 
testified he could have spoken with about the issue, he subsequently 
withdrew his request to call the witness. This was done in spite of 
the fact that the case was continued to accommodate an illness which 
made Ms. Carson unavailable to testify on the originally-scheduled 
hearing date.
    \44\ Tr. 135.
---------------------------------------------------------------------------

Recommendation

    In evaluating the DEA COR applications in their entirety, this 
record as a whole, and considering the totality of the circumstances 
\45\ surrounding the Respondent, his experience, and the facts as he 
knew them to be at the time he submitted the applications, it is clear 
that the Respondent's answers were false, and that they were supplied 
by the Respondent with an intention to deceive the Agency,\46\ and that 
the Respondent knew or should have known that his answers were false. 
Hale, 69 FR at 69406; The Drugstore, 61 FR at 5032; Watts, 58 FR at 
46995. Thus, inasmuch as the Government's evidence has established by 
clear and convincing evidence that the Respondent has materially 
falsified three applications to renew his COR, it has supplied 
sufficient evidence to support revocation, and thus, made out a prima 
facie case for the relief it seeks. ``[T]o rebut the Government's prima 
facie case, [the Respondent is] required not only to accept 
responsibility for [the established] misconduct, but also to 
demonstrate what corrective measures [have been] undertaken to prevent 
the re-occurrence of similar acts.'' Jeri

[[Page 74810]]

Hassman, M.D., 75 FR 8194, 8236 (2010); see Hoxie v. DEA, 419 F.3d 477, 
483 (6th Cir. 2005); Ronald Lynch, M.D., 75 FR 78745, 78754 (2010) 
(holding that a respondent's attempts to minimize misconduct undermined 
acceptance of responsibility); George Mathew, M.D., 75 FR 66138, 66140, 
66145, 66148 (2010); George C. Aycock, M.D., 74 FR 17529, 17543 (2009); 
Steven M. Abbadessa, D.O., 74 FR, 10077, 10078 (2009); Jayam Krishna-
Iyer, M.D., 74 FR 459, 463 (2009); Med. Shoppe-Jonesborough, 73 FR 364, 
387 (2008). The acceptance of responsibility must be unequivocal, or 
relief from sanction is unavailable. Mathew, 75 FR at 66148. This 
feature of the Agency's interpretation of its statutory mandate on the 
exercise of its discretionary function under the CSA has been sustained 
on review. MacKay v. DEA, 664 F.3d 808, 822 (10th Cir. 2011). The 
Agency has found that when a respondent is equivocal in accepting 
responsibility, such acceptance is ineffective and thus, any evidence 
of remedial measures taken is irrelevant. The Medicine Shoppe, 79 FR 
59504, 59510 (2014). In determining whether and to what extent a 
sanction is appropriate, consideration must be given to both the 
egregiousness of the offenses established by the Government's evidence 
and the Agency's interest in both specific and general deterrence. 
David A. Ruben, M.D., 78 FR 38363, 38364, 38385 (2013).
---------------------------------------------------------------------------

    \45\ Easter, 69 FR at 5581.
    \46\ See Jackson, 72 FR at 23852-53.
---------------------------------------------------------------------------

    As discussed, supra, the Respondent's insistence that his false 
response to Question 3 was borne of a reasonable misunderstanding of 
the information sought is simply not credible or reasonable and fatally 
undermines his efforts to meet the Government's case. The Respondent is 
an experienced COR registrant, a highly-educated professional, and a 
professor at a dental school. Offering a mitigation case based on a 
theory that this could have happened to anyone, and upon reflection 
(and more importantly, discovery by DEA), the answers should have 
technically been different, convincingly demonstrates that the 
Respondent does appreciate his own deceitfulness in his multiple COR 
renewal applications. To satisfy his modest burden to accept 
responsibility would have required, at a minimum, an acknowledgement 
that he knew and understood the answers were false when the 
applications were presented and thereafter. Even in his Closing Brief, 
the Respondent does not unequivocally state he was wrong and 
unreasonable at the time the DEA COR renewal applications were 
submitted, but merely posits that he ``now agrees that he should have 
consulted with an attorney, someone with the federal government, or 
with the DEA specifically, before answering the liability question in 
the DEA [COR] renewal application.'' Resp't Brf. at 3. The clear import 
of the Respondent's position is that he is only guilty of failing to 
acquire a definitive legal interpretation regarding an ambiguous clause 
in an application. Thus, since the Respondent has not tendered an 
unequivocal acceptance of responsibility, under established Agency 
precedent, he is foreclosed from a favorable result in these 
proceedings and the issue of remedial actions is irrelevant.\47\
---------------------------------------------------------------------------

    \47\ In any event, the record contains no significant evidence 
of remedial steps to prevent reoccurrence beyond the Respondent's 
assurances.
---------------------------------------------------------------------------

    Although the egregiousness of the Respondent's material false 
misrepresentations is certainly enhanced by the fact that it was 
repeated on three occasions, and (even according to his own testimony) 
was actively motivated by his desire to avoid drawing negative 
attention to himself and his practice,\48\ a far more significant part 
of the equation regarding the exercise of discretion here is founded in 
a consideration of the Agency's interests in deterrence of similar 
misconduct. Agency precedent has recognized that in the exercise of its 
oversight responsibilities, DEA must properly factor legitimate 
interests in both specific (related to the Respondent's future 
controlled substance privileges) and general (among the regulated 
community overall) deterrence. Ruben, 78 FR at 38385. Regarding 
specific deterrence, the Agency has an interest in ensuring that the 
Respondent complies with the CSA in future practice. Specific 
deterrence is especially important in the instant case given the 
Respondent's equivocation at hearing regarding the wrongfulness of his 
conduct as well as his stated motivations for failing to disclose the 
suspension and probation of his dental license. A strong indicator of 
his future conduct in this regard is his history of only disclosing his 
disciplinary issues to his insurance carrier when he was caught. The 
Respondent's presentation makes it clear that if presented with a 
similar circumstance, he would likely as not follow the same course. If 
the Respondent were amenable to learning this lesson, it would have 
been learned at the time he was caught trying to deceive his insurance 
carrier. There is no objective reason on the present record to believe 
that getting caught in a falsification by DEA will have any greater 
effect than getting caught by a falsification by his insurance carrier. 
The record supports the conclusion that he will act in what he feels is 
his own best interests. Simply put, there is just no basis in this 
record to conclude that the Respondent has evolved into a more candid 
registrant, and the interests of specific deterrence militate in favor 
of a denial of his COR application.
---------------------------------------------------------------------------

    \48\ Tr. 128.
---------------------------------------------------------------------------

    Regarding general deterrence, as the regulator in this field, the 
Agency bears the responsibility to deter similar misconduct on the part 
of others for the protection of the public at large. Ruben, 78 FR at 
38385. Agency regulators are not and cannot be omniscient. To perform 
its regulatory mission, DEA must depend primarily on the candor of 
members and prospective members of the regulated community. The 
Respondent here did not come forward of his own volition; his actions 
were discovered by DEA. There is no question that for years the 
Respondent profited (monetarily and professionally) by his own lack of 
candor here. In this case, issuance of a published decision imposing no 
sanction on a registrant who attempted to (and for many years did) 
shield himself from a deserved level of scrutiny regarding multiple 
renewal applications by tendering material false answers designed to 
mask his misconduct would broadcast a message to the regulated 
community that lack of candor in material matters carries no 
consequence to the Respondent, only potential advantage for others in 
similar situations. Such a holding would unequivocally incentivize 
nuanced or even patently false answers on applications where the 
accuracy of the information is vital to the Agency's mission to 
regulate registrants who are entrusted or seek to be entrusted with the 
responsibility of handling controlled substances.
    The evidence of record, which includes material false statements in 
multiple COR renewal applications and no basis upon which to find that 
the Respondent has accepted responsibility for his action, compels a 
recommendation that the Respondent's DEA registration be REVOKED.
Dated: January 9, 2015.
JOHN J. MULROONEY, II
Chief Administrative Law Judge
[FR Doc. 2015-30256 Filed 11-27-15; 8:45 am]
 BILLING CODE 4410-09-P