Robert Markman, M.D.; Decision and Order, 11369-11370 [2017-03383]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 82, Number 34 (Wednesday, February 22, 2017)]
[Notices]
[Pages 11369-11370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03383]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert Markman, M.D.; Decision and Order

    On September 27, 2016, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration, issued an Order to 
Show Cause to Robert Markman, M.D. (hereinafter, Applicant), of 
Northridge, California. GX 1, at 1. The Show Cause Order proposed the 
denial of Applicant's application for a Certificate of Registration as 
a practitioner, on the ground that he does not hold authority to 
dispense controlled substances in California, the State in which he 
seeks registration. Id.
    As the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that on December 30, 2013, Applicant applied for a 
registration as ``a practitioner in [s]chedules II-V,'' at a proposed 
registered location in Northridge, California. Id. As the substantive 
ground for the proceeding, the Show Cause Order alleged that effective 
on August 17, 2016, the Medical Board of California (MBC) issued an 
order revoking Applicant's ``authority to practice medicine due to 
[his] conviction of a criminal offense substantially related to the 
qualification, functions, or duties of a physician and surgeon.'' Id. 
at 1-2. The Order then alleged that Applicant is ``without authority to 
handle controlled substances in . . . California, the [S]tate in which 
[he is] attempting to register with the'' Agency, and that as 
consequence, his application must be denied. Id.
    The Show Cause Order notified Applicant of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedure for electing either 
option, and the consequence of failing to elect either option. Id. at 2 
(citing 21 CFR 1301.43). The Show Cause Order also notified Applicant 
of his right to submit a corrective action plan. Id. at 2-3 (citing 21 
U.S.C. 824(c)(2)(C)).
    On October 5, 2016, a Diversion Investigator assigned to the Los 
Angeles Field Division personally served the Show Cause Order on 
Applicant. GX 3. On January 13, 2017, the Government submitted a 
Request for Final Agency Action (cited as RFAA) and an evidentiary 
record to support its proposed action. In its Request, the Government 
represents that Applicant ``has not filed a request for a hearing or

[[Page 11370]]

a written statement.'' Gov. Request for Final Agency Action, at 1.
    Based on the record and the Government's representation, I find 
that since the date on which Applicant was served with the Show Cause 
Order, more than 30 days have now passed and neither Applicant, nor 
anyone purporting to represent him, has requested a hearing or 
submitted a written statement while waiving his right to a hearing. 
Accordingly, I find that Applicant has waived his right to a hearing 
and his right to submit a written statement. 21 CFR 1301.43(d). I 
therefore issue this Decision and Order based on the record submitted 
by the Government. Id. Sec.  1301.43(e). I make the following findings.

Findings of Fact

    On December 30, 2013, Applicant applied for a DEA Certificate of 
Registration, seeking authority to dispense controlled substances in 
schedules II through V as a practitioner. GX 2A, at 1. Applicant 
proposed an address in Northridge, California as his registered 
location, and provided the number of his California license. Id.
    Applicant was also the holder of Physician's and Surgeon's 
certificate No. G27953 which was issued by the MBC. GX 2B, at 1, 3. 
However, on July 18, 2016, the MBC adopted the proposed decision of a 
state administrative law judge (ALJ) which found that Applicant had 
been ``convicted of a criminal offense substantially related to the 
qualifications, functions, or duties of a physician and surgeon'' and 
that ``[s]uch also constituted unprofessional conduct.'' Id. at 1, 24. 
The state ALJ also found that Applicant ``failed to offer even minimal 
evidence of rehabilitation and this prevents the Board from giving any 
consideration to continuing his probation at this time' and that 
``[p]ublic protection demands that [his] medical license be revoked.'' 
Id. at 24.
    While the MBC's Order was to become effective on August 17, 2016, 
according to the Board's online records (of which I take official 
notice \1\), on August 16, Applicant sought reconsideration and the MBC 
stayed its order to allow it ``to review and consider'' his petition. 
However, on August 26, 2016, the MBC denied Applicant's petition and 
the revocation became effective at 5 p.m. that day. I therefore find 
that Applicant does not possess authority under the laws of California 
to dispense controlled substances. See Cal. Bus. & Prof. Code Sec.  
2051 (``The physician's and surgeon's certificate authorizes the holder 
to use drugs . . . in or upon human beings . . . in the treatment of 
diseases, injuries, deformities, and other physical and mental 
conditions''); id. Sec.  2052 (``any person who . . . prescribes for 
any . . . deformity, disease . . . injury, or other physical or mental 
condition of any person, without having at the time of so doing a 
valid, unrevoked, or unsuspended certificate as provided in this 
chapter . . . is guilty of a public offense'').
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    \1\ I also take official notice that according to the online 
records of the MBC, Applicant's medical license has not been 
reinstated.
    In accordance with the Administrative Procedure Act (APA), an 
agency ``may take official notice of facts at any stage in a 
proceeding-even in the final decision.'' U.S. Dept. of Justice, 
Attorney General's Manual on the Administrative Procedure Act 80 
(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with 
the APA and DEA's regulations, Respondent is ``entitled on timely 
request to an opportunity to show to the contrary.'' 5 U.S.C. 
556(e); see also 21 CFR 1316.59(e). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within 15 calendar 
days of the date of service of this Order which shall commence on 
the date this Order is mailed.
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Discussion

    Under the Controlled Substances Act, a practitioner must be 
currently authorized to dispense controlled substances ``under the laws 
of the State in which he practices'' in order to obtain and maintain a 
practitioner's registration. See 21 U.S.C. 823(f) (``T]he Attorney 
General shall register practitioners . . . if the applicant is 
authorized to dispense . . . controlled substances under the laws of 
the State in which he practices.''); see also id. Sec.  802(21) 
(defining ``the term `practitioner' [to] mean[ ] a . . . physician . . 
. or other person licensed, registered or otherwise permitted, by . . . 
the jurisdiction in which he practices . . . to distribute, dispense, 
[or] administer . . . a controlled substance in the course of 
professional practice'').
    Thus, with respect to a practitioner, DEA has long held that the 
possession of authority to dispense controlled substances under the 
laws of the State in which a practitioner engages in professional 
practice is a fundamental condition for obtaining and maintaining a 
registration. See, e.g., James L. Hooper, 76 FR 71371 (2011) 
(collecting cases), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 
2012); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (``State 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.''); 21 U.S.C. 824(a)(3) (authorizing 
revocation ``upon a finding that the registrant . . . has had his State 
license . . . suspended [or] revoked . . . by competent State authority 
and is no longer authorized by State law to engage in the . . . 
dispensing of controlled substances'').
    As found above, by virtue of the MBC's Order, Applicant currently 
lacks authority to handle controlled substances in California, the 
State in which he seeks registration, and is not entitled to be 
registered. Accordingly, I will order that his application be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b), I order that the application of Robert Markman, 
M.D., for a DEA Certificate of Registration as a practitioner, be, and 
it hereby is, denied. This Order is effective March 24, 2017.

    Dated: February 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-03383 Filed 2-21-17; 8:45 am]
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