Kendrick E. Duldulao, M.D.; Decision and Order, 17406-17407 [2021-06799]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Notices]
[Pages 17406-17407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06799]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Kendrick E. Duldulao, M.D.; Decision and Order

    On January 29, 2021, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Kendrick E. 
Duldulao, M.D. (hereinafter, Registrant) of Tampa, Florida. OSC, at 1. 
The OSC proposed the revocation of Registrant's Certificate of 
Registration No. FD0005593. It alleged that Registrant is without 
``authority to handle controlled substances in Florida, the state in 
which [Registrant is] registered with DEA.'' OSC, at 2 (citing 21 
U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on or about May 23, 2019, the 
U.S. District Court for the Middle District of Florida found Registrant 
guilty of one count of Conspiracy to Distribute and Dispense Controlled 
Substances in violation of 21 U.S.C. 846. OSC, at 1. Following the 
conviction, the State of Florida Department of Health (hereinafter, the 
Florida Department of Health) issued an Order of Emergency Suspension 
of License on November 18, 2019. OSC, at 2. This Order, according to 
the OSC, immediately restricted Registrant's Florida medical license 
based on the Registrant's conviction. Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. OSC, at 3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated March 9, 2021, a Diversion Investigator 
(hereinafter, DI) assigned to the DEA Miami Field Division, Tampa 
District Office, stated that the first attempt to serve the OSC to 
Registrant at his registered address was ``returned via USPS as 
undeliverable as [Registrant] was no longer at the address and he left 
no forwarding information.'' Request for Final Agency Action 
(hereinafter, RFAA), App. 6 (Declaration of DI), at 2; see also App. 5 
(Copy of Return to Sender Envelope). The DI further stated that 
following the first unsuccessful service attempt, he and others from 
the Tampa District Office attempted to contact and personally serve the 
OSC on Registrant at ``addresses obtained from queries made of numerous 
online public databases for [Registrant's] address.'' Id. The DI went 
on to detail the multiple attempts to personally serve the OSC on 
Registrant at the various addresses on February 1, 2021. Id. On 
February 1, 2021, the DI and others from the Tampa District Office 
``travelled to an address know[n] to be owned and occupied by 
[Registrant's] parents'' and ``despite multiple efforts to knock on the 
door and placing a phone call to the address, no contact was made with 
the occupants of the home.'' Id. Additionally, on February 1, 2021, the 
DI and another from the Tampa District Office ``travelled to an address 
identified as [Registrant's] residence'' and ``were told [Registrant] 
no longer lived there.'' Id. Finally, on February 1, 2021, the DI and 
others from the Tampa District Office ``travelled to an address \1\ 
identified as [Registrant's] residence'' and ``were told that 
[Registrant] no longer lived there.'' Id. The DI concluded that 
``during [the] attempts to serve [Registrant]'' he was informed that 
``[Registrant's] registered address was permanently closed.'' Id.
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    \1\ It appears from the language of the Declaration, that the DI 
attempted service at two separate potential residences of Registrant 
on February 1, 2021, in addition to Registrant's parents' address.
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    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on March 10, 2021. In its RFAA, the Government 
represents that ``more than thirty days have passed since the Order to 
Show Cause was served on [Registrant] and no request for hearing has 
been received by DEA.\2\ RFAA, at 1. The Government requests that 
Registrant's ``Certificate of Registration as a practitioner be revoked 
and his application for renewal denied, based on [Registrant's] lack of 
state authority.'' RFAA, at 5.
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    \2\ The Government also represents that DEA has not received 
``any other correspondence of [sic] filing'' from Registrant. RFAA, 
at 3.
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    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find the Government's 
attempts to serve Registrant were legally sufficient. Due process does 
not require actual notice. Jones v. Flowers, 547 U.S. 220, 226 (2006). 
``[I]t requires only that the Government's effort be reasonably 
calculated to apprise a party of the pendency of the action.'' 
Dusenbery v. United States, 534 U.S. 161, 170 (2002) (internal 
quotations omitted). In this case, the Government first attempted to 
serve Registrant by mail to his registered address. When the OSC was 
returned as undeliverable because Registrant was no longer at the 
address and left no forwarding information, the Government attempted to 
personally serve Registrant at his registered address, his identified 
residences, and the address known to be owned and occupied by 
Registrant's parents, all of which were locations where the Government 
reasonably believed Registrant would be located. ``[T]he Due Process 
Clause does not require . . . heroic efforts by the Government'' to 
find Registrant. Id. I find, therefore, that under the circumstances, 
the Government's efforts to notify Registrant of the OSC were 
reasonable and satisfied due process. See Frederick Silvers, M.D., 85 
FR 45,442, 45,443 (2020).
    I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing, or submitted a corrective action plan. Accordingly, I find 
that Registrant has waived the right to a hearing and the right to 
submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FD0005593 at the registered address of 14495 University Cove Place, 
Tampa, FL

[[Page 17407]]

33613. RFAA, App. 7, at 1 (Printout of Registration database). Pursuant 
to this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration is in ``renewal pending'' status. Id. at 1.

The Status of Registrant's State License

    On November 18, 2019, the Florida Department of Health issued an 
Order of Emergency Suspension of License (hereinafter, Emergency 
Suspension). RFAA, App. 4, at 1 and 3. According to the Emergency 
Suspension, on or about May 23, 2019, Registrant was found guilty by 
the U.S. District Court for the Middle District of Florida of one count 
of Conspiracy to Distribute and Dispense Controlled Substances, ``not 
for a legitimate medical purpose and not in the course of professional 
practice in violation of 21 U.S.C. 846.'' Id. at 2. According to the 
Emergency Suspension, Florida State law provides that the Florida 
Department of Health shall issue an Emergency Suspension of ``any 
person licensed under Chapter 458, Florida Statutes [ ], who pleads 
guilty to, is convicted or found guilty of, or who enters a plea of 
nolo contendere to, regardless of adjudication, to [sic] a felony under 
21 U.S.C. 846.'' Id. The Emergency Suspension ordered Registrant's 
license to practice as a physician to be ``immediately suspended.'' Id. 
at 3.
    According to Florida's online records, of which I take official 
notice, Registrant's license is still suspended.\3\ Florida Department 
of Health License Verification, https://mqa-internet.doh.state.fl.us/MQASearchServices/HealthCareProviders (last visited date of signature 
of this Order). Florida's online records show that Registrant's medical 
license is under emergency suspension and that Registrant is not 
authorized in Florida to practice medicine. Id.
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    \3\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration of finding of fact 
within fifteen calendar days of the date of this Order. Any such 
motion and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at [email protected].
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Florida, the state in which 
Registrant is registered with the DEA.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA) ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also 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 practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[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.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the state in which he practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to Florida statute, ``A practitioner, in good faith and 
in the course of his or her professional practice only, may prescribe, 
administer, [or] dispense . . . a controlled substance.'' Fla. Stat. 
Ann. Sec.  893.05(1)(a) (West, current with chapters from the 2020 
Second Regular Session of the 26th Legislature in effect through May 
18, 2020). Further, ``practitioner,'' as defined by Florida statute, 
includes ``a physician licensed under chapter 458.'' Fla. Stat. Ann. 
Sec.  893.02(23) (West, current with chapters from the 2020 Second 
Regular Session of the 26th Legislature in effect through May 18, 
2020).\4\
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    \4\ Chapter 458 regulates medical practice.
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    Here, the undisputed evidence in the record is that Registrant's 
license to practice medicine is currently suspended. As such, he is not 
a ``practitioner'' as that term is defined by Florida statute. As 
already discussed, however, a physician must be a practitioner to 
dispense a controlled substance in Florida. Thus, because Registrant 
lacks authority to practice medicine in Florida, he is not currently 
authorized to handle controlled substances in Florida. Accordingly, I 
will order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
FD0005593 issued to Kendrick E. Duldulao. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Kendrick E. Duldulao to renew or modify 
this registration, as well as any other application of Kendrick E. 
Duldulao, for additional registration in Florida. This Order is 
effective May 3, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-06799 Filed 4-1-21; 8:45 am]
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