Thomas Andr'e Endicott, D.D.S.; Decision and Order, 13892-13894 [2025-05163]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 90, Number 58 (Thursday, March 27, 2025)]
[Notices]
[Pages 13892-13894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-05163]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Thomas Andr'e Endicott, D.D.S.; Decision and Order

    On March 26, 2024, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Thomas Andr'e 
Endicott, D.D.S., of Salt Lake City, Utah (Registrant). Request for 
Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC 
proposed the revocation of Registrant's Certificate of Registration No. 
FE3865029, alleging that Registrant's registration should be revoked 
because Registrant is ``currently without authority to handle 
controlled

[[Page 13893]]

substances in Utah, the state in which [he is] registered with DEA.'' 
Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file a written request 
for hearing, and that if he failed to file such a request, he would be 
deemed to have waived his right to a hearing and be in default. Id. 
(citing 21 CFR 1301.43). Here, Registrant did not request a hearing. 
RFAA, at 3.\1\ ``A default, unless excused, shall be deemed to 
constitute a waiver of the registrant's/applicant's right to a hearing 
and an admission of the factual allegations of the [OSC].'' 21 CFR 
1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated May 
24, 2024, the Agency finds that service of the OSC on Registrant was 
adequate. An included declaration from a DEA Diversion Investigator 
(DI) indicates that on March 27, 2024, the DI attempted to 
personally serve Registrant at Registrant's registered address, but 
Registrant was not present and had not been seen at the premises 
since November 2023. RFAAX 2, at 2. On March 28, 2024, the DI 
requested that the Phoenix Field Division perform additional 
diligence in locating and serving Registrant with the OSC, which was 
ultimately unsuccessful. Id.; see also RFAAX 3, at 1 (attempt by a 
second Diversion Investigator to personally serve Registrant with 
the OSC at Registrant's last known address in Arizona on April 5, 
2024). On April 8, 2024, the DI emailed a copy of the OSC to 
Registrant's registered email address, and the email was not 
returned as undeliverable. Id.; see also id., Attachment 1, at 1. On 
the same date, the DI also mailed copies of the OSC via USPC 
certified mail and USPS First Class mail to Registrant at his 
registered address, both of which were returned back to the DI. 
RFAAX 2, at 2-3; see also id., Attachments 2-3. Here, the Agency 
finds that Registrant was successfully served the OSC by email and 
that the DI's efforts to serve Registrant by other means were `` 
`reasonably calculated, under all the circumstances, to apprise 
[Registrant] of the pendency of the action.' '' Jones v. Flowers, 
547 U.S. 220, 226 (2006) (quoting Mullane v. Central Hanover Bank & 
Trust Co., 339 U.S. 306, 314 (1950)); see also Mohammed S. Aljanaby, 
M.D., 82 FR 34,552, 34,552 (2017) (finding that service by email 
satisfies due process where the email is not returned as 
undeliverable and other methods have been unsuccessful). Therefore, 
due process notice requirements have been satisfied.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(d), (e), (f)(1), 1301.46. RFAA, at 
1; see also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, on 
February 22, 2024, both Registrant's Utah dental license and Utah 
controlled substance license were revoked. RFAAX 1, at 1-2. According 
to Utah online records, of which the Agency takes official notice,\2\ 
both Registrant's Utah dental license and Utah controlled substance 
license remain revoked. Utah Division of Professional Licensing License 
Lookup & Verification System, https://secure.utah.gov/llv/search/search.html (last visited date of signature of this Order). 
Accordingly, the Agency finds that Registrant is not licensed to 
practice as a dentist nor to handle controlled substances in Utah, the 
state in which he is registered with DEA.\3\
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    \2\ 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).
    \3\ 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.'' The material fact here is 
that Registrant, as of the date of this decision, is not licensed to 
practice as a dentist in Utah. Accordingly, Registrant may dispute 
the Agency's finding by filing a properly supported motion for 
reconsideration of findings 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 the DEA Office of the 
Administrator, Drug Enforcement Administration at 
[email protected].
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, 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. 
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General 
can register a physician to dispense controlled substances `if the 
applicant is authorized to dispense . . . controlled substances under 
the laws of the State in which he practices.' . . . The very definition 
of a `practitioner' eligible to prescribe includes physicians 
`licensed, registered, or otherwise permitted, by the United States or 
the jurisdiction in which he practices' to dispense controlled 
substances. Sec.  802(21).''). The Agency has applied these principles 
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71,371, 71,372 
(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).\4\
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    \4\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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(g)(1). Because Congress has clearly mandated that a 
practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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, M.D., 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, M.D., 43 FR at 27,617.
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    Under Utah statute, ``[e]very person who manufactures, produces, 
distributes, prescribes, dispenses, administers, conducts research 
with, or performs laboratory analysis upon any controlled substance in 
Schedules I through V within [the] state . . . shall obtain a license 
issued by the [Division of Professional Licensing].'' Utah Code Ann. 
Sec.  58-37-6(2)(a)(i) (2024).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to handle controlled substances in Utah because both 
Registrant's Utah dental license and Registrant's Utah controlled 
substance license are revoked. As discussed above, an individual must 
hold a Utah controlled substance license to dispense a controlled 
substance in Utah. Thus, because Registrant lacks authority to handle 
controlled substances in Utah, Registrant is not eligible to maintain a 
DEA registration. Accordingly, the Agency 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. 
FE3865029 issued to Thomas Andr'e Endicott, D.D.S. Further, pursuant to 
28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), 
I hereby deny any pending applications of Thomas Andr'e Endicott, 
D.D.S., to renew or modify this registration, as well as any other 
pending application of Thomas Andr'e

[[Page 13894]]

Endicott, D.D.S., for additional registration in Utah. This Order is 
effective April 28, 2025.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
March 21, 2025, by Acting Administrator Derek Maltz. That document with 
the original signature and date is maintained by DEA. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DEA Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of DEA. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2025-05163 Filed 3-26-25; 8:45 am]
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