[Federal Register: October 13, 1998 (Volume 63, Number 197)] [Notices] [Page 54733-54734] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr13oc98-112] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 98-19] Garth A.A. Clark, M.D.; Revocation of Registration On January 8, 1998, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Garth A.A. Clark, M.D. (Respondent) of Texas notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration BC2334364, and deny any pending applications for registration pursuant to 21 U.S.C. 823(f) and 824(a)(3), for reason that he is not currently authorized to handle controlled substances in the State of Texas. By letter dated March 22, 1998, Respondent filed a request for a hearing, and the matter was docketed before Administrative Law Judge Gail A. Randall. On April 2, 1998, the Government filed a Motion for Summary Disposition alleging that Respondent's request for a hearing was not timely filed and as a result, Judge Randall does not have jurisdiction over this matter. In addition, the Government alleged that Respondent is no longer authorized by the State of Texas to dispense, prescribe, administer or otherwise handle controlled substances. Judge Randall issued an Order dated April 8, 1998, wherein she provided Respondent until April 27, 1998, to respond to the Government's motion. Respondent did not file such a response. On May 6, 1998, Judge Randall issued her Opinion and Recommended Ruling, concluding that she did have jurisdiction in this matter; finding that Respondent lacked authorization to handle controlled substances in Texas; granting the Government's Motion for Summary Disposition; and recommending that Respondent's DEA Certificate of Registration be revoked. Neither party filed exceptions to her opinion, and on June 18, 1998, Judge Randall transmitted the record of these proceedings to the Acting Deputy Administrator. The Acting Deputy Administrator has considered the record in its entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order based upon findings of fact and conclusions of law as hereinafter set forth. The Acting Deputy Administrator adopts, in full, the Opinion and Recommended Ruling of the Administrative Law Judge. The Acting Deputy Administrator finds that the Government argued that Respondent did not file a timely request for a hearing. The Order to Show Cause was served on Respondent on February 20, 1998, and advised Respondent that pursuant to 21 CFR 1301.43(a), he could request a hearing within 30 days from the date of receipt of the order. Respondent's request for a hearing was dated March 22, 1998, but was not filed with DEA until March 26, 1998. Therefore, the Government argues that Respondent's request for a hearing was filed three days late, and as a result Respondent should be deemed to have waived his opportunity for a hearing pursuant to 21 CFR 1301.43(d). Judge Randall agreed with the Government's calculation that the request for a hearing was filed late. She noted however that Respondent was not represented by counsel, and that he prepared the request for a hearing on March 22, 1998, within the allotted time. Judge Randall also found that the Government would not be prejudiced by accepting Respondent's request for a hearing. Pursuant to 21 CFR 1316.47(b), ``[t]he Administrative Law Judge, upon request and showing of good cause, may grant [[Page 54734]] a reasonable extension of the time allowed for response to an Order to Show Cause.'' Therefore, Judge Randall found ``(1) that the Respondent's letter dated March 22, 1998, is deemed as a request to accept a late filing, (2) that three days is a reasonable extension of time to file this request, and (3) that the Respondent has subsequently requested a hearing in this matter within that reasonable time.'' The Acting Deputy Administrator agrees with Judge Randall's conclusion that she had jurisdiction in this matter. As to the merits of this case, the Acting Deputy Administrator finds that on February 11, 1997, the Texas State Board of Medical Examiners (Board) issued an order temporarily suspending Respondent's license to practice medicine in the State of Texas. Subsequently, on February 18, 1997, the Texas Department of Public Safety canceled his state controlled substance registration. In his request for a hearing, Respondent argued that his medical license was unjustly suspended by the Board. He requested that DEA postpone taking any action against his DEA registration ``until the temporary suspension of [his] Texas license is further adjudicated.'' However, Respondent did not deny that he is not currently authorized to handle controlled substances in Texas. The DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without authority to handle controlled substances in the state in which he conducts his business. 21 U.S.C. 802(21) 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Romeo J. Perez, M.D., 62 FR 16,193 (1997); Demetris A. Green, M.D., 61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993). Here it is clear that Respondent is not currently authorized to handled controlled substances in Texas, where he is registered with DEA. Since Respondent lacks this state authority, he is not entitled to a DEA registration in that state. In light of the above, Judge Randall properly granted the Government's Motion for Summary Disposition. It is well settled that where there is no material question of fact involved, there is no need for a plenary, administrative hearing. Congress did not intend for administrative agencies to perform meaningless tasks. Gilbert Ross, M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). As Judge Randall noted, ``[h]ere, there is no dispute concerning the material fact that the Respondent currently lacks state authority to handle controlled substances in Texas.'' Accordingly, the Acting Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration BC2334364, previously issued to Garth A.A. Clark, M.D., be, and it hereby is, revoked. The Acting Deputy Administrator further orders that any pending applications for renewal of such registration, be, and they hereby are, denied. This order is effective November 12, 1998. Dated: October 6, 1998. Donnie R. Marshall, Acting Deputy Administrator. [FR Doc. 98-27379 Filed 10-9-98; 8:45 am] BILLING CODE 4410-09-M