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Layfe Robert Anthony, M.D.; Revocation of Registration

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On June 22, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Layfe Robert Anthony, M.D., (Respondent) notifying him of an opportunity to show cause as to why the DEA should not revoke his DEA Certificate of Registration BA4090320, pursuant to 21 U.S.C. 834(a)(3), and deny any pending applications for renewal of this registration, pursuant to 21 U.S.C. 823(f), for the reason that Respondent is not currently authorized to practice medicine or to handle controlled substances in Utah, the state in which he is registered.

By letter received August 6, 2001, Respondent, through counsel, requested a hearing in this matter. On August 10, 2001, the Government filed a Request for Stay of Proceedings and Motion for Summary Disposition. By Order dated August 15, 2001, Administrative Law Judge Gail A. Randall (Judge Randall) granted Respondent time to respond to the Government's Motion. On August 23, 2001, the Respondent timely filed Respondent's Memorandum in Opposition to Government's Request for Stay and Summary Disposition. On August 29, 2001, Judge Randall issued an Order Granting a Stay in this proceeding. The Stay was lifted by her Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge dated October 2, 2001 (Opinion and Recommended Ruling), granting the Government's Motion for Summary Disposition. The record of these proceedings was subsequently transmitted to the Deputy Administrator for his final decision November 20, 2001.

The 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 Deputy Administrator adopts in full the Opinion and Recommended Decision of the Administrative Law Judge.

The Government requests summary disposition based upon its allegation that Respondent does not have state authority to handle controlled substances. The Government attached to its motion a copy of an Emergency Order, entered by J. Craig Jackson, R.Ph., Director of Occupational and Professional Licensing, Department of Commerce, State of Utah, dated April 3, 2001. In the Order, Director Jackson ordered the immediate suspension of the Respondent's licenses to perform surgery and to administer and prescribe controlled substances, “pending further order of the Division.” Director Jackson further stated that the Division will issue a restricted license to the Respondent pending a formal adjudicative proceeding in the matter.

The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the application or registrant is without state authority to Start Printed Page 35583handle controlled substances in the state in which he or she practices. See 21 U.S.C. 802(21), 823(f), and 824(a)(3). This prerequisite has been consistently upheld in prior DEA cases. See Graham Travers Schuler, M.D., 65 FR 50,570 (2000); 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).

In the instant case, the Deputy Administrator finds the Government has presented undisputed evidence demonstrating that the Respondent is not authorized to practice medicine or to administer or prescribe controlled substances in the State of Utah.

Respondent contends the Emergency Order resulted from a closed hearing in which he was not permitted to appear, call witnesses, confront his accusers, or participate in any meaningful fashion. Respondent argues that because a formal hearing has yet to be concluded, the matter before the DEA should be stayed pending the outcome of the proceeding before the Utah State Division of Occupational and Professional Licensing. In support of this contention, Respondent cites to Hezekiah K. Heath, M.D., 51 FR 26,612 (1986) (Heath) for the proposition that the DEA has recognized it cannot rely upon a state's suspension where the respondent in a DEA hearing did not have the opportunity to contest the state's action in a plenary hearing.

The Deputy Administrator concurs with Judge Randall's reading of Heath, which she found “did not create an exception to the statutory mandate for cases in which a registrant's state license has been suspended by the appropriate state licensing authority without a hearing. Rather, the Administrator informed the Respondent that the DEA would accept as lawful and valid, a state regulatory board's order, unless and until such order had been overturned ‘by a state court or otherwise pursuant to state law.' ” Heath further found that he DEA proceedings were an inappropriate forum in which to challenge a state regulatory board's order. The Deputy Administrator hereby reaffirms Heath's conclusion that “* * * 21 U.S.C. 824(a) clearly provides that a registrant's state license need only have been suspended to provide a lawful basis for revocation of a DEA registration.” Id at 26,612.

The Deputy Administrator further concurs with Judge Randall's finding that respondent's allegation that he was authorized to handle controlled substances in the State of Nevada is not supported by the evidence, meritless, and ultimately irrelevant. Respondent's DEA Certificate of Registration is for a Utah address, and Respondent is not authorized to practice medicine or to handle controlled substances in Utah.

The Deputy Administrator also concurs with Judge Randall's finding that it is well settled that when there is no question of material fact involved, there is no need for a plenary, administrative hearing. Congress did not intend for administrative agencies to perform meaningless tasks. See Michael G. Dolin, M.D., 65 FR 5,661 (2000); Jesus R. Juarez, M.D., 62 FR 14,945 (1997); see also Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).

Accordingly, the 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 BA4090320, issued to Layfe Robert Anthony, M.D., be, and it hereby is, revoked; and that any pending applications for the renewal or modification of said Certificate be, and hereby are, denied. This order is effective June 19, 2002.

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Dated: May 6, 2002.

John B. Brown, III,

Deputy Administrator.

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[FR Doc. 02-12495 Filed 5-17-02; 8:45 am]

BILLING CODE 4410-09-M