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Jonathan Weinstein, M.D.; Revocation of Registration

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On June 29, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to show Cause (OTSC) by certified mail to Jonathan Weinstein, M.D., (Respondent) notifying him of an opportunity to show cause as to why the DEA should not revoke his DEA Certificate of Registration BW5121948, pursuant to 21 U.S.C. 824(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 no longer authorized to handle controlled substances in the State in which he practices. By letter dated August 7, 2001, Respondent through counsel requested a hearing in this matter.

On August 21, 2001, the Government filed a Request for Stay of Proceedings and Motion for Summary Disposition (Government's Motion), arguing that Respondent is no longer authorized to handle controlled substances in the Commonwealth of Virginia, where Respondent's DEA Certificate of Registration states he conducts his business. The Government attached to its Motion a copy of an Order of the Department of Health Professions, State of Virginia, dated February 16, 2000, suspending Respondent's license to practice medicine and surgery. The basis for the suspension of Respondent's medical license was his February 4, 2000 felony conviction, in the United States District Court for the eastern District of Virginia, of possession of Start Printed Page 35592child pornography, a copy of which judgment was also attached to the Government's Motion.

By letter dated September 1, 2001, Respondent requested a continuation in these proceedings, as he apparently was no longer being represented by counsel and needed to determine how to proceed. Respondent was granted until September 27, 2001, to respond to the Government's Motion.

On September 27, 2001, Respondent filed a response to the Government's Motion, asserting that since his medical license had been suspended, rather than revoked, revocation of his DEA registration would be extreme and excessive. Respondent also contends that there are no guidelines requiring revocation of a DEA registration following a registrant's felony conviction.

By Opinion and Recommended Decision of the Administrative Law Judge dated October 3, 2001, Mary Ellen Bittner (Judge Bittner) granted the Government's Motion, recommending that Respondent's DEA registration be revoked, and any pending applications for modification or renewal be denied. On November 19, 2001, the record of these proceedings was transmitted to the Deputy Administrator for final decision.

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 DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the applicant or registrant is without State authority to handle 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 surgery in Virginia, and therefore, the Deputy Administrator infers that Respondent is also not authorized to handle controlled substances in Virginia, where he practices, according to the address listed on his DEA Certificate of Registration. The Deputy Administrator concurs with Judge Bittner's findings that Respondent does not deny that he is not currently licensed to practice medicine in the Commonwealth of Virginia, the jurisdiction in which he is registered by DEA. Thus, there is no genuine issue of material fact concerning Respondent's lack of authorization to practice medicine in Virginia or to handle controlled substances in that State.

The Deputy Administrator further concurs with Judge Bittner'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 BW5121948, issued to Jonathan I. Weinstein, 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. 02-12496 Filed 5-17-02; 8:45 am]

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