On October 29, 1999, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Jeffrey Martin Ford, D.D.S. (Respondent), proposing to deny his application for a DEA Certificate of Registration pursuant to 21 U.S.C. 823(f) and 824(a).
By letter dated November 22, 1999, the Respondent requested a hearing on the issues raised by the Order to Show Cause. Following prehearing procedures, a hearing was held on June 15, 2000, in Boston, Massachusetts. At the hearing, the Government called two witnesses to testify and the Respondent testified on his behalf. Both parties also introduced documentary evidence. After the hearing, both parties submitted proposed findings of fact, conclusions of law, and argument. On February 6, 2001, Administrative Law Judge Mary Ellen Bittner (Judge Bittner) issued her Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision, recommending that Respondent's application for registration be granted subject to various conditions. Neither party filed exceptions to Judge Bittner's opinion, and on March 6, 2001, Judge Bittner transmitted the record of these proceedings to the then-Deputy Administrator.
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 recommended rulings of fact, conclusions of law and decision of the Administrative Law Judge. His adoption is in no manner diminished by any recitation of facts, issues, or conclusions herein, or of any failure to mention a matter of fact or law.
The Deputy Administrator finds that the Respondent graduated from dentistry school in 1972, and following 24-month residency in orthodontics at Case Western Reserve University School of Dentistry, he established an orthodontic practice in Boston Massachusetts in 1974. In 1983, the Respondent relocated to Phoenix, Arizona, where he became licensed to practice dentistry, and then established Start Printed Page 10751a solo practice in Tempe, Arizona the following year.
On May 13, 1986, an Arizona State trooper stopped the Respondent's vehicle when he was apparently observed operating an automobile in an erratic fashion.Upon a search of the vehicle, the state trooper discovered what laboratory tests later revealed as 1.6 grains of cocaine and various marijuana cigarettes. The Respondent was arrested and charged with possession of a narcotic drug. On cross-examination during the hearing, the Respondent testified that the Arizona trooper was not justified in making the initial traffic stop of his vehicle, and made up a reason for stopping him.
On January 23, 1987, the Respondent pled guilty to solicitation to possess a narcotic drug, a class 6 undesignated felony offense under Arizona law. During the administrative hearing, the Respondent acknowledged that the cocaine was his, and that the drug was for his personal use. The Respondent further testified that he regretted the incident, and admitted that he squandered his opportunities in Arizona “due to [his] own stupidity with drugs.”
The Government introduced a copy of a Presentence Investigation Report (PSIR). The PSIR was compiled in conjunction with the Arizona criminal proceeding, to assist the state court judge in sentencing the Respondent following his conviction for possession of a narcotic drug. The PSIR revealed that the Respondent had used marijuana, LSD, mescaline and cocaine prior to the arrest that led to his conviction. The Respondent was also quoted in the PSIR as commenting that his sentence should be a “slap on the wrist” and that he should be sent back to work.
At the hearing, the Respondent testified that he did not use cocaine until after his May 1986 arrest in Arizona. However, when confronted with his PSIR statement about his past drug use, he admitted that he used cocaine three or four times, but had not developed a “taste” for it until after his May 1986 arrest.
On February 19, 1987, the Respondent was sentenced to three years probation and 100 hours of community service, however that sentence was modified in June 1987 to allow the Respondent to pay a fine. The Respondent subsequently petitioned the court to modify the terms and conditions of his probation, and his probation was terminated. The court also designated the charged offense as a misdemeanor. The Respondent testified during the hearing, however, that following his release from probation, his application for reinstatement of his dental license was denied.
On March 16, 1987, the Arizona State Board of Dental Examiners (Arizona Dental Board) summarily suspended the Respondent's dental license in that state, based upon his criminal conviction. On that same day, the Respondent provided a urine sample to the Arizona Board, which tested positive for cocaine. The Respondent did not deny the use of cocaine, and subsequently entered the St. Luke's Substance Abuse Program. On June 17, 1987, the Arizona Dental Board revoked the Respondent's dental license on grounds that he continued to practice dentistry notwithstanding the suspension of his license and had tested positive for cocaine on March 16, 1987.
On September 23, 1987, the Respondent was notified by the DEA Phoenix office that his DEA Certificate of Registration was subject to revocation because of the revocation of his state dental license, and because he lacked state authorization to handle controlled substances. As a result, on February 10, 1988, the Respondent surrendered his previous DEA Certificate of Registration.
In or around January 1990, the Respondent relocated to Fall River, Massachusetts where he worked temporarily in a dental clinic, before purchasing a dental practice in Springfield and renting a house in South Hadley in September of that year. At that time, the Respondent resumed his use of cocaine, and in March 1991, he resumed using marijuana.
In February 1991, the United States Postal Service became aware that the Respondent had purchased $18,000 in money orders, and sent them via Express Mail to an individual by the name of Marty Shatz (Mr. Shatz) in Scottsdale, Arizona. On March 1, 1991, an Express Mail package weighing 5 ounces was mailed from Los Angeles, California to the Respondent at his residence in South Hadley. The U.S. Postal Service believed that the package contained controlled substances, and on July 24, 1991, requested and obtained a search warrant to inspect the contents of the package. The package was later opened and its contents tested positive for methamphetamine. The package was then returned to the mail stream, and the post office notified the Respondent that it has arrived. The Respondent, under the surveillance of law enforcement officers, was observed picking up the package and returning to this home with it.
The Respondent was subsequently arrested by United States Postal Inspectors outside of his home. At the time of his arrest, the Respondent requested permission to re-enter his home. When the Respondent was accompanied into his home, arresting officers observed $13,000 in cash in the Respondent's bedroom, and a marijuana growing operation. The Respondent also replied in the negative when asked whether there were any weapons in his home.
During the subsequent execution of a search warrant at the Respondent's home, U.S. Postal Inspectors located growing marijuana plants, packaged marijuana, items used to cultivate marijuana such as an electronic scale and a timer, and several postal receipts for Express Mail packages from the Respondent to Arizona. The search also revealed a loaded .357 Magnum handgun and two loaded speed loaders in a bedroom closet.
The Respondent testified during the hearing that he received four packages of cocaine through the mail from Mr. Shatz, a long time acquaintance. The Respondent testified that Mr. Shatz acted as a broker, and that other money orders sent by the Respondent to Mr. Shatz were loans to allow the latter to purchase cocaine for himself. The Respondent also testified that he ended his relationship with Mr. Shatz after his 1991 arrest, and has not spoken to Mr. Shatz since the end of that year. The Respondent further testified that while in Arizona in the summer of 1983, he purchased as part of a self-defense course the .357 Magnum handgun that was subsequently found during the search of his home in Massachusetts. Nevertheless, the record in this proceeding demonstrated, and the Deputy Administrator finds, that the Respondent did not comply with the requirement under Massachusetts's law that a firearm be registered with the state.
On February 13, 1992, the Respondent was indicted in the United States District Court for the District of Massachusetts on four felony counts: Conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846; possession with intent to distribute cocaine and possession with intent to distribute marijuana, in violation of 21 U.S.C. 841(a)(1); and use of the mail to facilitate a narcotics transaction, aiding and abetting, in violation of 21 U.S.C. 843 and 18 U.S.C. 2.
Following a jury trial, the Respondent was found guilty on all four counts. On June 14, 1993, the Respondent was sentenced to 51 months imprisonment and three years probation following his release. On November 30, 1995, the sentence was reduced to a term of 39 months due to retroactive changes to the Start Printed Page 10752sentencing guidelines for the offenses which the Respondent was convicted.
The Respondent subsequently appealed his convictions to the United States Court of Appeals for the First Circuit. The Respondent alleged in his appeal that the district court erred in denying a motion to suppress evidence seized during a warrantless search, that the district court erred in admitting into evidence a book entitled The Secrets of Methamphetamine Manufacture, and that there was insufficient evidence to support the conviction of possession of cocaine with intent to distribute since the drug was for his personal use. The Court of Appeals rejected each of the above arguments, and the Respondent's convictions were affirmed.
On July 17, 1992, the Respondent entered into a consent agreement with the Commonwealth of Massachusetts, Board of Registration in Dentistry (Massachusetts Dental Board), which placed his state dental license on probation for five years. The Respondent however voluntarily surrendered his dental license on January 14, 1993, while he was incarcerated. Based on the surrender of his dental license, the Massachusetts Department of Public Health, Division of Food and Drug revoked the Respondent's state controlled substance registration on April 26, 1993.
The record before the Deputy Administrator further reveals that shortly after his July 24, 1991, arrest, the Respondent began attending the Gosnold Drug Rehabilitation Treatment Center in Falmouth, Massachusetts, where he spent approximately 300 hours in group and individuals therapy and counseling over a two year period. In addition, during approximately nine of the 39 months the Respondent spent incarcerated at the Allenwood Federal Prison Camp, he participated in and graduated from the residential treatment program there. The Respondent testified that while at the Allenwood facility, he as well as the other inmates were exposed to comprehensive “twenty-four hour a day” drug treatment program.
The Respondent then spent time at a halfway house in Boston, and in May 1996, he began a three-year period of probation. The Respondent testified that from the date of his arrest in July 1991 until his release from probation in May 1999, he was randomly drug tested “close to a hundred times” and never tested positive for drug use.
In 1996, the Respondent requested the reinstatement of his Massachusetts dental license. In response to his request, the Massachusetts Dental Board required that the Respondent attend remedial education courses at one of the dental schools in Boston, and pass the Northeast Regional Dental Examination. The Respondent satisfied these requirements. As a result, the Massachusetts Dental Board reinstated the Respondent's dental license on a probationary basis pursuant to a December 3, 1997, consent agreement. The consent agreement required that the Respondent attend Massachusetts Dental Society Committee on Drug and Alcohol Dependency (C-DAD) meetings twice a month, undergo random urinalysis, and refrain from the use of alcohol or drugs of any kind, except those prescribed for a legitimate medical or dental purpose. The Respondent attended the required C-DAD meetings, and also attended on a monthly basis the non-mandatory meetings of C-DAD since the summer of 1999. On November 12, 1998, the Respondent was issued a Massachusetts Controlled Substance Registration, which was current as of the date of the administrative hearing.
In October 1999, the Respondent successfully completed the board-imposed probationary period. A December 8, 1999, letter from the chairman of the Massachusetts Dental Board, which was admitted as evidence during the hearing, revealed that the Respondent remained in full compliance with the terms of the consent agreement. In a separate letter dated March 22, 1999, the Dental Board chairman advised that no complaints had ever been filed against the Respondent regarding dental treatment or his relationship with his patients. The letter further revealed that the Respondent had passed the Northeast Regional Dental Exam with an outstanding score and had served as a mentor to young dental students who were preparing for the exam.
The Deputy Administrator also finds that in January 1998, the Respondent began part-time work in an orthodontic practice in Marshfield, Massachusetts, where he assumed the responsibility for treating approximately 55 orthodontic patients. The Respondent was employed in this capacity as of the hearing date. From November 1998 to March 2000, the Respondent was employed full-time at the Health First Clinic in Fall River, Massachusetts, where his primary responsibilities included general dentistry, oral surgery and urgent care. The Respondent presented written testimony from several of his colleagues who attested to his high degree of competence and care in the field of dentistry, as well as a favorable letter from one of his patients.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest. Section 823(f) requires that the following factors be considered in determining the public interest:
(1) The recommendation of the appropriate state licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing or conducting research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health or safety.
These factors are to be considered in the disjunctive; the Deputy Administrator may rely on any one or a combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration denied. See Henry T. Schwartz, Jr., M.D., 54 FR 16422 (1989).
As to factor one, the Deputy Administrator finds that the Massachusetts Dental Board has fully reinstated the Respondent's dental license with no restrictions, and the Commonwealth of Massachusetts has also issued Respondent a controlled substance registration. As noted by Judge Bittner, the chairman of the Massachusetts Dental Board has advised that that body supports the Respondent's application for a DEA registration. The Deputy Administrator agrees with Judge Bittner's finding that while Respondent's licensures to practice dentistry and to handle controlled substances in Massachusetts are not determinative in this proceeding, the positive recommendation of the Massachusetts Dental Board, and the reinstatement of his state controlled substance registration weigh in favor of granting the Respondent's application.
As to factors two and four, Respondent's experience in handling controlled substances and his compliance with applicable controlled substance laws, are clearly relevant in determining the public interest in this matter. While there is no contention that Respondent has ever inappropriately prescribed, administered, or otherwise dispensed controlled substances to any patient, Respondent admitted that he purchased and/or used cocaine, marijuana, LSD and mescaline. The Start Printed Page 10753Respondent was also arrested while in possession of marijuana in May 1986 and on June 17, 1987, he tested positive for cocaine pursuant to an Arizona Dental Board Drug test. In addition, the Respondent testified that he procured a small amount of cocaine for his wife while living in Arizona, and admitted to sharing home grown marijuana with his girlfriend while living in South Hadley, Massachusetts. Therefore, the government has established that factors two and four should be weighed in favor of a finding that Respondent's registration would be inconsistent with the public interest.
As to factor three, Respondent's conviction under Federal or State laws relating to controlled substances, it is undisputed that Respondent pled guilty in 1986 to solicitation to possess a narcotic drug in Arizona, and was convicted in 1993 of the felonies of conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine and marijuana, and the use of mail to facilitate a narcotics transaction in Massachusetts.
With respect to favor five, other conduct that may threaten the public health and safety; the Deputy Administrator share the concern of the government regarding the Respondent's inconsistent and evasive testimony during the administrative hearing. The Deputy Administrator further shares the concerns of Judge Bittner and the government regarding the Respondent's apparent lack of respect for laws regulating the use of controlled substances, as reflected by his comments to a probation officer in Arizona that he deserved “no more than a slap on the wrist” and his insistent that “sharing” controlled substances does not constitute “distribution.”
Despite the Deputy Administrator's finding regarding evasive and inconsistent testimony by the Respondent, and in particular his testimony during cross-examination by government counsel, in fairness to the Respondent, several of the topics that he was asked about covered statements made, and events that occurred more than ten years prior to testimony at the hearing (i.e., the circumstances involving his 1986 arrest in Arizona, statements attributed to him in the 1987 Presentence Investigative Report, etc.). While this finding does not necessarily mitigate the Respondent's apparent lack of candor, the passage of time between some of the events in question and the Respondent's testimony at the hearing regarding these events should be given some consideration when assessing the depth and clarity of his responses.
The Deputy Administrator is concerned with the Respondent's fairly extensive history of substance abuse. As noted above, the Respondent has used on various occasions, marijuana, LSD, mescaline and cocaine. He not only used drugs in an illicit fashion, but also shared them with friends and at least one family member.
The Deputy Administrator also finds disturbing the Respondent's maintenance of an unregistered firearm in his home in violation of Massachusetts law, his use of the United States mail service to facilitate drug transactions, and the fact that he provided money to Mr. Shatz so the latter could purchase cocaine. In addition, the Deputy Administrator is perplexed by the Respondent's apparent willingness to accept responsibility for past actions on the one hand (i.e., his statement in the PSIR that he learned “the biggest lesson of his life” following his 1986 conviction), and his seeming refusal to acknowledge wrong doing in other respects (i.e., asserting during the hearing that an Arizona law enforcement officer lied about the basis for a traffic stop which led to the Respondent's arrest).
The Deputy Administrator also shares the concern of the Administrative Law Judge and the government that the Respondent has apparently failed to learn from the negative experiences surrounding his drug use. This apparent failure was reflected by the respondent's continued use of drugs following his 1986 arrest, as well as upon his return to Massachusetts. Therefore, the Deputy Administrator finds that the government has presented a prima facie case for the denial of the Respondent's application for registration.
Having concluded that there is a lawful basis upon which to deny the Respondent's application, the question remains as to whether the Deputy Administrator should, in the exercise of his discretion, grant or deny the application. Ray Roya, 46 FR 45842 (1981). Like Judge Bitter, the Deputy Administrator concludes that it would be in the public interest to deny the Respondent's pending application.
The Deputy Administrator also agrees with Judge Bittner's finding that the Respondent is now prepared to comply with laws regulating the use of controlled substances. The Respondent begin attending drug rehabilitation following his July 24, 1991, arrest, and has not abused controlled substances since that time, the Respondent satisfied all of the conditions for reinstatement of his Massachusetts dental license, including his participation in C-DAD meetings; on November 12, 1998, the Respondent was issued a Massachusetts Controlled Substance Registration, which was current as of the date of the administrative hearing; and, the Respondent presented letters of support from practitioners, colleagues and a patient attesting to his professionalism, and recommending that his DEA application be granted.
However, given the Deputy Administrator's concerns about the Respondent's past mishandling of controlled substances, a restricted registration is warranted. This will allow the Respondent to demonstrate that he can responsibly handle controlled substances. Accordingly, the Deputy Administrator adopts the following restrictions upon the Respondent's DEA registration as recommended by Judge Bittner:
1. Respondent's controlled substance handling authority shall be limited to the administering of controlled substances in his office and the writing of prescriptions only;
2. Respondent shall not possess or store any controlled substance in his home except by prescribed pursuant to paragraph three below, and shall not dispense, other than by prescribing or administering, any controlled substances from his office;
3. Respondent shall not write any prescription for himself, and shall not obtain or possess for his use any controlled substance except upon the written prescription of another licensed medical professional. In the event that another licensed medical professional prescribes a controlled substance for Respondent, Respondent shall immediately notify the Special Agent in Charge of the DEA's nearest office, or his designee; (a) that he plans to obtain a specified controlled substance for his personal use, and (b) the reasons the controlled substance is being prescribed;
4. For at least two years from the date of the entry of a final order in this proceeding, Respondent shall continue to submit to random drug testing under the auspices of the Massachusetts Dental Board, or of the appropriate state dental board in another state where he practices; he shall continue to participate in Committee on Drug and Alcohol Dependency (C-DAD) meetings if he remains in Massachusetts; and he shall submit to the Special Agent in Charge of the DEA's nearest office or his designee every calendar quarter a log listing all the controlled substances Respondent has prescribed or administered during the previous quarter.
Accordingly, the Deputy Administrator of the Drug Enforcement Start Printed Page 10754Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b), hereby orders that the application for DEA Certificate of Registration submitted by Jeffrey Martin Ford, D.D.S. be, and it hereby is, granted, subject to the above described restrictions. This order is effective April 7, 2003.Start Signature
Dated: February 24, 2003.
John B. Brown III,
[FR Doc. 03-5279 Filed 3-5-03; 8:45 am]
BILLING CODE 4410-09-M