On June 28, 2002, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Kanwaljit S. Serai, M.D. (Respondent). The Order to Show Cause notified the Respondent of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, AS1852715, and deny any pending applications for renewal or modification of that registration. The Order to Show alleged in relevant part that the Respondent is not authorized to handle controlled substances in the State of Florida pursuant to 21 U.S.C. 824(a)(3), and his continued registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 824(a)(4) based, in part, upon allegations that the Respondent inappropriately treated five patients, and that on April 17, 2001, he was arrested and charged with six counts of delivery of a controlled substance.
By letter dated July 17, 2002, the Respondent, through counsel, requested a hearing in this matter. On July 30, 2002, the presiding Administrative Law Judge Mary Ellen Bittner (Judge Bittner) issued an Order for Prehearing Statements. However, in lieu of filing a prehearing statement, the Government filed Government's Motion for Summary Judgement and Stay of Proceedings, arguing that the Respondent is without authorization to handle controlled substances in the State of Florida, and as a result, further proceedings in the matter were not required. Attached to the Government's motion was an Order of Emergency Suspension of License dated August 27, 2001, whereby the State Florida Department of Health (Department of Health) ordered the immediate suspension of the Respondent's license to practice medicine in that state.
On August 15, 2002, Judge Bittner issued a Memorandum to Counsel staying the filing of prehearing statements and afforded the Respondent until September 4, 2002, to respond to the Government's Motion. The Respondent did not file a response.
On September 18, 2002, Judge Bittner issued her Opinion and Recommended Decision of the Administrative Law Judge (Opinion and Recommended Decision). As part of her recommended ruling, Judge Bittner granted the Government's Motion for Summary Disposition and found that the Respondent lacked authorization to handle controlled substances in the State of Florida, the jurisdiction in which he is registered with DEA.
In granting the Government's motion, Judge Bittner also recommended that the Respondent's DEA registration be revoked and any pending applications for modification or renewal be denied. Neither party filed exceptions to her Opinion and Recommended Decision, and on October 28, 2002, Judge Bittner transmitted the record of these proceedings to the Office of the DEA Deputy Administrator.
The Acting 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 Administrator adopts, in full, the Opinion and Recommended Decision of the Administrative Law Judge.
The Acting Administrator finds that the Respondent currently possesses DEA Certificate of Registration AS1852715, and is registered at an address in Tallahassee, Florida. That registration remains valid until February 28, 2004.
The Acting Administrator further finds that on August 27, 2001, the Department of Health issued an Order of Emergency Suspension of License suspending the Respondent's license to practice medicine. The Acting Administrator's review of the Department of Health's suspension order reveals that in or around January 2000, the Respondent was found to have delivered controlled substances to Start Printed Page 48944several patients as well as to an undercover law enforcement agent without medical justification. In further support of its suspension action, the Department of Health also found that the Respondent engaged in sexual misconduct with respect to his treatment of a patient.
There is no evidence before the Acting Administrator that the suspension of the Respondent's medical license has been stayed or lifted. Therefore, the Acting Administrator finds that the Respondent is currently suspended from the practice of medicine in the State of Florida and as a result, it is reasonable to infer that he is also without authorization to handle controlled substances in that state.
Pursuant to 21 U.S.C. 824(a), the Acting Administrator may revoke a DEA Certificate of Registration if he finds that the registrant has had his state license revoked and is no longer authorized to dispense controlled substances or has committed such acts as would render his registration contrary to the public interest as determined by factors listed in 21 U.S.C. 823(f). Thomas B. Pelkowski, D.D.S., 57 FR 28538 (1992). Nevertheless, despite the findings of the Florida Department of Health related to the Respondent's inappropriate handling of controlled substances, his sexual misconduct with a patient, as well as other public interest factors for the revocation of his DEA registration asserted herein, the more relevant consideration here is the present status of the Respondent's state authorization to handle controlled substances.
DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he conducts business. See, 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Joseph Thomas Allevi, MD., 67 FR 35581 (2002); Dominick A. Ricci, MD., 58 FR 51104 (1993); Bobby Watts, MD., 53 FR 11919 (1988).
Here, it is clear that the Respondent is not licensed to handle controlled substances in Florida, the state where he currently possesses a DEA registration. Therefore, the Respondent is not entitled to maintain that registration. Because the Respondent lacks state authorization to handle controlled substances, the Acting Administrator concludes that it is unnecessary to address whether the Respondent's DEA registration should be revoked based upon the public interest grounds asserted in the Order to Show Cause. See Samual Silas Jackson, 67 FR 65145 (2002); Nathaniel-Aikens-Afful, MD., 62 FR 16871 (1997); Sam F. Moore, D.V.M., 58 FR 14428 (1993).
Accordingly, the Acting 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, AS1852715, issued to Kanwaljit S. Serai, M.D., be, and it hereby is, revoked. The Acting Administrator further orders that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective September 5, 2003.Start Signature
Dated: July 28, 2003.
William B. Simpkins,
[FR Doc. 03-20806 Filed 8-14-03; 8:45 am]
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