On January 9, 2003, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Ernesto A. Cantu, M.D. (Dr. Cantu). Dr. Cantu was notified of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, AC9115660, under 21 U.S.C. 824(a)(3), (a)(4), and 823(f), for reason that his continued registration would be inconsistent with the public interest. The order also notified Dr. Cantu that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.
The Order to Show Cause was sent by certified mail to Dr. Cantu at his registered location in San Antonio, Texas, but was subsequently returned to DEA with a post office notation “Returned to Sender—Unclaimed” stamped to the mailing envelope. According to the investigative file, a second copy of the Order to Show Cause was sent by facsimile machine on February 11, 2003, to Dr. Cantu's attorney who accepted service on behalf of his client. Nevertheless, DEA has not received a request for hearing or any other reply from Dr. Cantu or anyone purporting to represent him in this matter.
Therefore, the Acting Deputy Administrator of DEA, finding that (1) thirty days having passed since the attempted delivery of the Order to Show Cause at Dr. Cantu's registered address, (2) the Order to Show Cause having been returned and DEA's unsuccessful attempts at redelivery of the same, and (3) no request for hearing having been received, concludes that Dr. Cantu is deemed to have waived his hearing right. See David W. Linder, 67 FR 12579 (2002). After considering material from the investigative file in this matter, the Acting Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that on December 7, 2001, Dr. Cantu entered into an Agreed Order with the Texas State Board of Medical Examiners (Board). One finding of the Agreed Order was that Dr. Cantu entered into a financial relationship with Pill Box Pharmacy (Pill Box), a drug store-pharmacy concern located in San Antonio, Texas, to provide controlled substances to individuals over the internet. The Agreed Order recounted that Pill Box ran an internet site which provided controlled substances and dangerous drugs to individuals in Texas and throughout the United States. The Agreed Order also found that Dr. Cantu agreed to provide consultations on behalf of the pharmacy in exchange for financial compensation.
The Board's Agreed Order also found that between January 1, 2000 and July 2001, Dr. Cantu issued “well over 10,000 prescriptions” for controlled substances and dangerous drugs through Pill Box, without establishing a proper physician-patient relationship or performing a mental or physical exam. The Agreed Order further recounted instances where Dr. Cantu permitted his girl friend to represent herself as a doctor and provide telephone consultations with patients in connection with the internet prescribing of controlled substances. The Agreed Order further found that Dr. Cantu issued numerous prescriptions for controlled substances to individuals he had never met or examined, and in some instances, Dr. Cantu's prescribing to these customers furthered their addictions to drugs. Dr. Cantu was also found to have issued a fictitious prescription for injectable Demerol, a Schedule II controlled substance, in the name of a patient that never received the prescription or the drug, and the Board also found probable cause to believe that Dr. Cantu and his girlfriend were abusing Demerol.
As part of the Agreed Order, the Board ordered the suspension of Dr. Cantu's medical license for no less than one year until such time as Dr. Cantu requests in writing to have the suspension stayed or lifted and personally appears before the Board to demonstrate his fitness to practice medicine. There is no evidence before the Acting Deputy Administrator however, that Dr. Cantu's license to practice medicine in the State of Texas has been reinstated.
Pursuant to 21 U.S.C. 824(a), the Acting Deputy Administrator may Start Printed Page 7015revoke a DEA Certificate of Registration if she 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). Despite the Board's findings regarding Dr. Cantu's inappropriate handling of controlled substances, and notwithstanding the other public interest factors for the revocation of his DEA registration asserted herein, the more relevant consideration here is the present status of Dr. Cantu'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, M.D., 67 FR 35581 (2002); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
Here, it is clear that Dr. Cantu's medical license has been suspended, and as a result, he is not licensed to handle controlled substances in Texas where he is registered with DEA. Therefore, he is not entitled to a DEA registration in that state. Because Dr. Cantu lacks state authorization to handle controlled substances, the Acting Deputy Administrator concludes that it is unnecessary to address further whether his DEA registration should be revoked based upon the public interest grounds asserted in the Order to Show Cause. See Samuel Silas Jackson, D.D.S., 67 FR 65145 (2002); Nathaniel-Aikens-Afful, M.D., 62 FR 16871 (1997); Sam F. Moore. D.V.M., 58 FR 14428 (1993).
Accordingly, the Acting Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration, AC9115660, issued to Ernesto A. Cantu, M.D., be, and it hereby is, revoked. The Acting Deputy Administrator further orders that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective March 15, 2004.Start Signature
Dated: January 20, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-3128 Filed 2-11-04; 8:45 am]
BILLING CODE 4410-09-M