On January 15, 2003, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Merlin E. Shuck, D.V.M. (Respondent), proposing to revoke his DEA Certificate of Registration, AS9668596, pursuant to 21 U.S.C. 824(a)(1) and 824(a)(4) and deny any pending applications for registration as a practitioner under 21 U.S.C. 823(f). The Order to Show Cause alleged that the Respondent's continued Start Printed Page 22567registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f) and 824(a).
By letter dated February 3, 2003, the Respondent requested a hearing on the matters raised in the Order to Show Cause. On March 14, 2003, Administrative Law Judge Gail A. Randall (Judge Randall) issued an order requiring the Government to file its Pre-hearing Statement on or before March 21, 2003, and the Respondent was to file his Pre-hearing Statement by April 4, 2003.
On March 20, 2003, the Government timely filed its Pre-hearing Statement. However, the Respondent failed to file a Pre-hearing Statement by the date specified by Judge Randall's order. On April 16, 2003, Judge Randall issued a Notice and Order, requiring the Respondent to file his Pre-hearing Statement by May 2, 2003, or in the alternative, the Respondent was to file a status report with Judge Randall indicating his intentions with respect to his request for hearing. Judge Randall further informed the Respondent that failure to respond to the April 16 order would be construed as a waiver of his right to a hearing, resulting in termination of proceedings.
Despite the above notifications, the Respondent failed to file either a Pre-hearing Statement or Status Report. Accordingly, on May 9, 2003, Judge Randall issued an Order Terminating Proceedings, noting that the Respondent's lack of response was considered a waiver of the right to hearing and an implied withdrawal of a request for hearing.
DEA has not received a request for hearing or any other reply from the Respondent or anyone purporting to represent him in this matter. Therefore, the Acting Deputy Administrator finds as follow: (1) Respondent has requested a hearing, (2) the Respondent has been provided an opportunity to participate in such hearing by filing a Pre-hearing Statement and a Status Report, and (3) Respondent has failed to provide any written submissions indicating his intentions with respect to his request for hearing despite several opportunities to submit the same.
The Acting Deputy Administrator concludes that the Respondent is deemed to have waived his hearing right. 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.
On October 6, 1997, an opinion of the Supreme Court of Tennessee at Knoxville was issued in conjunction with a criminal proceeding involving the Respondent. In the opinion, it was found that the Respondent had worked as a practicing veterinarian in Morristown, Tennessee for over thirty years and had been “very active in civic and community affairs.” The opinion further recounted that sometime in 1992, the Respondent developed an unusually close and protective relationship with a woman whom he had previously hired to work in his veterinarian clinic as an assistant. It appears from the aforementioned opinion that the Respondent's complicated arrangement with his female employee was reflected in conduct that ranged from the benevolent (i.e., seeking to assist the employee to curb her dependence on alcohol) to the bizarre (repeatedly barging into the employee's apartment unannounced when the latter failed to show for work).
The Respondent's obsessive conduct eventually resulted in his seeking out a “hit man” to murder the female employee, her husband, as well as a male acquaintance of the employee. To that end, on December 16, 1993, the Respondent made a partial payment of five hundred dollars to an individual to help carry out the murders. It was agreed between the two that the individual would bring the employee and her husband to the Respondent, and the Respondent would then kill them by insertion of an unknown drug. However, unbeknown to the Respondent, the “hit man” turned out to be an undercover law enforcement agent for the Tennessee Bureau of Investigation (TBI). The meeting between the Respondent and the undercover agent was videotaped by the TBI. However, before the Respondent could pull off this criminal caper, he was arrested as he left the hotel room where the meeting took place.
On May 21, 1998, the Respondent entered guilty pleas to the offenses of solicitation to commit aggravated kidnapping (two counts) and solicitation to commit first degree murder (one count). The Respondent was subsequently sentenced to a period of incarceration totaling eight years; however, seven years of the sentence were suspended, and the Respondent was placed on supervised probation for seven years.
As a result of the Respondent's criminal convictions, the State of Tennessee, Department of Health, Board of Veterinary Medical Examiners (Veterinary Board) entered an Order dated March 1, 1999, where it placed the Respondent's state veterinary license on five years probation, and ordered the Respondent to pay fine of $5,000 as well as perform community service. There is no information in the investigative file regarding any compliance by the Respondent with the probationary conditions placed on his professional license.
On January 7, 2000, the Respondent submitted a renewal application for DEA registration as a hospital (animal shelter). The application was signed and dated by the Respondent. In response to the question 3(d) of the application which asks whether the applicant “ever had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation * * *, the Respondent provided a “no” response.”
The investigative file also contains a second application for registration apparently submitted to DEA in or around March 2001 on behalf of the Respondent. It is unclear whether the second application sought to modify the renewal application, or sought registration at a new location. Nevertheless, the second application listed a proposed registered address different than that for the prior renewal application.
With respect to the March 2001 application, while it appears that a similar “no” response was provided to a question regarding adverse action against a state professional license, the Acting Deputy Administrator finds that this registration application does not appear to be a fully executed document, as it does not contain the required signature of the applicant or the date in which it was completed. The Acting Deputy Administrator is familiar with at least one DEA authority which suggests that a registration application is executed when accompanied by the signature of the applicant. Hilltop Pharmacy, 53 FR 35636 (1988). Therefore, having found that the March 2001 application was not properly executed, the Acting Deputy Administrator will not give consideration to the responses provided on the application.
Further review of the investigative file reveals that on November 2, 2000, an unidentified caller inquired with the Nashville DEA office about regulations concerning the administering and storing of controlled substances at a veterinary clinic in Morristown, Tennessee. The caller informed DEA personnel that bottles of sodium pentobarbital, a Schedule II controlled substance, were being stored at the clinic in a safe and a cabinet, and that opened bottles of the substance were being stored in an unlocked wooden cabinet. The caller voiced concerns that the opened bottles of sodium Start Printed Page 22568pentobarbital were easily accessible to employees at the facility and subject to possible abuse. DEA also learned that the clinic in question was not registered with DEA to handle controlled substances and that the sodium pentobarbital was supplied to the facility by the Respondent.
On that same date, a DEA Diversion Investigator telephoned the Respondent regarding the information provided by the unidentified caller. The Respondent admitted that he was familiar with the clinic, that he supervised employees at that facility in their administering of sodium pentobarbital, and that he supplied that facility with the drug. The Respondent further admitted that he was aware that sodium pentobarbital was being stored at the clinic and that the facility was not registered with DEA.
On January 10, 2001, the DEA Nashville office issued a Letter of admonition to the Respondent, informing the Respondent that his distribution of sodium pentobarbital to the unregistered veterinary facility was in violation of 21 U.S.C. 828(a). In a response letter dated May 14, 2001, the Respondent stated in relevant part, that sodium pentobarbital was stored at the unregistered veterinary facility “as a matter of expediency,” but that the drug had been kept locked in a safe, under his control.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Acting Deputy Administrator may revoke a DEA Certificate of Registration and deny any pending applications for renewal of such registration, if she determines that the continued 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 Acting Deputy Administrator may rely on any one or a combination of factors and may give each factor the weight she deems appropriate in determining whether a registration should be revoked or an application for registration denied. See Henry J. Schwartz, Jr., M.D., 54FR 16,422 (1989).
First, pursuant to 21 U.S.C. 824(a)(1), a registration may be revoked if the registrant has materially falsified an application for registration. DEA has previously held that in finding that there has been a material falsification of application, it must be determined that the applicant knew or should have known that the response given tot he liability question was false. See, James C. LaJavid, D.M.D., 64 FR 55962, 55964 (1999); Martha Hernandez, M.D., 62 FR 61,145 (1997); Herbert J. Robinson, M.D., 59 FR 6304 (1994).
As noted above, on March 1, 1999, the Veterinary Board entered an order placing the Respondent's state veterinary license on five years probation, and imposed additional conditions on that license including a fine of $5,000. Yet a review of the Respondent's DEA renewal application of January 7, 2000, reveals a “no” response to the liability question which asked whether the applicant has ever had a state professional license placed on probation. In light of this evidence, as well as the lack of evidence to the contrary, the Acting Deputy administrator is left to conclude that the Respondent knew or should have known that his “no” response to a liability question on a DEA registration application was false, and therefore, the Respondent materially falsified his application of registration. Accordingly, grounds exist to revoke the Respondent's registration pursuant to 21 U.S.C. 824(a)(1).
Next, the Acting Deputy administrator must consider whether Respondent's continued registration would be inconsistent with the public interest. As to factor one, the recommendation of the appropriate state licensing board or professional disciplinary authority, as noted above, the Veterinary Board imposed probationary conditions on the Respondent's state veterinary license as a result of his felony criminal convictions. The Acting Deputy administrator finds, that while the Respondent's licensure to practice veterinary medicine and handle controlled substances are not determinative in this proceeding, the imposition of probationary conditions on his professional license nevertheless weigh in favor of a finding that the Respondent's continued registration would be inconsistent with the public interest.
Factors two and four, Respondent's experience in handling controlled substances and his compliance with applicable controlled substance laws, are also relevant in determining the public interest in this matter. The record in this proceeding reveals that the Respondent stored and dispensed sodium pentobarbital at a non-registered location in Morristown, Tennessee, i.e., the facility was not authorized to order and distribute controlled substances. In addition, the Respondent did not submit DEA 222 order forms when he distributed sodium pentobarbital to a veterinary facility, in violation of 21 U.S.C. 828(a) and 21 C.F.R. 1305.03. Therefore, the Acting Deputy Administrator finds the Respondent's failure to adhere to controlled substance laws and regulations with respect to the distribution and storage of sodium pentobarbital relevant under factors two and four, and also weigh in favor of a finding that his registration would be inconsistent with the public interest.
Factor three, the applicant's conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances, is not relevant for consideration here, since there is no evidence that the Respondent has ever been convicted of any crime related to controlled substances.
With respect to factor five, other conduct that may threaten the public health and safety, the Acting Deputy Administrator finds this factor relevant to the Respondent's material falsification of a DEA renewal application, as well as his storage and distribution of controlled substances at an unregistered location. The record in this case further demonstrates that the Respondent executed guilty pleas to the offenses of solicitation to commit aggravated kidnapping and of solicitation to commit first degree murder.
While the above criminal convictions relate to conduct that took place more than ten years ago, the egregious nature of the Respondent's criminal conduct negatively reflects upon his fitness to possess a DEA registration. Criminal conduct unrelated to controlled substances, in particular, matters surrounding a registrant's arrest and conviction, have been relevant in determining the public interest under factor five. Alexander Drug Company, Inc., FR 18299, 18304 (2001). The Acting Administrator also finds factor five relevant to the absence of evidence regarding any compliance by the Respondent with his criminal probation or with the probation imposed by the Veterinary Board.
The Acting Deputy Administrator finds that the Respondent has demonstrated conduct which reflects poor judgment and questionable character. His solicitation for the crime Start Printed Page 22569of murder and kidnapping, and his plan to use drugs to facilitate these crimes is abominable. The Respondent also demonstrated his unfamiliarity with, or refusal to abide by, controlled substance laws and regulations by distributing and storing controlled substances at an unregistered location. Finally, the Respondent falsified an application for DEA registration by his failure to disclose the imposition of probation on his Tennessee state veterinary license. These factors, along with the absence of evidence to the contrary, lead to the conclusion that the Respondent's continued registration would be inconsistent with the public interest.
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, AS9668596, previously issued to Merlin E. Shuck, D.V.M., be, and it hereby is, revoked. This order is effective May 26, 2004.Start Signature
Dated: March 29, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-9333 Filed 4-23-04; 8:45 am]
BILLING CODE 4410-09-M