On February 25, 2002, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Nilvio R. Aquino, M.D. (Dr. Aquino) who was notified of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration AA1153991, under 21 U.S.C. 824(a)(3) and deny any pending applications for renewal or modification of that registration under 21 U.S.C. 823(f).
The Order to Show Cause alleged in relevant part, that Dr. Aquino's medical license in Florida had been revoked after he was convicted of a crime directly relating to the practice of medicine and that he did not currently have a State license to practice medicine in Florida, the State in which he is registered with DEA. The Order to Show Cause also notified Dr. Aquino 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. Aquino, who was then incarcerated at the Federal Penitentiary at Eglin Air Force Base, Florida. A second copy was sent to his registered address at 2140 West 68th Street, Suite 310, Hialeah, Florida. According to the return receipt, the Order to Show Cause sent to the Federal facility was delivered to Dr. Aquino on March 4, 2002. DEA has not received a request for a hearing or any other reply from Dr. Aquino or anyone purporting to represent him in this matter.
Therefore, the Deputy Administrator of DEA, finding that (1) thirty days having passed since the delivery of the Order to Show Cause to the registrant's address of record, as well as to his address as a Federal inmate, and (2) no request for hearing having been received, concludes that Dr. Aquino 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 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 Dr. Aquino was licensed to practice medicine in the State of Florida under license number ME39969. In 1998 he was indicted on Federal charges involving inappropriate billing of the Medicare program. He was subsequently convicted and sentenced to a 51 month term of incarceration. On June 20, 2001, as a result of this conviction, the Florida Board of Medicine (Board) revoked Dr. Aquino's medical license. There is no evidence before the Deputy Administrator that the Board's order revoking Dr. Aquino's state medical license has been has been lifted or stayed and on October 15, 2004, it was confirmed via the Florida Department of Health, that his license remains in a revoked status. Therefore, the Deputy Start Printed Page 67761Administrator finds that Dr. Aquino is not currently authorized to practice medicine in the State of Florida. As a result, it is reasonable to infer he is also without authorization to handle controlled substances in that state.
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 Rory Patrick Doyle, M.D., 69 FR 11,655 (2004); Dominick A. Ricci, M.D., 58 FR 51,104 (1933); Bobby Watts, M.D., 53 FR 11,919 (1988).
Here, it is clear Dr. Aquino's medical license has been revoked and he is not currently authorized to handle controlled substances in Florida, where he is registered with DEA. Therefore, he is not entitled to a DEA registration in that state.
Accordingly, the 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, AA1153991, issued to Nilvio R. Aquino, M.D., be, and it hereby is, revoked. The 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 December 20, 2004.Start Signature
Dated: November 4, 2004.
Michele M. Leonhart,
[FR Doc. 04-25694 Filed 11-18-04; 8:45 am]
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