On July 25, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Scott Sandarg, D.M.D. (Respondent), of Irvine, California. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BS6026525, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, and the denial of any pending applications to renew or modify the registration, on the ground that Respondent had committed numerous acts which were inconsistent with the public interest. Show Cause Order at 1.
The Show Cause Order specifically alleged that Respondent had unlawfully obtained controlled substances for his own use which included illicit methamphetamine, anabolic steroids, drugs containing hydrocodone, and several benzodiazepines including alprazolam, through various means including by engaging in prescription fraud and by obtaining the controlled substances over the internet from practitioners with whom he did not establish a valid doctor-patient relationship. Id. at 1-3. The Order also alleged that on two separate occasions, Respondent had been arrested; that the police found various controlled substances in his possession during lawful searches of his property; and that Respondent had subsequently pled guilty to various offenses under California law including one felony count of unlawful possession of a controlled substance in violation of Cal. Health & Safety Code § 11377(a), one misdemeanor count of unlawfully being under the influence of a controlled substance in violation of Cal. Health & Safety Code section 11550(a), and two misdemeanor counts related to firearms violations under Cal. Penal Code section 17(b). Show Cause Order at 2-3.
On September 11, 2007, a DEA Diversion Investigator attempted to serve the Order to Show Cause on Respondent by faxing it to him. On November 9, 2007, Respondent requested a hearing on the allegations of the Show Cause Order, and the matter was assigned to an Administrative Law Judge (ALJ). Thereafter, the Government moved to terminate the proceeding on the ground that Respondent's request was out of time. Respondent opposed the motion, submitting the declarations of himself and his office manager, both of which asserted that the fax had included the cover sheet but not the Show Cause Order. Thereafter, the Government submitted a DI's declaration which maintained that Respondent's office manager had informed him that she had received the entire fax.
The ALJ denied the Government's motion reasoning that there was a factual dispute as to when Respondent had received the Show Cause Order. The ALJ then allowed the Government to file an interlocutory appeal. On May 12, 2008, I denied the appeal because there was a clear factual dispute as to whether Respondent had actually received the Show Cause Order on September 11, 2007, and the dispute could not be resolved without assessing the credibility of each party's witnesses.
Thereafter, the Government moved to terminate the proceeding on the ground that on December 19, 2007, the California Board of Dental Examiners had adopted the proposed decision of a State Administrative Law Judge and revoked Respondent's State Dental Certificate with an effective date of January 21, 2008. Gov. Mot. for Summary Judgment 2-3. The Government argued that because Respondent is not authorized to handle controlled substances in the State in which he is registered with this Agency, he is not entitled to maintain his registration. Id.
Respondent's counsel opposed the motion arguing that he had filed for a writ of administrative mandamus in State court challenging the Board's order. Respondent's Resp. to ALJ's May 21, 2008 Memorandum to Counsel at 1. According to Respondent's counsel, the writ raised multiple claims of error on the part of the State ALJ, and were the court to find any of the claims meritorious, Respondent's license could be restored. Id. Respondent's counsel further argued that DEA's decision be stayed until the State proceeding was resolved. Id. The Government opposed Respondent's motion on the ground that it was speculative whether the State court would grant any relief, and that Start Printed Page 17529this Agency has previously rejected similar arguments.
On July 10, 2008, the ALJ granted the Government's motion. ALJ at 6. The ALJ noted that no material facts were in dispute and that Respondent did not deny that he is currently not authorized under California law to handle controlled substances. Id. Noting that this Agency has consistently held that a practitioner may not maintain his registration if he lacks authority to handle controlled substances under the laws of the State in which he practices, the ALJ granted the motion and recommended that Respondent's registration be revoked and that any pending applications to renew or modify his registration be denied. Id. Thereafter, the ALJ forwarded the record to me for final agency action.
Having considered the entire record in this matter, I adopt the ALJ's decision in its entirety. I find that Respondent holds DEA Certificate of Registration, BS6026529, which authorizes him to dispense controlled substances in schedules II through V at the registered location of 17655 Harvard Place, Suite F, Irvine, California. I further find that while the expiration date of the registration was February 28, 2007, Respondent submitted a timely renewal application and therefore his registration has remained in effect pending the issuance of this Final Order. See 5 U.S.C. 554(e).
I further find, however, that on December 19, 2007, the Dental Board of California ordered that Respondent's State Dental Certificate be revoked with an effective date of January 21, 2008. Moreover, while it has been more than seven months since Respondent's challenge to the Dental Board's proceeding was heard in State court, Respondent has submitted no evidence to the Agency that the Board's revocation order has been set aside or stayed, and according to the Board's Web site, Respondent's Dental Certificate remains revoked.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which he practices” in order to maintain a DEA registration. See 21 U.S.C. 802(21) (“[t]he term `practitioner' means a physician * * * licensed, registered, or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice”). See also id. § 823(f) (“The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”). As these provisions make plain, possessing authority under State law to handle controlled substances is an essential condition for holding a DEA registration.
Accordingly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner whose State license has been suspended or revoked. David Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 824(a)(3)(authorizing the revocation of a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances”).
Here, there is no dispute over the material fact that Respondent's California Dental Certificate has been revoked and that Respondent lacks authority under California law to dispense control substances. Respondent is therefore not entitled to maintain his DEA registration.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA Certificate of Registration, BS6026529, issued to Scott Sandarg, D.D.S., be, and it hereby is, revoked. I further order that any pending application of Scott Sandarg, D.D.S., to renew or modify his registration, be, and it hereby is denied. This Order is effective May 15, 2009.Start Signature
Dated: April 3, 2009.
Michele M. Leonhart,
1. Respondent did not, however, dispute that he had subsequently been properly served.Back to Citation
2. The State ALJ's decision concluded that the State had proved nine different causes to discipline Respondent, several of which related to his abuse of controlled substances. In re Sandarg, Proposed Dec. at 44-46, No. DBC 2006-36 (2007).Back to Citation
[FR Doc. E9-8613 Filed 4-14-09; 8:45 am]
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