On October 22, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Dwayne LaFrantz Wilson, M.D. (Respondent), of Providence, Rhode Island. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BW6030857, which authorizes him to dispense controlled substances as a practitioner, and the denial of any pending applications to renew or modify his registration, on the ground that his Rhode Island medical license had been suspended, and that he therefore lacks authority to handle controlled substances under the laws of Rhode Island, the State in which he is registered. Show Cause Order at 1.
On October 23, 2008, the Government initially attempted to serve the Show Cause Order on Respondent by certified mail, return receipt requested, addressed to him at his registered address. However, the mailing was returned by the Post Office, with a sticker attached which stated: “NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.”
Thereafter, a DEA Investigator (DI) contacted the Rhode Island Board of Medicine in an attempt to obtain Respondent's address. Declaration of Thomas Cook at 1. A board official indicated that he did not know Respondent's current address, but had heard that he had moved to somewhere in the Southwestern United States. Id. The DI also unsuccessfully searched for Respondent through various online databases but could not find any information regarding the latter's whereabouts. Id. The DI also tried to contact him through the e-mail address he had previously provided to DEA; Respondent did not, however, reply to the e-mail. Id. Finally, the DI contacted the owner of the apartment which Respondent had rented and used as his registered location. Id. at 2. Respondent's ex-landlord advised that Respondent had moved in April 2008 and did not leave a forwarding address. Id. Accordingly, the Government has been unable to provide actual notice of this proceeding to Respondent.
In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950), the Supreme Court held that “when notice is a person's due * * * [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” More recently, in a case in which a State attempted to serve a property owner with notice of a tax sale by certified mail which was returned as unclaimed, the Court explained that “when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so.” Jones v. Flowers, 547 U.S. 220, 230 (2006) (citing Small v. United States, 136 F.3d 1334, 1337 (DC Cir. 1998)).
In Jones, the Court reaffirmed, however, that “[d]ue process does not require that a property owner receive actual notice before the government may take his property.” 547 U.S. at 226 (citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). Moreover, due process does not require “heroic efforts,” Dusenbery, 534 U.S. at 170, but rather, only that “the government * * * provide `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).
Applying these standards, I hold that the Government has satisfied the requirements of due process, notwithstanding that it has been unable to serve Respondent. In contrast to Jones, the Government was not required to resend the Show Cause Order by regular mail because the original certified mailing was not returned as unclaimed, but rather as undeliverable (apparently because Respondent did not leave a forwarding address with the Post Office). As the Court reasoned in Jones, “if there were no reasonable additional steps the government could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing.” 547 U.S. at 234. Moreover, the Government made substantial efforts to locate Respondent. Even though its efforts were unsuccessful, they were “reasonably calculated, under all the circumstances, to apprise [Respondent] of the pendency of the action,” and thus satisfy due process. Dusenbery, 534 U.S. at 173 (quoting Mullane, 339 U.S. at 314).
I further hold that this matter may proceed in absentia. I therefore enter this Decision and Final Order without a hearing based on the evidence contained in the record submitted by the Government. I make the following findings.
Respondent is the holder of DEA Certificate or Registration, BW6030857, which authorizes him to dispense controlled substances in schedules II through V as a practitioner. Respondent's registered location is 388 South Main St., #56, Providence, Rhode Island; his registration does not expire until May 31, 2010.Start Printed Page 8750
Respondent also holds both an allopathic physician's license and a controlled substance registration as an allopathic physician which have been issued by the Rhode Island Board of Medical Licensure and Discipline. On January 24, 2008, Respondent entered into a consent order with the Rhode Island Board; the order suspended Respondent's Rhode Island licenses based on the July 30, 2007 order of the New York Department of Health, State Board of Professional Medical Conduct, which had revoked his New York medical license on fourteen different grounds. The Rhode Island Board's order became effective on February 13, 2008. According to the online records of the Rhode Island Board, the suspension remains in effect as of the date of this Decision and Final Order. The Rhode Island Board's online records further indicate that Respondent's state controlled substances registration is inactive, because a prerequisite (i.e., his state medical license) is inactive. I therefore find that Respondent is not currently authorized under Rhode Island law to dispense controlled substances.
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. Scott Sandarg, 74 FR 17528, 17529 (2009); 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”).
As found above, Respondent currently lacks authority to dispense controlled substances in Rhode Island, the State in which he holds his DEA registration. Because Respondent no longer meets the CSA's fundamental requirement for holding a registration, see 21 U.S.C. 823(f), his registration will be revoked.
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, BW6030857, issued to Dwayne LaFrantz Wilson, M.D., be, and it hereby is, revoked. I further order that any pending application of Dwayne LaFrantz Wilson, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective March 29, 2010.Start Signature
Dated: February 13, 2010.
Michele M. Leonhart,
[FR Doc. 2010-3766 Filed 2-24-10; 8:45 am]
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