[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Notices]
[Pages 62662-62666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24698]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Ronald F. Lambert, D.D.S.; Decision and Order
On November 17, 2011, the Deputy Assistant Administrator issued an
Order to Show Cause to Ronald Lambert, D.D.S. (hereinafter,
Respondent), of Longmont, Colorado. The Show Cause Order proposed the
denial of Respondent's application for a DEA Certificate of
Registration as a practitioner, on the ground that Respondent's
``registration would be inconsistent with the public interest.'' Show
Cause Order at 1 (citing 21 U.S.C. 823(f)).
The Show Cause Order alleged that on January 1, 2011, Respondent
had applied for a practitioner's registration with authority to
dispense controlled substances in schedules III through V. Id. The
Order alleged that during an interview by DEA investigators, Respondent
admitted to having possessed and used methamphetamine, a schedule II
controlled substance, ``on numerous occasions,'' in violation of
federal and state law. Id. (citing 21 U.S.C. 844(a); Colo. Rev. Stat.
Sec. 18-18-404(1)(a)). The Order also alleged that, during the
interview, Respondent also admitted to working with an outlaw
motorcycle gang to improve their process of manufacturing
methamphetamine. Id. at 1-2 (citations omitted).
Next, the Show Cause Order alleged that on June 10, 2003,
Respondent's dental license was suspended by the Colorado State Board
of Dental Examiners (hereinafter, the Board), and that on November 5,
2003, the Board revoked his license. Id. Finally, the Order alleged
that on March 13, 2008, Respondent entered into a Stipulation and Final
Agency Order with the Board, in which he admitted that he had a history
of abusing substances including alcohol, marijuana, methamphetamine,
and cocaine, as well as a criminal history that includes a conviction
for burglary and a conviction for manufacturing and possession of a
controlled substance. Id. The Order then alleged that the Board had
placed Respondent on probation for a period of five years and had
prohibited him from having controlled substances in his dental
practice. Id.
On November 22, 2011, the Show Cause Order, which also notified
Respondent of his right to request a hearing on the allegations, or to
submit a written statement of position in lieu of a hearing, the
procedure for electing either option, and the consequence for failing
to elect either option, was served on Respondent by certified mail
addressed to him at his proposed registered location. Id. (citing 21
CFR 1301.43 (a)-(e), id. Sec. 1316.47). Thereafter, on December 15,
2011, Respondent's counsel filed a letter waiving his right to a
hearing, but submitting a statement of position as to why his
application should not be denied. GX 2.
On August 8, 2012, the Government submitted a Request for Final
Agency Action, along with the Investigative Record it had compiled.
Having considered the entire record, including Respondent's statement
of position, I conclude that the evidence submitted by the Government
makes out a prima facie case for denial of Respondent's application.
However, the Government concedes that Respondent has accepted
responsibility for his misconduct and that he has demonstrated his
sobriety for an extensive period. While the Government argues that
notwithstanding these concessions, Respondent's application should be
denied for various reasons, I conclude that the Government's arguments
are not persuasive and will therefore grant Respondent's application
and order that he be issued a restricted registration. I make the
following factual findings.
Findings of Fact
Respondent is a dentist licensed by Colorado State Board of Dental
Examiners. GX 10. While on November 5, 2003, the Board revoked
Respondent's dental license based on his having engaged in substance
abuse and criminal activity, on March 13, 2008, the Board approved a
Stipulation and Final Agency Order, pursuant to which it reinstated
Respondent's dental license while placing him on probation for five
years. Id. Respondent's state license was last renewed on March 1, 2012
and does not expire until February 28, 2014. GX 3.
In the Stipulation and Final Agency Order, Respondent admitted that
he ``has a history of substance abuse with alcohol, marijuana,
methamphetamine and cocaine.'' GX 10, at 1. He also admitted to having
a felony conviction for manufacture and possession of a schedule II
controlled substance on November 11, 2003.\1\ Id.
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\1\ Respondent also admitted to a felony conviction for first
degree burglary in 1983.
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[[Page 62663]]
Respondent previously held a DEA practitioner's registration, which
expired on March 31, 2004. GX 12. On January 11, 2011, Respondent
applied for a new registration, seeking authority to dispense
controlled substances in schedules III through V. GX 4. On his
application, Respondent disclosed that on April 22, 2003, he pled
guilty to manufacturing a controlled substance and that he was
sentenced to two years in jail and four years of supervised probation,
which he had successfully completed. Id. He also disclosed that on
November 15, 2002, his dental license had been revoked due ``to
undefended allegations of substance abuse.'' Id. Respondent further
explained that ``after successful rehabilitation from drug addiction
and proving this to the Board's satisfaction with documented clean
time, I was granted a new license to practice dentistry in March
2008.'' \2\ Id.
On June 29, 2011, two DEA Diversion Investigators interviewed
Respondent.\3\ GX 13. During the course of the interview, Respondent
admitted that in the 1970s he had regularly used marijuana; that in
April 1983, he had participated, while intoxicated, in a burglary
during which his partner had murdered the victim of the burglary; and
that in April 2003, police, who had been requested by his ex-wife to
perform a welfare check on him at his residence, found methamphetamine.
Id. at 1-2. Further, Respondent engaged in a struggle with the police.
Id. at 2.
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\2\ While the dates Respondent provided on the application for
the Board actions were not the actual dates of the various actions,
these errors are not material misstatements as they have no capacity
to influence the decision in this matter.
\3\ It is noted that this affidavit was not executed until more
than a year after the interview. GX 13, at 1 & 4.
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Thereafter, Respondent was taken to a local hospital for a 72-hour
mental health hold. GX 8, at 2. Upon his arrival, ``Respondent was
cursing, screaming and refus[ed] all treatment.'' Id. After he ``bit a
security guard,'' he was ``placed in restraints.'' Id. Respondent
admitted that he had used a half-gram of methamphetamine on the day of
this incident, and a urine drug screen was positive for meth. Id. at 2-
3. The same day, Respondent was transferred to another hospital where
he was evaluated; the evaluation determined that he met the criteria
for a diagnosis of methamphetamine abuse and depressive disorder. Id.
at 3.
The following day, Respondent admitted to methamphetamine use; he
also admitted to daily use of marijuana in the preceding six months.
Id. Respondent stated that he started using methamphetamine ``because
of a depressed mood.'' Id. However, he denied needing treatment for
substance abuse. Id.
Upon being discharged from the hospital, family members took
Respondent to the Talbot Recovery Center in Atlanta to undergo
residential treatment. GX 7, at 6; GX 13, at 2. However, five days
after entering treatment, Talbot discharged him alleging that he had
brought a vial of methamphetamine with him. GX 13, at 2. Upon his
return to Colorado, Respondent learned that he had criminal charges
pending against him based on the April 21, 2003 incident. Id.
Respondent admitted to DEA Investigators that on returning to
Colorado, he purchased methamphetamine from street dealers. Id. He also
admitted to being friends with two individuals who were associated with
the President of the local chapter of the Bandidos, a designated outlaw
motorcycle gang. Id. at 3. According to the affidavit, Respondent
admitted that he helped the Bandidos manufacture methamphetamine. Id.
As a condition of his bond, Respondent was required to undergo
urine drug screening. Id. Respondent tested positive for
methamphetamine on various occasions and was charged with seventeen
counts of violating the bond conditions. Id.
On November 11, 2003, Respondent met with several members of the
Bandidos at a home in Denver. Id. The gang members had unsuccessfully
attempted to manufacture a batch of methamphetamine. Id. Respondent
took the batch and placed it in his car, with the aim of reversing the
chemistry of the batch and making it into methamphetamine. Id.
Respondent drove to an address in Arvada, Colorado, where someone
reported to the police that he/she had observed him cursing, screaming
at two girls who were walking in a nearby park, and slamming the trunk
of his car. GX 5, at 1. Two police officers were dispatched to the
scene; upon their arrival they observed Respondent standing near the
trunk of his car, which was open. Id. The officers also saw two battery
chargers lying in the street next to car. Id.
When the officers asked Respondent what he was doing, he was
uncooperative and would not answer their questions. Id. Respondent
became agitated, could not provide his vehicle's registration and would
not tell the officers his name. Id. When asked if he had any
identification, Respondent said no. Id.
The officers observed a bulge in Respondent's left front pants
pocket and that Respondent's left hand was in the pocket. Id. When one
of the officers asked Respondent to remove his hand from his pocket, he
refused. Id. The officer then forcibly removed Respondent's hand, and
subdued him. Id. While conducting a pat-down search, the officers found
a small zip-lock bag containing a white powder which they suspected to
be a controlled substance; Respondent then complained that the officers
had planted drugs on him. Id.
Thereafter, the officers determined that Respondent was the owner
of the car and conducted an inventory search, during which they found a
variety items used to manufacture methamphetamine. Id. at 2.
Specifically, the officers found a box holding 50 books of red-
phosphorous matches; a small bottle of iodine tincture; a package of
pseudoephedrine; a one liter bottle containing a two-layer liquid, the
top layer of which tested positive for amphetamine; and a book of
handwritten recipes for manufacturing narcotics. Id. In addition, the
officers field tested the substance they had previously found on
Respondent and determined that it was methamphetamine. Id.
Respondent was then charged with manufacturing methamphetamine,
possession of a schedule II controlled substance, and disorderly
conduct. GX 13, at 3-4. Respondent was offered a plea bargain, pursuant
to which he pled guilty to the manufacturing charge; the other charges,
including those which were brought after the April 2003 incident, were
dismissed. Id. at 4. On March 22, 2004, Respondent pled guilty to the
charge and was sentenced to two years in prison and four years of
probation; Respondent was imprisoned for fifteen months. GX 6, at 8.
In February 2006, Respondent returned to the Talbot Recovery
Center, and in May 2006, he successfully completed the Center's in-
patient treatment program. Id.; GX 10, at 1. Moreover, as the Board
found in the Stipulation and Final Agency Order, at least through the
date of the 2008 order, Respondent ``ha[d] been actively involved in
the Peer Assistance Service Program, 12 step work, the ARC relapse
prevention class and regular toxicity screens.'' GX 10, at 1-2. The
Board also noted that ``Respondent had over four years of documented
sobriety.'' Id. at 2.
Pursuant to the Board's Order, Respondent was placed on probation
for five years. The terms of his probation included, inter alia, that
he: (1) Enter a new Dentist Rehabilitation Contract (DRC); (2) maintain
full compliance
[[Page 62664]]
with his treatment program and any other conditions of the DRC; (3)
provide random urine screens and that if he failed to appear, such
failure would be deemed a positive test and a violation of his
probation; (4) notify the Dentist Peer Assistance Program of any drug
(and its dosage) prescribed to him; and (5) totally abstain from using
``any habit-forming drugs, controlled substances, or prescription
substances other than those prescribed for him by a licensed treating
physician or dentist,'' and that he take such drugs ``only within the
scope of treatment'' and only ``as prescribed.'' Id. at 3-4. Finally,
``Respondent agree[d] to have no controlled substances in his dental
practice throughout his period of probation.'' Id. at 4.
In his statement of position, Respondent states that he ``has been
very honest with the DEA and the [State Board] by admitting his past
struggles with substance abuse as well as his past felony convictions,
one of which was related to the manufacture and possession of a
Schedule II controlled substance.'' GX 2, at 2. However, Respondent
denies that he ``work[ed] directly with the Banditos to illegally
manufacture methamphetamine,'' stating that ``[h]e helped a person
illegally manufacture methamphetamine, and . . . later learned that
this man was associated with the Banditos.'' Id.
Respondent acknowledges that he ``has a history of substance abuse
as well as a Major Depressive Disorder,'' but states that he ``has
sought, and continues to seek, treatment for this disease.'' Id. He
further notes that he completed the recovery program at Talbot; that he
currently participates in the Peer Assistance Program in Colorado, the
12-step program, and in a relapse prevention class; and that he
provides regular urine drug screens. Id. In addition, Respondent
advises that ``[h]e is under the care of a psychiatrist, and [that] his
major depression is currently stable.'' Id. Moreover, ``he has been
sober since February 11, 2004.'' Id. Respondent states that he ``has
fully complied with the terms of'' the Board's 2008 Order. Id.
Finally, Respondent states that he ``is not trying to ignore his
past nor make excuses for his conduct.'' Id. Indeed, he admits that he
``has made mistakes in the past'' and that ``he has suffered the
criminal consequences for these transgressions.'' Id. at 3. However,
Respondent argues that he has ``embraced his recovery and sobriety''
and ``has made significant changes in his life and is not a threat to
public safety.'' Id. Respondent thus contends that ``the issuance of a
. . . registration would not be inconsistent with the public
interest,'' and recognizes that the issuance of a ``registration would
likely be subject to the terms of a'' memorandum of understanding.
Discussion
Section 303(f) of the Controlled Substances Act (CSA) provides that
an application for a practitioner's registration may be denied upon a
determination ``that the issuance of such registration would be
inconsistent with the public interest.'' 21 U.S.C. 823(f). In making
the public interest determination in the case of a practitioner,
Congress directed that the following factors be considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing . . . 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 and
safety.
Id.
``[T]hese factors are considered in the disjunctive.'' Robert A.
Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a
combination of factors and may give each factor the weight I deem
appropriate in determining whether . . . to deny an application. Id.
Moreover, I am ``not required to make findings as to all of the
factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005) (citing
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005)).
The Government has the burden of proving, by a preponderance of the
evidence, that the requirements for denial of an application pursuant
to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, ``once the
[G]overnment establishes a prima facie case showing a practitioner has
committed acts which render his registration inconsistent with the
public interest, the burden shifts to the practitioner to show why
[granting his application for] registration would be consistent with
the public interest. '' MacKay, 664 F.3d at 817 (citing Medicine
Shoppe-Jonesborough, 73 FR 364, 387 (2008) (citing cases)).
Having considered all of the factors, I conclude that the
Government's evidence with respect to factors three, four, and five
establishes its prima facie burden of showing that issuance of
registration to Respondent would be inconsistent with the public
interest.\4\ However, as explained below, in its Request for Final
Agency Action, the Government essentially concedes that Respondent has
rebutted its prima facie case. Having considered the Government's
various arguments as to why Respondent's application should nonetheless
be denied, I conclude that his application should be granted.
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\4\ With respect to factor one--the recommendation of the state
licensing board--it should be noted that the Board has not made a
recommendation in this matter. Moreover, while Respondent now
apparently has authority under Colorado law to engage in some
controlled substance activities (such as prescribing), and thus
meets a prerequisite for obtaining a new practitioner's
registration, see 21 U.S.C. 802(21) and 823(f), the Agency has long
held that possession of state authority is not dispositive of the
public interest inquiry. George Mathew, 75 FR 66138, 66145 (2010),
pet. for rev. denied, Mathew v. DEA, No. 10-73480, slip op. at 5
(9th Cir., Mar. 16, 2012); see also Patrick W. Stodola, 74 FR 20727,
20730 n.16 (2009); Robert A. Leslie, 68 FR 15227,15230 (2003). As
the Agency has long held, ``[T]he Controlled Substances Act requires
that the Administrator . . . make an independent determination [from
that made by state officials] as to whether the granting of
controlled substance privileges would be in the public interest.''
Mortimer Levin, 57 FR 8680, 8681 (1992). Thus, this factor neither
weighs in favor of granting, or denying, his application. Paul Weir
Battershell, 76 FR 44359, 44366 (2009) (citing Edmund Chein, 74 FR
6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 828
(D.C. Cir. 2008)).
It is further noted that there is no evidence regarding factor
two, Respondent's experience in dispensing controlled substances.
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Factors Three, Four and Five--Respondent's Record of Convictions for
Offenses Related to the Manufacture or Distribution of Controlled
Substances, His Compliance with Applicable Laws Related to Controlled
Substances, and Such Other Conduct Which May Threaten Public Health and
Safety
It is undisputed that in March 2004, Respondent pled guilty to, and
was convicted of, the state law offense of manufacturing
methamphetamine, a schedule II controlled substance. GX 6, at 3 (citing
Colo. Rev. Stat. Sec. 18-18-405(1)(a)(2)(a)(I)(A)). Respondent's
conviction of this offense, which arose out of the November 2003
incident, supports an adverse finding under factor three, and by
itself, satisfies the Government's prima facie burden of demonstrating
that Respondent's registration would be inconsistent with the public
interest.\5\ See 21 U.S.C. 823(f).
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\5\ While Respondent was not charged under federal law, his
conviction for the state law offense supports a finding under factor
four that he violated federal law as well. See 21 U.S.C. 841(a)(1).
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Buttressing the Government's case is the undisputed evidence that
Respondent possessed and abused controlled substances including
methamphetamine, cocaine and marijuana. For example, the evidence
[[Page 62665]]
shows that, at the time of the April 2003 incident which led to his
arrest and hospitalization, Respondent possessed and used a half-gram
of methamphetamine; indeed, Respondent admitted to using
methamphetamine and tested positive for the drug. He also admitted to
purchasing methamphetamine after being discharged by Talbot and, while
on bond, tested positive on multiple occasions for methamphetamine.
Thus, Respondent clearly violated federal law. 21 U.S.C. 844(a).
Moreover, during the April 2003 hospitalization, Respondent
admitted that he had used marijuana on a daily basis for the past six
months. And finally, in the 2008 Board Order, he admitted to abusing
cocaine. Thus, Respondent clearly possessed controlled substances in
violation of federal law; his failure to comply with federal laws
related to controlled substances likewise supports an adverse finding
under factor four.
So too, DEA has long held that a practitioner's self-abuse of
controlled substances constitutes ``[s]uch other conduct which may
threaten the public health and safety.'' See Tony T. Bui, 75 FR 49979,
49989 (2010); id. at 49988 (quoting David E. Trawick, 53 FR 5326, 5327
(1988) (factor five ``encompasses `wrongful acts relating to controlled
substances committed by a registrant outside of his professional
practice but which relate to controlled substances'')). Moreover, by
itself, a practitioner's self-abuse of a controlled substance provides
an adequate ground to deny an application even where there is no
evidence that the registrant abused his prescription-writing authority,
Trawick, 53 FR at 5326, or committed acts involving unlawful
distribution to others. See Bui, 75 FR at 49989 (citing Kenneth Wayne
Green, Jr., 59 FR 51453 (1994); Allan L. Gant, 59 FR 10826 (1994);
William H. Carranza, 51 FR 2771 (1986)). Thus, this factor also
supports the Government's contention that Respondent's registration
would be inconsistent with the public interest and supports denial of
his application.\6\ 21 U.S.C. 823(f).
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\6\ I place no weight, however, on the evidence regarding
Respondent's thirty-year old conviction, both because the Government
did not establish the conviction's nexus to Respondent's activities
as a practitioner, and because the event is too remote in time.
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Sanction
This Agency has repeatedly held that a proceeding under section 303
`` `is a remedial measure, based upon the public interest and the
necessity to protect the public from those individuals who have misused
controlled substances or their DEA Certificate of Registration, and who
have not presented sufficient mitigating evidence to assure the
Administrator that they can be entrusted with the responsibility
carried by such a registration.' '' Samuel S. Jackson, 72 FR 23848,
23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988)).
Therefore, where, as here, ``the Government has proved that a
registrant has committed acts inconsistent with the public interest, a
registrant must ` ``present sufficient mitigating evidence to assure
the Administrator that [he] can be entrusted with the responsibility
carried by such a registration.'' ' '' Medicine Shoppe-Jonesborough, 73
FR 364, 387 (2008) (quoting Jackson, 72 FR at 23853 (2007) (quoting Leo
R. Miller, 53 FR 21931, 21932 (1988))), aff'd, Medicine Shoppe-
Jonesborough v. DEA, 300 F. App'x 409 (6th Cir. 2008). ``Moreover,
because `past performance is the best predictor of future performance,'
ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), [DEA] has
repeatedly held that where a registrant has committed acts inconsistent
with the public interest, the registrant must accept responsibility for
[his] actions and demonstrate that [he] will not engage in future
misconduct.'' Medicine Shoppe, 73 FR at 387; accord Jackson, 72 FR at
23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Prince George
Daniels, 60 FR 62884, 62887 (1995). See also Hoxie v. DEA, 419 F.3d at
483 (``admitting fault'' is ``properly consider[ed]'' by DEA to be an
``important factor[]'' in the public interest determination).
With respect to the first prerequisite for rebutting the
Government's prima facie case, the Government itself acknowledges that
Respondent ``has accepted responsibility for his actions and other than
clarifying his involvement with the Bandidos, he has not attempted to
minimize or justify his conduct.'' Req. for Final Agency Action, at 16-
17. And with respect to the second prerequisite, the Government
concedes that ``[s]ince reinstatement of his dental license, it is of
some significance that Respondent's professional practice has continued
without blemish and that he has avoided illicit drugs for what appears
to be eight years.'' Id. at 16.
Notwithstanding its concessions that Respondent has provided
sufficient evidence as to both prongs necessary to rebut the
Government's prima facie case, the Government argues that he cannot be
entrusted with a registration. Id. at 17. First, it argues that
Respondent's misconduct goes beyond simple possession and abuse, and
that he ``willingly participated in the production of methamphetamine
for illegitimate purposes'' and did so ``for an outlaw motorcycle
gang.'' Id. at 13. Noting the circumstances of his November 2003
arrest, the Government contends that ``Respondent sought to `reverse'
the chemistry of the failed batch and turn it into methamphetamine''
and ``[h]ad it been sold or distributed, the [drug] would have had an
enormous potential for injury to [the] community.'' Id. Second, the
Government argues that Respondent has a ``long-standing history'' of
substance abuse, which could have placed his patients at risk, and that
even if his ``addiction did not adversely affect his dental practice,
it would come to mean that Respondent was able to hide his addiction
for all those years.'' Id. at 14-16. The Government thus argues that
``[w]hile his recovery is commendable and indicates potential for
future registration, Respondent's historically reckless abandonment of
his responsibility as a registrant and `willingness to risk serious
criminal and professional sanctions do not augur well' [sic] as
consistent with the public interest.'' Id. at 17 (quoting Imran I.
Chaudry, 69 FR 62081, 62084 (2004)). Accordingly, the Government seeks
the denial of Respondent's application. Id. (citing Mark Binette, 64 FR
42977, 42980 (1999)).
It cannot be disputed that Respondent committed serious misconduct
in possessing and abusing various controlled substances; his
participation in the manufacturing of methamphetamine is especially
egregious. Yet the record demonstrates that he was addicted to
methamphetamine and started using methamphetamine because of his
depression. Nor can it be disputed that at the time he committed the
offense of manufacturing methamphetamine, he was in the throes of his
addiction.
In Chaudry, I rejected an ALJ's recommendation that I grant a
restricted registration to a physician who had purchased, abused and
distributed methamphetamine. 69 FR at 62084. Therein, I specifically
explained that Dr. Chaudry's ``illicit purchase and use of
methamphetamine [were] particularly serious acts of misconduct.'' Id.
Yet I further observed that the evidence showed that the ``[r]espondent
was not chemically dependent,'' and explained that this suggested
``that it was neither addiction nor dependency that motivated his
`street' purchases of methamphetamine,'' but rather, the physician's
``unhindered judgment to illegally obtain and use'' the drug. Id.
[[Page 62666]]
By contrast, the evidence here shows that Respondent was addicted
to methamphetamine throughout the period in which he committed the
various acts of misconduct involving that drug, a substance which this
Agency has recognized is a highly addictive controlled substance.\7\
See Sunny Wholesale, Inc., 73 FR 57655, 57657 (2008). While this does
not excuse Respondent's criminal acts, here, in contrast to the case of
Dr. Chaudry, who did not testify at his hearing and thus ``left the
record silent as to possible remorse,'' 69 FR at 62083, the Government
concedes that Respondent ``has accepted responsibility for his
actions.'' Req. for Final Agency Action, at 16.
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\7\ While the Government argues that Respondent ``actively
endeavored to improve the Bandidos' process to manufacture
methamphetamine,'' Req. for Final Agency Action at 13, it does not
appear to take issue with Respondent's assertion that he did not
learn until after the fact that the person he helped to manufacture
methamphetamine was a member of the gang. GX 2, at 2; Req. for Final
Agency Action, at 17.
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As for the Government's contention that Respondent has a long-
standing history of substance abuse, which could have placed his
patients at risk, the argument is refuted by its acknowledgment that
Respondent ``has avoided illicit drugs for what appears to be eight
years'' and that his ``professional practice has continued without
blemish.'' Id. Indeed, the evidence establishes that, at the time of
this review, Respondent had nearly completed the five year probation
imposed by the State Board without incident and had been sober for
nearly nine years. The Government's contention that this merely
``indicates potential for future registration,'' id. at 17, begs the
question of how many years of sobriety must Respondent demonstrate to
be granted a registration. And as for the suggestion that even if
Respondent did not harm any of his patients, his application should
nonetheless be denied because of his putative ability to hide his
addiction from others, it is significant that the State subjected him
to random urine drug screening for a period of five years and there is
no evidence that Respondent yielded a positive test result or that it
is possible to beat such a test.\8\
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\8\ The Government also asserts that ``[w]hile the Administrator
has granted applications to recovering addicts, such self-abuse
often arose pursuant to'' being prescribed controlled substances to
treat a legitimate medical condition. Req. for Final Agency Action,
at 16. While this may be, the Agency has never held that the only
category of practitioners, who are entitled to regain their
registrations, are those whose substance abuse problem arose out of
being prescribed controlled substances for the treatment of a
legitimate medical condition.
Indeed, in Binette, which the Government cites in supports of
its contention that Respondent's application should be denied, see
id. at 17, the Agency granted a restricted registration to a
physician who had both used methamphetamine and had engaged in the
unlawful distribution of the drug. See Binette, 64 FR at 42978-79.
Like the Respondent here, Dr. Binette expressed remorse for his
actions and demonstrated a substantial period of rehabilitation and
sobriety. See id. at 42980. Significantly, Respondent has been sober
for nearly twice as long as Dr. Binette was at the time that the
Agency granted his application. See id. at 42979, 42981.
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Accordingly, I will grant Respondent's application for a new
registration. However, Respondent's registration shall be subject to
the following conditions:
1. Respondent shall only be authorized to prescribe controlled
substances in schedules III through V and may not administer or
dispense directly any controlled substances to his patients. Respondent
may not store any controlled substance at his registered location
except for a controlled substance which has been prescribed to him by
another practitioner, who is authorized to prescribe controlled
substances, for the purpose of treating a legitimate medical condition.
Respondent shall not accept any samples of controlled substances from
any representative of a manufacturer, distributor or pharmacy.
2. Respondent shall maintain a log of all controlled substance
prescriptions he issues, which shall list in chronological order, the
date of the prescription, the patient name, the drug name and strength,
dosage, and quantity. Respondent shall submit a copy of the log to the
nearest DEA Field Office no later than ten (10) days following the last
day of each quarter (March 31, June 30, September 30, and December 31).
3. Respondent shall consent to unannounced inspections of his
registered location and agrees to waive his right to require that DEA
personnel obtain an Administrative Inspection Warrant prior to
conducting any inspection.
4. In the event Respondent's probation is continued by the State
Board past its ending date, Respondent shall notify the DEA Field
Office within five days of the Board's order and provide a copy of the
order to the DEA Field Office.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28
CFR 0.100(b), I order that the application of Ronald F. Lambert,
D.D.S., for a DEA Certificate of Registration as a practitioner, be,
and it hereby is, granted subject to the conditions set forth above.
This Order is effective immediately.
Dated: September 23, 2013.
Michele M. Leonhart,
Administrator.
[FR Doc. 2013-24698 Filed 10-21-13; 8:45 am]
BILLING CODE 4410-09-P