[Federal Register Volume 79, Number 146 (Wednesday, July 30, 2014)]
[Notices]
[Pages 44196-44197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17893]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Franklyn Seabrooks, M.D.; Decision and Order
On April 8, 2014, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Franklyn Seabrooks, M.D. (hereinafter, Registrant), of
Fairfield, California. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration BS4003795, which
authorizes him to dispense controlled substances in schedules II-V as a
practitioner, on the ground that he does ``not have authority to
practice medicine or handle controlled substances in the [S]tate of
California.'' Show Cause Order at 1 (citing 21 U.S.C. 823(f) and
824(a)(3)).
The Show Cause Order alleged that Registrant is registered as a
practitioner in Schedules II-V at the registered address of 5140
Business Center Drive, Suite 109, Fairfield, California. Show Cause
Order at 1. The Show Cause Order further alleged that this registration
does not expire until February 28, 2015. Id.
Next, the Show Cause Order alleged that Registrant is currently
without authority to handle controlled substances in California, the
State in which he is registered, because on July 12, 2012, the Medical
Board of California (MBC) filed a ``Petition for Ex Parte Interim
Suspension Order,'' which was granted the following day by the Medical
Quality Hearing Panel (``Hearing Panel'') of the State's Office of
Administrative Hearings, thereby suspending Registrant's Physician's
and Surgeon's license on an interim basis. Id. The Show Cause Order
then alleged that on November 7, 2012, an MBC Hearing Panel ordered
that the suspension be continued, and that following a further hearing,
the MBC revoked his license effective November 22, 2013. Id. The Order
thus asserted that based upon his lack of authority to handle
controlled substances in the State of California, Registrant's
Registration must be revoked. Id. (citing 21 U.S.C. 802(21), 823(f) and
824(a)(3)). The Order also notified Registrant of his right to request
a hearing on the allegations or to submit a written statement in lieu
of a hearing, the procedure for electing either option, and the
consequence of failing to elect either option. Id. (citing 21 CFR
1301.43).
According to the Declaration of a DEA Diversion Investigator (DI),
on April 11, 2014, the Order to Show Cause was served on Registrant at
his home unit at the Napa State Hospital. GX 2. The DI stated on that
date, he and a DEA Special Agent attempted to personally serve
Respondent after being advised by Respondent's attorney that Respondent
was a patient at that facility. Id. The DI further stated that upon
arriving at the hospital gate, he was told that service of the Show
Cause Order would have to be performed by a police officer, who would
then confirm service by an email to the DI. Id. On April 14, 2014, the
DI received an email from a police officer confirming that service had
occurred. Id.
On May 5, 2014, the DEA Office of Administrative Law Judges
received a letter from David Brown, Esq., an attorney with the law firm
of Beyer, Pongratz & Rosen, in Sacramento, CA. GX 8. The letter, which
is dated April 30, 2014 and appears to be printed on the law firm's
letterhead, states: ``The undersigned, David L. Brown, hereby waives a
hearing regarding the Order to Show Cause regarding Franklyn E.
Seabrooks, M.D. and his DEA Certificate of Registration.'' Id. The
printed signature line for David L. Brown states: ``Attorney for
Respondent, Franklyn E. Seabrooks, II''; however, the letter is
unsigned. Id. at 3. Attached to this letter is a copy of the April 8,
2014 Order to Show Cause issued to Registrant. Id. at 4-5.
Notwithstanding that the letter was not signed, I note that the law
firm on the letterhead is the same firm that represented Registrant
before the MBC. I therefore find that Mr. Brown is Registrant's
attorney and based on his representation in the letter, I find that
Registrant has waived his right to a hearing or to submit a written
statement in lieu of a hearing. 21 CFR 1301.43(e). I therefore issue
this Decision and Order based on relevant material contained in the
record submitted by the Government. I make the following factual
findings:
Findings
Registrant is the holder of DEA Certificate of Registration
BS4003795, which authorizes him to dispense controlled substances in
schedules II-V as a practitioner, at the registered address of 5140
Business Center Drive, Suite 109, Fairfield CA. GX 3. This registration
does not expire until February 28, 2015. Id.
On July 13, 2012, an administrative law judge (ALJ) of the Office
of Administrative Hearings, Department of Consumer Affairs, State of
California, heard a petition for Ex Parte Interim Suspension of
Registrant's Physician's and Surgeons' Certificate (hereinafter,
medical license). GX 4. Following an evidentiary hearing during which
Registrant was neither present nor represented but submitted documents
for consideration by the ALJ, the ALJ ordered the immediate suspension
of Registrant's medical license. The ALJ found, inter alia, that
Registrant had ``engaged in actions constituting violations of various
laws and regulations involving the practice of medicine,'' that
permitting him to continue ``in the practice of medicine will endanger
the public health, safety and welfare,'' and that ``serious injury will
result to the public before the matter may be heard on regular
notice.'' Id. at 2. The ALJ then scheduled a further hearing on the
State's petition. Id.
On October 29, 2012, the hearing was held before another state ALJ.
GX 5. At the hearing, Registrant was represented by counsel, oral and
documentary evidence was presented, and oral argument was offered.
Following the hearing, the ALJ found that Registrant ``has engaged in
acts or omissions constituting a violation of the Medical Practice Act
and that he is unable to practice medicine safely due to a mental or
physical condition, and that permitting [him] to continue to engage in
the practice of medicine will endanger the public health, safety or
welfare.'' Id. at 19-20. Further finding ``that the likelihood of
injury to the public in not issuing the order outweighed the likelihood
of injury to [Registrant] in issuing the order,'' on November 7, 2012,
the ALJ ordered that the Interim Suspension Order on Registrant's
medical license remain in effect. Id. at 20.
On September 30, 2013, a further hearing was held before a third
state ALJ. GX 6. Registrant was represented by counsel but did not
personally appear. The ALJ found that ``due to his mental impairment,
[Registrant] has engaged in unprofessional conduct on multiple
occasions,'' that ``[c]ause exists to revoke [his] Physician's and
Surgeon's certificate,'' that his ability to practice medicine safely
is impaired because he is ``mentally ill, or physically ill affecting
competency,'' and that ``at this time, protection of the public can be
achieved only through license revocation.'' Id. at 20. The ALJ
[[Page 44197]]
then proposed that Registrant's license be revoked. Id. at 21. The MBC
adopted the proposed decision, which became effective on November 22,
2013. GX 7.
In his letter waiving Registrant's right to a hearing, Registrant's
counsel acknowledges that Registrant's medical certificate had been
revoked by the MBC. GX 8, at 2. The letter then states that the state
ALJ ``specifically left open the possibility of reinstatement of
[Registrant's] medical certificate upon satisfaction of Business and
Professions Code section 822.'' Id. Continuing, Registrant
``respectfully requests the Drug Enforcement Administration allow the
same remedy to remain available for purposes of DEA certificate and
registration.'' Id. The waiver letter also contains a ``prayer . . .
for reservation of rights. . . . If [Registrant's] Medical Certificate
is reinstated, the next logical progression would to [sic] apply for
reinstatement of his DEA Certificate. [Registrant] humbly seeks this
avenue to remain available to him, should he return to the practice of
medicine.'' Id. at 2-3.
An internet search of the MBC's public record actions Web page
reveals that Registrant's medical license remains revoked.
Discussion
The Controlled Substances Act (CSA) grants the Attorney General
authority to revoke 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.'' 21 U.S.C.
824(a)(3). Moreover, DEA has long held that 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) (``the term `practitioner' means a
. . . physician . . . or other person 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. Sec. 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 dispense controlled
substances is an essential condition for holding a DEA registration.
See David W. 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).
Here, the evidence shows that Respondent's medical license has been
revoked and that he no longer holds authority under California law to
dispense controlled substances. Registrant is therefore not entitled to
maintain his DEA registration. See 21 U.S.C. 802(21), 823(f), and
824(a)(3). Accordingly, Registrant's registration will be revoked.\1\
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\1\ In the event the MBC reinstates Registrant's Physician's and
Surgeon's Certificate, he may apply for a new DEA Certificate of
Registration.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration BS4003795, issued to Franklyn Seabrooks,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Franklyn Seabrooks, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
August 29, 2014.
Dated: July 22, 2014.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2014-17893 Filed 7-29-14; 8:45 am]
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