[Federal Register Volume 62, Number 130 (Tuesday, July 8, 1997)]
[Notices]
[Pages 36574-36575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17656]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 97-2]
Gilbert J. Elian, M.D.; Revocation of Registration
On August 14, 1996, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Gilbert J. Elian, M.D., (Respondent) at his
registered location in Santa Clara, California, and at his residence in
Parkland, Florida. The Order to Show Cause notified him of an
opportunity to show cause as to why DEA should not revoke his DEA
Certificate of Registration, AE6216611, and deny any pending
applications for registration pursuant to 21 U.S.C. 823(f) and
824(a)(3), for reason that he is not currently authorized to handle
controlled substances in the State of California.
On October 10, 1996, Respondent filed a request for a hearing in
which he
[[Page 36575]]
asserted that he is ``still duly licensed in the State of Hawaii and
such revocation would not allow me to practice medicine with a DEA
license in the Atate of Hawaii (or any other state).'' In addition, he
argued that the reason for the revocation of his California medical
license ``did not concern the use or dispensing of any controlled or
non-controlled substances.'' The matter was docketed before
Administrative Law Judge Mary Ellen Bittner. On October 16, 1996, Judge
Bittner issued an Order for Prehearing Statements. On October 21, 1996,
the Government filed a Motion for Summary Disposition, alleging that
effective April 21, 1995, the Medical Board of California (Board)
revoked Respondent's license to practice medicine in the State of
California and therefore, he is not authorized to handle controlled
substances in that state.
On October 28, 1996, Respondent filed a response to the
Government's motion, arguing that there are various issues that should
be presented and argued in a hearing. Respondent however, did not deny
that he is not currently authorized to handle controlled substances in
California.
On April 22, 1997, Judge Bittner issued her Opinion and Recommended
Decision, finding that Respondent lacked authorization to handle
controlled substances in the State of California; granting the
Government's Motion for Summary Disposition; and recommending that
Respondent's DEA Certificate of Registration be revoked. Neither party
filed exceptions to her opinion, and on May 22, 1997, Judge Bittner
transmitted the record of these proceedings to the Acting Deputy
Administrator.
The Acting Deputy Administrator has considered the record in its
entirely, and pursuant to 21 CFR 131.67, hereby issues his final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Decision of the Administrative Law Judge.
The Acting Deputy Administrator finds that on July 31, 1991, an
Administrative Law Judge for the Board issued a Proposed Decision
recommending that Respondent's medical license be revoked based upon
his negligent practice of ophthalmology, but that the revocation be
stayed and that his license be placed on probation for seven years
subject to various terms and conditions. In a Decision dated May 21,
1992, the Board adopted the Administrative Law Judge's Proposed
Decision with some exceptions. Significantly, the Board did not adopt
the Administrative Law Judge's proposed stay of revocation and instead
ordered the ``outright revocation'' of Respondent's medical license
effective June 20, 1992. The Board's order was stayed however, pending
an appeal to the Los Angeles County Superior Court. Following the
appeal, the Board issued a Decision dated March 23, 1995, which ordered
that the revocation originally ordered on May 21, 1992, would be
effective April 21, 1995. A letter from the Board dated October 18,
1996, that accompanied the Government's Motion for Summary Disposition,
indicates that there have been no appeals since the April 23, 1995
revocation and that Respondent's medical license ``is in a REVOKED
STATUS.'' Therefore, the Acting Deputy Administrator finds that
Respondent is not currently authorized to practice medicine in the
State of California.
The 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 his business. 21 U.S.C. 802(21),
823(f) and 824(a)(3). This prerequisite has been consistently upheld.
See Romeo J. Perez, M.D., 62 FR 16,193 (1997); Demetris A. Green, M.D.,
61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993).
Here, it is clear that Respondent is not licensed to practice
medicine in California and consequently, it is reasonable to infer that
he is not authorized to handle controlled substances in that state.
Since Respondent lacks this state authority, he is not entitled to a
DEA registration in that state. Respondent argues in his request for a
hearing that his DEA registration should not be revoked since he is
currently licensed to practice medicine in Hawaii. The Acting Deputy
Administrator notes however that Respondent's DEA registration is
issued to him in California, not Hawaii, and he is not authorized to
practice medicine in California. Respondent is not precluded from
applying for a DEA Certificate of Registration for a state where he is
licensed to practice medicine. Respondent further argues that his DEA
registration should not be revoked since the revocation of his
California medical license had nothing to do with controlled or non-
controlled substances. The Acting Deputy Administrator concludes that
this argument is without merit. If a practitioner is without state
authority to handle controlled substances, regardless of the reason,
the practitioner is not entitled to a DEA registration in that state.
In light of the above, Judge Bittner properly granted the
Government's Motion for Summary Disposition. Here, the parties did not
dispute the fact that Respondent was unauthorized to handle controlled
substances in California. Therefore, it is well-settled that when no
question of material fact is involved, a plenary, adversary
administrative proceeding involving evidence and cross-examination of
witnesses is not obligatory. See Phillip E. Kirk, M.D., 48 FR 32,887
(1983); aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984);
NLRB v. International Association of Bridge, Structural and Ornamental
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v.
Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir. 1971).
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in him by
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that
DEA Certificate of Registration AE6216611, previously issued to Gilbert
J. Elian, M.D., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for renewal
of such registration be, and they hereby are, denied. This order is
effective August 7, 1997.
Dated: June 30, 1997.
James S. Milford,
Acting Deputy Adminsitrator.
[FR Doc. 97-17656 Filed 7-7-97; 8:45 am]
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