[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Notices]
[Pages 44283-44284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22097]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-5]
Michael J. Septer, D.O.; Revocation of Registration
On October 8, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Michael J. Septer, D.O. (Respondent) of Grand
Rapids, Michigan notifying him of an opportunity to show cause as to
why DEA should not revoke his DEA Certificate of Registration
BS0321430, and deny any pending applications for the renewal of such
registration pursuant to 21 U.S.C. 823(f) and 824, for reason that he
is not currently authorized to handle controlled substances in the
State of Michigan.
By letter dated November 3, 1997, Respondent filed a request for a
hearing, and the matter was docketed before Administrative Law Judge
Mary Ellen Bittner. On November 12, 1997, the Government filed a Motion
for Summary Disposition, alleging effective August 18, 1997, the Board
of Osteopathic Medicine and Surgery for the State of Michigan (Michigan
Board) suspended Respondent's license to practice osteopathic medicine
and surgery in Michigan for at least six months and one day. The
Government
[[Page 44284]]
argued that Respondent is therefore not authorized to handle controlled
substances in that state.
Respondent submitted a response dated December 15, 1997, to the
Government's motion arguing that the Board suspended his license in
Michigan as a ``sister state action'' to the revocation of his Arizona
license, and that evidence would be presented at a hearing that would
show that ``the Arizona Osteopathic Board of Medical Examiners acted
with prejudicial error in there (sic) determination.'' Respondent
further argued that both the Arizona Osteopathic Board of Medical
Examiners and the Michigan Board engaged in ``prosecutorial
indiscretion'' and ``misfeasance.'' However, Respondent did not deny
that he was not currently authorized to handle controlled substances in
Michigan.
On January 23, 1998, Judge Bittner issued a Memorandum to Parties
and Order noting that Respondent did not indicate in his response to
the Government's motion ``whether he is pursuing reinstatement of his
Michigan license upon conclusion of the minimum six month and one day
suspension period.'' Therefore, Judge Bittner gave Respondent until
March 12, 1998 to submit documentation that his Michigan license has
been reinstated. Judge Bittner warned that, (i)f Respondent fails to
timely submit such documentation, I shall grant the Motion for Summary
Disposition.'' Respondent did not submit any documentation nor did he
indicate that he intends to do so in the future.
On March 24, 1998, Judge Bittner issued her Opinion and Recommended
Decision, finding that Respondent lacked authorization to practice
medicine in the State of Michigan, and therefore handle controlled
substances; 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 April
28, 1998, Judge Bittner transmitted the record of these proceedings to
the Acting Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 CFR 1316.67, 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 Administrator Law Judge.
The Acting Deputy Administrator finds that by a Superseding Final
Order dated July 18, 1997, the Michigan Board suspended Respondent's
license to practice osteopathic medicine and surgery effective August
18, 1997, for six month and one day. The Michigan Board further ordered
that reinstatement of Respondent's license would not be automatic at
the conclusion of the suspension period. Respondent did not deny that
he was not currently authorized to handle controlled substances in the
State of Michigan and he did not offer evidence that he has sought to
have his Michigan license reinstated.
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 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 16,193 (1997), Demetris A. Green, M.D., 61 F.R. 60,728
(1996); Dominick A. Ricci, M.D., 58 FR 51,104(1993).
Here it is clear that Respondent is not licensed to practice
osteopathic medicine in Michigan. Consequently, it is reasonable to
infer that he is not authorized to handle controlled substances in
Michigan, where he is registered with DEA. Since Respondent lacks this
state authority, he 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 Michigan. Therefore, it is well-settled that when no
question of material fact is involved, a plenary, adversary
administrative proceeding involving evidence an cross-examination of
witness 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. Internatioal 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 28 CFR 0.100(b) and 0.104, hereby order that DEA
Certificate of Registration BS0321430, previously issued to Michael J.
Septer, 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 September 17, 1998.
Dated: August 11, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-22097 Filed 8-17-98; 8:45 am]
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