[Federal Register: August 19, 2004 (Volume 69, Number 160)]
[Notices]
[Page 51477-51479]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19au04-73]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 03-1]
David A. Hoxie, M.D.; Revocation of Registration
On August 21, 2002, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to David A. Hoxie, M.D. (Respondent), proposing to
revoke his DEA Certificate of Registration, BH4678833, pursuant to 21
U.S.C. 824(a)(1) and 824(a)(4), and deny any pending applications for
renewal of registration as a practitioner under 21 U.S.C. 823(f). The
Order to Show Cause alleged in relevant part that the Respondent
materially falsified DEA applications for registration and that his
continued registration would be inconsistent with the public interest.
By letter dated September 15, 2002, the Respondent requested a
hearing on the issues raised by the Order to Show Cause. Following pre-
hearing procedures, a hearing was held on August 26, 2003, in Columbus,
Ohio. Counsel for the Government presented the testimony of three
witnesses and introduced documentary evidence. The Respondent did not
testify on his behalf or introduce any documentary evidence. After the
hearing, both parties submitted written proposed findings of fact,
conclusions of law, and argument.
On April 7, 2004, Administrative Law Judge Gail A. Randall (Judge
Randall) issued her Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision (Opinion and Recommended Ruling),
recommending that Respondent's DEA Certificate of Registration be
revoked and that any pending applications to renew or modify that
registration be denied. On May 24, 2004, counsel for the Respondent
filed exceptions to Judge Randall's Opinion and Recommended Ruling and
on May 26, 2004, Judge Randall transmitted the record of these
proceedings to the Administrator of DEA.
The Deputy Administrator has considered the record in its entirety,
and pursuant to 21 CFR 1316.67, hereby issues her final order based
upon findings of fact and conclusions of law as hereinafter set forth.
The Deputy Administrator adopts in full the recommended ruling,
findings of fact, conclusions of law and decision of the Administrative
Law Judge. Her adoption is in no manner diminished by any recitation of
facts, issues, or conclusions herein, or of any failure to mention a
matter of fact or law.
The record before the Deputy Administrator shows that as of the
date of the hearing, the Respondent was licensed to practice medicine
in the State of Ohio. A review of the record in this proceeding reveals
that in or around 2002, DEA's Columbus, Ohio office sought assistance
from the agency's Los Angeles Field Division in obtaining information
on any possible prior arrests in California involving the Respondent.
To that end, a diversion investigator from the Los Angeles Field
Division contacted the city's police department to obtain arrest
records pertaining to the Respondent. The Los Angeles investigator also
provided to the Bureau of Records, in Sacramento, Respondent's date of
birth and Social Security number to further his search of arrest
records involving the Respondent.
According to a Los Angeles Police Department arrest report which
was admitted into the record of this proceeding, on or around December
15, 1973, the Respondent was arrested and charged with possession of
marijuana. However, there is no record regarding the disposition of
this charge. The record also contains an arrest report for September
19, 1978, which documents the Respondent's arrest on a charge of ``Poss
Controlled Substance.'' As with the Respondent's prior arrest, the
record is silent with regard to the disposition of this charge.
The record also contains a Los Angeles Consolidated Booking Form
which documents the July 6, 1980, arrest of the Respondent on the
charge of driving under the influence of drugs. However, the record is
unclear as to the disposition of this charge. The record contains yet
another arrest report dated July 11, 1981, which documents the arrest
of the Respondent on the charge of driving under the influence of
alcohol and drugs. A field sobriety test performed at the time of the
arrest describes Respondent as having ``very poor'' coordination,
``very thick and slurred'' speech, and ``tottering unsteady, falling/
stumbling'' balance. The report also notes that the Respondent later
entered into treatment where he apparently conveyed to the treating
physician that he had smoked two PCP (phenylcyclohexylamine)
cigarettes.
The above arrest record also contained a document entitled ``Los
Angeles PD Disposition of Arrest and Court Action.'' The exhibit
identifies the Respondent as the arrestee and lists his date of birth.
However, the section of the form entitled ``Court Information'' was
blank and therefore, the disposition of this charge is unclear.
The Respondent was again arrested on August 7, 1983, and charged
with possession of PCP. A Government witness testified that he obtained
information that the Respondent had entered a final plea of ``Nolo'' to
two misdemeanor charges, one for possession of a controlled substance
in violation of the State Health and Safety Code, and a second charge
related to a vehicle code violation. Pursuant to a
[[Page 51478]]
plea agreement, the Respondent received a suspended sentence for 90
days in jail, and given credit for time served. On November 30, 1983,
the charges were disposed of, and the Respondent was placed on
prohibition for two years, ending on November 29, 1985.
As with Respondent's prior arrests, the record is unclear as to the
total sentence served. A Government witness testified at the hearing
that the court had ``dismissed'' or ``put aside'' the sentence for
count three. The court further ordered probation for 36 months for
counts one and two. With respect to his compliance with probation,
evidence was presented that on March 17, 1988, the Respondent was found
in violation and was sentenced to 30 days in jail. However, the record
is unclear as to the specific criminal violation the probation relates
to, since the probation term for the Respondent's 1983 conviction was
to end in November of 1985.
On January 26, 1984, the Respondent was again arrested in Los
Angeles, California and charged with being under the influence of PCP.
However, there is no information in the record as to the disposition of
this charge. Further evidence was presented that on September 25, 1984,
in Los Angeles, California, the Respondent was arrested for driving
with a suspended drivers' license and apparently provided a statement
to the arresting officer that he (Respondent) was aware of the
suspension of his license.
On or about November 14, 1995, the Respondent was issued DEA
Certificate of Registration BH4678833 for his medical practice in Ohio.
The last renewal of this registration was issued to the Respondent on
October 18, 2001, and its date of expiration is October 31, 2004.
The two DEA applications at issue in the Government's allegation of
material falsification are renewal applications dated October 31, 2001,
and the second dated October 14, 1998. On both renewal applications,
the Respondent was asked the following questions: ``Has the applicant
ever been convicted of a crime in connection with controlled substances
under State or Federal law?''; (2) ``Has the applicant ever surrendered
or had a Federal controlled substance registration revoked, suspended,
restricted or denied?''; and (3) ``Has the applicant ever had a State
professional license or controlled substance registration revoked,
suspended, denied, restricted, or placed on probation?'' On both
applications, the Respondent provided a ``No'' response to these three
questions.
The record also contains the Respondent's application for an Ohio
medical license, signed before a Notary Public on June 17, 1996. A
review of that application reveals that Respondent provided a ``No''
response to the following question: ``Have you ever been convicted or
found guilty of a violation of Federal law, State law, or municipal
ordinance other than a minor traffic violation?''
Also admitted into evidence was the Respondent's application for
Virginia medical license, dated January 20, 1995. The Respondent
provided a ``No'' response to the following question included on the
application: ``Have you ever been convicted of a violation of/or pled
Nolo Contendere to any Federal, State, or local statute, regulation or
ordinance, or entered into any plea bargaining relating to a felony or
misdemeanor (Excluding traffic violations, except convictions for
driving under the influence)?''
As noted above, in response to the Order to Show Cause the
Respondent directed a letter to DEA dated September 15, 2002,
requesting a hearing. In that letter, the Respondent denied that he had
ever been arrested for drug charges, engaged in a plea bargain or
received probation, and had never violated probation or received a
sentence of an additional thirty days in jail.
During an interview conducted in March of 2002 by a DEA diversion
investigator and an investigator from the Ohio Medical Board, the
Respondent again denied these events. Specifically, the Respondent
denied ever having been arrested on any charge including those related
to controlled substance violations, ever having been convicted, ever
having entered into any plea bargains, and ever having served any
probation time. When asked during that interview why it had taken him
so long to complete his education, the Respondent attributed the delay
to his having been in jail on several occasions. However, Respondent
never acknowledged that he had been convicted of any Controlled
Substances Act offenses.
The Respondent further informed the DEA diversion investigator that
he only possessed a drivers' license for the State of California.
However, during a subsequent investigation by the Ohio Medical Board,
it was revealed that the Respondent also had obtained driver licenses
in New York and Michigan.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending applications for renewal of such registration if she determines
that the continued registration would be inconsistent with the public
interest. Section 823(f) requires that the following factors be
considered in determining the public interest:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to 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 or
safety.
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight she deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422
(1989).
First, pursuant to 21 U.S.C. 824(a)(1), a registration may be
revoked if the registrant has materially falsified an application for
registration. DEA has previously held that in finding that there has
been a material falsification of application, it must be determined
that the applicant knew or should have known that the response given to
the liability question was false. See, James C. LaJavic, D.M.D., 64 FR
55962, 55964 (1999); Martha Hernandez, M.D., 62 FR 61,145 (1997);
Herbert J. Robinson, M.D., 59 FR 6304 (1994).
As noted above, in August of 1983, the Respondent was charged with
unlawful possession of PCP, a Schedule II controlled substance. On or
about November 30, 1983, the charge was disposed of through a Nolo plea
and the Respondent was placed on probation for a period of three years.
Yet, a review of the Respondent's DEA renewal applications for 1998 and
2001 reveal ``no'' responses to the liability question which asked
whether the applicant has ever been convicted of a crime in connection
with controlled substances under State or Federal law. In light of this
evidence, as well as the Respondent's failure to provide evidence to
the contrary, the Deputy Administrator is left to conclude that the
Respondent knew or should have known that his ``no'' response to a
liability question on a DEA registration application was false, and
therefore he materially falsified his application for
[[Page 51479]]
registration. Accordingly, grounds exist to revoke the Respondent's
registration pursuant to 21 U.S.C. 824(a)(1). Thomas E. Johnston, D.O.,
45 FR 72311, 72312 (1980); see also Bobby Watts, M.D. 58 FR 46995
(1993).
Next, the Deputy Administrator must consider whether Respondent's
continued registration would be inconsistent with the public interest.
As to factor one, the recommendation of the appropriate State licensing
board or professional disciplinary authority, there is no evidence in
the record of any actions, adverse or otherwise, regarding any
professional license held by the Respondent. Similarly, with respect to
factors two and three, there is no evidence in this matter with respect
to Respondent's dispensing of controlled substances, or of any
conviction under Federal or State laws relating to the manufacture,
distribution, or dispensing of controlled substances.
With regard to factor four, compliance with applicable State,
Federal, or local laws relating to controlled substances, the Deputy
Administrator agrees with Judge Randall's finding that the Respondent
violated California State law by unlawfully (1) being under the
influence of controlled substances in the 1980's, to include marijuana,
(2) possessing PCP, (3) being under the influence of PCP, and (4)
violating probation given as a result of these infractions.
With regard to factor five, other conduct which may threaten the
public health or safety, the Deputy Administrator is troubled by the
extent and ease with which the Respondent has engaged in dishonest
conduct. In addition to his material falsification of DEA registration
applications, the Respondent provided false statements to a DEA
investigator when he denied any previous arrests on drug charges and
claimed to have a drivers' license only in California when he also held
drivers' licenses in two additional jurisdictions. The Respondent
repeated the same denials in his September 2002 letter to DEA, despite
evidence to the contrary.
The Respondent further demonstrated questionable candor when he
provided false responses to questions on applications for medical
licensure in Ohio and Virginia. His false responses to questions on
State professional license applications further support the revocation
of his DEA Certification of Registration. See, Bernard C. Musselman,
M.D., 64 FR 55965 (1999).
As referenced above, the Respondent did not testify during the
hearing. The Deputy Administrator may draw a negative inference from
Respondent's failure to testify during an administrative hearing. See,
Michael G. Sargent, M.D., 60 FR 22076 (1995); Raymond A. Carlson, M.D.,
53 FR 7425 (1988); Antonio C. Camacho, M.D., 51 FR 11654 (1986). The
negative inference which is drawn from Respondent's failure to testify
is that he was unwilling to be forthright and completely honest with
the Administrative Law Judge and the Drug Enforcement Administration.
See Antonio C. Camacho, M.D., supra. In light of the Respondent's
demonstrated lack of candor regarding his previous conduct, a similar
inference is drawn here.
On May 24, 2004, counsel for the Respondent filed exceptions to the
Opinion and Recommended Ruling of Judge Randall. The Respondent argued
in relevant part that: (1) The evidence in this proceeding did not
establish that he materially falsified a DEA registration application;
(2) Judge Randall should not have relied on arrest reports which were
insufficient to prove a conviction; (3) there was only one reliable
document in the record which established that Respondent did not
falsify his DEA application; and (4) the Government's unproven
assertions do not meet its burden of proving that the Respondent's
continued registration is not consistent with the public interest.
The Respondent's arguments relate primarily to the reliability of
evidence regarding the disposition of his arrest for possession of PCP
and the impact of that event on his subsequent responses to questions
on DEA registration applications. As noted above, the Deputy
Administrator agrees with Judge Randall's finding that evidence of
Respondent's arrest and subsequent conviction on a controlled substance
charge was established by a preponderance of evidence. While the
Respondent subsequently raised questions regarding the reliability of
arrest reports admitted into the record, the fact remains that he
provided no similar evidence during the hearings to rebut these
reports. Meanwhile, in addition to the arrest reports, the record
contains corroborating testimony of the Respondent's ``Nolo'' plea to
the charge of possession of PCP and the Government also provided
documentary evidence regarding the disposition of the charges. Having
addressed the Respondent's central contention regarding the reliability
of evidence surrounding his criminal conviction, the Deputy
Administrator does not find it necessary to address the remaining
arguments raised in the Respondent's exceptions.
In light of allegations regarding his prior arrests and conviction
related in part to substance abuse, Respondent's failure to testify at
the administrative hearing or provide evidence regarding these matters
severely compromises any favorable consideration of his continued
registration with DEA. As noted by Judge Randall, ``* * * DEA does not
have any evidence that the Respondent takes responsibility for his past
misconduct. Further, the DEA does not have any evidence that the
Respondent wants to provide assurances that his future handling of
controlled substances would be consistent with the public interest.''
The Deputy Administrator finds that the Respondent has demonstrated
conduct which raise questions regarding his character and ultimately,
his fitness to possess a DEA Certificate of Registration. The
Respondent has been involved in a series of arrests and at least one
criminal conviction related primarily to substance abuse. Although many
of these incidents occurred nearly two decades ago, the Respondent by
choosing not to testify at the hearing or provide any evidence on his
behalf has left the record bereft of any information that would support
his continued registration with DEA. To exacerbate matters further, the
Respondent falsified two DEA applications, two State professional
licensing applications, and was not forthright regarding his arrests or
conviction in a discussion with a DEA investigator or and in a
subsequent letter to the agency. Given the totality of the
circumstances, the only conclusion to be reached here in Respondent's
continued registration would be inconsistent with the public interest
and his DEA Certificate of Registration should be revoked.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in her by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration, BH4678833, previously issued to David A.
Hoxie, M.D., be, and it hereby is, revoked. The Deputy Administrator
further orders that any pending applications to renew or modify said
registration be denied. This order is effective September 20, 2004.
Dated: July 27, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-18973 Filed 8-18-04; 8:45 am]
BILLING CODE 4410-09-M