[Federal Register: July 3, 2007 (Volume 72, Number 127)]
[Notices]
[Page 36484-36487]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jy07-93]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Michael F. Myers, M.D.; Revocation of Registration
On January 10, 2007, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Michael F. Myers, M.D. (Respondent) of
Woodruff, South Carolina. The Order to Show Cause proposed the
revocation of Respondent's DEA Certificate of Registration, BM5526009,
as a practitioner, on the ground that Respondent's continued
registration would be inconsistent with the public interest. Show Cause
Order at 1 (citing 21 U.S.C. 824(a)(4)). The Immediate Suspension was
imposed based on my preliminary finding that Respondent had ``diverted
large quantities of controlled substances,'' and that there was a
``substantial likelihood that [he] would continue to divert controlled
substances to drug abusers.'' Id. at 1-2. I therefore concluded that
Respondent's ``continued registration during the pendency of these
proceedings would constitute an imminent danger to the public health
and safety.'' Id.
The Show Cause Order alleged that Respondent ``frequently grew
marijuana in [his] residence,'' that he ``regularly purchased large
quantities of marijuana,'' that ``he smoked marijuana throughout the
day on a daily basis,'' and that he ``regularly distributed marijuana
from [his] residence.'' Id. at 2. The Show Cause Order further alleged
that Respondent ``regularly exchanged controlled substance
prescriptions for marijuana and other prescription controlled
substances.'' Id. The Show Cause Order also alleged that Respondent
``routinely sold controlled substance prescriptions and large
quantities of marijuana to known drug peddlers.'' Id.
More specifically, the Show Cause Order alleged that Respondent had
distributed marijuana on a continuing basis in quantities ranging from
``small user amounts'' to as much as five pounds. Id. The Show Cause
Order also alleged that Respondent had prescribed Adderall, a schedule
II controlled substance, and hydrocodone, a schedule III controlled
substance, for a person without ``performing any tests or formulat[ing]
a diagnosis during the initial visit,'' and he had ``continued to
authorize prescriptions for [these] controlled substances without an
examination or further care.'' Id. Relatedly, the Show Cause Order
alleged that Respondent subsequently ``received some of the hydrocodone
from the prescriptions [he] wrote for this'' person. Id.
Next, the Show Cause Order alleged that Respondent had
``prescribe[d] controlled substances to a person [he] knew was addicted
to [them],'' and that Respondent also ``knew [that] this person was
selling the filled prescriptions to support [his] addiction.'' Id. The
Show Cause Order further alleged that Respondent had engaged in a
scheme to provide controlled prescription drugs to drug dealers. Id.
According to the Show Cause Order, the dealers' runners would go to
Respondent's residence to receive the prescriptions; after the
prescriptions were filled, the dealer would provide Respondent with
half of the drugs and sell the other half to drug abusers. Id. Finally,
the Show Cause Order alleged that on May 10, 2006, law enforcement
officers executed a search warrant at Respondent's home during which
they found marijuana, pills which appeared to be prescription
controlled substances, and assorted drug-related paraphernalia. Id.
On January 12, 2007, DEA investigators personally served the Show
Cause Order on Respondent. Since that time, neither Respondent, nor
anyone purporting to represent him, has responded. Because (1) more
than thirty days have passed since service of the Show Cause Order, and
(2) no request for a hearing has been received, I conclude that
Respondent has waived his right to a hearing. See 21 CFR 1301.43(d). I
therefore enter this final order without a hearing based on relevant
material contained in the investigative file and make the following
findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
BM5526009, as a practitioner, which authorizes him to dispense
controlled substances in schedules II through V. Respondent's
registration was last renewed on February 15, 2006, and expires on
January 31, 2009.
In July 1996, Respondent was disciplined by the State Board of
Medical Examiners of South Carolina, which found that he had written
prescriptions for Lortab 7.5 (hydrocodone), and Didrex
(benzphetamine),\1\ using the names of other patients, which he then
had filled and diverted to his personal use. Respondent admitted to the
State's allegation. The Board fined him $7500, issued a reprimand, and
imposed various conditions on his medical license including random drug
testing. On October 17, 2000, however, the Board removed the
conditions.
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\1\ Both drugs are schedule III controlled substances. See 21
CFR 1308.13.
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According to the investigative file, the Board's conditions
appeared to have had only a limited impact on Respondent. Beginning in
the summer of 1999, while the Board's conditions were still in effect,
Respondent purchased marijuana from a person who
[[Page 36485]]
lived with him. During an interview, this person related that from 1999
until 2003, he had sold Respondent approximately 100 pounds of
marijuana. The person further stated to investigators that he regularly
traded marijuana for Lortab and Xanax prescriptions issued by
Respondent. More specifically, Respondent would provide this person
with prescriptions for 240 Lortab and 120 Xanax at the beginning of
each month; Respondent would also write identical prescriptions in the
name of the person's girlfriend at the end of each month. The person
also told investigators that he could make more money selling the
Lortab and Xanax than he could selling marijuana. Finally, the person
related that Respondent gave him the combination to a safe that was
located in Respondent's home and instructed him to place the marijuana
in the safe.
Investigators also interviewed a person who related that his father
was the number one seller of OxyContin in the Williamston, South
Carolina area. According to this person, his father was addicted to
OxyContin, which Respondent had prescribed to him. This person stated
that Respondent would write controlled substance prescriptions in other
persons' names, and that his father would send a ``runner'' to
Respondent's practice to pick up the prescriptions. The person further
advised that after the prescriptions were filled, his father would give
half of the drugs to the runner and swap the remaining half with
Respondent for marijuana. The person also related that he had been
present during a fall 2004 incident in which his father had gone to
Respondent's home and obtained 2.5 pounds of marijuana. Moreover,
during this incident, Respondent showed this person ten marijuana
plants that he was growing in his basement. This person also told
investigators of another fall 2004 incident in which he accompanied his
father to Respondent's home as the latter retrieved one pound of
marijuana from the mailbox.
Finally, this person, who was being treated by Respondent for
anxiety, related a late fall/early winter 2004 visit to Respondent's
medical office. During the appointment, Respondent issued him
prescriptions for both Xanax and Lortab. The person related to
investigators that he was surprised to receive the Lortab prescription.
Shortly after leaving Respondent's office, the person was contacted by
his father who asked for half of the Lortab. The person further told
investigators that he believed that Respondent had told his father
about the issuance of the Lortab prescription.
Subsequently, investigators interviewed the above person's brother,
who corroborated his father's relationship with Respondent.
Specifically, this person confirmed that for approximately five years,
Respondent had provided his father with prescriptions for Lortab,
Xanax, Roxicodone, Percocet and Oxycontin. The person stated that he
had lived with his father from the year 2000 until 2003, during which
time he observed his father sell large quantities of controlled
substances to numerous individuals in the Williamston, South Carolina
area. According to this person, his father would sell controlled
substances to as many as twenty persons a day and made a significant
amount of money doing so. The person further related that his father
had both personally obtained controlled substance prescriptions from
Respondent and also used a ``runner'' to obtain them.
The person also stated that he was present on approximately five to
seven occasions during which his father purchased marijuana from
Respondent. The person also told investigators that while he was
between the ages of fifteen to eighteen, he had purchased marijuana
approximately twenty times from Respondent's son at his residence, and
that on some occasions, he personally witnessed Respondent hand the
marijuana to his son, who then delivered it to him.
Investigators also interviewed a person who stated that he had sold
marijuana for Respondent from the summer of 2004 through the summer of
2005. The person further related that from the time he first met
Respondent in the year 2003 until the summer of 2005, he had observed
approximately twenty-five to thirty pounds of marijuana at Respondent's
home, scales used to weigh marijuana for resale, and a box of index
cards which contained records of customers to whom Respondent had
extended credit. The person also related that Respondent provided him
with discounted marijuana as payment for his selling the drug on the
latter's behalf, and that he had observed Respondent give another
individual five to six pounds of the drug to sell.
This person also told investigators that anytime he was in
Respondent's presence, Respondent would be smoking marijuana. The
person also stated that he was present numerous times when Respondent
came home for lunch and that Respondent would smoke marijuana before
returning to work.
Investigators interviewed another person who related that between
1999 and the end of 2003, he had supplied Respondent with over one
hundred pounds of marijuana. This person stated that during the last
three to four months of 2003, he traveled to North Carolina every other
week for the purpose of obtaining marijuana for Respondent. According
to this person, prior to each trip, Respondent provided him with
approximately $ 2000 to $ 3000 dollars, which was used to purchase
three to four pounds of marijuana. Moreover, the person observed
Respondent sell approximately twenty-five to thirty pounds of marijuana
and that he was growing marijuana.
The person also told investigators that from the end of 2002
through the end of 2003, Respondent issued him and another person,
prescriptions for 240 Lortab and 120 Xanax in exchange for one pound of
marijuana. The person stated that after filling the prescriptions, he
would sell the Lortab and Xanax on the street. Finally, this person
related an incident in which he and Respondent had smoked marijuana
prior to the latter's performing surgery on his girlfriend.
Investigators next interviewed the father of the two individuals
whose statements are related above. This person stated that he had been
abusing drugs most of his adult life, but it was not until Respondent
gave him prescriptions for 150 Oxycontin (80 mg.) per month that he
developed the worst addiction he had experienced in his life. According
to this person, he became ``hooked'' on Oxycontin within six to eight
months after Respondent first prescribed it for him, and began taking
the drug intravenously. According to this person, Respondent also
provided him with prescriptions for 240 Roxicodone tablets each month.
The person also told investigators that he had had numerous
conversations with Respondent regarding his addiction to Oxycontin,
that he had told Respondent that he was shooting up the drug, and that
he told Respondent that he was selling the drug to support his habit.
Respondent, however, never suggested taking him off of Oxycontin, or
that he enter a treatment program.
The person further related that he and Respondent would supply each
other with marijuana when the other's supply was low. The person stated
that he had supplied Respondent with approximately \1/4\ pound to one
pound of marijuana and that Respondent had supplied him with three to
four pounds. The person also told investigators that he had observed
multiple pounds of marijuana while at Respondent's residence.
[[Page 36486]]
On May 10, 2006, law enforcement authorities executed a search
warrant at Respondent's residence. During the search, the authorities
found marijuana roaches, marijuana seeds, two scales, and various
paraphernalia including rolling papers, hemostats, pipes, and rollers.
Thereafter, investigators interviewed an additional acquaintance of
Respondent, who had met him through the latter's son. This person
corroborated the information regarding Respondent's dealings in
marijuana including the name of his primary supplier, his index card
system for recording transactions, and his personal use. The person
also stated that Respondent had given him marijuana to try on five to
ten occasions, and that between 2003 and the end of 2004, he would
obtain marijuana from a safe in Respondent's home approximately one to
two times per week.
The person further related that towards the end of 2004, he had
told Respondent that he had knee pain and suspected that he suffered
from Attention Deficit Disorder. Respondent told him to come to his
office. While Respondent tested his reflexes during the visit, he
conducted no further tests and gave no diagnosis. Nonetheless,
Respondent prescribed Adderall, a schedule II controlled substance, and
hydrocodone. Shortly after filling the initial prescription, the person
visited Respondent's home and smoked marijuana. During this visit,
Respondent asked the person to give him some of his hydrocodone.
Moreover, upon filling a second prescription for hydrocodone,
Respondent again asked the person to give him the tablets that he did
not need.
Respondent issued this person prescriptions for hydrocodone on a
monthly basis between January 2005 and May 2006. The person admitted to
investigators that he took very few hydrocodone tablets and regularly
provided Respondent with sixty of them. The person further admitted to
selling the majority of the remaining tablets to his mother. The person
also stated that following Respondent's arrest, Respondent told him not
to tell the authorities that he was giving hydrocodone to Respondent.
On December 12, 2006, a federal grand jury indicted Respondent,
charging him with conspiring to possess with the intent to distribute,
and to distribute, marijuana, see 21 U.S.C. 846; and maintaining a
residence for the purpose of distributing and using marijuana. See id.
section 856(a)(1). The grand jury also indicted Respondent on twelve
counts of knowingly and intentionally distributing Lortab
(hydrocodone), and three counts of knowingly and intentionally
distributing Xanax (alprazolam), outside of the usual course of medical
practice and for other than a legitimate medical purpose, to an
individual identified only as person A. See id. sections 841(a)(1),
841(b)(1)(D), & 841(b)(2). Finally, the grand jury indicted Respondent
on thirteen additional counts of knowingly and intentionally
distributing Lortab, outside of the usual course of medical practice
and for other than a legitimate medical purpose, to an individual
identified only as person B. See 21 U.S.C. 841(a)(1) & 841(b)(1)(D).
Discussion
Section 304(a) of the Controlled Substances Act provides that a
registration to ``dispense a controlled substance * * * may be
suspended or revoked by the Attorney General upon a finding that the
registrant * * * has committed such acts as would render his
registration under section 823 of this title inconsistent with the
public interest as determined under such section.'' 21 U.S.C.
824(a)(4). In making the public interest determination, the Act
requires the consideration of the following factors:
(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, M.D., 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 a registration should be
revoked.'' Id. Moreover, case law establishes that I am ``not required
to make findings as to all of the factors.'' Hoxie v. DEA, 419 F.3d
477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173-74
(D.C. Cir. 2005).
Finally, section 304(d) provides that ``[t]he Attorney General may,
in his discretion, suspend any registration simultaneously with the
institution of proceedings under this section, in cases where he finds
that there is an imminent danger to the public health or safety.'' 21
U.S.C. 824(d). Here, analyzing the evidence under factors two and four
establishes that Respondent has committed acts ``inconsistent with the
public interest,'' and posed ``an imminent danger to public health or
safety,'' which justified the immediate suspension of his registration.
Relatedly, the record also demonstrates that Respondent's continued
registration would be inconsistent with the public interest and that
his registration should be revoked.
Factors Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Record of Compliance with Applicable Laws
The evidence in this case overwhelmingly establishes that
Respondent has engaged in the criminal distribution of controlled
substances in violation of 21 U.S.C. 841. More specifically, the
evidence shows that Respondent was a marijuana dealer/distributor and
had engaged in this criminal conduct for a period of at least five
years. Moreover, the evidence establishes that Respondent engaged in
the illegal manufacturing of marijuana. Id.
Furthermore, Respondent used his DEA registration for criminal
purposes. More specifically, the evidence shows that Respondent issued
prescriptions for controlled substances which included OxyContin and
Percocet (schedule II), Lortab (hydrocodone, schedule III), and Xanax
(schedule IV), which he then traded for marijuana.
Respondent also issued prescriptions without a legitimate medical
purpose. See 21 CFR 1306.04(a) (``A prescription for a controlled
substance * * * must be issued for a legitimate medical purpose by an
individual acting in the usual course of his professional practice.'').
Relatedly, Respondent issued prescriptions in the names of other
``patients'' so that he or his associates would then be able to acquire
the drugs. Notably, Respondent had previously been sanctioned by the
State Board for the same conduct. Finally, the record establishes that
Respondent continued to prescribe Oxycontin to a ``patient,''
notwithstanding that the ``patient'' had told him: (1) That he was
addicted to the drug, (2) that he was taking the drug intravenously,
and (3) that he was selling the drug to support his habit.
It is indisputable that Respondent's criminal conduct created an
``imminent danger to public health or safety,'' 21 U.S.C. 824(d), and
was ``inconsistent with the public interest.'' Id. 824(a)(4). I
therefore hold that Respondent's continued registration would be
``inconsistent with the public interest''
[[Page 36487]]
and that his registration should be revoked. Id. Moreover, for the same
reasons that led me to find that Respondent posed ``an imminent danger
to the public health or safety,'' id. section 824(d), I conclude that
the public interest requires that his registration be revoked effective
immediately.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA
Certificate of Registration, BM5526009, issued to Michael F. Myers,
M.D., be, and it hereby is, revoked. I further order that any pending
applications for renewal or modification of such registration be, and
they hereby are, denied. This order is effective immediately.
Dated: June 22, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-12771 Filed 7-2-07; 8:45 am]
BILLING CODE 4410-09-P