[Federal Register: June 17, 2008 (Volume 73, Number 117)]
[Notices]
[Page 34327-34329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn08-89]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Craig H. Bammer, D.O.; Denial of Application
On October 1, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Craig H. Bammer, D.O. (Respondent), of South Gulfport,
Florida. The Show Cause Order proposed the revocation of Respondent's
Certificate of Registration, BB1336456, as a practitioner, and the
denial of any pending applications to renew or modify the registration,
on three grounds. Show Cause Order at 1-2.
More specifically, the Show Cause Order alleged that on both
February 28 and April 27, 2007, the Pinellas County, Florida Sheriff's
Office had arrested Respondent and charged him with prescribing
controlled substances without a legitimate medical purpose, and that
his conduct constituted acts inconsistent with the public interest. Id.
at 1 (citing 21 U.S.C. 824(a)(4)). Next, the Show Cause Order alleged
that on June 21, 2007, the Florida Department of Health revoked
Respondent's state medical license and that Respondent was therefore
without authority to handle controlled substances in the State in which
he held his DEA registration. Id. (citing 21 U.S.C. 824(a)(3)).
Finally, the Show Cause Order alleged that in July 2003, Respondent had
materially falsified his renewal application for a DEA registration by
failing to disclose that in 1999, he had surrendered his DEA
registration and Ohio medical license based on allegations that he was
``impaired by excessive or habitual use of drugs and alcohol.'' Id. at
1-2 (citing 21 U.S.C. 824(a)(1)).
On October 15, 2007, the Show Cause Order, which also informed
Respondent of his right to a hearing, was served on him at the Pinellas
County Jail, where
[[Page 34328]]
he was then residing.\1\ Since that time, neither Respondent, nor any
one purporting to represent him, has requested a hearing. Because more
than thirty days have passed since the service of the Show Cause Order
and no request for a hearing has been received, I find that Respondent
has waived his right to a hearing on the allegations. 21 CFR
1301.43(d). Accordingly, I enter this Final Order without a hearing
based on relevant material contained in the investigative file and make
the following findings. Id. Sec. 1301.43(e).
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\1\ A courtesy copy of the Show Cause Order was also sent to
Respondent's counsel.
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Findings
Respondent held DEA Certificate of Registration, BB1336456, which
expired on July 31, 2006. Respondent did not file a renewal application
until August 8, 2006. Because Respondent's renewal application was
untimely, I find that Respondent does not have a current registration.
See 5 U.S.C. 558(c). Respondent does, however, have an application
which remains pending before the Agency.
On June 9, 1999, Respondent voluntarily surrendered his Ohio
medical license to avoid further formal proceedings based on his
failure to comply with a consent agreement with the Ohio Medical Board
under which he was required to surrender his DEA registration and could
not apply for a new registration absent the state board's approval.
According to the records of the Ohio board, Respondent had admitted
that he ``suffered impairment due to excessive or habitual use of drugs
and alcohol.'' See Ohio Medical Board Formal Actions Against Craig
Howard Bammer, at 2. Respondent eventually did surrender his DEA
registration.
On July 24, 2003, Respondent submitted an application to renew his
DEA registration.\2\ While on this application Respondent acknowledged
that he had been subjected to disciplinary proceedings with respect to
both his Ohio and Florida medical licenses, Respondent answered ``no''
to the question of whether he had ``ever surrendered'' his DEA
registration. Moreover, according to the Agency's registration records,
on his August 2006 application, Respondent again acknowledged the prior
actions against his state licenses. The registration record does not,
however, establish how Respondent answered the liability question
related to his DEA registration.
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\2\ By this date, Respondent had already regained a DEA
registration, as a renewal application stated that ``your crrent
registration expires on 07-31-2003.'' Renewal Application for
Registration (Dtd. July 7, 2003).
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As for the other allegations, the investigative file establishes
that in January 2007, an undercover officer obtained a prescription for
Roxicodone, a schedule II controlled substance from Respondent without
the latter having performed a physical examination. Moreover, the
undercover officer also obtained a prescription for a third person who
was not present. The investigative file does not, however, indicate
what drug the prescription was for.
The investigative file also indicates that in February 2007, the
undercover officer obtained additional prescriptions for Roxicodone in
exchange for the officer's agreeing to pay Respondent's electric bill.
Shortly thereafter, Respondent was arrested and charged with several
counts of trafficking in illegal drugs, a felony offense under Florida
law. See Fla. Stat. Ann. 893.135. According to the online records of
the Pinellas County Courts, Respondent awaits trial on these charges.
Moreover, on May 25, 2007, the Florida Department of Health issued
an emergency order suspending Respondent's medical license. Thereafter,
on June 21, 2007, the Florida Department of Health revoked Respondent's
medical license.
Discussion
Under section 304(a) of the Controlled Substances Act (CSA), a
registration ``may be suspended or revoked by the Attorney General upon
a finding that the registrant * * * has materially falsified any
application filed pursuant to or required by this subchapter.'' 21
U.S.C. 824(a)(1). The Attorney General may also suspend or revoke a
registration ``upon a finding that the registrant * * * has had his
State license or registration suspended, revoked, or denied by
competent State authority and is no longer authorized by State law to
engage in the * * * dispensing of controlled substances.'' Id. Sec.
824(a)(3). Under agency precedent, the various grounds for revocation
or suspension of an existing registration which Congress enumerated in
section 304(a), 21 U.S.C. 824(a), are also properly considered in
deciding whether to grant or deny a registration under section 303. See
The Lawsons, Inc., 72 FR 74334, 74338 (2007); Kuen H. Chen, 58 FR
65401, 65402 (1993).
In this matter, the Order to Show Cause alleged three separate
grounds for this proceeding. I conclude that it is unnecessary to
address the allegations related to Respondent's prescribing of
controlled substances without a legitimate medical purpose. Instead, I
find that because Respondent materially falsified his 2003 application
for a DEA registration and lacks authority under state law to prescribe
a controlled substance, he is not entitled to hold a DEA registration.
Accordingly, his application will be denied.
The Material Falsification Allegation
Respondent materially falsified his 2003 application for a DEA
registration when he failed to disclose that he had previously
surrendered his DEA registration. As this Agency has repeatedly held,
`` `[t]he provision of truthful information on applications is
absolutely essential to effectuating [the] statutory purpose' of
determining whether the granting of an application is consistent with
the public interest.'' The Lawsons, 72 FR at 74338 (quoting Peter H.
Ahles, 71 FR 50097, 50098 (2006)). See also Hoxie v. DEA, 419 F.3d 477,
483 (6th Cir. 2005) (``Candor * * * is considered by the DEA to be an
important factor when assessing whether a * * * registration is
consistent with the public interest.'').
A false statement is material if it ``has a natural tendency to
influence, or was capable of influencing, the decision of the
decisionmaking body to which it was addressed.'' Kungys v. United
States, 485 U.S. 759, 770 (1988) (int. quotation and other citations
omitted). Moreover, while the evidence must be ``clear, unequivocal,
and convincing,'' the ``ultimate finding of materiality turns on an
interpretation of the substantive law.'' Id. at 772 (int. quotations
and other citation omitted).
This Agency has previously held that ``[a]n applicant's answers to
the various liability questions are material because [it] `relies upon
such answers to determine whether an investigation is needed prior to
granting the application.' ''The Lawsons, 72 FR at 74338 (quoting
Martha Hernandez, 62 FR 61145, 61146 (1997)). Notably, in determining
whether the granting of an application is in the public interest, the
Agency is required to consider ``[t]he applicant's experience in
dispensing * * * controlled substances,'' his ``[c]ompliance with
applicable State, Federal or local laws relating to controlled
substances,'' and ``other conduct which may threaten public health and
safety.'' 21 U.S.C. 823(f). And in making determinations with respect
to these factors, DEA has repeatedly considered an applicant's or an
existing registrant's history of abusing controlled substances. See,
e.g., Patrick K. Riggs, 72 FR 71959 (2007); Alan H. Olefsky, 72 FR
42127 (2007); Alan H. Olefsky, 57 FR 928 (1992).
[[Page 34329]]
I thus conclude that Respondent's failure to disclose the earlier
surrender of his DEA registration was a material misrepresentation
because it ``ha[d] a natural tendency to influence the * * * decision''
of the Agency as to whether to grant his application for a new
registration.\3\ Under DEA precedent, this act ``provides an
independent and adequate ground for denying'' Respondent's application.
The Lawsons, 72 FR at 74338; Cf. Bobby Watts, 58 FR 46997 (1993).
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\3\ While Respondent indicated on 2003 application that both his
Florida and Ohio licenses had been subjected to discipline, he
further stated that the basis of the discipline was his ``abuse of a
non-controlled substance (Stadol nasal spray).'' Stadol nasal spray
contains butorphanol tartrate, and is a schedule IV controlled
substance. See 21 CFR 1308.14(f). Respondent's statement was thus an
additional misrepresentation.
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The Lack of State Authority Allegation
As found above, on May 25, 2007, the Florida Department of Health
issued an order which imposed an emergency suspension of Respondent's
state medical license. Shortly thereafter, on June 21, 2007, the
Florida Department of Health issued a further order which revoked
Respondent's state medical license.
Under the Controlled Substances Act (CSA), 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) (``[t]he term `practitioner' means
a physician * * * 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 to dispense a controlled substance under the laws
of the State in which a physician practices medicine is an essential
condition for holding a DEA registration.
Because Respondent's Florida medical license has been revoked, he
is without authority under state law to handle controlled substance and
does not meet an essential prerequisite under the CSA for obtaining a
new DEA registration. See Richard Carino, M.D., 72 FR 71955, 71956
(2007) (citing cases); 21 U.S.C. 823(f). Accordingly, his application
will be denied for this reason as well.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as 28 CFR 0.100(b) & 0.104, I hereby order that the application of
Craig H. Bammer, D.O., for the renewal of his registration be, and it
hereby is, denied. This order is effective July 17, 2008.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-13609 Filed 6-16-08; 8:45 am]
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