[Federal Register: December 12, 2008 (Volume 73, Number 240)]
[Notices]
[Page 75773-75774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de08-118]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08-35]
Hicham K. Riba, D.D.S.; Revocation of Registration
On February 1, 2008, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Hicham K. Riba, D.D.S. (Respondent), of Chicago,
Illinois. The Show Cause Order proposed the revocation of Respondent's
DEA Certificate of Registration, BR5325091, as a practitioner, on the
ground that ``as a result of [disciplinary] action by the Illinois
Department of Financial and Professional Regulation,'' Respondent is
``currently without authority to handle controlled substances in * * *
Illinois, the [S]tate in which [he is] registered with DEA,'' and is
therefore not entitled to maintain his registration. Show Cause Order
at 1.
Respondent requested a hearing on the allegation; the matter was
assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner.
Thereafter, the Government moved for summary disposition and to stay
further proceedings. Motion for Sum. Disp. at 1-2. The basis for the
Government's motion was that on September 29, 2006, the Illinois
Department of Professional Regulation suspended Respondent's dental
license ``due to gross malpractice, professional incompetence, and
dishonorable, unethical or unprofessional conduct.'' Id. at 1. Because
Respondent lacks authority under Illinois law to dispense controlled
substances and was therefore without authority to hold a DEA
registration in Illinois, the Government maintained that his
registration must be revoked. Id. at 1-2.
Respondent opposed the Government's motion. Respondent contended
that he was denied a fair hearing in the state proceeding because a
member of the Illinois House of Representatives had written the
Director of the Illinois Department of Financial and Professional
Regulation and urged that Respondent ``should never have his dental
license re-instated,'' and ``that this Dentist [should] never be
allowed to practice in the State of Illinois * * * again.'' Response to
Mot. for Sum. Disp. at 1. Respondent further argued that the letter was
an improper ex parte communication, which was not made a part of the
record as required by state law and which was not disclosed until the
Director issued the final decision in the case, in which he rejected
the recommendation of the state board that a lesser sanction be
imposed. Id. at 1-2. Respondent further noted other cases in which
dentists who had committed similar acts had received less harsh
sanctions and contends that there is ``a reasonable inference that the
Director was improperly influenced by the ex parte communication and
that the [state] proceeding * * * was not fair.'' Id. at 3. Finally,
Respondent maintained that the authorities cited by the Government in
support of its motion were distinguishable because ``those cases did
not discuss the issue of improper ex parte communication having
prejudiced the proceeding of the state licensing agency.'' Id. at 4.\1\
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\1\ Respondent further asserted that the proceeding should be
stayed pending the resolution of his state appeal.
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The ALJ was not persuaded. The ALJ noted that there was no dispute
that Respondent was without authority to dispense controlled substances
in Illinois, and that under agency precedent, he was not entitled to a
stay of this proceeding during the pendency of his appeal of the state
proceeding. ALJ Dec. at 3-4 (citing Wingfield Drugs, Inc., 52 FR
27,070, 27,071 (1987)). The ALJ thus concluded that further delay in
ruling on the Government's motion was unwarranted, granted the
Government's motion for summary disposition, and recommended that
Respondent's registration be revoked and that ``any pending
applications be denied.'' Id at 4-5. The record was then forwarded to
me for final agency action.
Thereafter, Respondent filed exceptions to the ALJ's decision.
Respondent's principal argument is that the ALJ's decision was overly
broad because it recommended the denial of any pending applications and
thus ``goes beyond the scope of this proceeding'' because he had moved
to Tennessee and ``was granted a license to practice dentistry in''
that State. Resp. Exceptions at 2-3.
Having considered the entire record in this matter, including
Respondent's exceptions, I adopt the ALJ's decision in its entirety. I
find that Respondent currently holds DEA Certificate of Registration,
BR5325091, which authorizes him to dispense controlled substances in
schedules II through V as a practitioner, at the registered location of
Little Angel Dental Clinic, 3915 W. 26th Street, Chicago, Illinois.
Respondent's registration does not expire until April 30, 2009.
I further find that on September 29, 2006, the Illinois Division of
Professional Regulation suspended Respondent's state dental license
``due to gross malpractice, professional incompetence, and
dishonorable, unethical or unprofessional conduct.'' Exh. A. to Gov.
Motion for Summary Disp. Moreover, I take official notice of the online
records of the Illinois Division of Professional Regulation, which
indicate that both Respondent's state dental license and his controlled
substance license remain suspended.\2\
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\2\ An agency ``may take official notice of facts at any stage
in a proceeding--even in the final decision.'' U.S. Dept. of
Justice, Attorney General's Manual on the Administrative Procedure
Act 80 (1947). In accordance with the Administrative Procedure Act
and DEA's regulation, Respondent is ``entitled on timely request to
an opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also
21 CFR 1316.59(e). Accordingly, Respondent may file a motion for
reconsideration within fifteen days of service of this order which
shall commence with the mailing of the order.
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[[Page 75774]]
Under the Controlled Substances Act (CSA), ``[a] separate
registration [is] required at each principal place of * * *
professional practice where the [registrant] dispenses controlled
substances,'' 21 U.S.C. 822(e), and 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
dentist practices is an essential condition for holding a DEA
registration.
Accordingly, DEA has repeatedly held that the CSA requires the
revocation of a registration issued to a practitioner whose state
license has been suspended or revoked. See Sheran Arden Yeates, 71 FR
39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993);
Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C.
824(a)(3)(authorizing the revocation of a registration ``upon a finding
that the registrant * * * has had his State license or registration
suspended [or] revoked * * * and is no longer authorized by State law
to engage in the * * * distribution [or] dispensing of controlled
substances'').
Moreover, DEA has repeatedly held ``that a registrant cannot
collaterally attack the results of a state criminal or administrative
proceeding in a proceeding under section 304 of the CSA.'' Brenton D.
Glisson, M.D., 72 FR 54296, 54297 (2007) (quoting Sunil Bhasin; M.D.,
72 FR 5082, 5083 (2007)); see also Shahid Musud Siddiqui, 61 FR 14818
(1996); Robert A. Leslie, 60 FR 14004 (1995)). Respondent's contention
that the state proceeding was fundamentally unfair because the Director
was improperly influenced by an ex parte communication from a member of
the Illinois House of Representatives is not addressable in this forum.
Moreover, while it appears that Respondent is seeking judicial
review of the state proceeding in the Illinois courts, the suspension
nonetheless remains in effect. Respondent therefore remains without
authority under Illinois law to dispense controlled substances in the
State in which he is registered. Because possessing authority under
state law is an essential condition for holding a registration under
the CSA, see 21 U.S.C. 802(21) & 823(f), and Respondent's Illinois
controlled substance license remains suspended, he is not entitled to a
stay of this proceeding. See Wingfield Drugs, 52 FR at 27071.
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, BR5325091, issued to Hicham K. Riba,
D.D.S., be, and it hereby is, revoked. I further order that any pending
application of Hicham K. Riba, D.D.S., to renew this registration be,
and it hereby is, denied.\3\ This order is effective January 12, 2009.
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\3\ There is no evidence in the record as to whether Respondent
has applied for a registration in Tennessee. Nor is there any
evidence that Respondent requested a modification of his registered
location from Illinois to Tennessee. Because this proceeding was
based solely on Respondent's loss of authority under Illinois law,
it is not res judicata on the question of whether granting
Respondent a registration to dispense controlled substances in
Tennessee would be consistent with the public interest.
December 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-29406 Filed 12-11-08; 8:45 am]
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