[Federal Register: April 15, 2009 (Volume 74, Number 71)]
[Notices]
[Page 17528-17529]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap09-118]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08-10]
Scott Sandarg, D.M.D.; Revocation of Registration
On July 25, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Scott Sandarg, D.M.D. (Respondent), of Irvine,
California. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BS6026525, which
authorizes him to dispense controlled substances in schedules II
through V as a practitioner, and the denial of any pending applications
to renew or modify the registration, on the ground that Respondent had
committed numerous acts which were inconsistent with the public
interest. Show Cause Order at 1.
The Show Cause Order specifically alleged that Respondent had
unlawfully obtained controlled substances for his own use which
included illicit methamphetamine, anabolic steroids, drugs containing
hydrocodone, and several benzodiazepines including alprazolam, through
various means including by engaging in prescription fraud and by
obtaining the controlled substances over the internet from
practitioners with whom he did not establish a valid doctor-patient
relationship. Id. at 1-3. The Order also alleged that on two separate
occasions, Respondent had been arrested; that the police found various
controlled substances in his possession during lawful searches of his
property; and that Respondent had subsequently pled guilty to various
offenses under California law including one felony count of unlawful
possession of a controlled substance in violation of Cal. Health &
Safety Code Sec. 11377(a), one misdemeanor count of unlawfully being
under the influence of a controlled substance in violation of Cal.
Health & Safety Code section 11550(a), and two misdemeanor counts
related to firearms violations under Cal. Penal Code section 17(b).
Show Cause Order at 2-3.
On September 11, 2007, a DEA Diversion Investigator attempted to
serve the Order to Show Cause on Respondent by faxing it to him. On
November 9, 2007, Respondent requested a hearing on the allegations of
the Show Cause Order, and the matter was assigned to an Administrative
Law Judge (ALJ). Thereafter, the Government moved to terminate the
proceeding on the ground that Respondent's request was out of time.
Respondent opposed the motion, submitting the declarations of himself
and his office manager, both of which asserted that the fax had
included the cover sheet but not the Show Cause Order. Thereafter, the
Government submitted a DI's declaration which maintained that
Respondent's office manager had informed him that she had received the
entire fax.
The ALJ denied the Government's motion reasoning that there was a
factual dispute as to when Respondent had received the Show Cause
Order. The ALJ then allowed the Government to file an interlocutory
appeal. On May 12, 2008, I denied the appeal because there was a clear
factual dispute as to whether Respondent had actually received the Show
Cause Order on September 11, 2007, and the dispute could not be
resolved without assessing the credibility of each party's
witnesses.\1\
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\1\ Respondent did not, however, dispute that he had
subsequently been properly served.
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Thereafter, the Government moved to terminate the proceeding on the
ground that on December 19, 2007, the California Board of Dental
Examiners had adopted the proposed decision of a State Administrative
Law Judge and revoked Respondent's State Dental Certificate with an
effective date of January 21, 2008. Gov. Mot. for Summary Judgment 2-3.
The Government argued that because Respondent is not authorized to
handle controlled substances in the State in which he is registered
with this Agency, he is not entitled to maintain his registration. Id.
Respondent's counsel opposed the motion arguing that he had filed
for a writ of administrative mandamus in State court challenging the
Board's order. Respondent's Resp. to ALJ's May 21, 2008 Memorandum to
Counsel at 1. According to Respondent's counsel, the writ raised
multiple claims of error on the part of the State ALJ, and were the
court to find any of the claims meritorious, Respondent's license could
be restored. Id. Respondent's counsel further argued that DEA's
decision be stayed until the State proceeding was resolved. Id. The
Government opposed Respondent's motion on the ground that it was
speculative whether the State court would grant any relief, and that
[[Page 17529]]
this Agency has previously rejected similar arguments.
On July 10, 2008, the ALJ granted the Government's motion. ALJ at
6. The ALJ noted that no material facts were in dispute and that
Respondent did not deny that he is currently not authorized under
California law to handle controlled substances. Id. Noting that this
Agency has consistently held that a practitioner may not maintain his
registration if he lacks authority to handle controlled substances
under the laws of the State in which he practices, the ALJ granted the
motion and recommended that Respondent's registration be revoked and
that any pending applications to renew or modify his registration be
denied. Id. Thereafter, the ALJ forwarded the record to me for final
agency action.
Having considered the entire record in this matter, I adopt the
ALJ's decision in its entirety. I find that Respondent holds DEA
Certificate of Registration, BS6026529, which authorizes him to
dispense controlled substances in schedules II through V at the
registered location of 17655 Harvard Place, Suite F, Irvine,
California. I further find that while the expiration date of the
registration was February 28, 2007, Respondent submitted a timely
renewal application and therefore his registration has remained in
effect pending the issuance of this Final Order. See 5 U.S.C. 554(e).
I further find, however, that on December 19, 2007, the Dental
Board of California ordered that Respondent's State Dental Certificate
be revoked with an effective date of January 21, 2008.\2\ Moreover,
while it has been more than seven months since Respondent's challenge
to the Dental Board's proceeding was heard in State court, Respondent
has submitted no evidence to the Agency that the Board's revocation
order has been set aside or stayed, and according to the Board's Web
site, Respondent's Dental Certificate remains revoked.
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\2\ The State ALJ's decision concluded that the State had proved
nine different causes to discipline Respondent, several of which
related to his abuse of controlled substances. In re Sandarg,
Proposed Dec. at 44-46, No. DBC 2006-36 (2007).
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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 under State law to handle controlled substances is
an essential condition for holding a DEA registration.
Accordingly, DEA has held repeatedly that the CSA requires the
revocation of a registration issued to a practitioner whose State
license has been suspended or revoked. David Wang, 72 FR 54297, 54298
(2007); 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'').
Here, there is no dispute over the material fact that Respondent's
California Dental Certificate has been revoked and that Respondent
lacks authority under California law to dispense control substances.
Respondent is therefore not entitled to maintain his DEA registration.
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 order that DEA
Certificate of Registration, BS6026529, issued to Scott Sandarg,
D.D.S., be, and it hereby is, revoked. I further order that any pending
application of Scott Sandarg, D.D.S., to renew or modify his
registration, be, and it hereby is denied. This Order is effective May
15, 2009.
Dated: April 3, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-8613 Filed 4-14-09; 8:45 am]
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