[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Notices]
[Pages 8749-8750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3766]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Dwayne LaFrantz Wilson, M.D.; Revocation of Registration
On October 22, 2008, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Dwayne LaFrantz Wilson, M.D. (Respondent), of Providence,
Rhode Island. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BW6030857, which
authorizes him to dispense controlled substances as a practitioner, and
the denial of any pending applications to renew or modify his
registration, on the ground that his Rhode Island medical license had
been suspended, and that he therefore lacks authority to handle
controlled substances under the laws of Rhode Island, the State in
which he is registered. Show Cause Order at 1.
On October 23, 2008, the Government initially attempted to serve
the Show Cause Order on Respondent by certified mail, return receipt
requested, addressed to him at his registered address. However, the
mailing was returned by the Post Office, with a sticker attached which
stated: ``NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.''
Thereafter, a DEA Investigator (DI) contacted the Rhode Island
Board of Medicine in an attempt to obtain Respondent's address.
Declaration of Thomas Cook at 1. A board official indicated that he did
not know Respondent's current address, but had heard that he had moved
to somewhere in the Southwestern United States. Id. The DI also
unsuccessfully searched for Respondent through various online databases
but could not find any information regarding the latter's whereabouts.
Id. The DI also tried to contact him through the e-mail address he had
previously provided to DEA; Respondent did not, however, reply to the
e-mail. Id. Finally, the DI contacted the owner of the apartment which
Respondent had rented and used as his registered location. Id. at 2.
Respondent's ex-landlord advised that Respondent had moved in April
2008 and did not leave a forwarding address. Id. Accordingly, the
Government has been unable to provide actual notice of this proceeding
to Respondent.
In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315
(1950), the Supreme Court held that ``when notice is a person's due * *
* [t]he means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.'' More
recently, in a case in which a State attempted to serve a property
owner with notice of a tax sale by certified mail which was returned as
unclaimed, the Court explained that ``when a letter is returned by the
post office, the sender will ordinarily attempt to resend it, if it is
practicable to do so.'' Jones v. Flowers, 547 U.S. 220, 230 (2006)
(citing Small v. United States, 136 F.3d 1334, 1337 (DC Cir. 1998)).
In Jones, the Court reaffirmed, however, that ``[d]ue process does
not require that a property owner receive actual notice before the
government may take his property.'' 547 U.S. at 226 (citing Dusenbery
v. United States, 534 U.S. 161, 170 (2002)). Moreover, due process does
not require ``heroic efforts,'' Dusenbery, 534 U.S. at 170, but rather,
only that ``the government * * * provide `notice reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.' '' 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).
Applying these standards, I hold that the Government has satisfied
the requirements of due process, notwithstanding that it has been
unable to serve Respondent. In contrast to Jones, the Government was
not required to resend the Show Cause Order by regular mail because the
original certified mailing was not returned as unclaimed, but rather as
undeliverable (apparently because Respondent did not leave a forwarding
address with the Post Office). As the Court reasoned in Jones, ``if
there were no reasonable additional steps the government could have
taken upon return of the unclaimed notice letter, it cannot be faulted
for doing nothing.'' 547 U.S. at 234. Moreover, the Government made
substantial efforts to locate Respondent. Even though its efforts were
unsuccessful, they were ``reasonably calculated, under all the
circumstances, to apprise [Respondent] of the pendency of the action,''
and thus satisfy due process. Dusenbery, 534 U.S. at 173 (quoting
Mullane, 339 U.S. at 314).
I further hold that this matter may proceed in absentia. I
therefore enter this Decision and Final Order without a hearing based
on the evidence contained in the record submitted by the Government. I
make the following findings.
Findings
Respondent is the holder of DEA Certificate or Registration,
BW6030857, which authorizes him to dispense controlled substances in
schedules II through V as a practitioner. Respondent's registered
location is 388 South Main St., 56, Providence, Rhode Island;
his registration does not expire until May 31, 2010.
[[Page 8750]]
Respondent also holds both an allopathic physician's license and a
controlled substance registration as an allopathic physician which have
been issued by the Rhode Island Board of Medical Licensure and
Discipline. On January 24, 2008, Respondent entered into a consent
order with the Rhode Island Board; the order suspended Respondent's
Rhode Island licenses based on the July 30, 2007 order of the New York
Department of Health, State Board of Professional Medical Conduct,
which had revoked his New York medical license on fourteen different
grounds. The Rhode Island Board's order became effective on February
13, 2008. According to the online records of the Rhode Island Board,
the suspension remains in effect as of the date of this Decision and
Final Order. The Rhode Island Board's online records further indicate
that Respondent's state controlled substances registration is inactive,
because a prerequisite (i.e., his state medical license) is inactive. I
therefore find that Respondent is not currently authorized under Rhode
Island law to dispense controlled substances.
Discussion
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. Scott Sandarg, 74 FR 17528,
17529 (2009); 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'').
As found above, Respondent currently lacks authority to dispense
controlled substances in Rhode Island, the State in which he holds his
DEA registration. Because Respondent no longer meets the CSA's
fundamental requirement for holding a registration, see 21 U.S.C.
823(f), his registration will be revoked.
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, BW6030857, issued to Dwayne LaFrantz
Wilson, M.D., be, and it hereby is, revoked. I further order that any
pending application of Dwayne LaFrantz Wilson, M.D., to renew or modify
his registration, be, and it hereby is, denied. This Order is effective
March 29, 2010.
Dated: February 13, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-3766 Filed 2-24-10; 8:45 am]
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