81 FR 17738 - Avi Weisfogel, D.D.S.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 81, Issue 61 (March 30, 2016)

Page Range		17738-17739
FR Document		2016-07111
Federal Register, Volume 81 Issue 61 (Wednesday, March 30, 2016)
[Federal Register Volume 81, Number 61 (Wednesday, March 30, 2016)]
[Notices]
[Pages 17738-17739]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-07111]



[[Page 17738]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Avi Weisfogel, D.D.S.; Decision and Order

    On November 2, 2015, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Avi Weisfogel, D.D.S. (Registrant), of Old 
Bridge, New Jersey. GX 1, at 1. The Show Cause Order proposed the 
revocation of Registrant's Certificate of Registration BW6474580, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II through V as a practitioner, the denial of any application 
to renew or modify the registration, and the denial of any application 
for any other DEA registration, on the ground that he ``do[es] not have 
authority to handle controlled substances in New Jersey, the [S]tate in 
which he is registered with the'' Agency. Id. (citing 21 U.S.C. 823(f) 
and 824(a)(3)).
    More specifically, the Show Cause Order alleged that Registrant 
entered into a consent order with the New Jersey State Board of 
Dentistry (Board), pursuant to which the Board revoked his license to 
practice dentistry effective November 13, 2014. Id. The Show Cause 
Order thus alleged that Registrant is ``without authority to handle 
controlled substances in New Jersey, the State in which [he is] 
registered.'' Id. The Order thus advised Registrant that his 
registration was subject to revocation ``based upon [his] lack of 
authority to handle controlled substances in the State of New Jersey.'' 
Id. (citing 21 U.S.C. 802(21), 823(f) and 824(a)(3)).\1\
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    \1\ The Show Cause Order also notified Registrant of his right 
to request a hearing on the allegations or to submit a written 
statement in lieu of a hearing, the procedure for electing either 
option, and the consequence for failing to elect either option. GX 
1, at 2 (citing 21 CFR 1301.43).
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    Having determined that Registrant was no longer practicing at his 
registered location, a Diversion Investigator obtained his residence 
address and initially attempted to serve the Show Cause Order on him by 
Certified Mail, Return Receipt Requested, which was addressed to him at 
his residence. GX 6, at 1-2 (Declaration of DI). However, the mailing 
was returned unclaimed. GX 3, at 1. Subsequently, on December 4, 2015, 
the DI mailed the Show Cause Order to Registrant's residence by regular 
first class mail. GX 6, at 2. The DI averred that the Order was not 
returned as undeliverable. Id.
    In its Request for Final Agency Action, the Government advises that 
neither Registrant, nor anyone representing him, has requested a 
hearing or sent any other correspondence to DEA. Request for Final 
Agency Action, at 6. Accordingly, the Government filed its Request for 
Final Agency Action seeking the revocation of Registrant's Registration 
along with the Investigative Record to support is Request. See 21 CFR 
1301.43(d) & (e).
    Based on the Government's submission, I conclude that Registrant 
has received constitutionally adequate notice of the proceeding. See 
Jones v. Flowers, 547 U.S. 220 (2006). I find that since the date of 
service of the Order to Show Cause, 30 days have now passed, and 
neither Registrant, nor anyone purporting to represent him, has either 
requested a hearing on the allegations or submitted a written statement 
in lieu of a hearing. See 21 CFR 1301.43(a) & (c). Accordingly, I find 
that Registrant has waived his right to a hearing or to submit a 
written statement. Id. Sec.  1301.43(c) & (d). I therefore issue this 
Decision and Final Order based on the Investigative Record submitted by 
the Government. Id. Sec.  1301.43(e). I make the following findings of 
fact.

Findings

    Registrant is the holder of DEA Certificate of Registration 
BW6474580, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, at the registered address of 30 
State Highway 18, Old Bridge, NJ. GX 2. The registration does not 
expire until May 31, 2017. Id.
    Registrant previously held a dental license issued by the New 
Jersey State Board of Dentistry. GX 5, at 1. Registrant also previously 
held a New Jersey Controlled Dangerous Substance Registration (CDS). 
However, on November 13, 2014, Registrant entered into a Consent Order 
with the Board of Dentistry in which he agreed that his dental license 
``is hereby permanently retired [and this] is to be deemed a revocation 
of licensure.'' GX 5, at 2. As for his New Jersey CDS Registration, it 
became inactive on the same date that Registrant entered into the 
Consent Order with the Board and has since expired. According to the 
online records of the State of New Jersey, as of the date of this 
Order, Registrant's New Jersey Dentist license remains revoked. See 
also https://newjersey.mylicense.com/verification.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823, ``upon a 
finding that the Registrant . . . has had his State license . . . 
suspended [or] revoked . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Moreover, DEA has repeatedly held that the 
possession of authority to dispense controlled substances under the 
laws of the State in which a practitioner engages in professional 
practice is a fundamental condition for obtaining and maintaining a 
practitioner's registration. James L. Hooper, 76 FR 71371 (2011), pet. 
for rev. denied, Hooper v. Holder, 481 Fed. Appx. 826 (4th Cir. 2012).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . or other person 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices his profession. See, e.g., 
Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988).
    Because Registrant no longer holds authority to dispense controlled 
substances in New Jersey, the State in which he is registered with the 
Agency, I will order that his registration be revoked and that any 
pending application to renew or modify his registration be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 21 CFR 0.100(b), I order that DEA Certificate of 
Registration BW6474580, issued to Avi Weisfogel, D.D.S., be, and it 
hereby is, revoked. I further order that any pending application of Avi 
Weisfogel, D.D.S, to renew or modify his

[[Page 17739]]

registration, be, and it hereby is, denied. This Order is effective 
April 29, 2016.

    Dated: March 21, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-07111 Filed 3-29-16; 8:45 am]
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17738 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Notices

DEPARTMENT OF JUSTICE neither Registrant, nor anyone the Registrant . . . has had his State
representing him, has requested a license . . . suspended [or] revoked
Drug Enforcement Administration hearing or sent any other . . . by competent State authority and is
correspondence to DEA. Request for no longer authorized by State law to
Avi Weisfogel, D.D.S.; Decision and Final Agency Action, at 6. Accordingly, engage in the . . . dispensing of
Order the Government filed its Request for controlled substances.’’ Moreover, DEA
On November 2, 2015, the Deputy Final Agency Action seeking the has repeatedly held that the possession
Assistant Administrator, Office of revocation of Registrant’s Registration of authority to dispense controlled
Diversion Control, Drug Enforcement along with the Investigative Record to substances under the laws of the State
Administration (DEA), issued an Order support is Request. See 21 CFR in which a practitioner engages in
to Show Cause to Avi Weisfogel, D.D.S. 1301.43(d) & (e). professional practice is a fundamental
(Registrant), of Old Bridge, New Jersey. Based on the Government’s condition for obtaining and maintaining
GX 1, at 1. The Show Cause Order submission, I conclude that Registrant a practitioner’s registration. James L.
proposed the revocation of Registrant’s has received constitutionally adequate Hooper, 76 FR 71371 (2011), pet. for rev.
Certificate of Registration BW6474580, notice of the proceeding. See Jones v. denied, Hooper v. Holder, 481 Fed.
pursuant to which he is authorized to Flowers, 547 U.S. 220 (2006). I find that Appx. 826 (4th Cir. 2012).
dispense controlled substances in since the date of service of the Order to This rule derives from the text of two
schedules II through V as a practitioner, Show Cause, 30 days have now passed, provisions of the CSA. First, Congress
the denial of any application to renew and neither Registrant, nor anyone defined ‘‘the term ‘practitioner’ [to]
or modify the registration, and the purporting to represent him, has either mean[ ] a . . . physician . . . or other
denial of any application for any other requested a hearing on the allegations or person licensed, registered or otherwise
DEA registration, on the ground that he submitted a written statement in lieu of permitted, by . . . the jurisdiction in
‘‘do[es] not have authority to handle a hearing. See 21 CFR 1301.43(a) & (c). which he practices . . . to distribute,
controlled substances in New Jersey, the Accordingly, I find that Registrant has dispense, [or] administer . . . a
[S]tate in which he is registered with waived his right to a hearing or to controlled substance in the course of
the’’ Agency. Id. (citing 21 U.S.C. 823(f) submit a written statement. Id. professional practice.’’ 21 U.S.C.
and 824(a)(3)). § 1301.43(c) & (d). I therefore issue this 802(21). Second, in setting the
More specifically, the Show Cause Decision and Final Order based on the requirements for obtaining a
Order alleged that Registrant entered Investigative Record submitted by the practitioner’s registration, Congress
into a consent order with the New Jersey Government. Id. § 1301.43(e). I make the directed that ‘‘[t]he Attorney General
State Board of Dentistry (Board), following findings of fact. shall register practitioners . . . if the
pursuant to which the Board revoked Findings applicant is authorized to dispense . . .
his license to practice dentistry effective controlled substances under the laws of
November 13, 2014. Id. The Show Cause Registrant is the holder of DEA
Certificate of Registration BW6474580, the State in which he practices.’’ 21
Order thus alleged that Registrant is U.S.C. 823(f). Because Congress has
‘‘without authority to handle controlled pursuant to which he is authorized to
dispense controlled substances in clearly mandated that a practitioner
substances in New Jersey, the State in possess state authority in order to be
which [he is] registered.’’ Id. The Order schedules II through V, at the registered
address of 30 State Highway 18, Old deemed a practitioner under the Act,
thus advised Registrant that his DEA has held repeatedly that revocation
registration was subject to revocation Bridge, NJ. GX 2. The registration does
not expire until May 31, 2017. Id. of a practitioner’s registration is the
‘‘based upon [his] lack of authority to appropriate sanction whenever he is no
handle controlled substances in the Registrant previously held a dental
license issued by the New Jersey State longer authorized to dispense controlled
State of New Jersey.’’ Id. (citing 21 substances under the laws of the State
U.S.C. 802(21), 823(f) and 824(a)(3)).1 Board of Dentistry. GX 5, at 1. Registrant
also previously held a New Jersey in which he practices his profession.
Having determined that Registrant See, e.g., Calvin Ramsey, 76 FR 20034,
was no longer practicing at his Controlled Dangerous Substance
Registration (CDS). However, on 20036 (2011); Sheran Arden Yeates,
registered location, a Diversion
November 13, 2014, Registrant entered M.D., 71 FR 39130, 39131 (2006);
Investigator obtained his residence
into a Consent Order with the Board of Dominick A. Ricci, 58 FR 51104, 51105
address and initially attempted to serve
Dentistry in which he agreed that his (1993); Bobby Watts, 53 FR 11919,
the Show Cause Order on him by
dental license ‘‘is hereby permanently 11920 (1988).
Certified Mail, Return Receipt
Requested, which was addressed to him retired [and this] is to be deemed a Because Registrant no longer holds
at his residence. GX 6, at 1–2 revocation of licensure.’’ GX 5, at 2. As authority to dispense controlled
(Declaration of DI). However, the for his New Jersey CDS Registration, it substances in New Jersey, the State in
mailing was returned unclaimed. GX 3, became inactive on the same date that which he is registered with the Agency,
at 1. Subsequently, on December 4, Registrant entered into the Consent I will order that his registration be
2015, the DI mailed the Show Cause Order with the Board and has since revoked and that any pending
Order to Registrant’s residence by expired. According to the online records application to renew or modify his
regular first class mail. GX 6, at 2. The of the State of New Jersey, as of the date registration be denied.
DI averred that the Order was not of this Order, Registrant’s New Jersey Order
asabaliauskas on DSK3SPTVN1PROD with NOTICES

returned as undeliverable. Id. Dentist license remains revoked. See
In its Request for Final Agency also https://newjersey.mylicense.com/ Pursuant to the authority vested in me
Action, the Government advises that verification. by 21 U.S.C. 823(f) and 824(a), as well
as 21 CFR 0.100(b), I order that DEA
1 The Show Cause Order also notified Registrant
Discussion Certificate of Registration BW6474580,
of his right to request a hearing on the allegations Pursuant to 21 U.S.C. 824(a)(3), the issued to Avi Weisfogel, D.D.S., be, and
or to submit a written statement in lieu of a hearing, Attorney General is authorized to it hereby is, revoked. I further order that
the procedure for electing either option, and the
consequence for failing to elect either option. GX suspend or revoke a registration issued any pending application of Avi
1, at 2 (citing 21 CFR 1301.43). under section 823, ‘‘upon a finding that Weisfogel, D.D.S, to renew or modify his

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Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Notices 17739

registration, be, and it hereby is, denied. under the Clinger-Cohen Act, 40 U.S.C. Dated: March 23, 2016.
This Order is effective April 29, 2016. Subtitle III. Patrice Little Murray,
Dated: March 21, 2016. Committee Management Officer.
Tony Scott,
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Document Created: 2016-03-30 09:28:18
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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		81 FR 17738
81 FR 17738 - Avi Weisfogel, D.D.S.; Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 81, Issue 61 (March 30, 2016)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
