82 FR 37611 - Luis C B Gomez, D.D.S. Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 154 (August 11, 2017)

[Federal Register Volume 82, Number 154 (Friday, August 11, 2017)]
[Notices]
[Pages 37611-37612]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-17011]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Luis C B Gomez, D.D.S. Decision and Order

    On May 5, 2017, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Luis C B Gomez, D.D.S. 
(hereinafter, Registrant), the holder of Certificate of Registration 
No. AG1976971 in Chula Vista, California, pursuant to which he is 
authorized to prescribe controlled substances in Schedules II through 
IV.\1\ GX 1 (Certification of Registration Status dated May 17, 2017). 
The Show Cause Order proposed the revocation of Registrant's 
Certificate of Registration and the denial of any pending application 
for renewal or modification of Registrant's registration on the ground 
that Registrant does not have authority to dispense controlled 
substances in California, the State in which he is registered. GX 3, at 
1 (citing 21 U.S.C. 824(a)(3)).
---------------------------------------------------------------------------

    \1\ The Order to Show Cause stated that Registrant was 
authorized to prescribe controlled substances in Schedule V.
---------------------------------------------------------------------------

    As the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Registrant's registration expires on September 30, 
2017. Id.
    As the substantive grounds for the proceeding, the Show Cause Order 
alleged that Registrant currently lacks authority to ``handle 
controlled substances in California,'' voluntarily surrendered his 
California dental license ``on approximately September 8, 2016,'' and 
subsequently ``signed a Stipulated Surrender of License and Order 
before the Dental Board of California'' on November 7, 2016.\2\ Id. at 
2. The Government asserted that Registrant's ``lack of authority to 
handle controlled substances in the State of California constitutes 
grounds to revoke . . . [his] registration.'' Id.
---------------------------------------------------------------------------

    \2\ The Government submitted the Stipulated Surrender of License 
and Order before the Dental Board of California (hereinafter, DBC), 
the Accusation dated May 2, 2012, the Decision and Order of the DBC 
dated October 4, 2013, and the DBC Stipulated Settlement and 
Disciplinary Order dated July 31, 2013 with its Request for Final 
Agency Action (hereinafter, RFAA). GX 4 (Appendices).
---------------------------------------------------------------------------

    Citing 21 CFR 1301.43, the Show Cause Order notified Registrant of 
his right to request a hearing on the allegation or to submit a written 
statement while waiving his right to a hearing, the procedure for 
electing each option, and the consequence for failing to elect either 
option. Id. at 2. Citing 21 U.S.C. 824(c)(2)(C), it notified Registrant 
of the opportunity to submit a corrective action plan. Id. at 3.
    The lead DEA Diversion Investigator (hereinafter, DI) assigned to 
Registrant's matter executed a Declaration in which she stated that, on 
May 5, 2017, she personally served Registrant with a copy of the Order 
to Show Cause at his residence. GX 4, at 1. I find that the 
Government's service of the Show Cause Order on Registrant was legally 
sufficient.
    The Government submitted a Request for Final Agency Action dated 
June 6, 2017 and an evidentiary record to support the Show Cause 
Order's allegations. In the RFAA, the Government represented that, 
``Thirty days passed from the date of service and Respondent requested 
no hearing on the OTSC, nor has he filed a written statement in lieu of 
requesting a hearing.'' RFAA, at 1.
    Based on the Government's representations and my review of the 
record, I find that more than 30 days have now passed since the date on 
which Registrant was served with the Show Cause Order and neither 
Registrant, nor anyone purporting to represent him, has requested a 
hearing or submitted a written statement while waiving his right to a 
hearing. Accordingly, I find that Registrant has waived his right to a 
hearing and his right to submit a written statement. 21 CFR 1301.43(d). 
I therefore issue this Decision and Order based on the record submitted 
by the Government. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant currently holds DEA practitioner registration AG1976971 
authorizing him to dispense controlled substances in Schedules II 
through IV. GX 1, GX 2. This registration expires on September 30, 
2017. Id.
    DEA practitioner registration AG1976971 is assigned to Registrant 
at ``232 Third Avenue, Ste A, 232 3rd Ave., Chula Vista, CA 91910.'' 
Id.

The Status of Registrant's State License

    On November 15, 2016, the Dental Board of California ordered that 
Dental License No. 24551 was surrendered and accepted by the DBC. GX 4, 
Appendix A (Stipulated Surrender of License and Order). Pursuant to 
that Order, Registrant has lost ``all rights and privileges as a 
dentist in California.'' Id. at 2.

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 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license . . . suspended, revoked, or 
denied by competent State authority and is no longer authorized by 
State law to engage

[[Page 37612]]

in the . . . dispensing of controlled substances.'' With respect to a 
practitioner, the DEA has also long 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. See, e.g., James L. Hooper, 76 FR 71,371 (2011), pet. for 
rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh 
Blanton, 43 FR 27,616 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term `` `practitioner' [to] mean[ ] a . . . 
physician, dentist, . . . 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 CSA, the 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. See, e.g., Hooper, 76 FR at 71,371-72; Sheran Arden Yeates, 
71 FR 39,130, 39,131 (2006); Dominick A. Ricci, 58 FR 51,104, 51,105 
(1993); Bobby Watts, 53 FR 11,919, 11,920 (1988); Blanton, 43 FR at 
27,616.
    Under California law, section 1626 of the Business and Professions 
Code provides that ``[i]t is unlawful for any person to engage in the 
practice of dentistry in the state . . . unless the person has a valid, 
unexpired license or special permit from the Board.'' Cal. Bus. & Prof. 
Code Sec.  1626 (2017).\3\ Further, section 11210 of the California 
Health and Safety Code sets out who may lawfully prescribe controlled 
substances in California other than for the treatment of addicts. 
California licensed dentists are among those lawful prescribers.\4\ See 
Cal. Bus. & Prof. Code Sec.  11024 (2017).
---------------------------------------------------------------------------

    \3\ Dentistry and the practice of dentistry are addressed in 
Cal. Bus & Prof. Code Sec.  1625 which states, among other things, 
that dentistry is the diagnosis or treatment of diseases and may 
include the use of ``drugs.''
    \4\ A physician, surgeon, dentist, veterinarian, naturopathic 
doctor . . ., podiatrist, or pharmacist . . ., or registered nurse . 
. ., or physician assistant . . ., or an optometrist . . . may 
prescribe for, furnish to, or administer controlled substances to 
his or her patient when the patient is suffering from a disease, 
ailment, injury, or infirmities attendant upon old age, other than 
addiction to a controlled substance. Cal. Health & Safety Code Sec.  
11210 (2017).
---------------------------------------------------------------------------

    In this case, pursuant to the DBC Stipulated Surrender of License 
and Order, Registrant has lost all rights and privileges as a dentist 
in California. Supra. Consequently, under California law, Registrant is 
not currently authorized to handle controlled substances in that State. 
Supra. I, therefore, conclude that the record supports the revocation 
of Registrant's registration because he does not possess authority to 
dispense controlled substances under the laws of California, the State 
in which he is registered. 21 U.S.C. 824(a)(3). Thus, I find that 
Registrant is not entitled to maintain his DEA registration. Blanton, 
supra. Accordingly, I will order that his registration be revoked and 
that any pending application for the renewal or modification of his 
registration be denied. Id.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
AG1976971 issued to Luis C B Gomez, D.D.S., be, and it hereby is, 
revoked. I further order that any pending application of Luis C B 
Gomez, D.D.S., to renew or modify this registration, as well as any 
other pending application by him for registration in the State of 
California, be, and it hereby is, denied. This order is effective 
September 11, 2017.

    Dated: August 2, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-17011 Filed 8-10-17; 8:45 am]
 BILLING CODE 4410-09-P