83 FR 13143 - Christopher D. Owens, M.D.: Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 59 (March 27, 2018)

[Federal Register Volume 83, Number 59 (Tuesday, March 27, 2018)]
[Notices]
[Pages 13143-13145]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06089]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Christopher D. Owens, M.D.: Decision and Order

    On August 11, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration, issued an Order to 
Show Cause to Christopher D. Owens, M.D. (hereinafter, Registrant), of 
San

[[Page 13144]]

Francisco, California. GX 2. The Show Cause Order proposed the 
revocation of Registrant's DEA Certificate of Registration, and the 
denial of any applications to renew or modify his registration, or for 
any other registration, on the ground that Registrant does not ``have . 
. . state authority to handle controlled substances.'' Id. at 1.
    As to the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Registrant is registered ``as a practitioner in 
[s]chedules II through V under . . . Certificate of Registration [No.] 
FO0414677,'' at the address of ``University of California, San 
Francisco, 400 Parnassus Ave[.], #581, San Francisco, CA.'' Id. at 2. 
The Order alleged that this ``registration expires by its terms on 
December 31, 2018.'' Id.
    As to the substantive ground for the proceeding, the Show Cause 
Order alleged that ``[o]n June 22, 2017, the Medical Board of 
California issued a Default Decision and Order revoking [Registrant's] 
Physician's and Surgeon's Certificate No. A108740, effective July 21, 
2017,'' and that ``[o]n July 20, 2017, the . . . Board . . . issued an 
Order denying [his] petition for reconsideration.'' Id. The Show Cause 
Order thus alleged that Registrant is ``currently without authority to 
practice medicine or handle controlled substances in the State of 
California, the [S]tate in which [he is] registered with the'' Agency. 
Id. The Order further asserted that ``based on [his] lack of authority 
to handle controlled substances in . . . California,'' his registration 
is subject to revocation. Id. (citing 21 U.S.C. 824(a)(3); other 
citations omitted).
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement of position 
while waiving his right to a hearing, the procedure for electing either 
option, and the consequence of failing to elect either option. Id. at 
2. The Show Cause Order also notified Registrant of his right to submit 
a Corrective Action Plan pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 3.
    On August 14, 2017, the Show Cause Order was served on Registrant 
by providing it to an Assistant Federal Public Defender who was 
representing Registrant in a pending criminal matter and who stated 
that she was authorized by Registrant to accept service of the Show 
Cause Order on his behalf. GX 6. The Attorney also stated that she 
would provide a copy of the Order to Registrant and subsequently 
confirmed that she did. Id. at 1-2.
    On November 28, 2017, the Government filed a Request for Final 
Agency Action (RFAA). Therein, the Government represents that ``[a]t 
least 30 days have passed since'' the Show Cause Order ``was served on 
Registrant.'' RFAA, at 2. The Government further represents that 
``Registrant has not requested a hearing and has not otherwise 
corresponded or communicated with DEA regarding the Order . . . 
including the filing of any written statement in in lieu of a 
hearing.'' Id.
    Based on the Government's representations, I find that 30 days have 
now passed and Registrant has neither requested a hearing nor filed a 
written statement while waiving his right to a hearing. I also find 
that Registrant has not submitted a Corrective Action Plan. 
Accordingly, I find that Registrant has waived his right to a hearing 
or to submit a written statement while waiving his right to a hearing; 
I also find that Registrant has waived his right to submit a Corrective 
Action Plan. 21 CFR 1301.43(d). I make the following findings of fact.

Findings

    Registrant is the holder of DEA Certificate of Registration No. 
FO0414677, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, as a practitioner, at the 
registered address of University of California, San Francisco, 400 
Parnassus Ave., #581, San Francisco, CA. GX 1, at 1. This Registration 
does not expire until December 31, 2018. Id.
    Registrant was also the holder of Physician's and Surgeon's 
certificate No. A108740 issued by the Medical Board of California 
(hereinafter, MBC or Board). GX 3, at 1. However, on April 25, 2017, a 
state Administrative Law Judge conducted a hearing at which the ALJ 
concluded that Registrant ``is unsafe to practice medicine and issued 
an Interim Suspension Order.'' Id. at 2. The State ALJ also ordered the 
Board to file an Accusation against Registrant within 30 days of April 
26, 2017. Id. On May 16, 2017, the MBC's Executive Director filed an 
Accusation against Registrant, which alleged that ``he self-
administered illicit drugs and has been diagnosed with a substance 
abuse disorder.'' Id. at 2, 5. After Registrant failed to respond to 
the Accusation within the period provided under California law, the 
Board found Registrant in default and ordered that his medical license 
be revoked effective on July 21, 2017. Id. at 4-5. While Registrant 
filed a petition for reconsideration, on July 20, 2017, the Board 
denied the petition. GX 4. I take official notice of the results of a 
search of the Board's license verification web page. See 5 U.S.C. 
556(e). That search shows that, as of the date of this Decision, 
Registrant's Physician's and Surgeon's License remains revoked. See 
https://search.dca.ca.gov/results.

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 (CSA), ``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.'' With respect 
to a practitioner, DEA has 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 71371 (2011), pet. for rev. denied, 
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR 
27616 (1978).
    The Agency's rule derives from the text of two other provisions of 
the CSA: section 802(21), which defines the term ``practitioner,'' and 
section 823(f), which sets forth the registration requirements 
applicable to practitioners. Notably, in section 802(21), 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). The text of this provision 
makes clear that a physician is not a practitioner within the meaning 
of the CSA if he is not ``licensed, registered or otherwise permitted, 
by the jurisdiction in which he practices . . . to dispense [or] 
administer . . . a controlled substance in the course of professional 
practice.'' Id.
    To the same effect, Congress, in setting the requirements for 
obtaining a practitioner's registration, 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). Thus, based on 
these provisions, the Agency held nearly forty years ago that ``[s]tate 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled

[[Page 13145]]

substances registration.'' Blanton, 43 FR at 27617 (revoking 
physician's registration based on one-year suspension of his state 
license) (emphasis added).
    Based on my finding that Registrant's Physician's and Surgeon's 
Certificate has been revoked, I find that Registrant is currently 
without authority to dispense controlled substances under the laws of 
California, the State in which he is registered. See Cal. Health & 
Safety Code Sec.  11150 (``No person other than a physician, dentist, 
podiatrist, or veterinarian . . . shall write or issue a prescription'' 
for a controlled substance.); id. Sec.  11210 (``A physician, surgeon, 
dentist, [or] veterinarian . . . may prescribe for, furnish to, or 
administer controlled substances to his or her patient when the patient 
is suffering from a disease, ailment, injury . . . .''); id. Sec.  
11024 (`` `Physician,' `dentist,' `podiatrist,' . . . means persons who 
are licensed to practice their respective professions in this 
state.''); id. Sec.  11352.1(b) (``any person who knowingly and 
unlawfully dispenses or furnishes a dangerous drug . . . without a 
license to dispense or furnish these products, shall be guilty of a 
misdemeanor'').\1\ I will therefore order that his registration be 
revoked and that any pending application to renew or modify his 
registration, or for any other registration in California, be denied.
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    \1\ See also Cal. Bus. & Prof. Code Sec.  2052 (``any person . . 
. who diagnoses, treats, operates for or prescribes for any ailment, 
. . . disease, . . . disorder, injury, or other physical or mental 
condition of any person, without having at the time of so doing a 
valid, unrevoked, or unsuspended certificate as provided in this 
chapter . . . is guilty of a public offense''); id. Sec.  2051 
(``The physician's and surgeon's certificate authorizes the holder 
to use drugs or devices in or upon human beings . . . in the 
treatment of diseases, injuries, deformities, and other physical and 
mental conditions).
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 
CFR 0.100(b), I order that DEA Certificate of Registration No. 
FO0414677 issued to Christopher D. Owens, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), I 
order that any pending application to renew or modify this 
registration, or for any other registration in the State of California, 
be, and it hereby is, denied. This Order is effective immediately.\2\
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    \2\ For the same reasons which led the MBC to issue the Interim 
Suspension Order, I find that the public interest necessitates that 
this Order be effective immediately. 21 CFR 1316.67.

    Dated: March 14, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-06089 Filed 3-26-18; 8:45 am]
 BILLING CODE 4410-09-P