83 FR 34877 - Decision and Order: Kenneth C. Beal, Jr., D.D.S.

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 141 (July 23, 2018)

Page Range		34877-34878
FR Document		2018-15743

Federal Register, Volume 83 Issue 141 (Monday, July 23, 2018)

[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Notices]
[Pages 34877-34878]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-15743]

[[Page 34877]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Decision and Order: Kenneth C. Beal, Jr., D.D.S.

On December 22, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Kenneth C. Beal, Jr.,
D.D.S. (hereinafter, Registrant), of Tutwiler, Mississippi.\1\ Order to
Show Cause (hereinafter, OSC), at 1. The Show Cause Order proposes the
revocation of Registrant's Certificate of Registration on the ground
that he has ``no state authority to handle controlled substances.'' Id.
(citing 21 U.S.C. 824(a)(3)).
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\1\ The Show Cause Order also lists a Post Office Box in Itta
Bena, Mississippi in reference to Registrant's location.
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Regarding jurisdiction, the Show Cause Order alleges that
Registrant holds DEA Certificate of Registration No. FB0508993 at the
registered address of Tallahachie Cty. Correc. Fac. Den. Clin., 415
U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. OSC, at 1. This
registration authorizes Registrant to dispense controlled substances in
schedules II through V as a practitioner. Id. The Show Cause Order
alleges that this registration expires on July 31, 2019. Id.
The substantive ground for the proceeding, as alleged in the Show
Cause Order, is that Registrant is ``currently without authority to
practice dentistry or handle controlled substances in the State of
Mississippi, the state in which . . . [he is] registered with the
DEA.'' Id. at 2. Specifically, the Show Cause Order alleges that the
Mississippi State Board of Dental Examiners revoked Registrant's
``license to practice dentistry'' on August 16, 2017. Id.
The Show Cause Order notifies Registrant of his right to request a
hearing on the allegations or to submit a written statement while
waiving his right to a hearing, the procedures for electing each
option, and the consequences for failing to elect either option. Id. at
2 (citing 21 CFR 1301.43). The Show Cause Order also notifies
Registrant of the opportunity to submit a corrective action plan. OSC,
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

In a Declaration dated March 22, 2018, a Diversion Investigator
(hereinafter, DI), who describes himself as being assigned to the New
Orleans Field Division, states that he and another DI ``travelled to
the residence of Registrant . . . to personally serve the . . . [OSC on
him].'' Government Exhibit (hereinafter, GX) 4 (DI Declaration), at 1.
The DI also states that, ``At approximately 11:30 a.m. on January 4,
2018, I personally served Registrant with the [OSC].'' Id.
In its Request for Final Agency Action dated March 27, 2018, the
Government represents that ``[a]t least 30 days have passed since the
time the . . . [OSC] was served on Registrant . . . [and] Registrant
has not requested a hearing and has not otherwise corresponded or
communicated with DEA regarding the . . . [OSC] served on him,
including the filing of any written statement in lieu of a hearing.''
Request for Final Agency Action (hereinafter, RFAA), at 1. The
Government requests the issuance of ``a Final Order revoking
Registrant's DEA registration.'' Id. at 3.
Based on the DI's Declaration, the Government's written
representations, and my review of the record, I find that the
Government served the OSC on Registrant on January 4, 2018. I also find
that more than 30 days have now passed since the date the Government
served the OSC. Further, based on the Government's written
representations, I find that neither Registrant, nor anyone purporting
to represent him, requested a hearing, submitted a written statement
while waiving Registrant's right to a hearing, or submitted a
corrective action plan. Accordingly, I find that Registrant has waived
his right to a hearing and his right to submit a written statement and
corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C).
I, therefore, issue this Decision and Order based on the record
submitted by the Government, which constitutes the entire record before
me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

Registrant is the holder of DEA Certificate of Registration No.
FB0508993 at the registered address of Tallahachie Cty. Correc. Fac.
Den. Clin., 415 U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. GX 1
(Certification of Registration History), at 1. Pursuant to this
registration, Registrant is authorized to dispense controlled
substances in schedules II through V as a practitioner. Id.
Registrant's registration expires on July 31, 2019. Id.

The Status of Registrant's State License

On August 16, 2017, the Mississippi State Board of Dental Examiners
revoked Registrant's license to practice dentistry, Dental License No.
2459-89. RFAA, at 2; GX 3 (Mississippi State Board of Dental Examiners
certified letter to Registrant dated August 16, 2017), at 2; GX 5
(Mississippi State Board of Dental Examiners website screen print), at
1.
According to Mississippi's online records, of which I take official
notice, Registrant's license to practice dentistry is still revoked.\2\
Mississippi State Board of Dental Examiners website, http://www.dentalboard.ms.gov (last visited July 9, 2018). Mississippi's
online records show no State controlled substance registration issued
to Registrant. Id.
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\2\ Under the Administrative Procedure Act, an agency ``may take
official notice of facts at any stage in a proceeding--even in the
final decision.'' United States Department of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the
contrary.'' Accordingly, Registrant may dispute my finding by filing
a properly supported motion for reconsideration within 20 calendar
days of the date of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be served on the
Government. In the event Registrant files a motion, the Government
shall have 20 calendar days to file a response.
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Accordingly, I find that Registrant currently is neither licensed
to engage in the practice of dentistry nor registered to dispense
controlled substances in Mississippi, the State in which he is
registered with the DEA.

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 or registration 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, 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,
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617
(1978).
This rule derives from the text of two provisions of the CSA.
First, Congress

[[Page 34878]]

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 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, supra, 76
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby
Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at
27,617.
According to Mississippi statute, ``Every person who desires to
practice dentistry . . . in this state must obtain a license to do
so.'' Miss. Code Ann. Sec. 73-9-1 (West, Westlaw current with laws
from the 2018 Regular Session). Further, ``[e]very person who . . .
dispenses any controlled substance within this state . . . must obtain
a registration issued by . . . the State Board of Dental Examiners . .
. in accordance with its rules and the law of this state.'' Miss. Code
Ann. Sec. 41-29-125(1)(a) (West, Westlaw current with laws from the
2018 Regular Session).\3\ See also Miss. Code Ann. Sec. 73-9-53 (West,
Westlaw current with laws from the 2018 Regular Session) (authorizing
Mississippi pharmacists to fill prescriptions only of ``legally
licensed and registered dentists of this state for any drugs to be used
in the practice of dentistry'') and Miss. Admin. Code 30-2301:1.35(1)
(West, current through the Mississippi Administrative Rules Listing of
Filings, dated May 2018) (legally licensed and registered dentists may
write prescriptions for any drugs to be used in the practice of
dentistry).
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\3\ ``Dispensing'' a controlled substance includes
``prescribing'' and ``administering'' it. Miss. Code Ann. Sec. 41-
29-105(j) (West, Westlaw current with laws from the 2018 Regular
Session).
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Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice dentistry and handle controlled
substances in Mississippi. As already discussed, only a legally
licensed and registered dentist may dispense a controlled substance or
any drug to be used in the practice of dentistry in Mississippi. Thus,
since Registrant lacks authority to practice dentistry in Mississippi,
and is not registered in Mississippi to handle controlled substances, I
will order that Registrant's DEA registration be revoked.

Order

Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by
21 U.S.C. 824(a), I order that DEA Certificate of Registration No.
FB0508993 issued to Kenneth C. Beal, Jr., D.D.S., be, and it hereby is,
revoked. This Order is effective August 22, 2018.

Dated: July 9, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-15743 Filed 7-20-18; 8:45 am]
BILLING CODE 4410-09-P

34878 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Notices

defined the term ‘‘practitioner’’ to mean state for any drugs to be used in the comments on or objections to the
‘‘a physician . . . or other person practice of dentistry’’) and Miss. Admin. issuance of the proposed registration on
licensed, registered, or otherwise Code 30–2301:1.35(1) (West, current or before August 22, 2018. Such persons
permitted, by . . . the jurisdiction in through the Mississippi Administrative may also file a written request for a
which he practices . . . , to distribute, Rules Listing of Filings, dated May hearing on the application on or before
dispense, . . . [or] administer . . . a 2018) (legally licensed and registered August 22, 2018.
controlled substance in the course of dentists may write prescriptions for any ADDRESSES: Written comments should
professional practice.’’ 21 U.S.C. drugs to be used in the practice of be sent to: Drug Enforcement
802(21). Second, in setting the dentistry). Administration, Attention: DEA Federal
requirements for obtaining a Here, the undisputed evidence in the Register Representative/DRW, 8701
practitioner’s registration, Congress record is that Registrant currently lacks Morrissette Drive, Springfield, Virginia
directed that ‘‘[t]he Attorney General authority to practice dentistry and 22152. All requests for hearing must be
shall register practitioners . . . if the handle controlled substances in sent to: Drug Enforcement
applicant is authorized to dispense . . . Mississippi. As already discussed, only Administration, Attn: Administrator,
controlled substances under the laws of a legally licensed and registered dentist 8701 Morrissette Drive, Springfield,
the State in which he practices.’’ 21 may dispense a controlled substance or Virginia 22152. All request for hearing
U.S.C. 823(f). Because Congress has any drug to be used in the practice of should also be sent to: (1) Drug
clearly mandated that a practitioner dentistry in Mississippi. Thus, since Enforcement Administration, Attn:
possess State authority in order to be Registrant lacks authority to practice Hearing Clerk/LJ, 8701 Morrissette
deemed a practitioner under the CSA, dentistry in Mississippi, and is not Drive, Springfield, Virginia 22152; and
the DEA has held repeatedly that registered in Mississippi to handle (2) Drug Enforcement Administration,
revocation of a practitioner’s registration controlled substances, I will order that Attn: DEA Federal Register
is the appropriate sanction whenever he Registrant’s DEA registration be Representative/DRW, 8701 Morrissette
is no longer authorized to dispense revoked. Drive, Springfield, Virginia 22152.
controlled substances under the laws of
Order SUPPLEMENTARY INFORMATION:
the State in which he practices. See,
e.g., Hooper, supra, 76 FR at 71,371–72; Pursuant to 28 CFR 0.100(b) and the The Attorney General has delegated
Sheran Arden Yeates, M.D., 71 FR authority thus vested in me by 21 U.S.C. his authority under the Controlled
39,130, 39,131 (2006); Dominick A. 824(a), I order that DEA Certificate of Substances Act to the Administrator of
Ricci, M.D., 58 FR 51,104, 51,105 (1993); Registration No. FB0508993 issued to the Drug Enforcement Administration
Bobby Watts, M.D., 53 FR 11,919, 11,920 Kenneth C. Beal, Jr., D.D.S., be, and it (DEA), 28 CFR 0.100(b). Authority to
(1988); Blanton, supra, 43 FR at 27,617. hereby is, revoked. This Order is exercise all necessary functions with
According to Mississippi statute, effective August 22, 2018. respect to the promulgation and
‘‘Every person who desires to practice Dated: July 9, 2018. implementation of 21 CFR part 1301,
dentistry . . . in this state must obtain Uttam Dhillon, incident to the registration of
a license to do so.’’ Miss. Code Ann. Acting Administrator. manufacturers, distributors, dispensers,
§ 73–9–1 (West, Westlaw current with importers, and exporters of controlled
[FR Doc. 2018–15743 Filed 7–20–18; 8:45 am]
laws from the 2018 Regular Session). substances (other than final orders in
BILLING CODE 4410–09–P
Further, ‘‘[e]very person who . . . connection with suspension, denial, or
dispenses any controlled substance revocation of registration) has been
within this state . . . must obtain a DEPARTMENT OF JUSTICE redelegated to the Assistant
registration issued by . . . the State Administrator of the DEA Diversion
Board of Dental Examiners . . . in Drug Enforcement Administration Control Division (‘‘Assistant
accordance with its rules and the law of Administrator’’) pursuant to section 7 of
[Docket No. DEA–392] 28 CFR part 0, appendix to subpart R.
this state.’’ Miss. Code Ann. § 41–29–
125(1)(a) (West, Westlaw current with Importer of Controlled Substances In accordance with 21 CFR
laws from the 2018 Regular Application: Fresenius Kabi USA, LLC 1301.34(a), this is notice that on June
Session).3 See also Miss. Code Ann. 21, 2018, Fresenius Kabi USA, LLC,
§ 73–9–53 (West, Westlaw current with ACTION: Notice of application. 3159 Staley Road, Grand Island, New
laws from the 2018 Regular Session) York 14072–2028 applied to be
(authorizing Mississippi pharmacists to DATES: Registered bulk manufacturers of registered as an importer of the
fill prescriptions only of ‘‘legally the affected basic classes, and following basic class of controlled
licensed and registered dentists of this applicants therefore, may file written substance:

Controlled substance Drug code Schedule

Remifentanil ............................................................................................................................................................. 9739 II
amozie on DSK3GDR082PROD with NOTICES1

3 ‘‘Dispensing’’ a controlled substance includes Ann. § 41–29–105(j) (West, Westlaw current with
‘‘prescribing’’ and ‘‘administering’’ it. Miss. Code laws from the 2018 Regular Session).

VerDate Sep<11>2014 17:59 Jul 20, 2018 Jkt 244001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\23JYN1.SGM 23JYN1

Document Created: 2018-07-21 00:48:39
Document Modified: 2018-07-21 00:48:39

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		83 FR 34877

83 FR 34877 - Decision and Order: Kenneth C. Beal, Jr., D.D.S.

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 83, Issue 141 (July 23, 2018)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration