83 FR 58599 - Edward A. Ridgill, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 224 (November 20, 2018)

[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Notices]
[Pages 58599-58601]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-25224]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Edward A. Ridgill, M.D.; Decision and Order

    On May 15, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (DEA), issued an Order to 
Show Cause to Edward A. Ridgill, M.D., (Applicant), of Whittier, 
California. The Show Cause Order proposed the denial of Applicant's 
application for a DEA Certificate of Registration, ``Application Number 
W15031876C,'' as a practitioner on the grounds that Applicant ``ha[s] 
been convicted of a felony relating to controlled substances'' and 
because granting Respondent a ``registration would be inconsistent with 
the public interest.'' Appendix (App.) 1 to Government's Request for 
Final Agency Action (RFAA), at 1 (citing 21 U.S.C. 823(f), 824(a)(2), 
(a)(4)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that on May 4, 2015, Applicant submitted an application for a 
DEA registration ``to handle controlled substances in Schedules II-IV, 
with Application Number W15031876C, at 4130 Eadhill Place, Whittier, 
CA.'' Id. at 2.\1\
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    \1\ The Show Cause Order also alleged that Applicant was 
previously ``registered with the DEA as a practitioner authorized to 
handle controlled substances in Schedules II-V'' under DEA 
Certificate of Registration No. FR3094997 at 3625 E. Martin Luther 
King Boulevard, Suite 9, Lynwood, California. Id. at 1. The Order 
alleged that Applicant ``voluntarily surrendered'' this registration 
on March 12, 2015 ``during [his] arrest for conspiracy to distribute 
controlled substances.'' Id.
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    As to the substantive grounds for the proceeding, the Show Cause 
Order alleged that ``[o]n or about December 4, 2017, a jury convicted'' 
Applicant of 26 counts of unlawful distribution of controlled 
substances (specifically, hydrocodone, alprazolam, and carisoprodol) in 
violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2 and that the 
``[j]udgment was entered on April 23, 2018.'' Id. The Order asserted 
that Respondent's ``[c]onviction of a felony relating to controlled 
substances warrants denial of [his] application for registration.'' Id. 
(citing 21 U.S.C. 824(a)(2)). The Order also asserted that granting 
Respondent's application would be ``inconsistent with the public 
interest'' in light of his felony convictions. Id. (citing 21 U.S.C. 
823(f), 824(a)(4)).
    The Show Cause Order notified Applicant of (1) his right to request 
a hearing on the allegations or to submit a written statement in lieu 
of a hearing, (2) the procedure for electing either option, and (3) the 
consequence for failing to elect either option. Id. at 2-3. (citing 21 
CFR 1301.43). The Order also notified Applicant of his right to submit 
a corrective action plan. Id. at 3-4 (citing 21 U.S.C. 824(c)(2)(C)).
    With respect to service, a Diversion Investigator (DI) with DEA's 
Los Angeles Field Division executed a Declaration on September 19, 2018 
stating that she ``learned that following his conviction, [Applicant] 
was incarcerated at Victorville Federal Prison . . . in Adelanto, CA.'' 
App. 4 (Declaration of DI) to RFAA, at 2. As a result, the DI stated in 
her Declaration that she mailed a copy of the Show Cause Order by 
certified mail and addressed it to Applicant at the Victorville United 
States Penitentiary in Adelanto, California. Id. \2\ In her 
Declaration, the DI attached and authenticated a return receipt from 
the U.S. Postal Service confirming that the mailing was so addressed 
and was delivered to that penitentiary on June 15, 2018. Id.; see 
Attachment A to App. 4. I therefore find that the Government 
accomplished service on June 15, 2018. See Warren B. Dailey, M.D., 82 
FR 46525, 46526 (2017) (holding that sending Show Cause Order to 
Respondent by certified mail at U.S. penitentiary and with proof of 
return receipt was sufficient to establish that Government lawfully 
accomplished service).
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    \2\ The DI also stated in her Declaration that the Show Cause 
Order ``was emailed to [Applicant's] criminal defense attorney'' by 
a Task Force Officer ``on or about June 11, 2018.'' Id. However, 
this attempt at service of the Order pursuant to 21 U.S.C. 824(c), 
standing alone, would be insufficient for at least two reasons. 
First, the Government failed to establish that the attorney had 
``the power to accept service'' on behalf of the Applicant in this 
proceeding. Warren B. Dailey, M.D., 82 FR 46525, 46526 (2017) 
(internal citations and quotations omitted). Second, assuming the 
attorney had such authority, the record does not contain (1) a 
statement that explains whether the DI had independent personal 
knowledge of the email, (2) a declaration from the Task Force 
Officer or another declarant who has personal knowledge of the 
email, or (3) any other evidence corroborating the DI's statement 
that the Task Force Officer had emailed the attorney. Cf. Richard 
Hauser, M.D., 83 FR 26308, 26309 n.5 (2018) (finding that a DI's 
declaration that he ``verified'' a document's authenticity by 
conferring with another DI was insufficient absent a declaration 
from a DI with personal knowledge of the document's authenticity or 
other evidence to corroborate its authenticity).
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    On October 3, 2018, the Government forwarded its Request for Final 
Agency Action and evidentiary record to my Office. In its Request, the 
Government represents that more than 30 days had passed since Applicant 
had been served and that ``DEA had not received a request for hearing 
or any other reply'' from him during that time. RFAA, at 3. Based on 
the Government's representation and the record, I find that more than 
30 days have passed since the Order to Show Cause was served on the 
Applicant, and he has neither requested a hearing nor submitted a 
written statement in lieu of a hearing. See 21 CFR 1301.43(d). 
Accordingly, I find that Applicant has waived his right to a hearing or 
to submit a written statement and issue this Decision and Order based 
on relevant evidence submitted by the Government. See id. I make the 
following findings.

[[Page 58600]]

Findings of Fact

    On or about May 1, 2015, Applicant applied for a practitioner's 
registration seeking authority to dispense controlled substances in 
schedules II through IV at the proposed address of 4130 Eadhill Place, 
Whittier, California. App. 2 (Certification of Registration History) to 
RFAA, at 1.\3\ DEA assigned ``control number W15031876C'' to the 
application. Id. The application is in a ``new pending status'' with 
DEA. Id.
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    \3\ Although the Government states in its Request that Applicant 
submitted his DEA application ``[o]n or about May 4, 2015,'' RFAA, 
at 2, the Government attached to its Request a Certification of 
Registration History, which was sworn to and certified on September 
27, 2018 by DEA's Associate Chief of Registration and Program 
Support Section, stating that Applicant submitted his DEA ``online 
application . . . on/about May 1, 2015.'' App. 2, at 1. In addition, 
the certification included a copy of the online application which 
states: ``Submission Date: 05-01-2015.'' Id. at 3. Thus, I find that 
Applicant submitted his DEA application on or about May 1, 2015.
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    On September 6, 2016, a federal grand jury returned an indictment 
against Applicant charging him with (1) seven counts of unlawful 
prescribing and distribution of hydrocodone when it was a schedule III 
controlled substance, in violation of 21 U.S.C. 841(a)(1), (b)(1)(E) 
and 18 U.S.C. 2(b); (2) six counts of unlawful prescribing and 
distribution of hydrocodone when it was a schedule II controlled 
substance, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C) and 18 U.S.C. 
2(b); (3) nine counts of unlawful prescribing and distribution of 
alprazolam, a schedule IV controlled substance, in violation of 21 
U.S.C. 841(a)(1), (b)(2) and 18 U.S.C. 2(b); and (4) four counts of 
unlawful prescribing and distribution of carisoprodol, a schedule IV 
controlled substance, in violation of 21 U.S.C. 841(a)(1), (b)(2) and 
18 U.S.C. 2(b). App. 3 to RFAA, at 1-5. On December 4, 2017, a federal 
jury found Applicant guilty on all counts. Id. at 8. On April 23, 2018, 
a federal district judge in the U.S. District Court for the Central 
District of California entered a Judgment and Probation/Commitment 
Order, Case No. CR16-0631 (C.D. Cal.), sentencing Applicant to a term 
of imprisonment ``of 60 months on each of Counts 1 to 26 of the 
Indictment, to be served concurrently.'' Id. at 9. Thus, I find that 
Respondent has been convicted of felony offenses under the Controlled 
Substances Act (CSA) ``relating to [] substance[s] defined in [the CSA] 
as a controlled substance.'' 21 U.S.C. 824(a)(2); see also id., Sec.  
841(a)(1), (b)(1)-(2) (prescribing for various felony sentences of more 
than one year).

Discussion

    Section 303(f) of the Controlled Substances Act provides that an 
application for a practitioner's registration may be denied upon a 
determination ``that the issuance of such registration would be 
inconsistent with the public interest.'' 21 U.S.C. 823(f). In making 
the public interest determination, the CSA requires the consideration 
of the following factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing . . . controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id. ``These factors are . . . considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] 
deem[] appropriate in determining whether . . . an application for 
registration [should be] denied.'' Id. Moreover, it is well established 
that I am ``not required to make findings as to all of the factors.'' 
Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Kevin Dennis, 
M.D., 78 FR 52787, 52974 (2013); MacKay v. DEA, 664 F.3d 808, 816 (10th 
Cir. 2011).
    Furthermore, under Section 304(a) of the CSA, a registration may be 
revoked or suspended ``upon a finding that the registrant . . . has 
been convicted of a felony under this subchapter . . . or any other law 
of the United States, or of any State, relating to any substance 
defined in this subchapter as a controlled substance.'' 21 U.S.C. 
824(a)(2). See John P. Moore, III, M.D., 82 FR 10398, 10401 (2017) 
(revocation warranted for conviction of felony offense); Algirdas J. 
Krisciunas, M.D., 76 FR 4940, 4944 (2011) (revocation warranted for 
conviction of felony offense under CSA); Hung Thien Ly, M.D., 75 FR 
49955, 49956 (2010) (same). Under the same section of the CSA, a 
registration may also be revoked or suspended if the registrant ``has 
committed such acts as would render his registration under section 823 
of this title inconsistent with the public interest as determined under 
such section.'' 21 U.S.C. 824(a)(4).
    ``DEA has long held that the various grounds for revocation or 
suspension of an existing registration that Congress enumerated in 
section 304(a), 21 U.S.C. 824(a), are also properly considered in 
deciding whether to grant or deny an application under section 303.'' 
Richard D. Vitalis, D.O., 79 FR 68701, 68708 (2014) (citing Anthony D. 
Funches, 64 FR 14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 
(1998); Kuen H. Chen, 58 FR 65401, 65402 (1993)). Thus, the allegation 
that Applicant was convicted of a felony relating to a controlled 
substance under the CSA is properly considered in this proceeding. 
Thomas G. Easter II, M.D., 69 FR 5579, 5580 (2004) (denial of 
application because applicant was ``convicted of eight State felonies 
relating the distribution or dispensing of controlled substances . . . 
is independently appropriate under 21 U.S.C. 823(f) and 824(a)(2)'') ; 
Brady Kortland Fleming, 46 FR 45841, 45842 (1981) (finding that 
respondent's conviction of a felony offense related to controlled 
substances that would justify revocation under 21 U.S.C. 824(a)(2) also 
provides a statutory basis for denial of respondent's registration 
under 21 U.S.C. 823(f)); see also Samuel S. Jackson, 72 FR 23848, 23852 
(2007). The Government bears the burden of proof in showing that the 
issuance of a registration is inconsistent with the public interest. 21 
CFR 1301.44(d). I conclude that there are two separate and independent 
grounds to deny Applicant's application.
    First, as found above, a federal district judge in the United 
States District Court for the Central District of California entered a 
judgment convicting Applicant of 26 counts of unlawful distribution of 
controlled substances under the CSA (hydrocodone, alprazolam, and 
carisoprodol) in violation of 21 U.S.C. 841(a)(1). Each count of 
conviction was for a felony offense under the CSA. See App. 3 to RFAA, 
at 9 (citing 21 U.S.C. 841(a)(1), (b)(1)(C) (``[i]n the case of a 
controlled substance in schedule I or II . . . such person shall be 
sentenced to a term of imprisonment of not more than 20 years''), 
(b)(1)(E) (``in the case of any controlled substance in schedule III, 
such person shall be sentenced to a term of imprisonment of not more 
than 10 years''), (b)(2) (``[i]n the case of a controlled substance in 
schedule IV, such person shall be sentenced to a term of imprisonment 
of not more than 5 years'')). Thus, I find that Applicant ``has been 
convicted of a felony offense . . . relating to any substance defined 
in [the CSA] as a controlled substance.'' 21 U.S.C. 824(a)(2). This 
finding alone provides reason to deny Applicant's application for a DEA 
Certificate of Registration.
    Second, Applicant's aforementioned conviction is both relevant and 
adverse

[[Page 58601]]

to Applicant regarding factors three and four of the public interest 
determination. Easter, 69 FR at 5581 (finding that felony convictions 
related to distribution of controlled substances ``are relevant and 
adverse to'' applicant regarding public interest factors two, three, 
four, and five). Specifically, I may deny Applicant's pending 
application pursuant to factor three (21 U.S.C. 823(f)(3)) alone 
because he has been convicted for unlawful distribution of controlled 
substances under the CSA. Trenton F. Horst, D.O., 80 FR 41079, 41090 
(2015) (holding that pursuant to 21 U.S.C. 823(f)(3), DEA ``may deny a 
pending application for a certificate of registration upon a finding 
that the applicant has been convicted of a felony related to controlled 
substances under state or federal law''). In the same vein, Applicant's 
conviction for violating the CSA also reflects his lack of 
``[c]ompliance with applicable . . . Federal . . . laws relating to 
controlled substances'' under factor four. 21 U.S.C. 823(f)(4). 
Accordingly, I find that the Government's evidence of Applicant's 
convictions is adverse to Applicant with respect to public interest 
factors three and four and thus establishes that granting Applicant's 
application ``would be inconsistent with the public interest.'' 21 
U.S.C. 823(f); Arvinder Singh, M.D., 81 FR 8247-48 & n.2 (2016) 
(affirming ALJ's finding that respondent's felony convictions in 
violation of the CSA implicated multiple public interest factors 
(including factors three and four) and thus warranted denial of his 
application as inconsistent with the public interest).
    For all these reasons, and because Applicant failed to respond to 
the Show Cause Order and thus has failed to offer any evidence to the 
contrary, I will order that his application be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b), I order that the application of Edward A. Ridgill, 
M.D., for a DEA Certificate of Registration as a practitioner be, and 
it hereby is, denied. This Order is effective immediately.

    Dated: October 31, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-25224 Filed 11-19-18; 8:45 am]
 BILLING CODE 4410-09-P