[Federal Register Volume 85, Number 154 (Monday, August 10, 2020)]
[Notices]
[Pages 48265-48267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17373]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Tommy L. Louisville, M.D.; Decision and Order
On June 28, 2019, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause (hereinafter, OSC) to Tommy
L. Louisville, M.D. (hereinafter, Registrant) of Lakeland, Florida.
OSC, at 1. The OSC proposed the revocation of Registrant's Certificate
of Registration No. AL9587330. Id. It alleged that Registrant does
``not have authority to handle controlled substances in Florida, the
state in which . . . [he is] registered with the DEA.'' Id. (citing 21
U.S.C. 823(f) and 824(a)(3)).
Specifically, the OSC alleged that, ``effective May 31, 2019, the
[State of Florida] Board [of Medicine, (hereinafter FBM)] issued its
Final Order whereby . . . [Registrant's] license to practice medicine
(License No. ME0037525) was suspended for a period of two years.'' OSC,
at 1-2. The OSC further alleged that ``[a]s of the date of this . . .
[OSC], the suspension of . . . [Registrant's] Florida medical license
has not been lifted'' and ``[a]s a result, . . . [he] currently lack[s]
authority to handle controlled substances in Florida.'' Id. at 2
(citing 21 U.S.C. 802(21), 823(f), and 824(a)(3)). The OSC concluded
that ``DEA must revoke . . . [Registrant's registration] based upon . .
. [his] lack of authority to handle controlled substances in the State
of Florida.'' OSC, at 2.
The OSC notified Registrant of the right to request a hearing on
the allegations or to submit a written statement, while waiving the
right to a hearing, the procedures for electing each option, and the
consequences for failing to elect either option. Id. (citing 21 CFR
1301.43). The OSC also notified Registrant of the opportunity to submit
a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).
Adequacy of Service
In a sworn Declaration, dated August 13, 2019, a DEA Diversion
Investigator assigned to the Tampa District Office of the Miami
Division (hereinafter, TDDI) stated that she attempted personal service
of the OSC on Registrant at the request of a DI assigned to the Miami
Division (hereinafter, MDDI). Government's Submission Regarding Service
of Order to Show Cause Upon Legal Counsel of Respondent and Motion for
Termination of Proceedings Based Upon Respondent's Untimely Hearing
Request, dated Aug. 15, 2019, filed In re Tommy L. Louisville, M.D.,
DEA Docket No. 2019-36 (hereinafter, Government Submission), Attachment
3 (hereinafter, TDDI Declaration), at 2. When Registrant was not at his
residence, she reached him by telephone, explained that she had the OSC
to deliver to him, and learned that he was in Miami. Id. at 3. When
Registrant asked if DEA could serve the OSC on his attorney, TDDI
responded that ``this was a permissible arrangement if that was his
preference.'' Id. According to the TDDI Declaration, Registrant
``reiterated'' that service on his attorney was his preference. Id.
TDDI stated that she informed MDDI of Registrant's preference. Id.
In a sworn Declaration, dated August 13, 2019, MDDI stated that he
left the OSC with Registrant's attorney on July 8, 2019. Government
Submission, Attachment 4 (hereinafter, MDDI Declaration), at 2-3. MDDI
stated that later the same day, the attorney sent him written
confirmation of receipt of the OSC and of the forwarding of the OSC to
Registrant. Id. at 3; see also Government Submission, Attachment 2, at
1 (attorney's written confirmation).
I agree with Administrative Law Judge Charles Wm. Dorman
(hereinafter, ALJ) that service of the OSC was proper. Order
Terminating Proceedings, dated Sept. 10, 2019 (hereinafter, OTP), at 6.
Hearing Request
By letter, dated August 8, 2019, the same attorney who accepted
service of the OSC for Registrant transmitted a hearing request
(hereinafter, Hearing Request) to the Office of Administrative Law
Judges (hereinafter, OALJ).\1\ The Hearing Request was emailed and
received on August 8, 2019. It was also sent Federal Express and
stamped ``received'' by OALJ on August 13, 2019. Hearing Request, at 1.
---------------------------------------------------------------------------
\1\ Among the nine pages comprising the Hearing Request is Form
DEA-12 signed by Registrant's attorney showing his receipt of the
OSC ``on behalf of'' Registrant on July 8, 2019. Hearing Request, at
7.
The Hearing Request states that ``[a]ll notices to be sent
pursuant to the proceeding in this matter should be addressed to''
the attorney and, under ``Contact Information for Proceeding,''
provides a physical address. Id. at 2.
---------------------------------------------------------------------------
According to the nine-page Hearing Request, Registrant acknowledged
the suspension of his Florida medical license, advised that he appealed
it, and stated that he ``is in the process of filing a Motion to Stay
the . . . [FBM] Final Order.'' Id. ``Accordingly,'' the Hearing Request
concludes, ``DEA acted prematurely in issuing an Order to Show Cause in
this matter.'' Id. ``We
[[Page 48266]]
hope this information will be helpful to you in making your decision,''
the last paragraph of the Hearing Request states, ``and we look forward
to a swift resolution of this issue.'' Id. at 3.
I agree with the ALJ that the Hearing Request was not timely filed.
OTP, at 7; see also 21 CFR 1301.43 (instructing that a hearing request
shall be filed within 30 days after receipt of the OSC). I note that
the Hearing Request did not acknowledge its untimeliness, let alone
provide good cause for it. Accordingly, I conclude that the ALJ acted
properly in terminating the proceeding.
The Government forwarded its Request for Final Agency Action
(hereinafter, RFAA), along with the evidentiary record, to my office on
January 8, 2020. In its RFAA, the Government represented that
``[a]ccording to the most recent information obtained by DEA,
[Registrant's Florida medical license] suspension remains in place and
has not been lifted.'' RFAA, at 5. Accordingly, the Government
requested that Registrant's registration be revoked. Id.
I issue this Decision and Order based on the record submitted by
the Government in its RFAA and on the content of Docket No. 2019-36,
which constitute 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.
AL9587330 at the registered address of 1801 Crystal Lake Dr., Lakeland,
FL 33801. RFAA, EX 2 (Facsimile of DEA Certificate of Registration
Number AL9587330), 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 expired on March 31,
2020.\2\ Id.
---------------------------------------------------------------------------
\2\ The fact that a Registrant's registration expires during the
pendency of an OSC does not impact my jurisdiction or prerogative
under the Controlled Substances Act (hereinafter, CSA) to adjudicate
the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68874 (2019).
---------------------------------------------------------------------------
The Status of Registrant's State License and Registration
The Government submitted evidence that the FBM reprimanded
Registrant and suspended his medical license for two years on May 30,
2019. Government's Motion for Summary Disposition and Argument in
Support of Finding that Respondent Lacks State Authorization to Handle
Controlled Substances, dated Aug. 23, 2019, filed In re Tommy L.
Louisville, M.D., DEA Docket No. 2019-36, Attachment 2 (Final FBM Order
on License No. ME0037525), at 2-3. The FBM's action was effective May
31, 2019. Id. at 1, 3. The FBM Final Order also permanently prohibited
Registrant from certifying patients for medical marijuana and from
practicing telemedicine. Id. at 2.
According to Florida's online records, of which I take official
notice, Registrant's medical license remains suspended.\3\ Florida
Department of Health MQA Search Services, Health Care Providers,
https://appsmqa.doh.state.fl.us/MQASearchServices/HealthCareProviders
(last visited July 21, 2020). As such, I find that Registrant's Florida
medical license is suspended.
---------------------------------------------------------------------------
\3\ 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, Applicant may dispute my finding by filing
a properly supported motion for reconsideration of finding of fact
within fifteen 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 Applicant files
a motion, the Government shall have fifteen calendar days to file a
response. Any such motion and response shall be filed and served by
email on the other party at the email address the party submitted
for receipt of communications related to this administrative
proceeding, and on the Office of the Administrator, Drug Enforcement
Administration at [email protected].
---------------------------------------------------------------------------
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 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, 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 71371 (2011), pet. for rev.
denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
M.D., 43 FR 27616, 27617 (1978).
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 CSA, 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., James L. Hooper,
M.D., 76 FR at 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131
(2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby
Watts, M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, M.D.,
43 FR at 27617.
According to Florida statute, ``A practitioner, in good faith and
in the course of his or her professional practice only, may prescribe,
administer, [or] dispense . . . a controlled substance.'' Fla. Stat.
Ann. Sec. 893.05(1)(a) (West, current with chapters from the 2020
Second Regular Session of the 26th Legislature in effect through May
18, 2020). Further, ``practitioner,'' as defined by Florida statute,
includes ``a physician licensed under chapter 458.'' \4\ Fla. Stat.
Ann. Sec. 893.02(23) (West, current with chapters from the 2020 Second
Regular Session of the 26th Legislature in effect through May 18,
2020).
---------------------------------------------------------------------------
\4\ Chapter 458 regulates medical practice.
---------------------------------------------------------------------------
Here, the undisputed evidence in the record is that Registrant's
license to practice medicine is currently suspended. As such, he is not
a ``practitioner'' as that term is defined by Florida law. Further, as
already discussed, a physician must be a practitioner to dispense a
controlled substance in Florida. Thus, since Registrant lacks authority
to practice medicine in Florida, he is also not authorized to handle
controlled substances in Florida. Accordingly, I will order that
Registrant's DEA registration be revoked.\5\
---------------------------------------------------------------------------
\5\ I note the Hearing Request's assertion that Registrant
appealed the FBM suspension of his medical license. The pendency of
such an appeal, however, is irrelevant to my decision. See, e.g.,
James Alvin Chaney, M.D., 80 FR 57391, 57392 (2015) (calling the
fact that a state's suspension order remains subject to challenge
``of no consequence'' to the Agency's decision to revoke).
---------------------------------------------------------------------------
[[Page 48267]]
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No.
AL9587330 issued to Tommy L. Louisville, M.D. This Order is effective
September 9, 2020.
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-17373 Filed 8-7-20; 8:45 am]
BILLING CODE 4410-09-P