Notice2021-12753
Johnny C. Benjamin, Jr., M.D.; Decision and Order
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Published
June 17, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
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<title>Federal Register, Volume 86 Issue 115 (Thursday, June 17, 2021)</title>
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[Federal Register Volume 86, Number 115 (Thursday, June 17, 2021)]
[Notices]
[Pages 32280-32282]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12753]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Johnny C. Benjamin, Jr., M.D.; Decision and Order
I. Procedural Background
On September 28, 2018, the Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause (hereinafter, OSC) to Johnny
C. Benjamin, Jr., M.D. (hereinafter, Registrant) of Vero Beach,
Florida. OSC, at 1. The OSC proposed the revocation of Registrant's
Certificate of Registration No. BB3725732. Id. It alleged that
Registrant has ``been convicted of a felony relating to controlled
substances and ha[s] no state authority to handle controlled
substances.'' Id. (citing 21 U.S.C. 824(a)(2) & (a)(3)).
Specifically, the OSC alleged that on April 27, 2018, Registrant
was convicted by a Federal jury of: Conspiracy to possess with intent
to distribute furanyl fentanyl resulting in death, in violation of 21
U.S.C. 846; distribution of furanyl fentanyl resulting in death, in
violation of 21 U.S.C. 841(a)(1); attempt to possess with intent to
distribute acetyl fentanyl, in violation of 21 U.S.C. 846; possession
with intent to distribute oxycodone, in violation of 21 U.S.C.
841(a)(1); and conspiracy to possess with intent to distribute
hydrocodone and oxycodone, in violation of 21 U.S.C. 846. Id. at 2. The
OSC alleged that on July 6, 2018, the court issued its Judgment and
sentenced Registrant to life in prison. Id. The OSC also alleged that,
on May 3, 2018, ``the State of Florida Department of Health immediately
suspended Registrant's Florida Medical License.'' Id. The OSC further
alleged that, as a result, Registrant is ``currently without authority
to handle controlled substances in the State of Florida, the state in
which [Registrant] is registered with the DEA.'' Id. (citing 21 U.S.C.
824(a)(3); 21 CFR 1301.37(b)). The OSC concluded that ``DEA must revoke
. . . [Registrant's] DEA registration based on [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. at 2-3 (citing 21
CFR 1301.43). The OSC also notified Registrant of the opportunity to
submit a corrective action plan. OSC, at 3-4 (citing 21 U.S.C.
824(c)(2)(C)).
II. Adequacy of Service
In a sworn Declaration, dated January 17, 2019, a DEA Diversion
Investigator assigned to the West Palm Beach District Office of the
Miami Division (hereinafter, DI) stated that she ``spoke by telephone
with United States Penitentiary Coleman SIS Technician [T.B.] to
determine what procedures the prison had in place for serving legal
documents on prisoners and [to] make arrangements for service of the
[OSC] on Registrant.'' Government's Request for Final Agency Action
(hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 7 (DI Declaration), at
1. DI stated that T.B. explained that T.B. ``would personally serve the
[OSC] on [Registrant].'' Id. Accordingly, DI stated that, on October
10, 2018, she sent the OSC via FedEx addressed to T.B. along with an
unsigned Form DEA-12, Receipt for Cash or Other items. Id. DI further
declared that on October 18, 2018, she ``received a FedEx package . . .
from [T.B.] with the Form DEA-12 which had been signed by Registrant
and witnessed by [T.B.], dated October 16, 2018.'' Id.; see also RFAAX
7, Attachment (Form DEA-12).
Additionally, on September 28, 2018, the DEA Office of Chief
Counsel (hereinafter, CC) mailed the OSC to Registrant at both his
registered address and his prison address. RFAAX 6 (CC Declaration of
Service). Neither letter was returned to the Office of Chief Counsel as
undeliverable. Id.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on January 23, 2019. In its RFAA, the Government
represents that
[[Page 32281]]
``at least thirty days have passed since the time the [OSC] was served
on Registrant'' and no request for hearing has been received by DEA.
RFAA, at 2. The Government requests revocation of Registrant's DEA
Certificate of Registration, because Registrant's ``conviction of a
felony relating to controlled substances, even apart from his lack of
state authority, is a basis upon which his registration should be
revoked'' and because ``DEA does not have statutory authority to
maintain a registration if the registrant is without state authority to
handle controlled substances.'' Id. at 5.
Based on the DI's and CC's Declarations, the Government's written
representations, and my review of the record, I find that the
Government accomplished service of the OSC on Registrant on (or before)
October 16, 2018. I also find that more than thirty days have now
passed since the Government accomplished service of the OSC. Further,
based on the Government's written representations, I find that neither
Registrant, nor anyone purporting to represent the Registrant,
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 the right to a hearing
and the 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).
III. Findings of Fact
A. Registrant's DEA Registration
Registrant is the holder of DEA Certificate of Registration No.
BB3725732 at the registered address of 1355 37th St., Suite 301, Vero
Beach, FL 32960. RFAAX 1 (Certification of Registration Status).
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 July 31, 2020.\1\ Id.
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\1\ 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 68,474 (2019).
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B. The Status of Registrant's State License
The Government submitted evidence that the Florida Board of
Medicine (hereinafter, the FBM) issued an emergency suspension of
Registrant's Florida Medical License on May 3, 2018. RFAAX 4 (FBM Order
of Emergency Suspension). In the Order of Emergency Suspension, the FBM
noted that Registrant's ``attempts to disguise his participation in
illicit drug trades by using his credentials as a physician licensed in
the state of Florida to purportedly be able to `grow cannabis for
patients' and to be able to traffic thousands of counterfeit oxycodone
pills as `self-prescribed cancer pills' indicate that [Registrant]
lacks the good judgment [and] moral character required of a physician
licensed to practice medicine in the state of Florida.'' Id. at 21.
Further, the FBM found that:
[Registrant's] recurrent engagement in an unlawful and complex
scheme to manufacture and distribute highly addictive and deadly
controlled substances, continuing after [Registrant] had knowledge
that his actions resulted in the death of another human being, and
his attempts to limit his future criminal culpability by causing
injury or death in a geographical location far away from him the
next time it inevitably happens, indicate that [Registrant's]
continued, unrestricted practice of medicine poses an immediate
serious danger to the public health, safety or welfare.
Id.
The Government also submitted evidence demonstrating that FBM
issued a Final Order revoking Registrant's medical license effective
December 20, 2018. RFAAX 5 (FBM Final Order), at 2-3. The FBM Final
Order was issued based on a complaint related to Registrant's
conviction of felonies related to controlled substances. Id.
(Attachment).
According to Florida's online records, of which I take official
notice, Registrant's medical license remains revoked.\2\ Florida
Department of Health MQA Search Services, Health Care Providers,
<a href="https://appsmqa.doh.state.fl.us/MQASearchServices/HealthCareProviders">https://appsmqa.doh.state.fl.us/MQASearchServices/HealthCareProviders</a>
(last visited date of signature of this Order). As such, I find that
Registrant's Florida medical license is revoked.
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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, 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 <a href="/cdn-cgi/l/email-protection#cbafaeaae5aaafafa4e5aabfbfa4b9a5aeb2b88bafaeaae5beb8afa4a1e5aca4bd"><span class="__cf_email__" data-cfemail="cca8a9ade2ada8a8a3e2adb8b8a3bea2a9b5bf8ca8a9ade2b9bfa8a3a6e2aba3ba">[email protected]</span></a>.
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C. Registrant's Conviction
On April 27, 2018, Registrant was found guilty by a Federal jury
of: Conspiracy to possess with intent to distribute furanyl fentanyl
resulting in death, in violation of 21 U.S.C. 846; distribution of
furanyl fentanyl resulting in death, in violation of 21 U.S.C.
841(a)(1); attempt to possess with intent to distribute acetyl
fentanyl, in violation of 21 U.S.C. 846; possession with intent to
distribute oxycodone, in violation of 21 U.S.C. 841(a)(1); and
conspiracy to possess with intent to distribute hydrocodone and
oxycodone, in violation of 21 U.S.C. 846. RFAAX 3 (U.S. v. Johnny Clyde
Benjamin, Jr., Judgment in a Criminal Case, Case No 17-80203-CR-
DIMITROULEAS (S.D. Fla. filed July 9, 2018)). On July 6, 2018, the
court issued its Judgment and sentenced Registrant to life in prison.
Id. at 2.
IV. DISCUSSION
A. Loss of State Authority
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 F. App'x 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 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
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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., James L. Hooper, 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); Frederick Marsh Blanton, 43 FR at 27,617.
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 laws of the 2021 First
Regular Session of the Twenty-Seventh Legislature in effect through May
25, 2021). Further, ``practitioner,'' as defined by Florida statute,
includes ``a physician licensed under chapter 458.'' \3\ Fla. Stat.
Ann. Sec. 893.02(23) (West, Current with laws of the 2021 First
Regular Session of the Twenty-Seventh Legislature in effect through May
25, 2021).
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\3\ Chapter 458 regulates medical practice.
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Here, the undisputed evidence in the record is that Registrant's
license to practice medicine is currently revoked. As such, he is not a
``practitioner'' as that term is defined by Florida statute. As already
discussed, however, a physician must be a practitioner to dispense a
controlled substance in Florida. Thus, because Registrant lacks
authority to practice medicine in Florida, he is not currently
authorized to handle controlled substances in Florida.
B. Registrant's Felony Conviction
Pursuant to section 304(a)(2) of the CSA, the Attorney General is
authorized to suspend or revoke a registration ``upon a finding that
the registrant . . . has been convicted of a felony under this
subchapter or subchapter II of this chapter or any other law of the
United States . . . relating to any substance defined in this
subchapter as a controlled substance or a list I chemical.'' 21 U.S.C.
824(a)(2). Each subsection of Section 824(a) provides an independent
ground to impose a sanction on a registrant. Arnold E. Feldman, M.D.,
82 FR 39,614, 39,617 (2017).
Here, there is no dispute in the record that Registrant has been
convicted of conspiracy to possess with intent to distribute furanyl
fentanyl resulting in death, in violation of 21 U.S.C. 846;
distribution of furanyl fentanyl resulting in death, in violation of 21
U.S.C. 841(a)(1); attempt to possess with intent to distribute acetyl
fentanyl, in violation of 21 U.S.C. 846; possession with intent to
distribute oxycodone, in violation of 21 U.S.C. 841(a)(1); and
conspiracy to possess with intent to distribute hydrocodone and
oxycodone, in violation of 21 U.S.C. 846, which constitutes a felony
conviction ``relating to'' controlled substances as those terms are
defined in 21 U.S.C. 824(a)(2). 21 U.S.C. 846 and 841(a)(1); William J.
O'Brien, III, D.O., 82 FR 46,527, 46,529 (2017).
Where, as here, the Government has met its prima facie burden of
showing that two grounds for revocation exist, the burden shifts to the
Registrant to show why he can be entrusted with a registration. See
Jeffrey Stein, M.D., 84 FR 46,968, 46,972 (2019). Registrant, as
already discussed, failed to respond in any way to the OSC. See RFAA,
at 6. Therefore, among other things, Registrant has not accepted
responsibility for his criminality, shown any remorse for it, or
provided any assurance that he would not repeat it. See Jeffrey Stein,
M.D., 84 FR at 46,972-74. Such silence weighs against the Registrant's
continued registration. Zvi H. Perper, M.D., 77 FR 64,131 64,142 (2012)
(citing Medicine Shoppe-Jonesborough, 73 FR 264, 387 (2008); Samuel S.
Jackson, 72 FR 23,848, 23,853 (2007)); see also Jones Total Health Care
Pharmacy, LLC v. Drug Enf't Admin., 881 F3d. 823, 831 (11th Cir. 2018)
(`` `An agency rationally may conclude that past performance is the
best predictor of future performance.' '' (quoting Alra Laboratories,
Inc. v. Drug Enf't Admin., 54 F.3d 450, 452 (7th Cir. 1995))).
Further, the CSA authorizes the Attorney General to ``promulgate
and enforce any rules, regulations, and procedures which he may deem
necessary and appropriate for the efficient execution of his functions
under this subchapter.'' 21 U.S.C. 871(b). This authority specifically
relates ``to `registration' and `control,' and `for the efficient
execution of his functions' under the statute.'' Gonzales v. Oregon,
546 U.S. 243, 259 (2006). A clear purpose of this authority is to
``bar[] doctors from using their prescription-writing powers as a means
to engage in illicit drug dealing and trafficking . . . .'' Id. at 270.
In this case, Registrant has demonstrated the precise behavior that the
Agency's authority is intended to prevent by engaging in outright drug
dealing with appalling disregard for the value of human life.
Registrant's behavior is ``so obviously egregious that revocation is
warranted.'' William J. O'Brien, III, D.O., 82 FR at 46,529.
Based on the record before me, I conclude that Registrant's founded
criminality and lack of state authority to handle controlled substances
in his state of DEA registration each make him ineligible to maintain a
DEA registration. Accordingly, I shall order the sanctions the
Government requested, as contained in the Order below.
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.
BB3725732 issued to Johnny C. Benjamin, Jr., M.D. Further, pursuant to
28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I
hereby deny any pending application of Johnny C. Benjamin, Jr., M.D. to
renew or modify this registration, as well as any other pending
application of Johnny C. Benjamin, Jr., M.D. for additional
registration in Florida. This Order is effective July 19, 2021.
D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-12753 Filed 6-16-21; 8:45 am]
BILLING CODE 4410-09-P
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