Notice2023-28013
Joeseph Potter, D.D.S.; Decision and Order
Primary source
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Published
December 21, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 244 (Thursday, December 21, 2023)</title>
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[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Notices]
[Pages 88412-88413]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28013]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Joeseph Potter, D.D.S.; Decision and Order
On July 12, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Joeseph Potter,
D.D.S. (Registrant). Request for Final Agency Action (RFAA), Exhibit
(RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant's
Certificate of Registration No. FP7517456 at the registered address of
3145 Larimer Street, Denver, Colorado 80205. Id. at 1. The OSC alleged
that Registrant's registration should be revoked because Registrant is
``currently without authority to prescribe, administer, dispense, or
otherwise handle controlled substances in the State of Colorado, the
state in which [he is] registered with DEA.'' Id. at 2 (citing 21
U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file with DEA a written
request for hearing, and that if he failed to file such a request, he
would be deemed to have waived his right to a hearing and be in
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request
a hearing. RFAA, at 1-2.\1\ ``A default, unless excused, shall be
deemed to constitute a waiver of the registrant's/applicant's right to
a hearing
[[Page 88413]]
and an admission of the factual allegations of the [OSC].'' 21 CFR
1301.43(e).
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\1\ Based on the Government's submissions in its RFAA dated
September 7, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the Government's Notice of
Service of Order to Show Cause included as an attachment a Form DEA-
12 signed by Registrant indicating that Registrant was personally
served with the OSC on July 19, 2023. RFAAX 1, at 6.
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Further, ``[i]n the event that a registrant . . . is deemed to be
in default . . . DEA may then file a request for final agency action
with the Administrator, along with a record to support its request. In
such circumstances, the Administrator may enter a default final order
pursuant to [21 CFR] Sec. 1316.67.'' Id. Sec. 1301.43(f)(1). Here,
the Government has requested final agency action based on Registrant's
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 3; see
also 21 CFR 1316.67.
Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC are admitted. According to the OSC, the
Colorado Dental Board issued an Order of Suspension, effective October
12, 2022, suspending Registrant from the practice of dentistry in the
state of Colorado. RFAAX 2, at 2. According to Colorado online records,
of which the Agency takes official notice, Registrant's Colorado dental
license remains suspended.'' \2\ Colorado Division of Professions and
Occupations License Search, <a href="https://apps2.colorado.gov/dora///licenselookup.aspx">https://apps2.colorado.gov/dora///licenselookup.aspx</a> (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice dentistry in Colorado, the state in which he is registered
with DEA.
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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 the Agency's finding
by filing a properly supported motion for reconsideration of
findings of fact within fifteen calendar days of the date of this
Order. Any such motion and response shall be filed and served by
email to the other party and to DEA Office of the Administrator,
Drug Enforcement Administration at <a href="/cdn-cgi/l/email-protection#442021256a2520202b6a2530302b362a213d37042021256a232b32"><span class="__cf_email__" data-cfemail="127677733c7376767d3c7366667d607c776b61527677733c757d64">[email protected]</span></a>.
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Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, D.O., 76 FR 71371, 71372 (2011), pet. for
rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
D.O., 43 FR 27616, 27617 (1978).\3\
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\3\ This rule derives from the text of two provisions of the
Controlled Substances Act (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(g)(1) (this section, formerly 823(f), was redesignated as
part of the Medical Marijuana and Cannabidiol Research Expansion
Act, Public Law 117-215, 136 Stat. 2257 (2022)). 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, 76 FR 71371-72; Sheran Arden
Yeates, D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58
FR 51104, 51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920
(1988); Frederick Marsh Blanton, 43 FR 27617.
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According to Colorado statute, ``[e]very person who manufactures,
distributes, or dispenses any controlled substance within this state .
. . shall obtain . . . a registration, issued by the respective
licensing board . . . . For purposes of this section and this article [
], `registration' or `registered' means . . . the licensing of dentists
by the Colorado dental board . . . .'' Colo. Rev. Stat. 18-18-302(1)
(2023).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice dentistry in Colorado. As discussed above,
a dentist must be a licensed practitioner to dispense a controlled
substance in Colorado. Thus, because Registrant lacks authority to
practice dentistry in Colorado and, therefore, is not authorized to
handle controlled substances in Colorado, Registrant is not eligible to
maintain a DEA registration. Accordingly, the Agency will order that
Registrant's DEA registration be revoked.
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.
FP7517456 issued to Joeseph Potter, D.D.S. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending applications of Joeseph Potter, D.D.S, to renew
or modify this registration, as well as any other pending application
of Joeseph Potter, D.D.S., for additional registration in Colorado.
This Order is effective January 22, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 12, 2023, by Administrator Anne Milgram. That document with
the original signature and date is maintained by DEA. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned DEA Federal
Register Liaison Officer has been authorized to sign and submit the
document in electronic format for publication, as an official document
of DEA. This administrative process in no way alters the legal effect
of this document upon publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-28013 Filed 12-20-23; 8:45 am]
BILLING CODE 4410-09-P
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