Notice2024-31318
Robert Esser, D.D.S.; Decision and Order
Primary source
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Published
December 30, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 249 (Monday, December 30, 2024)</title>
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106582-106584]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31318]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert Esser, D.D.S.; Decision and Order
On December 18, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Robert Esser,
D.D.S., of Erie, Pennsylvania (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. BE3510193,
alleging that Registrant's registration should be revoked because
Registrant is ``currently without authority to handle controlled
substances in the Commonwealth of Pennsylvania, the state in which [he
is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
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The OSC notified Registrant of his right to file 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 2.\1\ ``A default, unless excused, shall be deemed to
constitute a waiver of the [registrant's] right to a hearing 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
March 4, 2024, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the included Declaration from
a DEA Diversion Investigator (DI) indicates that on January 3, 2024,
the DI emailed a copy of the OSC to Registrant's registered email
address and received confirmation that the email was successfully
delivered. RFAAX 3, at 2, Attachment B; Mohammed S. Aljanaby, M.D.,
82 FR 34552, 34552 (2017) (finding that service by email satisfies
due process where the email is not returned as undeliverable and
other methods have been unsuccessful). On December 28, 2023, the DI
had attempted in-person service of the OSC at Registrant's
registered address, and after receiving no response, left a business
card on the premises. RFAAX 3, at 2. Further, on January 3, 2024,
DEA had mailed a copy of the OSC to Registrant's registered address
via certified mail, but the mailing was returned. Id. at 2,
Attachment A.
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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, on
October 20, 2022, the Pennsylvania State Board of Dentistry suspended
Registrant's Pennsylvania dental license. RFAAX 2, at 2. According to
Pennsylvania online records, of which the Agency takes official notice,
Registrant's Pennsylvania dental license remains suspended.\2\
Pennsylvania Licensing System Verification Service,<a href="https://www.pals.pa.gov/#">https://www.pals.pa.gov/#</a>!/page/search (last visited date of signature of this
Order). Accordingly, the Agency finds that Registrant is not licensed
to practice dentistry in Pennsylvania, 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 the DEA Office of the Administrator,
Drug Enforcement Administration at <a href="/cdn-cgi/l/email-protection#3f5b5a5e115e5b5b50115e4b4b504d515a464c7f5b5a5e11585049"><span class="__cf_email__" data-cfemail="5b3f3e3a753a3f3f34753a2f2f3429353e22281b3f3e3a753c342d">[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.
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General
can register a physician to dispense controlled substances `if the
applicant is authorized to dispense . . . controlled substances under
the laws of the State in which he practices.' . . . The very definition
of a `practitioner' eligible to prescribe includes physicians
`licensed, registered, or otherwise permitted, by the United States or
the jurisdiction in which he practices' to dispense controlled
substances. Sec. 802(21).''). The Agency has applied these principles
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012);
Frederick Marsh Blanton, M.D., 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). 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 Pennsylvania statute, ``dispense'' means ``to deliver
a controlled substance, other drug or device to an ultimate user or
research subject by or pursuant to the lawful order of a practitioner,
including the prescribing, administering, packaging, labeling, or
compounding necessary to prepare such item for that delivery.'' 35 Pa.
Stat. and Cons. Stat. Ann. section 780-102(b) (West 2024). Further, a
``practitioner'' means ``a physician . . . dentist . . . or other
person licensed, registered or otherwise permitted to distribute,
dispense, conduct research with respect to or to administer a
controlled substance, other drug or device in the course of
professional practice or research in the Commonwealth of
Pennsylvania.'' Id.
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice dentistry in Pennsylvania. As discussed
above, an individual must be a licensed practitioner to dispense a
controlled substance in Pennsylvania. Thus, because Registrant lacks
authority to practice dentistry in Pennsylvania and, therefore, is not
authorized to handle controlled substances in Pennsylvania, 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.
BE3510193 issued to Robert Esser, 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 Robert Esser, D.D.S., to renew
or modify this registration, as well as any other pending application
of Robert Esser, D.D.S., for additional registration in Pennsylvania.
This Order is effective January 29, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 20, 2024, 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
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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. 2024-31318 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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