Notice2025-05163
Thomas Andr'e Endicott, D.D.S.; Decision and Order
Primary source
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Published
March 27, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 90 Issue 58 (Thursday, March 27, 2025)</title>
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[Federal Register Volume 90, Number 58 (Thursday, March 27, 2025)]
[Notices]
[Pages 13892-13894]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-05163]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Thomas Andr'e Endicott, D.D.S.; Decision and Order
On March 26, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Thomas Andr'e
Endicott, D.D.S., of Salt Lake City, Utah (Registrant). Request for
Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC
proposed the revocation of Registrant's Certificate of Registration No.
FE3865029, alleging that Registrant's registration should be revoked
because Registrant is ``currently without authority to handle
controlled
[[Page 13893]]
substances in Utah, 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 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 3.\1\ ``A default, unless excused, shall be deemed to
constitute a waiver of the registrant's/applicant'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 May
24, 2024, the Agency finds that service of the OSC on Registrant was
adequate. An included declaration from a DEA Diversion Investigator
(DI) indicates that on March 27, 2024, the DI attempted to
personally serve Registrant at Registrant's registered address, but
Registrant was not present and had not been seen at the premises
since November 2023. RFAAX 2, at 2. On March 28, 2024, the DI
requested that the Phoenix Field Division perform additional
diligence in locating and serving Registrant with the OSC, which was
ultimately unsuccessful. Id.; see also RFAAX 3, at 1 (attempt by a
second Diversion Investigator to personally serve Registrant with
the OSC at Registrant's last known address in Arizona on April 5,
2024). On April 8, 2024, the DI emailed a copy of the OSC to
Registrant's registered email address, and the email was not
returned as undeliverable. Id.; see also id., Attachment 1, at 1. On
the same date, the DI also mailed copies of the OSC via USPC
certified mail and USPS First Class mail to Registrant at his
registered address, both of which were returned back to the DI.
RFAAX 2, at 2-3; see also id., Attachments 2-3. Here, the Agency
finds that Registrant was successfully served the OSC by email and
that the DI's efforts to serve Registrant by other means were ``
`reasonably calculated, under all the circumstances, to apprise
[Registrant] of the pendency of the action.' '' Jones v. Flowers,
547 U.S. 220, 226 (2006) (quoting Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)); see also Mohammed S. Aljanaby,
M.D., 82 FR 34,552, 34,552 (2017) (finding that service by email
satisfies due process where the email is not returned as
undeliverable and other methods have been unsuccessful). Therefore,
due process notice requirements have been satisfied.
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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(d), (e), (f)(1), 1301.46. RFAA, at
1; 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
February 22, 2024, both Registrant's Utah dental license and Utah
controlled substance license were revoked. RFAAX 1, at 1-2. According
to Utah online records, of which the Agency takes official notice,\2\
both Registrant's Utah dental license and Utah controlled substance
license remain revoked. Utah Division of Professional Licensing License
Lookup & Verification System, <a href="https://secure.utah.gov/llv/search/search.html">https://secure.utah.gov/llv/search/search.html</a> (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice as a dentist nor to handle controlled substances in Utah, the
state in which he is registered with DEA.\3\
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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).
\3\ 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.'' The material fact here is
that Registrant, as of the date of this decision, is not licensed to
practice as a dentist in Utah. 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#cbafaeaae5aaafafa4e5aabfbfa4b9a5aeb2b88bafaeaae5aca4bd"><span class="__cf_email__" data-cfemail="b9dddcd897d8ddddd697d8cdcdd6cbd7dcc0caf9dddcd897ded6cf">[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 71,371, 71,372
(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).\4\
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\4\ 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, M.D., 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, M.D., 43 FR at 27,617.
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Under Utah statute, ``[e]very person who manufactures, produces,
distributes, prescribes, dispenses, administers, conducts research
with, or performs laboratory analysis upon any controlled substance in
Schedules I through V within [the] state . . . shall obtain a license
issued by the [Division of Professional Licensing].'' Utah Code Ann.
Sec. 58-37-6(2)(a)(i) (2024).
Here, the undisputed evidence in the record is that Registrant
lacks authority to handle controlled substances in Utah because both
Registrant's Utah dental license and Registrant's Utah controlled
substance license are revoked. As discussed above, an individual must
hold a Utah controlled substance license to dispense a controlled
substance in Utah. Thus, because Registrant lacks authority to handle
controlled substances in Utah, 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.
FE3865029 issued to Thomas Andr'e Endicott, 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 Thomas Andr'e Endicott,
D.D.S., to renew or modify this registration, as well as any other
pending application of Thomas Andr'e
[[Page 13894]]
Endicott, D.D.S., for additional registration in Utah. This Order is
effective April 28, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
March 21, 2025, by Acting Administrator Derek Maltz. 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. 2025-05163 Filed 3-26-25; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on March 27, 2025.
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