Notice2025-15867
Kenneth Pherson, D.O.; Decision and Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 20, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 159 (Wednesday, August 20, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 159 (Wednesday, August 20, 2025)]
[Notices]
[Pages 40649-40650]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-15867]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kenneth Pherson, D.O.; Decision and Order
On December 2, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Kenneth Pherson,
D.O., of Lakewood Ranch, Florida (Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) 1, at 1, 4. The OSC proposed the
revocation of Registrant's Certificate of Registration No. FP0455142,
alleging that Registrant's registration should be revoked because
Registrant is ``currently without authority to prescribe, administer,
dispense, or otherwise handle controlled substances in Florida, the
state in which [he is] registered with DEA.'' Id. at 2 (citing 21
U.S.C. 824(a)(3) and 21 CFR 1301.37(b)).
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).
---------------------------------------------------------------------------
\1\ Based on the Government's submissions in its RFAA dated
February 19, 2025, the Agency finds that service of the OSC on
Registrant was adequate. The included declaration from a DEA
Diversion Investigator (DI) indicates that on December 11, 2024, the
DI attempted to personally serve Registrant with a copy of the OSC
at Registrant's DEA registered address but was unsuccessful. RFAAX
2, at 1. Later that day, ``another DEA employee'' attempted to
personally serve Registrant with a copy of the OSC at Registrant's
personal address, but that attempt was also unsuccessful, as there
was no answer at the residence. Id. On December 16, 2024, the DI
mailed a copy of the OSC to Registrant's personal address through
USPS certified mail and was able to ascertain by the mailing's
tracking number that on December 23, 2024, that delivery was
successful, as the copy of the OSC was ``left with individual.'' Id.
at 1-2; RFAAX 2, Attachment A.
---------------------------------------------------------------------------
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] 1316.67.'' Id. 1301.43(f)(1). Here, the Government
has requested final agency action based on Registrant's default
pursuant to 21 CFR 1301.43(c) and (f). 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
or about August 29, 2024, the State of Florida Board of Osteopathic
Medicine suspended Registrant's Florida osteopathic medical license.
RFAAX 1, at 2. According to Florida online records, of which the Agency
takes official notice, Registrant's Florida osteopathic medical license
remains suspended.\2\ <a href="https://mqa-internet.doh.state.fl.us/MQASearchServices/Home">https://mqa-internet.doh.state.fl.us/MQASearchServices/Home</a> (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice as an osteopathic physician in Florida, the state in which he
is registered with DEA.\3\
---------------------------------------------------------------------------
\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 Order, is not licensed to
practice osteopathic medicine in Florida. 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 Office of the Administrator, Drug Enforcement Administration,
at <a href="/cdn-cgi/l/email-protection#482c2d2966292c2c2766293c3c273a262d313b082c2d29662f273e"><span class="__cf_email__" data-cfemail="d3b7b6b2fdb2b7b7bcfdb2a7a7bca1bdb6aaa093b7b6b2fdb4bca5">[email protected]</span></a>.
---------------------------------------------------------------------------
[[Page 40650]]
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).\4\
---------------------------------------------------------------------------
\4\ 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(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 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, dispense, mix, or otherwise prepare a controlled
substance.'' Fla. Stat. Sec. 893.05(1)(a) (2025). Additionally,
according to Florida statute, ``dispense'' means ``the transfer of
possession of one or more doses of a medicinal drug by a pharmacist or
other licensed practitioner to the ultimate consumer thereof or to one
who represents that it is his or her intention not to consume or use
the same but to transfer the same to the ultimate consumer or user for
consumption by the ultimate consumer or user.'' Fla. Stat. Sec.
893.02(7) (2023). Further, a ``practitioner'' as defined by Florida
statute includes ``an osteopathic physician licensed under chapter
459.'' \5\ Id. at Sec. 893.02(23).
---------------------------------------------------------------------------
\5\ Chapter 459 regulates osteopathic medical practice and
applies to Registrant; it defines an ``osteopathic physician'' as
``a person who is licensed to practice osteopathic medicine in this
state.'' Fla. Stat. Sec. 459.003(4).
---------------------------------------------------------------------------
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice as an osteopathic physician in Florida
because his Florida osteopathic medical license has been suspended. As
discussed above, an individual must be a licensed practitioner to
dispense a controlled substance in Florida. Thus, because Registrant
lacks authority to practice as an osteopathic physician in Florida and,
therefore, is not authorized to dispense controlled substances in
Florida, Registrant is not eligible to maintain a DEA registration in
Florida. 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.
FP0455142, issued to Kenneth Pherson, D.O. 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 Kenneth Pherson, D.O., to renew
or modify this registration, as well as any other pending application
of Kenneth Pherson, D.O., for additional registration in Florida. This
Order is effective September 19, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 11, 2025, by Administrator Terrance Cole. 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. 2025-15867 Filed 8-19-25; 8:45 am]
BILLING CODE 4410-09-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 20, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.