90 FR 132 pgs. 31242-31244 - Elias Garcia Garcia, P.A.; Decision and Order
Type: NOTICEVolume: 90Number: 132Pages: 31242 - 31244
Pages: 31242, 31243, 31244FR document: [FR Doc. 2025-13119 Filed 7-11-25; 8:45 am]
Agency: Justice Department
Sub Agency: Drug Enforcement Administration
Official PDF Version: PDF Version
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Elias Garcia Garcia, P.A.; Decision and Order
[top] On July 22, 2024, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Elias Garcia Garcia, P.A., of Yuma, Arizona (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.
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. at 2 (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).
Footnotes:
1 ?Based on the Government's submissions in its RFAA dated March 6, 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 July 24, 2024, DI emailed a copy of the OSC to Registrant's registered email address and received a confirmation message from the Mail Delivery Subsystem that the OSC was successfully delivered to Registrant. RFAAX 3, at 2 & Attachment B. The DI then emailed Registrant a copy of the OSC to Registrant's newly discovered business email address and received an additional confirmation message from the Mail Delivery Subsystem that the OSC was successfully delivered. Id. at 3 & Attachment D. The DI also mailed a copy of the OSC to Registrant's newly discovered business mailing address, to which delivery cannot be confirmed. Id. The Agency finds that Registrant was successfully served the OSC by email and that 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)). Therefore, due process notice requirements have been satisfied.
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), (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. Registrant admits that, on the date the OSC was issued, Registrant was registered as a physician assistant in the State of Arizona. RFAAX 2, at 2. That registration expressly prohibited Registrant from prescribing controlled substances. Id. According to Arizona online records, of which the Agency takes official notice, Registrant's Arizona physician assistant license has since expired. 2 Arizona Medical Board, Licensee Search, https://www.azmd.gov/doctorsearch/doctorsearch# (last visited date of signature of this Order). The same Arizona online records confirm that Registrant's license-while active-prohibited him from prescribing controlled substances. Id. Accordingly, the Agency finds that Registrant is not currently licensed to practice as a physician assistant or to handle controlled substances in Arizona, the state in which he is registered with DEA. 3
Footnotes:
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 as a physician assistant or to handle controlled substances in Arizona. 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 Office of the Administrator, Drug Enforcement Administration, at dea.addo.attorneys@dea.gov.
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. §?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
Footnotes:
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 71371-72; Sheran Arden Yeats, 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 Arizona statute, "[e]very person who manufactures, distributes, dispenses, prescribes or uses for scientific purposes any controlled substance within [Arizona] or who proposes to engage in the manufacture, distribution, prescribing or dispensing of or using for scientific purposes any controlled substance within [Arizona]must first: (1) [o]btain and possess a current license or permit as a medical practitioner as defined in §?32-1901 . . . ." Ariz. Rev. Stat. Ann. §?36-2522(A)(1) (West 2025). Section 32-1901 defines a "[m]edical practitioner" as "any medical doctor . . . or other person who is licensed and authorized by law to use and prescribe drugs and devices to treat sick and injured human beings or animals or to diagnose or prevent sickness in human beings or animals in [Arizona] or any state, territory or district of the United States." Id. at 32-1901.
[top] Here, the undisputed evidence in the record is that Registrant lacks authority to practice as a physician assistant or to handle controlled substances in Arizona. As discussed above, only a licensed medical practitioner can dispense controlled substances in Arizona. Thus, because Registrant lacks authority to practice as a physician assistant or to handle controlled substances in Arizona, and therefore is not a licensed medical practitioner, Registrant is not eligible to maintain a
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. MG8041206 issued to Elias Garcia Garcia, P.A. 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 Elias Garcia Garcia, P.A., to renew or modify this registration, as well as any other pending application of Elias Garcia Garcia, P.A., for additional registration in Arizona. This Order is effective August 13, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on July 9, 2025, by Acting Administrator Robert J. Murphy. 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. 2025-13119 Filed 7-11-25; 8:45 am]
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