R. Bruce Phillips, D.D.S.; Grant of Application

DEPARTMENT OF JUSTICE

[Docket No. 94-73]

R. Bruce Phillips, D.D.S.; Grant of Application

On August 11, 1994, the Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement Administration (DEA), issued an

Order

[[Page 10790]]

to Show Cause to R. Bruce Phillips, D.D.S., (Respondent) of Pineville,

Louisiana, notifying him of an opportunity to show cause as to why DEA

should not deny his application for registration as a practitioner

under 21 U.S.C. 823(f), as being inconsistent with the public interest.

Specifically, the Order to Show Cause alleged that:

(1) In 1985, the Louisiana State Police conducted an investigation

concerning the Respondent's prescribing practices. The investigation

revealed that between January 1980 and September 1985, the Respondent

prescribed large amounts of controlled substances to several

individuals for no legitimate medical reason.

(2) As a result of this investigation, in August 1986, a one-count

Bill of Information was filed in the United States District Court,

Western District of Louisiana, charging the Respondent with unlawfully

dispensing 1,263 dosage units of controlled substances. On September 2,

1986, the Respondent pled guilty to the Bill of Information. The

Respondent was sentenced to a six-month period of confinement, placed

on probation for four years, and ordered to pay a fine of $5,000.00.

(3) Following the Respondent's conviction, he entered into a

consent agreement with the Louisiana State Board of Dentistry (Dental

Board) on October 28, 1986. As part of the agreement, the Dental Board

placed his dental license on probation for five years subject to

certain terms and conditions, and the Respondent's State authority to

handle controlled substances was revoked permanently. As a result, on

October 27, 1986, the Respondent voluntarily surrendered his DEA

Certificate of Registration, AP3383685. On July 23, 1992, the Dental

Board reinstated the Respondent's State privileges to prescribe

controlled substances.

On September 6, 1994, the Respondent, through counsel, filed a

timely request for a hearing, and following prehearing procedures, a

hearing was held in New Orleans, Louisiana, on June 21, 1995, before

Administrative Law Judge Paul A. Tenney. At the hearing, both parties

called witnesses to testify and introduced documentary evidence, and

after the hearing, counsel for both sides submitted proposed findings

of fact, conclusions of law and argument. On August 28, 1995, Judge

Tenney issued his Opinion and Recommended Ruling, recommending that the

Respondent's application for registration be granted. Neither party

filed exceptions to his decision, and on September 28, 1995, Judge

Tenney transmitted the record of these proceedings to the Deputy

Administrator.

The Deputy Administrator has considered the record in its entirety,

and pursuant to 21 CFR 1316.67, hereby issues his final order based

upon findings of fact and conclusions of law as hereinafter set forth.

The Deputy Administrator adopts, in full, the Findings of Fact,

Conclusions of Law, and Recommended Ruling of the Administrative Law

Judge, and his adoption is in no manner diminished by any recitation of

facts, issues and conclusions herein, or of any failure to mention a

matter of fact or law.

The Deputy Administrator finds that, pursuant to stipulations made

by the parties before Judge Tenney, the following facts are not in

dispute: (1) In 1985, the Louisiana State Police conducted an

investigation concerning the Respondent's prescribing practices, which

covered the period of January 1980 and September 1985; (2) in August

1986, a one-count Bill of Information was filed in the United States

District Court, Western District of Louisiana, relating to the

Respondent's unlawful dispensing of 1,263 dosage units of controlled

substances; (3) on September 2, 1986, the Respondent pled guilty to the

Bill of Information, and he was sentenced to a six-month period of

confinement, placed on probation for four years, and ordered to pay a

fine of $5,000.00; (4) following his conviction, the Respondent entered

into a consent agreement with the Dental Board on October 28, 1986, and

as part of the agreement, the Dental Board placed the Respondent's

dental license on probation for five years, subject to certain terms

and conditions, and his State authority to handle controlled substances

was revoked; and (5) on October 27, 1986, the Respondent voluntarily

surrendered his DEA Certificate of Registration, but on July 23, 1992,

the Dental Board reinstated his State privileges to prescribe

controlled substances. The parties also stipulated that Percodan,

Demerol, and Mepergan Fortais are Schedule II controlled substances.

The Deputy Administrator also finds that the Respondent is a Board

qualified oral and maxillo-facial surgeon who has practiced in that

field of speciality since 1958. He is licensed to practice his

specialty in the State of Louisiana. On August 5, 1992, he executed an

application for registration as a practitioner with the DEA.

The acts underlying the criminal conviction include the

Respondent's conduct of issuing prescriptions for controlled substances

at the request of two individuals, after he had been drinking alcohol

to excess. One of these individuals was a local resident with widely

known criminal ties, and the second individual was a local attorney who

was representing the Respondent in a pending court action. The

Respondent did not maintain office records for either of these

individuals. During an interview with the State police on August 26,

1986, the Respondent admitted that he had issued prescriptions to the

first individual as a personal favor, even though this individual

suffered ailments outside the Respondent's area of practice.

Before Judge Tenney, a Special Agent with the FBI testified about

the investigation he had conducted while employed as a Louisiana State

Trooper involving the Respondent. He stated that from May of 1980 to

August of 1984, the Respondent had issued 77 prescriptions for almost

1,500 dosage units of controlled substances for the first individual or

his wife. During the same interview with the State Trooper, the

Respondent admitted that, before prescribing controlled substances to

the attorney, he had not conducted an examination, and that, although

he had become aware that the attorney was abusing the drugs he

prescribed for him, he continued to issue the prescriptions for

controlled substances partly out of friendship, and partly out of fear

that the attorney would not properly handle his lawsuit should the

Respondent cease providing the prescriptions. From 1982 to 1984, the

Respondent wrote a total of 36 prescriptions to this attorney for a

total of 710 dosage units of Percodan.

Judge Tenney found that the evidence established that ``the vast

majority, if not all of the unlawful prescriptions were issue[d] while

[the Respondent] was under the influence of alcohol.'' He also found

that the ``State police investigation revealed that both [of these

individuals] took advantage of [the Respondent's] intoxicated state and

`used' him for the purpose of obtaining controlled dangerous

substances.''

As a result of this conduct, the Respondent entered a guilty plea

in Federal court for unlawfully dispensing Percodan. The Court

sentenced him to five years imprisonment, but suspended all but six

months of this time, and placed him on probation for four years. He was

also ordered to pay a fine of $5,000.00. The Respondent also entered

into a consent agreement with the Dental Board. The consent agreement

levied conditions upon his continued practice of dentistry, to include

placing him on probation for five years and revoking his State

registration to handle controlled substances.

[[Page 10791]]

The Respondent had an early release fro the detention center, he

performed 400 hours of community service at the Huey P. Long Medical

Center, and he paid his fine. On November 19, 1990, the Respondent's

probation was terminated early upon the recommendation of his probation

officer. Further, the Respondent voluntarily quit drinking alcohol

about ten years ago, a fact corroborated by his co-workers, one of

which testified before Judge Tenney that he believed that the

Respondent had ``quit drinking completely.''

Although the consent decree at the Dental Board indicated that the

Respondent's certificate to prescribe controlled substances was

``revoked'' permanently, the Respondent's license to prescribe

controlled substances was reissued by the State Department of Health

and Hospitals. Further, testimony was received from a representative of

the Dental Board, that the Board had not received any complaints

concerning the Respondent, and that he as ``in good standing.''

Finally, the record contains a document demonstrating that the Dental

Board ``strongly recommended the return of [the Respondent's] DEA

registration.''

Currently, the Respondent is employed at the Huey P. Long Medical

Center (Center), and he is performing his dental specialty at the

Center's satellite clinic on England Air Force Base. The Center's

director submitted an affidavit dated June 19, 1995, writing that he

had known the Respondent for nearly 30 years, was aware of his problems

which surfaced in the mid-1980's, and that it was his opinion that the

Respondent was ``a skilled, competent, [and] knowledgeable oral surgeon

with a good moral character.'' He also wrote that the Respondent

operated at the clinic daily and saw approximately 2,500 patients

annually.

Another dentist working at the Center testified before Judge

Tenney, stating that the Respondent was a highly competent oral and

maxillo-facial surgeon, and he recommended that the Respondent's DEA

Certificate of Registration be reinstated. This colleague also opined

that the Respondent had a strong relationship with his wife, children,

and grandchildren.

Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an

application for registration as a practitioner, if he determines that

granting the registration would be inconsistent with the public

interest. Section 823(f) requires that the following factors be

considered:

(1) The recommendation of the appropriate State licensing board or

professional disciplinary authority.

(2) The applicant's experience in dispensing, or conducting

research with respect to controlled substances.

(3) The applicant's conviction record under Federal or State laws

relating to the manufacture, distribution, or dispensing of controlled

substances.

(4) Compliance with applicable State, Federal, or local laws

relating to controlled substances.

(5) Such other conduct which may threaten the public health or

safety. These factors are to be considered in the disjunctive; the

Deputy Administrator may rely on any one or a combination of factors

and may give each factor the weight he deems appropriate in determining

whether a registration should be revoked or an application for

registration denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42,

54 FR 16422 (1989).

In this case, all five factors are relevant in determining whether

the Respondent's registration would be inconsistent with the public

interest. As to factor one, ``recommendation of the appropriate State

licensing board, * * *'' the consent decree of record between the

Respondent and the Dental Board is relevant, indicating the State

licensing board's response to the Respondent's misconduct. However,

also relevant is the Dental Board's contribution of the Respondent's

license to practice dentistry, for it was never revoked, and the

reinstatement of the Respondent's State license to prescribe controlled

substances. Finally, the Dental Board, in correspondence to the

Respondent, recommended that his DEA registration application be

granted.

As to factor two, the Respondent's ``experience in dispensing * * *

controlled substances,'' factor four, the Respondent's ``[c]ompliance

with applicable State, Federal, or local laws relating to controlled

substances,'' and factor five, ``[s]uch other conduct which may

threaten the public health or safety,'' there is no dispute that in the

mid-1980's, the Respondent had engaged in the unlawful prescribing of

controlled substances for no legitimate medical purpose. Further, as to

factor three, the Respondent's ``conviction record under Federal or

State laws relating to the * * * distribution, or dispensing of

controlled substances,'' there is no dispute that the Respondent,

pursuant to the entry of a guilty plea, was convicted of the unlawful

dispensing of 1,263 dosage units of controlled substances. Thus, the

Deputy Administrator agrees with Judge Tenney's conclusion that the

Government has made a prima facie case for denying the Respondent's

application.

However, the Respondent presented considerable evidence of

rehabilitation. The Respondent had engaged in his prior misconduct

while under the influence of alcohol. Now, however, the record supports

a finding that the Respondent, for approximately ten years, voluntarily

has quit drinking alcohol. Judge Tenney also found that the Respondent

had demonstrated, and other witnesses had corroborated, that he had

experienced a significant life change since he stopped drinking

alcohol. His relationship with his wife has improved; he has close

relationships with his children and grandchildren; and he was active in

his church. Professionally, he is in good standing with the Dental

Board, and the Director of the Center where he is employed supports his

application.

In light of the above, the Deputy Administrator agrees with Judge

Tenney's conclusion that the Respondent ``has accepted responsibility

for his actions and has suffered the consequences. In balance, it is

evident that [the Respondent] has turned his life around and will not

repeat the mistakes of the past.'' Although in no way condoning the

Respondent's past misconduct, the Deputy Administrator finds that now

the public's interest is best served by issuing a DEA Certificate of

Registration to the Respondent.

Accordingly, the Deputy Administrator of the Drug Enforcement

Administration, pursuant to the authority vested in him by 21 U.S.C.

823, and 28 CFR 0.100(b) and 0.104, hereby orders that the pending

application of R. Bruce Phillips, D.D.S., for a DEA Certificate of

Registration, be, and it hereby is, approved. This order is effective

March 15, 1996.

Dated: March 7, 1996.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 96-6221 Filed 3-14-96; 8:45 am]

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