Bourne Pharmacy, Inc.; Revocation of Registration, 18273-18274 [E7-6760]
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Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Notices
National Park Service
Flight 93 National Memorial Advisory
Commission; Notice of meeting
Dated: March 23, 2007.
Joanne M. Hanley,
Superintendent, Flight 93 National Memorial.
[FR Doc. 07–1781 Filed 4–10–07; 8:45 am]
BILLING CODE 4312–25–M
DEPARTMENT OF THE INTERIOR
AGENCY:
National Park Service.
DEPARTMENT OF JUSTICE
Notice of April 28, 2007
meeting.
ACTION:
Drug Enforcement Administration
SUMMARY: This notice sets forth the date
of the April 28, 2007 meeting of the
Flight 93 Advisory Commission.
The public meeting of the
Advisory Commission will be held on
Saturday, April 28, 2007 from 12 noon
to 3 p.m. (Eastern) and 9 a.m. to 12 noon
(Pacific). The Commission will meet
jointly with the Flight 93 Memorial Task
Force.
Location: The meeting will be held in
Fort Mason, Building 201, Golden Gate
National Parks, San Francisco,
California 94123–0022. To access Fort
Mason, please use the entrance at
Franklin and Bay Streets.
The meeting will be connected to the
East Coast via teleconference at the
Flight 93 National Memorial Office, 109
West Main Street, Suite 104, Somerset,
Pennsylvania 15501. The public is
encouraged and welcome to attend
either the west coast meeting or the east
coast teleconference.
Agenda: The April 28, 2007 joint
Commission and Task Force meeting
will consist of:
(1) Opening of Meeting and Pledge of
Allegiance.
(2) Review and Approval of
Commission Minutes from January 27,
2007.
(3) Reports from the Flight 93
Memorial Task Force and National Park
Service. Comments from the public will
be received after each report and/or at
the end of the meeting.
(4) Old Business.
(5) New Business.
(6) Public Comments.
(7) Closing Remarks.
DATES:
FOR FURTHER INFORMATION CONTACT:
Joanne M. Hanley, Superintendent,
Flight 93 National Memorial, 109 West
Main Street, Somerset, PA 15501,
814.443.4557.
The
meeting will be open to the public. Any
member of the public may file with the
Commission a written statement
concerning agenda items. Address all
statements to: Flight 93 Advisory
Commission, 109 West Main Street,
Somerset, PA 15501.
cprice-sewell on PRODPC61 with NOTICES
SUPPLEMENTARY INFORMATION:
VerDate Aug<31>2005
15:09 Apr 10, 2007
Jkt 211001
[Docket No. 06–68]
Bourne Pharmacy, Inc.; Revocation of
Registration
On July 26, 2006, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Bourne Pharmacy, Inc.,
(Respondent) of Buzzards Bay,
Massachusetts. The Show Cause Order
proposed the revocation of
Respondent’s DEA Certificate of
Registration, AB2802468, as a retail
pharmacy, and to deny any pending
applications for renewal or modification
of the registration, on the ground that
Respondent’s continued registration
would be inconsistent with the public
interest. Show Cause Order at 1 (citing
21 U.S.C. 823(f) & 824(a)(4)).
The Show Cause Order alleged that on
September 21, 2005, investigators from
DEA and the Massachusetts Board of
Pharmacy had executed an
administrative inspection warrant at
Respondent and found it to be in
violation of various federal regulations.
See id. at 2. Specifically, the Show
Cause Order alleged that: (1)
Respondent had failed to maintain a
biennial inventory as required by 21
CFR 1304.11(c) and 1304.21, (2) had
failed to maintain drug destruction
records as required by 21 CFR
1304.21(a), (3) was storing controlled
substances at a non-registered location
in violation of 21 CFR 1304.04, and (4)
was improperly storing order forms for
Schedule II controlled substances. Show
Cause Order at 2.
The Show Cause Order further alleged
that on August 22, 2005, Dr. Michael
Brown, a Massachusetts based
physician, was arrested and charged
with various drug offenses under state
law, including conspiracy to violate
drug laws and possession of various
categories of controlled substances with
the intent to distribute. See id. at 2.
According to the Show Cause Order,
investigators further determined that
during the calendar year 2005, forty-five
percent of the prescriptions for
Schedule II controlled substances filled
by Respondent were written by Dr.
Brown; in the month of April 2005
PO 00000
Frm 00079
Fmt 4703
Sfmt 4703
18273
alone, 92 of 168 Schedule II
prescriptions filled by Respondent were
written by Dr. Brown. Id. at 2–3.
Finally, the Show Cause Order alleged
that on October 25, 2005, the
Massachusetts Board of Pharmacy had
issued a ‘‘Final Order of Summary
Suspension,’’ which suspended
Respondent’s state pharmacy permit
and controlled substance registration,
and that these suspensions remain in
effect. Id. at 3. The Show Cause Order
thus alleged that Respondent lacked
authority under state law to handle
controlled substances and that this
authority is ‘‘a necessary prerequisite for
DEA registration.’’ Id.
Respondent, through its counsel,
requested a hearing; the matter was
assigned to Administrative Law Judge
(ALJ) Mary Ellen Bittner. Shortly
thereafter, the Government moved for
summary disposition on the ground that
the Massachusetts Board of Pharmacy
had issued a Final Order of Summary
Suspension against Respondent’s state
pharmacy permit and the pharmacist’s
license of its owner (Mr. Gerald
Liberfarb) and pharmacist in charge.
Mot. for Summ. Disp. at 2. Attached to
the Government’s motion was the
State’s summary suspension order, as
well as a copy of Respondent’s DEA
registration (which does not expire until
July 31, 2008). See Attachments 1 & 2
to Mot. for Summ. Disp.
Respondent opposed the
Government’s motion. Respondent
contended that ‘‘on October 24, 2005,
[it] had already voluntarily surrendered
its [state] registered drug store
certificate’’ and controlled substance
registration to the Massachusetts
Department of Public Health, ‘‘to be
held in escrow pending a hearing on the
merits to be held * * * before the Board
of Registration in Pharmacy.’’ Resp.
Opp. at 1. Respondent also argued that
the Massachusetts Board ‘‘has never
implemented or executed the Final
Order of Summary Suspension,’’ and
that it has meritorious defenses to the
DEA Show Cause Order. Id. Finally,
Respondent contended that it was ‘‘both
premature and unduly prejudicial to act
upon the Government’s Motion * * *
until after [the] state agency’’ held its
hearing and made a decision. Id. at 2.
In support of its contention,
Respondent’s counsel attached a letter
he had written to an attorney for the
State Board memorializing the fact that
Respondent had delivered its state
registration and certificates to be held
by the State ‘‘in escrow until a final
decision is issued on the merits.’’ Ex. 1
to Resp. Opp. Respondent also attached
other documents including a ‘‘Notice of
Fourth Rescheduled Hearing,’’ Ex. 2 to
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11APN1
cprice-sewell on PRODPC61 with NOTICES
18274
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Notices
Resp. Opp., and a ‘‘Rescheduled Second
Pre-Hearing Conference Order.’’ Ex. 3 to
Resp. Opp.
The ALJ granted the Government’s
motion. The ALJ found that there was
no material factual dispute regarding
whether Respondent currently has
authority under Massachusetts law to
handle controlled substances. ALJ Dec.
at 3. The ALJ specifically rejected
Respondent’s contention that its state
controlled substance registration had
not been suspended, but rather, was
being held in escrow by the
Massachusetts Board pending a final
decision. Id. Relatedly, the ALJ also
dismissed Respondent’s argument that
the State never implemented the
summary suspension order, reasoning
that ‘‘whether the license is suspended
pending a hearing on the merits, or is
held in escrow,’’ is irrelevant, because
‘‘[i]n either event, Respondent is
without authority to handle controlled
substances in Massachusetts.’’ Id. The
ALJ thus held that Respondent is not
entitled to maintain its DEA registration
and recommended that I revoke
Respondent’s registration. The ALJ then
forwarded the record to me for final
agency action.
Having considered the record as a
whole, I adopt the ALJ’s holding that
Respondent is currently without
authority to handle controlled
substances in Massachusetts and is
therefore not entitled to maintain its
DEA registration. Here, the State’s
‘‘Final Order of Summary Suspension,’’
which is signed by the Board’s
President, clearly ordered the
suspension, effective October 23, 2005,
of Respondent’s state controlled
substance registration ‘‘pending a final
decision on the merits.’’
Respondent’s assertion that the State
‘‘has never executed or implemented the
Final Order of Summary Suspension’’
does not raise a genuine issue of fact
that requires a hearing to resolve.
Respondent’s evidence—i.e., a letter to
the Board’s lawyer discussing an
agreement to surrender its state
registration to be held in escrow
pending a final decision—does not
create a factual dispute as to whether
Respondent’s state registration has been
suspended. As a leading authority
explains, ‘‘evidence in opposition to the
motion that is clearly without any force
is insufficient to raise a genuine issue.’’
Charles Allen Wright, et al., Federal
Practice and Procedure section 2727
(3d. ed. 2006).1 In short, this letter
1 Respondent’s other evidence likewise does not
create a factual dispute as to whether its state
controlled substance registration has been
suspended.
VerDate Aug<31>2005
15:09 Apr 10, 2007
Jkt 211001
contains nothing that refutes the
Government’s assertion that
Respondent’s state controlled substance
registration has been suspended.
Under the Controlled Substances Act
(CSA), it is irrelevant that Respondent’s
state registration is being held in escrow
pending state proceedings. Under the
Act, a practitioner must be currently
authorized to handle controlled
substances in ‘‘the jurisdiction in which
[it] practices’’ in order to maintain its
DEA registration. See 21 U.S.C. 802(21)
(‘‘[t]he term ‘practitioner’ means a * * *
pharmacy * * * licensed, registered, or
otherwise permitted, by * * * the
jurisdiction in which [it] practices
* * * to * * * dispense * * * a
controlled substance in the course of
professional practice’’). See also id.
section 823(f) (‘‘The Attorney General
shall register practitioners * * * if the
applicant is authorized to dispense
* * * controlled substances under the
laws of the State in which [it]
practices.’’).
Furthermore, in section 304, Congress
expressly authorized the revocation of a
DEA registration issued to a registrant
whose ‘‘State license or registration [has
been] suspended * * * by competent
State authority and is no longer
authorized by State law to engage in the
* * * dispensing of controlled
substances.’’ Id. section 824(a)(3). By
definition, a suspension is of a finite
duration. See Merriam-Webster’s
Collegiate Dictionary 1187 (10th ed.
1998) (defining ‘‘suspend’’ as ‘‘to debar
temporarily from a privilege
* * * or function’’). Under the CSA, it
does not matter whether the suspension
is for a fixed term or for a duration
which has yet to be determined because
it is continuing pending the outcome of
a state proceeding. Rather, what
matters—as DEA has repeatedly held—
is whether Respondent is without
authority under Massachusetts law to
dispense a controlled substance. See
Oakland Medical Pharmacy, 71 FR
50100, 50,102 (2006) (‘‘a registrant may
not hold a DEA registration if it is
without appropriate authority under the
laws of the state in which it does
business’’); Accord Rx Network of South
Florida, LLC, 69 FR 62,093 (2004);
Wingfield Drugs, Inc., 52 FR 27,070
(1987).
Because the State suspended its
controlled substances registration,
Respondent clearly lacks authority
under Massachusetts law to handle
controlled substances. Therefore, it is
not entitled to maintain its DEA
registration.
PO 00000
Frm 00080
Fmt 4703
Sfmt 4703
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) & 824(a), as well as
28 CFR 0.100(b) and 0.104, I hereby
order that DEA Certificate of
Registration, AB2802468, issued to
Bourne Pharmacy, Inc., be and it hereby
is, revoked. I further order that any
pending applications for renewal or
modification of such registration be, and
they hereby are, denied. This order is
effective May 11, 2007.
Dated: March 30, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7–6760 Filed 4–10–07; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 06–58]
Piyush V. Patel, M.D.; Revocation of
Registration
On May 9, 2006, the Deputy Assistant
Administrator, Office of Diversion
Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Piyush V. Patel, M.D.
(Respondent) of Midland, Texas. The
Show Cause Order proposed the
revocation of Respondent’s DEA
Certificate of Registration, AP1614800,
as a practitioner, on the ground that
Respondent’s license to practice
medicine in the State of Texas had been
revoked, and that Respondent was
therefore ‘‘without authority to handle
controlled substances in Texas, the State
in which [he] practices.’’ Show Cause
Order at 1. The Show Cause Order also
informed Respondent of his right to
request a hearing.
Respondent, acting pro se, filed a
timely request for a hearing; the matter
was assigned to Administrative Law
Judge (ALJ) Mary Ellen Bittner. In that
request, Respondent stated that he was
currently incarcerated and requested
that the hearing be delayed until after
his release on April 7, 2007. Respondent
also indicated that he was not currently
licensed by the Texas State Board of
Medical Examiners.
On June 21, 2006, the Government
moved for summary disposition on the
ground that Respondent was ‘‘not
currently authorized to engage in the
active practice of medicine or to handle
controlled substances in Texas.’’ Mot.
for Summary Disp. at 2. In support of its
motion, the Government attached an
‘‘Agreed Order’’ (dated August 26, 2005)
which Respondent had entered into
with the Texas State Board of Medical
E:\FR\FM\11APN1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 69 (Wednesday, April 11, 2007)]
[Notices]
[Pages 18273-18274]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-6760]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 06-68]
Bourne Pharmacy, Inc.; Revocation of Registration
On July 26, 2006, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Bourne Pharmacy, Inc., (Respondent) of Buzzards Bay,
Massachusetts. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, AB2802468, as a retail
pharmacy, and to deny any pending applications for renewal or
modification of the registration, on the ground that Respondent's
continued registration would be inconsistent with the public interest.
Show Cause Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)).
The Show Cause Order alleged that on September 21, 2005,
investigators from DEA and the Massachusetts Board of Pharmacy had
executed an administrative inspection warrant at Respondent and found
it to be in violation of various federal regulations. See id. at 2.
Specifically, the Show Cause Order alleged that: (1) Respondent had
failed to maintain a biennial inventory as required by 21 CFR
1304.11(c) and 1304.21, (2) had failed to maintain drug destruction
records as required by 21 CFR 1304.21(a), (3) was storing controlled
substances at a non-registered location in violation of 21 CFR 1304.04,
and (4) was improperly storing order forms for Schedule II controlled
substances. Show Cause Order at 2.
The Show Cause Order further alleged that on August 22, 2005, Dr.
Michael Brown, a Massachusetts based physician, was arrested and
charged with various drug offenses under state law, including
conspiracy to violate drug laws and possession of various categories of
controlled substances with the intent to distribute. See id. at 2.
According to the Show Cause Order, investigators further determined
that during the calendar year 2005, forty-five percent of the
prescriptions for Schedule II controlled substances filled by
Respondent were written by Dr. Brown; in the month of April 2005 alone,
92 of 168 Schedule II prescriptions filled by Respondent were written
by Dr. Brown. Id. at 2-3.
Finally, the Show Cause Order alleged that on October 25, 2005, the
Massachusetts Board of Pharmacy had issued a ``Final Order of Summary
Suspension,'' which suspended Respondent's state pharmacy permit and
controlled substance registration, and that these suspensions remain in
effect. Id. at 3. The Show Cause Order thus alleged that Respondent
lacked authority under state law to handle controlled substances and
that this authority is ``a necessary prerequisite for DEA
registration.'' Id.
Respondent, through its counsel, requested a hearing; the matter
was assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner.
Shortly thereafter, the Government moved for summary disposition on the
ground that the Massachusetts Board of Pharmacy had issued a Final
Order of Summary Suspension against Respondent's state pharmacy permit
and the pharmacist's license of its owner (Mr. Gerald Liberfarb) and
pharmacist in charge. Mot. for Summ. Disp. at 2. Attached to the
Government's motion was the State's summary suspension order, as well
as a copy of Respondent's DEA registration (which does not expire until
July 31, 2008). See Attachments 1 & 2 to Mot. for Summ. Disp.
Respondent opposed the Government's motion. Respondent contended
that ``on October 24, 2005, [it] had already voluntarily surrendered
its [state] registered drug store certificate'' and controlled
substance registration to the Massachusetts Department of Public
Health, ``to be held in escrow pending a hearing on the merits to be
held * * * before the Board of Registration in Pharmacy.'' Resp. Opp.
at 1. Respondent also argued that the Massachusetts Board ``has never
implemented or executed the Final Order of Summary Suspension,'' and
that it has meritorious defenses to the DEA Show Cause Order. Id.
Finally, Respondent contended that it was ``both premature and unduly
prejudicial to act upon the Government's Motion * * * until after [the]
state agency'' held its hearing and made a decision. Id. at 2.
In support of its contention, Respondent's counsel attached a
letter he had written to an attorney for the State Board memorializing
the fact that Respondent had delivered its state registration and
certificates to be held by the State ``in escrow until a final decision
is issued on the merits.'' Ex. 1 to Resp. Opp. Respondent also attached
other documents including a ``Notice of Fourth Rescheduled Hearing,''
Ex. 2 to
[[Page 18274]]
Resp. Opp., and a ``Rescheduled Second Pre-Hearing Conference Order.''
Ex. 3 to Resp. Opp.
The ALJ granted the Government's motion. The ALJ found that there
was no material factual dispute regarding whether Respondent currently
has authority under Massachusetts law to handle controlled substances.
ALJ Dec. at 3. The ALJ specifically rejected Respondent's contention
that its state controlled substance registration had not been
suspended, but rather, was being held in escrow by the Massachusetts
Board pending a final decision. Id. Relatedly, the ALJ also dismissed
Respondent's argument that the State never implemented the summary
suspension order, reasoning that ``whether the license is suspended
pending a hearing on the merits, or is held in escrow,'' is irrelevant,
because ``[i]n either event, Respondent is without authority to handle
controlled substances in Massachusetts.'' Id. The ALJ thus held that
Respondent is not entitled to maintain its DEA registration and
recommended that I revoke Respondent's registration. The ALJ then
forwarded the record to me for final agency action.
Having considered the record as a whole, I adopt the ALJ's holding
that Respondent is currently without authority to handle controlled
substances in Massachusetts and is therefore not entitled to maintain
its DEA registration. Here, the State's ``Final Order of Summary
Suspension,'' which is signed by the Board's President, clearly ordered
the suspension, effective October 23, 2005, of Respondent's state
controlled substance registration ``pending a final decision on the
merits.''
Respondent's assertion that the State ``has never executed or
implemented the Final Order of Summary Suspension'' does not raise a
genuine issue of fact that requires a hearing to resolve. Respondent's
evidence--i.e., a letter to the Board's lawyer discussing an agreement
to surrender its state registration to be held in escrow pending a
final decision--does not create a factual dispute as to whether
Respondent's state registration has been suspended. As a leading
authority explains, ``evidence in opposition to the motion that is
clearly without any force is insufficient to raise a genuine issue.''
Charles Allen Wright, et al., Federal Practice and Procedure section
2727 (3d. ed. 2006).\1\ In short, this letter contains nothing that
refutes the Government's assertion that Respondent's state controlled
substance registration has been suspended.
---------------------------------------------------------------------------
\1\ Respondent's other evidence likewise does not create a
factual dispute as to whether its state controlled substance
registration has been suspended.
---------------------------------------------------------------------------
Under the Controlled Substances Act (CSA), it is irrelevant that
Respondent's state registration is being held in escrow pending state
proceedings. Under the Act, a practitioner must be currently authorized
to handle controlled substances in ``the jurisdiction in which [it]
practices'' in order to maintain its DEA registration. See 21 U.S.C.
802(21) (``[t]he term `practitioner' means a * * * pharmacy * * *
licensed, registered, or otherwise permitted, by * * * the jurisdiction
in which [it] practices * * * to * * * dispense * * * a controlled
substance in the course of professional practice''). See also id.
section 823(f) (``The Attorney General shall register practitioners * *
* if the applicant is authorized to dispense * * * controlled
substances under the laws of the State in which [it] practices.'').
Furthermore, in section 304, Congress expressly authorized the
revocation of a DEA registration issued to a registrant whose ``State
license or registration [has been] suspended * * * by competent State
authority and is no longer authorized by State law to engage in the * *
* dispensing of controlled substances.'' Id. section 824(a)(3). By
definition, a suspension is of a finite duration. See Merriam-Webster's
Collegiate Dictionary 1187 (10th ed. 1998) (defining ``suspend'' as
``to debar temporarily from a privilege * * * or function''). Under the
CSA, it does not matter whether the suspension is for a fixed term or
for a duration which has yet to be determined because it is continuing
pending the outcome of a state proceeding. Rather, what matters--as DEA
has repeatedly held--is whether Respondent is without authority under
Massachusetts law to dispense a controlled substance. See Oakland
Medical Pharmacy, 71 FR 50100, 50,102 (2006) (``a registrant may not
hold a DEA registration if it is without appropriate authority under
the laws of the state in which it does business''); Accord Rx Network
of South Florida, LLC, 69 FR 62,093 (2004); Wingfield Drugs, Inc., 52
FR 27,070 (1987).
Because the State suspended its controlled substances registration,
Respondent clearly lacks authority under Massachusetts law to handle
controlled substances. Therefore, it is not entitled to maintain its
DEA registration.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that DEA
Certificate of Registration, AB2802468, issued to Bourne Pharmacy,
Inc., be and it hereby is, revoked. I further order that any pending
applications for renewal or modification of such registration be, and
they hereby are, denied. This order is effective May 11, 2007.
Dated: March 30, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-6760 Filed 4-10-07; 8:45 am]
BILLING CODE 4410-09-P
