Your Druggist Pharmacy; Revocation of Registration, 75774-75776 [E8-29407]
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Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Notices
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Under the Controlled Substances Act
(CSA), ‘‘[a] separate registration [is]
required at each principal place of
* * * professional practice where the
[registrant] dispenses controlled
substances,’’ 21 U.S.C. 822(e), and a
practitioner must be currently
authorized to handle controlled
substances in ‘‘the jurisdiction in which
he practices’’ in order to maintain a
DEA registration. See 21 U.S.C. 802(21)
(‘‘[t]he term ‘practitioner’ means a
physician * * * 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’’). See
also id. § 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 he
practices.’’). As these provisions make
plain, possessing authority to dispense
a controlled substance under the laws of
the State in which a dentist practices is
an essential condition for holding a DEA
registration.
Accordingly, DEA has repeatedly held
that the CSA requires the revocation of
a registration issued to a practitioner
whose state license has been suspended
or revoked. See Sheran Arden Yeates,
71 FR 39130, 39131 (2006); Dominick A.
Ricci, 58 FR 51104, 51105 (1993); Bobby
Watts, 53 FR 11919, 11920 (1988). See
also 21 U.S.C. 824(a)(3)(authorizing the
revocation of a registration ‘‘upon a
finding that the registrant * * * has had
his State license or registration
suspended [or] revoked * * * and is no
longer authorized by State law to engage
in the * * * distribution [or] dispensing
of controlled substances’’).
Moreover, DEA has repeatedly held
‘‘that a registrant cannot collaterally
attack the results of a state criminal or
administrative proceeding in a
proceeding under section 304 of the
CSA.’’ Brenton D. Glisson, M.D., 72 FR
54296, 54297 (2007) (quoting Sunil
Bhasin; M.D., 72 FR 5082, 5083 (2007));
see also Shahid Musud Siddiqui, 61 FR
14818 (1996); Robert A. Leslie, 60 FR
14004 (1995)). Respondent’s contention
that the state proceeding was
fundamentally unfair because the
Director was improperly influenced by
an ex parte communication from a
member of the Illinois House of
Procedure Act and DEA’s regulation, Respondent is
‘‘entitled on timely request to an opportunity to
show to the contrary.’’ 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Accordingly, Respondent may file
a motion for reconsideration within fifteen days of
service of this order which shall commence with
the mailing of the order.
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Representatives is not addressable in
this forum.
Moreover, while it appears that
Respondent is seeking judicial review of
the state proceeding in the Illinois
courts, the suspension nonetheless
remains in effect. Respondent therefore
remains without authority under Illinois
law to dispense controlled substances in
the State in which he is registered.
Because possessing authority under
state law is an essential condition for
holding a registration under the CSA,
see 21 U.S.C. 802(21) & 823(f), and
Respondent’s Illinois controlled
substance license remains suspended,
he is not entitled to a stay of this
proceeding. See Wingfield Drugs, 52 FR
at 27071.
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) & 0.104, I hereby order
that DEA Certificate of Registration,
BR5325091, issued to Hicham K. Riba,
D.D.S., be, and it hereby is, revoked. I
further order that any pending
application of Hicham K. Riba, D.D.S.,
to renew this registration be, and it
hereby is, denied.3 This order is
effective January 12, 2009.
December 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–29406 Filed 12–11–08; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Your Druggist Pharmacy; Revocation
of Registration
On May 28, 2008, I, the Deputy
Administrator of the Drug Enforcement
Administration, issued an Order to
Show Cause and Immediate Suspension
of Registration to Your Druggist
Pharmacy (Respondent), of Coral
Springs, Florida. The Order
immediately suspended Respondent’s
DEA Certificate of Registration,
AY1916103, which authorizes it to
dispense controlled substances as a
retail pharmacy, on the grounds that
Stanley Dyen, its owner and pharmacist3 There is no evidence in the record as to whether
Respondent has applied for a registration in
Tennessee. Nor is there any evidence that
Respondent requested a modification of his
registered location from Illinois to Tennessee.
Because this proceeding was based solely on
Respondent’s loss of authority under Illinois law, it
is not res judicata on the question of whether
granting Respondent a registration to dispense
controlled substances in Tennessee would be
consistent with the public interest.
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in-charge, as well as two of its
employees, Ira Friedberg, a pharmacist,
and Jennifer Lee-Richards, a pharmacy
technician, were diverting large
quantities of oxycodone, a schedule II
controlled substance, and that
Respondent’s continued registration
during the pendency of the proceedings
‘‘constitutes an imminent danger to
public health and safety.’’ Show Cause
Order at 1–2 (citing 21 U.S.C. 824(d) &
841(a)). The Order also proposed the
revocation of Respondent’s registration,
and the denial of any pending
applications to renew or modify its
registration, on the ground that
Respondent’s ‘‘continued registration is
inconsistent with the public interest.’’
Order at 1 (citing 21 U.S.C. 823(f)).
More specifically, the Show Cause
Order alleged that between March and
June 2007, pharmacy technician LeeRichards had ‘‘diverted at least 5,900
dosage units of oxycodone, and at least
500 dosage units of alprazolam.’’ Id.
(citing 21 U.S.C. 841(a)(1)). With respect
to pharmacist Friedberg, the Order
alleged that in February 2008, he had
‘‘diverted at least 7,500 dosage units of
oxycodone.’’ Id. (citing 21 U.S.C.
841(a)(1)).
As to Stanley Dyen, the Order alleged
that in February 2008, he had ‘‘diverted
at least 500 dosage units of hydrocodone
and at least 500 dosage units of
alprazolam,’’ and that ‘‘[o]n February
18, 2008, [he] was arrested for
trafficking in hydrocodone and delivery
of alprazolam.’’ Id. at 1–2. The Order
further alleged that notwithstanding
Stanley Dyen’s arrest, he ‘‘continues to
serve on a daily basis as’’ Respondent’s
pharmacist, and that ‘‘[t]he majority of
the time, [he] is the sole pharmacist
* * * and operates without the
supervision of any other pharmacist or
employee.’’ Id. at 2. Finally, the Order
alleged that on March 4, 2008, Stanley
Dyen had ‘‘transferred ownership of
[Respondent] to * * * his wife, without
complying with the requirements of 21
CFR 1301.52.’’ Id.
On June 2, 2008, DEA Investigators
went to Respondent and served the
Order by handing it to Stanley Dyen. On
June 12, 2008, Respondent requested a
hearing on the allegations, and the
matter was assigned to an
Administrative Law Judge (ALJ), who
proceeded to conduct pre-hearing
procedures. On July 21, 2008, however,
Respondent withdrew its request for a
hearing. That same day, the ALJ issued
an order terminating the proceeding.
Thereafter, the case file was
forwarded to me for final agency action
pursuant to 21 CFR 1301.43(e). Based on
the letter from Respondent’s counsel
withdrawing its request for a hearing, I
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find that Respondent has waived its
right to a hearing. I therefore issue this
Decision and Final Order without a
hearing based on relevant material
contained in the investigative file, see
id., and make the following findings.
Findings
Respondent is the holder of DEA
Certificate of Registration, AY1916103,
which authorized it to dispense
controlled substances in schedule II
through V as a retail pharmacy at the
registered location of 8091 West Sample
Road, Coral Springs, Florida.
Respondent’s registration does not
expire until May 31, 2009.
In June 2007, a DEA Task Force
Officer (TFO) received an anonymous
complaint that Respondent was engaged
in the unlawful distribution of
controlled substances. Thereafter,
investigators observed Jennifer LeeRichards, a pharmacy technician
employed by Respondent, leave the
pharmacy carrying a bag which
contained several small containers.
Local police stopped Lee-Richards and
found that she had in her possession
5800 tablets of oxycodone 30 mg., and
100 tablets of Oxycontin 80 mg., both of
which are schedule II controlled
substances, 21 CFR 1308.12(b)(1), as
well as 500 tablets of alprazolam 2 mg.,
a schedule IV controlled substance. Id.
1308.14(c). During an interview, LeeRichards admitted that she had been
taking controlled substances from
Respondent for approximately two
months and was giving them to her son
(Twane Lee), who sold them.
In an interview, Twane Lee admitted
that he was selling various controlled
substances which he obtained from his
mother. Both Lee-Richards and Twane
Lee were subsequently indicted by a
Federal Grand Jury and charged with
conspiracy to possess oxycodone with
the intent to distribute.
On February 8, 2008, local police
observed C.P. leaving Respondent
carrying a white plastic bag which
contained several cardboard boxes. The
police followed C.P. and initiated a
traffic stop, during which they found
that C.P. had in his possession 7500
tablets of oxycodone 30 mg., 200 tablets
of alprazolam 2 mg., and 100 tablets of
oxycodone 80 mg. C.P. told the police
he had just purchased the drugs from Ira
Friedberg, who worked as a pharmacist
at Respondent. C.P. also related that he
had paid Friedberg $8000 for the drugs.
C.P. cooperated with the authorities
and agreed to attempt to purchase
additional drugs from Friedberg. On
February 12, 2008, Friedberg agreed to
sell C.P. 7500 tablets of oxycodone 30
mg., in exchange for $7,500. Friedberg
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17:56 Dec 11, 2008
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gave C.P. 7500 tablets and his car keys
and told C.P. to place $7500 in his car’s
center console. Friedberg also gave C.P.
an additional 5000 tablets of oxycodone
(which Friedberg was to deliver to L.H.,
a third party) and told C.P. to place it
on the passenger side floorboard of
Friedberg’s car.
Shortly thereafter, Friedberg left
Respondent, entered his car, and drove
away. The police conducted a traffic
stop and recovered the 5000 oxycodone
tablets. A TFO told Friedberg that he
was aware that the tablets were to be
delivered to L.H.; Friedberg then agreed
to cooperate and wear a recording
device.
Friedberg then met L.H. After a
conversation, L.H. went back to his car
and retrieved approximately $5000.
Friedberg and L.H. then went to the
former’s car, opened the passenger-side
door, and placed the money on the front
seat. The police immediately arrested
both Friedberg and L.H., and recovered
both the drugs and the money.
Thereafter, a Federal Grand Jury
indicted both Friedberg and L.H.,
charging each with conspiracy to
possess oxycodone with the intent to
distribute.
The following day, a confidential
source (CS) told the investigators that he
had previously bought hydrocodone and
alprazolam from Stanley Dyen without
a valid prescription. The CS agreed to
make a controlled buy of 500 tablets of
hydrocodone/apap (10/650 mg.) and 500
tablets of alprazolam 2 mg. from Dyen.
On February 18, the CS was provided
$600 of marked currency and went to
Respondent. Upon his arrival, the CS
entered Respondent and paid the $600
to Dyen, who then gave 500 tablets of
hydrocodone/apap (10/650 mg.) and 500
tablets of alprazolam 2 mg. to the CS.
Thereafter, detectives observed Dyen
leave Respondent and conducted a
traffic stop. Dyen was arrested; during a
search incident to his arrest, Dyen was
found to have in his possession the $600
of marked currency. Dyen was
subsequently charged under state law
with trafficking in hydrocodone and
delivery of alprazolam.
On March 14, 2008, a state search
warrant was executed at Respondent.
During the search, investigators
interviewed Dyen, who related that his
wife owned the pharmacy. Investigators
subsequently determined that following
his arrest, Dyen had transferred
ownership of Respondent to his wife,
who was now listed (with the Florida
Secretary of State) as Respondent’s
President.
Investigators subsequently
determined that Respondent was the
largest purchaser of oxycodone in the
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75775
State of Florida, with its purchases
totaling nearly 754,000 tablets between
January 1 and March 22, 2008.
Moreover, during the service of the
Immediate Suspension Order,
investigators received information that
Respondent has a large number of outof-town customers, who had typically
traveled from Kentucky to fill
prescriptions for such drugs as
oxycodone, alprazolam, and
carisoprodol.1 The customers would not
show up until after 5 p.m., and the
pharmacy would fill the prescriptions
even if its employees were unable to
verify the prescriptions’ legitimacy with
the prescribing practitioners because
their offices were closed.
Discussion
Section 304(a) of the Controlled
Substance Act provides that ‘‘[a]
registration * * * to * * * dispense a
controlled substance * * * may be
suspended or revoked by the Attorney
General upon a finding that the
registrant * * * has committed such
acts as would render his registration
under section 823 of this title
inconsistent with the public interest as
determined under such section.’’ 21
U.S.C. 824(a). With respect to a
practitioner (which includes a retail
pharmacy), the Act directs that the
Attorney General consider the following
factors in making the public interest
determination:
(1) The recommendation of the appropriate
State licensing board or professional
disciplinary authority.
(2) The applicant’s experience in
dispensing * * * 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 and safety.
Id. § 823(f).
‘‘[T]hese factors are considered in the
disjunctive.’’ Robert A. Leslie, M.D., 68
FR 15227, 15230 (2003). I ‘‘may rely on
any one or a combination of factors, and
may give each factor the weight [I]
deem[] appropriate in determining
whether a registration should be
revoked.’’ Id. Moreover, I am ‘‘not
required to make findings as to all of the
factors.’’ Hoxie v. DEA, 419 F.3d 477,
482 (6th Cir. 2005); see also Morall v.
DEA, 412 F.3d 165, 173–74 (D.C. Cir.
1While carisoprodol is not controlled under
Federal law, it is controlled under various state
laws and is highly popular with drug abusers,
especially when taken as part of a drug cocktail that
includes an opiate and a benzodiazepine.
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2005). Finally, where the Government
has made out its prima facie case, the
burden shifts to the Respondent to show
why its continued registration would be
consistent with the public interest. See,
e.g., Theodore Neujahr, 65 FR 5680,
5682 (2000); Service Pharmacy, Inc., 61
FR10791, 10795 (1996).
In this case, having considered all of
the factors, I conclude that the evidence
with respect to factors two and four
establishes a prima facie case that
Respondent’s continued registration is
‘‘inconsistent with the public interest.’’
21 U.S.C. 823(f). Accordingly,
Respondent’s registration will be
revoked and any pending application
for renewal of its registration will be
denied.
Factors Two and Four—Respondent’s
Experience in Dispensing Controlled
Substances and Its Record of
Compliance With Applicable
Controlled Substance Laws
As found above, the evidence in this
matter establishes that Respondent was
a supply source for the illicit drug
market in such highly abused
prescription drugs as oxycodone, a
schedule II controlled substance, and
alprazolam, a schedule IV controlled
substance. As the record shows, at least
three individuals including
Respondent’s owner unlawfully
distributed prescription controlled
substances which had been obtained by
the pharmacy. See 21 U.S.C. 841(a)(1).
Even if it was the case that LeeRichards (the pharmacy technician) and
Friedberg (the pharmacist) had stolen
the drugs they were distributing, the
criminal acts of Stanley Dyen,
Respondent’s owner and pharmacist-incharge, in distributing hydrocodone and
alprazolam, provide ample support to
conclude that its continued registration
is ‘‘inconsistent with the public
interest.’’ See VI Pharmacy, Rushdi Z.
Salem, 69 FR 5584, 5585 (2004) (‘‘It is
well settled that a pharmacy operates
under the control of owners,
stockholders, pharmacists, * * * and if
any such person is convicted of a felony
offense related to controlled substances,
grounds exists to revoke the pharmacy’s
registration.’’); Charles J. Gartland,
R.Ph., d.b.a. Manoa Pharmacy, 48 FR
28760, 28761 (1983) (‘‘Pharmacies must
operate through the agency of natural
persons, owners or stockholders, or
other key employees. When such
persons misuse the pharmacy’s
registration by diverting controlled
substances obtained there under, and
when those individuals are convicted as
a result of that diversion, the
pharmacy’s registration becomes subject
to revocation under 21 U.S.C. 824, just
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17:56 Dec 11, 2008
Jkt 217001
as if the pharmacy itself had been
convicted.’’).
Nor is this rule limited to those
instances in which a pharmacy’s owner
or key employee has been formally
convicted of a crime. As explained
above, under Federal law, a registration
is subject to revocation when a
registrant commits acts which render its
registration ‘‘inconsistent with the
public interest.’’ 21 U.S.C. 824(a)(4).
Where a pharmacy’s owner/key
employee commits criminal acts, the
Agency is not required to wait for the
judicial process to work its course
before revoking a registration. I therefore
conclude that Respondent’s continued
registration ‘‘is inconsistent with the
public interest,’’ 21 U.S.C. 823(f), and
that its registration should be revoked.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a)(4), as
well as 28 CFR 0.100(b) & 0.104, I
hereby order that DEA Certificate of
Registration, AY1916103, issued to Your
Druggist Pharmacy, be, and it hereby is,
revoked. I further order that any
pending applications to renew or
modify the registration be, and they
hereby are, denied. This Order is
effective immediately.
Dated: December 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–29407 Filed 12–11–08; 8:45 am]
to 5:30 p.m. on January 8th, and 9 a.m.
to 3:30 p.m. on January 9th, will be
closed.
The closed portions of meetings are
for the purpose of Panel review,
discussion, evaluation, and
recommendations on financial
assistance under the National
Foundation on the Arts and the
Humanities Act of 1965, as amended,
including information given in
confidence to the agency. In accordance
with the determination of the Chairman
of February 28, 2008, these sessions will
be closed to the public pursuant to
subsection (c)(6) of section 552b of Title
5, United States Code.
Any person may observe meetings, or
portions thereof, of advisory panels that
are open to the public, and if time
allows, may be permitted to participate
in the panel’s discussions at the
discretion of the panel chairman. If you
need special accommodations due to a
disability, please contact the Office of
AccessAbility, National Endowment for
the Arts, 1100 Pennsylvania Avenue,
NW., Washington, DC 20506, 202/682–
5532, TDY–TDD 202/682–5496, at least
seven (7) days prior to the meeting.
Further information with reference to
these meetings can be obtained from Ms.
Kathy Plowitz-Worden, Office of
Guidelines & Panel Operations, National
Endowment for the Arts, Washington,
DC 20506, or call 202/682–5691.
BILLING CODE 4410–09–P
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
Dated: December 9, 2008.
Kathy Plowitz-Worden,
Panel Coordinator, Panel Operations,
National Endowment for the Arts.
[FR Doc. E8–29431 Filed 12–11–08; 8:45 am]
BILLING CODE 7537–01–P
National Endowment for the Arts; Arts
Advisory Panel
Pursuant to Section 10(a)(2) of the
Federal Advisory Committee Act (Pub.
L. 92–463), as amended, notice is hereby
given that two meetings of the Arts
Advisory Panel to the National Council
on the Arts will be held at the Nancy
Hanks Center, 1100 Pennsylvania
Avenue, NW., Washington, DC 20506 as
follows (ending times are approximate):
State & Regional/Arts Education
(State Arts Agency Partnership
Agreements/Arts Education review):
January 6–7, 2009 in Room 730. This
meeting, from 9 a.m. 10:15 a.m. and
from 12:30 p.m. to 5:30 p.m. on January
6th and from 9 a.m. to 2:30 p.m. on
January 7th, will be open.
Folk & Traditional Arts/National
Heritage Fellowships (review of
nominations): January 6–9, 2009 in
Room 716. This meeting, from 9 a.m. to
6:30 p.m. on January 6th and 7th, 9 a.m.
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NUCLEAR REGULATORY
COMMISSION
Licensing Support System Advisory
Review Panel
AGENCY: U.S. Nuclear Regulatory
Commission.
ACTION: Notice of renewal of the Charter
of the Licensing Support Network
Advisory Review Panel (LSNARP).
SUMMARY: The Licensing Support
System Advisory Review Panel was
established by the U.S. Nuclear
Regulatory Commission as a Federal
Advisory Committee in 1989. Its
purpose was to provide advice on the
fundamental issues of design and
development of an electronic
information management system to be
used to store and retrieve documents
relating to the licensing of a geologic
repository for the disposal of high-level
radioactive waste, and on the operation
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[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Notices]
[Pages 75774-75776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29407]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Your Druggist Pharmacy; Revocation of Registration
On May 28, 2008, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Your Druggist Pharmacy (Respondent), of
Coral Springs, Florida. The Order immediately suspended Respondent's
DEA Certificate of Registration, AY1916103, which authorizes it to
dispense controlled substances as a retail pharmacy, on the grounds
that Stanley Dyen, its owner and pharmacist-in-charge, as well as two
of its employees, Ira Friedberg, a pharmacist, and Jennifer Lee-
Richards, a pharmacy technician, were diverting large quantities of
oxycodone, a schedule II controlled substance, and that Respondent's
continued registration during the pendency of the proceedings
``constitutes an imminent danger to public health and safety.'' Show
Cause Order at 1-2 (citing 21 U.S.C. 824(d) & 841(a)). The Order also
proposed the revocation of Respondent's registration, and the denial of
any pending applications to renew or modify its registration, on the
ground that Respondent's ``continued registration is inconsistent with
the public interest.'' Order at 1 (citing 21 U.S.C. 823(f)).
More specifically, the Show Cause Order alleged that between March
and June 2007, pharmacy technician Lee-Richards had ``diverted at least
5,900 dosage units of oxycodone, and at least 500 dosage units of
alprazolam.'' Id. (citing 21 U.S.C. 841(a)(1)). With respect to
pharmacist Friedberg, the Order alleged that in February 2008, he had
``diverted at least 7,500 dosage units of oxycodone.'' Id. (citing 21
U.S.C. 841(a)(1)).
As to Stanley Dyen, the Order alleged that in February 2008, he had
``diverted at least 500 dosage units of hydrocodone and at least 500
dosage units of alprazolam,'' and that ``[o]n February 18, 2008, [he]
was arrested for trafficking in hydrocodone and delivery of
alprazolam.'' Id. at 1-2. The Order further alleged that
notwithstanding Stanley Dyen's arrest, he ``continues to serve on a
daily basis as'' Respondent's pharmacist, and that ``[t]he majority of
the time, [he] is the sole pharmacist * * * and operates without the
supervision of any other pharmacist or employee.'' Id. at 2. Finally,
the Order alleged that on March 4, 2008, Stanley Dyen had ``transferred
ownership of [Respondent] to * * * his wife, without complying with the
requirements of 21 CFR 1301.52.'' Id.
On June 2, 2008, DEA Investigators went to Respondent and served
the Order by handing it to Stanley Dyen. On June 12, 2008, Respondent
requested a hearing on the allegations, and the matter was assigned to
an Administrative Law Judge (ALJ), who proceeded to conduct pre-hearing
procedures. On July 21, 2008, however, Respondent withdrew its request
for a hearing. That same day, the ALJ issued an order terminating the
proceeding.
Thereafter, the case file was forwarded to me for final agency
action pursuant to 21 CFR 1301.43(e). Based on the letter from
Respondent's counsel withdrawing its request for a hearing, I
[[Page 75775]]
find that Respondent has waived its right to a hearing. I therefore
issue this Decision and Final Order without a hearing based on relevant
material contained in the investigative file, see id., and make the
following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
AY1916103, which authorized it to dispense controlled substances in
schedule II through V as a retail pharmacy at the registered location
of 8091 West Sample Road, Coral Springs, Florida. Respondent's
registration does not expire until May 31, 2009.
In June 2007, a DEA Task Force Officer (TFO) received an anonymous
complaint that Respondent was engaged in the unlawful distribution of
controlled substances. Thereafter, investigators observed Jennifer Lee-
Richards, a pharmacy technician employed by Respondent, leave the
pharmacy carrying a bag which contained several small containers. Local
police stopped Lee-Richards and found that she had in her possession
5800 tablets of oxycodone 30 mg., and 100 tablets of Oxycontin 80 mg.,
both of which are schedule II controlled substances, 21 CFR
1308.12(b)(1), as well as 500 tablets of alprazolam 2 mg., a schedule
IV controlled substance. Id. 1308.14(c). During an interview, Lee-
Richards admitted that she had been taking controlled substances from
Respondent for approximately two months and was giving them to her son
(Twane Lee), who sold them.
In an interview, Twane Lee admitted that he was selling various
controlled substances which he obtained from his mother. Both Lee-
Richards and Twane Lee were subsequently indicted by a Federal Grand
Jury and charged with conspiracy to possess oxycodone with the intent
to distribute.
On February 8, 2008, local police observed C.P. leaving Respondent
carrying a white plastic bag which contained several cardboard boxes.
The police followed C.P. and initiated a traffic stop, during which
they found that C.P. had in his possession 7500 tablets of oxycodone 30
mg., 200 tablets of alprazolam 2 mg., and 100 tablets of oxycodone 80
mg. C.P. told the police he had just purchased the drugs from Ira
Friedberg, who worked as a pharmacist at Respondent. C.P. also related
that he had paid Friedberg $8000 for the drugs.
C.P. cooperated with the authorities and agreed to attempt to
purchase additional drugs from Friedberg. On February 12, 2008,
Friedberg agreed to sell C.P. 7500 tablets of oxycodone 30 mg., in
exchange for $7,500. Friedberg gave C.P. 7500 tablets and his car keys
and told C.P. to place $7500 in his car's center console. Friedberg
also gave C.P. an additional 5000 tablets of oxycodone (which Friedberg
was to deliver to L.H., a third party) and told C.P. to place it on the
passenger side floorboard of Friedberg's car.
Shortly thereafter, Friedberg left Respondent, entered his car, and
drove away. The police conducted a traffic stop and recovered the 5000
oxycodone tablets. A TFO told Friedberg that he was aware that the
tablets were to be delivered to L.H.; Friedberg then agreed to
cooperate and wear a recording device.
Friedberg then met L.H. After a conversation, L.H. went back to his
car and retrieved approximately $5000. Friedberg and L.H. then went to
the former's car, opened the passenger-side door, and placed the money
on the front seat. The police immediately arrested both Friedberg and
L.H., and recovered both the drugs and the money. Thereafter, a Federal
Grand Jury indicted both Friedberg and L.H., charging each with
conspiracy to possess oxycodone with the intent to distribute.
The following day, a confidential source (CS) told the
investigators that he had previously bought hydrocodone and alprazolam
from Stanley Dyen without a valid prescription. The CS agreed to make a
controlled buy of 500 tablets of hydrocodone/apap (10/650 mg.) and 500
tablets of alprazolam 2 mg. from Dyen.
On February 18, the CS was provided $600 of marked currency and
went to Respondent. Upon his arrival, the CS entered Respondent and
paid the $600 to Dyen, who then gave 500 tablets of hydrocodone/apap
(10/650 mg.) and 500 tablets of alprazolam 2 mg. to the CS.
Thereafter, detectives observed Dyen leave Respondent and conducted
a traffic stop. Dyen was arrested; during a search incident to his
arrest, Dyen was found to have in his possession the $600 of marked
currency. Dyen was subsequently charged under state law with
trafficking in hydrocodone and delivery of alprazolam.
On March 14, 2008, a state search warrant was executed at
Respondent. During the search, investigators interviewed Dyen, who
related that his wife owned the pharmacy. Investigators subsequently
determined that following his arrest, Dyen had transferred ownership of
Respondent to his wife, who was now listed (with the Florida Secretary
of State) as Respondent's President.
Investigators subsequently determined that Respondent was the
largest purchaser of oxycodone in the State of Florida, with its
purchases totaling nearly 754,000 tablets between January 1 and March
22, 2008. Moreover, during the service of the Immediate Suspension
Order, investigators received information that Respondent has a large
number of out-of-town customers, who had typically traveled from
Kentucky to fill prescriptions for such drugs as oxycodone, alprazolam,
and carisoprodol.\1\ The customers would not show up until after 5
p.m., and the pharmacy would fill the prescriptions even if its
employees were unable to verify the prescriptions' legitimacy with the
prescribing practitioners because their offices were closed.
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\1\While carisoprodol is not controlled under Federal law, it is
controlled under various state laws and is highly popular with drug
abusers, especially when taken as part of a drug cocktail that
includes an opiate and a benzodiazepine.
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Discussion
Section 304(a) of the Controlled Substance Act provides that ``[a]
registration * * * to * * * dispense a controlled substance * * * may
be suspended or revoked by the Attorney General upon a finding that the
registrant * * * has committed such acts as would render his
registration under section 823 of this title inconsistent with the
public interest as determined under such section.'' 21 U.S.C. 824(a).
With respect to a practitioner (which includes a retail pharmacy), the
Act directs that the Attorney General consider the following factors in
making the public interest determination:
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing * * * 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 and
safety.
Id. Sec. 823(f).
``[T]hese factors are considered in the disjunctive.'' Robert A.
Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or a
combination of factors, and may give each factor the weight [I] deem[]
appropriate in determining whether a registration should be revoked.''
Id. Moreover, I am ``not required to make findings as to all of the
factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir.
[[Page 75776]]
2005). Finally, where the Government has made out its prima facie case,
the burden shifts to the Respondent to show why its continued
registration would be consistent with the public interest. See, e.g.,
Theodore Neujahr, 65 FR 5680, 5682 (2000); Service Pharmacy, Inc., 61
FR10791, 10795 (1996).
In this case, having considered all of the factors, I conclude that
the evidence with respect to factors two and four establishes a prima
facie case that Respondent's continued registration is ``inconsistent
with the public interest.'' 21 U.S.C. 823(f). Accordingly, Respondent's
registration will be revoked and any pending application for renewal of
its registration will be denied.
Factors Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Its Record of Compliance With Applicable Controlled
Substance Laws
As found above, the evidence in this matter establishes that
Respondent was a supply source for the illicit drug market in such
highly abused prescription drugs as oxycodone, a schedule II controlled
substance, and alprazolam, a schedule IV controlled substance. As the
record shows, at least three individuals including Respondent's owner
unlawfully distributed prescription controlled substances which had
been obtained by the pharmacy. See 21 U.S.C. 841(a)(1).
Even if it was the case that Lee-Richards (the pharmacy technician)
and Friedberg (the pharmacist) had stolen the drugs they were
distributing, the criminal acts of Stanley Dyen, Respondent's owner and
pharmacist-in-charge, in distributing hydrocodone and alprazolam,
provide ample support to conclude that its continued registration is
``inconsistent with the public interest.'' See VI Pharmacy, Rushdi Z.
Salem, 69 FR 5584, 5585 (2004) (``It is well settled that a pharmacy
operates under the control of owners, stockholders, pharmacists, * * *
and if any such person is convicted of a felony offense related to
controlled substances, grounds exists to revoke the pharmacy's
registration.''); Charles J. Gartland, R.Ph., d.b.a. Manoa Pharmacy, 48
FR 28760, 28761 (1983) (``Pharmacies must operate through the agency of
natural persons, owners or stockholders, or other key employees. When
such persons misuse the pharmacy's registration by diverting controlled
substances obtained there under, and when those individuals are
convicted as a result of that diversion, the pharmacy's registration
becomes subject to revocation under 21 U.S.C. 824, just as if the
pharmacy itself had been convicted.'').
Nor is this rule limited to those instances in which a pharmacy's
owner or key employee has been formally convicted of a crime. As
explained above, under Federal law, a registration is subject to
revocation when a registrant commits acts which render its registration
``inconsistent with the public interest.'' 21 U.S.C. 824(a)(4). Where a
pharmacy's owner/key employee commits criminal acts, the Agency is not
required to wait for the judicial process to work its course before
revoking a registration. I therefore conclude that Respondent's
continued registration ``is inconsistent with the public interest,'' 21
U.S.C. 823(f), and that its registration should be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(4), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA
Certificate of Registration, AY1916103, issued to Your Druggist
Pharmacy, be, and it hereby is, revoked. I further order that any
pending applications to renew or modify the registration be, and they
hereby are, denied. This Order is effective immediately.
Dated: December 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-29407 Filed 12-11-08; 8:45 am]
BILLING CODE 4410-09-P