[Federal Register Volume 59, Number 111 (Friday, June 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14161]


[[Page Unknown]]

[Federal Register: June 10, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

 

Village Drug Revocation of Registration

    On March 18, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Village Drug (Respondent), of El Segundo, 
California, proposing to deny Respondent's application for a DEA 
Certificate of Registration as a practitioner. The Order to Show Cause 
alleged that Respondent's registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 823(f).
    Specifically the Order to Show Cause alleged that: Respondent's 
pharmacy license as well as the pharmacist's license of Bernard P. 
Kastigar (Mr. Kastigar), the owner/operator of Respondent, were 
suspended for thirty days and placed on three years probation in 1985 
by the Board of Pharmacy, Department of Consumer Affairs, State of 
California (Pharmacy Board); in 1988, based upon violations of the 
Pharmacy Board's probation order, Mr. Kastigar's pharmacist license was 
again suspended for thirty days and placed on probation for an 
additional three years; between 1991 and 1993, Mr. Kastigar dispensed 
Percodan, a Schedule II controlled substance, and anabolic steroids, 
Schedule III controlled substances, to several individuals without a 
valid physician's authorization; on October 21, 1993, Mr. Kastigar pled 
guilty to and was convicted of one count of unlawfully furnishing a 
controlled substance, in the Municipal Court for the South Bay Judicial 
District, County of Los Angeles, State of California; and Mr. Kastigar 
materially falsified an application for a DEA Certificate of 
Registration, submitted on June 4, 1993, by indicating on such 
application that he had never surrendered a DEA Certificate of 
Registration, when in fact Respondent's DEA Certificate of Registration 
had been surrendered on April 27, 1993, and by also indicating on the 
application that he had never had a state license suspended or placed 
on probation, when in fact his pharmacist's license as well as 
Respondent's license had been suspended and placed on probation by the 
Pharmacy Board.
    The Order to Show Cause was sent to Respondent by registered mail. 
More than thirty days have passed since the Order to Show Cause was 
received by Respondent and the DEA has received no response thereto. 
Pursuant to 21 CFR 11301. 54(d) and 1301.54(e), Respondent is deemed to 
have waived his opportunity for a hearing. Accordingly, the Deputy 
Administrator now enters his final order in this matter without a 
hearing and based upon the investigative file. 21 CFR 1301.57.
    In 1983, the Pharmacy Board filed an accusation against Respondent 
pharmacy and Mr. Kastigar alleging, inter alia, that an audit revealed 
significant shortages for a number of controlled substances and that 
Mr. Kastigar filled numerous controlled substance prescriptions issued 
under circumstances in which he knew or should have known that such 
prescriptions were not issued for a legitimate medical reason. Based 
upon a consent decree, Respondent and Mr. Kastigar admitted the 
allegations. Both agreed to a thirty day suspension and a three year 
probationary term, effective June 28, 1985.
    On October 20, 1987, the Pharmacy Board issued another accusation 
against Mr. Kastigar based upon allegations that he dispensed 
propoxyphene, a Schedule IV controlled substance, to an individual 
without a valid physician's authorization. Mr. Kastigar entered into a 
second consent decree with the Pharmacy Board. Again, he admitted to 
the accusations and his pharmacist's license was suspended for another 
thirty days and placed on probation for another three years, effective 
June 24, 1988.
    Subsequent investigation by the California Bureau of Narcotics 
Enforcement revealed that Mr. Kastigar dispensed Percodan, a Schedule 
II controlled substance, and anabolic steroids, a Schedule III 
controlled substance, to several individuals without a physician's 
authorization between January 1991 and April 1993. A search warrant was 
served on Respondent pharmacy on March 25, 1993. Mr. Kastigar was 
interviewed at that time and admitted some of the allegations 
concerning the unlawful dispensing of the Percodan and anabolic 
steroids.
    On April 26, 1993, Mr. Kastigar was charged in the Municipal Court 
for the South Bay Judicial District, County of Los Angeles, State of 
California, with eleven counts of the unlawful furnishing of controlled 
substances and two counts of dispensing controlled substances without a 
medical purpose. On September 23, 1993, Mr. Kastigar entered into a 
plea agreement whereby he agreed to plea no contest to one felony count 
of the unlawful furnishing of a controlled substance and agreed to a 
sentence of three years probation. The conditions of the probation 
included, inter alia, 250 hours of community service, a $15,000 fine, 
the surrender of his pharmacist's license and surrender of medicare and 
medicaid privileges. On October 21, 1993, Mr. Kastigar entered the plea 
pursuant to the agreement and was convicted and sentenced pursuant to 
the plea agreement.
    Mr. Kastigar voluntarily surrendered Respondent pharmacy's previous 
DEA Certificate of Registration, AK2083119, on April 27, 1993. On June 
4, 1993, Mr. Kastigar submitted an application to obtain a new DEA 
Certificate of Registration for Respondent pharmacy. On this 
application, he indicated that he had never surrendered a DEA 
Certificate of Registration. He also indicated on this application that 
he never had a state professional license suspended or placed on 
probation, notwithstanding that the California Pharmacy Board had taken 
action against both Respondent and its owner in 1985 and 1988, as noted 
above.
    In evaluating whether Respondent's registration by the Drug 
Enforcement Administration would be inconsistent with the public 
interest, the Deputy Administrator considers the factors enumerated in 
21 U.S.C. 823(f). They are as follows:
    (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 and 
safety.
    In determining whether a registration would be inconsistent with 
the public interest, the Deputy Administrator is not required to make 
findings with respect to each of the factors listed above. Instead, he 
has the discretion to give each factor the weight he deems appropriate, 
depending upon the facts and circumstances of each case. See David E. 
Trawick, D.D.S., Docket No. 88-69, 53 FR 5326 (1988).
    In this proceeding factors one, two, three, and five apply. Factor 
one is applicable based upon the California Board of Pharmacy's 
suspensions and probation terms imposed on the licenses of Respondent 
pharmacy and the pharmacist's license of Mr. Kastigar in 1985 and 1988. 
Factor two applies because Respondent dispensed controlled substances 
without a physician's authorization or for no legitimate medical reason 
on a number of occasions between 1983 and 1993. Factor three is 
applicable based upon the conviction of Mr. Kastigar in the Municipal 
Court for the South Bay Judicial District, County of Los Angeles, State 
of California, of one count of unlawfully furnishing controlled 
substances. Factor five applies because Mr. Kastigar made two material 
falsifications on the application he submitted for a new DEA 
Certificate of Registration on June 4, 1993.
    No evidence of explanation or mitigating circumstances has been 
offered by Respondent. Therefore, the Deputy Administrator concludes 
that Respondent's application for a DEA Certificate of Registration 
must be denied.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application executed by Village Drug, on June 4, 1993, for a DEA 
Certificate or Registration as a retail pharmacy, be, and it hereby is, 
denied. This order is effective June 10, 1994.

    Dated: June 3, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-14161 Filed 6-9-94; 8:45 am]
BILLING CODE 4410-09-M