[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Notices]
[Pages 12824-12827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6631]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Cash Drug Store; Revocation of Registration
On January 2, 1998, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Cash Drug Store (Respondent) of Donalsonville,
Georgia, notifying the pharmacy of an opportunity to show cause as to
why DEA should not revoke its DEA Certificate of Registration,
AF1198072, and deny any pending application for renewal of such
registration as a retail pharmacy, under 21 U.S.C. 824 (a)(2) and
(a)(4), for reason that Respondent's owner/pharmacist was convicted of
a controlled substance related felony offense, and Respondent's
continued registration would be inconsistent with the public interest.
The Order to Show Cause provided Respondent with an opportunity to
request a hearing on the issues raised by the order. By letter dated
February 4, 1998, Respondent, through counsel, waived its opportunity
for a hearing and submitted a written statement regarding its position
on the issues raised in the Order to Show Cause as provided for in 21
CFR 1301.43(c). Therefore, the Acting Deputy Administrator deems that
Respondent has waived its opportunity for a hearing, and hereby enters
his final order pursuant to 21 CFR 1301.43(e) and 1301.46, based upon
the investigative file and Respondent's written submission.
The Acting Deputy Administrator finds that on February 27, 1995,
the Georgia Bureau of Investigations received information from a local
sheriff's department that an individual
[[Page 12825]]
had allegedly been purchasing controlled substances from Respondent
pharmacy without a prescription. A confidential informant of the local
sheriff's department arranged to introduce an undercover agent to the
individual. On March 9, 1995, the confidential informant and the
undercover agent drove with the individual to Respondent pharmacy. The
undercover agent gave the individual $50.00, and the individual went
into the pharmacy alone. When he emerged from the pharmacy, the
individual gave the undercover agent 49 pills in a white paper bag. On
March 15, 1995, the confidential informant and undercover agent again
went to Respondent pharmacy with the individual. The undercover agent
gave the individual $60.00 on this occasion, and asked if the
individual could get him 70 Lorcet pills, a Schedule III controlled
substance. The individual ultimately emerged from the pharmacy and gave
the undercover agent a white paper bag containing 10 pills later
identified as Lorcet, and 58 pills later identified as Darvocet, a
Schedule IV controlled substance.
After leaving Respondent pharmacy on March 15, 1995, the individual
was arrested. At the time of his arrest, the individual had in his
possession 10 Darvocet pills and some crack cocaine. During an
interview of the individual following his arrest, he admitted that he
had purchased Darvocet and Lorcet from Thomas Faircloth, the owner/
pharmacist of Respondent for approximately eight years. The individual
stated that he sometimes had a prescription for the controlled
substances, but more often he would not have a prescription, but would
just tell Mr. Faircloth what drugs he wanted. He estimated that he
purchased controlled substances from Mr. Faircloth hundreds of times
over the years, and probably only presented a prescription for the
drugs on 10 occasions.
The individual then agreed to cooperate in an investigation of
Thomas Faircloth and Respondent pharmacy. On March 15, 1995, while
monitored, the cooperating individual placed a telephone call to Mr.
Faircloth at his home to arrange to purchase controlled substances
without a prescription. Respondent pharmacy was closed, but Mr.
Faircloth agreed to meet the cooperating individual at the pharmacy.
The cooperating individual was searched to ensure that he did not have
any contraband in his possession at the time he went into Respondent
pharmacy, and he was given $100.00. The cooperating individual met Mr.
Faircloth at the pharmacy, gave him the $100.00 and ultimately emerged
with a white paper bag containing 174 pills, which were later
determined to be 123 Darvocet and 51 Lorcet.
The cooperating individual returned to Respondent pharmacy on March
17, 1995. Again he was monitored and searched prior to entering the
pharmacy. The cooperating individual gave Mr. Faircloth $100.00, and
emerged from Respondent with a while paper bag containing 121 Darvocet
and 57 Lorcet.
Later that day, Mr. Faircloth was approached by law enforcement
officers who advised him of the investigation. Mr. Faircloth consented
to the search of Respondent and agreed to be interviewed. During the
interview, Mr. Faircloth confessed to supplying controlled substances
to the cooperating individual and others without a prescription. Mr.
Faircloth stated that he had known the cooperating individual for
several years. At first the individual would bring a doctor's
prescription usually for Darvocet. According to Mr. Faircloth, the
individual would then bring in an old prescription vial to the pharmacy
and he would fill the vial with pills. Ultimately, the individual
stopped bringing in either a prescription or a vial, and he (Mr.
Faircloth would put Lorcet and Darvocet in a white paper bag. Mr.
Faircloth stated that he sold drugs to the individual approximately
once every two weeks. Mr. Faircloth further stated that while he did
not know for certain, he suspected that individuals were reselling the
drugs he sold them. Mr. Faircloth complained that ``[i]ndependent
pharmacies don't make it anymore,'' and it is difficult to make a
living.
Thereafter, on April 8, 1996, Mr. Faircloth was indicted in the
Superior Court for Seminole County on four felony counts of unlawful
distribution of a controlled substance. On June 7, 1996, he pled guilty
to one count of the indictment and was sentenced to five years
probation.
On October 23, 1996, the Georgia State Board of Pharmacy entered
into a Consent Order with Thomas Faircloth whereby his pharmacist
license was suspended for three months. Following his suspension, Mr.
Faircloth was placed on probation for five years and fined $2,500.00.
In its written statement, Respondent does not deny that Mr.
Faircloth dispensed Lorcet and Darvocet without a physician's
authorization; that he was indicted on four counts of unlawful
distribution of controlled substances in violation of Georgia law; that
he pled guilty to one count of the indictment; and that the Board took
action against his pharmacist's license. In the written statement,
Respondent's counsel states that ``Mr. Faircloth is now 64 years old
and desperately needs to retain his DEA Certificate of Registration to
continue to operate his retail pharmacy, his only business pursuit.''
He further contends that ``[t]he fact that the Court and State Board of
Pharmacy saw fit to extend leniency would account for Mr. Faircloth's
good record, his sincerity, his age and the outpouring of support from
his fellow citizens.'' Finally, Respondent's counsel states that `'Mr.
Faircloth has been most remorseful about this matter since his
infractions were discovered. He has rehabilitated himself to the letter
of the law.''
Respondent's written statement was accompanied by letters dated
June 18, 1996, to the State Board of Pharmacy from the Mayor of
Donalsonville, the President of a local bank, and the Chairman of the
Board of Commissioners, Seminole County. The Mayor stated that he has
known Mr. Faircloth for 35 years; that he is aware of Mr. Faircloth's
plea to drug violation; that Mr. Faircloth's illegal activities are not
representative of his normal behavior; that loss of his license would
destroy his business; and that his loss would be a loss ``to our rural
community''. The President of the Bank stated that he has known Mr.
Faircloth for 25 years; that he is aware of Mr. Faircloth's plea to
some form of a drug violation; that he believes that Mr. Faircloth's
illegal acts were ``an isolated act which does not reflect Mr.
Faircloth's normal conduct''; and that any suspension of his
pharmacist's license would destroy Mr. Faircloth's business. Finally,
the Chairman of the Board of County Commissioners stated that he has
known Mr. Faircloth for more than 30 years; and that he urges leniency
since Mr. Faircloth ``has been an upstanding citizen and a plus to our
community in his business and personal life.''
Also attached to Respondent's written statement is a letter from
Thomas Faircloth dated February 4, 1998. Mr. Faircloth stated that he
is 64 years old and has worked in a pharmacy for 53 years. After high
school, he enrolled in pharmacy school and has been employed at
Respondent pharmacy since 1958. In 1962, Respondent's previous owner
died, and Mr. Faircloth bought Respondent, and has been the owner and
pharmacist ever since. Mr. Faircloth stated that ``[d]uring my career
the local doctors have always allowed me to use my discretion about
refilling prescriptions. In March of 1995, I suppose I was doing that
in excess.* * *'' Mr. Faircloth then
[[Page 12826]]
enumerated the fines and court costs that he has had to pay as a result
of his illegal activities, and stated that ``I have made these
restitutions and repented of my actions and am now abiding strictly by
the law.'' He further stated that ``the matter has had great impact on
my feelings of guilt and has caused me much embarrassment which I am
still seeking to overcome.''
The Deputy Administrator may revoke or suspend a DEA Certificate of
Registration under 21 U.S.C. 824(a), upon a finding that the
registrant:
(1) Has materially falsified any application filed pursuant to or
required by this subchapter or subchapter II of this chapter;
(2) Has been convicted of a felony under this subchapter or
subchapter II of this chapter or any other law of the United States, or
of any State relating to any substance defined in this subchapter as a
controlled substance;
(3) Has had his State license or registration suspended, revoked,
or denied by competent State authority and is no longer authorized by
State law to engage in the manufacturing, distribution, or dispensing
of controlled substances or has had the suspension, revocation, or
denial of his registration recommended by competent State authority;
(4) 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; or
(5) Has been excluded (or directed to be excluded) from
participation in a program pursuant to section 1320a-7(a) of Title 42.
The Acting Deputy Administrator finds that on June 7, 1996, Thomas
Faircloth, Respondent's owner/pharmacist, pled guilty to and was
convicted of one felony count of the unlawful distribution of a
controlled substance in violation of Georgia law. It is well settled
that a pharmacy operates under the control of owners, stockholders,
pharmacists or other employees, and if any such person is convicted of
a felony offense related to controlled substances, grounds exist to
revoke the pharmacy's registration under 21 U.S.C. 824(as)(2). See
Rick's Pharmacy, Inc., 62 FR 42,595 (1997); Maxicare Pharmacy, 61 FR
27,368 (1996); Big-T Pharmacy, Inc., 47 FR 52,830 (1982). Therefore,
the Acting Deputy Administrator concludes that grounds exist to revoke
Respondent's registration under 21 U.S.C. 824(a)(2), based upon the
controlled substance related felony conviction of its owner/pharmacist,
Mr. Faircloth.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may also revoke a DEA Certificate of Registration and
deny any pending applications, is he determines that the continued
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 be denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16,422 (1989). In this case, all five factors are relevant.
As to factor one, its undisputed that in October 1996, the Georgia
State Board of Pharmacy suspended Mr. Faircloth's pharmacist license
for three months and then placed him on probation for five years. There
is no evidence in the record that any action has been taken against the
Respondent's pharmacy permit. However, since state licensure is a
necessary but not sufficient condition for DEA registration, this
factor is not dispositive.
Factors two and four, Respondent's experience in dispensing
controlled substance and compliance with laws relating to controlled
substances, are extremely relevant in determining whether Respondent's
continued registration is inconsistent with the public interest. Mr.
Faircloth admitted to dispensing controlled substances to the
cooperating individual and others over a number of years without a
physician's authorization. Such dispensing violates both 21 U.S.C.
841(a)(1) and the laws of the State of Georgia. The only explanation
offered by Mr. Faircloth for this behavior is that ``local doctors have
always allowed me to use my discretion about refilling prescriptions.
In March of 1995, I suppose I was doing that in excess * * *.'' The
Acting Deputy Administrator finds that these are clearly not the words
of someone who truly understands and appreciates the gravity of his
illegal acts. Controlled substances are potentially dangerous drugs.
Accordingly, pursuant to 21 U.S.C. 829, Schedule III and IV controlled
substances cannot be dispensed without a physician's written or oral
prescription. Over a number of years, Mr. Faircloth dispensed Lorcet
and Darvocet to the cooperating individual every two weeks without a
prescription.
As to factor three, it is undisputed that Mr. Faircloth,
Respondent's owner/pharmacist was convicted on June 7, 1996, of a
controlled substance related felony offense in violation of the laws of
the State of Georgia.
Regarding factor five, the Acting Deputy Administer is not aware of
any conduct, other than that discussed above, by Respondent or Mr.
Faircloth that would threaten the public health and safety.
The Acting Deputy Administrator must decide whether Respondent
pharmacy can be trusted to responsibly handle controlled substances in
the future. While Respondent's counsel states that Mr. Faircloth is
remorseful, the Acting Deputy Administrator is not convinced that this
is the case. In Mr. Faircloth's letter dated February 4, 1998, he
appears to be more concerned about the fines and court costs that he
has had to pay and the embarrassment that he has suffered as a result
of his actions. Based upon the evidence submitted by Respondent, the
Acting Deputy Administrator is not convinced that Respondent fully
understands the serious nature of his illegal acts nor appreciates the
responsibilities that accompany a DEA registration. Therefore, the
Acting Deputy Administrator concludes that Respondent's continued
registration would be inconsistent with the public interest.
Accordingly, the Acting 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 0.11104, hereby order the
DEA Certificate of Registration AF1198072, previously issued to Cash
Drug Store, be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for the
renewal of such registration, be, and they hereby are, denied. This
order is effective April 15, 1998.
[[Page 12827]]
Dated: March 10, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-6631 Filed 3-13-98; 8:45 am]
BILLING CODE 4410-09-M