[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] ======================================================================= ----------------------------------------------------------------------- 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