[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