[Federal Register Volume 83, Number 49 (Tuesday, March 13, 2018)]
[Notices]
[Pages 10876-10903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05020]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-17]


Pharmacy Doctors Enterprises d/b/a Zion Clinic Pharmacy; Decision 
and Order

    On February 23, 2015, the former Deputy Assistant Administrator of 
the then-Office of Diversion Control, Drug Enforcement Administration 
(hereinafter, DEA or Government) issued an Order to Show Cause to 
Pharmacy Doctors Enterprises d/b/a Zion Clinic Pharmacy (hereinafter, 
Respondent). ALJX 1. The Show Cause Order proposed the revocation of 
Respondent's registration pursuant to 21 U.S.C. 824(a)(4) and 823(f) on 
the ground that Respondent's registration is inconsistent with the 
public interest. ALJX 1, at 1. For the same reason, the Show Cause 
Order also proposed the denial of any pending application by Respondent 
for renewal or modification of its registration, and the denial of any 
application by Respondent for any other DEA registration. Id. (citing 
21 U.S.C. 823(f)).
    As the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Respondent's DEA Certification of Registration No. 
FP1049546 authorized it to dispense controlled substances in schedules 
II through V as a retail pharmacy at the registered location of 205 E. 
Hallandale Beach Blvd., Hallandale Beach, Florida 33009. Id. 
Respondent's registration was to expire on March 31, 2017. Id.
    As the substantive grounds for the proceeding, the Show Cause Order 
contained seven categories of violations. First, it alleged that ``Zion 
dispensed controlled substances where it knew, or should have known, 
that the prescriptions were not issued in the usual course of 
professional practice or for a legitimate medical purpose and therefore 
failed to exercise its corresponding responsibility regarding the 
proper prescribing and dispensing of controlled substances.'' Id. 
(citing 21 CFR 1306.04(a)). The Show Cause Order stated that 
Respondent's failure to exercise its corresponding responsibility was 
evidenced by its ``dispensing of controlled substances despite the 
presence of red flags of diversion that Zion failed to clear prior to 
dispensing the drugs.'' Id. at 1-2. The Show Cause Order listed seven 
red flags of diversion that Respondent allegedly did not resolve prior 
to filling prescriptions. Id. at 2-7. It cited Holiday CVS, L.L.C., d/
b/a CVS/Pharmacy Nos. 219 and 5195, 77 FR 62,316 (2012) (hereinafter, 
Holiday CVS) as support for these allegations.
    The Show Cause Order listed 13 prescriptions, for customers who 
allegedly traveled long round-trip distances of approximately 166 to 
661 miles from home to physician to Respondent and back home, and 
alleged that Respondent filled them without having resolved the long 
distance red flags of diversion. ALJX 1, at 2-3. Each of the 13 
prescription examples was for a controlled substance written some time 
during the period of February 2012 through January 2013. Id.; see also 
Government Exhibit (hereinafter, GX) 8/8a.
    The Show Cause Order cited five prescriptions written by the same 
doctor on June 27, 2012 for five different customers for ``1 ML 
Testosterone Cypionate 210mg/mL IM,'' a controlled substance, that 
Respondent allegedly filled without first having resolved the red flags 
of diversion. ALJX 1, at 3-4; see also GX 10.
    The Show Cause Order referenced two prescriptions for Dilaudid 8 
mg., a controlled substance, written by the same doctor on June 22, 
2012 for two individuals with the same last name and the exact same 
street address that Respondent allegedly filled without first having 
resolved the red flags of diversion. ALJX 1, at 4; see also GX 11. The 
Show Cause Order alleged that Respondent filled the two prescriptions 
on July 13, 2012 at 2:35 p.m. and 2:39 p.m., respectively. ALJX 1, at 
4.
    The Order to Show Cause alleged that Respondent filled two 
prescriptions for the same customer on the same day for the same 
immediate release controlled substance, but for different strengths,

[[Page 10877]]

without first having resolved the red flags of diversion. Id. The two 
pairs of prescriptions listed in the Show Cause Order to illustrate 
this allegation were issued for Dilaudid 8 mg. and Dilaudid 4 mg. Id.; 
see also GX 12. They were written during the period of September 2012 
through November 2012. ALJX 1, at 4.
    The Show Cause Order alleged that Respondent filled opiate 
(hydromorphone) and benzodiazepine (alprazolam, clonazepam, diazepam, 
or lorazepam) prescriptions, a ``common `drug cocktail' popular with 
drug abusers,'' for the same customer on the same day at about the same 
time without first having resolved the red flags of diversion. Id. The 
Show Cause Order cited 14 prescriptions, or seven pairs of ``drug 
cocktail'' prescriptions, that Respondent allegedly filled during the 
period of October 2012 through January 2013. ALJX 1, at 4-5; see also 
GX 13.
    The Order to Show Cause alleged that ``[c]ustomers paying for their 
prescriptions with cash, where other red flags of diversion were 
present,'' were red flags of diversion that Respondent did not resolve 
prior to having filled the prescriptions. ALJX 1, at 5. The Show Cause 
Order listed 50 examples of prescriptions paid for with cash, costing 
as much as $1,008 for one prescription. Id.; see also GX 8, GX 10, GX 
11, and GX 13.
    The Show Cause Order alleged that Respondent filled prescriptions 
for ``[c]ustomers [who] present[ed] new prescriptions for controlled 
substances when they should not have finished their previous 
prescription for that drug (`early fills' or `early refills')'' without 
first having resolved the red flags of diversion. ALJX 1, at 5. The 
Order to Show Cause provided seven sets of examples of prescriptions 
that Respondent allegedly filled as many as 15 days early. Id. at 5-7; 
see also GX 14. The Show Cause Order specifically cited Holiday CVS, 77 
FR at 62,318 as precedent for this charge. ALJX 1, at 7.
    Next, the Order to Show Cause alleged that Respondent ``was unable 
to readily retrieve prescriptions it had dispensed.'' Id. (citing 
subsections (a) and (h)(3) and (4) of 21 CFR 1304.04). Specifically, 
the Show Cause Order alleged that, on April 11, 2013, DEA investigators 
conducted an on-site inspection of Respondent and requested specific 
prescriptions that Florida's Prescription Drug Monitoring Program 
showed Respondent had filled.\1\ Id. The Show Cause Order listed 12 
testosterone prescriptions that Respondent filled from February 2012 
through January 2013 and DEA investigators requested, but that 
Respondent's staff was allegedly ``unable to produce.'' Id. at 7-8.
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    \1\ Florida's Prescription Drug Monitoring Program is called the 
Electronic-Florida Online Reporting of Controlled Substance 
Evaluation Program (hereinafter, E-FORCSE).
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    The Show Cause Order further alleged that Respondent filled 
controlled substance prescriptions and shipped them to Alabama, 
Georgia, Illinois, Kentucky, Massachusetts, and Vermont without meeting 
the out-of-state pharmacy requirements of four of those states.\2\ Id. 
at 8. It detailed eight prescriptions that Respondent allegedly filled 
and shipped out-of-state, though it did not allege that all eight were 
shipped in violation of a State's non-resident pharmacy requirements. 
Id. at 8-9; see also GX 15.
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    \2\ The Order to Show Cause cited the allegedly violated state 
legal requirements as Alabama: Rules of Ala. State Bd. of Pharm. 
Sec.  680-x-2-.07(2); Illinois: Ill. Admin Code tit. 68, Sec.  
1330.550(a); Kentucky: Ky. Rev. Stat. Sec.  315.0351(1); and 
Vermont: Admin. Rules Vt. Bd. of Pharm., Part 16.
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    The Order to Show Cause next alleged that Respondent filled 
controlled substance prescriptions that did not contain all of the 
required information, such as directions for use, patient address, 
prescriber name, prescriber address, prescriber DEA number, and 
prescriber signature. ALJX 1, at 9 (citing 21 CFR 1306.05(a) and (f)). 
It specified eight prescriptions and the required information each one 
allegedly lacked. Id. at 9-10; see also GX 16.
    Next, the Show Cause Order alleged that Respondent filled 
prescriptions written for ``office use'' in violation of 21 CFR 
1306.04(b). ALJX 1, at 10. It provided two examples of such 
prescriptions. Id. at 10; see also GX 17.
    The Show Cause Order also alleged that Respondent filled 
prescriptions written by physicians for their personal use in violation 
of Florida law. ALJX 1, at 10 (citing Fla. Stat. Sec.  458.331(r)). It 
referenced six examples of prescriptions where the name of the 
prescribing physician was the same name as the patient. Id.; see also 
GX 18.
    And, lastly, the Order to Show Cause alleged that Respondent 
violated Florida law by ``failing to report some prescriptions to E-
FORCSE, in violation of Fla. Stat. Sec.  893.055(4).'' ALJX 1, at 10. 
It listed six prescriptions that Respondent allegedly did not report to 
E-FORCSE. Id. at 11; see also GX 19.
    The Show Cause Order notified Registrant of its right to request a 
hearing on the allegations or to submit a written statement while 
waiving its right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. ALJX 
1, at 11 (citing 21 CFR 1301.43).
    On February 25, 2015, the DEA Diversion Investigator (hereinafter, 
DI) assigned to the investigation of Respondent, personally served the 
Order to Show Cause on Respondent's owner and operator, Veronica Taran 
(hereinafter, Respondent's Owner and PIC).\3\ ALJX 5 (Government's 
Prehearing Statement dated March 27, 2015 (hereinafter, Govt. 
Prehearing Statement)), at 2; ALJX 7 (Respondent's Prehearing Statement 
dated April 10, 2015), at 2; see also Stipulation No. 4, ALJX 10, at 2.
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    \3\ She variously testified that she was ``the owner of the 
respondent pharmacy'' and that she was ``an owner and a Pharmacist-
in-Charge'' of Respondent. Transcript Page (hereinafter, Tr.) 795, 
798 (respectively); see also Stipulation No. 2, ALJX 10, at 1.
     Her testimony cited in this Decision and Order is quoted 
verbatim from the hearing transcript, without correction or 
``[sic]'' notations in addition to those already in the transcript.
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    By letter from its attorneys dated March 12, 2015, Respondent 
timely requested a hearing and asked that a ``reasonable extension to 
respond to an Order to Show Cause'' be granted. ALJX 3 (Hearing Request 
dated March 12, 2015), at 1; ALJX 4 (Order for Prehearing Statements 
dated March 17, 2015), at 1. The matter was placed on the docket of the 
Office of Administrative Law Judges and assigned to Chief 
Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). On 
March 17, 2015, the CALJ established the schedule for the filing of 
prehearing statements and granted Respondent's request for additional 
time ``to the extent that the hearing date set in the OSC . . . will be 
continued as directed at the prehearing conference scheduled by this 
order.'' ALJX 4 (Order for Prehearing Statements), at 1, 2.
    On March 27, 2015, the Government filed its Prehearing Statement. 
ALJX 5. On April 10, 2015, Respondent served its Prehearing Statement. 
ALJX 7. The April 14, 2015 Prehearing Ruling and Protective Order found 
that four ``stipulations have been mutually agreed to and are 
conclusively accepted as facts.'' ALJX 10, at 1.
    On May 6, 2015, the Government and Respondent filed Supplemental 
Prehearing Statements. ALJX 6 and ALJX 9, respectively. The parties' 
joint filing dated May 26, 2015 included their 11 additional joint 
stipulations. ALJX 20, at 1-2.
    On June 9 through 11, 2015 and on August 4, 2015, the CALJ 
conducted an evidentiary hearing in Miami, Florida.

[[Page 10878]]

Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge dated October 16, 2015 (hereinafter, 
R.D.), at 2. At the hearing, both parties called witnesses to testify 
and offered documents into evidence. Following the hearing, both 
parties submitted briefs containing proposed findings of fact, proposed 
conclusions of law, and argument.
    On October 16, 2015, the CALJ issued his Recommended Decision, 
including that all but two of the Show Cause Order's allegations, the 
sixth (prescriptions written for ``office use'') and the seventh 
(prescriptions written for the prescriber's personal use), be 
sustained. Id. at 33-36, 38-39 (respectively). Regarding those two 
allegations, the CALJ's recommendations were that there were 
substantive violations, but that the allegations should not be 
sustained ``based exclusively on the lack of adequate notice under 
current Agency precedent.'' Id. at 36, 39 (respectively).
    The CALJ found that the Government ``supplied sufficient evidence 
to make out a prima facie case.'' Id. at 57. He also found that 
Respondent's acceptance of responsibility was insufficient. Id. at 58. 
Concerning remedial steps, he explained that Respondent's ``intentional 
decision to decline to notice evidence of remedial steps resulted in 
their preclusion from consideration.'' Id. In sum, he concluded that 
the record supported imposition of a sanction. Id.
    The CALJ included in his R.D. an assessment of the degree and 
extent of Respondent's misconduct and concluded that Respondent had not 
``accepted anything meaningful in terms of responsibility or learned 
anything.'' Id. at 59. ``Where no understanding is acquired about how 
the regulated conduct fell short of professional and federal and state 
legal standards,'' he wrote, ``it would be difficult (even illogical) 
to predict improvement.'' Id. He determined that the Registrant ``is 
likely to proceed in the future as it has in the past if not curtailed 
in its ability to do so.'' Id. He concluded that the ``sheer number of 
established transgressions of various types, coupled with the refusal 
to admit that issues existed, would render a sanction less than 
revocation as a message to the regulated community that due diligence 
is not a required condition precedent to operating as a registrant.'' 
Id. at 59. He recommended revocation of Registrant's registration and 
the denial of any pending applications for renewal. Id. at 60.
    On November 5, 2015, both parties filed Exceptions to the R.D. 
Respondent served supplemental Exceptions to the R.D. on November 16, 
2015. By letter dated November 10, 2015, the record was forwarded to me 
for Final Agency Action.\4\
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    \4\ By correspondence dated February 29, 2016, Respondent's 
counsel gave notice of ``termination of legal representation and an 
attorney/client relationship with the Respondent.''
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    Having considered the record in its entirety, including all of the 
Exceptions filed by Respondent and the Government, I agree with the 
CALJ that Respondent's registration should be revoked and that any 
pending applications for its renewal or modification should be denied. 
I further agree with the CALJ's conclusions that Respondent dispensed 
controlled substances knowing that the prescriptions were not issued in 
the usual course of professional practice or for a legitimate medical 
purpose and, therefore, violated the corresponding responsibility rule 
of 21 CFR 1306.04(a). I agree with the CALJ that Respondent was unable 
to readily retrieve prescriptions it had dispensed and, therefore, 
violated 21 CFR 1304.04. I agree with the CALJ that Respondent filled 
controlled substance prescriptions and shipped them out-of-state in 
violation of four States' non-resident pharmacy requirements. I agree 
with the CALJ that Respondent violated 21 CFR 1306.05 by filling 
controlled substance prescriptions that did not contain all of the 
required information. Based on Respondent's admissions, I find that 
Respondent filled prescriptions written for ``office use,'' although I 
do not sustain this allegation due to the Government's failure to 
comply with the notice requirements for a Show Cause Order. 21 CFR 
1301.37(c). I find that Respondent filled at least one controlled 
substance prescription written by a physician for the physician's 
personal use, although I do not sustain this allegation due to the 
Government's failure to comply with the notice requirements for a Show 
Cause Order. 21 CFR 1301.37(c). I agree with the CALJ's conclusion that 
Respondent failed to report controlled substance prescriptions to E-
FORCSE in violation of Fla. Stat. Sec.  893.055(4) (2012). I agree with 
the CALJ that Respondent's acceptance of responsibility was 
insufficient and that Respondent did not provide sufficient notice of 
remedial measures.
    Accordingly, I find the record as a whole established by 
substantial evidence that Respondent committed acts which render its 
continued registration inconsistent with the public interest. I 
conclude that revocation of Respondent's registration and denial of any 
pending application to renew or modify Respondent's registration are 
appropriate sanctions. I make the following findings.

Findings of Fact

Respondent's DEA Registration

    Respondent is registered with the DEA as a retail pharmacy in 
schedules II through V under DEA Certificate of Registration No. 
FP1049546 at 205 E. Hallandale Beach Blvd., Hallandale Beach, Florida 
33009. ALJX 1, at 1; see also Stipulation No. 1; ALJX 10, at 1. 
Respondent's registration was to expire on March 31, 2017. Stipulation 
No. 1; ALJX 10, at 1. According to DEA's registration records, however, 
on January 31, 2017, Respondent timely filed a renewal application. I 
take official notice of that pending registration renewal application. 
5 U.S.C. 556(e).\5\ Respondent's registration, therefore, remains in 
effect pending the issuance of this Decision and Order. 5 U.S.C. 
558(c).
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    \5\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Respondent or the Government may dispute my 
finding by filing a properly supported motion for reconsideration 
within 10 calendar days of the date of this Order. Any such motion 
shall be filed with the Office of the Administrator and a copy shall 
be served on the other party; in the event either party files a 
motion, the other party shall have 10 calendar days to file a 
response.
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The Investigation of Respondent

    According to the testimony of the DI, he decided to investigate 
Respondent after learning that it had ordered 41,700 dosage units of 
hydromorphone in 2012. Tr. 28. This raised his suspicion because the 
average pharmacy in the United States ordered approximately 5,900 
dosage units of hydromorphone in the same time period. Id. at 28.
    On April 11, 2013, the DI presented Ms. Veronica Taran, 
Respondent's Owner and PIC, with a Notice of Inspection. Id. at 38; see 
also Stipulation No. 3; ALJX 10, at 2. The DI testified that 
Respondent's Owner and PIC read the notice of inspection, did not have 
any questions for the DI about it, signed it, and consented to the 
inspection. Tr. 38. The DI then asked Respondent's Owner and PIC for 
various records, including order forms and prescriptions

[[Page 10879]]

filled for schedule II through V controlled substances. Id. The DI 
stated that ``I asked Mrs. Taran if we could take records for further 
review, so we boxed them up and took them with us. She consented to 
that.'' Id. at 52-53. When he left Respondent on the unannounced 
inspection day, he took with him ``2011 to 2013 Schedule II through V 
prescriptions, . . . any invoices or receipts covering the same 
timeframe, and executed DEA 222 forms and . . . [Respondent's] biennial 
inventory.'' Id. at 50.
    The DI also testified about approximately a dozen problematic 
prescriptions he had identified from E-FORCSE that Respondent's Owner 
and PIC ``was never able to locate . . . for me.'' Id. at 42, 43. 
``They were written for different anabolic steroid substances to 
patients that were not in the State of Florida,'' he testified. Id. at 
42.
    The DI testified that he asked Respondent's Owner and PIC 
questions, including how she would verify controlled substance 
prescriptions. Id. at 39. According to the DI, Respondent's Owner and 
PIC said that she used two forms, one to verify the prescription and a 
doctor-patient affidavit ``that she makes the patient fill out,'' and 
she checked the prescriber's DEA number on the DEA website and the 
prescriber's license on the Florida Department of Health website. Id. 
at 39-40. According to the DI, Respondent's Owner and PIC told him that 
she was familiar with her patients and visited the doctors and their 
offices. Id. at 40.
    The DI testified that Respondent's Owner and PIC had posted lists: 
``[o]ne was for doctors she would fill prescriptions for, another list 
of doctors that she wouldn't fill prescriptions for, and ones that were 
pending verification.'' Id. at 40; see also id. at 41. The DI stated 
that Respondent's Owner and PIC specifically told him ``she does not 
check'' E-FORCSE, she had never shipped a controlled substance out of 
state, and ``the pharmacy was not licensed in any other state.'' Id. at 
40-41, 44. Regarding E-FORCSE, the DI testified that he asked 
Respondent's Owner and PIC to ``go onto'' it to ``check a prescription 
for me'' and that ``she wasn't able to do that.'' Id. at 48-49. When 
asked for elaboration on the meaning of ``she wasn't able to do that,'' 
the DI responded that she did not have access. He testified, ``She had 
access to enter her data into, but not to query a patient. . . . I was 
standing next to her when she was logged onto the computer attempting 
to query a patient.'' Id. at 49.

The Allegations of Dispensing and Non-Dispensing Violations

    The Order to Show Cause alleged seven bases for the revocation of 
Respondent's registration pursuant to 21 U.S.C. 824(a)(4) and 823(f). 
One of them had seven subparts.

Witnesses

    Four witnesses testified at the hearing: The DI and Dr. Tracey J. 
Gordon for the Government, and Louis Fisher and Respondent's Owner and 
PIC called by Respondent. There was factual agreement among the 
witnesses on a number of issues. When there was factual disagreement, I 
applied the CALJ's credibility recommendations. See R.D., at 5-25.
    Regarding the DI, the CALJ stated that he ``presented as an 
objective regulator with no stake in the outcome of the proceedings'' 
and provided ``testimony [that] was sufficiently detailed, plausible, 
consistent, and cogent to be fully credited.'' R.D., at 8. I agree with 
the CALJ's assessment of the DI's credibility.
    At the hearing, the Government also offered testimony from Dr. 
Tracey Gordon, a pharmacist licensed in Florida who had practiced 
pharmacy for 21 years. Dr. Gordon testified to ``ten-plus years of 
retail'' experience in ``at least 200'' Florida retail pharmacies 
serving as a clerk, tech, intern, assistant manager, and manager. Tr. 
282, 284. She testified to having experience dispensing controlled 
substances for the treatment of chronic pain. Id. at 289. She stated 
that she has served as a pharmacist-in-charge. Id. at 351. She 
testified to training in, and experience with, issues regarding the use 
and diversion of controlled substances, and to familiarity with the 
pharmaceutical practice aspects of the use and abuse of controlled 
substances. Id. at 289-90. She stated that she was a licensed 
Consultant Pharmacist and, at the time, was serving as a clinical 
Hospice pharmacist. Id. at 278-79.
    Dr. Gordon was accepted, without objection, ``as an expert in the 
practice of pharmacy in the [S]tate of Florida regarding the dispensing 
of controlled substance prescriptions.'' R.D., at 8; see also Tr. 294-
95.\6\ The CALJ found that Dr. Gordon's testimony was ``internally 
consistent and logically persuasive'' and her qualifications 
``reflected a wide breadth of pharmacy experience, including working in 
many pharmacies as a line pharmacist and a pharmacist in charge,'' and 
as a consultant and teacher. R.D., at 11. I agree with the CALJ that 
Dr. Gordon's ``answers rang of sufficient clarity, authority, and 
candor to merit controlling weight in these proceedings regarding the 
practice of pharmacy in Florida.'' Id. at 11.
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    \6\ On cross-examination, Respondent elicited that, although Dr. 
Gordon had helped her father in his store before she was a 
pharmacist, she never worked as a pharmacist in a small independent 
pharmacy. Tr. 477-78. Respondent further elicited that Dr. Gordon 
was ``never in charge of purchasing controlled substances for resale 
for a small independent pharmacy.'' Id. at 482. Respondent's first 
Exception to the R.D. also asserts ``[a]s evident from the record'' 
that ``Respondent challenged Dr. Gordon's qualifications to testify 
about dispensing patterns . . . for a small sized, independent 
pharmacy such as Respondent.'' Respondent's Exceptions to the ALJ's 
Recommended Ruling dated Nov. 5, 2015 (hereinafter, Resp. 
Exceptions), at 2. Respondent did not, however, provide a citation 
to the record for its assertion and my review found none. 21 CFR 
1316.66(a). Regardless, given that the Show Cause Order did not 
raise ``dispensing patterns . . . for a small sized, independent 
pharmacy,'' Respondent's assertion is not germane to the resolution 
of this matter.
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    Respondent offered the testimony of Louis Fisher, who graduated in 
1971 from the Hampden College of Pharmacy and worked for DEA or its 
predecessor agency from 1971 to 2003. Tr. 565. Mr. Fisher testified 
that, during his government service, his positions included compliance 
investigator, quota operation staff assistant, diversion investigator, 
diversion program manager, and group supervisor. Id. at 565, 570. He 
stated that he was ``familiar with a procedure of dispensing controlled 
medications pursuant to prescriptions in Florida,'' even though he 
never practiced pharmacy, or was a licensed pharmacist, in Florida. Id. 
at 571-72, 574-75. He testified that he was a consultant in the field 
of ``controlled substances abuse and diversion'' at the time. Id. at 
572. Respondent sought to qualify Mr. Fisher as a ``specialist in 
preventing drug diversion.'' Id. at 561.
    The CALJ accepted Mr. Fisher as an expert on the issue of 
dispensing in Florida. R.D., at 11 n.74, at 17. I agree with the CALJ 
that it is appropriate to ``afford . . . diminished weight [to Mr. 
Fisher's testimony] where it conflicts with other, more persuasive 
evidence of record, including the testimony of Dr. Gordon.'' \7\ Id. at 
17; see also id. at 11 n.74.
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    \7\ The CALJ explained that Mr. Fisher's ``discrepant testimony 
regarding his licensure and experience was disquieting. . . . On 
this record, the issue of Mr. Fisher's qualifications to render an 
expert opinion is uniquely dependent upon his own representations of 
his experience and, thus, his credibility. Either Mr. Fisher was 
careless . . . and reckless . . ., or he was engaged in an 
intentional effort to inflate his own qualifications. Either option 
undermines the weight that can be logically afforded to his 
opinions, and where these opinions conflict with other opinions or 
evidence, they cannot be relied upon.'' R.D., at 16 (footnote 
omitted).
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    At the hearing, Respondent also offered testimony from Respondent's

[[Page 10880]]

Owner and PIC. Tr. 798. Respondent's Owner and PIC testified that she 
had been, at the time, a practicing pharmacist in Florida for about ten 
years. Id. at 798. She testified that she was familiar with the Florida 
provision specifically addressing the dispensing of controlled 
substances, and that she had taken ``[m]ultiple courses'' on ``red flag 
of diversions'' as well as ``read many articles online about the 
situation in Florida with the pain management.'' Id. at 799. 
Respondent's Owner and PIC also testified that she was a custodian of 
records for Respondent and supervised, at the time, one technician, one 
intern, and one student. Id. at 798-99.
    I agree with the CALJ's conclusion that, while ``[t]here were, 
undoubtedly, aspects of . . . [the testimony of Respondent's Owner and 
PIC] during which she presented as generally credible, . . . on the 
present record, her testimony was not sufficiently consistent or 
plausible to be afforded full credibility.'' R.D., at 25.

Florida Pharmacists' Standard of Practice

    Dr. Gordon, Mr. Fisher, and Respondent's Owner and PIC testified 
about a Florida pharmacy's/pharmacist's standard of practice when 
presented with a controlled substance prescription.\8\ There were some 
areas of agreement by at least two of the three witnesses on some 
aspects of that standard.
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    \8\ The DI also addressed the standard of practice. For example, 
he testified that his investigation identified issues concerning 
Respondent's compliance with the Controlled Substances Act and its 
implementing regulations. See, e.g., Tr. 51, 54, 68, 71, 73, 74-75, 
76-77, 99, 102, and 124.
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    According to Dr. Gordon, upon a customer's presentation of a 
controlled substance prescription, the pharmacist should protect the 
safety of the patient and the community by looking for red flags of 
diversion, or ``something that makes a pharmacist pause and think 
about'' whether the prescription was ``really for a legitimate medical 
purpose.'' Tr. 296, 303. She discussed red flags including the quantity 
and dosage of the controlled substance, the doctor and practice 
specialty, and the patient's geographic location, doctor/pharmacy 
patronage, and payment (insurance/cash) method. Id. at 295-97.
    Regarding the quantity and dosage of a controlled substance used 
for pain management, Dr. Gordon explained that ``I look . . . [for] a 
long-acting with the prescription . . . [because] [i]t helps the 
patient to be more adherent to therapy.'' Id. at 296.
    Regarding the doctor and practice specialty, Dr. Gordon explained 
that, ``I feel pretty comfortable filling a prescription for a large 
quantity of pain medication'' if an oncologist wrote it. Id. at 298. 
``But if it's from a general practitioner or an ob-gyn,'' she 
continued, ``then that causes me to take pause and reevaluate the 
legitimacy of the prescription.'' Id. She testified that the National 
Provider Identification website showed physicians' specialties and 
helped the pharmacist evaluate prescriptions. Id. at 297-98, 345. She 
also testified that a pharmacist should routinely check the status of a 
controlled substance prescriber's State medical license and DEA 
registration. Id. at 301, 345.
    Regarding the patient, Dr. Gordon stated that a chain pharmacy's 
computer would show if the customer had filled the prescription at 
another branch, and Florida's prescription drug monitoring program, E-
FORCSE, would show what other controlled substances the customer had 
received from other pharmacies or doctors. Id. at 301-02, 345. She 
explained that E-FORCSE ``gives you the date . . . [the prescription] 
was written, the date it was filled, the name of the drug, the 
quantity, the doctor, the pharmacy, and how the patron paid for the 
medication'' which would tell the pharmacy ``if the patient was either 
doctor-hopping or pharmacy-hopping.'' Id. at 302.
    Dr. Gordon testified about the importance of the customer's payment 
method, explaining that ``[a] lot of drug-seekers only want to pay for 
their medications in cash because . . . the insurance company will 
actually create your red flag for you to say if a prescription is 
refilled too soon, which means they've . . . obtained a prescription 
from another pharmacy.'' Id. at 297; see also id. at 298-99.
    Dr. Gordon stated that what constituted a red flag ``changed all 
the time. It's like the drug community gets smarter.'' Id. at 303. She 
indicated that, when confronted with a red flag, a pharmacist would 
make further inquiries of the doctor, the customer, or the caregiver. 
Id. at 305. She noted that ``some of the red flags really can't be 
resolved, especially if you see patterns.'' Id. at 304-05. She 
testified that, if she could not resolve a prescription's red flags, 
she would not fill it. Id. at 305. She would either give the 
prescription back to the customer or, with the doctor's authorization, 
shred it. Id.
    Dr. Gordon testified that, although there is no codified Florida 
rule specifying where a pharmacist must document resolution of a red 
flag, the standard practice in Florida was for the resolution of a red 
flag to be documented on the front of the prescription. Id. at 346-48. 
As a pharmacist-in-charge, she would check the face of the prescription 
to see if a subordinate pharmacist resolved a concern about the 
prescription. Id. at 351-52. She testified that any notes about the 
patient, as opposed to notes about a specific prescription, would 
appear in the patient profile. Id. at 350, 352.
    Mr. Fisher testified that red flags ``are part of the pharmacist's 
responsibility.'' Id. at 616. Regarding what a pharmacist should do to 
resolve a red flag, Mr. Fisher first stated that the pharmacist should 
``[c]heck the state E-FORCSE system to see if this person is a doctor-
shopper.'' Id. at 604; see also id. at 608-09. He also stated that he 
would check the doctor's license to make sure it was valid, check if 
the customer had any history in the pharmacy of previous prescriptions 
being filled, and ``then talk to the doctor and see . . . what the--
maybe the diagnosis is on this prescription.'' Id. at 604. When asked 
``where would you see if these things were done, if they were 
documented,'' Mr. Fisher responded that the documentation could be 
written on the back of the prescription, in a notebook, in a logbook 
``of any kind'' or ``whatever system they want to be put into effect.'' 
Id. at. 604-05. When asked whether the red flags ``would have to be 
documented someplace,'' Mr. Fisher responded affirmatively. Id. at 605; 
see also id. at 598-600 (Mr. Fisher's testimony that a pharmacist needs 
to resolve a red flag before dispensing the prescription, and 
resolution of the red flag must be documented somewhere.). Mr. Fisher 
testified that he did not know if the red flags he had identified on 
the prescriptions in the Government's exhibit had been resolved. Id. at 
605; see also id. at 766 (Mr. Fisher's testimony that the prescriptions 
contained no notations evidencing that Respondent had resolved any of 
their red flags.).
    The testimony of Respondent's Owner and PIC about diversion and 
what a pharmacy needed to do when presented with a controlled substance 
prescription was largely inconsistent with the testimony of Dr. Gordon 
and Mr. Fisher. Further, her testimony admitted that Respondent did not 
even follow the steps she described. It also, though, evidenced her 
knowledge and awareness that schedule II controlled substances were 
prone to diversion. For example, Respondent's Owner and PIC testified 
that ``[e]ach prescription it comes with chronic nonmalignant pain, has 
to be addressed as a highly risky--high risk medication. It has to be 
addressed with proper steps.'' Id. at 1129. Also regarding 
prescriptions for

[[Page 10881]]

schedule II controlled substances, she testified that ``on schedule II, 
each time it's presented it has to be--there's a lot of diversion.'' 
Id. at 1116. Specifically, Respondent's Owner and PIC identified 
Dilaudid 8mg. and Dilaudid 4 mg. prescriptions as ``highly risky.'' Id. 
at 1129; GX 12, at 5 and 7. When asked whether she recalled identifying 
``any red flags'' when she filled a prescription for 174 tablets of 
Dilaudid 8 mg., Respondent's Owner and PIC responded that ``the major 
red flag of that prescription is for Schedule II medication, Dilaudid, 
8 milligram. Also, prescribed on the quantities.'' Tr. 880-81.
    According to Respondent's Owner and PIC, Respondent, and she as its 
PIC, needed to implement specific procedures unique to schedule II 
prescriptions due to the diversion associated with them. Her ``specific 
procedures'' consisted of a series of steps. See id. at 883-897 (using 
as an example GX 19, at 1). First, according to her testimony, she 
would ``talk to doctor on each [schedule II] prescription'' because 
``there's a lot of diversion'' of schedule II controlled substances. 
Id. at 1116. Her testimony underlined the importance of talking to the 
prescribing doctor ``each time'' a schedule II prescription was 
presented by comparing the diversion of schedule II controlled 
substances with schedule III controlled substances:

    When all the schedule II prescriptions--I would talk to doctor 
on each prescription. On schedule III I would talk to doctor when 
there's initial prescriptions for it. But there's not that much 
schedule III situations. But on schedule II, each time it's 
presented it has to be--there's a lot of diversion.

Id.
    Respondent's Owner and PIC described the conversation she had 
regarding the first prescription in GX 19, a prescription for 174 
tablets of Dilaudid 8 mg. She stated that she called the office and 
asked to speak with the doctor. ``[H]onestly,'' she admitted, the 
``doctor not always were available. But I spoke with the manager.'' Id. 
at 895. The ``honest'' admission of Respondent's Owner and PIC that she 
did not always speak with the prescribing doctor about a schedule II 
prescription contradicted other testimony she gave that she always 
spoke with the doctor regarding such prescriptions. See, e.g., id. at 
1116.
    Respondent's Owner and PIC continued to describe her conversation 
with the doctor's office. She testified that she ``would ask a manager 
to tell me more what was happening with the patient; was he seen on 
that day?'' Id. at 895.

    So if the patient was seen on the day that the prescription was 
issued, and the quantity--the reason why he had prescribed that 
quantity this month? And they would tell me that he has diagnosis in 
the proper--that doctor has a note in his chart to consider 
alternative treatments . . . . I would ask them, What did you 
prescribe today for that patient? . . . So they have to spell out 
what did they write this day, the quantity, to make sure there is no 
alteration on the way--there is no forging of the prescription. Then 
I would say, Is it okay for me to fill it? And they would give me 
approval to fill.

Id. at 896. Respondent's Owner and PIC testified that after these 
steps, including ``verify[ing] all the information, the address, the 
phone number, the complete date of birth, the doctor DEA number on the 
front, the quantities and the medications, the signature . . . [a]nd 
that medication was hand signed by the doctor,'' she filled the 
prescription. Id. at 897.
    Despite her testimony and her stated awareness of the high risk 
nature of schedule II prescriptions and the risk of diversion 
associated with them, including the ``red flag'' of schedule II 
controlled substances being prescribed in large quantities, 
Respondent's Owner and PIC again admitted that she did not always 
follow her first step. Instead, she testified that she would have to 
``go one-by-one each [schedule II] prescription'' before answering 
questions about whether or not she spoke with the doctor about any of 
them. Id. at 1137; see also id. at 1133-39. Thus, Respondent's Owner 
and PIC admitted more than once to not implementing her own requirement 
of speaking to the prescriber of every schedule II prescription.\9\ In 
making this admission, she did not explain why she deviated from her 
own procedure. Nor did she justify that deviation.
---------------------------------------------------------------------------

    \9\ In the context of describing the uses of the ``approved'' 
stamp and the name/telephone number stamp, Respondent's Owner and 
PIC also testified she verified that the prescriptions were issued 
within the scope of the prescriber's practice when she talked ``to 
the [prescriber's] office.'' Tr. 1132.
    [The stamps mean that] I talk to the office and I spoke with the 
patient. And I fill out documentation appropriate for--I verified--
and most important, I verified this prescription was issued within 
scope of the doctor's practice. The doctor was allowed to treat 
chronic pain. It was the scope of his practice. He made the decision 
to write this prescription according to his practice.
    Id. at 1132-33; contra id. at 1225-27. It is noteworthy that 
Respondent's quoted testimony concerned her calling ``the office'' 
as opposed to her ``speak[ing] with the doctor.'' Id. at 1138, 1132, 
respectively. It was the further admission of the Respondent's Owner 
and PIC that she did not always ``speak with the doctor'' as she had 
testified was appropriate due to the high risk nature of schedule II 
prescriptions and the risk of diversion associated with them. Given 
her testimony that she did not necessarily speak with the ``doctor'' 
about schedule II prescriptions, it also raises the question of 
whether Respondent's Owner and PIC actually ``verified'' that 
prescriptions were ``issued within [the] scope of the doctor's 
practice.'' Id. at 1133.
---------------------------------------------------------------------------

    Second, Respondent's Owner and PIC testified that she made sure the 
prescriber's State medical license was active, and the prescription was 
within the scope of the prescriber's DEA registration. Regarding a 
prescriber's State license, she testified that she would make sure that 
``the doctor actually licensed in the State of Florida to prescribe 
controlled substances.'' \10\ Id. at 894. Regarding a DEA registration, 
she testified that she ``was instructed . . . [by DEA] to go on the 
website--diversion site and verify the physician DEA number'' and 
``[s]ince that instruction I religiously did that.'' Id. at 892; see 
also id. at 1131-32 (Pharmacies should ``make sure that . . . [the] 
doctor[ ] . . . [was] legitimate, I mean, . . . has a DEA license.'').
---------------------------------------------------------------------------

    \10\ Regarding the doctor who prescribed the first prescription 
in GX 19, Respondent's Owner and PIC testified that he was 
``licensed in the State of Florida to prescribe medication for 
chronic pain management.'' Tr. 894-95. ``He was actually special 
trained in the pain management,'' she stated. Id. at 895.
---------------------------------------------------------------------------

    According to Respondent's Owner and PIC, ``[t]he decision of 
prescribing lies upon the physicians and the state who govern his 
practice.'' Id. at 1108. She elaborated, asserting that a pharmacy must 
fill a controlled substance prescription issued by a practitioner with 
the appropriate State and DEA licenses unless there is ``a very good 
reason not to fill it.'' Id. at 1168.

    The doctor tells you it's okay to fill, just by the filling--the 
filling prescription. When the patient comes to the office--to the 
doctor, he's seen by the doctor. Doctor asking how many pills you 
have, what are you taking? Then he decide to issue another 
prescription. Once he issue the prescription, it's an order for a 
pharmacy--keep in mind, we still working in the medical system here. 
The prescription is an order for the pharmacist to fill. For me not 
to fill that prescription, I have to have a very good reason not to 
fill it, because it's an order from the doctor to me to fill that 
prescription for that patient.

Id. at 1167-68. Respondent's Owner and PIC did not explain what she 
meant by ``a very good reason not to fill it.'' Nevertheless, I found 
in the record evidence of numerous controlled substance prescriptions 
that Respondent's Owner and PIC admitted Respondent filled without 
having documented the existence or resolution of any of the red flags 
of diversion identified in the testimony of Dr. Gordon and Mr. Fisher.
    Third, Respondent's Owner and PIC testified that her ``main concern 
would be if this patient was checked and have relation with the 
doctor.'' Id. at 885. In the context of GX 19, the six Dilaudid

[[Page 10882]]

8 mg. prescriptions the Show Cause Order alleged that Respondent did 
not report to E-FORCSE, Respondent's Owner and PIC testified about how 
she would establish the requisite doctor-patient relationship.\11\ She 
testified that she would ``ask . . . [the customers] to fill out the 
[``Pain Management Physician-Patient Relationship Affidavit,'' 
hereinafter, Relationship Affidavit] form, and sign . . . written 
affidavit'' and ``then I would call to the office and start questioning 
the office about whether this--to substantiate the truth about it.'' 
Id. at 885. She testified that the Relationship Affidavit was to be 
completed the ``first time only'' that a customer came to Respondent 
pharmacy. Id. at 1016. She testified as to what the Relationship 
Affidavit would ``do to alleviate . . . [her] concerns that this 
prescription was not diverted.'' Id. at 887. She stated that ``the 
major red flag at that time'' was ``whether patient actually be seen by 
doctor, not just come to the office and have the prescription ready for 
them.'' Id. She continued by stating that ``[i]t was not about . . . 
whether this prescription written for Dilaudid or prescription written 
for--or quantities, it was a concern, but not the main concern.'' Id. 
According to Respondent's Owner and PIC, ``[t]he main concern--the 
problem at the time was the patient going and the doctor's [sic] are 
not properly executing the practice that's reflected in the medical 
practice law.'' \12\ Id. Her testimony continued: ``So we would check, 
. . . would require for the patient has issues . . . [a]nd she has a 
medical history and there is a logical connection between her and the 
doctor, there's relationship, it's not just to get a prescription for 
major narcotics.'' Id. at 887-88. According to Respondent's Owner and 
PIC, the Relationship Affidavit ``resolve[d]'' these concerns. Id. at 
889. She stated, ``That form would resolve . . . that he's not 
attempted to fraudulently--to illegally get access to the controlled 
pain medication.'' Id.; see also id. at 1149.\13\
---------------------------------------------------------------------------

    \11\ The six Dilaudid 8 mg. prescriptions in GX 19 were written 
by the same doctor for six different customers in the July-August-
November 2012 time period. Specifically, the six Dilaudid 8 mg. 
prescriptions were for: (1) 174 tablets for a customer from Pompano 
Beach at a cash price of $870; (2) 96 tablets for a customer from 
Fort Lauderdale at a cash price of $480; (3) 150 tablets for a 
customer from Miami at a cash price of $750; (4) 180 tablets for a 
customer from Pompano Beach at a cash price of $900; (5) 168 tablets 
for a customer from Pompano Beach at a cash price of $840; and (6) 
168 tablets for a customer from Coral Springs at a cash price of 
$840. Respondent's Owner and PIC had identified the first 
prescription for 174 Dilaudid 8 mg. tablets as showing a ``major red 
flag'' because it was for a schedule II medication and for 174 
tablets. Tr. 881.
    \12\ Apparently, the ``medical practice law'' Respondent's Owner 
and PIC referenced was the ``Ryan Act.'' She testified that the 
purpose of the Relationship Affidavit was to ``establish the 
patient-doctor relationships and the legitimate ill of the 
patients'' in compliance with the ``Ryan Act.'' Tr. 1015-16. 
According to Respondent's Owner and PIC, ``by that law is rely if 
the patient actually has a logical relation with the doctor.'' Id. 
at 1016.
    She testified further about the ``state statute and federal 
statutes'': ``For . . . me was most important thing was to go to 
references of the state statute and federal statutes. So federal 
statute says, has to be clear relationship to establish the 
legitimate medical purpose. You rely on the doctors to establish the 
appropriateness of therapies. It's not on the pharmacy to establish 
the appropriateness of pharmacy. . . , that's how I understood the 
law. The pharmacist is just to establish that the prescription was 
valid--the validity of prescription based that the prescription as a 
requirement, and the doctor allowed to prescribe, and the doctor 
actually see the patients. Unless there's some issues that arise 
with that, like, for instance, if the patient is--not that the 
doctor overly treated or the patient has issues -- or the doctor has 
issues with the patient, or I feel something suspicious, then I call 
the doctors. . . . Because standards only tell you that you have to 
actually establish the patient is not coming here for wrong reasons. 
That's only what the statute says. The statute says if the patient 
come for wrong reason you don't fill it. If the patient come from 
appropriate reason, you fill.'' Id. at 1018-19, 1021.
    \13\ She also testified that she interacted with Respondent's 
customers by asking them questions.
    I would talk to the patient, ask him about why did he come to my 
pharmacy? Where did he fill before? What is the reason he doesn't 
use previous pharmacy? And also, what is the reason for--how long 
has he been on that medication? And whether he was checked by--and 
then I would ask him to look at the affidavit form and sign the 
affidavit form for the patient. . . . I have not written those 
questions out. But they would be the same questions that I would ask 
to establish . . . the history of the patient.
    Tr. 882-83, 884. When asked whether she would ``essentially'' 
ask every customer the same questions, she responded affirmatively 
and identified other questions she asked. Id. at 884-85. 
Respondent's Owner and PIC, however, did not explain the purpose of 
these questions given her testimony that the signed Relationship 
Affidavits ``resolved'' the issue of whether customers were 
attempting to fraudulently or illegally get access to controlled 
pain medication.
---------------------------------------------------------------------------

    The Relationship Affidavit was a one-page form with Respondent's 
name at the top, and name and contact information at the bottom. See, 
e.g., Respondent Exhibit (hereinafter, RX) 5, at 2. Text on the 
Relationship Affidavit stated that individuals ``who are receiving 
medications to treat chronic intractable pain are required to be seen 
and examined by the physician on the same date the prescription for 
pain has been issued.'' Id. According to the Relationship Affidavit, a 
customer had to sign it before Respondent would fill a prescription. 
The Relationship Affidavit stated that:

    In order for prescriptions to be filled by . . . [Respondent] 
patients are required to sign this affidavit to ensure the following 
elements exist. By affirming and satisfying the conditions mentioned 
below . . . [Respondent] assumes that the prescription is valid 
pursuant to a legal Physician Patient Relationship.\14\
---------------------------------------------------------------------------

    \14\ The referenced ``elements'' apparently were listed in the 
last section of the form, which stated: ``By signing below, I 
________agree that the following elements of a legal Pain Management 
Physician-Patient Relationship exist: 1. There is no fraudulent 
representation to illegally gain access to controlled pain 
medications 2. There are no multiple doctors ``doctor shopping'' 
treating me for pain management 3. A physician has seen and 
conducted a physical examination 4. A physician has reviewed the 
patient's medical history 5. The patient has a medical complaint 6. 
MRI has been conducted within 24 months of the prescription 7. There 
is a logical correlation between the following a. Medical Complaint 
b. Medical History c. Physical Exam d. Prescriptions. 
__________Patient Name ________Date of Birth ________Signature 
________Date.'' RX 5, at 2.

Id. Notably, Respondent stated its ``assumption'' that a prescription 
was valid when customers affirmed and satisfied the Relationship 
Affidavit's ``conditions mentioned below,'' presumably the 
``elements.'' Id.
    Also of note was the ``Warning'' on the Relationship Affidavit: 
``In the event . . . [Respondent] has reasons to believe that 
prescriptions for pain medication have been prescribed and/or received 
fraudulently we have a legal responsibility to report such activity and 
individuals to local and federal authorities. These authorities will 
handle such individual in the manner prescribed by law.'' Id. 
Respondent's Owner and PIC discussed the Relationship Affidavit's 
``warning'' in her testimony. She stated that ``it was actually warning 
that's in the case if I find something which would jeopardize or 
compromise my belief in the validity of the prescription, we have 
responsibility to report such activity to local and federal police. And 
the patient knew about it.'' Tr. 888. She testified that, ``I would say 
if I . . . find something . . .--. . . like Your Honor giving me the 
benefit of the doubt, I would give the patient the benefit of the 
doubt. If I find out that you have a problem, it's fraudulent, I will 
report you. So you better not start that process.'' Id.
    In sum, Respondent's Owner and PIC testified that (1) she assumed 
the legality of a prescription based on customers' completion of the 
Relationship Affidavit, (2) she gave customers ``the benefit of the 
doubt'' concerning their completion of the Relationship Affidavit, and 
(3) she warned customers to ``better not start'' the process of her 
``find[ing] out'' that a prescription is ``fraudulent.'' She did not 
explain why it was reasonable to expect drug seekers to understand what 
they read, let alone be honest and

[[Page 10883]]

truthful as they completed and signed the Relationship Affidavit. She 
also did not explain how giving customers ``the benefit of the doubt'' 
was consistent with the requirements of the corresponding 
responsibility regulation. 21 CFR 1306.04(a).
    Fourth, Respondent's Owner and PIC testified that she ``validate[d] 
that . . . it's a signature . . . not rubber signed, . . . [the 
prescription] was actually signed by the physician.'' Tr. 892; see also 
id. at 1116-17 (``[T]he issue at the time was not the strength. The 
issue they were looking for was actually the prescription legitimate . 
. . , it's not fake . . . . Make sure the doctor actually issue it. He 
didn't buy it from--on the side, on the street. He didn't get his 
prescription from other sources, and actually get it from the 
doctor.'').
    Respondent's Owner and PIC testified that the concept of ``red 
flags'' stood in the way of getting medicine to deserving individuals. 
She testified that, ``by strictly following these red flags, it will 
prevent legitimate patient from obtaining the medication.'' Id. at 
1108. She testified that she decided not to fill prescriptions for 
schedule II controlled substances altogether because ``following the 
red flags will prevent me from filling the . . . prescriptions for 
legitimate medical purposes . . . and be unfair to the patient.'' 
Id.\15\
---------------------------------------------------------------------------

    \15\ She added, ``Except two instances when I had this overstock 
and the patient was patient of mine for other reasons, we decide to 
fill. . . . And I don't purchase them [schedule II controlled 
substances].'' Tr. 1108-09.
---------------------------------------------------------------------------

    Before the time she testified to having decided not to fill 
schedule II prescriptions, Respondent's Owner and PIC testified that 
her ``liability was to prevent the diversion the best that I can, 
considering it was very, very little guidelines was provided to us at 
that time. We tried to update it, it was confusing, the red flags was 
changing.'' Id. at 890. Apparently based on the individual perspective 
of Respondent's Owner and PIC concerning what pharmacies should do, 
Respondent designed its own forms ``to support the establishment of 
legitimate medical purpose to fill'' prescriptions. Id. at 981.\16\
---------------------------------------------------------------------------

    \16\ See, e.g., RX 6 and RX 10. These exhibits include various 
items of documentation with respect to fourteen customers which 
Respondent represented were obtained to determine the validity of 
the prescriptions. Tr. 824. Each of the exhibits contains a copy of 
each customer's driver's license, and copies of the Pain Management 
Physician-Patient Relationship Affidavit for 11 of the customers. 
There are also copies of printouts from the DEA registration web 
page with respect to five of the customers. RX 6, at 3, 18, 35; RX 
10, at 6, 12.
     There are also copies of a ``CII/CIII Rx Verification Form'' 
for four customers in these two exhibits. This was a one-page form 
on which Respondent would document the date and time of a phone call 
to a prescriber's office and list the name of the person providing 
the information. See RX 6, at 6. The form was then used to document 
``yes'' or ``no'' as to whether: (1) The prescription was written by 
the prescriber, (2) whether the patient was seen by the prescriber 
at the prescriber's office, and (3) whether the patient was 
physically examined by the prescriber, after which the form provided 
a space for writing the diagnosis. Id. The form then included boxes 
to check whether the prescription was approved or denied, three 
lines for notes, and a line for the pharmacist to initial. While 
Respondent's Owner and PIC testified that she used this one-page 
form ``[i]nstead of writing scribbles on the back of the 
prescription,'' Tr. 1002, and on each of the four forms, checked 
``yes'' with respect to each question, listed diagnoses codes, and 
indicated that each prescription was ``approve[d],'' none of the 
forms contains additional notes and only two of the forms were 
initialed by the pharmacist. See RX 6, at 6, 10, 21, 29.
     Finally, the exhibits contain copies of E-FORCSE printouts for 
five of the fourteen patients. See RX 6, at 4, 7, 17, 20, 30. Of 
note, three E-FORSCE printouts were not obtained until the middle of 
April 2013, see id. at 4, 7, 30, one was obtained on May 13, 2013, 
see id. at 20, and one was obtained on August 23, 2013. Id. at 17. 
As found above, the DI served the Notice of Inspection on Respondent 
on April 11, 2013.
    Respondent's Owner and PIC offered multiple comments about these 
timing issues: She ``would not necessarily print out every time,'' 
``the record that I kept in the file obviously was the latest one,'' 
and ``every time I check, I would check with the PDMP--with the PMP 
report.'' Id. at 994. When questioned further by the CALJ about the 
E-FORCSE printout for patient G.A., Respondent's Owner and PIC 
testified that the State of Florida ``would not give us the access'' 
and ``for a while I relied on the physician offices to provide me 
that information. I would call the physician to run the PMP report 
until I actually were able to get the access myself . . . .'' Id. at 
996. Respondent's Owner and PIC stated that she got access to E-
FORCSE ``sometime during 2013.'' Id. at 997-98.
     Respondent's Owner and PIC testified that this information was 
important to her because it told her ``that this patient . . . was 
seen by the same doctor for over . . . [a] seven-month period. And 
so this patient requires therapy. And the doctor was a very local 
doctor . . . [a]nd he was going only to my pharmacy. So [the 
customer] relied on me to fill her prescription.'' Id. at 986-87. 
Yet, with respect to patient S.B., her E-FORCSE printout showed that 
she had filled her controlled substance prescriptions at three 
different pharmacies as well as through a mail order service, RX 6, 
at 7, and with respect to patient D.K., his E-FORSCE printout showed 
that he had filled his prescriptions for both oxycodone and 
hydromorphone at four pharmacies in addition to Respondent. Id. at 
20.
     While Respondent's Owner and PIC also testified that G.A.'s 
``established relationship'' with the doctor was ``one of the thing 
that you use--one of the tools that you use with--to establish 
legitimate medical purpose . . . [because] you can fairly assume 
that the patients are being taken [sic] by the physician properly,'' 
id. at 988-89, Dr. Gordon testified that ``[t]he first . . . [red 
flag] that is really bold to me is the doctor. I've worked on other 
cases, and I've seen this doctor [R.T.] write lots of illegitimate 
prescriptions.'' Id. at 360-61. Notably, each of the seven 
prescriptions listed on G.A.'s E-FORCSE printout was written by Dr. 
R.T., and each prescription was for 150 or 160 dosage units of 
hydromorphone 8 mg. RX 6, at 4. Dr. R.T. also wrote five of the 
prescriptions listed on S.B.'s E-FORCSE printout (including all four 
hydromorphone prescriptions, three of these being for 160 dosage 
units or more of the 8mg. dosage), see RX 6, at 7, and all four 
hydromorphone prescriptions listed on T.S.'s E-FORCSE printout, each 
of these being for 150 or more dosage units of the 8 mg. dosage. Id. 
at 30.
     Respondent submitted a further exhibit, RX 11, which contained 
documentation related to other customers. Respondent's Owner & PIC 
testified that this exhibit was ``generated . . . [t]o show in good 
faith that we are actually conducting best practices. . . . That we 
document good practice when we fill the patient--we're filling pain 
medication for sick patient.'' Tr. 1173-74. The exhibit consist of a 
photocopy of the driver's licenses of three of the six customers for 
whom the prescriptions in GX 14 were written; a Relationship 
Affidavit signed by two of the six customers; and a one page E-
FORCSE printout dated months after the corresponding prescriptions 
in GX 14 were written and filled.
---------------------------------------------------------------------------

    I afford Dr. Gordon's statement of the pharmacy's/pharmacist's 
standard of practice regarding controlled substances controlling weight 
in this proceeding. I find that the requirements incumbent on 
pharmacies/pharmacists espoused by Respondent's Owner and PIC are only 
entitled to credit as I determine what actions Respondent took and 
Respondent's suitability to be a registrant. Essentially, the views of 
Respondent's Owner and PIC about a pharmacy's/pharmacist's obligations 
with respect to dispensing controlled substances reflect an abdication 
of her legal responsibility to a prescriber with a valid State license 
and whose DEA registration covered the schedule of the prescribed 
medication when the customer simply signed the Relationship Affidavit. 
Significant aspects of the pharmacy's/pharmacist's obligations espoused 
by Respondent's Owner and PIC were contrary to statute, regulation, and 
Agency precedent. I categorically reject them.

Allegations That Respondent Failed To Exercise Its Corresponding 
Responsibility When It Dispensed Controlled Substances Pursuant to 
Prescriptions Not Issued in the Usual Course of Professional Practice 
or for a Legitimate Medical Purpose

    The Show Cause Order alleged that Respondent failed to exercise its 
corresponding responsibility under 21 CFR 1306.04(a) as evidenced by 
its having dispensed controlled substances without resolving ``red 
flags of diversion'' that were present. The Government alleged seven 
``red flags of diversion'' in the Show Cause Order: Prescriptions 
presented by customers who traveled long distances to Respondent; 
multiple customers filling prescriptions written by the same 
prescriber, for the same drugs, in the same quantities, on the same 
day; multiple customers from the same address coming to Respondent at 
the same time with prescriptions from the same doctor for the same drug 
and

[[Page 10884]]

strength; customers presenting two prescriptions, both for the same 
immediate release controlled substance, but for different strengths; 
customers presenting prescriptions with a combination of an opiate and 
a benzodiazepine or ``drug cocktail'' popular among drug abusers; 
customers paying for their prescriptions with cash, when other red 
flags of diversion were present; and customers presenting new 
prescriptions for controlled substances when they should not have 
finished their previous prescription for that drug (``early fills'' or 
``early refills'').

Prescriptions Presented by Customers Who Traveled Long Distances to 
Respondent

    The Government alleged that customers traveling long distances to 
fill their prescriptions was a ``red flag of diversion,'' and that 
Respondent dispensed controlled substances to customers who traveled 
long round-trip distances, from their homes, to the prescribers, to 
Respondent, and then back home, without addressing or resolving the 
distance red flags. To support this allegation, the Government 
submitted 13 such prescriptions filled by Respondent. See GX 8/8a; \17\ 
see also Tr. 53 (DI testifying that GX 8 contained fair and accurate 
copies of the documents Respondent provided to him). Of the 13 
prescriptions in GX 8/8a, nine were for Dilaudid 8mg.\18\
---------------------------------------------------------------------------

    \17\ The materials in GX 8 and GX 8a, 13 prescriptions and 
corresponding prescription labels, were identical. There were 
driver's licenses associated with nine of the 13 prescriptions/
prescription labels. GX 8a contained better copies of most of the 
driver's licenses than GX 8. Tr. 793. Those better copies were added 
to GX 8 as GX 8a during the hearing on June 11, 2015. Id. at 794.
    \18\ The other four were for buprenorphine (2), Xanax, and 
testosterone.
---------------------------------------------------------------------------

    The DI testified that he initially identified the prescriptions in 
GX 8/8a as ``problematic'' because they showed ``[p]eople traveling 
long distance[s] to the pharmacy.'' Tr. 50-51. The parties stipulated 
to sets of round-trip (by road) miles within the State of Florida. ALJX 
20, at 1-2. Those sets of round-trip miles corresponded to miles 
traveled by customers for whom Respondent filled prescriptions listed 
in the Show Cause Order and included in GX 8/8a. In sum, the round-
trips ranged from 184 miles to 661 miles. I make the following 
findings:

     One bottle of Buprenorphine Hydrochloride 0.3 mg/mL 
issued to FW of Deltona by Dr. AF of Hallandale Beach. The parties 
stipulated that the distance by road from Deltona to Hallandale 
Beach and back to Deltona is 504 miles.
     150 tables of Dilaudid 8 mg. issued to GA of Fort 
Pierce by Dr. RT of Miami. The parties stipulated that the distance 
by road from Fort Pierce to Miami to Hallandale Beach and back to 
Fort Pierce is 261 miles.
     168 tablets of Dilaudid 8 mg. issued to SB of Fort 
Pierce by Dr. RT of Miami. The parties stipulated that the distance 
by road from Fort Pierce to Miami to
    Hallandale Beach and back to Fort Pierce is 261 miles.
     150 tablets of Dilaudid 8 mg. issued to CW of Fort 
Pierce by Dr. RT of Miami. The parties stipulated that the distance 
by road from Fort Pierce to Miami to Hallandale Beach and back to 
Fort Pierce is 261 miles.
     One bottle of Buprenorphine Hydrochloride 0.3 mg/mL 
issued to MW of Hobe Sound by Dr. AF of Hallandale Beach. The 
parties stipulated that the distance by road from Hobe Sound to 
Hallandale Beach and back to Hobe Sound is 166 miles.
     140 tablets of Dilaudid 8 mg. issued to DK of Jensen 
Beach by Dr. NG of Hallandale Beach. The parties stipulated that the 
distance by road from Jensen Beach to Hallandale Beach and back to 
Jensen Beach is 195 miles.
     56 tablets of Dilaudid 8 mg. issued to BS of Port St. 
Lucie by Dr. ML of Hollywood. The parties stipulated that the 
distance from Port Saint Lucie to Hollywood to Hallandale Beach and 
back to Port Saint Lucie is 201 miles.
     150 tablets of Dilaudid 8 mg. issued to TS of Sebastian 
by Dr. RT of Miami. The parties stipulated that the distance from 
Sebastian to Miami to Hallandale Beach and back to Sebastian is 318 
miles.
     One bottle of testosterone cypionate 210 mg/mL issued 
to RV of Sebring by Dr. AF of Hallandale Beach. The parties 
stipulated that the distance by road from Sebring to Hallandale 
Beach and back to Sebring is 312 miles.
     112 tablets of Dilaudid 8 mg. issued to BR of St. Pete 
Beach by Dr. DJ of Deerfield Beach. The parties stipulated that the 
distance by road from Saint Pete Beach to Deerfield Beach to 
Hallandale Beach and back to Saint Pete Beach is 538 miles.
     112 tablets of Dilaudid 8 mg. issued to WP of Stuart by 
Dr. GF of Pembroke Park. The parties stipulated that the distance by 
road from Stuart to Pembroke Park to Hallandale Beach and back to 
Stuart is 184 miles.

GX 8/8a.

    Dr. Gordon testified that the long distances the customers traveled 
in connection with obtaining and filling all of the prescriptions in GX 
8/8a were red flags. Tr. 353-62, 365, 368, 370, 372, 374-77, 380-82, 
384-85, 387-92. She explained: ``Pharmacies that dispense prescriptions 
that are not for legitimate medical purpose, they have a tendency to 
develop a reputation. And then the other drug seekers find out about 
it, and they'll go to any distance to get what they need for their--to 
satisfy their addiction.'' Id. at 355.
    For 12 of the 13 prescriptions, Dr. Gordon was asked to look for 
notations on the prescriptions evidencing that the filling pharmacist 
had taken steps to attempt to resolve the prescriptions' red flags, or 
she looked for notations herself. She found none. Id. at 356, 364, 369, 
371, 373, 374, 377, 381-82, 384, 387-88, 389-90, 391. On cross 
examination, Dr. Gordon testified to the absence of documentation on 
the other prescription. Id. at 494. Dr. Gordon was asked whether the 
distance red flags on 12 of the prescriptions were resolvable. She 
testified they were not. Id. at 355, 367, 369, 371, 373, 374, 377-78, 
382, 384, 388, 390, 391. She was not asked about the resolvability of 
the distance red flag on the other prescription, but said that its red 
flag had not been ``resolved.'' Id. at 364. Of that prescription, she 
also stated: ``That's a very long distance [261 miles from Fort Pierce 
to Miami to Hallandale Beach to Fort Pierce] for somebody that has pain 
to be driving--sitting in a car for that long to obtain Dilaudid 8, 
which is the highest milligrams it comes in.'' Id. at 361.
    In sum, Dr. Gordon concluded that none of the 13 prescriptions was 
legitimate and that the pharmacist who filled the prescriptions had not 
exercised her corresponding responsibility to make sure the 
prescriptions were issued for a legitimate medical purpose by a 
practitioner acting in the usual course of professional practice. Id. 
at 357, 364-65, 367-78, 370, 371, 373, 375, 378, 382, 385, 388, 390, 
391-92.
    Mr. Fisher's testimony about whether distance was a red flag was 
inconsistent. At one point, Mr. Fisher testified that the prescriptions 
included in GX 8 evidenced distance red flags, and that he believed 
they could have been resolved. Id. at 596-97. ``Usually,'' he stated, 
``a prescription is going to be filled close to where the physician is 
or close to where the person lives.'' Id. at 597; see also id. at 601 
(Mr. Fisher's testimony that Fort Pierce is a ``distance from the 
area.''). At another point, however, Mr. Fisher appeared to testify 
that distance was a red flag only when Respondent was asked to fill 
prescriptions for intrastate customers, as opposed to out-of-state 
customers, even though out-of-state customers would be located further 
from Respondent than intrastate customers. Id. at 745. The CALJ sought 
clarification, asking: ``[I]f a person was a long distance but they 
were in Florida, that would be a red flag. But if a person was living a 
long distance . . . in Georgia, that's not a red flag? . . . So what's 
your final answer; that it is a distance red flag or it's not.'' Id. at 
745-46. Mr. Fisher responded: ``It's a distance red flag, which is

[[Page 10885]]

resolvable.'' \19\ Id. at 746; see also id. at 754. Thus, Mr. Fisher 
eventually agreed with the testimony of the Government's expert that 
customers who traveled long distances to fill controlled substance 
prescriptions were red flags.
---------------------------------------------------------------------------

    \19\ When Respondent's counsel argued that Mr. Fisher ``did not 
testify in all other cases that the distance was a factor and 
testified in this case--. . . I'm talking about as out-of-state 
prescriptions, that distance is not a factor'' and that ``[t]he 
method of delivery is completely different . . . [s]o those two are 
not even analogous,'' the CALJ responded: ``The record will stand as 
it is.'' Tr. 746-47.
---------------------------------------------------------------------------

    Respondent's Owner and PIC admitted that Respondent filled the 
prescriptions in GX 8/8a. Id. at 979. She testified that it was not a 
red flag ``by itself'' for customers within the State of Florida to 
come over 100 miles from their homes to fill a controlled substance 
prescription at her pharmacy. Id. at 1028; see also id. at 1021-22 (In 
2012 and 2013, ``the fact that a patient traveled a long distance . . . 
was not a major red flag, no.'' There were ``other red flags that I was 
concentrating on.'').
    Respondent submitted CII/CIII Rx Verification Forms for four of the 
13 prescriptions in GX 8/8a.\20\ RX 6, at 6, 10, 21, and 29. According 
to Respondent's Owner and PIC, these four forms were part of 
Respondent's ``patient files,'' the ``documents--prescriptions, 
prescription labels, and corresponding documents which assisted me to 
resolve the red flags made by . . . [Respondent] and kept in the 
regular course of business.'' Tr. 824-25. She asserted that the CII/
CIII Rx Verification Form was a ``step ahead,'' and ``above and 
beyond'' the ``general practice of most of the pharmacies in the State 
of Florida.'' Id. at 1001. She further testified that ``[i]nstead of 
writing scribbles on the back of the prescription, . . . you have, more 
or less, here on form.'' Id. at 1002.
---------------------------------------------------------------------------

    \20\ The CII/CIII Rx Verification Forms concern the 
prescriptions in GX 8/8a written for SB, CW, DK, and TS.
---------------------------------------------------------------------------

    While the forms contained diagnosis codes, only two of the forms 
were initialed by the pharmacist, and none of the forms contained any 
notes explaining how Respondent's pharmacist resolved whatever prompted 
her to call the prescriber even though the form contained three lines 
for this purpose. RX 6, at 6, 10, 21, 29. Regarding the incompletions, 
Respondent's Owner and PIC testified both that: (1) ``Sometime we get 
busy, I know the office is called'' and ``I did look at the paper, 
because I would not fill the prescription unless I look at the paper;'' 
and (2) ``[i]f it's a routine patient who comes--who's been already 
established by me, . . . same prescription that's filled before, we 
would just--probably would be a little bit more routine in the call.'' 
Id. at 1004, 1005-06 (respectively). This testimony of Respondent's 
Owner and PIC was inconsistent with her testimony that ``When all the 
schedule II prescriptions--I would talk to doctor on each 
prescription.'' Id. at 1116.
    Respondent's Owner and PIC stated that she did not document all her 
conversations with doctors because ``it's my kind of internal--I did it 
to make a proper, sound clinical judgment whether this patient 
appropriate to get . . . these filled prescriptions.'' Id. at 1010. 
Notably, she stated that, ``I do accept responsibility for that and I 
don't do it any more. Now I document every little thing that it's 
concerned to the conversation and the dispensing of controlled 
substances.'' Id. She also said that, ``again, like I said, I accept 
responsibility for that and I improve my practice now. I do document 
everything that's possible to. However, like I said, this happens all 
the time.'' Id. at 1011. She added that ``we cannot have 100 percent 
even if it's red flag. . . . You try to do the best that you can, but 
sometimes it happens.'' Id. at 1012.
    The CALJ noted that ``it seems to me that on the form that you're 
giving me, the place that that should have been noted is down at the 
bottom where it says `notes,' and also the pharmacist's initials if you 
had made the call.'' \21\ Id. at 1013. Respondent's Owner and PIC, 
correlating the exercise of her corresponding responsibility with her 
practice in school of ``taking very little notes,'' admitted that ``I 
do have a tendency not to take too many notes'' and confirmed that ``I 
should learn how to take better notes.'' Id. at 1014. She said that she 
``took remedial steps for it'' by ``hir[ing] new person who actually 
specifically look if I leaving the notes . . . and everything is 
properly taken right now.'' Id. Further, Respondent's Owner and PIC 
admitted that red flags identified from E-FORCSE were not noted, nor 
was their resolution documented, on the corresponding CII/CIII Rx 
Verification Form. Id. at 1010.
---------------------------------------------------------------------------

    \21\ Two of the forms' ``Pharmacist's Initials'' sections were 
completed. No form's ``Notes'' section contained a note.
---------------------------------------------------------------------------

    Based on the testimony of both Dr. Gordon and Mr. Fisher, I reject 
the testimony of Respondent's Owner and PIC that ``the fact that a 
patient traveled a long distance . . . was not a major red flag.'' I 
further find not credible the testimony of Respondent's Owner and PIC 
that she did not consider a controlled substance prescription presented 
by a customer who travelled a long distance to be a red flag and 
conclude the exact opposite to be the case.
    I find that each of the prescriptions in GX 8/8a raised at least 
one red flag that required resolution in that customers traveled long 
distances to obtain controlled substances, including schedule II 
controlled substances that even Respondent's Owner and PIC admitted 
were ``highly risky'' and subject to ``a lot of diversion.'' Id. at 
1129, 1116, respectively. I find that Respondent admitted filling the 
prescriptions in GX 8/8a. Based on the testimony of both Dr. Gordon and 
Mr. Fisher, I find that, at a minimum, the distances the patients 
traveled to present the prescriptions in GX 8/8a required Respondent to 
resolve the distance red flags before dispensing controlled substances. 
I further find that Respondent did not address or resolve the red flags 
before filling the prescriptions in GX 8/8a.

Multiple Customers Filling Prescriptions Written by the Same 
Prescriber, for the Same Drugs, in the Same Quantities, on the Same Day

    The Government alleged that prescriptions written by the same 
prescriber, for the same drugs, in the same quantities, and on the same 
day was a ``red flag of diversion,'' and that Respondent filled such 
prescriptions without resolving that red flag. As support for this 
allegation, the Government submitted five prescriptions that were 
written by the same doctor (Dr. A.F.) on the same day (June 27, 2012), 
and for the same strength of the same medication (testosterone 
cypionate). See GX 10; see also Tr. 394 (testimony of Dr. Gordon), Tr. 
67 (DI testifying that GX 10 contained fair and accurate copies of 
documents he obtained from Respondent on April 11, 2013), and Tr. 68. 
Respondent filled them all on June 28, 2012, between 11:24 a.m. and 
12:56 p.m., a period of about an hour and a half. GX 10.
    In Dr. Gordon's view, ``[t]hese prescriptions present a big red 
flag.'' Tr. 394. ``[I]t's odd,'' she testified, ``that a compounded 
script would be made exactly the same for each of these patients, which 
means there's not individualized therapy.'' Id. The lack of 
individualized treatment meant to Dr. Gordon that ``the prescriptions 
were not written for a legitimate medical purpose.'' Id. at 396. She 
testified that she did not see any notations on the prescriptions 
evidencing that a pharmacist attempted to address the red flags. Id.; 
see also R.D., at 49 (Respondent's Owner and PIC ``conceded that the 
paperwork furnished

[[Page 10886]]

to the DIs at the April 11th Inspection did not memorialize any 
attempts to resolve this red flag and agreed that she did not have any 
paperwork documenting her identification or resolution of the 
issue.''). Dr. Gordon's testimony was that this red flag was not 
resolvable. Tr. 396. She testified that the pharmacist who filled the 
prescriptions did not exercise her corresponding responsibility to 
ensure that the prescriptions were issued for a legitimate medical 
purpose by a practitioner acting in the usual course of professional 
practice. Id. at 396-97.
    At first, the ``only comment'' that Mr. Fisher had about the 
prescriptions in GX 10 was that ``there doesn't seem to be a quantity 
that's identifiable.'' Id. at 618. When asked specifically about the 
fact that the prescriptions came from the same doctor and for the same 
drug, Mr. Fisher testified that, ``[i]f the doctor is specializing in 
men's health . . . , he could have multiple patients on the same 
regimen of drugs.'' Id. at 619. On cross examination, however, Mr. 
Fisher admitted that the five prescriptions were an example of 
``pattern prescribing,'' or when ``a doctor . . . writes the same thing 
for every single patient that comes in.'' Id. at 769. Mr. Fisher then 
testified that pattern prescribing was a ``red flag for diversion.'' 
Id.
    Respondent's Owner and PIC testified that the prescriptions raised 
a red flag because they were for a ``schedule [sic] medication, 
testosterone.'' \22\ Id. at 1084. She testified that she resolved this 
red flag by asking the prescribing doctor ``if she knows the purpose of 
this . . . treatment, and if the patient are . . . taking it for an 
appropriate use.'' Id.
---------------------------------------------------------------------------

    \22\ Respondent's Owner and PIC testified that the red flag for 
the testosterone prescription on page 3 of GX 10 was the customer's 
age, 27 years old. Tr. 1086. She stated that she spoke with the 
doctor about this prescription and the ``doctor assured me that this 
patient has low testosterone and he needs because he feels very 
tired and he's not going to use it for athletic purposes. He was not 
an athlete.'' Id.
---------------------------------------------------------------------------

    Respondent's Owner and PIC also testified that these five 
prescriptions raised red flags because ``[t]hey came on the same day 
with the same medication at the same . . . dose . . . [a]nd the same 
doctor.'' Id. at 1092. At this juncture, her testimony about how she 
resolved the red flags was that she spoke with the doctor. Id. at 1092-
93. She testified that, ``The reason . . . they come on the same day, 
because the doctor designated that day to see patients who need 
hormonal replacement. . . . [I]t helps her to keep the records straight 
. . . . [T]hey start out on the same dose. This way it's easier to 
achieve the day to day concentration of the dose.'' Id. In response to 
whether she had any notes ``anywhere'' documenting her conversation 
with the physician, Respondent's Owner and PIC replied, ``Not here, 
no.'' Id. at 1094.
    Based on all of the evidence in the record, I find that Respondent 
filled prescriptions that raised the red flag of multiple customers 
presenting prescriptions written by the same prescriber on the same day 
for the same medication in the same quantity. I further find that, even 
if these red flags were resolvable, there was no credible evidence that 
Respondent addressed or resolved them before filling the prescriptions. 
I cannot, and do not, place any weight on the testimony of Respondent's 
Owner and PIC that she resolved these red flags because she produced no 
documentary evidence to support her claim that she attempted to and, in 
fact, did resolve them before filling the prescriptions.

Multiple Customers From the Same Address Coming to Respondent at the 
Same Time With Prescriptions From the Same Doctor for the Same Drug and 
Strength

    The Government alleged that multiple customers from the same 
address coming to Respondent at the same time with prescriptions 
written by the same doctor for the same drug and strength was a ``red 
flag of diversion,'' and that Respondent filled such prescriptions 
without resolving that red flag. To support this allegation, the 
Government submitted two prescriptions for Dilaudid 8 mg. that 
Respondent filled within five minutes of each other. See GX 11. The 
prescriptions were written by the same doctor on the same day with the 
same use directions to two individuals with the same last name and 
street address in Hollywood, Florida. See Tr. 397-98; see also id. at 
70 (DI testifying that GX 11 consisted of true and accurate copies of 
prescriptions and labels he took from Respondent on April 11, 2013) and 
id. at 71 (DI testifying that the prescriptions in GX 11 were for two 
customers living at the same address, who saw the same doctor, were 
prescribed the exact same drug and strength, and then took those 
prescriptions to Respondent at the same time). The difference between 
the two prescriptions was that one was for 80 tablets and the other was 
for 85 tablets. Id. at 397; see also GX 11, at 1, 3.
    In Dr. Gordon's opinion, these prescriptions raised multiple red 
flags that were not resolvable. Tr. 397-98. She testified that: ``This 
to me is what's called rubber-stamping from a physician, and is not 
individualized therapy. . . . It's unusual that two patients that live 
at the same address would receive the same exact therapy. There's 
always an exception to the rule, but this is common in the drug-seeking 
community . . . .'' Id. Dr. Gordon also testified that there were no 
notations on the prescriptions addressing the red flags. Id. at 398. 
Her opinion was that the prescriptions were not legitimate and that the 
pharmacist who filled the prescriptions had not exercised her 
corresponding responsibility to ensure the prescriptions were issued 
for a legitimate medical purpose by a practitioner acting in the usual 
course of professional practice. Id. at 398-99.
    Mr. Fisher agreed with Dr. Gordon that the prescriptions raised red 
flags. He testified that the ``same address for two different people'' 
and the ``same drug'' were red flags associated with these 
prescriptions. Id. at 620. He considered it ``very possible'' that the 
prescriptions were for husband and wife who had a reason for going to 
the same doctor at the same time. Id. He suggested that ``[s]peaking to 
the physician would be the easiest way'' to resolve those red flags. 
Id. On cross-examination, Mr. Fisher agreed that a pharmacist's ``due 
diligence . . . [and] the standard way to try to prevent diversion of 
drugs'' required the pharmacist to ``check the other things available . 
. . [l]ike the E-FORCSE system, . . . the doctor's license number, and 
all that. The routine things you do with a Schedule II prescription.'' 
Id. at 771. He also contradicted his earlier testimony when he admitted 
that, in this situation, a ``simple phone call to the doctor'' might 
not achieve the level of satisfaction concerning the prescriptions' 
legitimacy the ``pharmacist has to get . . . before they can fill the 
prescription,'' because ``the doctor, himself, may not have issued . . 
. [the prescriptions] for legitimate medical purpose[s] in the course 
of his professional practice.'' Id. at 771-72.
    According to Respondent's Owner and PIC, the fact that the 
prescriptions were written by the same doctor, for the same drug and 
dosage, for individuals living at the same address who had the same 
last name and presented the prescriptions on the same day did not raise 
a red flag. Id. at 1097-98. She testified that she ``would treat . . . 
[the prescriptions] the same way I treat every other schedule II 
medication.'' Id. at 1098. She also stated that she filled the 
prescriptions because, at the time, ``I thought the circumstances of 
the prescriptions were understandable.'' Id. at 1103-04. She then 
stated that, as of 2015, she would not fill them ``[b]ecause the DEA 
have restriction on filling those

[[Page 10887]]

prescriptions[,] . . . [n]ot because the patient are not legitimate and 
not because of doctor not legitimate or not legitimate medical purpose. 
Only because DEA said do not fill those prescriptions.'' Id. at 1104. 
When asked if someone at DEA told her not to fill schedule II 
prescriptions, Respondent's Owner and PIC responded: ``Obviously, if 
they bring me that case, that what they saying to me. They will try to 
take--intend to revoke my license for filling those prescriptions. . . 
. The[y] didn't tell me--not until they come with this order to show 
cause.'' Id. at 1104-05.
    Based on all of the evidence in the record, I find that the 
prescriptions in GX 11 raised red flags because customers with the same 
last name and street address presented them, and they were written on 
the same day by the same doctor for the same drug and strength. 
Further, I find that Respondent admitted filling the prescriptions even 
though these red flags were not resolvable, according to Dr. Gordon's 
testimony. I find that, even if these red flags were resolvable, there 
was no credible evidence in the record that Respondent addressed or 
resolved them before it filled the prescriptions. Respondent's Owner 
and PIC offered no evidence to substantiate her testimony that the 
circumstances of the prescriptions were ``understandable'' and did not 
raise red flags. I afford her testimony no weight.

Customers Presenting Two Prescriptions, Both for the Same Immediate 
Release Controlled Substance, but for Different Strengths

    The Government alleged that a ``red flag of diversion'' was raised 
when customers presented two prescriptions for the same immediate 
release controlled substance, but for different strengths, and that 
Respondent filled such prescriptions without addressing or resolving 
the red flag. As support for this allegation, the Government submitted 
four such prescriptions filled by Respondent. See GX 12. The four 
prescriptions consisted of two prescriptions each for Dilaudid 8 mg. 
and Dilaudid 4 mg. written for two different people. Tr. 399, 405-06; 
see also id. at 72 (DI testifying that GX 12 contained true and 
accurate copies of documents he took from Respondent on April 11, 2013) 
and id. at 73 (DI testifying that the prescriptions in GX 12 belonged 
to two patients for the same immediate-release drugs and strengths). 
Dr. Gordon testified that the prescriptions raised red flags. Id. at 
399-400, 403-04. The first red flag she identified was that the two 
prescriptions were written for the same immediate release controlled 
substance, but for different strengths. Id. at 399. The second red flag 
she identified was the diagnosis of ``lumbar radiculopathy.'' Id. at 
400.
    Dr. Gordon explained that giving one person two prescriptions for 
two immediate release opioids was not necessary because the Dilaudid 8 
mg. could be broken in half to get a 4-milligram dose. Id. at 399. She 
pointed out that there was no long-acting medication accompanying the 
prescriptions in GX 12 and that ``[t]wo immediate-release opioids is . 
. . a common red flag for diverted prescriptions.'' Id.; see also id. 
at 399-400. She explained: ``In pain management . . . you start out 
with a short-acting. Then based on the amount of short-acting, you 
prescribe a long-acting, because if you were in pain, I wouldn't want 
you to have to take something every four hours. . . . So what we do is 
we recommend . . . a long-acting . . . with a break-through.'' Id. at 
401. Her testimony further explained that ``it looks like the 
practitioner was trying to say that you could only take Dilaudid, 4 
milligrams, one, three times a day . . . [but] [i]t won't last eight 
hours. So that's the first red flag.'' Id. at 403. She continued, 
asking rhetorically ``why would you take a higher dose of a break-
through? It doesn't make any sense.'' Id. Drawing from her experience, 
she testified that ``it would have made more sense for him to schedule 
the eight[;] . . . it's usually the same dose for break-through.'' Id.
    Dr. Gordon also testified that the diagnosis of ``lumbar 
radiculopathy'' was ``a red flag to take pause for any reasonable 
pharmacist to make sure the prescriptions are legit.'' Id. at 400. See 
GX 12, at 1-2. She explained that, ``on prescriptions that are not 
legit, that's the pattern I've seen--lumbago is big on illegitimate 
prescriptions--and most of my colleagues as well.'' Tr. 404.
    When asked if she would ``reach out to the prescriber'' if she 
``were in a retail pharmacy and . . . saw a prescription like this 
coming in with two short-actings,'' Dr. Gordon responded ``[n]o. . . . 
I would give the prescriptions back to the patron.'' Id. at 402. She 
stated that the red flags raised by the prescriptions were not 
resolvable. Id. at 405, 406. Dr. Gordon testified that there were no 
notations on the prescriptions addressing the red flags, and gave her 
opinion that the prescriptions were not legitimate and that the 
pharmacist who filled the prescriptions did not exercise her 
corresponding responsibility to ensure the prescriptions were issued 
for a legitimate medical purpose by a practitioner acting in the usual 
course of professional practice. Id. at 404-05, 406-07; see GX 12, at 
1-8.
    Mr. Fisher agreed that ``two prescriptions written for the same 
person for the same drug but different strengths'' was a red flag. Tr. 
620-21. He testified that he would speak to the doctor to resolve it 
because it's ``[c]ommonly done'' to ``try[ ] to achieve a certain 
therapeutic level by combining the two doses . . . [because] [t]he 8 
milligrams is not enough for the patient, so they do 12.'' Id. at 621. 
Mr. Fisher testified that a consistent therapeutic level would be 
achieved if the medication were taken as directed during a 24-hour 
cycle. See id. at 624. He stated that ``three times a day, you're going 
to take it probably . . . . You're not taking it in the middle of the 
night. You're probably going to take it morning, noontime, and 
suppertime. And then he goes to work and he needs something stronger 
and he takes the stronger dose. . . . It is common.'' Id. at 624-25.
    Respondent's Owner and PIC testified that the only red flag she 
associated with the prescriptions in GX 12 was that they were for 
schedule II controlled substances. Id. at 1115, 1129. When asked if 
``the fact that there was two different strengths of the same 
medication, issued to the same patient on the same day by the same 
doctor . . . constitutes a red flag,'' Respondent's Owner and PIC 
replied in the negative ``because there is a logical explanation to 
it.'' Id. at 1115. ``That's done . . . to achieve certain dosage 
variance,'' she stated. Id. After further questioning on the subject, 
Respondent's Owner and PIC stated that she ``spoke with the doctor 
about it and doctor approved the dose.'' Id. at 1121; see also id. at 
1132-33. She added that the doctor was ``still practicing . . . [a]nd 
the patient tells me that's how he benefits the most.'' Id. at 1121. 
She testified similarly regarding the prescriber of the other 
prescriptions in GX 12. Id. at 1126.
    When asked whether she had, for these prescriptions, ``the same 
documentation that you've shown before . . . [l]ike . . . the patient 
agreement and the PMP report and a note that somebody checked with the 
doctor,'' Respondent's Owner and PIC answered affirmatively. Id. at 
1121-22. She admitted that she had not, however, provided the same 
documentation. Instead, she stated that the existence of the 
``approved'' stamp and ``my personal stamp with my signature on it'' 
meant that ``I spoke with the doctors. . . . And documents were 
obviously generated when he comes--visiting the

[[Page 10888]]

pharmacy, otherwise I would not dispense it.'' Id. at 1122. When asked, 
however, whether ``[e]very time you see that stamp, you spoke with the 
doctor,'' Respondent's Owner and PIC declined to respond in the 
affirmative. Id. at 1136-37. She stated, ``I have to go each 
prescription by--let's go one-by-one each prescription, I tell you each 
one I spoke with.'' Id. at 1137. She testified that, ``I called--as far 
as I remember, on each prescription, every time it's presented to me, I 
called the office. Not necessarily I would speak every time with the 
doctor. . . . But the practice was at the pharmacy, we verify every 
prescription.'' Id. at 1138. During cross-examination, Respondent's 
Owner and PIC testified that the absence of the stamps would not mean 
that a prescription was not valid ``[b]ecause, again, there's sometimes 
human distractions and errors, some paper can be missed. . . . Again, I 
was not obligated by either the State or law to stamp those 
prescriptions.'' Id. at 1226. She testified that, ``I did my best 
attempt to make sure there's no fraudulent prescription I fill there. 
Or there's no valid DEA numbers or there's, like, no major violation or 
diversion with the prescriptions.'' Id. at 1227.
    Respondent's Owner and PIC was satisfied, she testified, when she 
filled the prescriptions in GX 12 that each ``prescription was filled 
for medical purpose within the scope of a physician practice.'' Id. at 
1139.
    Based on all of the evidence in the record, I find that Respondent, 
without addressing or resolving the red flags, filled prescriptions 
that raised the red flag of customers presenting two prescriptions for 
the same immediate release controlled substance but for different 
strengths. The testimony of Respondent's Owner and PIC, including her 
testimony that she filled each prescription in GX 12 only after being 
satisfied they were for a medical purpose within the scope of a 
physician practice, was not credible. First, it directly conflicted 
with her original testimony denying that the circumstances raised a red 
flag and, second, she did not produce any documentary evidence to 
corroborate her statements.

Customers Presenting Prescriptions With a Combination of an Opiate and 
a Benzodiazepine or ``Drug Cocktail'' Popular with Drug Abusers

    The Government alleged that prescriptions with a combination of an 
opiate and a benzodiazepine are ``drug cocktails'' popular with drug 
abusers and, therefore, raise ``red flags of diversion,'' and that 
Respondent filled such prescriptions without addressing or resolving 
those red flags. To support this allegation, the Government submitted 
seven sets of prescriptions (a total of 14 prescriptions) that 
Respondent filled and dispensed to its customers containing an opiate 
and a benzodiazepine. Id. at 407, 412, 414-15, 417, 421, 422-23, 424; 
see GX 13; see also Tr. 73-74 (DI testifying that GX 13 consisted of 
true and accurate copies of documents he took from Respondent during 
the unannounced inspection) and Tr. 74-75 (DI testifying that the 
prescriptions in GX 13 were for a common drug cocktail of a narcotic 
pain reliever and a benzodiazepine, both at their highest strengths).

----------------------------------------------------------------------------------------------------------------
                    Drug                      Number of tablets     Date written         Customer's initials
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg...............................                116           11/20/12  D.C.
Xanax 2 mg..................................                 43           11/20/12  D.C.
Dilaudid 8 mg...............................                140           12/27/12  D.C.
Xanax 2 mg..................................                 42           12/27/12  D.C.
Dilaudid 8 mg...............................                140            1/24/13  D.C.
Xanax 2 mg..................................                 42            1/24/13  D.C.
Dilaudid 8 mg...............................                162           10/26/12  L.F.
clonazepam 2 mg.............................                 30           10/26/12  L.F.
Dilaudid 8 mg...............................                162           12/21/12  L.F.
clonazepam 2 mg.............................                 30           12/21/12  L.F.
Dilaudid 8 mg...............................                 70           10/12/12  B.K.
Valium 10 mg................................                 42           10/12/12  B.K.
Dilaudid 8 mg...............................                 35            11/9/12  B.K.
Valium 10 mg................................                 42            11/9/12  B.K.
----------------------------------------------------------------------------------------------------------------

    According to Dr. Gordon, these seven pairings of prescriptions were 
considered ``cocktail medications,'' red flags, because they were 
multiple drugs that suppressed the central nervous system and, when 
taken together, could give euphoria. Tr. 408, 412, 414-15 (maximum 
strength of Dilaudid and Xanax), 417, 421, 422 (highest Valium dose 
available), 424 (highest doses available), 546, 547. She elaborated on 
what makes a drug cocktail by testifying that it consisted of ``drugs 
that cause you to have a high.'' Id. at 547. ``So it could be an 
opioid, it could be an upper and a downer,'' she stated. Id. She 
explained that the ``person could be taking the drugs to get a high 
during the day and then a low at night. . . . ``[I]t's not being used 
for what it's intended to be used for.'' \23\ Id. She explained that 
``these two drugs are very highly sought after on the street.'' Id. at 
409. In her opinion, the drug pairings were ``surrounded by 
diversion.'' \24\ Id. at 410; see also id. at 413-14.
---------------------------------------------------------------------------

    \23\ Dr. Gordon testified that the prescriptions would not raise 
a red flag for her if they were written by a ``Hospice doctor [or] 
oncologist.'' Tr. 545.
    \24\ Dr. Gordon identified additional red flags regarding the 
prescriptions in GX 13: First, the prescriptions on pages 13 and 15 
were written for a male (LF) living in Davie and traveling a long 
distance to Miami to see an OB/GYN (Dr. R.T.); second, the diagnosis 
written on the prescription on page 13 was lumbago, a common 
diagnosis that doctors used on diverted prescriptions; and third, 
the repeat customer (LF) for the prescriptions on pages 13 through 
19 written by Dr. R.T. was receiving the same cocktail medications 
with no long-acting medication present. Tr. 16-17, 418, 420-21.
---------------------------------------------------------------------------

    Dr. Gordon addressed whether a muscle relaxant had to be present to 
constitute a drug cocktail. She stated that, ``Cocktail medications 
usually . . . are a combination of an opioid plus or minus a benzo plus 
or minus a muscle relaxant.'' Id. at 408. Then she explained: ``But 
what I've seen . . . lately is the doctors have stopped the Soma, and 
they are just doing, now, high doses of Dilaudid, high doses of benzos. 
It used to be Oxys. Now they've switched to hydromorphone. So you see . 
. . the flags change.'' Id. She added that, ``I see the physicians and 
drug diverters trying to eliminate one of the components of the 
cocktail to try to get away with diverted drugs.'' Id. at 538.
    Dr. Gordon testified that she saw no notations by the pharmacist on 
the prescriptions attempting to resolve the

[[Page 10889]]

red flags and, in her opinion, the ``cocktail'' red flags were not 
resolvable. Id. at 411, 414, 416, 418, 421, 423, 424-25. She 
specifically testified that the prescriptions were not legitimate and 
that the pharmacist who filled the prescription pairings did not 
exercise her corresponding responsibility to ensure that the 
prescriptions were issued for a legitimate medical purpose by a 
practitioner acting in the usual course of professional practice. Id. 
at 411-12, 414, 416, 418-19, 421-22, 423, 425.
    Mr. Fisher stated that he did not consider the drugs in the 
prescriptions in GX 13 to be cocktails. Id. at 629, 631, 632, 633. He 
elaborated: ``To me a cocktail is when you have a combination of three 
drugs: alprazolam, oxycodone or hydrocodone, and carisoprodol. This to 
me looks like a simple case of a patient getting pain medication and 
some Xanax for anxiety.'' Id. 629; see also id. at 630 (``[I]n 
everything I have read and have seen and talked to and have heard at 
meetings, it's a combination of the three drugs represents the 
cocktail.''). Mr. Fisher agreed that ``[a]s things have changed, yes, 
other drugs have been added like the hydromorphone that's come into 
play.'' Id. at 629-30. He testified that what makes a cocktail is 
``more the street value of the drugs.'' Id. at 630.
    On cross-examination, Mr. Fisher reaffirmed his opinion that a 
cocktail involves an opioid, a benzodiazepine, and carisoprodol. Id. at 
772. He acknowledged that a customer could obtain the opioid and the 
benzodiazepine from one pharmacy and the carisoprodol from a second 
pharmacy. Id. at 772-73. He agreed that ``the only way to check for 
that would be through use of . . . E-FORCSE.'' Id. at 773. Mr. Fisher 
also agreed that Respondent, ``not having access to query E-FORCSE, 
would not be able to . . . check for that, those instances of drug 
seekers using other pharmacies or doctors to obtain a third drug that 
could be used in this cocktail.'' Id. On re-direct, Mr. Fisher stated 
that, beside using E-FORCSE, other ways to resolve any red flags 
associated with GX 13 were ``[c]all the physician, discuss their 
treatment modality for the patient, [c]heck the patient's profile if 
you maintain one[,] . . . [and] [i]f you have a computer system you 
could check and see if there's a history of the patient getting other 
prescriptions filled.'' Id. at 779.
    Respondent's Owner and PIC did not agree that the prescriptions in 
GX 13 constituted a drug cocktail because, in her view, a drug cocktail 
had four components: two opioids, carisoprodol, and a benzodiazepine. 
Id. at 1142. ``It's multiple--it's two--for instance, oxycodone and 
Vicodin together with Soma and benzodiazepine,'' she stated. Id. 
According to Respondent's Owner and PIC, she ``didn't fill those 
prescriptions for the Soma, benzodiazepine, carisoprodol,'' and she did 
not recall ever filling a benzodiazepine, Soma, and opiate combination 
for any patients. Id. at 1144, 1145.
    Respondent produced an exhibit containing various documents 
concerning the three customers who asked Respondent to fill the 
prescriptions in GX 13. RX 10. According to the testimony of 
Respondent's Owner and PIC, Respondent compiled or generated the 
documents in RX 10 ``at that time in 2013'' because ``[w]e tried to 
implement as much possible steps and follow them through as much as 
possible to make sure that . . . steps are taken . . . that's 
preventing. . . . Also, . . . that's why . . . when the patient knows 
the pharmacy takes extra steps and scrutinize the prescriptions, people 
who has non-valid prescription not come to me.'' Tr. 1157-58.
    Page 2 of RX 10 was the Relationship Affidavit signed by DC, the 
same DC associated with six prescriptions in GX 13 (pages 1 through 
12). See id. at 1145-46. Similarly, the Relationship Affidavit on page 
5 of RX 10 was signed by LF, the same LF associated with pages 13 
through 20 of GX 13.\25\ See id. at 1148-49.
---------------------------------------------------------------------------

    \25\ LF did not complete the Relationship Affidavit in full.
---------------------------------------------------------------------------

    Respondent also provided registration validation pages purportedly 
printed from DEA's website. According to Respondent's Owner and PIC, 
the DEA registration validation website satisfied her that, on the day 
she filled LF's Dilaudid and clonazepam prescriptions, the prescribing 
physician was ``allowed to prescribe the pain medications.'' Id. at 
1149; see RX 10, at 6; GX 13, at 17, 19. Likewise, according to 
Respondent's Owner and PIC, the DEA registration validation website 
showed her that the physician who prescribed prescriptions for BK ``was 
actually scheduled to prescribe schedule II narcotics.'' Tr. 1156; see 
RX 10, at 12; GX 13, at 21-27.
    Respondent also submitted a hand-written note on a piece of 
prescription paper belonging to the doctor who issued Dilaudid and 
Valium prescriptions for BK. See RX 10, at 10; GX 13, at 21, 23, 25, 
and 27. The note was not addressed to anyone. It showed BK's name in 
the ``patient'' space, and an age, partial address, and date in the 
lines of the prescription paper calling for that information. It did 
not include a diagnosis. The note contained a signature which, 
according to Respondent's Owner and PIC, was the prescribing doctor's 
signature. Tr. 1152. The note stated that ``the patient cannot tolerate 
for long periods of kneel, more than 20 minutes of sitting or 
standing.'' Id. Significantly, the date on the note (August 9, 2011) 
was more than a year and two months before the date on the earliest 
prescription issued to BK and included in GX 13 as filled by Respondent 
(October 12, 2012). Compare RX 10, at 10 with GX 13, at 21. Yet, 
Respondent's Owner and PIC testified that: ``Because I've been calling 
to the doctor and asking about this patient few times . . .[,] [w]e 
make sure the doctor just write a note.'' \26\ Tr. 1152. She continued, 
stating, ``[T]his patient has such a difficult time to fill his 
prescriptions. . . . This patient could not fill prescription anywhere, 
and then he come to me.'' Id. She did not explain how this note led her 
to conclude that the prescriptions issued to BK were legitimate.
---------------------------------------------------------------------------

    \26\ She did not address the timing of how Respondent could have 
``made sure'' the doctor wrote a note more than a year before 
Respondent filled the earliest prescription in the record.
---------------------------------------------------------------------------

    Respondent also submitted a ``Verification of legitimate purpose of 
prescribing CII-CV medications To establish legitimate Physician-
patient relationship.'' RX 10, at 11. It purported to be signed by BK, 
the individual for whom the Dilaudid and Valium prescriptions on pages 
21, 23, 25, and 27 of GX 13 were written. This one-page sheet had space 
for the customer's name, signature, birth date, and appointment date, 
for the physician's name and address, and for ``yes'' or ``no'' 
responses to whether the physician or ``qualified medical 
professional'' conducted a medical examination, took a blood sample, 
and had an ``MRI on file.'' Id.
    I find, based on Dr. Gordon's testimony and consistent with my 
credibility determinations giving Dr. Gordon's testimony regarding the 
practice of pharmacy in Florida more weight than any other witness's 
testimony in these proceedings, that the prescriptions in GX 13 were 
``drug cocktails'' popular with drug abusers. Based on all of the 
evidence in the record, I find that Respondent filled prescriptions 
without having resolved the red flags of customers presenting 
prescriptions with a combination of an opiate and a benzodiazepine 
which is a

[[Page 10890]]

common ``drug cocktail'' popular with drug abusers.

Customers Paying for Their Prescriptions With Cash, When Other Red 
Flags of Diversion Were Present

    The Government alleged that customers paying cash for their 
prescriptions when other red flags of diversion were present was a 
``red flag of diversion,'' and that Respondent dispensed controlled 
substances to customers without resolving the red flags those 
prescriptions presented. As support for this allegation, the Government 
listed 50 prescriptions in the Show Cause Order. ALJX 1, at 5. No 
testimony disputed the allegations that Respondent filled the 50 
prescriptions and that those prescriptions were purchased with cash. I 
reviewed those 50 prescriptions. Thirty-two of them were for Dilaudid 8 
mg. GX 8, 11, 12, 13, 14.

----------------------------------------------------------------------------------------------------------------
                                            Number of
                  Drug                       tablets      Date written      Cash paid            Customer
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg..........................             150        12/10/12         $750.00  G.A.
Dilaudid 8 mg..........................             168        11/20/12          840.00   S.B.
Dilaudid 8 mg..........................             150        12/19/12          750.00   C.W.
Dilaudid 8 mg..........................              56          7/9/12          280.00   J.S.
Dilaudid 8 mg..........................             140         1/21/13          840.00   D.K.
Dilaudid 8 mg..........................              56          9/6/12           40.00   B.S.
Dilaudid 8 mg..........................             150        12/28/12          750.00   T.S.
Dilaudid 8 mg..........................             112         4/26/12          560.00   B.R.
Dilaudid 8 mg..........................             112        11/14/12          560.00   W.P.
Dilaudid 8 mg..........................              80         6/22/12          400.00   D.S.
Dilaudid 8 mg..........................              85         6/22/12          425.00   B.S.
Dilaudid 8 mg..........................              75         9/27/12          375.00   J.F.
Dilaudid 8 mg..........................             168        11/29/12          840.00   B.M.
Dilaudid 8 mg..........................             116        11/20/12          580.00   D.C.
Dilaudid 8 mg..........................             140        12/27/12           28.00   D.C.
Dilaudid 8 mg..........................             140         1/24/13          840.00   D.C.
Dilaudid 8 mg..........................             162        10/26/12          810.00   L.F.
Dilaudid 8 mg..........................             162        12/21/12          810.00   L.F.
Dilaudid 8 mg..........................              70        10/12/12          320.00   B.K.
Dilaudid 8 mg..........................              35         11/9/12          175.00   B.K.
Dilaudid 8 mg..........................             128         10/5/12          640.00   B.K.
Dilaudid 8 mg..........................              40         11/2/12          200.00   B.K.
Dilaudid 8 mg..........................             180         8/15/12          900.00   J.B.
Dilaudid 8 mg..........................             150          9/6/12          750.00   J.B.
Dilaudid 8 mg..........................             180         8/30/12          900.00   J.F.
Dilaudid 8 mg..........................             150         9/27/12          750.00   J.F.
Dilaudid 8 mg..........................             168         3/13/13        1,008.00   L.B.
Dilaudid 8 mg..........................             168         4/10/13        1,008.00   L.B.
Dilaudid 8 mg..........................             168        12/28/12          840.00   J.S.
Dilaudid 8 mg..........................             168         1/23/13        1,008.00   J.S.
Dilaudid 8 mg..........................             180          9/7/12          900.00   H.H.
Dilaudid 8 mg..........................             180         10/5/12          900.00   H.H.
----------------------------------------------------------------------------------------------------------------

    The evidence shows that customers paid as much as $1,008.00 for a 
month's worth of Dilaudid 8 mg.
    Dr. Gordon's testimony explained that payment in cash for a 
controlled substance was always a red flag, even if a significant 
sector of the public did not have health insurance. Tr. 363. Paying in 
cash was a red flag, she testified, because it enabled evasion of 
processes established to alert a pharmacy that a prescription was being 
filled too soon. She stated, ``A lot of drug-seekers only want to pay 
for their medications in cash because . . . the computer systems, the 
insurance company will actually create your red flag for you to say if 
a prescription is refilled too soon, which means they've gone--obtained 
a prescription from another pharmacy.'' Id. at 297. She elaborated and 
provided a specific example: ``[T]he insurance company will give you 
that red flag. Because they'll have a claim . . . and they'll . . . 
say, . . . the patient just got this prescription yesterday from 
Walgreen's . . . . So . . . the patrons will say, `I don't want you to 
charge my insurance company.' That way it kind of eliminates that 
flag.'' Id. at 298-99.
    In Dr. Gordon's opinion, the cash prices that Respondent charged 
its customers were as high as five times the cost Dr. Gordon would have 
expected. Id. at 362; see also id. at 417, 424, 502, 512. As Dr. Gordon 
concluded, ``that to me means that maybe the pharmacist knew what was 
going on, and they were taking advantage of these patrons that were 
drug seeking.'' Id. at 362; see also id. at 464-65 (Concerning 
Respondent's initial charge of $840 for a prescription and subsequent 
charge of $1,008 for the same exact prescription on the next visit, Dr. 
Gordon suggested that ``the pharmacist actually knew the prescriptions 
were diverted and . . . was taking advantage of that patron . . . 
[b]ecause they knew they would pay whatever they needed to pay . . . 
.''). She explained that ``the cost of that medication is high compared 
to what I've seen out in the field. That's a very high cost. And 
between Fort Pierce, Miami, and Hallandale, you pass like a zillion 
pharmacies. . . . It doesn't make sense.'' Id. at 362. According to Dr. 
Gordon, there was no notation made by the pharmacist on the 
prescriptions showing any attempt to resolve the red flags. See, e.g., 
id. at 364, 369, 371, 373, 374, 377, 389-90, 398, 404-05, 406, 411, 
416, 421, 423, 424-25, 467; see also id. at 133 (DI testimony that he 
did not see notations on the prescriptions from Respondent ``clearing'' 
any red flags).
    Mr. Fisher agreed that ``[c]ustomers paying for their prescriptions 
with cash where other red flags of diversion are present'' was a red 
flag. Id. at 756.
    Respondent challenged Dr. Gordon's cash price-level testimony based 
on her not having been in charge of purchasing controlled substances 
for resale for a small independent pharmacy. Id. at 502.

[[Page 10891]]

Yet, I find Dr. Gordon's testimony to be credible because she 
``actually looked up the national . . . price.'' Id. at 503. Respondent 
also challenged Dr. Gordon by stating that pharmacies where Dr. Gordon 
worked ``like Walgreens, are getting discounts from the supplier on 
purchasing controlled medication.'' Id. at 502. However, Dr. Gordon 
testified she was ``99 percent sure'' that discounts are not available 
for generic opioids. Id. at 503. Respondent presented no pricing data 
or other evidence refuting Dr. Gordon's characterization of the higher-
than-expected level of cash prices Respondent's customers paid for 
controlled substance prescriptions. Further, Respondent did not present 
evidence to establish that its cash prices for controlled substances 
were consistent with the prices charged by other pharmacies similar to 
Respondent. Nor did it present evidence to establish that it set the 
level of its cash prices for controlled substances for a reason other 
than that its customers were willing to pay those prices. Thus, I find 
no reason to reject Dr. Gordon's testimony. Rather, I shall credit it 
consistent with the CALJ's credibility determinations.
    Based on all of the evidence in the record, I find that Respondent, 
without resolving the red flags, filled prescriptions that raised the 
red flag of customers paying cash for their prescriptions when other 
red flags were present. I further find that Respondent's customers were 
charged, and paid, exorbitantly high prices for their controlled 
substance prescriptions.

Customers Presenting New Prescriptions for Controlled Substances When 
They Should Not Have Finished Their Previous Prescription for That Drug 
(``Early Fills'' or ``Early Refills'')

    The last red flag the Government alleged in the Show Cause Order 
concerned early fills. According to the Government, Respondent filled 
prescriptions for controlled substances that the customers presented 
before the customers' previous prescription for that controlled 
substance should have been consumed. To support this allegation, the 
Government submitted 22 prescriptions. GX 14, at 1-33, 37-47.\27\ 
Twelve of the prescriptions concerned one customer. The other ten 
prescriptions concerned five different customers. All 22 prescriptions 
were for Dilaudid 8 mg.
---------------------------------------------------------------------------

    \27\ GX 14 included 24 prescriptions, but there were two copies 
of two of the prescriptions.
---------------------------------------------------------------------------

    I reviewed the prescriptions the Government submitted and analyzed 
them according to the standard Dr. Gordon described in her testimony. 
GX 14; Tr. 436 (``[W]hat most pharmacies do . . . [to determine whether 
a prescription is an early fill is] they start at when the first 
prescription was filled.''); see also Tr. 429-67 (Dr. Gordon's 
testimony concerning GX 14), Tr. 75-76 (DI testifying that GX 14 
consisted of true and accurate copies of documents he took from 
Respondent during the unannounced inspection), and Tr. 76-77 (DI 
testifying that GX 14 showed Respondent filled new schedule II 
controlled substance prescriptions before the customers' previous 
prescriptions should have been exhausted). I make these findings.
    First, Respondent filled 12 prescriptions for BK, dispensing a 
total of 840 Dilaudid 8 mg. tablets, from July 26, 2012 through 
November 8, 2012. GX 14, at 1-33, 37-47.

                                                  Customer B.K.
----------------------------------------------------------------------------------------------------------------
                     Drug                             Number of tablets/SIG        Date written     Date filled
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg.................................  168--1 every 4 hrs. for pain....         7/16/12         7/26/12
Dilaudid 8 mg.................................  168--1 every 4 hrs. for pain....         8/13/12         8/13/12
Dilaudid 8 mg.................................  40--1 every 4 hrs. for pain.....          9/7/12         9/10/12
Dilaudid 8 mg.................................  128--1 every 4 hrs. for pain....          9/7/12         9/13/12
Dilaudid 8 mg.................................   40--1 every 4 hrs. for pain....        10/12/12        10/12/12
Dilaudid 8 mg.................................   40--1 every 4 hrs. for pain....        10/12/12        10/15/12
Dilaudid 8 mg.................................  40--1 every 4 hrs. for pain.....        10/12/12        10/17/12
Dilaudid 8 mg.................................   8--1 every 4 hrs. for pain.....        10/12/12        10/17/12
Dilaudid 8 mg.................................  128--1 every 4 hrs. for pain....         10/5/12        10/22/12
Dilaudid 8 mg.................................  40--1 every 4 hrs. for pain.....         11/2/12         11/2/12
Dilaudid 8 mg.................................  40--1 every 4 hrs. for pain.....         11/2/12         11/5/12
Dilaudid 8 mg.................................  40--1 every 4 hrs. for pain.....         11/2/12         11/9/12
----------------------------------------------------------------------------------------------------------------

    I note that Respondent filled all four of the prescriptions that 
were written on the same day, October 12, 2012.
    Further, one prescription for ``chronic pain due to trauma,'' among 
other things, was written on July 16, 2012, yet BK did not have it 
filled until July 26, 2012. GX 14, at 1-2. Similarly, BK waited up to 
16 days before filling another prescription for ``chronic pain due to 
trauma,'' among other things. GX 14, at 17-18. BK's delay in filling 
such Dilaudid 8 mg. prescriptions casts doubt on the prescriptions' 
legitimacy.
    Based on the dosing instructions, six tablets each day, 840 tablets 
should have lasted 140 days. The number of days from July 26, 2012 
through November 8, 2012, the day before BK filled the last 
prescription in GX 14, was 105 days. Thus, in this period, Respondent 
dispensed to BK a 140-day supply of Dilaudid 8 mg. in 105 days. 
According to my analysis, Respondent filled all but one of them 
significantly early, from about at least 6 days early to up to about at 
least 29 days early. Id.
    Second, concerning the two Dilaudid 8 mg. prescriptions in GX 14 
issued to JB, Respondent filled the second prescription at least one 
week early. Id. at 25-28.

                                                  Customer J.B.
----------------------------------------------------------------------------------------------------------------
                     Drug                             Number of tablets/SIG        Date written     Date filled
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg.................................  180--1 every 3 hrs. as needed...         8/15/12         8/22/12
Dilaudid 8 mg.................................  150--1 every 3 hrs. as needed...          9/6/12          9/6/12
----------------------------------------------------------------------------------------------------------------


[[Page 10892]]

    Third, concerning the two Dilaudid 8 mg. prescriptions in GX 14 
issued to LB, Respondent filled the second prescription at least 5 days 
early.

                                                  Customer L.B.
----------------------------------------------------------------------------------------------------------------
                     Drug                             Number of tablets/SIG        Date written     Date filled
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg.................................   168--1 every 4 hrs. as needed..         3/13/13         3/18/13
Dilaudid 8 mg.................................  168--1 every 4 hrs. as needed...         4/10/13         4/10/13
----------------------------------------------------------------------------------------------------------------

    Fourth, Respondent filled the second Dilaudid 8 mg. prescription in 
GX for JS at least 5 days early.

                                                  Customer J.S.
----------------------------------------------------------------------------------------------------------------
                     Drug                             Number of tablets/SIG        Date written     Date filled
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg.................................   168--1 every 4 hrs. as needed..        12/28/12        12/31/12
Dilaudid 8 mg.................................  168--1 every 4 hrs. as needed...         1/23/13         1/23/13
----------------------------------------------------------------------------------------------------------------

    Fifth, Respondent filled the second Dilaudid 8 mg. prescription in 
GX 14 for HH at least six days early.

                                                  Customer H.H.
----------------------------------------------------------------------------------------------------------------
                     Drug                             Number of tablets/SIG        Date written     Date filled
----------------------------------------------------------------------------------------------------------------
Dilaudid 8 mg.................................  180--1 every 4-6 hrs. as needed.          9/7/12         9/14/12
Dilaudid 8 mg.................................  180--1 every 4-6 hrs. as needed.         10/5/12         10/8/12
----------------------------------------------------------------------------------------------------------------

    According to Dr. Gordon, the prescriptions in GX 14 exhibited 
multiple red flags, yet Respondent filled them all. Tr. 429-67. For 
none of the prescriptions in GX 14 did Dr. Gordon testify that it 
included any notation recognizing or addressing red flags, that its red 
flags were resolvable, that it was a legitimate prescription, or that 
the pharmacist had exercised her corresponding responsibility to ensure 
that the prescription was issued for a legitimate medical purpose by a 
practitioner acting in the usual course of professional practice. Id. 
at 437-38, 441, 442, 445-46, 446-47, 448-49, 450-51, 456, 458-59, 460-
61, 464, 467.
    Regarding these prescriptions and labels, Dr. Gordon testified that 
``the pharmacist was not exercising her corresponding responsibility, 
that most of these prescriptions should not have been filled or at 
least held until it was due to be filled.'' Id. at 450. ``However,'' 
Dr. Gordon continued, ``I wouldn't have filled any of these to begin 
with.'' Id. at 451. She explained: ``The multiple red flags would alert 
any pharmacist that none of these prescriptions were legit because of 
the distance, that certain physician is a well-known pill mill writer, 
the Dilaudid 8, the odd quantities, . . . the diagnosis of lumbago . . 
. and paying cash . . . And the early fills.'' Id. Specifically 
regarding the multiple prescriptions for BK that Respondent filled on 
October 17, 2012 and why, in Dr. Gordon's experience, a patient would 
present two prescriptions for the same drug but different quantities on 
the same day, she testified: ``I have no idea. That's very unusual. I 
would not fill either one of these scripts. . . . It's a huge red flag 
for any pharmacist to get the same exact Dilaudid 8 from the same 
doctor on the same date. Huge red flag. No reasonable pharmacist would 
fill this.'' Id. at 443.
    Mr. Fisher agreed that an early fill was a red flag for diversion. 
Id. at 774. He identified early fill red flags in GX 14 on at least 13 
occasions. Id. at 635-36, 637-38, 685, 692-93, 696 (two prescriptions 
filled on the same day), 698, 703, 704, 711, 714, 718, 721, 725, 727. 
Mr. Fisher testified that filling the two prescriptions on October 17, 
2012 was ``highly unusual.'' Id. at 696. His testimony was that it was 
``reasonable'' to fill a prescription two to three days early and that 
a pharmacy can do so. Id. at 700.
    In Mr. Fisher's view, early fill red flags were ``resolvable,'' 
meaning ``there's a number of explanations for an early fill.'' Id. at 
686; see also id. at 693, 704-05, 711, 715, 719, 722-23, 725-26. Being 
``honest,'' as he prefaced his statement, he acknowledged that an 
attempt to secure more drugs was one of those explanations. Id. at 687. 
Regarding the prescriptions for BK, he testified: ``A patient taking 
this medicine . . . is not going to want to run out . . . [T]he 
pharmacy might . . . only have 40 tablets . . . on the twelfth, and 
they got some more in so they call the patient . . . It also--. . . to 
be honest, . . . could be an attempt by a patient to secure more 
drugs.'' Id. at 686-87. When asked if an early fill ``can be reasonably 
explained where there is diversion or where there is no diversion,'' 
Mr. Fisher responded that, ``It could be either way.'' Id. at 687. Mr. 
Fisher did not explain, however, why the physician would write all four 
of the prescriptions on the same day, let alone break them up into 
smaller quantities. Mr. Fisher also suggested that ``the patient . . . 
[may] only come down to that area once in a while for shopping, and 
they fill their prescriptions whenever they get down there.'' Id. at 
711. Mr. Fisher agreed that resolution of an early fill red flag 
``could be'' and ``should be'' documented. Id. at 688.
    Respondent's Owner and PIC testified that an ``early refill'' is a 
red flag that ``requires definite investigation.'' Id. at 1165. She 
then stated, however, that the term ``early refill'' does not apply to 
a

[[Page 10893]]

schedule II controlled substance and stated, regardless, that 
pharmacies are ``obligated by the physician order.'' Id. at 1167, 1170. 
She testified, ``[T]here are two issues here, because why . . . the 
patient is prevented early prescriptions? It's not a refill on schedule 
IIs, so it's not early refill, it's an early fill. . . . The doctor 
fills [sic] the order, you have to fill it. You're obligated by the 
physician order.'' Id.
    In sum, both Dr. Gordon and Mr. Fisher identified about the same 
number of early fills in GX 14. They disagreed on how many days early a 
pharmacy could fill a controlled substance prescription without needing 
to resolve the suspicion. They also disagreed about the resolvability 
of early fills in general and in GX 14. Dr. Gordon testified that an 
early fill was not legitimate and was not resolvable. Mr. Fisher 
testified that red flags due to early fills were resolvable, but 
admitted that an attempt to secure more drugs was one of the reasons 
for early fill requests. Mr. Fisher agreed that a pharmacist's 
resolution of an early fill should be documented.
    Based on the testimony of Dr. Gordon and Mr. Fisher, I find that 
Respondent, without resolving the red flags, filled prescriptions early 
on at least 13 occasions. I find that the early fill-related testimony 
of Respondent's owner and PIC, that a prescription is a doctor's order 
and a pharmacist is ``obligated'' to fill a doctor's order, was 
Respondent's admission to an abdication of her corresponding 
responsibility.

Allegation That Respondent Was Unable to Readily Retrieve Prescriptions 
It Had Dispensed

    The Show Cause Order alleged that Respondent committed six other 
violations, including that Respondent was unable to readily retrieve 
prescriptions it had dispensed. ALJX 1, at 7.
    As already discussed, the DI testified that he conducted an 
unannounced inspection of Respondent on April 11, 2013. Tr. 36. At that 
time, he stated, he asked Respondent to retrieve 12 ``problematic 
prescriptions'' he had identified from a Florida Prescription Drug 
Monitoring Program query. Id. at 41-42. Those dozen prescriptions were 
for ``anabolic steroid substances to patients that were not in the 
State of Florida.'' Id. at 42. The Show Cause Order alleged that the 
prescriptions were filled from February 15, 2012 to April 11, 2013, or 
less than two years before the date of the unannounced inspection. ALJX 
1, at 7-8.
    The DI testified that GX 21 consisted of Respondent's daily 
prescription log reports he obtained on the day of the unannounced 
inspection. Tr. 128. According to the DI, pages 1, 4, 6, 9, 13, and 16 
of Respondent's daily prescription logs showed that Respondent had 
dispensed nine of the 12 prescriptions referenced in the Show Cause 
Order. Id. at 129-131; GX 21, at 1, 4, 6, 9, 13, and 16; ALJX 1, at 7-
8. The DI further testified that the other three prescriptions appeared 
in the E-FORCSE report. Tr. 131; see also GX 20 (E-FORCSE query 
results).
    The DI testified that Respondent ``was never able to locate these 
prescriptions for me.'' Tr. 42; see also id. at 49, 125. Instead, he 
testified that he learned of Respondent's having located many of the 
missing prescriptions when he saw them in Respondent's exhibits. Id. at 
270-71; see also RX 12. Two of the requested prescriptions, he 
testified, were never located. Tr. 1185. According to Respondent's 
Owner and PIC, ``[t]hey was misfiled.'' Id. at 1189. She testified that 
``if the number is assigned, it means that was prescription presented 
to the pharmacy. . . . I know across the board, that it's common that 
some prescriptions do get misfiled in pharmacies.'' Id. at 1189-90.
    The testimony of Respondent's Owner and PIC confirmed Respondent's 
failure to retrieve and provide the requested prescriptions to the DI 
on April 11, 2013. See id. at 846; see also id. at 1186 (The first time 
the prescriptions were provided to the Government was as an exhibit in 
this proceeding.). Respondent's Owner and PIC offered excuses for that 
failure. Id. at 847-850.
    I find that Respondent never provided the 12 requested 
prescriptions to the DI. I find that Respondent included ten of the 12 
prescriptions in an exhibit for the hearing in this proceeding more 
than two years after they were requested during the unannounced 
inspection. I find that Respondent has still not provided the 
Government with two of the prescriptions that the DI requested on April 
11, 2013.

Allegation That Respondent Shipped Controlled Substances Out-of-State 
Without Complying With Those States' Non-Resident Pharmacy Requirements

    Next, the Show Cause Order alleged that Respondent shipped 
controlled substances to four States (Alabama, Illinois, Kentucky, and 
Vermont) without complying with those States' non-resident pharmacy 
requirements. ALJX 1, at 8. As support for the allegation, the 
Government submitted prescriptions for schedule III controlled 
substances (testosterone cypionate, testosterone cream, and stanozolol) 
that Respondent filled for seven customers whose addresses were in 
Alabama, Georgia, Illinois, Kentucky, Massachusetts, or Vermont. See GX 
15; see also Tr. 87-88 (DI), Tr. 392-93 (Dr. Gordon), Tr. 731-32, 734 
(Mr. Fisher). The Government also submitted seven FedEx shipping 
reports showing that Respondent shipped the prescriptions to customers 
outside the State of Florida. GX 15.
    In further support of the allegation, the Government obtained 
certifications from Alabama, Illinois, Kentucky, and Vermont that 
Respondent had not complied with those States' out-of-state pharmacy 
requirements. See GX 24 (Alabama Board of Pharmacy Certification of 
Non-Licensure of Respondent for the period July 1, 1989 through April 
29, 2015), GX 25 (Certification of the Division of Professional 
Regulation of the Illinois Department of Financial and Professional 
Regulation that Respondent ``does not now hold nor has ever held a 
license under the Pharmacy Practice Act of 1987'' dated April 16, 
2015), GX 26 (Kentucky Board of Pharmacy Executive Director letter 
dated April 14, 2015 stating that, ``I have searched the Board records 
and do not find that . . . [Respondent] has or ever has been issued a 
license/permit''), and GX 27 (Vermont Board of Pharmacy's Licensing 
Board Specialist Certification of Non-Licensure of Respondent for the 
period July 1, 1989 through April 13, 2015).
    Respondent's Owner and PIC asserted that ``out-of-state patients 
was out of question. That was for me,'' indicating that she would not 
have filled out-of-state prescriptions ``[u]nder any circumstances, 
even the patient was really, really sick.'' Tr. 1023; see also id. at 
44, 88-89 (DI's testimony that Respondent's Owner and PIC told him that 
Respondent never shipped a controlled substance out-of-state.). Yet, 
Respondent's Proposed Findings of Fact and Conclusions of Law admitted 
that ``[f]actually, . . . Respondent was not registered in Alabama, 
Illinois, Kentucky and Vermont when it shipped control [sic] substances 
to these states.'' Respondent's Proposed Findings of Fact and 
Conclusions of Law dated August 28, 2015 (hereinafter, Resp. Br.), at 
4.
    Based on the uncontroverted documentary evidence, which I find to 
be more persuasive than the testimony and statements of Respondent's 
Owner and PIC to the contrary, and Respondent's admission, I find that 
Respondent shipped controlled substances out-of-state to customers in 
Alabama, Illinois, Kentucky, and Vermont. Further, I find that, when 
Respondent shipped those controlled

[[Page 10894]]

substances to out-of-state customers, it was not licensed or permitted 
to do so by the States of Alabama, Illinois, Kentucky, or Vermont.

Allegation That Respondent Filled Controlled Substance Prescriptions 
Not Containing All of the Information Required By 21 CFR 1306.05(a) and 
(f)

    Next, the Show Cause Order alleged that Respondent filled 
controlled substance prescriptions that did not contain all of the 
information required by 21 CFR 1306.05(a). ALJX 1, at 9. As support for 
the allegation, the Government submitted nine prescriptions. GX 16. The 
DI testified that the patient's full address was missing from six of 
the prescriptions. Tr. 99-101; see also GX 16, at 1, 3, 5, 7, 9, and 
15. He testified that the prescriber's DEA registration number was 
missing from four of the prescriptions. Tr. 99-101; see also GX 16, at 
1, 11, 13, and 15. The DI testified that the directions for use were 
missing from one of the prescriptions. Tr. 99; see also GX 16, at 1. He 
testified that the prescriber's address was missing from four of the 
prescriptions. Tr. 100-01; see also GX 16, at 7, 9, 11, and 13. The DI 
testified that the prescriber's name was missing from two of the 
prescriptions, and that the prescriber's signature was missing from one 
of them. Tr. 100-01; see also GX 16, at 11, 13, and 15, respectively.
    My review and analysis of the 13 prescriptions in GX 8/8a 
identified information missing from prescriptions and discrepancies 
between information on some of the prescriptions and/or prescription 
labels and information on the customers' driver's licenses. See, e.g., 
GX 8, at 15 and 17 (missing information in customer address); id. at 3-
4 and 5-6 (discrepancies between the customer's address shown on the 
driver's license and shown on the prescription label); id. at 9-10 
(discrepancies between the customer's address shown on the prescription 
and shown on the prescription label and driver's license); see also Tr. 
614-15 (testimony of Mr. Fisher concerning missing information), Tr. 
761-65 (testimony of Mr. Fisher concerning information discrepancies). 
In Mr. Fisher's opinion, Respondent did not exercise due care in 
entering customer addresses. Tr. 766.
    Respondent's Owner and PIC admitted that Respondent filled the 
prescriptions in GX 16. Id. at 1196. She admitted that the patient's 
address was missing from five prescriptions. Id. at 1194-96; see also 
GX 16, at 3, 5, 7, 9, and 15. Respondent's Owner and PIC testified that 
the prescriber's DEA registration number was missing from three 
prescriptions, but that those numbers appeared on the prescription fill 
labels. Tr. 1195-96; see also GX 16, at 11, 13, and 15, and GX 16, at 
14 and 16, respectively. Respondent did not dispute the facts 
underlying this allegation. See, e.g., Resp. Exceptions, at 18 (``[I]t 
is true that twelve out of many hundreds of scripts lacked some of the 
information required.'').
    Having examined the prescriptions and all of the other evidence in 
the record concerning this allegation, I find the Respondent filled 
controlled substance prescriptions that did not contain all of the 
information required by 21 CFR 1306.05(a). I also find that 
Respondent's Owner and PIC admitted Respondent filled prescriptions not 
containing all of the information required by 21 CFR 1306.05(a).

Allegation That Respondent Filled Prescriptions Written for ``Office 
Use'' in Violation of 21 CFR 1306.04(b)

    Next, the Show Cause Order alleged that Respondent filled 
prescriptions written for ``office use'' in violation of 21 CFR 
1306.04(b). ALJX 1, at 10. To support this allegation, the Government 
submitted two Respondent ``RX Order Forms,'' one for testosterone and 
one for testosterone propionate, for which ``Office Use'' was written 
on the line designated for the patient name. See GX 17. The DI 
testified that these pages were controlled substance prescriptions 
written for ``office use.'' Tr. 252-53.
    Respondent's Owner and PIC testified that page 1 of GX 17 was a 
``prescription'' for testosterone. Id. at 1200. She agreed that page 3 
of GX 17 was a ``copy of a prescription'' for testosterone. Id. at 
1202; see also Resp. Br., at 10 (``Factually, Respondent did fill the 
prescriptions alleged in OSC ] 6 for `office use.' ''). Respondent's 
Owner and PIC further testified that the entity that completed and 
submitted the ``RX Order Forms'' was engaged in hormone replacement 
therapy and wanted to ``see how the patient responds'' and ``make sure 
that the patient don't have allergic reaction on the prescription 
before they dispense it.'' Tr. 1199; see also id. at 1201. Her 
testimony acknowledged that Respondent ``delivered'' the testosterone 
``prescribed'' on page 1 of GX 17. Id. at 1200. Regarding the 
prescription depicted on page 3 of GX 17, however, Respondent's Owner 
and PIC testified to having ``a flashback,'' stating that, ``I really 
remember that I don't give them that cypionate.'' Id. at 1203.
    I find that Respondent admitted filling at least two controlled 
substance ``prescriptions'' for ``office use'' and delivering at least 
one of them to an entity engaged in hormone replacement therapy for the 
purpose of allergy testing.

Allegation That Respondent Filled Prescriptions Written by Physicians 
for the Physicians' Personal Use in Violation of Florida Statute Sec.  
458.331(r)

    Next, the Show Cause Order alleged that Respondent filled 
prescriptions written by physicians for the physicians' personal use in 
violation of Florida Statute Sec.  458.331(r). ALJX 1, at 10. As 
support for this allegation, the Government submitted 12 documents 
that, according to the DI, included ``controlled substance 
prescriptions'' which doctors wrote ``to themselves.'' Tr. 106; see 
also GX 18. One prescription was written on Respondent's ``RX Order 
Form'' and had nothing written in the ``patient'' information boxes. GX 
18, at 3. The labels associated with this ``prescription'' showed the 
same name for the patient and the prescriber. Id. at 4. Respondent 
admitted that, ``Factually, Respondent did fill the prescriptions 
alleged in OSC, ] 7 written by physicians for the physicians' personal 
use.'' Resp. Br., at 16.
    I find that Respondent admitted filling six ``prescriptions'' which 
doctors wrote ``to themselves,'' and that the ``prescriptions'' were 
for controlled substances.

Allegation That Respondent Violated Florida State Law by Failing To 
Report Some Prescriptions to E-FORCSE in Violation of Florida Statute 
Sec.  893.055(4)

    Finally, the Show Cause Order alleged that Respondent failed to 
comply with Florida law by failing to report some prescriptions to E-
FORCSE. ALJX 1, at 10-11; see Fla. Stat. Sec.  893.055(4) (2012). In 
support of this allegation, the Government submitted six Dilaudid 8 mg. 
prescriptions written by the same doctor from July through November of 
2012. See GX 19. The DI obtained these prescriptions during his 
unannounced inspection of Respondent. Tr. 107; ALJX 1, at 11. The DI 
testified that none of these six prescriptions was reported to E-FORCSE 
according to his analysis of the results of his E-FORCSE query for the 
period February 14, 2012 to February 4, 2013. Tr. 108-10, 115; see also 
GX 20 (E-FORCSE query results).
    Further, in addition to doing his own query, the DI explained that 
he asked the E-FORCSE program manager to ``do a back-end query to see 
if these prescriptions were ever uploaded or any errors or . . . any 
attempts were made for these prescriptions.'' Tr. 109; see also id. at 
119. As further support for this allegation, the Government

[[Page 10895]]

introduced the certified response the DI received from the program 
manager stating that, ``I certify, none of the prescriptions . . . were 
uploaded.'' GX 23, at 1 (Letter from E-FORCSE Program Manager to DI 
dated April 2, 2015); see also Tr. 118. The Program Manager's letter, 
the DI explained, ``shows . . . that . . . [the six prescriptions] were 
never uploaded'' to E-FORCSE and that there were no uploading attempts 
that failed due to an error. Tr. 118. The DI also testified that the 
second page of GX 23 ``shows the uploads that . . . [Respondent] did in 
that timeframe, and where those [six] prescriptions should have fallen 
into if . . . [Respondent] had, in fact, uploaded them.'' Id. The DI 
concluded from this evidence that ``these [six] prescriptions were 
never entered'' into E-FORCSE. Id. at 123.
    Respondent's Owner and PIC did not challenge the Government's 
contention that the six prescriptions in GX 19 did not appear in E-
FORCSE. Her testimony included that ``I fully believe it was actually 
entered''; ``I do not know. I did the fair attempt to provide all 
Schedule prescriptions, and if other prescription was in E-FORCSE, this 
prescription should be in E-FORCSE''; ``I know that I made a fair 
attempt to submit this prescription along with other prescription that 
was accumulated for that week. That was in a compiled file''; and ``I 
can fairly testify that I did the best effort to submit the 
prescription to the E-FORCSE.'' Id. at 898, 914-15, 922-23, 935, 
respectively.
    I find that Respondent did not present evidence contesting the 
Government's allegation that six of the controlled substance 
prescriptions it filled did not appear in E-FORCSE. I find that 
Respondent filled, but did not report to E-FORCSE, six controlled 
substance prescriptions for Dilaudid 8 mg. written by the same doctor 
from July through November of 2012.

Discussion

    Under Section 304 of the Controlled Substances Act (hereinafter, 
CSA or Act), ``[a] registration . . . to . . . distribute[ ] or 
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 by 
such section.'' 21 U.S.C. 824(a)(4). In the case of a retail pharmacy, 
which is a ``practitioner'' under 21 U.S.C. 802 (21), Congress directed 
the Attorney General to 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 . . . 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.

21 U.S.C. 823(f). [T]hese factors are . . . considered in the 
disjunctive. Robert A. Leslie, M.D., 68 FR 15,227, 15,230 (2003).
    It is well settled that I ``may rely on any one or a combination of 
factors and may give each factor the weight [I] deem[ ] appropriate in 
determining whether'' to revoke a registration. Id.; see also MacKay v. 
Drug Enforcement Admin., 664 F.3d 808, 816 (10th Cir. 2011); Volkman v. 
U. S. Drug Enforcement Admin., 567 F.3d 215, 222 (6th Cir. 2009); Hoxie 
v. Drug Enforcement Admin., 419 F.3d 477, 482 (6th Cir. 2005). 
Moreover, while I am required to consider each of the factors, I ``need 
not make explicit findings as to each one.'' MacKay, 664 F.3d at 816 
(quoting Volkman, 567 F.3d at 222); see also Hoxie, 419 F.3d at 482. 
``In short, . . . the Agency is not required to mechanically count up 
the factors and determine how many favor the Government and how many 
favor the registrant. Rather, it is an inquiry which focuses on 
protecting the public interest; what matters is the seriousness of the 
registrant's misconduct.'' Jayam Krishna-Iyer, M.D., 74 FR 459, 462 
(2009). Accordingly, as the Tenth Circuit has recognized, findings 
under a single factor can support the revocation of a registration. 
MacKay, 664 F.3d at 821.
    Under DEA's regulation, ``[a]t any hearing for the revocation or 
suspension of a registration, the Administration shall have the burden 
of proving that the requirements for such revocation or suspension 
pursuant to . . . 21 U.S.C. [Sec.  ] 824(a) . . . are satisfied.'' 21 
CFR 1301.44(e). In this matter, while I have considered all of the 
factors, the Government's evidence in support of its prima facie case 
was confined to Factors Two and Four.\28\ I find that the Government's 
evidence with respect to Factors Two and Four satisfies its prima facie 
burden of showing that Respondent's continued registration would be 
``inconsistent with the public interest.'' 21 U.S.C. 823(f). I further 
find that Respondent failed to produce sufficient evidence to rebut the 
Government's prima facie case.
---------------------------------------------------------------------------

    \28\ As to Factor One, there is no evidence that the Florida 
Department of Health or the Florida Board of Pharmacy made a 
recommendation concerning Respondent and the matter before me. 
Respondent provided several filings, from administrative proceedings 
and from Respondent's lawsuit against the Florida Department of 
Health, involving its permit to function as a community pharmacy and 
the compounding side of its business at its registered location and 
elsewhere in Florida. According to Respondent's cover letter, it 
provided this material due to an Order during the Prehearing 
Conference on April 14, 2015. ALJX 12, at 1. Material in 
Respondent's submission indicated that the Florida Board of Pharmacy 
(1) found Respondent had waived the right to request a hearing by 
failing to respond in a timely manner to the Administrative 
Complaint against it, (2) approved, adopted, and incorporated the 
Administrative Complaint's factual allegations, and (3) disciplined 
Respondent, placing it on probation for two years and requiring 
quarterly inspections. Id. at 20-21. The materials do not establish 
that Respondent lacks State authority or contain a recommendation 
one way or another.
     While there is no evidence that Florida has revoked 
Respondent's license, DEA has held repeatedly that a registrant's 
possession of a valid State license is not dispositive of the public 
interest inquiry. Lon F. Alexander, M.D., 82 FR 49,704, 49,724 n.42 
(2017) (citing Mortimer Levin, D.O., 57 FR 8680, 8681 (1992)). As 
DEA has long held, ``[t]he Controlled Substances Act requires that 
the Administrator . . . make an independent determination [from that 
made by state officials] as to whether the granting of controlled 
substance privileges would be in the public interest.'' Alexander, 
82 FR at 49,724 n.42 (citing Levin, 57 FR at 8681).
     As to Factor Three, there is no evidence that Respondent has a 
``conviction record under Federal or State laws relating to the 
manufacture, distribution, or dispensing of controlled substances.'' 
21 U.S.C. 823(f)(3). However, as the Agency has noted, there are any 
number of reasons why a person who has engaged in criminal 
misconduct may never have been convicted of an offense under this 
factor, let alone prosecuted for one. Dewey C. MacKay, M.D., 75 FR 
49,956, 49,973 (2010), pet. for rev. denied, MacKay v. Drug 
Enforcement Admin., 664 F.3d 808 (10th Cir. 2011). The DEA has 
therefore held that ``the absence of such a conviction is of 
considerably less consequence in the public interest inquiry'' and 
is therefore not dispositive. Id.
---------------------------------------------------------------------------

    Specifically, I find that the record contains substantial evidence 
that Respondent's pharmacists violated their corresponding 
responsibility when they dispensed multiple prescriptions. I also find 
there is substantial evidence in the record that Respondent was unable 
to readily retrieve prescriptions it had dispensed, shipped controlled 
substances out-of-state without complying with States' non-resident 
pharmacy requirements, and filled controlled substance prescriptions 
that did not contain all the information required by 21 CFR 1306.05. 
Accordingly, I agree with the CALJ that Respondent's registration 
should be revoked. Further, I agree with the CALJ's conclusions 
concerning Respondent's non-acceptance of responsibility and the 
appropriate disposition of Respondent's efforts to

[[Page 10896]]

show its remedial measures. R.D., at 58. For the reasons set out below, 
I will order that Respondent's registration be revoked and that any 
pending application of Respondent be denied.

Factors Two and/or Four--The Registrant's Experience in Dispensing 
Controlled Substances and Compliance With Applicable Laws Related to 
Controlled Substances

Allegations That Respondent Failed To Exercise Its Corresponding 
Responsibility When It Dispensed Controlled Substances Pursuant to 
Prescriptions Not Issued in the Usual Course of Professional Practice 
or for a Legitimate Medical Purpose

    Under the CSA, it is ``unlawful for any person knowingly or 
intentionally . . . to . . . distribute[ ] or dispense, or possess with 
intent to . . . distribute[ ] or dispense, a controlled substance'' 
``[e]xcept as authorized'' by the Act. 21 U.S.C. 841(a)(1). A 
pharmacy's registration authorizes it to ``dispense,'' or ``deliver a 
controlled substance to an ultimate user . . . by, or pursuant to the 
lawful order of . . . a practitioner.'' 21 U.S.C. 802(10).
    According to the CSA's implementing regulations, a lawful 
controlled substance order or prescription is one that is ``issued for 
a legitimate medical purpose by an individual practitioner acting in 
the usual course of his professional practice.'' 21 CFR 1306.04(a). 
While the ``responsibility for the proper prescribing and dispensing of 
controlled substances is upon the prescribing practitioner, . . . a 
corresponding responsibility rests with the pharmacist who fills the 
prescription.'' Id. The regulations establish the parameters of the 
pharmacy's corresponding responsibility.

    An order purporting to be a prescription issued not in the usual 
course of professional treatment . . . is not a prescription within 
the meaning and intent of section 309 of the Act (21 U.S.C. [Sec.  ] 
829) and the person knowingly filling such a purported prescription, 
as well as the person issuing it, shall be subject to the penalties 
provided for violations of the provisions of law relating to 
controlled substances.

Id. As the Supreme Court has explained in the context of the Act's 
requirement that schedule II controlled substances may be dispensed 
only by written prescription, ``the prescription requirement . . . 
ensures patients use controlled substances under the supervision of a 
doctor so as to prevent addiction and recreational abuse . . . [and] 
also bars doctors from peddling to patients who crave the drugs for 
those prohibited uses.'' Gonzales v. Oregon, 546 U.S. 243, 274 (2006).
    The Government must show that the pharmacist acted with the 
requisite degree of scienter to prove a violation of the corresponding 
responsibility regulation.\29\ See Hills Pharmacy, LLC, 81 FR 49,816, 
49,835 (2016). According to Agency precedent, the Government may prove 
a violation by showing either that: (1) The pharmacist filled a 
prescription notwithstanding her actual knowledge that the prescription 
lacked a legitimate medical purpose; or (2) the pharmacist was 
willfully blind or deliberately ignorant to the fact that the 
prescription lacked a legitimate medical purpose. Id. To establish that 
a pharmacist acted with willful blindness, the Government must prove 
that the pharmacist had a subjective belief that there was a high 
probability that a fact existed and she took deliberate actions to 
avoid learning of that fact. Id. (quoting Global-Tech Applications, 
Inc., v. SEB S.A., 563 U.S. 754, 769 (2011)); see also United States v. 
Henry, 727 F.2d 1373, 1378 (5th Cir. 1984) (citing United States v. 
Hayes, 595 F.2d 258 (5th Cir.), cert. denied, 444 U.S. 866 (1979) 
(rejecting challenge that the regulation was unconstitutionally vague)) 
(``What is required by him [the pharmacist] is the responsibility not 
to fill an order that purports to be a prescription but is not a 
prescription within the meaning of the statute because he knows that 
the issuing practitioner issued it outside the scope of medical 
practice. . . . [A] pharmacist can know that prescriptions are issued 
for no legitimate medical purpose without his needing to know anything 
about medical science.'').
---------------------------------------------------------------------------

    \29\ The Show Cause Order alleged that ``Respondent'' violated 
its corresponding responsibility. Respondent and the Government 
stipulated that: ``The Respondent is owned and operated by Veronica 
Taran.'' Further, Respondent's Owner and PIC admitted that she is 
Respondent's pharmacist-in-charge and Respondent's only pharmacist. 
Tr. 1012 (``[I]n this particular practice, because there's only me, 
there's nobody else there, like, there's no other pharmacist 
there.''). When asked by her counsel whose responsibility it was to 
resolve any red flags, she testified that ``[u]ltimate 
responsibility lies up me as the pharmacist and pharmacist-in-
charge.'' Id. at 1045. Thus, for purposes of finding and attributing 
liability in this case, I find that the actions and inactions of 
Respondent's Owner and PIC were the actions and inactions of 
Respondent.
---------------------------------------------------------------------------

    The Government did not allege that Respondent dispensed the 
prescriptions having actual knowledge that the prescriptions lacked a 
legitimate medical purpose. Instead, the Government alleged that 
Respondent violated the corresponding responsibility regulation as 
``evidenced'' by its ``dispensing of controlled substances despite the 
presence of red flags of diversion that . . . [it] failed to clear 
prior to dispensing the drugs.'' ALJX 1, at 1-2 (citing Holiday CVS); 
see also Government's Proposed Findings of Fact and Conclusions of Law 
dated August 28, 2015 (hereinafter, Govt. Br.), at 15-16.
    As discussed above, the testimony of Dr. Gordon, as well as 
testimony offered by Respondent's own witness, Mr. Fisher, supported 
the Government's allegations that the seven different factual 
circumstances the Government alleged to be ``red flags of diversion'' 
existed as alleged, and that Respondent did not resolve them before 
dispensing controlled substances.\30\ See also R.D., at 9 (``Dr. Gordon 
testified that she will not dispense a controlled medication in the 
face of an unresolved red flag . . ..'') and at 13 (``Mr. Fisher 
acknowledged that none of the Respondent's pharmacy paperwork reflected 
any documentation that red flags were resolved prior to dispensing and 
that he did not know whether they were ever resolved.''). Further, as 
discussed above, the CALJ recommended crediting that documentary and 
testimonial evidence. I find credible the testimony of Dr. Gordon and, 
to the extent he agreed with Dr. Gordon, Mr. Fisher that Respondent 
filled controlled substance prescriptions that raised ``red flags'' 
without resolving, and documenting the resolution of, those red flags.
---------------------------------------------------------------------------

    \30\ For example, Respondent's Owner and PIC even testified that 
it was not a red flag ``by itself'' for a customer to travel over 
100 miles from their Florida home to Respondent to fill a controlled 
substance prescription. Tr. 1028. Indeed, regarding red flags, her 
testimony was that red flags were a stumbling block. Respondent's 
Owner and PIC said that ``just by strictly following these red 
flags, it will prevent legitimate patient from obtaining the 
medication.'' Id. at 1108.
---------------------------------------------------------------------------

    Prior Agency decisions found that prescriptions with the same ``red 
flags'' at issue here were so suspicious as to support a finding that 
the pharmacists who filled them violated the Agency's corresponding 
responsibility rule due to actual knowledge of, or willful blindness 
to, the prescriptions' illegitimacy.\31\ 21 CFR 1306.04(a). See, e.g., 
Hills Pharmacy, 81 FR at 49,836-39 (multiple customers filling 
prescriptions written by the same prescriber for the same drugs in the 
same quantities; customers with the

[[Page 10897]]

same last name and street address presenting similar prescriptions on 
the same day; two short-acting opiates prescribed together; long 
distances; drug cocktails; payment by cash); The Medicine Shoppe, 79 FR 
59,504, 59,507, 59,512-13 (2014) (unusually large quantity of a 
controlled substance; pattern prescribing; irregular dosing 
instructions; drug cocktails); Holiday CVS, 77 FR 62,316, 62,317-22 
(2012) (long distances; multiple customers filling prescriptions 
written by the same prescriber for the same drugs in the same 
quantities; customers with the same last name and street address 
presenting virtually the same prescriptions within a short time span; 
payment by cash); East Main Street Pharmacy, 75 FR 66,149, 66,163-65 
(2010) (long distances; lack of individualized therapy or dosing; drug 
cocktails; early fills/refills; other pharmacies' refusals to fill the 
prescriptions).
---------------------------------------------------------------------------

    \31\ Agency precedent has defined the term ``red flag'' to mean 
``a circumstance that does or should raise a reasonable suspicion as 
to the validity of a prescription.'' Hills Pharmacy, 81 FR at 
49,839. This precedent, in conjunction with the terms of the 
corresponding responsibility regulation, means that the suspicious 
circumstances presented by the red flags must rise to the level 
necessary to support a finding that the pharmacist acted with 
willful blindness.
---------------------------------------------------------------------------

    Agency precedent has made clear that, when presented with a 
prescription clearly not issued for a legitimate medical purpose, a 
pharmacist may not intentionally close her eyes and thereby avoid 
positive knowledge of the real purpose of the prescription. JM Pharmacy 
Group, Inc., d/b/a Farmacia Nueva and Best Pharma Corp., 80 FR 28,667, 
28,670 (2015). Yet, that is exactly what Respondent's Owner and PIC 
did.
    As I detailed above, the testimony of Respondent's Owner and PIC 
acknowledged that schedule II controlled substances are highly risky 
and are subject to ``a lot of diversion.'' Tr. 1129, 1116 
(respectively). She also specifically testified that a prescription for 
a large quantity of a schedule II controlled substance raised red 
flags. Id. at 881, 882, 887. Yet, she admitted failing to address such 
schedule II prescriptions presented to her pharmacy in a fashion 
consistent with her testimony. Id. at 1132-39. She did not explain or 
justify her conscious and deliberate choice to avoid learning 
legitimacy-related information about schedule II prescriptions that she 
knew were ``highly risky,'' prone to diversion, and raised red flags. 
These acknowledgements and failures clearly show her subjective belief 
of a high probability that the various schedule II prescriptions 
presented to her were not legitimate and her deliberate actions to 
avoid learning of their illegitimacy.
    Further, although Respondent challenged Dr. Gordon's expertise to 
testify that it charged exorbitantly high prices for controlled 
substances, Respondent did not offer any price-related evidence 
disputing Dr. Gordon's testimony. The evidence in the record that 
Respondent charged exorbitantly high prices for controlled substance 
prescriptions is further proof that Respondent knew or subjectively 
believed that there was a high probability that its customers were 
either abusing or diverting those controlled substances. See also id. 
at 362 (Dr. Gordon's testimony that ``maybe the pharmacist knew what 
was going on, and they were taking advantage of these patrons that were 
drug seeking.'') and id. at 465 (Dr. Gordon's testimony suggesting that 
Respondent ``knew . . . prescriptions were [being] diverted'' and ``was 
taking advantage of that patron . . . [b]ecause they knew they would 
pay whatever they needed to pay'' to fill the prescription.)
    The so-called ``proper steps'' for handling schedule II 
prescriptions that Respondent's Owner and PIC constructed were actually 
abdications of her corresponding responsibility. According to 
Respondent's Owner and PIC, her responsibility, when presented with a 
controlled substance prescription, was limited to (1) making sure the 
prescriber's medical license was current; (2) checking the prescriber's 
DEA registration against the controlled substance in the prescription; 
(3) obtaining the patient's signature on the Relationship Affidavit as 
alleged verification of a bona fide doctor-patient relationship; and 
(4) validating that the prescriber actually signed the prescription, as 
opposed to its having been rubber stamped. These steps, however, do not 
constitute an independent exercise of professional judgment by a 
pharmacist evaluating the legitimacy of highly suspicious controlled 
substance prescriptions such as those at issue here. They were clearly 
insufficient to determine the legitimacy of schedule II prescriptions 
that Respondent's Owner and PIC herself characterized as ``highly 
risky'' and prone to diversion. Instead, they constituted a 
pharmacist's abdication of responsibility for a legitimacy assessment.
    As for checking the currency of the prescriber's medical license 
and DEA registration, this is not enough as a prescriber must generally 
hold both a license and registration to even issue a prescription under 
the CSA. 21 CFR 1306.03(a). The fact that a practitioner possesses the 
requisite authority does not, however, mean that he/she acted in the 
usual course of professional practice in issuing any particular 
prescription and that the prescription was issued for a legitimate 
medical purpose. Cf. Krishna-Iyer, 74 FR at 463.
    As for the ``proper step'' of having a customer sign the 
Relationship Affidavit, Respondent's Owner and PIC did not explain why 
it was reasonable for her to expect customers who were drug seekers to 
understand the content of that document. Moreover, even if the 
customers did understand the document, she offered no explanation as to 
why her customers would be honest and truthful in answering the 
questions if they were seeking controlled substances to either 
personally abuse or divert to others.\32\
---------------------------------------------------------------------------

    \32\ Further, I find that the high prices Respondent charged for 
controlled substances, as discussed above, suggest that Respondent 
knew its customers were either abusing or diverting them.
---------------------------------------------------------------------------

    Lastly, the ``proper step'' of ensuring that the prescription was 
not ``signed'' by a rubber stamp might have showed that the 
prescription was not an outright fraud, but it did nothing to ensure 
that the prescription was issued for a legitimate medical purpose. 21 
CFR 1306.04(a).
    Respondent's Owner and PIC also testified regarding the five CII/
CIII Rx Verification Forms which were part of Respondent's ``patient 
files'' (see RXs 6 and 10) and ``kept in the regular course of 
business.'' \33\ Tr. 824-25. She also stated that they ``assisted . . . 
[her] to resolve the red flags.'' Id. at 824. Yet, neither she nor 
Respondent explained why Respondent submitted only five such forms from 
its ``patient files'' when the Government's evidence included 60 
prescriptions and 29 patients. Moreover, while the forms indicated that 
the prescriptions were actually written by a physician, that the 
physician saw and physically examined the patient, and that there were 
diagnosis codes, the forms contained no additional documentation as to 
what circumstance prompted Respondent to contact the physician and what 
information the physician's office provided which led the pharmacist to 
approve and fill the prescription. Thus, at most, the forms establish 
with respect to these five patients that Respondent verified each 
prescription with its issuer. However, long-standing case law has 
explained that ``[v]erification by the issuing practitioner on request 
of the pharmacist . . . is not an insurance policy against a fact 
finder's concluding that the pharmacist had the requisite knowledge 
despite a purported but false verification.'' United States v. Henry, 
727 F.2d at 1378 (quoting United States v. Hayes, 595 F.2d 258, 261 
(5th Cir. 1979)). In sum, Respondent's CII/CIII Rx Verification Forms 
are insufficient and do not alter my finding that Respondent

[[Page 10898]]

violated the corresponding responsibility regulation.
---------------------------------------------------------------------------

    \33\ Respondent submitted one other CII/CIII Rx Verification 
Form. RX 5, at 9.
---------------------------------------------------------------------------

    The Government also submitted prescriptions, in support of the Show 
Cause Order's corresponding responsibility allegation, that did not 
involve schedule II controlled substances. As discussed above, the 
controlled substance was testosterone cypionate and the same doctor 
wrote all of the prescriptions on the same day. GX 10. Respondent 
filled all of those prescriptions within the period of about an hour 
and a half. Id. Dr. Gordon, Mr. Fisher, and Respondent's Owner and PIC 
agreed that these prescriptions raised red flags. Although Respondent's 
Owner and PIC stated that she resolved the red flags, she did not 
produce any documentary evidence to support her statement and, thus, I 
did not afford her statement any weight. As discussed above, I found 
that Respondent also filled these prescriptions in the face of their 
red flags. The fact that Respondent's Owner and PIC acknowledged these 
prescriptions' red flags clearly evidenced her subjective belief of a 
high probability that these schedule III prescriptions were not 
legitimate. The fact that she simply filled them showed that she took 
deliberate actions to avoid learning of their illegitimacy.
    Accordingly, I find the Government has proved by substantial 
evidence that controlled substance prescriptions Respondent, by 
Respondent's Owner and PIC, filled were not prescriptions issued in the 
usual course of professional treatment, yet Respondent, by Respondent's 
Owner and PIC, knowingly filled, or filled with willful blindness, 
those prescriptions in violation of the corresponding responsibility 
regulation. 21 CFR 1306.04(a); see also Hills Pharmacy, 81 FR at 
49,835; Superior Pharmacy I and Superior Pharmacy II, 81 FR 31,310, 
31,335 (2016); The Medicine Shoppe, 79 FR at 59,515-16; East Main 
Street Pharmacy, 75 FR at 66,163-65.\34\
---------------------------------------------------------------------------

    \34\ This case is different from Superior Pharmacy I and 
Superior Pharmacy II where the Government's evidence was 
insufficient to establish a corresponding responsibility violation 
even though Respondent dispensed controlled substance prescriptions 
in the face of unresolved red flags such as long distances, multiple 
people presenting identical or very similar prescriptions from the 
same prescriber on the same day, drug cocktails, two people in the 
same household or with the same address needing the exact same 
drugs, and payment by cash. 81 FR at 31,336. The Government's 
evidence in that case consisted only of the prescriptions allegedly 
dispensed without documentation of the resolution of red flags. As 
explained in that decision, there was no applicable law or rule 
requiring that documentation of the resolution of a red flag be 
placed on the prescription. Here, by contrast, the documentary and 
testimonial evidence made abundantly clear that Respondent did not 
carry out its corresponding responsibility.
---------------------------------------------------------------------------

    I considered Respondent's claim that Dr. Gordon's testimony should 
not be credited because ``she never worked as a pharmacist in an 
independent pharmacy'' such as Respondent and, therefore, ``her 
dispensing, managing and purchasing experience is not comparable to 
those of [Respondent's Owner and PIC].'' Resp. Br., at 37-38. I reject 
this claim. I have already set out my credibility determinations, which 
are based on the credibility recommendations of the CALJ. Those 
determinations afford Dr. Gordon's testimony the appropriate weight in 
these proceedings regarding the practice of pharmacy in Florida. 
Further, Respondent's claim is simply incorrect. The corresponding 
responsibility of a pharmacist is the same whether the pharmacist 
practices at an independent pharmacy or in a chain pharmacy. In other 
words, the size or corporate status of the pharmacy in which a 
pharmacist practices does not dictate the scope of a pharmacist's 
obligation under federal law.
    I reject Respondent's claim that the Government arbitrarily 
designated customers as having travelled long distances ``since it is 
not relying on any statutory enactment, federal or state to make such a 
designation.'' Id. at 33. Even Respondent's witness, Mr. Fisher, agreed 
that customers traveling long distances to fill prescriptions is a red 
flag. Tr. 754; see also R.D., at 47.
    I considered Respondent's claim that Dr. Gordon's testimony about 
pattern prescribing created ``an unrecognized standard under, both, 
case law and the Florida statutory law.'' Resp. Br., at 38. I find that 
Respondent's claim is without merit. Numerous agency and court cases 
have recognized that pattern prescribing is a red flag. See, e.g., The 
Medicine Shoppe, 79 FR at 59,512; see also United States v. Durante, 
No. 11-277, 2011 WL 6372775, at *3 (D.N.J. Dec. 20, 2011) (``This is 
sufficient to establish probable cause to believe that Defendant was 
engaged in an extensive pattern of prescribing controlled substances 
without a legitimate medical purpose to a broad group of patients in 
his medical practice.''). Further, as already discussed, even 
Respondent and Respondent's own witness, Mr. Fisher, eventually 
admitted that pattern prescribing was a red flag of diversion.
    During the hearing, Dr. Gordon testified about the level of the 
cash price Respondent charged for some prescriptions, including in 
comparison to what another pharmacy might charge. See, e.g., Tr. 400, 
406, 410-11, 413, 415, 417-18. Respondent's Counsel objected, stating 
that ``the expert is testifying in price difference against what a 
normal pharmacist, quote, unquote, would charge versus what . . . 
[Respondent] charged for certain drugs, drug being Dilaudid.'' Id. at 
419. He continued his objection by stating that, ``I just reviewed the 
prehearing statement provided by the Government, and there is no 
mention that their expert is going to get into the price . . . 
differentiation . . . between a normal pharmacy and . . . 
[Respondent].'' Id. at 419-20. Respondent's Counsel subsequently 
elicited from Dr. Gordon that she was ``never in charge of purchasing 
controlled substances for resale for a small independent pharmacy.'' 
Id. at 482; see also Resp. Exceptions, at 2. The CALJ's recommendation 
was that ``the Government did not adequately notice the relative price 
charged for the medication . . . [because] [t]he Agency recently 
imposed an increasingly rigorous standard of notice.'' R.D., at 10 
n.60.
    I reject the Exception. As to the issue of notice, for reasons 
previously explained, the Agency has rejected the notion that the 
``Agency recently imposed an increasingly rigorous standard of notice 
on its administrative prosecutors.'' See, e.g., Wesley Pope, M.D., 82 
FR 14,944, 14,946 n.4 (2017). Here, the Government in its Prehearing 
Statement gave notice that Dr. Gordon would testify about ``patients 
willing to pay exorbitant prices'' as well as the relative price 
charged for the medication by Respondent. ALJX 5 (Govt. Prehearing 
Statement), at 11. Accordingly, I find that the Government provided 
adequate notice that the prices charged by Respondent would be at issue 
in the proceeding.
    To the extent Respondent argues that I should give no weight to Dr. 
Gordon's testimony, I reject its argument that I should reject her 
testimony because she has never purchased controlled substances for a 
small pharmacy. Indeed, Dr. Gordon specifically testified that she 
``actually looked up the national . . . price.'' Id. at 503.
    In its Exceptions, Respondent argues that the ``absence of 
Respondent's corresponding exhibit should not be interpreted as an 
absence of records,'' and that ``it simply means that . . . the records 
in Respondent's possession are the same records as contained in a 
corresponding Government's exhibit.'' Resp. Exceptions, at 8 n.10. In 
this Exception, Respondent indicates its dispute with the Government's 
allegation that ``Respondent failed to exercise its corresponding 
responsibility

[[Page 10899]]

under the regulations by failing to acknowledge and resolve red flags 
related to a pattern of a doctor prescribing the exact same medication 
in a cookie-cutter fashion to multiple patients on the same day.'' 
Resp. Exceptions, at 8. As the CALJ noted, however, Respondent's Owner 
and PIC ``conceded that the paperwork furnished to the DIs at the April 
11th Inspection did not memorialize any attempts to resolve this red 
flag and agreed that she did not have any paperwork documenting her 
identification or resolution of the issue.'' R.D., at 49 (citing Tr. 
1094). While Respondent's Exception purports to correlate its 
``corresponding exhibit'' with the Government's evidence, Respondent 
fails to explain the many instances in which Respondent simply did not 
offer documentary evidence to support the bald assertions of 
Respondent's Owner and PIC that Respondent complied with the 
corresponding responsibility regulation. See, e.g., R.D., at 49-50 
(``[I]t is difficult to reconcile the multiple areas where the 
Respondent's recordkeeping system . . . had the capacity to note 
details such as red flag resolution with the absence of any documented 
indication that this, or any other red flags, were analyzed and 
resolved.'').
    Further, this Agency has applied, and I apply here, the ``adverse 
inference rule.'' As the DC Circuit explained, ``Simply stated, the 
rule provides that when a party has relevant evidence within his 
control which he fails to produce, that failure gives rise to an 
inference that the evidence is unfavorable to him.'' Int'l Union, 
United Auto., Aerospace & Agric. Implement Workers of Am. (UAW) v. 
Nat'l Labor Relations Bd., 459 F.2d 1329, 1336 (DC Cir. 1972). The 
Court reiterated this rule in Huthnance v. District of Columbia, 722 
F.3d 371, 378 (DC Cir. 2013). According to this legal principle, 
Respondent's decision not to provide records gives rise to an inference 
that any such evidence is unfavorable to Respondent. In any event, as 
explained above, the records Respondent did provide concerning the 
Government's allegations were insufficient to rebut those allegations.
    Respondent suggested throughout the hearing and in its briefs that 
the Government's case was deficient. See, e.g., Resp. Exceptions, at 9-
10, 11, 13, 14, 15, and 16-17. Having reviewed and considered all of 
Respondent's claims and arguments, I find that none of them has merit. 
Adoption of any of them would undermine this Agency's regulatory 
mission, and I decline to rule against long-standing precedent.
    For example, in its Exceptions, Respondent argues that the 
Government's Expert ``admitted that she has no evidence that . . . any 
of the prescriptions . . . were diverted or somehow used for or with 
illicit purposes.'' Resp. Exceptions, at 11. Notwithstanding the 
Government's Expert's testimony, there is ample circumstantial evidence 
that the prescriptions at issue in this proceeding were issued by a 
physician acting outside of the usual course of professional practice. 
The circumstantial evidence includes that the prescriptions were for 
large quantities of Dilaudid 8 mg., a highly abused narcotic; that 
customers were traveling long distances; and that many of the customers 
were paying cash and exorbitantly high prices. In other instances, the 
evidence showed that customers were obtaining early fills of 
prescriptions.
    Second, Respondent suggests that the Government's failure to prove 
the prescribing doctors were not licensed or registered at the relevant 
time, or otherwise ``unable to lawfully issue the prescription[s],'' 
somehow exonerated Respondent. See, e.g., Resp. Exceptions, at 13. 
Respondent cites no legal authority for this Exception. Indeed, it is 
fatally flawed because it suggests that Respondent's corresponding 
responsibility is alleviated by the prescriber's medical license, 
controlled substances registration, or other credential. As the 
language of the regulation makes clear, while the prescribing 
practitioner is responsible for the proper prescribing and dispensing 
of a controlled substance, a corresponding responsibility rests with 
the pharmacist who fills a controlled substance prescription, and the 
pharmacist who knowingly fills a ``purported prescription, as well as 
the person issuing it, shall be subject to the penalties provided for 
violations of the provisions of law relating to controlled 
substances.'' 21 CFR 1306.04(a). Thus, contrary to Respondent's 
suggestion, the good order of the prescribing practitioner's license, 
registration, or other credential does not alleviate the pharmacist's 
corresponding responsibility or exonerate the pharmacist in any way. I 
reject Respondent's Exception.
    Third, Respondent claims that the Government failed to prove the 
existence of any indicator of controlled substance abuse specified in 
Fla. Admin. Code r. 64K-1.007 (adopted May 21, 2012).\35\ See, e.g., 
Resp. Exceptions, at 14-17. Respondent cites no legal basis for its 
claim that the provisions of this State Administrative Code section, 
that were not even in effect during the entire period covered by the 
Show Cause Order, are determinative of liability under Federal law. I 
reject Respondent's Exception.
---------------------------------------------------------------------------

    \35\ According to this provision, the E-FORCSE Program Manager 
``may provide relevant information to the identified health care 
practitioners who have prescribed or dispensed controlled 
substances'' to an individual ``who within a 90-day time period . . 
. obtains a prescription for a controlled substance . . . from more 
than one prescriber . . . and . . . is dispensed a controlled 
substance . . . from five or more pharmacies.''
---------------------------------------------------------------------------

    Finally, Respondent suggested that the Government's case must fail 
because the DI did not meet with any prescriber or speak with any 
customer. See, e.g., Resp. Br., at 35, 37. Respondent did not elaborate 
on its argument or cite any legal precedent for it. Again, Agency 
precedent has made clear that Respondent's argument is mistaken.\36\ 
Accordingly, I reject it.
---------------------------------------------------------------------------

    \36\ ``While it is true that a pharmacist cannot violate his 
corresponding responsibility if a prescription was nonetheless 
issued for a legitimate medical purpose, Respondent ignores that the 
invalidity of a prescription can be proved by circumstantial 
evidence.'' Hills Pharmacy, 81 FR at 49,836, n.33.
---------------------------------------------------------------------------

Allegation That Respondent Filled Controlled Substance Prescriptions 
Not Containing All of the Information Required by 21 CFR 1306.05(a) and 
(f)
    The Show Cause Order alleged that Respondent filled controlled 
substance prescriptions that did not contain all the information 
required by 21 CFR 1306.05(a) and (f). According to that regulation, a 
``corresponding liability rests upon the pharmacist . . . who fills a 
prescription not prepared in the form prescribed by DEA regulations.'' 
21 CFR 1306.05(f). Among other things, those DEA regulations require 
that controlled substance prescriptions be ``dated as of, and signed 
on, the day when issued and shall bear the full name and address of the 
patient, the drug name, strength, dosage form, quantity prescribed, 
directions for use, and the name, address and registration number of 
the practitioner.'' 21 CFR 1306.05(a). As found above, Respondent 
filled controlled substance prescriptions that did not contain all of 
the information required by 21 CFR 1306.05.
    As discussed above, the uncontroverted evidence is not only that 
Respondent violated this regulation, but that Respondent admitted 
violating this regulation. I find, based on all of the evidence in the 
record, that Respondent violated 21 CFR 1306.05(a) by filling multiple 
controlled substance prescriptions that were not prepared in the form 
prescribed by DEA regulation.

[[Page 10900]]

Allegation That Respondent Filled Prescriptions Written for ``Office 
Use'' in Violation of 21 CFR 1306.04(b)
    The Show Cause Order alleged that Respondent violated 21 CFR 
1306.04(b) when it filled prescriptions issued for ``an individual 
practitioner to obtain controlled substances for supplying the 
individual practitioner for the purpose of general dispensing to 
patients.'' ALJX 1, at 10. As explained above, GX 17 included two ``RX 
Order Forms'' that Respondent referred to as ``prescriptions'' and, 
pursuant to at least one of them, admitted delivering controlled 
substances to an entity engaged in hormone replacement therapy for the 
purpose of allergy testing. Based on Respondent's admissions, I find 
that Respondent filled prescriptions issued in violation of 21 CFR 
1306.04(b).\37\ I note, however, that 21 CFR 1306.04(b), the provision 
the Government cited in the Show Cause Order, prohibits the issuance, 
not the filling, of prescriptions.
---------------------------------------------------------------------------

    \37\ After admitting that it filled ``the prescriptions 
alleged'' in the Show Cause Order, Respondent argued that its 
actions were ``legal and proper'' under 21 CFR 1307.11(a), the so-
called 5% Rule. Resp. Br., at 15-16. Since I find that the 
Government did not allege a legal basis for the ``office use'' 
allegation, I need not address Respondent's argument concerning 21 
CFR 1307.11(a).
---------------------------------------------------------------------------

    Neither the Show Cause Order nor the Government Prehearing 
Statement cited a statutory or regulatory provision that prohibited the 
filling of a prescription issued in violation of 21 CFR 1306.04(b). In 
addition, the Government did not discuss the ``office use'' allegation, 
let alone address the legal sufficiency of this allegation in the Show 
Cause Order or in the Government Prehearing Statement. I find that the 
Government did not allege a legal basis for the revocation or 
suspension of Registrant's registration upon a finding that Registrant 
``filled'' prescriptions issued in violation of 21 CFR 1306.04(b).
    Thus, while I find that Respondent admitted filling prescriptions 
issued in violation of 21 CFR 1306.04(b), I also find that the 
Government did not comply with the requirement that the Show Cause 
Order ``contain a statement of the legal basis for . . . the denial, 
revocation, or suspension of registration and a summary of the matters 
of fact and law asserted.'' 21 CFR 1301.37(c). Thus, I will not give 
any weight in the public interest assessment to Respondent's admission 
that it filled prescriptions issued in violation of 21 CFR 1306.04(b).
Allegation That Respondent Filled Prescriptions Written by Physicians 
for the Physicians' Personal Use in Violation of Florida Statute Sec.  
458.331(r)
    According to the Show Cause Order, Respondent ``filled 
prescriptions written by physicians for the physicians' personal use, 
in violation of Fla. Stat. Sec.  458.331(r) which prohibits 
`[p]rescribing, dispensing, or administering any medicinal drug 
appearing in any schedule set forth in chapter 893 by the physician to 
himself or herself.''' ALJX 1, at 10. The Show Cause Order also alleged 
that Respondent ``violated Florida law by dispensing controlled 
substances pursuant to these invalid prescriptions.'' Id. Neither it 
nor the Government Prehearing Statement, however, specified the 
provision of the allegedly violated Florida law. The CALJ referenced 
the corresponding responsibility provision of 21 CFR 1306.04(a) but 
that, of course, cannot be the provision of ``Florida law'' that the 
Show Cause Order referenced.
    During the time period covered by the Show Cause Order, Florida law 
required that a pharmacist, before dispensing a controlled substance 
listed in schedules II through IV, first determine ``in the exercise of 
her or his professional judgment . . . that the order is valid.'' Fla. 
Stat. Sec.  893.04(2)(a) (2009). The substances that Respondent 
admitted dispensing to physicians for their personal use, testosterone 
and phentermine, were listed in Florida law as controlled substances 
under schedules III and IV, respectively. Fla. Stat. Sec.  893.03 
(2011) (``Standards and schedules''). See also Fla. Stat. Sec.  
893.02(22) (2011) (defining a ``prescription'' as an order for drugs 
``issued in good faith and in the course of professional practice . . . 
and meeting the requirements of s. 893.04.'').
    The Respondent's argument against liability was that the Florida 
statute referenced in the Order to Show Cause was not sufficiently 
related to preventing the diversion of controlled substances. Resp. 
Br., at 17-18. According to Respondent, the ``primary purpose behind 
Sec.  458.331 . . . is to regulate the practice of medicine and 
discipline physicians that have engaged in unethical and/or 
unprofessional behavior.'' Id. at 17. It argued that ``[c]learly, the 
primary purpose behind Sec.  458.331 . . . in general and Sec.  
458.331(r) specifically is not `control[ling] the supply and demand of 
controlled substances in both lawful and unlawful drug markets' . . . 
or preventing drug diversion, but disciplinary actions and remedies 
against offending physicians.'' Id. at 18 (quoting Gonzales v. Raich, 
545 U.S. 1, 19 (2005)).
    Respondent's argument fails as does its similar argument concerning 
its admitted interstate shipment of controlled substances in violation 
of four States' non-resident pharmacy requirements. The Florida 
statutes at issue concerned exactly what Respondent argued they did 
not. As the CALJ stated, the Florida provision cited in the Show Cause 
Order ``prohibits an activity that `increases the opportunity for those 
persons who are self-abusing or engaged in diversion to obtain 
controlled substances.''' R.D., at 38 n.159 (citing Fred Samimi, M.D., 
79 FR 18,698, 18,710 (2014)). Further, Chapter 893, referenced in the 
Florida statute listed in the Show Cause Order, is entitled ``Drug 
Abuse Prevention and Control.'' These provisions of Florida law concern 
much more than physician discipline; by their very title, they go to 
the heart of the controlled substance anti-diversion mission--drug 
abuse prevention and control.
    The dilemma posed by this Show Cause Order allegation is whether 
it, in its and the hearing record's brevity concerning this charge, 
sufficiently noticed Respondent of the charge being levied against it. 
The CALJ thought not. See R.D., at 39. However, Respondent defended 
against this charge and, in doing so, purported to understand the 
charge being levied against it.
    I find that neither the Show Cause Order nor the Government 
Prehearing Statement specified a statutory provision that Respondent 
allegedly violated.\38\ 21 CFR 1301.37(c). Thus, even though there is 
evidence in the record that Respondent violated Florida law when it 
filled prescriptions for the personal use of the prescriptions' 
prescribers, I did not consider this evidence when I conducted the 
public interest analysis of 21 U.S.C. 823(f).\39\
---------------------------------------------------------------------------

    \38\ Neither did the Government Brief specify a statutory 
provision that Respondent allegedly violated.
    \39\ Fla. Stat. Sec.  458.331(r) (which prohibited 
``[p]rescribing, dispensing, or administering any medicinal drug 
appearing in any schedule set forth in chapter 893 by the physician 
to himself or herself'') in conjunction with Fla. Stat. Sec.  
893.04(2)(a) (which prohibited a pharmacist from dispensing a 
controlled substance without first determining, in the exercise of 
her professional judgment, that the order was valid).
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Other Allegations
Allegation That Respondent Was Unable To Readily Retrieve Prescriptions 
It Had Dispensed
    The Show Cause Order alleged that Respondent was unable to 
``readily retrieve prescriptions it had dispensed''

[[Page 10901]]

in violation of 21 CFR 1304.04(h)(3) and (4). ALJX 1, at 7-8. The Show 
Cause Order cited 12 examples of prescriptions that Respondent 
allegedly did not retrieve and provide to the DI as required by law.
    According to the regulation, which is applicable to inventories and 
records of controlled substances in schedules III through V, ``[p]aper 
prescriptions for Schedules III, IV, and V controlled substances shall 
be maintained at the registered location . . . in such form that they 
are readily retrievable from the other prescription records of the 
pharmacy.'' 21 CFR 1304.04(h)(4). The regulatory definition of 
``readily retrievable'' calls for locating the records ``in a 
reasonable time.'' 21 CFR 1300.01(b). Agency precedent states that 
``what constitutes `a reasonable time' necessarily depends on the 
circumstances.'' Edmund Chein, M.D., 72 FR 6580, 6593 (2007), pet. for 
rev. denied, Chein v. Drug Enforcement Admin., 533 F.3d 828, 832 n.6 
(DC Cir 2008), cert. denied, 555 U.S. 1139 (2009). According to that 
precedent, ``under normal circumstances if a practice is open for 
business, it should be capable of producing a complete set of records 
within several hours of the request.'' Id. The decision explained that 
``[t]o allow a registrant an even greater period of time to produce the 
records would create an incentive for those who are engaged in illegal 
activity to obstruct investigations by stalling for time in the hopes 
that DEA personnel would eventually give up and leave.'' Id.
    As found above, Respondent never provided the 12 requested 
prescriptions to the DI. Respondent included ten of the 12 
prescriptions in an exhibit for the hearing in this proceeding more 
than two years after the unannounced inspection, but this is 
insufficient to comply with the ``readily retrievable'' requirement. As 
of the final day of the hearing in this proceeding, or about 28 months 
after the unannounced inspection, Respondent still had not provided the 
Government with two of the prescriptions. Accordingly, I find that the 
Government has proved by substantial evidence that Registrant failed to 
comply with the requirements of 21 CFR 1304.04(h)(3) and (4).
Allegation That Respondent Shipped Controlled Substances Out-of-State 
Without Complying With Those States' Non-Resident Pharmacy Requirements
    The Order to Show Cause alleged that Respondent shipped controlled 
substances to customers in Alabama, Illinois, Kentucky, and Vermont 
without complying with those States' non-resident pharmacy 
requirements.\40\ As found above, Respondent shipped controlled 
substances to customers in Alabama, Illinois, Kentucky, and Vermont 
without being licensed in, or permitted by, those States to do so. 
Accordingly, I find that the Government has proved by substantial 
evidence that Registrant failed to comply with the non-resident 
pharmacy requirements of four States.
---------------------------------------------------------------------------

    \40\ Alabama (prescription shipped Jan. 14, 2013): Ala. Admin. 
Code r. 680-X-2-.07(2) (2005) (``No nonresident pharmacy shall ship, 
mail or deliver prescription drugs and/or devices to a patient in 
this state unless registered by the Alabama State Board of 
Pharmacy.''); Illinois (prescription shipped Jan. 27, 2012): Ill. 
Admin. Code tit. 68 Sec.  1330.550(a) (2012) (``The Division shall 
require and provide for an annual nonresident special pharmacy 
registration for all pharmacies located outside of this State that 
dispense medications for Illinois residents and mail, ship or 
deliver prescription medications into this State. . . .''); Kentucky 
(prescription shipped March 19, 2012): Ky. Rev. Stat. Sec.  
315.0351(1) (2007) (``Every person or pharmacy located outside this 
Commonwealth which does business, physically or by means of the 
internet, facsimile, phone, mail, or any other means, inside this 
Commonwealth . . . shall hold a current pharmacy permit . . . issued 
by the Kentucky Board of Pharmacy.''); and Vermont (prescription 
shipped Jan. 10, 2013): Vt. Stat. Ann. tit. 26 Sec.  2061(a) (2013) 
(``All drug outlets shall biennially register with the board of 
pharmacy.''); Vt. Stat. Ann. tit. 26 Sec.  2022(7) (2013) (`` Drug 
outlet' means all pharmacies, . . . and mail order vendors which are 
engaged in dispensing, delivery, or distribution of prescription 
drugs.''); see also 20-4-1400 Vt. Code R. Sec.  16.1 et seq. (2013) 
(`` Non-resident pharmacy' means a drug outlet . . . located outside 
of Vermont which dispenses prescription drugs . . . for Vermont 
residents . . . and which mails, ships, or delivers such 
prescription drugs . . . into this state. . . .'').
---------------------------------------------------------------------------

    Respondent admitted that it was not in compliance with any of these 
four States' non-resident pharmacy requirements when it shipped 
controlled substances to customers at addresses in those States. 
Further, Respondent did not challenge the Government's contention that 
it violated these four States' non-resident pharmacy requirements when 
it argued that ``[i]t should be note [sic] that other than the out-of-
state dispensing instances . . . [alleged], there was no evidence that 
. . . [Respondent] is engaged in shipping medications to states where 
it does not hold a Non-resident pharmacy license.'' Resp. Br., at 9. 
Instead, Respondent argued that its noncompliance with these four 
States' non-resident pharmacy statutes was insufficiently related to 
preventing the diversion of controlled substances to be considered 
under Factor Four of 21 U.S.C. 823(f). Id. at 4-9 (citing Fred Samimi, 
79 FR at 18,710). The CALJ disagreed and concluded that the out-of-
state pharmacy provisions had a ``sufficient nexus'' to the Act's 
``core purpose of preventing drug abuse and diversion to warrant 
consideration under the Public Interest Factors.'' R.D., at 43. I agree 
with the result the CALJ recommended.
    The second public interest factor is ``experience in dispensing . . 
. controlled substances.'' 21 U.S.C. 823(f)(2). ``Dispense,'' according 
to 21 U.S.C. 802(10), means ``deliver a controlled substance to an 
ultimate user . . . pursuant to the lawful order of . . . a 
practitioner.'' Despite the testimony of Respondent's Owner and PIC and 
her statements to the DI, Respondent admitted that it ``dispensed'' 
controlled substances in violation of four States' legal requirements. 
Thus, I find that Respondent's experience in dispensing controlled 
substances includes the dispensing of controlled substances to 
customers living in four States in which Respondent was not licensed or 
legally authorized to dispense those controlled substances. Id. This 
result is consistent with Agency precedent. Sun & Lake Pharmacy, Inc.; 
d/b/a the Medicine Shoppe, 76 FR 24,523, 24,532 (2011) (finding that 
Respondent committed actionable misconduct when it dispensed 
prescriptions to residents of States in which it was not licensed.). 
See also 21 U.S.C. 802(21) (defining ``practitioner'' as meaning, in 
relevant part, a ``pharmacy . . . licensed, registered or otherwise 
permitted . . . by the . . . jurisdiction in which . . . [it] practices 
. . . to . . . dispense a controlled substance'').
Allegation That Respondent Violated Florida State Law by Failing To 
Report Some Prescriptions to E-FORCSE in Violation of Florida Statute 
Sec.  893.055(4)
    The Show Cause Order alleged that Respondent failed to comply with 
Florida State law by not reporting specified prescriptions to E-FORCSE. 
As discussed above, I found that Respondent did not challenge the 
Government's assertion that six controlled substance prescriptions it 
dispensed did not appear in E-FORCSE. The CALJ found ``not persuasive'' 
Respondent's argument that the non-reportings ``had their genesis in a 
good-faith technical glitch.'' R.D., at 46 n.184. He recommended 
finding the testimony of Respondent's Owner and PIC on this allegation 
``wholly unpersuasive,'' ``even if assumed, arguendo, to be credible.'' 
Id.
    The Florida statute that the Respondent allegedly violated required 
the reporting to E-FORCSE of each controlled substance dispensed ``as 
soon thereafter as possible, but not more than 7 days after the date 
the controlled substance is dispensed unless an extension is 
approved.'' Fla. Stat.

[[Page 10902]]

Sec.  893.055(4) (2012). Respondent, a covered ``dispenser'' under the 
provision, did not claim that it had been granted an extension under 
the statute. Fla. Stat. Sec.  893.055(1)(c) (`` `Dispenser' means a 
pharmacy . . . [or] dispensing pharmacist. . . .'').
    I disagree with Respondent's claim that the Florida Statute did 
``not provide for any penalties for non-compliance, partial compliance 
or reporting errors.'' Resp. Br., at 25. To the contrary, the Florida 
Statute contained a criminal sanction for a willful and knowing failure 
to report the dispensing of controlled substances. Fla. Stat. Sec.  
893.055(9) (2011) (``Any person who willfully and knowingly fails to 
report the dispensing of a controlled substance as required by this 
section commits a misdemeanor of the first degree.''); see also Fla. 
Stat. Sec.  893.13(7)(a)(2) and (c) (2011) (A person who refuses or 
fails to keep any required record commits a misdemeanor of the first 
degree for a first violation and a felony of the third degree for a 
second or subsequent violation).
    Based on all of the evidence in the record, I find that Respondent 
did not comply with the controlled substance reporting requirements of 
Fla. Stat. 893.055(4). Respondent's non-compliance is appropriate for 
consideration under Factor Four. In this case, due to the overwhelming 
egregiousness of other violations that Respondent committed, my 
consideration of Respondent's non-compliance with the controlled 
substance reporting requirements of Fla. Stat. 893.055(4) did not have 
a determinative impact on my public interest assessment.

Summary of Factors Two and Four

    As discussed above, the Government presented a prima facie case 
that Respondent, with a subjective belief of a high probability that 
controlled substance prescriptions were not legitimate and while taking 
deliberate actions to avoid learning of their illegitimacy, filled 
multiple prescriptions for controlled substances which lacked a 
legitimate medical purpose. The Government also presented a prima facie 
case that Respondent was unable to readily retrieve prescriptions it 
had dispensed, filled controlled substance prescriptions and shipped 
them without meeting the out-of-state pharmacy requirements of four 
States, filled controlled substance prescriptions that did not contain 
all of the required information, and failed to report controlled 
substance prescriptions to E-FORCSE in violation of Florida law. Thus, 
I conclude that Respondent engaged in egregious misconduct which 
supports the revocation of its registration. See Wesley Pope, 82 FR 
14,944, 14,985 (2017) (collecting cases).
    I therefore hold that the Government has established a prima facie 
case that Respondent's continued registration ``would be inconsistent 
with the public interest.'' 21 U.S.C. 823(f).

Sanction

    Where, as here, the Government has met its prima facie burden of 
showing that Respondent's continued registration is inconsistent with 
the public interest due to its numerous violations pertaining to its 
dispensing and recordkeeping practices and its non-compliance with 
State laws, the burden shifts to the Respondent to show why its 
continued registration would nonetheless be consistent with the public 
interest. Medicine Shoppe-Jonesborough, 73 FR 364, 387, pet. for rev. 
denied sub nom. Medicine Shoppe-Jonesborough v. Drug Enforcement 
Admin., 300 F. App'x 409 (6th Cir. 2008). Under Agency precedent, the 
Respondent must ``present sufficient mitigating evidence to assure the 
Administrator that it can be entrusted with the responsibility carried 
by such a registration.'' Hills Pharmacy, 81 FR at 49,845 (citing 
Medicine Shoppe-Jonesborough, 73 FR at 387 (quoting Samuel S. Jackson, 
D.D.S., 72 FR 23,848, 23,853 (2007)) (quoting Leo R. Miller, M.D., 53 
FR 21,931, 21,932 (1988))). Moreover, because past performance is the 
best predictor of future performance, DEA has repeatedly held that when 
a registrant has committed acts inconsistent with the public interest, 
the registrant must accept responsibility for those actions and 
demonstrate that it will not engage in future misconduct. East Main 
Street Pharmacy, 75 FR at 66,162 (quoting Medicine Shoppe-Jonesborough, 
73 FR at 387); see also MacKay, 664 F.3d at 820 (DEA may properly 
consider whether a physician admits fault in determining if the 
physician's registration should be revoked.). That acceptance of 
responsibility must be unequivocal. Lon F. Alexander, M.D., 82 FR 
49,704, 49,728 (2017) (collecting cases).
    Moreover, the egregiousness and extent of a registrant's misconduct 
are significant factors in determining the appropriate sanction. See 
Jacobo Dreszer, 76 FR 19,386, 19,387-88 (2011) (explaining that a 
respondent can ``argue that even though the Government has made out a 
prima facie case, his conduct was not so egregious as to warrant 
revocation''); Paul H. Volkman, 73 FR 30,630, 30,644 (2008); see also 
Paul Weir Battershell, 76 FR 44,359, 44,369 (2011) (imposing six-month 
suspension, noting that the evidence was not limited to security and 
recordkeeping violations found at first inspection and ``manifested a 
disturbing pattern of indifference on the part of [r]espondent to his 
obligations as a registrant''); Gregory D. Owens, 74 FR 36,751, 36,757 
n.22 (2009).
    Finally, the Agency has also held that `` `[n]either Jackson, nor 
any other agency decision, holds . . . that the Agency cannot consider 
the deterrent value of a sanction in deciding whether a registration 
should be [suspended or] revoked' '' or an application should be 
denied. Wesley Pope, 82 FR 14,944, 14,985 (2017) (quoting Joseph 
Gaudio, 74 FR 10,083, 10,094 (2009) (quoting Southwood Pharmaceuticals, 
Inc., 72 FR 36,487, 36,504 (2007))). See also Robert Raymond Reppy, 76 
FR 61,154, 61,158 (2011); Michael S. Moore, 76 FR 45,867, 45,868 
(2011). This is so both with respect to the respondent in a particular 
case and the community of registrants. See Pope, 82 FR at 14,985 
(quoting Gaudio, 74 FR at 10,095 (quoting Southwood, 71 FR at 36,503)). 
Cf. McCarthy v. SEC, 406 F.3d 179, 188-89 (2d Cir. 2005) (upholding 
SEC's express adoptions of ``deterrence, both specific and general, as 
a component in analyzing the remedial efficacy of sanctions'').
    In this case, the CALJ found that Respondent's acceptance of 
responsibility was ``limited in scope and can be fairly characterized 
as minimal.'' R.D., at 58. Specifically, the CALJ found that 
Respondent's Owner and PIC, on behalf of Respondent, accepted 
responsibility in ``only three carefully circumscribed'' areas: (1) 
that she did not document every single conversation with every single 
prescriber; (2) that she, as the pharmacist-in-charge, shouldered 
ultimate responsibility for ensuring required documentation was 
properly completed; and (3) that Respondent filled controlled substance 
prescriptions for patients who lived a significant distance from the 
pharmacy. R.D., at 58.
    At the hearing, Respondent's counsel asked Respondent's Owner and 
PIC ``[w]hat is it that you're accepting responsibility for in this 
case?'' Tr. 1025. Respondent's Owner and PIC testified: ``That I don't 
have any intention to violate DEA rules.'' Tr. 1025. This is in no 
sense a meaningful acknowledgement of Respondent's misconduct.
    In its Exceptions, Respondent contends that it ``accepted 
responsibility for filling long-distance prescriptions

[[Page 10903]]

and, as remedial measures, stopped dispensing schedule II substances 
all together.'' Resp. Exceptions, at 8. Respondent also argues that, 
through Respondent's Owner and PIC, it ``accepted the responsibility 
for not documenting in every instance, its efforts in resolving the red 
flags and as [a] remedial measure stated that it `document[s] 
everything that's possible.' '' Id. It further contends that, 
``[a]lthough . . . [Respondent's Owner and PIC] accepted responsibility 
for the misfiling of the prescriptions, it is easily deuced [sic] from 
the record and from the instituted corrective measures that the 
Respondent accepted the responsibility for the missing information as 
well.'' Id. at 18 n.19.
    I reject Respondent's contentions. Most significantly, Respondent's 
Owner and PIC has entirely failed to acknowledge that Respondent 
violated the CSA when it knowingly dispensed numerous controlled 
substance prescriptions which were clearly issued outside of the usual 
course of professional practice and which lacked a legitimate medical 
purpose. And even as to the factual matters for which the CALJ found 
she accepted responsibility, such as failing to adequately document her 
conversations with prescribers, Respondent's Owner and PIC immediately 
equivocated by making excuses for not doing so in the future. She 
stated, ``Now I document every little thing that it's concerned to the 
conversation and the dispensing of controlled substances. However, 
there's a lot of conversation going on on a daily basis between doctors 
and offices.'' Tr. 1010-11. Similarly, after acknowledging that she 
filled controlled substance prescriptions for patients who lived a 
significant distance from the pharmacy, Respondent's Owner and PIC 
justified her filling of the prescriptions, asserting, without any 
evidence to corroborate her claim, that ``some of them are working 
locally and they all had a local doctor.'' Id. at 1026.
    Respondent's Owner and PIC also testified that, ``If the DEA 
provide me, do not fill for 100 miles, like--that's why I said, I 
accepted my responsibility, I took remedial measures. I do not fill 
schedule II prescriptions in my pharmacy because of these conflicting 
red flags. Because it's a practice of Florida to travel.'' Id. at 1023-
24. Respondent characterized this testimony as meaning that 
Respondent's Owner and PIC accepted responsibility for filling long-
distance prescriptions. Resp. Br., at 36; see also Resp. Exceptions, at 
8. I specifically reject Respondent's argument. Notably, this testimony 
began with the word ``if'' and in any event, it does not constitute an 
acceptance of responsibility for violating the corresponding 
responsibility rule. Further, the testimony was not offered in the 
context of addressing Respondent's filling prescriptions from its 
Florida customers who travelled long distances to patronize Respondent. 
Rather, the testimony was offered to address Respondent's filling of 
prescriptions for out-of-state customers, specifically customers from 
Kentucky about whom Respondent's Owner and PIC testified she had been 
``clearly instructed'' by DEA. Tr. 1023.
    Notably, at no point in the hearing did Respondent's Owner and PIC 
accept responsibility, let alone accept responsibility unequivocally, 
for violating the corresponding responsibility regulation. Notably, the 
testimony of Respondent's Owner and PIC manifests that she still does 
not acknowledge the scope of a pharmacist's obligation under 21 CFR 
1306.04(a). As one example, she testified that ``[t]he prescription is 
an order for the pharmacist to fill. For me not to fill that 
prescription, I have to have a very good reason not to fill it, because 
it's an order from the doctor to me to fill that prescription for that 
patient.'' Id. at 1168. As the Agency has previously recognized, a 
registrant cannot accept responsibility for its misconduct when it does 
not even understand what the law requires of it. Alexander, 82 FR at 
49,729. I agree with the CALJ's conclusion that ``there is no 
unequivocal acceptance of responsibility on this record that would be 
particularly helpful to the Respondent's efforts to avoid a sanction.'' 
R.D., at 58.
    Here, the CALJ concluded that ``the paltry nature of the 
Respondent's acceptance of responsibility would have rendered remedial 
measure evidence largely irrelevant.'' Id. In addition, Respondent's 
misconduct included an egregious abdication of the corresponding 
responsibility requirement involving the dispensing of controlled 
substances such as Dilaudid 8 mg., a most potent and highly abused 
schedule II drug; the evidence also shows that Respondent committed 
extensive violations of other Federal and State legal requirements. 
Thus, due to the Respondent's ``paltry'' acceptance of responsibility 
and its ``intentional decision to decline to notice evidence of 
remedial steps'' leading to the preclusion of that evidence from 
consideration, the CALJ recommended that ``the record supports the 
imposition of a sanction.'' Id. I find that this is the appropriate 
result on the record in this case.
    I agree with the CALJ's assessment that, ``[w]here no understanding 
is acquired about how the regulated conduct fell short of professional 
and federal and state legal standards, it would be difficult (even 
illogical) to predict improvement.'' Id. at 59. I also agree with the 
CALJ's prediction that Respondent ``is likely to proceed in the future 
as it has in the past if not curtailed in its ability to do so.'' Id. I 
further agree with the CALJ that the ``sheer number of established 
transgressions of various types, coupled with the refusal to admit that 
issues existed, would render a sanction less than revocation as a 
message to the regulated community that due diligence is not a required 
condition precedent to operating as a registrant.'' Id.
    Respondent has not rebutted the Government's prima facie showing 
that its continued registration is ``inconsistent with the public 
interest.'' 21 U.S.C. 823(f). I will therefore order that Respondent's 
registration be revoked and that any pending applications be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 21 
U.S.C. 823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate 
of Registration FP1049546 issued to Pharmacy Doctors Enterprises d/b/a 
Zion Clinic Pharmacy be, and it hereby is, revoked. I further order 
that any pending application of Pharmacy Doctors Enterprises d/b/a Zion 
Clinic Pharmacy for renewal or modification of this registration be, 
and it hereby is, denied. This order is effective April 12, 2018.

    Dated: February 28, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-05020 Filed 3-12-18; 8:45 am]
 BILLING CODE 4410-09-P