[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28994]
[[Page Unknown]]
[Federal Register: November 25, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-77]
Nasir Gore, T/A All Drugs Pharmacy, Inc.; Revocation of
Registration
On August 31, 1993, the Deputy Assistant Administrator, then
Director, Office of Diversion Control, Drug Enforcement Administration
(DEA), directed an Order to Show Cause to Nasir Gore, T/A Family
Pharmacy and All Drugs Pharmacy, Inc. (Respondent), proposing to revoke
the pharmacies' DEA Certificates of Registration, BF1426306 and
BA2097562, under 21 U.S.C. 824(a)(4), and to deny any pending
applications under 21 U.S.C. 823(f). The Order to Show Cause alleged
that Family Pharmacy was not licensed in New Jersey, the state in which
it is registered, and that the continued registration of Respondent
would be inconsistent with the public interest.
Respondent, by counsel, requested a hearing on the issues raised in
the Order to Show Cause. The matter was docketed before Administrative
Law Judge Paul A. Tenney. Following prehearing procedures, a hearing
was held in Newark, New Jersey on April 12, 1994.
On July 19, 1994, Judge Tenney issued his findings of fact,
conclusions of law and recommended ruling in which he recommended that
the registration of all Drugs Pharmacy, Inc., be revoked and any
pending applications of Nasir Gore be denied. No exceptions were filed
and on August 19, 1994, the administrative law judge transmitted the
record of the proceedings to the Deputy Administrator.
The Deputy Administrator has considered the record in its entirety
and, pursuant to 21 CFR 1316.67, enters his final order in this matter,
based on findings of fact and conclusions of law as hereinafter set
forth.
The Administrative law judge found that detectives from the Kearny,
New Jersey Police Department received information from a confidential
informant that Respondent was selling tablets of Ativan, a Schedule IV
controlled substance, to people off the street for one dollar per
tablet. Subsequently, in September and October 1992, police officers
conducted three controlled purchases of Ativan at Family Pharmacy. Each
time, Mr. Nasir Gore, owner and operating pharmacist, provided a
confidential informant with Ativan in exchange for cash. Mr. Gore
testified at the proceeding that he had given the informant ninety
controlled substance tablets, but that the confidential informant had
told him that he had prescription which he would bring in later.
The administrative law judge found that on November 6, 1992, Nasir
Gore entered into a Consent Order with the New Jersey State Board of
Pharmacy that he cease and desist from the practice of pharmacy in the
State of New Jersey. On October 18, 1993, before the New Jersey
Superior Court for Hudson County, Nasir Gore pled guilty to a single
felony count of distributing or dispensing controlled dangerous
substances in violation of N.J. Revised Statute 2C:35-5A(1) and 5b(3).
The administrative law judge also found that DEA conducted an
accountability audit of Family Pharmacy based on records seized by the
Kearny Police Department. However, Judge Tenney found ``chain of
custody'' problems with respect to the records audited and determined
that the evidence DEA provided was not persuasive to support
allegations of inadequate recordkeeping with respect to Ativan.
In October or November 1992, Family Pharmacy ceased operation as a
Pharmacy. Therefore, the administrative law judge found that the DEA
registration of Family Pharmacy, BF1426306, terminated by operation of
law prior to the initiation of the proceeding. 21 CFR 1301.62.
The administrative law judge found that Nasir Gore was operating
All Drugs Pharmacy, Inc. in November 1993, and that he had been
observed acting as the pharmacist-in-charge. Mr. Gore testified that he
had sold the pharmacy to his brother-in-law, Tariq Matin, on November
3, 1993, and he produced a copy of a contract and related documents.
However, the pharmacy was operating under a New York State pharmacy
license issued to Mr. Gore, that indicated that Mr. Gore was the sole
pharmacist and owner of All Drugs Pharmacy, Inc. Judge Tenney found
that there was not evidence of money or other consideration exchanging
hands, no evidence of inventory transfers, and no evidence that the DEA
or the state was advised of the change of ownership. In addition, Mr.
Gore continued to work at the pharmacy and continued to write all
checks for he pharmacy. Judge Tenney concluded that there was no true
sale. Mr. Gore also testified that the pharmacy had ceased operation in
March 1994 and that he had transferred all controlled substances for
destruction. The administrative law judge found no preponderating
evidence to support a finding that the pharmacy is no longer in
operation.
Under 21 U.S.C. 824(a)(4), and pursuant to 21 U.S.C. 823(f), ``[i]n
determining the public interest, the following factors shall be
considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.''
It is well established that these factors are to be considered in
the disjunctive, i.e., the Deputy Administrator may properly rely on
any one or a combination of factors, and give each factor the weight he
deems appropriate. Henry J. Schwarz, Jr., M.D., 54 16422 (1989).
Of the stated factors, the administrative law judge found that
factors (2), (3), (4), and (5) were relevant. As to factor (2),
Respondent admitted to dispensing Ativan without a prescription; as to
factor (3) Mr. Gore was convicted under New Jersey State law of a
single felony of unlawfully distributing a controlled dangerous
substance; as to factor (4), Respondent dispensed controlled substances
without a valid prescription in violation of the Federal Controlled
Substances Act and New Jersey State law; and as to factor (5), the
administrative law judge found that Respondent's conduct at Family
Pharmacy in New Jersey, the action of the New Jersey State Board of
Pharmacy taken against Mr. Gore, and his subsequent conviction all were
found to threaten the public health and safety.
The administrative law judge noted that Respondent's major defense
was that he was no longer associated with All Drugs Pharmacy, Inc.
However, the administrative law judge determined that the evidence as a
whole does not support that the transfer was an arms-length
transaction. Judge Tenney concluded that the continued registration of
All Drugs Pharmacy, Inc. would not be consistent with the public
interest and that is registration should be revoked.
The Deputy Administrator adopts the findings of fact, conclusions
of law, and recommended ruling of the administrative law judge in its
entirety. Based on the foregoing, the Deputy Administrator concludes
that Respondent's continued registration would not be in the public
interest.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration, BA2097562, issued to All Drugs Pharmacy,
Inc., be and it hereby is, revoked; and that any pending applications
of Nasir Gore, be, and they hereby are, denied. This order is effective
December 27, 1994.
Dated: November 17, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-28994 Filed 11-23-94; 8:45 am]
BILLING CODE 4410-09-M
