[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Notices]
[Pages 25906-25907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12035]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-31]
Bonds Discount Pharmacy; Revocation of Registration
On April 17, 1998, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Bonds Discount Pharmacy (Respondent) of Golden,
Mississippi notifying it of an opportunity to show cause as to why DEA
should not revoke the pharmacy's DEA Certificate of Registration
BBB4240723 pursuant to 21 U.S.C. 824(a)(2) and (a)(4) and deny any
pending applications for renewal of such registration pursuant to 21
U.S.C. 823(f), for reason that the pharmacy's owner was convicted of a
felony related to controlled substances and that the pharmacy's
continued registration would be inconsistent with the public interest.
By letter dated May 20, 1998, Respondent, through counsel, filed a
request for a hearing and the matter was docketed before Administrative
Law Judge Gail A. Randall. In the midst of prehearing proceedings, the
Government filed a Request for Stay of Proceedings and a Motion for
Summary Disposition on September 22, 1998. The Government alleged that
on July 23, 1998, the Mississippi Board of Pharmacy (Board) issued an
order suspending the pharmacist's license of Michael Bonds,
Respondent's owner and pharmacist; indicating that Respondent's
pharmacy permit was considered null and void; and placing Respondent in
a ``closed pharmacy'' status. The Government argued that as a result,
Respondent is not authorized to handle controlled substances in
Mississippi and therefore DEA cannot maintain its registration.
Respondent was given until October 13, 1998 to file its response to
the Government's motion. On October 16, 1998, Respondent filed several
documents, including an Order issued by the Supreme Court of
Mississippi granting Mr. Bonds' Petition for Consideration by the Full
Court relating to his criminal conviction. On October 19, 1998,
Respondent filed its Response to Motion for Summary Disposition, asking
that the Government's motion be denied and all proceedings stayed in
light of Mr. Bonds' pending challenge to his criminal conviction.
Respondent argued that because all matters relating to Mr. Bonds'
conviction are not yet concluded, DEA should not revoke Respondent's
registration.
Apparently at the same time Respondent was filing its response to
the Government's motion, Judge Randall issued an Order on October 19,
1998, giving Respondent until October 27, 1998, to file a response.
On October 27, 1998, Judge Randall issued her Opinion and
Recommended Decision, finding that Respondent lacked authorization to
handle controlled substances in Mississippi; granting the Government's
Motion for Summary Disposition; and recommending that Respondent's DEA
Certificate of Registration be revoked. On the same day as Judge
Randall issued her Opinion and Recommended Ruling, Respondent filed an
Amended Response to Motion for Summary Disposition, essentially arguing
that Mr. Bonds is ``in the posture of regaining his license to practice
pharmacy.''
Neither party filed exceptions to Judge Randall's Opinion and
Recommended Decision, and on December 1, 1998, she transmitted the
record of these proceedings to the Deputy Administrator.
The Deputy Administrator has considered the record in its entirety,
and pursuant to 21 CFR 1316.67, hereby issues his final order based
upon findings of fact and conclusions of law as hereinafter set forth.
The Deputy Administrator adopts, in full, the Opinion and Recommended
Decision of the Administrative Law Judge.
[[Page 25907]]
As a preliminary matter, the Deputy Administrator must determine
whether or not to consider Respondent's Amended Response to Motion for
Summary Disposition filed on October 30, 1998. Given Judge Randall's
October 19, 1998 Order, there could arguably be some confusion as to
whether Respondent was permitted to file a second response. Therefore,
the Deputy Administrator has considered this filing in rendering his
decision in this matter.
The Deputy Administrator finds that by order issued July 23, 1998,
the Board indicated that it considered Respondent's Mississippi
pharmacy permit null and void and placed it in a ``closed pharmacy''
status. In its responses to the Government's motion, Respondent argued
that because Mr. Bonds has a motion pending before the Supreme Court of
Mississippi regarding his criminal conviction, DEA should not take
action at this time. However, Respondent did not dispute that it was
not currently authorized to handle controlled substances.
The DEA does not have the statutory authority under the Controlled
Substances Act to issue or maintain a registration if the applicant or
registrant is without authority to handle controlled substances in the
state in which it conducts business. 21 U.S.C. 802(21), 823(f) and
824(a)(3). This prerequisite has been consistently upheld. See, Andrew
Mobley, Inc., d/b/a Medicine Shoppe, 54 FR 16,421 (1989); Wingfield
Drugs, Inc., 52 FR 27,070 (1987); Tony's Discount Store, Anthony Sekul,
Proprietor, 51 FR 12,578 (1986).
Here it is clear that Respondent's pharmacy permit is considered
null and void. Consequently, it is reasonable to infer that it is not
authorized to handle controlled substances in Mississippi, where it is
registered with DEA. Since Respondent lacks this state authority, it is
not entitled to a DEA registration in that state.
In light of the above, Judge Randall properly granted the
Government's Motion for Summary Disposition. It is well-settled that
where there is no material question of fact involved, or when the facts
are agreed upon, there is no need for a plenary, administrative
hearing. Congress did not intend for administrative agencies to perform
meaningless tasks. See Gilbert Ross, MD., 61 FR 8664 (1996); Dominick
A. Ricci, M.D., 58 FR 51,104 (1993); Philip E. Kirk, M.D., 48 FR 32,887
(1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
Here, there is no dispute concerning the material fact that Respondent
is not currently authorized to handle controlled substances in
Mississippi.
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 BB4240723, previously issued to Bonds
Discount Pharmacy, be, and it hereby is, revoked. The Deputy
Administrator further orders that any pending applications for renewal
of such registration, be, and they hereby are, denied. This order is
effective June 14, 1999.
Dated: May 6, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-12035 Filed 5-12-99; 8:45 am]
BILLING CODE 4410-09-M
