E6-14523. Nashville Wholesale Company, Inc.; Denial of Application

On July 12, 2005, the Deputy Assistant Administrator, Office of Diversion Control, issued an Order to Show Cause to Nashville Wholesale Company, Inc., (Respondent) of Nashville and Memphis, Tennessee. The Show Cause Order proposed to deny Respondent's pending application for registration as a non-retail distributor of List I chemicals on the ground that Respondent's registration would be inconsistent with the public interest. See 21 U.S.C. 823(h); Show Cause Order at 1.

The Show Cause Order specifically alleged that Respondent, through its owner Nael Abodabba, submitted an application to distribute pseudoephedrine, a List I chemical which is commonly diverted to the illicit manufacture of methamphetamine, a Schedule II controlled substance. Show Cause Order at 2. The Show Cause Order alleged that Mr. Abodabba had previously owned the Memphis Wholesale Company, which engaged in the distribution of List I chemicals under a DEA grandfather exemption. See id. The Show Cause Order further alleged that Mr. Abodabba had sold his interest in Memphis Wholesale to Mr. Mohammed Issa, who proceeded to distribute List I chemicals without obtaining a new DEA registration. See id. The Show Cause Order further alleged that Mr. Abodabba failed to notify DEA of the change in corporate ownership and that this resulted in Memphis Wholesale “conducting continuing distribution activities without authorization.” Id.

The Show Cause Order further alleged that while Mr. Abodabba told DEA Diversion Investigators that he only intended to sell “traditional” pseudoephedrine products, several of his proposed suppliers sold only “non-traditional pseudoephedrine and ephedrine products.” Id. at 2-3. The Show Cause Order also alleged that several of Mr. Abodabba's proposed customers had been found to be selling excessive amounts of ephedrine products and that other proposed customers had been receiving List I chemical products from distributors who had either surrendered a registration or were the subject of a show cause proceeding. See id. at 3. Finally, the Show Cause Order alleged that “[i]t appears that Mr. Abodabba is attempting to ‘churn’ his distribution activities in order to evade scrutiny, and if registered, would likely supply retailers who already have an excessive source of supply.” Id. at 4. The Show Cause Order also notified Respondent of its right to a hearing.

The Show Cause Order was served on Respondent by certified mail, return receipt requested at its proposed registered location; on July 26, 2005, DEA received the signed return receipt card. Since that time, neither Respondent, nor anyone purporting to represent it, has responded. Because (1) more than thirty days have passed since Respondent's receipt of the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived its right to a hearing. See 21 CFR 1309.53(c). I therefore enter this final order without a hearing.

Findings

I take official notice of the records of the Tennessee Secretary of State. According to those records, on June 25, 2004, the Tennessee Secretary of State filed a notice of determination that grounds existed for dissolving Respondent. Thereafter, on September 17, 2004, the Secretary filed a certificate of dissolution thereby administratively dissolving Respondent. Under Tennessee law, “[a] corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs * * * and notify claimants.” Tenn. Code Ann. § 48-24-202 (West. 2006) (citations omitted). Respondent is thus prohibited from engaging in business operations involving the distribution of products.

Under DEA regulations, a registration terminates “if and when” a registrant “discontinues business.” 21 CFR 1309.62(a). While there is no provision addressing the status of a pending application when the applicant discontinues business, it would make no sense to grant an application to register an entity which cannot engage in business. Therefore, because Respondent is no longer authorized to engage in business other than for the purpose of winding up its affairs, it is not entitled to registration and it is unnecessary to consider whether Respondent's registration would be inconsistent with the public interest. See 21 U.S.C. 823(h).

Order

Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) and 0.104, I hereby order that the previously submitted application of Nashville Wholesale Company, Inc., for a DEA Certificate of Registration as a distributor of List I chemicals be, and it hereby is denied. This order is effective October 2, 2006.

Dated: August 22, 2006.

Michele M. Leonhart,

Deputy Administrator.