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Notice

Orlando Wholesale, L.L.C. Denial of Application

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Information about this document as published in the Federal Register.

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Start Preamble

On November 18, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Orlando Wholesale, L.L.C., of Orlando, Florida (Respondent). The Show Cause Order proposed to deny Respondent's pending application for a DEA Certificate of Registration as a distributor of List I chemicals on the ground that its registration would be inconsistent with the public interest. See 21 U.S.C. 823(h) and 824(a).

The Show Cause Order specifically alleged that Respondent was proposing to distribute List I chemical products containing pseudoephedrine, a precursor chemical which is used to manufacture methamphetamine, to convenience stores in the Orlando area and that methamphetamine manufacturers often obtain the chemical from convenience stores. See Show Cause Order at 1-2. The Show Cause Order alleged that during DEA's pre-Start Printed Page 71556registration investigation, investigators had determined that one of Respondent's co-owners had previously been involved in a firm that distributed List I chemicals without obtaining a proper registration. See id. The Show Cause Order further alleged that DEA Diversion Investigators (DIs) had requested that Respondent's owner provide them with information regarding his immigration status, his business licenses, and the nature of the co-owner's involvement in Respondent. See id. The Show Cause Order alleged that Respondent had failed to provide any of the requested information. See id.

On November 25, 2005, the Government attempted to serve the Show Cause Order on Respondent by certified mail, return receipt requested, at the address of its proposed registered location, 9500 Satellite Blvd., #230, Orlando, FL. The mailing was returned with a notation that Respondent's forwarding address was 1167 Doss Ave., Orlando, FL. Thereafter, on December 30, 2005, two DEA DIs went to the latter address and personally served Respondent's owner, Mr. Shakil Isani, with the Show Cause Order. 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 based on relevant material found in the investigative file and make the following findings.

Findings

Pseudoephedrine is a List I chemical that, while having a therapeutic use, is easily extracted from lawful products and used in the illicit manufacture of methamphetamine, a schedule II controlled substance. See 21 U.S.C. 802(34); 21 CFR 1308.12(d). As noted in numerous DEA orders, “methamphetamine is an extremely potent central nervous system stimulant.” Sujak Distributors, 71 FR 50102, 50103 (2006); A-1 Distribution Wholesale, 70 FR 28573 (2005). Methamphetamine is highly addictive; its abuse has destroyed lives and families and ravaged communities. Moreover, because of the toxic nature of the chemicals used to make the drug, its manufacture creates serious environmental harms. David M. Starr, 71 FR 39367 (2006).

Respondent is a Florida corporation which has been in business since October 2003. On March 22, 2004, Respondent applied for a registration as a distributor of List I chemicals and gave as the address of its proposed registered location: 9500 Satellite Blvd., # 230, Orlando, FL. On June 15, 2004, two DEA DIs conducted a pre-registration investigation at this address. At some point thereafter, Respondent changed its address to 1167 Doss Avenue, Orlando. Respondent did not, however, notify DEA.

During the pre-registration investigation, the DIs met with Respondent's owner, Mr. Shakil Isani. Mr. Isani told the DIs that Respondent is a wholesale distributor of some 700 different items to approximately 109 convenience stores in the greater Orlando area. Mr. Isani further advised the DIs that he is the owner and only officer of Respondent. When the DIs asked Mr. Isani for a copy of Respondent's Articles of Incorporation, Mr. Isani stated that three other individuals were listed as being managing members of the firm but that he planned on removing them. One of these individuals had previously come to the attention of DEA because he was operating a business (on behalf of his brother who had been convicted of several federal criminal offenses and was then serving a sentence of incarceration) which distributed List I chemicals without a valid DEA registration.

The DIs asked Mr. Isani to provide them with documentation regarding the removal of the other members of his firm. The DIs also asked Mr. Isani for personal data such as date, place of birth, and social security numbers for the other members. Mr. Isani agreed to provide the information. Mr. Isani has not, however, provided the information.

The DIs also asked Mr. Isani about his immigration status. Mr. Isani told the DIs that he was in the country under a work permit but that he did not have the documentation on him. The DIs then asked Mr. Isani to provide them with documentation of his status. Subsequently, the DIs conducted a check of Mr. Isani's status and determined that he was not legally in the United States and appeared to be subject to removal proceedings. The check, however, also showed that Mr. Isani had applied for an adjustment of status to become a resident alien. According to the investigative file, Mr. Isani has not provided the DIs with updated information on his status.

During the on-site inspection, the DIs also asked Mr. Isani to provide copies of his business licenses. Again, Mr.Isani has not provided any of the information that the DIs requested.

Discussion

Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:

(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;

(2) Compliance by the applicant with applicable Federal, State, and local law;

(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;

(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and

(5) Such other factors as are relevant to and consistent with the public health and safety.

Id.

“These factors are considered in the disjunctive.” Joy's Ideas, 70 FR 33195, 33197 (2005). I may rely on any one or a combination of factors, and may give each factor the weight I deem appropriate in determining whether an application for registration should be denied. See, e.g., Starr, 71 FR at 39367; Energy Outlet, 64 FR 14269 (1999). Moreover, I am “not required to make findings as to all of the factors.” Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); Morall v. DEA 412 F.3d 165, 173-74 (D.C. Cir. 2005).

Here, I conclude that an analysis of each factor is unnecessary and that Respondent's application should be denied for two reasons. First, Respondent's owner has failed to submit necessary information regarding three issues: (1) His business licenses, (2) his immigration status, and (3) the role of persons listed as managing members of the firm including one individual who has previously come to the attention of DEA. Second, Respondent changed its address—without notifying DEA—and after the on-site inspection was conducted.

DEA regulations expressly provide that “[t]he Administrator may require an applicant to submit such documents * * * relevant to the application as [she] deems necessary to determine whether the application should be granted.” 21 CFR 1309.35. The information sought by the DIs regarding Respondent's business licenses and its owner's immigration status was reasonably necessary to evaluate Respondent's compliance with applicable laws. See 21 U.S.C. 823(h)(2). In light of Respondent's failure to produce this information (as well as the information contained in the Start Printed Page 71557investigative file), I conclude that Respondent was not in compliance with federal immigration laws and that Respondent does not possess the required state and/or local business licenses. Moreover, the information sought with respect to Respondent's managing members was essential to evaluate whether the firm would maintain “effective controls against diversion.” Id. § 823(h)(1). Based on the information contained in the investigative file that one of Respondent's managing members had previously operated a business which distributed List I chemicals without a valid registration and Respondent's failure to provide any documentation showing that this individual no longer has a management or ownership interest in it, I conclude that Respondent does not maintain effective control against diversion.

Respondent's change of address provides further reason to deny its application. Under the Controlled Substances Act, a registration is location specific. See 21 U.S.C. 822(e) (“A separate registration shall be required at each principal place of business * * * where the applicant * * * distributes * * * list I chemicals.”). Respondent applied for a registration at 9500 Satellite Blvd., # 230, Orlando, Fl. It was at this location that the pre-registration investigation was conducted and the adequacy of Respondent's security controls was evaluated. See 21 CFR 1309.71(b). Respondent's change of its location after DEA conducted the pre-registration inspection renders moot the information obtained regarding its security measures and its application for registration at its prior place of business. Furthermore, Respondent has not submitted an application for its new location. Because Respondent applied to distribute List I chemicals from the Satellite Blvd. location and it is no longer in business at that location, I conclude that granting its application for a registration would be inconsistent with the public interest.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) & 0.104, I hereby order that the application of Respondent Orlando Wholesale L.L.C., for a DEA Certificate of Registration as a distributor of List I chemicals be, and it hereby is, denied. This order is effective January 10, 2007.

Start Signature

Dated: December 1, 2006.

Michele M. Leonhart,

Deputy Administrator.

End Signature End Preamble

[FR Doc. E6-20981 Filed 12-8-06; 8:45 am]

BILLING CODE 4410-09-P