On August 14, 2006, the Deputy Assistant Administrator, Office of Diversion Control, issued an Order to Show Cause to Foothills Family Pharmacy of Boulder, Colorado, and Foothills Family Pharmacy of Lafayette, Colorado (Respondents). The Order proposed the revocation of each Respondent's DEA Certificate of Registration as a retail pharmacy, and the denial of any applications filed by either Respondent to renew or modify its registration, on the ground that each Respondent's “continued registration would be inconsistent with the public interest.” Show Cause Order at 1. More specifically, the Order alleged that each pharmacy had violated its “corresponding responsibility” under Federal law by filling prescriptions for controlled substances which were unlawful because they were not “ ‘issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.’ ” Id. at 3 (quoting 21 CFR 1306.04(a)).
Respondents requested a hearing on the allegations, and the matter was placed on the docket of the Agency's Administrative Law Judges (ALJ). Following prehearing procedures, the parties agreed to submit documents and written statements of position to the ALJ in lieu of a trial-type hearing. Subsequent to their filings, the parties also submitted briefs containing their proposed conclusions of law and arguments.
On June 20, 2008, the ALJ issued her recommended decision. In her decision, the ALJ concluded that the Government had established that each “Respondent's continued registration would be inconsistent with the public interest.” ALJ at 42. The ALJ thus recommended that each Respondent's registration be revoked and that any pending applications be denied. The record was then forwarded to me for final agency action.
Thereafter, the Government obtained information that each Respondent was closed and no longer conducting business. Gov. Mot. for Declaratory Order at 2. Accordingly, the Government filed a motion seeking an order declaring each Respondent's registration terminated on the ground Start Printed Page 6060that they had gone out of business. Id. Attached to the motion was the Affidavit (Dated 10/16/08) of a DEA Diversion Investigator. In her Affidavit, the Investigator stated that on September 4, 2008, she had spoken with the Program Director of the Colorado Board of Pharmacy and had been told that the Foothills Family Pharmacy of Lafayette had been closed since January 2008. Affidavit at 1-2. The Investigator further stated that she had also spoken with an Inspector for the Colorado Board who advised her that Calvin Tyree, the owner of Foothills Family Pharmacy of Boulder, had submitted the document required to close the pharmacy. Id. at 2. The Investigator further stated that she had confirmed the latter pharmacy's closing with some of its former employees. Id.
On November 18, 2008, I issued an Order granting Respondents fifteen days to respond to the Government's motion. Neither Respondent has filed a response.
Based on the Affidavit, I find that each Respondent has discontinued business or professional practice. Under 21 CFR 1301.52, “the registration of any person shall terminate if and when such person dies, ceases legal existence, or discontinues business or professional practice.” Accordingly, I will grant the Government's motion and declare that each Respondent's registration has terminated. I will also order that any pending applications submitted by either Respondent be denied.
Pursuant to the authority vested in me under 5 U.S.C. 554(e), as well as 28 CFR 0.100(b) & 0.104, I grant the Government's motion and hereby declare terminated DEA Certificate of Registration, BF8528361, issued to Foothills Family Pharmacy of Boulder, Colorado, and DEA Certificate of Registration, BF8933334, issued to Foothills Family Pharmacy of Lafayette, Colorado. I further order that any pending applications of Foothills Family Pharmacy of Boulder, Colorado, and Foothills Family Pharmacy of Lafayette, Colorado, be, and they hereby are, denied. This Order is effective immediately.Start Signature
Dated: January 27, 2009.
Michele M. Leonhart,
[FR Doc. E9-2330 Filed 2-3-09; 8:45 am]
BILLING CODE 4410-09-P