Federal Register / Vol. 69, No. 204 / Friday, October 22, 2004 / Notices 62093

considered a waiver of his right to 

hearing. 

Therefore, the Deputy Administrator 

finds as follows: (1) Respondent 

requested a hearing; (2) he was directed 

to file a prehearing statement and 

cautioned that failure to comply with 

that order could be considered a waiver 

of hearing and an implied withdrawal of 

his request for hearing; and (3) 

Respondent failed to submit a 

prehearing statement. The Deputy 

Administrator therefore concludes 

Respondent is deemed to have waived 

his hearing right and, after considering 

material from the investigative file in 

this matter, now enters her final order 

without a hearing, pursuant to 21 CFR 

1301.43(d) and (e) and 1301.46. 

Respondent is currently registered 

with DEA as a practitioner under 

Certificate of Registration number 

BG2485173, at a registered location in 

Mayaguez, Puerto Rico. That registration 

expires on September 30, 2005. 

According to information in the 

investigative file, in November 2001, 

Special Agents from the DEA San Juan 

Field Office received information that 

the Sea Brave, a Puerto Rico registered 

vessel owned by Respondent, may have 

been used in the trafficking of 

controlled substances in St. Maarten, 

Netherlands Antilles. The same 

information was communicated to 

Dutch Customs, which placed a lookout 

for Respondent’s vessel. 

On June 16, 2002, the Dutch Coast 

Guard observed the Sea Brave outside 

the St. Maarten harbor channel. Dutch 

authorities instructed the vessel return 

to the marina, inside St. Maarten 

territorial waters,where it was boarded 

by Dutch authorities. At the time of 

boarding, Respondent was on board, 

along with two others. Upon search of 

the vessel by Dutch Customs officers, 

549 grams of heroin were recovered 

from a hidden compartment in the cabin 

area and all individuals on board were 

arrested and taken to the St. Maarten 

Police Station.

When questioned the next day, 

Respondent admitted being told by an 

individual that at least nine kilograms of 

cocaine and six kilograms of heroin had 

been placed on board the Sea Brave. 

Further he admitted seeing an 

individual place two boxes and eighty 

pellets of suspected heroin inside a 

hidden compartment, behind a 

television set on board the vessel. Upon 

receipt of this information, Dutch 

Customs went back on board the Sea 

Brave, which had been docked 

overnight at a nearby pier. However, it 

was discovered that someone had 

apparently already boarded the vessel 

and removed the television from its wall 

unit. A hidden compartment behind the 

television was empty. 

After negotiations between the United 

States Department of Justice and the 

Dutch Government, it was concluded 

prosecutions would take place in the 

United States District Court, District of 

Puerto Rico and Respondent and his 

cohorts were indicted on charges of 

conspiring to import more than one 

kilogram of heroin, a Schedule I 

Narcotic Controlled Substance, and 

more than five kilograms of cocaine, a 

Schedule II Narcotic Controlled 

Substance, in violation of 21 U.S.C. 952, 

960 and 963. Respondent entered pleas 

of not guilty and was detained pending 

trial at the Metropolitan Detention 

Center in Guaynabo, Puerto Rico. On 

September 19, 2002, Respondent plead 

guilty to one felony count of 21 U.S.C. 

952(a), Possession With Intent To 

Import Heroin. On May 16, 2003, he was 

sentenced to 20 months incarceration 

and 60 months supervised release. 

Pursuant to 21 U.S.C. 823(f) and 

824(a)(4), the Deputy Administrator may 

revoke a DEA Certification of 

Registration and deny any pending 

applications for renewal of such 

registration, if she determines that 

continued registration would be 

inconsistent with the public interest. 

Section 823(f) requires that the 

following factors be considered in 

determining the public interest: 

(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 or safety. 

These factors are to be considered in 

the disjunctive; the Deputy 

Administrator may rely on any one or a 

combination of factors and may give 

each factor the weight she deems 

appropriate in determining whether a 

registration should be revoked or an 

application for registration denied. See 

Henry J. Schwartz, Jr., M.D., 54 FR 

16,422 (1989). 

It is undisputed that Respondent was 

convicted of Possession With Intent to 

Import Heroin. Since Respondent’s 

felony conviction related to controlled 

substances, grounds exist to revoke his 

DEA registration under 21 U.S.C. 

824(a)(2). See William C. Potter, D.V.M., 

65 FR 50,569 (2000). 

Next, the Deputy Administrator 

considers whether Respondent’s 

continued registration would be 

inconsistent with the public interest. In 

this case, the Deputy Administrator 

finds factors three, four and five 

relevant in determining whether 

continuing Respondent’s registration 

would be inconsistent with the public 

interest. 

As to factor one, the recommendation 

of the appropriate state licensing board 

or professional disciplinary authority, 

there is no evidence in the investigative 

file of action being taken against any 

professional license of Respondent. 

With respect to factor two, his 

experience in dispensing, or conducting 

research with respect to controlled 

substances, there is no information in 

the investigative file relative to 

Respondent’s lawful handling of 

controlled substances in his 

professional practice. 

With regard to factors three, four and 

five, the Deputy Administrator finds 

that Respondent, by his own admission, 

used his vessel to knowingly transport 

cocaine and heroin and attempted to 

conceal the drugs in a hidden 

compartment. He was then arrested and 

convicted of Possession With Intent to 

Import Heroin. The egregious nature of 

Respondent’s conduct bears directly 

upon his fitness to possess a DEA 

registration and, applying the above 

factors, leads to the obvious conclusion 

that Respondent’s continued registration 

would be inconsistent with the public 

interest. 

Accordingly, the Deputy 

Administrator of the Drug Enforcement 

Administration, pursuant to the 

authority vested in her by 21 U.S.C. 823 

and 824 and 28 CFR 0.100(b) and 0.104, 

hereby orders that DEA Certificate of 

Registration, BG2485173, previously 

issued to Ivan D. Garcia-Ramirez, be, 

and it hereby is, revoked. This order is 

effective November 22, 2004.

Dated: October 5, 2004. 

Michele M. Leonhart, 

Deputy Administrator.

[FR Doc. 04–23714 Filed 10–21–04; 8:45 am] 

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration 

[Docket No. 04–01] 

RX Network of South Florida, LLC 

Revocation of Registration 

On October 10, 2003, the then-Acting 

Deputy Administrator of the Drug 

Enforcement Administration (DEA), 

62094 Federal Register / Vol. 69, No. 204 / Friday, October 22, 2004 / Notices 

issued an Order to Show Cause and 

Immediate Suspension of Registration to 

RX Network of South Florida, LLC 

(Respondent), notifying it of an 

opportunity to show cause as to why 

DEA should not revoke its DEA 

Certificate of Registration, BR7139238, 

as a retail pharmacy, and deny any 

pending applications for renewal or 

modification of registration pursuant to 

21 U.S.C. 823(f) and 824(a)(4), for reason 

that Respondent’s continued registration 

would be inconsistent with the public 

interest. The Order to Show Cause and 

Immediate Suspension of Registration 

further informed Respondent of the 

suspension of its DEA Certificate of 

Registration, as an imminent danger to 

the public health or safety pursuant to 

21 U.S.C. 824(d). 

The Order to Show Cause and 

Immediate Suspension of Registration 

alleged in relevant part, that 

Respondent, owned and operated by 

Vincent Chhabra, Sabrina Faruqui and 

Carleta Carolina, dispensed over 

19,300,000 various controlled 

substances through orders of customers 

who had accessed an Internet Web site 

set up by Respondent. Customers of 

Respondent would complete a 

questionnaire set up on the Web site, 

which solicited information about the 

customer, including the type of 

medication desired. After the customer’s 

credit card was processed, the 

questionnaire was forwarded to one of 

several ‘‘staff’’ physicians who then 

issued prescriptions for the controlled 

substances being ordered. The 

prescriptions were then sent 

electronically to Respondent, which 

then dispensed the controlled 

substances to customers through the 

mail. The ‘‘staff’’ physicians, as well as 

Respondent’s customers, were located 

in various states throughout the United 

States and the physicians had no 

interaction with customers before 

prescribing the controlled substances. 

The Order to Show Cause and 

Immediate Suspension of Registration 

also alleged that on April 21, 2001, DEA 

issued a policy statement, Dispensing 

and Purchasing Controlled Substances 

over the Internet, 66 FR 21,181 (2001). 

The policy statement delineated certain 

circumstances under the which DEA 

deems prescribing over the Internet to 

be unlawful, including, inter alia, the 

circumstance when a controlled 

substance is issued or dispensed 

without a bona fide doctor/patient 

relationship. The policy further 

explained that completed 

questionnaires, later reviewed by a 

doctor hired by the Internet pharmacy 

‘‘could not be considered the basis of a 

doctor/patient relationship.’’ Id., at 

21,182–21,183. In further support of 

DEA policy, the Order to Show Cause 

and Immediate Suspension of 

Registration cited the final order 

revoking the DEA registration of a 

practitioner who had participated in an 

Internet pharmacy scheme similar to 

that of Respondent. See Rick Joe Nelson, 

M.D. 66 FR 30,752 (2001). 

The Order to Show Cause and 

Immediate Suspension of Registration 

further referenced correspondence 

during November 2002 and February 

2003 between the United States 

Department of Justice and the thenattorney of Vincent Chhabar. In those 

letters, Mr. Chhabra’s attorney was 

reminded that his client had been 

notified of the foregoing DEA policy and 

requested to shut down its Internet 

pharmacy operation.

The Order to Show Cause and 

Immediate Suspension of Registration 

further referenced an order of 

emergency suspension issued by the 

Florida Department of Health (the 

Department) against Respondent on May 

30, 2002, as well as administrative 

complaints issued by the Department’s 

Pharmacy Board against Respondent 

and one of its pharmacists. While both 

actions stemmed from allegations that 

Respondent operated an Internet 

pharmacy, the Order to Show Cause and 

Immediate Suspension of Registration 

referenced the Pharmacy Board’s March 

31, 2003, assessment of a $48,000 fine 

as the only sanction. 

The Order to Show Cause and 

Immediate Suspension of Registration 

further alleged that on seven separated 

occasions during September and 

October 2003, DEA diversion 

investigators and agents from the United 

States Food and Drug Administration 

conducted a series of undercover 

operations with the objective of 

obtaining controlled substances from 

Respondent through its Internet 

operation. The operation resulted in law 

enforcement officers receiving 

quantities of Bontril (a Schedule III 

controlled substance) and phentermine 

(a Schedule IV controlled substance) 

from Respondent after filling out 

Internet questionnaires with fictitious 

names and fictitious weights. The law 

enforcement officers had no contact 

with the prescribing physicians, who 

issued prescriptions from locations in 

Florida, Missouri and Pennsylvania. 

However, there were no allegations in 

the Order to Show Cause and Immediate 

Suspension of Registration addressing 

the status of Respondent’s authorization 

to handle controlled substances in the 

State of Florida. 

By letter dated November 3, 2003, 

Respondent, through counsel, requested 

a hearing in this matter. The request 

included various arguments challenging 

the basis for the Order to Show Cause 

and Immediate Suspension of 

Registration. On November 10, 2003, 

Presiding Administrative Law Judge 

Mary Ellen Bittner (Judge Bittner) issued 

an Order for Prehearing Statements. 

On November 21, 2003, in lieu of a 

prehearing statement, counsel for DEA 

filed Government’s Motion for Summary 

Judgment and Motion to Stay the Filing 

of Prehearing Statements. In support of 

its motions, the Government referenced 

a letter dated November 20, 2003, in 

which Respondent’s counsel had 

notified the Florida Board of Pharmacy 

of the following: ‘‘Without the ability to 

dispense controlled substance[s], a 

crucial element of operating a 

pharmacy, [Respondent] can no longer 

remain viable, and must relinquish its 

pharmacy permit.’’ According to the 

Government, the letter indicated 

Respondent no longer had a pharmacy 

license in the State of Florida and, as a 

result, further proceedings in the matter 

were not required. Attached to the 

Government’s motion was the 

aforementioned letter from 

Respondent’s counsel to the Florida 

Board of Pharmacy. 

In response to the Government’s 

motion, Respondent argued in relevant 

part, that the Order to Show Cause and 

Immediate Suspension of Registration 

had not alleged that it did not have a 

current state pharmacy license. 

Respondent further argued that its lack 

of such a license now rendered these 

proceedings ‘‘legally moot’’ and that the 

Administrative Law Judge should deny 

the Government’s Motion for Summary 

Disposition and issue an order 

dismissing the case as moot.

On December 17, 2003, Judge Bittner 

issued her Opinion and Recommended 

Decision of the Administrative Law 

Judge (Opinion and Recommended 

Decision). As part of her recommended 

ruling, Judge Bittner rejected 

Respondent’s contentions concerning 

the Government’s failure to initially 

allege lack of state authority, holding 

the relevant question was Respondent’s 

status to handle controlled substances at 

the time of the Opinion and 

Recommended Decision, not at what 

stage of the proceedings that status may 

have changed. She further noted 

Respondent had never surrendered its 

DEA Certificate of Registration and that 

the surrender of its state pharmacy 

license did not render this proceeding 

moot. 

Judge Bittner granted the 

Government’s Motion for Summary 

Disposition, finding Respondent lacked 

authorization to handle controlled 

Federal Register / Vol. 69, No. 204 / Friday, October 22, 2004 / Notices 62095

substances in Florida, the jurisdiction in 

which it is registered with DEA. In 

granting the Government’s motion, 

Judge Bittner further recommended that 

Respondent’s DEA registration be 

revoked and any pending applications 

be denied. According to the letter 

transmitting this matter to the Deputy 

Administrator, no exceptions were filed 

by either party to the Opinion and 

Recommended Decision. 

The Deputy Administrator has 

considered the record in its entirety and 

pursuant to 21 CFR 1316.67, hereby 

issues her final order based upon the 

findings of fact and conclusions of law 

as hereinafter set forth. The Deputy 

Administrator adopts, in full, the 

Opinion and Recommenced Decision of 

the Administrative Law Judge. 

The Deputy Administrator finds that 

Respondent currently possesses DEA 

Certificate of Registration RB7139238 

and is registered to handle controlled 

substances in Florida as a retail 

pharmacy. The Deputy Administrator’s 

review of the November 20, 2003, letter 

from Respondent’s counsel to the 

Florida Board of Pharmacy reveals that 

after receiving the order of immediate 

suspension of its DEA registration, 

Respondent surrendered its pharmacy 

permit to the Board of Pharmacy. It 

appears from this action that 

Respondent surrendered its authority to 

handle controlled substances in Florida 

and, as a result, lacks a necessary 

prerequisite for DEA registration. There 

is no evidence before the Deputy 

Administrator that Respondent’s 

pharmacy permit has been returned or 

reinstated or that Respondent is 

currently licensed in Florida as a retail 

pharmacy. Accordingly, it is reasonable 

to infer that Respondent is without 

authorization to handle controlled 

substances in that state. 

DEA does not have statutory authority 

under the Controlled Substances Act to 

issue or maintain a registration if the 

applicant or registrant is without state 

authority to handle controlled 

substances in the state in which he 

conducts business. See 21 U.S.C. 

802(21), 823(f) and 824(a)(3). This 

prerequisite has been consistently 

upheld. See Prescriptionline.com, 69 FR 

5583 (2004); Graham Travers Schuler, 

M.D., 65 FR 50,570 (2000); Wingfield 

Drugs, Inc., 52 FR 27,070 (1987). The 

agency has also maintained this 

standard in matters involving the 

immediate suspension of a DEA 

Certificate of Registration under 21 

U.S.C. 824(d). See Chemical 

Dependence Associates of Houston, 58 

FR 37505 (1993). 

Here, Respondent is currently not 

licensed to handle controlled substances 

in Florida, the state where it maintains 

its registration with DEA. Therefore, 

Respondent is not entitled to maintain 

that registration. Because Respondent is 

not entitled to a DEA registration in 

Florida due to its lack of state 

authorization to handle controlled 

substances, the Deputy Administrator 

concludes it is unnecessary to address 

whether Respondent’s registration 

should be revoked based upon the 

public interest grounds asserted in the 

Order to Show Cause and Immediate 

Suspension of Registration. See 

Deanwood Pharmacy, 68 FR 41662 

(2003); Nathaniel-Aikens-Afful, M.D., 62 

FR 16871 (1997); Greenbelt Professional 

Pharmacy, 57 FR 55000 (1992). 

Accordingly, the Deputy 

Administrator of the Drug Enforcement 

Administration, pursuant to the 

authority vested in her by 21 U.S.C. 823 

and 824 and 28 CFR 0.100(b) and 0.104, 

hereby orders that DEA Certificate of 

Registration, BR7139238, issued to RX 

Network of South Florida, LLC, be, and 

it hereby is, revoked. The Deputy 

Administrator further orders that any 

pending applications for renewal or 

modification of such registration be, and 

they hereby are, denied. This order is 

effective November 22, 2004.

Dated: October 5, 2004. 

Michele M. Leonhart, 

Deputy Administrator.

[FR Doc. 04–23715 Filed 10–21–04; 8:45 am] 

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration 

Daniel Ortiz-Vargas, M.D.; Revocation 

of Registration 

On March 2, 2004, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration (DEA), issued an Order 

to Show Cause to Daniel Ortiz-Vargas, 

M.D. (Respondent) of Yauco, Puerto 

Rico, notifying him of an opportunity to 

show cause as to why DEA should not 

revoke his DEA Certificate of 

Registration BO6085395, as practitioner, 

under 21 U.S.C. 824(a)(5) and deny any 

pending applications for renewal or 

modification of that registration. As a 

basis for revocation, the Order to Show 

Cause alleged that Respondent had been 

mandatorily excluded from 

participating in federal health programs 

pursuant to 42 U.S.C. 1320–7(a). 

By letter dated March 28, 2004, 

Respondent, through legal counsel, 

requested a hearing. On April 20, 2004, 

Administrative Law Judge Gail A. 

Randall (Judge Randall) issued an Order 

for Prehearing Statements, requiring the 

Government and Respondent to file 

prehearing statements by May 11 and 

June 1, 2004, respectively. The 

Government filed a timely prehearing 

statement, however, Respondent failed 

to file his prehearing statement by the 

deadline. 

On June 29, 2004, Judge Randall 

issued a sua sponte Notice and Order to 

Respondent allowing him a limited 

extension of time, until July 21, 2004, to 

file his prehearing statement. The 

Notice and Order cautioned Respondent 

that if he failed to meet this deadline, 

Judge Randall would deem his 

inactivity to be a waiver of his hearing 

entitlement and that she would issue an 

order terminating the case. Respondent 

did not file a prehearing statement and 

on August 10, 2004, Judge Randall 

issued her Order terminating the 

proceedings. On August 26, 2004, the 

Office of Chief Counsel forwarded the 

record to the Deputy Administrator for 

entry of a final order based on the 

investigative file. 

Therefore, the Deputy Administrator 

finds that Respondent, having requested 

a hearing but having failed to participate 

in the matter after being apprised of the 

consequences, is deemed to have 

waived his hearing right. See Bill Lloyd 

Drug, 64 FR 1823–01 (1999); Vincent A. 

Piccone, M.D., 62 FR 62,074 (1997). 

After considering material from the 

investigative file, the Deputy 

Administrator now enters her final 

order without a hearing pursuant to 21 

CFR 1301.43(d) and (e) and 1301.46. 

The Deputy Administrator finds that 

Respondent currently possesses DEA 

Certificate of Registration BO6085395. 

The Deputy Administrator further finds 

that as a result of Respondent’s 

fraudulent activities, pursuant to his 

guilty plea, he was convicted in the 

United States District Court, District of 

Puerto Rico of one count of conspiring 

to solicit and receive kickbacks in 

relation to Medicare referrals for durable 

medical equipment, in violation of 18 

U.S.C. 371. On September 17, 2002, he 

was sentenced to three years probation. 

As a result of Respondent’s 

conviction, on January 31, 2003, he was 

notified by the Department of Health 

and Human Services of his five-year 

mandatory exclusion from participation 

in the Medicare program pursuant to 42 

U.S.C. 1320a–7(a). Exclusion from 

Medicare is an independent ground for 

revoking a DEA registration. 21 U.S.C. 

824(a)(5); see Johnnie Melvin Turner, 

M.D., 67 FR 71,203 (2002). The 

underlying conviction forming the basis 

for registrant’s exclusion from 

participating in Federal health care 

programs need not involve controlled