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Under Virginia law, a ‘‘prescription 

* * * may be issued only to persons 

* * * with whom the practitioner has a 

bona fide practitioner-patient 

relationship.’’ Va. Code Ann. § 54.1– 

3303(A). The statute defines the term 

‘‘bona fide practitioner-patientpharmacist relationship’’ as ‘‘one in 

which a practitioner prescribes, and a 

pharmacist dispenses, controlled 

substances in good faith to his patient 

for a medicinal or therapeutic purpose 

within the course of his professional 

practice.’’ Id. To establish a ‘‘bona fide 

practitioner-patient relationship,’’ the 

‘‘practitioner shall’’ meet the following 

criteria: 

(i) [E]nsure that a medical or drug 

history is obtained; 

(ii) [P]rovide information to the 

patient about the benefits and risks of 

the drug being prescribed; 

(iii) [P]erform or have performed an 

appropriate examination of the patient, 

either physically or by the use of 

instrumentation and diagnostic 

equipment through which images and 

medical records may be transmitted 

electronically; except for medical 

emergencies, the examination of the 

patient shall have been performed by 

the practitioner himself, within the 

group in which he practices, or by a 

consulting practitioner prior to issuing a 

prescription; and 

(iv) [I]nitiate additional interventions 

and follow-up care, if necessary, 

especially if a prescribed drug may have 

serious side effects. Id. 

Respondent violated the CSA’s 

prescription requirement because she 

did not establish a bona fide doctorpatient relationship with the Telemed 

customers. While Respondent was a 

resident of Virginia, her practice was 

located a substantial distance from the 

majority of the Virginia residents she 

prescribed to through Telemed. Most 

significantly, Respondent admitted to 

Investigators that she prescribed on the 

basis of telephonic consultations and 

did not conduct a physical examination 

of the customers; she also admitted that 

she did not maintain medical records 

for them. 

In her letter responding to the 

allegations, Respondent maintained that 

her ‘‘actions met [Virginia’s] definition 

of a practitioner-patient relationship.’’ 

Resp.’s Ltr. at 1. First, Respondent 

maintained that patients submitted their 

medical records, that Telemed 

scrutinized the documents for 

legitimacy, and that she reviewed 

records and called the customer’s 

primary care physician and/or 

consultant. Id. Second, Respondent 

stated that she provided information to 

her customers regarding the risks and 

benefits of each medication and that this 

information was documented in the 

Telemed medical record. Id. Third, 

Respondent maintained that she only 

continued a treatment plan initiated by 

the primary care provider or specialist, 

and that she did not ‘‘make a new 

diagnosis or initiate a new medication.’’ 

Id. Finally, Respondent wrote that the 

Telemed customers were ‘‘required to 

see their primary care physician or 

consultant at least every three months to 

update their condition, diagnosis and/or 

treatment plan.’’ Id. 

In her letter, Respondent maintained 

that based on her ‘‘literal reading of the 

Virginia code,’’ her actions met the 

definition of a practitioner-patient 

relationship. Id. Respondent also argued 

that under ‘‘case law and other 

sources,’’ a physician patient 

‘‘relationship is established when a 

patient seeks medical care and/or advice 

from a practitioner, and the practitioner 

knowingly provides medical care and/or 

advice to the patient.’’ Id. at 2. 

That may be as a matter of tort 

liability, but that does not mean that the 

relationship complies with accepted 

standards of medical practice necessary 

to properly diagnose a patient and issue 

treatment recommendations, including 

prescribing a controlled substance. 

Indeed, the Virginia Board found 

Respondent’s position unavailing, 

concluding that she ‘‘issu[ed] 

prescriptions to [customers of the 

website] despite the fact that her contact 

with the individuals was solely by 

telephone and despite the fact that she 

never saw these individuals in person, 

and did not perform any examination of 

them either physically or by the use of 

instrumentation and diagnostic 

equipment.’’ Consent Order at 1–2. The 

Board further concluded that 

Respondent ‘‘prescribed controlled 

substances including opioids * * * to 

numerous individuals outside of a bona 

fide practitioner-patient relationship.’’ 

Id. at 1. 

In numerous other cases involving 

practitioners who prescribed controlled 

substances over the internet and 

telephone to persons they had never 

physically examined and with whom 

they did not establish a bona-fide 

doctor-patient relationship, DEA has 

denied pending applications and 

revoked registrations pursuant to its 

authority under 21 U.S.C. 824(a)(4). See 

Ladapo O. Shyngle, M.D., 74 FR 6056 

(2009) (denying application for DEA 

registration after Respondent issued 

prescriptions outside bona fide doctorpatient relationship with customers of a 

website); see also Ronald Lynch, M.D., 

75 FR 78745 (2010); George Mathew, 

M.D., 75 FR 66138 (2010); Patrick W. 

Stodola, M.D., 74 FR 20727 (2009); Dale 

L. Taylor, M.D., 72 FR 30855 (2007); 

Andre DeSonia, M.D., 72 FR 54293 

(2007). Likewise, several Federal courts 

have held that such prescribing 

constitutes a criminal violation of the 

CSA. United States v. Nelson, 383 F.3d 

1227, 1231–32 (10th Cir. 2004); cf. 

United States v. Smith, 573 F.3d 639, 

657–58 (8th Cir. 2009); United States v. 

Fuchs, 467 F.3d 889 (5th Cir. 2006). 

I therefore conclude that because 

Respondent failed to establish a 

legitimate physician-patient 

relationship with various persons found 

above, she lacked a legitimate medical 

purpose and acted outside of the usual 

course of professional practice in 

prescribing controlled substances to 

them and thus violated Federal law. See 

21 CFR 1306.04(a); 21 U.S.C. § 841(a)(1). 

I further conclude that Respondent’s 

experience in dispensing controlled 

substances (factor two) and record of 

compliance with applicable laws related 

to controlled substances (factor four) 

establishes that granting Respondent’s 

application for a new registration 

‘‘would be inconsistent with the public 

interest.’’ 21 U.S.C. 823(f). Finally, 

based on Respondent’s letter, I find that 

Respondent has failed to accept 

responsibility for her misconduct and 

has therefore not rebutted the 

Government’s prima facie case. See, e.g., 

Krishna-Iyer, 74 FR at 464; see also 

Hoxie, 419 F.3d at 483. Accordingly, 

Respondent’s application will be 

denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 28 CFR 0.100(b), 

I order that the application of Stacey J. 

Webb, M.D., for a DEA Certificate of 

Registration as a practitioner be, and it 

hereby is, denied. This order is effective 

September 8, 2011. 

Dated: August 2, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–20046 Filed 8–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–1] 

Liddy’s Pharmacy, L.L.C. Denial of 

Application 

On September 15, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration (DEA or ‘‘Government’’), 

issued an Order to Show Cause to 


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1 I further note that there is no evidence that 

Respondent and its owners intend to permanently 

cease the practice of pharmacy. 

Liddy’s Pharmacy, L.L.C. (Respondent), 

of Lakeland, Florida. The Show Cause 

Order proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, BD8523335, as a retail 

pharmacy, and the denial of any 

pending applications for renewal or 

modification of its registration, on the 

ground that Respondent’s continued 

registration ‘‘is inconsistent with the 

public interest, as that term is defined 

in 21 U.S.C. 823(f).’’ Show Cause Order 

at 1. 

More specifically, the Show Cause 

Order alleged that Respondent 

‘‘knowingly engaged in a scheme to 

distribute controlled substances based 

on purported prescriptions that were 

issued for other than legitimate medical 

purposes and by physicians acting 

outside the usual course of professional 

practice, in violation of Federal and 

State law.’’ Id. The Order further alleged 

that Respondent ‘‘aided physicians in 

the unauthorized practice of medicine 

in those states that require physicians to 

be licensed by the state before 

prescribing controlled substances to 

state residents and in those states that 

require a physical examination by the 

physician prior to prescribing controlled 

substances.’’ Id. at 1–2. 

By letter of September 29, 2008, 

Respondent, through its attorney, 

requested a hearing on the allegations 

and the matter was placed on the docket 

of the Agency’s Administrative Law 

Judges (ALJs). Thereafter, on January 13, 

2009, an ALJ conducted a hearing in 

Orlando, Florida at which only the 

Government presented evidence. 

Following the hearing, both parties filed 

briefs containing their proposed 

findings of fact, conclusions of law, and 

argument. 

On October 6, 2009, the ALJ issued 

her recommended decision (also ALJ). 

Therein, the ALJ began by noting that 

under Federal law ‘‘[a] prescription for 

a controlled substance . . . must be 

issued for a legitimate medical purpose 

by an individual practitioner acting in 

the usual course of his practice’’ and 

that a pharmacist has ‘‘a corresponding 

responsibility’’ not to fill an unlawful 

prescription. ALJ at 19 (quoting 21 CFR 

1306.04(a)). The ALJ then found that 

‘‘the evidence shows that the 

Respondent filled over 42,000 

prescriptions written by doctors for 

patients in states where those doctors 

were not licensed.’’ Id. at 20. Having 

found that ‘‘these physicians were 

* * * engaged in the unauthorized 

practice of medicine in at least nine 

states,’’ the ALJ concluded that the 

‘‘prescriptions issued by such 

practitioners * * * are therefore invalid 

under the Controlled Substances Act 

[(CSA)]’’ and that ‘‘Respondent violated 

the CSA by filling them.’’ Id. at 22. 

The ALJ also found that while 

Respondent ‘‘is only licensed to practice 

pharmacy in Florida, Texas, and 

Illinois,’’ it ‘‘nevertheless dispensed 

medication to patients in Arkansas, 

Connecticut, New Hampshire, 

California, and Louisiana’’ and thus 

‘‘engaged in the unlicensed practice of 

pharmacy in violation of the laws of 

these states.’’ Id. The ALJ further found 

that Respondent violated Florida law 

when, despite being ‘‘on notice by the 

[Florida] Board [of Pharmacy] that 

prescriptions for controlled substances 

must be manually signed,’’ it 

‘‘continued to fill controlled-substance 

prescriptions containing electronic 

signatures.’’ Id. at 23. 

Finally, the ALJ found that 

Respondent ‘‘knowingly filled 

prescriptions issued in the name of a 

doctor whose DEA registration was 

suspended.’’ Id. Describing such 

conduct as ‘‘a blatant violation of the 

pharmacy’s corresponding 

responsibility under the [CSA] and DEA 

regulations,’’ the ALJ found that this 

conduct ‘‘demonstrate[d] a disturbing 

lack of appreciation for the 

responsibilities of a DEA registrant’’ and 

‘‘threatens the public health and safety 

by creating a substantial risk of 

diversion of controlled substances.’’ Id. 

at 24. The ALJ thus concluded that ‘‘in 

total, the Government has proven by a 

preponderance of the evidence its prima 

facie case.’’ Id. 

The ALJ then turned to whether 

Respondent had rebutted the 

Government’s prima facie case. Noting 

that ‘‘both Mr. Liddy and Mrs. Liddy,’’ 

who are Respondent’s owners, ‘‘invoked 

their Fifth Amendment privilege against 

self-incrimination’’ and refused to 

testify, the ALJ further found that 

‘‘Respondent presented no evidence or 

testimony whatsoever to rebut any of 

the Government’s evidence.’’ Id. 

Accordingly, the ALJ ‘‘conclude[d] that 

it would be inconsistent with the public 

interest to allow * * * Respondent to 

maintain its DEA registration.’’ Id. at 25. 

Citing Respondent’s ‘‘extensive record 

of unlawful conduct,’’ its ‘‘callous 

disregard for the serious responsibilities 

of a DEA registrant,’’ as well as its 

‘‘failure to present any evidence to show 

that it has corrected’’ its unlawful 

practices, the ALJ recommended that 

Respondent’s registration be revoked. 

Id. at 25–26. 

On October 27, 2009, Respondent 

filed Exceptions to the ALJ’s decision, 

and on November 9, 2009, the record 

was forwarded to me for final agency 

action. On April 14, 2010, Respondent’s 

owner executed a voluntary surrender of 

its registration. Notice of Surrender and 

Motion To Terminate Proceedings, at 1. 

Thereafter, the Government moved to 

terminate the proceeding on the ground 

that it is now moot. Id. at 2. 

Having reviewed the voluntary 

surrender form (DEA–104), I conclude 

that this case is not moot because that 

form contains no language manifesting 

that Respondent has withdrawn its 

pending application. Moreover, even if 

Respondent had withdrawn its 

application, under the Agency’s 

regulation, once an applicant is served 

with an order to show cause, an 

application may only be ‘‘withdrawn 

with permission of the Administrator 

* * * where good cause is shown by 

the applicant or where the * * * 

withdrawal is in the public interest.’’ 21 

CFR 1301.16(a). In light of the extensive 

resources that have been expended in 

both the litigation and review of this 

case, the egregious misconduct 

established by this record, and that 

neither the voluntary surrender form 

nor Agency regulations bar Respondent 

from immediately re-applying for a new 

registration or impose any time-bar on 

its reapplying, I conclude that allowing 

Respondent to withdraw its application 

would be contrary to the public 

interest.1 Accordingly, I conclude that 

the case is not moot. The Government’s 

motion to terminate the proceeding is 

therefore denied. 

Having considered the entire record 

in this matter, including Respondent’s 

exceptions, I adopt the ALJ’s 

recommended decision in its entirety 

except as noted herein. Accordingly, 

Respondent’s pending application will 

be denied. I make the following 

findings. 

Findings 

At the time of the hearing, 

Respondent held DEA Certificate of 

Registration BD8523335, which 

authorized it to dispense controlled 

substances in schedules II through V as 

a retail pharmacy at its Lakeland, 

Florida location. GX 1; ALJ Ex. 5, at 1. 

While Respondent’s registration was 

initially to expire on March 31, 2009, on 

February 2, 2009, it timely filed a 

renewal application. GX 1; ALJ Ex. 5, at 

1. Accordingly, Respondent’s 

registration remained valid until April 

14, 2010, when Respondent’s owner 

surrendered it. See 5 U.S.C. 557(c). 

However, as explained above, the 

Voluntary Surrender form contains no 

language manifesting Respondent’s 

intent to withdraw its application. I 


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therefore find that Respondent’s 

application remains pending before the 

Agency. 

Respondent, which is licensed as a 

pharmacy in the states of Florida, Texas, 

and Illinois, Tr. 42, is owned by Mr. 

Robert Bruce Liddy, Sr., and Mrs. 

Melinda Carol Liddy. GX 5. Respondent 

is also known by the name ‘‘Discount 

Mail Meds.’’ Tr. 19; see also GX 9. 

At the hearing, the Government called 

both Mr. and Mrs. Liddy to testify. Id. 

at 12, 15. However, both Mr. and Mrs. 

Liddy asserted their Fifth Amendment 

right against self-incrimination and thus 

did not answer questions on various 

subjects including on whether 

Respondent was also known as 

‘‘Discount Mail Meds,’’ on ‘‘all matters 

regarding [Respondent’s] operations,’’ 

and on Respondent’s ‘‘association’’ with 

Internet Web sites, doctors, or Web site 

operators regarding the filling of 

prescriptions for those Web sites. Id. at 

12–13, 15–16. 

At some point not established by the 

record, multiple law enforcement 

agencies including DEA commenced an 

investigation into Respondent’s 

practices, specifically focusing on its 

filling of prescriptions for hydrocodone 

(a Schedule III controlled substance), 

alprazolam (a Schedule IV controlled 

substance), and Soma or carisoprodol (a 

drug controlled under Florida law), 

which were issued by doctors who did 

not appear to have valid physicianpatient relationships with the recipients 

of the prescriptions because the latter 

were located throughout the country. Id. 

at 20–21. 

According to the DEA’s lead 

investigator, Respondent was associated 

with four to five internet prescribing 

Web sites, including 

ExpressReliefServices.com and 

NationwidePills.com. Id. at 22; see also 

GXs 7 & 8. Generally, the Web sites 

offered a person the ability to purchase 

prescription medication, including 

controlled substances, based on a 

person’s completion of an online 

questionnaire and without the 

prescribing physician’s having 

performed a physical exam of him/her. 

Tr. at 22; see also GX 7, at 3 (terms and 

conditions for Nationwidepills.com) 

(‘‘You understand that an on-line 

medical consultation will not include a 

physical examination. You hereby 

waive a physical exam at this time and 

agree to obtain a timely medical followup examination with a physician before 

you take treatments prescribed by 

Nationwidepills.com.’’). Moreover, 

while some of the Web sites required 

medical records and/or identification, 

others did not. Tr. 22. Physicians who 

held DEA registrations ‘‘lent their DEA 

numbers for the filling of * * * 

prescriptions.’’ Id. However, the actual 

creation of the prescriptions ‘‘appear[ed] 

to have been done by a physician’s 

assistant frequently without the 

knowledge of the physician.’’ Id. 

Between June and August 2006, DEA 

Investigators from the Cleveland District 

Office made four undercover purchases 

of 10 mg. strength hydrocodone drugs 

by accessing several unidentified Web 

sites, completing questionnaires, 

providing medical records, and 

speaking with a physician’s assistant. 

Id. at 23. The shipments of hydrocodone 

medication arrived via either UPS or 

FedEx and had been filled by 

Respondent. Id. at 23–24. Moreover, at 

some unspecified date in either 2005 or 

2006, a DEA Diversion Investigator went 

to Respondent and interviewed its 

owners. Tr. 82. 

Approximately one year later, on July 

30, 2007, a search warrant was executed 

at Respondent and five other locations. 

Id. at 34; GX 5, at 1. During the search, 

another DI interviewed Robert Bruce 

Liddy, Sr.; the DI subsequently provided 

an affidavit about that interview. 

According to the affidavit, Mr. Liddy 

was first approached by the owner of 

Express Relief Services (ERS) in 

December 2004. GX 5, at 1. The owner 

of ERS was ‘‘seeking a pharmacy to fill 

prescriptions generated from his 

‘network of physicians’ in the 

telemedicine field.’’ Id. At a dinner 

meeting, ERS’s owner explained that 

Respondent would ‘‘receive 

prescriptions via facsimile directly from 

the doctor’s [sic] office’’ and be paid a 

‘‘’dispensing fee of $28–$30 for each’’ 

prescription it filled. Id. Respondent 

received ‘‘approximately 500–750 new 

prescriptions per week’’ from ERS’s 

Web site and also filled requests for 

refills. Id. According to the affidavit, 

‘‘Mr. Liddy stated that at one point his 

pharmacy would fill more than 180 

prescriptions a [sic] day for Express 

Relief Services’’ for such drugs as 

hydrocodone, alprazolam and 

carisoprodol, with the vast majority of 

the prescriptions being for hydrocodone 

products. Id. 

Mr. Liddy told the DI that Respondent 

received the prescriptions directly from 

the prescribing physicians, among them 

one Dr. Jorge Alsina. Id. at 2. Mr. Liddy 

further told the DI that the owner of 

ERS, whom Mr. Liddy believed to be 

‘‘addicted to hydrocodone,’’ would 

‘‘pick up hydrocodone prescriptions for 

himself and ‘his friends,’ ’’ and that 

these prescriptions were also written by 

the doctors who worked for ERS. Id. 

During the interview, Mr. Liddy 

stated that, while he worked for ERS, he 

also contracted with other Internet Web 

sites to fill prescriptions for them. Id. 

Also at the interview, Mrs. Liddy 

‘‘revealed that [Respondent] was also 

working with Opti Health, First Priority, 

Nationwide Pills, Pharmanet, U.S. 

Meds, and CDR.’’ Id. 

Mr. Liddy asserted that he had a 

pharmacy license ‘‘in each state where 

he had out-of-state customers.’’ Id. He 

also claimed that he was not breaking 

the law ‘‘because he believed there were 

safeguards in place against the wrong 

people getting the drugs.’’ Id. He further 

stated his belief that ‘‘‘people will get 

the drugs’’’ anyway and that he ‘‘‘was 

not the prescription police.’’’ Id. 

During the execution of the search 

warrant, Respondent’s dispensing 

records were seized by downloading 

them from the hard drives of its 

computer system. Tr. 53, 55, 97. The 

Government introduced into evidence 

both summaries of data seized at the 

execution of the search warrant 

prepared by the National Drug 

Intelligence Center (NDIC) and DEA’s 

forensic digital laboratory in Lorton, 

Virginia, as well as data from DEA’s 

Automated Reports and Consummated 

Order System (ARCOS) which showed 

the monthly amounts of hydrocodone 

(in dosage units) which Respondent 

purchased between January 1, 2004 and 

September 16, 2008. Id. at 91 & 95; GX 

3. The latter showed that Respondent’s 

purchases of hydrocodone increased 

from a total of 47,900 dosage units in 

calendar year 2004, to 3,688,500 dosage 

units in 2005, and to 4,557,840 in 2006. 

GX 3. 

Dr. Jorge Alsina was listed as a 

prescribing physician in records seized 

from Respondent. Id. at 42–43; GXs 13, 

14 & 19. Dr. Alsina was licensed to 

practice medicine only in the State of 

Florida. Tr. 43. Initially, he received 

$1,000 per week for writing 

prescriptions for Respondent; 

subsequently, according to the DI, he 

received $2,000 per week. Id. at 58–59. 

The DI further testified as to manner 

in which ERS operated. According to 

the DI, an ERS clerk would request 

medical records and a copy of a driver’s 

license from a customer; the records 

were then faxed to either Dr. Alsina or 

to Mr. Folder, who was a physician’s 

assistant. However, in an interview, Dr. 

Alsina stated that he did not have a 

registered supervisory relationship with 

Folder as required by Florida law. Id. at 

60–63. 

Dr. Alsina also ‘‘did not necessarily 

review’’ the medical records which he 

would fax to the physician’s assistant; 

Alsina would also e-mail the 

prescription to Folder as well. Id. at 64– 

65; 67. However, according to Dr. 

Alsina, sometimes his part in the e-mail 


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2The Government’s evidence lists the 

prescriptions as being in one of three categories: 

hydrocodone, alprazolam, or ‘‘other’’ medications. 

GX 14. The evidence does not, however, further 

identify the drugs listed under ‘‘other’’ medications 

and whether this category includes any controlled 

substances. See GXs 14–20. 

3As the ALJ noted in her recommended decision, 

there is a slight discrepancy between the raw data 

in Government Exhibit 13 and the NDIC-prepared 

data in Government Exhibit 19, the source cited 

here. See ALJ at 9 n.8. The count in Government 

Exhibit 13 for Kentucky is 2,345 and not 2,346. 

Other discrepancies are as follows: Alabama, 632, 

not 633; Florida, 424, not 425; and California, 310, 

not 311. See id. I concur in the ALJ’s determination 

that, while ‘‘the Government’s calculated exhibits 

may be slightly inaccurate,’’ they nevertheless ‘‘are 

sufficiently close to the actual numbers’’ for the 

purposes of this decision. See id. 

4The ALJ treated all of the prescriptions as if they 

were for controlled substances including those 

listed as ‘‘other’’ drugs and which were not 

specifically identified as being for controlled 

substances. See ALJ at 9 (FOF 19 and 20) 

(discussion of ‘‘Unlicensed Practice of Medicine’’). 

However, even after subtracting out all of the 

‘‘other’’ prescriptions, it is still clear that the 

physicians wrote numerous controlled substance 

prescriptions for residents of States where they 

were not licensed. The ALJ’s error is therefore 

inconsequential. See ALJ at 20–21. 

5He also issued eight prescriptions to individuals 

in Florida, for a total of 359 prescriptions on that 

date. GX 20, at 48. 

6The ALJ did not count the prescriptions listed 

under February 1, 2006 and July 26, 2006, noting 

that the ‘‘date filled’’ for those prescriptions is one 

year earlier in 2005, when Dr. Alsina’s license was 

still valid. Like the ALJ, I conclude that the dates 

of February 1 and July 26, 2006 are typographical 

errors. See ALJ at 10 n.12. 

chain was skipped and the prescription 

was sent directly from the physician’s 

assistant to Respondent. Id. Alsina 

indicated that ERS had a template with 

his signature so that with the ‘‘hit[ing] 

of a button,’’ his signature could be 

generated by either himself or Folder. 

Id. at 69, 70. 

The Government introduced into 

evidence eight prescriptions for 

controlled substances that were sent as 

e-mail attachments from ‘‘Matthew and 

Gayle Folder’’ to ‘‘Bruce Liddy.’’ GX 4, 

at 2, 4, 8, 10, 12, 14, 18, and 20. All of 

the prescriptions were dated March 19, 

2005 and bore Dr. Alsina’s electronic 

signature. See id. The DI testified that 

these prescriptions were ‘‘representative 

of the vast majority of the prescriptions 

that were seized from [Respondent’s] 

computers.’’ Id. at 85. 

The Government also entered into 

evidence an e-mail dated September 10, 

2004, from Danna E. Droz, Executive 

Director, Board of Pharmacy, State of 

Florida, to Mr. Liddy at the e-mail 

address: bruce@discountmailmeds.com. 

GX 11. The e-mail specifically 

explained that ‘‘[e]lectronic 

prescriptions such as would come from 

a PDA or a computer to a pharmacy’s 

fax machine or to a pharmacy’s 

computer may be used only for 

prescriptions for non-controlled 

substances.’’ GX 11. Continuing, Ms. 

Droz explained that ‘‘[a] prescription for 

a controlled substance must be 

manually signed at this time.’’ Id.; Tr. 

87. While the e-mail further noted that 

DEA is in the process of developing 

regulations to permit the electronic 

transfer of a prescription,’’ GX 11, the 

requirement that a controlled substance 

prescription be manually signed 

remained in effect as of the date of the 

hearing under the regulations of both 

DEA and the State of Florida. Tr. 88. 

The DI testified that the ‘‘vast 

majority’’ of the seized prescriptions did 

not comply with the manual signature 

requirement. Id. Moreover, the eight 

prescriptions contained in Government 

Exhibit 4 were issued subsequent to the 

date on which Mr. Liddy received 

notice that controlled substance 

prescriptions must be manually signed. 

Based on the records seized from 

Respondent, the NDIC prepared a chart 

compiling the number of prescriptions 

dispensed by Respondent by each 

prescriber for hydrocodone, alprazolam 

and other drugs. GX 14. According to 

the chart, Respondent filled 19,447 

prescriptions which were written by Dr. 

Alsina; 12,796 of the prescriptions were 

for hydrocodone products and 5,860 

were for alprazolam. GX 14, at 1; GX 15. 

Only 791 prescriptions were for other 

drugs, some of which may have also 

been controlled substances.2 GX 14, at 

1. 

Moreover, between October 2004 and 

the end of December 2005, Respondent 

dispensed prescriptions written by Dr. 

Alsina to patients in such states as West 

Virginia (4,308 prescriptions), 

Tennessee (4,307 prescriptions), Ohio 

(2,455 prescriptions), Kentucky (2,346 

prescriptions),3 Virginia (2,345 

prescriptions), Alabama (633 

prescriptions), Florida (425 

prescriptions), California (311 

prescriptions), Indiana (275 

prescriptions), and North Carolina (177 

prescriptions). GX 19, at 1; GX 20, at 1– 

68.4 Even if all of the remaining 791 

prescriptions which were not 

specifically identified as being for 

controlled substances were for noncontrolled drugs and are subtracted 

from the various state figures, the 

evidence still shows that Dr. Alsina 

prescribed large quantities of controlled 

substances to individuals in West 

Virginia, Tennessee, Ohio, Kentucky, 

and Virginia, if not the other States as 

well. 

As an example of Dr. Alsina’s 

prescribing of controlled substances 

across state lines, on July 6, 2005, he 

issued 351 prescriptions 5 to residents of 

various States and in the following 

quantities: West Virginia (98), 

Tennessee (98), Virginia (65), Ohio (58), 

Alabama (6), North Carolina (5), Arizona 

(4), Michigan (4), Indiana (3), Georgia 

(2), Arizona (1), Connecticut (1), 

Maryland (1), New Hampshire (1), and 

Utah (1). GX 20, at 48. Obviously, Dr. 

Alsina did not fly or drive all over the 

country on a single day to conduct 

physical exams on these patients. Nor 

does it seem likely that any of these 

patients travelled from all over the 

country to see him (this was, after all, 

an internet-based operation). In any 

event, seeing 351 patients in a single 

day would be a remarkable achievement 

for any physician. I therefore find that 

Respondent either had to have known, 

or willfully closed its eyes to the fact, 

that Dr. Alsina could not possibly have 

issued all of these prescriptions 

pursuant to a legitimate doctor-patient 

relationship. 

DEA suspended Dr. Alsina’s 

Certificate of Registration on September 

26, 2005. Tr. 44–45; GX 10. Dr. Alsina 

notified Respondent of this fact by an email of October 5, 2005, which 

Respondent acknowledged with another 

e-mail of the same date. Tr. 47–48; GX 

12. However, Respondent’s records 

reflect that through December 2005, 

Respondent continued to fill 

prescriptions issued using Dr. Alsina’s 

registration. GX 20, at 66–68. More 

specifically, it appears that Respondent 

filled 67 prescriptions from the time of 

the suspension through the end of 

December 2005. GX 20; GX 13; see also 

ALJ at 9 n.10.6 However, the 

Government’s evidence does not 

identify what drugs these prescriptions 

were for. 

Respondent’s pharmacy records also 

listed Dr. Dora Fernandez as a 

prescribing physician. Tr. 43; GXs 13– 

14, 19 & 20. Dr. Fernandez is only 

licensed to practice medicine in the 

State of Florida. Tr. 43. 

The NDIC data indicate that Dr. 

Fernandez wrote a total of 13,603 

prescriptions which were filled by 

Respondent. Of these, 3,242 were for 

hydrocodone, 60 were for alprazolam, 

and 301 were for other medications. GX 

14, at 1; GX 15. Between February 2006 

and the end of April 2007, Respondent 

dispensed prescriptions written by Dr. 

Fernandez to individuals in numerous 

States, in the following quantities: 

Florida (1,448 prescriptions), Texas 

(1,387 prescriptions), Alabama (856 

prescriptions), Virginia (837 

prescriptions), New York (702 

prescriptions), Washington (690 

prescriptions), Michigan (652 

prescriptions), Pennsylvania (497 

prescriptions), Ohio (476 prescriptions) 


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7She additionally issued seven prescriptions to 

individuals in the State of Florida. GX 20, at 152. 

and Georgia (467 prescriptions). See 

GXs 19, at 1, & GX 20, at 68–195. Even 

if all of the remaining 301 prescriptions 

which were not specifically identified 

as being for controlled substances were 

for non-controlled drugs, Dr. Fernandez 

prescribed controlled substances to 

residents of each of these ten States. 

Moreover, she also prescribed 

controlled substances to residents of at 

least nine States where she did not 

possess licensure and could not practice 

medicine. 

As an example of her prescribing 

across state lines, on November 13, 

2006, Dr. Fernandez issued 91 

prescriptions.7 GX 20, at 152–53. The 

States and number of prescriptions are 

as follows: New York (11), Michigan (8), 

Arizona (7), Georgia (7), Alabama (6), 

Texas (6), Virginia (5), Washington (5), 

Connecticut (4), Ohio (3), Wisconsin (3), 

Arkansas (2), Colorado (2), Indiana (2), 

Kansas (2), Pennsylvania (2), Alaska (1), 

California (1), Iowa (1), Idaho (1), 

Minnesota (1), Montana (1), New 

Mexico (1), Oklahoma (1), Oregon (1), 

Rhode Island (1), and South Carolina 

(1). 

Given the respective locations of Dr. 

Fernandez and those she prescribed to, 

it is implausible that Dr. Fernandez 

conducted physical examinations of 

these persons and established bona fide 

doctor-patient relationships with them. 

Here again, Respondent clearly had 

reason to know that Dr. Fernandez 

could not have established a bona fide 

doctor-patient relationship with these 

persons. Tr. 43–44. 

Respondent’s records also listed Dr. 

Jose Mercado Francis as a prescribing 

physician. Tr. 43; GXs 13–15, 19 & 20. 

Dr. Francis is only licensed to practice 

medicine in the State of Michigan. 

The NDIC data indicates that Dr. 

Francis wrote 7,319 prescriptions which 

were filled by Respondent, including 

5,135 for hydrocodone products, 1,135 

for alprazolam, and 1,049 for other 

medications. GX 14, at 1. Between 

February 2006 and the end of April 

2007, Respondent dispensed 

prescriptions written by Dr. Francis to 

individuals in a number of States, the 

top ten being as follows: Alabama (1,294 

prescriptions), California (568 

prescriptions), Louisiana (518 

prescriptions), Texas (486 

prescriptions), Washington (456 

prescriptions), Ohio (404 prescriptions), 

Florida (386 prescriptions), Georgia (337 

prescriptions), Virginia (272 

prescriptions), and Maine (268 

prescriptions). GXs 19, at 1; GX 20, at 

195–270. Again, even assuming that all 

of the non-specified prescriptions were 

for non-controlled drugs and subtracting 

them out, Dr. Francis still clearly issued 

numerous controlled substance 

prescriptions to residents of Alabama. 

As an example of his prescribing 

across state lines, on March 3, 2006, Dr. 

Francis issued thirty prescriptions to 

residents of the following States: 

Georgia (7), South Carolina (4), Florida 

(3), Maryland (3), Ohio (3), California 

(2), Indiana (2), Louisiana (2), Colorado 

(1), Maine (1), North Carolina (1), and 

Texas (1). GX 20, at 196. Clearly, Dr. 

Francis could not have established bona 

fide doctor-patient relationships with 

these patients or performed physical 

examinations on them. Here again, 

Respondent, when it filled these 

prescriptions, had reason to know this. 

Respondent’s records list Dr. Edward 

Cheslow as a prescribing physician. Tr. 

44; GXs 13–14, 19–20. Dr. Cheslow is 

only licensed to practice in the State of 

New York. Tr. 44. 

NDIC data show that Dr. Cheslow 

wrote 6,577 prescriptions which were 

filled by Respondent; of these, 6,362 

were for hydrocodone products, 36 were 

for alprazolam, and 179 were for other 

medications. GX 14, at 1. From February 

2006 through May 1, 2007, Dr. Cheslow 

wrote prescriptions for medications 

which were filled by Respondent for 

residents of numerous States, the top 

ten being California (2,831 

prescriptions), Texas (349 

prescriptions), Florida (299 

prescriptions), Georgia (232 

prescriptions), New York (206 

prescriptions), New Jersey (185 

prescriptions), Ohio (177 prescriptions), 

Washington (168 prescriptions), 

Virginia (162 prescriptions), and 

Alabama (140 prescriptions). GX 19, at 

1–2; GX 20, at 270–343. Subtracting out 

the 179 prescriptions for ‘‘other’’ 

medication, the evidence still shows 

that Dr. Cheslow wrote controlled 

substance prescriptions for individuals 

in California, Texas, Florida, Georgia, 

and New Jersey. 

As an example of Dr. Cheslow’s daily 

prescribing, on October 23, 2006, he 

issued thirty prescriptions to residents 

of States where he was not licensed to 

practice as follows: California (16), 

Texas (3), Florida (2), Mississippi (2), 

Alabama (1), Maine (1), Minnesota (1), 

New Jersey (1), Ohio (1), Utah (1), and 

Virginia (1). GX 20, at 305. Again, 

Respondent dispensed these 

prescriptions having reason to know 

that Dr. Cheslow was prescribing to 

persons who resided in States where he 

was not licensed to practice medicine 

and that he was prescribing to persons 

he did not physically examine and with 

whom he did not establish a bona fide 

doctor-patient relationship. 

Respondent’s records list Dr. Gerard 

Romain as a prescribing physician. Tr. 

44; GXs 13–14, 19–20. Dr. Romain is 

only licensed to practice medicine in 

the State of Florida. Tr. 44. 

The NDIC data indicate that 

Respondent filled 6,121 prescriptions 

issued by Dr. Romain, of which 5,103 

were for hydrocodone products, 681 

were for alprazolam, and 337 were for 

other medications. GX 14, at 2. Between 

May 2004 and June 18, 2007, 

Respondent dispensed prescriptions 

issued by Dr. Romain to individuals in 

numerous States, the top ten being as 

follows: Virginia (672 prescriptions), 

California (433 prescriptions), West 

Virginia (367 prescriptions), Ohio (354 

prescriptions), Florida (339 

prescriptions), Tennessee (321 

prescriptions), Alabama (309 

prescriptions), Texas (294 

prescriptions), Georgia (231 

prescriptions), and Indiana (205). GXs 

19, at 2, & 20, at 428–517. Again, even 

if the 337 prescriptions for other 

medications were for non-controlled 

drugs, at a minimum, Dr. Romain 

prescribed controlled substances to 

residents of Virginia, California, West 

Virginia, and Ohio, and likely other 

States as well. 

As an example of Dr. Romain’s daily 

prescribing, on September 23, 2005, he 

issued twenty-two prescriptions to 

individuals in the following States: 

West Virginia (6), Virginia (5), Ohio (3), 

California (2), Washington (2), Alabama 

(1), Connecticut (1), Kansas (1), and 

Texas (1). GX 20, at 435. Again, in 

filling these prescriptions, Respondent 

had reason to know that Dr. Romain did 

not physically examine the patients and 

could not have established bona fide 

doctor-patient relationships with them. 

Respondent’s pharmacy records also 

list Dr. Felix Llamido as a prescribing 

physician. Tr. 44; GXs 13–14; GXs 19– 

20, at 343–428. Dr. Llamido is only 

licensed to practice in the State of 

Florida. Tr. 44. 

According to the NDIC data, 

Respondent filled 6,481 prescriptions 

written by Dr. Llamido, of which 6,290 

were for hydrocodone products, 32 were 

for alprazolam, and 159 for other 

medications. GX 14, at 1. Between 

February 2006 and the end of April 

2007, Respondent dispensed 

prescriptions written by Dr. Llamido to 

patients in numerous States, the top ten 

being California (766 prescriptions), 

New Jersey (582 prescriptions), Georgia 

(550 prescriptions), Massachusetts (518 

prescriptions), Maryland (470 

prescriptions), Texas (363 

prescriptions), Illinois (350 


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8There appear to be some typographical errors in 

GX 20, page 535. The page lists a prescription on 

December 30, 2006 and then jumps to three 

prescriptions supposedly written in November 2008 

and one prescription in December 2008. GX 20, at 

535. Obviously, that would be impossible, as the 

four prescriptions in 2008 would postdate the 

execution of the search warrant of July 30, 2007. 

9This Agency has repeatedly held that the 

possession of a valid state license is not dispositive 

of the public interest inquiry. See Patrick W. 

Stodola, 74 FR 20727, 20730 n.16 (2009); Robert A. 

Leslie, 68 FR at 15230. DEA has long held that ‘‘the 

Controlled Substances Act requires that the 

Administrator * * * make an independent 

determination as to whether the granting of 

controlled substances privileges would be in the 

prescriptions), Florida (302 

prescriptions), New Hampshire (215 

prescriptions), and Washington (175 

prescriptions). GX 14, at 2; GX 20 at 

343–428. Thus, at a minimum, Dr. 

Llamido issued controlled substance 

prescriptions to individuals in 

California, New Jersey, Georgia, 

Massachusetts, Maryland, Texas, 

Illinois, New Hampshire and 

Washington. 

As an example of his daily 

prescribing, on March 27, 2006, Dr. 

Llamido issued thirty-nine prescriptions 

to residents of the following states: 

California (6), Maryland (5), New 

Hampshire (3), Ohio (3), Pennsylvania 

(3), New Jersey (2), Texas (2), Virginia 

(2), Washington (2), West Virginia (2), 

Connecticut (1), Georgia (1), Hawaii (1), 

Indiana (1), Minnesota (1), Mississippi 

(1), Oklahoma (1), Utah (1), and 

Wisconsin (1). GX 20, at 350. Again, 

Respondent had reason to know that Dr. 

Llamido could not have performed 

physical examinations on these patients 

and did not have bona fide doctorpatient relationships with them. 

Finally, Respondent’s pharmacy 

records listed Dr. Caroline Moore as a 

prescribing physician. Tr. 44; GXs 13– 

14, 19–20, at 517–35. Dr. Moore is 

licensed only in the State of Florida. Tr. 

44. 

The NDIC data shows that 

Respondent filled 2,687 prescriptions 

written by Dr. Moore, including 1,884 

for hydrocodone products, 659 for 

alprazolam, and 144 for other 

medications. GX 14, at 1–2. From 

January 2, 2005 through the end of 

December 2006,8 Dr. Moore issued 

prescriptions to individuals in 

numerous States, the top ten including 

West Virginia (790), Ohio (463), Virginia 

(422), Alabama (106), California (94), 

Florida (89), Tennessee (70), Texas (57), 

Georgia (53), and Indiana (44). GXs 19, 

at 2, & 20, at 517–35. Again, even 

subtracting out the 144 prescriptions for 

other medications, Dr. Moore clearly 

issued controlled substance 

prescriptions to individuals in West 

Virginia, Ohio, and Virginia. 

As an example of Dr. Moore’s out-ofstate prescribing practices, on November 

21, 2005, she issued seventy-two 

prescriptions to residents in States other 

than Florida, as follows: West Virginia 

(22), Ohio (14), California (10), Virginia 

(3), Georgia (2), Indiana (2), 

Massachusetts (2), Missouri (2), North 

Carolina (2), New Jersey (2), New York 

(2), Pennsylvania (2), Texas (2), 

Arkansas (1), Arizona (1), Illinois (1), 

Oklahoma (1), and Washington (1). GX 

20, at 524. Given the geographically 

diverse locations of Dr. Moore’s 

‘‘patients,’’ in filling these prescriptions, 

Respondent clearly had reason to know 

that Dr. Moore did not physically 

examine them and did not establish 

bona fide doctor-patient relationships 

with them. 

The Government also entered into 

evidence a letter from Robert Bruce 

Liddy, Sr., to Peter A. Grasso, Chief 

Compliance Investigator, New 

Hampshire Board of Pharmacy, dated 

November 18, 2005. GX 9. In the letter, 

Mr. Liddy wrote that Respondent did 

not ‘‘solicit prescription sales [from] the 

State of New Hampshire or any other 

state outside of Florida.’’ Id. He also 

indicated that Respondent had ‘‘three 

customers who winter in Florida and 

reside in New Hampshire during the 

summer months.’’ Id. According to Mr. 

Liddy, Respondent’s records showed 

that Respondent had ‘‘mailed 3 

packages to New Hampshire in the past 

two years’’ of its operation. Id. Mr. 

Liddy added that ‘‘[i]f in the future I 

increase or determine it beneficial for 

my business to advertise or solicit for 

prescription sales in your state I will 

certainly abide by the guidelines set 

forth by the New Hampshire Board of 

Pharmacy for Non-Resident Pharmacy 

licensure.’’ Id. 

The Government submitted into 

evidence data showing that between 

May 25, 2004 and May 14, 2007, 

Respondent dispensed a total of 472 

prescriptions to New Hampshire 

residents; the evidence also shows that 

Respondent dispensed twenty-four 

prescriptions prior to the date of the 

above-referenced letter. GX 18, at 1, 11. 

Moreover, prior to Mr. Liddy’s letter, 

Respondent had dispensed seven 

prescriptions for controlled substances 

(as well as refills for several of the 

prescriptions) for drugs which included 

alprazolam, temazepam, hydrocodone, 

and oxycodone. See GX 13 (spreadsheet 

lines ## 10930 (alprazolam), 25397 

(oxycodone/acetaminophen), 45243–45, 

46893–95, 53407–09, and 68484–86 (all 

for hydrocodone/acetaminophen and 

including two refills) and 55611 

(temazepam)). Moreover, subsequent to 

Liddy’s letter, Respondent continued to 

dispense controlled substance 

prescriptions (typically for 

hydrocodone) to New Hampshire 

residents. See, e.g. id. (spreadsheet lines 

## lines 109622–23, 110538–39, 112493, 

112502, 115778). 

Respondent rested without calling 

any witnesses or introducing any other 

evidence. Moreover, as noted above, 

when called to testify by the 

Government, Respondent’s owners 

invoked their privilege under the Fifth 

Amendment and refused to answer any 

questions regarding their ownership of 

Respondent, the pharmacy’s operations 

and its association with various Web 

sites. Tr. 12–13 (testimony of Robert 

Bruce Liddy, Sr.); id. at 15–16 

(testimony of Melinda Carol Liddy). 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) provides that 

‘‘[t]he Attorney General may deny an 

application for [a practitioner’s] 

registration if he determines that the 

issuance of such registration would be 

inconsistent with the public interest.’’ 

21 U.S.C. 823(f). In determining the 

public interest, section 303(f) directs 

that the following factors be considered: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * 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 and safety. 

Id. 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 68 

FR 15227, 15230 (2003). I ‘‘may rely on 

any one or a combination of factors, and 

may give each factor the weight [I] 

deem[] appropriate in determining 

whether a registration should be 

revoked or an application should be 

denied.’’ Id. 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); see also Morall v. 

DEA, 412 F.3d 165, 173–74 (DC Cir. 

2005). 

Having considered all of the factors, I 

conclude that the evidence pertaining to 

factors two and four is dispositive and 

establishes that Respondent has 

committed acts which render the 

issuance of a registration to it 

‘‘inconsistent with the public interest.’’ 9


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public interest.’’ Mortimer Levin, 57 FR 8680, 8681 

(1992). Nor is the lack of any criminal convictions 

related to controlled substances dispositive. 

Edmund Chein, 72 FR 6580, 6593 n.22 (2007). 

Thus, the fact that Respondent may still hold its 

Florida pharmacy license and that neither it, nor its 

owners, have been convicted of a criminal offense 

is not dispositive. 

10As the Supreme Court has explained, ‘‘the 

prescription requirement * * * ensures patients 

use controlled substances under the supervision of 

a doctor so as to prevent addiction and recreational 

abuse. As a corollary, [it] also bars doctors from 

peddling to patients who crave the drugs for those 

prohibited uses.’’ Gonzales v. Oregon, 546 U.S. 243, 

274 (2006) (citing United States v. Moore, 423 U.S. 

122, 135, 143 (1975)). 

11All cited statutes were enacted and in effect at 

the time of the conduct in question. 

21 U.S.C. 823(f). I also find that 

Respondent has not rebutted the 

Government’s prima facie showing. 

Accordingly, Respondent’s pending 

application to renew its registration will 

be denied. 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Its Compliance With 

Applicable Federal, State and Local 

Laws Relating to Controlled Substances 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is unlawful unless it has been ‘‘issued 

for a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). Moreover, 

while ‘‘[t]he responsibility for the 

proper prescribing and dispensing of 

controlled substances is upon the 

prescribing practitioner * * * a 

corresponding responsibility rests with 

the pharmacist who fills the 

prescription.’’ Id. Accordingly, the 

‘‘person knowingly filling such a 

purported prescription, as well as the 

person issuing it, [is] subject to the 

penalties provided for violations of the 

provisions of laws relating to controlled 

substances.’’ 10 Id. 

The Agency has interpreted this 

regulation as ‘‘prohibiting a pharmacist 

from filling a prescription for controlled 

substances when he either ‘knows or 

has reason to know that the prescription 

was not written for a legitimate medical 

purpose.’ ’’ Trinity Healthcare Corp., 72 

FR 30849, 30854 (2007) (quoting MedicAid Pharmacy, 55 FR 30043, 30044 

(1990)); see also United Prescription 

Services, Inc., 72 FR 50397, 50407 

(2007); Frank’s Corner Pharmacy, 60 FR 

17574, 17576 (1995); Ralph J. Bertolino, 

55 FR 4729, 4730 (1990); see also United 

States v. Seelig, 622 F.2d 207, 213 (6th 

Cir. 1980). The Agency has further held 

that ‘‘[w]hen prescriptions are clearly 

not issued for legitimate medical 

purposes, a pharmacist may not 

intentionally close his eyes and thereby 

avoid [actual] knowledge of the real 

purpose of the prescription.’’ Bertolino, 

55 FR at 4730 (citations omitted); see 

also United Prescription Services, 72 FR 

at 50407. 

As I explained in United Prescription 

Services, ‘‘when a pharmacy receives a 

prescription which indicates that the 

prescriber and patient are located 

nowhere near each other, it should be 

obvious that further inquiry is 

warranted to determine whether the 

prescription was issued pursuant to a 

valid doctor-patient relationship.’’ 72 

FR at 50409. ‘‘Determining whether a 

physician has acted in accordance with 

this standard necessarily requires that 

the pharmacist have knowledge of the 

applicable State’s law.’’ 72 FR at 50405 

n.19 (citing United States v. Smith, 2006 

WL 3702656 (D. Minn. 2006)). 

Moreover, ‘‘[a] physician who engages 

in the unauthorized practice of 

medicine is not a ‘practitioner acting in 

the usual course of * * * professional 

practice.’ ’’ United, 72 FR at 50407 

(quoting 21 CFR 1306.04(a)). Under the 

CSA, the ‘‘term ‘practitioner’ means a 

physician * * * licensed, registered, or 

otherwise permitted, by the United 

States or the jurisdiction in which he 

practices * * * to * * * dispense 

* * * a controlled substance.’’ 21 

U.S.C. 802(21); see also 21 U.S.C. 823(f) 

(‘‘The Attorney General shall register 

practitioners * * * to dispense * * * if 

the applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices’’). 

Consistent with the statutory text, 

shortly after the CSA’s enactment, the 

Supreme Court explained that ‘‘[i]n the 

case of a physician, [the Act] 

contemplates that he is authorized by 

the State to practice medicine and to 

dispense drugs in connection with his 

professional practice.’’ United States v. 

Moore, 423 U.S. 122, 140–41 (1975). 

Accordingly, a controlled substance 

prescription issued by a physician who 

lacks the license necessary to practice 

medicine within a State is therefore 

unlawful under the CSA. Cf. 21 CFR 

1306.03(a)(1) (‘‘A prescription for a 

controlled substance may be issued only 

by an individual practitioner who is 

* * * [a]uthorized to prescribe 

controlled substances by the jurisdiction 

in which he is licensed to practice his 

profession’’); see also United 

Prescription Services, 72 FR at 50407. 

As found above, Respondent 

dispensed millions of dosage units of 

hydrocodone (a schedule III controlled 

substance, see 21 CFR 1308.13(e)) and 

alprazolam (a schedule IV controlled 

substance, see 21 CFR 1308.14(c)), based 

on prescriptions issued by physicians 

who were prescribing to persons who 

resided in States where the physicians 

were not licensed to practice medicine 

(although they were required to be) and 

were thus engaged in the unauthorized 

practice of medicine. The prescriptions 

violated both the CSA and the laws of 

the respective States including, inter 

alia, Alabama, California, Georgia, 

Indiana, North Carolina, Ohio, Texas, 

and Virginia. See Ala. Code §§ 34–24–50 

(defining practice of medicine to 

include prescribing), 34–24–51 

(requiring a license for the practice of 

medicine), 34–24–502 (requiring special 

license for practice of medicine across 

state lines); Cal. Bus. & Prof. Code 

§§ 2052 (criminalizing the practice of 

medicine without state license); Ga. 

Code Ann. §§ 43–34–26(a) (requiring 

license), 43–34–31 (requiring state 

license for medical treatment of 

individual in state by physician in 

another state); Ind. Code Ann. §§ 25– 

22.5–8–1 (prohibiting the practice of 

medicine without a state license) & 25– 

22.5–1–1.1(a) (defining practice of 

medicine); N.C. Gen. Stat. Ann. § 90–18 

(prohibiting practice of medicine across 

state lines unless licensed in state); 

Ohio Rev. Code Ann. §§ 4731.296 

(prohibiting out-of-state practice of 

telemedicine without a special permit), 

4731.41 (prohibiting practice of 

medicine without state license); Tex. 

Occup. Code Ann. §§ 155.001 (requiring 

license to practice medicine), 151.056(a) 

(making out-of-state treatment of 

individual in state the practice of 

medicine in state); Va. Code Ann. 

§§ 54.1–2902 (prohibiting practice of 

medicine without state licensure), 54.1– 

2903 (making prescribing the practice of 

medicine), 54.1–2929 (requiring license 

for the practice of medicine).11

As found above, five of the doctors 

whose prescriptions Respondent filled 

were licensed to practice medicine only 

in Florida and yet wrote controlled 

substance prescriptions to residents of 

States where they were unlicensed and 

thus engaged in the unauthorized 

practice of medicine. More specifically, 

the evidence clearly establishes that Dr. 

Alsina wrote controlled substance 

prescriptions for residents of Virginia, 

Ohio, California, Alabama, and Georgia; 

that Dr. Fernandez wrote controlled 

substance prescriptions for residents of 

Texas, Ohio, and Georgia; that Dr. 

Romain wrote controlled substance 

prescriptions to residents of Virginia, 

California, and Ohio; that Dr. Llamido 

wrote controlled substance 

prescriptions for residents of California, 

Georgia, Texas; and that Dr. Moore 

wrote controlled substance 


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12On October 15, 2008, the President signed into 

law the Ryan Haight Online Pharmacy Consumer 

Protection Act of 2008, Public Law 110–425, 122 

Stat. 4820 (2008). Section 2 of the Act prohibits the 

dispensing of a prescription controlled substance 

‘‘by means of the Internet without a valid 

prescription’’ and defines, in relevant part, the 

‘‘[t]he term ‘valid prescription’ [to] mean[] a 

prescription that is issued for a legitimate medical 

purpose in the usual course of professional practice 

by * * * a practitioner who has conducted at least 

1 in-person medical evaluation of the patient.’’ 122 

Stat. 4820 (codified at 21 U.S.C. 829(e)(1) & (2)). 

Section 2 further defines ‘‘[t]he term ‘in-person 

medical evaluation’ [to] mean[] a medical 

evaluation that is conducted with the patient in the 

physical presence of the practitioner, without 

regard to whether portions of the evaluation are 

conducted by other health professionals.’’ Id. 

(codified at 21 U.S.C. 829(e)(2)(B)). These 

provisions do not, however, apply to Respondent’s 

conduct. 

prescriptions for residents of Ohio and 

Virginia, as well as other States. 

The record also establishes that while 

Dr. Francis was licensed to practice 

medicine only in Michigan, he wrote 

controlled substance prescriptions to 

residents of Alabama and other States. 

Finally, while Dr. Cheslow was licensed 

to practice medicine only in New York, 

he wrote controlled substance 

prescriptions in California, Texas, and 

Georgia as well as other States. 

As found above, Respondent filled 

prescriptions written by each of the 

above doctors on a regular basis for a 

lengthy period of time, and in each case, 

Respondent received prescriptions 

(which it filled) which were written by 

a physician on a single day for persons 

located in numerous States in which the 

physicians were not licensed. As 

explained above, ‘‘[a] physician who 

engages in the unauthorized practice of 

medicine is not a ‘practitioner acting in 

the usual course of * * * professional 

practice.’ ’’ United, 72 FR at 50407 

(quoting 21 CFR 1306.04(a)). The 

prescriptions were therefore unlawful 

under the CSA and Respondent had 

ample reason to know that these 

physicians were engaged in the 

unauthorized practice of medicine and 

that the prescriptions they issued were 

unlawful under both Federal and state 

laws. 

In its Exceptions, Respondent invokes 

an Agency rulemaking which clarified 

the registration requirements for 

practitioners to argue that prior to 

January 2, 2007 (when the regulation 

became effective), ‘‘a physician could 

prescribe in any state provided the 

physician held a [DEA] registration in a 

single state.’’ Exceptions at 4 (discussing 

DEA, Final Rule, Clarification of 

Registration Requirements for 

Individual Practitioners, 71 FR 69478 

(Dec. 1, 2006)). Respondent further 

maintains that ‘‘there was no evidence 

produced that [it] was aware that the 

physician may have been acting outside 

the scope of their certificate or aided in 

any way the unlicensed practice of 

medicine by filling prescriptions for 

patients in other states.’’ Id. 

Beyond the fact that Respondent 

simply misstates the Agency’s 

published interpretation of the authority 

conveyed by a DEA registration (and 

which had been published before much 

of the conduct at issue here had 

occurred), its argument conflates two 

separate issues: (1) The requirements for 

holding a DEA registration for a 

particular location, and (2) the licensure 

requirements for prescribing under state 

law. As the Agency explained in its 

Notice of Proposed Rulemaking, ‘‘[t]o be 

valid in a particular jurisdiction, a 

controlled substance prescription must 

be written by a practitioner who 

possesses valid state authority in that 

jurisdiction and, equally important, the 

practitioner must possess a DEA 

registration predicated upon valid state 

authority in that jurisdiction.’’ DEA, 

Notice of Proposed Rulemaking, 

Clarification of Registration 

Requirements for Individual 

Practitioners, 69 FR 70576 (Dec. 7, 2004) 

(emphasis added). 

Contrary to Respondent’s contention 

that there is no evidence that it aided 

the unlicensed practice of medicine, the 

evidence exists in the thousands of 

prescriptions it filled which indicated 

that the patients resided in one State 

and the prescribing physician practiced 

in another. See, e.g., GX 4. Moreover, as 

the California Court of Appeals has 

noted, the ‘‘proscription of the 

unlicensed practice of medicine is 

neither an obscure nor an unusual state 

prohibition of which ignorance can 

reasonably be claimed, and certainly not 

by persons * * * who are licensed 

health care providers. Nor can such 

persons reasonably claim ignorance of 

the fact that authorization of a 

prescription pharmaceutical constitutes 

the practice of medicine.’’ Hageseth v. 

Superior Court, 59 Cal.Rptr.3d 385, 403 

(Ct. App. 2007). As a state-licensed 

pharmacy and participant in the health 

care industry, Respondent (and its 

owners) cannot reasonably claim 

ignorance of the fact that prescribing a 

drug constitutes the practice of 

medicine and that a physician must be 

licensed to do so. 

The controlled substance 

prescriptions Respondent filled were 

unlawful for a further reason. Under the 

CSA, it is fundamental that ‘‘a 

practitioner must establish a bona fide 

doctor-patient relationship in order to 

act ‘in the usual course of * * * 

professional practice’ and to issue a 

prescription for a ‘legitimate medical 

purpose.’ ’’ Patrick W. Stodola, 74 FR 

20727, 20731 (2009) (citing Moore, 423 

U.S. at 141–43). At the time of the 

events at issue here, the CSA generally 

looked to state law to determine 

whether a doctor has established a bona 

fide doctor-patient relationship with an 

individual.12 Stodola, 74 FR at 20731; 

see also Kamir Garces-Mejias, 72 FR 

54931, 54935 (2007); United 

Prescription Services, 72 FR at 50407. 

As explained below, prior to the 

dispensings at issue here, numerous 

States had either enacted legislation or 

promulgated administrative rules which 

generally prohibited (except for in 

narrow circumstances not relevant here) 

a physician from prescribing a 

controlled substance to a person 

without first performing a physical 

examination. 

Since January 2001, California has 

prohibited the prescribing or dispensing 

of a dangerous drug ‘‘on the Internet for 

delivery to any person in this state, 

without an appropriate prior 

examination and medical indication 

therefore, except as authorized by 

Section 2242.’’ Cal. Bus. & Prof. Code 

§ 2242.1. In 2003, the Medical Board of 

California made clear that ‘‘[b]efore 

prescribing a dangerous drug, a physical 

examination must be performed’’ by the 

prescribing physician. In re Steven 

Opsahl, M.D., Decision and Order, at 3 

(Med. Bd. Cal. 2003) (available by query 

at http://publicdocs.medbd.ca.gov/pdl/ 

mbc.aspx). Furthermore, the Medical 

Board of California determined that ‘‘[a] 

physician cannot do a good faith prior 

examination based on a history, a 

review of medical records, responses to 

a questionnaire and a telephone 

conversation with the patient, without a 

physical examination of the patient.’’ Id. 

Moreover, well before Respondent 

commenced to dispense the 

prescriptions at issue here, the Medical 

Board of California had issued 

numerous Citation Orders to out-of-state 

physicians for prescribing over the 

Internet to California residents. These 

Orders invariably cited not only the 

physicians’ failure to perform a ‘‘good 

faith prior examination,’’ but also their 

lack of a ‘‘valid California Physician and 

Surgeon’s License to practice medicine 

in California.’’ Citation Order, Martin P. 

Feldman (August 15, 2003); see also 

Citation Order, Harry Hoff (June 17, 

2003); Citation Order, Carlos Gustavo 

Levy (Jan. 28, 2003); Citation Order, 

Carlos Gustavo Levy (November 30, 

2001). 

Doctors Cheslow, Romain, and 

Llamido all wrote a substantial number 

of controlled substance prescriptions 

based on internet consultations with 


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13This statute was enacted and in effect at the 

time of the conduct in question. 

14 In its Final Order, the Board expressly noted 

that it was responding to the ALJ’s conclusions of 

law in which this reasoning is found. See Final 

Order at 9–10, Department of Health v. RX 

Networks of South Florida, LLC. (Fla. Bd. of Pharm. 

2003). While the Board did not specifically address 

the ALJ’s reasoning that it is ‘‘problematic’’ to 

require a pharmacist to ‘‘determine the validity of 

the patient-physician relationship’’ because 

standards ‘‘differ from state to state,’’ it did note 

that ‘‘pharmacists must be aware of the regulations 

governing those health care practitioners who 

prescribe drugs so that a pharmacist can make a 

reasoned decision as to whether the professional 

standards for legitimate dispensing have been met.’’ 

Id. at 10. 

15 In its Exceptions, Respondent contends that its 

failure to obtain pharmacy licenses for those States 

(other than Florida) which it dispensed into is 

Continued 

California residents which Respondent 

then dispensed. Given the respective 

locations of the physicians (New York 

for Dr. Cheslow and Florida for Drs. 

Romain and Llamido) and the California 

residents, it was obvious that doctors 

Cheslow, Romain and Llamido were not 

performing physical examinations and 

did not establish bona fide doctorpatient relationships with the 

Californians. Respondent and its owners 

had ample reason to know that these 

prescriptions lacked a legitimate 

medical purpose and were issued 

outside of the usual course of 

professional practice and therefore 

violated both state and Federal law. See, 

e.g., Cal. Bus. & Prof. Code § 2242.1; 21 

CFR 1306.04(a). By dispensing the 

prescriptions, Respondent violated its 

corresponding responsibility under 

Federal law. 21 CFR 1306.04(a). 

Similar to California, regulations 

adopted by the States of Ohio and 

Indiana require that a physician perform 

a physical examination of his/her 

patient prior to prescribing a controlled 

substance, except in limited 

circumstances not applicable here. Ind. 

Admin. Code § 5–4–1(a); Ohio Admin 

Code § 4731–11–09(A). Doctors Llamido 

and Moore issued a substantial number 

of prescriptions for controlled 

substances to individuals in Indiana; 

Doctors Alsina, Fernandez, Romain, and 

Moore issued a substantial number of 

controlled substance prescriptions to 

individuals in Ohio. These doctors 

violated Indiana and Ohio law 

respectively, as it is inconceivable that 

they went to Indiana or Ohio to perform 

physical examinations on the patients 

when they were not licensed to practice 

in those States (or that the patients 

travelled to see them) and were also 

issuing numerous prescriptions to the 

residents of multiple States on the same 

day. And as explained above, given the 

respective locations of the patients and 

the physicians, Respondent had reason 

to know that the prescriptions were 

issued outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose. 21 CFR 

1306.04(a). By dispensing the 

prescriptions, Respondent further 

violated the CSA. 

Under Virginia law, a doctor must 

establish a bona fide practitioner-patient 

relationship prior to prescribing a 

controlled substance. Va. Code Ann. 

§ 54.1–3303(A).13 Moreover, Virginia 

law expressly requires that a 

practitioner ‘‘perform or have performed 

an appropriate examination of the 

patient, either physically or by use of 

instrumentation and diagnostic 

equipment through which images and 

medical records may be transmitted 

electronically’’ and that ‘‘except for [in] 

medical emergencies, the examination 

shall have been performed by the 

practitioner himself, within the group in 

which he practices, or by a consulting 

practitioner prior to issuing a 

prescription.’’ Id. 

Doctors Alsina, Fernandez, Romain, 

and Moore, all of whom were licensed 

to practice only in Florida, issued 

controlled substance prescriptions to 

residents of Virginia. Here again, these 

physicians issued prescriptions to 

Virginia residents under circumstances 

which render it inconceivable that they 

met the requirements of Virginia for 

establishing a bona fide doctor-patient 

relationship prior to prescribing the 

controlled substances. These physicians 

thus violated Virginia law. Here again, 

given the respective locations of the 

physicians and the patients, Respondent 

(and its owners) had reason to know 

that these physicians did not establish 

bona fide doctor-patient relationships 

with the individuals to whom they 

prescribed controlled substances and 

that the prescriptions were issued 

outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose as required 

by Federal law. 21 CFR 1306.04(a). By 

filling these prescriptions, Respondent 

again failed to comply with its 

‘‘corresponding responsibility’’ under 

Federal law to dispense only lawful 

prescriptions. Id. 

Respondent simply ignores these 

various state medical practice standards. 

Instead, in its Exceptions, Respondent 

argues that Florida’s telemedicine rule 

‘‘does not require that the physician 

issuing the prescription have a face to 

face consultation with the patient or 

that the physician issuing the 

prescription conduct a physical 

examination, rather that their [sic] be a 

‘documented patient evaluation.’’ 

Exceptions at 3 (quoting Fla. Admin. 

Code Ann. r. 64B8–9.003). However, 

even if it is the case that the State of 

Florida interprets its regulation as 

authorizing a physician to prescribe 

without having personally performed a 

physical examination of a patient, 

Florida has no authority to promulgate 

the standards of medical practice 

applicable in other States for prescribing 

a controlled substance to those States’ 

residents. Thus, even if the 

prescriptions issued by the Floridabased physicians would have been 

lawful if they had been issued to 

residents of Florida, they were still 

illegal under the laws of California, 

Ohio, Indiana and Virginia. 

Finally, Respondent cites to a 

recommended order of a state ALJ in a 

proceeding before the Florida Board of 

Pharmacy to argue ‘‘that it would be 

‘problematic’ to require a pharmacist to 

‘independently determine the validity of 

the patient/physician relationship’ 

because the standards used to determine 

the validity of such a relationship ‘differ 

from state to state.’’’ Exceptions at 3–4 

(quoting Florida Dept. of Health v. RX 

Network of South Florida, 2003 WL 

124675, at *32 (Fla. Div. Admin. Hrgs. 

2003) (Conclusion of Law # 192). 

Continuing, the state ALJ reasoned that 

if Florida law ‘‘were construed to 

require [the pharmacist] to exercise her 

own judgment on this issue, it is unclear 

whether [she] would apply Florida law 

to determine the validity of the 

professional relationship of a physician 

licensed outside of Florida or would 

apply the law of the state where the 

physician is licensed.’’ Rx Network at 

*32. 

To the extent the Florida Board 

adopted the state ALJ’s reasoning,14 its 

holding as to the scope of a pharmacist’s 

duty under Florida law is not binding 

on this Agency’s interpretation of 

Federal law and regulations. Moreover, 

the state ALJ’s reasoning is wholly 

unpersuasive as ‘‘an entity which 

voluntarily engages in commerce by 

shipping controlled substances to 

persons located in other States is 

properly charged with knowledge of the 

laws regarding the practice of medicine 

in those States.’’ United Prescription 

Services, 72 FR at 50407. Just as 

licensed health care providers cannot 

‘‘reasonably claim ignorance’’ of state 

laws prohibiting the unlicensed practice 

of medicine, so too they cannot 

reasonably claim ignorance of various 

States’ laws and rules which establish 

the standards of medical practice for 

prescribing a drug. 

Finally, Respondent violated the laws 

of numerous States by engaging in the 

unauthorized practice of pharmacy.15


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outside of the scope of the proceeding. However, 

‘‘‘[p]leadings in administrative proceedings are not 

judged by the standards applied to an indictment 

at common law.’’’ Citizens State Bank of Marshfield 

v. FDIC, 751 F.2d 209, 213 (8th Cir. 1984) (quoting 

Aloha Airlines v. Civil Aeronautics Bd., 598 F.2d 

250, 262 (DC Cir. 1979)). See also Boston Carrier, 

Inc. v. ICC, 746 F.2d 1555, 1560 (DC Cir. 1984) 

(quoted in Edmund Chein, 72 FR 6580, 6592 n.21 

(2007) (‘‘an agency is not required ‘to give every 

[Respondent] a complete bill of particulars as to 

every allegation that [he] will confront’’)). Thus, the 

failure of the Government to disclose an allegation 

in the Order to Show Cause is not dispositive, and 

an issue can be litigated if the Government 

otherwise timely notifies a respondent of its intent 

to litigate the issue. 

The Agency has thus recognized that ‘‘the 

parameters of the hearing are determined by the 

prehearing statements.’’ Darrell Risner, D.M.D., 61 

FR 728, 730 (1996). Accordingly, in Risner, the 

Agency held that where the Government has failed 

to disclose ‘‘in its prehearing statements or indicate 

at any time prior to the hearing’’ that an issue will 

be litigated, the issue cannot be the basis for a 

sanction. 61 FR at 730. See also Nicholas A. 

Sychak, d/b/a Medicap Pharmacy, 65 FR 75959, 

75961 (2000) (noting that the function of prehearing statements is to provide Due Process 

through ‘‘adequate * * * disclosure of the issues 

and evidence to be submitted in * * * 

proceedings’’); cf. John Stafford Noell, 59 FR 47359, 

47361 (1994) (holding that notice was adequate 

where allegations were not included in Order to 

Show Cause but ‘‘were set forth in the 

Government’s Prehearing Statement’’). 

While the Order to Show Cause did not allege 

that Respondent had failed to obtain the necessary 

pharmacy licenses to dispense to States other than 

Florida, in its supplemental prehearing statement, 

the Government notified Respondent that it 

intended to litigate the issue by eliciting the 

testimony of its owner as to its ‘‘licensure status 

* * * in those jurisdictions where [it] shipped 

controlled substance prescriptions and whether [it] 

was licensed as an out-of-state pharmacy in any 

jurisdiction that required such licensure.’’ Gov. 

Supp. Prehearing Stmt. at 1. The Government also 

notified Respondent that it intended to litigate the 

issue of Respondent’s communications with the 

New Hampshire Board of Pharmacy ‘‘regarding the 

licensure requirement to ship controlled substances 

into that state.’’ Id. 

16These statutes were enacted and in effect at the 

time of the conduct in question. 

17These statutes were enacted and in effect at the 

time of the conduct in question. 

18The evidence does not, however, establish that 

Respondent dispensed controlled substance 

prescriptions issued under the authority of the 

registration held by Dr. Alsina after he notified Mr. 

Liddy (on October 5, 2005) that his registration had 

been suspended. See GX 12. While GX 20 lists 

various dates after October 5, 2005 on which 

Respondent dispensed prescriptions presumably 

authorized by Dr. Alsina, the exhibit does not 

identify what drugs these prescriptions were for. 

Thus, the evidence does not establish that these 

prescriptions were for controlled substances. 

However, given the scope of the violations that have 

been proved, this allegation is inconsequential. 

19 In numerous decisions, DEA has noted the 

serious risk of diversion created by internet 

prescribing and dispensing of controlled substances 

and the threat this poses to public health and safety. 

See Trinity Health Care Corp., 72 FR 30849, 30855 

(2007) (internet pharmacy dispensed more than 

43,000 illegal prescriptions and two million dosage 

units of controlled substances; ‘‘it is manifest that 

diversion on this scale creates an extraordinary 

threat to the public health and safety’’); William R. 

Lockridge, 71 FR 77791, 77799 (2006) (noting that 

internet prescriber ‘‘was a drug dealer’’ and that 

conduct created ‘‘imminent danger to public health 

and safety’’); Mario Avello, 70 FR 11695, 11697 

(2005); cf. Southwood Pharmaceuticals, Inc., 72 FR 

36487, 36504 (2007) (discussing increase in the 

rates of prescription drug abuse and the Internet’s 

‘‘role in facilitating the growth of prescription drug 

abuse’’); see also National Center on Addiction and 

Substance Abuse, ‘‘You’ve Got Drugs!’’ IV: 

Prescription Drug Pushers on the Internet (2007), at 

8 (‘‘[T]he wide availability of dangerous and 

addictive drugs on the Internet reveals a wide-open 

channel of distribution. This easy availability has 

enormous implications for public health, 

particularly the health of our children, since 

research has documented the tight connection 

between availability of drugs to young people and 

substance abuse and addiction.’’). 

For example, New Hampshire law 

requires a pharmacy to obtain a license 

and provides for the licensing of out-ofstate pharmacies licensed elsewhere 

upon the passing of an examination. 

N.H. Rev. Stat. §§ 318:1 (defining 

‘‘pharmacy’’), 318:21 (licensure of outof-state pharmacies), 318:37 (requiring 

license to operate a pharmacy), and 

318:42 (prohibiting the sale of 

prescription drugs by any other than a 

licensed pharmacist in a registered 

pharmacy).16 Nevertheless, even after 

consulting with the state’s Chief 

Compliance Officer, Respondent, 

through Mr. Liddy, continued to 

dispense prescriptions to individuals in 

New Hampshire. Moreover, Liddy’s 

statement that his records showed that 

in the prior two years, his pharmacy had 

only shipped three packages to New 

Hampshire residents, was a bald-faced 

lie. I therefore find that Respondent 

violated New Hampshire law. Indeed, 

Liddy’s continued violation of the law, 

even after being placed on notice, and 

his willingness to lie about his 

misconduct, makes clear that 

Respondent cannot be entrusted with a 

registration. 

Most other States also prohibit an outof-state pharmacy from dispensing 

medication to state residents without 

being licensed to do so. See, e.g., Ark. 

Code Ann. §§ 17–92–301 (prohibiting 

practice of pharmacy without a license) 

& 17–92–302 (prohibiting filling of 

prescription by other than Arkansaslicensed pharmacist); Conn. Gen. Stat. 

Ann. § 20–627 (requiring registration of 

nonresident pharmacies); Cal. Bus. & 

Prof. Code § 4120 (requiring special 

permit for nonresident pharmacies); La. 

Rev. Stat. Ann. § 37:1221 (requiring 

special permit for out-of-state 

pharmacies to provide pharmacy 

services to residents of the state).17

Respondent dispensed prescriptions to 

residents of all of these States without 

holding the pharmacy licenses required 

to do so. See GX 17. I therefore find that 

Respondent violated these laws as well. 

Respondent’s flagrant disregard for the 

rules governing its profession manifests 

that it and its owners cannot be trusted 

to properly comply with Federal law 

and DEA regulations. 

Finally, the evidence shows that 

Respondent violated DEA regulations by 

filling controlled substance 

prescriptions which were unlawful 

because they were not manually signed 

by the prescribing practitioner. Under 

21 CFR 1306.05(a), ‘‘prescriptions shall 

be written with ink or indelible pencil 

and shall be manually signed by the 

practitioner.’’ Moreover, while ‘‘the 

prescribing practitioner is responsible in 

case the prescription does not conform 

in all essential respects to the law and 

regulations[,] [a] corresponding liability 

rests upon the pharmacist * * * who 

fills a prescription not prepared in the 

form prescribed by DEA regulations.’’ 

Id. As the DI testified, the ‘‘vast 

majority’’ of the controlled substance 

prescriptions Respondent filled did not 

comply with this requirement. Tr. 88. 

Rendering these violations especially 

egregious is that Mr. Liddy had been 

previously told by the Executive 

Director of the Florida Board of 

Pharmacy that ‘‘a control substance 

prescription must be manually signed.’’ 

GX 11. Once again, Mr. Liddy’s flagrant 

disregard for the law makes it clear that 

Respondent cannot be entrusted with a 

DEA registration.18

As the forgoing demonstrates, 

Respondent’s experience in dispensing 

controlled substances and its record of 

compliance with applicable controlled 

substance laws is marked by its (and its 

owner’s) repeated and egregious 

violations in dispensing prescriptions 

that were unlawful under both the CSA 

and numerous state laws. I therefore 

hold that the Government has shown 

that Respondent has committed 

numerous acts which render issuing it 

a new registration ‘‘inconsistent with 

the public interest.’’ 19 21 U.S.C. 823(f). 

Sanction 

Under Agency precedent, where, as 

here, ‘‘the Government has proved that 

a registrant has committed acts 

inconsistent with the public interest, a 

registrant must ‘ ‘‘present[] sufficient 

mitigating evidence to assure the 

Administrator that it can be entrusted 

with the responsibility carried by such 

a registration.’’ ’’’ Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23848, 23853 (2007) (quoting Leo R. 

Miller, 53 FR 21931, 21932 (1988))). 

‘‘Moreover, because ‘past performance is 

the best predictor of future 


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1 I note that the Government also cited 21 U.S.C. 

824(a)(3) in both the Order to Show Cause and its 

Motion for Summary Judgment as authority for 

revoking Respondent’s registration. See Order to 

Show Cause, at 2; Mot. for Summ. Judg., at 2–3. 

performance,’ ALRA Labs, Inc. v. DEA, 

54 F.3d 450, 452 (7th Cir. 1995), [DEA] 

has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

its actions and demonstrate that it will 

not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Cuong Trong Tran, 63 FR 64280, 62483 

(1998); Prince George Daniels, 60 FR 

62884, 62887 (1995). See also Hoxie v. 

DEA, 419 F.3d at 483 (‘‘admitting fault’’ 

is ‘‘properly consider[ed]’’ by DEA to be 

an ‘‘important factor[]’’ in the public 

interest determination). 

As the ALJ observed, both of 

Respondent’s owners invoked their 

Fifth Amendment privilege when called 

to testify by the Government and 

refused to answer any questions. ALJ at 

24. I therefore find that Respondent (and 

its owners) have failed to accept 

responsibility for their misconduct. This 

alone provides reason to hold that 

Respondent has not rebutted the 

Government’s prima facie showing that 

issuing it a new registration ‘‘would be 

inconsistent with the public interest.’’ 

21 U.S.C. 823(f). 

In its Exceptions, Respondent 

nonetheless contends that ‘‘even though 

the [Liddy’s] invoked their Fifth 

Amendment Privilege, the record * * * 

demonstrate[s] that the complained of 

conduct was no longer present’’ and that 

it had ceased the offending conduct 

prior to the execution of the search 

warrant in July 2007. Exceptions at 1– 

2. Respondent thus asserts that it has 

changed its practices and that its then– 

existing registration should not be 

revoked. Id. at 2. However, the evidence 

shows that at some time in either 2005 

or 2006, a DEA Investigator had visited 

Respondent and interviewed 

Respondent’s owners. Tr. 82. 

While the record does not establish 

the precise subject matter that was 

discussed, it is not everyday that the 

DEA comes knocking at one’s door, and 

it is reasonable to infer that the 

Investigator’s visit had something to do 

with the illegality of Respondent’s 

activities in dispensing the internet 

prescriptions. Accordingly, even were I 

to ignore the failure of Respondent’s 

owners to acknowledge their illegal 

behavior (which I decline to do), the 

weight to be given Respondent’s 

cessation of its unlawful practices is 

substantially diminished by the fact that 

this followed, rather than preceded, its 

owners becoming aware that they were 

under investigation. Moreover, as the 

ALJ noted, Respondent put on no 

evidence as to what steps it has 

undertaken to reform its practices. ALJ 

at 24. 

I therefore concur with the ALJ’s 

conclusion that Respondent’s 

‘‘extensive record of unlawful conduct 

* * *, its callous disregard for the 

serious responsibility of a DEA 

registrant, and its failure to present any 

evidence to show how it has corrected 

these practices outweigh’’ the fact that 

the State Pharmacy Board has taken no 

action against its license (factor one) 

and the absence of any criminal 

convictions (factor three). Id. at 25. I 

further adopt the ALJ’s conclusion that 

‘‘it would be inconsistent with the 

public interest to allow * * * 

Respondent to maintain its 

registration.’’ Id. at 24. Accordingly, 

Respondent’s pending renewal 

application will be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 28 CFR 0.100(b), 

I deny the Government’s motion to 

terminate the proceeding as moot. I 

further order that the application of 

Liddy’s Pharmacy, L.L.C., for a DEA 

Certificate of Registration be, and it 

hereby is, denied. This Order is effective 

September 8, 2011. 

Dated: August 2, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–20055 Filed 8–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–70] 

Sheryl Lavender, D.O. Decision and 

Order 

On October 28, 2010, Administrative 

Law Judge (ALJ) Timothy D. Wing, 

issued the attached recommended 

decision. The Respondent did not file 

exceptions to the decision. 

Having reviewed the record in its 

entirety 1 including the ALJ’s 

recommended decision, I have decided 

to adopt the ALJ’s rulings, findings of 

fact, conclusions of law, and 

recommended Order. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a), as well 

as 21 CFR 0.100(b) and 0.104, I order 

that DEA Certificate of Registration, 

BL1667596, issued to Sheryl Lavender, 

D.O., be, and it hereby is, revoked. I 

further order that any pending 

application of Sheryl Lavender, D.O., to 

renew or modify her registration, be, 

and it hereby is, denied. This Order is 

effective immediately. 

Dated: July 27, 2011. 

Michele M. Leonhart, 

Administrator. 

Brian Bayly, Esq., 

for the Government. 

Shawn B. McKamey, Esq., 

for the Respondent. 

Recommended Ruling, Findings of Fact, 

Conclusions of Law, and Decision of the 

Administrative Law Judge 

Timothy D. Wing, Administrative Law 

Judge. On July 26, 2010, the Deputy 

Administrator, DEA, issued an Order to 

Show Cause and Immediate Suspension 

(OSC/IS) of DEA COR BL1667596, dated 

July 26, 2010, and served on 

Respondent on August 2, 2010. The 

OCS/IS alleged that Respondent’s 

continued registration constitutes an 

imminent danger to the public health 

and safety. The OSC/IS also provided 

notice to Respondent of an opportunity 

to show cause as to why the DEA should 

not revoke Respondent’s DEA COR 

BL1667596 pursuant to 21 U.S.C. 

824(a)(4), on the grounds that 

Respondent lacks authority to handle 

controlled substances in Florida, the 

state in which she maintains her DEA 

registration, and on the grounds that 

Respondent’s continued registration 

would be inconsistent with the public 

interest under 21 U.S.C. 823(f). On 

August 31, 2010, Respondent, acting pro 

se, in a letter dated August 23, 2010, 

timely requested a hearing with the DEA 

Office of Administrative Law Judges 

(OALJ). 

I issued an Order for Prehearing 

Statements on September 8, 2010. On 

the same date, OALJ sent Respondent a 

letter informing her of her right to 

representation under 21 CFR 1316.50. 

On September 10, 2010, the 

Government filed a Motion for 

Summary Judgment. On September 13, 

2010, I issued an order directing 

Respondent to reply to the 

Government’s motion by September 20, 

2010. On September 17, 2010, 

Respondent, through counsel, filed 

Respondent’s Unopposed Motion for 

Extension of Time to Allow Respondent 

to Answer Motion for Summary 

Judgment, seeking an extension of time 

so that Respondent might obtain 


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