Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices 48897 

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 


sroberts on DSK5SPTVN1PROD with NOTICES
48898 Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices 

1 In Respondent’s first motion for an extension of 

time, counselor Patrick R. McKamey stated that he 

represents Respondent in a separate criminal case; 

that he practices exclusively in criminal litigation; 

and that he filed a limited appearance in this case 

only so that Respondent might retain permanent 

counsel for these administrative proceedings. 

2Shawn B. McKamey, Esq., filed his notice of 

appearance on October 13, 2010. 

permanent counsel.1 I granted that 

motion on September 17, 2010, and 

granted Respondent until October 12, 

2010, to respond to the Government’s 

motion. 

On October 12, 2010, having secured 

permanent counsel,2 Respondent filed a 

second unopposed motion requesting 

additional time to respond. I granted 

that motion on October 13, 2010, and 

granted Respondent until October 15, 

2010, to respond to the Government’s 

Motion for Summary Judgment. 

On October 15, 2010, Respondent 

timely filed her response to the 

Government’s Motion for Summary 

Judgment. 

II. The Parties’ Contentions 

A. The Government 

In support of its motion for summary 

judgment, the Government asserts that 

on May 7, 2010, the State of Florida, 

Department of Health, issued an Order 

of Emergency Suspension of 

Respondent’s osteopathic medical 

license, and that Respondent 

consequently lacks authority to possess, 

dispense or otherwise handle controlled 

substances in Florida, the jurisdiction in 

which she maintains her DEA 

registration. The Government contends 

that such state authority is a necessary 

condition for maintaining a DEA COR 

and therefore asks that I summarily 

recommend to the Deputy 

Administrator that Respondent’s COR 

be revoked. In support of its motion, the 

Government attaches three documents: 

(1) The Emergency Order of Suspension 

referred to above; (2) a copy of 

Respondent’s request for a hearing, filed 

August 31, 2010, in which Respondent 

denies that the state suspension ‘‘should 

remain in full force and effect, thereby 

prohibiting Sheryl Lavender, D.O., from 

practicing medicine, and prescribing 

medications to patients’’ (Gov’t Mot. 

Sum. J. at 2 ¶(3) (citing Resp’t Req. Hg. 

at 1 ¶(B)(2))); and (3) a printout dated 

September 9, 2010, from a Web site 

maintained by the Florida Department 

of Health indicating that Respondent’s 

suspension remained in effect as of that 

date. 

B. Respondent 

Respondent opposes summary 

judgment and seeks the opportunity to 

‘‘discuss the merits of this matter.’’ 

(Resp’t Opp’n Gov’t Mot. Sum. J. 2 ¶5.) 

In sum and in substance, Respondent 

argues that while ‘‘it is technically true 

Respondent lacks state authorization to 

practice medicine at this time, this shall 

soon be remedied and having the DEA 

registration withdrawn or otherwise 

revoked would unnecessarily elongate 

Dr. Lavender’s return to medicine 

* * *.’’ (Id. at 1 ¶2.) Respondent also 

seeks to present evidence contesting two 

assertions: first, that she failed to 

comply with federal law in prescribing 

controlled substances; and second, that 

her continued registration would be a 

danger to the public. (Id. at 2 ¶4.) 

Finally, Respondent raises an estoppel 

and detrimental reliance argument, but 

concedes ‘‘this particular tribunal is not 

the appropriate forum in which to argue 

[those] grounds.’’ (Id. at ¶3.) 

III. Discussion 

At issue is whether Respondent may 

maintain her DEA COR given that 

Florida has suspended her state license 

to practice medicine. 

Under 21 U.S.C. 824(a)(3), a 

practitioner’s loss of state authority to 

engage in the practice of medicine and 

to handle controlled substances is 

grounds to revoke a practitioner’s 

registration. Accordingly, this agency 

has consistently held that a person may 

not hold a DEA registration if she is 

without appropriate authority under the 

laws of the state in which she does 

business. See Scott Sandarg, D.M.D., 74 

FR 17,528 (DEA 2009); David W. Wang, 

M.D., 72 FR 54,297 (DEA 2007); Sheran 

Arden Yeates, M.D., 71 FR 39,130 (DEA 

2006); Dominick A. Ricci, M.D., 58 FR 

51,104 (DEA 1993); Bobby Watts M.D., 

53 FR 11,919 (DEA 1988). 

Summary judgment in a DEA 

suspension case is warranted even if the 

period of suspension of a Respondent’s 

state medical license is temporary, or 

even if there is the potential for 

reinstatement of state authority because 

‘‘revocation is also appropriate when a 

state license had been suspended, but 

with the possibility of future 

reinstatement.’’ Stuart A. Bergman, 

M.D., 70 FR 33,193 (DEA 2005); Roger 

A. Rodriguez, M.D., 70 FR 33,206 (DEA 

2005). 

It is well-settled that when no 

question of fact is involved, or when the 

material facts are agreed upon, a 

plenary, adversarial administrative 

proceeding is not required, under the 

rationale that Congress does not intend 

administrative agencies to perform 

meaningless tasks. See Layfe Robert 

Anthony, M.D., 67 FR 35,582 (DEA 

2002); Michael G. Dolin, M.D., 65 FR 

5661 (DEA 2000); see also Philip E. Kirk, 

M.D., 48 FR 32,887 (DEA 1983), aff’d 

sub nom. Kirk v. Mullen, 749 F.2d 297 

(6th Cir. 1984); Puerto Rico Aqueduct & 

Sewer Auth. v. EPA, 35 F.3d 600, 605 

(1st Cir. 1994). 

In the instant case, the Government 

asserts, and Respondent concedes, that 

Respondent’s Florida medical license is 

presently suspended. While Respondent 

disagrees that the state suspension of 

her Florida medical license ‘‘should 

remain in full force and effect, thereby 

prohibiting [her] from practicing 

medicine and prescribing medication to 

patients,’’ (Resp’t Req. Hg. at 1 ¶ (B)(2) 

(emphasis supplied)), she does not deny 

that the state suspension presently 

removes the state authority upon which 

her DEA registration is premised. To the 

contrary, she admits ‘‘it is technically 

true Respondent lacks state 

authorization to practice medicine at 

this time * * * .’’ (Resp’t Opp’n Gov’t 

Mot. Sum. J. 1 ¶2.) 

I therefore find that there is no 

genuine dispute as to any material fact, 

and that substantial evidence shows that 

Respondent is presently without state 

authority to handle controlled 

substances in Florida. Because ‘‘DEA 

does not have statutory authority under 

the Controlled Substances Act to 

maintain a registration if the registrant 

is without state authority to handle 

controlled substances in the state in 

which he practices,’’ Sheran Arden 

Yeates, M.D., 71 FR 39,130, 39,131 (DEA 

2006), I do not reach Respondent’s other 

contentions. Under the circumstances 

discussed above, I conclude that further 

delay in ruling on the Government’s 

Motion for Summary Judgment is not 

warranted. 

Recommended Decision 

I grant the Government’s motion for 

summary judgment and recommend that 

Respondent’s DEA COR BL1667596 be 

revoked and any pending applications 

denied. 

Dated: October 28, 2010. 

Timothy D. Wing, 

Administrative Law Judge. 

[FR Doc. 2011–20068 Filed 8–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Robert Leigh Kale, M.D., Decision and 

Order 

On September 9, 2010, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Robert Leigh Kale, M.D. 

(Registrant), of Fort Smith, Arkansas. 


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