51412 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 

1The Show Cause Order alleged that in March 

2001, Registrant and DEA entered into a 

Memorandum of Agreement (MOA) which settled a 

Show Cause Proceeding filed in April 2000 based 

on the allegations described above. Show Cause 

Order at 2. The Show Cause Order also alleged that 

under the MOA, Registrant surrendered his 

registration and was allowed to reapply no earlier 

than March 2004, and that in October 2004, DEA 

issued him a new registration. Id. 

regulations as confirmed through a DEA 

on-site inspection of the premises. 74 

FR at 2128 (citing 21 CFR 1310.71– 

1301.93). Factor six, in contrast, is a 

catchall category that is designed to give 

DEA wide latitude to consider all 

evidence that might reasonably bear on 

the suitability of an applicant for 

registration. In other words, even if a 

registrant has promised to undertake 

security procedures sufficient to obtain 

a favorable finding under factor five, if 

other evidence (not covered by factors 

one through five) casts doubt on 

whether the applicant can be entrusted 

with the responsibility of a DEA 

manufacturing registration, such 

evidence may be considered under 

factor six. 

Consider, for example, if a person 

were seeking to become registered as a 

manufacturer of oxycodone, and the 

applicant promised to install and 

maintain in the facility all the physical 

security measures and employee 

screening procedures required by the 

regulations. Assume further that 

evidence came to light that the main 

investor in the facility, who planned to 

make the decisions as to how the facility 

would distribute oxycodone, admitted 

that he obtains oxycodone illegally and 

uses it for ‘‘recreational’’ purposes on a 

weekly basis. In such circumstances, it 

would certainly be appropriate for DEA 

to draw an adverse inference under 

factor six based on such person’s illicit 

activity involving oxycodone— 

regardless of whether the applicant 

made assurances that it would comply 

with the security regulations. Thus, I 

cannot adopt Respondent’s suggestion 

that Mr. Doblin’s regular marijuana use 

should be ignored as a factor relevant to 

his application. 

Nonetheless, it bears repeating that 

the ultimate decision in this matter did 

not turn on consideration of Mr. 

Doblin’s marijuana activity. As stated in 

the Final Order, two other independent 

grounds existed for denying the 

application and, therefore, the same 

result would have been reached had I 

determined that Mr. Doblin’s marijuana 

activity were irrelevant. 

To be clear, if I determined that the 

proposed registration were consistent 

with United States obligations under the 

Single Convention and further that the 

supply of marijuana available to 

researchers in the United States were 

inadequate within the meaning of 21 

U.S.C. 823(a)(1), it is conceivable that 

arrangements could have been made to 

mitigate the concerns regarding Mr. 

Doblin’s marijuana activity. For 

example, under a conditional grant of 

registration or memorandum of 

agreement, sufficient terms perhaps 

could have been imposed to ensure that 

Mr. Doblin would not be allowed to 

have access to the growing facility and 

would have no role in any decision 

making relating to management of the 

facility or the distribution of marijuana. 

However, consideration of such an 

approach was not feasible here given the 

other grounds for denying the 

application. 

IV. Conclusion 

For the foregoing reasons, 

Respondent’s motion for 

reconsideration is hereby denied. The 

administrative record is modified as 

indicated herein and in my December 2, 

2010, order. The January 14, 2009, Final 

Order, as supplemented by this order, is 

effective on September 7, 2011. 

Dated: August 8, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–21064 Filed 8–17–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Joe C. Fermo, M.D.; Revocation of 

Registration 

On September 30, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Joe C. Fermo, M.D. 

(Registrant), of Tulsa, Oklahoma. The 

Show Cause Order proposed the 

revocation of Registrant’s DEA 

Certificate of Registration, BF7430781, 

as well as the denial of any pending 

applications to renew or modify his 

registration, on the ground that his 

‘‘continued registration would be 

inconsistent with the public interest.’’ 

Show Cause Order at 1 (citing 21 U.S.C. 

823(f) and 824(a)(4)). 

The Show Cause Order specifically 

alleged that on February 23, 1990, 

Registrant was convicted in the District 

Court for Oklahoma County, State of 

Oklahoma, of ten counts of submitting 

false claims to the Oklahoma 

Department of Human Services in 

violation of Oklahoma law, and that on 

June 20, 1990, the United States 

Department of Health and Human 

Services excluded him from 

participating in federal health care 

programs under 42 U.S.C. 1320a–7(a). 

Id. at 1–2. The Order further alleged that 

based on his convictions, on June 21, 

1990, the Oklahoma State Board of 

Medical Licensure placed his medical 

license on probation and that Registrant 

materially falsified three separate 

applications (in 1991, 1994, and 1997) 

to renew his DEA registration by failing 

to disclose the state board’s action. Id. 

at 2 (citing 21 U.S.C. 824(a)(1)).1

Finally, the Show Cause Order alleged 

that on August 27, September 24, and 

September 26, 2007, an undercover 

officer had obtained prescriptions from 

Registrant for alprazolam (at all three 

visits) and propoxyphene (at the first 

two visits), both of which are schedule 

IV controlled substances. Id. The Order 

further alleged that these prescriptions 

lacked a legitimate medical purpose and 

were issued outside of the usual course 

of professional practice in violation of 

Federal and State laws. Id. (citing 21 

CFR 1306.04 and Okla. Admin. Code 

475.30–1–3(a)). 

On or about October 5, 2009, the 

Show Cause Order, which also notified 

Registrant of his right to either request 

a hearing on the allegations or to submit 

a written statement in lieu of a hearing, 

the procedures for doing so, and the 

consequence if he failed to do so, was 

served on Registrant by certified mail 

addressed to him at the address of his 

registered location. Id. at 2–3 (citing 21 

CFR 1301.43). Since service of the Show 

Cause Order, more than thirty days have 

now passed and neither Registrant, nor 

anyone purporting to represent him, has 

either requested a hearing or submitted 

a written statement in lieu of a hearing. 

See 21 CFR 1301.43(b)–(d). Accordingly, 

I find that Registrant has waived his 

rights to a hearing or to submit a written 

statement. Id. 1301.43(d). I therefore 

issue this Decision and Final Order 

without a hearing based on relevant 

evidence contained in the investigative 

record submitted by the Government. 

Findings 

Registrant is the holder of DEA 

Certificate of Registration, BF7430781, 

which authorizes him to dispense 

controlled substances in schedules II 

through V as a practitioner at the 

registered location of 5970 E. 31 St., 

Suite O, Tulsa, Oklahoma. While his 

registration was to expire on September 

30, 2010, on August 13, 2010, Registrant 

filed a renewal application. In 

accordance with the Administrative 

Procedure Act and DEA regulations, I 

find that Registrant’s registration 

remains in effect pending the issuance 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 51413 

2Merli Fermo has since passed away. 

3Based on the dosing instruction he gave the 

Agent at the initial visit, the Xanax should have 

lasted 50 days; the Agent was thus seeking the drug 

approximately three weeks early. 

4The Government also submitted a copy of the 

Information filed by the State of Oklahoma charging 

Registrant with ten counts of submitting false 

claims to the Oklahoma Department of Human 

Services; a ‘‘Deferred Sentence, Plea of Guilty, 

Summary of Facts’’ filed in the state court 

proceedings; a June 20, 1990, letter from the Office 

of Inspector General, U.S. Department of Health & 

Human Services, which excluded Registrant ‘‘from 

participation in the Medicare program and any 

State health program’’ for a period of fifteen years 

based on his state court convictions; and a Final 

Order of the Oklahoma State Board of Medical 

Licensure and Supervision (issued on June 21, 

1990) which placed him on probation for four years 

and nine months based on his guilty plea in the 

state criminal proceeding. 

The Government did not, however, submit either 

the MOA, which Registrant entered into with DEA, 

or any of the applications which it alleged he had 

materially falsified. Instead, it submitted the MOA 

that DEA entered into with his wife and an affidavit 

of an Agency Investigator stating that he had 

‘‘received information from’’ an Investigator in 

another office that Registrant’s MOA ‘‘was 

identical’’ to his wife’s. Affidavit of Diversion 

Investigator, at 1. 

Even accepting this would establish that 

Registrant settled the Show Cause Proceeding on 

the same terms as his wife did, his wife’s MOA 

merely stated that an April 21, 2000 Order to Show 

Cause ‘‘further alleged that on August 13, 1991, 

September 22, 1994, and again on August 28, 1997, 

the Respondent materially falsified her renewal 

applications by failing to disclose that the Board 

placed her medical license on probation in June 

1990.’’ MOA, at 2. Continuing, the MOA states: 

‘‘The above matters, if proven at an administrative 

hearing, constitute grounds for revocation of the 

Respondent’s DEA Certificate of Registration, and 

denial of her pending application for renewal of 

that registration.’’ Id. Nowhere in the MOA did 

Registrant’s wife admit to the material falsification 

allegation. Thus, even if Registrant’s MOA imposed 

the same terms, it is clear that the Government has 

not proved the allegation that he materially falsified 

his 1991, 1994, and 1997 applications. 

of this Final Order. See 5 U.S.C. 558(c); 

21 CFR 1301.36(i). 

On August 27, 2007, an Agent with 

the Oklahoma Bureau of Narcotics went 

to Registrant’s office to perform an 

undercover visit with Merli Fermo, 

M.D., Registrant’s wife, who was also a 

DEA registrant.2 Upon meeting the 

receptionist, to whom she paid $65, the 

Agent was told that she would have to 

wait one hour to see Merli Fermo and 

was asked if she wanted to see 

Registrant, who was available 

immediately. The Agent agreed and was 

taken to his office. 

After the Agent and Registrant 

discussed the former’s having spent 

some time in Minnesota and why she 

had returned to Oklahoma, who she 

lived with, how she was supporting 

herself, and her address, Registrant 

asked the Agent: ‘‘So what do you want 

me to put you on?’’ The Agent replied: 

‘‘I’ve been on Xanax. Two milligrams.’’ 

Registrant then asked the Agent if she 

had ‘‘been on it for a while?’’ The Agent 

replied that she had been, that she had 

‘‘continued it when’’ she had gone to 

Minnesota, and had gotten it ‘‘from a 

doctor up there.’’ 

Registrant then asked: ‘‘You’re taking 

Xanax three times a day?’’; the Agent 

replied ‘‘four times a day.’’ Registrant 

responded: ‘‘It says three times a day,’’ 

to which the Agent said, ‘‘I know but it 

was increased up there.’’ Registrant then 

told the Agent to ‘‘take it two times a 

day. Two milligrams.’’ The Agent asked: 

‘‘So I’m only get[ing] it two times a 

day?’’ Registrant replied affirmatively 

and asked, ‘‘What else are you taking?’’ 

The Agent answered: ‘‘I was taking 

Darvocet too.’’ 

Registrant then asked ‘‘are you having 

some pain?’’ The Agent replied: ‘‘Oh, 

every once in a while.’’ Registrant told 

the Agent to ‘‘[t]ake it two times a day 

and I’ll give you a hundred’’; the Agent 

replied: ‘‘Okay. I wish you’d give me the 

four on this Xanax though.’’ After 

several comments which were 

unintelligible, Registrant and the Agent 

discussed how far the latter had lived 

from Minneapolis, whether the Agent 

went there much when she lived in 

Minnesota, and Registrant’s having 

previously lived in the Minneapolis 

area. Before the visit ended, Registrant 

gave the Agent prescriptions for 100 

Xanax (alprazolam) 2 mg and 100 

Darvocet-N (propoxyphene) 100 mg, 

both of which are schedule IV 

controlled substances, see 21 CFR 

1308.14(b), (c), as well as Celera, a noncontrolled anti-depressant. 

On September 24, 2007, the Agent 

returned to Registrant’s office and paid 

the receptionist $65. While the Agent 

was scheduled to see Registrant’s wife, 

when informed that the latter was not 

available, she agreed to see Registrant, 

and after a short wait, was taken to his 

office. 

Registrant asked the Agent how she 

was doing; she replied ‘‘great.’’ 

Registrant then asked ‘‘what’s going on 

with you?’’ The Agent answered: ‘‘Not 

a thing. I wonder if I could get a 

hundred and twenty of the Xanax 

instead of a hundred?’’ Registrant asked 

why she wanted one hundred twenty; 

the Agent answered: ‘‘I ran out.’’ 3

Registrant then said: ‘‘No, not if you 

take it down * * * the way it is 

prescribed for you, you wouldn’t run 

out.’’ After the Agent said ‘‘I know,’’ 

Registrant stated—in contrast to his 

instruction at the previous visit to take 

the Xanax twice a day—‘‘Just take it 

three times a day, that’s precisely why 

it’s controlled because people have a 

tendency to (Inaudible) take it more 

than what’s prescribed.’’ Registrant then 

apparently warned the Agent that she 

could have seizures if she took more 

than what he prescribed ‘‘and then if 

you don’t take it for some reason or 

another’’ and added ‘‘it’s not good to be 

doing that.’’ 

After telling the Agent that she could 

take the Xanax ‘‘three times a day,’’ 

Registrant asked her: ‘‘Do you still need 

the Darvocet?’’; the Agent answered: 

‘‘Yes.’’ After a conversation about such 

subjects as how much social security the 

Agent was getting, what type of work 

she had previously done, her shopping 

habits, and whether she had a 

boyfriend, Registrant told the Agent to 

take the Celexa because it is an antidepressant that works with Xanax and 

would help her to get going in the 

morning. After still more conversation 

about the Agent’s social life, Registrant 

gave her new prescriptions for 100 

Xanax 2 mg, 100 Darvocet-N 100 mg, 

and Celexa. Shortly thereafter, the visit 

ended.4

Discussion 

Section 304(a) of the Controlled 

Substances Act (CSA) provides that ‘‘[a] 

registration pursuant to section 823 of 

this title to * * * dispense a controlled 

substance * * * may be suspended or 

revoked by the Attorney General upon 

a finding that the registrant * * * has 

committed such acts as would render 

his registration under section 823 of this 

title inconsistent with the public 

interest as determined under such 

section.’’ 21 U.S.C. 824(a)(4). In making 

the public interest determination in the 

case of a practitioner, Congress directed 

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

‘‘[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 to 

revoke an existing registration or to 

deny an application. 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); (citing Morall 

v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 

2005)). 

mstockstill on DSK4VPTVN1PROD with NOTICES

51414 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 

5However, on 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. 

In this matter, while I have 

considered all of the factors, I conclude 

that it is not necessary to make findings 

with respect to factors one (the 

recommendation of the state licensing 

board), three (registrant’s conviction 

record) and five (such other conduct 

which may threaten public health and 

safety). I find that the Government’s 

evidence with respect to Registrant’s 

experience in dispensing controlled 

substances (factor two) and his 

compliance with applicable Federal and 

State laws related to the distribution 

and dispensing of controlled substances 

(factor four) makes out a prima facie 

case that Registrant has committed acts 

which render his registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 823(f), 824(a)(4). I will 

therefore order that his registration be 

revoked and that his pending 

application to renew his registration be 

denied. 

Factors Two and Four—Registrant’s 

Experience in Dispensing Controlled 

Substances and Compliance With 

Applicable Laws Related to Controlled 

Substances 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is not ‘‘effective’’ unless it is ‘‘issued for 

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). This 

regulation further provides that ‘‘an 

order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

intent of [21 U.S.C. 829] and * * * the 

person issuing it, shall be subject to the 

penalties provided for violations of the 

provisions of law related to controlled 

substances.’’ Id.; see also 21 U.S.C. 

802(10) (defining the term ‘‘dispense’’ as 

meaning ‘‘to deliver a controlled 

substance to an ultimate user by, or 

pursuant to the lawful order of, a 

practitioner, including the prescribing 

and administering of a controlled 

substance’’) (emphasis added); Okla. 

Admin. Code 475:30–1–3(a) (‘‘A 

prescription for a controlled dangerous 

substance to be effective must be issued 

for a legitimate medical purpose by a 

registered or otherwise authorized 

individual practitioner acting in the 

usual course of his/her professional 

practice.’’). 

As the Supreme Court recently 

explained, ‘‘the [CSA’s] 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)). 

Under the CSA, it is fundamental that 

a practitioner must establish and 

maintain a bonafide doctor-patient 

relationship in order to act ‘‘in the usual 

course of * * * professional practice’’ 

and to issue a prescription for a 

‘‘legitimate medical purpose.’’ Laurence 

T. McKinney, 73 FR 43260, 43265 n.22 

(2008); see also Moore, 423 U.S. at 142– 

43 (noting that evidence established that 

physician ‘‘exceeded the bounds of 

‘professional practice,’ ’’ when ‘‘he gave 

inadequate physical examinations or 

none at all,’’ ‘‘ignored the results of the 

tests he did make,’’ and ‘‘took no 

precautions against * * * misuse and 

diversion’’). The CSA generally looks to 

state law to determine whether a doctor 

and patient have established a bonafide 

doctor-patient relationship. See Kamir 

Garces-Mejias, 72 FR 54931, 54935 

(2007); United Prescription Services, 

Inc., 72 FR 50397, 50407 (2007).5

Under the Oklahoma Board of 

Medical Licensure and Supervision’s 

rule on the ‘‘[u]se of controlled 

substances for the management of 

chronic pain,’’ ‘‘[a] medical history and 

physical examination must be obtained, 

evaluated and documented in the 

medical record.’’ Okla. Admin. Code 

435:10–7–11(1). Moreover, ‘‘[t]he 

medical record should document the 

nature and intensity of the pain, current 

and past treatments for pain, underlying 

or coexisting diseases or conditions, the 

effect of the pain on physical and 

psychological function and history of 

substance abuse.’’ Id. The Oklahoma 

rule also requires, inter alia, that a 

‘‘physician should discuss the risk and 

benefits of the use of controlled 

substances with the patient.’’ Id. at 

435:10–7–11(3). 

As found above, on two occasions, 

Registrant prescribed Darvocet-N 100 

mg., a drug which includes 

propoxyphene, a schedule IV narcotic 

controlled substance, as well as Xanax 

(alprazolam) to an OBN Agent acting in 

an undercover capacity. Notably, during 

the first visit, Registrant did not ask the 

Agent whether she had any medical 

complaints. Rather, after engaging in 

small talk and asking for her address, 

Registrant asked the Agent: ‘‘So what do 

you want me to put you on?’’ While the 

Agent stated Xanax 2 mg, and told her 

she had been getting it from another 

doctor, Registrant did not even ask her 

if she had anxiety. 

Moreover, Registrant then asked the 

Agent: ‘‘what else are you taking?’’ After 

the Agent replied that she ‘‘was taking 

Darvocet too,’’ Registrant asked: ‘‘I 

think, are you having some pain?’’ 

While the Agent replied: ‘‘[e]very once 

in a while,’’ Registrant did not ask the 

Agent any questions regarding ‘‘the 

nature and intensity of the pain,’’ the 

‘‘effect of the pain on [the Agent’s] 

physical and psychological function,’’ 

whether the Agent had been previously 

treated for pain, or whether she had a 

‘‘history of substance abuse’’ as required 

under the Oklahoma rule. See Okla. 

Admin. Code 435:10–7–11(1). Moreover, 

while under the Oklahoma rule a 

physical examination must ‘‘be 

obtained,’’ the transcript of the 

undercover visit contains no indication 

that Registrant performed a physical 

examination and developed a diagnosis. 

See id. I thus conclude that at the 

Agent’s first visit, Registrant failed to 

establish a doctor-patient relationship 

with her. I further conclude that he 

lacked a legitimate medical purpose and 

acted outside of the usual course of 

professional practice in prescribing 

Xanax and Darvocet-N to her and thus 

violated Federal law. See 21 CFR 

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

The Xanax and Darvocet prescriptions 

Respondent gave the Agent at her 

second visit also violated Federal law. 

While at this visit, Registrant, after 

being told by the Agent (who was 

seeking an even larger quantity of the 

drug and was three weeks early in 

seeking the refill) that she had run out 

of Xanax, did discuss with her that she 

should not take more of the drug than 

he prescribed and explained that the 

drug is controlled ‘‘because people have 

a tendency to’’ take more than is 

prescribed, once again, he did not 

determine that the Agent had anxiety or 

another medical condition that might 

warrant a prescription for the drug. 

Likewise, after telling the Agent to 

only take the Xanax three times per day, 

he then asked her if she ‘‘still need[ed] 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 51415 

the Darvocet?’’ The Agent answered 

‘‘yes,’’ but Registrant did not even ask 

her if she had pain, let alone ask her any 

questions regarding the nature and 

intensity of the pain, whether the 

Darvocet was helping to alleviate her 

pain, or how the pain was affecting her 

physical and psychological function. 

Accordingly, with respect to the Agent’s 

second visit, I again conclude that 

Registrant failed to establish a doctorpatient relationship with her. I also 

conclude that Registrant lacked a 

legitimate medical purpose and acted 

outside of the usual course of 

professional practice in prescribing 

Xanax and Darvocet-N to her and 

violated Federal law. See 21 CFR 

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

As the forgoing demonstrates, 

Registrant has committed acts which 

‘‘render his registration * * * 

inconsistent with the public interest.’’ 

21 U.S.C. 824(a)(4). I will therefore 

order that his registration be revoked 

and that any pending applications be 

denied. 

Order 

Pursuant to the authority vested in me 

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

as by 28 CFR 0.100(b), I hereby order 

that DEA Certificate of Registration, 

BF7430781, issued to Joe C. Fermo, 

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

further order that any pending 

application of Joe C. Fermo, M.D., to 

renew or modify his registration be, and 

it hereby is, denied. This Order is 

effective September 19, 2011. 

Dated: August 5, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–21061 Filed 8–17–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Ideal Pharmacy Care, Inc., D/B/A 

Esplanade Pharmacy; Revocation of 

Registration 

On November 12, 2010, I, the then 

Deputy Administrator of the Drug 

Enforcement Administration, issued an 

Order to Show Cause and Immediate 

Suspension of Registration to Ideal 

Pharmacy Care, Inc., d/b/a Esplanade 

Pharmacy (Registrant), of New Orleans, 

Louisiana. The Show Cause Order 

proposed the revocation of Registrant’s 

DEA Certificate of Registration 

FF1125651, which authorizes it to 

dispense controlled substances in 

schedules II through V as a retail 

pharmacy, on the ground that it has 

committed acts which render its 

registration ‘‘inconsistent with the 

public interest.’’ Show Cause Order at 1 

(citing 21 U.S.C. 824(a)(4)). The Show 

Cause Order also proposed the denial of 

any pending applications to renew or 

modify Registrant’s registration. Id. 

The Show Cause Order specifically 

alleged that on October 14, 2010, 

investigators conducted an 

accountability audit of Registrant and 

found that it had ‘‘significant shortages’’ 

of various controlled substances. Id. The 

Order alleged that these included 

shortages of: (1) 3,891 dosage units of 

hydrocodone 7.5/650 mg, 78 percent of 

the accountable total; (2) 27,179 dosage 

units of hydrocodone 7.5/750 mg, 59 

percent of the accountable total; (3) 

5,514 dosage units of hydrocodone 10/ 

500 mg, 48 percent of the accountable 

total; (4) 114,826 dosage units of 

hydrocodone 10/650 mg, 96 percent of 

the accountable total; (5) 83,254 dosage 

units of alprazolam 2 mg, 96 percent of 

the accountable total; and (6) 1,616,420 

ml of promethazine with codeine, 99 

percent of the accountable total. Id. at 

1–2. Based on the audit results, the 

Order alleged that the Registrant had 

violated 21 U.S.C. 827(a)(3) and 

842(a)(5), as well as 21 CFR 1304.03, 

1304.04, and 1304.21. Id. at 2. 

Next, the Show Cause Order alleged 

that various distributors make deliveries 

of controlled substances to Registrant 

when it ‘‘is closed,’’ and that the 

‘‘deliveries are received and signed for 

by’’ non-employees who work ‘‘at the 

grocery store in which [it] is located,’’ 

and that the deliveries are then 

‘‘diverted in violation of 21 U.S.C. 

843(a)(3).’’ Id. The Order thus alleged 

that Registrant ‘‘has failed to provide 

effective controls’’ against theft and 

diversion of controlled substances. Id. 

(citing 21 CFR 1301.71). 

The Show Cause Order also alleged 

that Registrant had violated a 

Memorandum of Agreement (MOA) it 

entered into with DEA. Id. The Order 

alleged that in the MOA, Registrant 

agreed that it would not employ its 

former owners ‘‘in any capacity relating 

to [its] business,’’ and that it would not 

permit its former owners to have 

‘‘access to any area of [it] where 

controlled substances are kept, stored, 

or maintained.’’ Id. The Order alleged 

that Registrant ‘‘has permitted [its 

former owners] to enter the pharmacy 

where controlled substances are present 

in violation of’’ the MOA and 21 CFR 

1301.72(d). Id. 

Based on the matters set forth above, 

I concluded that Registrant’s continued 

registration during the pendency of the 

proceeding would constitute ‘‘an 

imminent danger to public health and 

safety.’’ Id. (citing 21 U.S.C. 824(d)). I, 

therefore, ordered the immediate 

suspension of Registrant’s registration. 

Id. 

On November 17, 2010, the Order to 

Show Cause and Immediate Suspension 

of Registration, which also notified 

Registrant of its right to request a 

hearing on the allegations or to submit 

a written statement in lieu of a hearing, 

the procedures for doing either, and the 

consequences for failing to do either, id. 

at 3 (citing 21 CFR 1301.43(a) & (c)), was 

personally served on Registrant’s 

Pharmacist-in-Charge. GX 2. Since the 

date of service of the Order, more than 

thirty days have now passed, and 

neither Registrant, nor anyone 

purporting to represent it, has requested 

a hearing or submitted a written 

statement. Accordingly, I find that 

Registrant has waived its right to a 

hearing or to submit a written statement 

in lieu of a hearing. 21 CFR 1301.43(a), 

(c) & (d). I, therefore, issue this Decision 

and Final Order based on relevant 

material contained in the record 

submitted by the Government. 21 CFR 

1301.43(e). 

Findings 

Registrant is the holder of DEA 

Certificate of Registration FI1125651, 

which authorizes it to dispense 

controlled substances in schedules II 

through V as a retail pharmacy, at the 

registered address of 1400 Esplanade 

Ave., New Orleans, Louisiana. 

Registrant’s registration does not expire 

until November 30, 2011. Registrant is 

apparently located in a building which 

also contains a grocery store. Affidavit 

of DI, at 8 (GX 22). 

On October 14, 2010, DEA 

Investigators conducted an audit of 

Registrant’s handling of controlled 

substances. Id. at 9. The audit covered 

the period of October 22, 2008, on 

which date Registrant had no controlled 

substances on hand, through the 

beginning of business on October 14, 

2010, at which time the closing 

inventory for the audit was taken. Id. 

According to the DI, she obtained 

invoices provided by Registrant’s 

suppliers to determine the total amount 

of the controlled substances it had 

purchased during the audit period and 

was accountable for; the DI also 

obtained Registrant’s records (including 

the prescriptions on file), as well as data 

from the state’s prescription monitoring 

program showing the pharmacy’s 

dispensings, and added the amount of 

its dispensings to the closing inventory 

to determine the total amount of each 

drug which it could account for. Id. 

Upon comparing the two amounts, the 

DI found that Registrant had large 

mstockstill on DSK4VPTVN1PROD with NOTICES