Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 / Notices 86941 

1Effective December 2, 2022, the Medical 

Marijuana and Cannabidiol Research Expansion 

Act, Public Law 117–215, 136 Stat. 2257 (2022) 

(Marijuana Research Amendments or MRA), 

amended the Controlled Substances Act (CSA) and 

other statutes. Relevant to this matter, the MRA 

redesignated 21 U.S.C. 823(f), cited in the OSC, as 

21 U.S.C. 823(g)(1). Accordingly, this Decision cites 

to the current designation, 21 U.S.C. 823(g)(1), and 

to the MRA-amended CSA throughout. 

The Federal and state substantive violations 

alleged in the OSC include 21 U.S.C. 841(a)(2) and 

842(a)(1); 21 CFR 1306.04(a) and 1306.06; Fla. Stat. 

893.055(3)(a)(3); and Fla. Admin. Code r. 64B16– 

27.810(1) and (2), Fla. Admin. Code r. 64B16– 

27.831(1)(b) and (c), (2)(c), and (4), and Fla. Admin. 

Code r. 64B16–27.1001(4). 

2The OSC’s substantive headings describe the 

allegations as ‘‘Improper Filling of Prescriptions to 

Undercover Officers,’’ specifically referencing July 

7, 2022, July 14, 2022, and July 15, 2022, ‘‘Issuing 

Prescriptions to Dead Patients,’’ and ‘‘Imminent 

Danger.’’ The OSC cites federal and state authorities 

as the bases of its allegations. Supra n.1. 

This Decision is adjudicating only OSC 

allegations that Respondent filled controlled 

substance prescriptions issued to individuals who 

were deceased. Because these allegations alone are 

sufficient to revoke Respondent’s registration, the 

Agency does not reach the other OSC allegations. 

The other OSC allegations include various 

references to conduct observed by and involving 

undercover officers; the record evidence related to 

those observations and interactions is periodically 

referenced herein as relevant to the analysis of 

Respondent’s credibility and trustworthiness. 

3The admitted exhibits do not support the 

owner/PIC’s testimony that he always makes a copy 

of the IDs. GX 4; GX 5. They indicate that the 

owner/PIC made copies of controlled substance 

prescriptions and patient history forms. E.g., GX 5, 

at 1, 5. They do not indicate, however, that the 

owner/PIC made a copy of any of the IDs that the 

undercover officers handed him. See, e.g., GX 5, at 

2, 10. Accordingly, the Agency finds that the 

testimony of Respondent’s owner/PIC lacks 

credibility. See also infra section V (credibility 

discussion). 

LLC, Wichita, KS; Oriola Defense & 

Security LLC to Safran Federal Systems, 

Inc., Rochester, NY; Integrata AG to 

Cegos Integrata GmbH, Stuttgart, 

GERMANY; and NovaTech Process 

Solutions to Valmet Automation Oy, 

Vespoo, FINLAND. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and TOG intends 

to file additional written notifications 

disclosing all changes in membership. 

On April 21, 1997, TOG filed its 

original notification pursuant to section 

6(a) of the Act. The Department of 

Justice published a notice in the Federal 

Register pursuant to section 6(b) of the 

Act on June 13, 1997 (62 FR 32371). 

The last notification was filed with 

the Department on June 29, 2023. A 

notice was published in the Federal 

Register pursuant to section 6(b) of the 

Act on August 23, 2023 (88 FR 57478). 

Suzanne Morris, 

Deputy Director Civil Enforcement 

Operations, Antitrust Division. 

[FR Doc. 2023–27558 Filed 12–14–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 22–48] 

APEXX Pharmacy, LLC; Decision and 

Order 

I. Introduction 

On August 2, 2022, the Administrator 

of the Drug Enforcement Administration 

(DEA or Government) issued an Order to 

Show Cause and Immediate Suspension 

of Registration (collectively, OSC) to 

APEXX Pharmacy, LLC (Respondent), of 

Hudson, Florida. OSC, at 1, 9. The OSC 

immediately suspended, and proposes 

the revocation of, Respondent’s DEA 

registration No. FA5493363, pursuant to 

21 U.S.C. 824(d) and (a)(4), and 21 

U.S.C. 823(g)(1).1 Id. at 1. The OSC more 

specifically alleges that Respondent’s 

‘‘continued registration is inconsistent 

with the public interest.’’ Id. It also 

alleges violations of Florida law. Supra 

n.1. 

The hearing Respondent requested 

was held on December 13 and 14, 2022. 

Hearing Transcript. The Recommended 

Rulings, Findings of Fact, Conclusions 

of Law, and Decision of the 

Administrative Law Judge (RD) 

concludes that Respondent’s registration 

should be revoked. RD, at 27. This 

Decision and Order, based solely on 

OSC allegations that Respondent filled 

controlled substances under the names 

of three individuals who, at the time, 

were deceased, agrees.2 Fla. Admin. 

Code r. 64B16–27.1001(4). Accordingly, 

the Agency will revoke Respondent’s 

registration. Infra Order. 

II. Findings of Fact 

The Allegation That Respondent Filled 

Controlled Substance Prescriptions 

Issued to Deceased Individuals 

The OSC alleges, among other things, 

that Respondent filled controlled 

substance prescriptions issued to 

individuals who, at the time, were 

deceased. OSC, at 9. According to the 

Government’s evidence, Respondent 

filled at least forty-seven such 

controlled substance prescriptions. See, 

e.g., GX 6–GX 8 and GX 12–GX 14. 

Respondent does not dispute that it 

filled the forty-seven Schedule II 

controlled substance prescriptions. See, 

e.g., Tr. 366. It does not, however, take 

responsibility for doing so. Instead, it 

maintains that it acted properly and 

suggests, without any documentary or 

evidentiary support, a complex and 

layered theory of misconduct by others. 

According to the testimony of 

Respondent’s owner/Pharmacist-inCharge (PIC), whom the Agency finds to 

be not credible, infra, the ‘‘only way’’ he 

can determine the validity of a 

prescription is to call the issuing doctor 

and ask whether the doctor wrote the 

specific elements of the order for the 

individual to whom the prescription is 

issued. Id. at 368–69. He testified that 

he does this for all of the prescriptions 

presented to his pharmacy. Id. at 369. 

He also testified that, for the forty-seven 

controlled substance prescriptions, each 

issuing doctor provided the verification. 

Id. 

Further, Respondent’s owner/PIC 

testified, for the forty-seven 

prescriptions, as with all other 

prescriptions, that ‘‘every patient that 

comes into the pharmacy ha[s] to have 

an ID,’’ that he ‘‘get[s] their ID,’’ and that 

he has ‘‘to have an ID that matches the 

person in front of . . . [him].’’ Tr. 367. 

He specifically testified that he 

‘‘always’’ makes a copy of the IDs to put 

in the pharmacy’s files, and that those 

prescriptions were not an exception.3

Id. 

While he acknowledged the 

Government-sponsored testimony that 

no copies of IDs presented for the fortyseven prescriptions were found in 

Respondent’s files, the owner/PIC 

testified that ‘‘that is impossible’’ 

because ‘‘[f]or every patient there ha[s] 

to be an ID to match the—the patient. 

They have to fill the information sheet 

and they have to give me an ID to match 

them and the prescription that they are 

filling.’’ Id. at 368. He further testified 

that he was provided IDs for the three 

deceased individuals’ prescriptions, that 

he made copies of them, and that ‘‘those 

IDs seem to match the prescriptions that 

were presented to’’ him. Id. The owner/ 

PIC could not recall whether, for each 

of the forty-seven prescriptions, the 

individual presenting the Schedule II 

controlled substance prescription 

provided an ID in hard copy or 

electronically. Id. at 367; see also RD, at 

23 (owner/PIC’s ‘‘testimony is 

undermined by his statement that he 

could not remember whether the 

customer presented a physical 

identification or emailed him one from 

a phone application’’). Regardless, as 

already noted, Respondent’s owner/PIC 

testified that he has ‘‘to have an ID that 

matches the person in front of . . . 

[him].’’ Tr. 367. 

When asked for his explanation as to 

how Respondent filled any of the fortyseven Schedule II controlled substance 

prescriptions issued to deceased 


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4PDMP stands for Prescription Drug Monitoring 

Program. 

5The credibility of Respondent’s owner/PIC is 

further eroded by his relentless pursuit of 

controlled substances sales and his willingness to 

violate legal requirements. See, e.g., GX 5, at 7 

(Respondent’s owner/PIC telling the undercover 

sponsor which days during the following week to 

bring in ‘‘some more people’’ whom the sponsor 

will be ‘‘taking to the doc’’), GX 5, at 3, 4 (showing 

how Respondent’s owner/PIC coached undercover 

sponsors and undercover officers on what to do to 

get the controlled substances from him that they 

want), and infra section V (addressing Respondent’s 

owner/PIC’s decision to close, permanently, the 

pharmacy’s back door). 

6Based on all of the above, the Agency does not 

credit Respondent’s submissions to E–FORCSE that 

the individuals who dropped off the forty-seven 

prescriptions and picked up the filled controlled 

substances were the individuals to whom the 

controlled substance prescriptions were issued. GX 

6, at 4, GX 7, at 4, and GX 8, at 4. 

Further, a violation of the Florida regulation that 

this Decision is applying, according to the 

regulation’s text, simply occurs when a pharmacy 

physically ‘‘dispenses’’ a controlled substance to a 

‘‘third party,’’ not to the individual in whose name 

the prescription is written. Cf., e.g., United States 

v. Green Drugs, 905 F.2d 694, 698 (3d Cir. 1990) 

(‘‘The defendants further argue that the result we 

enunciate here would allow the government to hold 

virtually any pharmacy liable for the most minor 

infraction even where the greatest care has been 

exercised and good faith demonstrated. This is a 

consequence that Congress likely accepted in 

enacting the [Controlled Substances] Act, and 

perhaps should be considered together with the 

broad discretion the district court has in assessing 

fines.’’). 

7Some prescriptions were written for Dilaudid 8 

mg and were filled with hydromorphone HCL 8 mg. 

See, e.g., GX 10, at 9–10, 13–18, and 25–28; GX 11, 

at 3–4, 19–20, 23–26, and 31–32. 

persons, Respondent’s owner/PIC 

testified that the ‘‘only thing’’ he ‘‘can 

think of is identity theft.’’ Tr. 366. In 

other words, instead of acknowledging 

the possibility that his actions led, in 

any way, to the diversion of Schedule II 

controlled substances ordered on any of 

the forty-seven prescriptions, 

Respondent’s owner/PIC engaged in 

speculation and misdirection. 

Respondent offered no documentary 

evidence to support the identity theft 

theory. Indeed, it should have had 

evidence to prove or disprove the 

identity theft theory had Respondent’s 

owner/PIC, as he testified (though not 

credibly), required the production of an 

ID that matched the individual 

presenting any of the forty-seven 

Schedule II controlled substance 

prescriptions, copied the ID, and put the 

copy in the pharmacy’s files. See supra 

n.3. The Diversion Investigator (DI), 

though, credibly testified that he did not 

see any such IDs in Respondent’s files 

for any of the forty-seven controlled 

substance prescriptions. Tr. 276–77; 

infra. 

Again, though, instead of 

acknowledging the possibility that its 

actions or inactions led, in any way, to 

there being no copies of IDs in the 

pharmacy’s files for any of the fortyseven prescriptions, Respondent 

suggested that the Government’s seizure 

of its files was the cause. See, e.g., 

Respondent Prehearing Statement, at 8 

(‘‘Proposed Documents—None because 

the Government seized all APEXX 

Pharmacy documents without a valid 

search warrant, as required pursuant to 

F.S. 465’’). 

Respondent did not, however, 

successfully develop its suggestions of 

Government responsibility for 

Respondent’s allegedly missing 

pharmacy records. Instead, the Special 

Agent (S/A) testified about the seizure 

of Respondent’s files, the DI testified 

about the content of those seized files, 

and the ALJ explicitly invited 

Respondent to develop its position 

through the cross-examination of both 

Government witnesses. See, e.g., Tr. 

123–31, 132–34, 136–37 (S/A 

testimony); id. at 126–27, 130, 134–36, 

139, 277 (Administrative Law JudgeRespondent colloquy); see also id. at 

206–09, (Respondent’s cross 

examination of S/A); id. at 272–73, 275– 

77 (Respondent’s cross examination of 

DI). However, Respondent did not 

successfully develop, on crossexamination of those two witnesses, its 

suggestion that Government error is the 

reason that there are no IDs in 

Respondent’s seized files for any of the 

forty-seven controlled substance 

prescriptions. Supra. Instead, 

Respondent’s owner/PIC testified that 

the Government’s exhibits, offered as 

including Respondent’s records 

regarding the forty-seven controlled 

substance prescriptions, ‘‘match what is 

on PDMP.’’ 4 Tr. 366; see also id. at 134. 

As it is Respondent that submitted these 

data to E–FORCSE, Florida’s PDMP, the 

fact that Respondent’s owner/PIC 

admits that the data in the 

Government’s exhibits match the data in 

the PDMP is further evidence of the 

soundness and legal sufficiency of the 

Government’s seizure of Respondent’s 

files and the lack of credibility of 

Respondent’s claims. 

In sum, Respondent is asking the 

Agency to credit its post hoc, concocted 

sequential claims that: (1) it always 

copies and files an ID that matches each 

person presenting a prescription, (2) on 

forty-seven occasions it was presented 

with IDs that matched the physical 

characteristics of the persons presenting 

the forty-seven prescriptions for 

Schedule II controlled substances, but 

those IDs were fake and part of the 

perpetration of forty-seven incidents of 

identity theft, (3) Respondent cannot 

document the forty-seven fake IDs 

because of unspecified Government 

errors during the Government’s search 

and seizure of Respondent’s files, (4) 

and Respondent cannot develop the 

parameters of the unspecified 

Government errors even though it was 

given ample opportunity to do so during 

the hearing. The Agency declines. 

After thoroughly reviewing the 

transmitted record, the Agency 

concludes that it will afford the 

testimony of both Government 

witnesses full credibility, and find that 

the testimony of Respondent’s owner/ 

PIC that conflicts with the Government 

witnesses’ testimonies is not credible or 

creditable.5 Accord RD, at 4, 5 

(Government witnesses); id. at 14 

(Respondent’s witness). Further, when 

testimony of Respondent’s owner/PIC 

conflicts with the testimony of a 

Government witness, the Agency will 

credit the testimony of the Government 

witness. Accord RD, at 14. 

Based on the record before it, the 

Agency finds uncontroverted evidence 

that Respondent, through Respondent’s 

owner/PIC, filled forty-seven controlled 

substance prescriptions issued to 

individuals who, at the time, were 

deceased.6 See, e.g., GX 6–GX 8 and GX 

12–GX 14; infra section III. The Agency 

further finds uncontroverted record 

evidence that, due to these fillings, 

Respondent diverted 1,040 

hydromorphone 8 mg tablets and 966 

oxycodone HCL 30 mg tablets, or a total 

of 2006 Schedule II controlled substance 

tablets.7 Id. The Agency concludes, 

based on substantial record evidence, 

that, since the individuals to whom 

these controlled substance prescriptions 

were issued were deceased, Respondent 

could not have ‘‘dispensed’’ the 

prescribed controlled substances to the 

individuals to whom the prescriptions 

were issued, and necessarily 

‘‘dispensed’’ each of these forty-seven 

controlled substance prescriptions to a 

‘‘third party’’ instead. GX 12–14; accord 

RD, at 24. 

The Agency also finds substantial 

record evidence that Respondent’s 

owner/PIC did not explain credibly why 

Respondent’s seized files do not contain 

any of the alleged copies of the deceased 

customers’ identifications that its 

owner/PIC testified he made when 

filling the forty-seven Schedule II 

controlled substance prescriptions. 

Supra. 

III. Florida Legal Prohibition on 

‘‘Dispensing’’ Prescriptions to ‘‘Third 

Parties’’ 

Among its other statutes and 

regulatory provisions concerning 

pharmacy standards of practice, Florida 

prohibits the ‘‘dispensing’’ of controlled 


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8Neither Respondent nor the Government argues 

that it offered evidence relevant to Factors A, C, or 

E. Although the Agency considered Factors A, C, 

and E, it finds that they are not relevant to this 

adjudication. Accord RD, at 16. 

9The testimony offering these serial attempts 

reflects poorly on the candor of Respondent’s 

owner/PIC. Supra section II. 

substances to a ‘‘third party.’’ Fla. 

Admin. Code r. 64B16–27.1001(4) 

(2010) (‘‘The pharmacist, as an integral 

aspect of dispensing, shall be directly 

and immediately available to the patient 

or the patient’s agent for consultation 

and shall not dispense to a third party. 

No prescription shall be deemed to be 

properly dispensed unless the 

pharmacist is personally available.’’). 

According to the clear text of the 

regulation, nothing beyond the physical 

‘‘dispensing’’ to a ‘‘third party’’ 

constitutes a violation. This regulation 

was in effect for the entire time covered 

by the OSC’s allegations and, therefore, 

applies to Respondent’s actions during 

that period. 

Having thoroughly analyzed all of the 

record evidence, the Agency finds 

substantial and undisputed record 

evidence that Respondent ‘‘dispensed’’ 

controlled substances, pursuant to 

prescriptions issued to deceased 

individuals, to ‘‘third parties’’ at least 

forty-seven times. See, e.g., GX 6–GX 8 

and GX 12–GX 14. 

IV. Discussion 

Under Section 304 of the CSA, ‘‘[a] 

registration . . . to . . . distribute[ ] or 

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 by such section.’’ 21 U.S.C. 

824(a)(4). In the case of a ‘‘practitioner,’’ 

which is defined in 21 U.S.C. 802(21) to 

include a ‘‘pharmacy,’’ Congress 

directed the Attorney General to 

consider five factors in making the 

public interest determination. 21 U.S.C. 

823(g)(1)(A–E). The five factors are 

considered in the disjunctive. Robert A. 

Leslie, M.D., 68 FR 15227, 15230 (2003). 

According to Agency decisions, the 

Agency ‘‘may rely on any one or a 

combination of factors and may give 

each factor the weight [it] deems 

appropriate in determining whether’’ to 

revoke a registration. Id.; see also Jones 

Total Health Care Pharmacy, LLC v. 

Drug Enf’t Admin., 881 F.3d 823, 830 

(11th Cir. 2018) (citing Akhtar-Zaidi v. 

Drug Enf’t Admin., 841 F.3d 707, 711 

(6th Cir. 2016)); MacKay v. Drug Enf’t 

Admin., 664 F.3d 808, 816 (10th Cir. 

2011); Volkman v. U. S. Drug Enf’t 

Admin., 567 F.3d 215, 222 (6th Cir. 

2009); Hoxie v. Drug Enf’t Admin., 419 

F.3d 477, 482 (6th Cir. 2005). Moreover, 

while the Agency is required to consider 

each of the factors, it ‘‘need not make 

explicit findings as to each one.’’ 

MacKay, 664 F.3d at 816 (quoting 

Volkman, 567 F.3d at 222); see also 

Hoxie, 419 F.3d at 482. ‘‘In short, . . . 

the Agency is not required to 

mechanically count up the factors and 

determine how many favor the 

Government and how many favor the 

registrant. Rather, it is an inquiry which 

focuses on protecting the public 

interest; what matters is the seriousness 

of the registrant’s misconduct.’’ Jayam 

Krishna-Iyer, M.D., 74 FR 459, 462 

(2009). Accordingly, as the Tenth 

Circuit has recognized, findings under a 

single factor can support the revocation 

of a registration. MacKay, 664 F.3d at 

821. 

According to DEA regulations, ‘‘[a]t 

any hearing for the revocation . . . of a 

registration, the . . . [Government] shall 

have the burden of proving that the 

requirements for such revocation . . . 

pursuant to . . . 21 U.S.C. 824(a) . . . 

are satisfied.’’ 21 CFR 1301.44(e). 

In this matter, while all of the 21 

U.S.C. 823(g)(1) factors have been 

considered, the Government’s evidence 

in support of its prima facie case 

regarding the forty-seven prescriptions 

is confined to Factors B and D.8

Government’s Proposed Findings of Fact 

and Conclusions of Law, at 19; see also 

RD, at 16. 

Factors B and/or D—Respondent’s 

Experience in Dispensing Controlled 

Substances and Compliance With 

Applicable Laws Related to Controlled 

Substances 

Florida regulations explicitly prohibit 

pharmacies from ‘‘dispensing’’ to ‘‘third 

parties.’’ Fla. Admin. Code r. 64B16– 

27.1001(4) (2010); supra sections II and 

III. The record evidence is 

uncontroverted that, at least forty-seven 

times, Respondent filled Schedule II 

controlled substance prescriptions when 

the persons to whom the prescriptions 

were issued were deceased. Due to these 

fillings, Respondent diverted 1,040 

hydromorphone 8 mg tablets and 966 

oxycodone HCL 30 mg tablets, or a total 

of 2006 Schedule II controlled substance 

tablets to ‘‘third parties.’’ Supra sections 

II and III. The Agency finds that, as a 

result of this ‘‘dispensing’’ to ‘‘third 

parties,’’ Respondent repeatedly 

violated applicable law, supporting the 

revocation of its registration. 21 U.S.C. 

824(a)(4) and Fla. Admin. Code r. 

64B16–27.1001(4) (2010). 

Accordingly, the Agency finds that 

Respondent’s continued registration is 

inconsistent with the public interest. 21 

U.S.C. 824(a)(4) and 823(g)(1)(B) and 

(D). 

V. Sanction 

Where, as here, the Government has 

met its prima facie burden of showing 

that Respondent’s continued registration 

is inconsistent with the public interest 

due to its numerous violations 

pertaining to controlled substances, the 

burden shifts to the Respondent to show 

why it can be entrusted with a 

registration. Garrett Howard Smith, 

M.D., 83 FR 18882 (2018). The issue of 

trust is necessarily a fact-dependent 

determination based on the 

circumstances presented by the 

individual respondent. Jeffrey Stein, 

M.D., 84 FR 46968, 46972 (2019). 

Moreover, as past performance is the 

best predictor of future performance, 

DEA Administrators have required that 

a registrant who has committed acts 

inconsistent with the public interest 

must accept responsibility for those acts 

and demonstrate that it will not engage 

in future misconduct. Id. A registrant’s 

acceptance of responsibility must be 

unequivocal. Id. In addition, a 

registrant’s candor during the 

investigation and hearing has been an 

important factor in determining 

acceptance of responsibility and the 

appropriate sanction. Id. Furthermore, 

DEA Administrators have found that the 

egregiousness and extent of the 

misconduct are significant factors in 

determining the appropriate sanction. 

Id. DEA Administrators have also 

considered the need to deter similar acts 

by the respondent and by the 

community of registrants. Id. 

Regarding these matters, there is no 

record evidence that Respondent, or its 

owner/PIC, takes responsibility, let 

alone unequivocal responsibility, for the 

founded, egregious violations involving 

the diversion of 2006 Schedule II 

controlled substance tablets. Supra 

sections II and IV. Instead, Respondent’s 

case consists of one debunked and 

failed attempt after another to shift the 

blame for the unlawful filling of at least 

forty-seven controlled substance 

prescriptions away from itself.9

The interests of specific and general 

deterrence weigh in favor of revocation. 

Respondent has not convinced the 

Agency that it understands that its 

controlled substance prescription filling 

fell short of the applicable legal 

standards and that this substandard 

filling has serious negative ramifications 

for the health, safety, and medical care 

of individuals who come to it for 

medicine. See, e.g., Garrett Howard 

Smith, M.D., 83 FR 18910 (collecting 

cases). As such, it is not reasonable to 


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10The Agency notes the record evidence, in GX 

5, of two incidents when Respondent’s owner/PIC 

declined to provide the undercover officers with 

additional controlled substances without a 

prescription. GX 5, at 6, 8–9. These incidents do not 

excuse Respondent’s owner/PIC’s otherwise laserfocused pursuit of controlled substances sales 

regardless of legal requirements. Supra section II. 

11Respondent’s owner/PIC testified that ‘‘filling 

controls is a lot of headache. You have to record 

it down, you have to go through a lot of process, 

and nobody wants to deal with that.’’ Tr. 297. 

Respondent’s owner/PIC further testified that when 

he worked for larger pharmacies in the past, he 

would tell customers that controlled substances 

were not in stock because he got paid the same 

amount whether he filled controlled or noncontrolled substances. Id. He testified, ‘‘why would 

pharmacies . . . want to fill a control medication 

for somebody when it can come back to haunt him 

when he can say I don’t have it, I will fill just the 

non-controls.’’ Id. 

12While only the evidence relating to the found 

violation, supra, was used to determine that the 

Government made a prima facie case, the entire 

record supports the Agency’s determination that 

Respondent’s owner/PIC is not credible and that, 

therefore, the Agency cannot entrust Respondent 

with a registration. 

13 GX 5, at 1 (‘‘S/A: ‘Can I drop you some more 

scripts?’ . . . . Respondent’s owner/PIC: ‘How 

many is there?’ ’’); GX 5, at 7 (‘‘Undercover Officer: 

‘I got some more people I’m taking to the doc. you 

good with me bringing them here again? Um next 

week.’ . . . . Respondent’s owner/PIC: ‘Next week, 

yeah, next week that’s fine.’ ’’). 

1Based on the Government’s submissions in its 

RFAA dated August 3, 2023, the Agency finds that 

service of the OSC on Registrant was adequate. 

Specifically, the included declaration by a DEA 

Diversion Investigator (DI) indicates that on March 

13, 2023, the DI personally ‘‘served [Respondent] a 

copy of the [OSC] by hand delivery.’’ RFAAX 2, at 

1. 

2Under the Administrative Procedure Act, an 

agency ‘‘may take official notice of facts at any stage 

in a proceeding—even in the final decision.’’ 

United States Department of Justice, Attorney 

General’s Manual on the Administrative Procedure 

Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 

1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an 

agency decision rests on official notice of a material 

fact not appearing in the evidence in the record, a 

believe that Respondent’s future 

controlled substance prescription filling 

will comply with legal requirements.10

Indeed, Respondent’s owner/PIC’s own 

testimony suggests that he has no 

intention of complying with the CSA in 

the future because he believes 

compliance is unduly burdensome.11

Further, given the foundational nature 

and vast number of Respondent’s 

violations, a sanction less than 

revocation would send a message to the 

existing and prospective registrant 

community that compliance with the 

law is not a condition precedent to 

maintaining a registration. 

The Agency finds that it cannot 

entrust Respondent with a 

registration.12 It finds that Respondent’s 

actions were motivated by profiting 

while avoiding DEA’s detection and 

lacked any genuine care for the health 

and welfare of its customers. For 

example, the record evidence shows 

that Respondent coached customers 

regarding what to write on their forms 

in order to get the desired controlled 

substances, see, e.g., GX 5, at 3, 4, and 

shows the complete willingness of 

Respondent’s owner/PIC to continue to 

fill the controlled substance 

prescriptions that S/A and undercover 

officer ‘‘sponsors’’ were bringing him. 

GX 5, at 1, 7.13

Respondent’s owner/PIC’s testimony 

regarding those matters further erodes 

the Agency’s trust in the truthfulness of 

Respondent’s owner/PIC and in the 

ability of Respondent to maintain a 

registration in compliance with the law. 

In sum, the record supports the 

imposition of a sanction because 

Respondent did not unequivocally 

accept responsibility for its egregious 

and extensive violations, and has not 

convinced the Agency that it can be 

entrusted with a registration. 

Accordingly, the Agency shall order 

the sanction the Government requested, 

as contained in the Order below. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

824(a)(4), I hereby revoke DEA 

registration No. FA5493363 issued to 

APEXX Pharmacy, LLC. Further, 

pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

823(g)(1), I hereby deny any pending 

application of APEXX Pharmacy, LLC, 

for a DEA Registration in Florida. This 

Order is effective January 16, 2024. 

Signing Authority 

This document of the Drug 

Enforcement Administration was signed 

on December 7, 2023, by Administrator 

Anne Milgram. That document with the 

original signature and date is 

maintained by DEA. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DEA Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

DEA. This administrative process in no 

way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Heather Achbach, 

Federal Register Liaison Officer, Drug 

Enforcement Administration. 

[FR Doc. 2023–27524 Filed 12–14–23; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Gary R. Wisner, M.D.; Decision and 

Order 

On March 1, 2023, the Drug 

Enforcement Administration (DEA or 

Government) issued an Order to Show 

Cause (OSC) to Gary R. Wisner, M.D. 

(Registrant). Request for Final Agency 

Action (RFAA), Exhibit (RFAAX) 1, at 1, 

3. The OSC proposed the revocation of 

Registrant’s Certificates of Registration 

(COR) Nos. FW8432471 and 

AW2971073 at the registered addresses 

of 621 S. Ham Ln., Ste. A, Lodi, 

California 95242, and 16246 N. Locust 

Tree Road, Lodi, California 95240, 

respectively. Id. at 1. The OSC alleged 

that Registrant’s registrations should be 

revoked because Registrant was 

‘‘without authority to prescribe, 

administer, dispense, or otherwise 

handle controlled substances in the 

State of California, the state in which 

[he is] registered with DEA.’’ Id. at 2 

(citing, inter alia, 21 U.S.C. 824(a)(3); 21 

CFR 1301.37(b)). 

The OSC notified Registrant of his 

right to file with DEA a written request 

for hearing, and that if he failed to file 

such a request, he would be deemed to 

be in default. Id. at 2 (citing 21 CFR 

1301.43(c)(1)). Here, Registrant did not 

request a hearing. RFAA, at 1.1 ‘‘A 

default, unless excused, shall be 

deemed to constitute a waiver of the 

[registrant’s] right to a hearing and an 

admission of the factual allegations of 

the [OSC].’’ 21 CFR 1301.43(e). 

Further, ‘‘[i]n the event that a 

registrant . . . is deemed to be in 

default . . . DEA may then file a request 

for final agency action with the 

Administrator, along with a record to 

support its request. In such 

circumstances, the Administrator may 

enter a default final order pursuant to 

[21 CFR] 1316.67.’’ Id. 1301.43(f)(1). 

Here, the Government has requested 

final agency action based on Registrant’s 

default pursuant to 21 CFR 1301.43(c), 

(f), and 1301.46. RFAA, at 1. 

Findings of Fact 

The Agency finds that, in light of 

Registrant’s default, the factual 

allegations in the OSC are admitted. 

According to the OSC, ‘‘[e]ffective 

January 30, 2023, as part of an 

agreement with the [Medical Board of 

California] . . . [Registrant] surrendered 

[his] license to practice medicine in the 

State of California.’’ RFAAX 1, at 1–2. 

According to California’s online 

records, of which the Agency takes 

official notice, the status of Registrant’s 

physician and surgeon license (type A) 

is listed as surrendered, and he is not 

permitted to practice.2 California 


ddrumheller on DSK120RN23PROD with NOTICES1