2904 Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Notices 

1 In spite of Applicant’s discontinuance of 

business, its application remains pending and I will 

continue to assess the application under 21 U.S.C. 

823. See Lawrence E. Stewart, M.D., 86 FR 15,257 

(2021). 

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 

party is entitled, on timely request, to an 

opportunity to show the contrary.’’ Accordingly, 

Applicant may dispute my finding by filing a 

properly supported motion for reconsideration of 

finding of fact within fifteen calendar days of the 

date of this Order. Any such motion and response 

shall be filed and served by email to the other party 

and to Office of the Administrator, Drug 

Enforcement Administration at 

dea.addo.attorneys@dea.usdoj.gov. 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Tel-Pharmacy; Decision and Order 

On August 3, 2017, the then Acting 

Assistant Administrator, Diversion 

Control Division, Drug Enforcement 

Administration (hereinafter, 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to TelPharmacy (hereinafter, Applicant) of 

Coconut Creek, Florida. OSC, at 1. The 

OSC proposed the denial of Applicant’s 

application for DEA Certificate of 

Registration No. W16006664A. It alleged 

that Applicant ‘‘does not have authority 

to operate a pharmacy in Florida, the 

state for which it seeks a [DEA 

registration].’’ Id. (citing 21 U.S.C. 

823(f)). Specifically, the OSC alleged 

that Applicant’s Florida pharmacy 

permit expired on February 28, 2017, 

and was not renewed. Id. at 2. 

The OSC notified Applicant of the 

right to request a hearing on the 

allegations or to submit a written 

statement, while waiving the right to a 

hearing, the procedures for electing each 

option, and the consequences for failing 

to elect either option. Id. at 2 (citing 21 

CFR 1301.43). The OSC also notified 

Applicant of the opportunity to submit 

a corrective action plan. Id. at 2–3 

(citing 21 U.S.C. 824(c)(2)(C)). 

Adequacy of Service 

In a Declaration dated December 6, 

2021, a Diversion Investigator 

(hereinafter, the DI) assigned to the 

DEA’s Miami Field Division stated that 

on August 4, 2017, a Special Agent and 

Task Force Officer from DEA’s Miami 

Field Division hand-delivered a copy of 

the OSC to Applicant’s agent at the 

agent’s residence. Request for Final 

Agency Action (hereinafter, RFAA), 

Exhibit (hereinafter, RFAAX) 1, at 1–2; 

see also RFAAX 1, Appendix 

(hereinafter, App.) B. 

The Government forwarded its RFAA, 

along with the evidentiary record, to 

this office on December 8, 2021. In its 

RFAA, the Government represents that 

‘‘neither [Applicant] nor any attorney 

representing [Applicant] has requested a 

hearing’’ nor ‘‘has [Applicant] nor any 

attorney for [Applicant] submitted a 

written statement.’’ RFAA, at 2. The 

Government ‘‘seeks to deny 

[Applicant’s] application for a [DEA 

registration] because [Applicant] lacks 

authority to handle controlled 

substances in [Florida], the state in 

which it seeks registration with DEA.’’ 

Id. at 1. Accordingly, the Government 

requests that the Administrator deny 

Applicant’s application. Id. at 5. 

Based on the DI’s Declaration, the 

Government’s written representations, 

and my review of the record, I find that 

the Government accomplished service 

of the OSC on Applicant on August 4, 

2017. I also find that more than thirty 

days have now passed since the 

Government accomplished service of 

the OSC. Further, based on the 

Government’s written representations, I 

find that neither Applicant, nor anyone 

purporting to represent the Applicant, 

requested a hearing, submitted a written 

statement while waiving Applicant’s 

right to a hearing, or submitted a 

corrective action plan. Accordingly, I 

find that Applicant has waived the right 

to a hearing and the right to submit a 

written statement and corrective action 

plan. 21 CFR 1301.43(d) and 21 U.S.C. 

824(c)(2)(C). I, therefore, issue this 

Decision and Order based on the record 

submitted by the Government, which 

constitutes the entire record before me. 

21 CFR 1301.43(e). 

Findings of Fact 

Applicant’s Application for DEA 

Registration 

On or about January 27, 2016, 

Applicant submitted an application for 

a DEA Certificate of Registration as a 

retail pharmacy in Schedules II through 

V with a proposed registered address at 

5489 Wiles Rd. 302, Coconut Creek, FL 

33073. RFAAX 1, App. A, at 1. 

Applicant’s application was assigned 

Control No. W16006664A.1 Id. 

The Status of Applicant’s State License 

In her Declaration, the DI stated that 

as of December 6, 2021, Applicant’s 

state license was listed as ‘‘null and 

void’’ on the Florida Department of 

Health website. RFAAX 1, at 2; see also 

RFAAX 1, App. C. According to the 

Florida Department of Health’s online 

records, of which I take official notice, 

Applicant’s state pharmacy registration 

PH29813 is ‘‘null and void.’’ 2 Florida 

Department of Health’s License 

Verification, https://mqainternet.doh.state.fl.us/ 

MQASearchServices/Home (last visited 

date of signature of this Order). 

Accordingly, I find that Applicant is 

not currently licensed to engage in the 

practice of pharmacy in Florida, the 

state in which Applicant applied for 

registration with the DEA. 

Discussion 

Pursuant to 21 U.S.C. 824(a)(3), the 

Attorney General is authorized to 

suspend or revoke a registration issued 

under section 823 of the Controlled 

Substances Act (hereinafter, CSA) 

‘‘upon a finding that the registrant . . . 

has had [its] State license or registration 

suspended . . . [or] revoked . . . by 

competent State authority and is no 

longer authorized by State law to engage 

in the . . . dispensing of controlled 

substances.’’ With respect to a 

practitioner, the DEA has also long held 

that the possession of authority to 

dispense controlled substances under 

the laws of the state in which a 

practitioner engages in professional 

practice is a fundamental condition for 

obtaining and maintaining a 

practitioner’s registration. See, e.g., 

James L. Hooper, M.D., 76 FR 71,371 

(2011), pet. for rev. denied, 481 F. App’x 

826 (4th Cir. 2012); Frederick Marsh 

Blanton, M.D., 43 FR 27,616, 27,617 

(1978). 

This rule derives from the text of two 

provisions of the CSA. First, Congress 

defined the term ‘‘practitioner’’ to mean 

‘‘a pharmacy . . . or other person 

licensed, registered, or otherwise 

permitted, by . . . the jurisdiction in 

which he practices . . . , to distribute, 

dispense, . . . [or] administer . . . a 

controlled substance in the course of 

professional practice.’’ 21 U.S.C. 

802(21). Second, in setting the 

requirements for obtaining a 

practitioner’s registration, Congress 

directed that ‘‘[t]he Attorney General 

shall register practitioners . . . if the 

applicant is authorized to dispense . . . 

controlled substances under the laws of 

the State in which he practices.’’ 21 

U.S.C. 823(f). Because Congress has 

clearly mandated that a practitioner 

possess state authority in order to be 

deemed a practitioner under the CSA, 

the DEA has held repeatedly that 

revocation of a practitioner’s registration 

is the appropriate sanction whenever he 

is no longer authorized to dispense 

controlled substances under the laws of 

the state in which he practices. See, e.g., 


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Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Notices 2905 

3 ‘‘Medicinal Drugs’’ or ‘‘Drugs’’ means ‘‘those 

substances or preparations commonly known as 

‘prescription’ or ‘legend’ drugs which are required 

by federal or state law to be dispensed only on a 

prescription . . . .’’ Fla. Stat. Ann. 465.003(8). 

*A [This footnote has been relocated from RD n.5.] 

At all times prior to and during the hearing, the 

Respondent was represented by multiple, able 

counsel. The Respondent’s (then) counsels raised 

no issue during the proceedings or in the 

Respondent’s closing brief regarding the fairness of 

the proceedings. The day after its closing brief was 

filed, the Respondent sought to discharge its 

lawyers and opted to have itself represented by its 

(non-lawyer) owner. ALJ Ex. 56. Acting as a nonattorney representative (see 21 CFR 1316.50), the 

Respondent’s owner moved to disqualify the 

Government’s expert and to recuse me [the Chief 

ALJ]. ALJ Exs. 57, 58, 61. These motions have been 

disposed of in separate orders issued 

contemporaneously with this recommended 

decision. ALJ Exs. 67, 68. A joint motion to be 

excused from further representation of the 

Respondent (ALJ Ex. 60) filed by his lawyers (at the 

request of the tribunal) was granted for the reasons 

stated therein. ALJ Ex. 62. 

[I agree with the Chief ALJ’s procedural rulings 

in this case, including his dismissal of 

Respondent’s two recusal motions. In these 

motions, Respondent argued that the Chief ALJ 

‘‘den[ied] Respondent [the] right to a fair trial’’ by 

‘‘creat[ing] an atmosphere of prejudice and lack of 

impartiality.’’ ALJ Ex. 57, at 3. Respondent further 

argued that the Chief ALJ ‘‘morphed [the 

Government’s case] into a plausible case’’ by 

‘‘w[earing] the hat of the Government’s lawyer 

during most of the witness examination.’’ Id. at 2. 

Respondent’s motions reference portions of the 

record where the Chief ALJ assisted the 

Government in authenticating documents and 

questioning its witnesses. Although Respondent 

acknowledged that ALJs are permitted to question 

witnesses, Respondent argues that the Chief ALJ 

used his questioning authority to buttress the 

Government’s case and ‘‘patch[ ] up areas where 

there were obvious gaps in the Government’s case,’’ 

while not ‘‘provid[ing] the same helping hand to 

Respondent when Respondent was attempting to 

authenticate documents that Respondent believes 

were critical to its defense. Id. at 5, 10. 

Additionally, Respondent alleged that it was 

inappropriate for the Chief ALJ to ask Respondent’s 

representative, Dr. Howard, whether he agreed with 

certain testimony by Respondent’s expert, because 

it ‘‘placed . . . Dr. Howard in an awkward position 

to have to incriminate his own expert just to 

appease the ALJ.’’ Id. at 26, 30. 

I find that Respondent’s recusal motions are 

without merit. As the Chief ALJ stated in his neutral 

and carefully-reasoned dismissal order, 

Respondent—the proponent of the recusal motion— 

has the burden of demonstrating that the Chief ALJ 

exhibited a ‘‘deep-seated favoritism or antagonism 

that would make fair judgment impossible.’’ Order 

Denying the Respondent’s Recusal Motions, at 6. 

Respondent did not identify any evidence of 

favoritism or antagonism, much less the type of 

deep-seated favoritism or antagonism that would 

make fair judgment impossible. Rather, Respondent 

identified instances where the Chief ALJ was 

exercising his discretionary authority to regulate the 

hearing, by asking clarifying questions of counsel 

and witnesses and issuing evidentiary rulings. See 

Order, at 7 (citing 5 U.S.C. 556(c)(5); 21 CFR 

1316.52(e)). Courts have uniformly held that 

judicial rulings issued during the course of 

litigation rarely constitute evidence of cognizable 

bias. Id. (citing Liteky v. United States, 510 U.S. 

540, 555 (1994), Hamm v. Members of Bd. of 

Regents, 708 F.2d 647, 651 (11th Cir. 1983), Dewey 

C. Mackay, M.D., 75 FR 49,956, 49,958–59 (2010)). 

Additionally, as the Chief ALJ highlighted in his 

dismissal order, the Chief ALJ frequently clarified 

the record for Respondent’s benefit and 

overwhelmingly issued evidentiary rulings in 

Respondent’s favor. Id. at 8–9. Furthermore, 

Respondent’s recusal motions were untimely, 

which is an independent basis for their dismissal. 

Id. at 7, 15–16. 

Beyond the substantive and procedural defects of 

Respondent’s recusal motions, the motions convey 

a contemptuous tone towards the Chief ALJ, which 

supports my decision that Respondent’s registration 

is inconsistent with the public interest. Respondent 

was particularly outraged that the Chief ALJ 

questioned Respondent’s representative about 

whether he agreed with the Respondent’s expert’s 

expressions of hostility towards DEA as a regulator. 

Based on Respondent’s attitude towards DEA and 

the Chief ALJ, I find it unlikely that Respondent 

would modify its behavior and become a lawabiding, cooperative registrant. Certainly, 

Respondent’s focus on repudiating the Chief ALJ 

rather than acknowledging its own misconduct 

shows that it falls far short of the ‘‘true remorse’’ 

that is required when a registrant has committed 

acts that are inconsistent with the public interest. 

Michael S. Moore, M.D., 76 FR 45,867, 45,877 

(2011). 

For the same reasons stated above, I find that 

Respondent’s Exceptions to ALJ’s Denial of 

Respondent’s Motions for Recusal and Request for 

Expedited Ruling on the Order Denying Recusal are 

without merit. ALJ Ex. 69 (dated April 27, 2021).] 

James L. Hooper, 76 FR 71,371–72; 

Sheran Arden Yeates, M.D., 71 FR 

39,130, 39,131 (2006); Dominick A. 

Ricci, M.D., 58 FR 51,104, 51,105 (1993); 

Bobby Watts, M.D., 53 FR 11,919, 11,920 

(1988); Frederick Marsh Blanton, 43 FR 

27,617. 

According to Florida statute, ‘‘It is 

unlawful for any person to own, 

operate, maintain, open, establish, 

conduct, or have charge of, either alone 

or with another person or persons, a 

pharmacy: (a) Which is not registered 

under the provisions of this chapter.’’ 

Fla. Stat. Ann. 465.015(1). Further, ‘‘the 

practice of the profession of pharmacy’’ 

definition ‘‘includes compounding, 

dispensing, and consulting concerning 

contents, therapeutic values, and uses of 

any medicinal drug 3 . . . .’’ Fla. Stat. 

Ann. 465.003(13) (West, 2021). 

Here, the undisputed evidence in the 

record is that Applicant currently lacks 

authority to operate a pharmacy in 

Florida. As already discussed, a 

pharmacy must be a licensed to 

dispense a medicinal drug, including a 

controlled substance, in Florida. Thus, 

because Applicant lacks authority to 

practice pharmacy in Florida and, 

therefore, is not authorized to dispense 

controlled substances in Florida, 

Applicant is not eligible to receive a 

DEA registration. Accordingly, I will 

order that Applicant’s application for a 

DEA registration be denied. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

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

823(f), I hereby order that the pending 

application for a Certificate of 

Registration, Control Number 

W16006664A, submitted by TelPharmacy, is denied, as well as any 

other pending application of TelPharmacy for additional registration in 

Florida. This Order is effective February 

18, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–00956 Filed 1–18–22; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 20–08] 

AARRIC, Inc. d/b/a at Cost RX; 

Decision and Order 

On January 3, 2020, a former Acting 

Administrator of the Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause and Immediate Suspension of 

Registration (hereinafter, OSC) to 

AARRIC, Inc. d/b/a AT COST RX 

(hereinafter, Respondent). 

Administrative Law Judge Exhibit 

(hereinafter, ALJ Ex.) 1, (OSC) at 1. The 

OSC/ISO informed Respondent of the 

immediate suspension of its DEA 

Certificate of Registration Number 

FA2125640 (hereinafter, registration or 

COR) and proposed its revocation, the 

denial of any pending applications for 

renewal or modification of such 

registration, and the denial of any 

pending applications for additional DEA 

registrations pursuant to 21 U.S.C. 

824(a)(4) and 823(f), because 

Respondent’s ‘‘continued registration is 

inconsistent with the public interest.’’ 

Id. (citing 21 U.S.C. 824(a)(4) and 

823(f)). 

In response to the OSC, Respondent 

timely requested a hearing before an 

Administrative Law Judge. ALJ Ex. 2. 

The hearing in this matter was 

conducted from November 16–20, 2020, 

at the DEA Hearing Facility in 

Arlington, Virginia, with the parties and 

their witnesses participating through 

video-teleconference.*A On April 7, 

2021, Chief Administrative Law Judge 

John J. Mulrooney, II (hereinafter, Chief 

ALJ) issued his Recommended Rulings, 

Findings of Fact, Conclusions of Law 

and Decision (hereinafter, 

Recommended Decision or RD). On 


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