17574 Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices

Additional Sites not owned by the

debtors will be discharged under the

bankruptcy laws but will be liquidated

and satisfied as general unsecured

claims if and when the United States or

the States undertake enforcement

activities in the ordinary course.

Finally, the Settlement Agreement

provides the United States with an

allowed claim of $1,176,000 for civil

penalties for violations of the Clean

Water Act, 33 U.S.C. 1251 et seq., at an

Eagle-Picher facility in Joplin, Missouri.

The Department of Justice will receive

comments relating to the proposed

Settlement Agreement for 30 days

following the publication of this Notice.

Comments should be addressed to the

Assistant Attorney General of the

Environment and Natural Resources

Division, Department of Justice,

Washington, DC 20530, and should refer

to In re Eagle-Picher Industries, Inc., et

al., D.J. Ref. No. 90–11–3–747.

Commenters may request an

opportunity for a public meeting in the

affected area, in accordance with

Section 7003(d) of RCRA.

The proposed Settlement Agreement

may be examined at the Office of the

United States Attorney for the Southern

District of Ohio, U.S. Post Office &

Courthouse, 5th & Walnut Streets, Room

220, Cincinnati, Ohio 45202; the Region

V Office of the United States

Environmental Protection Agency, 77

West Jackson Street, Chicago, Illinois

60604; and at the Consent Decree

Library, 1120 G Street NW., 4th Floor,

Washington, DC 20005 (202–624–0892).

A copy of the proposed Settlement

Agreement may be obtained in person or

by mail from the Consent Decree

Library, 1120 G Street NW., 4th Floor,

Washington, DC 20005. In requesting a

copy of the Settlement Agreement

without attachments, please enclose a

check in the amount of $13.50 (25 cents

per page for reproduction costs),

payable to the Consent Decree Library.

In requesting a copy of the Settlement

Agreement with attachments, please

enclose a check in the amount of $33.00

(25 cents per page for reproduction

costs), payable to the Consent Decree

Library.

Joel M. Gross,

Acting Section Chief, Environmental

Enforcement Section, Environment and

Natural Resources Division.

[FR Doc. 95–8484 Filed 4–5–95; 8:45 am]

BILLING CODE 4410–01–M

Notice of Lodging of Consent Decree

Pursuant to the Clean Water Act

In accordance with Departmental

policy, 28 CFR 50.7, notice is hereby

given that a proposed consent decree in

United States v. City of Fort Morgan,

Civil Action No. 94–C–492, was lodged

on March 21, 1995 in the United States

District Court for the District of

Colorado. The consent decree settles an

action brought under the Clean Water

Act (the ‘‘Act’’), 33 U.S.C. 1251 et seq.

seeking an injunction and civil penalties

for the City of Fort Morgan’s violations

of the Act and for violations of the

General Pretreatment Regulations, 40

CFR Part 403. Pursuant to the consent

decree, the City has agreed to pay a civil

penalty of $268,000 and agreed to

institute a comprehensive compliance

program to bring the City into

compliance with all requirements of the

pretreatment regulations.

The Department of Justice will

receive, for a period of thirty (30) days

from the date of this publication,

comments relating to the proposed

consent decree. Comments should be

addressed to the Assistant Attorney

General for the Environment and

Natural Resources Division, Department

of Justice, Washington, DC 20530, and

should refer to United States v. City of

Fort Morgan, DOJ Ref. #90–5–1–1–4041.

The proposed consent decree may be

examined at the office of the United

States Attorney, 1961 Stout Street, Suite

1200, Denver, Colorado 80294; and at

the Consent Decree Library, 1120 G

Street NW., 4th Floor, Washington, DC

20005, (202) 624–0892. A copy of the

proposed consent decree may be

obtained in person or by mail from the

Consent Decree Library, 1120 G Street

NW., 4th Floor, Washington, DC 20005.

In requesting a copy please refer to the

referenced case and enclose a check in

the amount of $5.50 (25 cents per page

reproduction costs), payable to the

Consent Decree Library.

Joel Gross,

Acting Chief, Environmental Enforcement

Section.

[FR Doc. 95–8483 Filed 4–5–95; 8:45 am]

BILLING CODE 4410–01–M

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993; Petroleum Environmental

Research Forum (‘‘PERF’’) Project No.

92–25

Notice is hereby given that, on

December 16, 1994, pursuant to Section

6(a) of the National Cooperative

Research and Production Act of 1993,

15 U.S.C. 4301 et seq. (‘‘the Act’’),

Conoco Inc., acting on behalf of the

participants in the PERF Project No. 93–

25, has filed written notifications

simultaneously with the Attorney

General and the Federal Trade

Commission disclosing (1) the identities

of the parties and (2) the nature and

objectives of the venture. The

notifications were filed for the purpose

of invoking the Act’s provisions limiting

the recovery of antitrust plaintiffs to

actual damages under specified

circumstances. Pursuant to Section 6(b)

of the Act, the identities of the parties

are: Amoco Oil Co., Naperville, IL; BP

Oil Co., Cleveland, OH; Conoco Inc.,

Houston, TX; Gas Research Institute,

Chicago, IL; Oryx Energy, Dallas, TX;

Texaco Inc., Port Arthur, TX; ANR

Pipeline, Detroit, MI; Chevron Research

& Technology, Richmond, CA; Exxon

Research & Engineering Co., Florham

Park, NJ; Mobil Inc., Princeton, NJ; Shell

Development C., Houston, TX; and

Union Oil Company of California, Brea,

CA.

The nature and objectives of the

research program performed in

accordance with PERF Project No. 93–

25 are to perform remediation studies of

contaminated groundwater via air

sparging, biosparging, or other

innovative delivery systems.

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 95–8485 Filed 4–5–95; 8:45 am]

BILLING CODE 4410–01–M

Drug Enforcement Administration

[Docket No. 93–51]

Frank’s Corner Pharmacy; Revocation

of Registration

On June 4, 1993, the Deputy Assistant

Administrator (then Director), Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Frank’s Corner

Pharmacy (Respondent), of Detroit,

Michigan, proposing to revoke its DEA

Certificate of Registration, BF1175466,

and deny any pending applications for

renewal of such registration. The

statutory basis for the Order to Show

Cause was that Respondent’s continued

registration would be inconsistent with

the public interest pursuant to 21 U.S.C.

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

On July 23, 1993, Respondent,

through counsel, requested a hearing on

the issues raised in the Order to Show

Cause and the matter was docketed

before Administrative Law Judge Paul

A. Tenney. Following prehearing

procedures, a hearing was held in

Detroit, Michigan on May 3 and 4, 1994.

On August 29, 1994, Judge Tenney

issued his Findings of Fact, Conclusions

of Law and Recommended Ruling
Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices 17575

recommending that Respondent’s

registration be suspended for a period

not exceeding six months. The

Government filed exceptions to Judge

Tenney’s opinion on September 19,

1994. Respondent filed its exceptions to

Judge Tenney’s opinion and its response

to the Government’s exceptions on

September 30, 1994, and filed

corrections to those exceptions on

October 11, 1994.

On October 14, 1994, the

administrative law judge transmitted the

record of these proceedings, including

the exceptions, to the Deputy

Administrator. The Deputy

Administrator has considered the record

in its entirety and hereby issues his final

order pursuant to 21 CFR 1316.67, based

upon the findings of fact and

conclusions of law as set forth herein.

The administrative law judge found

that, in September 1986, Alvin

Goldstein, R.Ph (Mr. Goldstein), a

pharmacist licensed by the State of

Michigan, became a 50% stockholder

owner of Respondent, a pharmacy

licensed and operated in the State of

Michigan. From September 1987

onward, Respondent’s principal

stockholder and operator has been Mr.

Goldstein.

On October 5, 1989, the Michigan

Board of Pharmacy (the Board) filed an

administrative complaint charging

Respondent and Mr. Goldstein with

violations of Michigan regulations

pertaining to controlled substance

recordkeeping and shortages of

controlled substances based upon an

audit conducted by the Board on June

29, 1988. The Board’s initial order was

appealed to the Michigan Circuit Court

for the County of Oakland where it was

affirmed in part, and reversed in part,

on January 14, 1994. The circuit court

affirmed the Board’s order to the extent

it found that Respondent and Mr.

Goldstein: (1) Were responsible for

shortages of controlled substances

(including Darvocet, Tylenol with

codeine #4, and Valium); (2) were

negligent in the practice of pharmacy;

(3) were incompetent under applicable

Michigan State law based upon a 14%

shortage of Darvocet; (4) failed to

comply with a state administrative

subpoena by not supplying the state

investigators with records required to be

kept pursuant to Michigan law; and (5)

failed to produce drug utilization

reports as required under Michigan law.

The circuit court remanded the case

back to the Board which issued its

Amended Final Order on Remand on

April 22, 1994. The amended order

suspended Respondent’s controlled

substances license for a period of three

months. Mr. Goldstein was ordered to

pay a $5,000 fine and placed on

probation for one year and Respondent

pharmacy also was placed on probation

for one year.

On February 28, 1991, DEA

conducted an audit of four controlled

substances covering the period June 6,

1990 through February 28, 1991,

following reports of excessive purchases

of controlled substances by Respondent

from local drug distributors. The audit

revealed a shortage of 1,870 dosage

units of Valium 10 milligram tablets.

Respondent’s computer dispensing

records for the period covering February

2, 1990 through February 7, 1991,

revealed that 78 entries lacked

corresponding paper prescriptions

which should have been retained by

Respondent. Mr. Goldstein subsequently

found, and produced at the hearing, a

number of prescriptions which he

maintained had been accidentally

placed at his home with other

prescriptions for non-controlled

substances. Judge Tenney found that

Mr. Goldstein was responsible for the

unaccounted prescriptions.

In addition, the investigation revealed

that Respondent dispensed a

combination of glutethimide (brand

name ‘‘Doriden’’) and Tylenol #4, a

combination known to have a high

abuse potential and which typically is

not prescribed for a legitimate medical

purpose. Mr. Goldstein testified that he

did not agree with manufacturers’

guidelines with respect to glutethimide

because new studies may refute those

guidelines. He also testified that he did

not receive any information from the

State of Michigan, the DEA or any other

source notifying him that glutethimide

in combination with Tylenol #4 is

dangerous or should not be prescribed

in excess of seven dosage units.

Judge Tenney found that Mr.

Goldstein knew or should have known

of the dangers of combining the

controlled substances and chose to

‘‘shut his eyes’’ while filling

prescriptions. He further found that the

prescriptions were not issued in the

usual course of professional treatment.

On several occasions Respondent

dispensed two prescriptions of the same

or similar controlled substance to the

same individual within days of

dispensing the original prescription.

The prescriptions in question typically

were issued by different physicians. In

one such example, a physician issued

an individual a prescription for 30

dosage units of Tylenol #3 on January

24, 1990, which was dispensed by

Respondent on January 25, 1990. On

January 29, 1990, a second physician

issued a 30 dosage unit prescription for

Tylenol #4 to the same individual,

which was dispensed by Respondent on

the same date-four days after the initial

prescription was dispensed.

This patter continued approximately

every two months through February

1991, with the individual obtaining two

or more prescriptions for Tylenol #3 and

#4, from a combination of four

physicians, which Respondent would

subsequently dispense within days of

each prescription. At the hearing on this

matter, Mr. Goldstein testified that he

had contacted each of the prescribing

physicians who indicated that, although

the individual was a drug addict, Mr.

Goldstein should not be concerned

about the prescriptions.

Prescriptins written for two other

individuals were filled under similar

circumstances. Respondent received a

prescription issued to one individual for

30 dosage units of Tylenol #3 on June

4, 1990, which was dispensed the same

day. Respondent then dispensed

another prescription for Tylenol #3

written to the same person by a second

physician on June 7, 1990. Under the

instructions of the first prescription, this

individual should not have finished the

prescription for seven days. Respondent

dispensed the second prescription only

three days after the first.

On January 10, 1990, a third

individual was issued a prescription for

30 dosage units of Tylenol #4 with one

refill. This prescription was dispensed

by Respondent on January 15, 1990.

Two days later, Respondent dispensed a

second prescription for 30 dosage units

of Tylenol #4 to the individual based on

the prescription of a different physician.

Throughout 1990, this individual

received two prescriptions for Tylenol #

approximately every two months, from

two different physicians. The

prescriptions were dispensed by

Respondent within days of each other.

One physician informed Mr. Goldstein

that this individual was a codeine

addict.

The DEA investigator, who testified at

the hearing, placed some reliance on the

number of days set forth in

Respondent’s computer records as to the

amount of days that should pass prior

to refilling prescriptions. In response,

Mr. Goldstein testified that his

computer record of the number of days

that should pass prior to refiling a

prescription is an arbitrary number and

does not represent the number of days

that should pass before a prescription is

refilled. Judge Tenney, while accepting

Mr. Goldstein’s explanation of the

numbers, found that the practice of

dispensing prescriptions for the same

controlled substances to one patient,

from several doctors, over an excessive
17576 Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices

period of time to be in violation of 21

CFR 1306.04.

The computer printout of

prescriptions from Respondent obtained

through the audit revealed that one

individual was dispensed 40 Tylenol #3

tablets two times on January 17, 1990,

based on one prescription. On April 5,

1990, a ‘‘double entry’’ also was noted

for a prescription for Valium to the same

person. Mr. Goldstein testified that the

individual required two separate

identification numbers for insurance

billing purposes, so that Respondent

could bill the insurance carrier for the

cost of the prescription and Medicaid

for the co-payment. Mr. Goldstein

offered the same explanation for the

‘‘double dispensing’ of Tylenol #3 to

another individual on November 26,

1990.

The administrative law judge also

found persuasive evidence of other

recordkeeping and dispensing

violations, including dispensing a

prescription without a DEA registration

number on the prescription; dispensing

three refills of Tylenol #3 to an

individual without authorization from

the prescribing physician; and

dispensing a prescription that was not

signed by the issuing physician.

Judge Tenney noted several possible

mitigating factors. First, Respondent is

located in a low social economic area

where many patients are Medicaid

recipients. Second, Mr. Goldstein’s

contentions that he was not informed

that glutethimide had been reclassified

from a Schedule III to a Schedule II

controlled substance, nor was he put on

notice as to any potential danger

concerning glutethimide. Third, Mr.

Goldstein testified, as evidence toward

his care in dispensing controlled

substances, that he would confiscate

prescriptions that he felt were not

legitimate.

In determining whether Respondent’s

continued registration by DEA would be

inconsistent with public interest, as that

term is used under 21 U.S.C. 823 and

824, the Deputy Administrator

considers the following factors set forth

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

(1) The recommendation of the

appropriate State licensing board or

professional disciplinary authority;

(2) The applicant’s experience in

dispensing or conducting research with

respect to 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; and

(5) Such other conduct which may

threaten public health and safety.

The Deputy Administrator is not

required to make findings with respect

to each of the above enumerated factors,

but, instead, has the discretion to give

each factor the weight he deems

appropriate, depending on the facts and

circumstances of each case. See, Henry

J. Schwartz, Jr., M.D., 54 16422 (1989).

The administrative law judge found

that the Government had met its burden

of proof with respect to factors (1), (2),

(4), and (5) as set forth under 21 U.S.C.

823(f). Factor (1) was met based upon

the Michigan Board of Pharmacy

proceedings taken against Respondent

and Mr. Goldstein. The ultimate

findings established significant

shortages for several controlled

substances pursuant to an audit

completed in 1989, and also

encompassed other recordkeeping

violations.

Judge Tenney found that the DEA had

met its burden of proof with respect to

Factor (2) based upon indications from

Respondent’s records that Respondent

had dispensed unauthorized

prescriptions as reflected in the fact that

Respondent could not account for 19

paper copies of prescriptions.

Additionally, Respondent, on numerous

occasions, dispensed a prescription

refill before the prior prescription could

have been completely consumed by the

patient, as determined by the

prescribing physician’s directions or

based on the estimates Respondent had

placed in its dispensing records, and

that on many occasions the original and

the refills were issued by different

physicians. Judge Tenney noted that a

pharmacy may be found in violation of

the public interest where the pharmacy

dispensed controlled substances before

the prior expiration period had expired

and based upon evidence that the

pharmacy had accepted many

prescriptions from various physicians

for the same substance and patient. See

Ralph J. Bertolino’s Pharmacy, 55 FR

4729 (1990). Additionally, where

Respondent knowingly dispensed these

refills to individuals who were

characterized by their physicians as

‘‘addicts’’, Respondent’s actions pose a

threat to public health and safety.

The administrative law judge found

factor (4) was met by evidence that

Respondent dispensed a prescription

without a physician’s signature and

dispensed another prescription without

a DEA registration number in violation

of 21 CFR 1306.04(a). Further, the

shortages in Respondent’s controlled

substance inventory, as revealed by the

DEA audit, constitute a violation of 21

U.S.C. 842(a)(5).

Finally, concerning factor (5), and

with regard to Mr. Goldstein’s testimony

that the glutethimide and Tylenol

prescriptions were ‘‘legal’’ and therefore

he was not concerned about dispensing

combinations of these drugs, Judge

Tenney found that a pharmacy has a

responsibility, with respect to

controlled substances, to do more than

merely fill prescriptions as written by a

physician. A pharmacy is obligated to

refuse to fill a prescription if it knows,

or has reason to know that the

prescription was not written for a

legitimate medical purpose. Medic-Aid

Pharmacy, 55 FR 30043 (1989).

Indications that a prescription is not for

legitimate medical use include filling

prescriptions for customers who

received controlled substances in

quantities far exceeding those

recommended by the Physician’s Desk

Reference, too frequently and for

excessive periods of time. Id.

Verification of the prescription with the

prescribing doctor is not necessarily

enough. See United States v. Hayes, 595

F. 2d 258, 260 (5th Cir. 1989). Judge

Tenney found that Mr. Goldstein

purposely ignored suspicious

prescribing practices by dispensing

prescriptions clearly not issued for a

legitimate medical purpose by

presuming that the prescriptions were

legal because the physicians’ signatures

did not appear to be forged.

Judge Tenney recommended that

Respondent’s registration be suspended

for a period not to exceed six months.

He based this recommendation on the

fact that the Michigan Board of

Pharmacy previously had suspended

Respondent’s license for three months

and had placed Mr. Goldstein on

probation for a year and ordered

payment of a fine of $5,000, and,

therefore, had exacted ‘‘full and fair

retribution’’ for Respondent’s actions.

Charles A. Buscema, M.D., 59 FR 42857

(1994).

The Deputy Administrator has

carefully reviewed the entire record and

adopts all of the administrative law

judge’s findings of fact, with the

exception of the following: (1) Mr.

Goldstein’s testimony concerning the

arbitrary nature of his computer records

pertaining to the number of days that

should pass before a prescription is

refilled; (2) Mr. Goldstein’s testimony

regarding instances of creating double

computer entries for each dispensed

prescription as his method of

accounting for insurance billing

purposes. The Deputy Administrator

also concurs with Judge Tenney’s

conclusion that the Government has met

its burden with respect to public
Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Notices 17577

interest factors (1), (2), (4), and (5) under

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

The Deputy Administrator,

concurring with the Government’s

exceptions, does not agree with Judge

Tenney’s finding that Respondent’s

location in a low socio-economic area

constitutes a mitigating factor for

Respondent’s numerous violations of

the laws and regulations relating to

controlled substances. The Deputy

Administrator similarly rejects as a

mitigating factor, Respondent’s plea of

good faith ignorance in that he was not

actually informed of the reclassification

of glutethimide from a Schedule III to a

Schedule II controlled substance.

The Deputy Administrator disagrees

with, and declines to follow, Judge

Tenney’s proposed suspension of

Respondent’s registration. Judge

Tenney’s reliance on Buscema is not

applicable to the facts in the instant

case. In Buscema, Judge Tenney found

that Respondent’s actions in failing to

account for the disposition of Schedule

II controlled substances and his

subsequent guilty plea to a felony

charge of falsifying records concerning

controlled substances, occurred over a

limited period of time and was

motivated by his desire to protect his

wife, an employee of his office and a

subsequently rehabilitated drug addict

suspected of diverting the missing drugs

for her own use. In finding that the State

of New York had exacted ‘‘full and fair’’

retribution and recommending that Dr.

Buscema’s registration not be revoked,

Judge Tenney found, and the Deputy

Administrator concurred, that Dr.

Buscema had served his probationary

sentence, had been discharged from

probation two and one-half years early

and had accepted responsibility for his

conduct and failures regarding his

wife’s chemical dependency.

The Deputy Administrator finds that

the leniency exercised in Buscema

should not similarly be extended to

Respondent in this proceeding.

Respondent’s numerous recordkeeping

violations have resulted in the diversion

of large quantities of controlled

substances to a number of individuals,

including drug addicts. Further, these

violations were ongoing while previous

violations by the State of Michigan were

being appealed, and, therefore, the State

of Michigan cannot be found to have

exacted its ‘‘retribution’’ against

Respondent for violations which it

never had the opportunity to address.

Additionally, as noted in Judge

Tenney’s thorough Findings of Fact,

even aside from the numerous

recordkeeping violations, Respondent

also diverted large amounts of Tylenol

with codeine and glutethimide for no

legitimate medical purpose. Finally,

contrary to Dr. Buscema’s acceptance of

responsibility for his actions, Mr.

Goldstein, owner of Respondent

pharmacy, continues to deny any

misconduct, including those State

violations upheld on appeal.

The Deputy Administrator finds merit

in all of the Government’s exceptions,

and further finds that Respondent’s

ongoing violations of Federal and State

controlled substance rules and

regulations strongly indicate that his

continued registration with DEA would

not be consistent with the public

interest.

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824 and 28 CFR 0.100(b) and 0.104,

hereby orders that DEA Certificate of

Registration, BF1175466, issued to

Frank’s Corner Pharmacy, be and it

hereby is, revoked, and that any

pending applications for registration be

denied.

This order is effective May 8, 1995.

Dated: March 30, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95–8402 Filed 4–5–95; 8:45 am]

BILLING CODE 4410–09–M

[Docket No. 93–46]

Ellis Turk, M.D.; Revocation of

Registration

On April 15, 1993, the Deputy

Assistant Administrator (then Director),

Office of Diversion Control, Drug

Enforcement Administration (DEA),

issued an Order to Show Cause to Ellis

Turk, M.D. (Respondent), of Baltimore,

Maryland, proposing to revoke his DEA

Certificate of Registration, AT2444711,

and deny any pending applications for

renewal of such registration as a

practitioner. The statutory basis for the

Order to Show Cause was that

Respondent’s continued registration

would be inconsistent with the public

interest pursuant to 21 U.S.C. 823(f) and

824(a)(4).

Respondent, through counsel,

requested a hearing on the issues raised

in the Order to Show Cause and the

matter was docketed before

Administrative Law Judge Mary Ellen

Bittner. On November 11, 1993,

Respondent voluntarily discharged his

counsel and continued pro se.

Following prehearing procedures, a

hearing was held before Judge Bittner in

Arlington, Virginia on November 22,

1993. On February 16, 1994, after the

Government submitted its post-hearing

brief, Respondent filed Response of Ellis

Turk, M.D. to Government’s Proposed

Findings of Fact, Conclusions of Law

and Argument (the ‘‘Respondent’s

Response’’). The Government filed a

Motion to Strike Respondent’s Response

on February 18, 1994, on the grounds

that the rules governing DEA

administrative hearings (specifically 21

CFR 1316.64) do not permit such a

responsive pleading. The Respondent

filed a Response to Motion to Strike

Respondent’s Response on March 9,

1994.

On June 7, 1994, Judge Bittner issued

her Opinion and Recommended Ruling,

Findings of Fact, Conclusions of Law

and Decision recommending that

Respondent’s DEA registration be

revoked and any pending applications

be denied. As part of the opinion, Judge

Bittner allowed the Government’s

motion and struck Respondent’s

Response. Additionally, she allowed the

Government’s motion to strike specific

exhibits filed by Respondent with his

post-hearing brief. No exceptions to the

Opinion were filed by either party even

after an extension of time to ensure

service of the opinion on the

Respondent.

On July 8, 1994, the administrative

law judge transmitted the record to the

Deputy Administrator, including the

Respondent’s Response and the exhibits

struck by Judge Bittner. On September

28, 1994, Respondent, through newly

retained counsel, filed a Motion to

Remand and Open the Record to Hear

New Evidence with the Deputy

Administrator of the DEA. The

Government filed its opposition to

Respondent’s motion on October 13,

1994.

The Deputy Administrator has

considered the record in its entirety,

and, enters his final order in this matter

pursuant to 21 CFR 1316.67, based on

findings of fact and conclusions of law

as set forth herein. The Deputy

Administrator, concurring with the

administrative law judge in her decision

to strike Respondent’s Response and

exhibits filed post-hearing, did not

consider those documents in rendering

his final order.

The administrative law judge found

that, in 1987, DEA received

approximately ten reports from drug

distributors that Respondent had

purchased excessive quantities of the

controlled substances phentermine and

phendimetrazine. On two occasions in

December 1988, DEA and Maryland

State drug inspectors, pursuant to an

administrative inspection warrant,

conducted an accountability audit of

controlled substances at Respondent’s

office, covering the period from