Federal Register / Vol. 75, No. 206 / Tuesday, October 26, 2010 / Notices 65667 

Conclusion 

The investigative record shows that 

Respondent materially falsified his July 

2008 application and that he repeatedly 

prescribed controlled substances in 

violation of both Oklahoma and Federal 

law. The record thus establishes two 

independent and adequate grounds for 

revoking Respondent’s registration and 

denying his application to modify his 

registration. Accordingly, Respondent’s 

registration will be revoked and his 

application will be denied. 

Order 

Pursuant to the authority vested in me 

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

28 CFR 0.100(b) & 0.104, I order that 

DEA Certificate of Registration, 

AJ6783535, issued to Gilbert Eugene 

Johnson, M.D., be, and it hereby is, 

revoked. I further order that the pending 

application of Gilbert Eugene Johnson, 

M.D., to modify his registration, be, and 

it hereby is, denied. This Order is 

effective November 26, 2010. 

Dated: October 14, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27028 Filed 10–25–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Lincoln Pharmacy; Revocation of 

Registration 

On March 26, 2010, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration (Order) to Lincoln 

Pharmacy (Respondent), of Edison, New 

Jersey. The Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, BL4082222, 

and the denial of any pending 

applications to renew or modify its 

registration, on the ground that 

Respondent’s ‘‘continued registration is 

inconsistent with the public interest.’’ 

Order at 1 (citing 21 U.S.C. 823(f) & 

824(a)(4)). 

The Order alleged that Respondent 

‘‘routinely filled fraudulent 

prescriptions for highly addictive and 

abused controlled substances’’ and 

therefore violated 21 U.S.C. 841(a)(1) 

and 21 CFR 1306.04. Id. More 

specifically, the Order alleged that 

Respondent had filled six fraudulent 

prescriptions for Roxicodone and 

oxycodone, which are schedule II 

controlled substances, in exchange for 

cash on multiple occasions to wit: (1) 

On January 14, 2010, it filled three 

prescriptions totaling 540 dosage units 

of Roxicodone (30 mg.) for $975 in cash; 

(2) on January 21, 2010, it filled one 

prescription totaling 120 dosage units of 

oxycodone (30 mg.) for $215 in cash; 

and (3) on January 28, 2010, it filled two 

prescriptions totaling 360 tablets of 

oxycodone for $650 in cash. Id. at 1–2. 

Based on the above, I concluded that 

Respondent’s ‘‘continued registration 

during the pendency of these 

proceedings would constitute an 

imminent danger to the public health 

and safety.’’ Id. at 2. I therefore 

exercised my authority under 21 U.S.C. 

824(d) and immediately suspended 

Respondent’s registration. Id. 

On April 6, 2010, the Order, which 

also notified Respondent 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 so, 

and the consequence of failing to do so, 

was served on it. Id. at 2–3 (citing 21 

CFR 1301.43(a), (c), (d) & (e)). Since that 

time, neither Respondent, nor anyone 

purporting to represent it, has either 

requested a hearing or submitted a 

written statement in lieu of a hearing. 

Thirty days now having passed since 

the Order was served on Respondent, I 

conclude that Respondent has waived 

its right to a hearing. See 21 CFR 

1301.43(b) & (d). I therefore issue this 

Decision and Final Order based on the 

evidence contained in the investigative 

record submitted by the Government. Id. 

1301.43(e). I make the following 

findings. 

Findings 

Respondent is a retail pharmacy 

located at 52 Lincoln Highway, Edison, 

New Jersey, which is owned and 

operated by Mr. Vincent Hsia, a 

registered pharmacist. Respondent is the 

holder of Certificate of Registration, 

BL4082222, which authorizes it to 

dispense controlled substances in 

schedules II through V as a retail 

pharmacy. Respondent’s registration 

does not expire until March 31, 2012. 

On January 14, 2010, at shortly after 

7 p.m., a cooperating source (CS) went 

to Respondent and presented three 

prescriptions to Mr. Hsia. Each of the 

prescriptions was for 180 tablets of 

Roxicodone (oxycodone) 30 mg., 

contained dosing instructions, stated 

‘‘chronic intractable pain,’’ and was 

signed. While it is unclear whether the 

prescriptions the CS presented 

contained a patient name, the evidence 

which includes three cash-register 

receipts, the vials and the drugs, shows 

that at approximately 7:17 through 7:22 

p.m., Hsia delivered the three vials, 

each containing 180 tablets of 

Roxicodone 30 mg. (for a total of 540 

tablets), to the CS and charged him $325 

in cash for each vial for a total of $975. 

The prescriptions listed the patients as 

Chris DiMarco of Clark, NJ; Rudy Lore, 

also purportedly of Clark; and Paul 

Smith of Rahway, NJ. 

On January 21, 2010, at 7:45 p.m., the 

CS returned to Respondent and 

presented a prescription for 180 tablets 

of oxycodone 30 mg. This prescription 

listed the patient as Michael Williams of 

Newark, NJ. According to the transcript 

of a recording of the CS’s conversation 

with Mr. Hsia, at one point the CS 

asked: ‘‘Quick questions. Since I’m 

moving [expletive deleted] moving these 

things really fast, is there any way you 

could write for more than 180? There 

isn’t, right?’’ Hsia replied: ‘‘I don’t really 

even like filling for 180.’’ The CS then 

mentioned that an associate had told 

him that ‘‘you could get 240 all the time 

or somethin[g].’’ Hsia replied: ‘‘I can’t 

even give you 180. I have to give you 

120. Cause it doesn’t say chronic 

intractable pain.’’ Hsia subsequently 

distributed 120 tablets of oxycodone 30 

mg. to the CS. 

On January 27, 2010, the CS called 

Hsia to ask him what phrase needed to 

be on the prescription to justify 

dispensing the larger quantity. Hsia told 

him ‘‘chronic intractable pain.’’ The 

following day, the CS returned to 

Respondent and presented two more 

prescriptions for 180 tablets of 

oxycodone 30 mg. which appear to have 

included the notation of ‘‘chronic 

intractable pain.’’ One of the 

prescriptions listed the patient as Paul 

Fusatola of Belleville, NJ; the other as 

Rachel Billis of Nutley, NJ. The CS paid 

$325 in cash for each prescription and 

Hsia distributed two vials, each 

containing 180 tablets of oxycodone 30 

mg., to the CS. 

Discussion 

Section 304(a) of the Controlled 

Substances Act provides that ‘‘[a] 

registration * * * 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 determining the 

public interest in the case of a 

practitioner, the Act directs that the 

Attorney General consider the following 

factors: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 


emcdonald on DSK2BSOYB1PROD with NOTICES
65668 Federal Register / Vol. 75, No. 206 / Tuesday, October 26, 2010 / Notices 

1As the Supreme Court recently explained, ‘‘the 

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 (1975)). 

(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. 

Id. § 823(f). 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 

M.D., 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 a registration 

should be revoked and/or an application 

should be denied. Id. Moreover, it is 

well settled that I am ‘‘not required to 

make findings as to all of the factors.’’ 

Hoxie v. DEA, 419 F.3d 477, 482 (6th 

Cir. 2005); see also Morall v. DEA, 412 

F.3d 165, 173–74 (D.C. Cir. 2005). 

However, the Government has the 

burden of proof. 21 CFR 1301.44(d) & 

(e). 

Having considered all of the factors, I 

conclude that the evidence pertinent to 

factors two and four makes out a prima 

facie showing that Respondent ‘‘has 

committed such acts as would render 

[its] registration * * * inconsistent with 

the public interest.’’ 21 U.S.C. 824(a)(4). 

Accordingly, Respondent’s registration 

will be revoked and any pending 

applications will be denied. 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Compliance With 

Applicable Laws Relating to Controlled 

Substances 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is unlawful unless it has been ‘‘issued 

for a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). The 

regulation further provides that while 

‘‘[t]he responsibility for the proper 

prescribing and dispensing of controlled 

substances is upon the prescribing 

practitioner, * * * a corresponding 

responsibility rests with the pharmacist 

who fills the prescription.’’ Id. (emphasis 

added). Continuing, the regulation states 

that ‘‘the person knowingly filling such 

a purported prescription, as well as the 

person issuing it, [is] subject to the 

penalties provided for violations of the 

provisions of law relating to controlled 

substances.’’ Id. 

DEA has consistently interpreted this 

provision as prohibiting a pharmacist 

from filling a prescription for a 

controlled substance when he either 

‘‘knows or has reason to know that the 

prescription was not written for a 

legitimate medical purpose.’’ Medic-Aid 

Pharmacy, 55 FR 30043, 30044 (1990); 

see also Frank’s Corner Pharmacy, 60 

FR 17574, 17576 (1995); Ralph J. 

Bertolino, 55 FR 4729, 4730 (1990); 

United States v. Seelig, 622 F.2d 207, 

213 (6th Cir. 1980). This Agency has 

further held that ‘‘[w]hen prescriptions 

are clearly not issued for legitimate 

medical purposes, a pharmacist may 

not intentionally close his eyes and 

thereby avoid [actual] knowledge of the 

real purpose of the prescription.’’ 

Bertolino, 55 FR at 4730 (citations 

omitted).1

The evidence here shows that on 

multiple occasions, Respondent violated 

Federal law by dispensing prescriptions 

for oxycodone 30 mg., a schedule II 

controlled substance (see 21 CFR 

1308.12(b)), which Mr. Hsia, its owner 

and pharmacist in charge, knew were 

not ‘‘issued for a legitimate medical 

purpose’’ by a ‘‘practitioner acting in the 

usual course of his professional 

practice.’’ Id. 1306.04(a); see also 21 

U.S.C. 841(a)(1) (‘‘Except as authorized 

by this subchapter, it shall be unlawful 

for any persons knowingly or 

intentionally * * * to distribute[] or 

dispense * * * a controlled 

substance.’’). 

More specifically, the evidence shows 

that on January 14, 2010, a CS 

simultaneously presented three 

prescriptions, each for 180 tablets of 

Roxicodone (oxycodone) 30 mg., to 

Hsia. Hsia then proceeded to fill the 

prescriptions and distributed the drugs 

to the CS from whom he received $975 

in cash. Hsia clearly knew that the 

prescriptions were unlawful as the CS 

presented all three prescriptions (all of 

which for the same drug and quantity) 

at the same time and Hsia used three 

different patient names (Chris DeMarco, 

Rudy Lore and Paul Smith) on the 

prescription labels so as to hide the fact 

(in the event he was inspected) that he 

had distributed the drugs to a single 

person. In short, Hsia knowingly 

engaged in a drug deal. 21 U.S.C. 

§ 841(a)(1). 

The evidence further shows that on 

January 21, 2010, Hsia again unlawfully 

distributed 120 tablets of oxycodone 30 

mg. to the CS in exchange for $215 in 

cash. Moreover, at the time the CS 

presented the prescription (which was 

in the name of Michael Williams) to 

Hsia, the CS told Hsia that he was reselling the drugs, explaining that they 

were ‘‘moving these things really fast’’ 

and asked if he could get more than 180 

tablets. While on this occasion Hsia 

only distributed 120 tablets to the CS 

(apparently because the prescription did 

not state ‘‘chronic intractable pain’’), he 

clearly knew that the CS was seeking 

the drugs for an illegal purpose and not 

to treat a legitimate medical condition. 

Hsia thus again violated 21 U.S.C. 

§ 841(a)(1). 

Finally, on January 28, 2010, the CS 

presented two more prescriptions to 

Hsia; the prescriptions listed two 

different persons (Paul Fusatola and 

Rachel Billis) as the patients. Each 

prescription was for 180 tablets of 

oxycodone 30 mg. and indicated that it 

was for ‘‘chronic intractable pain.’’ Hsia 

again distributed both prescriptions to 

the CS from whom he received $650 in 

cash, knowing that the CS was seeking 

the drugs for an illegal purpose. Hsia 

thus committed two additional 

violations of the CSA by unlawfully 

distributing controlled substances in 

violation of 21 U.S.C. § 841(a)(1). 

As the forgoing demonstrates, 

Respondent’s owner Mr. Hsia has used 

its registration to engage in blatant drug 

dealing. I therefore hold that 

Respondent has committed multiple 

acts which render its registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 824(a)(4). Accordingly, 

Respondent’s registration will be 

revoked and any pending application 

will be denied. For the same reasons 

that I immediately suspended 

Respondent’s registration, I conclude 

that public interest requires that this 

Order be effective immediately. 

Order 

Pursuant to the authority vested in me 

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

28 CFR 0.100(b) & 0.104, I hereby order 

that DEA Certificate of Registration, 

BL4082222, issued to Lincoln 

Pharmacy, be, and it hereby is, revoked. 

I further order that any pending 

application of Lincoln Pharmacy for 

renewal or modification of its 

registration be, and it hereby is, denied. 

This Order is effective immediately. 

Dated: October 15, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27026 Filed 10–25–10; 8:45 am] 

BILLING CODE 4410–09–P 


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