Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices 66149 

on an opinion of an Investigator who lacked 

adequate information to properly assess his 

credibility. Moreover, the inconsistency between 

Respondent’s claim that in prescribing for 

eDrugstore he only wrote a ‘‘small minority’’ of 

controlled substance prescriptions and the evidence 

regarding the total number of prescriptions, the 

amounts he was paid for the respective types of 

prescriptions, and his compensation, provides 

further reason to question the ALJ’s conclusion. 

The ALJ also found it significant that the Agency 

had not produced any evidence that Respondent 

mishandled controlled substances since the 

institution of the proceeding. However, because 

Respondent failed to file a timely renewal 

application, thus allowing his registration to expire 

(and also had his State license suspended), he 

lacked authority to handle controlled substances for 

a substantial portion of this period. In addition, the 

weight to be given this circumstance is significantly 

diminished by the fact that he was then in the midst 

of a Show Cause Proceeding. 

Finally, the ALJ did not cite any evidence to 

support her belief that ‘‘this proceeding has instilled 

in the Respondent a grave respect for the authority 

and responsibility which attach to his DEA 

registration.’’ ALJ at 32. Given the egregious 

misconduct proved on this record, rather than take 

a leap of faith, I rely on the Agency’s longstanding 

rule which requires that a registrant acknowledge 

his misconduct and the relevant evidence or, as in 

this case, the lack thereof. 

1Therein, Respondent denied the allegations 

maintaining that ‘‘Mr. Fletcher, based on his 

experience, training, and expertise, reasonably 

believed that all prescriptions filled were for a 

legitimate medical purpose’’ and that he ‘‘frequently 

exercised independent judgment to determine if the 

prescriptions were for legitimate medical purposes, 

and often refused to fill prescriptions written by 

licensed medical doctors, including Dr. Volkman.’’ 

ALJ Ex. 2, at 2. 

Respondent’s application will be 

denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824(a), as well as 28 CFR 

0.100(b) & 0.104, I order that the 

pending application of George Mathew, 

M.D., for a DEA Certificate of 

Registration as a practitioner be, and it 

hereby is, denied. This Order is effective 

November 26, 2010. 

Dated: October 17, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27094 Filed 10–26–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–48] 

East Main Street Pharmacy; Affirmance 

of Suspension Order 

On April 23, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to East Main Street 

Pharmacy (‘‘Respondent’’), of Columbus, 

Ohio. The Show Cause Order proposed 

the revocation of Respondent’s DEA 

Certificate of Registration, BE5902615, 

as a retail pharmacy, as well as the 

denial of any pending applications to 

renew or modify its registration, ‘‘for 

reason that [Respondent’s] continued 

registration is inconsistent with the 

public interest, as that term is used in 

21 U.S.C. 823(f) and 824(a)(4).’’ ALJ Ex. 

1, at 1. More specifically, the Order 

alleged that Respondent had violated its 

corresponding responsibility under 

Federal regulations to not fill unlawful 

prescriptions. Id. at 2 (citing 21 CFR 

1306.04(a)). 

The Show Cause Order alleged that 

Respondent was owned by Eugene H. 

Fletcher, Respondent’s sole pharmacist, 

and that from ‘‘September 2005 through 

February 2006’’ it ‘‘filled 6,619 

controlled substance prescriptions’’ 

including 4,979 prescriptions issued by 

Dr. Paul Volkman of Portsmouth, Ohio. 

Id. at 1. The Show Cause Order further 

alleged that on February 10, 2006, DEA 

had immediately suspended Volkman’s 

registration and that the Agency 

subsequently found that he had 

‘‘‘repeatedly violated Federal law by 

prescribing controlled substances 

without a legitimate medical purpose 

and outside the course of professional 

practice.’’’ Id. (citing Paul H. Volkman, 

73 FR 30630, 30642 (2008)). The Order 

also alleged that ‘‘Dr. Volkman directed 

his patients to have their prescriptions 

filled at’’ Respondent, who ‘‘filled them 

mostly in exchange for cash,’’ and that 

‘‘[n]inety-eight percent of Dr. Volkman’s 

patients that filled their prescriptions at 

[Respondent] did not reside in the 

Columbus area.’’ Id. Relatedly, the Order 

alleged that some of Volkman’s patients 

travelled from Portsmouth and 

Chillicothe, Ohio to Respondent, a 

distance of 92 and 45 miles, 

respectively; that one of Volkman’s 

patients had travelled from South 

Central Kentucky to Respondent to 

obtain his prescriptions, that many of 

Volkman’s patients were obtaining 

prescriptions from other physicians, and 

that several of these persons died of 

overdoses. Id. at 2. 

The Show Cause Order further alleged 

that Respondent ‘‘filled prescriptions for 

combinations of controlled substances 

and the non-controlled, but highly 

addictive drug carisoprodal [sic] (Soma), 

under circumstances indicating that the 

prescriptions were issued outside the 

usual course of professional practice.’’ 

Id. at 2. More specifically, the Order 

alleged that Respondent filled for 

numerous patients of Volkman, ‘‘large 

quantity prescriptions’’ for a 

benzodiazepine, two narcotic pain 

medications, and Soma, and that 

‘‘[t]hese drug combinations are generally 

known in the medical and pharmacy 

profession as being favored by drugseeking individuals.’’ Id. The Order also 

alleged that Respondent ‘‘filled several 

of the above combination prescriptions 

when the patients should have had two 

to three weeks’ supply of medication 

from a previous prescription’’ and it 

either ‘‘did not recognize, or ignored 

these indicators of drug diversion and 

abuse.’’ Id. 

Finally, the Order alleged that, with 

regard to Dr. Volkman’s prescriptions, 

Mr. Fletcher had told a DEA Investigator 

‘‘that it was ‘not [his] job to question a 

physician.’ ’’ Id. Based on the above, the 

Order alleged that Respondent ‘‘knew, or 

should have known that [the] controlled 

substance prescriptions it filled for 

patients of Dr. Volkman were for no 

legitimate medical purpose.’’ Id. 

By letter of May 20, 2009, counsel for 

Respondent timely requested a hearing.1

ALJ Ex. 2, at 1. The matter was then 

placed on the docket of the Agency’s 

Administrative Law Judges (ALJs), and 

an ALJ proceeded to conduct prehearing procedures. 

On May 26, 2009, the ALJ issued an 

Order for Pre-Hearing Statements. ALJ 

Ex. 14. The ALJ’s order directed the 

parties to prepare a written statement, to 

be filed with the Hearing Clerk and 

served on opposing counsel, disclosing 

the ‘‘names and addresses of all 

witnesses whose testimony is to be 

presented.’’ Id. at 2. The ALJ further 

ordered the parties to provide a: 

[b]rief summary of the testimony of each 

witness, with the Government to indicate 

clearly each and every act, omission or 

occurrence upon which it relies in seeking to 

revoke Respondent’s DEA Certificate of 

Registration, and the Respondent to indicate 

clearly each and every matter as to which it 

intends to introduce evidence in opposition 

thereto. The summaries are to state what the 

testimony will be, rather than merely listing 

the areas to be covered. The parties are 

reminded that testimony not disclosed in the 

prehearing statements or pursuant to 

subsequent filing is likely to be excluded at 

the hearing. 

Id. 

On July 31, 2009, the ALJ conducted 

a pre-hearing conference call with the 

parties and also issued a Prehearing 

Ruling. See ALJ Ex. 3. In her Prehearing 

Ruling, the ALJ ordered that ‘‘[i]f either 

party chooses to amend its witness list, 

it must file a supplement to its 

Prehearing Statement, noting any 

changes. The names of additional 

witnesses must be listed, along with a 

summary of the proposed testimony.’’ 

Id. at 2. The ALJ further ‘‘reminded’’ the 

parties ‘‘that testimony not summarized 

in prehearing statements or 


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2On February 4, 2010, the Government filed a 

motion in limine to exclude the testimony of 

various witnesses for Respondent on the ground 

that their names and an adequate summary of their 

testimony had not been previously disclosed as 

required by the ALJ’s Order for Pre-Hearing 

Statements. ALJ Ex. 20. At the hearing on March 23, 

the Government renewed its motion. The ALJ found 

that Respondent’s Counsel had violated her Order 

because ‘‘the Summary of Witnesses [sic] 

testimonies was not provided by the deadlines, and 

the summary that was provided is topical in nature, 

and not specific’’ and did not provide ‘‘full 

disclosure of proposed witness testimony.’’ Tr. 786– 

87. While deeming ‘‘such conduct abhorrent’’ and 

acknowledging that the Government’s Motion ‘‘in 

all [of] parameters should be granted,’’ she 

nonetheless allowed Respondent to call all of its 

witnesses even though the Government was ‘‘being 

prejudiced’’ by the inadequacy of the disclosure. Id. 

at 786–88. This was because the ALJ understood 

that she has ‘‘a responsibility to develop a record.’’ 

Id. at 787. 

The ALJ’s comments reflect a clear 

misunderstanding of her role. Proceedings under 

sections 303 and 304 of the Controlled Substances 

Act are adversarial and not inquisitorial in nature. 

As such, it is not the ALJ’s role but rather that of 

the parties to develop the record; the ALJ’s role is 

to ensure that the parties do so in accordance with 

the Agency’s rules of procedure and the 

Administrative Procedure Act and that the 

proceeding is conducted with due regard for the 

Respondent’s rights under the Due Process Clause. 

Equally troubling is the ALJ’s failure to resolve 

the issues raised by the Government’s motion prior 

to the second phase of the hearing, which did not 

reconvene until March 23, 2010. Notably, 

Respondent filed its response to the Government’s 

motion and its second supplemental pre-hearing 

statement on February 12, 2010; surely, at some 

point during this nearly six-week-long period and 

prior to the hearing, the ALJ could have ruled on 

the motion and issued an appropriate order. 

However, while I find the ALJ’s delay in handling 

the motion and her ruling disturbing, much (if not 

most) of the evidence presented in this matter 

(including that presented by the Government) is not 

probative of the issue of whether Respondent 

violated 21 CFR 1306.04(a). Moreover, many of 

Respondent’s witnesses testified as to the character/ 

reputation of its owner; while disclosure regarding 

these witnesses should have been more detailed, 

the prejudice to the Government was minimal. 

As to the remaining witnesses, only three of them 

(Mark Aalyson, Catherine Smith, and Carisa Cole) 

offered any testimony that is arguably relevant to, 

and probative of, the central issue. Notably, in its 

post-hearing brief, the Government does not 

contend that it was prejudiced by inadequate 

disclosure of the testimony of these witnesses. I 

therefore conclude that Government has not 

preserved its objection. 

supplements thereto may be excluded at 

the hearing.’’ Id. 

Pursuant to my authority under 21 

U.S.C. 824(d), on November 10, 2009, I 

further ordered that Respondent’s 

registration be suspended immediately 

because its ‘‘continued registration 

* * * constitutes an imminent danger 

to the public health and safety.’’ ALJ Ex. 

8, at 1. The Immediate Suspension 

Order incorporated by reference the 

allegations of the Order to Show Cause 

and cited the additional allegations that 

Respondent had recently filled more 

prescriptions for controlled substances 

for two persons who were travelling 

substantial distances to obtain the 

drugs. Id. at 1–2. 

More specifically, the Immediate 

Suspension Order alleged that on 

October 2, 2009, L.D.C., a resident of 

Portsmouth, Ohio obtained from a 

physician practicing in Wheelersburg, 

Ohio, prescriptions for 90 tablets of 

oxycodone 30 mg. and 60 tablets of 

carisoprodol (a non-controlled but 

highly abused drug which metabolizes 

into meprobamate, a Schedule IV 

depressant), and that she then travelled 

‘‘approximately 100 miles from 

Wheelersburg to Columbus’’ and filled 

the prescriptions at Respondent. Id. at 2. 

The Order alleged that the next 

morning, L.D.C. ‘‘was found dead at her 

residence * * * with a prescription vial 

identifying [Respondent] as the 

dispensing pharmacy and several 

scattered oxycodone tablets * * * next 

to her body,’’ and that the Coroner’s 

Office had preliminarily determined 

that she ‘‘died from the * * * ‘probable 

toxic effects of drugs (oxycodone, 

carisoprodol and others).’ ’’ Id. 

The Immediate Suspension Order also 

alleged that on various dates including 

July 3, September 1, and October 1, 

2009, Respondent had filled various 

prescriptions for oxycodone issued to 

S.J.P., of Waverly, Ohio. Id. The Order 

alleged that Waverly, Ohio is 

‘‘approximately 64 miles from 

Columbus’’ and that the prescriptions 

were issued by physicians who 

practiced ‘‘in Lees [sic] Summit, 

Missouri,’’ as well as in Dayton and 

Portsmouth, Ohio, which are 78 and 92 

miles, respectively, from Respondent. 

Id. 

The Order thus alleged that 

Respondent ‘‘knew or should have 

known that the above dispensed 

controlled substances were likely to be 

diverted or used for other than 

legitimate medical purposes’’ and that 

‘‘[b]y dispensing such prescriptions, 

[Respondent] failed to fulfill its 

corresponding responsibility for the 

proper dispensing of controlled 

substances.’’ Id. at 3. Based on the 

above, I concluded that there was a 

‘‘substantial likelihood that 

[Respondent] will continue to violate its 

corresponding responsibility to properly 

dispense controlled substances’’ and 

that Respondent’s continued registration 

during the pendency of the proceeding 

‘‘would constitute an imminent danger 

to the public health and safety.’’ Id. I, 

therefore, ordered that Respondent’s 

registration be suspended. 

On November 18–19, 2009, as well as 

on March 23–25, 2010, the ALJ 

conducted a hearing in Columbus, 

Ohio.2 At the hearing, both parties 

elicited testimony from witnesses and 

submitted documentary evidence into 

the record. Following the hearing, both 

parties filed briefs containing their 

proposed findings of fact, conclusions of 

law, and argument. 

On May 18, 2010, the ALJ issued her 

Recommended Decision. Applying the 

public interest factors, see 21 U.S.C. 

823(f), the ALJ concluded that the 

‘‘record demonstrates that it is against 

the public interest for the Respondent to 

retain its controlled substances 

registration’’ and recommended that 

‘‘Respondent’s registration be revoked 

and any pending applications for 

renewal be denied.’’ ALJ at 54. 

Under the first factor—the 

recommendation of the appropriate 

State licensing board or professional 

disciplinary authority—the ALJ found 

that ‘‘the Ohio Board of Pharmacy has 

not made a recommendation in this 

proceeding.’’ Id. at 45. The ALJ further 

found, however, that on March 5, 2009, 

the Board had fined Mr. Fletcher and 

placed his license on probation because 

he ‘‘did not ensure, on three separate 

occasions, that a qualified person was at 

* * * Respondent to receive deliveries 

of controlled substances,’’ which ‘‘were 

left at unsecure locations pending his 

arrival at the Respondent. ’’ Id. The ALJ 

concluded that this ‘‘security violation 

weighs in favor of revocation’’ of 

Respondent’s registration. Id. 

As to the second factor—Respondent’s 

experience in dispensing controlled 

substances—the ALJ found that 

‘‘Respondent ignored numerous ‘red 

flags’ when dispensing controlled 

substances to Dr. Volkman’s patients.’’ 

Id. at 46. In particular, the ALJ relied on 

the testimony and report of the 

Government’s Expert that various 

patients of Volkman: 

(1) were driving long distances to have their 

prescriptions filled, (2) were receiving large 

volumes of controlled substances in the 

highest strength in each prescription, (3) 

were not receiving individualized therapy, 

for 75% of these patients received the same 

four drug ‘cocktail,’ (4) were paying large 

amounts of cash for their prescriptions, and 

(5) were receiving multiple narcotic pain 

killers on the same day. 

Id. 

Noting Agency precedent 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 

prescriptions,’ ’’ id. at 47 (quoting Ralph 

J. Bertolino, 55 FR 4729, 4730 (1990)), 

the ALJ concluded that Respondent 

‘‘clos[ed] a blind eye to these obvious 

red flags,’’ and accordingly, ‘‘was not 

taking seriously its corresponding 

responsibility for these prescriptions’’ to 


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Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices 66151 

3Ohio Automated Rx Reporting System. The law 

allowing the Ohio Board of Pharmacy (BOP) to 

develop its prescription monitoring program 

(OARRS) became effective May 18, 2005; the rules 

implementing the law went into effect on January 

1, 2006. GX 18, at 2 (Ohio Automated Rx Reporting 

System Handbook). These rules require every 

pharmacy (including out-of-State pharmacies) that 

‘‘services outpatients and dispenses to an Ohio 

residence any controlled substance or any product 

containing tramadol or carisoprodol’’ ‘‘to submit the 

dispensing information to the BOP.’’ Id. 

4Based on the testimony of Respondent’s 

character witnesses (which included some of his 

customers), the ALJ concluded that this ‘‘evidence 

demonstrates that the Respondent acts responsively 

in many of his dealings with others.’’ ALJ at 54. The 

ALJ concluded, however, this evidence does ‘‘not 

negate the fact that at least between September 2005 

and February of 2006, Mr. Fletcher chose to turn a 

blind eye to the conduct of Dr. Volkman’s patients 

and to dispense controlled substances 

irresponsibly.’’ Id. 

these patients. Id. (citing 21 CFR 

1306.04(a)). 

The ALJ also noted that ‘‘[m]any of Dr. 

Volkman’s patients had told 

[Respondent’s owner] that other 

pharmacies would not fill Dr. 

Volkman’s prescriptions’’ and yet 

Respondent’s owner did not call these 

other pharmacies to ask why. Id. She 

also noted that Respondent had an 

‘‘unconventional’’ relationship with 

Volkman in that Volkman referred his 

patients to Respondent, that Mr. 

Fletcher and Volkman’s office would 

coordinate keeping Respondent ‘‘open 

late in the evenings’’ so that Volkman’s 

patients could fill their controlled 

substance prescriptions, and that it 

‘‘kept large quantities of controlled 

substances on hand to fill these large 

prescriptions.’’ Id. at 48. Relatedly, the 

ALJ found that one of Volkman’s 

patients credibly testified that she had 

filled prescriptions at Respondent 

‘‘while exhibiting ‘high’ behavior such 

as slurred speech, stumbling walk, and 

probably ‘drooling.’ ’’ Id. at 49. 

The ALJ further found that ‘‘a number 

of Dr. Volkman’s patients died from 

drug overdoses after having 

prescriptions filled at the Respondent’’ 

and that while ‘‘these patients were 

often drug addicts who did not take the 

prescription drugs in the manner 

prescribed,’’ the quantities Respondent 

dispensed ‘‘provided these patients with 

the means to ingest such quantities as to 

cause an overdose death.’’ Id. at 47. The 

ALJ also found that the quantities 

Respondent dispensed were large 

enough not only to support various 

Volkman patients’ ‘‘own addiction, but 

to also sell the extra controlled 

substances to provide the income 

needed for the next prescriptions, or to 

sponsor someone else in their quest for 

the drugs needed to feed their 

addiction.’’ Id. at 48. 

While noting that Respondent’s owner 

had called Dr. Volkman ‘‘to verify his 

legitimacy,’’ as well as ‘‘a local attorney 

to inquire about Dr. Volkman’s 

reputation in the community,’’ that he 

had called other prescribing physicians 

to verify prescriptions, and that he 

required customers to show 

identification prior to dispensing 

controlled substances and had no 

security issues beyond those for which 

he was cited by the Ohio Board, the ALJ 

concluded that ‘‘Respondent’s failure to 

react to the ‘red flags’ raised by the 

conduct of Dr. Volkman’s patients and 

the dispensing patterns the Respondent 

used for these patients weigh in favor of 

revocation.’’ Id. at 49–50. 

As to the third factor—Respondent’s 

conviction record under Federal or State 

laws relating to the manufacture, 

distribution, or dispensing of controlled 

substances—the ALJ found that the 

record ‘‘contains no evidence of a 

conviction of * * * Respondent or Mr. 

Fletcher related to the dispensing of 

controlled substances.’’ ALJ at 50. 

As to the fourth factor—Respondent’s 

compliance with applicable State, 

Federal, or local laws relating to 

controlled substances—the ALJ found 

that ‘‘Respondent violated 

recordkeeping requirements by failing to 

have readily retrievable biennial 

inventories’’ and thus violated 21 U.S.C. 

827(a)(1) and 21 CFR 1304.11(c). Id. The 

ALJ also found that ‘‘Mr. Fletcher failed 

to do drug utilization reviews prior to 

dispensing controlled substances.’’ Id. at 

51. 

Next, the ALJ found that ‘‘in 2008 and 

2009, [Mr. Fletcher] conducted searches 

on the OARRS 3 database’’ for 

‘‘individuals who had predeceased the 

search’’ and thus ‘‘violat[ed] the 

requirement that he only search this 

database for current customers.’’ Id. She 

also found that ‘‘Respondent’s banking 

conduct related to its dispensing 

business violated bank structuring laws 

and regulations’’ because ‘‘Mr. Fletcher 

made deposits just short of $10,000, 

thus avoiding the reporting requirement 

of the Bank Secrecy Act.’’ Id. 

Finally, the ALJ reiterated her 

previous findings that Respondent had 

ignored the ‘‘red flags’’ indicating that 

Dr. Volkman’s prescriptions were 

illegal. Id. Noting ‘‘the lack of individual 

therapy, the quantities and strength of 

the medications, and the other behavior 

patterns demonstrated by’’ the Volkman 

patients, the ALJ concluded that 

Respondent had ‘‘adequate evidence to 

determine that the prescriptions were 

not written for a legitimate medical 

purpose,’’ and that its violation of its 

‘‘corresponding responsibility weights 

greatly in favor of revocation in this 

matter.’’ Id. at 51–52. 

As for the fifth factor—such other 

conduct which may threaten the public 

health and safety—the ALJ noted that 

Mr. Fletcher did not testify in the 

proceeding. Id. at 52. While she 

acknowledged the settled case law that 

notwithstanding the Fifth Amendment 

privilege, an adverse inference may be 

drawn in a civil matter based on a 

party’s failure to testify, the ALJ 

nevertheless declined to ‘‘draw an 

adverse inference’’ even though she 

found Mr. Fletcher’s ‘‘inconsistent 

handling of controlled substances’’ to be 

‘‘most troubling.’’ Id. (citing, inter alia, 

Baxter v. Palmigiano, 425 U.S. 308, 318 

(1976)). More specifically, the ALJ 

observed that Mr. Fletcher ‘‘clearly knew 

the questions to ask when dispensing 

controlled substances to a customer’’ but 

that ‘‘in six months he filled over 4,900 

prescriptions without seeming to 

consistently engage in such 

conversations with Dr. Volkman’s 

patients’’ and that, even ‘‘when they 

demonstrated their addictive behavior 

before him, he filled [their] 

prescriptions anyway.’’ Id. The ALJ 

concluded that this conduct was 

‘‘adverse to the public health’’ and 

supported revocation. Id. at 53. The ALJ 

further noted that Mr. Fletcher had 

failed to provide assurances that he will 

not engage in future misconduct. Id. 

(citing numerous Agency cases).4

The ALJ thus concluded that the 

Government had ‘‘met its burden of 

proof’’ and demonstrated that 

Respondent’s continued registration is 

inconsistent with ‘‘the public interest.’’ 

Id. at 54. She therefore recommended 

that ‘‘Respondent’s registration be 

revoked and [that] any pending 

applications for renewal be denied.’’ Id. 

On June 17, 2010, Respondent timely 

filed Exceptions to the ALJ’s Decision; 

its Exceptions have been considered in 

my review of this matter. Having 

reviewed the record in its entirety, I 

agree with the ALJ’s ultimate finding 

that Respondent’s continued registration 

is inconsistent with the public interest. 

However, because Respondent’s 

registration has expired and it has not 

filed a renewal application, there is 

neither a registration to revoke nor a 

renewal application to deny. 

As noted above, Respondent’s 

registration was suspended prior to the 

hearing pursuant to my authority under 

21 U.S.C. 824(d). I, therefore, conclude 

that this case is not moot and uphold 

the suspension order. As the ultimate 

finder of fact, I make the following 

findings. 


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5An agency ‘‘may take official notice of facts at 

any stage in a proceeding-even in the final 

decision.’’ U.S. Dept. of Justice, Attorney General’s 

Manual on the Administrative Procedure Act 80 

(1947). In accordance with the Administrative 

Procedure Act and DEA’s regulation, Respondent is 

‘‘entitled on timely request to an opportunity to 

show to the contrary.’’ 5 U.S.C. 556(e); see also 21 

CFR 1316.59(e). Accordingly, Respondent may file 

a motion for reconsideration of this fact within 

fifteen days of service of this Order which shall 

commence with the mailing of the Order. 

6Mr. Fletcher additionally owns and operates a 

dumpster business and owns and manages both 

commercial and residential rental properties. Id. at 

866, 1598. 

7Oxycodone is a schedule II controlled 

substance. 21 CFR 1308.12(b)(1)(xiii). 

8Hydrocodone, when combined with another 

non-narcotic therapeutic ingredient such as 

acetaminophen, is a schedule III controlled 

substance. 21 CFR 1308.13(e)(1). 

9Alprazolam and diazepam are benzodiazepines 

and are schedule IV depressants. 21 CFR 1308.14(c). 

10According to a Diversion Investigator (DI), 

Volkman started writing prescriptions out of his 

residence on September 12, 2005. GX 9, at 9. 

11 It is acknowledged that D.S.’s affidavit stated 

that in September 2005, she had started taking 

people to Respondent to fill prescriptions. GX 39, 

at 3. D.S. further stated that she had taken her 

friend C.R. to Respondent to fill prescriptions and 

that C.R. overdosed and died the same day as her 

first trip to Respondent. Id. at 5. Subsequently, the 

Government acknowledged that C.R. had died on 

March 9, 2004. Letter of Government Counsel to 

ALJ, at 1. (May 10, 2010). 

Notwithstanding D.S.’s misrepresentation, there 

is substantial circumstantial evidence establishing 

the relationship between Respondent and Volkman. 

I therefor find credible D.S.’s statement regarding 

how she found Respondent. 

12 In October 2005, the Portsmouth Police 

executed a search warrant at Volkman’s residence. 

GX 6, at 4. While no charges were filed, Volkman 

was issued a condemnation notice. Id. Shortly 

thereafter, Volkman moved to Chillicothe, Ohio. Id. 

13The data also showed that in 2006, Respondent 

purchased 820,000 dosage units of oxycodone and 

224,000 dosage units of hydrocodone. GX 9, at 33– 

34. 

14On the same day, a search warrant was also 

executed at Dr. Volkman’s Chillicothe office and his 

registration was suspended. GX 9, at 13. 

Findings 

Respondent previously held DEA 

Certificate of Registration, BE5902615, 

under which it was authorized to 

dispense controlled substance in 

Schedules II through V at the registered 

location of 1336 East Main Street, 

Columbus, Ohio 43205. GXs 1 & 2. 

Respondent last renewed its registration 

on August 27, 2007; its registration 

expired on August 31, 2010. Id. 

According to the records of the Agency, 

of which I take official notice, 

Respondent has not filed a renewal 

application.5

Respondent is owned by Eugene H. 

Fletcher, who is also its sole 

pharmacist.6 ALJ Ex. 3, at 2. Respondent 

sells only prescription pharmaceuticals. 

Tr. 863. 

In 2003, Dr. Paul Volkman, a 

physician who was unable to obtain 

malpractice insurance because of 

several large malpractice settlements 

and judgments, commenced working at 

a Portsmouth, Ohio pain clinic owned 

by one Denise Huffman. GX 6, at 2. As 

previously found by the Agency (and as 

upheld by the United States Court of 

Appeals for the Sixth Circuit), Volkman 

frequently prescribed large quantities of 

multiple controlled substances 

including narcotics containing 

oxycodone 7 and hydrocodone,8

benzodiazepines such as Xanax 

(alprazolam) and Valium (diazepam),9

as well as the currently non-controlled 

drug Soma (carisoprodol) which is 

nonetheless popular with drug abusers, 

without a legitimate medical purpose 

and outside of the usual course of 

professional practice. GX 6, at 2–3; Paul 

H. Volkman, 73 FR 30630, 30633–34, 

30639 (2008), pet. for rev. denied, 

Volkman v. DEA, 567 F.3d 1215 (6th 

Cir. 2009). In plain English, the record 

in the Agency proceeding involving Dr. 

Volkman conclusively established that 

he was a drug dealer. 

On September 9, 2005 (several 

months after DEA executed a search 

warrant at Huffman’s clinic), Volkman 

left the clinic; three days later, he 

started seeing patients out of his 

residence at 1310 Center St. in 

Portsmouth.10 GX 6, at 4; 73 FR at 

30635. However, Volkman’s patients 

encountered problems filling his 

prescriptions. GX 39, at 1. D.S., one of 

Volkman’s patients, helped Volkman by 

going on the Internet to search for 

pharmacies that would fill his 

prescriptions; according to D.S., she 

would call and ask the pharmacists if 

they ‘‘would fill prescriptions for 

oxycodone 30 mg., hydrocodone 10 mg., 

Xanax 2mg., [and] Soma 350 mg., and if 

they had the drugs on hand.’’ 11 Id. 

While the pharmacists at other 

pharmacies ‘‘either said they did not 

have the medications in stock or would 

not fill prescriptions for Dr. Volkman,’’ 

Mr. Fletcher said that he had the ‘‘drugs 

in stock’’ and that ‘‘he would fill the 

prescriptions.’’ Id. at 2. 

Thereafter, D.S. posted a notice on a 

bulletin board in Volkman’s office 

which provided Respondent’s name, 

address, and phone number. Id.; see 

also GX 15. Directions were also 

provided from Volkman’s residence to 

Respondent.12 See GX 15, at 1, 2, 4, 5. 

Moreover, when, in October 2005, 

Volkman moved to Chillicothe, Ohio, he 

posted similar notices with directions to 

Respondent. The distance from 

Volkman’s Portsmouth residence to 

Respondent was approximately 94 

miles, see GX 15, at 2; the distance from 

his Chillicothe office to Respondent was 

56 miles. GX 9, at 23. 

According to Dr. Volkman’s former 

security guard, ‘‘Volkman instructed his 

employees to send all his patients to 

[Respondent] to have their prescriptions 

filled.’’ GX 22, at 2; see also GX 23, at 

1. Moreover, ‘‘just about every day, a call 

was made from [Volkman’s] clinic to 

[Respondent] or from the [Respondent] 

to the clinic’’ during which Mr. Fletcher 

was told when Volkman’s ‘‘last patient 

had been seen’’ so that he would know 

how late to keep the pharmacy open to 

fill the prescriptions Volkman issued. 

GX 22, at 2. At times, patients would 

show up at Respondent and fill their 

prescriptions as late as midnight. GX 24, 

at 3; see also GX 23, at 2 (L.W. relating 

that she filled prescriptions at 

Respondent as late as 9 or 10 p.m.). 

Volkman’s ex-security guard stated that 

the patients ‘‘did not appear to be in 

pain’’ and that he believed that ‘‘about 

60% of [them] were pill patients and not 

pain patients.’’ GX 22, at 3. See also GX 

24, at 6 (affidavit of A.S.; ‘‘[t]here were 

some legitimate patients, but most of Dr. 

Volkman’s patients were not legitimate. 

They were going to Dr. Volkman and 

[Respondent] for drugs to abuse and to 

sell.’’); GX 9, at 11 (photographs of 

patients waiting to see Volkman taken 

on date Portsmouth P.D. executed 

search warrant at his practice). 

As part of the investigation, DEA 

Diversion Investigators (DIs) obtained 

data from the Agency’s ARCOS system 

showing Respondent’s purchases of 

oxycodone and hydrocodone 

combination drugs; these drugs are 

Schedule II and III narcotics, 

respectively. Tr. 533–34. The oxycodone 

data showed that in 2004, Respondent 

had purchased 96,000 dosage units. GX 

9, at 33. However, during 2005, 

Respondent purchased 495,000 dosage 

units; of this amount, approximately 

400,000 dosage units were purchased 

between September and December. Id. 

Likewise, in 2004, Respondent 

purchased 88,000 dosage units of 

hydrocodone. Id. at 34. In 2005, 

Respondent purchased 328,000 dosage 

units; of this amount, more than 200,000 

were purchased between September and 

December.13 Id. While in 2004, 

Respondent was only the 300th largest 

pharmacy purchaser of oxycodone in 

Ohio; in 2005, it was the eleventh 

largest purchaser, and in 2006, it was 

the seventh largest. Id. 

On February 10, 2006, a search 

warrant was executed at Respondent 

and its dispensing records were 

seized.14 Tr. 523. The records showed 

that between September 1, 2005 and 

February 10, 2006, Respondent 

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15 During this period, Respondent filled a total of 

5,206 prescriptions issued by Volkman. GX 9, at 24, 

28. 

16Several persons drove to Respondent from 

Paintsville, Kentucky, a distance of 182 miles; 

according to a DI, there were 96 pharmacies 

enroute. GX 34, at 3. 

17According to the testimony of Lisa Roberts, 

R.N., who works for the Portsmouth Health 

Department and who is a member of the Ohio 

Department of Health Poison Action Group, Tr. 26, 

Scioto County (where Portsmouth is located) 

‘‘showed a 360 percent increase in unintentional 

prescription drug overdoses’’ from 1999 to 2009. Id. 

at 32. In a Community Health Assessment she 

prepared for the City of Portsmouth, Ms. Roberts 

wrote that ‘‘Scioto County has long been the target 

of lucrative ‘Pill Mills’ [which] prescribe powerful 

prescription drugs to individuals without proof of 

chronic pain.’’ GX 8, at 6. Continuing, Ms. Roberts 

noted that ‘‘[m]any people have become addicted as 

a result of these establishments’’ and that ‘‘much of 

the pills distributed there end up being illegally 

diverted to the public, including [to] high school 

students.’’ Id. She also noted that ‘‘[p]eople come 

from other states as well to patronize these 

establishments.’’ Id. Ms. Roberts testified that she 

‘‘knew people that went to [Dr. Volkman] to get 

drugs to sell,’’ as well as about the practice of 

sponsoring, by which an abuser or drug dealer 

recruits another person and fronts the person the 

money needed to pay for a doctor visit and to fill 

the prescriptions; the sponsor then receives half the 

pills back which can then be sold. Tr. 43, 62–63. 

See also Tr. 264, 266, 276, 283. 

18Payment information was taken from the seized 

prescriptions. Tr. 570. 

19Apap is the abbreviation for acetaminophen. 20Cf. GX 22, at 3 (affidavit of Delbert Evans, Dr. 

Volkman’s security guard; ‘‘Some calls by Eugene 

were to speak with Dr. Volkman but the majority 

of the calls were to determine how late he should 

stay open to fill Dr. Volkman’s prescriptions.’’). 

21After this date, each of the hydrocodone 

dispensings was for the 10 mg. strength (which is 

the strongest formulation); the alprazolam 

dispensings were for the 2 mg. strength, and the 

carisoprodol was for the 350 mg. strength. See GX 

12, at 1. 

22On cross-examination, A.S. admitted that she 

never told Mr. Fletcher that she was addicted or 

that she was giving half of her drugs to her sisterin-law. Tr. 312. However, one would hardly expect 

a drug abuser or diverter to tell a pharmacist why 

she was seeking the drugs. A.S. also testified on 

cross-examination that she presented valid 

prescriptions to Mr. Fletcher. Id. at 314. However, 

Respondent’s counsel did not clarify what he meant 

by the term ‘‘valid,’’ which can mean one of several 

things such as that the prescriptions were not 

fraudulent or forged, that they were issued for a 

legitimate medical purpose, or that they were in 

proper form and contained the required 

information. 

A.S. also testified that she had been in constant 

pain since a 1996 car accident, that she was in pain 

when she testified in this proceeding, and that she 

Continued 

substance prescriptions; 4,979 of the 

prescriptions (75%) had been issued by 

Dr. Volkman.15 GX 9, at 62. 

Corresponding with Mr. Fletcher’s 

agreeing to fill Volkman’s prescriptions, 

Respondent experienced multi-fold 

increases in the amounts of 

prescriptions it filled for oxycodone, 

hydrocodone, diazepam and 

alprazolam. Tr. 526; GX 9, at 29. 

Nearly ninety-nine percent of the 

persons who obtained controlledsubstance prescriptions from Volkman 

and filled them at Respondent did not 

live in Columbus, Ohio. GX 9, at 24; Tr. 

522. Approximately half of the patients 

were from Kentucky, with some of the 

patients driving three to four hours to 

obtain the drugs; 16 many other patients 

were from the Portsmouth, Ohio area.17

See GX 14; Tr. 571–72. From 

Portsmouth to Respondent there were 

40 other pharmacies along the route. GX 

34, at 2. Moreover, the dispensing 

records showed that 87 percent of 

Respondent’s customers paid cash for 

their prescriptions; by contrast, 

according to the Government’s Expert, 

‘‘the national average of cash paying 

customers for prescriptions [was] 11.4% 

in 2005 and 10% in 2006.’’ 18 GX 20, at 

2; Tr. 534–35. Only five percent of the 

customers paid with insurance, and 

eight percent paid with a combination 

of insurance and cash. Tr. 534–35; GX 

9, at 41. 

L.W., a resident of Quincy, Kentucky, 

and A.S., a resident of Portsmouth, were 

among those persons who obtained 

controlled-substance prescriptions from 

Volkman and filled them at Respondent. 

See GXs 23 & 24; Tr. 272. On October 

10, 2005, L.W. filled at Respondent 

prescriptions for 270 tablets of 

oxycodone 30 mg., 240 tablets of 

hydrocodone/apap (10/500),19 90 tablets 

of alprazolam 2 mg. (generic for Xanax), 

and 180 tablets of carisoprodol 350 mg. 

GX 12, at 2. On November 7, L.W. 

obtained from Respondent an additional 

270 tablets of oxycodone 30 mg., 240 

hydrocodone 10/500, 90 alprazolam 2 

mg., and 240 tablets of carisoprodol; on 

December 6, she obtained the same four 

drugs and quantities, the sole difference 

being that she received only 180 

oxycodone 30 mg. Id. Finally, on 

February 3, 2006, L.W. obtained from 

Respondent 360 tablets of oxycodone 30 

mg., 360 tablets of hydrocodone 10/325, 

90 tablets of alprazolam 2 mg., and 240 

carisoprodol. Id. 

In an affidavit, L.W. stated that while 

she initially needed to take pain 

medication following two accidents, the 

last of which occurred in February 2004, 

at the time she was seeing Dr. Volkman 

and filling the prescriptions at 

Respondent, she was both selling the 

drugs and taking them ‘‘to get high.’’ GX 

23, at 4. She stated that on those 

occasions when she spoke with Mr. 

Fletcher at Respondent, he ‘‘never asked 

me about my medical condition but 

would just make small talk.’’ Id.20 She 

further stated that she ‘‘was high on 

drugs several times when having 

prescriptions filled at [Respondent] and 

at times was high when [she] spoke 

with’’ Mr. Fletcher. Id. at 3–4. L.W. 

further stated that on her last visit to 

Respondent, she was ‘‘so high’’ that her 

‘‘slurred speech and unsteady walk 

would have been very noticeable’’ and 

that her ‘‘head was hanging down and 

[she] was probably drooling.’’ Id. at 4. 

Respondent filled A.S.’s 

prescriptions, which she obtained from 

Dr. Volkman, for oxycodone, 

hydrocodone, diazepam, alprazolam, 

and carisoprodol on seven occasions 

between September 13, 2005 and 

February 1, 2006. GX 12, at 1. More 

specifically, on September 13, 

Respondent dispensed to her 240 

oxycodone 30 mg., 180 hydrocodone/ 

apap 10/650, 90 diazepam 10 mg., and 

90 carisoprodol 350 mg. Id. Respondent 

made additional dispensings of 

Volkman’s prescriptions as follows: On 

October 10, 330 oxycodone 30 mg., 240 

hydrocodone 10/500, 90 alprazolam 2 

mg., and 180 carisoprodol 350 mg.;21 on 

November 8, 165 oxycodone 30 mg., 120 

hydrocodone, 45 alprazolam, and 90 

carisoprodol; on December 2, 180 

oxycodone 5 mg., 240 hydrocodone, 90 

alprazolam, and 180 carisoprodol; on 

December 20, 90 oxycodone 5 mg., 120 

hydrocodone, 45 alprazolam, and 90 

carisoprodol; on January 2, 2006, 240 

oxycodone 15 mg., 240 hydrocodone, 90 

alprazolam, and 180 carisoprodol; and 

on February 1, 240 oxycodone 30 mg., 

240 hydrocodone, 90 alprazolam, and 

180 carisoprodol. Id. 

A.S. testified at the hearing. While the 

ALJ found portions of her testimony not 

credible because ‘‘she became vague, 

and contradicted herself,’’ ALJ at 23 n.6, 

the ALJ found credible her testimony 

that her sister-in-law told her about Dr. 

Volkman and sponsored her by giving 

her the money to pay for her office visit 

and to fill the prescriptions she 

obtained. Id. at 22 n.5; Tr. 264. The ALJ 

further found credible A.S.’s testimony 

that she gave her sister-in-law ‘‘half of 

the pills,’’ which her sister-in-law then 

sold to raise money to sponsor someone 

else. ALJ at 22 & n.5. (citing Tr. 266, 

276, 283.) A.S. testified that her sisterin-law ‘‘would take several people to the 

doctor’’ and that they would go to 

Respondent to fill the prescriptions. Tr. 

283. A.S.’s sister-in-law would pay for 

everything and receive ‘‘half [of] the 

medication.’’ Id. A.S. testified that 

Volkman gave her combination 

prescriptions and that Volkman’s office 

told her to go to Respondent, which was 

a two-hour drive (one-way) from 

Portsmouth. Id. at 274–75. A.S. also 

admitted that she was addicted to 

oxycodone and had been at the time she 

obtained prescriptions from Dr. 

Volkman and filled them at 

Respondent.22 Id. at 253 & 336. 


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had pain at the level of an eight on the scale of one 

to ten. Id. at 258–60. 

23Percocet is a brand-name product containing 

oxycodone and acetaminophen and is a schedule II 

controlled substance. ALJ Ex. 5, at 1. 

24While I previously found in the Volkman 

decision that S.L.J. had died of multiple drug 

intoxication and had both oxycodone and 

alprazolam in her system, see 73 FR 30636 n.23, 

Respondent was not a party to that proceeding. The 

Government was thus required to prove this fact 

anew, which it failed to do because the DI testified 

that he was unsure of, and did not recall the cause 

of S.L.J.’s death. Accordingly, I conclude that the 

Government has not proved that S.L.J.’s death was 

caused by the prescriptions she filled at 

Respondent. 

25To refute this evidence, Respondent put on the 

testimony of his accountant, who maintained that 

Mr. Fletcher ‘‘more than likely’’ was of ‘‘low 

sophistication’’ in regards to banking regulations. 

Tr. 1602. However, I find credible Ms. Padolik’s 

testimony (both at the hearing and in her affidavit) 

regarding the questions Mr. Fletcher asked 

regarding the bank’s reporting obligations and 

conclude that he clearly knew what he was doing 

and was engaged in structuring. 

26There was also testimony that Volkman’s 

patients complained to Respondent’s employees of 

having to pay extra for drug tests. Tr. 1265–67; 

1713–14. 

S.L.J. was a confidential informant for 

the Portsmouth Police Department 

(PPD). GX 4, at 744. On September 16, 

2005, the PPD sent S.L.J. to see Dr. 

Volkman and to obtain controlledsubstance prescriptions. Id. Dr. 

Volkman wrote her prescriptions for 

oxycodone 30 mg. and Percocet,23

which S.L.J. turned over to the police. 

Id. On September 26, S.L.J., who was an 

addict, returned to Dr. Volkman’s office 

on her own initiative and without the 

PPD’s knowledge; she obtained 

prescriptions for 135 tablets of Percocet 

5/325 mg. and 135 tablets of oxycodone 

30 mg. Id. at 745–46. The same day, 

S.L.J. filled those prescriptions at 

Respondent. Id. at 746. On September 

29, 2005, S.L.J. was found dead; the 

coroner determined that the cause of 

death was ‘‘multiple drug intoxication.’’ 

Id. The Government did not, however, 

submit the coroner’s report or a police 

report and thus did not establish that 

Respondent dispensed the drugs on 

which S.L.J. overdosed.24

E.R. lived in Grayson, Kentucky and 

went to Dr. Volkman at his Chillicothe, 

Ohio clinic on just one occasion. GX 4, 

at 749 & 750; Tr. 407. He had planned 

to obtain prescriptions for controlled 

substances, fill them, and then sell the 

drugs on the street to get out of debt. Tr. 

405–07, 409–10. E.R., who had heard 

from friends that Volkman would write 

large-volume controlled-substance 

prescriptions, drove for several hours 

with a friend to see Volkman. Id. at 406, 

410. E.R. obtained from Volkman 

prescriptions for 240 oxycodone 30 mg., 

240 hydrocodone/apap 10/500, 90 

alprazolam 2 mg., and 90 Soma 350 mg. 

Id. at 408; GX 4, at 750. The following 

day, E.R. drove with his wife to 

Respondent and filled the prescriptions. 

Id. at 409–12. 

Immediately after he obtained the 

drugs, E.R. entered his car and 

proceeded to crush and snort two 

oxycodone tablets. Id. at 412. On the 

return trip, ‘‘he also took a couple of 

Xanax.’’ Id. Following a stop at the local 

WalMart, E.R. and wife went to see a 

friend who sold controlled substances 

and E.R. offered to sell him some of the 

hydrocodone. Id. at 413. However, the 

drug dealer was having a domestic 

dispute so E.R. and his wife returned to 

their home. Id. 

Later that evening, the drug dealer 

came to E.R.’s house and ‘‘partied with’’ 

E.R. for several hours. Id. The following 

morning, E.R. was found dead. Id. at 

413–14. However, once again, the 

Government did not introduce into 

evidence the coroner’s report or a police 

report and thus has not established in 

this case that E.R. overdosed on the 

drugs he obtained at Respondent. 

The evidence also showed that in 

October 2005, and shortly after 

Respondent started dispensing the 

Volkman prescriptions, Mr. Fletcher 

phoned Robin Padolik, who was then 

employed as an Automated Clearing 

House Coordinator for the Commerce 

National Bank (CNB), where he held 

various accounts. GX 25, at 1, 3. 

According to Ms. Padolik, beginning 

around September 2005, CNB personnel 

began noticing an increase in the 

amounts of Mr. Fletcher’s cash deposits 

and placed him on CNB’s ‘‘Watch List.’’ 

Id. The same month, Mr. Fletcher’s 

transfers to his outside accounts became 

more frequent, and in mid-October, Mr. 

Fletched called and asked Ms. Padolik 

‘‘at what point the bank would be 

required to file a form when he made a 

cash deposit; how a deposit would [be] 

process[ed]’’; and, if making deposits 

into two ‘‘separate accounts [would] 

prevent a form submission.’’ Id. at 3. Ms. 

Padolik specifically related that on 

October 13, 2005, Mr. Fletcher called 

and asked whether ‘‘if he deposited 

$6,000 in one account and $4,000 in 

another account,’’ the bank would be 

required ‘‘to submit ‘that report.’ ’’ Id. 

Based on Mr. Fletcher’s question, Ms. 

Padolik, who had been trained in the 

Bank Secrecy Act and the recognition of 

money-laundering, concluded that Mr. 

Fletcher ‘‘apparently knew [that] the 

threshold for reporting was any amount 

over $10,000, but did not know the 

name of the form the bank was required 

to file.’’ Id. Ms. Padolik ducked Mr. 

Fletcher’s question. Id. 

On October 18, Mr. Fletcher called 

Ms. Padolik and asked if ‘‘account 

deposit amounts were associated with 

the Taxpayer Identification Number 

(TIN).’’ Id. at 4. He also asked ‘‘how he 

could change his TIN’’ for the accounts 

he maintained for Respondent and for 

his other business ventures. Id. Ms. 

Padolik again ducked Mr. Fletcher’s 

questions and reported him to Andrew 

Reardon, CNB’s Compliance Manager. 

Id. 

As Ms. Padolik testified, ‘‘it was really 

a big red flag when he started asking 

questions about dollar amounts * * * 

so it looked like he was really fishing for 

information on how he can [sic] get 

around BSA reporting.’’ Tr. 167. Ms. 

Padolik explained that ‘‘[d]eposit 

structuring * * * is a break-up of cash 

deposits that are turned into other 

financial transactions * * * it’s cash 

that is taken from its criminal origin and 

passed through the system with many 

transactions * * * Structuring is a way 

to take cash from an illegal source and 

make it look more legal by passing it 

through the financial system.’’ Tr. 157– 

58. 

Ms. Padolik specifically identified six 

transactions by Mr. Fletcher which 

raised her suspicion that he was 

engaged in structuring to avoid the 

bank’s filing of a Currency Transaction 

Report (CTR). GX 25, at 4; see also Tr. 

166; 31 CFR 103.11. These included 

deposits of $9,900 on October 11, a 

check for $41,000 issued to an 

investment company on October 15, a 

deposit of $9,980 on October 17, a 

deposit of $8,380 on October 18, a 

deposit of $9,950 on October 19, and a 

deposit of $9,900 on October 20, 2005. 

GX 25, at 4. Following a review of his 

transactions by the CNB’s High Risk 

Committee, the Bank concluded that Mr. 

Fletcher had engaged in structuring in 

violation of Federal banking regulations 

and closed his accounts. Tr. 207–08; GX 

28.25 A DI further found that Mr. 

Fletcher’s ‘‘net profit from dispensing 

for Dr. Volkman [was] almost $500,000.’’ 

Tr. 620. 

DEA Investigators interviewed Mr. 

Fletcher regarding the Volkman 

prescriptions on two occasions, 

February 10, 2006 and November 27, 

2007. Tr. 600. According to the DI who 

conducted the latter interview, Mr. 

Fletcher said that ‘‘he had questions 

about’’ Dr. Volkman. Id. at 606. Mr. 

Fletcher maintained that he had called 

Dr. Volkman, who told him that ‘‘he did 

an MRI, and blood tests.’’ 26 Id. Mr. 

Fletcher also maintained that Volkman’s 

prescriptions were valid because ‘‘the 

physician was licensed in Ohio and [the 

prescription] was written to the person 


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27The Government also introduced evidence 

showing that Mr. Fletcher had violated the Ohio 

Board of Pharmacy’s Acceptable Use Policy for the 

OARRS, because he obtained prescription 

information on two persons who had died. Tr. 930– 

31, 1803, 1808; GX 42, at 1. According to the 

Government’s Expert, this violated the Board’s 

policy because a pharmacy can only obtain 

information on a current customer. Tr. at 930–31. 

Notably, the Government’s Expert did not testify 

that this conduct violated any State law or 

regulation. 

While this may be an improper use of the 

database and a violation of the Board’s policy, the 

matter is best left to the Board to resolve. 

28On March 20, 2009, the Ohio Board of 

Pharmacy sent a notice to pharmacists explaining 

that it had observed ‘‘a significant volume of 

prescriptions from physicians in Florida’’ who were 

prescribing oxycodone, Xanax, Percocet and Soma 

for residents of Ohio and Kentucky who were 

‘‘generally 20–55 years old and usually pay cash.’’ 

GX 17. The Board further explained that ‘‘[i]n many 

of these cases, we are wondering how the term 

‘legitimate medical purpose’ applies when a patient 

who is supposedly in severe pain can ride to 

Florida and back to receive treatment when we have 

excellent facilities in Ohio.’’ Id. The Board 

requested pharmacists who had ‘‘already filled such 

prescriptions’’ to contact one of its Agents because 

the Board believed that ‘‘this may be a coordinated 

effort to obtain drugs and we are trying to develop 

a list of the people involved.’’ Id. 

There was also evidence that because of the 

effectiveness of the State of Kentucky’s prescription 

monitoring program, drug dealers were sponsoring 

people to go to South Florida to obtain controlledsubstance prescriptions and that some of these 

individuals would fill the prescriptions in Ohio. Tr. 

429–34. 

presenting’’ it. Id. He stated the 

prescriptions were not forged. Id. 

However, twice in the interview, Mr. 

Fletcher admitted that his customers 

had told him that ‘‘‘other pharmacists 

would not fill Dr. Volkman’s 

prescriptions.’’’ Id. at 622 & 624. The DI 

then asked Mr. Fletcher if he had 

‘‘call[ed] the other pharmacists and 

asked them why they were not filling 

Dr. Volkman’s scripts.’’ Id. at 622. Mr. 

Fletcher answered: ‘‘I don’t 

communicate with other pharmacists.’’ 

Id. 

The DI also asked Mr. Fletcher if he 

ever felt that Dr. Volkman’s patients 

were addicted to drugs; Mr. Fletcher 

answered that it was ‘‘‘hard to say.’ ’’ Id. 

at 606. Mr. Fletcher told the DI that 

sometimes Dr. Volkman’s patients 

would ask him to sell them extra pills; 

Mr. Fletcher stated that he had refused 

to do so. Id. He also stated that he did 

‘‘not get into’’ the ‘‘personal life’’ of his 

customers to determine their medical 

conditions. GX 9, at 69. 

When the DI asked Mr. Fletcher about 

his ‘‘corresponding responsibility,’’ he 

acknowledged that a physician must 

prescribe ‘‘for a legitimate ailment, and 

[that] the dose must be correct.’’ GX 9, 

at 68. However, Mr. Fletcher maintained 

that ‘‘what to prescribe and the 

quantities’’ was for the physician to 

decide and that it was ‘‘not his job to 

question a physician.’’ Id. He further 

asserted that he did not find it 

suspicious that the customers were 

traveling long distances, paying cash, 

obtaining combinations of controlled 

substances, and that other pharmacies 

had refused to fill the prescriptions. Id. 

at 69. 

The Government introduced evidence 

showing that Respondent’s purchases 

and dispensings of controlled 

substances were substantially greater 

than that of a single CVS pharmacy 

which was located 1.6 miles from it. GX 

9, at 30–39. It also introduced evidence 

comparing the prices Respondent and 

four other independent pharmacies (two 

of which were located in Columbus, two 

of which were located in Portsmouth) 

paid their suppliers for various 

controlled substances as well as what 

they charged their customers; the 

Government asserts that this evidence 

shows that these four pharmacies sold 

controlled substances at an average 

price 37% cheaper than that charged by 

Respondent. GX 9, at 55–56. 

It is obvious, however, that neither 

strand of evidence rises to the level of 

substantial evidence because neither is 

based on a statistically valid sample. 

Indeed, to compare Respondent’s 

controlled-substance dispensings to that 

of a single CVS located 1.6 miles away 

ignores that the two stores may serve 

communities with substantially 

different demographics such as the age 

of the residents and the presence of 

competitors. So too, comparing 

Respondent’s prices with those charged 

by four other pharmacies (out of likely 

thousands of pharmacies in the State of 

Ohio including hundreds of 

independents) and which do not even 

appear to have been selected at random, 

is manifestly inadequate to prove that 

Respondent charged more because it 

was selling to an illicit market. 

The Government also put on 

extensive evidence to the effect that 

Respondent was located in a bad/highcrime neighborhood and that Mr. 

Fletcher carried a gun while at his 

business. As for the character of 

Respondent’s neighborhood, the 

principal issue in this case was whether 

Respondent was dispensing controlledsubstance prescriptions which it either 

knew or had reason to know lacked a 

legitimate medical purpose and were 

issued outside of the usual course of 

professional practice. See ALJ Ex. 1, at 

1–2 (citing 21 CFR 1306.04(a)). Whether 

Respondent is located in a bad 

neighborhood is of no relevance in 

determining whether Mr. Fletcher 

violated his corresponding 

responsibility under the CSA. While 

there is evidence (discussed below) that 

Respondent and Mr. Fletcher were 

found by the Ohio Board of Pharmacy 

to have violated State law because he 

was not present on three occasions 

when controlled substances were 

delivered and the drugs were not 

properly stored, GX 16, at 2, 

presumably, this would have been a 

violation even if Respondent had been 

located in the safest neighborhood in 

the State of Ohio. So too, the evidence 

that Mr. Fletcher carried a gun is 

entirely irrelevant.27

Evidence Regarding Respondent’s 

Practices After February 10, 2006 

The Government also obtained data 

from OARRS, the Ohio prescription 

monitoring program, showing 

controlled-substance prescriptions that 

were issued by Florida-based physicians 

and filled by Respondent. Tr. 476; GXs 

10 & 11. The Government submitted a 

spreadsheet showing more than fifty 

prescriptions for drugs such as 

oxycodone in 15 mg. and 30 mg. 

strength and alprazolam, which 

Respondent filled between September 4, 

2007 and September 2, 2008. See GX 10. 

At least seventeen of the persons listed 

as having filled prescriptions at 

Respondent were residents of Kentucky; 

several individuals filled multiple 

prescriptions for oxycodone on the same 

day. See id. For example, on April 25, 

2008, A.B., a resident of Denton, 

Kentucky (143 miles from Respondent), 

filled prescriptions for 180 oxycodone 

30 mg., 120 oxycodone 15 mg., and 90 

alprazolam 2 mg.; on July 23, 2008, 

C.W., a resident of Ashland, Kentucky 

(123 miles from Respondent), filled 

prescriptions for 240 oxycodone 30 mg., 

60 oxycodone 15 mg., and also 60 

alprazolam 2 mg.; and on August 11, 

2008, N.W., a resident of Flatwoods, 

Kentucky (118 miles from Respondent), 

filled prescriptions for 240 oxycodone 

30 mg., 90 oxycodone 15 mg., and also 

60 alprazolam 2 mg. GX 10, at 1–2. 

Moreover, on August 25, 2008, C.L. 

filled prescriptions for 90 diazepam 10 

mg. and 60 alprazolam 2 mg.28 Id. at 1. 

Additional Evidence Regarding Patient 

Deaths 

The Government also introduced 

evidence regarding two additional 

persons, L.D.C. and B.A., who obtained 

controlled substances from Respondent 

and died the following day. Both deaths 

occurred in the fall of 2009. 

L.D.C., who was 34 years old at the 

time of her death, lived in West 

Portsmouth, Ohio. GX 29. On October 2, 

2009, L.D.C. obtained prescriptions from 

Dr. Georgescu of Wheelersburg, Ohio for 

90 tablets of oxycodone 30 mg. (90 

dosage units) and 60 tablets of 


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29However, Drs. J.C. and M.G. appeared to have 

practiced at the same Portsmouth address. See GX 

33, at 2; GX 38, at 7–8. There is, however, no 

evidence that J.C. and M.G. were at the clinic in the 

same time period. 

In the Immediate Suspension Order, the 

Government alleged that Dr. M.F. was in Lee’s 

Summit, Missouri. ALJ Ex. 8, at 2. On crossexamination, the DI conceded that the prescription 

issued by Dr. M.F. had indicated that he was in 

Wheelersburg, Ohio. Tr. 701. 

During cross-examination of the DI, Respondent’s 

counsel also suggested that Dr. P.C. was not 

practicing in Dayton but rather in Portsmouth when 

he wrote the prescriptions for S.P. Id. at 629–31. 

However, the DI said he did not have information 

that Dr. P.C. was practicing in Portsmouth and 

Respondent produced no evidence establishing this 

as a fact. Id. at 631. 

carisoprodol which she then filled at 

Respondent. GX 32, at 1, 4; GX 29, at 2; 

Tr. 629. These were the first and last 

prescriptions she filled at Respondent. 

GX 32, at 1. 

According to the report filed by the 

Scioto Sheriff’s Office, on October 3, 

L.D.C.’s boyfriend found her lying on 

the floor of the master bedroom near the 

footboard of their bed with blood 

coming from her nose and mouth. Id. 

On arriving at the scene, a Deputy 

Sheriff observed ‘‘38 white pills laying 

beside her and a pill bottle labeled 

oxycodone 30 mg. [which] was 

prescribed on October 2, 2009 and filled 

at’’ Respondent. GX 29, at 2. The officer 

also found that ‘‘on a dresser next to her 

[were] 10 oblong pills scored GG/2/4/9 

and a pill bottle labeled Soma 350 mg. 

with 48 pills in it.’’ Id. He also ‘‘saw a 

silver spoon with white residue on it 

and a needle with no cap on it.’’ Id. at 

4. A second officer made the same 

observations and reported that the pills 

labeled GG/2/4/9 were ‘‘believed to be 

Xanax.’’ Id. at 5. 

Thereafter, an autopsy was performed 

on L.D.C. On November 30, 2009, the 

Coroner issued her Opinion that the 

cause of L.D.C.’s death was the ‘‘[t]oxic 

effects of drugs’’ including ‘‘oxycodone, 

oxymorphone and others.’’ GX 37, at 1. 

According to the toxicology report, 

oxycodone, oxymorphone, carisoprodol, 

and meprobamate were found in her 

blood. Id. at 2; GX 31. 

On November 4, 2009, B.A., ‘‘a 

recovering drug addict’’ and resident of 

Morehead, Kentucky, ‘‘went to a doctor 

in Portsmouth[,] Ohio’’ and obtained 

four controlled-substance prescriptions, 

which he then filled at Respondent the 

same day. GX 38, at 1 & 7. The 

prescriptions were for 60 tablets of 

Roxicodone 30 mg. (oxycodone), 120 

tablets of oxycodone 15 mg., 180 tablets 

of Roxicodone 30 mg. (oxycodone), and 

30 alprazolam 1 mg. Id. at 7. 

B.A. ‘‘went to bed at around 2300– 

2400 on Thursday November 4[,] 2009 

and was high when he went to bed.’’ Id. 

at 1. He was ‘‘found deceased the next 

morning by his room-mate.’’ Id. 

The next morning, a Detective went to 

B.A.’s trailer and interviewed B.A.’s 

roommate L.R., who reported that B.A. 

‘‘appeared to be a little high last night 

before he went to bed’’ but because B.A. 

‘‘had not been home all day yesterday 

* * * he did not know exactly what all 

[B.A.] had done.’’ Id. at 4. L.R. further 

stated that B.A. ‘‘really didn’t seem 

right,’’ that he had been in the bathroom 

‘‘for a long time,’’ that when B.A. went 

to bed, he was ‘‘snoring really loud’’ but 

that when L.R. got up to use the 

bathroom at about 3:30 a.m., B.A. was 

no longer snoring. Id. at 5. 

The Detective obtained L.R.’s consent 

to search the premises and found a key 

on B.A.’s car key ring which fit a safe 

in B.A.’s bedroom. Id. at 5. The 

Detective opened the safe and found six 

pill bottles, including the four 

prescriptions which B.A. had filled the 

day before at Respondent. Id. at 5–6. 

With respect to these four 

prescriptions, the Detective found that 

there were no tablets left in the bottle 

which had contained 60 Roxicodone 30 

mg., there were only fifty-two tablets left 

in the bottle which had contained 120 

oxycodone 15 mg., there were only 

nineteen tablets left in the bottle which 

had contained 180 Roxicodone 30 mg., 

and there were only eight tablets left of 

the thirty alprazolam. Id. at 7. 

The Detective also interviewed two 

persons who had accompanied B.A. on 

his trip to the doctor’s office and to 

Respondent. Id. They stated that when 

B.A. emerged from the doctor’s office, 

he had a ‘‘ ‘mapquest’ printout’’ with 

directions to Respondent; B.A. told 

them that the doctor’s staff had said to 

fill his prescriptions at Respondent. Id. 

at 8. 

Following L.D.C.’s death, 

Investigators conducted surveillance of 

Respondent during which they observed 

the license plates of its customers to 

determine where they were coming 

from. Tr. 592. One of the plates was 

traced to S.P., a resident of Waverly, 

Ohio. Tr. 593; GX 33. The Investigators 

then obtained an OARRS report on S.P. 

and prepared a spreadsheet listing the 

prescriptions she filled by date between 

November 6, 2007 and October 30, 2009, 

the dispensing pharmacy, and the 

prescriber. GX 33. 

The report showed that S.P. had 

obtained oxycodone from Respondent 

on eighteen occasions during this period 

using prescriptions she had obtained 

from seven different doctors. See GX 33. 

Moreover, according to the OARRS 

report, the doctors were located in 

Waverly, Beavercreek, Dayton, 

Wheelersburg and Portsmouth; two of 

the Portsmouth doctors practiced at 

different clinics.29 Id. 

The prescriptions included ones for 

oxycodone issued by the following 

doctors: (1) On November 6 and 

December 4, 2007, as well as on January 

9 and February 14, 2008, by Dr. B.B. of 

Waverly, Ohio; (2) on May 20, June 13 

and 23, July 11, August 12, 2008 and 

January 6, 2009, by Dr. D.B. of 

Beavercreek, Ohio; (3) on September 10, 

October 1 and 27, and November 27, 

2009, by Dr. M.G. of Portsmouth 

(Medical Solutions, L.L.C.); (4) on July 

3, 2009, by Dr. J.D. of a different 

Portsmouth clinic (Complete Pain 

Management, L.L.C.); (5) on September 

1, 2009, by Dr. P.C. of Dayton; (6) on 

October 1, 2009, by Dr. M.F. of 

Wheelersburg; and (7) on October 30, 

2009, by Dr. J.C. of Portsmouth. See GX 

33. The OARRS Report also contained 

controlled-substance prescriptions 

written by additional doctors which S.P. 

filled at other pharmacies. See id. 

On November 6, 2009, DEA 

Investigators conducted an 

administrative inspection of 

Respondent. Tr. 610, 692. Investigators 

requested that Mr. Fletcher provide 

Respondent’s biennial inventory of its 

controlled substances, but Respondent 

was unable to do so. Id. at 693–94. The 

lead DI further testified that Mr. 

Fletcher stated that he was unaware of 

the requirement of maintaining a 

biennial inventory. Id. at 694. 

The Government’s Expert Witness 

The Government called Donald 

Sullivan, R.Ph. and PhD, as its expert 

witness. Dr. Sullivan, who holds active 

pharmacist licenses in Ohio and 

Florida, obtained a B.S. in Pharmacy 

from The Ohio State University, as well 

as both an M.S. and PhD in 

Pharmaceutical Administration, also 

from The Ohio State University. GX 19, 

at 1; Tr. 922. Between 1997 and 2006, 

Dr. Sullivan was an Associate Professor 

of Pharmacy Practice at Ohio Northern 

University. GX 19, at 1; Tr. 920. 

Thereafter, Dr. Sullivan was appointed 

to the rank of Full Professor and has 

been Chairman of the Department of 

Pharmacy at Ohio Northern University 

for the last four years. Tr. 920. 

During graduate school, Dr. Sullivan 

worked as a Registered Pharmacist at 

both retail and mail order pharmacies. 

GX 19, at 2; Tr. 934. He testified that he 

has worked at ‘‘several different 

independents in the central Ohio area’’ 

and that he currently works part-time as 

a pharmacist for North Central Mental 

Health. Id. at 934–35. Dr. Sullivan was 

offered and accepted as an ‘‘expert 

witness * * * on standard pharmacy 


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30While the Ohio courts may have interpreted 

State law as described above, as explained below, 

Dr. Sullivan’s testimony that Federal law allocates 

fifty percent of the responsibility to the physician 

and fifty percent to the pharmacist is not a correct 

statement of the law, which has been amply 

explained in numerous decisions of the Federal 

courts and this Agency. To make clear, Federal law 

does not apportion the responsibility for dispensing 

unlawful prescriptions between a prescribing 

practitioner and a pharmacist. Rather, Federal law 

imposes separate and independent duties on the 

prescriber and the pharmacist. 

More specifically, the prescriber must act within 

the usual course of professional practice and have 

a legitimate medical purpose to lawfully issue a 

controlled-substance prescription. 21 CFR 

1306.04(a). As the Supreme Court and numerous 

Federal courts have made plain, to lawfully 

prescribe a controlled substance the physician must 

act ‘‘in accordance with a standard of medical 

practice generally recognized and accepted in the 

United States.’’ United States v. Moore, 423 U.S. 

122, 138–39 (1975); see also United States v. Smith, 

573 F.3d 639, 647–48 (8th Cir. 2009); United States 

v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). 

By contrast, a ‘‘pharmacist is not required to 

* * * practice medicine.’’ United States v. Hayes, 

595 F.2d 258, 261 (5th. Cir 1979). ‘‘What is required 

of [a pharmacist] is the responsibility not to fill an 

order that purports to be a prescription but is not 

a prescription within the meaning of the statute 

because he knows [or has reason to know] that the 

issuing practitioner issued it outside the scope of 

medical practice.’’ Id. at 261. As the Fifth Circuit 

has further explained, ‘‘a pharmacist can know that 

prescriptions are issued for no legitimate medical 

purpose without his needing to know anything 

about medical science.’’ Id at 261 n.6; see also 

United States v. Henry, 727 F.2d 1373, 1379 (5th 

Cir. 1984) (applying ‘‘reason to believe’’ standard to 

pharmacist); United States v. Seeling, 622 F.2d 207, 

213 (6th Cir. 1980) (upholding use of deliberate 

ignorance instruction in prosecution of pharmacist). 

However, Dr. Sullivan’s statements that: (1) A 

pharmacist is not required to fill any prescription, 

and (2) it is not an excuse that because a doctor 

wrote the prescription, it can be legally filled, are 

consistent with Federal law. 

31According to Dr. Sullivan, as part of the 

prospective drug utilization review, a pharmacist is 

required to check a patient’s profile for the 

following: ‘‘(a) over-utilization or underutilization[;] (b) therapeutic duplication[;] (c) drugdisease state contraindications[;] (d) drug-drug 

interactions[;] (e) incorrect drug dose or duration of 

treatment[;] (f) drug-allergy interaction[;] (g) abuse/ 

misuse[;] (h) inappropriate duration of treatment[; 

and] (i) documented good/nutritional supplementsdrug interactions.’’ GX 20, at 3–4 (emphasis in 

original). 

practice and standards for dispensing 

controlled substances.’’ Id. at 938. 

Dr. Sullivan testified that the 

curriculum at pharmacy college 

includes courses in pharmacology and 

therapeutics, which cover ‘‘the actual 

pharmacology and pathophysiology of 

drug abuse,’’ as well as in pharmacy law, 

which covers the subject of prescription 

drug abuse and prescription drug fraud. 

Id. at 925. He testified that the American 

Council of Pharmaceutical Education, 

which accredits schools of pharmacy, 

requires that these subject areas ‘‘be 

taught.’’ Id. at 925–26. Dr. Sullivan has 

taught pharmacy law since his time as 

a teaching assistant in graduate school; 

in addition to his teaching at Ohio 

Northern University, he also teaches 

pharmacy law in continuing education 

programs and in review classes for the 

NAPLEX exam. Id. at 933. 

Dr. Sullivan testified that under both 

Ohio and Federal law, there ‘‘is 

corresponding responsibility between 

the physician and the pharmacist.’’ Tr. 

939. He further explained that ‘‘[a] lot of 

pharmacists think that just because the 

physician wrote it, I have to fill it.’’ Id. 

However, Dr. Sullivan stated that [t]here 

is nothing in Ohio law that says you 

have to fill any prescription.’’ Id. at 939– 

40. He then explained that ‘‘one of the 

first things we try to get the students 

and pharmacist to understand is that 

under Ohio law, and federal law * * * 

50 percent of the responsibility falls on 

the pharmacy, the pharmacist, 50 

percent falls on the physician. Don’t just 

fill it because the doctor wrote it.’’ Id. 

Similarly, in his report, Dr. Sullivan, 

after discussing the CSA’s prescription 

requirement (21 CFR 1306.04(a)), 

explained that: 

The State of Ohio has similar language in 

its laws and regulations. Ohio Law states 

that: The pharmacist who fills any 

prescription has a corresponding 

responsibility with the physician to make 

sure that the prescription has been issued for 

a Legitimate Medical Purpose. The 

responsibility to ensure that a prescription is 

for a legitimate medical purpose in the usual 

course of a prescriber’s professional practice 

is equal for both the physician and 

pharmacist. (Fifty percent of this 

responsibility is on the pharmacist and 50% 

is on the physician). The argument that ‘‘Just 

because a physician wrote the prescription, 

I can legally fill it’’ is no excuse. 

GX 20, at 1 30 (emphasis in original). 

More importantly, Dr. Sullivan 

testified that a pharmacist is 

‘‘[a]bsolutely’’ taught to question the 

legality of a prescription. Tr. 940. As 

examples of prescriptions he had 

refused to fill, Dr. Sullivan noted an 

instance where a physician had written 

for a combination of a narcotic, a 

benzodiazepine, a muscle relaxant, and 

a sleeping pill; there were ‘‘similar doses 

for everybody, [with] no 

individualization of therapy’’; and 

‘‘maximum doses for everyone.’’ Id. at 

940–41. Dr. Sullivan further testified 

that when he called the physician to 

determine what was wrong with the 

patients, ‘‘so we could document 

whether it is for a legitimate purpose,’’ 

the physician never provided a ‘‘good 

answer’’ and he ‘‘stopped filling 

prescriptions for these patients.’’ Id. at 

941. 

Continuing, Dr. Sullivan explained 

that ‘‘[m]ore is required’’ from a 

pharmacist than merely verifying the 

prescription with the doctor and that 

‘‘[i]t is still [a pharmacist’s] professional 

judgment to make the call * * * is it for 

a legitimate purpose or not?’’ Id. at 942. 

Dr. Sullivan emphasized that ‘‘just 

because the physician tells [a 

pharmacist] that, yes, it is for a 

legitimate medical purpose * * * [the 

pharmacist] still ha[s] that 50 percent 

corresponding liability to make [his] 

own judgment, is that for a legitimate 

medical purpose or not.’’ Id. 

Dr. Sullivan testified that there are 

‘‘red flags’’ which pharmacists need to 

recognize and consider before they 

dispense a prescription. Tr. 936. As 

examples, he testified that pharmacists 

are ‘‘required to do drug utilization 

review on every prescription * * * 

before it is dispensed in the pharmacy’’ 

to determine whether ‘‘doses * * * are 

too high, duplicate therapy, potential 

use or misabuse [sic], [and prescriptions 

are] being filled too soon.’’ 31 Id. 

Additional red flags include 

‘‘[m]aximum doses being seen for every 

single patient, lack of individuation of 

therapy, certain patterns from 

physicians of potential abuse of seeing 

the same types of controlled substances 

over, and over, and over, again.’’ Id. at 

937. Moreover, other red flags involve 

‘‘drug interactions [such as] [t]wo drugs 

being used for the same thing, three 

drugs being used for the same thing, 

three drugs in different classes[ ] that 

can cause the same side effects, such as 

respiratory [depression] where you 

might see a benzodiazepine, a muscle 

relaxer, and a narcotic pain killer.’’ Id. 

at 937. 

On cross-examination, Dr. Sullivan 

explained that ‘‘[t]here is no permanent 

physical checklist. [A pharmacist] 

should look for several different things, 

such as number of drugs being 

prescribed, quantities, types of drugs, 

patient profile, what is going on with 

that patient’s drug therapy in the past, 

because you have to do prospective 

DUR. Where the patient lives, where 

they are coming from, and even method 

of payment.’’ Id. at 993. 

Dr. Sullivan further testified that it is 

‘‘[a]bsolutely’’ important that 

pharmacists communicate with one 

another. Tr. 950–51. Dr. Sullivan 

explained that a pharmacist readily 

‘‘develop[s] a pretty quick informal 

network among the pharmacists * * * 

within a five to ten mile radius’’ of his 

store because of the need to transfer 

prescriptions and that these informal 

networks also host such discussion as 

whether there is suspicious prescribing 

going on in various parts of the State. Id. 

at 951–52. Continuing, he testified that 

if a pharmacist is presented with a 


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32While the ALJ found that ‘‘Dr. Sullivan was 

provided 55 prescriptions,’’ ALJ at 30, his 

subsequent testimony made clear that he had 

actually reviewed hundreds of prescriptions. Tr. 

1011 (‘‘There were 55 patients, there were hundreds 

of prescriptions that I looked at.’’). 

Respondent’s Counsel also took issue with Dr. 

Sullivan’s statement that he had reviewed a 

‘‘random’’ sample. See Tr. 992 (‘‘So you would agree 

with me that this isn’t really a random sample, 

wouldn’t you?’’). Dr. Sullivan testified that the 

sample represented ten percent of the prescriptions 

seized from Respondent by DEA and that the 

selection of that ten percent was ‘‘based on a 

statistical formula’’ that he obtained from a statistics 

Web site and had later validated, but he did not 

include the formula in his report. Id. at 992. 

However, it is immaterial whether the sample Dr. 

Sullivan reviewed was randomly selected as Mr. 

Fletcher’s obligation under 21 CFR 1306.04(a) 

applies to every prescription he dispensed. 

33The ALJ found that Dr. Sullivan ‘‘credibly’’ 

testified that ‘‘nationwide[ ] only 10% of 

prescriptions [are] paid for in cash.’’ ALJ at 31 

(citing Tr. 961). Dr. Sullivan further testified that 

IMS Health, ‘‘the number one data collection firm 

for basically all prescription drug prescribing, 

dispensing, and pricing,’’ was the source of this 

data. Tr. 961. 

34 In his testimony, Dr. Sullivan elaborated that 

he had ‘‘almost never seen’’ cases where physicians 

were ‘‘abusing the prescribing of controlled 

substances’’ by issuing prescriptions for schedule II 

drugs and that most cases typically involved 

schedule III and IV drugs. Tr. 955–56. On crossexamination, Dr. Sullivan admitted that he had 

probably not filled a pain medication prescription 

in approximately twelve years, id. at 977, and that 

this report represented his first determination that 

‘‘a pharmacy is abusing controlled substances.’’ Id. 

at 990. However, he had previously filled ‘‘probably 

1,000’’ prescriptions for oxycodone and thousands 

of prescriptions for alprazolam. Id. at 980–981. 

35When asked on cross-examination if he knew 

what break-through pain is and whether he was 

aware that Dr. Volkman ‘‘practiced pain breakthrough type treatment,’’ Dr. Sullivan explained that 

there is no such separate specialty in pain 

management and that this ‘‘is when a patient is on 

a dose of medication, and they are having flare-ups 

in pain, then another drug is given to help on a 

temporary acute basis to take care of that pain 

flare.’’ Tr. 1027. He further stated that such 

treatment regimens were sometimes seen ‘‘in 

hospice patients and cancer patients.’’ Id. at 1028. 

Respondent did not establish that Volkman was 

legitimately prescribing multiple drugs for this 

purpose. 

prescription which another pharmacy 

had refused to fill, ‘‘there had better be 

a lot of documentation, a lot of 

conversation with the physician, and a 

very, very good explanation * * * 

professionally as to why that patient 

needs that prescription filled’’ before the 

pharmacist ‘‘risk[s] [his] license and 

fill[s] that prescription.’’ Id. at 953. 

Dr. Sullivan explained that were a 

patient to tell him that another 

pharmacy had refused to fill the 

prescription, he would first call that 

pharmacist and ask why he refused to 

fill the prescription and why he 

suspected that the prescription was not 

‘‘for a legitimate medical purpose.’’ Id. 

Dr. Sullivan also explained that it was 

‘‘[a]bsolutely’’ important that a 

pharmacist maintain an open line of 

communication with a prescribing 

physician. Id. at 954. 

Dr. Sullivan reviewed the 

prescriptions issued to fifty-five patients 

by Dr. Volkman which were filled by 

Respondent between September 13, 

2005 and February 9, 2006. Id. at 948, 

991, 1011; GX 20.32 He subsequently 

prepared a report which was submitted 

into the record. GX 20. 

At the outset of his report, Dr. 

Sullivan observed that ‘‘all these 

patients were from extreme southern 

Ohio and northern Kentucky’’ and were 

‘‘driving 2+ hours to Columbus to have 

their prescriptions filled.’’ Id. at 1. Dr. 

Sullivan noted that the customers 

‘‘would have bypassed [dozens of other] 

pharmacies en route to Columbus.’’ Id.; 

Tr. 960. Dr. Sullivan opined that ‘‘[t]his 

would be a major red flag to any 

pharmacist’’ and that ‘‘a reasonable 

pharmacist would seriously question 

why these patients were driving such a 

long distance to have their prescriptions 

filled.’’ GX 20, at 1. At the hearing, Dr. 

Sullivan further explained that 

according to the Shearing Report, which 

‘‘looks at why consumers shop at certain 

community pharmacies,’’ in ‘‘at least 28 

out of the last 30 years, the number one 

reason is proximity to where they live.’’ 

Tr. 959. Dr. Sullivan thus observed that 

‘‘[t]his pattern of patients traveling long 

distances from the location of their 

home and physician is extremely 

unusual and very suspicious.’’ GX 20, at 

2. 

In addition, Dr. Sullivan noted that 

forty of the fifty-five patients (73%) had 

paid cash for their prescriptions’’ and 

that ‘‘the national average of cash paying 

customers for prescriptions [was] 11.4% 

in 2005 and 10% in 2006.’’ 33 Id. 

Explaining that ‘‘profit margins on cash 

prescriptions are 30% higher than 

insurance prescriptions for brandname[] drugs and 100% to 500% higher 

than insurance prescriptions for 

generics,’’ he concluded that this ‘‘is an 

obvious example of a pharmacy 

profiting from drugs that are most likely 

being abused or diverted for sale on the 

street’’ and that ‘‘[a]ny reasonable 

pharmacist knows that a patient that 

wants to pay cash for a large quantity of 

controlled substances is immediately 

suspect.’’ Id. 

In his report, Dr. Sullivan stated that 

in all of his ‘‘years of practice and 

teaching, I have never seen such an 

abuse of controlled substances 

dispensing by one pharmacy, especially 

in schedule II controlled substances.’’ 34

GX 20, at 1. Dr. Sullivan also found 

‘‘extremely surprising the volume of 

controlled substances this one doctor 

[wrote], especially for schedule II 

drugs.’’ GX 20, at 1–2. According to Dr. 

Sullivan, this ‘‘should have been a major 

red flag for any reasonable pharmacist 

that this physician is nothing more than 

a controlled substance prescription mill 

for patients who are diverting and 

abusing narcotic drugs.’’ Id. at 2. 

Dr. Sullivan further observed that 

‘‘75% of the [Volkman] patients received 

the same four drug cocktail, which 

included a benzodiazepine, two narcotic 

pain killers and Soma (a muscle relaxer 

known to be highly abused).’’ Id. at 3. 

According to Dr. Sullivan, ‘‘[i]t is well 

known in the pharmacy profession 

[that] the combination of a 

benzodiazepine, narcotic pain killer, 

and Soma [is] being used by patients 

abusing prescription drugs.’’ Id. Dr. 

Sullivan then noted that Dr. Volkman 

‘‘took this to another level by prescribing 

two narcotic pain killers at the same 

time.’’ Id. 

In his testimony, Dr. Sullivan 

explained that pharmacists refer to the 

combination of ‘‘the benzodiazepine, the 

narcotic * * * pain killer, and the 

sleeping pill’’ as ‘‘[t]he triple,’’ and that 

when Soma (carisoprodol) is added, the 

combination is known as the 

‘‘homerun.’’ Tr. 956. Noting that 

Volkman was issuing duplicate 

prescriptions for schedule II narcotics, 

Dr. Sullivan testified that he had never 

seen two schedule II narcotics 

prescribed together other than for 

treatment of cancer or hospice patients. 

Id. at 956–57, 1027–28.35 He further 

observed that ‘‘41 of the 55 [patients] 

(75%) received two narcotic pain killers 

on the same day,’’ and that this 

happened ‘‘68 different times for these 

41 patients.’’ GX 20, at 3. He then 

reiterated that ‘‘[t]o have two schedule II 

controlled substances, or two narcotics, 

a schedule II, and a schedule III * * * 

like * * * a Vicodin * * * or a Lortab 

* * * combined together * * * was 

something [he] had never seen to this 

extent before these prescriptions.’’ Id. at 

957. 

Noting that a pharmacist’s primary 

obligation is to take care of the patient, 

Dr. Sullivan stated that if he saw two 

prescriptions for two narcotic pain 

killers for one patient, he would worry 

about the potential central nervous 

system (CNS) effects or ‘‘the respiratory 

depression that might occur with this 

patient.’’ Id. at 957. Observing that ‘‘a lot 

of these drugs’’ have a ‘‘synergistic effect 

on respiratory depression,’’ he explained 

that ‘‘[i]t is not two narcotics equal twice 

the respiratory depression, it is one plus 

one equals three or four times the 

respiratory depression.’’ Id. Moreover, 

when a benzodiazepine and a muscle 

relaxant are added ‘‘on top of that,’’ there 

is a concern as to whether ‘‘the patient 


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36Norco is a brand name drug containing 

hydrocodone bitartrate and acetaminophen, and a 

schedule III controlled substance pursuant to 21 

CFR 1308.13(e)(1). ALJ Ex. 5, at 2. 

37 Dr. Sullivan also observed that ‘‘[m]any of the 

narcotic prescriptions had the words ‘severe LBP’ 

on them,’’ which ‘‘most likely stands for ‘Severe 

Low Back Pain.’ ’’ GX 20, at 5. Explaining that 

‘‘[l]ower back pain is viewed in the medical field 

as the ‘biggest scam to obtain controlled substances’ 

because it is the hardest to disprove due to the lack 

of definitive clinical measures,’’ he reported that 

‘‘[i]t is very unusual that all these patients had the 

same diagnosis and they all had to be on the 

maximum doses of these controlled substances 

including Soma.’’ Id. 

38On cross-examination Dr. Sullivan elaborated 

that ‘‘a reasonable pharmacist’’ is ‘‘[a] pharmacist 

who looks out for the best interest of their patients, 

takes care of their patients, within the legal 

requirements of the law.’’ Tr. 1025. 

39On cross-examination, Dr. Sullivan clarified 

that he described the patients as ‘‘known drug 

abusers’’ because ‘‘[t]hat is my professional opinion 

based on what I saw in the prescriptions.’’ Tr. 1032– 

33. 

[is] going to be able to safely take these 

medications together.’’ Id. He then 

testified that looking at the quantities, 

doses, and that multiple drugs were 

being prescribed for a single patient, he 

would ask himself ‘‘how could this 

possibly be for a legitimate medical 

purpose.’’ Tr. 958. 

In his report, Dr. Sullivan further 

noted that there were three patients who 

‘‘received three narcotic pain killers on 

the same day’’ and that ‘‘[t]here is no 

logical reason why the patient would be 

on two or three narcotic pain killers at 

the same time.’’ GX 20, at 3. Continuing, 

he explained that this is ‘‘a major red 

flag’’ which is strongly suggestive of 

abuse and that ‘‘[n]o reasonable 

pharmacist would fill two or three of 

these prescriptions on the same day.’’ Id. 

See also id. at 5 (discussing M.C., who 

on the same day received prescriptions 

for Percocet 10/325, Norco 10/325,36

and oxycodone 30 mg.). 

With regard to the narcotic pain 

killers Respondent dispensed, Dr. 

Sullivan explained that the ‘‘normal 

dose of oxycodone’’ is ‘‘5 mg. to 10 mg. 

every four hours,’’ but that ‘‘80% of the 

patients in the sample were prescribed 

15 mg. to 60 mg. every two or three 

hours.’’ GX 20, at 4. Dr. Sullivan 

explained that ‘‘a reasonable pharmacist 

would recognize this as a problem and 

a marker of drug abuse and addiction.’’ 

Id. 

As to the prescriptions for schedule III 

hydrocodone/apap drugs, Dr. Sullivan 

noted that ‘‘100% (89/89) were for the 

highest strength available, which is 10 

mg. of hydrocodone.’’ Id. Observing that 

it was ‘‘clinically impossible that all the 

patients in the sample would always 

need the highest possible dose of 

hydrocodone with acetaminophen,’’ Dr. 

Sullivan thus concluded that there was 

‘‘no individualization of dosing based on 

pain in these patients, which should 

have been a major red flag for any 

pharmacist.’’ Id. Moreover, ‘‘[a]ny 

pharmacist would have known that this 

was a problem and a strong indicator of 

a doctor operating a controlled 

substance prescribing mill.’’ Id.37

With respect to the Xanax 

(alprazolam) prescriptions, ‘‘one of the 

most highly abused benzodiazepines on 

the market’’ and a drug ‘‘in high demand 

on the street,’’ Dr. Sullivan observed that 

all sixty prescriptions were for the 

maximum strength of the drug. Id. 

Moreover, ninety-three percent of the 

prescriptions ‘‘exceeded the FDA 

approved maximum daily dosage of 4 

mg. per day’’ and thirty-two percent 

‘‘exceeded the FDA approved dosing 

schedule of three times a day.’’ Id. At the 

hearing, Dr. Sullivan explained that 

Xanax 2 mg. is generally only prescribed 

to patients with post-traumatic stress 

disorder. Tr. 970. 

Again, Dr. Sullivan noted that there 

was ‘‘no individualization of therapy’’ 

and that ‘‘[e]very patient was prescribed 

the same strength at extremely high 

doses.’’ GX 20, at 4. He further opined 

that ‘‘[a]ny pharmacist would have 

known that this was a problem and a 

strong indicator of a doctor operating a 

controlled substance prescribing mill.’’ 

Id. 

With regard to the Valium (diazepam), 

which is also ‘‘a highly abused 

benzodiazepine in high demand on the 

street,’’ Dr. Sullivan noted that all of the 

forty-two prescriptions he reviewed 

were for the highest strength available, 

10 mg. GX 20, at 4. He then noted that 

Patient K.D. ‘‘was prescribed Valium 20 

mg. at bedtime, twice the maximum 

dose,’’ and ‘‘[a]t least 50% of the 

prescriptions were written for a 

maximum dose of four times daily.’’ Id. 

at 5. Dr. Sullivan again explained that 

‘‘[a]ny pharmacist would have known 

that this was a problem and a strong 

indicator of a doctor operating a 

controlled substance prescribing mill.’’ 

Id. 

After noting that over the period of 

September 2005 through January 2006, 

Dr. Volkman ‘‘seemed to be writ[ing] 

larger doses and higher quantities as 

time went on’’ and that this was 

‘‘definitely a sign of drug abuse’’ which 

‘‘a reasonable pharmacist 38 would have 

caught,’’ Dr. Sullivan discussed ‘‘a few of 

the most blatant examples of abuse and 

diversion.’’ Id. These included instances 

in which Respondent provided early 

refills such as for L.B., who on 

December 28, 2005, received a Xanax 

prescription two weeks early; and S.K., 

who, on September 13, 2005, received a 

prescription for 240 tablets of 

oxycodone 15 mg., with eight tablets to 

be taken per day (thus being a thirty-day 

supply), and who, one week later, 

obtained an additional 168 tablets of the 

same drug. Id. at 5–6. Moreover, M.P. 

filled two prescriptions for Percocet 

5/325 on the same day, and L.A.T. filled 

two prescriptions for oxycodone on the 

same day. Id. at 6. 

Dr. Sullivan further observed that J.C. 

had received a prescription for 720 

tablets of oxycodone 15 mg. with a 

dosing of two tablets every two hours 

(or twenty-four tablets per day), as well 

as for twelve tablets per day of 

hydrocodone/apap 10 mg./325 mg.; 

according to Dr. Sullivan, ‘‘[n]o patient 

could take this much narcotic in one 

day and not overdose.’’ Id. at 5. He also 

noted that M.C. had received three 

different narcotics on the same day 

including 180 Percocet 10/325, 180 

Norco 10/325, and 240 oxycodone 30 

mg., and observed that ‘‘[a]t these 

doses[,] this patient [was] taking 300 

mg. of oxycodone per day along with 60 

mg. of hydrocodone’’ and that ‘‘[n]o 

patient could take this much narcotic in 

one day and not overdose.’’ Id. Finally, 

with respect to J.C. (a resident of 

Grayson, Ky.) and M.C. (a resident of 

Flatwoods, Ky.), Dr. Sullivan explained 

that ‘‘[a] reasonable pharmacist would 

notice [the amounts being taken] as a 

problem’’ and that the amounts were a 

marker of drug abuse or diversion such 

that a reasonable pharmacist would not 

have filled the prescriptions. Id. 

Dr. Sullivan concluded his report as 

follows: 

A pharmacist might act in the best interest 

of the patient and fill an occasion[al] 

prescription for a high dose or large quantity. 

However, the evidence presented above is 

overwhelming and shows a pattern of 

dispensing controlled substances to patients 

who are known drug abusers 39 or are 

diverting prescription drugs for illegal 

purposes. There are dozens of patients with 

the same drugs on their profile[s] and all at 

maximum doses and beyond. There is no 

medically sound reason why patients should 

be treated with two or three drugs in the 

same class for the same thing as these 

patients are. Any reasonable pharmacist 

would notice this as a problem very quickly 

and easily. In addition, these drugs when 

combined cause CNS (central nervous 

system) depression and can easily lead to 

overdose. Any reasonable pharmacist would 

recognize this danger and would not 

dispense these medications (duplicate 

therapy) together. These are all textbook 

examples of drug abuse and/or drug 

diversion. Any reasonable pharmacist would 

quickly recognize this based on their 

education and training. In all my years of 

practicing and teaching, I have never seen 

such an abuse of controlled substance 


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40Regarding the Ohio Board proceedings, the ALJ 

allowed Respondent to elicit the testimony of 

Barton Kaderly, who had previously been a citizen 

member of the Board; Mr. Kaderly testified as to his 

being ‘‘appalled’’ over the decision of his fellow 

board members to fine Respondent and Mr. 

Fletcher. Tr. 1064, 1074–75. Beyond the fact that 

Mr. Kaderly’s personal opinion is irrelevant and 

should have been excluded, the ALJ apparently 

forgot that DEA has held that a registrant cannot 

collaterally attack the results of a State board 

proceeding in proceedings under 21 U.S.C. 823 & 

824. See Hicham K. Riba, 73 FR 75773, 75774 

(2008). I therefore give no weight to his testimony. 

41These witnesses include Ms. Adkins, Ms. 

Berring, Mr. Gordon, Mr. Cates, Dr. Will, Mr. 

Macke, and Mr. Kimbler. I have, however, 

considered the testimony of these individuals (as 

well as that of Ms. Banks and Ms. Del Guzzo) to 

the extent they testified as to Mr. Fletcher’s 

reputation and character. 

As previously discussed, I have considered the 

testimony of Mr. Newman, Respondent’s CPA, in 

making my findings regarding Respondent’s 

structuring activities as well as that of Mr. Kaderly. 

42Respondent’s counsel asked Mr. Aalyson six 

times when this conversation occurred, going so far 

as to suggest that ‘‘you are not sure of the year, you 

don’t have a telephone record, or anything, to show 

what year it would have been, it could have been 

2005?’’ See Tr. 1156, 1166. While Mr. Aalyson 

answered this last question: ‘‘I can’t remember, I’m 

sorry,’’ he had previously testified repeatedly that 

the conversation had occurred around the time he 

entered into the agreement by which he sold his 

law practice and that this happened in October 

2006. Tr. 1156, 1166. 

. 

dispensing by one pharmacy, especially in 

schedule II controlled substances. 

Id. at 6. 

On cross-examination, Dr. Sullivan 

conceded that he ‘‘would not have 

turn[ed] away every one of’’ the 

customers whose prescriptions were 

reviewed in his report but that after he 

had ‘‘seen a pattern,’’ he ‘‘would have 

started to make phone calls and then 

started to not fill them.’’ Tr. 1009. 

Moreover, ‘‘based on the large 

quantities’’ and ‘‘the safety of the 

patient,’’ there were some prescriptions, 

including those ‘‘for three narcotic pain 

killers’’ that he ‘‘would not have filled’’ 

at all. Id. at 1010. Dr. Sullivan further 

explained that in determining which 

prescriptions he would have filled, he 

would ‘‘had to have looked at the patient 

history, and [considered] the 

conversation of the physician.’’ Id. at 

1011. Clarifying his testimony, Dr. 

Sullivan explained that while it might 

have required time to detect a pattern 

with respect to some of the 

prescriptions, others should not have 

been filled at all ‘‘just looking blatantly 

at the doses, the combinations, that 

would have been, definitely, harmful to 

that patient, taking those drugs in those 

doses.’’ Id. at 1012–13. Dr. Sullivan then 

explained that part of the reason for his 

equivocation with respect to whether he 

would have filled some of the 

prescriptions is that when he reviewed 

them, he did not ‘‘know how long [Mr. 

Fletcher] had been treating those 

patients.’’ Id. at 1013. 

Dr. Sullivan also acknowledged that 

he does not have actual knowledge of 

whether the Volkman patients were 

abusing or diverting the drugs. Id. at 

1019. However, he reiterated his 

opinion that based on the quantities and 

doses that Volkman was prescribing, the 

drugs were either being abused or 

diverted because the patients would be 

dead if they took the amounts that were 

prescribed. Id. at 1032. Notably, the ALJ 

found that Dr. Sullivan ‘‘rationally and 

credibly concluded that these patients 

abused the drugs, diverted the drugs, or 

[if they had] consumed them * * * 

would be dead.’’ ALJ at 35 (citing Tr. 

1032); Tr. 1019. 

The State Board Proceeding 

On March 5, 2009, the Ohio State 

Board of Pharmacy (Board) found that 

on three occasions between August 29, 

2006 and November 27, 2007, deliveries 

of controlled substances were made to 

Respondent when a pharmacist was not 

on duty and that the drugs were not 

properly secured. GX 16, at 2–3 & 4; Tr. 

1066. In the first instance, the delivery 

was placed in a hallway closet outside 

of Respondent; in both the second and 

third instances, the drugs were placed 

in a pharmacy technician’s automobile, 

which was parked in Respondent’s 

parking lot. GX 16, at 2. Based on these 

incidents, the Board found that 

Respondent violated Ohio law. Id. at 

2–3 (citing Ohio Rev. Code § 4729.55). 

The Board fined Respondent $1,000.00, 

id. at 3, and Mr. Fletcher $1,500.00. Tr. 

1073. In addition, the Board placed Mr. 

Fletcher’s pharmacist’s license on 

probation for two years and suspended 

it for twelve weeks, but then waived ten 

weeks of the suspension.40 Tr. 1074. 

According to the Board’s Order in the 

case against Respondent, it had the right 

to appeal to the State courts. GX 16, 

at 3. 

Respondent’s Evidence 

Respondent called fifteen witnesses, 

half of whom testified regarding the 

Government’s various excursions into 

such issues as the character of the 

neighborhood, Mr. Fletcher’s practice of 

carrying a gun at work, and his prices. 

Having concluded that the character of 

the neighborhood and Mr. Fletcher’s 

carrying of a gun are not relevant in 

assessing his compliance with 21 CFR 

1306.04(a) and that the Government has 

not proved with substantial evidence 

that Respondent charged higher prices 

than similar pharmacies, it is not 

necessary to discuss the testimony of 

those witnesses Respondent called to 

refute these contentions.41 Accordingly, 

only four witnesses offered testimony 

arguably relevant to the issues in this 

proceeding. 

Mark Aalyson testified that he had 

practiced law in Portsmouth, Ohio, that 

his ‘‘practice was devoted exclusively’’ 

to representing injured workers before 

the Industrial Commission of Ohio, and 

that he knew most of the doctors who 

practiced in Scioto County. Tr. 1156. 

Mr. Aalyson testified that in the ‘‘early 

fall of 2006,’’ Mr. Fletcher called him 

and asked whether he ‘‘had ever heard 

of a Dr. Paul Volkman.’’ 42 Id. According 

to Mr. Aaylson, Mr. Fletcher told him 

that he was getting patients from the 

Scioto County area who were getting 

prescriptions for pain medication from 

Dr. Volkman. Id. at 1157. Mr. Aalyson 

testified that he told Mr. Fletcher that he 

did not know who Volkman was and 

was ‘‘not sure how long he has been 

around.’’ Id. at 1158–59. Mr. Aalyson 

then asked Mr. Fletcher ‘‘what is the 

problem?’’ Id. Mr. Fletcher answered: 

‘‘I’m getting a lot of people coming in, 

and I’m beginning to wonder if the guy 

is legitimate.’’ Id. at 1159. 

Julie Fuller worked as a sales 

representative for AmeriSource Bergen, 

a major drug distributor, from December 

2003 until January 2007. Tr. 1550. She 

testified that during her visits to 

Respondent, she saw Mr. Fletcher check 

for early refills and for drug 

interactions. Id. at 1567–68. However, 

she acknowledged that the purpose of 

her visits was not ‘‘to observe him’’ in 

the practice of pharmacy but to get his 

business. Id. at 1584. Moreover, Ms. 

Fuller testified that she believed that 

Respondent closed at 6 p.m. and that 

her visits occurred ‘‘[s]omewhere 

between 10 and 5,’’ Tr. 1582; she did not 

testify that she observed Mr. Fletcher 

filling any of Dr. Volkman’s controlledsubstance prescriptions. Her testimony 

is therefore of no probative value. 

Respondent also called Mr. Fletcher’s 

cousin, Carisa Cole, who worked at 

Respondent between December 2004 

and October 2009. Id. at 1704–05. In her 

testimony, Ms. Cole maintained that she 

never saw anyone who appeared under 

the influence of either drugs or alcohol 

and that Mr. Fletcher would not serve 

persons who appeared under the 

influence (although it is not clear how 

she would know that Mr. Fletcher 

would not serve such persons if she 

never saw any one who appeared under 

the influence). Id. at 1708. However, on 

cross-examination, she testified that she 

could not recall that any of the patients 

Mr. Fletcher refused to dispense to for 

this reason were patients of Dr. 


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43This also assumes that every single phone call 

was made to Dr. Volkman even though 

Respondent’s phone bills show calls to numerous 

cities in Ohio where there is no evidence that 

Volkman worked or lived, as well as to cities in 

other States. 

44Ms. Smith testified that she did not work 

Saturdays and that only Mr. Fletcher worked then. 

Tr. 1240. 

Volkman. Id. at 1741. She also stated 

that he turned away a person who 

presented a prescription issued by a 

Florida-based doctor but could not 

recall when this happened. Id. at 1712. 

Finally, she testified that he also 

sometimes turned people away because 

they did not have a photo ID. Id. at 

1747. 

Ms. Cole maintained that she was 

present when Dr. Volkman’s patients 

came to the pharmacy and that ‘‘a lot of 

them complained of having blood taken 

too often’’ to ‘‘make sure that they were 

actually taking their medication.’’ Id. at 

1713. She also testified that while 

Respondent’s hours were ‘‘until 5:30,’’ 

‘‘[t]here were a few times’’ that Mr. 

Fletcher would stay open later because 

he knew that Volkman’s patients were 

coming. Id. at 1716, 1720. However, Ms. 

Cole never talked with either Dr. 

Volkman or his security guard. Id. at 

1721. 

On cross-examination, Ms. Cole stated 

that she would typically leave 

Respondent at ‘‘[a]bout 5:30,’’ but that 

sometimes she would stay past 5:30 two 

or three times per week for the Volkman 

patients, and had stayed as late as 9:30 

for a Volkman patient. Id. at 1733. 

However, she acknowledged that she 

would not typically be at the pharmacy 

after nine o’clock because she has ‘‘three 

children’’ and ‘‘child care issues.’’ Id. at 

1743–44. Moreover, she did not work at 

Respondent on Saturdays. Id. at 1740. 

Ms. Cole acknowledged that 

Volkman’s patients were typically not 

from the Columbus area and were 

coming from Portsmouth and Southern 

Ohio, as well as Kentucky and West 

Virginia. Id. at 1723. Ms. Cole also 

stated that Mr. Fletcher had asked these 

patients why they were filling their 

prescriptions at his pharmacy and that 

the patients had stated that other 

pharmacies did not have the medication 

or had run out. Id. at 1724. When then 

asked whether she knew if Mr. Fletcher 

had ever asked the patients ‘‘why they 

never filled their prescriptions at any 

pharmacies in between Portsmouth and 

Columbus,’’ she answered that she did 

not know if there were any pharmacies 

between these cities even though she 

acknowledged that it was a two hour 

drive. Id. at 1726–27. 

Ms. Cole also maintained that Mr. 

Fletcher had tried calling some of the 

pharmacies but then acknowledged that 

she was ‘‘not real sure’’ if she was 

present when any of these calls were 

made. Id. at 1725. Moreover, as found 

above, during an interview with a DEA 

Investigator, Mr. Fletcher stated that he 

did not call other pharmacies regarding 

the Volkman prescriptions. Id. 

Ms. Cole also acknowledged that the 

Volkman prescriptions would include at 

least one schedule II drug, that being 

oxycodone, which would be prescribed 

in combination with Soma and 

alprazolam. Id. at 1732. She further 

acknowledged that Volkman patients 

would typically present their 

prescriptions at the same time and that 

they ‘‘typically had the same 

prescriptions.’’ Id. at 1736. 

Subsequently, Ms. Cole testified that 

‘‘every time we got a prescription from 

Florida, or anywhere out of the State of 

Ohio, [or] even within the State of Ohio 

[but from outside of Columbus] * * * 

that we would call and verify the 

prescriptions,’’ which Ms. Cole stated, 

would be done on ‘‘[t]he business line.’’ 

Tr. 1747–48, 1753. Ms. Cole’s 

recollection is patently erroneous as 

shown by the evidence that Respondent 

filled 4,900 controlled-substance 

prescriptions for Volkman’s patients 

and the phone records Respondent 

submitted, which establish that during 

the five-month period in which it filled 

Volkman’s prescriptions, it never made 

more than ninety-seven long distance 

phone calls in a month.43 See RX 19. Ms. 

Cole also testified that she remembered 

D.S. (who had sponsored A.S.) bringing 

other people to Respondent to have her 

prescriptions filled. Tr. 1757. 

Ms. Cole further testified that Mr. 

Fletcher questioned those persons who 

obtained controlled-substance 

prescriptions from Florida doctors, and 

that they claimed that they had recently 

moved to either Kentucky or Ohio or 

were working in Columbus and couldn’t 

go home. Id. at 1749. Ms. Cole stated 

that she was ‘‘skeptical’’ of the people 

presenting these prescriptions because 

of the distances involved. Id. With the 

exception of her testimony as to her 

skepticism, the remainder of this 

testimony is absurd on its face—if a 

person had in fact recently moved to 

Kentucky or Southern Ohio, this fact 

would have been verifiable by simply 

looking at his/her driver’s license as Ms. 

Cole claimed Mr. Fletcher always did. 

Moreover, if a person had recently 

moved to these areas, one must wonder 

how they would find out so quickly that 

only Respondent would fill their 

prescriptions. As for those persons who 

claimed they were working in Columbus 

and could not go home, it is odd that 

they could travel to South Florida to 

obtain the prescriptions in the first 

place. 

Respondent also called Catherine 

Smith, who worked as a pharmacy 

technician at Respondent and who 

considered Mr. Fletcher to be her ‘‘best 

friend.’’ Id. at 1235.44 Ms. Smith 

testified that her duties involved a 

variety of functions including working 

at the front window and ‘‘talk[ing] to 

[the] patients,’’ ‘‘look[ing] at 

prescriptions,’’ and also ‘‘fill[ing] 

prescriptions.’’ Id. Ms. Smith testified 

that she saw the prescriptions ‘‘first,’’ 

and that if one did not ‘‘look legit’’ 

(meaning forged), she would ‘‘present it 

to Mr. Fletcher.’’ Id. at 1425. Ms. Smith 

also testified that she was the person 

who ‘‘counted the medicine’’ and ‘‘put 

[it] in a bottle’’ and that she ‘‘explained 

it to the patients.’’ Id. at 1429–30. 

According to Ms. Smith, Mr. Fletcher 

would enter the prescription 

information into the pharmacy 

computer and print out the labels. Id. at 

1430. 

Ms. Smith further maintained that if 

a patient did not seem right to her, she 

would mention it to Mr. Fletcher, who 

would then question the patient and not 

fill the script if the patient was showing 

symptoms of being under the influence. 

Id. at 1238. She also claimed that Mr. 

Fletcher would ask Respondent’s 

customers why they were taking the 

pain medicine; he would also tell the 

patients ‘‘this is a large quantity of pills 

you are taking here’’ and ask them ‘‘can 

you work without the medicine?’’ Id. at 

1253–54. Ms. Smith further maintained 

that Mr. Fletcher would tell the patients 

‘‘be careful of the way you take it, take 

it the way you are supposed to take it, 

the way they prescribe it’’ and that he 

would ‘‘tell them some of the cautions 

to take with it.’’ Id. at 1254. She 

maintained that Mr. Fletcher ‘‘talked to 

everybody about their prescriptions.’’ Id. 

at 1281. 

On cross-examination, however, Ms. 

Smith then qualified her testimony, 

stating: ‘‘I’m not saying he talks to 

everybody, but the majority of them 

* * * that is on that kind of pain 

medicine.’’ Id. at 1423. Moreover, when 

DEA Investigators interviewed 

numerous patients of Dr. Volkman, most 

of them stated that Mr. Fletcher did not 

ask about their medical conditions. GX 

9, at 86; see also GX 23, at 3 (affidavit 

of L.W., ‘‘When having prescriptions 

filled at [Respondent], most of the time 

I spoke with Eugene’s assistants but I 

did speak with Eugene several times 

also. When we spoke together, Eugene 

never asked me about my medical 


srobinson on DSKHWCL6B1PROD with NOTICES
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45Respondent also asked Ms. Smith, who 

formerly held a license as a registered nurse, a 

series of questions about the proper dosing of pain 

medications. Tr. 1279–80. Ms. Smith has not, 

however, maintained her license and did not testify 

as to having any expertise in the treatment of 

chronic pain patients. Id. at 1280. 

46 It is acknowledged that the ALJ found that Ms. 

Cole credibly testified that Mr. Fletcher refused to 

fill a prescription for a patient because the ‘‘patient 

may have been trying to fill a schedule II 

prescription too early.’’ ALJ at 20 (quoting Tr. 1737). 

She did not, however, recall the name of the 

patient, and her testimony suggests that this was a 

one-time occurrence as she did not assert that this 

had happened on more than one occasion. Tr. 1737. 

Most significantly, she did not testify that he 

refused to fill the prescription because it lacked a 

legitimate medical purpose and the great weight of 

the evidence (including the volume of 

prescriptions, the type and quantity of the drugs, 

and Mr. Fletcher’s statements to Investigators), 

supports the conclusion that he never refused to fill 

a prescription issued by Volkman because it lacked 

a legitimate medical purpose. 

47As to factor one, the Ohio Board of Pharmacy 

has not made a recommendation in this matter. See 

21 U.S.C. 823(f)(1). Moreover, while there is no 

evidence that the State Board has revoked either 

Respondent’s or Mr. Fletcher’s license, DEA has 

held repeatedly that a registrant’s possession of a 

valid State license is not dispositive of the public 

interest inquiry. See Patrick W. Stodola, 74 FR 

20727, 20730 n.16 (2009); Robert A. Leslie, 68 FR 

at 15230. As DEA has long held, ‘‘the Controlled 

Substances Act requires that the Administrator 

* * * make an independent determination as to 

whether the granting of controlled substances 

privileges would be in the public interest.’’ 

Mortimer Levin, 57 FR 8680, 8681 (1992). 

It is likewise noted that there is no evidence that 

either Respondent or Mr. Fletcher has been 

convicted of any offenses under Federal or State 

laws related to the distribution or dispensing of 

controlled substances. 21 U.S.C. 823(f)(3). However, 

there are multiple reasons why even serious 

misconduct may not be the subject of a criminal 

prosecution. Thus, DEA has recognized that the 

lack of any criminal convictions related to 

controlled substances is not dispositive. See 

Edmund Chein, 72 FR 6580, 6593 n.22 (2007). 

Accordingly, that Respondent may still hold its 

Ohio pharmacy license and that neither it, nor Mr. 

Fletcher, has been convicted of a criminal offense 

is not dispositive. 

48While Respondent allowed his registration to 

expire and has not submitted a renewal application, 

there is no evidence that Mr. Fletcher has 

surrendered Respondent’s pharmacy license and his 

pharmacist’s license, and neither party argues that 

this case is moot. Moreover, Respondent’s 

registration was immediately suspended at which 

time its controlled substances were seized. Under 

the CSA, ‘‘[a]ll right, title, and interest in’’ any 

controlled substances seized pursuant to a 

suspension order ‘‘vest in the United States upon a 

revocation order becoming final’’ and ‘‘shall be 

forfeited to the United States.’’ 21 U.S.C. 824(f). 

DEA has previously held that ‘‘a litigant cannot 

defeat the effect of this provision by simply 

allowing its registration to expire.’’ Meetinghouse 

Community Pharmacy, Inc., 784 FR 10073, 10074 

n.5 (2009). Accordingly, there are collateral 

consequences which preclude a finding of 

mootness. See id.; Trinity Health Care Corp., 72 FR 

30849, 30853–54 (2007). 

condition but would just make small 

talk.’’). 

Ms. Smith also maintained that Mr. 

Fletcher would call the doctors ‘‘and 

make sure that the script is legit.’’ Id. at 

1264. However, while Mr. Fletcher may 

have spoken with Dr. Volkman on some 

occasions, according to Volkman’s 

former security guard, the majority of 

the calls Mr. Fletcher made to 

Volkman’s office ‘‘were to determine 

how late he should stay open to fill Dr. 

Volkman’s prescriptions.’’ GX 22, at 

1–2. Moreover, in the calls the security 

guard answered, ‘‘Eugene never asked 

about the medical condition of any 

patients and I never recall hearing any 

other staff members discuss with 

Eugene any patient’s medical condition 

or anything else other than to arrange 

pharmacy hours.’’ Id. at 3. And as noted 

above, Respondent’s phone records 

suggest that Respondent filled 

numerous prescriptions without calling 

Dr. Volkman.45 Moreover, neither Ms. 

Smith nor Ms. Cole testified as to any 

specific instances in which Mr. Fletcher 

had refused to fill prescriptions 

presented by Volkman’s patients on the 

ground that the prescriptions lacked a 

legitimate medical purpose.46

Finally, notwithstanding the 

substantial probative evidence offered 

against him, Mr. Fletcher did not testify 

in this proceeding. 

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 [its] 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 

following factors be considered: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 

(3) The applicant’s conviction record under 

Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(5) Such other conduct which may threaten 

the public health and safety. 

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 registrant has 

committed acts which render its 

registration inconsistent with the public 

interest. 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). 

The Government has the burden of 

proving by a preponderance of the 

evidence that the Respondent has 

committed acts which render its 

registration inconsistent with the public 

interest. 21 CFR 1301.44(d) & (e). 

However, where the Government has 

made out a prima facie case, the burden 

shifts to the Respondent to either refute 

the Government’s case or to ‘‘ ‘present[] 

sufficient mitigating evidence’ ’’ to show 

why, notwithstanding that it has 

committed acts which render its 

registration inconsistent with the public 

interest, it can be entrusted with a new 

registration. Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23848, 23853 (2007) (quoting Leo R. 

Miller, 53 FR 21931, 21932 (1988))), pet. 

for rev. denied, Medicine ShoppeJonesborough v. DEA, 2008 WL 4899525 

(6th Cir.). ‘‘Moreover, because ‘past 

performance is the best predictor of 

future performance,’ ALRA Labs, Inc. v. 

DEA, 54 F.3d 450, 452 (7th Cir. 1995), 

[DEA] has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Cuong Trong Tran, 63 FR 64280, 62483 

(1998); Prince George Daniels, 60 FR 

62884, 62887 (1995). 

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.’’ 47 21 U.S.C. 

824(a)(4). I further conclude that 

Respondent has not rebutted the 

Government’s prima facie case. 

Accordingly, I affirm the order of 

immediate suspension.48

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 


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49As 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)). 

50Because of its potential for abuse, DEA has, 

however, initiated a proceeding to place 

carisoprodol into schedule IV of the Controlled 

Substances Act. See 74 FR 59108, 59109 (2009). 

51While A.S. testified that she had been in pain 

caused by an auto accident, she also testified that 

she diverted drugs. Moreover, while A.S.’s pain 

may have justified the prescribing of a controlled 

substance, Respondent offered no evidence refuting 

the Government Expert’s testimony that the fourdrug cocktail of oxycodone, hydrocodone, 

alprazolam, and carisoprodol, which Volkman 

repeatedly prescribed to her, does not have a 

legitimate medical purpose. 

practice.’’ 21 CFR 1306.04(a). This 

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.’’ 49 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.’ ’’ Medicine 

Shoppe-Jonesborough, 73 FR at 381 

(quoting 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). 

Respondent contends that ‘‘[t]he 

[G]overnment can point to no specific 

violation of a known rule, but merely 

relies upon the general and vague 

allegation that Respondent did not 

satisfy a ‘corresponding duty’ to ensure 

that [it] dispenses controlled substances 

for a legitimate medical purpose.’’ Resp. 

Exceptions, at 1. It further contends that 

it ‘‘has been held to an unknown and 

ambiguous standard, [which is] higher 

than any standard previously imposed 

on any pharmacist.’’ Id. at 6. Contrary to 

Respondent’s contention, the Federal 

courts have had little problem applying 

the regulation and long ago expressly 

rejected the argument that the regulation 

is unconstitutionally vague and does not 

provide fair notice of what conduct is 

prohibited. See, e.g., United States v. 

Hayes, 595 F.2d 258, 260 (5th Cir. 1979) 

(‘‘The regulation gives fair notice that 

certain conduct is proscribed.’’) (int. 

quotations and citations omitted). 

Most significantly, the great weight of 

the evidence establishes that Mr. 

Fletcher filled numerous controlledsubstance prescriptions which he had 

reason to know were not issued for a 

legitimate medical purpose by a 

practitioner acting in the usual course of 

professional practice. Indeed, Mr. 

Fletcher knew from the outset that Dr. 

Volkman’s prescriptions lacked a 

legitimate medical purpose. As found 

above, Mr. Fletcher was specifically 

asked in a phone call by one of Dr. 

Volkman’s patients if he would fill 

prescriptions written by Volkman for 

multiple drugs including oxycodone 30 

mg. and hydrocodone 10 mg., which are 

schedule II and III narcotics 

respectively, Xanax 2 mg., a schedule IV 

benzodiazepine, and Soma 

(carisoprodol), a muscle relaxant which 

is currently a non-scheduled drug but 

which is nonetheless popular with drug 

abusers and which metabolizes into 

meprobamate, a schedule IV drug.50

As the Government’s Expert 

explained, the combination of a 

benzodiazepine, a narcotic and 

carisoprodol is ‘‘well known in the 

pharmacy profession’’ as being used ‘‘by 

patients abusing prescription drugs.’’ GX 

20, at 3. Moreover, as the Government’s 

Expert elaborated, Dr. Volkman took 

this ‘‘to another level’’ by prescribing 

two narcotics in addition to a 

benzodiazepine and carisoprodol, thus 

distributing a schedule II narcotic, a 

schedule III narcotic, a schedule IV 

depressant, and carisoprodol, for a total 

of four drugs at the same time. Id. 

The Government’s Expert further 

explained that the combination of these 

two narcotics, a benzodiazepine, and a 

muscle relaxant would have a 

‘‘synergistic effect’’ on a patient’s central 

nervous system and cause respiratory 

depression thus posing a substantial risk 

to any patient actually taking the drugs 

as prescribed. Thus, from the time Mr. 

Fletcher agreed to fill the prescriptions, 

he had reason to know that Volkman’s 

prescriptions lacked ‘‘a legitimate 

medical purpose.’’ 21 CFR 1306.04(a). 

Notwithstanding this, there is ample 

evidence showing that Respondent 

repeatedly dispensed cocktail 

prescriptions for oxycodone, 

hydrocodone, alprazolam, and 

carisoprodol. See GX 12 (spreadsheet of 

prescriptions dispensed to A.S. and 

L.W.); GX 20, at 3 (Gov. Expert’s report 

noting that ‘‘75% of the patients 

received the same four drug cocktail 

which included a benzodiazepine, two 

narcotic pain killers and Soma’’). With 

respect to A.S.51 and L.W., many of the 

oxycodone prescriptions were for 30 

mg. and were for quantities which 

would provide a daily dose multiple 

times the amount that the Government’s 

Expert—whose testimony was 

unrefuted—stated was the ‘‘normal dose 

of oxycodone’’ and thus indicated that 

Volkman was running a pill mill. 

Likewise, the prescriptions for 

hydrocodone and alprazolam were 

always for the strongest formulations of 

the drug; with respect to the alprazolam, 

the Government’s Expert explained that 

ninety-three percent of the prescriptions 

he reviewed exceeded the FDAapproved maximum daily dosage and 

that the two-milligram strength of the 

drug is generally only prescribed for a 

patient with post-traumatic stress 

disorder. 

Respondent also filled prescriptions 

issued to a single patient for multiple 

schedule II drugs on the same day, as 

well as three narcotic controlled 

substances on a single day. Moreover, in 

the prescriptions he reviewed, the 

Government Expert observed that there 

was ‘‘no individualization of dosing 

based on pain in these patients’’ with 

respect to the hydrocodone and 

alprazolam prescriptions and that ‘‘[a]ny 

pharmacist would have known that this 

was a problem and a strong indicator of 

a doctor operating a controlled 

substance prescribing mill.’’ The 

Government’s Expert also noted various 

instances of Respondent dispensing 

refills that were weeks early. 

In addition, the fact that Mr. Fletcher 

had been called by D.S., who lived in 

Southern Ohio and was seeing a doctor 

whose office was nearly 100 miles away 

from his pharmacy, and yet, was 

obviously having problems filling her 

prescriptions, provided further reason to 

know that the prescriptions were not 

legitimate. While Mr. Fletcher did not 

ask where D.S. and Dr. Volkman were 

from and thus may not have had actual 

knowledge at the time of the initial 

phone call where Volkman and the 

patients were from, see GX 39, at 2; 

under a DEA regulation, each 

controlled-substance prescription must 

include the name and address of both 


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52The evidence also shows that in October 2005, 

shortly after he had commenced filling Volkman’s 

prescriptions, Mr. Fletcher was aware of the 

$10,000 threshold which triggers a bank’s obligation 

to report a cash deposit under the Bank Secrecy Act 

and that he then structured multiple bank deposits 

in an attempt to avoid his bank’s filing of Currency 

Transaction Reports, which would draw attention 

to his activities. This evidence further supports the 

conclusion that Mr. Fletcher clearly knew that by 

filling the Volkman prescriptions, he was engaging 

in illegal activity. 

53Respondent’s employees also testified that 

some of Volkman’s patients complained that he was 

requiring them to undergo blood or urine tests. This 

sliver of evidence provides no reason to ignore the 

overwhelming evidence against Respondent. 

the patient and prescriber. 21 CFR 

1306.05(a). 

Thus, the first time one of Volkman’s 

patients presented a prescription to him, 

Mr. Fletcher knew that Volkman was 

practicing in Portsmouth, approximately 

90 miles from Columbus, as well as the 

location of the patient’s residence; he 

also knew with each successive 

prescription he received from a 

Volkman patient that they were 

travelling great distances to fill their 

prescriptions. 

As the evidence shows, only a few of 

Volkman’s patients lived in the 

Columbus area, and most of them were 

travelling great distances (and 

sometimes with others) to get their 

prescriptions filled at Respondent, with 

approximately half of them coming from 

Kentucky (more than two hours away) 

and many others coming from the 

Portsmouth area. Notwithstanding that 

many of the patients were travelling for 

hours to fill their prescriptions at 

Respondent, Volkman’s controlledsubstance prescriptions accounted for 

seventy-five percent of the total amount 

of controlled-substance prescriptions 

dispensed by Respondent, and 

controlled substances accounted for 

approximately ninety-five percent of 

Volkman’s prescriptions. As the 

Government’s Expert testified, the fact 

that the patients were driving so far to 

get their prescriptions filled ‘‘would be 

a major red flag to any pharmacist.’’ 

Indeed, Mr. Fletcher admitted in an 

interview that he had been told by 

Volkman’s patients that no other 

pharmacists would fill the 

prescriptions. Yet, even when presented 

with this fact, he did not call any 

pharmacists to determine why. He also 

admitted in an interview that some of 

Volkman’s patients had asked him to 

sell them extra pills, a clear indication 

that Volkman’s patients were either 

abusing and/or selling the drugs. Yet he 

continued to fill Volkman’s 

prescriptions. 

Moreover, in substantial contrast to 

the national average of cash-paying 

customers which is approximately ten 

to eleven percent, nearly eighty-seven 

percent of the Volkman patients paid 

cash for their prescriptions. This, too, 

was a red flag as ‘‘[a]ny reasonable 

pharmacist knows that a patient that 

wants to pay cash for a large quantity of 

controlled substances is immediately 

suspect.’’ 

The evidence further shows that 

Respondent and Dr. Volkman’s clinic 

would call each other on a daily basis 

to discuss when Volkman had seen his 

last patient so that Mr. Fletcher would 

know how late to stay open and that he 

stayed open as late as midnight to await 

the arrival of Volkman’s patients and to 

fill their prescriptions. Relatedly, the 

evidence shows that Volkman directed 

his patients to go to Respondent and 

even provided driving directions to it. 

And the evidence also showed that 

Volkman’s patients would travel to 

Respondent in groups. 

Moreover, in early October 2005, 

Volkman, following a raid by the 

Portsmouth P.D., moved his ‘‘practice’’ 

to Chillicothe. Mr. Fletcher knew that 

Volkman had moved to Chillicothe 

because he called Volkman at this 

clinic. GX 22. This begs the question of 

whether Mr. Fletcher asked Volkman 

why he had moved his practice, which, 

like all of the other questions raised by 

his conduct, Mr. Fletcher has failed to 

address because he did not 

testify.52 See, e.g., Baxter v. Palmigiano, 

425 U.S. 308, 316 (1976). In light of the 

substantial probative evidence offered 

against Respondent and Mr. Fletcher, 

Mr. Fletcher’s failure to testify supports 

the drawing of an adverse inference 

against Respondent and Mr. Fletcher. I 

therefore conclude that Mr. Fletcher 

knew that Volkman’s prescriptions 

lacked ‘‘a legitimate medical purpose’’ 

and thus violated Federal law. 

Against this evidence, Respondent 

elicited the testimony of his two 

employees. Ms. Smith testified that Mr. 

Fletcher would question his customers 

as to why they were taking the 

medicine, tell them that they were 

taking a large quantity of pills, and ask 

them if they could work without the 

drugs. She further maintained on direct 

examination that Mr. Fletcher ‘‘talked to 

everybody about their prescriptions’’ but 

then retreated from this testimony, 

stating that he did not talk ‘‘to 

everybody’’ but only ‘‘the majority of 

them.’’ Moreover, earlier in her 

testimony, she had stated that she 

explained the medications to the 

patients and most of the patients 

interviewed by DEA Investigators stated 

that Mr. Fletcher did not ask them about 

their medical condition. 

As for Ms. Cole, much of her 

testimony is of dubious credibility. For 

example, Ms. Cole testified that Mr. 

Fletcher had tried calling some of the 

pharmacies which had refused to fill 

Volkman’s prescriptions. Yet, when 

interviewed by a DEA Investigator, Mr. 

Fletcher stated that he did not talk to 

other pharmacists. Ms. Cole also 

testified that every time Mr. Fletcher 

received prescriptions from outside of 

the Columbus area, he would call to 

verify the prescriptions. However, 

Respondent’s phone records show 

otherwise. 

Regardless, even if Mr. Fletcher had 

called to verify each and every 

prescription that Dr. Volkman issued, 

the evidence would still support the 

conclusion that he repeatedly violated 

his corresponding responsibility under 

Federal law because many of the 

Volkman prescriptions patently served 

no legitimate medical purpose. See 

United States v. Hayes, 595 F.2d at 260 

(‘‘[A] pharmacist may not fill a written 

order from a practitioner, appearing on 

its face to be a prescription, if he knows 

the practitioner issued it in other than 

the usual course of medical treatment.’’). 

As the Fifth Circuit has explained, 

while ‘‘[v]erification by the issuing 

practitioner on request of the 

pharmacist is evidence that the 

pharmacist lacks knowledge that the 

prescription was issued outside the 

scope of professional practice[,] * * * it 

is not an insurance policy against a fact 

finder’s concluding that the pharmacist 

had the requisite knowledge despite a 

purported but false verification.’’ Id. at 

261. A pharmacist has ‘‘the 

responsibility not to fill an order that 

purports to be a prescription but is not 

a prescription within the meaning of the 

[CSA] because he knows that the issuing 

practitioner issued it outside the scope 

of medical practice.’’ Id. 

In an interview with a DEA 

Investigator, Mr. Fletcher admitted that 

‘‘he had questions about’’ Dr. Volkman 

but that he was satisfied because 

Volkman told him that he did an MRI 

and blood tests.53 However, as found 

above, Respondent repeatedly 

dispensed drug cocktails for multiple 

controlled substances including 

oxycodone, hydrocodone, and 

alprazolam, as well as carisoprodol, a 

combination which is widely known in 

the pharmacy profession as being 

popular with drug abusers, and it did so 

in such quantities that any reasonable 

pharmacist would have asked how the 

prescriptions could possibly serve a 

legitimate medical purpose. The 

Government’s Expert also explained that 

these cocktails would have a synergistic 

effect on a person’s central nervous 

system and could cause respiratory 


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54Respondent also elicited the testimony of Mr. 

Aalyson, a lawyer who practiced workers 

compensation law in Portsmouth and who knew 

most of the local doctors, that Mr. Fletcher had 

called and asked him if knew whether Dr. Volkman 

was a legitimate doctor. Tr. 1159. Mr. Aalyson 

testified that the phone call occurred in October 

2006, more than a year after Mr. Fletcher started 

filling Volkman’s prescriptions and eight months 

after DEA suspended Volkman’s registration and 

thus could no longer prescribe. 

To the extent this testimony was offered to 

support the contention that Mr. Fletcher tried to do 

due diligence, it provides no comfort to him as the 

conversation occurred more than a year after he 

started filling Volkman’s prescriptions. Moreover, 

even if the conversation had occurred shortly after 

Mr. Fletcher started filling Volkman’s prescriptions 

(the apparent point of Respondent’s repeated 

questioning of Mr. Aalyson regarding when the 

conversation occurred), his testimony that Mr. 

Fletcher stated that he was ‘‘getting a lot of people 

coming in, and I’m beginning to wonder if the guy 

is legitimate,’’ Tr. 1159, would actually support the 

Government’s case that Mr. Fletcher knew 

Volkman’s prescriptions were not legitimate. 

depression. Accordingly, even if 

Volkman told Mr. Fletcher that he did 

blood tests and MRIs, this would not 

make the prescriptions any more 

legitimate.54

This alone supports the conclusion 

that Mr. Fletcher violated Federal law in 

dispensing the Volkman prescriptions. 

21 CFR 1306.04(a). The other 

evidence—such as that related to the 

quantities of the various drugs being 

prescribed, the dosing, and lack of 

individualization of therapy; the 

distances the patients were travelling 

and the typical method of payment; the 

fact that Mr. Fletcher knew that other 

pharmacists had refused to fill 

Volkman’s prescriptions; the percentage 

and number of Volkman’s prescriptions 

that were for controlled substances—is 

simply icing on the cake. 

Moreover, even after a DEA 

Investigator had interviewed Mr. 

Fletcher and asked him if he found it 

suspicious that Volkman’s patients were 

travelling long distances to fill their 

prescriptions, Mr. Fletcher proceeded to 

fill numerous oxycodone and 

alprazolam prescriptions for residents of 

Kentucky who had travelled to South 

Florida to obtain the prescriptions. 

Indeed, even one of Respondent’s 

employees was ‘‘skeptical’’ as to whether 

these were legitimate prescriptions. 

While Respondent contends that Mr. 

Fletcher stopped filling prescriptions 

issued by Florida pain-clinic physicians 

after he received the Ohio Board of 

Pharmacy’s Notice, Mr. Fletcher did not 

testify in this proceeding and so has 

failed to offer any explanation as to why 

he filled the prescriptions in the first 

place. Furthermore, a responsible DEA 

registrant should be able to make these 

determinations without the authorities 

having to provide the information to 

him on a silver platter. 

Nor was this the end of Respondent’s 

abysmal experience in dispensing 

controlled substances. On November 4, 

2009, Respondent dispensed to B.A., a 

recovering drug addict who lived in 

Morehead, Kentucky, four controlledsubstance prescriptions issued by a 

Portsmouth physician, including two for 

Roxicodone 30 mg. (totaling 240 

tablets), one for 120 oxycodone 15 mg., 

and one for 30 alprazolam; B.A. had 

been directed by the doctor’s staff to fill 

his prescriptions at Respondent. Later 

that day, B.A. got high, and the next 

morning, he was found dead; the 

detective who found the prescription 

vials noted that there were only 

nineteen tablets left out of the total of 

240 Roxicodone 30 mg., there were only 

fifty-two tablets left out of the 120 

oxycodone 15 mg., and only eight 

tablets out of the 30 alprazolam. The 

quantity of oxycodone provided by 

these prescriptions totaled 300 mg. per 

day, an amount which was five to ten 

times the normal daily dose of 

oxycodone (5 to 10 mg. every four 

hours) as testified to by the 

Government’s Expert. Moreover, on this 

single day, Respondent dispensed three 

prescriptions for the same schedule II 

narcotic. According to the Government’s 

Expert, both the multiple prescriptions 

which B.A. presented and the large 

quantities prescribed were ‘‘red flags’’ 

which are suggestive of abuse and ‘‘no 

reasonable pharmacist would fill’’ the 

prescriptions. Here again, however, Mr. 

Fletcher failed to testify and thus 

offered no explanation as to why he did 

so. 

DEA Investigators also obtained an 

OARRS report which showed that on 

eighteen different occasions between 

November 6, 2007 and October 30, 2009, 

Respondent had dispensed oxycodone 

to S.P. based on prescriptions she 

obtained from seven different doctors; 

most of the doctors practiced in 

different cities (Waverly, Beavercreek, 

Dayton and Wheelersburg), and while 

three of the doctors practiced in 

Portsmouth, two of them practiced at 

different clinics. Notwithstanding that 

its own dispensing records should have 

shown that S.P. was a doctor shopper 

(indeed, there was no need for Mr. 

Fletcher to check the OARRS to make 

this determination), Respondent 

repeatedly dispensed this highly abused 

schedule II controlled substance to her. 

Here again, Mr. Fletcher did not testify 

and thus has failed to explain why he 

ignored the information in his own 

records. 

Respondent and Mr. Fletcher also 

violated the CSA and DEA regulations 

because during the November 6, 2009 

inspection, it could not produce the 

biennial inventory of controlled 

substances which it is required to 

maintain. See 21 U.S.C. 827(a)(1) (‘‘every 

registrant * * * shall * * * as soon 

* * * as such registrant first engages in 

the * * * dispensing of controlled 

substances, and every second year 

thereafter, make a complete and 

accurate record of all stocks thereof on 

hand’’); see also 21 CFR 1304.11. 

Moreover, Mr. Fletcher was unaware 

that there is such a requirement. Finally, 

as found by the Ohio Board of 

Pharmacy, Mr. Fletcher and Respondent 

violated Ohio law on three occasions 

because Mr. Fletcher, as ‘‘the 

responsible pharmacist[,] failed to 

maintain supervision and control over 

the custody and possession of 

dangerous drugs’’ which had been 

delivered to the pharmacy. 

I therefore conclude that the evidence 

relevant to Respondent’s experience in 

dispensing controlled substances and its 

record of compliance with applicable 

Federal and State laws related to 

controlled substances shows that it has 

committed acts which render its 

continued registration inconsistent with 

the public interest and which justified 

the suspension of its registration. 

Notably, Mr. Fletcher failed to testify in 

this proceeding; Respondent therefore 

has not rebutted the Government’s 

prima facie case. While there is only the 

suspension order to review (because 

Respondent allowed its registration to 

expire), which I affirm, had Respondent 

filed a renewal application, I would 

have denied it. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824, as well as by 28 CFR 

0.100(b) and 0.104, I hereby affirm my 

order which immediately suspended the 

now-expired DEA Certificate of 

Registration, BE5902615, issued to East 

Main Street Pharmacy. This Order is 

effective immediately. 

Dated: October 15, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–27096 Filed 10–26–10; 8:45 am] 

BILLING CODE 4410–09–P 

OFFICE OF MANAGEMENT AND 

BUDGET 

Information Collection Activities: 

Proposed Collection; Comment 

Request 

AGENCY: Office of Management and 

Budget, Office of Federal Financial 

Management. 

ACTION: Notice; request for comments. 


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