[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)]
[Notices]
[Pages 29022-29025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12128]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 14-25]
The Main Pharmacy; Decision and Order
On October 7, 2014, Administrative Law Judge (ALJ) Christopher B.
McNeil issued the attached Recommended Decision (hereinafter, R.D.).
Therein, the ALJ found it undisputed that Respondent no longer holds a
Texas Pharmacy License and is thus not authorized to dispense
controlled substances in the State in which it seeks registration under
the Controlled Substances Act (CSA). R.D. at 6. The ALJ thus concluded
that Respondent is not a ``practitioner'' within the meaning of the CSA
and is therefore not entitled to be registered. R.D. at 7 (citing 21
U.S.C. 802(21) & 823(f)). Accordingly, the ALJ granted the Government's
Motion for Summary Disposition and recommended that I deny its
application.
The ALJ did not, however, address the Government's further
contention that it was also entitled to summary disposition because
Respondent's proposed business model of shipping filled controlled
substance prescriptions to a patient's prescribing physician rather
than directly to the patient, violates federal law. See generally R.D.;
see also Mot. for Summ. Disp., at 5-6. The Government takes exception
to the ALJ's failure to address the issue,\1\ arguing that the ALJ
``should have also reached the merits of this case and granted summary
disposition to the Government on the additional basis that Respondent
intends to dispense controlled substances to non-ultimate users in
violation of the [CSA] and its implementing regulations.'' Gov.
Exceptions, at 1.
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\1\ Following the issuance of the Recommended Decision,
Respondent's counsel filed a pleading entitled: ``Notice of
Appeal.'' Therein, Respondent requests that the record be prepared
and forwarded ``to the appropriate Appeals Court.'' Notice of
Appeal, at 1. Respondent did not, however, file exceptions to the
ALJ's decision as provided for in the Agency's regulations. See 21
CFR 1316.66. As for its ``Notice of Appeal,'' the ALJ's Recommended
Decision is not a final decision of the Agency and thus, the filing
of the record in ``the appropriate'' court, whatever that maybe, is
premature. In the event Respondent files a Petition for Review of
this Decision and Order, which is the final decision of the Agency,
the Agency will comply with Rule 17 of the Federal Rules of
Appellate Procedure.
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As support for its contention, the Government argues that I should
reach the issue because it ``was fully briefed by the parties,''
``there is no dispute as to any material fact,'' and ``the issue is
likely to recur with the Respondent'' because its ``owner has stated
his intent to reapply for a state license and pursue opening the
pharmacy.'' Id. at 2. Finally, the Government argues that ``requiring
the parties to revisit this issue as part of a future case would be a
waste of resources, given that this issue has been briefed and is now
ripe for disposition.'' Id.
While Respondent agrees with the Government,\2\ I reject the
parties'
[[Page 29023]]
contentions. Here, even assuming that further factual development is
not necessary and that the parties have fully briefed the issue,
Respondent's professed intent to reapply for a state license remains
speculative, and until such time as Respondent obtains a new state
license (and a new Texas DPS registration), it is not authorized to
handle controlled substances under state law and cannot obtain a DEA
registration. See Texas v. United States, 523 U.S. 296, 300 (1998) (``A
claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at
all.'') (int. quotations and citations omitted). Thus, were I to adopt
Respondent's position, it would still not be entitled to a
registration.
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\2\ Respondent asserts that the issue of its proposed business
model is ripe for review because ``[e]very time [it] applies for a
State license all [the Government] has to do is to sit on the
application for a period of six months or more and Respondent will
have to close [the] Pharmacy. [The Government] can then assert that
Respondent has no State license and should be barred from going
forward and hence evade review.'' Resp. Answer to Movant's Mot. for
Summ. Disp., at 3.
Respondent's position apparently stems from the Texas Pharmacy
Act and a regulation of the Texas Board of Pharmacy which authorize
disciplinary action against the holder of a pharmacy license if the
Board finds that the holder has ``failed to engage in or ceased to
engage in the business described in the application for a license.''
Tex. Occ. Code Sec. 565.002(7); see also 22 Tex. Admin. Code Sec.
291.11(a)(1) (`` `Failure to engage in the business described in the
application for a license' means the holder of a pharmacy license
has not commenced operating the pharmacy within six months of the
date of issuance of the license.'').
However, Respondent does not explain why it could not have
opened for business and dispensed non-controlled drugs while it
challenged the denial of its application.
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Moreover, were I to adopt the Government's position, so long as the
Respondent does not hold the requisite state authority and is not
entitled to be registered, my decision would be an advisory opinion.\3\
While an administrative agency is not subject to the case or
controversy requirements of Article III, relevant authority suggests
that in the event Respondent sought judicial review of the decision,
the federal courts would lack jurisdiction to review that part of the
decision. It is settled, however, that where the federal courts lack
the power to review an agency decision because of intervening mootness,
the court vacates the agency's order. See A.L. Mechling Barge Lines,
Inc. v. United States, 368 U.S. 324, 329 (1961) (vacating
administrative orders which had become unreviewable in federal court);
see also American Family Life Assurance Co. v. FCC, 129 F.3d 625, 630
(D.C. Cir. 1997) (``Since Mechling, we have, as a matter of course,
vacated agency orders in cases that have become moot by the time of
judicial review.''). See also Samuel H. Albert, 74 FR 54851, 54852
(2009). Thus, it is unclear how ruling on the issue would preserve the
Agency's resources.
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\3\ This is not a case where an applicant, that lacks state
authority, has also previously engaged in actionable misconduct
under the public interest factors. Under those circumstances,
denying an application on both grounds does not present an issue of
either mootness or ripeness as it relies on acts that have been
committed and not speculation as to a future course of conduct.
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Whether this is deemed to be an issue of mootness, because
Respondent once held the requisite state license but chose to surrender
it, or ripeness, because Respondent has not obtained a new state
license (which is a prerequisite to registration, see 21 U.S.C.
802(21), 823(f)), the same result would likely obtain on judicial
review. Under these circumstances, the issue raised by Respondent's
proposed business model is not suitable for adjudication in this
proceeding.
I therefore adopt the ALJ's Recommended Decision \4\ and will deny
Respondent's application.
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\4\ I note, however, that the Order to Show Cause was issued by
the Deputy Assistant Administrator, Office of Diversion Control.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28
CFR 0.100(b), I order that the application of The Main Pharmacy, for a
DEA Certificate of Registration as a Retail Pharmacy, be, and it hereby
is, denied. This Order is effective immediately.
Dated: May 1, 2015.
Michele M. Leonhart,
Administrator.
Paul E. Soeffing, Esq., for the Government.
Nemuel Pettie, Esq., for the Respondent.
ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND
RECOMMENDED RULING, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
OF THE ADMINISTRATIVE LAW JUDGE
Nature of the Case and Procedural History
Christopher B. McNeil, Administrative Law Judge. On August 18,
2013, The Main Pharmacy, the respondent in this case, submitted an
application to the Drug Enforcement Administration (DEA) seeking a
new DEA retail pharmacy registration that would permit the
dispensing of Schedules II through V controlled substances.\1\
Acting ``by and on behalf of the Main Pharmacy,'' \2\ ``Attorney/
Applicant'' \3\ Nemuel E. Pettie, Esq., sought this registration for
use at 1226 S. Main Street, Fort Worth, Texas 76109.\4\ The pending
DEA application number for this application is W13068660A.\5\
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\1\ Order to Show Cause dated Aug. 18, 2014 at 1.
\2\ Respondent's Request for Hearing dated Sept. 9, 2014 at 1.
\3\ Id.
\4\ Id. at 4.
\5\ Order to Show Cause at 1.
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On August 18, 2014, the Deputy Administrator of the Drug
Enforcement Administration, Office of Diversion Control, filed an
Order to Show Cause proposing to deny the application pursuant to 21
U.S.C. 824(a)(1), (3) and (4) and 21 U.S.C. 823(f).\6\ As grounds
for revocation, the Government alleges that Respondent materially
falsified its DEA application, does not have the authority to handle
controlled substances in the State of Texas, and that Respondent's
registration would be inconsistent with the public interest.\7\
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\6\ Id.
\7\ Id.
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On September 9, 2014, Respondent, through its Applicant, Nemuel
E. Pettie, Esq., filed a timely request for hearing.\8\ Respondent
does not dispute that The Main Pharmacy does not possess a pharmacy
license issued by the Texas State Board of Pharmacy.\9\ Instead,
Respondent asserts that the issue is not moot as Respondent plans to
re-apply for another Pharmacy License.\10\ The required professional
license that had permitted Main Pharmacy to provide retail pharmacy
services in Texas was terminated on approximately July 28, 2013
after The Main Pharmacy notified the Texas State Board of Pharmacy
that The Main Pharmacy was closed.\11\
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\8\ Respondent's Request for Hearing dated Sept. 9, 2014 at 1,
received by DEA Sept. 10, 2014.
\9\ Respondent's Request for Hearing at 2.
\10\ Id.
\11\ Order to Show Cause at 2.
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I received the Government's Motion for Summary Disposition on
September 10, 2014, with proof of service upon Respondent,
accompanied by supporting documentation. In my Order of September
10, 2014, I directed the Government to provide evidence to support
the allegation that Respondent lacks state authority to handle
controlled substances. The factual premise relied upon by the
Government in support of its motion is that Respondent does not have
a pharmacy license issued by the Texas State Board of Pharmacy, the
state in which Respondent seeks to be registered.\12\ Additionally,
in the same Order, I provided Respondent the opportunity to respond
to the Government's Motion for Summary Disposition.\13\ That
response was due by September 24, 2014.\14\ On September 22, 2014, I
received Respondent's timely response.\15\ The Government exercised
its right to reply to the response and submitted a reply on
September 25, 2014.\16\ Drawing from the motion and briefs
submitted, I find as follows:
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\12\ Government's Motion for Summary Disposition dated Sept. 10,
2014 at 1-2.
\13\ Order Authorizing Briefs Regarding Summary Disposition
dated Sept. 10, 2014 at 1.
\14\ Id.
\15\ Respondent's Answer to Movant's Motion for Summary
Disposition dated Sept. 22, 2014 at 1.
\16\ Government's Reply to Respondent's Answer to Government's
Motion for Summary Disposition dated Sept. 25, 2014 at 1.
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Issue
The substantial issue raised by the Government rests on an
undisputed fact. The Government asserts that Respondent's
application must be summarily denied because Respondent does not
have a pharmacy license issued by the state in which it intends to
operate.\17\ Under DEA precedent, an application for a retail-
pharmacy DEA Certificate of Registration must be summarily denied if
the applicant is not authorized to handle controlled substances in
the state in which it seeks DEA registration.\18\ Unless from the
pleadings now
[[Page 29024]]
before me there is a material issue regarding Respondent's authority
to handle controlled substances in Texas, the application must be
denied summarily, without a hearing.
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\17\ Government's Motion for Summary Disposition at 6-8.
\18\ See 21 U.S.C. 801(21), 823(f), 824(a)(3); see also House of
Medicine, 79 FR 4959, 4961 (DEA 2014); Deanwood Pharmacy, 68 FR
41662-01 (DEA July 14, 2003); Wayne D. Longmore, M.D., 77 FR 67669-
02 (DEA November 13, 2012); Alan H. Olefsky, M.D., 72 FR 42127-01
(DEA August 1, 2007); Layfe Robert Anthony, M.D., 67 FR 15811 (DEA
May 20, 2002); George Thomas, PA-C, 64 FR 15811-02 (DEA April 1,
1999); Shahid Musud Siddiqui, M.D., 61 FR 14818-02 (DEA April 4,
1996); Michael D. Lawton, M.D., 59 FR 17792-01 (DEA April 14, 1994);
Abraham A. Chaplan, M.D., 57 FR 55280-03 (DEA November 24, 1992).
See also Bio Diagnosis Int'l, 78 FR 39327-03, 39331 (DEA July 1,
2013) (distinguishing distributor applicants from other
``practitioners'' in the context of summary disposition analysis).
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Respondent's Contentions
In Respondent's Answer to Movant's Motion for Summary
Disposition, Respondent never disputed the Government's contention
that The Main Pharmacy was not currently licensed by the State of
Texas to operate a pharmacy.\19\ Instead, Respondent asserted that
the Government is barred by the equitable doctrine of ``clean
hands'' from moving for summary disposition.\20\ Respondent,
utilizing the diction of Professor Ori Herstein of Cornell
University, defines unclean hands as ``[a]ny willful conduct that is
iniquitous, unfair, dishonest, fraudulent, unconscionable, or
performed in bad faith.'' \21\
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\19\ Respondent's Answer to Movant's Motion for Summary
Disposition at 2.
\20\ Id.
\21\ Id. See Herstein, Ori J. ``A Normative Theory of the Clean
Hands Defense.'' (2001) Cornell Law Faculty Publications. Paper 210.
http://scholarship.law.cornell.edu/facpub210, p.3.
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Respondent stated that the Texas State Pharmacy Board requires
that a pharmacy be open and in operation within six months of the
issuance of its license.\22\ Respondent alleged that the Drug
Enforcement Administration's failure to approve The Main Pharmacy's
DEA registration in a ``reasonable time'' forced Respondent to close
The Main Pharmacy to avoid disciplinary proceedings by the Texas
State Pharmacy Board.\23\ As a result of the DEA's failure to act,
Respondent seeks to prohibit summary disposition by the doctrine of
unclean hands.\24\
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\22\ Respondent's Answer to Movant's Motion for Summary
Disposition at 2. See Tex. Admin. Code 291.9 (2012).
\23\ Respondent's Answer to Movant's Motion for Summary
Disposition at 2.
\24\ Id.
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Respondent alternatively argues that the case should not be
dismissed under the doctrine of Southern Pacific Terminal Co. v.
I.C.C., 219 U.S. 498 (1911). Respondent cites Southern Pacific
Terminal Co. for the proposition that a case is not moot when it
presents an issue ``capable of repetition, yet evading review.''
\25\
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\25\ Respondent's Answer to Movant's Motion for Summary
Disposition at 3.
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Scope of Authority
On August 18, 2014, the Deputy Administrator of the Drug
Enforcement Administration, Office of Diversion Control, filed an
Order to Show Cause proposing to deny the application pursuant to 21
U.S.C. 824(a)(1), (3) and (4) and 21 U.S.C. 823(f).\26\
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\26\ Order to Show Cause at 1.
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The case before me is presented under a grant of authority to
recommend that the Administrator either grant or deny Respondent's
application for a DEA retail-pharmacy license. Pursuant to 21 U.S.C.
823(f), the DEA may grant such an application only to a pharmacy
``practitioner.'' Under 21 U.S.C. 802(21), a ``practitioner'' must
be ``licensed, registered, or otherwise permitted, by the United
States or the jurisdiction in which he practices or does research,
to distribute [or] dispense . . . controlled substance[s.]'' Given
this statutory language, the DEA Administrator does not have the
authority under the Controlled Substances Act to grant a
registration to a practitioner if that practitioner is not
authorized to dispense controlled substances.\27\
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\27\ See Abraham A. Chaplan, M.D., 57 FR 55280-03, 55280 (DEA
November 24, 1992), and cases cited therein. In Chaplan, DEA
Administrator Robert C. Bonner adopts the ALJ's opinion that ``the
DEA lacks statutory power to register a practitioner unless the
practitioner holds state authority to handle controlled
substances.'' Id.
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Respondent asserted that the Government is barred by the
equitable doctrine of ``clean hands'' from moving for summary
disposition.\28\ However, DEA Administrative Law Judges lack the
authority to exercise equitable powers when making their decisions.
The one and only purpose in this type of proceeding for a DEA
Administrative Law Judge is to determine whether under 21 U.S.C.
823(f), a practitioner's application to dispense controlled
medications is consistent with the public interest.\29\ Agency
precedent supports this premise. In James Dell Potter, M.D.,
respondent attempted to invoke the principle of equitable estoppel
to argue that the DEA could not revoke his registration, as the DEA
previously granted him a registration.\30\ In the opinion, DEA
Administrator Francis M. Mullen, Jr. stated that:
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\28\ Respondent's Answer to Movant's Motion for Summary
Disposition at 2.
\29\ 21 U.S.C. 823(f).
\30\ James Dell Potter, M.D., 49 FR 9970-01 (DEA Mar. 16, 1984).
[The] DEA is charged by statute to protect the public. [P]rinciples
of equitable estoppel cannot be applied to deprive the public of the
protection of a statute because of the mistaken action, or lack of
action, on the part of public officials. . . . Generally, a
governmental unit is not estopped when functioning in a governmental
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capacity [citation omitted].\31\
\31\ Id. at 9971.
Therefore, the protection of the public is preeminent, and the
Agency is limited in its authority to direct relief under equitable
principles.
In a case that has strong parallels to the case at hand, Saihb
S. Halil, M.D., a doctor faced with an order to show cause made the
argument that the Government is estopped from taking adverse action
based upon its failure to process his application in a timely
manner.\32\ Deputy Administrator Donnie R. Marshall agreed with DEA
ALJ Gail Randall in finding the chronology of the case ``troubling''
as it took 13 months for the Government to respond after the initial
reply to the OTSC.\33\ However, Judge Randall cited Potter for the
proposition that estoppel does not deprive the public of the
protection of a statute because of lack of action.\34\ Deputy
Administrator Marshall further agreed with Judge Randall's statement
that ``[a]lthough worthy of consideration and concern, such lack of
timeliness does not overcome the public interest in this case.
Equitable estoppel does not operate under these circumstances to
preclude the DEA from protecting the public health and safety.''
\35\
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\32\ Saihb S. Halil, M.D., 64 FR 33319-01 (DEA June 22, 1999).
\33\ Id. at 33319-33320.
\34\ Id. at 33320.
\35\ Id.
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Respondent's alternative argument, that this is a case ``capable
of repetition, yet evading review,'' does not compel a contrary
outcome.\36\ Respondent faults the Government for the delay that led
to Respondent voluntarily surrendering its state pharmacy
license.\37\ However, as noted by the Government in the Government's
Reply to Respondent's Answer to Government's Motion for Summary
Disposition, Respondent could have ``stocked and dispensed non-
controlled substances while its DEA application was pending.'' \38\
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\36\ Respondent's Answer to Movant's Motion for Summary
Disposition at 3.
\37\ Id. at 2.
\38\ Government's Motion for Summary Disposition dated September
25 at 2.
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The Government does not directly address the premise that The
Main Pharmacy is intended to ``cater to accident victims only.''
\39\ Presumably, a pharmacy catering exclusively to accident victims
would likely face substantial limitations if it was unable to
deliver critical medication to its customers. Nonetheless, The Main
Pharmacy chose this business model, doing so while being subject to
the regulatory environment established under the Controlled
Substances Act. Despite these limitations, there is no factual basis
for finding the pharmacy could not have conducted a legally
``sufficient'' \40\ number of transactions while it waited for its
DEA Registration.
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\39\ Respondent's Request for Hearing at 2.
\40\ Respondent's Answer to Movant's Motion for Summary
Disposition, Exhibit 1.
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Facts
Given this body of law, the material fact here, indeed the sole
fact of consequence, is whether Respondent is authorized by the
State of Texas to dispense controlled substances. Where, as here, no
material fact is in dispute, there is no need for an evidentiary
hearing and summary disposition is appropriate.\41\ The sole
question of fact before me can be addressed, and has been addressed,
by the pleadings submitted to me by the parties. Our record includes
no dispute regarding the Government's contention that the authority
of The Main Pharmacy to dispense prescription medication in Texas
was voluntarily withdrawn on approximately July 28, 2014.\42\
[[Page 29025]]
The reasons for withdrawal are not material, given the statutory
language set forth above.
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\41\ See Michael G. Dolin, M.D., 65 FR 5661 (DEA February 4,
2000); see also Philip E. Kirk, M.D., 48 FR 32887 (DEA July 19,
1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
\42\ Government's Motion for Summary Disposition at 6.
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Analysis, Findings of Fact and Conclusions of Law
In determining whether to grant the Government's Motion for
Summary Disposition, I am required to apply the principle of law
that holds such a motion may be granted in an administrative
proceeding if no material question of fact exists:
It is settled law that when no fact question is involved or the
facts are agreed, a plenary, adversary administrative proceeding
involving evidence, cross-examination of witnesses, etc., is not
obligatory--even though a pertinent statute prescribes a hearing. In
such situations, the rationale is that Congress does not intend
administrative agencies to perform meaningless tasks (citations
omitted).\43\
\43\ NLRB v. International Assoc. of Bridge, 549 F.2d 634, 638
(9th Cir. 1977) (quoting United States v. Consolidated Mines &
Smelting Co., Ltd., 455 F.2d 432, 453 (9th Cir. 1971)).
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In this context, I am further guided by prior decisions before
the DEA involving certificate holders who lacked licenses to
distribute or dispense controlled substances. On the issue of
whether an evidentiary hearing is required, ``it is well settled
that when there is no question of material fact involved, there is
no need for a plenary, administrative hearing.'' \44\ Under this
guidance, the Government's motion must be sustained unless a
material fact question has been presented.
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\44\ See Michael G. Dolin, M.D., 65 FR 5661 (DEA February 4,
2000); Jesus R. Juarez, M.D., 62 FR 14945 (DEA March 28, 1997); see
also Philip E. Kirk, M.D., 48 FR 32887 (DEA July 19, 1983), aff'd
sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
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The sole determinative fact now before me is that Respondent
lacks a Texas pharmacy license. In order for a pharmacy to receive a
DEA registration authorizing it to dispense controlled substances
under 21 U.S.C. 823(f), it must meet the definition of
``practitioner'' as found in the Controlled Substances Act.\45\ Such
an entity must be ``licensed, registered, or otherwise permitted by
. . . the jurisdiction in which he practices . . . to distribute,
dispense, [or] administer . . . a controlled substance in the course
of professional practice.'' \46\ Delegating to the Attorney General
the authority to determine who may or may not be registered to
perform these duties, Congress permitted such registration only to
``practitioners'' as defined by the Controlled Substances Act.\47\
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\45\ 21 U.S.C. 802(21).
\46\ Id.
\47\ 21 U.S.C. 823(f).
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As cited by the Government in its Motion for Summary
Disposition, there is substantial authority both through agency
precedent and through decisions of courts in review of that
precedent, holding that an application for a retail pharmacy DEA
registration is dependent upon the applicant having a state license
to dispense controlled substances.\48\ Under the doctrine before me,
the Government meets its burden of establishing grounds to deny an
application for registration upon sufficient proof establishing the
applicant does not possess a state pharmacy license. That proof is
in the record before me, and it warrants the summary denial of
Respondent's application for a DEA Certificate of Registration.
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\48\ Government's Motion for Summary Disposition at 7 and cases
cited therein.
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I am mindful of the arguments raised by Respondent in its Answer
to Movant's Motion, including the fact that Respondent's lack of a
pharmacy license is based on Respondent's voluntary withdrawal of
its pharmacy license to avoid state sanctions as a result of delays
by the DEA.\49\ These difficulties do not, however, change the fact
that without a state pharmacy license, Respondent is not a
``practitioner'' and cannot be granted a Certificate of
Registration. Equitable principles, even were they available in this
forum, fail to lead to a different outcome. As made clear in Potter
and Halil, the lack of timeliness in processing an application for a
DEA Certificate of Registration does not overcome the public
interest.
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\49\ Respondent's Answer to Movant's Motion for Summary
Disposition at 2.
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Some care should be taken to assure the parties that the actions
taken in this administrative proceeding conform to constitutional
requirements. I have examined the parties' contentions with an eye
towards ensuring all tenets of due process have been adhered to.
There is, however, no authority for me to evaluate the facts that
underlie Respondent's contentions. In the proceedings now before me,
the only material question was answered by Respondent in its Request
for Hearing. Further, while the Order to Show Cause sets forth a
non-exhaustive summary of facts and law relevant to a determination
that granting this application would be inconsistent with the public
interest under 21 U.S.C. 823(f), the conclusion, order and
recommendation that follow are based solely on a finding that
Respondent is not a ``practitioner'' as that term is defined by 21
U.S.C. 802(21), and I make no finding regarding whether granting
this application would or would not be inconsistent with the public
interest.
Order Granting the Government's Motion for Summary Disposition and
Recommendation
I find there is no genuine dispute regarding whether Respondent
is a ``practitioner'' as that term is defined by 21 U.S.C. 802(21),
and that based on the record the Government has established that
Respondent is not a practitioner and is not authorized to dispense
controlled substances in the state in which it seeks to operate
under a DEA Certificate of Registration. I find no other material
facts at issue, for the reasons set forth in the Government's Motion
for Summary Disposition. Accordingly, I GRANT the Government's
Motion for Summary Disposition.
Upon this finding, I ORDER that this case be forwarded to the
Administrator for final disposition and I RECOMMEND the
Administrator DENY Respondent's application for a DEA Certificate of
Registration.
Date: October 7, 2014.
Christopher B. Mcneil,
Administrative Law Judge.
[FR Doc. 2015-12128 Filed 5-19-15; 8:45 am]
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