[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12458 FEBRUARY 14, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. DEA-O : 10-18
SUN & LAKE PHARMACY, INC.,
d/b/a The Medicine Shoppe,
Petitioner,
versus
DRUG ENFORCEMENT ADMINISTRATION,
Respondent.
________________________
Petition for Review of a Decision of the
Drug Enforcement Agency
________________________
(February 14, 2012)
Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Before the court is a petition for the review of a decision of the
Administrator of the Drug Enforcement Administration (“DEA”)1 revoking the
registration of Sun & Lake Pharmacy, Inc. (“Sun & Lake”) to dispense controlled
substances for engaging in conduct inconsistent with the public interest, 21 U.S.C.
§ 824(a). Sun & Lake Pharmacy, Inc., d/b/a/ The Medicine Shoppe; Revocation of
Registration, 76 Fed. Reg. 24,523 (Drug Enforcement Administration May 2,
2011), 2011 WL 1627777 (F.R.). The case was tried before an administrative law
judge on the DEA’s order to show cause (“OSC”) why Sun & Lake’s registration
to dispense controlled substances should not be revoked on the ground that in
2006 and 2007 Sun & Lake engaged in an Internet drug distribution scheme.
The Government proved the allegations of the OSC though testimony and
documentary evidence. Sun & Lake’s case consisted of cross-examining the
Government’s witnesses; Sun & Lake introduced no evidence. At the end of the
day, the ALJ found that Sun & Lake’s principals, including Patricia Fosu who
refused to testify,2 “had ample reason to know that the prescriptions [Sun & Lake]
filled . . . were issued outside the course of professional practice and lacked a
legitimate medical purpose for multiple reasons.” Id. at 24,531. The ALJ also
found that Sun & Lake was engaged in the unauthorized practice of pharmacy in
1
We have jurisdiction to entertain this petition under 21 U.S.C. § 877.
2
Fosu was Sun & Lake’s manager. She invoked her Fifth Amendment right not to
testify when the Government called her as a witness.
2
several states in addition to Florida by filling prescriptions and shipping controlled
substances to residents of those states without holding the appropriate pharmacy
license or permit. Id. at 24,532. The Administrator adopted the ALJ’s findings in
large part and recommendation that Sun & Lake’ registration be revoked, and so
ordered. Id. at 24,533.
The questions here are: whether substantial evidence supports the
Administrator’s findings that Sun & Lake unlawfully dispensed controlled
substances and whether the decision to revoke was arbitrary and capricious. After
examining the relevant part of the record and the parties’ briefs, we conclude that
the answers are clear. The Administrator’s findings are supported by substantial
evidence, and the Administrator’s decision is not arbitrary and capricious.
AFFIRMED.
3