Sun & Lake Pharmacy, Inc. v. Drug Enforcement Administration

[DO NOT PUBLISH]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.

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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.

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