[Federal Register: December 11, 2006 (Volume 71, Number 237)]
[Notices]
[Page 71555-71557]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de06-60]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Orlando Wholesale, L.L.C. Denial of Application
On November 18, 2005, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Orlando Wholesale, L.L.C., of Orlando, Florida
(Respondent). The Show Cause Order proposed to deny Respondent's
pending application for a DEA Certificate of Registration as a
distributor of List I chemicals on the ground that its registration
would be inconsistent with the public interest. See 21 U.S.C. 823(h)
and 824(a).
The Show Cause Order specifically alleged that Respondent was
proposing to distribute List I chemical products containing
pseudoephedrine, a precursor chemical which is used to manufacture
methamphetamine, to convenience stores in the Orlando area and that
methamphetamine manufacturers often obtain the chemical from
convenience stores. See Show Cause Order at 1-2. The Show Cause Order
alleged that during DEA's pre-
[[Page 71556]]
registration investigation, investigators had determined that one of
Respondent's co-owners had previously been involved in a firm that
distributed List I chemicals without obtaining a proper registration.
See id. The Show Cause Order further alleged that DEA Diversion
Investigators (DIs) had requested that Respondent's owner provide them
with information regarding his immigration status, his business
licenses, and the nature of the co-owner's involvement in Respondent.
See id. The Show Cause Order alleged that Respondent had failed to
provide any of the requested information. See id.
On November 25, 2005, the Government attempted to serve the Show
Cause Order on Respondent by certified mail, return receipt requested,
at the address of its proposed registered location, 9500 Satellite
Blvd., 230, Orlando, FL. The mailing was returned with a
notation that Respondent's forwarding address was 1167 Doss Ave.,
Orlando, FL. Thereafter, on December 30, 2005, two DEA DIs went to the
latter address and personally served Respondent's owner, Mr. Shakil
Isani, with the Show Cause Order. Since that time, neither Respondent,
nor anyone purporting to represent it, has responded. Because (1) more
than thirty days have passed since Respondent's receipt of the Show
Cause Order, and (2) no request for a hearing has been received, I
conclude that Respondent has waived its right to a hearing. See 21 CFR
1309.53(c). I therefore enter this final order without a hearing based
on relevant material found in the investigative file and make the
following findings.
Findings
Pseudoephedrine is a List I chemical that, while having a
therapeutic use, is easily extracted from lawful products and used in
the illicit manufacture of methamphetamine, a schedule II controlled
substance. See 21 U.S.C. 802(34); 21 CFR 1308.12(d). As noted in
numerous DEA orders, ``methamphetamine is an extremely potent central
nervous system stimulant.'' Sujak Distributors, 71 FR 50102, 50103
(2006); A-1 Distribution Wholesale, 70 FR 28573 (2005). Methamphetamine
is highly addictive; its abuse has destroyed lives and families and
ravaged communities. Moreover, because of the toxic nature of the
chemicals used to make the drug, its manufacture creates serious
environmental harms. David M. Starr, 71 FR 39367 (2006).
Respondent is a Florida corporation which has been in business
since October 2003. On March 22, 2004, Respondent applied for a
registration as a distributor of List I chemicals and gave as the
address of its proposed registered location: 9500 Satellite Blvd.,
230, Orlando, FL. On June 15, 2004, two DEA DIs conducted a
pre-registration investigation at this address. At some point
thereafter, Respondent changed its address to 1167 Doss Avenue,
Orlando. Respondent did not, however, notify DEA.
During the pre-registration investigation, the DIs met with
Respondent's owner, Mr. Shakil Isani. Mr. Isani told the DIs that
Respondent is a wholesale distributor of some 700 different items to
approximately 109 convenience stores in the greater Orlando area. Mr.
Isani further advised the DIs that he is the owner and only officer of
Respondent. When the DIs asked Mr. Isani for a copy of Respondent's
Articles of Incorporation, Mr. Isani stated that three other
individuals were listed as being managing members of the firm but that
he planned on removing them. One of these individuals had previously
come to the attention of DEA because he was operating a business (on
behalf of his brother who had been convicted of several federal
criminal offenses and was then serving a sentence of incarceration)
which distributed List I chemicals without a valid DEA registration.
The DIs asked Mr. Isani to provide them with documentation
regarding the removal of the other members of his firm. The DIs also
asked Mr. Isani for personal data such as date, place of birth, and
social security numbers for the other members. Mr. Isani agreed to
provide the information. Mr. Isani has not, however, provided the
information.
The DIs also asked Mr. Isani about his immigration status. Mr.
Isani told the DIs that he was in the country under a work permit but
that he did not have the documentation on him. The DIs then asked Mr.
Isani to provide them with documentation of his status. Subsequently,
the DIs conducted a check of Mr. Isani's status and determined that he
was not legally in the United States and appeared to be subject to
removal proceedings. The check, however, also showed that Mr. Isani had
applied for an adjustment of status to become a resident alien.
According to the investigative file, Mr. Isani has not provided the DIs
with updated information on his status.
During the on-site inspection, the DIs also asked Mr. Isani to
provide copies of his business licenses. Again, Mr.Isani has not
provided any of the information that the DIs requested.
Discussion
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals
is entitled to be registered unless the registration would be
``inconsistent with the public interest.'' In making this
determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against
diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State,
and local law;
(3) Any prior conviction record of the applicant under Federal
or State laws relating to controlled substances or to chemicals
controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and
distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with
the public health and safety.
Id.
``These factors are considered in the disjunctive.'' Joy's Ideas,
70 FR 33195, 33197 (2005). I may rely on any one or a combination of
factors, and may give each factor the weight I deem appropriate in
determining whether an application for registration should be denied.
See, e.g., Starr, 71 FR at 39367; Energy Outlet, 64 FR 14269 (1999).
Moreover, I am ``not required to make findings as to all of the
factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); Morall v.
DEA 412 F.3d 165, 173-74 (D.C. Cir. 2005).
Here, I conclude that an analysis of each factor is unnecessary and
that Respondent's application should be denied for two reasons. First,
Respondent's owner has failed to submit necessary information regarding
three issues: (1) His business licenses, (2) his immigration status,
and (3) the role of persons listed as managing members of the firm
including one individual who has previously come to the attention of
DEA. Second, Respondent changed its address--without notifying DEA--and
after the on-site inspection was conducted.
DEA regulations expressly provide that ``[t]he Administrator may
require an applicant to submit such documents * * * relevant to the
application as [she] deems necessary to determine whether the
application should be granted.'' 21 CFR 1309.35. The information sought
by the DIs regarding Respondent's business licenses and its owner's
immigration status was reasonably necessary to evaluate Respondent's
compliance with applicable laws. See 21 U.S.C. 823(h)(2). In light of
Respondent's failure to produce this information (as well as the
information contained in the
[[Page 71557]]
investigative file), I conclude that Respondent was not in compliance
with federal immigration laws and that Respondent does not possess the
required state and/or local business licenses. Moreover, the
information sought with respect to Respondent's managing members was
essential to evaluate whether the firm would maintain ``effective
controls against diversion.'' Id. Sec. 823(h)(1). Based on the
information contained in the investigative file that one of
Respondent's managing members had previously operated a business which
distributed List I chemicals without a valid registration and
Respondent's failure to provide any documentation showing that this
individual no longer has a management or ownership interest in it, I
conclude that Respondent does not maintain effective control against
diversion.
Respondent's change of address provides further reason to deny its
application. Under the Controlled Substances Act, a registration is
location specific. See 21 U.S.C. 822(e) (``A separate registration
shall be required at each principal place of business * * * where the
applicant * * * distributes * * * list I chemicals.''). Respondent
applied for a registration at 9500 Satellite Blvd., 230,
Orlando, Fl. It was at this location that the pre-registration
investigation was conducted and the adequacy of Respondent's security
controls was evaluated. See 21 CFR 1309.71(b). Respondent's change of
its location after DEA conducted the pre-registration inspection
renders moot the information obtained regarding its security measures
and its application for registration at its prior place of business.
Furthermore, Respondent has not submitted an application for its new
location. Because Respondent applied to distribute List I chemicals
from the Satellite Blvd. location and it is no longer in business at
that location, I conclude that granting its application for a
registration would be inconsistent with the public interest.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28
CFR 0.100(b) & 0.104, I hereby order that the application of Respondent
Orlando Wholesale L.L.C., for a DEA Certificate of Registration as a
distributor of List I chemicals be, and it hereby is, denied. This
order is effective January 10, 2007.
Dated: December 1, 2006.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E6-20981 Filed 12-8-06; 8:45 am]
BILLING CODE 4410-09-P