River Forest Pharmacy, Inc. v. Drug Enforcement Administration, No. 73-1899

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, PELL and SPRECHER; PER CURIAM
PartiesRIVER FOREST PHARMACY, INC., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Decision Date12 August 1974
Docket NumberNo. 73-1899

Page 1202

501 F.2d 1202
RIVER FOREST PHARMACY, INC., Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent.
No. 73-1899.
United States Court of Appeals, Seventh Circuit.
Argued April 15, 1974.
Decided Aug. 12, 1974.

Page 1203

Gerald M. Werksman, Chicago, Ill., for petitioner.

Allyn Myle Carnman, Chief Counsel Drug Enfc. Admin., Henry E. Petersen, Asst. Atty. Gen., Allan P. Mackinnon, Atty., U.S. Dept. of Justice, Washington, D.C., James R. Thompson, U.S. Atty., Chicago, Ill., for respondent.

Before CUMMINGS, PELL and SPRECHER, Circuit Judges.

PER CURIAM.

This petition for review questions the propriety of an order of the federal Drug Enforcement Administration which increased the sanction recommended by an administrative law judge (law judge) from a six-month suspension of petitioner pharmacy's Certificate of Registration to a two-year suspension. The order assertedly is 'arbitrary, capricious, (and) an abuse of discretion,' 5 U.S.C. 706(2)(A). 1

Page 1204

River Forest Pharmacy, Inc., is wholly owned by Norman Tankel, a pharmacist who operates the drugstore with the assistance of his family. In January 1973, Tankel pleaded guilty to four counts of distributing controlled substances in violation of 21 U.S.C. 841(a), a felony. The charges arose out of two sales of secobarbital and two sales of codeine cough syrup to a man who frequented the River Forest Pharmacy and ran errands for Tankel. Tankel received three years' probation.

In April 1973, on the basis of Tankel's guilty pleas, the Acting Administrator of the Bureau of Narcotics and Dangerous Drugs (the BNDD was a predecessor of the Drug Enforcement Administration) issued an order to show cause why the pharmacy's Certificate of Registration should not be revoked. Pending disposition of the matter, he ordered an immediate suspension of the Registration. 2

At a hearing before the law judge, a compliance investigator for the BNDD testified, as did Tankel. The investigator stated that he had conducted an audit after Tankel's arrest, the audit consisting of an inventory of the controlled substances in the pharmacy and an examination of the records kept by Tankel.

'Mr. Krause (the investigator) testified that he found many discrepancies and inadequate records; that the discrepancies included both overages and shortages of various drugs which are classified as controlled substances. In addition he found other violations of the Department's regulations . . .. Mr. Krause also testified that he has been an investigator for one year and during that time had conducted about 40 audits. In his experience the discrepancies . . . (were) greater than any he had encountered . . . He testified that the respondent cooperated and assisted him during the audit.' 38 Fed.Reg. 27417 (1973).

Tankel, age 46, whose father had been a pharmacist, has worked in drugstores all his life. He is present in the store every day of the week it is open except one, when another pharmacist is there. He realized that his records were inadequate but explained this as the result of the long hours he works, although he also admitted to being a poor record-keeper. He blamed some of the discrepancies on the fact that when prescriptions were telephoned to him, he neglected to follow up and secure the physicians' written prescription forms. He attributed this omission to forgetfulness and the pressure of business. His failure to keep proper records in the past was also due to ignorance and unfamiliarity with the regulations. Tankel had not made any extra profit on the sales which had resulted in the prosecution. He submitted four letters attesting to his good character.

On the basis of the testimony of these two witnesses and documentary evidence, the law judge made findings of fact and conclusions of law. He recommended that the pharmacy's Certificate of Registration be suspended for six

Page 1205

months. Such a measure, he suggested, would be sufficiently severe to serve both as a deterrent to others and as an extremely costly lesson to Tankel as to the seriousness of his actions and to remind him of his bookkeeping duties. The judge also noted that the probationary period imposed by the federal court in the section 841(a) prosecution would deter Tankel from repeating his mistakes.

The Acting Administrator accepted the findings of the administrative law judge but rejected his recommended sanction.

'In short, due to (1) the seriousness of the nature of Mr. Tankel's conviction for the unlawful distribution of controlled substances, (2) the Respondent's inability to comply with certain recordkeeping, report-making, order form, and prescription requirements of the Controlled Substances Act and implementing Administrative Regulations, and (3) the obvious misconstruction of the requirements of section 304...

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17 practice notes
  • Central Nat. Bank of Mattoon v. U.S. Dept. of Treasury, No. 89-3219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 16, 1990
    ...Co. v. Department of Agriculture, 810 F.2d 916, 922 (9th Cir.1987); River Forest Pharmacy, Inc. v. Drug Enforcement Administration, 501 F.2d 1202, 1206 (7th Cir.1974) (per curiam); Lorain Journal Co. v. FCC, 351 F.2d 824, 828 As for the supposed unfairness of casting the Comptroller in the ......
  • Young v. Brashears, No. 76-1749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 23, 1977
    ...should not be set aside unless it is found to be arbitrary and capricious. Cf. River Forest Pharmacy v. Drug Enforcement Administration, 501 F.2d 1202, 1206 (7th Cir. 1974). Moreover, inferences and conclusions drawn from the record by an administrative body possessing expertise should not ......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...on the Deputy Administrator and do not limit the exercise of that discretion. 5 U.S.C. 557(b); River Forest Pharmacy, Inc. v. DEA, 501 F.2d 1202, 1206 (7th Cir. 1974); General's Manual on the Administrative Procedure Act 8 (1947). Factors 1 and 3: The Recommendation of the Appropriate State......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...on the Deputy Administrator and do not limit the exercise of that discretion. 5 U.S.C. 557(b); River Forest Pharmacy, Inc. v. DEA, 501 F.2d 1202, 1206 (7th Cir. 1974); General's Manual on the Administrative Procedure Act 8 (1947). Factors 1 and 3: The Recommendation of the Appropriate State......
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10 cases
  • Central Nat. Bank of Mattoon v. U.S. Dept. of Treasury, No. 89-3219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 16, 1990
    ...Co. v. Department of Agriculture, 810 F.2d 916, 922 (9th Cir.1987); River Forest Pharmacy, Inc. v. Drug Enforcement Administration, 501 F.2d 1202, 1206 (7th Cir.1974) (per curiam); Lorain Journal Co. v. FCC, 351 F.2d 824, 828 As for the supposed unfairness of casting the Comptroller in the ......
  • Young v. Brashears, No. 76-1749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 23, 1977
    ...should not be set aside unless it is found to be arbitrary and capricious. Cf. River Forest Pharmacy v. Drug Enforcement Administration, 501 F.2d 1202, 1206 (7th Cir. 1974). Moreover, inferences and conclusions drawn from the record by an administrative body possessing expertise should not ......
  • Noell v. Bensinger, No. 77-2014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 20, 1978
    ...U.S. 411, 414, 78 S.Ct. 377, 380, 2 L.Ed.2d 370. See also River Forest Pharmacy, Inc. v. Drug Enforcement Administration, 7 Cir. 1974, 501 F.2d 1202, 1206; Sokoloff v. Saxbe, 2 Cir. 1974, 501 F.2d 571, We find no basis for interfering with the Administrator's decision to revoke the petition......
  • Fitzhugh v. Drug Enforcement Admin., No. 86-1012
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 24, 1987
    ...586 F.2d 554 (5th Cir.1978) ; Sokoloff v. Saxbe, 501 F.2d 571 (2d Cir.1974); River Forest Pharmacy, Inc. v. Drug Enforcement Admin., 501 F.2d 1202, 1206 (7th Cir.1974). These are the reasons that lead us to affirm the order of the administrator. He made "an allowable judgment in [his] choic......
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