Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Thomas J. DePietro, R.Ph.,
Petitioner,
- v. -
The Inspector General.
DATE: February 14, 1991
Docket No. C-282
DECISION
By letter dated June 13, 1990, the Inspector General
(I.G.) notified Thomas J. DePietro (Petitioner) that he
would be excluded from participation in the Medicare
program and any federally-assisted State health care
program (such as Medicaid), as defined in section 1128(h)
of the Social Security Act (Act), for a period of five
years. 1/ The I.G. further advised Petitioner that
his exclusion was due to his conviction in the Lackawanna
County Court of Common Pleas, Scranton, Pennsylvania, of
a criminal offense related to the unlawful manufacture,
distribution, prescription, or dispensing of a controlled
substance. Petitioner was informed that exclusions from
Medicare and Medicaid programs after such a conviction
are authorized by section 1128(b)(3) of the Act.
Petitioner timely requested a hearing before an
Administrative Law Judge (ALJ) to contest his exclusion.
I held a prehearing conference in this case on September
26, 1990. During the conference, the parties agreed to
have this case decided on the basis of submitted
exhibits, in lieu of an in-person hearing. Based on the
evidence in the record and the applicable law, I conclude
that an exclusion of five years is reasonable and
appropriate.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7
(West U.S.C.A., 1989 Supp.). Section 1128(a) of the Act
provides for the exclusion from Medicare and Medicaid of
those individuals or entities "convicted" of a criminal
offense "related to the delivery of an item or service"
under the Medicare or Medicaid programs. Section
1128(c)(3)(B) provides for a five-year minimum period of
exclusion for those excluded under section 1128(a)(1).
Section 1128(b) of the Act provides for permissive
exclusions after convictions relating to fraud, license
revocations, failure to supply payment information, or,
as in this case, conviction for a criminal offense
related to the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance
under section 1128(b)(3).
II. The Federal Regulations.
The governing federal regulations are codified in
42 C.F.R. Parts 498, 1001, and 1002 (1989). Part 498
governs the procedural aspects of this exclusion case;
parts 1001 and 1002 govern the substantive aspects.
ADMISSIONS
Petitioner has admitted that he pled guilty to the
offense for which he was excluded, and that his
conviction falls within the meaning of section
1128(b)(3). P. Br. 5, 6.
ISSUE
The issue in this case is whether the length of the
exclusion imposed and directed against Petitioner is
reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/
1. At all times relevant to this case, Petitioner was a
licensed pharmacist in the Commonwealth of Pennsylvania
and the owner and operator of DePietro's Pharmacy,
Peckville, Pennsylvania. I.G. Ex. 1, 4, 7. 3/
2. On June 6, 1988, Petitioner was charged with 12
counts of violating Pennsylvania's Controlled Substance,
Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. Ann.
section 780-113a (Purdon 1990),(Controlled Substance
Act). I.G. Ex. 1.
3. On June 29, 1989, Petitioner pleaded guilty to three
of the 12 counts with which he was charged: one count of
unlawful, knowing and intentional delivery of controlled
substances; one count of sale and dispensing of
controlled substances without an oral or written
prescription; and one count of sale of controlled
substances by a pharmacy without a label. I.G. Ex. 2, 3.
4. The three counts to which Petitioner pleaded guilty
involved the January 29, 1988 sale by Petitioner of 20
Valium Tablets and 20 Tylenol Number 3 with Codeine
Pills, for $63, to Detective Catherine Marrone, a member
of the Lackawanna County District Attorney's Office.
I.G. Ex. 1, 2, 3.
5. At the time of his arrest, Petitioner was addicted
to the prescription drugs Valium and Xanax. I.G. Ex.
10/1 - 11.
6. The sentencing court judge accepted Petitioner's
application for probation without verdict under Section
17 of the Controlled Substance Act. Proof of drug use is
a prerequisite for sentencing under this section. Upon
fulfillment of Petitioner's terms and conditions of
probation, the court will discharge Petitioner and
dismiss the proceedings against him. I.G. Ex. 10/3, 19;
I.G. Br. 3; P. Br. 1, 2.
7. Petitioner was sentenced to three years probation,
fined $1,000.00, ordered to pay $100.00 in restitution to
the Attorney General's Office, and assessed the costs of
prosecution. I.G. Ex. 2, 10/19.
8. If Petitioner had not been sentenced under Section
17, Petitioner would have been liable on all three counts
for a maximum of 5 years imprisonment and fines of
$20,000.00. I.G. Ex. 3; I.G. Br. 11.
9. Petitioner's license to practice pharmacy in
Pennsylvania was temporarily suspended on September 14,
1988, and was automatically suspended for ten years on
May 12, 1989. I.G. Ex. 4, 5, 6, 7; P. Br. 9; I.G. Br. 4.
10. Petitioner's license to prescribe controlled
substances was revoked. I.G. Ex. 10/6.
11. On March 29, 1989, Petitioner went to a physician in
order to overcome an addiction to the controlled
substances Valium and Xanax. Petitioner also saw this
physician on April 5, 1989 and April 26, 1989.
Petitioner was placed on the drug Buspar for the purpose
of detoxification. Petitioner's physician could not say
on the date of Petitioner's sentencing that Petitioner
was cured. I.G. Ex. 10/ 5 - 6, 9 - 11.
12. Petitioner was "convicted" of a criminal offense
relating to the unlawful manufacture, distribution,
prescription or dispensing of a controlled substance,
within the meaning of section 1128(b)(3) of the Act.
FFCL 2, 3, 4.
13. Pursuant to section 1128(b)(3) of the Act, the
Secretary of the Department of Health and Human Services
(Secretary) has authority to impose and direct an
exclusion against Petitioner from participating in
Medicare and Medicaid.
14. The Secretary delegated to the I.G. the duty to
impose and direct exclusions pursuant to section 1128 of
the Act. 48 Fed. Reg. 21662 (May 13, 1983).
15. On June 13, 1990, the I.G. advised Petitioner that
he was excluding him from participating in the Medicare
and Medicaid programs for five years, pursuant to section
1128(b)(3) of the Act.
16. A purpose of section 1128(b)(3) of the Act is to
protect beneficiaries and program funds by excluding
individuals or entities who by conduct have demonstrated
a risk that they may engage in fraud, substandard
services, abuse, or unsafe practices in connection with
controlled substances until such time as those excluded
can demonstrate that such risk no longer exists. S. Rep.
No. 109, 100th Cong. 1st Sess. 2, reprinted in 1987 U.S.
Code Cong. & Admin. News 682.
17. There is no length or period of exclusion mandated
by statute for section 1128(b)(3) exclusions. The
exclusion provisions of section 1128 of the Act do not
establish a minimum or maximum period of exclusion to be
imposed and directed in cases where the I.G. has
discretion to impose and direct exclusions. Act, section
1128(b)(1)-(14).
18. There are substantial reasons for a lengthy
exclusion: 1) Petitioner abused his position of trust as
a pharmacist authorized to sell and dispense controlled
substances when he unlawfully, intentionally and
knowingly sold controlled substances (FFCL 3,4); 2) the
conduct engaged in by Petitioner could have endangered
the health and safety of those to whom he unlawfully sold
controlled substances; 3) Petitioner himself abused
controlled substances to relieve his stress, although as
a pharmacist he knew how dangerous and addictive
prescription drugs could be, and only sought help for his
addiction after he was charged with criminal activity
(FFCL 5, 6, 11); 4) Petitioner was placed on three years
probation (FFCL 7); and 5) Petitioner's license to
practice pharmacy and his D.E.A. license were both
revoked (FFCL 9, 10).
19. Petitioner and his physician, utilizing evidence
submitted by the I.G. (I.G. Ex. 10/4 - 6, 9 - 11),
established that Petitioner was addicted to the
controlled substances Valium and Xanax due to stress.
Petitioner also proved that: 1) prior to his arrest
Petitioner had no criminal record, and has not been
involved in further difficulties with the police (P.Br.
3); 2) Petitioner's actions did not relate to the
Medicare or Medicaid programs (P. Br. 6); 3) Petitioner's
addiction is now in treatment (P. Br. 3); 4) Petitioner
recognizes his mistake and has expressed remorse (P. Br.
3 - 4); and 5) Petitioner's sentencing court took into
account that: a) Petitioner was not dealing in street
drugs; b) it was Petitioner's first offense; c)
Petitioner expressed remorse; and d) Petitioner's license
was suspended and he would not be getting it back in the
near future. I.G. Ex. 10/17. While I have considered
this evidence, it does not establish that the I.G.'s
determination concerning the appropriate length of
exclusion to impose on Petitioner is unreasonable.
20. Petitioner has not proven that an exclusion of five
years is unreasonable.
21. The I.G.'s determination to exclude Petitioner from
participation in the Medicare or Medicaid programs for
five years is reasonable. FFCL 1 - 20; See 42 C.F.R.
1001.125(b)(1) - (7).
DISCUSSION
I. Petitioner Was "Convicted" Of A Criminal Offense
"Relating To The Unlawful Manufacture, Distribution,
Prescription, Or Dispensing Of A Controlled Substance",
Within The Meaning Of Section 1128(b)(3) Of The Act.
Section 1128(b)(3) of the Act authorizes the I.G. to
exclude from participation in the Medicare and Medicaid
programs individuals who have been "convicted" of
criminal offenses "relating to the unlawful manufacture,
distribution, prescription, or dispensing of a controlled
substance". On June 29, 1989, Petitioner pled guilty to
knowingly and intentionally delivering controlled
substances, as well as to selling and dispensing
controlled substances without a prescription and selling
controlled substances without labels. FFCL 3.
Petitioner admits, and I find and conclude that he was
"convicted" within the meaning of section 1128(i) and
that his conviction falls within the purview of criminal
offenses enumerated in section 1128(b)(3) of the Act.
FFCL 2, 3, 4, 12, 13, 14.
II A Five-Year Exclusion Is Appropriate And Reasonable
In This Case.
Since Petitioner has admitted, and I have concluded, that
Petitioner was "convicted" of a criminal offense for
which the I.G. may impose an exclusion, pursuant to
section 1128(b)(3) of the Act, the remaining issue is
whether the five-year exclusion is appropriate and
reasonable. For the reasons set out below, I conclude
that a five-year exclusion is reasonable.
As I stated in Falah R. Garmo, R.Ph., DAB Civ. Rem C-222
(1990) (citing Victor M. Janze, M.D., DAB Civ Rem. C-212
(1990) and Charles J. Burks, M.D., DAB Civ. Rem. C-111
(1989)), in making a determination regarding the length
of an exclusion, I am guided by the purpose behind the
exclusion law. Congress enacted section 1128 of the Act
to protect the Medicare and Medicaid programs from fraud
and abuse and to protect the beneficiaries and recipients
of those programs from impaired and incompetent
practitioners and inappropriate or inadequate care. S.
Rep. No. 109, 100th Cong., lst Sess. 1; reprinted in 1987
U.S. Code Cong. & Admin. News 682, 708. The key term is
"protection," the prevention of harm. See Websters II
New Riverside University Dictionary 946 (1984). As a
means of protecting the Medicare and Medicaid programs
and their beneficiaries and recipients, Congress chose to
mandate, and in other instances to permit, the exclusion
of individuals and entities. Through the exclusion law,
individuals and entities who have caused harm, or may
cause harm, to the program or its beneficiaries or
recipients are no longer permitted to receive
reimbursement for items or services which they provided
to Medicare beneficiaries or Medicaid recipients. Thus,
individuals are removed from a position which provides a
potential avenue for causing harm to the programs. An
exclusion also serves as a deterrent to other individuals
and entities against errant or deviant behavior which may
result in harm to the Medicare and Medicaid programs or
their beneficiaries and recipients.
No statutory minimum mandatory exclusion period exists
for section 1128(b)(3) exclusions. The determination of
when an individual should be trusted and allowed to
reapply for participation as a provider in the Medicare
and Medicaid programs is a difficult issue and is one
which is subject to discretion; there is no mechanical
formula. The federal regulations provide some guidance
which may be followed in making this determination. The
regulations provide that the length of Petitioner's
exclusion may be determined by reviewing: 1) the number
and nature of the offenses; 2) the nature and extent of
any adverse impact the violations have had on
beneficiaries; 3) the amount of the damages incurred by
the Medicare, Medicaid, and social services programs; 4)
the existence of mitigating circumstances; 5) the length
of sentence imposed by the court; 6) any other facts
bearing on the nature and seriousness of the violations;
and 7) the previous sanction record of Petitioner. See
42 C.F.R. 1001.125(b). These regulations were adopted by
the Secretary (and his delegate, the I.G.) to implement
the Act prior to the 1987 Amendment. The regulations
specifically apply only to exclusions for "program
related" offenses. To the extent that they have not been
repealed, however, they embody the Secretary's intent
that they continue to apply, at least as broad
guidelines, to the cases in which discretionary
exclusions are imposed. See Garmo, supra at 10; Leonard
N. Schwartz, R.Ph., DAB Civ. Rem. C-62 at p. 12 (1989).
In addition to the factors listed above, given
Congressional intent to exclude untrustworthy individuals
from participation in Medicare and Medicaid programs, I
also consider those circumstances which indicate the
extent of an individual's or entity's trustworthiness.
By not mandating that exclusions from participation in
the Medicare and Medicaid program be permanent, Congress
has allowed the I.G. the opportunity to give individuals
a "second chance." The placement of a limit on the
period of exclusion allows an excluded individual or
entity the opportunity to demonstrate that he or she can
and should be trusted to participate in the Medicare and
Medicaid programs as a provider of items and services to
beneficiaries and recipients. A determination of an
individual's current and future trustworthiness thus
necessitates an appraisal of the crime for which that
individual was convicted, the circumstances surrounding
it, whether and when that individual sought help to
correct the behavior which led to the criminal
conviction, and how far that individual has come towards
rehabilitation.
Petitioner is arguing in this case that a five year
exclusion is unreasonable and that he will be trustworthy
to provide goods and services to the Medicare and
Medicaid programs in a much shorter period of time.
Petitioner has not, however, introduced any exhibits or
other evidence to substantiate his contention that a five
year exclusion is unreasonable. Instead, Petitioner has
utilized the exhibits placed into evidence by the I.G. in
support of his conclusion that a shorter exclusion would
be reasonable.
Petitioner offers the following circumstances surrounding
his conviction as indicators of his current and future
trustworthiness: 1) prior to his arrest Petitioner had no
criminal record, and has not been involved in further
difficulties with the police since that time; 2)
Petitioner's actions did not relate to the Medicare or
Medicaid programs; 3) Petitioner was under stress due to
the pressure of his work and became addicted to Valium
and Xanax, and was a drug abuser at the time of the
actions which led to his conviction, which addiction is
now in treatment; 4) Petitioner recognizes that he has
made a mistake and has expressed remorse for his actions
and the effect it has had on his family; and, finally, 5)
that the sentencing court took into account that: a)
Petitioner was not dealing in street drugs; b) that it
was Petitioner's first offense; c) that he expressed
remorse; and d) that his license was suspended and that
Petitioner would not be getting it back in the near
future. FFCL 19.
Neither the absence of prior offenses by Petitioner or
the fact that Petitioner's actions do not relate to the
Medicaid or Medicare programs mitigate against a lengthy
exclusion. Rather, their presence would be factors that
might justify an increased sanction. See Lakshmi N.
Murty Achalla, M.D., DAB Civ. Rem. C-146 (1990).
Petitioner's mental state, both at the time he engaged in
his criminal conduct and now, and his conduct subsequent
to his conviction, are relevant to determining his
trustworthiness.
Petitioner argues that his addiction, which he claims was
caused by stress, was responsible for the actions
resulting in his conviction. However, while it may be
true that Petitioner was mentally stressed and addicted
at the time of the unlawful activity for which he was
convicted, even the judge who sentenced him was unable to
say what caused Petitioner to sell those controlled
substances. That judge stated during Petitioner's
sentencing hearing, with reference to what caused
Petitioner to sell the controlled substances: "whether it
was for greed, to make additional money or because of
your drug abuse that maybe clouded your judgment, I don't
know what it was." I.G. Ex. 10/18. That Petitioner may
have succumbed to stress, become addicted to drugs, and
for whatever reason unlawfully sold controlled
substances, certainly does not persuade me of
Petitioner's trustworthiness. See Garmo at 11.
Petitioner did seek help to end his addiction, but he
only did so after he was charged with selling controlled
substances. Petitioner asserts that his addiction
occurred because of the easy availability of drugs in a
pharmacy and the stress of starting his own business
(I.G. Ex. 10/4 - 5), but he has presented no evidence to
show that he has made any attempt to learn to deal with
his stress in more constructive ways. Evidence
submitted by the I.G. does show that Petitioner sought
treatment from one physician in order to overcome his
drug dependency. The physician prescribed the drug
Buspar. At Petitioner's sentencing hearing, the
physician testified that the drug Buspar is used to
detoxify patients who are on other types of sedative
tranquilizers. The physician also indicated that some
psychological follow-up was necessary. I.G. Ex. 10/10.
The physician, whose residency was in internal medicine
(I.G. Ex. 10/9), saw Petitioner only three times,
although he also testified that during the course of
treatment he adjusted Petitioner's dosage of Buspar by
telephone. At Petitioner's sentencing hearing, the
physician could say only that at the time of the
sentencing hearing on June 29, 1989 he "assume(s) he
(Petitioner)(is) using the Buspar at this time and (is)
under fair control". I.G. Ex. 10/11. There is no
evidence in the record to show that Petitioner has
overcome the conditions which led him into his drug
dependency or taken further steps to address those
problems, such as by seeing a mental health professional,
or attending any programs which specialize in treating
drug dependency. Although the transcript of Petitioner's
sentencing hearing does show that he has a supportive
family and that he feels remorse for what he has done to
them, apparently he had that same support when he became
addicted to controlled substances and when he unlawfully
sold those controlled substances to others. Thus, there
is nothing in Petitioner's mental state or in the fact of
his drug use that can mitigate against Petitioner's
period of exclusion. Petitioner has not come far enough
along the road to recovery, at least in the evidence
presented to me, to show Petitioner is a person
trustworthy enough to participate in the Medicare and
Medicaid programs as a provider of goods and services.
Petitioner, has argued that two previous cases support
his position that the length of his exclusion is
unreasonable: Victor M. Janze, M.D., DAB Civ. Rem. C-212
(1990); and James E. Keil, M.D., DAB Civ. Rem C-154
(1990). I do not agree. In Janze, the petitioner
pleaded guilty to unlawfully dispensing, distributing,
and causing to be distributed a controlled substance.
The I.G. excluded the petitioner for seven years. The
petitioner challenged the reasonableness of the length
of his exclusion. The I.G. stated as one reason for
imposing a seven year exclusion, that the petitioner's
conduct had gone on for a lengthy period. The petitioner
in Janze, however, pleaded guilty to actions taking place
on only one date. The I.G. in Janze failed to prove that
the petitioner was engaged in a continuing course of
illegal conduct. That failure of proof meant that a
continuing course of conduct could not be used as a
factor in determining the length of the Petitioner's
exclusion. That, coupled with the petitioner's steps
toward rehabilitation after the events leading up to his
conviction, led to the holding that a six year exclusion
was reasonable, rather than the seven year exclusion
imposed by the I.G. In this case, Petitioner appears to
believe that a continuing course of illegal conduct is
being used as a factor in determining the length of his
exclusion as it was in Janze. Evidence as to a
continuing course of conduct as a factor increasing the
length of Petitioner's exclusion in this case, however,
has not been considered. The unlawful conduct pleaded to
in this case took place on only one date. However, this
does not mitigate the seriousness of Petitioner's
actions, and does not affect my decision as to
Petitioner's trustworthiness to participate in the
Medicare and Medicaid programs. If the conduct had taken
place for a longer period of time, it might have been
considered as a factor to increase the period of
exclusion.
In Keil, the petitioner's exclusion was reduced from five
years to one. The petitioner had been convicted of one
count of unlawfully dispensing a controlled substance.
In Keil, unlike in the instant case, there was no
unlawful sale of controlled substances involved. The
petitioner in Keil was himself addicted and the drug he
prescribed was for himself. The petitioner in Keil also
sought help before his indictment and demonstrated to the
ALJ that he had faithfully adhered to his treatment
regimen and was drug free. The instant case is very
different. Here Petitioner, although he was addicted to
drugs, sold drugs to a third party, opening up the
possibility of serious harm to people whom, as a
pharmacist, it was Petitioner's highest duty to protect.
Also, while there is evidence that Petitioner has made
some steps to overcome his addiction, Petitioner has
offered no evidence as to how far his recovery has
progressed. Thus, I do not find authority in either
Janze or Keil for Petitioner's contention that the length
of his exclusion is unreasonable.
Petitioner also contends that, under the circumstances of
his case, it is appropriate that a three year exclusion
be imposed and that it run concurrent with his probation
as mandated by the Court of Common Pleas of Lackawanna
County, Pennsylvania. P. Br. 9. While the court that
sentenced Petitioner in his criminal proceeding took many
of the circumstances argued by Petitioner in this case
into consideration in determining Petitioner's
probationary period, that court was looking into
Petitioner's danger to the community as a whole. One of
the reasons they found to recommend probation was that,
since his license had been suspended, the court was not
concerned about Petitioner's getting back into the
activity underlying his criminal conviction in the near
future. I.G. Ex. 10/20. In this case, Petitioner is
seeking a shorter exclusion precisely in order to again
serve people as a pharmacist. He is seeking to
participate as a provider of goods and services to
beneficiaries and recipients of the Medicare and Medicaid
programs. The sentencing court concluded that it would
take three years of supervision before it trusted
Petitioner to interact unsupervised with the public in
general. I do not find that a five year exclusion period
is unreasonable in order for the Medicare and Medicaid
programs to ascertain Petitioner's trustworthiness to
serve the beneficiaries and recipients of these funds.
In this case, I find substantial reasons for a lengthy
exclusion: 1) When Petitioner was authorized to sell and
dispense controlled substances, he was put in a position
of great trust. Petitioner abused that trust when he
unlawfully, intentionally, and knowingly sold controlled
substances to Detective Marrone. 2) Petitioner sold
these controlled substances even though their illicit use
might have potentially serious consequences for anyone
receiving them. Thus, Petitioner put at risk those
people for whom he, as a pharmacist, had the highest duty
to protect. 3) As a pharmacist, Petitioner also knew how
dangerous and addictive prescription drugs could be.
Yet, he himself abused prescription drugs in order to
relieve his stress and only sought help for his addiction
after he was charged with criminal activity. 4) The
sentencing court recognized how serious Petitioner's
conduct was by placing him on probation for three years.
FFCL 7. 5) Petitioner's license to practice pharmacy and
his D.E.A. license were both revoked due to the gravity
of his behavior. FFCL 18. 4/
None of the circumstances relied upon by Petitioner
derogate from my conclusion that, in light of
Petitioner's behavior and offense, he is an individual
who should not be trusted to participate in the Medicare
or Medicaid programs. The circumstances cited by
Petitioner address elements of his case which show he is
a relatively sympathetic individual with a strong family
background of support and a great deal of remorse for
what he has done to his family. While these factors had
a bearing on the extent to which Petitioner was punished
for his crime, they have little to do with the question
of whether Petitioner can now or in the near future be
trusted to dispense controlled substances to program
beneficiaries. In the instant case, the period of
exclusion imposed by the I.G. is necessary in order to
protect the Medicare and Medicaid programs and to give
Petitioner the time to show that he can again be trusted
to provide items and services to program beneficiaries
and recipients.
Petitioner requested that I change the beginning date of
the exclusion so that it would run concurrent with
Petitioner's probation period, as ordered by his
sentencing court. However, an ALJ has no power to change
the beginning date of the exclusion. See Samuel W.
Chang, M.D., DAB App. 1198 at 9; Falah R. Garmo, DAB Civ.
Rem. C-222 at 12 (1990).
CONCLUSION
Based on the evidence in this case and the law, I
conclude that the I.G.'s determination to exclude
Petitioner from participation in the Medicare and
Medicaid programs for five years is reasonable and
appropriate. Therefore, I am entering a decision in
favor of the I.G. in this case.
IT IS SO ORDERED
Charles E. Stratton
Administrative Law Judge
* * * Footnotes * * *
1. "State health care program" is defined by
section 1128(h) of the Social Security Act to cover three
types of federally-assisted programs, including State
plans approved under Title XIX (Medicaid) of the Act. I
use the term "Medicaid" hereafter to represent all State
health care programs from which Petitioner was excluded.
2. Some of my statements in the sections
preceding these formal findings and conclusions are also
findings of fact and conclusions of law. To the extent
that they are not repeated here, they were not in
controversy.
3. Citations to the record in this Decision are
as follows:
Petitioner's Brief P. Br. (page)
I.G.'s Brief I.G. Br. (page)
I.G.'s Exhibits I.G. Ex. (number)/(page)
Findings of Fact and FFCL (number)
Conclusions of Law
4. On June 15 1989, Petitioner sold DePietro's
Pharmacy to his wife for a nominal consideration. The
I.G. has alleged that the sale of Petitioner's pharmacy
to his wife was, in effect, a sham, and that Petitioner
still effectively runs the pharmacy. The I.G. points out
an inconsistency between what Petitioner told his
sentencing court and his assertion in this proceeding
that he is not involved in running the pharmacy.
Petitioner denies this. I have not considered this
evidence in reaching my decision. The I.G. has also
argued that Petitioner sold the controlled substances in
question at a price in excess of the market price. There
is no evidence in the record that the controlled
substances which Petitioner unlawfully sold in the
January 29, 1988 transaction for which he pleaded guilty
were sold in excess of market price. I have not
considered this argument in making my decision. I.G. Ex.
1/2, 4 - 5.