Nelson v. MISS. BD. OF VETERINARY MED.

662 So. 2d 1058, 1995 WL 611725
CourtMississippi Supreme Court
DecidedOctober 19, 1995
Docket92-CA-00509-SCT
StatusPublished
Cited by19 cases

This text of 662 So. 2d 1058 (Nelson v. MISS. BD. OF VETERINARY MED.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. MISS. BD. OF VETERINARY MED., 662 So. 2d 1058, 1995 WL 611725 (Mich. 1995).

Opinion

662 So.2d 1058 (1995)

James H. NELSON, D.V.M.
v.
MISSISSIPPI STATE BOARD OF VETERINARY MEDICINE.

No. 92-CA-00509-SCT.

Supreme Court of Mississippi.

October 19, 1995.

*1059 Thomas D. Keenum, Sr., Booneville, for appellant.

C. Michael Malski, Carnathan & Malski, Amory, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

Dr. James H. Nelson, D.V.M. ("Nelson") was stripped of his license to practice veterinary medicine by the Mississippi State Board of Veterinary Medicine ("Board") for certain violations of Miss. Code Ann. § 73-39-19. Nelson, aggrieved by the Board's decision to revoke his license, perfected his appeal to the Prentiss County Chancery Court. Thereafter, both sides submitted appellate briefs to the chancellor, and subsequently, the chancellor affirmed the Board's decision. Nelson, aggrieved by the Board's order and the chancellor's subsequent affirmance of the Board's decision, appeals to this Court and assigns as error the following:

I. THE MISSISSIPPI STATE BOARD OF VETERINARY MEDICINE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AS WELL AS STATUTORY RIGHTS WHEN IT FAILED TO FURNISH APPELLANT WITH A STATEMENT OF THE CHARGES AGAINST HIM AND NOTICE OF THE PARTICULAR FACTS OR CONDUCT WHICH WARRANTED THE INTENDED ACTION OF REVOCATION AND THE ACTIONS OF THE BOARD SHOULD THEREFORE BE REVERSED.
II. THE ACTIONS OF THE MISSISSIPPI STATE BOARD OF VETERINARY MEDICINE WERE ARBITRARY AND CAPRICIOUS AND WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THAT THE ORDER LACKS ANY FINDINGS OF FACT, IS OVERLY VAGUE, AND THE SAME SHOULD BE REVERSED.

STATEMENT OF THE CASE

Nelson was notified by the Board's attorney by certified letter that the Board would hold a formal hearing on Saturday, August 24, 1991, in Jackson, Mississippi, to determine whether or not his license to practice veterinary medicine should be suspended or revoked for certain violations of Miss. Code Ann. § 73-39-19 (1972). After a continuance was granted to Nelson, the Board convened in Jackson on September 21, 1991, at which time the Board heard testimony from four witnesses including Nelson and then adjourned to go into executive session to reach a decision. Upon completing its deliberations, the Board rendered its order revoking Nelson's license. Nelson, pursuant to Miss. Code Ann. 73-39-20 (1972), appealed the Board's revocation of his license to the Prentiss County Chancery Court.

Both Nelson and the Board submitted briefs to the chancery court and it appears that the appeal was submitted to the chancellor on the briefs alone. On April 23, 1992, the chancellor entered his Order and Opinion which affirmed the Order of Revocation by the Board. Nelson timely filed his notice of appeal with this Court, and therefore, this case is now properly before the Court.

*1060 STATEMENT OF THE FACTS

On or about June 28, 1991, Nelson along with J.J. Michael and Kerry Michael were arrested for possession of narcotics. Approximately one month after Nelson was arrested for possession of narcotics, he was notified by the Board, via registered letter, that he would face a formal hearing on August 24, 1991, at which time the Board would decide whether his license to practice veterinary medicine should be suspended or revoked. The complaint letter informed Nelson that the basis for revoking or suspending his license was his alleged violations of Miss. Code Ann. § 73-39-19(o) and (s). Nelson requested a continuance and the Board rescheduled his hearing for September 21, 1991. On September 21, 1991, Nelson's hearing was convened and four witnesses testified.

Testimony given at the hearing indicates that Nelson and J.J. Michael ("J.J.") became acquainted at some point during October of 1990, and it appears from testimony given at Nelson's hearing that J.J. inquired about working for Nelson in his clinic. Nelson and J.J. testified that he could not afford to pay her regularly but nevertheless, J.J. began to work around the veterinary clinic for Nelson. From this point on the witnesses' stories diverge in several areas.

J.J. testified that Nelson began to give her and her husband (Kerry) certain controlled drugs, i.e., Demerol, Valium, Diazepam, and Innovar, and that he sold Kerry bottles of Demerol. J.J. also claimed that Nelson began to give her injections of Demerol in February of 1991 and that at about this same time she began to have sex with Nelson in exchange for drugs.

Kerry, consistent with J.J.'s testimony, indicated that he had purchased Demerol from Nelson, and had also received Demerol, Diazepam, Talwin and Innovar from Nelson. On cross-examination Kerry was asked whether he had ever stolen drugs from Nelson. Kerry denied stealing any drugs from Nelson and reiterated his earlier testimony that Nelson had either given him or sold him the drugs he used. Kerry further testified that in addition to buying drugs from Nelson at his clinic, on two occasions he had gone to Nelson's home and purchased drugs from him.

Nelson took the stand and categorically denied selling Kerry and J.J. drugs. However, Nelson admitted that he was lax in maintaining security on his addictive drugs and that he realized that Kerry and J.J. were taking the drugs from his office, but did nothing to stop them. Nelson also admitted to having sex with J.J. but denied that he was trading drugs for her sexual favors. When questioned about his large purchases of Demerol, Nelson stated that he had used much of the Demerol to treat horses with colic. However, Nelson did not submit any documentation at the September hearing in Jackson to show that he had indeed used the large amounts of Demerol to treat the horses with colic.

At the close of all testimony, Nelson's attorney was allowed to make a short statement and then the Board adjourned to make its decision. After meeting and weighing the testimony, the Board decided by order dated September 21, 1991, to revoke Nelson's license to practice veterinary medicine. The Board found Nelson was guilty of:

(1) administering and dispensing narcotic drugs having addiction-forming, addiction-sustaining or habituating liability otherwise than in the course of legitimate professional practice, and
(2) dishonorable and unethical conduct likely to harm the public.

STANDARD OF REVIEW

This appeal of an administrative proceeding against a professional licensed by the State is subject to the following standard of review:

On judicial review, the Chancery Court does not proceed de novo, nor does this Court. Rather, the disciplinary agency's decision is insulated from judicial disturbance where it is supported by substantial evidence and is neither arbitrary nor capricious. The judicial eye looks to see whether a fair-minded fact finder might have found the evidence clear and convincing that the offense had occurred, and, where *1061 that may be said, we will not disturb the Board's judgment.

Riddle v. State Bd. Of Pharmacy, 592 So.2d 37, 41 (Miss. 1991) (citations omitted).

DISCUSSION

I.

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Cite This Page — Counsel Stack

Bluebook (online)
662 So. 2d 1058, 1995 WL 611725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-miss-bd-of-veterinary-med-miss-1995.