Poor v. State, S-02-472.

• Decision Date: 20 June 2003
• Docket Number: No. S-02-472.,S-02-472.
• Citation: 663 N.W.2d 109,266 Neb. 183
• Parties: Gregory S. POOR, D.C., Appellant, v. STATE of Nebraska, Appellee.
• Court: Nebraska Supreme Court

663 N.W.2d 109

266 Neb. 183

Gregory S. POOR, D.C., Appellant, v. STATE of Nebraska, Appellee.

No. S-02-472.

Supreme Court of Nebraska.

June 20, 2003.

K.C. Engdahl, of Raynor, Rensch & Pfeiffer, for appellant.

Don Stenberg, Attorney General, and James D. Smith for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Gregory S. Poor, D.C., appeals from an order of the district court for Lancaster County which affirmed the revocation of his license to practice chiropractic medicine by the Nebraska Department of Health and Human Services Regulation and Licensure. We affirm.

BACKGROUND

Poor received his chiropractic training between January 1992 and May 1995, and has been a licensed chiropractor in the State of Nebraska since July 1995. In an eight-count federal indictment filed in Omaha, Nebraska, in May 1998, Poor was charged with conspiracy to distribute gamma hydroxybutyrate (GHB), introducing GHB into interstate commerce with the intent to defraud and mislead, and witness tampering. Poor entered a plea agreement on March 10, 2000, in which he agreed to plead guilty to one count of conspiracy to manufacture and distribute a misbranded substance, GHB, in violation of 18 U.S.C. § 371 (2000). The plea agreement further provided:

Although not entering a plea of guilty to Counts II through VII of the Indictment, GREGORY POOR admits the conduct set forth in those Counts and further agrees and stipulates that Counts II through VII inclusive will be considered as relevant conduct when computing the appropriate sentencing guidelines range as though pleas of guilty had been entered.

Counts II, III, and IV alleged that Poor introduced misbranded drugs into interstate commerce on July 17 and October 26 and 28, 1995. Counts V, VI, and VII alleged that Poor introduced adulterated drugs into interstate commerce on the same three occasions.

In exchange for Poor's admission of the underlying conduct, the United States agreed to dismiss counts II through VII as well as count VIII, which alleged witness tampering. Poor entered a guilty plea to count I and on May 31, 2000, was sentenced to 4 months' imprisonment, 3 years' supervised release, and a $2,000 fine. He was ordered to surrender for service of his sentence before 2 p.m. on June 30, 2000.

On June 9, 2000, after his conviction and sentencing but before he surrendered for service of his sentence, Poor was arrested in Overland Park, Kansas, for driving under the influence. On January 26, 2001, following his release from prison, Poor was convicted of this charge.

In this disciplinary proceeding, the State alleged four "Causes of Action." The first cause of action alleged that on or about May 29, 1999, Poor illegally possessed cocaine, and that such possession constituted a violation of Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1998), of the Uniform Controlled Substances Act, and was a ground for discipline under Neb.Rev.Stat. § 71-147(17) (Cum.Supp.1998). The second cause of action listed examples of Poor's conduct which the State alleged "separately and cumulatively, constitute grossly immoral or dishonorable conduct evidencing unfitness," thus constituting grounds for discipline pursuant to § 71-147(2) (Reissue 1996). Specifically, the State accused Poor of the following acts:

a. Lying to a Department investigator during the course of an official investigation on September 9, 1999;

b. Conspiring to manufacture and distribute a misbranded substance in violation of Federal law, as alleged in the May 1998 Federal indictment;

c. Tampering with a witness to hinder a pending federal investigation of the Defendant in violation of federal law as alleged in the May 1998 Federal indictment;

d. Introducing misbranded drugs into interstate commerce as alleged in the May 1998 Federal indictment; and,

e. Failure to warn his companions regarding the dangers of ingesting GHB either in isolation, or in combination with alcohol.

In the third and fourth causes of action, the State alleged that Poor's felony conviction and his misdemeanor driving under the influence conviction are both rationally connected to Poor's fitness or capacity to practice chiropractic medicine and thus constitute grounds for discipline under § 71-147(4).

An administrative hearing was conducted by a hearing officer on June 20, July 16, and August 27, 2001. Poor testified that he used GHB from 1992 until 1995. Poor denied experiencing adverse physical effects from GHB use, but admitted that he was hospitalized and subsequently released without treatment following GHB use in 1994. Despite the admissions in his plea agreement, Poor denied that he engaged in any of the underlying conduct charged in counts II through VII of the indictment. Poor testified that he signed the plea agreement on the advice of counsel and denied that he had ever transported GHB across state lines.

Jeffrey Noble, a deputy sheriff for Pottawattamie County, Iowa, testified regarding the allegation that Poor had knowingly possessed cocaine. Noble testified that he encountered Poor on or about May 30, 1999, while Noble was working as a private security officer at an Omaha bar. Noble observed Poor drop a small bag containing a white substance as he was extracting some cash from his pocket. Poor tried to cover the bag with his foot. Suspecting that the bag contained cocaine, Noble asked Poor if it was his, and Poor did not respond. Noble placed handcuffs on Poor and enlisted the aid of another officer outside the bar. During a custodial search, Noble found a second bag containing a white substance in Poor's pocket. Subsequent testing confirmed that the white substance in both bags was cocaine. Poor was arrested and charged with possession of cocaine, but the charges were subsequently dismissed for reasons which are not apparent from the record.

Kevin Davis, D.C., a licensed chiropractor who served on the state Board of Chiropractic from 1995 through 2000, testified as an expert. Based on his training and experience, Davis testified that Poor's felony conviction violated the "basic premise" of chiropractic medicine, which is "a form of drugless, nonsurgical treatment of the human body." Davis also stated that Poor's distribution of GHB showed poor professional judgment and constituted unsound ethical practice that would not fit within the guidelines of the American Chiropractic Association's ethical code. Davis stated that Poor's lack of sound judgment reflects on his honesty, which is the foundation of treating any health care problem.

Also testifying for the State was Gregory Nieto, a special agent with the Food and Drug Administration's office of criminal investigation in Lenexa, Kansas. In 1995, Nieto became involved in an investigation concerning a death suspected to have been caused by GHB use. Nieto's investigation eventually led to Poor's indictment in May 1998, although no evidence ever connected Poor to the death. In March 2000, following his plea of guilty, Poor spoke with Nieto and verified that he had transported GHB to Council Bluffs, Iowa, in a gallon jug on October 28, 1995. On cross-examination, Nieto testified that GHB was not illegal as a controlled substance in 1995 and that people generally were not being prosecuted for possession of GHB at that time. However, Nieto testified that in 1995, the Food and Drug Administration was prosecuting persons involved in the manufacturing and distribution of GHB because of known overdose situations around the country.

Rodger Green, an investigator with the Nebraska Department of Health and Human Services Regulation and Licensure's division of investigations, was the final witness to testify on behalf of the State. Green was assigned to investigate Poor on May 26, 1998. Green interviewed Poor twice regarding this case, once on June 23, 1998, and once on September 9, 1999. On June 23, 1998, Green and Poor discussed GHB. Poor identified nausea and vomiting as the only side effects of GHB use and denied that he ever sold the substance. On September 9, 1999, following interviews with other parties, Green conducted a followup interview with Poor for purposes of clarifying certain points. In this interview, Poor again denied ever giving or selling GHB to anyone and also denied ever having possessed cocaine. Poor did admit that he had been hospitalized in connection with GHB use and agreed to give Green a release of information. Following the conclusion of the State's case, seven affidavits from Poor's patients were offered and received into evidence in his behalf and the proceedings were concluded.

As a consequence of the hearings, the chief medical officer of the Nebraska Department of Health and Human Services Regulation and Licensure entered an order on November 13, 2001, revoking Poor's license to practice as a chiropractor in the State of Nebraska effective 30 days from the date of the entry of the order. Generally, the chief medical officer found that the felony conviction and the underlying facts of the conviction constituted grossly immoral or dishonorable conduct evidencing unfitness to practice one's profession and that such conduct was rationally connected to Poor's fitness or capacity to practice his profession pursuant to § 71-147(2) and (4). The chief medical officer dismissed the first and fourth causes of action, finding that the allegations of illegal possession of cocaine were not proved by clear and convincing evidence and that Poor's driving under the influence conviction was not clearly and convincingly rationally connected to Poor's fitness or capacity to practice his profession.

Poor filed a petition for review in Lancaster County District Court on December 7, 2001, and proceedings, in which arguments were made by counsel but no witnesses were called, were held on March 20, 2002. Contrary to Poor's previous testimony, Poor's attorney conceded that "[Poor] did the things that were alleged in terms of...