(dissenting).
The Board placed appellee on probation upon the following conditions:
“(a) Respondent [appellee] shall at all times comply with all of the laws of the United States, the State of New Mexico, and its political subdivisions, and the rules and regulations and orders of the Board of Medical Examiners.
“(c) During the period of this indefinite probation respondent shall continue under psychiatric observation and treatment of Warren T. Brown, M.D., or some other psychiatrist acceptable to the Board, and except as authorized by said psychiatrist, he shall not take or have in his possession any dangerous drugs. * * * ” (Emphasis added.)
It might be noted at this point that the latter term implies that by not being able to have dangerous drugs in his possession, appellee could not even prescribe such drugs to his patients.
On August 3, 1972, a state drug inspector took a statement from appellee, wherein appellee admitted that he was personally using the drug, Ritalin (methylphenidate), without authorization from his psychiatrist. Using this statement as a basis therefor, the Board served an order to show cause on appellee to explain why the Board should not find that appellee had violated the terms of his probation and, as well, why appellee should not have his license to practice medicine revoked. On August 14, 1972, pursuant to said order to show cause, a hearing was had before the Board. In defense of his conduct, appellee insisted that he did not know what the term “dangerous drugs” meant. On August 16, 1972 the” Board made findings of fact and conclusions of law and held that appellee had violated the conditions of his probation. The Board then entered an order revoking appellee’s license to practice medicine in New Mexico. Appellee perfected an appeal to the district court, which court, on October 13, 1972, entered an order remanding the case to the Board for the following purposes only:
“(a) To permit evidence as to any narcotic or dangerous qualities of the drug Ritalin.
“(b) To permit Petitioner (appellee) to call Dr. Warren Brown as a witness.
“(c) To make available to Petitioner at his expense to transcript of all proceedings had before the Board and correspondence with Dr. Brown and Dr. McDaniel.”
On November 18, 1972 another hearing was had before the Board and on February 15, 1973 the Board affirmed its previous decision of August 16, 1972. Thereafter, on May 25, 1973, the district court entered a judgment pursuant to § 67-26-20, N.M. S.A.1953 (Repl.Vol. 10, pt. 1, 1961), reversing the decisions and orders of the Board revoking appellee’s license to practice medicine on the basis that substantial rights of appellee had been prejudiced because the Board’s decision was unsupported by substantial evidence and was arbitrary.
Appellant claims that the trial court substituted its judgment for that of the Board and the court’s decision should therefore be reversed. As support for this contention, appellant cites Ferguson-Steere Motor Co. v. State Corp. Com’n, 63 N.M. 137, 142, 314 P.2d 894, 897 (1957), which stated :
“ * * * It is well settled in this state that it is not the province of the trial court to re-try a case brought before it on appeal from an administrative body or agency or to substitute its judgment for that of the agency, but the trial court is limited to a determination of whether the administrative agency’s action was legal or reasonable. * * * On the other hand, the courts are vested •with the power and authority to set aside an order of such agency it it is unreasonable, unlawful, arbitrary, capricious, or not supported by evidence. * * * ” (Citations omitted and emphasis supplied.)
I agree with this rule and must therefore determine if the court’s ruling was truly-based on one of the above-mentioned exceptions. In other words, if the term “dangerous drugs” is too indefinite, the probation term in question is unreasonable and void for vagueness. This point is dis-positive of the case, in my opinion. In essence, all of this boils down to one simple issue: Did the Board’s probation terms give appellee a sufficient indication of what drugs he could or could not use ?
In determining if the probation term is too vague, the general rule on statutory vagueness is: “Due process is violated if a statute which forbids the doing of an act is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. * * * ” State v. Orzen, 83 N.M. 458, 461, 493 P.2d 768, 771 (1972). This same rule can be applied to administrative orders be- . cause “in order to be valid, binding and en-forcible the [administrative] order must be reasonably definite and certain in its terms and requirements,” thus to inform the parties as to what they are required to do. Seward v. D. & R. G., 17 N.M. 577, 586, 131 P. 980, 990 (1913).
Furthermore, the right to practice a profession is a property right, and legislation governing revocation of that right is penal in nature and should be strictly construed. Amador v. New Mexico State Board of Education, 80 N.M. 336, 455 P.2d 840 (1969). This is analogous to the rule given for the interpretation for criminal statutes, i. e., that penal statutes must be strictly construed. See State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969). Therefore, rules which apply to criminal probation cases should likewise apply to license revocation cases. State v. Martinez, 84 N.M. 295, 296, 502 P.2d 320, 321 (Ct.App.1972), in discussing the revocation of a criminal probation order, stated:
“The trial court had authority to revoke defendant’s probation * * *. To do so, a violation of probation must be established. * * * In determining whether there is a violation, we look to the trial court’s order. If the deferred sentence does not set out the conditions of probation, there are no conditions to be violated. * * * Thus the conditions of probation should be made clear in the judgment. * * * ” (Emphasis supplied.)
In defining “dangerous drugs” we can first look to the statutory definition to determine if that definition would provide appellee with a clear indication of what his probation terms meant. Section 54-6-27, N.M.S.A.1953 (Supp.1973), defines “dangerous drug” in the following language:
“E. ‘Dangerous drug’ means a drug, other than a controlled substance enumerated in Schedule I of the Controlled Substances Act, which, because of any potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe except under the supervision of a practitioner licensed by law to direct the use of such drug, and hence for which adequate directions for use cannot be prepared. ‘Adequate directions for use’ means directions under which the layman can use a drug or device safely and for the purposes for which it is intended. A drug shall be dispensed only upon the prescription of a practitioner licensed by law to administer such drug, if it:
“(1) is a habit-forming drug and contains any quantity of a narcotic or hypnotic substance, or any chemical derivative of such substance, which has been found under the federal act and the board of pharmacy to be habit-forming;
“(2) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug;
“(3) is limited by an approved application by section 505 of the federal act to the use under the professional supervision of a practitioner licensed by law to administer such drug;
“(4) bears the legend: ‘Caution: federal law prohibits dispensing without prescription’; or
“ (S) bears the legend: ‘Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.’;
H * * * >>
The question then becomes whether or not the Board intended this statutory definition to be used because of probation term (a), supra. This question must be answered in the negative since appellee was allowed by the Board to prescribe certain drugs which would fall under the above definition. Therefore, appellee had no way of knowing which so-called statutory “dangerous drugs” were considered “dangerous drugs” by the Board. If the Board intended to use this statutory definition, it should have so stated. However, since this was not done, and since appellee was allowed to prescribe and thus have in his possession certain statutory “dangerous drugs,” the Board must have had some other definition in mind at the time it listed the probation terms.
Determining what this other definition could be poses quite some problem. As stated by one of the Board’s expert witnesses :
“Well, I think it is difficult to answer what is a dangerous drug. I think the phrasing has been avoided in recent [legislative] acts and there is some difficulty in saying a substance is dangerous or is not, because most substances are dangerous, depending on dosage. It depends on how they are used. There are some drugs, however, that are perhaps more dangerous than others. * * * Drugs that have a high abuse potential we would generally say would be more dangerous than some other drug, but we are talking in a relative sense here.”
This same witness later admitted that every drug, whether it is prescribed or not, is not safe in every instance, even when under the control of a physician. In other words, “dangerous drugs” is certainly neither a term that can be understood by a man of reasonable intelligence, nor is it a word of art to the medical profession as a whole. In conclusion, there was really no way for appellee to find out what the term meant. He asked the Board a number of times to define it for him and the Board could not come up with a satisfactory answer because it apparently was not capable of doing so.
I would affirm the trial court. My colleagues in the majority having decided otherwise, I respectfully dissent.
MARTINEZ, J., concurs.