(dissenting).
I respectfully dissent. I concur with the majority that under Reyburn v. Minn. State Bd. of Optometry, 247 Minn. 520, 78 N.W.2d 351 (1956), the Board of Chiropractic Examiners has the discretion to make a judgment as to whether relator’s conduct constituted unprofessional conduct per se under Minn.Stat. § 148.10, subd. *9251(a)(11), (e) (2002).3 But I believe the board’s discretion is not without limitation. Unlike the majority, I believe that Minn. Stat. § 148.10, subd. 1(a)(11), (e), is unconstitutionally vague as applied to relator in this case because the statute failed to provide him with sufficient notice that he was engaging in prohibited conduct. I would, therefore, like the majority, reverse the board’s holding that relator engaged in fee splitting, but also reverse the board’s holding that relator engaged in unprofessional conduct.
A statute is unconstitutionally vague and violates the Due Process Clause if its prohibitions are not clearly defined. State v. Century Camera, Inc., 309 N.W.2d 735, 744 (Minn.1981) (stating that statute is unconstitutionally vague if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she can act accordingly). Many courts have found that statutes prohibiting unprofessional conduct are unconstitutionally vague as applied because they fail to provide sufficient notice and warning of what conduct is prohibited. See, e.g., H & V Eng’g, Inc. v. Idaho State Bd. of Prof'l Eng’rs and Land Surveyors, 113 Idaho 646, 747 P.2d 55, 59 (1987) (finding that statute prohibiting unprofessional conduct did not provide sufficient warning to group of engineers that their acts would subject them to discipline); Tuma v. Bd. of Nursing, 100 Idaho 74, 593 P.2d 711, 717 (1979) (finding that statute prohibiting unprofessional conduct did not adequately warn nurse that she was engaging in prohibited conduct); Lester v. Dep’t of Prof'l & Occupational Regulations, 348 So.2d 923, 925-26 (Fla.Dist.Ct.App.1977) (finding that statute prohibiting unprofessional conduct did not adequately warn doctor that he was engaging in prohibited conduct).
In Tumo, a nurse appealed the decision of the Idaho Board of Nursing suspending her for six months for interfering with the physician-patient relationship by discussing alternative treatments with a leukemia patient. 593 P.2d at 712-14. The relevant statute prohibited “[ijmmoral, unprofessional, or dishonorable conduct,” and the statute provided a non-exclusive list of acts that constituted “unprofessional conduct.” Id. at 714-15. Interference with the physician-patient relationship was not specified as one of the prohibited acts. Id. The Idaho Supreme Court concluded that the statute did not adequately warn the nurse that her conduct was prohibited. Id. at 717. The court explained:
The legislature has obviously recognized that the nurses who comprise the Board can, “from their personal knowledge and experience,” determine the standards of *926the profession. And accordingly opportunity was afforded the Board to expand upon the statutory definition of “unprofessional conduct.” But, says the Board, it is enough that the Board will hear evidence of a licensee’s conduct, and with its expertise then reach a conclusion whether such was or was not unprofessional. We cannot agree. Such a procedure would be an intolerable state of affairs, and not in compliance with requirements of due process.
Id. at 718.
Here, the board did not find that relator engaged in one of the acts the legislature defined as constituting unprofessional conduct. Instead, the board found that relator’s conduct was unethical, deceptive, and harmful to the public, and that relator engaged in unprofessional conduct generally. The record shows, and the majority does not appear to dispute, that relator had no notice or warning that paying runners a flat salary to solicit patients for his chiropractic clinic constituted unprofessional conduct and would subject him to serious sanctions.4 On this record, I would hold that the board’s application of Minn. Stat. § 148.10. subd. 1(a)(11), (e), to relator is unconstitutionally vague as applied to him and a violation of his due process rights because he did not have sufficient notice or warning that his actions constituted unprofessional conduct under the statute. While, like the majority, I in no way condone relator’s conduct and find it quite disturbing, it is when we find an individual’s conduct most disturbing that we must be most vigilant in our protection of an individual’s fundamental constitutional rights. Thus, like the majority, I would reverse the board’s holding that relator engaged in fee splitting, but I would also reverse the board’s holding that relator engaged in unprofessional conduct.
. In Megdal v. Oregon State Bd. of Dental Exam'rs, the Oregon Supreme Court stated that
when a licensing statute contains both a broad standard of "unprofessional conduct” that is not fully defined in the statute itself and also authority to make rules for the conduct of the regulated occupation, the legislative purpose is to provide for the further specification of the standard by rules, unless a different understanding is shown.
Megdal v. Oregon State Bd. of Dental Exam’rs, 288 Or. 293, 605 P.2d 273, 283 (1980). In Minn.Stat. § 148.10, subd. 1(e)(9), the Minnesota legislature specifically provided the board with the authority to define by rule other acts that constitute unprofessional conduct. While I agree with the majority that the board has the authority to determine on a case-by-case basis what conduct constitutes unprofessional conduct, it would be much more efficient, effective, and fair for the board to use its rulemaking power, and I would encourage it to take advantage of that power in the future.
. There is also evidence in the record that some chiropractors have been advised in continuing education classes that they can avoid fee-splitting violations by paying their runners a salary, which is the precise conduct that the board held constituted unprofessional conduct. This raises the prospect that relator will be the only one penalized for a practice that may be wide spread in the chiropractic community.