dissenting.
I dissent and disagree with the majority’s application of the Administrative Procedures Act, NMSA 1978, Sections 12-8-1 to -25, to the facts of this case. The majority incorrectly determines that the action of the Board was contrary to law and that the repeal of Regulation 106 of the Regulations Governing Cosmetology is invalid.
While it was appellee New’s contention that she had the training and work experience necessary to qualify under Regulation 106 as a licensed cosmetologist, by the time New applied for a license, the Board had properly decided to treat Regulation 106 as a nullity. On the advice of counsel, the Board at its June 1, 1981 meeting determined that Regulation 106 had no legal effect since it exceeded the statutory provisions governing reciprocity provided in NMSA 1978, Section 61-19A-11(A)(3) (Repl. Pamp.1981).
When a regulation provides for broader authority than contemplated by a statute, then the regulation will be treated as a nullity. State v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963). This Court in Ashby, 73 N.M. at 271, 387 P.2d at 590, stated:
A regulation adopted by an administrative agency creating an exemption not contemplated by the act or included within the exemption specified therein is void (citations omitted).
An administrative agency has no power to create a rule or regulation that is not in harmony with the statutory authority. See New Mexico Board of Pharmacy v. New Mexico Board of Osteopathic Medical Examiners, 95 N.M. 780, 626 P.2d 854 (Ct.App.1981). Moreover, it is well settled that if the Legislature has delegated authority to an agency to promulgate rules and regulations within guidelines set by the Legislature and the agency establishes rules which are broader than the guidelines set by the Legislature, then the agency rules must yield to the legislative statute. Family Dental Center of New Mexico, P. C. v. New Mexico Board of Dentistry, 97 N.M. 464, 641 P.2d 495 (1982); Jones v. Employment Services Division, 95 N.M. 97, 619 P.2d 542 (1980).
In the present case, the Board properly determined that Regulation 106 was in conflict with Section 61-19A-11(A)(3). The Board merely acted to withdraw Regulation 106 because the regulation was impermissibly broad in granting reciprocity, when the governing statute was drawn more narrowly. The Board therefore properly treated Regulation 106 as being void or invalid. See Family Dental Center of New Mexico, P. C. v. New Mexico Board of Dentistry.
The Board correctly decided that New could not rely on Regulation 106 to become a licensed New Mexico cosmetologist. Moreover, appellee Rivas was properly found to have employed New illegally, and the subsequent suspension of her owner’s license by the Board should be sustained. Here, the administrative agency properly heard the evidence and reached a decision based upon the facts presented. The district court is obligated to sustain the judgment of the administrative agency because of the particular expertise of the agency, provided the decision is founded upon substantial evidence. See Viking Petroleum, Inc. v. Oil Conservation Commission, 100 N.M. 451, 672 P.2d 280 (1983); Toltec International, Inc. v. Village of Ruidoso, 95 N.M. 82, 619 P.2d 186 (1980).
For the foregoing reasons, the decision of the Board should be sustained, and the decision of the district court should be reversed.