{ "id": 3669387, "name": "The NEW MEXICO PETROLEUM MARKETERS ASSOCIATION, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations); The New Mexico Petroleum Marketers Association, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. New Mexico Environmental Improvement Board, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations)", "name_abbreviation": "New Mexico Petroleum Marketers Ass'n v. New Mexico Environmental Improvement Board", "decision_date": "2007-04-02", "docket_number": "Nos. 24,841, 25,420", "first_page": "678", "last_page": "685", "citations": [ { "type": "official", "cite": "141 N.M. 678" }, { "type": "parallel", "cite": "160 P.3d 587" }, { "type": "parallel", "cite": "2007-NMCA-060" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "29 U.S.C. \u00a7 655", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "117 N.M. 41", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552531 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0041-01" ] }, { "cite": "401 P.2d 95", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5370808, 5374101 ], "year": 1965, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0105-01", "/nm/75/0106-01" ] }, { "cite": "75 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374101 ], "year": 1965, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0106-01" ] }, { "cite": "88 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841081 ], "weight": 2, "pin_cites": [ { "page": "207-09" }, { "page": "227-29" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0201-01" ] }, { "cite": "96 L.Ed. 367", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1952, "opinion_index": 0 }, { "cite": "342 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 641157 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/us/342/0337-01" ] }, { "cite": "2005-NMCA-009", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224604 ], "weight": 3, "pin_cites": [ { "page": "\u00b630" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0713-01" ] }, { "cite": "93 N.M. 222", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568751 ], "weight": 2, "pin_cites": [ { "page": "225" }, { "page": "1185" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0222-01" ] }, { "cite": "455 U.S. 489", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306266 ], "weight": 7, "year": 1982, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/us/455/0489-01" ] }, { "cite": "488 U.S. 361", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494660 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "415-16", "parenthetical": "Scalia, J., dissenting" }, { "parenthetical": "Scalia, J., dissenting" }, { "parenthetical": "Scalia, J., dissenting" }, { "parenthetical": "questioning whether the Supreme Court is better equipped than Congress to decide whether the necessities of government justify a particular delegation of policy judgment" } ], "opinion_index": 0, "case_paths": [ "/us/488/0361-01" ] }, { "cite": "101 N.M. 592", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586442 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "593" }, { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0592-01" ] }, { "cite": "462 U.S. 919", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196077 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "986", "parenthetical": "White, J., dissenting" }, { "parenthetical": "White, J., dissenting" }, { "parenthetical": "White, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/462/0919-01" ] }, { "cite": "517 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "134 N.C.App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11142767 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0022-01" ] }, { "cite": "2003-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77202 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0472-01" ] }, { "cite": "122 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322279 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0524-01" ] }, { "cite": "1996-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834366 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0343-01" ] }, { "cite": "182 F.3d 726", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11547590 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/f3d/182/0726-01" ] }, { "cite": "2006-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544636 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0550-01" ] }, { "cite": "29 U.S.C. \u00a7 671", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(d)(1)" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 669", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 654", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 651", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 2000, "pin_cites": [ { "page": "(b)", "parenthetical": "emphasis added" }, { "page": "(b)(1)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1337, "char_count": 26091, "ocr_confidence": 0.691, "pagerank": { "raw": 6.811973642801938e-08, "percentile": 0.4162047671505173 }, "sha256": "1741616e4e21ff11f87123950af7c267c727f18346ec1bb58cd6fe10f4d2c8c7", "simhash": "1:66244441dda6cc74", "word_count": 3980 }, "last_updated": "2023-07-14T21:58:03.770248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN, Chief Judge, and MICHAEL E. VIGIL, Judge." ], "parties": [ "The NEW MEXICO PETROLEUM MARKETERS ASSOCIATION, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations). The New Mexico Petroleum Marketers Association, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. New Mexico Environmental Improvement Board, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations)." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\n{1} This case requires us to consider the validity of regulations adopted by the New Mexico Environmental Improvement Board (EIB) addressing violence against convenience store workers. We hold that the EIB had authority pursuant to the New Mexico Occupational Health and Safety Act (NMOHSA) to adopt regulations to protect convenience store workers from violence in the workplace; that the Legislature\u2019s delegation of the authority to promulgate these regulations to the EIB does not violate the constitutional doctrine of separation of powers; and that the regulatory definitions of \u201cconvenience store\u201d and \u201cconvenience goods\u201d are not unconstitutionally vague. We affirm.\nBACKGROUND\n{2} In 2003, the Legislature passed Joint Memorial 4, directing the EIB\u2019s Occupational Health and Safety Bureau to study the problem of assaults, robberies, and other violent acts against employees at late-night retail establishments. The EIB reviewed federal studies and recommendations and efforts taken in other state and local jurisdictions to reduce or prevent violence in late-night retail establishments. The EIB conducted its own studies and held town hall meetings in Santa Fe, Las Cruces, Roswell, Farmington, Hobbs, Albuquerque, and Taos. The EIB also met with representatives of the convenience store industry. Based on an examination of police reports and records maintained by the New Mexico Department of Labor, the EIB found that between January 1998 and April 2003, convenience stores in New Mexico were the site of \u201c16 reported homicides, 24 rapes, 37 kidnappings, 392 batteries, 1,451 assaults, 467 aggravated assaults, 7 drive-by shootings, [and] 2,633 robberies.\u201d The EIB proposed regulations \u201c[t]o establish standards related to the occupational health and safety of employees in the convenience store industry.\u201d The EIB held a public hearing on the proposed regulations in March 2004. The EIB orally amended the regulations and voted in favor of adopting the regulations. On April 19, 2004, the EIB filed a Statement of Reasons adopting the regulations as amended, with an effective date of June 1, 2004.\n{3} Appellants, New Mexico Petroleum Marketers Association, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Every-Ready Oil Co., Inc., filed a notice of appeal. Appellants asserted that the manner in which the regulations were adopted was procedurally defective; that the regulations were unconstitutionally vague; and, that the EIB lacked statutory authority to enact the regulations.\n{4} While this first appeal was pending, the EIB conducted further hearings. On October 5, 2004, the EIB voted to adopt the amended regulations. On October 19, 2004, the EIB filed a Statement of Reasons adopting the amended regulations. Appellants filed a second notice of appeal. We consolidated the two appeals.\nDISCUSSION\n{5} This appeal is authorized by NMSA 1978, \u00a7 50-9-15 (1999). We are authorized to set aside a regulation of the EIB only if it is found to be:\n(1) arbitrary, capricious or an abuse of discretion;\n(2) not supported by substantial evidence in the record; or\n(3) otherwise not in accordance with law.\nSection 50-9-15(B)(l)-(3). Appellants do not argue that the regulations are not supported by substantial evidence. Appellants have dropped their procedural challenge to the regulations. In these consolidated appeals, Appellants make three substantive arguments: (1) the regulations are not authorized by the NMOHSA; (2) the regulations violate the doctrine of separation of powers; and (3) the regulations are unconstitutionally vague.\n1. Whether the Coverage of the NMOHSA Includes the Hazard of Third-Party Violence Against Employees\n{6} Our Legislature enacted the NMOHSA in 1972. 1972 N.M. Laws ch. 63. The declared purpose of the Legislature in enacting the NMOHSA was \u201cto assure every working man and woman safe and healthful working conditions.\u201d Id. \u00a7 2 (emphasis added). The NMOHSA contains a very broad definition of employee: \u201c\u2018employee\u2019 means an individual who is employed by an employer, but does not include a domestic employee or a volunteer nonsalaried firefighter[.]\u2019\u201d NMSA 1978, \u00a7 50-9-3(B) (1993). The NMOHSA defines \u201c \u2018place of employment\u2019 \u201d as \u201cany place, area or environment in or about which an employee is required or permitted to work[.]\u201d Section 50-9-3(F).\n{7} The Legislature provided that the goal of protecting working men and women would be achieved in part through \u201cthe establishment of occupational health and safety regulations applicable to places of employment in this state[.]\u201d NMSA 1978, \u00a7 50-9-2(A) (1993). The Legislature directed the EIB to promulgate regulations \u201cthat are and will continue to be at least as effective as standards promulgated pursuant to the federal Occupational Safety and Health Act of 1970 to prevent or abate detriment to the health and safety of employees.\u201d NMSA 1978, \u00a7 50-9-7(A) (1993) (emphasis added).\n{8} Appellants argue that Congress, in enacting the federal Occupational Safety and Health Act (OSHA) on which the NMOHSA is patterned, did not intend to address injuries inflicted on workers by the criminal acts of third parties. We disagree. Congress expressly stated that the purpose of OSHA was \u201cto assure so far as possible every working man and woman in the Nation safe and healthful working conditions.\u201d 29 U.S.C. \u00a7 651(b) (2000) (emphasis added). Congress imposed a general duty on each employer to \u201cfurnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.\u201d 29 U.S.C. \u00a7 654(a)(1) (2000). The language employed by Congress is easily broad enough to encompass workplace violence. Nothing in the text of OSHA compels us to hold that as a matter of law third-party violence against employees cannot constitute a \u201crecognized hazard[ ] ... causing or ... likely to cause death or serious physical harm.\u201d Id. We note that Appellants have not cited any reported judicial decision or administrative ruling concluding that third-party violence against employees is excluded as a matter of law from the coverage of OSHA.\n{9} We acknowledge that in 1970, when Congress enacted OSHA, the extent of the hazard of third-party violence against employees may not have been fully recognized. We are not persuaded that Congress intended to limit coverage solely to those safety and health hazards that were identified and understood in 1970 Congress contemplated that the purposes of the federal OSHA would be achieved in part by \u201cstimulat[ing] employers and employees to institute new ... programs providing for safe and healthful working conditions.\u201d 29 U.S.C. \u00a7 651(b)(1) (emphasis added). \u201cCongress specifically included recordkeeping provisions ... to aid in enforcing [OSHA] and in preventing future accidents and illnesses.\u201d Mark A. Rothstein, Occupational Safety and Health Law 234 (4th ed.1998). Congress authorized \u201cresearch, experiments, and demonstrations relating to occupational safety and health, including studies of psychological factors involved, and relating to innovative methods, techniques, and approaches for dealing with occupational safety and health problems.\u201d 29 U.S.C. \u00a7 669(a)(1) (2000). Responsibility for collecting statistics on occupational injuries and illnesses was delegated to the Bureau of Labor Statistics. United States Department of Labor Bureau of Labor Statistics, History of BLS Safety and Health Statistical Programs (October 16, 2001) (discussing the BLS\u2019s role under OSHA), available at http://www.bls.gov/iif/ oshhist.htm. Congress created the National Institute for Occupational Safety and Health and directed it to conduct studies and research to develop criteria for new or improved safety and health standards. 29 U.S.C. \u00a7 671(d)(1) (2000). Workplace violence against employees seems to us to be precisely the type of emerging workplace hazard that the record-keeping and research provisions of OSHA were designed to discover and monitor.\n{10} Appellants assert that OSHA \u201chas neither been interpreted nor applied to confer authority on the responsible federal agency to adopt regulatory measures aimed at preventing crime.\u201d Again we disagree. It is true that the Occupational Safety and Health Administration (the Administration) has not promulgated binding standards addressing workplace violence. However, the Administration has addressed workplace violence by issuing non-binding \u201cRecommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments.\u201d Available at http://www.osha.gov/Publications/osha 3153.htm. Furthermore, the Administration has taken the position that violence in the workplace is a proper subject for regulation under the general duty clause of OSHA. Letter of December 10, 1992, from Roger A. Clark, Director, OSH Administration Directorate of Enforcement Programs, to Mr. John R. Schuller (concluding that \u201c[i]n a workplace where the risk of violence and serious personal injury are significant enough to be \u2018recognized hazards,\u2019 the general duty clause would require the employer to take feasible steps to minimize those risks\u201d) available at http://www.osha.gov/pls/osha web/owadisp.show_doeument?p_table=INTERPRETATE NS & p_id=20951.\n{11} We hold that the plain language of OSHA and the NMOHSA supports the EIB\u2019s interpretation extending the coverage of these statutes to workplace violence. With limited exceptions not at issue in this case, these statutes apply broadly to every worker. To accept Appellants\u2019 interpretation of the federal OSHA and the NMOHSA we would have to read into these statutes limitations on coverage that were not enacted by Congress or our Legislature. We apply statutes according to their plain meaning, unless adherence to the literal meaning would lead to injustice, absurdity, or internal contradiction. T-N-T Taxi, LTD. v. N.M. Pub. Regulation Comm\u2019n, 2006-NMSC-016, \u00b6 5, 139 N.M. 550, 135 P.3d 814. Appellants have not convinced us that adherence to the literal meaning of the broad language employed by Congress and the Legislature would lead to injustice, absurdity, or internal contradiction. Moreover, applying OSHA and the NMOHSA to the emerging problem of workplace violence furthers the remedial purposes of OSHA and the NMOHSA. Universal Constr. Co. v. OSH Review Comm\u2019n, 182 F.3d 726, 729 (10th Cir.1999) (observing that OSHA is \u201cremedial legislation designed to protect employees from workplace dangers, and therefore must be liberally construed\u201d).\n2. Whether the NMOHSA Violates the Doctrine of Separation of Powers\n{12} The doctrine of separation of powers is expressly incorporated by our state Constitution:\nThe powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.\nN.M. Const, art. Ill, \u00a7 1. Although the language of Article III, Section 1 suggests an absolute separation of the three branches, our Supreme Court has stated that \u201cabsolute separation of powers is \u2018neither desirable nor realistic,\u2019 and that the constitutional doctrine of separation of powers permits some overlap of governmental functions.\u201d State ex rel. Taylor v. Johnson, 1998-NMSC-015, \u00b6 23, 125 N.M. 343, 961 P.2d 768 (citation omitted).\n{13} Quoting Madrid v. St. Joseph Hospital, 1996-NMSC-064, \u00b6 13, 122 N.M. 524, 928 P.2d 250, Appellants argue that \u201c[t]he line of permissible legislative delegation is crossed when the delegation gives an administrative agency \u2018the power to determine what the law will be.\u2019 \u201d This statement by our Supreme Court should not be taken entirely literally or read in isolation. Our Supreme Court also has recognized that the Legislature may delegate to an agency the power to \u201cdevelop the necessary policy to respond to unaddressed or unforeseen issues,\u201d City of Albuquerque v. NMPRC, 2003-NMSC-028, \u00b6 16, 134 N.M. 472, 79 P.3d 297; and, that \u201c[w]here an agency has the authority to act, its rules and regulations have the binding effect of statutes,\u201d id. \u00b6 17 (quoting In re A Declaratory Ruling by the N.C. Comm\u2019r of Ins., 134 N.C.App. 22, 517 S.E.2d 134, 140 (1999)) (internal quotation marks omitted). \u201c[I]t has become wholly illogical thus to grant the fact of administrative power and still to deny the name. In Justice White\u2019s words, \u2018There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.\u2019 \u201d Bernard Schwartz, Administrative Law \u00a7 2.1 at 42 (3d ed.1991) (quoting I.N.S. v. Chadha, 462 U.S. 919, 986, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (White, J., dissenting)). \u201cIf legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely.\u201d 1 Richard J. Pierce, Jr., Administrative Law Treatise \u00a7 2.3 at 39 (4th ed.2002).\n{14} The doctrine of separation of powers is satisfied if the Legislature provides a statutory standard, or \u201cintelligible principle\u201d to guide an administrative agency in exercising delegated authority. Rivas v. Bd. of Cosmetologists, 101 N.M. 592, 593, 686 P.2d 934, 935 (1984). We are satisfied that the NMOHSA sets out the requisite intelligible principle in Section 50-9-7(A). Although the Legislature broadly instructs the EIB to promulgate regulations \u201cthat are and will continue to be at least as effective as standards promulgated pursuant to the federal [OSHA] to prevent or abate detriment to the health and safety of employees,\u201d the Legislature expressly requires the EIB to consider:\n(1) character and degree of injury to or interference with the health and safety of employees proposed to be abated or prevented by the regulation;\n(2) technical practicability and economic reasonableness of the regulation and the existence of alternatives to the prevention or abatement of detriment to the health and safety of employees proposed by the regulation; and\n(3) the public interest, including the social and economic effects of work-related accidents, injuries and illnesses.\nSection 50-9-7(A).\nOnce it is conceded, as it must be, that no [law] can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law ..., the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree. As Chief Justice Taft expressed the point ... the limits of delegation \u201cmust be fixed according to ... the ... necessities of the governmental co-ordination.\u201d\nMistretta v. United States, 488 U.S. 361, 415-16, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting) (citation omitted). The determination of the appropriate degree of generality of the standards to be used by an agency in balancing competing policy interests is itself an important policy judgment, committed in the first instance to the Legislature. It is not clear to us that courts are demonstrably better qualified than the Legislature to make such judgments. See id. (questioning whether the Supreme Court is better equipped than Congress to decide whether the necessities of government justify a particular delegation of policy judgment). \u201cDuring the twentieth century, administrative agencies possessing the legislative power to promulgate rules and regulations having the force of law have become commonplace. The law on delegation has moved from the theoretical prohibition against any delegation of legislative power ... to a rule against unrestricted delegations.\u201d Schwartz, supra, at 44. Here, the Legislature has specified the end to be accomplished by the NMOHSA\u2014safe and healthful working conditions; has directed that this end be accomplished in part through the promulgation of regulations; and has provided specific criteria to be considered by the EIB in adopting regulations. This is sufficient to satisfy the doctrine of separation of powers.\n3. Whether the Regulations Defining \u201cConvenience Store\u201d and \u201cConvenience Goods\u201d are Unconstitutionally Vague\n{15} Appellants argue that the following two definitions are unconstitutionally vague:\nD. \u201cConvenience store\u201d means any business that is primarily engaged in the retail sale of convenience goods, or both convenience goods and gasoline, and employs one or more employees during the normal operating hours of the establishment. This term excludes businesses that operate as hotels, taverns, lodging facilities, restaurants, stores that sell prescription drugs, gasoline service stations, grocery stores, supermarkets, businesses that have more than 10,000 square feet of retail floor space, farmer\u2019s markets, roadside stands, on-site farm markets, and other agricultural activities or operations.\nE. \u201cConvenience goods\u201d means articles that are purchased frequently for immediate use in readily accessible stores and with a minimum of effort. This term includes consumable items that are generally limited in quantity and variety, and sold in their original containers. This definition is not intended to exclude convenience stores that sell a small quantity of fresh food or unpackaged products in addition to other convenience goods.\n11.5.6.7(D)(E) NMAC (2004).\nThe definition of \u201cconvenience goods\u201d is the focus of Appellants\u2019 challenge. Appellants challenge the definition of \u201cconvenience store\u201d largely because it incorporates the term \u201cconvenience goods.\u201d\n{16} A court entertaining a pre-enforcement challenge to a regulation that does not implicate constitutionally protected conduct such as the First Amendment right to freedom of expression may sustain a vagueness challenge only if the law \u201cis impermissibly vague in all of its applications.\u201d Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).\n{17} As an initial matter, we address the EIB\u2019s argument that Appellants lack standing to bring a vagueness challenge. The Legislature has provided that \u201c[a]ny person who is or may be affected by a regulation ... may appeal to the court of appeals for further relief.\u201d Section 50-9-15(A). As we understand this provision, an appellant must demonstrate that he or she, personally, \u201cis or may be affected by a regulation.\u201d Thus, Section 50-9-15(A) does not authorize an appellant to appeal on the ground that some other person or class of persons \u201cis or may be affected by a regulation\u201d in a way that does not also affect the appellant. We hold that Appellants do not have standing to advance arguments based on the hypothetical effect of the regulations on the owners and operators of take-out food franchises, small specialty stores, hot dog vendors, ice cream trucks, greeting card stores, and miscellaneous shops located in hotels, office buildings, and airports due to the absence of any showing that Appellants or Appellants\u2019 members are engaged in these businesses.\n{18} \u201cThe vagueness doctrine is based on notice.\u201d State ex rel. Health & Soc. Servs. Dep\u2019t v. Natural Father, 93 N.M. 222, 225, 598 P.2d 1182, 1185 (Ct.App.1979). An agency drafting regulations is not required to write for the benefit of deliberately unsympathetic or wilfully obtuse readers: for purposes of due process, a governmental agency attempting to give notice to members of the public may assume \u201ca hypothetical recipient desirous of actually being informed.\u201d See Cordova v. Taxation & Revenue, Prop. Tax Div., 2005-NMCA-009, \u00b630, 136 N.M. 713, 104 P.3d 1104 (emphasis omitted) (discussing due process requirements as to method of giving notice). The EIB was entitled to assume that it was dealing with persons of ordinary intelligence, who are acquainted with the ordinary usages within their industry. Village of Hoffman Estates, 455 U.S. at 501 n. 18, 102 S.Ct. 1186 (applying a \u2018business person of ordinary intelligence\u2019 standard in judging the vagueness of a village ordinance regulating the sale of drug paraphernalia; observing that the term \u2018roach clip\u2019 has a sufficiently clear meaning within that industry). Moreover, because \u201cfew words possess the precision of mathematical symbols, [and] most [laws] must deal with untold and unforeseen variations in factual situations,\u201d due process demands \u201cno more than a reasonable degree of certainty.\u201d Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952); see also N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 88 N.M. 201, 207-09, 539 P.2d 221, 227-29 (Ct.App.1975) (rejecting claims that \u201csignificant,\u201d \u201cadequate,\u201d \u201cfly proof,\u201d \u201crodent proof,\u201d \u201coffensive odors,\u201d and \u201cunsightliness\u201d were unconstitutionally vague in the context of solid waste regulations).\n{19} We think that the phrase \u201care purchased frequently for immediate use\u201d broadly distinguishes between goods that because of the quantity or the condition in which they are sold commonly are purchased for consumption or initial use within a relatively limited period of time after purchase and goods that commonly are purchased for later consumption or consumption over a period of time. For example, staples sold in large quantities for consumption over a period of time, such as ten pound bags of sugar, full cases of canned pet food, twelve-roll packages of toilet paper, or 250-count bottles of aspirin are not convenience goods, even though these same items may be convenience goods when packaged and sold in smaller quantities (typically at a higher price per unit). Foods such as chilled soda or beer, hot coffee, or sandwiches and breakfast burritos sold at serving temperature are examples of goods that because of the condition in which they are sold commonly are purchased for consumption within a relatively limited period of time after purchase. We think that the phrase \u201cin readily accessible stores\u201d conveys a relatively close physical proximity of the store entrance to off-street parking, sidewalks, and roadways, while the phrase \u201cminimum of effort\u201d helps to convey the ease of shopping in a store that displays a limited selection of goods within a relatively compact floor plan. Read together, the two phrases \u201cin readily accessible stores\u201d and \u201cwith a minimum of effort\u201d encapsulate the \u201cquick in, quick out\u201d experience of shopping in a convenience store.\n{20} The regulatory definitions of convenience store and convenience goods should not be read in isolation. New Mexicans have had many years of experience with convenience stores. \u201cThe requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.\u201d Silver City Consol. Sch. Dist. No. 1 v. Bd. of Regents of N.M. W. Coll., 75 N.M. 106, 111, 401 P.2d 95, 99 (1965). The EIB\u2019s definitions must be understood to supplement, rather than replace, the common understanding of convenience store.\n{21} We are satisfied that there are substantial numbers of businesses that are described with reasonable certainty by the definitions of \u201cconvenience store\u201d and \u201cconvenience goods\u201d as we have construed them. Appellants have failed to demonstrate that these definitions are impermissibly vague in all of their applications. Village of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186. Accordingly, Appellants\u2019 facial vagueness challenge fails.\nCONCLUSION\n{22} We affirm the action of the EIB in adopting regulations to protect convenience store workers, as codified at Title 11, Chapter 5, Part 6, NMAC.\n{23} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN, Chief Judge, and MICHAEL E. VIGIL, Judge.\n. Appellants describe themselves as \"operators of businesses that are or might be classified as convenience stores under the regulations, and their trade organization.\u201d\n. Occupational Safety and Health Act, Pub. Law 91-596 (codified at 29 U.S.C. \u00a7 651 (2000)).\n. See Gutierrez v. Sundancer Indian Jewelry, Inc., 117 N.M. 41, 868 P.2d 1266 (Ct.App.1993) (observing that state OSHA codes are \u201cpatterned after\u201d federal OSHA).\n. Where there were preexisting \"national consensus\u201d or \"established Federal\" safely or health standards, Congress directed the Secretary of Labor \"as soon as practicable\" to promulgate these standards as occupational safety or health standards \"unless he determines that the promulgation of such a standard would not result in improved safety or health.\u201d 29 U.S.C. \u00a7 655(a) (1970).", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Rodey, Dickason, Sloan, Akin & Robb, P.A., Richard C. Minzner, Jocelyn Drennan, Edward Rieco, Albuquerque, NM, for Appellants.", "Gary K. King, Attorney General, Mary H. Smith, Assistant Attorney General, Santa Fe, NM, for Appellee.", "NM Environment Department, Tracy Hughs, General Counsel, Leslie G. Barnhart, Assistant General Counsel, Charles F. Noble, Assistant General Counsel, Santa Fe, NM, for Intervenor-Appellee, New Mexico Environment Department.", "McGinn, Carpenter, Montoya & Love, P.A., Randi McGinn, Allegra Carpenter, Albuquerque, NM, for Amicus Curiae." ], "corrections": "", "head_matter": "2007-NMCA-060\n160 P.3d 587\nThe NEW MEXICO PETROLEUM MARKETERS ASSOCIATION, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations). The New Mexico Petroleum Marketers Association, Indian Capitol Distributing Co., Inc., Hookinson, Inc., and Ever-Ready Oil Co., Inc., Petitioners-Appellants, v. New Mexico Environmental Improvement Board, Respondent-Appellee, In the Matter of Petition for a Public Hearing to Consider Proposed New Regulations in Title II, Chapter 5, Part 6 of the New Mexico Administrative Code (Convenience Store Regulations).\nNos. 24,841, 25,420.\nCourt of Appeals of New Mexico.\nApril 2, 2007.\nRodey, Dickason, Sloan, Akin & Robb, P.A., Richard C. Minzner, Jocelyn Drennan, Edward Rieco, Albuquerque, NM, for Appellants.\nGary K. King, Attorney General, Mary H. Smith, Assistant Attorney General, Santa Fe, NM, for Appellee.\nNM Environment Department, Tracy Hughs, General Counsel, Leslie G. Barnhart, Assistant General Counsel, Charles F. Noble, Assistant General Counsel, Santa Fe, NM, for Intervenor-Appellee, New Mexico Environment Department.\nMcGinn, Carpenter, Montoya & Love, P.A., Randi McGinn, Allegra Carpenter, Albuquerque, NM, for Amicus Curiae." }, "file_name": "0678-01", "first_page_order": 728, "last_page_order": 735 }