Standard of review 

We review an administrative agency's decision in the same 

manner as the district court. Garcia v. Scolari's Food & Drug, 125 Nev. 

48, 56, 200 P.3d 514, 520 (2009). We review questions of law de novo, and 

with regard to factual issues, our review is limited to determining whether 

the agency's decision is supported by substantial evidence. Id. 

NRS 482.362(4) is not unconstitutionally vague 

Schmall first asserts that NRS 482.362(4) is 

unconstitutionally vague. "Statutes are presumed to be valid, and the 

challenger bears the burden of showing that a statute is unconstitutional. 

In order to meet that burden, the challenger must make a clear showing of 

invalidity." Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006) 

(footnotes omitted). It is a violation of due process for a statute to be 

written "'in terms so vague that men of common intelligence must 

necessarily guess at its meaning and differ as to its application. . . 

Nevada Comm'n on Ethics v. Ballard, 120 Nev. 862, 868, 102 P.3d 544, 

548 (2004) (quoting Matter of T.R., 119 Nev. 646, 652, 80 P.3d 1276, 1280 

(2003). Nor may a statute be "'so standardless that it authorizes or 

encourages seriously discriminatory enforcement." Holder v. 

Humanitarian Law Project, 561 U.S. „ 130 S.Ct. 2705, 2718 (2010) 

(quoting United States v. Williams, 553 U.S. 285, 304 (2008)). 

...continued 

233B.135(1)(b) ("Judicial review of a final decision of an agency must 

be. . . [c]onfined to the record."). We conclude this argument is 

unpersuasive, as it is well-settled in Nevada that constitutional issues 

may be raised for the first time on appeal. Desert Chrysler-Plymouth v. 

Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1190-91 (1979). 

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On appeal, Schmall first argues that NRS 482.362(4) invites 

arbitrary application because it does not delineate which gross 

misdemeanors reflect an endangerment to the public at large so as to 

justify suspension or revocation. 

NRS 482.362(4) provides that "a salesperson's license may be 

suspended or revoked upon the following grounds: . . . (c) Conviction of a 

gross misdemeanor. . . . [or] (h) Any reason determined by the Director to 

be in the best interests of the public." NRS 482.362(4)(c), (h). Because the 

Department was within its discretion to revoke Schmall's license based on 

either of the above grounds, Schmall's argument is misplaced as it 

presupposes that a gross misdemeanor must reflect endangerment to the 

public in order to justify suspension. 

Second, Schmall contends that NRS 482.362(4) is 

impermissibly vague because it allows for the revocation of a professional 

license based on reasons unrelated to the license-holder's fitness to 

practice that profession. 

A vagueness determination is necessarily based upon the 

particular facts at issue, because "[a] plaintiff who engages in some 

conduct that is clearly proscribed cannot complain of the vagueness of the 

law as applied to the conduct of others." Hoffman Estates v. Flipside, 

Hoffman Estates, 455 U.S. 489, 495 (1982)). 

Because the gross misdemeanor of impersonating a police 

officer, by its very nature, reflects an endangerment to the public and 

brings this particular conviction well within the scope of either subsection 

(c) or (h), Schmall cannot complain that, as applied to him, NRS 

482.362(4) is written in terms so vague that he had to guess at their 

meaning. The record reflects that Schmall detained an innocent member 

of the public, falsely identified himself as a police officer, asked the driver 

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for confidential information, and apparently catalogued the direction of 

her travel upon release. Not only was Schmall convicted of a gross 

misdemeanor, but the Department concluded that, as a matter of public 

interest, Schmall should not be trusted with confidential personal and 

financial information given his poor judgment and apparent disregard for 

public safety. 

Because the record supports that Schmall engaged in conduct 

clearly proscribed by the statute, his void-for-vagueness argument must 

fail. 3Hoffman, 455 U.S. at 495. 

Substantial evidence supports the Department's decision 

Schmall also asserts that there is insufficient evidence to 

justify the revocation of his license. Substantial evidence is evidence that 

a reasonable mind might accept as adequate to support a conclusion. 

State, Dep't of Mtr. Vehicles v. Becksted, 107 Nev. 456, 458 n.2, 813 P.2d 

995, 996 n.2 (1991). 

In determining whether to revoke Schmall's license pursuant 

to NRS 482.362(4), the Department reviewed the investigator's report of 

Schmall's conviction and conducted an administrative hearing where the 

investigating officer testified that Schmall's actions showed a propensity 

to endanger the public, and that this risk would be exacerbated by 

Schmall's continued access to confidential information. Although Schmall 

3Moreover, Schmall's argument is unpersuasive because the 

Department's decision was directly related to its concern that Schmall was 

unfit to remain in a position with access to confidential information. See 

Laman v. Nevada R. E. Adv. Commission, 95 Nev. 50, 56, 589 P.2d 166, 

170 (1979) (indicating that even general phrases such as "notoriously 

disgraceful personal conduct" and "unprofessional conduct" can provide 

valid bases for discipline if they were interpreted to relate directly to an 

employee's professional fitness). 

4 
, J 

Saitta 

presented evidence that he was a valued employee and that he had never 

accessed confidential information for personal gain, the record supports 

that the Department's decision was based upon evidence that a reasonable 

mind could accept as adequate to support a conclusion. Becksted,107 

Nev. at 458, 813 P.2d at 997; see alsoNRS 233B.135(3) ("The court shall 

not substitute its judgment for that of the agency as to the weight of 

evidence on a question of fact."). Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Gibbons 

Iiimcde sty 

6L/Xck---,Sir 

I'arraguirre 

C.J. 

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cc: Hon. David A. Hardy, District Judge 

Janet L. Chubb, Settlement Judge 

Richard F. Cornell 

Attorney General/DMV/Carson City 

Washoe District Court Clerk 

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