The opinion
SCHWAB, C. J.,
dissenting.
As the majority notes, this is an appeal by the petitioner from an order of the Oregon State Board of Dental Examiners revoking petitioner’s license to practice dentistry on the ground that he made knowingly false representations to his malpractice insurance carrier with the intent that the insurance carrier rely upon them.
The petitioner makes three assignments of error. He states them in his brief as:
(1) "The evidence adduced at the hearing was insufficient to sustain the Board’s findings that petitioner was *231 guilty of unprofessional conduct, and its findings are not supported by reliable, probative, and substantial evidence.”
(2) "The sanction imposed, revocation of petitioner’s license to practice dentistry, does not bear a reasonable relation to the unprofessional practices found to have occurred.”
(3) "The statutory phrase 'unprofessional conduct,’ ORS 679.140(l)(c) is so vague and uncertain as to be constitutionally impermissible.”
The majority states that it does not reach the first two assignments of error, 37 Or App at 223. In my judgment it does not reach the third assignment of error either, but, rather, reverses by reaching an issue which is not the basis of any assignment of error and then, in my judgment, by deciding that issue-erroneously.
Since I would affirm the action of the Board of Dental Examiners, I find it necessary to reach the first two assignments of error, albeit little need be said to demonstrate that petitioner cannot prevail on those assignments.
As for the first assignment, it is only necessary to note that we do not review de novo, but, rather, for substantial evidence to support the Board’s findings. For there is evidence that the petitioner’s actions led his insurance company to insure his California employe-dentists at approximately one-quarter the premium that he would have had to pay for California malpractice insurance by creating an inference that his employe-dentists were employed in his Grants Pass, Oregon, office when in fact they were employed in his California office. The letter petitioner sent to his insurance carrier on his Grants Pass letterhead requesting the addition of the California dentists to his policy could reasonably be viewed as an implicit representation that the dentists, who were actually working in California, were employed in his Oregon office. The letter coupled with the obliteration of the office addresses on the application forms covering the *232 California dentists sent by petitioner’s office to the insurance carrier supports a reasonable inference of conduct intended to deceive his insurance carrier.
As for the second assignment of error, it is sufficient to note that this court is not authorized to review the severity of a sanction imposed by an administrative agency.
"* * * If a licensee violates either the statute or the agency rules, then by statute the choice of regulatory remedies is a matter for agency discretion and is not subject to judicial review absent possible constitutional questions. Nation v. Oregon Racing Comm., 21 Or App 685 , 536 P2d 536 (1975); Thoren v. Builders Board, 21 Or App 148 , 533 P2d 1388 (1975); Remodeling Consult, v. Builders Bd., 19 Or App 794 , 528 P2d 1373 (1974), Sup Ct review denied (1975); LaMar’s Enterprises, Inc. v. OLCC, 18 Or App 77 , 524 P2d 336 , Sup Ct review denied (1974).” Mary’s Fine Food, Inc. v. OLCC, 30 Or App 435, 440 , 567 P2d 146 (1977).
Petitioner himself agrees that he cannot prevail upon his third and last assignment of error — that the statutory phrase, "unprofessional conduct,” is so vague and uncertain as to be unconstitutional — unless this court overrules the Oregon Supreme Court. The opening sentences of his argument under this assignment of error are:
"The court should re-examine prior decisions holding the phrase 'unprofessional conduct’ is not unconstitutionally vague. We recognize that the Supreme Court in Board of Medical Examiners v. Mintz, 233 Or 441 , 378 P2d 945 (1963) * * * squarely [holds] the phrase was not impermissibly vague.”
The majority reversed the Board by holding that if the conduct here involved can ever constitute "unprofessional conduct” it must first be clearly proscribed by dental board board rule. In my judgment this holding is contrary to Ward v. Ore. State Bd. of Nursing, 266 Or 128 , 510 P2d 554 , 55 ALR3d (1973); Board of Medical Examiners v. Mintz, 233 Or 441 , 378 P2d 945 (1963); and Hurley v. Board of Dental Exam., 29 Or *233 App 223 , 562 P2d 1229 (1977). The leading case is Mintz . The language of Mintz which I find dispositive is:
"* * * The limits between good and bad professional conduct can never be marked off by a definite line of cleavage. And the variety of forms which unprofessional conduct may take makes it infeasible to attempt to specify in a statute or regulation all of the acts which come within the meaning of the term. The fact that it is impossible to catalogue all of the types of professional misconduct is the very reason for setting up the statutory standard in broad terms and delegating to the board the function of evaluating the conduct in each case * * *.” (Emphasis supplied.) 233 Or at 448 .
The majority apparently would distinguish these cases on the ground that each involved conduct which violated some specific statute in addition to the general unprofessional-conduct statute. I perceive at least two arguments to the contrary. The first is simply that the use of the mails in connection with a scheme to defraud is a federal criminal offense, 18 USC § 1341 (1977), whether or not customarily prosecuted.
Second, I do not think that a professional licensee, having the benefit of an extensive academic as well as professional education, is treated unfairly or unreasonably surprised if he is told that fraudulent misrepresentation in connection with a mátter directly related to his professional activities — a matter which could never have occurred were he not engaged in his profession — constitutes "unprofessional conduct,” even in the absence of further regulatory definition. To me it is passing strange to suggest the contrary in the face of numerous opinions holding every adult, regardless of education, intelligence and sophistication, potentially criminally liable under standards no more specific than "unprofessional conduct.” In State of Oregon v. Wojahn, 204 Or 84 , 282 P2d 675 (1955), the court held that a statute which made it a crime (negligent homicide) to cause death by the driving of a motor vehicle in a "negligent manner” was not unconstitutional for lack of a sufficient standard, stating:
*234 "* * * [T]he standard need not be defined with such precision that those affected by it will never be required to hazard their freedom upon correctly foreseeing the manner in which a matter of degree may be solved by a jury * * * ” 204 Or at 137 .
In State v. Popeil, 216 Or 140, 147 , 337 P2d 303 (1959), the phrase, "by means of force likely to produce great bodily injury” was held not unconstitutionally vague. In City of Portland v. Kreutz, 7 Or App 618 , 492 P2d 824 (1972), this court held that an ordinance making it unlawful to operate a vehicle in a manner that "endangers or would be likely to endanger any person or property was not unconstitutionally vague.”
We have previously stated that the vagueness doctrine requires more specificity in statutes defining crimes than in non-penal statutes. Palen v. State Bd. of Higher Education, 18 Or App 442, 446-47 , 525 P2d 1047 (1974). Yet, if anything, the standard involved here, "unprofessional conduct,” is more precise and more explicit when applied only to a sophisticated group of professionals than the standards of many criminal statutes which are applied to all adults not mentally incompetent. It turns the law topsy-turvy to suggest that rules defining "unprofessional conduct” are essential to give fair warning to a professional licensee on the facts of this case.
For the foregoing reasons I would affirm and therefore respectfully dissent.