November 9, 2021- New Mexico Boys and Girls Ranch v. New Mexico Board of Pharmacy, No. A-1-CA-38232

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: Court of Appeals of New Mexico
Filed 11/9/2021 9:40 AM

Filing Date: November 9, 2021 /
~~
No. A-1-CA-38232 Mark Reynolds
NEW MEXICO BOYS AND GIRLS RANCH
and EL RANCHITO DE LOS NINOS,

Plaintiffs-Appellees.

v.

NEW MEXICO BOARD OF PHARMACY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
James Lawrence Sanchez, District Judge

Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Reed C. Easterwood
Albuquerque, NM

for Appellees
Hector H. Balderas, Attorney General
Delilah Tenorio, Assistant Attorney General

Santa Fe, NM

for Appellant

OPINION	1
MEDINA, Judge.	2
{1} 	The New Mexico Board of Pharmacy (the Board) appeals the district court’s	3
permanent injunction prohibiting it from enforcing the Pharmacy Act (the Act),	4
NMSA 1978, §§ 61-11-1 to -29 (1969, as amended through 2021)1 and 16.19.17	5
NMAC against New Mexico Boys and Girls Ranch and El Ranchito de Los Ninos	6
(collectively, the Ranches). The Board makes three arguments: (1) the district court	7
lacked subject matter jurisdiction to issue a decision on the Ranches’ complaint and	8
abused its discretion when it issued a permanent injunction against the Board; (2)	9
the Act requires the Ranches to hold a pharmacy license; and (3) the Board acted	10
within the scope of its authority when promulgating the definition of “custodial care	11
facility” at 16.19.11.7(B) NMAC. We affirm, holding that the Act does not apply to	12
community care homes licensed under 8.26.6 NMAC.	13
BACKGROUND	14
{2} 	The parties do not dispute the material facts. The Ranches are facilities that	15
provide full-time care to New Mexico children in need. Both facilities are licensed	16
by the Children, Youth and Families Department (CYFD) as community homes.	17
Prior to 2014, 7.8.3 NMAC governed the Ranches’ CYFD licensure and required	18
them to obtain a pharmacy license from the Board. See 7.8.3.82 NMAC (Regulations	19
1The Act is repealed effective July 1, 2024. Section 61-11-29.

2
Governing Community Homes); 7.8.3.95(B) NMAC (“Facilities providing services	1
which require regular use of controlled and/or prescription medication for the	2
children under care must hold and display an appropriate drug permit as determined	3
by the State Board of Pharmacy.”). In 2014, CYFD issued new regulations for	4
“Community Home Licensing Standards” at 8.26.6 NMAC. See 8.26.6.5 NMAC	5
(providing an effective date of August 29, 2014 for the Community Home Licensing	6
Standards). The new regulations “supersede[d] Sections 82 through 127 of 7.8.3	7
NMAC[,]” including the pharmacy licensure requirement, and became the exclusive	8
standards for licensing community homes. 8.26.6.6 NMAC. Following the adoption	9
of 8.26.6 NMAC, the Ranches did not renew their pharmacy license.	10
{3} 	In 2017, the Board notified the Ranches they needed a pharmacy license to	11
maintain their CYFD licenses because they were considered “custodial care	12
facilities” under both the Act, Section 61-11-2(F), and the Nursing Home Drug	13
Control regulations, 16.19.11.7(B) NMAC. The Act defines a “custodial care	14
facility” as “a nursing home, retirement care, mental care or other facility that	15
provides extended health care[,]” and the Nursing Home Drug Control Regulations,	16
promulgated by the Board, define “Licensed Custodial Care Facility” as “[a]ny	17
facility or business, including non-profit entity which provides care and services on	18
a continuing basis, for two or more in-house residents, not related to the operator,	19

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and which maintains custody of the residents’ drugs.” 16.19.11.7(B) NMAC; see §	1
61-11-2(F).	2
{4} 	The Ranches responded to the Board and explained that they were not required	3
to hold a pharmacy license because they were not custodial care facilities, but rather	4
community homes regulated under 8.26.6 NMAC. The Community Home Licensing	5
Standards defines “[c]ommunity home” as “a facility which operates [twenty-four]	6
hours a day and provides full time care, supervision and support to no more than	7
[sixteen] children in a single residential building, and which meets the definition of	8
‘group home’ as outlined in the Human Services Department Act, NMSA 1978, [§]	9
9-8-13 [(2007)].” 8.26.6.7(D) NMAC. The Human Services Department Act defines	10
a group home, in relevant part, as “any home[,] the principal function of which is to	11
care for a group of children on a twenty-four-hour-a-day residential basis . . . and	12
that is a member of any state or national association that requires it to observe	13
standards comparable to pertinent recognized state or national group home standards	14
for the care of children . . . or that is certified by any such organization as complying	15
with such standards.” Section 9-8-13.	16
{5} 	CYFD then contacted El Ranchito de los Ninos and directed them to comply	17
with the Board’s regulations and obtain a pharmacy license. CYFD indicated that	18
failure to do so would affect El Ranchito de los Ninos’ licensure status as a	19
community home and that its license may be suspended or revoked. In response, the	20

4
Ranches filed a complaint in district court seeking declaratory and injunctive relief	1
to prevent the Act and the Board’s regulations from applying to the Ranches. CYFD	2
did relicense the Ranches between the filing of the complaint and this appeal.	3
However, CYFD noted that the Ranches’ failure to obtain a pharmacy license was a	4
substantial deficiency and that the Ranches were expected to obtain a pharmacy	5
license should the outcome of this case require it.	6
{6} 	The Board denied the Ranches’ assertion that the revised community home	7
licensing standards superseded the Board’s authority to require the Ranches to obtain	8
a pharmacy license. The Board stated that, pursuant to the Act, the Ranches have	9
always been required to obtain a pharmacy license from the Board.	10
Injunction Hearing	11
{7} 	At the hearing on the Ranches’ complaint, the Ranches argued that they are	12
community homes and not one of the facilities defined in the Act. The Ranches noted	13
that requiring them to obtain a pharmacy license would create a duplicate system of	14
oversight, because the community home licensing standards already require the	15
Ranches to conform to certain health and safety standards for administering and	16
storing medication. See 8.26.6.15(K) NMAC (addressing administration and storage	17
of prescription medication at community homes). The Ranches asserted and	18
presented testimony that they do not provide extended health care and, at most,	19

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occasionally administer medication prescribed by an unconnected provider to their	1
residents.	2
{8} 	The Board responded that the Ranches are considered custodial care facilities	3
under the Act regardless of whether the Ranches are also community homes. The	4
Board noted that prescription medication is considered a dangerous drug under the	5
Act and that facilities must be licensed to store and administer dangerous drugs. See	6
§ 61-11-2(G) (“ ‘[D]angerous drug’ means a drug that is required . . . to be dispensed	7
pursuant to a prescription or is restricted to use by licensed practitioners[.]”). The	8
Board argued that because the Ranches store and administer prescription medication,	9
they therefore store dangerous drugs and are required to obtain a pharmacy license.	10
{9} 	The district court determined that, pursuant to the Declaratory Judgment Act	11
(the DJA), NMSA 1978, §§ 44-6-1 to -15 (1975), an actual controversy existed,	12
giving the district court jurisdiction over the Ranches’ complaint. The district court	13
granted declaratory and injunctive relief in the Ranches’ favor, concluding in	14
relevant part that the Ranches “are not required to obtain, possess, or maintain [a	15
license from the Board] to continue in business as a licensed community home”;	16
“[t]he requirement of [a license from the Board] for a custodial care facility is not	17
required by applicable statutory language”; [the Board’s] regulatory requirement of	18
a New Mexico Board of Pharmacy is beyond the legislative authority as stated in	19
[the Act]”; and “[the Ranches] are not required to obtain a [license from the Board]	20

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as a foster care facility, custodial care facility, or to obtain a license under the	1
dangerous drugs regulation . . . 16.19.17 [NMAC]”. This appeal followed.	2
DISCUSSION	3
{10} 	We first address the threshold questions of jurisdiction and injunctive relief.	4
We then turn to the issues of statutory interpretation and regulatory authority.	5
Subject Matter Jurisdiction	6
{11} 	The Board asserts no actual controversy exists and therefore the district court	7
lacked subject matter jurisdiction to issue a decision on the complaint for declaratory	8
judgment and permanent injunction. Jurisdictional issues present a question of law	9
that we review de novo. Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M.	10
786, 171 P.3d 300. Under the DJA, a justiciable controversy is a necessary	11
precondition to invoke a court’s jurisdiction to decide a declaratory judgment action.	12
Am. Fed’n of State, Cnty. & Mun. Emps. v. Bd. of Cnty. Comm’rs of Bernalillo Cnty.,	13
2016-NMSC-017, ¶ 15, 373 P.3d 989. Justiciable controversies exist where the issue	14
raised by the plaintiff is ripe for litigation and the plaintiff has standing. Id. ¶ 17.	15
{12} 	The ripeness requirement “is and always has been to conserve judicial	16
machinery for problems which are real and present or imminent, not to squander it	17
on abstract or hypothetical or remote problems.” Id. ¶ 18 (internal quotation marks	18
and citation omitted). The ripeness analysis normally involves a finding of fitness	19
for 	review 	and 	a 	cognizable 	hardship 	to 	the 	parties 	of 	withholding 	court	20

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consideration. Id. ¶ 19. “Fitness is concerned with whether the claim involves	1
uncertain and contingent events that may not occur as anticipated or may not occur	2
at all.” Id. ¶ 20 (internal quotation marks and citation omitted). “The hallmark of [a]	3
cognizable hardship is usually direct and immediate harm.” Id. ¶ 28 (internal	4
quotation marks and citation omitted).	5
{13} 	“The standing question bears close affinity to questions of ripeness—whether	6
the harm asserted has matured sufficiently to warrant judicial intervention.” Id. ¶ 31	7
(internal quotation marks and citation omitted). To obtain standing in New Mexico,	8
a litigant must allege an injury-in-fact, meaning they are faced with a real risk of	9
future injury due to the challenged action, statute, or regulation. Id. ¶ 32. Here, the	10
ripeness and standing inquiries converge because this case involves pre-enforcement	11
review of an agency’s action and the possibility of future injury. See id. ¶ 31 (“In	12
some cases, the issues of standing and ripeness will completely overlap.” (internal	13
quotation marks and citation omitted)).	14
{14} 	The Board challenges the ripeness of the controversy and the Ranches’	15
standing, asserting the Ranches failed to allege an immediate or imminent harm that	16
would result from the enforcement of the Board’s regulations. The Ranches respond	17
that the letter from CYFD threatening to “suspend or revoke” El Ranchito de Los	18
Ninos’ CYFD license if El Ranchito did not apply for a pharmacy license within	19
thirty days is a direct and imminent harm and an imminently threatened injury.	20

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Additionally, CYFD found the Ranches to be out of compliance with the community	1
home licensing standards in the community home agency licensing report it issued	2
after the Ranches filed their complaint. CYFD noted that the Ranches’ lack of a	3
pharmacy license was a substantial deficiency, meaning that the Ranches are	4
currently out of compliance with 8.26.6 NMAC and are subject to license suspension	5
or revocation. See 8.26.6.7(J) NMAC (defining “[d]eficiency” as “non-compliance	6
with 8.26.6 NMAC” and “[s]ubstantial deficiencies” as “deficiencies that impair the	7
safety, permanency or well-being of a child”); 8.26.6.13 NMAC (describing	8
sanctions, including suspension or revocation of community home license, that may	9
result if CYFD determines “a community home has failed to comply with 8.26.6	10
NMAC”). Therefore, CYFD has made an adverse finding against the Ranches due	11
to noncompliance with the Board’s regulations, threatening the Ranches’ ability to	12
continue operating.	13
{15} 	Based on the foregoing, we agree with the Ranches. The CYFD letter and	14
licensing report demonstrate a direct and imminent harm to the Ranches—sanctions	15
imposed on their CYFD licenses—due to the Board’s regulations, sufficient to	16
establish 	standing. 	See 	8.26.6.13(A) 	NMAC 	(discussing 	sanctions 	against	17
community homes). “[O]nce the party seeking review alleges he himself is among	18
the injured, the extent of the injury can be very slight.” De Vargas Sav. & Loan Ass’n	19
v. Campbell, 1975-NMSC-026, ¶ 12, 87 N.M. 469, 535 P.2d 1320. We conclude that	20

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the Ranches’ complaint was ripe and that the Ranches had standing to pursue relief	1
in court, thereby satisfying the justiciable controversy requirement of the DJA.	2
Declaratory Relief	3
{16} 	The Board also argues that the district court erred in granting the Ranches a	4
permanent injunction. In addition to a declaratory judgment, the district court has	5
discretion to grant injunctive relief. See Hines Corp. v. City of Albuquerque, 1980-	6
NMSC-107, ¶ 13, 95 N.M. 311, 621 P.2d 1116. Injunctions are drastic remedies and	7
should only be issued “where there is a showing of irreparable injury for which there	8
is no adequate and complete remedy at law.” State ex rel. State Highway & Transp.	9
Dep’t of N.M. v. City of Sunland Park, 2000-NMCA-044, ¶ 18, 129 N.M. 151, 3	10
P.3d 128 (internal quotation marks and citation omitted). The injury must be actual	11
and substantial or imminently threatened, and a mere possibility of harm is not	12
sufficient. Id. ¶ 19. We review a grant of equitable relief for abuse of discretion, and	13
will not reverse unless a clear abuse of discretion is shown. Padilla v. Lawrence,	14
1984-NMCA-064, ¶ 22, 101 N.M. 556, 685 P.2d 964.	15
{17} 	Regarding the district court’s grant of equitable relief, the Board argues that	16
the Ranches failed to allege that no adequate or complete remedies were available	17
to them under the law. We disagree. The Ranches’ options outside seeking relief in	18
court were to comply with the Board’s regulations or face sanctions from CYFD.	19
CYFD demonstrated it will issue sanctions if this Court determines community	20

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homes are subject to the Act and the Ranches fail to obtain a pharmacy license. The	1
Ranches are threatened with an imminent injury with unascertainable monetary	2
damages that will not cease until this controversy is decided. See, e.g., Hines Corp.,	3
1980-NMSC-107, ¶ 13 (“In the present case the hardship suffered by [the]	4
defendants 	was 	not 	clearly 	ascertainable. 	Nor 	was 	[the] 	plaintiff’s 	hardship	5
measureable by reasonably certain monetary damages. We therefore cannot say that	6
the court abused its discretion.”).	7
{18} 	We do not believe that the Ranches must wait for CYFD sanctions before they	8
seek relief. Therefore, we next address the propriety of the district court’s granting	9
a declaratory judgment and permanent injunction.	10
Custodial Care Facilities and Community Homes	11
{19} 	The Board’s claim that the district court erred in granting the declaratory	12
judgment and permanent injunction turns in part on whether the Ranches fall within	13
the definition of custodial care facilities under the Act. We therefore interpret	14
custodial care facilities as defined under Section 61-11-2(F). This is a question of	15
law that we review de novo. Baker v. Hedstrom, 2013-NMSC-043, ¶ 10, 309 P.3d	16
1047. Our primary goal when interpreting statutory language is “to give effect to the	17
Legislature’s intent.” Rutherford v. Chaves Cnty., 2003-NMSC-010, ¶ 11, 133 N.M.	18
756, 69 P.3d 1199. When interpreting a statute, we first look to its plain language	19
and give the words their ordinary meaning, unless the Legislature indicates a	20

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different one was intended. Baker, 2013-NMSC-043, ¶ 11 (“We use the plain	1
language of the statute as the primary indicator of legislative intent.” (alterations,	2
internal quotation marks, and citation omitted)). “Under the plain meaning rule,	3
statutes are given effect as written without room for construction unless the language	4
is doubtful, ambiguous, or adherence to the literal use of the words would lead to	5
injustice, absurdity or contradiction, in which case the statute is to be construed	6
according to its obvious purpose.” T-N-T Taxi, Ltd. v. N.M. Pub. Regul. Comm’n,	7
2006-NMSC-016, ¶ 5, 139 N.M. 550, 135 P.3d 814; accord State ex rel. Helman v.	8
Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352.	9
{20} 	The Act defines “custodial care facility” as “a nursing home, retirement care,	10
mental care or other facility that provides extended health care[.]” Section 61-11-	11
2(F). The Board contends the Ranches fall within the definition of a custodial care	12
facility because the Ranches (1) maintain or restore the physical, mental, or	13
emotional well-being of their residents; (2) administer medication to their residents;	14
and (3) maintain a relationship with consultant pharmacists.	15
{21} 	The Ranches contend that extended health care must be construed as similar	16
to the type of care provided in nursing homes, retirement and mental care facilities.	17
The Ranches argue they do not fall under the definition of custodial care facility	18
because they are not similar to the facilities enumerated in Section 61-11-2(F) and	19
do not provide the type of health care provided in those facilities to their residents,	20

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which consists of children without specific health care needs, beyond usual	1
childhood illnesses. Neither the Board nor the Ranches cite to any persuasive	2
authority defining “extended health care,” nor does the Act define “extended health	3
care.” See § 61-11-2 (listing definitions applicable to the Act). Because the Board is	4
the agency charged with enforcing the statute at issue, we begin with examining the	5
Board’s interpretation in the context of the Legislature’s purpose for enacting the	6
Act. See Baker, 2013-NMSC-043, ¶ 15. If the Board’s interpretation leads to an	7
absurd result or conflicts with the Legislature’s purpose, we cannot conclude its	8
interpretation reflects legislative intent. Id.; see also Rutherford, 2003-NMSC-010,	9
¶ 24 (“Statutes are to be read in a way that facilitates their operation and the	10
achievement of their goals.”).	11
{22} 	The Legislature’s stated purpose for enacting the Act is	12
to promote, preserve and protect the public health, safety and welfare	13
by and through the effective control and regulation of the practice of	14
pharmacy, including the licensure of pharmacists and pharmacist	15
interns and registration of pharmacy technicians; the licensure, control	16
and regulation of all sites or persons, in or out of state, who distribute,	17
manufacture or sell drugs or devices used in the dispensing and	18
administration of drugs in New Mexico; and the regulation and control	19
of such other materials as may be used in the diagnosis, treatment and	20
prevention of injury, illness or disease of a patient or other person.	21
Section 	61-11-1.1(B). 	To 	effect 	this 	purpose, 	the 	Legislature 	enacted 	a	22
comprehensive scheme addressing drug dispensation, record keeping, licensing of	23
pharmacists and pharmacies, and created the Board to enforce the provisions of the	24

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Act. Section 61-11-6(A); see generally §§ 61-11-1 to -29. The Board’s numerous	1
powers all pertain to the practice of pharmacy and the licensure of individuals and	2
facilities engaged in this practice. See generally § 61-11-6 (listing the duties and	3
powers of the Board). The Act defines the “practice of pharmacy” as	4
the evaluation and implementation of a lawful order of a licensed	5
practitioner; the dispensing of prescriptions; the participation in drug	6
and device selection or drug administration that has been ordered by a	7
licensed practitioner, drug regimen reviews and drug or drug-related	8
research; the administering or prescribing of dangerous drug therapy;	9
the provision of patient counseling and pharmaceutical care; the	10
responsibility for compounding and labeling of drugs and devices; the	11
proper and safe storage of drugs and devices; and the maintenance of	12
proper records.	13
Section 61-11-2(CC).	14
{23} 	The Board argues that because the Ranches store prescription medication,	15
maintain records of this medication, and administer this medication to their	16
residents, the Ranches are engaged in the practice of pharmacy and must be licensed	17
by the Board. However, “all provisions of a statute, together with other statutes in	18
pari materia, must be read together to ascertain the legislative intent.” N.M. Bd. of	19
Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 13, 142 N.M. 248, 164 P.3d 947	20
(internal quotation marks and citation omitted). Therefore, we consider Section 61-	21
11-2(CC) and the Board’s assertion in the context of the Act as a whole. See High	22
Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M.	23
413, 970 P.2d 599 (“[W]here several sections of a statute are involved, they must be	24

14
read together so that all parts are given effect.”). If the Act’s purpose is effective	1
control and regulation of pharmacists and pharmacies, facilities that manufacture or	2
distribute drugs, and other like facilities and materials that address diagnosis and	3
treatment of injury and illness, then the Ranches’ storage and administration of	4
prescription medication and related record keeping only qualifies as the practice of	5
pharmacy if the Ranches are, as the Board argues, custodial care facilities. See § 61-	6
11-1.1(B) (stating the purpose of the Act). We are not persuaded by the Board’s	7
arguments.	8
{24} 	First, children are not placed with the Ranches for health care purposes. See	9
§ 9-8-13 (defining “group home” as any home in which “the principal function of	10
which is to care for a group of children on a twenty-four-hour-a-day residential	11
basis”); 8.26.6.7(D) NMAC (defining “[c]ommunity home” as “a facility which	12
operates [twenty-four] hours a day and provides full time care, supervision and	13
support to no more than [sixteen] children in a single residential building, and which	14
meets the definition of ‘group home’ as outlined in . . . [Section] 9-8-13”). Second,	15
the Ranches do not provide medical care. Whenever a resident needs care, the	16
Ranches’ staff takes the resident off site to see a medical professional. Third, the	17
Ranches do not retain nurses or doctors on staff. Any prescription medication located	18
on site has been prescribed by an unconnected medical professional, and the	19
Ranches’ staff follow that professional’s instructions when giving that medication	20

15
to their residents as anyone caring for a child would. Fourth, and of particular	1
pertinence to our analysis, the primary purpose of community homes is to care for	2
children’s basic needs, not provide them with extended health care or prescribe them	3
medications. See § 9-8-13. To the extent children have needs for prescription	4
medication, such needs are secondary to the primary purpose of their placement and	5
care at the Ranches.	6
{25} 	We follow the doctrine of ejusdem generis 	when interpreting statutes,	7
meaning “where general words follow an enumeration of persons or things of a	8
particular and specific meaning, the general words are not construed in their widest	9
extent but are instead construed as applying to persons or things of the same kind or	10
class as those specifically mentioned.” State v. Off. of Pub. Def. ex rel. Muqqddin,	11
2012-NMSC-029, ¶ 29, 285 P.3d 622 (internal quotation marks and citation	12
omitted). A “custodial care facility” is “a nursing home, retirement care, mental care	13
or other facility that provides extended health care[.]” Section 61-11-2(F) (emphasis	14
added). The Board’s interpretation of “other facility that provides extended health	15
care” to include the Ranches does not logically comport with or bear significant	16
similarity to the other facilities in Section 61-11-2(F).	17
{26} 	If we take the Board’s interpretation to its conclusion, “other facility that	18
provides extended health care” includes any facility that provides ongoing care for	19
individuals that take medication. Id. We will not parse the Legislature’s words in the	20

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literal and mechanical manner that the Board proposes. See Baker, 2013-NMSC-	1
043, ¶ 30 (“We will not rest our conclusions upon the plain meaning of the language	2
if the intention of the Legislature suggests a meaning different from that suggested	3
by the literal language of the law.” (alteration, internal quotation marks, and citation	4
omitted)). We conclude that community homes are not facilities that provide	5
extended health care and therefore are not custodial care facilities as defined in	6
Section 61-11-2(F).	7
{27} 	Having determined that community homes are not custodial care facilities, we	8
return to the Board’s argument that the Ranches are engaged in the practice of	9
pharmacy because they store prescription medication on site and keep records of	10
such medication. The Board contends that the Ranches must obtain a pharmacy	11
license because the Board must provide for the licensing of “all places where	12
dangerous drugs are stored, distributed, dispensed or administered[,]” and the	13
Ranches store and administer dangerous drugs—prescription medication. Section	14
61-11-6(A)(6); see also § 61-11-2(G) (defining “dangerous drug”).	15
{28} 	The Board’s interpretation separates one provision from the statute as a whole.	16
Reading Section 61-11-6(A)(6) in its entirety, the Act directs the Board to license	17
pharmacies, drug distributors, drug manufacturers, health clinics, and other facilities	18
of a similar character. See § 61-11-6(A)(6) (directing the Board to “provide for the	19
licensing of retail pharmacies, nonresident pharmacies, wholesale drug distributors,	20

17
drug manufacturers, hospital pharmacies, nursing home drug facilities, industrial and	1
public health clinics and all places where dangerous drugs are stored, distributed,	2
dispensed or administered”). The Ranches are not one of the facilities the Board	3
must license, and appear to be dissimilar from such facilities based upon the distinct	4
purpose of the Ranches, which are primarily purposed to provide safe care and not	5
medical or health care.	6
{29} 	Additionally, we agree with the Ranches that CYFD already oversees the	7
Ranches’ use and storage of prescription medication. When CYFD enacted the	8
community home licensing standards in 2014, it created a health and safety checklist	9
that governs community homes. 8.26.6.15 NMAC. This checklist addresses a variety	10
of 	health 	and 	safety 	considerations, 	including 	medical 	care 	and 	medication	11
administration. 8.26.6.15(J), (K) NMAC. CYFD requires community homes to	12
obtain timely medical care for their residents, to only administer medication as	13
prescribed and directed by a medical professional, and to store medications	14
separately from food and cleaning agents in a location not easily accessed by	15
children. Id. Before a community home receives a license, CYFD must verify that	16
the facility complies with 8.26.6 NMAC and issue written approval. 8.26.6.10(A)	17
NMAC; 8.26.6.11 NMAC. Further, a community home’s license cannot be renewed	18
without 	CYFD 	on-site 	review. 	8.26.6.11 	NMAC; 	8.26.6.12(B) 	NMAC. 	A	19
community home license has a minimum duration of six months and a maximum	20

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duration of two years, with a standard license lasting for one year. 8.26.6.10(A)-(C)	1
NMAC. Thus, CYFD regularly reviews the Ranches and other community homes,	2
at most every six months and at least every two years, to ensure they properly handle	3
medication and will not issue or renew a license without doing so. 8.26.6.10(A)-(C)	4
NMAC; 8.26.6.12(B) NMAC.	5
{30} 	In light of the Act’s purpose—the effective control and regulation of the	6
practice of pharmacy—and the Board’s duties, we hold the Legislature did not intend	7
the Act to apply to all facilities that provide care for individuals for an extended	8
period of time, regardless of whether those facilities practice pharmacy. See § 61-	9
11-1.1(B) (stating the purpose of the Act). We affirm the decision of the district court	10
and hold that community homes are not required to obtain a pharmacy license to	11
operate.	12
The Board’s Authority to Define “Custodial Care Facility”	13
{31} 	Finally, we address the Board’s authority to define “custodial care facility” as	14
it has done at 16.19.11.7(B) NMAC. The statutory interpretation of the agency	15
charged with administering the statute is persuasive, but not binding. N.M. Pharm.	16
Ass’n v. State, 1987-NMSC-054, ¶ 6, 106 N.M. 73, 738 P.2d 1318. We may	17
substitute our own independent judgment for that of the agency because it is the	18
function of the courts to interpret the law. Morningstar Water Users Ass’n v. N.M.	19
Pub. Util. Comm’n, 1995-NMSC-062, ¶ 11, 120 N.M. 579, 904 P.2d 28. “We must	20

19
examine [the agency’s] interpretation in the context of the statute as a whole,	1
including the purposes and consequences of the [statute].” Baker, 2013-NMSC-043,	2
¶ 15. “[We] will overturn a clearly incorrect administrative interpretation.” N.M.	3
Pharm. Ass’n, 1987-NMSC-054, ¶ 6.	4
{32} 	The Legislature authorized the Board to adopt rules and regulations for the	5
purposes of carrying out the Act, including the ability to define and limit classes of	6
licenses. Sections 61-11-6(A), -14(B). This includes licenses for custodial care	7
facilities, which, as discussed, are statutorily defined as “nursing home[s], retirement	8
care, 	mental 	care 	or 	other 	facilit[ies] 	that 	provide[] 	extended 	health 	care.”	9
Section 61-11-2(F). The Board’s regulations define “custodial care facility” 2 as	10
“[a]ny facility or business, including non-profit entity which provides care and	11
services on a continuing basis, for two or more in-house residents, not related to the	12
operator, and which maintains custody of the residents’ drugs.” 16.19.11.7(B)	13
NMAC. In effect, the Board attempts to expand the definition of “custodial care	14
facility” beyond what was intended by the Legislature.	15
{33} 	The Board argues that adopting this definition falls within its express statutory	16
authority to define license classifications. However, the Act authorizes the Board to	17
“define[] 	and 	limit[],” 	not 	to 	impermissibly 	broaden 	or 	rewrite, 	an 	existing	18
2 We note that the Board has specifically defined “licensed custodial care
facility,” 	but 	this 	addition 	does 	not 	affect 	our 	analysis 	and 	decision. 	See
16.19.11.7(B) NMAC.

20
definition. Section 61-11-14(B). The Legislature clearly defined “custodial care	1
facility” in Section 61-11-2(F), and the Board’s administrative rule must yield to that	2
definition. See Family Dental Ctr. of N.M., P.C. v. N.M. Bd. of Dentistry, 1982-	3
NMSC-020, ¶ 9, 97 N.M. 464, 641 P.2d 495 (“If an agency, to whom the Legislature	4
has delegated authority to promulgate rules and regulations within the guidelines set	5
by the Legislature, promulgates rules which are broader than the guidelines set by	6
the Legislature, the agency rules must yield to the guidelines.”). We hold that the	7
Board acted outside its statutory authority in defining “custodial care facility” in	8
16.19.11.7(B) NMAC in a manner that excessively expanded upon the Act’s	9
provisions, and that the Board’s definition is therefore void.	10
CONCLUSION	11
{34} 	We hold that the district court had subject matter jurisdiction over this case	12
and that it did not abuse its discretion in granting the Ranches a declaratory judgment	13
and permanent injunction. We also hold community homes are not custodial care	14
facilities as defined at Section 61-11-2(F) of the Act. Finally, we hold the Board	15
exceeded its regulatory authority when it expanded the definition of “custodial care	16
facility” in 16.19.11.7(B) NMAC. For the foregoing reasons, the decision of the	17
district court is affirmed.	18
{35} 	IT IS SO ORDERED.	19
_________________________________	20
JACQUELINE R. MEDINA, Judge	21

1
WE CONCUR:
e. MinDin
J. MILES HANISEE, Chief Judge
Kristina Bogardus
KRISTINA BOGARDUS, Judge
21
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