In re Nguyen

170 N.H. 238

168 A.3d 1153

APPEAL OF Dao NGUYEN (New Hampshire Board of Barbering, Cosmetology, and Esthetics)

No. 2016–0365

Supreme Court of New Hampshire.

Submitted: April 19, 2017

Opinion Issued: August 1, 2017

Hastings Malia P.A., of Fryeburg, Maine (Andrew P. Pierce on the brief), for the petitioner.

Joseph A. Foster, attorney general (Thomas Broderick, attorney, on the brief), for the respondent.

LYNN, J.

The petitioner, Dao Nguyen, appeals a decision of the respondent, the New Hampshire Board of Barbering, Cosmetology, and Esthetics (Board), suspending her personal license as a manicurist and revoking the shop license for Nail Care. We affirm.

I

The pertinent facts are as follows. The petitioner was issued a personal license by the Board in 1998. She also held a shop license issued by the Board for her business, Nail Care. In April 2013, Board inspector Beulah Green conducted a routine inspection of Nail Care. See RSA 313–A:21 (2015). Green found numerous violations of the New Hampshire Board of Barbering, Cosmetology, and Esthetics Administrative Rules (Rules), including two foot spas that were not disinfected properly, no record of cleaning for two foot spas, five tables that were not sanitized, numerous implements that were either not sanitized and disinfected properly or not discarded or disposed of properly, multiple "credo" blades,¹ and the use of nail drills that are not manufactured for use on the natural nail (improper nail drills). For these violations, Green imposed a fine of $4,158.

In June 2014, Green conducted a second inspection, and discovered multiple, repeat violations of the Rules, including implements that were either not sanitized or disinfected properly or not discarded or disposed of properly, and the use of improper nail drills. Green also found additional violations of the Rules, including 27 bottles of Methyl Methacrylate monomer (MMA), which is a substance banned for use on a person, one credo blade, and one employee who was working without a New Hampshire license. Furthermore, during the inspection, the petitioner refused to let Green go into a back room, and began "yelling and screaming" at her. As a result, Green could not complete the inspection; she imposed a fine of $14,731 for the violations.

In March 2015, Green conducted a third inspection of Nail Care, and yet again found multiple violations of the Rules, including no records of cleaning for nine foot spas, implements that were either not sanitized or disinfected properly, and multiple credo blades. Green imposed a fine of $1,693.

In October 2015, a customer of Nail Care contacted the Board to report multiple violations of the Rules that he noticed while receiving services earlier in the month. He reported that "none of [the] tools [were] sterilized," and that his blood got "all over" several tools, which were then placed back in a drawer without being cleaned or disinfected.

In response to this complaint, Green conducted a fourth inspection in late October and found numerous violations, including six foot spas that were not disinfected properly, implements that were either not disinfected properly or not discarded properly, and one unlicensed worker. The unlicensed worker, who was performing a pedicure on a client, walked away from Green when she asked him for a license or identification. Green also reported that she witnessed the petitioner accept a client for a pedicure and seat the client in an uncleaned foot spa. When asked to sign the inspection report, the petitioner refused. Green imposed a fine of $1,558 for these violations.

In November, the Board issued a notice of hearing, stating that it was commencing a public disciplinary proceeding to determine whether the petitioner had committed misconduct under RSA 313–A:22 (2015) by failing "to observe the requirements of any rule adopted by the [B]oard." RSA 313–A:22, II(i). However, the Board did not attach either the customer's complaint or Green's investigatory report to the notice of hearing, as required by Rule 206.02. See N.H. Admin. R., Bar 206.02. The hearing was held on December 7, at which both Green and the petitioner testified. The petitioner testified that the credo blades belonged to a previous owner, and that she had never used them. She admitted to keeping the credo knives and blades when Nail Care moved to a different location because she was unsure of how to dispose of them safely, and was reluctant to put the credo blades in the trash. She also stated that the nail drills were not used at Nail Care, and that she refused to sign the inspection form only because she did not read English well. Finally, the petitioner testified that all of her employees were licensed and that the individual who had walked away from Green was her boyfriend. According to the petitioner, her boyfriend was merely chatting with the client, rather than working, and had walked away from Green because he did not speak English.

The Board found Green to be credible and the inspection reports to be accurate, detailed, and professional. The Board found the petitioner's testimony to be "less reliable," and ruled that the petitioner repeatedly violated multiple subsections of RSA 313–A:22 as well as Rules 501.02(e) and (h). See RSA 313–A:22 ; N.H. Admin. R., Bar 501.02. Noting the repeated violations and the "blatant disregard" that the petitioner demonstrated towards the Rules, the Board suspended the petitioner's personal license for five years, revoked her shop license for Nail Care, and ordered her to pay all outstanding fines owed to the Board within 90 days. The Board also ruled that, if the petitioner's license is reinstated, it will be subject to a three-year probationary period.

The petitioner moved to stay and reconsider the Board's order. The Board denied the motion for stay but agreed to reconsider the prior order. In May 2016, the Board reconsidered and voted to vacate part of its order. Specifically, the Board found that the three-year probationary period it had originally imposed violated the statutory maximum discipline allowed, and therefore vacated it. See RSA 313–A:22, III(b). This appeal followed.

II

On appeal, the petitioner argues that the Board erred as a matter of law and violated her procedural due process rights by: (1) suspending her personal license; (2) finding that she violated Rule 302.07(g)(4) by merely possessing credo blades and nail drills, rather than by using them; (3) levying arbitrary fines against her; (4) failing to attach the customer's complaint to the notice of hearing; (5) failing to provide Green's investigatory report prior to the hearing; and (6) ruling that she violated certain statutory requirements that were not included in the notice of hearing. We address these arguments in turn.

RSA chapter 541 governs our review of the Board's decisions. See RSA 313–A:22, IV. RSA 541:13 (2007) states, in relevant part:

[T]he burden of proof shall be upon the party seeking to set aside any order or decision of the [Board] to show that the same is clearly unreasonable or unlawful, and all findings of the [Board] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

Accordingly, we review the Board's factual findings deferentially, and we review the Board's rulings of law de novo. See RSA 541:13.

A

The petitioner first argues that the Board's decision to suspend her personal license in addition to her shop license was in error because it "conflate[d] the violations of Nail Care under its shop license" with the duties arising from her personal license. The petitioner argues that there were no findings that she violated any of the obligations imposed on her as an individual manicurist, or that the violations of Nail Care were her responsibility. Rather, the petitioner asserts that the other manicurists at Nail Care were responsible for most of the violations. The petitioner asserts that this conflation also violated her due process rights under the State Constitution.

The petitioner's due process arguments require us to engage in a procedural due process analysis. Because the petitioner claims only that her due process rights under the State Constitution have been violated, we address her arguments solely under that constitution, using federal authority only to aid in our analysis.

State v. Nickles, 144 N.H. 673, 676, 749 A.2d 290 (2000). "Because this issue poses a question of constitutional law, we review it de novo." Appeal of Mullen, 169 N.H. 392, 397, 149 A.3d 1270 (2016) (quotation omitted).

Part I, Article 15 of the State Constitution provides, in relevant part: "No subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land .... " N.H. CONST. pt. I, art. 15. "Law of the land in this article means due process of law." Mullen, 169 N.H. at 397, 149 A.3d 1270 (quotation omitted). "We engage in a two-part analysis in addressing procedural due process claims: first, we determine whether the individual has an interest that entitles him or her to due process protection; and second, if such an interest exists, we determine what process is due." Id. (quotation omitted). "At its most basic level, the requirement to afford due process forbids the government from denying or thwarting claims of statutory entitlement by a procedure that is fundamentally unfair." Id. "Fundamental fairness requires that government conduct conform to the community's sense of justice, decency and fair play." Id. (quotation omitted).

This court has held that the revocation of a license necessary for one's occupation is a legally protected property right...