Appeal of Dao Nguyen

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Board of Barbering, Cosmetology, and Esthetics
No. 2016-0365

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

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.

1Credo blades are “short handled devices similar to household razors” that are used “to remove
calluses during pedicures or other foot and skin treatments.” Missouri Division of Professional
Regulation, Board of Cosmetology and Barber Examiners, State Regulators Warn Against Credo
Blades During Pedicures, http://pr.mo..gov/cosbar-pressrelease.asp (last visited July 18, 2017).
Many state licensing boards, including New Hampshire, have banned the use of these blades in
salons. Id.; see also N.H. Admin. R., Bar 302.07(g)(4).

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 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;

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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 (2000). “Because this
issue poses a question of constitutional law, we review it de novo.” Appeal of
Mullen, 169 N.H. 392, 397 (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 (quotation omitted). “We engage in a two-part analysis in
addressing procedural due process claims: first, we determine whether the

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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 that may not be denied without
affording due process. Appeal of Plantier, 126 N.H. 500, 506 (1985). Thus, we
turn to the second part of our analysis, namely, the determination of what level
of process is due. In doing so, we balance three factors: “(1) the private interest
that is affected; (2) the risk of erroneous deprivation of that interest through
the procedure used and the probable value of any additional or substitute
procedural safeguards; and (3) the government’s interest, including the fiscal
and administrative burdens brought about by additional procedural
requirements.” Mullen, 169 N.H. at 397. “The requirements of due process are
flexible and call for such procedural protections as the particular situation
demands.” Id. (quotation omitted).

Although the petitioner’s private property interest in retaining her
personal license is undoubtedly substantial, so is the government’s interest in
protecting the health and safety of customers of nail salons, and there were
ample procedural safeguards to minimize the risk of erroneous deprivation.
Before the Board’s hearing, four inspections were conducted by Green, all of
which found identical, repeated violations of RSA 313-A:22 and Rule 501.02(h).
Although the petitioner was presented with each inspection form, she failed to
correct these violations over a span of roughly forty months. Moreover, she
was given a notice of hearing that included copies of each inspection form and
listed both her shop license and her personal license, and a hearing at which
she was given the opportunity to present her own evidence and to dispute the
Board’s evidence. At the outset of this hearing, the Board identified her by her
personal license number and also by her shop license number.

Moreover, the Board did not err in suspending the petitioner’s personal
license. For one thing, there were multiple instances where the petitioner was
directly responsible for violations of RSA 313-A:22 or Rule 501.02(h): Green
testified that the petitioner told one customer to sit in a chair that she had
previously conceded was dirty. The petitioner also told Green that she would
not clean the foot spas or other equipment in front of customers. During
another inspection, the petitioner “screamed and yelled” at Green, and refused
to sign the inspection form. Furthermore, given the pervasiveness of unclean
tools and implements in Nail Care, as well as the fact that the petitioner
worked as a manicurist at Nail Care, it is reasonable to infer that the petitioner
used those tools at least occasionally. Finally, the Board found that the

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petitioner aided and abetted the practice of employees who were not duly
licensed by hiring them and allowing them to service customers over a multi-
year period.

B

The petitioner next argues that it was an error of law and a violation of
her due process rights to find that she had violated Rule 302.07(g)(4) because
she was only observed possessing blades at Nail Care, rather than using them
on customers.

Rule 302.07(g) states, in relevant part, that “[a] licensee shall not . . .
[u]se a blade to remove any corns, callouses, or skin.” N.H. Admin. R., Bar
302.07(g). The Board found that the petitioner had violated the rule by having
credo blades available; the petitioner seizes upon this language to argue that
she was found to have violated Rule 302.07(g)(4) because she possessed credo
blades. See id. Yet her argument does not accurately reflect the Board’s
conclusion. The Board heard the petitioner’s testimony that she had never
used the credo knives and blades on a client, and that she merely had them
because they had been left by a previous owner and she was unsure how to
dispose of them. The Board specifically stated that it did not find the
petitioner’s testimony to be persuasive, implying that it concluded that credo
blades and knives were actually being used at Nail Care. Furthermore, there
was evidence that the blades were in fact being used; Green testified that the
blades were stored in “pedi-carts,” which are used by Nail Care employees to
hold their tools and supplies while servicing customers. Thus, we find the
petitioner’s argument unconvincing.2

2 The petitioner also claims that the amounts of the fines levied against her violate her due
process rights because she was held responsible for the failure of other manicurists to disinfect
implements and tables, and because the computation of the fine amounts was arbitrary. The
Board contends that this argument is not preserved because the petitioner did not dispute the
fines after the inspections, nor did she raise this issue during the hearing. Rather, she raised this
issue for the first time in her motion for reconsideration. We disagree with the Board’s position
because this issue was not readily apparent at the time of the hearing: the notice of hearing given
to the petitioner did not allege as a ground for discipline her failure to pay prior fines, and the
Board did not mention the fines in the context of its action against the petitioner until it stated, as
part of its sanction, that the petitioner pay prior fines within 90 days. Cf. State v. Mouser, 168
N.H. 19, 28 (2015); Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55
(2000) (party cannot raise an issue for the first time in motion for reconsideration when the issue
was readily apparent at the time the party initially filed for relief). However, the issue is barred on
res judicata grounds because the petitioner could have challenged the fines before the Board (and
appealed to this court) when they were first assessed, but failed to do so. See Meier v. Town of
Littleton, 154 N.H. 340, 342 (2006); N.H. Admin. R., Bar 404.05.

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 C

Finally, the petitioner asserts that the Board disregarded its own
procedures and violated her due process rights by failing to attach the
underlying complaint to the notice of hearing and provide her with Green’s
investigatory report. The petitioner argues further that the Board erred by
failing to accurately specify the legislative authority for the proposed action.
The Board responds that its failure to attach the underlying complaint to the
notice of hearing was harmless error, and that it was not required to
affirmatively provide the investigatory report without a discovery request.

“An error is considered harmless if it is trivial, or formal, or merely
academic, and was not prejudicial to the substantial rights of the party
asserting it.” McIntire v. Lee, 149 N.H. 160, 167 (2003). Here, Rule 206.02
states that the “notice commencing an adjudicatory proceeding shall . . .
[a]ttach any complaint against the licensee that forms, in whole or in part, the
basis of the issues to be resolved.” N.H. Admin. R., Bar 206.02. The Board
admittedly erred by not doing so. However, it did include all of the substantive
points of the complaint in the notice of hearing, as well as the date that the
complaint was received and the complainant’s name. In addition, the Board
sent the petitioner a copy of the complaint as an exhibit two weeks before the
hearing. Considering the totality of these circumstances, we do not believe that
the Board’s failure amounts to an error that is prejudicial to the petitioner’s
rights. See McIntire, 149 N.H. at 167.3

Similarly, we disagree with the petitioner’s claim that the Board violated
Rule 217.03 by failing to provide her with a copy of the investigatory report
prior to the hearing. This claim requires us to engage in regulatory
interpretation. When interpreting regulations, “[w]e first look to the language
of the . . . regulation itself, and, if possible, construe that language according to
its plain and ordinary meaning.” Appeal of Old Dutch Mustard Co., 166 N.H.
501, 506 (2014). When the language of the regulation is clear on its face, its
meaning is not subject to modification. Id. We will neither consider what the
Board might have said nor add words that it did not see fit to include. Id.
Furthermore, we interpret regulations in the context of the overall regulatory
scheme and not in isolation. Id. Our goal is to apply regulations in light of the
Board’s intent in enacting them, and in light of the policy sought to be
advanced by the entire regulatory scheme. Id.

3 Furthermore, we find that the Board’s incorrect citations in the notice of hearing are harmless.
See McIntire, 149 N.H. at 167. Although the petitioner is correct in claiming that the Board
provided slightly incorrect citations of RSA 313-A:22 several times in the notice of hearing by
omitting a “II” entirely or typing it in the wrong part of the citation, the Board did correctly specify
that RSA 313-A:22 was the statute violated. Combined with the specific description of the
violations observed by Green and the customer and the extensive use of various subsection letters
that can only be found in RSA 313-A:22, II, the petitioner could not reasonably have
misunderstood the nature of the violations alleged.

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 Rule 217.03 states only that the investigatory report “shall be made
available.” N.H. Admin. R., Bar 217.03 (f). The definition of “available” is
“[c]apable of use for the accomplishment of a purpose” or something “that is
accessible or may be obtained.” Webster’s Third New International Dictionary
150 (unabridged ed. 2002). Thus, “shall be made available” means that the
Board must make the investigatory report accessible, obtainable, or capable of
being used by the petitioner. N.H. Admin. R., Bar 217.03 (f). Consequently,
there was no affirmative obligation upon the Board to provide the investigatory
report until the petitioner requested it. Furthermore, because the petitioner’s
due process claim is predicated on a finding that the Board acted contrary to
its own procedures, we find that there was no violation of the petitioner’s due
process rights.

III

For the above reasons, we affirm the Board’s decision.

Affirmed.

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

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