Appeal of Dao Nguyen, 168 A.3d 1153

Background

Dao Nguyen held a personal manicurist license (since 1998) and owned Nail Care, a shop licensed by the New Hampshire Board of Barbering, Cosmetology, and Esthetics.
Between April 2013 and October 2015, Board inspector Beulah Green conducted four inspections revealing repeated sanitation violations (unclean foot spas, unsanitized implements, credo blades, improper nail drills) and at times unlicensed employees; fines were assessed after each inspection.
A customer complaint in October 2015 reported unsterilized tools and exposure to blood; a follow-up inspection corroborated violations and Green observed Nguyen seat a client in an unclean foot spa and an unlicensed worker leaving when asked for ID.
The Board initiated disciplinary proceedings (notice of hearing listing both Nguyen’s personal and shop license numbers and including inspection forms) but initially failed to attach the underlying customer complaint or proactively provide Green’s investigatory report.
After a hearing where the Board credited Green over Nguyen, the Board suspended Nguyen’s personal license for five years, revoked the Nail Care shop license, and ordered payment of outstanding fines; the Board later vacated an imposed three-year probation as exceeding statutory limits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Suspension of personal license vs. shop license	Nguyen: Board conflated shop violations with individual duties; no findings she personally breached individual license obligations; due process violated	Board: Nguyen personally committed some violations, worked at the shop, aided/abetted unlicensed practice, and was present for repeated failures	Court: Affirmed suspension of personal license—evidence and inferences supported individual liability and procedural protections were adequate
Finding violation for credo blades (Rule 302.07(g)(4))	Nguyen: Rule prohibits "use" of blades; mere possession should not support violation	Board: Credo blades were stored in pedi-carts and testimony not credible; Board inferred use from evidence	Court: Affirmed—Board rejected Nguyen’s explanation and reasonably found blades were used
Fines and allocation of responsibility	Nguyen: Fines arbitrary and held her responsible for other manicurists’ failures; procedurally unfair	Board: Fines assessed after inspections; petitioner failed to timely contest them before the Board	Court: Issue barred by res judicata as fines could have been challenged earlier; not preserved before Board for this proceeding
Procedural defects in notice and disclosure	Nguyen: Board failed to attach complaint to notice and did not provide investigatory report before hearing; incorrect statutory citations	Board: Errors were harmless; investigatory report need only be "made available" and not automatically delivered without request	Court: Harmless error—notice nonetheless described allegations and complaint was later provided; Rule 217.03 requires availability, not automatic delivery, so no due process violation

Key Cases Cited

State v. Nickles, 144 N.H. 673 (N.H. 2000) (state constitutional due process principles)
Appeal of Mullen, 169 N.H. 392 (N.H. 2016) (two-part procedural due process analysis and balancing test)
Appeal of Plantier, 126 N.H. 500 (N.H. 1985) (license revocation implicates property interest requiring due process)
McIntire v. Lee, 149 N.H. 160 (N.H. 2003) (harmless error standard)
Appeal of Old Dutch Mustard Co., 166 N.H. 501 (N.H. 2014) (regulatory interpretation principles)
State v. Mouser, 168 N.H. 19 (N.H. 2015) (preservation of issues and timing for raising claims)
Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642 (N.H. 1999) (rules on raising issues in motions for reconsideration)
Meier v. Town of Littleton, 154 N.H. 340 (N.H. 2006) (res judicata and ability to challenge administrative actions)