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The State of New Hampshire v. Kevin Guay

March 20, 2013


The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is:

Argued: November 27, 2012

The defendant, Kevin Guay, appeals his convictions in Superior Court (Bornstein, J.) for two counts of unlawful operation of a solid waste facility, RSA 149-M:9, I, :15, III (2005), and one count of unlawful maintenance of a subsurface septic system, RSA 485-A:37 (2001). We affirm.


The following facts are undisputed. At all times relevant to this appeal, the defendant, a land developer and operator of a junk removal business, owned property at 180 Clinton Street and 30 Villanova Drive in Concord. Among those working for the defendant was Paul Vera, who lived in the basement of 180 Clinton Street.

In February 2009, Vera contacted Detective Sean Ford of the Concord Police Department to report hazardous materials buried at 30 Villanova Drive and septic system violations at 180 Clinton Street. After an investigation, and in collaboration with investigators from the New Hampshire Department of Environmental Services (DES), Ford obtained search warrants for both properties. At 30 Villanova Drive, the authorities unearthed, among other items, a 275-gallon home heating oil tank, carpeting, old mattresses, foam insulation, a metal stove, shingles, wiring, a hot tub broken into pieces, and paint cans. At 180 Clinton Street, they found both above-ground items - including mattresses, appliances, chairs, couches, ceiling tiles, a snowmobile, an oil tank, metal debris, and insulation, the majority of which had been exposed to the elements and was not in usable condition - and buried items - including sheet rock and tree stumps.

During the search of 180 Clinton Street, a DES investigator, who is also an expert in subsurface systems compliance, observed liquid on top of the defendant's septic system and a garden hose attached to a sump pump that channeled untreated brown water from the septic tank, bypassing the leach field and discharging liquid in the direction of the Turkey River. The investigator tested samples of the liquid in the hose and the soil beyond it and found fecal contamination.

Based upon this and other evidence, the State charged the defendant with three misdemeanors: (1) unlawful operation of a solid waste facility at 30 Villanova Drive; (2) unlawful operation of a solid waste facility at 180 Clinton Street; and (3) unlawful maintenance of a subsurface septic system at 180 Clinton Street. After a week-long trial, the jury convicted him on all counts.


On appeal, the defendant first argues that RSA 485-A:37 does not allow the State to charge him with a misdemeanor because the exclusive penalty for a violation of that provision is civil forfeiture in accordance with RSA 485-A:43, IV (2001). Resolving this issue requires us to interpret RSA 485-A:37 and the penalty provisions of RSA 485-A:43, I (2001) and IV. We are the final arbiter of the legislature's intent regarding the meaning of a statute considered as a whole, and our review of the trial court's statutory interpretation is de novo.

Ouellette v. Town of Kingston, 157 N.H. 604, 609 (2008). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Finally, we interpret a statute in the context of the overall statutory scheme and not in isolation. State v. Etienne, 163 N.H. 57, 72 (2011).

RSA 485-A:37 provides:

Any person who has installed or otherwise acquired a subsurface sewage or waste disposal system installed in accordance with the provisions of this subdivision is required to operate and maintain said system in such a manner as to prevent a nuisance or potential health hazard due to failure of the system. Failure to so operate and maintain shall be considered a violation of this chapter and shall be subject to the penalty as provided in RSA 485-A:43, IV.

RSA 485-A:43, IV, in turn, states:

Any person neglecting or refusing to comply with the provisions of RSA 485-A:37 shall be subject to a civil forfeiture not to exceed $1,000 for each day of neglect or refusal after notice as provided for in RSA 485-A:37.

Based upon his alleged unlawful maintenance of a septic system under RSA 485-A:37, the defendant was charged with and convicted of a misdemeanor pursuant to RSA 485-A:43, I:

Any person who shall violate any of the provisions of this subdivision or who shall knowingly fail, neglect or refuse to obey any order of the department or member or authorized agent of the department issued under the authority of this subdivision . . . shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.

On appeal, the defendant contends that "[t]he plain language of RSA 485-A:37 specifies that a violation is subject to the penalty provided in RSA485-A:43, IV," and that "[n]othing in the plain language of the statute allows for any additional penalty beyond that stated in RSA 485-A:43, IV." The State, on the other hand, contends that a violation of RSA 485-A:37 is a misdemeanor ...

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