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Appeal of Nguyen

Supreme Court of New Hampshire

August 1, 2017

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

          Submitted: April 19, 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 ...


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