Professional Licensing/ Regulation of Trades

Shenanne Tucker

Shenanne Tucker
Practiced law in
New Hampshire and Maine since 2002,
and currently is
predominantly privately employed working
in insurance.

An appeal from Merrimack County Superior Court No. 2018-0537

Nov. 13, 2019

Affirmed.

  • Whether the trial court erred in finding that plaintiffs’ declaratory judgment claims were, respectively, inconsistent with governing statute and moot.
  • Whether the trial court erred in dismissing plaintiffs’ unconstitutional taking, malicious prosecution, and abuse of process claims.

The plaintiff-business and its principal, certified in water system operation but not plumbing, installed and repaired backflow preventers since 1992. Plaintiffs sued New Hampshire Office of the Fire Marshall, the chief inspector, and a reporting plumber on several counts related to the investigation of its business activities, an order to cease and desist certain activities, and the arrest of an employee who capped a pipe for a customer who did not want a backflow preventer reinstalled. After dismissal of these counts by the trial court, the Plaintiffs appealed.

Rejecting plaintiffs’ arguments, the Court on appeal found that RSA 485:11 and RSA 153:36, IV unambiguously provided an exception only for backflow meters required to be installed by DES. Whereas DES only required backflow meters at the connection to the public water source, the exception was likewise limited. Further, the statute limited permissible work on DES-required backflow meters to “inspection and testing, maintenance, repair or replacement, and installation…” The Court further agreed with the trial court that the completion of the work subject to the cease and desist order rendered the plaintiffs’ remaining declaratory judgment claims moot; and plaintiffs’ request for damages, enhanced damages, and attorney’s fees as a result of the order were not within the scope of a DJ petition.

The Court then turned to Part I, Article 12 of the New Hampshire Constitution to address plaintiffs’ taking claims. Assuming, without deciding, that enforcement of an economic regulation restricting activities previously authorized could constitute a taking, the Court determined that versions of the statute in effect throughout plaintiffs’ business operations had not authorized activities that the 2014 amendment took away. Plaintiffs therefore failed to establish any vested right eroded by the amendment and had no viable takings claim.

Plaintiffs’ malicious prosecution claim failed because the activity for which the plaintiffs’ employee was arrested did not fall into the statutory exception for plumbing licensure. Plaintiffs’ abuse of process claim required an examination into whether the defendants misused the warrant after it was issued. The Court noted that plaintiffs’ complaint may have adequately alleged the first prong of the test, that the defendants had ulterior intentions, but failed to allege that the arrest warrant was used “for an improper purpose to gain ‘a collateral advantage, not properly involved in the proceeding itself[.]’” Plaintiffs thus failed to allege the second prong.

Accordingly, the Court affirmed with one justice concurring specially.

 

Orr & Reno, P.A. of Concord (Jeremy D. Eggleton on the brief and orally), for the plaintiffs.

 

Gordon J. MacDonald, attorney general, with Emily C. Goering, assistant attorney general (on the brief and orally), for the defendants.