2022-0087, Granite State Trade School, LLC v. New Hampshire Mechanical Licensing Board & a.

school providing fuel gas fitting training courses and licensing exams in New The following facts are supported by the record. GSTS is a gas training

(Board). We affirm. dismiss filed by the defendant, the New Hampshire Mechanical Licensing Board appeals an order of the Superior Court (Kissinger, J.) granting the motion to M AC DONALD, C.J. The plaintiff, Granite State Trade School, LLC (GSTS),

and orally), for the defendant. general (Nathan W. Kenison - Marvin, assistant attorney general, on the brief John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

orally), for the plaintiff. McGrath Law Firm, PA, of Concord (Daniel J. Corley on the brief and

NEW HAMPSHIRE MECHA NICAL LICENSING BOAR D & a.

No. 2022 - 0087 Mer rimack

https://www.courts.nh.gov/our - courts/supreme - court. release. The direct address of the court’s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by email at the following address: reporter@courts.state.nh.u s. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

whether the allegations in the plaintiff’s pleadings are reasonably susceptible of In reviewing a trial court’s grant of a motion to dismiss, we consider

confidential testing and technology materials warrant injunctive relief.” burdensome”; and (5) the Board’s audit request and its “retention of pursuant to an audit request; (4) the audit requirements are “overly because GSTS was never previously required to submit confidential materia ls and 610 for th e Board to d iscontinue GSTS’s training or examination pr ogram “arbitrary and capricious as applied to” GSTS; (3) it is contrary to Saf - Mec 308 teaching materials as ‘grandfathered’”; ( p. 2 2) Saf - Mec Rules 308 and 610 are “exempt from the audit requirement s to provide confidential testing and On appeal, GSTS raises five issues, including whether: (1) GSTS is

GSTS’s motion for reconsideration. This appeal followed. the court declined to issue an injunction. The trial court subsequently denied injunctive relief was premised on the success of it s claim for declaratory relief, “outweigh[ed] the protection of any such right.” Given that GSTS’s claim for “the public benefit enjoyed by” the audit requirement in Saf - Mec 610 pro tect its materials from the Board,” the trial court found that, on balance, In addition, after a ssuming without deciding that GSTS “has a right to

dismissed GSTS’s claim that Saf - Mec 308 is arbitrary and capricious. valid exercise of the state’s police power and not arbitrary or capricious” and with the regulatory scheme. The trial court also ruled that Saf - M ec 610 “is a “relieve prior approved programs from their continuing obligations” to comply meaning of the language contained in Rules Saf - M ec 308 and 610 does not court granted the Board’ s motion. T he court ruled that the plain and ordinary “rest on an erroneous interpretation of law.” Following a hearing, the trial The Board moved to dismiss on grounds that GSTS ’s claims for relief

training program; and (3) declining to accept certification from GSTS. production of proprietary materials created by GSTS; ( p. 2 2) termi nating its “overburdensome.” GSTS sought to enjoin the Board from: (1) requiring the security of the program education materials, and exams,” and are “arbitrary and capr icious” because the rules fail to protect the “integrity and Alternatively, GSTS asked the trial court to f ind Rules Saf - Mec 308 and 610 the audit request because its programs predate the current regulations. “GSTS training and t esting is grandfathered and exempt from compliance” with Saf - Mec 610.02. In response, GSTS brought suit seeking a declaration that curriculum, instructor information, and exam materials. See N.H. Admin. R., In 2020, the Board directed GSTS to su bmit to an audit by producing it s

the adoption of the current gas fitting regulatory fra mework. Hampshire since p. 2 2007. GSTS was approved as a gas training school prior to p. 3 3

(quotations omitted)). detract from, or modify the statute which they are intended to implement” effectuate the purpose of the statute,” so long as those rules do not “add to, delegates, boards have the authority to promulgate rules “to fill in the details to 610. See Appeal of Mays, 161 N.H. 470, 47 p. 3 3 (2011) (if the legislature so this statutory authority, the Board adopted the rules set forth in Saf - Mec 101 issuan ce of” fuel gas fitter licenses, RSA 153:29, I (Supp. 2022). Pursuant to 153:28, I(b) (Supp. 2022), and “the nature of the examinations required for “[s]tandards for license renewal and co ntinuing education requirements,” RSA 153:28, I(a) (1) - (4) (Supp. 2022). The Board must also adopt rules establishing setting, and testing for applicants for initial licensure” for fuel gas fitters. RSA or its equivale nt, field experience or its equivalent in an approved educational Such rules “shall include . . . [s]tandards regarding requirements for education educational programs and providers.” RSA 153:27 - a, II (a) - (c) (Supp. 2022). rules,” “[i] mplement the licensing program,” and “[r] eview and approve In accordance with RSA chapter 153, t he B oard is required to “[a] dopt

be construed liberally.” RSA 15 p. 3 3:25 (2014). for the public safety, health, peace and welfare, is remedial in nature, and shall (Supp. 2022). The legislature has declared that RSA chapter 153 “is necessary The Board was e stablished pursuant to RSA chapter 153. RSA 153:27 - a

agency did not see fit to include. Id. consider what the administrative agency might have said or add language the results. Girard v. Town of Plymouth, 172 N.H. 576, 582 (2019). We will not together to effectuate its overall purposes and to avoid absurd or unjust Police, 171 N.H. at 267. We construe all parts of a statute or regulation looking at the rule or statutory sche me as a who le. Appeal of N.H. Div. of State regulations). We ascribe the plain and ordinary meanings to the words used, same principles of construction when interpreting both statutes and (2018); Appeal of Old Dutch Mustard Co., 166 N.H. 501, 506 (2014) (we use the rules de novo. See Appeal of N.H. Div. of State Police, 171 N.H. 26 2, 26 6 We review the trial court’s interpretations of statutes and administrative

facts pleaded do not constitute a basis for legal relief. Id. law. Id. We will uphold the trial court’s grant of a motion to dismiss if the threshold inquiry that tests the facts in the complaint against the applicable pleadings that are merely conclusions of law. Id. We then engage in a Id. However, we need not assume the truth of statements in the plaintiff’s construe all reasonable inferences in the light most favorable to the plaintiff. 171 N.H. 6 p. 3 39, 6 p. 4 45 (2019). We assume the plaintiff’s pleadings to be true and a constr uction that would permit recovery. Clark v. N.H. Dep’t of Emp’t Sec., 4

circumstances, “the mere existence of the new rules does not extinguish a the state before the [current] rules came into effect” and that, under those 308.03(c) “relates to the scenario where a training program was approved by We agree with the trial court that under its plain language, Saf - Mec

preexists the regulations.” is grandfathered and exempt from compliance of the audit request . . . as it approved long before the Saf - Mec rules were adopted,” its “training and testing these rules.” N.H. Admin. R., 308.03(c). According to GSTS, because it “was any training or examination program approved prior to the effective date of “[t]he passage of these rules shall not be deemed to discontinue the approval of complying with the Boa rd’s administrative rules. Saf - Mec 308.03 provides that Relying on Saf - Mec 308.03, GSTS asse r ts that it is “grandfathered” from

N.H. Admin. R., Saf - Mec 610.02.

for evaluation. (h) Any additional supporting materials requested by the board course(s) offered by the educational provider; and power point presentations that apply to licensing or certification (g) Copies of student handbooks, educational materials, and and/or training institution; and procedures for students while in attendance of the course (f) Copies of intake application forms along with any policies course instructor; (e) A list of exam proctors who are independent from the questions used for licensure or certification; (d) Copies of tests, quizzes, and exams inc luding any and all for licensure or certification; progression, and how the course complies with the adopted rules (c) The course outlines including subject matter, order of the subject matter; (b) A list of the educators, inc luding their credentials to teach institution; (a) A list of the courses and programs offered by the

includes: two years thereafter. N.H. Admin. R., Saf - Mec 610.02. That information program must submit specified information to the Board for evaluation every Board, such licensing and cer tification training institution and /or testing program for licensure and/or a testing program has received approval from the programs are set forth in Saf - Mec 308.02. Once an applicant for a training a re set forth in Saf - Mec 308.01, and the approval requirements for new testing As pertinent here, the approval requirements for new training programs p. 5 5

RSA chapter 91 - A, the question whether that statute would apply to GSTS’s powers of government”). However, in the absence of a present request under deduction of the required separation of the legislative, executive and ju dicial (“q uestions of law belong to the judiciary for final determination, as a necessary law); C loutier v. State Milk Control Board, 92 N.H. 199, 201 - 02 (1942) (interpretation of the Right - to - Know Law, RSA ch. 91 - A, presents a question of See 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 6 p. 5 56, 660 (2012) request made under RSA chapter 91 - A lie s with the judiciary, not the Board. authority to make a final determination whether its records are subject to a under RSA 91 - A”). Despite the Boar d’s representation, w e note that t he available upon request those records which are subject to public inspection office staff shall be the custodian of the board’s records, and shall make view,” citing Saf - Mec 104.02(a) (providing that the Board’s “administrative inspection, there is no statute or rule that protects the materials from public proprietary teaching and testing materials are not subject to ‘the right to k now’ GSTS asserts that “[c]ontrary to the Board’s representation that the

Admin. R., Saf - Mec 214.01, regarding how the Board review s the materials. the Board to “adopt, amend, or repeal a rule,” RSA p. 5 541 - A:4, I (2021); N.H. educational materials and exams. T he proper remedy is for GSTS to petition to the B oard and that doing so jeopardizes “the integrity and security” of the crux of GSTS’s complaint is that it has to surrender its “proprietary materials” limited number of times they meet.” Rather, as we construe its argument, the reasonable need to review t he materials in a convenient manner due to [the] 161 N.H. at 473. Indeed, it concedes that “the Board has a legitimate rulemaking authority by promulgating Saf - Mec 610.02. See Appeal of Mays, RSA 153:27 - a,:28,:29. GSTS does not assert that the Board exceeded its promulgate rules necessary for the proper execution of RSA chapter 153. See capricious.” We disagree. The legislature delegated to the Board the power to Alternatively, GSTS argues that Saf - Mec 610 is “arbitrary and

and codes.” regardless of whether they are consistent with then - current industry standards shield[]” GSTS’s training and testing programs “from any regulatory oversight fitters.” As the Board argues, it would be an absurd result to “effectively. . . be kept up to rigorous standar ds to protect the public from untrained fuel gas advanced by the regulatory scheme, i.e. that licensees and education programs with Saf - Mec p. 6 610 would be “inconsistent with the broader policy sought to be include.” In addition, as the trial court found, exempting GSTS from complying 610.02 “would add language to the rule that the B oard did not see fit to prior approved programs from their continuing obligation s under Saf - Mec w e also agree with the trial court that reading S af - Mec 308.03(c) to exempt 300, it need not reapply to obtain approval as a gas training school. However, training school prior to the effective date of the rules set forth in Saf - Mec part training program’s prior app roval.” Because GSTS was approved as a gas 6

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Vogel v. Vogel, 137 N.H. 321, 322 (1993). and determine that they lack merit and do not warrant further discussion. S ee Board’s motion to dismiss. We have reviewed GSTS’s remaining arguments Clark, 171 N.H. at p. 6 645. Accordingly, we affirm the trial court’s grant of the not reasonably susceptible of a construction that would permit recovery. See We hold that, as a matter of law, the allegations in GSTS’s pleadings are

p. 6 610.02. the Board has the authority to obtain the materials set forth in Saf - Mec materials is not before us for determination. Nonetheless, as discussed above,