N.H. Dep't of Health & Human Servs. v. Bonser

• Decision Date: 12 November 2003
• Docket Number: No. 2003–065.,2003–065.
• Citation: 836 A.2d 761,150 N.H. 250
• Parties: NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, v. Terry L. BONSER & a.
• Court: New Hampshire Supreme Court

150 N.H. 250

836 A.2d 761

NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES,

v.Terry L. BONSER & a.

No. 2003–065.

Supreme Court of New Hampshire.

Submitted: Oct. 21, 2003.

Opinion Issued: Nov. 12, 2003.

Peter W. Heed, attorney general (Mary P. Castelli, senior assistant attorney general, on the brief), for the State.

Terry L. Bonser and Mary L. Bonser, by brief, pro se.

DUGGAN, J.

The New Hampshire Department of Health and Human Services (department) successfully petitioned the Superior Court (Fitzgerald , J.) to enjoin the defendants, Terry and Mary Bonser, proprietors of Cedar Waters Village (CWV), from operating two unlicensed food service establishments. See RSA 143–A:11 (1996). The Bonsers appeal. We affirm.

The Bonsers operate CWV, a nudist park in Nottingham, which is open daily from May 15 through September 15. Visitors to CWV include both members and non-members. CWV offers daily and seasonal rates for lot, cottage and campsite rentals as well as a variety of activities including sunbathing, swimming, windsurfing, tennis, horseshoes and fishing.

CWV has two unlicensed food service facilities. The first is a restaurant that serves breakfast for two hours on Saturdays and Sundays. The other is a snack booth that serves sandwiches and snacks, and is open for five hours on Saturdays and Sundays throughout the four-month season.

On September 14, 1999, the department ordered the Bonsers to cease operation of their unlicensed food service establishments. When the Bonsers refused to comply with the order, the department filed a petition for a preliminary and permanent injunction. After a hearing, the superior court granted the petition and denied the Bonsers' motion to reconsider.

On appeal, the Bonsers argue that the Food Service Licensure Act, RSA 143–A:1 et seq ., does not apply to the restaurant or snack booth. Alternatively, the Bonsers argue that even if the Food Service Licensure Act applies, the restaurant and snack booth are exempt from regulation because they qualify as temporary or occasional food service establishments.

When construing a statute, we begin by examining the language of the statute, ascribing the plain and ordinary meaning to the words used by the legislature. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585, 825 A.2d 480 (2003). We do not consider words and phrases in isolation but rather within the context of the statute as a whole. Id. This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent. State v. Foss, 148 N.H. 209, 211, 804 A.2d 462 (2002). Because the interpretation of a statute is a question of law, we review the superior court's decision de novo . Franklin Lodge of Elks, 149 N.H. at 585–86, 825 A.2d 480.

The Food Service Licensure Act makes it "unlawful for any person, unless exempted under [the statute], to operate a food service establishment ... within the state without having obtained a food service license." RSA 143–A:4 (1996). A food service establishment is defined as

any fixed or mobile, attended or unattended restaurant; coffee shop; cafeteria; short order cafe; luncheonette; grill; tearoom; sandwich shop; ... private or public organization or institution, whether profit or nonprofit, which routinely serves food; catering kitchen; commissary, or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere; and any other eating and drinking establishment or operation in which potentially hazardous food is served or provided for the public with or without charge.

RSA 143–A:3, IV (Supp.2002). Temporary food service establishments and occasional food service establishments are exempt from licensure. RSA 143–A:5, III (Supp.2002). A temporary food service establishment is one "which operates at a fixed location for a temporary period of time not exceeding 2 weeks, in connection with a fair, carnival, circus, public exhibition, or similar transitory gathering." RSA 143–A:3, VIII. An occasional food service establishment operates no more than four days during a thirty-day period. RSA 143–A:3, V.

As set forth above, the Food Service Licensure Act provides a list of specific establishments subject to regulation and contains a catch-all provision which includes "any other eating and drinking establishment or operation in which potentially hazardous food is served or provided for the public." RSA 143–A:3, IV. The Bonsers argue that the department has authority to regulate only those establishments that serve the public, and that nudists cannot be considered members of the public because they are not...