The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.
Municipalities are authorized to license and regulate hawkers and peddlers. RSA 31:102-a. During the past 150 years, there have been several state and federal court decisions dealing with unconstitutional discrimination against nonresident hawkers and peddlers, but this case appears to be the first to raise issues of procedural due process in administration of a hawkers and peddlers ordinance.
Under RSA 31:102-a, licenses for hawkers and peddlers may impose "reasonable conditions and terms deemed necessary for public convenience and safety." RSA 31:102-b authorizes municipalities to require hawkers and peddlers to submit to a criminal history records check. The City of Manchester ordinance requires an application on a form determined by the city clerk, which requires approval by six city departments, and conditions of approval may be imposed to protect "life, health or safety." The ordinance also requires applicants to submit "a complete certified criminal record" and provides for denial of the license if the applicant has received a "disqualifying criminal conviction…." Finally, the ordinance provides for review by a designated committee in the event of denial.
Frank applied to the City for a peddler's license. His criminal record at the time of application included a conviction in district court for assault. On appeal to superior court, the charges were dismissed two weeks after Frank applied for the license, but the City would not accept evidence of the dismissal because the official criminal record had not yet changed. Frank also had two pending charges for possession of child pornography. The police department declined to approve Frank's application, and the license was denied by the licensing officer and the review committee. The child pornography charges were dismissed about ten weeks later. Frank filed suit in U.S. District Court, claiming that the City had denied his Fourteenth Amendment right to procedural due process by failing to give him a constitutionally adequate hearing on denial of the license. The City filed for summary judgment.
A procedural due process claim must be based on a protected property interest created and defined by state law. More than a mere expectation of a benefit is required. The Court relied on Chongris v. Board of Appeals, 811 F.2d 36 (1st Cir. 1987), in which the First Circuit Court of Appeals held that an applicant for a common victualler's license had no property interest in the license where licensing authorities had the discretion not to grant a license if "in their opinion, the public good does not require it." The Court found a similar measure of discretion in the New Hampshire statute and Manchester ordinance:
[T]he correct reading of the City ordinance is that while an applicant with a disqualifying conviction must be denied a license, town officials also possess discretion to deny an application based on a variety of other factors, particularly when a factor could endanger "life, health or safety." … When the City ordinance regarding the issuance of peddler's licenses is properly read, it is quite clear that an applicant for a license has no entitlement to a license. Accordingly, Frank cannot maintain a viable due process claim because he lacks a protected property interest in the license he was denied.