2006-122, APPEAL OF OMEGA ENTERTAINMENT, LLC

The petitioner, Omega Entertainment, LLC (Omega),

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Mary E. Maloney, assistant attorney to press. Errors may be reported by E-mail at the following address:

the brief and orally), for the petitioner. Jeffco, Starbranch & Soldati, of Portsmouth (Harry N. Starbranch, Jr. on

(New Hampshire State Liquor Commission) APPEAL OF OMEGA ENTERTAINMENT, LLC

editorial errors in order that corrections may be made before the opinion goes No. 2006-122 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Liquor Commission Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as license shall not expire until the last day for seeking judicial review.”

p. 2 applicable appeal period. If the Commission’s final action is unfavorable, the

Commission has taken final action on the Motion for Rehearing with the effective . . . February 17 . . . [and] extend[ing] [the license] until the application, which the commission denied. on February 27, correcting additional errors, and “reinstat[ing] Omega’s license filed a motion to vacate the commission’s December 9 denial of its renewal before it shall be deemed to be prima facie lawful and reasonable; parties submitted requests for findings of fact and rulings of law. Omega also findings of the commission upon all questions of fact properly rescheduled and conducted the adjudicatory hearing on January 25-26. Both to show that the same is clearly unreasonable or unlawful, and all party seeking to set aside any order or decision of the commission Upon the hearing the burden of proof shall be upon the

administrative agency’s decision is governed by RSA 541:13: Pursuant to RSA chapter 541 (2007), our review of this appeal from an

February 24, and an amended second interim order (Amended Interim Order II) Omega’s motion and amended motion for rehearing. This appeal followed. 2006. The commission issued a second interim order (Interim Order II) on session, the commission affirmed its decision of February 8, and voted to deny clarified that Omega’s liquor license would expire at 5:00 p.m. on February 17, the commission scheduled a public hearing for April 5. During the public witnesses, offers of proof, and cross-examination. The commission on February 16 to correct two errors in its February 8 decision. Interim Order I which incorporated by reference its earlier motion for rehearing. In response, assented-to motion to continue the hearing in order to accommodate more On March 13, 2006, Omega filed an amended motion for rehearing, conducting discovery and exchanging witness and exhibit lists, Omega filed an the hearing was scheduled for January 18, 2006. Subsequent to both parties

motion for rehearing, the commission issued an interim order (Interim Order I) number of errors in the commission’s decision. Based upon a review of the by a preponderance of the evidence. Omega moved for rehearing, alleging a adjudicatory hearing on the license renewal were issued on December 27, and renewal application, finding that the bureau had satisfied its burden of proof On February 8, 2006, the commission affirmed its denial of Omega’s

Omega appealed the commission’s denial; orders of notice for a full

application on December 9. of violations and public safety,” the commission denied Omega’s renewal commission to rectify earlier errors, we cannot say that any error under the

January 25-26, 2006 adjudicatory hearing. Given the actions of the deliberate in public both on Omega’s motion to vacate and subsequent to the notice to the public and Omega, addressed the commission’s earlier failure to errors. The public session and full deliberation on April 5, subsequent to

miscarriage of justice would otherwise result.

and Amended Interim Order II were all designed to correct earlier alleged subsequently corrected. The commission’s Interim Order I, Interim Order II, commission may have committed that implicated the Right-to-Know Law were 7 p. 3 32, 736-37 (2005). In this case, whatever procedural errors the liquor

at stake, its use should be limited to those circumstances in which a apply to such agency proceedings, and that “substantial rights” of Omega were that, as such, the claims would not be preserved for our review. commission is an open question. However, even assuming that the rule does appeal, and that they had not been preserved by “prior counsel.” We agree that whether our plain error rule applies to proceedings of the liquor commission proceedings, that they were first raised in Omega’s notice of or public reputation of judicial proceedings. Taylor, 152 N.H. at 720. We note Right-to-Know Law claims had not been raised during the course of the liquor substantial rights; and (4) the error must seriously affect the fairness, integrity there must be an error; (2) the error must be plain; ( p. 3 3) the error must affect Under our plain error rule, we consider the following four elements: (1)

State v. Taylor, 152 N.H. 719, 720 (2005); Sup. Ct. R. 16-A. that affects substantial rights even though not raised by either party. See review them under our plain error rule, which allows us to consider an error Blackmer, 149 N.H. 47, 48 (200 p. 3 3). Omega contended, however, that we should

(2001 & Supp. 2006). At oral argument, counsel for Omega stated that its Omega alleges several violations of the Right-to-Know Law, RSA ch. 91-A

unjust or unreasonable. III clear preponderance of the evidence before it, that such order is (2006) (issue waived when raised in notice of appeal, but not briefed). questions it chose to brief. See Colla v. Town of Hanover, 15 p. 3 3 N.H. 206, 210 twenty-six questions for review. We address, however, only the seventeen statutes and procedural rules. In its notice of appeal, Omega presented renew its liquor license due to the commission’s failure to follow numerous On appeal, Omega argues that the commission should be ordered to

See Appeal of Baldoumas Enters., 149 N.H. 7 p. 3 36, 737 (2003).

vacated except for errors of law, unless the court is satisfied, by a and the order or decision appealed from shall not be set aside or applicable appeal period expired. Amended Interim Order II (dated February

p. 4 until the commission took final action on Omega’s motion for rehearing and the

no further discussion of Omega’s allegation of improper notice here. notice of the December 7 meeting in our analysis in Section V, below, we need

reinstated Omega’s license, effective February 17, and extended the license license would expire at 5:00 p.m. on February 17, 2006. Interim Order II rehearing, Interim Order I (dated February 16) clarified that Omega’s liquor with regard to the conduct of the April 5 meeting. As we discuss the issue of

extended consideration. constitutional rights without support by legal argument or authority warrants the license for seven business days. In response to Omega’s motion for reflects timely notice of the April 5 meeting, and Omega does not claim error passing reference to constitutional claims nor off-hand invocations of the commission’s regularly-scheduled meeting of April 5, 2006. The record objection, it continued the consideration of Omega’s motion for rehearing until

commission termed Omega’s license as “officially expired,” yet it “extend[ed]” regarding adverse rulings without developed legal argument, and neither February 17 to February 24, 2006. In its decision of February 8, 2006, the those claims, however, it points only to its inability to sell alcohol from 91-A:2, II. The commission also notes, however, that upon receipt of Omega’s it was prejudiced by the commission’s procedural irregularities. In support of comply with the notice requirements of either the commission’s rules or RSA McIntire v. Woodall, 140 N.H. 228, 230 (1995). Omega repeatedly claims that brief, the commission concedes that its notice of the March 20 meeting did not evaluate a due process claim, Omega must show actual prejudice. See 20, 2006, at which it intended to consider Omega’s motion for rehearing. In its argument concerning its due process claims, we note that before we will Assuming, arguendo, that Omega adequately developed its legal

significant legal argument. Judicial review is not warranted for complaints fair hearing.” None of Omega’s allegations, however, are supported by published rules and the appropriate statutes designed to afford to a licensee a the Commission as the Commission consistently failed to abide by its Next, Omega alleges that “[t]here was a denial of due process generally by Omega meant to refer to the meeting of the commission scheduled for March record indicates that a hearing occurred on March 10, 2006, we assume that December 7, 2005 and March 10, 2006 hearings.” Because nothing in the contends that the commission failed to provide proper notice “prior to the

Omega alleges several violations of its right to due process. It first

reputation of the proceedings. Right-to-Know Law seriously affected the fairness, integrity, or public renewal application of Omega Entertainment LLC. p. 5 a rational basis for the Commission to deny the pending license

claim. “We will not set aside an agency’s decision for a procedural irregularity

Entertainment LLC is renewed. Therefore we recommend there is followed if the license to operate the business known as Omega doubt that applicable state laws and commission rules will be necessary showing of material prejudice for it to prevail on its due process control of Mr. George C. Maroun, the Bureau has substantial

should renew the license. Omega’s liquor license. Consequently, Omega argues that the commission finding that there was no rational basis to deny the application for renewal of

judicial review. Consequently, we do not believe that Omega has made the committed by the LLC operated under the immediate management unfavorable, Omega’s license would not expire until the last day for seeking the January 25-26, 2006 hearing. That, considering the history of violations of statute and rule Omega’s motion for rehearing and, if the commission’s final action was finding #11 states: Omega’s argument rests upon a faulty premise. The bureau’s requested

requested finding of fact #11 in its February 8, 2006 order was tantamount to a Omega first contends that the commission’s denial of the bureau’s

commission with regard to requested findings of fact submitted subsequent to (2007), the license was extended until the commission took final action on Omega alleges specific procedural or substantive errors by the 2006. The commission also made clear that, pursuant to RSA 541-A:30, I ordering Omega’s license to prematurely expire at 5:00 p.m. on February 17, V Interim Order II and Amended Interim Order II corrected its earlier error of Concord Natural Gas Corp., 121 N.H. 685, 691 (1981). . . . unless the complaining party shows material prejudice.” Appeal of

however, Omega had apparently not made alcohol sales for a full week. seeking judicial review. By the time Interim Order II issued on February 24,

renewal, its motion for rehearing or appeal. The commission’s actions in due process rights in either the adjudication of its application for license however, is whether the commission’s procedural irregularities denied Omega’s suspension of alcohol sales from February 17 to February 24. Our focus here, Omega may have incurred some economic loss precipitated by a

rehearing were unfavorable, the license would not expire until the last day for 27) noted that, if the commission’s final action on Omega’s motion for p. 6 6

Order II, dated February 24, 200 p. 6 6 (and affirmed in Amended Interim Order II, would prohibit the commission from correcting such an error. denied Omega’s requested findings #51, 52, 53, 56, 63, and 65. In Interim a scrivener’s error.” Omega has cited no authority, and we know of none, that In its order of February 8, 2006, the commission neither granted nor and stated that its correction in Interim Order II was simply the “correcting [of] separately stated, on Omega’s [requests] 51, 52, 53, 55, 56, 63 and 65.” justice so require.”). to reverse themselves at any time prior to final decision if the interests of (decided September 21, 2007) (“[M]unicipal boards, like courts, have the power hearing the appeal.”); 74 Cox St. v. City of Manchester, 156 N.H. ___, ___ decisions so that the court may have the benefit of the board’s judgment in board should have the first opportunity to pass upon any alleged errors in its statutory scheme [RSA chapter 677] is based upon the principle that the local Family Realty Trust v. Town of Wilton, 153 N.H. 234, 238-39 (2006) (“The

“clearly inconsistent with its decision” to deny Omega’s application for renewal, “failing to deliberate and make findings of fact and conclusions of law, The commission noted that the initial grant of requested finding #55 was

“whipping boy” for Mayor Guinta[’]s campaign. converse. Mayor of the City of Manchester which targeted Omega as the inaccurate, but is exaggerated and is fueled by the campaign for The information presented by the Bureau is not only

finding read: of February 8, 200 p. 6 6, but then denied it in its Interim Order II. The requested The commission originally granted Omega’s requested finding #55 in its order

Next, Omega contends that the commission violated RSA 541-A:35 by

opinion, recommendation, or request for relief with a substantive finding of the Hence, we will not equate the commission’s denial of the bureau’s stated

of Fact or Conclusion of Law, and are therefore denied. statements, inapplicable laws or rules, or did not involve a Finding because they involved opinions, confusing or conflicting granted nor denied by the Commission [in its February 8 decision] certain Findings of Fact and Conclusions of Law were neither

2 p. 7 7, 200 p. 6 6), the commission explained that: February 24, 2006 (and affirmed in Amended Interim Order II, dated February the bureau’s requested finding #11. Second, in Interim Order II, dated In its order of February 8, 2006, the commission neither granted nor denied 7

support Omega’s contention, pursuant to the commission failed to deliberate in this case. Moreover, we see nothing to

evidence presented to its findings in every instance.”

rests upon a faulty premise. A:35’s mandate for such findings. We disagree, as Omega’s argument again December 9, 2005 order contained no findings of fact, in violation of RSA 541finding #51 is evidence that the commission failed to recognize that its promptly to each party and to a party’s recognized representative. Omega next contends that the commission’s denial of Omega’s requested submitted by Omega. We see no evidence, and Omega has offered none, that request, a copy of the decision or order shall be delivered or mailed bureau, and the requested sixty-five findings of fact and conclusions of law notified either personally or by mail of any decision or order. Upon Id. at 264. to the requested eleven findings of fact and conclusions of law submitted by the identified strengths and weaknesses in the evidence, and it connected the include a ruling upon each proposed finding. Parties shall be of fact and five conclusions of law. The commission’s decision also responded conclusory summary of the evidence . . . . In its decision, the board specifically information presented by the parties can in no way be characterized as a comport with [Omega’s] assertions. The [commission’s] analysis of the decision . . . reveals a thorough, well-documented analysis that does not remanded for a new hearing. Instead, “[o]ur review of the [commission’s] 261, 263-64 (1994), that the commission’s order should be vacated and

a party submitted proposed findings of fact, the decision shall detailed its decision and the reasoning behind it, and included twelve findings facts supporting the findings. If, in accordance with agency rules, of the January 25-26, 2006 hearing, including procedures and witnesses, accompanied by a concise and explicit statement of the underlying commission recited detailed “background information,” summarized the course stated. Findings of fact, if set forth in statutory language, shall be statute’s mandate in all respects. In its February 8, 2006 decision, the shall include findings of fact and conclusions of law, separately Our review of the record reveals that the commission accomplished the

requested finding #11.

case shall be in writing or stated in the record. A final decision A final decision or order adverse to a party in a contested

RSA 541-A:35 (200 p. 7 7) states:

findings, giving the same explanation noted above concerning the bureau’s dated February 2 p. 7 7, 2006), however, the commission denied these requested p. 8 Omega’s operation.

liquor license[s] during the past two years, the same time period as

unduly repetitious evidence. . . . finding #51. but the presiding officer may exclude irrelevant, immaterial or order, and we find no error in the commission’s denial of Omega’s requested suspended have subsequently been granted renewal of [their] proceedings. Any oral or documentary evidence may be received; restaurant/lounge licensees that have had [their] liquor license[s] of its liquor license during the past two years and several other

requested finding #52.

. . . .

Consequently, RSA 541-A:35 was inapplicable to the commission’s December 9 II. The rules of evidence shall not apply in adjudicative

that not one restaurant/lounge licensee has been denied a renewal RSA 541-A:33 (2007) provides, in pertinent part:

evidence offered by Omega.” Omega’s requested finding #52 stated: finding #52 in its February 8, 2006 decision. The commission later denied As noted above, the commission neither granted nor denied Omega’s requested

request a full adjudicatory hearing before the commission, which Omega did. 2006, the December 2005 order provided Omega with the opportunity to findings of fact. As explained in the commission’s decision of February 8, The Commission should take notice of its own records which show

finding #52 “shows the Commission’s unwillingness to consider all relevant requested finding #51. Omega contends that the commission’s denial of Omega’s requested

order adverse to a party in a contested case,” RSA 541-A:35, that required The commission’s order of December 9, 2005 was not a “final decision or

finding #51 in its February 8, 2006 decision. The commission later denied As noted above, the commission neither granted nor denied Omega’s requested

Omega’s renewal application contrary to RSA 541-A:35. to support the basis for its December 9, 2005 Order to deny . . . contain findings of fact and conclusions of law, separately stated, The Commission’s Order dated December 9, 2005 failed to

fact. Omega’s requested finding #51 stated: The commission’s order of December 9, 2005, contained no findings of either violated RSA 541-A:33 or was an unsustainable exercise of its discretion.

p. 9 cannot say that the commission’s denial of Omega’s requested finding #52 to the adjudication of its own renewal application. Absent such a showing, we years — Omega has not shown that such information was necessarily relevant

renewal. requested findings. both findings involved rules inapplicable to an application for liquor license and #65 in its February 8, 2006 decision. The commission later denied both commission did not err in denying Omega’s requested findings #53 and #65, as to the plain meaning of the language of the administrative rules, the of Manchester for the revocation of Omega’s liquor license at issue. Pursuant

town . . . for the revocation of a liquor license located within that community.” application had been denied, and that certain licensees had been granted such notice would confirm what Omega contended — that no licensee’s renewal applications and suspensions at other establishments. Even if we assume that (“In construing administrative rules, as in construing statutes, where possible,

See Appeal of N.H. Dep’t of Transportation, 152 N.H. 565, 574 (2005)

the commission neither granted nor denied Omega’s requested findings #53 requested finding #65 accurately paraphrases Rule 207.08(a). As noted above, Omega is correct that requested finding #53 quotes Rule 207.03(a) and that application for renewal of its liquor license — there is no petition from the City what New Hampshire Administrative Rules, Liq 207.03 and 207.08 provide. N.H. Admin. Rules conducted by the Commission” because the requested findings simply restated, Liq 207.01. The instant case involves only Omega’s findings #53 and #65 “shows that there was no rational deliberation process 207.08(a) pertain to petitions brought by the “governing body of any city or Omega has failed to recognize, however, that both Rules 207.03(a) and

take official notice of two full years of records concerning liquor license renewal

Next, Omega alleges that the commission’s denial of Omega’s requested

“unsustainable exercise of discretion” standard). discretion); see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining records. Further, Omega’s requested finding #52 would have the commission request that it take judicial notice reviewed for unsustainable exercise of discretion of the commission whether or not to take official notice of its own Cf. State v. Cox, 133 N.H. 261, 265-66 (1990) (trial court’s denial of defendant’s the statute does not require that such notice be taken. As such, it is within the

commission to take official notice of the record of other proceedings before it, We agree with the commission that, while RSA 541-A:33 permits the

. . . [t]he record of other proceedings before the agency. V. Official notice may be taken of any one or more of the following: p. 10 10

precluded by any provision of law.

appropriate notice of the January 25-26, 2006 adjudicative hearing in the form Admin. Rules, Liq 208.03(b). The record is clear that Omega received liquor license at issue. requesting an adjudicative hearing, see RSA 178:3, X (Supp. 2006); N.H. appealed the decision to the commission as a whole, see RSA 176:8, I, by Subsequent to the denial of its application for license renewal, Omega premise. (Emphasis added.)

disposition of the application by the use of these processes is not in whole or in part, on the basis of nonadjudicative processes, if . . . the [commission] shall . . . [a]pprove or deny the application, Within a reasonable time . . . after receipt of the application

prerequisite petition from the City of Manchester for the revocation of Omega’s Paragraph II(a) of RSA 541-A:29 provides: disagree. Rules 207.03(a) and 207.08(a) are inapplicable here as there is no requirements of Rules 207.03(a) and 207.08(b). For the reason just given, we commission as a whole. [Rule] 207.08,” and thus the commission erred in failing to fulfill the meeting.” Omega has again presented an argument based upon a faulty aggrieved applicant may appeal the commission’s decision to the licensee George Maroun, Sr., Omega’s Manager was told not to attend the . . . grant or deny the request, stating its reasons in writing. An to give Omega proper notice of the December 7, 2005 meeting . . . and that to grant the license application. The commission shall then either by the Commission” because the record “clearly shows that the Bureau failed make recommendations, in writing, to the commission, on whether The [bureau] chief shall handle all license applications and shall

a liquor license. Paragraph I of RSA 176:8 provides, in part: established procedures by which it processes an application for the renewal of Pursuant to RSA 176:8 (2002) and RSA 541-A:29 (2007), the commission

application “constitute[d] a revocation as set forth under the provisions of

finding #56 “shows that there was no rational deliberation process conducted Omega also alleges that the commission’s denial of Omega’s requested

Omega next alleges that the commission’s denial of Omega’s renewal

omitted)). we ascribe the plain and ordinary meanings to words used.” (brackets there’s no need for you to attend that meeting. Thank you. Bye.

context of the December 7, 2005 nonadjudicatory meeting or the January 25-

residence, stating:

before that license [is] renewed, then you’ll be notified. Otherwise,

207.08(b).” It is unclear from Omega’s brief if it is alleging error within the directive license as set forth under [New Hampshire Administrative Rules, Liq] writing, as required by RSA 176:8 and evidence to support a revocation of its Maroun’s inquiry, the bureau’s deputy chief left a telephone message at his bureau failed to submit “a written [p]etition with its recommendations, in Omega contends that the commission erred in its decision because the

error with regard to the commission’s denial of Omega’s requested finding #56. Wednesday. There’s no need for you to attend that meeting. If it there would be a full adjudicative hearing on the matter. In sum, we find no message for me inquiring about attending that meeting on the commission’s denial of Omega’s application for renewal of its liquor license, was both present at the December 7 meeting and informed that, subsequent to

not to attend. Further, we note that the record shows that Omega

not required to attend the December 7 meeting, we do not interpret it as a While we agree that Deputy Chief Avery’s message made clear that Maroun was Maroun “not to attend the December 7, 2005 meeting.” In response to important, we disagree with Omega’s characterization that the bureau told December 7 meeting, prompting it to have then made such an inquiry. More it seems clear to us that Omega must have received some form of notice of the

Avery with Liquor Enforcement. Um, you’ve left a voice mail This message is for George Maroun, Senior. This is Deputy Chief

meeting. shows that the commission “failed to give Omega proper notice” of that absence in the record of an order of notice for the December 7, 2005 meeting Consequently, we disagree with Omega to the extent that it argues that the

at the initial stage of its license renewal application. inquire as to whether his attendance was necessary at the . . . meeting.” First, [December 7, 2005 meeting] . . . George Maroun, Sr., contacted the [bureau] to meeting or evidenced improper notice. Omega contends that “[p]rior to the bureau’s response to its manager’s inquiry either directed him not to attend the Further, we also disagree with Omega to the extent it argues that the

205. p. 11 11(a)-(g) & 205.12(a) (notice requirements for adjudicative proceedings).

and we know of none, entitling it to formal notice and an adjudicative hearing of an order of notice from the commission. Omega has presented no authority, expressed in the words of a statute considered as a whole.

case.

commission deny Omega’s application for renewal of its liquor license. eleven findings of fact in support of its written recommendation that the

presented with the need to construe RSA 541-A:30, II or III. In statutory adjudicatory proceeding. We disagree. Prior to this case, we have not been community. written petition from the bureau; (2) notice of the impending actions; and (3) an of any city or town for the revocation of a liquor license located within that suspension of a license” and thus is inapplicable to the instant license renewal RSA 541-A:30, III (2007) clearly applies only to the “immediate

ordinary meanings to words used. Id. at 738. language found in the statute, and, where possible, we ascribe the plain and adjudicatory hearing, the bureau submitted requested conclusions of law and N.H. at 737. When construing the meaning of a statute, we first examine the RSA 176:8, I, that it be “in writing.” In the context of the January 25-26, 2006 Baldoumas, 149 explanatory, we agree that the agenda’s writing complied with the mandate of acknowledgment that the bureau’s recommendation could have been more

and III by denying the application for license renewal in the absence of: (1) a however, that Rule 207.08 pertains to a petition brought by the governing body Omega further contends that the commission violated RSA 541-A:30, II support of its contention except Rule 207.08(b). We have already explained, makes no mention of a “written petition” and Omega cites no other authority in the commission, on whether to grant the license application.” The statute

with regard to the renewal application. While we concur with the commission’s commission shows that the bureau made a written recommendation of “denial” renewal application. The agenda for the December 7 meeting of the recommendation to the commission regarding whether to grant Omega’s license Further, our review of the record reveals that the bureau made a written

petition. handle all license applications and shall make recommendations, in writing, to commission’s actions concerned the bureau’s recommendations as to Omega’s was no requirement for the bureau to file its own petition, and the inapplicable to an application for liquor license renewal. Accordingly, there Admin. Rules, Liq 205.02(n) (defining “petition”). Rule 207.08 remains this case is Omega’s application for the renewal of its liquor license, see N.H.

See N.H. Admin. Rules, Liq 207.01. The only “petition” at issue in

RSA 176:8, I, provides, in pertinent part: “The [bureau] chief shall

actions. 26 adjudicatory hearing. In either case, we find no error in the commission’s repetitious evidence.” In addition, RSA 178:3, XI provides: p. 13 and that the presiding officer may “exclude irrelevant, immaterial or unduly 13

manner in which the licensee has operated during the term of the

no violation of RSA 541-A:30, II. witness and exhibit lists in advance of the adjudicative hearing. Thus, we see

adjudicative hearings; that any oral or documentary evidence may be received; RSA 541-A:33 provides, in part, that the rules of evidence shall not apply in decision, the commission is guided by RSA 541-A:33 (2007) and RSA 178:3, XI. accordance with RSA 541-A:33, V.”). In contrast, when making its overall commission may consider the licensee’s record of violations, the all of the current requirements for the issuance of a license. The renewal, and shall not renew any license unless the licensee meets As previously described, both parties conducted discovery and exchanged be renewed. The commission shall review all license requests for

There shall be no presumption that any liquor license shall

based exclusively on the evidence and on matters officially noticed in as a whole, are the focus of RSA 541-A:31, VIII (2007) (“Findings of fact shall be statutory language, only the commission’s findings of fact, and not its decision political considerations.” We note that, pursuant to the plain meaning of the the adjudicative hearing in the form of an order of notice from the commission. 178:3, X, and Rule 208.03(b); and that Omega received appropriate notice of conclusionary [sic] statements . . . innuendo and matters of opinion and Omega received an adjudicative hearing, in accordance with RSA 176:8, I, RSA the evidence and matters officially noticed, but upon “mere allegations and case; that Omega received adequate notice of the December 7 meeting; that A:31, VIII and RSA 541-A:33, V, its decision was based, not exclusively upon Omega alleges that the commission erred because, contrary to RSA 541-

was no requirement for a petition from the commission in this license renewal the commission did or did not provide. Specifically, we concluded that there renewal, as we have already addressed Omega’s arguments concerning what “renewals,” we need not decide whether RSA 541-A:30, II applies to a license (Emphasis added.) While the plain language does not include license

requirements for the retention of the license. an adjudicative proceeding, to show compliance with all lawful to base its action, and gives the licensee an opportunity, through the licensee of the facts or conduct upon which the agency intends withdraw, or amend a license unless the agency first gives notice to An agency shall not revoke, suspend, modify, annul,

RSA 541-A:30, II (2007) states: season. p. 14 coverage to the events at Club Omega that occurred during the campaign “political issue,” but readily acknowledged that the media had given active

the city was “targeting” Omega or that the renewal of Omega’s license was a

situated, tried to contact Omega with no success. Mayor Guinta denied that election as mayor, he had, as alderman for the ward in which Club Omega was with only one call in support of the facility. He testified that, prior to his

reports concerning police service calls were also introduced. police resources from the rest of the city. Deputy Chief Simmons further offers of proof and letters from community members, exhibits, and statistical drive-by shooting” at the club, causing concern for public safety and a drain on the Manchester Police Department, and a lieutenant of the bureau. Further police department, city employees, and constituents concerning Club Omega, to alleviate problems, yet there had still been “stabbings, fightings, and . . . a mayor of the City of Manchester, the deputy chief, a captain and a sergeant of He detailed his receipt of some two to three dozen telephone calls from the testified that Omega had been cooperative with the police department’s efforts to cross-examine all witnesses. The bureau presented the testimony of the Deputy Chief Gary Simmons of the Manchester Police Department testimony by way of offers of proof. Both parties were afforded the opportunity

tainted by error of law. and rulings of the commission unless they are lacking in evidential support or

Police Department for service to both Club Omega and the surrounding area. the mayor testified concerning the large number of calls to the Manchester decision. commission heard live testimony from witnesses for both parties and further drinking, stabbings inside the complex, to me, that’s not acceptable.” Further, environment . . . based on the number of incidents I see, particularly underage Club Omega “me[t] the standard or the threshold of a safe and secure Mayor Frank C. Guinta testified that he did not feel that the activities at

sufficiency of the evidence claim as a matter of law, and uphold the findings

challenging the sufficiency of the evidence supporting the commission’s During the course of the January 25-26, 2006 adjudicatory hearing, the

the credibility of witnesses and the weight to be given testimony. See id. 704 (2007). We accord considerable weight to the commission’s judgments on

Mindful that our review is governed by RSA 541:13, we review Omega’s

(Emphasis added.) As such, we will consider Omega’s argument as one

in determining whether to renew the license. community, and any other facts presented at the renewal hearing license, the effect of the license on the neighborhood or p. 15 15

of increased security equipment.

plus” nights. Tracey Degges, a representative from the Manchester assaulted liquor investigators. testified concerning underage access to alcohol at Club Omega during its “18- Timothy Rourke of the Making It Happen Coalition for Resilient Youth

parking spaces, increased vandalism and trash, and Rockingham’s installation he testified concerning problems with the club’s patrons using Rockingham’s approximately once a month in 2005 for some type of emergency. In addition, environment for patrons and police officers. Club Omega, testified that Rockingham responded to Club Omega club” and that the club’s inability to control its patrons resulted in an unsafe the city’s emergency medical services provider and a neighboring business to Christopher Stawasz, the executive director of Rockingham Ambulance,

orderly premise.” Lieutenant Metcalf also testified that club patrons had service to minors, intoxicated individuals . . . [and] failure to maintain an premise violations, failure to have affidavits on file, advertisement violations, proof concerning, among other things, “[h]appy hour violations, disorderly Lieutenant Kyle Metcalf of the bureau provided testimony via an offer of

of vandalism and other property damage. shooting right outside the club and reports from surrounding business owners period. Captain Mara provided further testimony regarding a stabbing and behavior by club patrons resulted from “a total disregard for the rules of the Club Omega had nearly 120 disorderly conduct calls during the same time that security. Sergeant Kincaid testified that he believed the level of criminal club’s seeming inability to curb the number of assaults and fights in spite of area clubs. Further, he testified as to the club’s security systems, and of the years, and that the level of assaults at the club was greater than that at other he had worked numerous police details at Club Omega over the previous two member of the mayor’s alcohol, tobacco and other drug task force, testified that Sergeant Kevin Kincaid of the Manchester Police Department, and a present prior to the drop in patronage. that Omega was successful in curtailing those sorts of problems that were

14, 2005, Club Envy had twenty-one police service calls for disorderly conduct; Captain Mara testified that during the time period from July 2005 to December surrounding area, including the Verizon Wireless Arena and Club Envy. regarding the number of police calls for service to Club Omega and to the Captain David Mara of the Manchester Police Department testified

perhaps because of a drop in the club’s overall patronage, he did not believe testified that, while the level of negative activity at Club Omega had dropped, p. 16 16

of the commission’s decision. stated in the motion. Rule 206.04(a) was in conflict with RSA 541:3. It notes, however, that the error such rehearing if in its opinion good reason for the rehearing is decision of February 8, 2006. The commission does not dispute that previous motion all grounds for rehearing, and the commission may grant rehearing within five calendar days of being notified of the commission’s apparent, and Omega should not have been required to file its motion for The conflict between previous Rule 206.04(a) and RSA 541:3 is readily

commission’s decision.” a petition for a rehearing “within 30 calendar days of being notified of the We note that, effective July 1, 2006, Rule 206.04(a) was amended to provide for

commission for a rehearing within 5 calendar days of being notified

proceeding, or covered or included in the order, specifying in the a rehearing in respect to any matter determined in the action or commission, or any person directly affected thereby, may apply for the commission, any party to the action or proceeding before the Within 30 days after any order or decision has been made by

206.04(a), we limit our discussion to that question. RSA 541:3 provides: with RSA 541:3. As Omega has briefed only the issue concerning Rule 541-A, and also alleges that Rule 206.04(a) is “unlawful” because it conflicts

(a) Any party to an adjudicatory hearing may petition the

2006 adjudicative hearing provided: The version of Rule 206.04(a) in effect at the time of the January 25-26, unreasonable, we agree with Omega’s argument. (issue waived when raised in notice of appeal, but not briefed). At the outset,

between New Hampshire Administrative Rules, Liq 206.04(f) and RSA chapter Finally, Omega alleges a “denial of due process” because of a conflict

see Baldoumas, 149 N.H. at 737.

decision to deny the renewal of Omega’s license was either unjust or rulings in this case lacked evidential support, see id., or that the commission’s Given this evidence, we cannot say that the commission’s findings and

told her that they had been served alcohol at Club Omega. Neighborhood Housing service testified that “dozens” of underage youth had license was either unjust or unreasonable. p. 17 commission’s decision to deny Omega’s application for renewal of its liquor

Given the commission’s corrective measures, we cannot say that the

instance, we note all of the commission’s efforts to correct those same errors. the commission that it must take pains to avoid such errors in the first the same. While we find those procedural errors to be troubling, and admonish conduct of the proceedings against Omega, and the commission has conceded DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

equal the thirty (30) days as recited in RSA 541:3. days to supplement the five (5) days permitted in Liquor Rules to Rehearing. The Commission grants the additional twenty-five (25)

just hearing.” We agree that the commission made procedural errors in the Commission, which materially prejudiced [Omega] and its right to a fair and upon the multiple procedural and statutory errors of law committed by the February 8, 2006, and order the commission to renew Omega’s license “based Omega requests this court to reverse the commission’s decision of

Interim Order I to correct it. of Omega’s motion for rehearing that recognized this conflict, and issued v. Perrin a full transcript or develop further arguments for its Motion for, 124 N.H. 545, 549 (1984). The commission agreed with that portion statute, the language of the statute supersedes that of the rule. See Woodman the due process rights of a party. Given the conflict between the rule and the of the interim order commission that the existence of the conflict, without more, does not violate conflict, given the corrective actions of the commission. We also agree with the RSA 541:3, Omega has failed to show that it was materially prejudiced by that While we agree that previous Rule 206.04(a) was in direct conflict with

in order to allow additional time, pursuant to RSA 541:3, to review

which granted Omega an additional twenty-five days from the February 16 date of holding Omega to the five-day requirement was corrected by Interim Order I,