2025 N.H. 41, Appeal of Tower Hill Tavern, LLC

would know is intoxicated.” RSA 179:5, I (2022). Because we determine that Tower Hill “serve[d] an individual . . . who a reasonable and prudent person principal question before us is whether there was sufficient evidence that and revoking Tower Hill’s liquor license based on overservice of a patron. The of the New Hampshire Liquor Commission (commission) imposing a $5,000 fine [¶1] The petitioner, Tower Hill Tavern, LLC (Tower Hill), appeals an order

and orally), for the New Hampshire Liquor Commission. general (Mary A. Triick, assistant attorney general, on the memorandum of law John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Armillay, Jr. on the brief, and William E. Christie orally), for the petitioner. Shaheen & Gordon, P.A., of Concord (William E. Christie and James J.

Citation: Appeal of Tower Hill Tavern, LLC, 2025 N.H. 4 1 Case No. 2024 - 0531 Liquor Commission

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

pending resolution of the appeal. petition for rehearing. This appeal followed. We stayed the commission’s order more than an hour.” The commission subsequently denied Tower Hill’s hour” or, alternatively, even if “the number of drinks is four and the time is [T.A.] is intoxicated when she is served five alcoholic beverages in less than an violated RSA 179:5 because “a reasonable and prudent person would know [¶5] On June 18, the presiding officer issued his decision that Tower Hill

the 1 hour 40 minutes, and because [T.A.] was transported to the hospital.” would know that an individual is intoxicated based off the rate of time, from vodkas that had been consumed . . . which a reasonable and prudent person “based off the witness statemen ts that were provided, the four blueberry issued the Administrative Notice against Tower Hill for overservice of T.A. night who would have served drinks to T.A. The investigator testified that he [¶4] The investigator did not interview any of the bartenders working that

she stated, “no, [T.A.] was fine at the bar” and “was standing the entire time.” asked by the investigator if she felt the bar should have stopped serving T.A., with 1 being sober and 10 being highly intoxicated,” T.A. “was a four.” When “vodka blueberries.” One of the friends r eported that “on a scale of 1 to 10, who were with her at Tower Hill. They reported that T.A. drank “[a] bout four” The investigator testified at the hearing that he interviewed two of T.A. ’s friends prudent person would know was intoxicated.” A hearing was held on May p. 2 21. wit, four Blueberry [Vodkas], to an individual, [T.A.,] . . . who a reasonable and Notice alleging a violation of RSA 179:5 for serving “an alcoholic beverage, to incident. On February 8, 2024, Tower Hill was served with an Administrative [¶3] The commission opened an enforcement investigation into the

poisoning. to the hospital at 1 p. 2 2:50 a.m. on June 11, wher e she was treated for alcohol vomiting, accompanied by a Laconia police officer. T.A. was then transported on an outside deck, and found her outside the building seated on a chair, well and walked away. T.A.’s friends searched for her in the upstairs area and together at the upstairs bar. At some point, T.A. stated that she did not feel Laconia where they consumed alcoholic drinks. At Tower Hill, they had drinks in Laconia. Earlier that evening they had spent time at two other bars in 11:00 p.m. o n June 10, 2023, T.A. and her friends arrived at Tower Hill, a bar [¶2] The following facts are supported by the record. At approximately

I. Background

and remand. the evidence was insufficient to establish a violation of the statute, we reverse p. 3 3

known that the patron was intoxicat ed w hen she was served. See id. mus t be some evidence that a reasonable and prudent licensee would have intoxicated.” (emphasis added)). Thus, to prove a violation of the statute, there is visibly intoxicated or who a reasonable and prudent person would know is the time of service. See id. (“No licensee . . . shall . . . serve an individual who intoxicated. See id. By its plain language, that objective standard a pplies at licensee would have known when it served a patron that the patron was which to determine a licensee’s liability: whether a reasonable and prudent absence of visible intoxication, the statute sets forth an objective standard by does not dispute on appeal, that T.A. was not visibly intoxicated. In the would know is intoxicated.” The hearing officer found, and the commission individual who is visibly intoxicated or who a reasonable and prudent person [¶9] RSA 179:5, I, provides that “[n]o licensee . . . shall. . . serve an

overall statutory scheme. Id. statutes in isolation; instead, we attempt to construe them in harmony with the together to effectuate its overall purpose. Id. However, w e do not construe legislature did not see fit to include. Id. We also construe all parts of a statute not consider what the legislature might have said or add language that the p. 3 395 (2021). We give effect to every word of a statute whenever possible and will to its plain and ordinary meaning. St. Onge v. Oberten, LLC, 174 N.H. 393, language of the statute itself, and, if possible, construe that language according Appeal of Town of Seabrook, 163 N.H. 635, 644 (2012). We first look to the [¶8] We review the commission’s statutory interpretation de novo. See

lawful and reasonable. See RSA 541:1 p. 3 3. unjust or unreasonable. Id. The commission’s findings of fact are presumed we are satisfied, by a clear preponderance of the evidence, that its order was Accordingly, we will reverse the commission only if it made an error of law or if (2021). See Appeal of Baldoumas Enters., 149 N.H. 736, 737 (2003). [¶7] Our review of the commission’s decision is governed by RSA 541:13

a gree with Tower Hill. hour, the evidence was sufficient to support a violation of the statute. We conclusion that T.A. consumed five alcoholic drinks within approximately one commission asserts, because the ensuing investiga tion supported the while being served but argues that such evidence “is unnecessary.” Rather, the record evidence” that Tower Hill was aware of T.A.’s alleged level of intoxication service that [T.A.] was intoxicated.” The commission concedes that “there is no evidence that Tower Hill “knew or reasonably should have known at the time of Tower Hill violated RSA 179:5 is legally erroneous because there is insufficient [¶6] On appeal, Tower Hill argues that the commission’s decision that

II. Analysis p. 4 4

DONOVAN and COUNTWAY, JJ., concurred.

on one issue was dispositive). 298, 302 (2012) (declining to address parties’ other arguments where holding not address the parties’ remaining arguments. See An tosz v. Allain, 163 N.H. violation history be cleared of the allegation.”). Given this conclusion, we need proven, the presiding officer shall issue a commission order that the licensee’s this decision. See N.H. Admin. R., Liq 205.32(c) (“If the violation was not Accordingly, we reverse and remand for further proceedings consistent with Currier v. Newport Lodge No. 1236, 589 F. Supp. 3d 210, 222 (D.N.H. 2022). intoxication, the commission failed to establish a violation of RSA 179:5, I. Cf. communicated or otherwise available to the server s about the patron’s level of amount of alcohol consumed, visible signs of intoxication, or information expert testimony about how a similar individual might have react ed to the such as the amount of alcohol in each drink, the patron’s physical stature, [¶11] Without any additional evidence relevant to the time of service,

from serving liquor to the plaintiff while he was intoxicated). was insufficient to prove that the defendants breached their duty to refrain plaintiff “had seven drinks at the [defendants ’ establishment],” standing alone, Cf. Burns v. Bradley, 120 N.H. 5 p. 4 42, 544 - 45 (1980) (holding that the fact the prove that a reasonable and prudent person would know T.A. was intoxicated. alcoholic beverages in less than an hour. That fact is, alone, insufficient to would have known at the time of service that T.A. had been served five decide whether the record is sufficient to support that the servers knew or know to whom they are providing alcohol and in what quantities.” We need not commission argues that “[a] reasonable and prudent establishment would have known, about T.A.’s level of intoxication at the time of service. The or what information they had available to them to determine what they would commission did not otherwise present any evidence of what the servers knew, violation. See id. Here, t he investigator did not interview the servers. The what information was available to the server at the time of service to prove a be some evidence of what knowledge the person serving the alcohol had or 179:5, I, depends on this objective standard at the time of service, there must beverages in less than an hour. Because a violation of this variant of RSA would know T.A. was intoxicated because she was served five alcoholic [¶10] T he hearing officer found that a reasonable and prudent person