Appeal of Tower Hill Tavern

Tower Hill Tavern is a restaurant and bar located in Laconia, New Hampshire. It held a liquor license issued by the New Hampshire Liquor Commission and this litigation arises from enforcement action taken by the Commission which resulted in revocation of that license. The facts underlying the enforcement action are as follows.

On an evening in June 2023, T.A. and three friends began drinking at Tower Hill Tavern around 11 p.m. Tr. P.8-11; CCR 015, 020-21.1 They had spent time at two establishments prior to their arrival at Tower Hill and consumed an unknown quantity of alcohol at those other locations. Id. At Tower Hill, T.A. consumed a green tea shot followed by four blueberry vodkas served to the group by two female bartenders. Id.; Tr. 31. T.A. then told her friends she needed to “get out of there” and walked away. Tr. P.8- 11; CCR 015, 020-21. Her friends initially believed she had gone to the bathroom but were thereafter unable to locate her. Id. After leaving her friends, T.A. was observed out on Tower Hill’s back deck by C.C., a patron with prior military service and a former Tower Hill employee. Tr. P.12-14; CCR 016, 031. He observed T.A. to be surrounded by Tower Hill security and in obvious distress. Id. The security personnel asked C.C. to assist, and he attempted to interact with and render aid to T.A. Id. While doing so, C.C. observed T.A. to be exhibiting signs of alcohol poisoning including mental confusion, difficulty remaining conscious, slowed heart rate, clammy skin, and dulled responses. Id. He was eventually able to get T.A. talking, and she then continued to make statements similar to those made to her friends about how she “could not do this, that she could not be here.” Id.

Following T.A.’s interactions with C.C., security staff moved T.A. off the back deck and into some chairs lined up out front of Tower Hill.

1 “Tr.” refers to the transcript from the administrative hearing on May 21, 2024. “CCR” refers to the certified copy of the record. “TH App.” and “LC App.” refers to the appendixes filed by Tower Hill and the Liquor Commission respectively.

CCR 016, 031; Tr. 15. This is where T.A.’s friends ultimately located her. CCR 020-21. One of her friends immediately engaged with T.A., attempting to keep T.A. conscious and trying to get her to drink some water. Id. (It was also at this point that T.A. was observed by an employee of the Liquor Commission. Tr. P.6-8, 17.) EMS was ultimately called and, at approximately 12:40 or 12:50 a.m., T.A. was transported to the hospital. Id.; Tr. P.40. There she was found to be suffering from alcohol poisoning. Tr. P.11-12; CCR 020-21.

Tower Hill’s manager testified that she was working the night these events occurred but nevertheless saw nothing related to the incident and was not notified of the same by her staff. See Tr. P.89, 96-97, 99. In other words, if Tower Hill’s manager’s testimony is credited, security staff found a highly intoxicated woman struggling to remain conscious within the bar, moved that individual outside of the bar effectively abandoning her in some chairs on the sidewalk, and did not inform management about the incident. Id. Furthermore, if Tower Hill’s manager’s testimony is credited, then one must conclude that, while tasked with managing the bar, she was paying so little attention that she did not notice the police and EMS response outside the front windows of her bar.

Following an investigation of this incident, an administrative notice was issued to Tower Hill alleging that it served alcoholic beverages to T.A., an individual who a reasonable and prudent person would know to be intoxicated, in violation of RSA 179:5. CCR 003, 095-96. The case proceeded to hearing, after which Tower Hill’s liquor license was revoked. Id. This revocation was affirmed upon rehearing, with it ultimately taking effect on September 10, 2024. CCR 170-85.

This Court’s review is governed by RSA 541:13, under which the burden of proof rests with Tower Hill to establish the decision of the Liquor Commission was unreasonable or unlawful. A decision of the Commission will not be set aside “except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable. RSA 541:13.

In reviewing sufficiency of the evidence claims, this Court is to “accord considerable weight to the commission’s judgments on the credibility of witnesses and the weight to be given testimony. Appeal of Omega Entm’t LLC, 156 N.H. 282, 297 (2007).

Tower Hill’s first claimed error is that the “Commission incorrectly applied a strict liability standard[.]” Tower Hill Brief P.21, 24. Error as to this claim is not preserved. Tower Hill raised no such claim—alleging application of a strict liability standard—in its petition for rehearing. See CR 141-152.

However, even if error preservation were not a problem, the claim fails on its merits. RSA 179:5, I in relevant part provides: “No licensee … shall … serve an individual … who a reasonable and prudent person would know is intoxicated.” Unlike the prior version of the statutory provision, it does not impose strict liability on licensees. See Appeal of Baldoumas Enters., 149 N.H. 736, 739 (2003) (interpreting prior version of the statute as imposing strict liability). However, neither does it require proof that the licensee had actual knowledge or was subjectively aware of the patron’s level of intoxication. Instead, it imposes a reasonable and prudent person standard. This reasonable and prudent person standard is the standard applied by the hearing officer in this case, who wrote:

served five alcoholic beverages in less than an hour. I make the same holding if the number of drinks is four and the time is more than an hour.

CCR 121.

Tower Hill is not incorrect that there is no record evidence showing that Tower Hill “was aware of [T.A.’s] alleged level of intoxication while being served.” Tower Hill Brief P.21. Such evidence, however, is unnecessary. The relevant question is not what Tower Hill (and its staff) subjectively know but what a reasonable and prudent establishment (and its staff) would have known when it served, and a patron within its establishment consumed, five alcoholic drinks in a short period of time.

Tower Hill claims the evidence was insufficient to establish by a preponderance of the evidence that Tower Hill served T.A. when a reasonable and prudent person would know she was intoxicated. Tower Hill Brief, P.25. However, the totality of the evidence is sufficient to support the finding, particularly when deference is given to the hearing officer’s credibility determinations.

Two of T.A.’s friends (A.M. and T.M.Q.) provided reports regarding the activities of the group that night. CCR 015, 020-21. They explained that the group began with a round of green tea shots purchased by A.M. Id. T.A. then purchased a round for the group. Id. Both friends reported T.A. consumed approximately four blueberry vodkas while at Tower Hill in addition to the green tea shot. Id. A.M. reported that her own consumption included only two drinks in addition to the green tea shot 2 and T.M.Q. did not specify the quantity of her own consumption beyond the green tea shot. Id. This was sufficient credible evidence for the hearing officer to conclude that T.A. was furnished and consumed five alcoholic drinks while at Tower Hill Tavern.

There was also sufficient credible evidence supporting the hearing officer’s finding that these drinks were consumed in approximately an hour. The uncontested evidence was that the group of girls arrived at Tower Hill Tavern at approximately 11 p.m. CCR 015, 020-21. An ambulance was called for T.A. at approximately 12:40 a.m., and she was transported to the hospital at approximately 12:50 a.m. CCR 015, 028. The hearing officer reasonably concluded that approximately 40 minutes of the 100 minutes between 11 p.m. and 12:40 a.m. was taken up with T.A.’s disappearing from her friends, laying in a semi-conscious state on the outside deck, interacting with C.C., being transported by security staff from the back deck to chairs in front of Tower Hill, and being found by her friends while she was vomiting and going in and out of consciousness. 3 Tower Hill’s primary objection to the sufficiency of the evidence in this case relates to the lack of evidence establishing the subjective knowledge of Tower Hill staff at the time they were serving the drinks which T.A. consumed. However, as outlined above, the statute lays out an objective test and not a subjective test. Only qualified establishments are granted the privilege of a license to sell liquor, see RSA 178:3, as such sales can present a serious danger to the public health and safety if the establishments so engaged are not operated responsibly. A reasonable and prudent establishment would know to whom they are providing alcohol and in what quantities. See generally N.H. Admin. R. Liq. 602.02(c)(6) (including, among aggravating facts justifying harsher penalties for statutory violations, an establishment’s “failure to monitor the quantity of alcohol served to a patron”).

Tower Hill’s defense in this case is effectively just to assert that their employees were dispensing alcohol in unknown quantities to unknown individuals and so could not possibly have known that T.A. was intoxicated. Even if that fact is true, it only serves to prove that Tower Hill was not operating an establishment as a reasonable and prudent person would and it certainly does not undermine the hearing officer’s conclusion that a reasonable and prudent person would have known that T.A. was intoxicated when she was served her fifth drink within a short period of time.

Separate from the general claim of insufficient evidence, Tower Hill also argues that the hearing officer was unreasonable in relying upon the statements of C.C. because C.C. was not credible and never expressly identified the woman with whom he interacted as T.A. 4 As to C.C.’s credibility, the hearing officer expressly considered this question, including the fact that C.C. had previously been terminated from his employment at Tower Hill, and found C.C. credible. CCR 120.

As to the substance of C.C.’s statements, it was fully reasonable for the hearing officer to infer that the woman with whom C.C. interacted was T.A. C.C. explained that on the relevant night he observed a woman 5 to be highly intoxicated, to the point of losing consciousness, on the back deck of Tower Hill surrounded by security staff. He interacted with this woman, and she made statements similar to those T.A. had made to her friends. Furthermore, to conclude that this woman was anyone other than T.A. would require one to believe that there were two woman served alcohol to the point of unconsciousness at Tower Hill that night. This would not have been the more reasonable inference for the hearing officer to make, and it certainly was not an inference Tower Hill argued for below. See CCA 145.

Tower Hill claims that its constitutional due process rights were violated as a result of the eight-month delay between the date T.A. was overserved and the issuing of the administrative notice. All parties agree that to succeed with such a claim Tower Hill would need to show actual, material prejudice. See Appeal of Omega Entm’t, LLC, 156 N.H. 282, 287 (2007) (“we note that before we will evaluate a due process claim, [Appellant] must show actual prejudice”). Tower Hill attempts to meet this standard in two ways.

First, Tower Hill claims it would not have entered into a settlement agreement with the Liquor Commission to resolve two other pending violations had Tower Hill known about this third violation. See Tower Hill Brief P.36. The problem with this allegation is two-fold. Even if true, this allegation is not material to the due process provided to Tower Hill Tavern in the current proceeding. While such an allegation is theoretically relevant to a claim that the settlement agreement was inappropriately entered, Tower Hill did not below, nor do they now, seek to withdraw that settlement agreement. Additionally, as the hearing officer below explained, “Tower Hill’s argument ignores [the] fact that it knew or should have known of the incident involving [T.A.], on June 11, 2023, prior to the settlement of these Administrative Notices.” CCR 180.

Second, Tower Hill claims it was prejudiced because the Commission would not entertain a settlement agreement in this matter due to the two prior violations. See Tower Hill Brief P.37. The problem with this argument is also two-fold. It fails to recognize that under any situation there would be three violations to adjudicate and, even if those adjudications had occurred in a different order, there is no evidence the Commission would not have taken the same position with relation to the third case. Additionally, due process entitles a party to a meaningful opportunity to be heard. Due process does not confer a right to be heard at a time that best facilitates settlement discussions.

Tower Hill argues that the hearing officer erred in failing to apply new administrative rules which came into effect after the merits hearing but before the decision was issued. Tower Hill’s Brief P.38-43. Tower Hill also argues that, even if it was appropriate to apply the old administrative rules, the hearing officer erred by: (a) concluding that revocation was the required penalty; and (b) failing to consider all necessary factors in determining revocation to be the appropriate remedy. Id. As to the first of these claims, error is not preserved as no such argument was made below. Tower Hill says error was preserved through the filing of a motion to reconsider. Tower Hill Brief, P.7. The motion to reconsider does mention the new administrative rules. See CCR 146-48. However, the sole claim made with relation to these new rules was substantively different than the claim being raised within this appeal. 6 Perhaps recognizing this fact, Tower Hill’s brief contains a one-sentence claim that: “This disregard for the retrospective application of the revised administrative rules constitutes plain error under State v. Taylor, 152 N.H. 719, 720 (2005).” The plain error standard allows the appellate court “to consider an error that affects substantial rights even though not raised by either party.” Taylor, 152 N.H. 720. However, it “should be used sparingly” and only in “circumstances in which a miscarriage of justice would otherwise result.” Id.

Whether the plain error standard applies to appeals from decisions of the Liquor Commission “is an open question.” Appeal of Omega Entm’t, LLC, 156 N.H. 282, 286 (2007). However, even assuming it does apply, Tower Hill cannot meet the four-pronged test. There is no case law making it plain that the hearing officer should have applied the new penalty rules rather than the old penalty rules in this situation where they came into effect after the completion of the merits hearing. Furthermore, no substantive rights were affected, and the alleged error did not “seriously affect the fairness, integrity or public reputation of the judicial proceedings.” Id.

If substantive rights would have been affected by application of the new rules, then the new rules should not have been applied. The standard for applying new rules to pending cases “turns on whether the statute affects the parties’ substantive or procedural rights.” In re M.M., 174 N.H. 281, 289 (2021) (citing State v. Fuller, 169 N.H. 154, 160 (2016)). In general, when a law affects substantive rights and liabilities, it is presumed to apply only prospectively. Id. This presumption, however, reverses when the statute is determined to affect only the procedural or remedial rights of a party. Id. Unlike statutes affecting substantive rights, those affecting procedural or remedial rights are presumed to apply retrospectively to cases that, on the effective date of the statute, have not yet gone beyond the procedural stage to which the statute pertains. See id.

Id.

Additionally, imposing a penalty on Tower Hill under the new rules would not have changed the outcome. The new rules are clear that the hearing officer always retains the authority to revoke a license if he or she believes it is appropriate after consideration of mitigating and aggravating circumstances. See N.H. Admin. R. Liq. 602.01(e) & Liq. 602.02(b) at CCR 43. That is exactly what the hearing officer did in this case. CCR 114-22.

Finally, Tower Hill’s secondary claim—that the hearing officer incorrectly applied the old administrative rules—also fails on its merits. As the hearing officer found, N.H. Admin. R. Liq. 603.01(a)(7) (at TH App. 37) appears to require revocation as a minimum penalty in this case. But even if that were not the case, the hearing officer was clear that he would still order revocation. CCR 114 (“If I was not required to order revocation as a base penalty, after a review of the following, I would still impose revocation.”).

Tower Hill claims this discretionary decision was in error because the court did not consider everything required by N.H. Admin. R. Liq. 603.02(a)(2). Specifically, in addition to considering a licensee’s record of past violations and any evidence of aggravating and mitigating circumstances, the hearing officer is to “[c]onsider the danger posed to public health and safety by the violation” and “[c]onsider any adverse impact of the licensee’s business as operated on the community[.]” N.H. Admin. R. Liq. 603.02(a)(2).

The Liquor Commission would begin by pointing out that the rules require the hearing officer to consider all four factors, but they do not require all four factors to be expressly analyzed in the officer’s written decision. As such, Tower Hill’s claim fails on its face. Furthermore, the hearing officer clearly considered all necessary factors. The danger to public health and safety was clearly demonstrated by Tower Hill’s willingness to serve T.A. five alcoholic beverages within an hour and then its response to her clear distress, including security staff failing to render aid on the back deck and then its decision to move her outside the establishment where she could not be located by her friends. 7 As to Tower Hill’s argument that the hearing officer erred in not considering the impact a revocation would have on the community, the administrative rules do not require such a consideration. The hearing officer is to “[c]onsider any adverse impact of the licensee’s business as operated on the community[.]” N.H. Admin. R. Liq. 603.02(a)(2)(d) at TH App. 38. The main impact of Tower Hill’s manner of operation on the community related to the public health concerns discussed above and considered by the hearing office. The hearing officer was under no obligation to consider the effect of revocation on the community.

Should this Court for any reason determine that the merits order from the administrative proceeding below was entered in error and the case should be remanded for further proceedings, this Court’s remand order should not contain language suggesting reinstatement of Tower Hill’s liquor license is to automatically follow from such a remand. Liquor licenses must be renewed every twelve months, and the Commission is obliged to make a discretionary determination at the time of each renewal as to the appropriateness of the renewal; there is “no presumption that any liquor license shall be renewed.” RSA 178:3, XI. The Commission must make this discretionary determination based upon “the licensee’s record of violations, the manner in which the licensee has operated during the term of the license, and the effect of the license on the neighborhood or community, and any other facts presented at the renewal hearing[.]” Id.

Since this appeal was taken, Tower Hill has filed a renewal application which was denied by the Liquor Commission without reliance on the violation with relation to T.A. See TH App. 55-58. That decision has been appealed by Tower Hill and is currently pending. Furthermore, Tower Hill was found to have committed yet another violation, this time for failing to operate a premise in an orderly manner resulting in bodily injury. See LC App.3-8. The incident giving rise to this determination occurred on April 21, 2024, after the administrative notice was issued with relation to the current violation and before the case came up for a merits hearing. Id. Given that both the denial of the renewal application and the violation for failing to operate a premise in an orderly manner resulting in bodily injury are currently subject to rehearing/appeal processes, the Liquor Commission is not yet able to raise a mootness argument. However, the Commission reserves the right to make such an argument in the future and, in the meantime, seeks to make clear that resolution of this appeal in Tower Hill’s favor would not affect its current status as an unlicensed establishment.

For the reasons stated above, the New Hampshire Liquor Commission respectfully requests this Court affirm the order revoking Tower Hill’s liquor license.

By filing this memorandum of law, the Commission waives oral argument. If the Court schedules argument, Senior Assistant Attorney General Mary A. Triick will present argument on behalf of the Commission.

This memorandum complies with the word limitation set out in Supreme Court Rule 16(4)(b), by containing less than 4, 000 words, exclusive of the signature block and certifications.

March 13, 2025 /s/ Mary A. Triick

I hereby certify that copies of the foregoing were served via the court’s e-file system to all counsel of record.

March 13, 2025 /s/ Mary A. Triick