Appeal of Tower Hill Tavern

Compensating for this evidentiary deficiency, the Commission claims that “[s]uch evidence … is unnecessary” and that Tower Hill’s knowledge of service to Alexander or of her level of intoxication is immaterial. Id. In making this argument, the Commission engages in sleight of hand by falsely claiming that Tower Hill argues for a subjective rather than an objective standard. Id. The Commission is wrong. RSA 179:5 clearly imposes an objective standard; however, the statute also requires knowledge by the licensee that the customer was “serve[d].” Applying the proper standard, the Commission’s concession that the record is bereft of any evidence that Tower Hill knew the amount Alexander was allegedly served or her alleged level of intoxication requires reversal of the orders below. In 2003, this Court found that the prior version of RSA 179:5 imposed strict liability and, therefore, determined that the licensee’s lack of knowledge that the customer was intoxicated was “irrelevant.” In re Baldoumas Enterprises, Inc., 149 N.H. 736, 737 (2003). Following that decision, the legislature rewrote RSA 179:5, I to include an element that the licensee “serve” an individual, and adding qualifying language to the intoxication standard replacing strict liability with at least a negligence standard. See Currier v. Newport Lodge No. 1236, Loyal Order of Moose, 589 F.Supp.3d 210, 223 n. 25 (D.N.H. 2022) (“Prior to its amendment, RSA 179:5, I was a strict liability statute. The legislature amended the statute in 2009 to reflect a negligence-like standard.”) (internal citation omitted). Under the current statute, a licensee may not “serve an individual who is visibly intoxicated or who a reasonable and prudent person would know is intoxicated.” RSA 179:5, I (2010) (emphasis added). Thus, the Commission must now prove that the licensee: 1) served an individual who was either 2) visibly intoxicated; or 3) who a reasonable and prudent person would know is intoxicated. This standard necessarily requires evidence of the licensee’s knowledge of the customer’s status at the time of service. Currier, 589 F.Supp.3d at 223-224 (discussing notice hypothetical and concluding “[t]he statute imposes liability for what a bartender knew or a reasonably prudent bartender would have known.”). The Commission’s admission that there is no evidence of Tower Hill’s knowledge of

was—applying the wrong standard and abrogating the mens rea requirement of a statute would constitute plain error. See N.H. R. Evid. 103(e).

Alexander’s alleged level of intoxication at the time of service and its contention that such evidence is irrelevant demonstrates a desperate attempt to salvage orders below that imposed a strict liability standard contrary to law.

Additionally, the Commission’s interpretation renders the two prongs concerning the customer’s intoxication nullities. The Commission may attempt to prove the licensee served a “visibly intoxicated” person—an actual knowledge standard. Or the Commission may attempt to prove the licensee served a person “who a reasonable and prudent person would know is intoxicated”—an objective standard. However, even an objective standard of the customer’s level of impairment nevertheless requires knowledge by the licensee of its actions in relation to that customer. Indeed, the meaning of the verb “serve” includes “to set out portions of food or drink” and “to wait on customers”—affirmative acts accomplished with the knowledge of the actor. See https://www.merriam- webster.com/dictionary/serve. A standard that only considers the status of the customer in the absence of any knowledge by the licensee is the same as the pre-amendment standard that rendered the licensee’s knowledge “irrelevant”—the very standard that was rejected by the legislature in the amendment to RSA 179:5, I. Currier, 589 F.Supp.3d at 223 n. 25. This is contrasted by the fact that although the legislature imposed a “serve” element and a mens rea requirement concerning adults, it did not adopt a “serve” element and maintained the strict liability standard concerning providing alcohol to a minor. See RSA 179:5, I (2010) (“No licensee … shall sell or give away or cause out allow to procure to be sold, delivered, or given away any liquor or beverage to a person under the age of 21…”).

The Merits Order did not address Tower Hill’s knowledge at time of service and exclusively relied on Alexander’s level of intoxication after she was served. (CCR, 111-12). The Rehearing Order held that Tower Hill’s level of knowledge at the time of service was immaterial because there was no evidence that Tower Hill was aware of Alexander’s level of intoxication at the time of service. (CCR, 178). On appeal, the Commission doubles down on the latter argument claiming that the objective standard is not judged based upon the facts the licensee knew or should have known at the time of service based upon the evidentiary record, but by “what a reasonable and prudent establishment (and its staff) would have known when it served, and a patron within its establishment consumed, five alcohol drinks in a short period of time.” Memo of Law, p. 5. Because, as the Commission concedes, there is no evidence that Tower Hill was aware Alexander consumed 5 drinks, no evidence of visible intoxication 2, and no evidence that Tower Hill was aware that Alexander was served at all other than the one drink she personally ordered, this circular argument is untethered to the evidence and imposes a strict liability standard that is not permitted by the current version of RSA 179:5, I. II. The Record does not Support a Violation of RSA 179:5 by a Preponderance of the Evidence

The Merits Order and the Rehearing Order should be reserved because they wrongly conclude that the Commission proved by a preponderance of the evidence that Tower Hill served Alexander when a reasonable and prudent person would have known she was intoxicated. Neither order is premised on credible evidence presented by the Commission. Rather, the Hearings Officer injected his own judgment premised upon his estimate of the alleged rate of service that was not based on any direct testimony (expert or otherwise) or citation to any standard, regulation or rule to conclude that his determined rate of service equates with intoxication and per se overservice under RSA 179:5. 3 Appellant’s Brief, pp. 25-26. The Merits Order reached this conclusion even though the record demonstrates that Alexander’s companions consumed alcohol at the same rate and Investigator Michaud, who personally observed them, determined they were not intoxicated and allowed them to drive. Id., pp. 32-33. If Alexander’s companions were not per se intoxicated, then it was

any evidence of Tower Hill’s knowledge is immaterial. These inconsistencies further undermine the orders below. 3 Neither RSA 179:5 nor the Commission’s administrative rules contain any reference to per se intoxication. Compare with RSA 265-A:2, I(b). reversable error for the Hearings Officer to determine that Alexander was per se intoxicated based upon the same rate of service. The building blocks for the shaky conclusion that Alexander was per se overserved are largely based upon the narrative provided by Christopher Collette to Inv. Michaud ten days after the incident. (CCR, 106-107). However, Collette had an axe to grind with Tower Hill, there is no evidence in the record that he was present on June 10-11, 2025, or that the “young lady” he allegedly observed was the forty-four year old Alexander. Appellant’s Brief, pp. 24-28. Coupled with the Commission’s concession that there is no evidence that Tower Hill was aware of Alexander’s alleged rate of service, there is insufficient evidence to establish that a “reasonable and prudent person” in the shoes of Tower Hill’s bartender would know Alexander was intoxicated. Currier, 589 F.Supp.3d at 223. There is no evidence that Tower Hill was aware Alexander consumed alcohol prior to her arrival at Tower Hill, no evidence Alexander (or her companions) drew attention to themselves while consuming alcohol at Tower Hill, no evidence that any bartender understood that Alexander and her companions where together when ordering rounds, no evidence that Alexander was visibility intoxicated when consuming alcohol at Tower Hill, and no evidence that Tower Hill was even aware it served her more than one drink. This is not like the hypothetical discussed by the court in Currier where a licensee is informed that a customer was cut off from service at a prior bar for acting too rowdy and drinking too much, but then elects to serve customer anyway. Id. This case is analogous to the facts in Baldoumas where there was no evidence of the customer’s level of intoxication prior to or at the time of service, yet the licensee was found liable based upon her condition after the fact. 149 N.H. at 736-737. The current version of RSA 179:5, I requires more and the orders below must be reversed. Into this breach, the Commission presents a series of arguments that are easily swept aside.

The Commission argues that this Court should defer to the Hearings Officer’s credibility determinations. Memo of Law, pp. 6, 8. However, the Commission’s only live witness was Inv. Michaud, who merely recounted the statements of Alexander’s three companions and Collette as previously documented in his report and in their written statements. 4 The Hearings Officer merely read the statements, credited the portions of the record favorable to the Commission, and reached his own determinations as discussed above. Considering that the Hearings Officer ignored that Inv. Michaud failed to interview any Tower Hill bartender or security personnel, failed to obtain any of Alexander’s medical records, failed to investigate any other establishment Alexander went that night, and failed to interview Alexander, any conclusions drawn by the Hearings Officer from Inv. Michaud’s investigation are not owed deference from this Court. See Appeal of LeBorgne, 173 N.H. 488, 497 (stating that an agency’s factual findings are viewed deferentially, so long as they are supported by competent evidence in the record upon which the agency’s decision could have been reasonably made).

The Commission shamelessly misstates Tower Hill’s arguments, falsely claiming its “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 possible have known that T.A. was intoxicated.” Memo of Law, p. 7. Nothing could be further from the truth. Rather, the burden is on the Commission to present evidence that Alexander was served and, at the time of service, Tower Hill knew or reasonably should have known that Alexander was intoxicated. See RSA 179:5, I. Fairly read, the record establishes only that Tower Hill was aware it served Alexander one drink. There is no evidence that a reasonable and prudent person would have known that Alexander was intoxicated while she was consuming alcohol. In fact, the statements of her companions are unanimous that Alexander did not appear intoxicated. Additionally, the Commission ignores that Alexander was present during Motorcycle Weekend—one of the busiest nights of the year at an establishment with more than one floor and more than one bar. The Commission’s failure to unearth and present evidence of overservice or intoxication at the time of service requires reversal notwithstanding the hyperbolic attacks on Tower Hill’s law-based defenses in this matter.

Finally, as discussed above, the Hearings Officer’s calculations on rate of service are not based upon direct testimony, have no basis in statute or administrative rule, and ignore Inv. Michaud’s determination that Alexandar’s companions were not intoxicated even though they consumed the same amount of alcohol.

III. The Commission Mischaracterizes Tower Hill’s Due Process Argument

This Court has articulated a stalwart commitment to the fundamental principle of New Hampshire law that “due process forbids the government from denying or thwarting claims of statutory entitlement by a procedure that is fundamentally unfair.” Appeal of Eno, 126 N.H. 650, 653 (1985) (emphasis added); Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320 (2004) (“The ultimate standard for judging a due process claim is the notion of fundamental fairness.”). “Fundamental fairness requires that government conduct conform to the community’s sense of justice, decency and fair play.” Appeal of Mullen, 169 N.H. 392, 397 (2016) (quoting Saviano, 151 N.H. at 648). Before this Court will evaluate a due process claim, however, the movant must show actual prejudice. In re Omega Entm’t, LLC, 156 N.H. 282, 287 (2007).

The Commission mischaracterizes the nature of Tower Hill’s due process claim in attempting to argue Tower Hill has failed to demonstrate material prejudice. Memo of Law, p. 9. There is no dispute that the Commission held the issuance of the administrative notice in this matter for six (6) months after the investigation was complete and did not make Tower Hill aware that an administrative notice in this matter was forthcoming, despite the Commission’s active negotiation with Tower Hill concerning a settlement agreement covering similar violations during the same period. (See CCR, 11-13, 62-64; Tr. 92:20-93:17). After Tower Hill accepted the Commission’s proposed settlement, which included 8 points held in abeyance for a period of one year assuming no “like violations, ” the Commission then sent the administrative notice in this matter. The material prejudice to Tower Hill is made plain in the weight given to Tower Hill’s history of prior violations of RSA 179:5 during the adjudicative hearing in this matter. The Commission specifically relied on the two violations that were the subject of the settlement agreement in determining special penalty assessments and whether Tower Hill’s license should be revoked. (CCR, 119-120). The Enforcement Division also specifically cited these prior violations in demanding revocation and in refusing to consider a negotiated resolution that would allow Tower Hill to keep its license. (See Tr. 98:13-99:4, 102:12-109:7). For these reasons, Tower Hill was materially prejudiced by the loss of administrative remedies which would have allowed it to keep its license, increased sanctions and penalties, and significantly increased the likelihood that its license would be revoked or not renewed upon an adverse finding due to the imposition of the eight (8) points held in abeyance.

The Commission’s argument that Tower Hill “should have known” that the incident involving Alexander would result in an administrative notice is belied by the Tower Hill’s stated past experiences with other matters where administrative notices were issued quickly after alleged violations. Similarly, as the Commission failed to interview Tower Hill bartenders as part of its investigation, Tower Hill had no reason to believe that an investigation was ongoing or that an administrative notice would issue eight months after the alleged violation.

The record establishes that the Commission utilized the knowledge imbalance between the Commission and Tower Hill to materially prejudice Tower Hill in this administrative proceeding. This kind of conduct by the Commission is fundamentally unfair and plainly offends any New Hampshire citizen’s sense of justice, decency and fair play. IV. The Commission Submits an Untrue Statement Regarding the Record

In an attempt to poison the record, the Commission claims that 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.” Memo of Law, p. 15. The Commission failed to inform this Court that the referenced order was suspended and was not in effect when the Memo of Law was filed. See Exhibit 1. The order was suspended, in part, based upon a showing that it relied upon false and perjurious testimony by the investigating officer. See Exhibit 2. The Commission did not object to Tower Hill’s petition for rehearing. Notwithstanding this Court’s Order staying enforcement of the Orders below in this case, the Commission has refused to reinstate Tower Hill’s license and denied Tower Hill’s request to renew its liquor license.

5 This Court must act to stop the unlawful and arbitrary actions of an administrative agency that does not follow its own rules or basic precepts of due process.

For the reasons stated above and in its Opening Brief, Tower Hill Tavern, LLC respectfully requests that the Court vacate the Orders of the New Hampshire Liquor Commission.

I, William E. Christie, Esq., do hereby certify that a copy of the foregoing reply brief and addenda thereto have been served through the New Hampshire Supreme Court’s electronic filing system upon the following counsel of record: Mary A. Triick, Esq., New Hampshire Office of the Attorney General

I hereby certify that on this 6th day of March, 2025, a copy of the foregoing has been emailed to Timothy A. Patterson, Prosecutor for the Division of Enforcement & Licensing.