Time-of-Service Knowledge, Not Post-Event Intoxication, Governs Overservice Liability Under RSA 179:5, I

Introduction

In Appeal of Tower Hill Tavern, LLC, 2025 N.H. 41, the New Hampshire Supreme Court reversed a New Hampshire Liquor Commission order imposing a $5,000 fine and revoking the liquor license of Tower Hill Tavern for allegedly overserving a patron, T.A., who was later treated for alcohol poisoning. The decision clarifies a pivotal point of administrative and liquor law: when a patron is not visibly intoxicated, liability under RSA 179:5, I turns on what a reasonable and prudent licensee would have known at the time of service, based on information then available—not on post-event inferences such as the number of drinks consumed within a time period or a subsequent hospitalization.

The core statutory issue was whether there was sufficient evidence that Tower Hill “serve[d] an individual … who a reasonable and prudent person would know is intoxicated.” RSA 179:5, I. The Commission conceded there was no evidence of what Tower Hill’s servers knew about the patron’s condition while serving her. It nevertheless argued that the number of drinks consumed in a short time frame was sufficient to prove a violation. The Court rejected that position and remanded, reinforcing that the statute’s objective standard is tethered to the time of service and requires evidence of knowledge available to the server at that time.

Parties and posture:

Petitioner: Tower Hill Tavern, LLC (licensee).
Respondent: New Hampshire Liquor Commission (enforcement agency).
Agency outcome: $5,000 fine and license revocation based on alleged overservice.
Supreme Court outcome: Reversed and remanded; order stayed pending appeal.

Summary of the Opinion

Chief Justice MacDonald, writing for a unanimous Court, held:

RSA 179:5, I creates an objective standard—what a reasonable and prudent person would know—but that standard applies at the time of service.
When visible intoxication is not proven (and it was not here), the Commission must present some evidence of what the server knew or reasonably should have known based on information available at the time of service.
The mere fact that a patron consumed four or five alcoholic drinks within about an hour, standing alone, is insufficient to prove that a reasonable and prudent server would have known the patron was intoxicated.
Absent additional contemporaneous evidence—such as drink strength, the patron’s physical characteristics, visible signs, expert testimony on likely impairment, or information communicated to the server—the Commission failed to establish a violation.
The decision reverses the Commission’s order and remands with direction consistent with the rule that unproven violations should be cleared from a licensee’s record. See N.H. Admin. R., Liq 205.32(c).

Analysis

Precedents Cited and Their Influence

RSA 541:13; Appeal of Baldoumas Enterprises, 149 N.H. 736 (2003):
Sets the standard of judicial review for agency decisions: the Court will reverse only for an error of law or if, by a clear preponderance of the evidence, the order is unjust or unreasonable. The Commission’s factual findings are presumed lawful and reasonable. This framework framed the Court’s restraint on fact-finding while allowing de novo statutory interpretation and sufficiency review.
Appeal of Town of Seabrook, 163 N.H. 635 (2012); St. Onge v. Oberten, LLC, 174 N.H. 393 (2021):
These cases articulate the approach to statutory construction: look first to the statute’s plain meaning, give effect to all words, and construe the statute within the broader statutory scheme. Here, those canons led the Court to focus on the words “serve” and “would know,” anchoring the inquiry at the time of service.
Burns v. Bradley, 120 N.H. 542 (1980):
A foundational New Hampshire tort decision in the service-of-alcohol context. Burns held that evidence of the number of drinks served—seven, in that case—without more, was insufficient to show that the server breached a duty not to serve an intoxicated person. The Court used Burns by analogy to reject the Commission’s argument that quantity-within-time alone proves a statutory violation. The citation to Burns underscores the Court’s insistence on evidence relating to the server’s contemporaneous knowledge or observable indicia, rather than retrospective counting.
Currier v. Newport Lodge No. 1236, 589 F. Supp. 3d 210 (D.N.H. 2022):
A federal decision applying New Hampshire law that likewise emphasizes the need for evidence beyond raw counts of drinks to establish knowledge of intoxication. The Court’s “cf.” citation indicates alignment with Currier’s evidentiary rigor without fully adopting its analysis.
Antosz v. Allain, 163 N.H. 298 (2012):
Cited for the principle that courts need not reach alternative arguments when one ground is dispositive. Having found insufficient evidence under RSA 179:5, I, the Court declined to address the parties’ remaining arguments.
N.H. Admin. R., Liq 205.32(c):
Provides the administrative consequence on remand: if a violation is not proven, the Commission must clear the allegation from the licensee’s violation history. The Court’s reference signals that reversal should carry practical record-clearing effects.

Legal Reasoning

The statutory text governs: “No licensee … shall … serve an individual who is visibly intoxicated or who a reasonable and prudent person would know is intoxicated.” RSA 179:5, I. The Court draws two key inferences:

The statute sets out two distinct pathways to a violation:
- Visible intoxication (a directly observable condition), or
- Non-visible cases where, nonetheless, a reasonable and prudent person “would know” the patron is intoxicated.
The operative phrase “would know” is pegged to the act of “serv[ing]”—that is, knowledge must be assessed at the time of service, not reconstructed later from outcomes or aggregate consumption.

Applying the statute to the record, the Court emphasized:

Visible intoxication was neither found nor argued.
The investigator did not interview the bartenders who served T.A., and the Commission presented no evidence of what the servers knew or what information was available to them while serving (e.g., the number of drinks they themselves had prepared for T.A., the strength of the pours, the patron’s appearance, or anything communicated about her condition).
A friend reported T.A. was “about” a 4 on a 10-point intoxication scale, “fine at the bar,” and standing the entire time—evidence that cut against obvious impairment while being served.
Although the hearing officer concluded that five beverages in less than an hour (or even four in more than an hour) would make intoxication knowable to a reasonable and prudent server, the Court rejected the notion that drink count and elapsed time, standing alone, are dispositive.

Two doctrinal clarifications emerge:

Evidence Must Be Time-Linked: To invoke the objective “reasonable and prudent” standard, the Commission must produce some evidence of what the server knew or reasonably could have known at the time of service. That could include the server’s observations, bar receipts or POS data attributable to the patron, contemporaneous communications, video, or other indicia accessible when pouring the drinks. Post-event facts (hospitalization, later vomiting) do not substitute for time-of-service knowledge.
No Per Se Numeric Threshold: Even assuming a server knew the patron had been served five drinks in under an hour, that fact alone does not establish that a reasonable and prudent person would know the patron was intoxicated. As Burns v. Bradley teaches, raw counts are insufficient without corroborating factors such as drink strength, patron characteristics, observed behavior, and expert evidence on likely impairment.

Impact and Implications

The decision has immediate practical and doctrinal consequences for liquor enforcement and for licensees:

Enforcement Protocols:
- Investigators will need to gather contemporaneous, server-focused evidence—interview bartenders, capture POS records tying drinks to a patron, collect surveillance footage, and document observable signs (speech, balance, demeanor) at or near the time of each service.
- Reliance on after-the-fact indicators (e.g., hospitalization, patron’s later condition, or friends’ retrospective estimates) will not, without more, sustain a violation where visible intoxication is not proven.
Administrative Adjudication:
- Hearing officers must analyze the server’s time-of-service knowledge base and avoid per se inferences from drink counts alone.
- In close cases, expert testimony regarding probable impairment given specific drink strengths, patron physiology, and timing may be pivotal.
Licensee Compliance:
- Bars should adopt practices that both promote safety and create contemporaneous records: assign drinks to specific patrons in POS systems, standardize pours, use visible wristbands or tabs to track patron-specific orders, and train staff to log and communicate observed impairment signs in real time.
- Employee training should emphasize that visible intoxication is not the only trigger; staff must synthesize available real-time information (e.g., known drink counts and strength, observed behavior) to decide whether to refuse service.
Civil Litigation and Cross-Pollination:
- Although this is an administrative enforcement case, its reasoning aligns with Burns and Currier and is likely to influence civil overservice claims: plaintiffs will need evidence tethered to the time of service to show that a reasonable server would have known the patron was intoxicated.
- The opinion forecloses arguments that a numeric “per hour” service threshold creates automatic liability under New Hampshire law.
Record Consequences:
- On remand, the Commission must clear the violation from Tower Hill’s history if not proven, per Liq 205.32(c), underscoring that evidentiary deficiencies have concrete regulatory effects.

Complex Concepts Simplified

Objective “Reasonable and Prudent” Standard:
This does not ask what the particular bartender actually thought; it asks what a hypothetical reasonable and prudent person in the server’s position would have known, given the information available at that time.
Time-of-Service Focus:
The statute prohibits “serv[ing]” an intoxicated individual. Accordingly, the knowledge inquiry occurs at the moment of pouring or handing over the drink—not after the patron leaves, becomes ill, or is hospitalized.
Visible Intoxication vs. Knowable Intoxication:
Visible intoxication involves outward signs (slurring, stumbling). The “reasonable and prudent” prong covers cases where intoxication might not be obvious but should still have been recognized based on what the server knew (e.g., known high-alcohol drinks consumed rapidly by a small-stature patron showing subtle cues).
Insufficient Evidence by Count Alone:
A tally of drinks over time is not, by itself, enough to prove a violation. Other factors matter: drink strength, patron’s physical characteristics, observed behavior, and expert input on typical impairment levels.
Appellate Review of Agency Decisions (RSA 541:13):
The Supreme Court defers to the agency’s factual findings unless, by a clear preponderance of the evidence, the order is unjust or unreasonable. However, the Court interprets statutes anew (de novo) and ensures correct legal standards and evidentiary sufficiency are applied.

Conclusion

Appeal of Tower Hill Tavern, LLC establishes a clear and consequential rule in New Hampshire liquor enforcement: when visible intoxication is not shown, the Commission must prove, with evidence tied to the time of service, that a reasonable and prudent server would have known the patron was intoxicated. The Court firmly rejects numerical per se inferences from drink counts and elapsed time, aligning administrative enforcement with long-standing tort principles reflected in Burns v. Bradley. The decision recalibrates investigative expectations, urging contemporaneous, server-focused evidence and, where appropriate, expert testimony, while encouraging licensees to adopt training and recordkeeping practices that permit real-time assessment and post hoc verification of responsible service decisions. In short, the opinion protects both public safety and procedural fairness by insisting that overservice liability be grounded in what could reasonably be known when the drink was served—not on hindsight.