Appeal of Omega Entertainment, LLC

934 A.2d 591, 156 N.H. 282, 2007 N.H. LEXIS 181
CourtSupreme Court of New Hampshire
DecidedOctober 16, 2007
DocketNo. 2006-122
StatusPublished
Cited by25 cases

This text of 934 A.2d 591 (Appeal of Omega Entertainment, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Omega Entertainment, LLC, 934 A.2d 591, 156 N.H. 282, 2007 N.H. LEXIS 181 (N.H. 2007).

Opinion

BRODERICK, C.J.

The petitioner, Omega Entertainment, LLC (Omega), appeals a decision of the New Hampshire State Liquor Commission (commission) denying its application for renewal of its liquor license. We affirm.

I

The record supports the following. On December 1,2005, Omega applied for renewal of its liquor license at 494 Elm Street in Manchester (Club Omega). At the commission’s meeting on December 7, Eddie Edwards, Chief of the commission’s Bureau of Enforcement (bureau), recommended denial of the renewal application. Based upon the bureau’s presentation, which raised concerns with Omega’s “management, violence on or near the premises, record of violations and public safety,” the commission denied Omega’s renewal application on December 9.

Omega appealed the commission’s denial; orders of notice for a full adjudicatory hearing on the license renewal were issued on December 27, and the hearing was scheduled for January 18, 2006. Subsequent to both parties conducting discovery and exchanging witness and exhibit lists, Omega filed an assented-to motion to continue the hearing in order to accommodate more witnesses, offers of proof, and cross-examination. The commission rescheduled and conducted the adjudicatory hearing on January 25-26. Both parties submitted requests for findings of fact and rulings of law. Omega also filed a motion to vacate the commission’s [285]*285December 9 denial of its renewal application, which the commission denied.

On February 8, 2006, the commission affirmed its denial of Omega’s renewal application, finding that the bureau had satisfied its burden of proof by a preponderance of the evidence. Omega moved for rehearing, alleging a number of errors in the commission’s decision. Based upon a review of the motion for rehearing, the commission issued an interim order (Interim Order I) on February 16 to correct two errors in its February 8 decision. Interim Order I clarified that Omega’s liquor license would expire at 5:00 p.m. on February 17, 2006. The commission issued a second interim order (Interim Order II) on February 24, and an amended second interim order (Amended Interim Order II) on February 27, correcting additional errors, and “reinstating] Omega’s license effective ... February 17 ... [and] extending] [the license] until the Commission has taken final action on the Motion for Rehearing with the applicable appeal period. If the Commission’s final action is unfavorable, the license shall not expire until the last day for seeking judicial review.”

On March 13, 2006, Omega filed an amended motion for rehearing, which incorporated by reference its earlier motion for rehearing. In response, the commission scheduled a public hearing for April 5. During the public session, the commission affirmed its decision of February 8, and voted to deny Omega’s motion and amended motion for rehearing. This appeal followed.

II

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

Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, and all findings of the commission upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated 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.

See Appeal of Baldoumas Enters., 149 N.H. 736, 737 (2003).

On appeal, Omega argues that the commission should be ordered to renew its liquor license due to the commission’s failure to follow numerous statutes and procedural rules. In its notice of appeal, Omega presented twenty-six questions for review. We address, however, only the seventeen [286]*286questions it chose to brief. See Colla v. Town of Hanover, 153 N.H. 206, 210 (2006) (issue waived when raised in notice of appeal, but not briefed).

III

Omega alleges several violations of the Right-to-Know Law, RSA ch. 91-A (2001 & Supp. 2006). At oral argument, counsel for Omega stated that its Right-to-Know Law claims had not been raised during the course of the liquor commission proceedings, that they were first raised in Omega’s notice of appeal, and that they had not been preserved by “prior counsel.” We agree that, as such, the claims would not be preserved for our review. See State v. Blackmer, 149 N.H. 47, 48 (2003). Omega contended, however, that we should review them under our plain error rule, which allows us to consider an error that affects substantial rights even though not raised by either party. See State v. Taylor, 152 N.H. 719, 720 (2005); Sup. Ct. R. 16-A.

Under our plain error rule, we consider the following four elements: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. Taylor, 152 N.H. at 720. We note that whether our plain error rule applies to proceedings of the liquor commission is an open question. However, even assuming that the rule does apply to such agency proceedings, and that “substantial rights” of Omega were at stake, its use should be limited to those circumstances in which a miscarriage of justice would otherwise result. See State v. MacInnes, 151 N.H. 732, 736-37 (2005). In this case, whatever procedural errors the liquor commission may have committed that implicated the Right-to-Know Law were subsequently corrected. The commission’s Interim Order I, Interim Order II, and Amended Interim Order II were all designed to correct earlier alleged errors. The public session and full deliberation on April 5, subsequent to notice to the public and Omega, addressed the commission’s earlier failure to deliberate in public both on Omega’s motion to vacate and subsequent to the January 25-26, 2006 adjudicatory hearing. Given the actions of the commission to rectify earlier errors, we cannot say that any error under the Right-to-Know Law seriously affected the fairness, integrity, or public reputation of the proceedings.

IV

Omega alleges several violations of its right to due process. It first contends that the commission failed to provide proper notice “prior to the December 7, 2005 and March 10, 2006 hearings.” Because nothing in the record indicates that a hearing occurred on March 10, 2006, we assume [287]*287that Omega meant to refer to the meeting of the commission scheduled for March 20, 2006, at which it intended to consider Omega’s motion for rehearing. In its brief, the commission concedes that its notice of the March 20 meeting did not comply with the notice requirements of either the commission’s rules or RSA 91-A:2, II. The commission also notes, however, that upon receipt of Omega’s objection, it continued the consideration of Omega’s motion for rehearing until the commission’s regularly-scheduled meeting of April 5, 2006. The record reflects timely notice of the April 5 meeting, and Omega does not claim error with regard to the conduct of the April 5 meeting. As we discuss the issue of notice of the December 7 meeting in our analysis in Section V, below, we need no further discussion of Omega’s allegation of improper notice here.

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Bluebook (online)
934 A.2d 591, 156 N.H. 282, 2007 N.H. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-omega-entertainment-llc-nh-2007.