In Re M.S.D.D., Inc.

2009 VT 72, 980 A.2d 777, 186 Vt. 561, 2009 Vt. LEXIS 103
CourtSupreme Court of Vermont
DecidedJuly 15, 2009
Docket08-352
StatusPublished
Cited by1 cases

This text of 2009 VT 72 (In Re M.S.D.D., Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re M.S.D.D., Inc., 2009 VT 72, 980 A.2d 777, 186 Vt. 561, 2009 Vt. LEXIS 103 (Vt. 2009).

Opinions

¶ 1. Licensee appeals the Liquor Control Board’s decision to suspend the establishment’s liquor license for twenty-five days based upon the Board’s finding that licensee violated a regulation concerning the serving of alcohol to intoxicated patrons. We affirm.

¶ 2. During the wee hours of the morning on November 17, 2007, after consuming alcohol at licensee’s establishment, a patron drove his car the wrong way onto the interstate highway and struck another vehicle head-on, resulting in a fatality. Following an investigation, the Department of Liquor Control alleged in a notice of hearing that licensee had violated two regulations concerning the fur[562]*562nishing of alcohol to patrons. The Board held a contested hearing, during which several persons testified on behalf of and against licensee. Following the hearing, the Board determined that licensee had not violated General Regulation 17 (GR17), which prohibits furnishing alcohol “to a person displaying signs of intoxication,” but that licensee had violated General Regulation 17a (GR17a), which prohibits serving alcohol “to a person whom it would be reasonable to expect would be under the influence as a result of the amount of alcohol served to that person.” Department of Liquor Control Regulations 17 & 17a, 4 Code of Vt. Rules 26 020 016-1 (2005).1 Licensee obtained a stay of the resulting twenty-five-day suspension pending this appeal.

¶ 3. Licensee first argues that the Board erred by allowing a state trooper to testify regarding statements that the patron made to him shortly after the accident. According to licensee, the Board’s admission of the hearsay testimony under the excited-utterance exception was erroneous, given (1) the lack of foundation evidence establishing that the patron was under the stress of excitement, and (2) the Board’s own findings indicating that the patron was reflective and guarded in responding to the trooper’s questions. Absent the patron’s statements to the trooper, licensee argues, there is insufficient evidence to conclude that it violated GR17a. Generally, “[t]he rules of evidence as applied in civil cases in the superior courts of this state shall be followed” in administrative proceedings. 3 V.S.A. § 810(1). However, “[w]hen necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted... if it is of a type commonly relied upon by reasonably prudent [persons] in the conduct of their affairs.” Id. Moreover, “[e]rror may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection.” V.R.E. 103(a)(1).

¶ 4. From the briefing, it appears that the evidence licensee finds objectionable is the patron’s statements, recorded on a video in the trooper’s vehicle. These include the patron saying that he had eight to nine drinks during the day and night, only a small number of which were consumed during the day. These statements did not come out through the testimony of the trooper, to which licensee made a hearsay objection.2 Indeed, virtually all of the testimony of the trooper related to his observations of the patron’s actions and state of intoxication, and not to the patron’s statements.

¶ 5. The patron’s statements at issue were made during the video-recorded interview, which the State offered as evidence and the Board admitted. The only objection licensee made to the admission of the video was that the patron had not been given his Miranda warnings, an objection it does not pursue in this Court. In the absence of a hearsay objection to the admission of the video to the Board, its hearsay argument here is unpre served. See State v. Lettieri, 149 Vt. 340, 344, 543 A.2d 683, 685 (1988) (objection on the wrong ground precludes a party from raising a new ground on appeal). The statement was properly admitted.

[563]*563¶ 6. Licensee next asserts that, even with the admission of the trooper’s testimony and the videotape, the Board’s findings of fact do not support its conclusion that licensee violated GR17a. For the most part, licensee’s arguments on this point completely miss the mark in the sense that they appear to be directed at GR17, of which the Board found no violation, rather than GR17a. Licensee asserts that it may serve drinks to anyone who does not “appear to be” under the influence, and that no evidence or findings demonstrated that the patron “appeared under the influence” when he was served alcohol at its establishment. Licensee notes that the patron did not display any signs of intoxication when he first entered the establishment, and that none of licensee’s employees observed any indication of intoxication during the approximately three hours that he was on the premises. Licensee reiterates that there were “no observable signs” of intoxication at any point during the evening, and that in fact not a single person reported that “they observed signs of intoxication” from the patron. According to licensee, there can be no violation of GR17a unless the patron’s intoxication is “observable to the one selling the alcohol.” Licensee asserts that the Board erred in finding a violation of GR17a because its own findings demonstrate that the patron “displayed no outward signs of intoxication.”

¶ 7. These arguments are entirely unavailing. The Board explicitly declined to find a violation of GR17, which prohibits furnishing alcohol to persons “displaying signs of intoxication.” Instead, the Board found a violation of GR17a, which prohibits selling alcohol “to a person whom it would be reasonable to expect would be under the influence as a result of the amount of alcohol served to that person.” Here, based on the patron’s statements on the video and the undisputed evidence concerning his blood-alcohol concentration (BAC) after the accident and at various times earlier during the evening, the Board rejected as not credible the testimony of licensee’s employees concerning the number of drinks served to the patron during the three hours or so he was at the establishment. As the Board found, the undisputed evidence indicated that the patron’s BAC was .202 at 2:20 in the morning of November 17, which would have made it .226 at 10:45 the previous evening, about halfway through the patron’s stay at the establishment, and .211 shortly before the patron left the premises and drove the wrong way on the interstate. Based on this evidence, the Board determined that the patron “consumed far more alcohol than [licensee] proclaimed that he did,” and that “materially all of the high BAC that [the patron] obtained was acquired while he was at [licensee’s] premises.” According to the Board, “[w]hoever and however [the patron] was served the multiple alcoholic drinks while at [licensee’s establishment] to achieve the very high BAC level discussed, [it] violated [GR17a] on apparently more than one occasion.”

¶ 8. The Board acknowledged the possibility, however remote, that the patron may have been given drinks by other patrons, and thus that licensee’s employees may not necessarily have served the patron all of the drinks that led to his high BAC. Nevertheless, the Board found a violation of GR17a, given the patron’s history of having arrived at the establishment intoxicated, thereby creating a heightened duty on the part of licensee’s employees to assure that the patron was not obtaining alcohol from other patrons.

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Related

In Re M.S.D.D., Inc.
2009 VT 72 (Supreme Court of Vermont, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 VT 72, 980 A.2d 777, 186 Vt. 561, 2009 Vt. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-msdd-inc-vt-2009.