2025 brought substantial change to New Hampshire statutes governing the sale and consumption of alcoholic beverages. Licensees should be aware of how these new policies interact with existing enforcement standards, particularly RSA 179:5, I, which prohibits the sale of alcohol to a patron who would be considered intoxicated by a “reasonable and prudent person.”
Supreme Court clarifies enforcement of RSA 179:5, I
RSA 179:5, I provides, in relevant part, that “[n]o licensee…shall…serve an individual who is visibly intoxicated or who a reasonable and prudent person would know is intoxicated.” (emphasis added). The New Hampshire legislature added the “reasonable and prudent person” language in 2010 after a prior version was found to impose strict liability. This past September, the Supreme Court further interpreted this language in Appeal of Tower Hill Tavern, LLC, 2025 N.H. 41. The ruling provides clear direction on the evidence required to prove a violation.
Rate of consumption alone is insufficient to meet objective standard
In Appeal of Tower Hill, the Liquor Commission did not present any evidence from Tower Hill Tavern staff as to how the patron in question presented at the time of service, claiming that this information was irrelevant due to the purported rate of the patron’s consumption. The Supreme Court rejected this, ruling that to prove a violation, there must be evidence that the server knew, or reasonably should have known, that the patron was intoxicated when served. Although the Liquor Commission argued that the rate of service itself in this case (five drinks in an approximately sixty-minute period) was per se unreasonable, the Court held that the rate of consumption alone is insufficient, and that other evidence—such as drink strength, the patron’s size, or signs communicated to the staff—would need to be demonstrated to have been known by the staff at the time of service to establish a violation.
The impact of Tower Hill on new laws: HB 467 and HB 81
The New Hampshire Legislature passed two bills in 2025 that are directly impacted by Appeal of Tower Hill.
- HB 467, which allows municipalities to create “social districts” where patrons may consume alcohol outdoors in designated areas, and
- HB 81, which removes prohibitions on bringing alcoholic beverages into bathrooms
Neither new law changes RSA 179:5, I, but both make monitoring consumption and intoxication more challenging. In social districts, patrons may obtain drinks from multiple establishments, making it harder for any one licensee to track how much a patron has consumed. Allowing drinks in bathrooms similarly reduces visibility into how alcohol is handled or transferred between patrons.
These scenarios may complicate enforcement. If an intoxicated individual is later found with a container bearing a licensee’s label, the licensee may be presumed to have served that drink, and the inquiry will turn on whether the server acted reasonably at the time of service. While this situation may be addressed by forthcoming Liquor Commission rules, licensees should think about establishing policies that address this issue.
Preparing for compliance
Until the Liquor Commission issues further rules, licensees should evaluate how they monitor on-premises consumption, address intoxicated individuals, and keep and maintain records necessary to respond to enforcement investigations. Lastly, licensees should engage qualified counsel to assist in responding to any enforcement investigation or hearing.
Bernstein Shur’s Labor & Employment Group helps businesses of all sizes build compliant, productive workplaces through practical, real-world solutions. The group provides full-spectrum support on issues ranging from hiring and discipline to investigations, regulatory compliance, and employment litigation. Jim Armillay is an employment attorney and business litigator who advises employers on workplace compliance, risk management, and litigation strategy, and represents clients in disputes before courts and regulatory agencies. He can be reached at [email protected].