On a Saturday evening in late December, a car hit a female pedestrian at the intersection of Market and Bow streets in downtown Portsmouth, outside Fat Belly’s Bar and Grill. Emergency personnel rushed the victim to the hospital with serious leg injuries. According to police, she is still in a wheelchair.

About a month later, authorities responded to The Page on Hanover Street after receiving a report of an unresponsive woman in the bar. That woman was only 19 years old and had to go to a hospital emergency room to get her stomach pumped.

Both cases led to arrests. The 27-year-old driver who struck the woman outside Fat Belly’s faces felony charges of driving under the influence, reckless conduct and vehicular assault. The 19-year-old patron of The Page faces one count of unlawful possession of alcohol. 

But they’re not the only ones facing charges. Almost two months after the Fat Belly’s crash, on Feb. 15, police arrested a bartender at Fat Belly’s and charged him with prohibited sales of alcohol, a class A misdemeanor. According to police, the bartender had served the driver beer, “even though he was obviously intoxicated.” On Feb. 3, police arrested a bartender at The Page for allegedly serving alcohol to the 19-year-old.

While the two bartenders face criminal charges, Fat Belly’s and The Page could face regulatory penalties from the N.H. Liquor Commission, including suspension or revocation of their liquor licenses and fines.

The two cases have sparked debate over New Hampshire’s prohibited sales law, which holds establishments accountable for serving intoxicated customers. Many owners and servers believe the law is unfair, arguing that it’s often virtually impossible to tell whether a customer is drunk or will become intoxicated from another drink. But police and state liquor officials fear that altering the law would create significant threats to public safety. 

State Sen. Martha Fuller Clark (D-Portsmouth) is sponsoring legislation that would offer more protection to bars and restaurants that serve alcohol. Currently, it is illegal for an establishment to serve alcohol to an intoxicated individual. Senate Bill 103 would change the wording of that law to make it illegal to “knowingly serve” an intoxicated individual. It’s a minor wording change that could make a major difference.

A large crowd of bar and restaurant owners headed to Concord on Feb. 17 to speak in favor of the bill at a Senate committee meeting. Paul Sorli, owner of the Gas Light Co. in downtown Portsmouth, said the room was packed with representatives from about 100 different restaurants. Sorli has been at the forefront of efforts to get the legislation passed.

“We’re referring to it as a fairness issue,” Sorli said in a recent interview. “Everybody wants to see something that’s fair.”
The N.H. Liquor Commission fined the Gas Light and temporarily suspended its liquor license in 2006 and again about a year ago for over-serving patrons. Sorli said a variety of factors make it difficult for bartenders to know how much alcohol is in a person’s body.

“The bottom line is that we can be held accountable for somebody who drinks excessively before walking into an establishment, so the alcohol has not been absorbed in their system,” Sorli said.

According to Eddie Edwards, chief of enforcement for the N.H. Liquor Commission, the state is unlikely to pursue penalties against a bar that serves someone only one drink. He said there are about 4,500 outlets licensed to sell liquor in New Hampshire. In 2008, only 51 violations involved an intoxicated person. Edwards’ office investigated other cases but dismissed many. He said only 2 percent of the state’s bars were cited for over-serving patrons last year.

“If you look at the facts and take away some of the emotions here, we don’t have any problem in our state. The system is working,” Edwards said. “The majority of licensees in the state do it right. A small sliver of licensees operate at a risk that poses significant threats to the quality of life in communities, to public safety and to public health.”

Although the number of infractions in New Hampshire is relatively low, Edwards said, the consequences of over-serving a customer can be devastating. People who become intoxicated at bars often wind up causing serious injury or death, he said. They swell prison populations and flood emergency rooms, increasing insurance costs and straining communities.

Portsmouth Deputy Police Chief Len DiSesa agrees. He said local police became especially alarmed about over-service after two incidents stemming from the Brewery Lane Tavern. One intoxicated patron at the bar on Brewery Lane nearly died and had to be revived at the hospital. On a separate occasion, another customer left the bar and later fell down a staircase and died.

“Those two cases scared us last year,” DiSesa said. “We’re ramping this up because we feel that people have to be held accountable.”

Portsmouth police oppose Fuller Clark’s bill. “We think it’s misguided and unnecessary,” DiSesa said.

Edwards believes the term “knowingly” is too subjective and would make it difficult for the state to penalize bars that blatantly over-serve their customers. Any server, no matter the circumstances, would be able to claim that he didn’t know his customer was drunk. “That is why the plain language of that is a threat to public safety and public health,” he said.

But Edwards said he is in negotiations with the hospitality industry and Fuller Clark to draft a piece of legislation that both sides can live with. He has suggested removing the word “knowingly” from the bill and replacing it with the word “negligently.”
“I’m pretty confident we’re going to come up with something that will work,” Edwards said.

New Hampshire’s prohibited sales law, currently laid out in RSA 179:5, states that no licensee can serve liquor “to a person under the age of 21 or to an intoxicated individual.” But the law is more complicated than it may at first appear.

According to attorney John Pendleton, who drafted the language of Fuller Clark’s bill, the sales law is invoked to prosecute both criminal cases against servers and regulatory cases against establishments—but there are different standards for each. In criminal cases, the defendant is presumed innocent until proven guilty, and the burden of proving guilt beyond a reasonable doubt belongs to the prosecution. In regulatory cases investigated by the Liquor Commission, however, only a “preponderance of evidence” is required to impose penalties. Essentially, Pendleton says, the accused establishment is considered guilty until proven innocent.

Henry Veilleux, a lobbyist with the Sheehan Phinney Capitol Group, is working on behalf of the N.H. Lodging & Restaurant Association to get SB 103 passed. “It requires law enforcement to prove you did something wrong, and right now, the burden’s on the establishment (to prove) that you didn’t do something wrong,” he said.

The problem with the existing law, according to supporters of SB 103, is that it does not require the state to prove a certain “mental state.” Pendleton explained that most laws apply one of four mental states to a crime: purposefully, knowingly, recklessly or negligently—purposefully being the most serious. For example, if you purposely hit someone with your car, you would be in more trouble than if you accidentally hit someone because you failed to notice a stop sign.

The debate over New Hampshire’s prohibited sales law stretches back to a Supreme Court ruling in 2003, Pendleton said. The court determined that current law does not require the Liquor Commission to prove any mental state in regulatory cases. The N.H. Lodging and Restaurant Association wants the new law to include the word “knowingly,” but Eddie Edwards would prefer to see the word “negligently.” That way, even if a server claimed he didn’t know a customer was drunk, the Liquor Commission could argue that he should have known the person was drunk and failed to recognize it out of negligence.

Whether the NHLRA will accept this compromise remains to be seen. But restaurant owners and law enforcement officials appear to differ on one central question: How easy is it to tell if a person is intoxicated?

In many cases, Paul Sorli said, it is exceptionally difficult. He pitched a plausible scenario: A bachelorette party heads out on the town in a limousine. The limo has a mini bar and the women drink heavily during the ride. They arrive at a bar appearing perfectly sober and order martinis. “The bartender’s not gonna have any idea what they have in their system,” Sorli said.

About 20 minutes later, the booze from the limo ride kicks in, and the women are suddenly staggering drunk. Under current law, the bar could be held accountable for serving them. 

But Len DiSesa thinks Sorli’s gripe is largely unwarranted. If the women in Sorli’s scenario caused a disturbance, the Liquor Commission would investigate but would almost certainly not penalize the bar if it had only served each woman one drink. It’s the second drink, after the women are intoxicated, that police worry about, he said.

DiSesa contests the notion that it is difficult to tell if a person is drunk. “I don’t believe that’s true at all. With training, you can tell when someone’s intoxicated,” he said. “You don’t need a crystal ball to figure out this person probably should not have been served that last drink.”

But even police sometimes have trouble identifying intoxicated people. Officers conduct a series of field sobriety tests before arresting drunk drivers. Pendleton said he once had an alcoholic client who got pulled over and easily passed every sobriety test. But when he took a breathalyzer test, his blood-alcohol level was double the legal limit.

Bartenders do not force their customers to walk in a straight line or stand on one foot before serving them a drink. They do not shine a flashlight in their customers’ eyes or give them breathalyzer tests. And they usually do not have the same degree of training as police.

“Every person is different,” said Lauren Gugliuzza, general manager of The Page. She noted that people have different tolerance levels for alcohol, and it’s impossible to know what drugs or medications a customer is taking. “It’s a lot to ask for a bartender or a waitress to identify when the person is going to turn or when they will become intoxicated.”

Nevertheless, DiSesa said the Portsmouth Police Department will remain vigilant about dealing with the city’s alcohol problem. “With 95 bars and restaurants in town and the highest per capita in the state, we are finding that alcohol drives our crime,” he said. “We’re relentless in our pursuit of eliminating this for our town.”

An increase in sobriety checkpoints and drunk driving patrols over the last couple of years has helped Portsmouth reduce drunk driving, DiSesa said. But it has not reduced the city’s overall number of alcohol-related crimes. Drunk bar-goers often get in fights, damage property, break windows, urinate on flower beds and cause other public disturbances, he said.

“People are taking steps to not drink and drive, which is fine, but you’re still obligated not to get plowed just because you’re not driving home,” DiSesa said. “Yeah, you’re not driving, but you’re still a menace.”

According to DiSesa, 40 percent of crimes committed in Portsmouth last year involved alcohol, up from 36 percent in 2007. Police have been focusing their efforts on certain bars that frequently appear to be the source of drunken behavior. One of those bars is The Page.

Gugliuzza said The Page has implemented a number of new policies to reduce intoxication. The establishment no longer serves shots or beverages with more than one type of liquor after 11 p.m. Beginning at midnight, the bar serves only beer and does not allow new customers to enter. Last call is at 12:15 a.m. The room also now has brighter lighting, and employees check IDs twice—once at the door and once when the customer orders a drink. Employees at The Page receive state training to serve alcohol responsibly.

Still, with a capacity of 300 people and a location right next to the parking garage, Gugliuzza expects the bar to have occasional problems with unruly customers. “We certainly don’t want responsibility taken off of us. We want to very much be responsible for our patrons and don’t want anyone to get intoxicated, but there are instances,” Gugliuzza said.

The Senate Judiciary Committee is reviewing SB 103 and will likely vote on it within the next few weeks before making a recommendation to the Senate. Pending passage by the Senate, it would then move to the N.H. House of Representatives before landing on the governor’s desk. If signed by the governor, the law would take effect in 2010.

Meanwhile, Portsmouth police continue to fight alcohol crimes. The department conducted an alcohol compliance check at 31 stores on Feb. 19, three of which failed. Clerks at those three stores each face a charge of prohibited sales.

Last summer, Portsmouth police proposed instituting joint barment letters at a number of downtown establishments. Under the policy, a person banned from one bar would also be banned from a collection of others. The public loudly disapproved of the idea and it has been shelved indefinitely.

Edwards, too, briefly pitched a proposal that drew sharp rebukes from the public. He proposed that any bar that adopts a policy of serving no more than one drink per hour would be protected from regulatory action by the Liquor Commission. Daily newspapers misinterpreted the proposal and published reports that generated widespread anger. Edwards insists the idea was never suggested as a state law, but only as a voluntary business policy. He has since taken the proposal off the table.

“The responsibility and exclusive rights to how much you serve and the way you serve belongs to business owners,” Edwards said. “There was never a law being proposed to enforce something that silly.”

Edwards said 38 states have prohibited sales laws that are identical to New Hampshire, while only eight states include the word knowingly (including Maine). Why change a law that is working in New Hampshire and most of the country, he asks.

But Edwards vows to work with bar owners and legislators to establish a fair policy. “What we’re looking at is a reasonable comparable statute that does not produce so much subjectivity,” he said.