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

¶ 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*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¶ 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. We conclude that the Board did not exceed its authority in finding a violation of GR17a under these circumstances. See In re Kacey’s, Inc., 2005 VT 51, ¶ 5, 178 Vt. 567, 879 A.2d 450 (mem.) (“[A]bsent compelling indication of error, we will uphold the Board’s interpretation of the administrative regulations and statutes within its purview.”); In re Capital Inv., Inc., 150 *564Vt. 478, 480, 554 A.2d 662, 664 (1988) (“In reviewing an administrative agency’s determination, we presume the reasonableness and validity of a determination made within the agency’s expertise, and require a clear and convincing showing to overcome the presumption.”).

¶ 9. The dissent postulates three possibilities for how the patron may have become intoxicated and contends that only the first possibility — that the licensee directly served him more drinks than its employees claimed — can constitute a violation of GR17a. According to the dissent, the other possibilities — that the patron received drinks from other patrons, or that the patron drank most of the alcohol before arriving at licensee’s establishment — are just as plausible as the first possibility. This reasoning does not persuade us to overturn the Board’s decision. Regarding the third possibility, as the dissent acknowledges, the chemist testified that most alcohol ingested by the patron before he arrived at the bar would have been eliminated from his blood during the lengthy period between the time the patron arrived at the bar and was involved in the accident. In any event, the patron himself stated in the video that he had consumed little of the alcohol during the day. Thus, the dissent would reject the Board’s findings and decision based on a scenario denied by the patron at trial and not raised by licensee on appeal. We decline to do so.

¶ 10. Regarding the second possibility, the dissent proposes that the multiple extra drinks that the patron necessarily consumed at the establishment beyond what licensee’s employees claimed they served to the patron were all supplied by other patrons of the bar. Putting aside the obvious unlikelihood of such a scenario, the Board specifically found incredible the testimony of licensee’s employees as to how much alcohol they served the patron. In any event, we do not believe that GR17a requires the State to prove that a licensee’s employees served the drinks directly, as opposed to through other patrons, to a particular patron — particularly, as here, when the patron had a history of intoxication at the establishment. We decline to impose an unworkable standard under which the State would have the impossible burden of proving that a patron did not obtain drinks imbibed at an establishment from other patrons. In our view, it is the licensee’s obligation to monitor “the amount of alcohol served to that person,” GR17a, however the alcohol is physically delivered to that person. In short, undisputed evidence in the record supports the Board’s conclusion that licensee allowed the patron to consume an excessive amount of alcohol at its establishment, in violation of GR17a. Given this resolution, we reject licensee’s brief final argument that the Board erred by not granting its motion to dismiss the Department’s allegations.

Affirmed.

General Regulations 17 and 17a have been recodified as General Regulation 18 and 18a. Department of Liquor Control General Regulation 18 & 18a, 4 Code of Vermont Rules 26 020 016-1 (2009).

The only statements the trooper testified to were that the patron stated that he was in an accident and that he left the scene to find a pay phone. This evidence is largely irrelevant to the issues before the Board. In any event, it is covered in more detail in the video.