Judge sides with Black Mountain in records case

JACKSON — A Superior Court judge has sided with Black Mountain Ski Area and ordered Jackson Police Department to turn over documents related to complaints about Black Mountain’s 90th anniversary celebration on May 3.

Meanwhile, the town’s lawyer and police chief say the town gave the documents to Black Mountain before the judge issued his order under the Right to Know Law, RSA 91-A.

“Ideally, we wouldn’t have to go through this process,” Black Mountain Black owner/general manager Erik Mogensen told the Sun last Thursday.

“The 91-A process (Right to Know Law) is there for a purpose, and that purpose is transparency,” he said.

Mogensen said he was seeking proof of complaints that Police Chief Chris Perley said were made regarding the May celebration that included live music, fireworks and alleged public drinking and parking violations.

He questions Perley’s characterizing it as a disorderly celebration. He is also seeking information about other alleged complaints.

Perley said the police turned over a copy of a state Liquor Commission investigative report and all of the foundational information, including emails and calls for service.

Mogensen said the report showed the town did withhold information and also that concerns about the party came from just a single person, Perley.

Mogensen said he wanted to see if there were complaints from the public but so far there were no “meaningful” complaints from the public in the released documents so far.

Black Mountain on May 8 sent a records request to Jackson police, which was denied a few days later. Black Mountain’s attorney is Chris Meier of Cooper Cargill Chant of North Conway was in court for a hearing on July 31, during which Perley testified.

Attorri’s written order, dated Oct. 11, says: “Black Mountain has shown that this lawsuit was necessary for it to obtain the requested information. There is no plausible argument to be made that Black Mountain would have received the records otherwise. It is therefore entitled to recover its costs under RSA 91-A:8, I.”

Attorri didn’t award attorney’s fees, just costs of filing the request.

Asked for comment, town attorney, Jason Dennis of Hastings Law Office said the town had already provided Black Mountain with the information it sought.

“The town had actually already provided the records prior to the court order, and the court denied Black Mountain’s request for attorney’s fees; so, while there are multiple points upon which a motion for reconsideration could be based, the town would prefer to focus on moving forward in a collaborative and non-adversarial manner,” said Dennis.

Asked about Dennis’ comment, Mogensen said he would appreciate having cooperation from the town, but Black Mountain has yet to receive all the documents they are looking for. Mogensen added Black Mountain will send Perley a deficiency letter.

Perley told the Sun that 91-A petitions occur when someone wants documents faster than a government want to produce them.

“In this particular case, at no point did we ever say that we were never going to release her reports,” said Perley. “We said that we couldn’t release them because they were pending review and investigation by the New Hampshire liquor commission bureau of enforcement, which the judge completely agreed with.”

Perley said that the town withheld its “supportive materials” given to the liquor commission until the report was complete. “Actually, it took us quite a long time to get the report from the liquor commission. It was over a month,” said Perley.

“They asked for (attorneys fees) in this case, but the judge ruled quite clearly that we had a legitimate reason not to release them, and there was no, you know, o trickery or deceit associated with decision.”

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Judge sides with Black Mountain in records case

Attori’s order shows Meier successfully argued that Perley couldn’t prove that disclosure of the documents would hamper a law enforcement investigation, as is a requirement of exemption from 91-A under the Murray Test.

Perley said the investigation was turned over to the state Liquor Commission. The selectmen were to receive a report from the Liquor Commission and then would have an option of petitioning the commission to take action against Black Mountain’s liquor license.

The liquor commission’s investigation ended in July.

Perley said the documents should be withheld until after selectmen decide on the petition.

Attorri disagreed with Perley.

“Even if a petition were filed, it would not necessarily constitute a new enforcement proceeding because the (liquor commission) would be free to accept or reject it,” said Attorri.

“The fact that the NHLC has already conducted its own investigation into these matters without taking action tends to indicate that such a petition would not be accepted. The prospect of an enforcement proceeding arising from a selectmen’s petition is therefore doubly speculative,” the judge said.

Attorri added, “The only concern articulated by the (police) department is that Black Mountain might harass any complaining witnesses whose identity would be revealed by the requested disclosures,” said Attorri.

“But if a selectmen’s petition is indeed filed and accepted by the NHLC, then Black Mountain will be entitled to learn the identity of those witnesses anyway, under basic due process,” he said.

The Liquor Commission report looked at multiple complaints against Black Mountain to include intoxicated patrons, public urination, parking violations, and marijuana smoking.

As for the intoxicated patrons, the commission report says Jackson police never identified them, but only escorted them to the parking lot. “I informed Chief Perley without knowing who any of the individuals were I couldn’t effectively review receipts or question individuals, and he said he understood,” said investigator Noah Dumas, adding Perley told him to keep an eye on Black Mountain.

The report also says Dumas told Black Mountain’s manager Alex Lahood to be “more aware” of people bringing their own alcohol and drinking outside of designated areas.

The Liquor Commission also said Black Mountain should have gotten permission from the commission to extend alcohol service to the midway (ski area) station, said Dumas, adding Black Mountain management replied they would get into compliance.

As for the report of public urination, Lahood said he didn’t catch anyone urinating in public. Black Mountain management agreed with Dumas that for large events there should be bathrooms at the midway station.

Lahood told Dumas that he did smell marijuana during the event and suspected people were smoking on the chairlift. However, he didn’t see anyone smoking, and if he had that person would have been ejected.

This seemed to satisfy Dumas.

Meanwhile, on Sept. 17, the Jackson Zoning Board of Adjustment ruled that selectmen cannot fine Black Mountain for temporary signage placed at Veterans Park and the school’s grounds. A sign placed on July 5 saying, “Free Lift Rides Today.” A second sign was an orange directional sign saying, “All Ski Area Parking.”

While the ZBA found the signs were improperly placed according to the sign ordinance, the selectmen didn’t give sufficient notice and so Black Mountain could not be fined for these violations.

The Jackson Board of selectmen are scheduled to discuss Black Mountain’s permit for fireworks on New Year’s Eve at their meeting today.