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Office of Commissioner v. Appeals Commission

Superior Court of Delaware, New Castle

January 31, 2014

Office of the Commissioner, Delaware Alcoholic Beverage Control, Appellant,
Appeals Commission, Delaware Alcoholic Beverage Control, and Lex-Pac, Inc., d/b/a Hak's Sports Bar & Restaurant, Appellees.

Upon Appellant's Appeal from Superior Court Commissioner's Opinion and Order: Affirmed.



AND NOW TO WIT, this 31st day of January, 2014, the Court having duly considered Appellant's timely appeal of the Superior Court Commissioner's Opinion and Order, the opposition and supplements thereto, and the record below, IT IS HEREBY DETERMINED THAT:

1. The procedural history for this case is disconcertingly long. Appellee, Hak's Sports Bar & Restaurant ("Hak's"), attempted to convert its liquor license classification from a taproom to a restaurant in June 2008.[1] On January 15, 2010, the Delaware Alcoholic Beverage Control Commissioner ("ABC Commissioner"), denied Hak's application.[2]

2. Hak's appealed to the Delaware Alcoholic Beverage Control Appeals Commission ("the Commission"), which reversed the ABC Commissioner on May

3, 2010. The Commission issued an amended decision on August 24, 2011.[3] The ABC Commissioner timely appealed the amended decision to the Superior Court.[4]

3. On March 2, 2012, this Court suspended its briefing schedule and ordered the parties to complete arbitration before a Superior Court Commissioner pursuant to the then-applicable 4 Del. C. § 541(c).[5] Ultimately, on July 8, 2013, the Superior Court Commissioner heard oral argument on Hak's Motion to Dismiss, [6] thereby canceling the scheduled July 2013 arbitration hearing.[7]

4. The Superior Court Commissioner issued an Opinion and Order on July 17, 2013, dismissing the appeal based on lack of standing.[8] The Commissioner determined that the ABC Commissioner lacked statutory authority to appeal his own agency's ruling.[9] The ABC Commissioner timely filed an appeal.[10]

5. The Court reviews a motion to dismiss ruling de novo.[11] Statutory construction rulings are also reviewed de novo to determine whether the Commissioner erred as a matter of law in formulating or applying legal concepts.[12]

6. The Delaware Alcoholic Beverage Control Commission is an administrative body ("ABC agency") created by statute.[13] As such, the Commission is limited to the powers expressly authorized.[14] In 2000, the State Legislature restructured the ABC agency, creating two tiers of review: the ABC Commissioner and the Commission.[15] While this case has slowly progressed, the State Legislature has continued to fine-tune the new ABC agency structure.[16]

7. During this time, the Legislature amended the Delaware Administrative Procedures Act ("APA") to clarify, among other things, that the ABC Commission is subject to the provisions set forth in the APA.[17] The ABC Commissioner, not subject to the APA's restrictions, has broader power in order to fulfill his duties to the ABC agency.[18] Yet, neither the APA nor the ABC statutes grant the ABC Commissioner the right to appeal a final decision of his own agency. The fact that the Legislature did not provide the ABC Commissioner that right is "indicative of legislative intent – especially because it is clear that the legislature knows how to provide for such [right of appeal] when it so desires."[19]

8. While constitutional due process protections authorize the Court to permit review of an agency's decision where the rights of a private party are affected, [20]the Court agrees with the Commissioner and will not extend a right to appeal in an agency with a two-tier review in place and the Legislature has not otherwise acted. The Court's unwillingness to extend the ABC Commissioner a right to appeal is reinforced by the Legislature's recent amendments to the ABC statutes clarifying the agency's processes, but not including a carve-out for appeals instituted by the ABC Commissioner.

WHEREFORE, the Court finds that the Commissioner's well-reasoned Opinion and Order granting Appellees' Motion to Dismiss is free from legal error and is, therefore, AFFIRMED.


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