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Office of the Comm'r v. Appeals Comm'n Delaware Alcoholic Bev. Control

Supreme Court of Delaware

June 2, 2015

OFFICE OF THE COMMISSIONER, DELAWARE ALCOHOLIC BEVERAGE CONTROL, Appellant-Below, Appellant,
v.
APPEALS COMMISSION, DELAWARE ALCOHOLIC BEVERAGE CONTROL, and LEX-PAC, INC. d/b/a HAK'S SPORTS BAR & RESTAURANT, Appellees-Below, Appellees

Submitted May 13, 2015

Case Closed July 8, 2015

Court Below -- Superior Court of the State of Delaware, in and for New Castle County. C.A. No. N11A-09-008 JRJ.

Lawrence W. Lewis, Esquire (argued), Laura L. Gerard, Esquire, Department of Justice, Wilmington, Delaware, Appellant-Below, Appellant.

Andrew G. Kerber, Esquire, Department of Justice, Wilmington, Delaware, Attorney for Appellee-Below, Appellee, Appeals Commission, Delaware Alcoholic Beverage Control.

Adam L. Balick, Esquire (argued), Melony R. Anderson, Esquire, Balick & Balick, LLC, Wilmington, Delaware, Attorneys for Appellee-Below, Appellee, Lex-Pac, Inc., d/b/a Hak's Sports Bar & Restaurant.

Before STRINE, Chief Justice, HOLLAND and V ALIHURA, Justices.

OPINION

Page 1222

HOLLAND, Justice:

This is an appeal by the Delaware Alcoholic Beverage Control Commissioner (the " ABC Commissioner" ), from a final judgment of the Superior Court that dismissed his claim against the Delaware Alcoholic Beverage Control Appeals Commission (the " Appeals Commission" ) for lack of standing. The Appeals Commission was created by the General Assembly to hear appeals from the ABC Commissioner's decisions, including those granting or denying a liquor license application. In this case, the Appeals Commission overturned the ABC Commissioner's decision to deny an application for a change of license classification by Lex-Pac, Inc. d/b/a Hak's Sports Bar & Restaurant (" Hak's" ).

The ABC Commissioner then appealed the Appeals Commission's decision to the Superior Court. Hak's filed a motion to dismiss on the grounds that the ABC Commissioner lacked standing. The Superior Court agreed and dismissed the case. We have concluded that the Delaware Code does not vest the ABC Commissioner with standing to pursue an appeal from a decision by the Appeals Commission. Therefore, the judgment of the Superior Court must be affirmed.

Background

In 2000, the General Assembly enacted several legislative changes to alter the regulation of alcoholic beverage sales in Delaware.[1] By amending Title 4 of the Delaware Code, the General Assembly replaced the previous Commission, composed of five part-time Commissioners, with one full-time ABC Commissioner who has the authority to regulate the manufacture, sale, distribution, and importation of alcohol within Delaware and to resolve disputes between applicants or licensees, determine license violations, and decide whether to grant, deny, cancel, or transfer a liquor license. [2]

Under its previous configuration, the five-member ABC Commission issued decisions that were final unless appealed by a

Page 1223

party to the Superior Court.[3] When the General Assembly established the ABC Commissioner's position, however, it also established a three-member Appeals Commission to hear appeals and to " affirm, reverse or modify the decision of the Commissioner." [4] Section 301(b) of Title 4 provides that the " Commissioner and 3 members of the Appeals Commission . . . shall be appointed by the Governor and confirmed by a majority of the . . . Senate . . . ." [5]

As part of these legislative changes, the General Assembly also created a new procedure to consider license applications. The ABC Commissioner decides on all applications in the first instance,[6] but the process differs slightly depending on whether the application is protested by " at least 10 individuals who are residents of the neighborhood." [7] If so, the ABC Commissioner is required to hold a public hearing.[8] Following that hearing, the ABC Commissioner issues a decision, which:

[S]hall be final and conclusive unless, within 30 days after notice thereof has been mailed by the Commissioner's office, a party to such hearing files an appeal in the office of the Commissioner. Upon receipt of the appeal, the Commissioner shall cause the Chairperson of the Appeals Commission to be advised of the pending appeal and the Chairperson shall cause the Commission to be convened with at least 20 days notice to all parties. The appeal shall be heard by the Appeals Commission, who shall, in accordance with the Administrative Procedures Act . .., review the matter on the record and affirm, reverse or modify the decision of the Commissioner.[9]

If no members of the community protest, as was the case here, the ABC Commissioner is still authorized to hold a hearing but is not required to do so.[10] After considering an unprotested application, the statute provides that the ABC Commissioner must " render the decision promptly in writing," [11] which " shall be final and conclusive unless, within 30 days after notice thereof has been mailed by the Commissioner's office, the applicant files an appeal in the office of the Commissioner." [12] The applicant is then entitled to a hearing before the Appeals Commission, following the same procedural requirements as for a protested application. [13]

Under the process mandated at the time the ABC Commissioner filed his appeal in this case,[14] the statute provided that " the decision of the Appeals Commission shall be final and conclusive unless, within 30 days after notice thereof has been mailed by the Appeals Commission, a party to such ...


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