KIRIT PATEL and JOHN H. CORDREY, Appellants
MILFOR, INC. and ALCOHOLIC BEVERAGE CONTROL APPEALS COMMISSION, Appellees.
Ridiard F. Stokes, Judge
November 29, 2017, Appellant, Kirit Patel ("Patel"
or "Appellant"), filed this Motion to Stay the
issuance of a liquor license until this appeal is resolved.
Supplemental information was provided by the Appellant on
December 8, 2017. On December 13, 2017, Appellee, Milfor,
Inc. ("Milfor" or "Appellee"), filed its
Response in Opposition to the Appellant's Motion to Stay.
Appellant's Reply was filed on December 19, 2017.
Additionally, on December 21, 2017, Commissioner John H.
Cordrey ("Commissioner Cordrey"), the second
Appellant in this action, joined Patel's Motion to Stay.
The Appeals Commission has expressed no position. On December
22, 2017, the Court held a hearing on the matter. On January
9, 2018, Patel filed an additional Motion to Stay. On January
25, 2018, Milfor renewed its opposition to the pending Motion
to Stay. On February 7, 2018, Commissioner Cordrey expressed
support for the stay. For the following reasons,
Appellant's Motion to Stay is GRANTED.
February 10, 2017, Milfor applied to the Office of the
Alcohol Beverage Control Commissioner for a liquor store
license to operate a liquor store in Millsboro, Delaware. The
community expressed some opposition to the application. A
hearing was held before Commissioner Cordrey on June 1, 2017.
On July 12, 2017, Commissioner Cordrey denied the liquor
store license application. Milfor appealed this decision to
the Alcohol Beverage Appeals Commission ("Appeals
Commission"). On November 27, 2017, the Appeals
Commission reversed Commissioner Cordrey's decision and
granted Milfor's request for a liquor store license.
Appellant filed an appeal to this Court on November 29, 2017.
Appellant requests that the decision of the Appeals
Commission to be stayed until this Court decides the pending
Del. C. § 10144 lays out the circumstances
under which a stay is appropriate. The statute provides:
"When an action is brought in the Court for review of an
agency regulation or decision, enforcement of such regulation
or decision by the agency may be stayed by the Court only if
it finds, upon a preliminary hearing, that the issues and
facts presented for review are substantial and the stay is
required to prevent irreparable harm." Therefore, in
order to impose a stay, Appellant would have to show that
both the issues submitted for review are substantial and
that the stay is required to prevent irreparable
has shown that the appeal raises substantial issues for
review and that irreparable harm will result if the stay is
not granted. Substantial questions remain regarding the roles
to be exercised by the Commissioner and the Appeals
Commission. The Commissioner is to be the primary factfinder,
as decisions of the Appeals Commission are to be based upon
the record provided by the Commissioner. However, it
appears that here the Appeals Commission expanded upon the
facts provided by the Commissioner. The process of gathering
supplemental information appears, on its face, to be
impermissible overstepping by the Appeals Commission.
Furthermore, the consideration of the site plan, which had
not been filed with the County at the time of the
Commissioner's decision is questionable, especially
considering that Patel was not provided an opportunity to
weigh in on this issue. Arguably, Commissioner Cordrey should
have been afforded the opportunity to fully develop the
record in the first instance and to assess the credibility of
the evidence presented. The fact that the Appeals Commission
launched a further inquiry into the circumstances of the case
and analyzed the credibility of the information presents a
substantial issue for review.
the Court turns to the question of whether Patel and
Commissioner Cordrey will suffer irreparable harm if the stay
is not granted. Speculative harm is not sufficient to meet
this prong of the analysis. However, here, the harm is not
speculative. There are legitimate, genuine concerns regarding
alleged charges arising from Fortunato Cristiano's
reported arrest on December 1, 2017 that must be
considered. Cristiano may have transported liquor
across state lines in order to avoid paying liquor taxes.
Allegedly 117 cases of untaxed liquor and nearly $106, 000 in
cash were seized from Cristiano's home. Cristiano may
have potentially conflicting wholesaler/distributor
interests. There is also a possession of marijuana
allegation. The Court views this information as akin to newly
discovered evidence, as the circumstances came to light after
the conclusion of the initial decision. The situation can
prompt Commissioner Cordrey to explore Milfor's bona
fides. Indeed, the information may shed light on whether or
not a license should be granted, including whether or not the
disclosures on the liquor license application were
sufficient. Moreover, it would be imprudent for the liquor
license to be granted when serious concerns should be
addressed which potentially could be a disqualifying event
for a liquor license. Commissioner Cordrey should not be in a
position to issue the license without an opportunity to
address the problem arising from the arrest. Revoking the
license at a later date is not an appropriate remedy.
only response to this issue is that all people are innocent
until proven guilty, which is no answer. Regardless of the
outcome in the criminal setting, the circumstances still give
some pause from a civil perspective. Further, maintaining the
status quo will prevent irreparable harm arising from the
risk of a liquor license being issued and then later
rescinded or revoked.
has shown that the appeal raises substantial issues and that
irreparable harm will result if the stay is not granted;
therefore, Appellant's Motion to Stay is
GRANTED. The Court will proceed on the
briefing schedule stipulated by the parties and approved on
February 20, 2018, but a ' stay will be in place until a
final decision is rendered.
IS SO ORDERED.
Poppiti, Esq. David J. Weidman, Esq. Laura L. Gerard, Esq.
Andrew Kerber, Esq.
The Court notes that the standard
applied in Kirpat, Inc. v. Delaware Alcohol Beverage
Control Commission is strictly applied to appeals from a
decision of the Delaware Superior Court to the Delaware
Supreme Court, rather than in the case of an appeal from an
agency decision to the Delaware Superior Court. See State
of Delaware, Department of Transportation v. Keeler,
2010 WL 334920, at *1 (Del. Super. Ct. Jan. 28, 2010). Even
if the Court applied the Kirpat factors, the result
would be the same. There is a sufficient likelihood of
success on the merits of the appeal, the petitioner, namely
Commissioner Cordrey will suffer irreparable harm if the stay
is not granted, other interested parties will suffer