CHAPTER 435

FORMERLY

HOUSE SUBSTITUTE NO. 2

FOR

HOUSE BILL NO. 504

AS AMENDED BY HOUSE AMENDMENT NOS. 2 AND 3

AN ACT TO AMEND TITLE 4 OF THE DELAWARE CODE REGARDING THE DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION LICENSE APPLICATION PROCESS, AND DENIALS, SUSPENSIONS, OR REVOCATIONS OF LICENSES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section1. Amend Title 4 of the Delaware Code by striking Section 524 as it appears therein, and by replacing it with the following:

"§ 524. Notice of intent to apply for license.

(a) An application for a license to purchase for resale shall be accompanied by certificates of publication from publishers of at least 2 different newspapers circulated in the community in which the license is to operate.

(1) Unless the license applied for is to operate in a place where (i) there is no neighborhood newspaper and (ii) the nearest paper circulated is in an adjoining county, then the application shall be accompanied by certificates as follows:

a. One certificate from the publisher of a newspaper that is circulated in the neighborhood in which the license is to operate, of such a newspaper exists; and

b. One certificate from the publisher of a newspaper that is circulated at the place in the county nearest to the location of the premises to which the license is to apply; and

c. One certificate from the publisher of a newspaper of general circulation in the county in which the license is to operate.

(2) If the license applied for is to operate in a place where there is no neighborhood newspaper and the nearest newspaper circulated is in an adjoining county, then, in that event the application for a license to purchase for resale shall be accompanied by 3 certificates as follows:

a. One certificate from the publisher of a newspaper that is circulated at the place in the adjoining county nearest to the location of the premises to which the license is to apply and;

b. One certificate from the publisher of a newspaper of general circulation in the adjoining county; and

c. One certificate from the publisher of a newspaper of general circulation in the county in which the license is to operate.

(b) From the certificates sent in accordance with subsection (a) of this section, it shall appear that the applicant has caused to be circulated in at least 3 issues of each of such newspapers within the period of 30 days immediately preceding the filing of the application with the Commission, a notice setting forth: (i) the intention of the applicant to make an application, (ii) the nature of the license to be applied for, (iii) the premises to which the license is to apply, and (iv) the 9pportunity to protest issuance of said license therein indicating the address where any protests against the issuance of said license application can be sent, outlining the procedure to file a protest and including the date by which any protests must be filed with the Commission.

(c) In addition to the notice by publication set forth in subsections (a) and (b) of this section, each person who intends to apply for a license under this title shall mail by certified mail, return receipt requested, and at least 10 days prior to the date that the application is filed with the Commission, a notice setting forth: (i) his intent to apply, together with the substance of the application and type of license sought, and (ii) the opportunity to protest issuance of said license therein indicating the address where any protests against the issuance of said license application can be sent, outlining the procedure to file a protest and including the date by which any protests must be filed with the Commission, to the following entities, individuals, or groups of individuals:

(1) Except as provided in subparagraph (2), to all property owners within 200 feet of the location of the premises to which the license is to apply;

(2) To all property owners within WOO feet of the location of the premises to which the license is to apply if the premises is located on a riverfront, beachfront, or other open water, or if the applicant intends to include space for outside dining, entertainment, or the service or consumption of alcoholic beverages;

(3) To the governing body of any incorporated areas within 1 mile of the location of the premises to which the license is to apply."

Section 2. Amend Title 4, Section 541(b) of the Delaware Code by striking the words ", signed by at least 10 residents of the neighborhood where the license is to operate," as they appear in the first sentence therein and by adding the following language at the end of said sentence:

", and specifically the concerns of the members of the community within which the license is to operate. A protect is only valid if signed by at least 10 persons who reside within 1 mile of the premises where the license is to operate or in any incorporated areas located within 1 mile of the premises where the license is to operate. Such hearing shall be held in the county where the license is to operate."

Section 3. Amend Title 4, Section 541 of the Delaware Code by striking the language following the first sentence of subsection (b) therein and by substituting in lieu thereof the following:

"The Commission shall publish a notice of the time and location of the hearing in two consecutive issues of the same newspapers within which the applicant published notice of his intent to apply for said license. The Commission shall send ten days' notice of the hearing, together with a recital of the protest, by registered mail to the address of the applicant, and shall send a notice of the time and location of the hearing to each of the persons who signed the protest; provided, however, that it shall be sufficient to send notice to the attorneys of those who are represented by legal counsel. The hearing shall be conducted by the Commission and a record of the hearing shall be made and kept by the Commission. The record shall include the evidence, the Commission's findings of fact, the Commission's decision, and a brief statement of the reasons therefor. The Commission's decision shall show the manner in which the Commission construed the law and applied it to the facts, shall recite any objections presented by the community, and shall show how and the extent to which the Commission took community concerns into account and gave them due consideration when making its decision."

Section 4. Amend Title 4, Section 543 by adding the following paragraph to subsection (b) therein:

"( 11) A substantial objection to the granting of the license has been presented by the community within which the license is to operate, or that the granting of such license is otherwise not in the public interest."

Section 5. Amend Title 4, Section 543 by striking subsection (g) as it appears therein and by replacing it as follows:

"(g) The Commission shall not grant a new license of any type and shall not grant an extension of premises of an existing license of any type unless the application for said new license or for said extension is accompanied by a Certificate of Compliance from the appropriate political subdivision showing: (i) that the premises where the license is to be used are properly zoned for the applicant's intended use; and (ii) that all necessary permits have been approved; and (iii) that the applicant has complied with all other applicable licensing requirements of the appropriate political subdivision. This subsection shall not apply to any application for a temporary extension of premises as authorized by Commission rule, provided that any such application has not been objected to by the appropriate political subdivision which shall be provided with notice of the application by the applicant within 7 days of the date the application is filed with the Commission."

Section 6. Amend Title 4, Section 561 of the Delaware Code by redesignating subsection (b)(l1) as subsection (b)(12) and by adding the following new subsection (b)(l1):

"(11) The licensee has admitted guilt or has been adjudged guilty of violations of local, municipal, county, or State regulations, ordinances, or codes related to the operation of a licensed premises."

Section 7. Amend Title 4, Section 561 of the Delaware Code by adding the following new subsections:

(f) If the Commission receives notice from the appropriate political subdivision that any Certificate of Compliance issued to satisfy an applicant's duty under § 543(g) of this Chapter has been suspended, then the Commission shall suspend any license or extension of an existing license granted in reliance on such Certificate of Compliance until such time as the Commission receives notice from the appropriate political subdivision that such Certificate has been reinstated. If the Commission receives notice from the appropriate political subdivision that any Certificate of Compliance issued to satisfy an applicant's duty under § 543(g) of this Chapter has been canceled, then the Commission shall revoke any license or extension of an existing license granted in reliance on such Certificate of Compliance.

(g) The Commission may suspend any license for the sale of alcoholic liquors held by any taproom or restaurant or fine any licensee holding such a license if it has reasonable grounds to believe that the licensee has operated, caused the operation of, or permitted the operation of any stationary source of sound in such a manner as to create an operative average sound level which is equal to or greater than 65 dBA, but less than 75 dBA, when measured at any location 100 ft. or more from the licensed premises' real property boundary. The Commission shall suspend any license for the sale of alcoholic liquors held by any taproom or restaurant and fine any licensee holding such a license if it has reasonable grounds to believe that the licensee has operated, caused the operation of, or permitted the operation of any stationary source of sound in such a manner as to create an operative average sound level which is equal to or greater than 75 dBA when measured at any location 100 ft. or more from the real property boundary of the licensed premises. For the purpose of this section, 'operative average sound level' means the energy average of the A-weighted sound pressure level during the business hours of operation of the licensed premises. The operative average sound level may be determined by an average of not less than three individual decibel readings taken not less than ten minutes apart and taken from the same location. Provided, however, that nothing in this subsection shall apply within the boundaries of any municipality."

Approved July 14, 1998