TITLE 4

Alcoholic Liquors

CHAPTER 3. DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSIONER


(a) The Commissioner shall be a resident of Delaware and suitably educated and experienced to carry out the duties and responsibilities set forth in this chapter.

(b) The Commissioner and 3 members of the Appeals Commission, 1 from each County, shall be appointed by the Governor and confirmed by a majority of the members elected to the Senate and shall serve at the pleasure of the Governor.

(c) In the event of death, resignation, temporary incapacity or removal of the Commissioner and prior to the appointment of a successor, the Governor may appoint the Deputy Commissioner, or such other person as deemed qualified by the Governor, to serve as Acting Commissioner. The Commissioner may name a Deputy Commissioner. The Commissioner may, during an absence from the State, appoint the Deputy Commissioner to serve as Acting Commissioner during such absence. In either case, the Acting Commissioner shall have all the powers and shall perform all the duties and functions of the Commissioner during the Commissioner's absence or incapacity or until a successor is duly qualified and appointed.

(d) The Commissioner shall be compensated as provided for in the Annual Budget Act.

(e) The members of the Appeals Commission shall be compensated at the rate of $150 per meeting together with the reasonable expenses for no more than 12 meetings per year.

(f) The Appeals Commission shall meet and elect a chairperson who shall convene meetings of the Commission as frequently as needed to consider appeals of the Commissioner's decision.

38 Del. Laws, c. 18, § 4; Code 1935, § 6133(1), (5)-(7); 4 Del. C. 1953, § 301; 50 Del. Laws, c. 393, § 3; 50 Del. Laws, c. 547, § 3; 55 Del. Laws, c. 308, § 1; 60 Del. Laws, c. 265, § 1; 72 Del. Laws, c. 486, § 7; 73 Del. Laws, c. 135, § 1.;

The office of the Commissioner shall be located in New Castle County.

38 Del. Laws, c. 18, § 4; Code 1935, § 6133(11); 4 Del. C. 1953, § 302; 57 Del. Laws, c. 404, § 1; 72 Del. Laws, c. 486, § 7.;

Necessary staff as required shall be employed as required to carry out the work under the chapter. After December 1, 2001, the Joint Sunset Committee will review the duties and responsibilities of the Commissioner to determine if additional staff, including hearing officer or officers, is necessary. The Personnel Section of the Department of Safety and Homeland Security shall provide personnel services and other necessary support services for the office of the Commissioner and the Appeals Commission.

38 Del. Laws, c. 18, § 4; Code 1935, § 6133(8)-(10); 4 Del. C. 1953, § 303; 72 Del. Laws, c. 486, § 7; 74 Del. Laws, c. 110, § 138.;

(a) The Commissioner, in accordance with the Delaware Administrative Procedures Act, shall:

(1) Adopt and promulgate rules and regulations not inconsistent with this title or of any other law of the State, and all such rules and regulations shall have the force and effect of law; provided, however, that no such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable implications thereof; and provided further, however, that such rules and regulations, as established by the Commissioner, shall focus primarily on public safety and the best interests of the consumer and shall not unduly restrict competition within the alcoholic beverage industry;

(2) Establish by rules and regulations an effective control of the business of manufacture, sale, dispensation, distribution and importation of alcoholic liquors within and into the State, including the time, place and manner in which alcoholic liquors shall be sold and dispensed, not inconsistent with this title or with any other law of this State. However, such rules and regulations, as established by the Commissioner, shall not control or regulate:

a. Recreational equipment located on the business premises of any business selling alcoholic beverages;

b. Credit transactions between licensed wholesalers and licensed retailers, to the extent permitted by federal law;

c. Purchases of 1 case not to exceed 20 gallons of alcoholic beverages per day by the holder of a retail license from another holder of a retail license;

(3) Control the manufacture, possession, sale and delivery of alcoholic liquors in accordance with this title; and control the purchase, possession, transportation and sale of alcoholic liquors by those licensed to manufacture or to sell; provided, however, that the Commissioner's power to control the sale of alcoholic liquors shall not be exercised in such a manner as to prevent any holder of a retail license for the sale of alcoholic liquors not for consumption on the premises where sold from giving a retail purchaser of a case or more of spirits and/or wine a discount not to exceed 10% of the total dollar sale;

(4) Grant, refuse or cancel licenses required by this title for the manufacture or sale of alcoholic liquor, or other licenses required by this title in regard thereto, and to transfer any license granted;

(5) On petition signed by at least 10 individuals who are residents of the neighborhood, hear complaints in regard to the appointments of, or the conduct of business in, any establishment where alcoholic liquor is licensed to be sold. Ten days' notice of such hearings, together with a recital of the complaint, shall be sent by registered mail by the Commissioner's office to the address of the holder of the license for the establishment and like notice shall be delivered at the establishment by affixing the notice addressed to the holder of the license to the outside of an entrance door to the establishment. The hearings shall be conducted by the Commissioner and shall be public. The Commissioner shall for the purpose of such hearings have power to issue subpoenas, compel the attendance of witnesses, administer oaths, take testimony and compel the production of pertinent books, payrolls, accounts, papers, records and documents. In case any person summoned to testify or to produce any such written or printed evidence shall refuse, without reasonable cause, to be examined or to answer a legal and pertinent question or to produce any such written or printed evidence, the Commissioner conducting the hearing may certify the fact of any such refusal to the Superior Court of the county in which such hearing is held and the court may proceed against the person so refusing as for a contempt and punish such person in the same manner as persons are punished for contempt of court;

(6) Determine and publish standards for the manner in which the dining room or dining rooms of a hotel, restaurant or club shall be equipped in order to be allowed to exercise the privilege of the sale of alcoholic liquors therein; and examine the plans or premises proposed for use as a dining room and authorize their use in connection with a license to sell alcoholic liquors, but such authorization shall not prevent the requirement by the Commissioner of future alterations in accordance with published standards;

(7) Compel the attendance of witnesses and the production of contracts, papers, books, accounts and other documents. Subpoenas issued shall be signed by the Commissioner and may be served by any sheriff, deputy sheriff, constable or any agent of the Division and return thereof made to the Commissioner. The Commissioner may enforce compliance with a subpoena issued pursuant to this subsection by filing a motion to compel in the Superior Court, which shall have jurisdiction over the matter. The court may award costs and attorney fees if it determines that noncompliance with a Commissioner subpoena was unjustified, intentional, or in bad faith.

(8) Act, for purposes of this Title, as the competent authority in connection with other matters pertinent thereto;

(9) Make an annual report submitted to the Governor and members of the General Assembly setting forth all matters of interest and all statistics concerning liquor regulation and control in the State, including:

a. The number of licenses of each variety issued within the State;

b. The name and address of each person licensed to manufacture or to sell alcohol, spirits, wine and beer;

c. The amount of alcohol, spirits, wine and beer sold within the State;

d. The number of licenses of each kind granted and the number cancelled during the year; and

e. Such other data as may make a complete report to the people of this State;

(10) Negotiate and, with the approval of the Governor, enter into reciprocal agreements with the duly authorized officials of other states of the United States relative to the manufacture, importation, sale and transportation of alcoholic liquors in the several states;

(11) Provide such special seals, labels and wrappers as deemed necessary for protection of the public against imitations, adulterations and frauds, and prescribe the proper use of the seals, labels and wrappers; and

(12) Provide such warning signs as may be required by § 903(16) of this title and distribute such signs to license holders and promulgate regulations with respect to the posting of said signs. A nominal fee may be charged by the Commissioner to cover printing, handling and distribution costs.

(b) The Commissioner's decision shall 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, Title 29 of the Delaware Code, review the matter on the record and affirm, reverse or modify the decision of the Commissioner.

38 Del. Laws, c. 18, §§ 5, 27, 35; Code 1935, §§ 6134, 6156, 6164; 42 Del. Laws, c. 193, § 1; 4 Del. C. 1953, § 304; 49 Del. Laws, c. 387; 50 Del. Laws, c. 547, § 4; 57 Del. Laws, c. 494, § 2; 57 Del. Laws, c. 740, §§ 5A, B; 59 Del. Laws, c. 107, §§ 4-7; 59 Del. Laws, c. 590, § 1; 65 Del. Laws, c. 322, § 1; 67 Del. Laws, c. 23, § 3; 67 Del. Laws, c. 110, § 1; 67 Del. Laws, c. 109, §§ 2, 3; 67 Del. Laws, c. 344, § 2; 69 Del. Laws, c. 314, § 1; 69 Del. Laws, c. 340, §§ 1, 2; 71 Del. Laws, c. 271, § 1; 72 Del. Laws, c. 486, § 7; 73 Del. Laws, c. 133, § 1.;

The Commissioner, Appeals Commission and any hearing officer(s) shall, on entering office, take the oath of the Constitution of the State. Any other employee may be required to take the oath of the Constitution of the State at the discretion of the Secretary of Public Safety.

38 Del. Laws, c. 18, § 6; Code 1935, § 6135(1); 4 Del. C. 1953, § 305; 57 Del. Laws, c. 740, § 5C; 67 Del. Laws, c. 109, § 4; 69 Del. Laws, c. 314, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 7.;

(a) The Commissioner, Appeals Commission, and any hearing officer(s) or such person's spouse, or such person's son or daughter residing at such person's residence, shall not have a financial interest in any entity that sells, manufactures, or uses alcohol; provided, however, such persons may invest in mutual funds or similar financial instruments that hold no more than a 10% interest in any such entity.

(b) Neither the Commissioner nor any person employed in the office of the Commissioner shall receive any commission or profit whatsoever from, or have any interest whatsoever in a business licensed under this chapter to purchase or sell alcoholic liquors; provided, however, that nothing in this section shall prevent the Commissioner, Appeals Commission, hearing officer(s) or employee from purchasing and keeping alcoholic liquors in his or her possession for the personal use of him or herself, members of his or her family or his or her guests if such purchase is otherwise permitted by this title.

(c) The Commissioner and the Appeals Commission shall annually file with the Public Integrity Commission the Financial Report pursuant to § 5813 of Title 29.

38 Del. Laws, c. 18, § 7; Code 1935, §§ 6136(1), (3); 4 Del. C. 1953, § 307; 57 Del. Laws, c. 740, §§ 5E, F; 59 Del. Laws, c. 107, § 8; 72 Del. Laws, c. 486, § 7.;

When notified of appointment as Commissioner or Appeals Commissioner, the individual so notified shall furnish in duplicate and in writing to the Governor and to the President Pro Tempore of the Senate a statement of every interest, direct or indirect, and however small, held or owned by him or her as a member or as a stockholder in any partnership, corporation or other association engaged in the sale or in the manufacture of alcoholic liquors or in any undertaking, industry or business in which alcoholic liquors are used or required and prior to taking the oath of office the Commissioner and Appeals Commission must wholly and fully dispose of all interests. One copy of the statement shall be inserted in the permanent records of the office of the Commissioner open to public inspection.

38 Del. Laws, c. 18, § 6; Code 1935, §§ 6135(2), (3); 4 Del. C. 1953, § 306; 57 Del. Laws, c. 740, § 5D; 69 Del. Laws, c. 314, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 7.;

(a) All rules and regulations of the former Alcoholic Beverage Control Commission currently in place as of December 1, 2000, shall remain in full force and effect until revoked or modified in accordance with the procedures set forth in this chapter.

(b) The Commissioner may make any regulation and may amend or repeal any regulation as the Commissioner deems necessary for carrying out this title respecting internal economy and the conduct of business, and may amend or repeal any such regulation. Such regulations shall be published in form open to public inspection at the office of the Commissioner and in accordance with the Administrative Procedures Act.

(c) Any regulation made by the Commissioner and approved and published as provided by this chapter may be repealed or amended either by another regulation of the Commissioner, approved and published as so provided, or by an act of the General Assembly of this State.

38 Del. Laws, c. 18, § 8; Code 1935, § 6137; 4 Del. C. 1953, § 309; 57 Del. Laws, c. 494, § 1; 72 Del. Laws, c. 486, § 7.;

epealed by 73 Del. Laws, c. 134, § 1, eff. July 9, 2001;

All moneys received by the Commissioner shall be paid to the Division of Revenue of the Department of Finance. A monthly report of all receipts of the Commissioner shall be made to the State Treasurer.

38 Del. Laws, c. 18, § 11; 40 Del. Laws, c. 24, § 1; Code 1935, § 6140(1); 42 Del. Laws, c. 77, §§ 1-3; 4 Del. C. 1953, § 311; 59 Del. Laws, c. 107, § 9; 67 Del. Laws, c. 109, § 5; 72 Del. Laws, c. 486, § 7.;

All property owned by the office of the Commissioner and all associated profits shall be the property of the State.

38 Del. Laws, c. 18, § 11; Code 1935, § 6141; 4 Del. C. 1953, § 313; 67 Del. Laws, c. 109, § 5; 72 Del. Laws, c. 486, § 7.;

The Commissioner shall render an account to the State Treasurer, in the manner and at the time required by the latter, of its receipts and disbursements, and of its assets and liabilities. The State Treasurer will not, however, require such reports to be rendered more often than quarterly.

38 Del. Laws, c. 18, § 13; Code 1935, § 6142(1); 4 Del. C. 1953, § 314; 59 Del. Laws, c. 107, § 11; 67 Del. Laws, c. 109, § 5; 72 Del. Laws, c. 486, § 7.;

The operation of the office of the Commissioner shall annually be examined and audited by the State Auditor of Accounts.

38 Del. Laws, c. 18, § 13; Code 1935, § 6142(2); 4 Del. C. 1953, § 315; 59 Del. Laws, c. 107, § 12; 67 Del. Laws, c. 109, § 5; 72 Del. Laws, c. 486, § 7.;