§ 541 Procedural requirements governing Commissioner's action; hearing; appeal.
(a) The Commissioner shall distribute and receive all of the applications for licensure under this chapter, and shall refer the application to the Division for investigation, and if it appears that any application should not be granted, the Commissioner shall so notify the applicant stating the cause for denial.
(b) If 10 or more persons who reside or own property 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 file a protest against the issuance of the license with the Commissioner within 30 days from the filing of the application, then a hearing must be held to consider the application and protest and, specifically, the concerns of the members of the community within which the license is to operate. The Commissioner may hold a hearing in the absence of a protest. The Commissioner shall cause notice of the time and location of the hearing to be published in 2 consecutive issues of the same newspapers within which the applicant published notice of the applicant's application for the license. The Commissioner shall send notice of the time and location of the hearing to the applicant and to each of the persons who signed the protest and provided a legible name and address; provided, however, that it is sufficient for the Commissioner to send notice to the attorney of a person who is represented by legal counsel. The Commissioner shall conduct the hearing and shall make and keep a record of the hearing. The record must include the evidence, the Commissioner's findings of fact, the Commissioner's decision and a brief statement of the reasons therefor. The Commissioner's decision must show the manner in which the Commissioner construed the law and applied it to the facts, must recite any objections presented by the community, and must show how and the extent to which the Commissioner took community concerns into account and gave them due consideration when making the decision.
(c) The Commissioner's decision must be in writing and shall be final and conclusive unless, within 30 days from the date of the postmark on the Commissioner's decision, a party to the hearing files a written 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 Appeals Commission to be convened with at least 20 days' notice to all parties. The Appeals Commission's review of an appeal from the Commissioner's final decision shall be on the record and in accordance with the Administrative Procedures Act, subchapter III of Chapter 101 of Title 29. A decision of the Commissioner shall be reversed only upon a finding of abuse of discretion.
(d) A party who is aggrieved by a final decision of the Appeals Commission may file a written appeal with the Superior Court within 30 days of the date that the Appeals Commission's decision was mailed. The Superior Court's review of an appeal shall be on the record and in accordance with the Administrative Procedures Act, subchapter V of Chapter 101 of Title 29. The Superior Court's review shall take into account the experience and specialized competence of the agency and the purpose under which the agency acted. Further, the Superior Court's review, in the absence of fraud, shall be limited to whether the agency's decision is supported by substantial evidence on the record and is free from legal error.
38 Del. Laws, c. 18, § 21; Code 1935, § 6150; 42 Del. Laws, c. 188, § 1; 43 Del. Laws, c. 275, § 2; 4 Del. C. 1953, § 541; 59 Del. Laws, c. 107, §§ 32, 33; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 384, § 1; 71 Del. Laws, c. 435, §§ 2, 3; 72 Del. Laws, c. 486, §§ 9, 16-18; 73 Del. Laws, c. 133, § 2; 73 Del. Laws, c. 383, § 1; 78 Del. Laws, c. 384, § 1.;
§ 542 Decision upon application for renewal of license; time of making.
On or before the first day of the month preceding the biennial expiration date of a license, the Commissioner shall render its decision upon every application properly and completely made to it on or before the first day of the third month preceding the biennial expiration date of a license.
§ 543 Grounds for refusal of license; transfer or extension of premises.
(a) The Commissioner shall refuse to grant a license to be used in any county or subdivision thereof, if contrary to any prohibitory law then in force, in such county or subdivision thereof.
(b) The Commissioner may refuse to license an applicant if the Commissioner has substantial evidence that would reasonably support a belief that:
(1) Except for restaurants, there are sufficient licensed premises in the locality; or the granting of a license in the locality stated in the application is not otherwise demanded by public interest or convenience;
(2) The applicant is an importer of alcoholic liquors and has not furnished an acceptable bond for the purpose of assuring tax payments;
(3) The applicant appears to be financially irresponsible;
(4) The applicant has been provided with funds by, or has any forbidden connection with, a manufacturer, supplier or importer of alcoholic liquors;
(5) The applicant has made false statements to the Commissioner;
(6) The applicant has been convicted of violating any of the liquor laws of this State, or has been convicted and imprisoned for a crime;
(7) The applicant or any of the applicant's directors or officers, or any of the applicant's shareholders who hold more than 10% of the outstanding issued shares has been convicted of violating any of the prohibited acts defined in Chapter 47 of Title 16, the Uniform Controlled Substances Act, or its functional equivalent under the laws of the United States, any state or territory or any other country, including, but not limited to, the illegal manufacture, delivery, trafficking, possession or consumption of any controlled or noncontrolled substance, or the delivery or possession of illegal drug paraphernalia or illegal hypodermic syringes or needles, or the conspiracy, solicitation or other attempt to engage in such illegal activities;
(8) As to a restaurant applicant, the applicant has failed to designate a substantial portion of the premises' floor space, as determined by the Commissioner, to be used for the storage, preparation, service and consumption of complete meals;
(9) As to a restaurant applicant, the applicant's projected or actual receipts from the sale of complete meals fails to represent a substantial portion of the establishment's total gross receipts as determined by the Commissioner, provided that gross receipts received as payments from the State Lottery Office shall not be included by the Commissioner in his or her determination;
(10) As to a restaurant applicant, the applicant's proposed premises or any proposed extension of the premises of an existing licensed restaurant is protested in accordance with the provisions contained in § 541(b) of this title or any applicable Commissioner rule, and the Commissioner finds that substantial evidence exists to conclude that the establishment's primary purpose will be the serving of alcoholic liquor to patrons. In reaching its decision, the Commissioner shall consider factors including, but not limited to, the number and sizes of bars in the establishment, the establishment's floor plan, an approximate percentage of the projected revenue to be derived from the sale of alcoholic liquor as compared to the percentage of revenue to be derived from the sale of complete meals, the establishment's seating capacity, storage and preparation area for food service, and the number of service employees employed, or to be employed, in the establishment and their functions.
(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. For the purposes of this subsection, the term "substantial objection" shall include:
a. Any objection, or group of objections, presented to the Commissioner either individually or as a group, by persons who reside within the election district where the license is to operate and all contiguous election districts, sufficient to give the Commissioner reason to believe that a majority of the residents of the community within which the license is to operate oppose the issuance of the license; or
b. Any objection, or group of objections, presented to the Commissioner either individually or as a group, the content of which gives the Commissioner reason to believe the quality of life of the community within which the license is to operate will be adversely affected by the granting of the license.
(c) The Commissioner may refuse to grant a license to sell alcoholic liquor to any new establishment to be located in the vicinity of a church, school or college. The Commissioner may issue a license to any establishment located in the vicinity of a church, school or college when such establishment has been located in a place prior to the time any church, school or college may thereafter be located in the vicinity of such establishment.
(d) The Commissioner shall refuse to grant a license for the sale of alcoholic liquor by any restaurant, tavern, taproom, hotel, store, or other establishment for consumption on or off the premises, when there is an existing licensed establishment of the same type within 1200 feet by accessible public road or street in any incorporated city or town, or within 1 mile by accessible public road or street in any unincorporated or rural area; provided, however, that if there is an existing licensed establishment less than 1 mile but more than nine tenths of 1 mile by accessible public road or street in any unincorporated or rural area, the Commissioner may, in its discretion, grant such license; and provided further, however, that the foregoing shall not apply:
(1) To any existing license or to the sale, transfer of ownership, or renewal thereof;
(2) To a club, hotel or restaurant for consumption of alcoholic liquors on the premises;
(3) To any holder of an existing license who desires to move the location of his or her license to a location within 500 feet thereof by accessible public road or street; provided, however, that such licensee located in a shopping center or shopping mall may move the location of his license any distance within the same shopping center or shopping mall, whether such center or mall consist of 1 or more than 1 separate buildings.
(e) Any holder of an existing license who desires to move the location of his or her license due to the destruction of his building, loss of lease, diversion of highway traffic pattern, or similar reason beyond the control of the licensee, shall have preference in the issuance of a new license provided that the application satisfies this subsection and all other requirements under this title.
(f) The Commissioner shall refuse to grant a license to sell alcoholic liquor to any restaurant or eating place located on or a part of the Delaware Turnpike.
(g) The Commissioner 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:
(1) That the premises where the license is to be used are properly zoned for the applicant's intended use; and
(2) That all necessary permits have been approved; and
(3) 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 Commissioner 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 Commissioner.
(h) Any existing restaurant which was licensed by the State to permit the sale of alcoholic beverages and which was in compliance with applicable state, county or municipal laws and regulations as of June 14, 1991 shall be permitted to continue to operate in the same manner as it was operating on said date so long as said license is in effect, notwithstanding any ordinance or other restriction subsequently enacted by a municipal corporation.
38 Del. Laws, c. 18, §§ 22, 24; Code 1935, §§ 6151, 6153; 4 Del. C. 1953, § 543; 54 Del. Laws, c. 324; 54 Del. Laws, c. 377, § 2; 55 Del. Laws, c. 116, § 1; 55 Del. Laws, c. 283, § 2; 55 Del. Laws, c. 342, §§ 1, 2; 55 Del. Laws, c. 446; 56 Del. Laws, c. 34; 57 Del. Laws, c. 708; 58 Del. Laws, c. 542; 59 Del. Laws, c. 107, §§ 34-37; 61 Del. Laws, c. 145, § 1; 63 Del. Laws, c. 373, § 1; 64 Del. Laws, c. 430, § 1; 66 Del. Laws, c. 178, § 1; 67 Del. Laws, c. 109, § 15; 68 Del. Laws, c. 44, §§ 1, 2; 69 Del. Laws, c. 338, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 435, §§ 4, 5; 72 Del. Laws, c. 157, § 1; 72 Del. Laws, c. 486, § 9; 78 Del. Laws, c. 285, § 21.;
§ 544 Finality of Commissioner's decision refusing license.
If an application is not timely protested, but the Commissioner determines that the application should nevertheless be denied, the Commissioner shall render the decision promptly in writing. The Commissioner's decision 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. The appeal shall follow the procedure outlined in § 541 of this title.
§ 545 Improvements to premises.
The Commissioner may not require an applicant to make improvements to the premises before the issuance of a license; however, the Commissioner may issue a license to sell alcoholic liquor upon the condition that certain improvements shall be made to the premises.
§ 546 Limit on number of retail licenses.
(a) The General Assembly finds that, in order for the Delaware Alcoholic Beverage Control Commissioner to maintain effective control of the importation, distribution and sale of alcoholic liquor into and within this State, and in order to prevent geographical price fixing of alcoholic liquor at the retail level, there shall be a limitation placed on the number of retail licenses issued, held, controlled or acquired directly or indirectly by 1 person. The General Assembly further finds that a limitation on the number of retail licenses held by 1 person is necessary to ensure a stable system for the lawful distribution of alcoholic liquor, serve the public need and convenience and prevent the public harm associated with a monopoly of the retail alcoholic liquor trade by any person or group of persons, whether such licenses are held by a corporation, partnership, association, proprietorship, individual or other entity. The General Assembly further finds that a reasonable restriction on the number of retail licenses held by 1 person will further the State's interest in maintaining a 3-tier system for the importation, distribution and sale of alcoholic liquor by minimizing or limiting absentee ownership and the domination of retail establishments by suppliers, manufacturers, importers or other economically powerful interests.
Therefore, it is declared to be the public policy of this State that limitations, as hereinafter specified, be placed on the number of retail licenses that any person may at 1 time hold, directly or indirectly, and that the Commissioner shall actively supervise and enforce these limitations.
(b) The Commissioner shall refuse to grant a license for the sale of alcoholic liquor by any restaurant, taproom, hotel, store or other establishment for consumption off the premises where sold if the Commissioner has substantial evidence that would reasonably support a belief that the applicant, or any of the applicant's directors, officers or shareholders, or any of the applicant's partners, corporations, proprietorships or other legal entities engaged in any undertaking, industry or business is singularly, or in combination with the applicant, the holder of 2 or more retail licenses, or has any financial, pecuniary, beneficial, management, supervisory or other interest whatsoever, direct or indirect, and however small, in 2 or more retail licenses; provided, however, that nothing herein shall require any person who, prior to April 1, 1992, acquired an interest in more than 2 retail licenses to surrender, dispose of, or release their interest in any such license; nor shall anything herein affect such person's right to continue to hold, use and renew any such license.
(c) For the purposes of this section, a person shall be deemed to acquire a financial, pecuniary, beneficial, management, supervisory or other interest in a retail license to purchase and re-sell or dispense alcoholic liquor if such person or person's spouse or child under 21 years of age has either (i) any interest whatsoever, direct or indirect, and however small, as a director, officer, shareholder, partner, associate, employee or member in any corporation, partnership, association, proprietorship or other entity engaged in any undertaking, industry or business which holds a retail license pursuant to this chapter, or (ii) any authority whatsoever to supervise, manage, control or direct the operation of the licensee's business, or to hire, terminate or discipline its employees, or to issue any orders, policies or directives concerning its business; provided, however, that any person whose relationship with the licensee is, as determined by the Commissioner, merely that of a bona fide lender, lending institution, secured party or lienholder, or merely that of a bona fide landlord or lessor of real or personal property, shall not, for the purposes of this section, be deemed to acquire a financial, pecuniary, beneficial, management, supervisory or other interest in such license.
(d) The Commissioner may promulgate such rules and regulations with respect to the enforcement and furtherance of the objectives and provisions of this section as it may deem necessary, and all such rules and regulations that are not inconsistent with provisions of this title and the Delaware Code shall have the force and effect of law.