OLYMPUS DIGITAL CAMERAThis is a guest article from Ciro Poppiti, III, Esquire, the Register of Wills for New Castle County, Delaware, and a frequent commentator on food-and-beverage law.

Office of the Commissioner, Delaware Alcoholic Beverage Control v. Appeals Commissioner, Delaware Alcoholic Beverage Control, and Lex-Pac, Inc. d/b/a Hak’s Sport’s Bar & Restaurant (Del. June 2, 2015).

Even when salacious facts present themselves, this Delaware Supreme Court decision demonstrates that the main tenets of administrative law hold fast, namely 1) the enabling act controls and 2) a lower-tier reviewer does not have the authority to appeal a higher-tier reviewer.

Hak’s is a gentlemen’s club on the outskirts of Wilmington. Hak’s wanted to change the classification of its alcohol license from a taproom to a restaurant. The reason? Hak’s wanted to have strippers under 21. Under a taproom license (namely, a bar-only license), everyone in the joint must be over 21. Under a restaurant license, age is moot.

The Delaware alcohol commissioner denied Hak’s application, underscoring the point that the purpose of a restaurant is to serve complete meals, not to accommodate 19-year-old lap dancers. Hak’s appealed to the alcohol appeals commission, which is essentially an administrative appeals board. The appeals commission overruled the commissioner and granted the application on a provisional basis. The alcohol commissioner himself then appealed to Superior Court, which ruled that the alcohol commissioner did not have standing to appeal.

The Supreme Court affirmed the Superior Court’s decision. Title 4 of our Delaware Code is the Liquor Control Act. The Act establishes the office of the alcohol commissioner, enabling the commissioner to grant licenses, make the rules under which the licensees must act, and then adjudicate wrongdoing. In other words, Title 4 grants the Commissioner immense power over the industry. The Supreme Court found, however, that Title 4 does not enable the commissioner to appeal a decision of the alcohol appeals commission. Such authority would in fact go against the basic scheme of jurisprudence, namely that a lower-tier reviewer cannot appeal the decision of a higher-tier reviewer.