When the Beatles penned the song “It Don’t Come Easy,” they may have had liquor licenses in mind.
In a recent case a Tapestry Hotel by Hilton located on Fenwick Island, Del., applied for a liquor license from the Delaware Alcoholic Beverage Commissioner. The application included requests for variances (exceptions to rules) relating to the second-floor café, patio and pool, all of which are merged together. That space is accessible directly from outside the hotel and so is not restricted to hotel guests. The inn sought authorization to serve alcohol at the café and provide entertainment in that area.
The applicable ABC regulations prohibit patios from having wet bars or speakers. A variance can be granted but only by the ABC and only upon a showing of “good cause.” Before issuing a variance, the commissioner must provide an opportunity for public input, typically at a hearing.
A public hearing was held on the hotel’s application for the variances. The inn argued that a luxury hotel of its caliber requires the variances as an essential part of its amenities and that potential guests of this type of hotel insist on such features.
Twenty-six island residents who live within a mile of the hotel appeared at the hearing and objected to the variances. They argued that alcohol and entertainment on the patio would result in noise and crowds, which would be disruptive of the “quiet, family-oriented quality of life” for which they claimed Fenwick Island is known.
The ABC commissioner denied the requested variances, thereby preventing the sale of alcohol in the café and limiting entertainment possibilities in the café and patio/pool area. As a result, for guests to enjoy their favorite alcoholic beverages, they will need to go inside the hotel to the internal restaurant and bar, purchase the alcohol there and then carry it to the patio.
The court’s reasoning included concern for the noise and crowds feared by the neighbors and noted that no other hotel or restaurant on the island has an outdoor bar. The hotel appealed and the decision was upheld. Not liking no for an answer, the hotel appealed again, this time to the Superior Court of Delaware. That court affirmed the previous decisions. The upshot: The hotel must forgo the desired amenities.
A takeaway from this case is the importance of planning ahead to ensure, to the extent possible, all necessary licenses, permits and approvals are secured before finalizing construction or remodeling plans. Also significant is understanding neighbors’ objections so their concerns can be mitigated if possible.
Karen Morris is a lawyer, municipal judge and Distinguished Professor at Monroe Community College in Rochester, N.Y., where she teaches hospitality law. Contact her at [email protected].