MILFORD – A Delaware appeals board voted this week to uphold a decision from the Office of the Alcoholic Beverage Control Commissioner (OABCC) denying a variance at the new Fenwick Shores property in Fenwick Island.
On Wednesday, the Alcoholic Beverage Control Appeals Commission voted 3-0 to affirm the OABCC’s denial of a variance to allow an outdoor pool bar with outdoor live entertainment and external speakers and paging system on the second-floor pool deck of the Fenwick Shores hotel.
“I think it was very telling that there were quite a few questions asked about the variances that were not really addressed,” Appeals Commissioner Michael Finnigan said. “I think they had their opportunity to make that case in front of the commissioner when they originally asked for the variances, and they weren’t able to respond to the questions.”
Last October, Fenwick Shores developer Spiro Buas went before the OABCC – headed by Commissioner John Cordrey – seeking a hotel alcohol license, as well as a patio permit and variance to allow for an outdoor bar, live entertainment and external speakers and paging system on the property’s second-floor deck.
Following a seven-hour-long hearing, Cordrey granted the hotel a license to allow the sale and consumption of alcohol inside the premises. However, a decision to license the hotel’s second-floor pool deck was deferred until the agency could further review testimony provided by more than 100 residents and property owners.
In a conclusion issued in May, the OABCC granted Fenwick Shores a patio permit allowing the service and consumption of alcoholic beverages in the outdoor pool and seated dining areas, but not the developer’s request for a variance permitting an outdoor bar, outdoor live entertainment, and external speakers and paging system.
“To be approved for a variance, an applicant must show ‘good cause’ for the requested variance …,” Cordrey wrote. “This Office concludes the applicant provided no evidence to support the requested variance.”
Last month, Buas opted to appeal the commissioner’s decision denying his hotel a variance. And on Aug. 17, the Alcoholic Beverage Control Appeals Commission heard arguments from attorneys representing Buas, the OABCC and the group of residents opposing the appeal.
Reconvening this week for deliberations, Appeals Commission attorney Andrew Kerber noted the commissioners had three options when considering the appeal.
“This Appeals Commission has the authority to review the commissioner’s decision on the record and then affirm, modify or reverse the commissioner’s decision,” he said. “If you want to reverse the commissioner’s decision, there’s an additional code section that says you must make a finding of ‘abuse of discretion’ on the part of the commissioner in order to reverse.”
While noting he had no voting power, Kerber said he saw the merits of granting a variance. He opined it would be safer for both patrons and waitstaff if drinks were served from the outdoor bar.
“I think we should be trying to encourage people to sit outdoors and not be making people go up and down stairs carrying alcoholic beverages,” he said. “To me, it’s an accident waiting to happen … It seems to me they prove the need for a variance based on safety alone.”
Appeals Commission Chair Michael Cebrick, however, said he still had questions regarding the town’s ordinance on outdoor bars. In a separate matter, some of the concerned homeowners who have testified against the permitting of the outdoor bar have hired attorney William Rhodunda to represent them in Delaware Superior Court after alleging the town had violated its zoning code in allowing the bar to be constructed in the first place.
“There are things that bother me about the whole thing,” he said. “Sometimes I feel as though someone didn’t do their job correctly.”
Kerber noted the OABCC had received a letter from the town confirming the outdoor bar was an allowed use. He added, however, it was not the commission’s place to get involved in the matter.
“If people think there is a problem with the township ordinance, that would be a matter for the court to decide,” he said. “It’s not really up to me or you to determine the constitutionality. We may have ideas about it, but we are not the final arbiter of that.”
Both Finnigan and Appeals Commissioner Frederick Duffy said they were in favor of upholding the OABCC’s decision.
After further discussion, a motion to affirm Cordrey’s ruling on the variance passed unanimously.
“I mean people can be served drinks, they just can’t be served drinks from that service bar upstairs. They can be served drinks from a licensed establishment and they can carry those drinks upstairs …,” Finnigan said. “We’re not taking anything away, as far as I’m concerned, from the ability of the hotel.”
Kerber noted on Wednesday that Buas could appeal the commission’s decision in Superior Court. Buas did not return interview requests this week. However, Fenwick Mayor Vicki Carmean said she was pleased with the outcome.
“I didn’t expect such a good outcome, and I’m so glad that I was wrong,” she said after the meeting. “I am thrilled beyond words at this point.”
