Amvets Post No. 2 v. Delaware Board of Charitable Gaming

• Court: Superior Court of Delaware
• Decided: May 4, 2022
• Docket: S22A-03-001 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMVETS POST NO. 2, ) ) Appellant, ) ) v. ) CA No: S22A-03-001 MHC ) THE DELAWARE BOARD OF ) CHARITABLE GAMING, ) ) Appellee. )

ORDER Submitted: May 3, 2022 Decided: May 4, 2022

This 4th day of May, it appears to the Court that:

1. On March 2, 2022, Appellant Amvets Post No. 2 (“Appellant”) filed

a timely appeal of a decision of the Delaware Board of Charitable Gaming (the

“Board”) issued on February 23, 2022. Appellant is a nonprofit veterans

organization which previously was granted a charitable gaming permit.

Appellant uses charitable gaming to raise funds to donate to other charitable

organizations.

2. The Board determined that Appellant violated the Delaware

Constitution, state statutes and board regulations for conduct including the use

of progressive jackpots or carryover jackpots in relation to its charitable gaming

activity. Accordingly, the Board barred Appellant or any affiliated entities from conducting charitable gaming activities until at least February 23, 2023. On

March 17, 2022, Appellant filed a motion to stay the Board decision. The State,

on behalf of the Board, filed a response to the motion on March 24, 2022.

Appellant filed a reply on March 25, 2022. The Court held oral argument on the

motion on May 3, 2022. At that time, Appellant stated that if the stay was

granted, it would refrain from conducting progressive jackpot games while the

stay is in effect. Briefing has not occurred on the merits of the appeal.

3. To determine whether a motion to stay should be granted, the Court is

required (1) “to make a preliminary assessment of likelihood of success on the

merits of the appeal; (2) to assess whether the [appellant] will suffer irreparable

injury if the stay is not granted; (3) to assess whether any other interested party

will suffer substantial harm if the stay is granted; and (4) to determine whether

the public interest will be harmed if the stay is granted.”1

4. The Court finds that Appellant will suffer irreparable injury if the

stay is not granted and thus no longer able to conduct charitable gaming

activities. Appellant’s counsel stated at oral argument that the penalties imposed

by the Board will lead to the termination of employees of the Appellant, as well

as a decrease in community engagement. The charitable organizations that

receive donations from Appellant as a result of the charitable gaming activity

1 Kirpat, Inc. v. Delaware Alcoholic Beverage Control Comm'n, 741 A.2d 356, 357 (Del. 1998) (citing Evans v. Buchanan, 435 F.Supp. 832, 841–42 (D.Del. 1977)). 2 will also suffer harm if the stay is not granted due to a decrease in donations by

Appellant. The State acknowledged at oral argument that neither the State nor

the public will suffer substantial harm if the stay is granted under the condition

that Appellant refrains from conducting progressive jackpot games while the

stay is in effect. Moreover, there is no reason to believe that Appellant has

engaged in gaming for purposes other than raising money for charity. At this

time, it is not clear whether Appellant will succeed on the appeal. Briefing on

the merits of the appeal and further analysis is required. As such, the first factor

does not weigh strongly in either direction.

5. Considering all four factors and “balanc[ing] all of the equities

involved in the case together,”2 the Court determines that the stay shall be granted

under the condition that Appellant is prohibited from conducting progressive

jackpot games while this stay is in effect.

6. Accordingly, Appellant’s motion to stay is GRANTED until a

decision is issued on the appeal.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

2 Id. at 385. 3