(a) An application for a new license to purchase for resale, for transfer of an existing license, or for a substantive change to a license or licensed premise shall be filed with the Commissioner’s office.
(b) Upon filing of an application for a new license to purchase for resale or for a substantive change to a license or licensed premise the applicant shall cause notice to be advertised in at least 2 different newspapers circulated in the community in which the applicant will operate if the application is approved for 3 issues. One of the newspapers must be a “local newspaper,” as determined by the Commissioner either through rules or on a case by case basis. If the newspaper is a daily newspaper, the first publication shall be made within 3 days of the filing of the application and the third publishing shall occur within 10 days of filing the application. If the newspaper is a weekly publication, the first publication shall be made within 8 days of filing the application and the third publishing shall occur within 22 days of filing the application.
(c) Within 3 days of filing of an application for a new license to purchase for resale or for a substantive change to a license or licensed premise a notice shall be mailed by certified mail or first class mail as evidenced by a certificate of mailing postage-pre-paid to the following entities, individuals or groups of individuals:
(1) Except as provided in paragraph (c)(2) of this section, all property owners within 200 feet from any point on the property boundary line of the premises to which the license is to apply;
(2) All property owners within 1,000 feet from any point on the property boundary line of the premises to which the license is to apply if the premises is located within1/4of a mile of a riverfront, beachfront or other open water, or if the applicant intends to include space for outside dining, outside entertainment or the outside service or consumption of alcoholic beverages;
(3) The governing body of any incorporated areas within 1 mile from any point on the property boundary line of the premises to which the license is to apply.
(d) The notices referred to in subsections (b) and (c) of this section shall provide such information as determined by the Commissioner either through duly adopted rules or on a case by case basis. The following notice will, in addition to the aforesaid Commissioner approved notice, satisfy this notice provision:
“[Name of applicant] has on [Date of application] applied with the Alcoholic Beverage Control (“Commissioner”) for [Nature of application] for a premises located at [Location of the premises, including street and city]. Persons who are against this application should provide written notice of their objections to the Commissioner. For the Commissioner to be required to hold a hearing to consider additional input from persons against the application, the Commissioner must receive one or more documents containing a total of at least 10 signatures of residents or property owners located within 1 mile of the premises or in any incorporated areas located within 1 mile of the premises. The protest(s) must be filed with the Alcoholic Beverage Control Commissioner at the 3rd Floor, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801. The protest(s) must be received by the Commissioner’s office on or before [state a date at least 30 days after the application is filed]. Failure to file such a protest may result in the Commissioner considering the application without further notice, input or hearing. If you have questions regarding this matter please contact the Commissioner’s Office.”
(e) The term “substantive change” referenced in this section shall mean any of the following:
(1) Any permanent change that will increase the square footage of the licensed premises;
(2) Any temporary change that will last longer than 60 days and result in an increase of the square footage of the licensed premises;
(3) Any change that would require a variance of the Commissioner’s rules or suspension thereof and results in:
a. Live entertainment on a licensed patio;
b. External speakers or amplifiers on a licensed patio; or
c. Wet bar on a licensed patio;
(4) Any change in the floor plan of a restaurant licensee which would increase the number of bar seats or increase the area utilized for entertainment; or
(5) Any additional circumstance that the Commissioner determines is a substantive change.
(f)-(h) [Repealed.]
(i) Notwithstanding subsection (e) of this section or any other law, rule, or regulation to the contrary, substantive change does not mean any of the following:
(1) An expansion of outdoor seating for serving of food and drinks that as of March 31, 2022, was approved by the Commissioner.
(2) An expansion of outdoor seating for serving of food and drinks that meets all of the following requirements:
a. A plan approved by the appropriate political subdivision that does all of the following:
1. Considers local traffic patterns and parking capacity needs, but may extend the boundaries of seating beyond current property boundaries under the discretion of the appropriate political subdivision and applicable property owners on all local right of ways.
2. Does not intrude upon the State’s right of way, unless approved by the Delaware Department of Transportation in writing.
3. Maintains current access, unless approved by Delaware Department of Transportation in writing.
4. Maintains proper access to the property for all emergency services.
5. Complies with the Americans Disabilities Act [42 U.S.C. § 12101 et seq.].
6. Adheres to all local noise ordinances.
7. Allows for the proper control over the distribution of alcoholic beverages.
b. Approval by the Commissioner regarding the service of alcohol on premises.
c. Complies with the Delaware Food Code.
(j) Any plan approved by or submitted to the appropriate political subdivision and the Commissioner pursuant to subsection (i) of this section may allow for the service of alcoholic beverages without the requirement to serve food.
(k) Any plan submitted to the appropriate political subdivision and the Commissioner pursuant to subsection (i) of this section that meets all of the requirements of paragraph (i)(2) of this section should not be denied approval absent exceptional circumstances.
(l) Any political subdivision that revokes or modifies its approval for an expansion of outdoor seating for serving of food and drinks under subsection (i) of this section must notify the Commissioner within 30 days of such revocation or modification.