Amvets Post No. 2 v. Delaware Board of Charitable Gaming ( 2022 )

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