Restaurant arrest records may be expunged
The Rehoboth Beach commissioners unanimously voted to move forward with expunging the records of two restaurant owners arrested during a Sept. 10 crackdown on violations of the patio ordinance.
The commissioners also approved extending an “olive branch” to the two restaurant owners – John Berdini of Cloud 9 and Bill Shields of Aqua Grill – asking the owners to waive taking legal action against the city in exchange for having their arrest records expunged. However, no waiver would be given out until those arrested come forward.
Commissioner Dennis Barbour said in addition to the two restaurateurs, a cook at another restaurant was also arrested on Sept. 10, although Barbour added he got that information secondhand.
While the city did not pursue a legal action against Shields when it discovered Aqua enjoyed grandfather status, Berdini pleaded guilty.
“There was fuzziness for two issues. One, the process that happened in September, which, I don’t want to go over that again, and the second, is how it applies to these three individuals. It is my strong view that these individuals should not be left to have to suffer the consequences,” Barbour said.
He said the arrest records could affect Berdini and Shields in their private lives, for instance of Berdini to pass an annual background check for a charitable board he serves on, and for Shields, a flight attendant, to get his license from the FAA.
“This is going to follow these people around. I think it’s unjust,” Barbour said.
City Solicitor Glenn Mandalas said there is a legal process to expunge Shields’ record, since the city did not pursue a case against him. In Berdini’s case, he could go back to the Alderman’s Court, file a motion to withdraw his guilty plea and then go through the process of expunging his record, Mandalas said.
Commissioner Pat Coluzzi said, “I feel very strongly that these people were arrested unjustly. I’d like to correct that, and I think it would do well for the city to do that.”
Mayor Sam Cooper, while in favor of moving forward, expressed uncertainty with expunging the records because the restaurant owners did not come forward seeking expungement themselves.
“Nobody’s come forward and said, ‘Would you do this for me?’ If we had three letters that said, ‘I thought I was mistreated, would you help me?’ That would be one thing. But we’re flying blind here,” he said.
Barbour said one of the three did write such a letter to the city and got no response. Cooper said he never received such a letter.
Cooper said he was concern the city may be establishing a precedent, opening the city to possible issues in a future court action. He said he was worried the three arrestees would use the expungements as a “bludgeon” against the city in a lawsuit. Mandalas said by expunging the record, it is an acknowledgement that the city took extreme measures beyond its mandated police powers.
Commissioner Kathy McGuiness said, “Your concern is in the event we expunge, then they could move forward with some other action. My concern would be if we don’t expunge they’re going to move forward with some other action.
Barbour said the situation with the restaurant owners was “an extraordinary situation” and if the records were expunged there would be no grounds for a lawsuit.
Should the three arrestees sign the waiver of legal action against the city, it would officially end a contentious period of relations between the city and its business community. Part of the ongoing saga involved Commissioner Stan Mills being admonished by the state Public Integrity Commission for his role in the Sept. 10 crackdown. Mills recused himself from the record expungement discussions. The city also passed an ordinance relaxing the patio restrictions.
Commissioner Lorraine Zellers said, “I don’t think the city’s intent was to harm anyone, I think the city’s intent was to enforce an ordinance that had not been followed. That being said, the process was flawed. I would agree that, to the extent that we could, we help them with their expungement. This would actually resolve the issue and close the book on this. We made a mistake. I think we have to rectify it.”
