State Codes and Statutes

Statutes > Nebraska > Chapter53 > 53-132

53-132. Retail, craft brewery, or microdistillerylicense; commission; duties.(1) If no hearing is requiredpursuant to subdivision (1)(a) or (b) of section 53-133 and the commissionhas no objections pursuant to subdivision (1)(c) of such section, the commissionmay waive the forty-five-day objection period and, if not otherwise prohibitedby law, cause a retail license, craft brewery license, or microdistillerylicense to be signed by its chairperson, attested by its executive directorover the seal of the commission, and issued in the manner provided in subsection(4) of this section as a matter of course.(2) A retail license, craft brewery license, or microdistillery licensemay be issued to any qualified applicant if the commission finds that (a)the applicant is fit, willing, and able to properly provide the service proposedwithin the city, village, or county where the premises described in the applicationare located, (b) the applicant can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the Nebraska Liquor ControlAct, (c) the applicant has demonstrated that the type of management and controlto be exercised over the premises described in the application will be sufficientto insure that the licensed business can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the act, and (d) the issuanceof the license is or will be required by the present or future public convenienceand necessity.(3) In making its determination pursuant to subsection (2) of this sectionthe commission shall consider:(a) The recommendation of the local governing body;(b) The existence of a citizens' protest made in accordance with section 53-133;(c) The existing population of the city, village, or county and itsprojected growth;(d) The nature of the neighborhood or community of the location of theproposed licensed premises;(e) The existence or absence of other retail licenses, craft brewerylicenses, or microdistillery licenses with similar privileges within the neighborhoodor community of the location of the proposed licensed premises and whether,as evidenced by substantive, corroborative documentation, the issuance ofsuch license would result in or add to an undue concentration of licenseswith similar privileges and, as a result, require the use of additional lawenforcement resources;(f) The existing motor vehicle and pedestrian traffic flow in the vicinityof the proposed licensed premises;(g) The adequacy of existing law enforcement;(h) Zoning restrictions;(i) The sanitation or sanitary conditions on or about the proposed licensedpremises; and(j) Whether the type of business or activity proposed to be operatedin conjunction with the proposed license is and will be consistent with thepublic interest.(4) Retail licenses, craft brewery licenses, or microdistillery licensesissued or renewed by the commission shall be mailed or delivered to the clerkof the city, village, or county who shall deliver the same to the licenseeupon receipt from the licensee of proof of payment of (a) the license feeif by the terms of subsection(6) of section 53-124 the fee is payable to the treasurer of suchcity, village, or county, (b) any fee for publication of notice of hearingbefore the local governing body upon the application for the license, (c)the fee for publication of notice of renewal as provided in section 53-135.01,and (d) occupation taxes, if any, imposed by such city, village, or county.Notwithstanding any ordinance or charter power to the contrary, no city, village,or county shall impose an occupation tax on the business of any person, firm,or corporation licensed under the act and doing business within the corporatelimits of such city or village or within the boundaries of such county inany sum which exceeds two times the amount of the license fee required tobe paid under the act to obtain such license.(5) Each license shall designate the name of the licensee, the placeof business licensed, and the type of license issued. SourceLaws 1935, c. 116, § 83, p. 419; C.S.Supp.,1941, § 53-383; R.S.1943, § 53-132; Laws 1957, c. 228, § 3, p. 780; Laws 1957, c. 242, § 45, p. 856; Laws 1959, c. 246, § 1, p. 845; Laws 1959, c. 247, § 2, p. 848; Laws 1959, c. 248, § 1, p. 857; Laws 1959, c. 249, § 7, p. 867; Laws 1976, LB 413, § 2; Laws 1981, LB 124, § 2; Laws 1984, LB 947, § 3; Laws 1986, LB 911, § 4; Laws 1988, LB 1089, § 14; Laws 1989, LB 780, § 9; Laws 1989, LB 781, § 10; Laws 1991, LB 344, § 36; Laws 1993, LB 183, § 12; Laws 1999, LB 267, § 9; Laws 2004, LB 485, § 21; Laws 2006, LB 845, § 2; Laws 2007, LB549, § 12; Laws 2010, LB861, § 66.Annotations1. License issuance allowed2. License issuance denied3. Miscellaneous1. License issuance allowedDecision of district court reversing city council's disapproval of class D liquor licenses for grocery stores affirmed because grocery stores met license issuance criteria set forth in statute. B & R Stores v. City of Lincoln, 245 Neb. 76, 511 N.W.2d 101 (1994).Recommendation of denial made by city council based only on belief sufficient licenses exist does not justify denial of otherwise valid application. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).In administrative hearing for license not required by section 53-133(1), where evidence fails to establish valid ground for denial, this section requires that license be issued. Hadlock v. Nebraska Liquor Control Commission, 193 Neb. 721, 228 N.W.2d 887 (1975).In the absence of protest within three days, license must be issued. State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950).License issues as a matter of course under certain conditions. Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274 (1948).2. License issuance deniedA district court's decision reversing the Nebraska Liquor Control Commission's approval of a class D liquor license was affirmed where the district court properly considered all the factors listed in subsection (3) and where the court's decision was not arbitrary, capricious, or unreasonable. Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007).Recommendation of denial of license by local governing body to commission may be enough to justify denial. Kerrey's, Inc. v. Neb. Liquor Control Comm., 213 Neb. 442, 329 N.W.2d 364 (1983).3. MiscellaneousIn order to issue a retail liquor license, the Nebraska Liquor Control Commission must find that each of the conditions specified in subsections (2)(a) through (d) of this section are satisfied, and in making its determination whether such conditions are satisfied, the commission must consider each of the factors listed in subsections (3)(a) through (j) of this section. City of Lincoln v. Nebraska Liquor Control Comm., 261 Neb. 783, 626 N.W.2d 518 (2001).Subsection (2) of this section (Reissue 1984) describes the general standards by which initial applicants are judged to be fit to obtain a liquor license and to follow the rules and regulations that bear on license holders. This statute, however, is not itself a rule or regulation which can be violated by a current licensee and subject the licensee to cancellation under the power given the Nebraska Liquor Control Commission by sections 53-116.01 and 53-117.08. Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 61, 554 N.W.2d 778 (1996).This section, as amended by 1993 Neb. Laws, L.B. 183, is unenforceable. Marting v. Nebraska Liquor Control Comm., 250 Neb. 134, 548 N.W.2d 326 (1996).For purposes of this section, there is no close approximation between purchasing off-sale liquor at a grocery store and purchasing and consuming liquor in an "on premises" establishment. Hy-Vee Food Stores v. Nebraska Liquor Control Comm., 242 Neb. 752, 497 N.W.2d 647 (1993).The portion of this section amended by 1986 Neb. Laws, L.B. 911, is declared unconstitutional. Bosselman, Inc. v. State, 230 Neb. 471, 432 N.W.2d 226 (1988).The applicant for a liquor license has the burden of proof, at the hearing before the Nebraska Liquor Control Commission, to show that the issuance of the license is or will be required by the present or future public convenience and necessity. Richards v. Neb. Liquor Control Comm., 221 Neb. 542, 378 N.W.2d 667 (1985).Failure by liquor commission to make fact findings and conclusions of law makes its order irregular, which requires remand to make appropriate findings. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).This section provides for the issuance of a license to sell alcoholic liquor, including beer, at retail, and is controlling over another section declaring public policy in favor of separate sale. Hanson v. Gass, 130 Neb. 685, 267 N.W. 403 (1936).

State Codes and Statutes

Statutes > Nebraska > Chapter53 > 53-132

53-132. Retail, craft brewery, or microdistillerylicense; commission; duties.(1) If no hearing is requiredpursuant to subdivision (1)(a) or (b) of section 53-133 and the commissionhas no objections pursuant to subdivision (1)(c) of such section, the commissionmay waive the forty-five-day objection period and, if not otherwise prohibitedby law, cause a retail license, craft brewery license, or microdistillerylicense to be signed by its chairperson, attested by its executive directorover the seal of the commission, and issued in the manner provided in subsection(4) of this section as a matter of course.(2) A retail license, craft brewery license, or microdistillery licensemay be issued to any qualified applicant if the commission finds that (a)the applicant is fit, willing, and able to properly provide the service proposedwithin the city, village, or county where the premises described in the applicationare located, (b) the applicant can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the Nebraska Liquor ControlAct, (c) the applicant has demonstrated that the type of management and controlto be exercised over the premises described in the application will be sufficientto insure that the licensed business can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the act, and (d) the issuanceof the license is or will be required by the present or future public convenienceand necessity.(3) In making its determination pursuant to subsection (2) of this sectionthe commission shall consider:(a) The recommendation of the local governing body;(b) The existence of a citizens' protest made in accordance with section 53-133;(c) The existing population of the city, village, or county and itsprojected growth;(d) The nature of the neighborhood or community of the location of theproposed licensed premises;(e) The existence or absence of other retail licenses, craft brewerylicenses, or microdistillery licenses with similar privileges within the neighborhoodor community of the location of the proposed licensed premises and whether,as evidenced by substantive, corroborative documentation, the issuance ofsuch license would result in or add to an undue concentration of licenseswith similar privileges and, as a result, require the use of additional lawenforcement resources;(f) The existing motor vehicle and pedestrian traffic flow in the vicinityof the proposed licensed premises;(g) The adequacy of existing law enforcement;(h) Zoning restrictions;(i) The sanitation or sanitary conditions on or about the proposed licensedpremises; and(j) Whether the type of business or activity proposed to be operatedin conjunction with the proposed license is and will be consistent with thepublic interest.(4) Retail licenses, craft brewery licenses, or microdistillery licensesissued or renewed by the commission shall be mailed or delivered to the clerkof the city, village, or county who shall deliver the same to the licenseeupon receipt from the licensee of proof of payment of (a) the license feeif by the terms of subsection(6) of section 53-124 the fee is payable to the treasurer of suchcity, village, or county, (b) any fee for publication of notice of hearingbefore the local governing body upon the application for the license, (c)the fee for publication of notice of renewal as provided in section 53-135.01,and (d) occupation taxes, if any, imposed by such city, village, or county.Notwithstanding any ordinance or charter power to the contrary, no city, village,or county shall impose an occupation tax on the business of any person, firm,or corporation licensed under the act and doing business within the corporatelimits of such city or village or within the boundaries of such county inany sum which exceeds two times the amount of the license fee required tobe paid under the act to obtain such license.(5) Each license shall designate the name of the licensee, the placeof business licensed, and the type of license issued. SourceLaws 1935, c. 116, § 83, p. 419; C.S.Supp.,1941, § 53-383; R.S.1943, § 53-132; Laws 1957, c. 228, § 3, p. 780; Laws 1957, c. 242, § 45, p. 856; Laws 1959, c. 246, § 1, p. 845; Laws 1959, c. 247, § 2, p. 848; Laws 1959, c. 248, § 1, p. 857; Laws 1959, c. 249, § 7, p. 867; Laws 1976, LB 413, § 2; Laws 1981, LB 124, § 2; Laws 1984, LB 947, § 3; Laws 1986, LB 911, § 4; Laws 1988, LB 1089, § 14; Laws 1989, LB 780, § 9; Laws 1989, LB 781, § 10; Laws 1991, LB 344, § 36; Laws 1993, LB 183, § 12; Laws 1999, LB 267, § 9; Laws 2004, LB 485, § 21; Laws 2006, LB 845, § 2; Laws 2007, LB549, § 12; Laws 2010, LB861, § 66.Annotations1. License issuance allowed2. License issuance denied3. Miscellaneous1. License issuance allowedDecision of district court reversing city council's disapproval of class D liquor licenses for grocery stores affirmed because grocery stores met license issuance criteria set forth in statute. B & R Stores v. City of Lincoln, 245 Neb. 76, 511 N.W.2d 101 (1994).Recommendation of denial made by city council based only on belief sufficient licenses exist does not justify denial of otherwise valid application. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).In administrative hearing for license not required by section 53-133(1), where evidence fails to establish valid ground for denial, this section requires that license be issued. Hadlock v. Nebraska Liquor Control Commission, 193 Neb. 721, 228 N.W.2d 887 (1975).In the absence of protest within three days, license must be issued. State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950).License issues as a matter of course under certain conditions. Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274 (1948).2. License issuance deniedA district court's decision reversing the Nebraska Liquor Control Commission's approval of a class D liquor license was affirmed where the district court properly considered all the factors listed in subsection (3) and where the court's decision was not arbitrary, capricious, or unreasonable. Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007).Recommendation of denial of license by local governing body to commission may be enough to justify denial. Kerrey's, Inc. v. Neb. Liquor Control Comm., 213 Neb. 442, 329 N.W.2d 364 (1983).3. MiscellaneousIn order to issue a retail liquor license, the Nebraska Liquor Control Commission must find that each of the conditions specified in subsections (2)(a) through (d) of this section are satisfied, and in making its determination whether such conditions are satisfied, the commission must consider each of the factors listed in subsections (3)(a) through (j) of this section. City of Lincoln v. Nebraska Liquor Control Comm., 261 Neb. 783, 626 N.W.2d 518 (2001).Subsection (2) of this section (Reissue 1984) describes the general standards by which initial applicants are judged to be fit to obtain a liquor license and to follow the rules and regulations that bear on license holders. This statute, however, is not itself a rule or regulation which can be violated by a current licensee and subject the licensee to cancellation under the power given the Nebraska Liquor Control Commission by sections 53-116.01 and 53-117.08. Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 61, 554 N.W.2d 778 (1996).This section, as amended by 1993 Neb. Laws, L.B. 183, is unenforceable. Marting v. Nebraska Liquor Control Comm., 250 Neb. 134, 548 N.W.2d 326 (1996).For purposes of this section, there is no close approximation between purchasing off-sale liquor at a grocery store and purchasing and consuming liquor in an "on premises" establishment. Hy-Vee Food Stores v. Nebraska Liquor Control Comm., 242 Neb. 752, 497 N.W.2d 647 (1993).The portion of this section amended by 1986 Neb. Laws, L.B. 911, is declared unconstitutional. Bosselman, Inc. v. State, 230 Neb. 471, 432 N.W.2d 226 (1988).The applicant for a liquor license has the burden of proof, at the hearing before the Nebraska Liquor Control Commission, to show that the issuance of the license is or will be required by the present or future public convenience and necessity. Richards v. Neb. Liquor Control Comm., 221 Neb. 542, 378 N.W.2d 667 (1985).Failure by liquor commission to make fact findings and conclusions of law makes its order irregular, which requires remand to make appropriate findings. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).This section provides for the issuance of a license to sell alcoholic liquor, including beer, at retail, and is controlling over another section declaring public policy in favor of separate sale. Hanson v. Gass, 130 Neb. 685, 267 N.W. 403 (1936).

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State Codes and Statutes

Statutes > Nebraska > Chapter53 > 53-132

53-132. Retail, craft brewery, or microdistillerylicense; commission; duties.(1) If no hearing is requiredpursuant to subdivision (1)(a) or (b) of section 53-133 and the commissionhas no objections pursuant to subdivision (1)(c) of such section, the commissionmay waive the forty-five-day objection period and, if not otherwise prohibitedby law, cause a retail license, craft brewery license, or microdistillerylicense to be signed by its chairperson, attested by its executive directorover the seal of the commission, and issued in the manner provided in subsection(4) of this section as a matter of course.(2) A retail license, craft brewery license, or microdistillery licensemay be issued to any qualified applicant if the commission finds that (a)the applicant is fit, willing, and able to properly provide the service proposedwithin the city, village, or county where the premises described in the applicationare located, (b) the applicant can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the Nebraska Liquor ControlAct, (c) the applicant has demonstrated that the type of management and controlto be exercised over the premises described in the application will be sufficientto insure that the licensed business can conform to all provisions and requirementsof and rules and regulations adopted pursuant to the act, and (d) the issuanceof the license is or will be required by the present or future public convenienceand necessity.(3) In making its determination pursuant to subsection (2) of this sectionthe commission shall consider:(a) The recommendation of the local governing body;(b) The existence of a citizens' protest made in accordance with section 53-133;(c) The existing population of the city, village, or county and itsprojected growth;(d) The nature of the neighborhood or community of the location of theproposed licensed premises;(e) The existence or absence of other retail licenses, craft brewerylicenses, or microdistillery licenses with similar privileges within the neighborhoodor community of the location of the proposed licensed premises and whether,as evidenced by substantive, corroborative documentation, the issuance ofsuch license would result in or add to an undue concentration of licenseswith similar privileges and, as a result, require the use of additional lawenforcement resources;(f) The existing motor vehicle and pedestrian traffic flow in the vicinityof the proposed licensed premises;(g) The adequacy of existing law enforcement;(h) Zoning restrictions;(i) The sanitation or sanitary conditions on or about the proposed licensedpremises; and(j) Whether the type of business or activity proposed to be operatedin conjunction with the proposed license is and will be consistent with thepublic interest.(4) Retail licenses, craft brewery licenses, or microdistillery licensesissued or renewed by the commission shall be mailed or delivered to the clerkof the city, village, or county who shall deliver the same to the licenseeupon receipt from the licensee of proof of payment of (a) the license feeif by the terms of subsection(6) of section 53-124 the fee is payable to the treasurer of suchcity, village, or county, (b) any fee for publication of notice of hearingbefore the local governing body upon the application for the license, (c)the fee for publication of notice of renewal as provided in section 53-135.01,and (d) occupation taxes, if any, imposed by such city, village, or county.Notwithstanding any ordinance or charter power to the contrary, no city, village,or county shall impose an occupation tax on the business of any person, firm,or corporation licensed under the act and doing business within the corporatelimits of such city or village or within the boundaries of such county inany sum which exceeds two times the amount of the license fee required tobe paid under the act to obtain such license.(5) Each license shall designate the name of the licensee, the placeof business licensed, and the type of license issued. SourceLaws 1935, c. 116, § 83, p. 419; C.S.Supp.,1941, § 53-383; R.S.1943, § 53-132; Laws 1957, c. 228, § 3, p. 780; Laws 1957, c. 242, § 45, p. 856; Laws 1959, c. 246, § 1, p. 845; Laws 1959, c. 247, § 2, p. 848; Laws 1959, c. 248, § 1, p. 857; Laws 1959, c. 249, § 7, p. 867; Laws 1976, LB 413, § 2; Laws 1981, LB 124, § 2; Laws 1984, LB 947, § 3; Laws 1986, LB 911, § 4; Laws 1988, LB 1089, § 14; Laws 1989, LB 780, § 9; Laws 1989, LB 781, § 10; Laws 1991, LB 344, § 36; Laws 1993, LB 183, § 12; Laws 1999, LB 267, § 9; Laws 2004, LB 485, § 21; Laws 2006, LB 845, § 2; Laws 2007, LB549, § 12; Laws 2010, LB861, § 66.Annotations1. License issuance allowed2. License issuance denied3. Miscellaneous1. License issuance allowedDecision of district court reversing city council's disapproval of class D liquor licenses for grocery stores affirmed because grocery stores met license issuance criteria set forth in statute. B & R Stores v. City of Lincoln, 245 Neb. 76, 511 N.W.2d 101 (1994).Recommendation of denial made by city council based only on belief sufficient licenses exist does not justify denial of otherwise valid application. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).In administrative hearing for license not required by section 53-133(1), where evidence fails to establish valid ground for denial, this section requires that license be issued. Hadlock v. Nebraska Liquor Control Commission, 193 Neb. 721, 228 N.W.2d 887 (1975).In the absence of protest within three days, license must be issued. State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950).License issues as a matter of course under certain conditions. Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274 (1948).2. License issuance deniedA district court's decision reversing the Nebraska Liquor Control Commission's approval of a class D liquor license was affirmed where the district court properly considered all the factors listed in subsection (3) and where the court's decision was not arbitrary, capricious, or unreasonable. Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007).Recommendation of denial of license by local governing body to commission may be enough to justify denial. Kerrey's, Inc. v. Neb. Liquor Control Comm., 213 Neb. 442, 329 N.W.2d 364 (1983).3. MiscellaneousIn order to issue a retail liquor license, the Nebraska Liquor Control Commission must find that each of the conditions specified in subsections (2)(a) through (d) of this section are satisfied, and in making its determination whether such conditions are satisfied, the commission must consider each of the factors listed in subsections (3)(a) through (j) of this section. City of Lincoln v. Nebraska Liquor Control Comm., 261 Neb. 783, 626 N.W.2d 518 (2001).Subsection (2) of this section (Reissue 1984) describes the general standards by which initial applicants are judged to be fit to obtain a liquor license and to follow the rules and regulations that bear on license holders. This statute, however, is not itself a rule or regulation which can be violated by a current licensee and subject the licensee to cancellation under the power given the Nebraska Liquor Control Commission by sections 53-116.01 and 53-117.08. Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 61, 554 N.W.2d 778 (1996).This section, as amended by 1993 Neb. Laws, L.B. 183, is unenforceable. Marting v. Nebraska Liquor Control Comm., 250 Neb. 134, 548 N.W.2d 326 (1996).For purposes of this section, there is no close approximation between purchasing off-sale liquor at a grocery store and purchasing and consuming liquor in an "on premises" establishment. Hy-Vee Food Stores v. Nebraska Liquor Control Comm., 242 Neb. 752, 497 N.W.2d 647 (1993).The portion of this section amended by 1986 Neb. Laws, L.B. 911, is declared unconstitutional. Bosselman, Inc. v. State, 230 Neb. 471, 432 N.W.2d 226 (1988).The applicant for a liquor license has the burden of proof, at the hearing before the Nebraska Liquor Control Commission, to show that the issuance of the license is or will be required by the present or future public convenience and necessity. Richards v. Neb. Liquor Control Comm., 221 Neb. 542, 378 N.W.2d 667 (1985).Failure by liquor commission to make fact findings and conclusions of law makes its order irregular, which requires remand to make appropriate findings. McChesney v. City of No. Platte, 216 Neb. 416, 343 N.W.2d 925 (1984).This section provides for the issuance of a license to sell alcoholic liquor, including beer, at retail, and is controlling over another section declaring public policy in favor of separate sale. Hanson v. Gass, 130 Neb. 685, 267 N.W. 403 (1936).

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