53-132. Retail, bottle club, craft brewery, or microdistillery license; commission; duties.
(1) If no hearing is required pursuant to subdivision (1)(a) or (b) of section 53-133 and the commission has no objections pursuant to subdivision (1)(c) of such section, the commission may waive the forty-five-day objection period and, if not otherwise prohibited by law, cause a retail license, bottle club license, craft brewery license, or microdistillery license to be signed by its chairperson, attested by its executive director over 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, bottle club license, craft brewery license, or microdistillery license may be issued to any qualified applicant if the commission finds that (a) the applicant is fit, willing, and able to properly provide the service proposed within the city, village, or county where the premises described in the application are located, (b) the applicant can conform to all provisions and requirements of and rules and regulations adopted pursuant to the Nebraska Liquor Control Act, (c) the applicant has demonstrated that the type of management and control to be exercised over the premises described in the application will be sufficient to insure that the licensed business can conform to all provisions and requirements of and rules and regulations adopted pursuant to the act, and (d) the issuance of the license is or will be required by the present or future public convenience and necessity.
(3) In making its determination pursuant to subsection (2) of this section the 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 its projected growth;
(d) The nature of the neighborhood or community of the location of the proposed licensed premises;
(e) The existence or absence of other retail licenses, bottle club licenses, craft brewery licenses, or microdistillery licenses with similar privileges within the neighborhood or community of the location of the proposed licensed premises and whether, as evidenced by substantive, corroborative documentation, the issuance of such license would result in or add to an undue concentration of licenses with similar privileges and, as a result, require the use of additional law enforcement resources;
(f) The existing motor vehicle and pedestrian traffic flow in the vicinity of 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 licensed premises; and
(j) Whether the type of business or activity proposed to be operated in conjunction with the proposed license is and will be consistent with the public interest.
(4) Retail licenses, bottle club licenses, craft brewery licenses, or microdistillery licenses issued or renewed by the commission shall be mailed or delivered to the clerk of the city, village, or county who shall deliver the same to the licensee upon receipt from the licensee of proof of payment of (a) the license fee if by the terms of subsection (6) of section 53-124 the fee is payable to the treasurer of such city, village, or county, (b) any fee for publication of notice of hearing before 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 except as otherwise provided in subsection (6) of this section. 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 corporate limits of such city or village or within the boundaries of such county in any sum which exceeds two times the amount of the license fee required to be paid under the act to obtain such license.
(5) Each license shall designate the name of the licensee, the place of business licensed, and the type of license issued.
(6) Class J retail licensees shall not be subject to occupation taxes under subsection (4) of this section.
Source
Annotations
1. License issuance allowed
2. License issuance denied
3. Miscellaneous
1. License issuance allowed
Decision 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 denied
A 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. Miscellaneous
The limit to two times the license fee pertains only to taxes on the occupation of selling alcohol and has no bearing on occupation taxes designed to target activities other than selling alcoholic beverages. Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467 (2012).
In 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).