53-134 Retail, craft brewery, and microdistillery licenses; city and village governing bodies; county boards; powers, functions, and duties. - Nebraska Statutes

53-134. Retail, craft brewery, and microdistillerylicenses; city and village governing bodies; county boards; powers, functions,and duties.The local governing body of any city or villagewith respect to licenses within its corporate limits and the local governingbody of any county with respect to licenses not within the corporate limitsof any city or village but within the county shall have the following powers,functions, and duties with respect to retail, craft brewery, and microdistillerylicenses:(1) To cancel or revoke for cause retail, craft brewery, or microdistillerylicenses to sell or dispense alcoholic liquor issued to persons for premiseswithin its jurisdiction, subject to the right of appeal to the commission;(2) To enter or to authorize any law enforcement officer to enter atany time upon any premises licensed under the Nebraska Liquor Control Actto determine whether any provision of the act, any rule or regulation adoptedand promulgated pursuant to the act, or any ordinance, resolution, rule, orregulation adopted by the local governing body has been or is being violatedand at such time examine the premises of such licensee in connection withsuch determination;(3) To receive a signed complaint from any citizen within its jurisdictionthat any provision of the act, any rule or regulation adopted and promulgatedpursuant to the act, or any ordinance, resolution, rule, or regulation relatingto alcoholic liquor has been or is being violated and to act upon such complaintsin the manner provided in the act;(4) To receive retail license fees, craft brewery license fees, andmicrodistillery license fees as provided in sections 53-124 and 53-124.01 and pay thesame, after the license has been delivered to the applicant, to the city,village, or county treasurer;(5) To examine or cause to be examined any applicant or any retail licensee,craft brewery licensee, or microdistillery licensee upon whom notice of cancellationor revocation has been served as provided in the act, to examine or causeto be examined the books and records of any applicant or licensee, and tohear testimony and to take proof for its information in the performance ofits duties. For purposes of obtaining any of the information desired, thelocal governing body may authorize its agent or attorney to act on its behalf;(6) To cancel or revoke on its own motion any license if, upon the samenotice and hearing as provided in section 53-134.04, it determines that thelicensee has violated any of the provisions of the act or any valid and subsistingordinance, resolution, rule, or regulation duly enacted, adopted, and promulgatedrelating to alcoholic liquor. Such order of cancellation or revocation maybe appealed to the commission within thirty days after the date of the orderby filing a notice of appeal with the commission. The commission shall handlethe appeal in the manner provided for hearing on an application in section 53-133; and(7) Upon receipt from the commission of the notice and copy of applicationas provided in section 53-131, to fix a time and place for a hearing at whichthe local governing body shall receive evidence, either orally or by affidavitfrom the applicant and any other person, bearing upon the propriety of theissuance of a license. Notice of the time and place of such hearing shallbe published in a legal newspaper in or of general circulation in such city,village, or county one time not less than seven and not more than fourteendays before the time of the hearing. Such notice shall include, but not belimited to, a statement that all persons desiring to give evidence beforethe local governing body in support of or in protest against the issuanceof such license may do so at the time of the hearing. Such hearing shall beheld not more than forty-five days after the date of receipt of the noticefrom the commission, and after such hearing the local governing body shallcause to be recorded in the minute record of their proceedings a resolutionrecommending either issuance or refusal of such license. The clerk of suchcity, village, or county shall mail to the commission by first-class mail,postage prepaid, a copy of the resolution which shall state the cost of thepublished notice, except that failure to comply with this provision shallnot void any license issued by the commission. If the commission refuses toissue such a license, the cost of publication of notice shall be paid by thecommission from the security for costs. SourceLaws 1935, c. 116, § 85, p. 421; C.S.Supp.,1941, § 53-385; R.S.1943, § 53-134; Laws 1949, c. 169, § 1(1), p. 447; Laws 1959, c. 249, § 9, p. 868; Laws 1967, c. 332, § 9, p. 888; Laws 1983, LB 213, § 14; Laws 1984, LB 947, § 4; Laws 1986, LB 911, § 6; Laws 1988, LB 550, § 3; Laws 1988, LB 352, § 92; Laws 1988, LB 1089, § 15; Laws 1989, LB 781, § 12; Laws 1989, LB 780, § 10; Laws 1991, LB 344, § 37; Laws 1993, LB 183, § 14; Laws 1999, LB 267, § 11; Laws 2001, LB 278, § 8; Laws 2004, LB 485, § 23; Laws 2007, LB549, § 14; Laws 2010, LB861, § 68.AnnotationsThe plain language of this section does not allow a county to revoke a liquor license based upon a resolution. DLH, Inc. v. Lancaster Cty. Bd. of Comrs., 264 Neb. 358, 648 N.W.2d 277 (2002).The provisions of this section give a local governing board the authority to cancel or to revoke a liquor license, providing that a multistep process is followed. Any cancellation or revocation is subject to appeal to the Nebraska Liquor Control Commission. Luet, Inc. v. City of Omaha, 247 Neb. 831, 530 N.W.2d 633 (1995).This section, as amended by L.B. 781, is unconstitutionally vague and unconstitutionally delegates legislative power. Kwik Shop v. City of Lincoln, 243 Neb. 178, 498 N.W.2d 102 (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 action of five members of the city council, in recommending denial of a liquor license, must be considered a nullity and, therefore, not a denial when a city ordinance requires a quorum of six before business may be transacted. Bond v. Nebraska Liquor Control Comm., 210 Neb. 663, 316 N.W.2d 600 (1982).This section authorized ordinance which provides that any liquor licensee who voluntarily closed his licensed premises for ten days without permission shall have elected to discontinue business under such license. Bali Hai', Inc. v. Nebraska Liquor Control Commission, 195 Neb. 1, 236 N.W.2d 614 (1975).To be valid, a resolution recommending issuance or refusal of liquor license must be adopted by a majority of all elected members of city council. Hadlock v. Nebraska Liquor Control Commission, 193 Neb. 721, 228 N.W.2d 887 (1975).