Retroactive, Inc., a Nebraska corporation, doing business as funkytown, appellee,
Nebraska Liquor Control Commission, an agency of the State of Nebraska, appellant, and City of Omaha, a political subdivision of the state of Nebraska, appellee.
Judgments: Jurisdiction: Appeal and Error.
Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires
an appellate court to reach its conclusions independent from
a trial court.
from the District Court for Lancaster County: Darla S. Ideus,
Douglas J. Peterson, Attorney General, and Milissa
Johnson-Wiles for appellant.
J. Harr and Justin D. Eichmann, of Houghton, Bradford &
Whitted, PC, L.L.O., for appellee Retroactive, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Nebraska Liquor Control Commission (Commission) denied the
issuance of a Class C liquor license to applicant
Retroactive, Inc., doing business as Funkytown, for premises
[298 Neb. 937] located in Omaha, Nebraska. Retroactive sought
review in the district court, arguing that the decision of
the Commission (1) was arbitrary and capricious and
unsupported by evidence and (2) exceeded the authority of the
Commission. The City of Omaha (City) filed a motion to
dismiss for failure to name the citizen objectors as
"necessary parties" to the petition for review. The
district court denied the City's motion and entered an
order reversing the Commission's decision to deny the
Class C liquor license. The Commission appeals. We hold that
the district court did not have subject matter jurisdiction,
because the Commission did not name the citizen objectors as
parties of record to the petition for review.
October 1, 2015, Retroactive applied for a Class C liquor
license for a nightclub located at 1516 Jones Street in Omaha
(application). Nine objectors filed citizen protests against
the application. All of the objectors reside in a residential
building that shares a common wall with the proposed
nightclub. On December 17, the Commission held a hearing
concerning the application.
hearing, the City called three witnesses. First, an assistant
city attorney for the City testified that Retroactive's
owner previously applied for a liquor license for the same
location and that the application was denied. The attorney
asked the court to take administrative notice of the file and
order of denial for that license. Second, David Hecker, an
objector, testified that he objected to the application,
because the business proposal was inconsistent with the
current status of the neighborhood and the application was
identical in all material respects to the one that had
previously been denied by the Omaha City Council and the
Commission. Third, Billy Coburn, an objector, testified that
"the nature of the community in the neighborhood . . .
has changed over the last two years since prior clubs have
existed at 1516 Jones." Coburn [298 Neb. 938] stated
that issuance of the liquor license "will devalue the
surrounding properties, affect the safety of the
neighborhood, and the adjoining walls were not addressed for
sound control." The two objectors who testified were not
represented by counsel.
to Neb. Rev. Stat. § 53-131 (Cum. Supp. 2016). on
October 1, 2015, Retroactive made an application for the
Commission's issuance of a Class C liquor license for the
location at 1516 Jones Street in Omaha. On November 3, the
Omaha City Council held a hearing pursuant to Neb. Rev. Stat.
§ 53-134 (Cum. Supp. 2016) and passed a resolution to
recommend denial of the application. On November 5, the
Commission received a recommendation from the Omaha City
Council to deny the application. On December 17, pursuant to
Neb. Rev. Stat. § 53-133 (Cum. Supp. 2016), the
Commission conducted a hearing on the application, and on
January 8, 2016, the Commission entered an order denying the
January 19, 2016, Retroactive filed a petition for review
under the Administrative Procedure Act (APA) in the district
court. In the petition, Retroactive argued that (1) the
January 8 order was arbitrary and capricious, (2) the January
8 order was unsupported by evidence, and (3) the
Commission's determination outlined in the January 8
order exceeds its statutory authority.
City filed a motion to dismiss on February 24, 2016, arguing
that the citizen objectors were "necessary parties"
to the action and were not made a party to the petition for
review under the APA. The district court filed an order on
May 9, overruling the City's motion to dismiss. The court
found that "[t]he plain language of § 53-1, 115(4)
limits its application to 'for purposes of this
section.'" Therefore, the court found that "the
citizen protesters who provided written protests and those
who testified at the hearing before the Commission were not
'parties of record' as that term is defined by the
Neb. 939] The district court filed an order on January 24,
2017, reversing the Commission's decision to deny the
application. The district court remanded the matter to the
Commission to issue a Class C liquor ...