McManus Enterprises, Inc., doing business as Heidelberg's, appellant,
Nebraska Liquor Control Commission, appellee.
Administrative Law: Judgments: Appeal and
Error. A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record.
___: ___ . When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Judgments: Appeal and Error. An appellate
court, in reviewing a district court's judgment for
errors appearing on the record, will not substitute its
factual findings for those of the district court where
competent evidence supports those findings.
Administrative Law: Judgments. Whether an agency decision
conforms to the law is by definition a question of law.
Administrative Law: Judgments: Statutes: Appeal
and Error. To the extent that the meaning
and interpretation of statutes and regulations are involved,
questions of law are presented which an appellate court
decides independently of the decision made by the court
Administrative Law: Statutes. For purposes of construction, a
rule or regulation of an administrative agency is generally
treated like a statute.
____:____. Properly adopted and filed regulations have the
effect of statutory law. 8. Administrative Law. Absent a
statutory or regulatory indication to the contrary, language
contained in a rule or regulation is to be given its plain
and ordinary meaning.
.A rule is open for construction only when the language used
requires interpretation or may reasonably be considered
Neb. 57] 10. ____ . A court will construe regulations
relating to the same subject matter together to maintain a
consistent and sensible scheme.
.A court must attempt to give effect to all parts of a
regulation, and if it can be avoided, no word, clause, or
sentence will be rejected as superfluous or meaningless.
Administrative Law: Intent. In determining
the meaning of regulatory language, its ordinary and
grammatical construction is to be followed, unless an intent
appears to the contrary or unless, by following such
construction, the intended effect of the provisions would
apparently be impaired.
Administrative Law: Liquor Licenses. Under
237 Neb. Admin. Code, ch. 6, § 019.OIF (2012), a
licensee cannot be sanctioned for a violation unless the
licensee has allowed an unreasonable disturbance to continue.
____:____. Under 237 Neb. Admin. Code, ch. 6, § 019.01F
(2012), in order for "other activity" to be a
disturbance, the dangerous activity itself must arise and be
of such a nature that may place others in danger.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Reversed and remanded with directions.
Charles D. Humble, of Erickson & Sederstrom, P.C., for
Douglas J. Peterson, Attorney General, and Milissa
Johnson-Wiles for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
appeal turns on the correct interpretation of the Nebraska
Liquor Control Commission's "disturbance
rule." The rule's plain language applies only
where a licensee "allow[s] any unreasonable disturbance;
as such term is defined [in the rule], to continue
without taking the steps, as set forth [in the [303 Neb.
58] rule]." The commission and the district court on
review disregarded that plain language: ignoring
the words "to continue." Although we must reverse
this license cancellation, we emphasize that our decision
does not preclude the commission from adopting a rule that
would impose upon licensees a duty to take reasonable steps
to prevent disturbances from occurring in the first instance.
But its existing rule does not do so, and we are required to
apply the rule as written.
Rule Because our decision turns upon the plain language of
the disturbance rule, we recite it in full:
019.01F Disturbance: No licensee or partner, principal, agent
or employee of any licensee shall allow any unreasonable
disturbance; as such term is defined hereunder, to continue
without taking the steps, as set forth hereunder, within a
licensed premise or in adjacent related outdoor areas.
019.01F1 A "Disturbance" as used in this section
shall mean any brawl, fight, or other activity which may
endanger the patrons, employees, law enforcement officers, or
members of the general public within licensed premises or
adjacent related outdoor area. Such term shall include
incidents involving, but not necessarily limited to: drug
dealing; intoxicated individuals; soliciting of prostitution;
or any physical contact between the licensee's agents or
employees and its customers, involving any kissing, or any
touching of the breast, buttock or genital areas. Any brawl
fight or other activity which results in serious injury to
any patro[n], employee or members of the [303 Neb. 59]general
public shall be reported to law enforcement. Serious injury
means any gunshot wou[n]d, knife or other stab wound or any
other injury requiring medical treatment onsite or
transportation to a medical facility for treatment. Licensees
and their employees shall not prohibit or interfere in any
way with a patro[n] who chooses to contact law enforcement in
the event they are assaulted on the premises.
019.01F2 Unless there is reason to believe that a licensee or
partner, principal, agent or employee of any licensee would
endanger himself/herself or others, such person shall take
such action as is reasonably necessary to terminate the
disturbance. Physical force should be exercised only in
extreme circumstances and should be limited to the force
reasonably required to terminate the disturbance and remove
the individual from the licensed premise, without endangering
any patron or other person.
019.01F3 In the event efforts taken in accordance with the
preceding subparagraph are not successful or if there is
reason to believe that the licensee, partner, principal,
agent or employee of any licensee may create a danger to
himself/herself or others, th[e]n in such event, such person
shall immediately contact law enforcement personnel to assist
in properly handling the disturbance. In the event law
enforcement and/or medical personnel are summoned, the
directions and/or orders given by such law enforcement or
medical personnel shall be followed.
019.01 F4 A licensee who has conformed with the procedure as
set forth in this section shall be deemed to have not
permitted a disturbance to occur and continue. Licensees who
wish to document their compliance with this rule may maintain
a log in which they document disturbances or other unusual
Neb. 60] Events
McManus is the owner of McManus Enterprises, Inc.
(collectively McManus), which operates Heidelberg's bar
in Lincoln, Nebraska. In August 2017, a professional boxing
match was held at an arena in Lincoln. The day before the
match, an event promoter approached McManus, asking to host
an event at Heidelberg's after the ...