20's Inc. v. Nebraska Liquor Control Commission

Decision Date23 November 1973
Docket NumberNo. 38990,38990
Citation190 Neb. 761,212 N.W.2d 344
PartiesThe 20'S INC., a Nebraska corporation, Appellant, v. NEBRASKA LIQUOR CONTROL COMMISSION, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

In an appeal to this court from an order of the Nebraska Liquor Control Commission suspending a liquor license, under the provisions of section 84--918, R.R.S.1943, we determine only whether its findings are supported by substantial evidence under section 84--917(6)(e), R.R.S.1943, and whether the District Court has applied the proper statutory criteria in its review of the commission's decision.

Robak & Geshell, Columbus, for appellant.

Clarence A. H. Meyer, Atty. Gen., Robert R. Camp, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

This is an appeal from a judgment of the District Court for Lancaster County affirming an order of the Nebraska Liquor Control Commission suspending for a period of 21 days the class C liquor license of the plaintiff for the offense of selling liquor to a minor. On appeal the plaintiff assigns as error: (1) The evidence is insufficient to support the findings of the commission; (2) the findings are arbitrary and capricious; (3) the court and the commission erred in not finding as a matter of law that the plaintiff was trapped into a violation because law enforcement officials had furnished the minor with a false identity card; and (4) the court and the commission erred in not finding that the plaintiff had used due diligence in attempting to discover the age of the violator. We affirm.

The argument of the plaintiff indicates that the several assignments blend into one central issue, namely, that this court hears the case de novo under the provisions of section 84--918, R.R.S.1943, and ought to find as a matter of law that the defense of entrapment existed.

A brief summary of the evidence before the commission is necessary. The plaintiff operates a liquor by the drink establishment in the city of Columbus. One Philip Dreyer, a minor of the age of 17 and a resident of South Dakota, had, along with Allen Aden, aged 22 and also a resident of South Dakota, been hired by law enforcement officials as undercover agents in an investigation of drug law violations in the city of Columbus. On June 17 and 18, 1971, both agents entered the plaintiff's establishment and on each occasion the plaintiff dispensed beer to Dreyer. Dreyer and Aden both testified that the plaintiff's employees made no inquiry concerning Dreyer's age nor did they ask for identification and proof of age. Dreyer and Aden described the waitress who served them.

Witnesses for the plaintiff were Alford Cluver, the sole stockholder of the plaintiff, and his daughter, Gerry, aged 18. Gerry's job was to check identifications. Cluver apparently was not present in the establishment on June 17 and 18 at the pertinent times. Gerry was present. Both testified the business employed no waitress meeting the description given by Dreyer and Aden. Dreyer and Aden described the waitress as being heavy-set, about 5 feet 10 inches in height, and about 38 to 45 years of age. Cluver and his daughter described the waitress on duty at the time as about 5 feet 2 inches to 5 feet 4 inches tall, heavyset, and about 28 years of age. They both testified that it was the practice to check identification of age of all persons who appeared to be under age, but that on occasion when they were busy some persons might be missed. Dreyer and Aden testified that when they entered the establishment there was a person who appeared to be checking identifications at one of the booths, but that no inquiry was made of them.

The waitress who was actually on duty at the time was not called by either party as a witness, nor was another employee of the plaintiff who was described as a manager of waitresses.

There was no direct contradiction of the testimony of Dreyer and Aden that Dreyer was served and that no inquiry of age was made. Dreyer acknowledged that on June 17 and 18, 1971, he had on his person an identity card furnished by law enforcement officials which falsely showed that he was of legal age. He testified that on June 17 and 18, 1971, he never exhibited the false identity card and was not asked to. Neither party adduced any evidence to show for what purpose Dreyer entered the establishment; whether as part of his duties as an investigator of drug offenses, a purely personal entry to obtain a beer, or to induce a liquor law violation.

It seems clear from the foregoing recital that a finder of fact could accept the testimony of Aden and Dreyer that in fact no inquiry was made to determine Dreyer's age and that there had been no reliance by the plaintiff upon the false identification furnished to Dreyer.

We first examine plaintiff's contention in connection with section 84--918, R.R.S.1943. That statute provides: 'An aggrieved party may secure a review of any final judgment of the district court under sections 84--917 to 84--919 by appeal to the Supreme Court. Such appeal shall be taken in the manner provided by law for appeals to the Supreme Court in civil cases and shall be heard de novo on the record.' Section 84--917, R.R.S.1943, is a part of the same act pertaining to administrative procedure and this particular section lays down rules for appeals to the District Court from the order of the administrative agency. We have held that it is applicable to appeals by the licensee from order of the Nebraska Liquor Control Commission suspending a license. Happy Hour, Inc. v. Nebraska Liquor Control Commission, 186 Neb. 533, 184 N.W.2d 630.

Section 84--917, R.R.S.1943, provides that a person aggrieved by final decision in a contested case is entitled to judicial review. It provides for the initial review in the District Court without a jury and on the record before the agency. It provides in part: '(6) The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the agency decision is:

'(a) In violation of constitutional provisions;

'(b) In excess of the statutory authority or jurisdiction of the...

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