City of Neb. v. C.A. Howell, Inc.

• Decision Date: 23 April 2013
• Docket Number: No. A–11–1116.,A–11–1116.
• Citation: 20 Neb.App. 711,832 N.W.2d 30
• Parties: CITY OF OMAHA, Nebraska, et al., appellants, v. C.A. HOWELL, INC., doing business as Howell's BP, and the Nebraska Liquor Control Commission, appellees.
• Court: Nebraska Court of Appeals

20 Neb.App. 711

832 N.W.2d 30

CITY OF OMAHA, Nebraska, et al., appellants,

v.C.A. HOWELL, INC., doing business as Howell's BP, and the Nebraska Liquor Control Commission, appellees.

No. A–11–1116.

Court of Appeals of Nebraska.

April 23, 2013.

Syllabus by the Court

[20 Neb.App. 711]1. Administrative Law: Liquor Licenses: Appeal and Error. Appeals from orders or decisions of the Nebraska Liquor Control Commission are taken in accordance with the Administrative Procedure Act, Neb.Rev.Stat. §§ 84–901 to 84–920 (Reissue 2008 & Cum.Supp.2012).

2. Administrative Law: Final Orders: Appeal and Error. Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency.

3. Administrative Law: Final Orders: Appeal and Error. Under the Administrative Procedure Act, an appellate court may reverse, vacate, or modify a district court's judgment or final order for errors appearing on the record.

4. Administrative Law: Judgments: Appeal and Error. 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.

5. Administrative Law: Statutes: Appeal and Error. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

6. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court's power to hear a case.

8. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

9. Jurisdiction: Appeal and Error. If the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.

10. Administrative Law: Jurisdiction: Appeal and Error. Where a district court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the review is sought in the mode and manner and within the time provided by statute.

11. Administrative Law: Words and Phrases. An administrative agency is a neutral factfinding body when it is neither an adversary nor an advocate of a party.

12. Administrative Law: Parties. When an administrative agency acts as the primary civil enforcement agency, it is more than a neutral fact finder and is a required party.

[20 Neb.App. 712]13. Administrative Law: Parties: Appeal and Error. An agency which is charged with the responsibility of protecting the public interest, as distinguished from determining the rights of two or more individuals in a dispute before such agency, is a necessary or indispensable party in a judicial review of an order of an administrative agency.

14. Administrative Law: Liquor Licenses. Within the Nebraska Liquor Control Commission's power is the authority to issue licenses subject to certain restrictions or conditions as reasonably necessary to protect the health, safety, and welfare of the people of the State of Nebraska and to promote and foster temperance in the consumption of alcohol.

15. Administrative Law: Jurisdiction: Appeal and Error. The filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the Administrative Procedure Act.

16. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

17. Jurisdiction: Dismissal and Nonsuit: Motions to Vacate: Appeal and Error. When an appeal is dismissed because the lower court lacked jurisdiction to enter the order appealed from, an appellate court may nevertheless enter an order vacating the order issued by the lower court without jurisdiction.

Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellants.

Michael L. Lazer and Kevin J. McCoy, of Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., for appellee C.A. Howell, Inc.

Jon Bruning, Attorney General, and Milissa Johnson–Wiles for appellee Nebraska Liquor Control Commission.

INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.

INBODY, Chief Judge.

INTRODUCTION

The City of Omaha, Nebraska, and three citizen protestors, Sharon Olson, James Rawlings, and Tracy King (collectively the City), appeal the order of the Lancaster County District Court affirming the decision of the Nebraska Liquor Control Commission (the Commission) granting a retail class D liquor license to C.A. Howell, Inc. (Howell), doing business as Howell's BP.

STATEMENT OF FACTS

On June 1, 2010, Howell submitted an application with the Commission for a liquor license for Howell's BP, a gas station, located on North 30th Street in Omaha. The application indicated that Howell sought the issuance of a retail class D license for the sale of beer, wine, and distilled spirits, off sale only. A petition was filed with the Commission indicating that several residents protested the issuance of a liquor license to Howell's BP. On June 22, the Omaha City Council reviewed and considered Howell's application for a license and recommended that the application be denied. The city council concluded that Howell was not able to properly provide for the safe sale of liquor as proposed, and in consideration of the petitioning citizens' protests, the existence of other licenses in the area, the impact on law enforcement, and the public interest, the council recommended that the application be denied.

On August 27, 2010, a hearing was held before the Commission on Howell's application for a retail class D liquor license. At the hearing, Olson, a citizen protestor and member of the “Miller Park–Minne Lusa Neighborhood citizen's patrol,” testified that there were other liquor stores in the vicinity of Howell's BP. Olson testified that the area was not in need of another liquor store and that she was concerned because “young people” frequently “hang[ ] out” at Howell's BP. Olson requested that the Commission deny Howell's application because of the increase in crime and violence, in addition to police calls, that would follow.

Craig Howell, the owner of Howell's BP, testified that he had operated the Howell's BP station on North 30th Street for 7 or 8 years. He testified that in that time, he had never sold alcohol at the store. During those years, customers requested almost daily that Howell engage in the sale of alcohol at that location. He testified that if the license is granted, he plans on remodeling the location to add more store area by taking away two of the three automobile repair bays. He testified that at previous locations, the businesses held liquor licenses and did not have any violations during the time he operated them. Howell submitted a large document which contained numerous pages of signatures by customers of the store in support of the issuance of a liquor license.

In response to an exhibit submitted by the City, which indicated that in December 2009, a store clerk had been shot and killed by an individual with whom the clerk had “exchange[d] ... words,” Craig Howell testified that an employee of his was the victim of a homicide. He explained that prior to the shooting, the employee had been working for Howell for only 1 week; that there was no indication that the shooting was connected with an attempted robbery; and that the shooter had never been apprehended. Craig Howell testified that nothing was taken from the store and that that was the only incidence of violence which had occurred inside of the store.

Craig Howell also testified in response to two Omaha Police Department crime analysis unit reports for the intersection where Howell's BP is located, for June through December 2009 and January through August 2010. The reports are generated from the police department's computers via the 911 emergency dispatch service's communication center. For each emergency call, the report gives the type of call and the date, time, and disposition. Many of the calls took place between midnight and 3 a.m. Craig Howell testified that while he currently operates Howell's BP on a 24–hour basis, he anticipates that he would close the business in the early morning hours if the license were granted. He testified that he has the store open for 24 hours a day only because the income he generates now requires those business hours and that he hopes alcohol sales will increase the income so that he is not required to stay open 24 hours a day.

Craig Howell explained that in accordance with the police department, he was instructed to contact the police if there were any incidents at or near his property during the early morning hours, and that he instructed his employees to do the same. He testified that he and his employees work as night watchmen, since the business is open on a 24–hour basis. He testified that he would also be hiring a security guard if the license were granted. He also testified that all of the emergency calls indicated on the crime analysis unit reports had nothing to do with the sale of alcohol because the store did not have a liquor license.

Craig Howell testified that a convenience store much like Howell's BP had previously applied for a liquor license, was denied the license, and thereafter closed its doors to all business. He recognized that there were two large grocery stores in the area which held class C liquor licenses, but explained that he was...