Donahoo v. Nebraska Liquor Control Com'n, 86-764

• Decision Date: 15 July 1988
• Docket Number: No. 86-764,86-764
• Citation: 426 N.W.2d 250,229 Neb. 197
• Parties: Carolyn Jones DONAHOO, doing business as Palm Gardens, Appellant, v. NEBRASKA LIQUOR CONTROL COMMISSION, Appellee.
• Court: Nebraska Supreme Court

Page 250

426 N.W.2d 250

229 Neb. 197

Carolyn Jones DONAHOO, doing business as Palm Gardens, Appellant, v. NEBRASKA LIQUOR CONTROL COMMISSION, Appellee.

No. 86-764.

Supreme Court of Nebraska.

July 15, 1988.

Syllabus by the Court

1. Liquor Licenses: Appeal and Error. Appeals from the Nebraska Liquor Control Commission are heard in the Nebraska Supreme Court de novo on the record.

2. Administrative Law: Judicial Notice: Appeal and Error. As a general rule, the Nebraska Supreme Court will not take judicial notice of administrative rules or regulations.

3. Appeal and Error. Cases are heard in the Nebraska Supreme Court on the theory upon which they were tried.

Andrew J. McMullen, Kearney, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellee.

BOSLAUGH, WHITE, CAPORALE, and GRANT, JJ., and NORTON, District Judge.

CAPORALE, Justice.

Defendant-appellee, Nebraska Liquor Control Commission, suspended the retail Class C liquor license held by the plaintiff-appellant, Carolyn Jones Donahoo, doing business as Palm Gardens, for a period of 20 days on the ground that she sold liquor to one less than 21 years of age, in violation of a commission rule or regulation. The suspension was affirmed by the district court, and as a consequence Donahoo has appealed to this court. She asserts the district court erred in failing to find a "lack of evidence." As the assertion of error is without merit, we affirm.

The commission charged that on or about February 9, 1985, Donahoo permitted "the selling, dispensing or giving away" of beer to one "Kevin D. Lyons, he being less than 21 years of age, in violation of 237-LCC6-019.01A (16A ed. 83) of the Rules and Regulations" of the commission.

We review this matter de novo on the record, R.D.B., Inc. v. Nebraska Liquor Control Comm., 229 Neb. 178, 425 N.W.2d 884 (1988), and note at the outset that although the record very carefully designates the number of the rule or regulation under which the commission proceeded, the record neither tells us the difference between a commission rule and a commission regulation, nor does it tell us whether what it has designated is a rule or a regulation. What may prove to be of even greater importance to the commission in some future case is the fact that the commission failed to make the contents of the rule or regulation involved a part of the record. Because establishing the existence and contents of a particular administrative rule or regulation at any given time is often a difficult and uncertain process, it is an established principle that, as a general rule, this court will not take judicial notice of such rules or regulations. See, Zybach v. State, 226 Neb. 396, 411 N.W.2d 627 (1987); Nevels v. State, 205 Neb. 642, 289 N.W.2d 511 (1980). It is incumbent upon the party relying on an administrative rule or regulation to prove both its existence and its language. In the case at hand, however, the commission is saved by the fact that both it and Donahoo proceed on the implicit theory that the rule or regulation in question parallels Neb.Rev.Stat. § 53-180 (Reissue 1984), which prohibits, among other things, the sale of alcoholic liquor to a "minor," such a person being defined for these purposes...