No Frills Supermarket, Inc. of Omaha v. Nebraska Liquor Control Com'n
| Citation | 246 Neb. 822,523 N.W.2d 528 |
| Decision Date | 10 November 1994 |
| Docket Number | No. S-93-179,S-93-179 |
| Parties | NO FRILLS SUPERMARKET, INC., OF OMAHA, Doing Business As No Frills Supermarket, Appellee, v. NEBRASKA LIQUOR CONTROL COMMISSION, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Administrative Law: Liquor Licenses: Appeal and Error. On appeal, decisions of the Nebraska Liquor Control Commission
are reviewed by this court de novo on the record.
2. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.
3. Statutes: Legislature: Intent. A legislative act operates only prospectively and not retrospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.
4. Statutes: Time. Statutes covering substantive matters in effect at the time of the transaction govern, not later enacted statutes.
5. Statutes: Appeal and Error. The general rules governing statutory construction and interpretation provide that in the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
6. Statutes. A statute is not to be read as if open to construction as a matter of course. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning. In the absence of anything to indicate the contrary, words must be given their ordinary meaning. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.
7. Legislature: Statutes: Presumptions: Intent. The Legislature is presumed to know language used in a statute, and if a subsequent act on the same or similar subject uses different terms in the same connection, the court must presume that a change in the law was intended.
8. Legislature: Statutes: Presumptions: Intent. It will be presumed that the Legislature, in adopting an amendment, intended to make some change in the existing law and that the courts will endeavor to give some effect thereto.
Don Stenberg, Atty. Gen., and Marie C. Pawol, Lincoln, for appellant.
Robert M. Zuber, of Zuber & Ginsburg, Omaha, for appellee.
In this appeal, the Nebraska Liquor Control Commission seeks reversal of a Lancaster County District Court order which reversed a commission order suspending the liquor license of No Frills Supermarket, Inc., of Omaha (No Frills) for 5 days.
On appeal, decisions of the Nebraska Liquor Control Commission are reviewed by this court de novo on the record. Gas 'N Shop v. Nebraska Liquor Control Comm., 241 Neb. 898, 492 N.W.2d 7 (1992).
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994); Association of Commonwealth Claimants v. Moylan, 246 Neb. 88, 517 N.W.2d 94 (1994).
No Frills filed a petition in error in the Lancaster County District Court on November 6, 1992, asserting that the commission erred in determining that No Frills had permitted the selling, dispensing, or giving away of alcoholic liquor to a minor, in violation of 237 Neb.Admin.Code, ch. 6, § 019.01A (1991). This regulation is codified at Neb.Rev.Stat. § 53-180 (Reissue 1993). No Frills alleged that the sale was made with the knowledge of and in cooperation with a duly authorized law enforcement officer and that proof of this fact is an absolute defense to the charge pursuant to Neb.Rev.Stat. § 53-180.07 (Cum.Supp.1992), which provides in pertinent part:
In any prosecution of or any proceeding against any licensee charged with having made a sale to a minor, proof of the following shall be an absolute defense to the charge:
....
(2) The sale was made with the knowledge of and in cooperation with a duly authorized law enforcement officer.
No Frills asked that it be reimbursed for the $250 fine it elected to pay in lieu of a 5-day suspension of its liquor license and for the assessed costs of $180.40.
The district court found that No Frills' liquor license was suspended as the result of a "sting operation," and that it was undisputed that No Frills sold alcohol to a minor and that the sale was made with the knowledge of and in cooperation with a law enforcement officer, providing an absolute defense for No Frills under § 53-180.07. The court reversed the commission's order and directed that the matter be dismissed. Attached to and made a part of the district court's order was the order from a case captioned "State of Nebraska, Plaintiff, vs. Tracy Porter, Defendant," Cass County District Court, docket 38, page 282.
In the Porter case, which was a criminal prosecution for the sale of alcohol to a minor, the district court analyzed § 53-180.07. The State had argued that the term "sale," as used in the statute, should be restricted to apply to only the situation where the seller, rather than the buyer, is cooperating with the police. The court stated that the term "generally refers to a transaction rather than to specific parties...." Neb.Rev.Stat. § 53-103(17) (Reissue 1993) defines a sale as "any transfer, exchange, or barter in any manner or by any means for a consideration...." In Porter, the court concluded that "there is no basis to restrict the term 'sale' to apply only when the seller, rather than the buyer, is cooperating with the police" and that § 53-180.07 provided an absolute defense.
On appeal, the commission assigns as error the district court's statutory interpretation of § 53-180.07 and its reversal of the suspension order.
No Frills was charged with permitting the selling, dispensing, or giving away of alcoholic liquor to or for a person less than 21 years of age, in violation of 237 Neb.Admin.Code, ch. 6, § 019.01A, which regulation states:
019.01A Sale to Minor; Defense: No licensee or partners, principals, agents or employees of any licensee shall sell any alcoholic liquors to any person who is a minor as defined in Section 53-103[ (24) ] of the Nebraska Liquor Control Act except that proof of the following shall constitute an absolute defense:
019.01 A1 The purchaser falsely represented in writing and supported with other documentary proof such as a driver's license that he was of legal age to purchase alcoholic liquor; and
019.01 A2 That the appearance of such purchaser was such that an ordinary and prudent person would believe that such appearance conformed to any documentary description of appearance presented by the purchaser; and
019.01 A3 The sale was made in good faith and in reliance upon the written representation, other documentary evidence, the appearance of the purchaser, and in the belief the purchaser was of legal age to make such purchase; or
019.01 A4 The sale was made with the knowledge of and in cooperation with a duly authorized law enforcement officer or agent of the Nebraska Liquor Control Commission. (53-180, 53-180.07)
At the commission hearing, Bellevue police officer Michael Laufenberg stated that on April 10, 1992, he was involved in an investigation in which purchases of alcohol were made by a cooperating individual who was 19 years old. The minor entered 10 establishments, including convenience stores, grocery stores, and gas stations, and he was able to purchase alcohol from at least 4 of them. He was fitted with a wireless transmitter, and the transactions were recorded. The minor was instructed that if he was asked for identification, he should state that he had none. If the store proceeded to sell alcohol to him, he was to purchase it. If the store refused to sell to him, he was to leave. The minor purchased a six-pack of beer from No Frills and turned it over to police. The clerk who sold the beer was issued a citation for sale of alcohol to a minor and was suspended without pay for the remainder of the week. The cooperating individual testified that he purchased the six-pack of beer at No Frills without being asked for identification.
The issue in this case is the interpretation of § 53-180.07(2): "The sale was made with the knowledge of and in cooperation with a duly authorized law enforcement officer," which language is also contained in the commission's regulations. The district court adopted No Frills' assertion that the sale was made with the knowledge...
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