Nebraska Liquor Control Commission Rules and Regulations
CHAPTER 1 PRACTICE AND PROCEDURE
| STATUTORY AUTHORITY | |
|---|---|
| Amendment of Rules | 84-910(3) |
| Compliance with Orders | 53-117(5) |
| Contested Cases | 84-913(2) |
| Declaratory Rulings | 84-912(3) |
| Mandatory Meeting | 84-910(6) |
| Penalty in Abeyance | 53-117(7) |
| Penalty/Late Fees | 53-117(8) |
| Petition/Form | 84-910(4) |
| Promulgation of Rules | 84-910(3) |
| Public Meetings | 84-1408(1) to 84-1413 |
| Repeal of Rules | 84-910(3) |
1-001-PUBLIC MEETINGS
001.01 Public meetings of the Nebraska Liquor Control Commission shall be held at its headquarters office, located at 301 Centennial Mall, South, Lincoln, Nebraska, as noticed by the Commission unless otherwise ordered by the Commission.
001.02 Notice of the time and date of public meetings, along with an agenda of the subject matters to be considered at each public meeting shall be posted by the Executive Director of the Commission at headquarters office for the purpose of public notice, inspection and review at least three days prior to the each meeting of the Commission provided, at least two of the three days shall be days in which the headquarters office is open for general business, and provided further, when it is necessary to hold an emergency meeting without reasonable advance public notice the nature of the emergency shall be stated in the minutes and any formal action taken at such meeting shall pertain only to the emergency.
001.03 Public presentation(s) before the Commission at a public meeting shall be allowed at the start of a scheduled meeting with the following provisions:
001.03A Any written materials presented to the Commission shall be done so by submitting four copies thereof to the Executive Director who shall distribute a copy to each commissioner;
001.03B The Commission may limit the length of time for public presentations; and
001.03C In the interest of Commission review regarding any subject matter before it in a public meeting, the Commission may waive the provisions set out hereinabove established by this paragraph.
1-002-CONTESTED CASES
002.01 Notices of formal hearings conducted under the provisions of the Nebraska Liquor Control Act and the Rules and Regulations of the Nebraska Liquor Control Commission shall contain the following:
002.01A The date and time of the hearing; 002.01B The place of the hearing; 002.01C The nature of the proceeding; and 002.01D The issues involved, if they can be fully stated at the time. If the issues cannot be fully stated at the time of the notice, and amended notice containing the issues involved shall be issued as soon as the issues can be fully stated.
002.02 Continuances agreed and consented to by all parties to a hearing shall be allowed for a period of the time not to exceed 30 days. Any continuances of a hearing beyond the 30 days shall be accepted or denied by the Commission.
002.03 The Commission may order two or more proceedings, which are legally or factually related, to be heard and considered together on a consolidated record unless any party thereto makes a showing sufficient to satisfy the Commission that prejudice would result therefrom.
002.04 The Commission may procure waiver of any notice required by this rule from all parties to a proceedings and hold the hearing as soon as necessary. In the event the Commission declares an emergency exists, the Commission may, upon written notice to the parties, waive any or all of the requirements of this rule and set a matter for hearing as soon as the Commission determines that it is required by the public interest.
002.05 In all proceedings wherein the Commission has authority to subpoena witnesses, a subpoena requiring the attendance of a witness will be issued by the Commission on written application of any party, or on the order of the Commission. Subpoenas for the production of accounts, books, documents, or papers are required and the facts expected to be proved thereby. All parties directed to produce accounts, books, documents, or papers shall furnish and deliver the same at the time and to the place specified in the subpoena. A subpoena issued pursuant to this rule shall be served in a manner permitted by law which shall include service by certified mail, return receipt requested. In the case of disobedience to a subpoena, the Commission may invoke the aid of any court of this state in requiring the attendance and testimony of the witnesses and the production of accounts, books, documents, or papers. Any charges for service of a subpoena are to be paid prior to the date set for hearing by the parties at whose instance the subpoena is issued.
002.06 Any witness who is summoned and who responds thereto is entitled to the same fees and expenses as is paid for like service in the District Court for the county wherein such hearing is held. Mileage for officers and fees for service of documents served by Order of the Commission, when served by law enforcement officers, shall be equal to those established by law in similar cases for charges in the District Court of said county.
002.07 The taking of depositions and proceedings before the Commission shall be in the manner prescribed by law for taking depositions in civil actions in the District Courts for the State of Nebraska.
002.08 Formal hearings held before the Commission shall conform to the requirements of Chapter 84, Section 914, R.R.S., Nebraska, as amended, unless otherwise provided for by this rule.
002.09 The Commission, when it deems it necessary in the enforcement of the laws of Nebraska and Rules and Regulations of the Commission, may cite a licensee before it for a formal hearing. The citations shall be in writing and definitely state the charges or complaints the licensee is called upon to answer. The charges or complaint that the licensee is called upon to answer may be amended at the time of the hearing provided the amended charges or complaint is agreed to by the licensee called upon to answer. The Commission may authorize certain law enforcement officers to issue citations to licensees.
002.10 If it is found by the Commission that any licensee is violating any provisions of the Nebraska Liquor Control Act or the Rules and Regulations of the Commission promulgated thereunder, or is failing to observe in good faith the purposes of said act, the license of such licensee may be suspended, cancelled or revoked by the Commission.
002.11 The licensee may appear in person and by counsel, and produce such witnesses and evidence as the licensee deems necessary in the protection of the licensee's interest.
002.12 Upon the suspension, cancellation or revocation of any license, the local governing body shall be notified of such suspension, cancellation or revocation and said licensee shall be prohibited from operation under such license during such period of time.
002.13 All orders or decisions of the Commission and rehearings or appeals of such orders or decisions of the Commission shall conform to the requirements of Chapter 53, Section 1, 116, R.R.S., Nebraska, as amended. All orders and decisions of the Commission assessing penalties, fixing the time of hearings or rehearings, or pertaining to motions filed with respect to the same, shall become effective as such when recorded in the records of the Commission.
002.14 The Commission may employ a hearing officer who shall assist the Commission with the review of any issue or matter which the Commission deems proper in order to carry out the provisions of the Nebraska Liquor Control Act and who shall perform such other duties as the Commission may prescribe, provided, any issue or matter reviewed by a hearing officer involving a contested case shall conform to the requirements of 237-LCC1-002, and provided further, if a hearing is conducted by a hearing officer, the hearing officer shall submit a report of the findings made by such hearing officer along with a recommendation of order or decision to the Commission within 20 days of the date of such hearing, and a copy of the report and recommendation of the hearing officer shall be forwarded to all parties requesting the same, and provided further, any recommendation of order or decision made to the Commission by a hearing officer will not be considered an order or decision of the Commission unless accepted and affirmed by the Commission, and the Commission may further reverse, adopt, modify, supplement, amend or reject the recommendation of order or decision by the hearing officer, in whole or in part, and provided further, upon its motion or motion by any party to a hearing held before a hearing officer, the Commission shall allow a rehearing before the Commission of any issue or matter reviewed by a hearing officer. The written motion by an outside party shall be in writing and must be made within 20 days of the date of the Commission's decision and shall include the reasons why a rehearing should take place.
002.15 Any hearing conducted by a hearing officer shall require the department to prepare an official record of the hearing, including all testimony recorded mechanically or stenographically, and all exhibits introduced. The department is not required to transcribe such record except pursuant to an appeal, except that, upon written request and receipt of a reasonable fee for transcribing such record, the department may transcribe the record or allow for its transcription by the persons requesting.
1-003-PROMULGATION, AMENDMENT OR REPEAL OF RULES: DECLARATORY RULINGS
003.01 Any interested person may petition the Commission requesting the promulgation, amendment or repeal of any rule of the Nebraska Liquor Control Commission. The form for such petition or procedure for the submission, consideration or disposition of such petition shall be as set forth and provided for by 237-LCC1-004.
003.02 Any interest person may petition the Commission to issue a declaratory ruling with respect to the applicability to any person, property or state of facts or any rule or statute enforceable by the Commission. The form for such petition or procedure for the submission, consideration or disposition of such petition shall be set forth and provided for by 237-LCC1-004. A declaratory ruling, if issued after argument and stated to be binding upon the petitioner or the Commission by the Nebraska Liquor Control Commission shall remain binding unless it is altered or set aside by a court.
003.03 Submission of petitions as allowed for by 237-LCC1-004 shall be made to the Nebraska Liquor Control Commission in duplicate. The Commission shall offer consideration of any petition submitted as set forth hereinabove within a reasonable amount of time at a public meeting or by hearing before the Commission. After consideration of any petition received by the Commission as set forth hereinabove, the Commission shall dispose of the same by proper order of the Commission.
1-004-PETITION: FORM:
BEFORE THE NEBRASKA LIQUOR CONTROL COMMISSION STATE OF NEBRASKA
In the matter of:
Petition For:
(Specify request for promulgation or repeal of rule or for declaratory ruling on)
(Give name & address of petitioner)
(Specify statute or rule)
COMES NOW PETITIONER and requests the Nebraska Liquor Control Commission for a(n) (promulgation, amendment or repeal of rule __________) or declaratory ruling with respect to the applicability of the aforementioned (specify statute or rule).
The following are statements of facts that shall apply:
Petitioner states that the aforementioned (request for promulgation, amendment or repeal of rule) or (declaratory ruling) is needed for the following reason(s):
(Show how an appropriate action of the Commission would be in the best interest of the State of Nebraska or would terminate controversy or uncertainty) Petitioner alleges that the following named persons are the only persons who have or claim any interest, or would be affected by the disposition of this petition:
(Name); (Address); (City); (State)
WHEREFORE, petitioner prays that the Nebraska Liquor Control Commission take the following action:
(Date); (Signature of Petitioner)
1-005-FAILURE TO COMPLY WITH ORDER OF COMMISSION
005.01 Willful failure or refusal by a licensee to comply with a specific written order of the Commission, which has been made by the Commission, in the enforcement of the laws of Nebraska or rules of the Commission, shall be grounds for suspension, cancellation or revocation of said license after formal public hearing.
1-006-MANDATORY MEETING
006.01 The Commission may order any licensee to appear before it to discuss in an informal matter any issue involving that licensee which is of concern to the Commission. Failure to comply with an order requiring a licensee to appear before the Commission may result in an action for failure to comply with an order of the Commission.
1-007-PENALTY IN ABEYANCE
007.01 It is the intent of the Nebraska Liquor Control Commission to provide assistance to liquor licensees in obtaining guidance for good management skills and styles, to facilitate operating their businesses within the guidelines established by the Nebraska State Statutes and Liquor Control Commission's rules.
007.02 The "Penalty In Abeyance" allows the Liquor Control Commission to delay a penalty for a violation (in abeyance) for a period of time. This period of time allows the Commission to scrutinize the management, premises, and training of employees of the licensee. The Commission may determine, through this process, that a lesser penalty is warranted for the violation.
007.03 During the period the penalty is held in abeyance, the licensee may be required to follow certain guidelines. Some corrective actions may be required to improve management styles, including employee training. This period of time will allow the Commission to exercise its "broad powers" to improve professional liquor dispensing in licensed establishments in Nebraska.
007.04 Should the Commission elect to require a licensee or employees to receive server training during the period of abeyance, the course shall be one approved by the education review committee as appointed by the Commission.
007.05 Should the Commission require the licensee to report to a designee during the period of abeyance, the designee may be an employee of the Liquor Control Commission, an officer of the Nebraska State Patrol or other enforcement agency, or other local authority selected by the Commission.
007.06 The "penalty in abeyance" process would follow these steps:.
007.06A On the day of hearing:
007.06A1 Liquor Control Commission finds licensee guilty for violation.
007.06A2 Penalty is placed in abeyance for a period of 12 months (or other appropriate time period).
007.06A3 "Preconditions of sanction" are explained and written copy furnished to licensee.
007.06A4 Entry is made on licensee's record that there is a penalty in abeyance.
007.06B Upon successful completion of period of abeyance:
007.06B1 Preconditions have been successfully met.
007.06B2 Placed on Commission's hearing agenda or final disposition.
007.06B3 Commission would establish penalty (i.e., letter of reprimand, minimal suspension, etc.).
007.06B4 Entry is made on licensee's record of final sanction.
007.06C Upon unsuccessful completion of period of abeyance:
007.06C1 Should a violation of the established precondition occur:
007.06C1A The license would be set for a show cause hearing to show why abeyance should not be terminated and immediate sanctions imposed.
007.06C2 Should a violation of statute, rule, etc. occur during period of abeyance:
007.06C2A Hearing is held on 2nd offense.
007.06C2B Finding of guilt for new offense (If found not guilty, abeyance continues).
007.06C2C Appeal period of new offense is exhausted.
007.06C2D Show cause hearing is placed on agenda to show cause why abeyance should not be terminated and immediate sanctions imposed.
007.06C2E Sanction for first violation is imposed.
007.06C2F Entry is placed on licensee's record of final sanction.
1-008-PENALTY FOR LATE FEES
008.01 Every licensee shall pay all fees required under the Liquor Control Act in a timely manner. The failure to pay a requisite fee by the date prescribed by law and regulation may result in the suspension, cancellation or revocation of the license held, after a formal hearing before the Commission.
