title-237•Neb. Admin. Code tit. 237 — Liquor Control Commission
Neb. Admin. Code tit. 237 — Liquor Control Commission
title-237Neb. Admin. Code tit. 237Regulation
Chapter 1 Practice and Procedure
Neb. Admin. Code tit. 237, ch. 1 Practice and Procedure {#sec-237-nac-1 omnilex-key=us-ne-regs-official--title-237--237 NAC 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 may limit the content of any public presentation to matters of policy rule and or regulation, and not matters regarding specific contested cases, current litigation or third party petitions.
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.
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, electronic records, and associated data storage devices and media, video tapes or digital video storage devices, or paper 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, electronic records, and associated data storage devices and media, video tapes or digital video storage devices, 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 rehearing’s 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.
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 interested 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.
004 PETITION: FORM:
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.
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.
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 of 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 for 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.
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.
010 CLOSING TIME ORDINANCES/RESOLUTIONS
010.01 In the event of a 2am closing time, clerks shall notify the Commission in writing and attach a copy of the ordinance or resolution.
History
- Effective 2018-11-24
Chapter 2 Requirements for Licensees
Neb. Admin. Code tit. 237, ch. 2 Requirements for Licensees {#sec-237-nac-2 omnilex-key=us-ne-regs-official--title-237--237 NAC 2}
01 GENERAL REQUIREMENTS
01.01 The licensee shall, at all times, be responsible for the licensed premises and for the control, sale and dispensing of alcoholic liquors permitted by the license. Only the licensee may receive the proceeds resulting from the sale or dispensing of alcoholic liquor except (a) a manager may receive a percentage of gross or net sales as employment compensation, (b) a landlord may receive a percentage of gross sales as rent, (c) the franchisor may receive a percentage of gross sales as a franchise fee and (d) except whereas otherwise provided by the provisions of the Nebraska Liquor Control Act.
01.02 In cases wherein the Commission has fixed certain requirements and prescribed certain conditions upon which a license is granted or is permitted to continue in full force and effect by order of the Commission, whether such requirements or conditions are imposed at a formal hearing, by a written notice or in a written stipulation, such requirements or conditions shall be deemed a part of the license issued by the Commission as though actually endorsed thereon; and any violation or breach of any such requirements or conditions is prohibited.
02 PARTNERSHIP WHEN BUSINESS OPERATED ON PERCENTAGE OR SHARE BASIS
02.01 Any license covering premises financed or operated on a percentage or share of the business basis will be considered a partnership between the parties involved insofar as the rights and duties of the licensee of record under his license are concerned.
03 TRANSFER OF STOCK OF TERMINATED LICENSE
03.01 When a licensee has discontinued business under his license and his license has been terminated, he may apply in writing to the Commission for permission to transfer his stock of alcoholic liquors to another qualified licensee. He shall furnish the Commission with an inventory of the liquors contemplated in such transfer.
03.02 The licensee who desires to purchase such stock of liquor shall also apply in writing to the Commission for permission to make such purchase and he shall report to the Commission in writing the quantity, brands, and types of such liquor purchased and the address to which it was actually delivered after the purchase.
04 TEMPORARY OPERATING PERMITS
04.01 Someone other than a licensee may operate a business holding a liquor license if all of the following criteria are met:
004.01A A formal application for a new license must be on file with the Commission.
004.01B A request for a temporary operating permit must be filed with the application.
004.01C Temporary operating permits may not exceed 90 days in total duration.
04.01 D If the sale of the business fails to occur, the previous licensee can be reinstated during the pendency of the temporary operating permit upon request of the previous license holder.
04.02 Any violations occurring during the pendency of a temporary operating permit will be adjudicated in the following manner:
004.02A Any violations occurring during the temporary operating permit will be used and conferred upon a license if issued. Any violation may be used to determine the fitness of the applicant to receive the requested license.
05 LICENSE APPLICATION REQUIREMENTS
05.01 A person applying for a license of any kind, except those issued under Neb. Rev. Stat. 53-124.11, shall file with their license application (1) birth certificate, or naturalization papers, permanent resident card, or employment authorization card proving the ability to legally work in the State of Nebraska, and (2) the required fingerprints card(s) and fee(s). Fingerprints filed with the Nebraska Liquor Control Commission within the past two years of the filing of the application shall meet this requirement.
005.01A For corporations, fingerprints are required of the Chief Executive Officer, the manager, or any stockholder owning in the aggregate more than twenty-five percent of the stock of such corporation. For nonprofit corporations and governmental subdivision, this shall only mean the manager. [No citizenship or residency requirements per Sec. 53-125(9)]
005.01B Fingerprints of spouses, including those ineligible to hold a license, will not be required upon receipt of a signed affidavit of no interest, upon the form provided by the Nebraska Liquor Control Commission.
005.01C For corporations owning shares in the applicant's corporation, the Chief Executive officer and/or President and any shareholder owning in the aggregate more than twenty-five percent of the stock of the corporation shall file an affidavit on a form supplied by the Commission stating that they are eligible to hold a license under the Nebraska Liquor Control Act.
05.02 Any proposed change from a profit to a nonprofit or from a nonprofit to a for profit license shall require the filing of a new application.
05.03 Any change from an individual license to a partnership, when adding a spouse, or when an individual or partnership incorporates, with no additional partners, or from a corporation to an individual, shall not require the filing of a new application, but may be done by the filing of an affidavit with the Nebraska Liquor Control Commission.
06 RESIDENCY REQUIREMENTS
06.01 Any licensee, required to be a state resident must be a registered voter in Nebraska must, if a vehicle is owned, have at least one such owned vehicle registered in Nebraska.
06.02 Additionally, all licensees are required to do any two of the following:
006.02A Own or rent property in Nebraska;
006.02B Have a mailing address in Nebraska;
006.02C Actually reside in Nebraska;
006.02D Use a Nebraska address on tax returns.
07 TRADE NAME
07.01 The Liquor Control Commission shall be notified in writing of any change in an operating trade name (DBA). Notification shall be made by licensee within thirty (30) days of change.
08 MANAGER APPLICATION
08.01 Upon departure, death or termination of a manager, a licensed corporation shall file an application with the Liquor Control Commission for a new manager within sixty (60) days. Should the corporation be unable to establish a manager within sixty (60) days, the corporation may apply for a hardship.
08.01A Corporation Manager Hardship. The Manager Hardship, if approved will allow for continuous operation of the license without a manager in place for a period of time determined by the Commission staff at the time of hardship application.
09 FALSIFICATION OF APPLICATION
9.01 No applicant for a liquor license, or partner, principal, agent or employee of any applicant for a liquor license shall provide false or misleading information to the Nebraska Liquor Control Commission, its executive director, or employees, or agents as defined in Neb. Rev. Stat. 53-117(3). Any violation of this provision may result in denial of application for a liquor license or, in the event that a license has already been issued, suspension, cancellation or revocation of such license.
10 FALSIFICATION OF INFORMATION
10.01 No licensee or partner, principal, agent or employee of any licensee shall provide false or misleading information to the Nebraska Liquor Control Commission, its executive director, or employees, or agents as defined in Neb. Rev. Stat. 53-117(3). Any violation of this provision may result in suspension, cancellation or revocation of such license.
11 DEFINITIONS
11.01 "School" shall mean a building which is used as a place for the instruction of pupils in elementary or high school grades, and which is owned, leased, or otherwise under the jurisdiction and control of a public school district or the administrative body of a private, denominational or parochial school accredited by the State Board of Education, provided, that a satellite location that is not adjacent to the school’s primary location and which serves not more than 25% of the number of students enrolled at such school shall not be considered a “school” for purposes of Neb. Rev. Stat. Rec. 53-177. A student attending a satellite location and the school’s primary location shall be counted as served by the satellite location.
11.02 "College" shall mean a technical community college, a state college, or a private college approved by the Nebraska Coordinating Commission for Postsecondary Education.
11.03 "University" shall mean two or more colleges under a central administration, offering baccalaureate and/or graduate degree program.
11.04 "Campus" shall mean any buildings owned, leased, or otherwise under the jurisdiction and control of the administration of a college or university, which are used as a place for the education of students or for student living quarters, and the grounds surrounding such buildings, provided that a satellite location that is not adjacent to a university or college’s primary location and which serves not more than 25% of the number of students enrolled at such university or college shall not be considered a “campus” for purposes of Neb. Rev. Stat. Sec 53-177. A student attending a satellite location and the university or college’s primary location shall be counted as served by the satellite location.
11.05 "Church" shall mean a building where people regularly assemble for worship and for the administration of such offices and is held out to the public as a house of worship and used predominately for the honor of religion and includes, but is not limited to, a building such as a mosque, synagogue or a temple.
11.06 "Guest" shall mean a patron of a club, as defined in Sec. 53-103(20), who comes to the club at the invitation of a member and who uses the club’s services or facilities while accompanied by that member. Nothing herein shall prevent clubs from entering into reciprocity agreements to enable a member of one club to use the services or facilities of another club.
11.07 Outdoor area shall mean an outdoor area included in licensed premises, which is used for the service and consumption of alcoholic liquors and which is contained by a permanent fence, wall or other barrier approved by the Commission and shall be in compliance with all building and fire, or other applicable local ordinances.
11.08 “Seasonal license” shall mean any license used for a specified period of time within the current year for the sale or service of alcoholic liquors. Such specified period of time shall be supplied to the Commission.
12 SPECIAL DESIGNATED LICENSES
12.01 Except as provided for in 012.04 all applications for a special designated license, with local governing body approval, and proper fees, must be received by the Commission at least seven working days prior to the event. Such notice is to appropriate state agencies. If local governing body approval is received and proper fees are paid, the Commission may issue with internal Administrative Approval under the seven working days.
12.02 In connection with each event, the applicant must estimate the size of the crowd and confirm that alcohol will not be served to minors and intoxicated persons.
12.03 Each of the following conditions, unless waived or modified as herein provided, shall apply to all Special Designated Liquor Licenses issued to organizations that do not hold a valid retail or caterer's liquor license.
012.03A Events attended by more than 150 people that includes minors unaccompanied by a parent (excluding minors acting as service personnel and minors attending as program or entertainment participants) shall conduct age checking at the entrance to the licensed area and all adults shall be identified with wrist bands that are destroyed by removal.
012.03B At events attended by more than 150 people which do not involve a sit down meal served to all attendees simultaneously there shall be a minimum of one security person for attendees up to 200 and one more security person for each 200 additional. Security personnel whether paid or volunteer shall have no duties other than maintaining order and enforcing all liquor laws and license conditions including prohibiting minors and intoxicated attendees from consuming or possessing alcohol. All security personnel shall be dressed in distinctive clothing with visual markings identifying them as security personnel.
012.03C The individual designated on the license as the event supervisor shall be in the licensed area at all times alcohol is being served and the immediate post clean up period. If the event supervisor is to be absent from the licensed premise during any part of the designated period, the event supervisor must designate a person to be in charge in his/her absence.
012.03D All workers performing duties for the sponsoring organization at the licensed event whether paid or volunteers shall refrain from consuming alcohol while on duty during the event and any immediate post event clean up period.
012.03E If minors are in attendance at events of more than 150 people (excluding minors attending as service personnel and minors attending as program or entertainment participants) alcoholic drinks shall be served in distinctively different containers than those in which non-alcoholic drinks are served.
12.03F Any condition may be waived or modified by the Liquor Control Commission upon a showing by the applicant that such condition is not necessary for the promotion of the health, safety and welfare of the people of the state.
12.04 Applications for Special Designated Liquor Licenses by non-licensees requesting a waiver or modification of conditions along with the reasons and justification for such waiver or modification must be received by the Liquor Control Commission at the time of application. When no waiver or modification is required, the Commission must receive Special Designated Liquor License applications at least 7 working days prior to the licensed event.
12.05 All Special Designated Liquor Licenses issued to organizations that do not hold a valid retail or caterer’s liquor license will list all the applicable conditions that are a part of that license.
12.06 It is the declared policy of the Commission that Special Designated Licenses should not be used to avoid the oversight and accountability imposed upon a regular retail license. Therefore, applications for Special Designated Licenses may be denied if the proposed location could otherwise be granted a regular license and if such regular license best serves the purposes of the Liquor Control Act. To help accomplish this policy any location that has received twelve (12) Special Designated Licenses in one calendar year shall have any further applications set for hearing to make a determination whether additional licenses are justified prior to the issuance of the requested Special Designated License.
History
- Effective 2024-06-02
Chapter 3 Corporations/Partnerships
Neb. Admin. Code tit. 237, ch. 3 Corporations/Partnerships {#sec-237-nac-3 omnilex-key=us-ne-regs-official--title-237--237 NAC 3}
001 RESIDENT MANAGER FOR CORPORATION
001.01 In the case of a corporation making application for a retail or wholesale license under the Nebraska Liquor Control Act, a resident manager qualified under the laws of Nebraska shall be appointed as by law provided.
001.02 Any person desiring to obtain status as a manager for a corporate license currently in effect and issued by the Nebraska Liquor Control Commission shall file with the Commission:
001.02A An application upon such forms that the Commission may from time to time prescribe;
002 CHANGE OF OWNERSHIP OR CONTROL - CORPORATIONS AND PARTNERSHIPS
002.01 General Partnerships: When a licensee operating as a general partnership acquires a new partner, the licensee must at once make that fact known to the Commission. The Commission may require such information and documentation as it deems necessary from the new partner to enable the State Patrol to complete a background check of the new partner, and/or the Commission may require the partnership to submit an application for a new license. One of the general partners must be named as agent. If the general partner is a corporation, one individual must be named as agent (or person in charge) with the filing of a manager's application.
002.02 When one general partner sells part or all of his interest in a licensed business to another existing general partner, or when an existing general partner or general partners acquires by any lawful means an interest held by another general partner or general partners, that fact must be made known to the Commission by a sworn affidavit, however, an application for a new license need not be made.
002.03 Limited Partnerships: When any business is operated as a limited partnership and one or more of the limited partnerships are sold to another, whether that limited partner is an existing partner or not, the existence of the change in the limited partnership must be made known to the Commission by affidavit within ten days, however, an application for a new license need not be made.
002.04 Corporations: All direct or indirect interests in a license held in whole or part by a corporation must be disclosed to the Commission in the application for a liquor license. When any corporation applying for a license has outstanding shares issued to a corporation and/or holding company, that fact must be disclosed in the application. Each corporation listed on the application must disclose any corporation and/or holding company which hold shares in it. For each corporation and/or holding company disclosed, a disclosure shall be made of each shareholder owning in the aggregate more than 25% of the corporation. Any applicant who has a corporation as a shareholder shall file an organizational chart which lists all shareholders which are either a corporation and/or any shareholder which owns in the aggregate more than 25% of the stock of the corporation.
002.05 Corporations: Any transfer of the outstanding and issued stock of a corporation holding a license which results in any person holding in the aggregate more than twenty-five percent of all of the outstanding and issued stock of such corporation shall be communicated to the Commission within ten days in writing by certified or registered mail, along with an affidavit of said stockholder in the form prescribed by the Commission, concerning whether or not he is qualified to meet the standards established by law for those to whom such a license may be issued as an individual, other than citizenship or residence; in the event such stockholder fails to qualify as hereinbefore set out as a licensee under the Nebraska Liquor Control Act said corporation shall be notified in writing by certified or registered mail, and shall within twenty days of the notification surrender for cancellation said corporate license or show cause why the same should not be surrendered for cancellation or file with the Commission an application for a new liquor license in the manner prescribed by law and regulation.
002.06 The sale of the majority of the corporate outstanding and issued stock or the transfer of the control of the majority of such outstanding and issued stock by a power of attorney or proxy filed with said corporation or held by any person or exercised at any stockholders meeting of a corporation holding a wholesale or retail license under the Nebraska Liquor Control Act shall constitute a change of ownership of said corporation. The corporation shall notify the Commission at once of such a change of ownership. The Commission may require such information and documentation as it deems necessary from the new owner(s) to enable the State Patrol to complete a background check of those new owner(s) and/or the Commission may require the corporation to submit an application for a new license. When all or part of the outstanding and issued stock of a corporation is held by any number of stockholders, and one or more existing stockholder acquires by sale or transfer any part of or all the outstanding and issued stock held by another existing stockholder, that fact must be made known to the Commission within 10 days of such transfer, by a sworn affidavit stating the number of shares having been transferred and whether or not the transferee is qualified to meet the standards established by law for those to whom such a license may be issued as an individual, other than citizenship or residence, but an application for a new license need not be made.
002.07 Any time any person or persons acquire for the first time a beneficial interest in the form of ownership of outstanding and issued stock in any licensed corporation in an amount equal to more than five percent of the outstanding and issued corporate stock that person must inform the Commission by affidavit of the other liquor license in which a beneficial interest is possessed, if any, within ten days by registered mail. Provided, however, any corporate licensee listed on the New York Stock Exchange, or any corporate licensee having one hundred or more shareholders need only so inform the Commission of any such beneficial interest of persons comprising the ten largest stockholders of that corporation.
History
- Effective 2018-11-24
Chapter 4 Storage and Transportation of Alcoholic Liquors
Neb. Admin. Code tit. 237, ch. 4 Storage and Transportation of Alcoholic Liquors {#sec-237-nac-4 omnilex-key=us-ne-regs-official--title-237--237 NAC 4}
001 STORAGE OF LIQUOR BY RETAIL LICENSEE
001.01 All liquors shall be stored and maintained in the licensed premises of the licensee in a safe manner, and no such liquors shall be stored in any other place than the licensed premises except after application submitted in writing to the Commission by said licensee and receipt by said licensee of written authority from the Commission.
001.02 Officers of the Nebraska State Patrol or agents of the Commission may grant temporary permission for storage of any liquors off the licensed premises, upon notification to the Commission staff of such temporary permission as soon as practical. An application submitted in writing for storage off the licensed premises shall be submitted to the Commission by said licensee as soon as possible.
002 TRANSPORTATION OF LIQUOR BY RETAIL LICENSEES
002.01 A retail licensee shall not permit the transportation of alcoholic liquor from his licensed premises for storage purposes in any manner, for any purpose, or to any location other than has been expressly authorized in writing by the Commission.
History
- Effective 2012-08-28
Chapter 5 Labels and Containers
Neb. Admin. Code tit. 237, ch. 5 Labels and Containers {#sec-237-nac-5 omnilex-key=us-ne-regs-official--title-237--237 NAC 5}
001 LABELS
001.01 Labels attached to all original containers or packages of alcoholic liquor offered
for sale in this state shall set forth in plain and legible print in the English language:
001.01A The name of the product to be registered;
001.01B The quantity of such liquors in such original containers;
001.01C The grade and quality of such liquors together with their alcoholic
content (except beer);
001.01D The age of such liquor (except beer and wine) if required by federal
regulations;
001.01E If the liquor be a blended product, the labels shall include the other
ingredients contained in such blended product.
001.02 The labels shall not contain any false or misleading statements or representations. The label of every container of beer shall set forth the name and address of the brewer.
002 CONTAINERS
002.01 All original containers with alcoholic liquors, sold or offered for sale in this State,
shall be constructed of such material and be in such form as has been generally found and
recognized by State and Federal Enforcement Officers to be safe, sanitary and in no
manner prejudicial to the health and interest of the public.
002.02 The Commission shall be notified within ninety (90) days for the recall of any alcoholic liquors.
003 BRAND REGISTRATION
003.01 All alcoholic liquor products offered for sale in the State of Nebraska or imported into State of Nebraska shall be registered with the Nebraska Liquor Control Commission.
003.01 A The fee of such registration shall be twenty ($20) dollars per brand remitted to the Commission upon registration of the brand.
003.01 B A ninety (90) day renewal period will begin April 1 of every year. At that time the holder of the Brand Registration shall affirm that the product is still active and is being sold in the State of Nebraska. Failure to affirm the brand status may result in suspension, cancellation, or revocation of the Brand Holders license issued by the Nebraska Liquor Control Commission.
003.02 All registrations shall have the following:
003.02A Licensee’s Name and License Number;
Designated Nebraska Licensed Wholesaler, if applicable;
Name of the Primary Source of Supply in the United States;
Products to be Imported;
Brand Name of Product;
Class of Product;
Fanciful Name, if applicable;
Copy of Federal Certificate of Label Approval/Exemption (COLA) certificate or copy of label if no certificate is required
003.02 B A letter designating the shipping license holder from the product manufacturer designating the shipping license holder of the primary source of supply in the United States or the sole source of supply for Nebraska is required if the shipping license holder is not the manufacturer of the product being imported into the State of Nebraska.
History
- Effective 2024-09-17
Chapter 6 Licensee Operations
Neb. Admin. Code tit. 237, ch. 6 Licensee Operations {#sec-237-nac-6 omnilex-key=us-ne-regs-official--title-237--237 NAC 6}
001 SIGNS
001.01 The Nebraska Liquor Control Act, Chapter 53, Section 118, establishes in the Commission, the power to promulgate a Rule or Regulation establishing standards of honest advertising and representation.
001.02 Signs and advertisements shall not contain:
001.02A Any statement, illustration, design, device or representation that is false or misleading;
001.02B Any statement, illustration, design, device or representation which is obscene or indecent or which is obnoxious or offensive to the commonly and generally accepted standards of fitness and good taste;
001.02C Any statement of, or reference to, a price of an alcoholic liquor which is deceptive or misleading or tends to deceive or mislead;
001.02D Any illustration which is not dignified, modest and in good taste;
001.02E Any scene which promotes the sale of alcoholic liquors, including beer, to minors in which is portrayed a child or objects suggestive of the presence of a child or in any manner portrays the likeness of a child or contains the use of figures or symbols which are traditionally associated with children;
001.02F Any statement, design, device or representation relating to any refund, exchange, or money-back guarantee, irrespective of truth or falsity;
001.02G Any reference by name or other identification to any other licensed retailers; or
001.02H Any statement, design, device, or representation which the Nebraska Liquor Control Commission finds to be likely to mislead the consumer.
002 SAMPLING/TASTING
002.01 Sampling
002.01A Retailers and their employees may sample limited quantities of beer, wine or spirits furnished or dispensed by a manufacturer or wholesaler whether the license permits consumption on or off the licensed premises. (53-123.02)
002.01B Conditions
002.01B1 sampling may also be done on the premises of a licensed wholesaler by a licensed retailer (53-123.02, 53-123.03),
002.01B2 consumption shall not exceed more than five samples of one fluid ounce or less of alcoholic liquor by the same person in a twenty-four hour period [53-103(37)],
002.01B3 no samples may be given unless all taxes, including the Nebraska Excise Tax, have been paid,
002.01B4 no samples should be shipped or brought into the State of Nebraska except directly to the Nebraska Wholesalers.
002.02 Tasting
002.02A Representatives of manufacturers, wholesalers, brewpubs and farm wineries may dispense limited quantities of beer, wine or spirits (that has been invoiced to retailers) to customers on a retail premises licensed for on premises consumption.
002.02B Conditions
002.02B1 representatives of manufacturers, wholesalers, brewpubs and farm wineries shall not sell beer, wine or spirits directly to a consumer,
002.02B2 tasting samples shall be for the express purpose of allowing customers to determine the grade, type and quality of alcoholic beverages,
002.02B3 tasting shall be exempt from the multiple drinks rule (6-019.01U).
003 KEG REGISTRATION REQUIREMENTS
003.01 Where the purchaser obtains more than one keg for off-premises consumption at the same location and on the same date, only one keg registration declaration and receipt form must contain all required information. All other keg registration declaration and receipt forms for that particular transaction must contain the registration number from the fully completed form as a reference and be signed by the purchaser. Such keg registration declaration and receipt forms which contain the reference number of a fully completed form and have been signed by the purchaser constitute a valid and properly completed registration and declaration receipt.
003.02 The keg registration label must be placed on the upper one-third of the keg.
010 ALCOHOLIC BEVERAGE PRODUCTS/PASS THROUGH WHOLESALE LICENSED PREMISE
010.01 In order to accurately collect the taxes imposed by Neb. Rev. Stat. 53-160 through 53-164.02 and facilitate compliance with Nebraska law, all alcoholic beverages manufactured out of this State that have been purchased for resale in this State shall prior to being resold at retail, physically come into the possession of a licensed wholesaler and be unloaded into and distributed from the licensed wholesaler’s warehouse in this State.
011 BEER DELIVERY AND TAX COLLECTION
011.01 The excise tax imposed by Nebraska Revised Statute 53-160 shall be collected by and accounted to the Commission as set forth in 011.01A, 011.01B, and 011.01C.
011.01A For all beer produced by a manufacturer or craft brewery licensee and consumed or sold at retail on such licensee’s licensed premises, the tax on beer shall be determined at the time of its removal for consumption or retail sale at the licensee’s licensed premises, and shall be paid by the manufacturer or craft brewery.
011.01B For all beer produced by a manufacturer or craft brewery licensee located in Nebraska for intrastate retail sale in Nebraska off of such licensee’s licensed premises or Satellite locations, such beer shall, prior to being resold at retail, be sold to, and come into the physical possession of a wholesale licensee and be unloaded into and distributed from either the licensed wholesaler’s warehouse or vehicles in the State and the tax on such beer shall be determined at the time of its removal from the licensed premises and shall be paid by the manufacturer or craft brewery licensee. The transfer shall be documented by an executed bill of lading.
011.01C For all beer sold to a wholesale licensee from the holder of a shipper’s license the tax is due upon the beers delivery to a license wholesaler, and such beer must come into the physical possession of a wholesale licensee and distributed from the wholesale licensee’s warehouse. The transfer from the shipper’s licensee to the wholesale licensee shall be documented by an executed bill of lading.
011.01D Any purchases, sales, practices, or transactions entered into between any manufacturer, craft brewery, wholesaler, or retailer, with the intent to circumvent or evade the provisions of this regulation shall be considered in violation thereof and shall be subject to citation and possible administrative sanction to include suspension, cancellation or revocation.
012 DOCK SALES
012.01 Any sale of alcoholic liquors from the dock or licensed premise of a manufacturer, distributor, or wholesaler shall include on the proper invoice the signature of the retailer or retailer's agent who receives delivery of the same at the time of the purchase. It shall be the responsibility of the manufacturer, distributor, or wholesaler to ensure that the retailer is properly licensed and that the retailer's agent is bona fide and acting solely on behalf of the authorizing retailer.
015 ACCEPTABLE FORMS OF PAYMENT
Acceptable forms or means of payment between retail licensee and wholesale licensee for purchases of alcoholic beverages (beer, wine, spirits).
015.01 Retailers business check (The check must carry the name of the business as so licensed with Commission. The name shall mean the current D.B.A. or corporate name. If licensed as a proprietorship or partnership, the name of the individual or partner or D.B.A.)
EXCEPTIONS:
015.01A A personal check of the licensee may be accepted by wholesaler if supported by a copy of the liquor license.
015.01B If the business is under a temporary operating permit, the new operator shall submit a check with the name of the business. Same criteria as 015.01.
015.02 Coins
015.03 Currency
015.04 Debit cards (card must carry the name of the retail business as licensed with Commission and signed by licensee or authorized agent.)
015.05 Credit cards (card must carry the name of the retail business as licensed with Commission and signed by licensee or authorized agent.)
015.06 Cashier check (The remitter must be the licensee or authorized agent.)
015.07 Bank Money Order (The remitter must be the licensee or authorized agent.)
015.08 Certified Check (The remitter must be the licensee or authorized agent.)
015.09 Travelers Check (Must carry the signature of the licensee or authorized agent.)
015.10 Payment for beer from a licensed retailer to a licensed beer wholesaler must be completed by the end of the business day from time of the sale.
015.11 Any electronic transfer of funds from a retailer to a wholesaler with respect to beer must be completed within twenty-four hours of the sale and in the case of wine or spirits within thirty days of the sale.
016 TRADE PRACTICE POLICIES
A wholesale licensee, shipper licensee, manufacturer licensee, and craft brewery licensee, (collectively referred to as an “industry member”)may furnish a retail licensee, with equipment, supplies, services, or other things of value, under conditions and within the limitations prescribed.
016.01 PRODUCT DISPLAYS
016.01A GENERAL
016.01A1 The act by industry member of giving or selling product displays to a retailer is allowed provided that the conditions and limitations prescribed in 016.01C of the rule are met.
016.01B DEFINITION
016.01B1 Product displays means any alcoholic liquor racks, bins, barrels, casks, shelving or similar items the primary function of which is to hold shelve or display consumer products.
016.01C CONDITIONS AND LIMITATIONS
016.01C1 The total value of all product displays given or sold by an industry member under 016 of this rule may not exceed $300 per brand at any one time in any one retail establishment. Industry members may not pool or combine dollar limitations in order to provide a retailer a product display valued in excess of $300 per brand. The value of a product display is the actual cost to the industry member who initially purchased it. Transportation and installation costs are excluded.
016.01C2 All product displays must bear conspicuous and substantial advertising matter on the product or the industry member which is permanently inscribed or securely affixed. The name and address of the retailer may appear on the product displays.
016.01C3 The giving or selling of such product displays may be conditioned upon the purchase of the distilled spirits, wine, or malt beverages advertised on those displays in a quantity necessary for the initial completion of such display. No other condition can be imposed by the industry member on the retailer in order for the retailer to receive or obtain the product display.
016.02 POINT OF SALE ADVERTISING MATERIALS AND CONSUMER ADVERTISING SPECIALTIES
016.02A GENERAL
016.02A1 The act by an industry member of giving or selling point of sale advertising materials and consumer advertising specialties to a retailer is allowed provided that the condition and limitations prescribed in 016.02C of this rule are met.
016.02B DEFINITIONS
016.02B1 Point of sale advertising materials are items designed to be used within a retail establishment to attract consumer attention to the products of the industry member. Such materials include, but are not limited to: posters, placards, designs, inside signs (electric, mechanical or otherwise), window decorations, trays, coasters, mats, menu cards, meal checks, paper napkins, foam scrapers, back bar mats, thermometers, clocks, calendars, and alcoholic beverage lists or menus.
016.02B2 Consumer advertising specialties are items that are designed to be carried away by the consumer, such as trading stamps, non-alcoholic mixers, pouring racks, ask trays, bottle or can openers, cork screws, shopping bags, matches, printed recipes, pamphlets, cards, leaflets, blotters, post cards, pencils, shirts, caps, and visors.
016.02C CONDITIONS AND LIMITATIONS
016.02C1 All point of sale advertising materials and consumer advertising specialties must bear conspicuous and substantial advertising matter about the product or the industry member which is permanently inscribed or securely affixed. The name and address of the retailer may appear on the point of sale advertising materials.
016.02C2 The industry member may not directly or indirectly pay or credit the retailer for using or distributing these materials or for any expense incidental to their use.
016.03 EQUIPMENT AND SUPPLIES
016.03A GENERAL
016.03A1 The act by an industry member of selling equipment or supplies to a retailer is allowed if the equipment or supplies are sold at a price not less than the cost to the industry member who initially purchased them, and if the price is collected within 30 days of the date of the sale. The act by an industry member of installing dispensing accessories at the retailer establishment is allowed as long as the retailer bears the cost of initial installation. The act by an industry member of furnishing, giving, or selling coil cleaning service to a retailer of distilled spirits, wine, or malt beverages is allowed.
016.03B EQUIPMENT AND SUPPLIES
016.03B1 Equipment and supplies means glassware (or similar containers made of other material), dispensing accessories, carbon dioxide (and other gasses used in dispensing equipment) or ice. “Dispensing Accessories” include items such as standards, faucets, cold plates, rods, vents, taps, tap standards, hoses, washers, couplings, gas gauges, vent tongues, shanks, and check valves.
016.03C NEWSPAPER CUTS
016.03C1 Newspaper cuts, mats, or engraved blocks for use in retailer’s advertisements may be given or sold by an industry member to a retailer selling the industry members products.
016.03D COMBINATION PACKING
016.03D1 The act by an industry member of packaging and distributing distilled spirits, wine, or malt beverages in combination with other (non-alcoholic) items for sale to consumers is allowed.
016.04 EDUCATIONAL SEMINARS
016.04A GENERAL
016.04A1 An industry member may give or sponsor educational seminars for retailers and their employees. Examples would be seminars dealing with use of a retailer’s equipment, training seminars for employees of retailers, or tours of industry member’s plant premises. This rule does not authorize an industry member to pay a retailer expenses in conjunction with an educational seminar (such as travel and lodging). This does not preclude providing nominal hospitality during the event.
016.05 STOCKING, ROTATION AND PRICING SERVICE
016.05A GENERAL
016.05A1 Industry members may, at a retail establishment, stock, rotate, and affix the price to distilled spirits, wine, or malt beverages which they sell, provided products of another industry member are not altered or disturbed.
016.05B SHELF PLAN AND SHELF SCHEMATICS
016.05B1 The act of an industry member of providing a shelf plan or shelf schematic for distilled spirits, wine, or malt beverages is allowed. When requested by a retailer, an industry member may, pursuant to the plan or schematic, rearrange or reset all or part of a liquor store or liquor department.
016.06 PARTICIPATION IN RETAILER ASSOCIATION ACTIVITIES
016.06A GENERAL
016.06A1 The following acts by an industry member participating in retailers association activities is allowed.
016.06A1A Displaying its products at a convention or trade show.
016.06A1B Renting display booth space if the rental fee is the same or paid by all exhibitors at the event.
016.06A1C Providing its own hospitality which is independent from association sponsored activities.
016.06A1D Purchasing tickets to functions and paying registration fees if the payment or fees are the same as paid by all attendees, participants or exhibitors at the event.
016.06A1E Making payments for advertisements in programs or brochures issued by a retailers associations at a convention or trade show.
016.07 PERMIT TO SOLICIT FOR FUTURE SALES
016.07A The Commission may issue a permit for wholesale sales for future delivery to retailers which authorizes the permittee to promote the sale of beer, wine, and spirits through methods such as solicitations, display, advertising and personal contact with licensed retailers and their agent, servants, and employees. A person holding the permit under this regulation may give samples of beer, wine, and spirits to retailers provided the alcoholic beverages first came to rest at a wholesale licensed premise and the state excise taxes paid. The permit under this section is only required of persons employed by a holder of a shipping license issued by the Commission and who reside in the State of Nebraska. Shipping license holders shall furnish the Commission with the names of all employees engaged in activities requiring a permit under the section and shall notify the Commission whenever an employee begins or terminates employment. Upon leaving employment, an employee shall submit his or her permit to the Commission for cancellation. Every person holding a permit under this section shall exhibit it upon request to any prospective purchaser or agent of the Commission or Nebraska State Patrol. A permit holder shall retain and preserve industry promotional cost records for Commission review for a period of three years. Every person holding a permit under this section shall be obligated to follow all Trade Practice Policies, Chapter 6,016 contained in Commission Rules and Regulations. Every permit holder, employee, or shipper is subject to citation for any violation of the Trade Practice Rules and Regulations. The application for the new permit shall be submitted upon such forms as the Commission may prescribe.
017 EMPLOYMENT OF MINORS
017.01 Age 16 - Upon reaching 16 -
017.01A An employee may stock inventory, sack and carry out alcoholic liquor from licensed establishments, although she/he must be accompanied by a person 21 years of age or over. (Can be the purchaser.) (53-168.06)
017.01A1 A grocery pick-up lane is considered a carry-out function.
017.01B An employee may remove liquor containers as a waiter, waitress or busboy of a restaurant, hotel, etc. (53-168.06)
017.01C An employee may not scan or accept payment regarding any sale of alcoholic liquor.
017.02 Age 19 - Upon reaching 19 -
017.02A An employee may serve (includes bartending) and sell alcoholic liquor. (53-168.06)
017.02B An employee may place orders and accept deliveries in the normal course of business with licensed wholesalers.
017.03 Immediate underage family members are not exempt from the provisions of this rule.
018 CREDIT: WHOLESALER/RETAILER
018.01 Pursuant to the authority granted in the Liquor Control Act and to meet the requirements contained in Regulations No. 122 (originally issued as FFA Regulation No. 8) issued by the Bureau of Internal Revenue of the United States Treasury Department, the Nebraska Liquor Control Commission hereby adopts the following rule:
018.01A No person, partnership, firm or corporation holding a retailer's license under the Nebraska Liquor Control Act shall accept or receive credit from any manufacturer, distributor or wholesaler on purchases of beer and no retailer shall accept or receive credit from any manufacturer, distributor or wholesaler on purchases of alcoholic liquors, except beer, for a period exceeding 30 days from the date of delivery of any such merchandise.
018.01B No manufacturer, distributor or wholesaler shall extend credit to any such retailer on sales of beer and no manufacturer, distributor or wholesaler shall extend credit to any such retailer on sales of alcoholic liquors, excluding beer, for a period exceeding 30 days from the date of delivery of any such merchandise.
018.01C No retailer shall purchase, accept or receive any alcoholic liquors, including beer, from any manufacturer, distributor or wholesaler if such retailer is delinquent on any account for alcoholic liquors, including beer, to any manufacturer, distributor or wholesaler.
018.01D No manufacturer, distributor or wholesaler shall sell or otherwise furnish any such alcoholic liquor, including beer, to any retail licensee who is delinquent on any account to any other manufacturer, distributor or wholesaler, providing that such delinquency is known to such manufacturer, distributor or wholesaler.
018.01E Every manufacturer, distributor, wholesaler and retailer shall report to the Commission such information concerning the extending or receiving of credit on such forms as the Commission may hereafter prescribe and at such times as the Commission shall hereafter determine. Such reports shall be by affidavit and sworn to by all licensees.
018.01F Any purchases, sales, practices or transactions entered into between any manufacturer, distributor or wholesaler and any retailer, with the intent to circumvent or evade the provisions of this regulation, shall be considered as a violation thereof.
018.01G Beer wholesalers shall be permitted to give retailers quantity discounts on volume purchases but such discounts shall be calculated on the basis of sales made to each licensee. Individual retail licensees or licensees holding more than one retail license shall not be permitted to combine purchases for purposes of obtaining such quantity discounts.
019 ILLEGAL CONDUCT: ALL LICENSEES
019.01 Persons, partnerships, and/or corporations holding licenses issued pursuant to the provisions of the Nebraska Liquor Control Act, Section 53-101, et seq., R.R.S. 1943, will be subject to citation and possible administrative sanction to include suspension or revocation for violation of the following:
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(23) of the Nebraska Liquor Control Act except that proof of the following shall constitute an absolute defense:
019.01A1 The purchaser falsely represented in writing and supported with other documentary proof specifically; a Driver’s License, Nebraska State Identification Card, Military Identification Card, Alien Registration Card or Passport that he was of legal age to purchase alcoholic liquor; and
019.01A2 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
019.01A3 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
019.01A4 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)
019.01B Minor In Possession Within Licensed Premise: No licensee or agent, principal, partner or employee of any licensee shall permit any person who is a minor as defined in Section 53-103(23) of the Nebraska Liquor Control Act to possess for the purpose of consumption any alcoholic liquor in any licensed premises. A licensee who has established the defense of (A) above shall be deemed to have not acted carelessly. (53-180.02)
019.01C Hours of Operation: No licensee or partner, principal, agent or employee shall permit the sale, dispensing or delivery of any alcoholic liquor in or from the licensed premises during hours not permitted by local ordinance or by the provisions of state law. (53-179)
019.01D Open Containers During Prohibited Hours: No licensee or partner, principal, agent or employee of any licensee shall permit any alcoholic liquor, in open containers to remain in the possession or control of any person for the purpose of consumption 15 minutes after the time set for concluding the sale of alcoholic liquor, by state law or by local ordinance whichever is earlier. (53-179(3))
019.01E Silent Partners; Profit Sharing: No licensee or partner, principal, agent or employee of any Retail Liquor License shall permit any other person not licensed or included as a partner, principal, or stockholder of any Retail Liquor License to participate in the sharing of profits or liabilities arising from any Retail Liquor License. (53-1,100)
019.01F Disturbance: No licensee or partner, principal, agent or employee of any licensee shall allow any unreasonable disturbance; as such term is defined hereunder, to continue without taking the steps, as set forth hereunder, within a licensed premise or in adjacent related outdoor areas.
019.01F1 A "Disturbance" as used in this section shall mean any brawl, fight, or other activity which may endanger the patrons, employees, law enforcement officers, or members of the general public within licensed premises or adjacent related outdoor area. Such term shall include incidents involving, but not necessarily limited to: drug dealing; intoxicated individuals; soliciting of prostitution; or any physical contact between the licensee's agents or employees and its customers, involving any kissing, or any touching of the breast, buttock or genital areas. Any brawl fight or other activity which results in serious injury to any patron, employee or members of the general public shall be reported to law enforcement. Serious injury means any gunshot wound, knife or other stab wound or any other injury requiring medical treatment onsite or transportation to a medical facility for treatment. Licensees and their employees shall not prohibit or interfere in any way with a patron who chooses to contact law enforcement in the event they are assaulted on the premises.
019.01F2 Unless there is reason to believe that a licensee or partner, principal, agent or employee of any licensee would endanger himself/herself or others, such person shall take such action as is reasonably necessary to terminate the disturbance. Physical force should be exercised only in extreme circumstances and should be limited to the force reasonably required to terminate the disturbance and remove the individual from the licensed premise, without endangering any patron or other person.
019.01F3 In the event efforts taken in accordance with the preceding subparagraph are not successful or if there is reason to believe that the licensee, partner, principal, agent or employee of any licensee may create a danger to himself/herself or others, than in such event, such person shall immediately contact law enforcement personnel to assist in properly handling the disturbance. In the event law enforcement and/or medical personnel are summoned, the directions and/or orders given by such law enforcement or medical personnel shall be followed.
019.01F4 A licensee who has conformed with the procedure as set forth in this section shall be deemed to have not permitted a disturbance to occur and continue. Licensees who wish to document their compliance with this rule may maintain a log in which they document disturbances or other unusual occurrences.
019.01G Entry Into Premise by Law Enforcement Officer: No licensee or partner, principal, agent or employee of any licensee shall refuse to permit or unreasonably delay in permitting any law enforcement officers, duly appointed investigator, inspector, agent or auditor of the Nebraska Liquor Control Commission entry onto the licensed premises at any time demand for such entry is made by such law enforcement officer, investigator, inspector, agent or auditor of the Nebraska Liquor Control Commission.
019.01H Removal of Alcoholic Liquors From Premise: No licensee or partner, principal, agent or employee of any licensee shall allow any alcoholic liquor to be removed from a licensed premises except where a license is held permitting off-premises sales and then only in original unopened containers.
019.01I Sale For Resale: No licensee or partner, principal, agent or employee other than provided for in 53-175, shall engage, directly or indirectly, in any transaction including or conspiring as to the resale of any liquors owned by him as a licensee, nor permit the sale or delivery of any alcoholic liquor in such quantities that would place a reasonable-minded person on notice that such liquor might be intended for resale. A defense may be established by the licensee by obtaining from any such suspected purchaser a statement in writing that the purchase is not being made for the purpose of reselling the alcoholic liquors.
019.01J Refilling; Substitution: No licensee or partner, principal, agent or employee of any licensee shall fill or refill, in whole or in part, any original package of alcoholic liquor, with the same or any other kind, quantity, quality or proof of alcoholic liquor and no licensee or partner, principal, agent or employee of any licensee shall have in his possession for sale at retail, any containers of any kind containing alcoholic liquor, except in original packages.(53-184)
019.01K Delinquent Credit: No licensee or partner, principal, agent or employee of any licensee shall fail to pay for upon delivery, any purchases of beer and shall not accept credit from any manufacturer, distributor or wholesaler of alcoholic liquors namely, spirits or wine, for a period of 30 days. Any purchases of alcoholic liquors for which payment has not been made in full within 30 days of the date of invoice shall constitute a delinquency and shall subject the licensee to citation (53-168).
019.01L Sale of License: No licensee or partner, principal, agent or employee of any licensee shall sell or offer to sell any interest in any liquor license to any other person. In any sale of a business possessing a liquor license, no value may be placed upon the existence of the license itself and the placing of any such value upon the license by the seller of any such business shall subject the seller-licensee to citation.
019.01M Sell on Credit to Consumer: No licensee or partner, principal, agent or employee of any licensee not exempted by the provisions of Section 53-183, shall sell or furnish alcoholic liquor at retail to any person on credit, except that a major credit card may be used in the purchase of alcoholic liquors. The term "major" credit card shall mean any nationally recognized credit card, excluding any card, distributed by an entity that holds a retail license issued by Nebraska. (53-183)
019.01N Sell to Visibly Intoxicated Person/Mentally Incapacitated Person/Person Incapacitated by Drugs: No licensee or partner, principal, agent or employee of any licensee shall sell, serve, or furnish alcoholic beverages or allow possession of alcoholic beverages on the licensed premise to any person who is or has become intoxicated and/or incapacitated by the consumption of alcoholic beverages and/or other drugs or who is mentally incapacitated. Intoxication means an impairment of a person’s mental or physical faculties as a result of his or her use of alcoholic liquor or drugs so as to diminish the person’s ability to think and act in the manner of an ordinary prudent and cautious person in full possession of his or her faculties using reasonable care under like circumstances. A person shall be deemed to be intoxicated when it can be plainly determined by appearance, conduct, and/or demeanor. A change in demeanor and/or behavior as time passes is also an indicator of intoxication. Other indicators include, but are not limited to:
019.01N1 Problems with balance, inability to maintain balance, i.e., stumbling, staggering gait, bumping into furniture while walking, falling against bar or off stool, head on bar;
019.01N2 Ineffective muscular coordination, i.e., spilling and/or knocking over drinks, unable to pick up change, clumsy, uncoordinated movements;
019.01N3 Strong smell of alcohol;
019.01N4 Slurred speech, i.e., thick tongue, uncontrollable voice pitch, muttering, argumentative, aggressive or belligerent, making inappropriate comments, crude behavior.
019.01N5 Bloodshot and/or glassy eyes, i.e., flushed face;
019.01N6 Condition of clothes and hair, i.e., disheveled appearance, messy hair, unzipped clothing;
019.01N7 Careless with money, urging other people to have another drink, annoying other guests and servers, complaining about drink prices, complaining about drink strength or preparation.
019.01N8 Unusual behavior, i.e., vomiting, profanity, fighting, loud, boisterous, obnoxious behavior.
019.01N9 A concentration of eight hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood, a concentration of eight hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, or a concentration of eight hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her urine. This indicator may only be used in conjunction with at least one other indicator that demonstrates visible intoxication.
019.01O Notices: Every licensee shall cause his license or licenses to be framed and hung in plain view in a conspicuous place on the licensed premises (53-148). The warning to minors and adults sign and the pregnancy poster must also be on display in a prominent place (53-180.04 and 53-103.04).
019.01P No retail licensee may deliver alcoholic liquor to a consumer, except:
019.01P1 A holder of a special designated license or a caterer’s license used in conjunction with a special designated license may deliver to the licensed location or to a location expressly authorized by the Commission in writing pursuant to Chapter 4 of the Rules and Regulations of the Commission.
019.01P2 A retail licensee or a holder of a shipping license may deliver or cause to be delivered by its agent, delivery service or common carrier to a consumer alcoholic beverages provided that the consumer has paid the licensee for the alcoholic liquors prior to delivery by cash, credit or debit card, and that the licensee has verified that the sale has not been made to a minor, nor that delivery will be made to a minor. Any package to be delivered by a delivery service or common carrier for the holder of a shipping license shall have a label stating “adult signature required” measuring at least three by five inches in size placed on the package by the licensee
019.01P3 The retail licensee or holder of a shipping license is responsible for any violations of the Nebraska Liquor Control Act and/or the Rules and Regulations of the Nebraska Liquor Control Commission which occur as a result of the delivery of alcoholic liquors, including, but not limited to, sales to minors.
019.01P4 The driver for the agent must be 21 years of age.
019.01Q Illegal Activities: The Commission finds that certain illegal activities may induce individuals to enter licensed premises and that the Commission has an interest in insuring that licensees do not use illegal means to promote the sale and consumption of alcohol. The Commission also believes the consumption of alcohol could impair judgment and could lessen inhibitions, causing some consumers to engage in illegal activities or to be victims of illegal activities on or about licensed premises, endangering the health, safety and welfare of individuals. The Commission, therefore, finds there is a nexus between the consumption of alcohol and certain illegal activities that occur within licensed premises or in adjacent related outdoor areas.
Such activities are: drug-related offenses, prostitution or pandering, assaults, sexual assaults, homicide, gambling, vandalism, weapons-related offenses, theft, disturbing the peace, violations of statutes or local ordinances relating to entertainment, acceptance of food stamps for the sale of alcohol or otherwise in violation of federal laws or regulations, and any offense referred to in Section 53-125 (4) or (5), whether or not there has been a plea of guilty or a conviction in criminal court.
If the Commission finds by a preponderance of the evidence that a licensee or employee or agent of a licensee has committed any of the foregoing illegal activities or has knowingly allowed such offense to be committed by others on the licensed premises or adjacent related outdoor areas, the Commission may suspend, cancel or revoke such license.
019.01R Penalties: Upon a determination by the Nebraska Liquor Control Commission that any licensee licensed by it has violated any of the provisions of the Nebraska Liquor Control Act (53-101 through 53-1,200) or the rules and regulations of the Nebraska Liquor Control Commission that license may be subjected to revocation or suspension or other administrative sanction such as the Commission may order.
019.01S SANITATION
019.01S1 Sanitary conditions, conducive to public health and welfare, must be maintained at all times, in, on or about licensed premises, by meeting minimum sanitary standards as set forth in the Nebraska Food Service Code. The minimum standards shall require at least two restrooms for establishments that provide on-premise consumption of alcoholic beverages.
019.01T QUANTITATIVE SALES
019.01T1 All licensees shall maintain on their licensed premises records presently required by federal regulation concerning sales of alcoholic liquor, in an amount of twenty wine gallons or more (27 CFR 194). Such records shall include a record of the name and driver's license number or other identification of the person making the purchase. All licensees shall make such records available to any Nebraska Liquor Control personnel or any other law enforcement officer at any time demand for such is made.
019.01U DRINKING PROMOTIONS
019.01U1 No licensee shall sell, or serve for on-premises consumption, an unlimited quantity of beer, wine, or spirits at a specific price.
019.01U2 No licensee shall sell or serve two or more drinks containing beer, wine, or spirits to a person for that person's consumption on the licensed premises for one price. A pitcher or bucket of beer shall not be considered a drink; however, no licensee shall sell two or more pitchers or buckets of beer for one price.
019.01U3 Nothing in this rule shall limit, or in any way restrict, the price which may be charged by any licensee for a single drink containing beer, wine, or spirits to be consumed on the licensed premises.
019.01U4 No licensee shall mix or pour alcoholic beverages directly into a patron's mouth. The so-called upside-down drinks are prohibited.
019.01W SPECIAL DESIGNATED PERMIT/DELIVERY AND RETURN OF ALCOHOLIC BEVERAGES
019.01W1 Delivery and return of alcoholic beverages must be made within seven (7) working days prior and subsequent to the date of the event.
019.01W2 If storage is to be off the licensed premises, written request must be made to and written approval received from the Commission covering the location and dates of the storage.
019.01W3 After the completion of the event for which a special designated permit is obtained, the permittee may remove open containers of alcoholic liquor from the premise. A licensee with a catering permit may store open containers of alcoholic liquor used for catered events provided the alcoholic liquor is stored in a separate and secure area of the licensed premise.
019.01X ADULT ENTERTAINMENT
019.01X1 No licensee or partner, principal, agent or employee of any licensee shall employ or permit any person under the age of nineteen to provide sexually explicit entertainment within a licensed premises; nor shall any person under the age of nineteen be employed or permitted within a licensed premises while unclothed in any sexually explicit manner.
020 CANCELLATION/DENIAL OF LICENSES
020.01 Where approval or authorization for issuance of any liquor license has been made by the Commission subject to any condition and that condition is not met the applicant will be subject at all times during this period of non-issuance to an Order of the Commission to show cause why the approval should not be cancelled and the application denied for failure to meet the conditions for issuance.
020.02 Where a license has been approved by the Commission and forwarded to the city, village or county clerk, as the case may be, for the collection of the appropriate fees and issuance and the applicant does not complete the licensing process by paying such appropriate fees and obtaining such license within twenty-one calendar days from the receipt by the city clerk, village or county clerk, as the case may be, for the license, the clerk shall immediately return the license to the Commission and the applicant shall be subject to an Order of the Commission directing the applicant to show cause why the approval of the license should not be cancelled and the application denied.
020.03 Where a license has been issued and the licensee for any reason during the license year fails to operate the license for a total of thirty continuous days or sixty total days the licensee shall be subject to an Order of the Commission directing that the licensee show cause why the license should not be cancelled for non-use.
020.04 Where a license has been issued and the licensee finds that the licensee will not be able to maintain continuous operation during the license year as a result of fire, tornado, flood, loss of lease or some other reason constituting a hardship the licensee shall apply to the Commission within thirty days of the occurrence constituting hardship for permission to voluntarily cease operations and maintain the licensee's license for a period of time not to exceed the end of the licensed year for which the license was issued. Any such status afforded shall be reviewable by the Commission within sixty days of the end of any license year in which such status has been afforded. Failure to afford such status or the revision of such status shall subject the licensee to an Order of the Commission to show cause why the licensee's license should not be cancelled.
020.05 Failure on the part of the licensee to show good cause for either (A) the licensee's non-compliance with conditions of issuance, (B) the licensee's non-completion of the licensing process by the paying of the appropriate fees and obtaining the license from local officials, (C) the licensee's non-use or (D) the licensee's non-operation due to hardship shall result in the license being cancelled or the previous preliminary approval being rescinded and the application denied.
020.06 Licenses that have been suspended, cancelled or revoked by the Commission, but are operating under a judicial stay may be renewed according to the renewal statutes. However, any license renewed while suspended, cancelled or revoked but operating under judicial stay shall be subject to the same suspension, cancellation, or revocation that was attached to the original license once the judicial stay is dissolved.
History
- Effective 2018-11-24
Chapter 7 Permittees Reports/Record Retention
Neb. Admin. Code tit. 237, ch. 7 Permittees Reports/Record Retention {#sec-237-nac-7 omnilex-key=us-ne-regs-official--title-237--237 NAC 7}
001 Permittee Reports
001.01 All licensees and permittees, including Nebraska Breweries, who are required to file reports and pay taxes which may become due upon beer by operation of Sec. 53-161, Neb. R.S., as amended, who shall fail to submit reports required by said Sec. 53-161, Neb. R.S., as amended, and pay taxes due thereunder at the time and in the manner therein required, shall be subject to immediate suspension by written order of the Nebraska Liquor Control Commission of all permits, licenses and authority to do business in the State of Nebraska, as provided in the Nebraska Liquor Control Act, in the event said reports and taxes are not paid within ten (10) days after the date set forth in said Sec. 53-161, as amended.
001.02 The Commission may issue such a suspension order without written prior notice or formal public hearing, such suspension shall become effective upon the date notice of same is received in writing by certified or registered mail, and, provided further, that in the event such licensee or permittee shall later comply with the requirements of the Nebraska Liquor Control Act, the Commission may remove such order of suspension without prior notice or formal public hearing, said removal shall become effective by the same manner as the original order.
002: RECORD RETENTION
002.01 All licensees will keep complete, accurate and separate records for a period of three years. The records will be available for inspection and copies of such can be requested by NLCC and auditors. Licensees may use storage technologies for the storage of their records, and may store them off site, provided the records so stored are readily subject to retrieval and made available for viewing on a screen or in hard copy by NLCC, enforcement or auditors during reasonable hours. At any other time of day, if the licensee’s records are not available for inspection, the licensee will provide the records within 24 hours after a request is made to inspect the records. “reasonable hours” will be deemed to include all business hours of operation and any other time at which there exists any indication of activity upon the licensed premises.
002.02 All licensed manufacturers, bottlers or wholesalers of alcoholic beverages will retain and preserve a complete, accurate and separate record of all alcoholic beverages manufactured, bottled, purchased, sold or shipped by them. Such records will show the quantities of all such alcoholic beverages manufactured, bottled, purchased, sold or shipped by them; the dates of all sales, purchases, deliveries or shipments, the names and addresses of all persons to or from whom such sales, purchases, deliveries or shipments are made; the quantities and kinds of alcoholic beverages sold and delivered or shipped and the prices charged therefore and the taxes applicable thereto, if any. Every manufacturer and wholesaler, at the time of delivering alcoholic beverages to any licensee or industry member, will also prepare a duplicate invoice showing date of delivery, the quantity and value of each delivery and the name of the purchaser to whom the delivery is made. Bills of lading, properly executed with signatures, proving quantity are required for any shipments of alcoholic beverages being made out of the state and into the state of Nebraska.
002.03 Every retail licensee will keep complete, accurate and separate records, including invoices, of the purchases and sales of alcoholic beverages, food and other merchandise. The records of alcoholic beverages will be kept separate and apart from other records and will include all purchases thereof, the dates of such purchases, the kinds and quantities of alcoholic beverages purchased, the prices charged therefore and the names and addresses of the persons from whom purchased. Additionally, each retail licensee will keep accurate accounts of daily sales, and sales tax records, showing quantities of alcoholic beverages, food, and other merchandising sold and the prices charged, therefore.
002.04 If a licensee has rights as a manufacturer, wholesaler, and retailer then the appropriate record retention shall be based on the type of business activity.
002.05 The terms “sale” and “sell” will include exchange, barter or traffic, or delivery made otherwise than gratuitously, by any means whatsoever, of mixed beverages and other alcoholic beverages, and of meals or food.
002.06 Federal forms that are required to be submitted and kept on file must be available to state and NLCC Auditors upon request. Federal forms that are required whether submitted or required to be kept on file must be available to enforcement officials and NLCC staff and auditors upon request and are subject to the record retention as above.
History
- Effective 2024-06-02
Chapter 8 State Institutions
Neb. Admin. Code tit. 237, ch. 8 State Institutions {#sec-237-nac-8 omnilex-key=us-ne-regs-official--title-237--237 NAC 8}
001 Alcohol to State Institutions
001.01 By reason of Section 2 of Article VIII of the Constitution of Nebraska, State Institutions under the jurisdiction of the Board of Control of the State of Nebraska or other Departments of the State, may purchase alcohol from manufacturers and/or distributors duly licensed in this state, and possess and use the same for non-beverage purposes only in such institutions, without having first obtained a non-beverage user's license or any other license or permit; and that sale and delivery of alcohol direct to such state institutions, created by Statute, may be made by such manufacturers and/or distributors, provided they keep such records and accounts thereof as are provided by law in the case of sale or delivery of alcohol to licensed non-beverage users.
History
- Effective 1989-11-27
Chapter 9 Model Procedures for Negotiated Rulemaking
Neb. Admin. Code tit. 237, ch. 9 Model Procedures for Negotiated Rulemaking {#sec-237-nac-9 omnilex-key=us-ne-regs-official--title-237--237 NAC 9}
001 Application of these Model Rules .
Pursuant to Neb. Laws 1994, LB 446, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency's explanatory statement the reasons why the relevant portions of the Attorney General’s model rules are impracticable under the circumstances.
002 Negotiated rulemaking generally .
The purpose of these regulations is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act and the Negotiated Rulemaking Act. The negotiated rulemaking process can be used by state agencies, whenever appropriate, to resolve controversial issues prior to the commencement of formal rulemaking. Negotiated rulemaking is not a substitute for the requirements of the Administrative Procedure Act, but may be used as a supplemental procedure to permit the direct participation of affected interests in the development of new rules or the amendment or repeal of existing rules. The negotiated rulemaking process also does not preclude other agency efforts or processes designed to reach consensus with affected or interested persons concerning the content of rules or regulations. A consensus agreement on a proposed rule reached by a negotiated rulemaking committee may be modified by the agency as a result of a subsequent formal rulemaking process.
003 Definitions .
For purposes of this Chapter of these model procedural rules:
003.01 APA shall mean the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 through 84-920 (1987, Cum. Supp. 1992, Supp. 1993).
003.02 Agency shall mean that board, commission, department, officer, division or other administrative office or unit of state government authorized by law to make rules and regulations which is promulgating these procedural rules. Agency shall not include those entities exempted in Neb. Rev. Stat. § 84-901 (1).
003.03 Agency Director shall mean the chief officer in charge of the department, division, other administrative office or unit of state government which is promulgating these procedural rules. If appropriate, Agency Director shall mean the governing board or the commission of state government which is promulgating these procedural rules.
003.04 Consensus shall mean unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee agrees upon another specified definition.
003.05 Convenor shall mean a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate for a particular rulemaking procedure.
003.06 Facilitator shall mean a person who impartially aids in the discussion and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule. A facilitator shall not have decisionmaking authority.
003.07 Interest shall mean, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner.
003.08 Negotiated rulemaking shall mean rulemaking through the use of a negotiated rulemaking committee.
003.09 Negotiated rulemaking committee or committee shall mean an advisory committee established to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule.
003.10 Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, agency, or public or private organization of any character.
003.11 Rule or regulation shall mean any rule, regulation, or standard issued by an agency, including the amendment or repeal thereof whether with or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered by it or governing its organization or procedure, but not including rules and regulations concerning the internal management of the agency not affecting private rights, private interests, or procedures available to the public and not including permits, certificates of public convenience and necessity, franchises, rate orders and rate tariffs, and any rules of interpretation thereof, and for the purpose of the APA, every rule and regulation which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests.
004 Establishment of a Negotiated Rulemaking Committee; criteria .
An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the agency director determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the agency director shall consider whether:
004.01 There is a need for the rule.
004.02 There are a limited number of identifiable interests that will be significantly affected by the rule.
004.03 There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who:
004.03A Can adequately represent the interests identified; and
004.03B Are willing to negotiate in good faith to reach a consensus on the proposed rule.
004.04 There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time.
004.05 The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the APA.
004.06 The agency has adequate resources and is willing to commit those resources, including technical assistance, to the committee.
004.07 The agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee as the basis of the rule proposed by the agency in the formal rulemaking process of the APA.
005 Convenors; selection; duties .
An agency, at the discretion of the agency director, may use the services of a convenor.
005.01 An agency may employ or contract for an organization or an individual to serve as a convenor, or may use the services of a state employee to act as a convenor. A convenor shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. An agency shall determine whether a person under consideration as a convenor has such an interest. A person disqualified under this criterion shall be dropped from further consideration.
005.02 The convenor may assist the agency in making the determination of need for a negotiated rulemaking process discussed in section 004 above. The convenor may also assist the agency in:
005.02A Identifying persons who will be significantly affected by a proposed rule.
005.02B Conducting discussions with affected persons on the issues of concern and ascertaining whether the establishment of a negotiated rulemaking committee is feasible and appropriate for the particular rulemaking.
005.03 The convenor shall report findings and make recommendations to the agency. Upon request of the agency, the convenor shall ascertain the names of persons who are willing and qualified to represent the interests that will be significantly affected by the proposed rule. That report by the convenor and any recommendations of the convenor shall be public records and made available to the public for review upon request.
006 Petitions for the use of a negotiated rulemaking committee .
Any person may petition an agency to request the use of a negotiated rulemaking committee in the development or revision of a rule, as provided below.
006.01 A negotiated rulemaking process may be requested on any topic appropriate for a rule or regulation by the agency.
006.01A A negotiated rulemaking process may be requested only to develop or revise rules which carry out statutes that are within the authority of the agency to implement.
006.01B A negotiated rulemaking process may not be requested to develop a rule or regulation to vary or change the specific terms of a statute.
006.01C A negotiated rulemaking process may not be requested to negotiate a rule on a matter which is not within the definition of a rule or regulation as set forth in subsection 003.11 above.
006.02 A request for the use of a negotiated rulemaking procedure shall be made by a petition that meets the requirements of form set out in this subsection. In the event that it does not, the agency may refuse to accept it.
006.02A A petition may be in the form of a pleading that contains a caption, heading, and name as set forth on Attachment 1, which is attached to these model rules and made a part of them by reference.
006.02B A petition may also be made in the form of a letter so long as the letter contains all of the information required by these regulations and is clearly delineated as a petition for negotiated rulemaking.
006.02C All petitions must be on white, letter sized paper (8 1/2 by 11) of standard weight.
006.02D Petitions must be legible, and may be typewritten, photostatically reproduced, printed, or handwritten. If handwritten, petitions must be in ink. Only one side of a page of a petition shall contain any writing.
006.02E Any documents that are intended to accompany a petition shall be securely fastened, clearly marked as attachments to the petition, and meet the other requirements of this section as to size, print and legibility.
006.03 A petition for a negotiated rulemaking procedure shall meet the following requirements for content and substance. In the event that it does not, the agency may refuse to accept it.
006.03A The petition must identify the general subject matter about which the negotiated rulemaking procedure is requested, including the statutes or legislative bill(s) which provide authority for the desired regulation, and, if amendments to existing regulations are sought, identification of the regulations by title, chapter and name.
006.03B The petition must identify the specific issue(s) proposed for inclusion in the negotiated rulemaking process.
006.03C The petition must discuss the facts surrounding each problem or issue proposed for inclusion in the negotiated rulemaking process.
006.03D The petition must discuss why a negotiated rulemaking process is in the public interest, including information on each of the criteria set out in subsections 004.01 through 004.05 above. The petition may also include information on the criteria included in subsections 004.06 and 004.07 above, to the extent such information is available to the petitioner. The petitioner may also submit such other information as may assist the agency in making a decision.
006.03E The petition must identify persons who will be significantly affected by any rule which might result from the proposed negotiated rulemaking process, to the extent known by the petitioner. The petitioner may also suggest the names of persons who are willing and qualified to represent the interests that will be significantly affected by the negotiated rulemaking process and the proposed rule.
006.04 A petition for a negotiated rulemaking process shall be filed with the agency director. Filing may be made by personal delivery during regular agency office hours or by mail.
006.05 Upon the filing of a petition for a negotiated rulemaking procedure, the agency director may designate an agency employee or use the services of a convenor to recommend to the agency director whether a negotiated rulemaking process should be initiated.
006.06 With sixty (60) days after submission of a petition for a negotiated rule making procedure, the agency shall:
006.06A Deny the petition in writing, stating the reason(s) for denial; or
006.06B Initiate the negotiated rulemaking process as provided in these rules.
006.07 The decision of the agency with respect to a petition for a negotiated rule making procedure may be made in the form of a pleading or a letter clearly designated as the decision on the petition. The petitioner shall be served with a copy of the agency's final decision by certified mail, return receipt requested.
006.08 A decision by the agency with respect to a petition for a negotiated rulemaking procedure is not subject to judicial review, although nothing herein shall bar a judicial review if such is otherwise provided by law.
007 Notice of a Negotiated Rulemaking Committee; Comment; Applications for Membership .
If an agency decides to go forward with the establishment of a negotiated rulemaking committee, the agency shall proceed with the following process.
007.01 The agency shall give notice to the Secretary of State, publish notice in a newspaper having general circulation in the state, and, as appropriate, publish notice in other newspapers and publications. The notice shall include:
007.01A An announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule.
007.01B A description of the subject and scope of the rule to be developed and the issues to be considered.
007.01C A list of interests likely to be significantly affected by the proposed rule.
007.01D A list of the persons proposed to represent the affected interests and the agency.
007.01E A proposed schedule for completing the work of the committee.
007.01F An explanation of how a person may apply for or nominate another person for membership on the committee.
007.02 Persons interested in making comments upon the formation of a particular proposed negotiated rulemaking committee shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Such comments shall be in writing, and shall either be personally delivered to the agency or mailed to the agency at its business office.
007.03 Persons interested in applying for membership on a particular proposed negotiated rulemaking committee or in nominating other persons for such membership shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Persons making application for membership or nominations for membership shall do so on Attachment 2 which is attached to these regulations and made a part of these regulations by reference, and which shall be provided by the agency. Persons making application for membership or nominations for membership may also do so by letter, so long as the letter contains all of the information set out in Attachment 2 and is clearly delineated as an application or nomination for membership on a specific negotiated rulemaking committee.
008 Establishment of a Negotiated Rulemaking Committee; Procedure .
After publication of notice and termination of the comment and membership application period, the agency will consider the comments and membership applications for a particular negotiated rulemaking committee and determine whether such a committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule, and whether such a committee is feasible and appropriate in the particular rulemaking. In making the final determination as to creation of a negotiated rulemaking committee, the agency may use the services of a convenor as set out in Section 005 above. In making the final determination as to creation of a negotiated rulemaking committee, this agency and its agency director will apply the criteria set out in 004 above.
008.01 If, after such a determination, the agency decides that a negotiated rulemaking procedure is feasible, it shall establish a negotiated rulemaking committee as provided in these regulations. The committee will negotiate issues and develop proposed rules for use by the agency in formal rulemaking.
008.02 If, after such a determination, the agency decides not to establish a negotiated rulemaking committee, the agency shall:
008.02A Notify the persons who commented on, applied for membership on or nominated persons for membership on the particular negotiated rulemaking committee of the reasons for the decision not to establish such a committee.
008.02B Publish notice of the decision not to establish the particular negotiated rulemaking committee in a newspaper having general circulation in the state, and, as appropriate, in other newspapers and publications.
009 Negotiated Rulemaking Committee; membership .
All members of a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members.
009.01 Members of a negotiated rulemaking committee may include:
009.01A A person designated by the agency to represent the agency. This person shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
009.01B Persons selected by the agency as willing and qualified to represent the interests that will be significantly affected by the proposed rule.
009.01C Persons contacted and recruited by the negotiated rulemaking committee itself by consensus as essential to the success of the negotiated rulemaking process.
009.01D Persons selected by the negotiated rulemaking committee by consensus upon committee review of a petition for membership or nomination as set out in subsection 009.02 below.
009.02 Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person on a negotiated rulemaking committee may petition for or nominate another person for membership on the negotiated rulemaking committee.
009.02A Each petition or nomination for committee membership shall be in writing and be submitted to the negotiated rulemaking committee by delivering or mailing the same to the agency. All such petitions or nominations shall include:
009.02A1 Identification of the applicable negotiated rulemaking proceeding.
009.02A2 The name of the petitioner or nominee, and a description of the interests the person represents.
009.02A3 Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent.
009.02A4 A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration.
009.02A5 An explanation of reasons that the persons already on the negotiated rulemaking committee do not adequately represent the interests of the person submitting the petition or nomination.
009.02B Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may use the form attached hereto as Attachment 3. Attachment 3 is made a part of these regulations by reference. Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may also do so by letter, provided that the letter contains the information set forth above.
009.02C Upon receiving a petition for membership on or nomination to a particular negotiated rulemaking committee, the committee in question shall decide, by consensus at its next meeting, whether or not to expand its membership.
010 Negotiated rulemaking committee; operation .
A negotiated rulemaking committee established under these rules shall consider the matter proposed by the agency for consideration and shall attempt to reach consensus concerning a proposed rule and any other matter the committee determines is relevant to the proposed rule.
010.01 A negotiated rulemaking committee may adopt procedures or ground rules for the operation of the committee consistent with these rules and the pertinent Nebraska statutes.
010.02 The agency shall provide appropriate administrative support to a negotiated rulemaking committee including technical assistance and support.
010.03 The person representing the agency on a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members of the committee and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
010.04 If a negotiated rule making committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the agency a report containing the proposed rule.
010.05 If a negotiated rulemaking committee does not reach a consensus on the proposed rule, the committee shall transmit to the agency a report specifying areas in which the committee reached consensus and the issues that remain unresolved. The committee may include in the report any other information, recommendations, or materials that the committee considers appropriate. Any member of the committee may include as an addendum to the report additional information, recommendations or materials.
011 Facilitators; selection; duties .
A facilitator shall be selected to assist a negotiated rulemaking committee with its duties.
011.01 The agency may nominate a person to serve as a facilitator for the negotiations of a negotiated rulemaking committee, subject to the approval of the committee by consensus. If the committee does not approve the agency’s nomination for facilitator, the agency shall submit a substitute nomination. If the committee does not approve the substitute nomination of the agency for facilitator, the committee shall select, by consensus, a person to serve as facilitator.
011.02 The agency may employ or contract for an organization or an individual to serve as a facilitator for a negotiated rulemaking committee or the agency may use the services of a state employee to act as a facilitator. A person designated by the agency to represent it on a negotiated rulemaking committee with respect to substantive issues may not serve as the facilitator. A facilitator shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The agency shall determine whether a person under consideration for facilitator has such an interest. A person disqualified under this criterion shall be dropped from further consideration.
011.03 A facilitator approved or selected by a committee shall:
011.03A Preside at the meetings of the committee in an impartial manner.
011.03B Impartially assist members in conducting discussions and negotiations and achieving consensus.
011.03C Manage the keeping of minutes and records.
012 Negotiated rulemaking committee; expenses .
Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation. However, the agency may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in Neb. Rev. Stat. §§ 81-1174 through 81-1177 and a reasonable per diem rate of compensation if:
012.01 The committee member certifies a lack of adequate financial resources to participate on the committee using the form at Attachment 4 which is attached to these regulations and made a part of them by reference; and,
012.02 The agency determines that the committee member’s participation is necessary to assure an adequate representation of the interests of the members.
013 Grants or gifts .
The agency may accept grants or gifts from any source to fund a negotiated rulemaking process if:
013.01 Information on the name of the person giving the grant or gift and the amount of the grant or gift is available to the public.
013.02 The grant or gift is given to and accepted by the agency without placing any condition on the membership of a committee or the outcome of the negotiated rulemaking process.
013.03 There is a consensus among the members of the negotiated rulemaking committee that the acceptance of the grant or gift will not diminish the integrity of the negotiated rulemaking process.
014 Negotiated rulemaking committee; termination .
A negotiated rulemaking committee shall terminate upon the adoption of the final rule under consideration by the agency pursuant to the APA, unless the agency, after consulting the committee, or the committee itself specifies an earlier termination date.
015 Negotiated rulemaking procedure; judicial review .
Any action of the agency relating to establishing, assisting or terminating a negotiated rulemaking committee under the Negotiated Rulemaking Act shall not be subject to judicial review, except that nothing in this section shall bar judicial review if such judicial review is otherwise provided by law.
History
- Effective 1995-08-21
Chapter 10 Petitioning for Rule Making
Neb. Admin. Code tit. 237, ch. 10 Petitioning for Rule Making {#sec-237-nac-10 omnilex-key=us-ne-regs-official--title-237--237 NAC 10}
001 General information .
Application of these Model Rules. Pursuant to Neb. Laws 1994, LB 446, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency’s explanatory statement the reasons why the relevant portions of the Attorney General's model rules are impracticable under the circumstances.
002 Rule Making Petition .
002.01 Petition. Any person may petition an agency requesting the promulgation, amendment, or repeal of a rule or regulation.
002.02 Form. The petition shall:
002.02A. Be clearly designated as a petition for a rules change;
002.02B. In the case of a proposed new rule or amendment of an existing rule, shall set forth the desired rule in its entirety;
002.02C. In the case of a petition for the repeal of an existing rule, such shall be stated and the rule proposed to be repealed shall either be set forth in full or shall be referred to by agency rule number;
002.02D. Describe the reason for the rules change
002.02E. Include an address and telephone where the petitioner can be reached during regular work hours; and
002.02F. Be signed by:
002.02F(1). The petitioner or his or her attorney in which case the attorney shall also state his or her address and telephone number;
002.02F(2). A duly authorized officer of the petitioner, if petitioner is a corporation or other legal entity.
003 Petition Consideration and Disposition .
003.01. Within sixty (60) days after submission of a petition, the agency shall:
003.01A. Deny the petition in writing, stating its reasons therefor;
003.01B. Initiate rulemaking or regulationmaking proceedings in accordance with the Administrative Procedure Act;
003.01C. If otherwise lawful, adopt a rule or regulation.
History
- Effective 1995-08-21
Chapter 11 Model Regulations and Procedures Governing Agency Declaratory Orders
Neb. Admin. Code tit. 237, ch. 11 Model Regulations and Procedures Governing Agency Declaratory Orders {#sec-237-nac-11 omnilex-key=us-ne-regs-official--title-237--237 NAC 11}
001 General Information
001.01 Application of these Model Rules. Pursuant to Neb. Laws 1994, LB 446, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency’s explanatory statement the reasons why the relevant portions of the Attorney General's model rules are impracticable under the circumstances.
001.02 Scope of this Chapter. This chapter pertains solely to the procedures to be used by any person or entity seeking issuance of a declaratory order by an agency.
001.03 Related Regulations. In addition to this Chapter, related regulations pertaining to administrative procedures before agencies are: 53 NAC Chapter 1, Model Procedures for Negotiated Rulemaking, 53 NAC Chapter 2, Petitioning for Rulemaking, and 53 NAC Chapter 4, Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency.
002 Definitions . As used in this chapter:
002.01 Agency shall mean the board, commission, department, officer, division, or other administrative office or unit of the state government as defined in Neb. Rev. Stat. § 84-901(1).
002.02 Agency director shall mean the director or governing body, whichever is applicable, of the agency.
002.03 Argument shall mean the oral statement of the petitioner or any other party which explains his or her view of the facts and issue to be decided, the law applicable to the question presented, and the reasoning that connects the facts and law.
002.04 Contested case shall mean a proceeding before the agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after hearing before the agency.
002.05 Declaratory order proceeding shall mean a proceeding initiated by a petitioner seeking issuance of a binding order by the agency as to the applicability of specified circumstances to a statute, rule, regulation, or order within the primary jurisdiction of the agency.
002.06 Hearing officer shall mean the person or persons conducting a declaratory order proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title.
002.07 Intervenor(s) shall mean persons, political subdivisions, corporations, organizations, or other entities who have or claim to have any interest, legal right, duty, privilege, or immunity, which would be directly affected by the agency’s issuance of a binding declaratory order.
002.08 Necessary party shall mean a person who or an entity which has a specific interest in the applicability of the statute, rule, regulation, or order, as distinguished from a general interest such as may be the concern of the public at large. A necessary party is one which is or would be adversely affected in a legally cognizable way by the uncertainty sought to be resolved.
002.09 Parties shall mean persons, political subdivisions, corporations, organizations, or other entities subject to the jurisdiction of the agency who are involved in a declaratory order proceeding according to the procedures set forth in this chapter.
002.10 Petition shall mean the document filed in accordance with section 003 of this chapter to initiate a declaratory order proceeding.
002.11 Petitioner(s) shall mean a party or parties who have filed a petition with the agency seeking issuance of a declaratory order.
002.12 Pleading shall mean any written petition, answer, or motion used in any declaratory order proceeding before the agency as set forth in this chapter.
003 Petition for Declaratory Order
003.01 Generally. A request for a declaratory order must be made by a petition that meets the requirements of section 003.
003.02 Who May File. Any person may petition the agency for issuance of a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order which is within the primary jurisdiction of the agency.
003.03 When Orders Appropriate. A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the agency. "Applicability" refers to the appropriateness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include:
003.03A A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.
003.03B A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred.
003.03C A declaratory order is not a mechanism for review or appeal of a decision made by the agency in a contested case.
003.03D A declaratory order may not be requested to obtain a declaration by the agency that a statute or regulation is unconstitutional or that a regulation of the agency is invalid.
003.03E A declaratory order may not be issued by the agency that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.
003.04 Form of Petition. A petition for declaratory order shall be in the form of either a pleading or letter which shall contain each of the following:
003.04A A caption, which shall include:
003.04A1 The venue: BEFORE THE [AGENCY], STATE OF NEBRASKA;
003.04A2 A heading specifying the subject matter and the name of the petitioner; and
003.04A3 The name of the pleading: PETITION FOR DECLARATORY ORDER.
003.04B The statements required in subsection 003.05 of this chapter.
003.04C The signature of the petitioner, or when represented by an attorney, the signature of the attorney.
003.04D The name and address of the petitioner, and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.
003.04E Size and Paper. The petition shall be made on white, letter-sized (8-1/2" x 11”) paper.
003.04F Print. The petition shall be legibly typewritten, photostatically reproduced, printed, or handwritten. If handwritten, the petition must be written in ink. Only one side of a page shall contain any writing.
003.04G Attachments. Any documents attached to a petition shall be securely fastened to the pleading and shall meet the requirements of 003.04E and 003.04F and, when possible, be reproduced on 8-1/2" x 11” paper or placed in an 8-1/2" x 11” envelope and clearly marked as an attachment to the petition.
003.05 Contents of Petition. To be considered, the petition shall include the following:
003.05A The name and address of the petitioner;
003.05B The name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the statute, rule, regulation, or order or who may be adversely affected by the issue sought to be resolved by the petitioner.
003.05C The statute, rule, regulation, or order upon which the petitioner seeks issuance of a declaratory order;
003.05D A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;
003.05E All propositions of law or contentions asserted by the petitioner;
003.05F A demand for the relief to which the petitioner alleges entitlement. The petition shall state the petitioner’s position as to how the agency should rule and why the agency should rule in the manner requested; and
003.05G Any documents pertinent to the petition that the petitioner wishes to be considered by the agency.
003.06 The petition shall be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, then the petition shall be subscribed and verified by a duly authorized agent of the petitioning entity.
003.07 Sample Petition. The petitioner may use the sample form of a petition which is attached as "Appendix A” and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of "Appendix A” so long as the requirements of subsections 003.04, 003.05, and 003.06 of this chapter are satisfied.
003.08 Written Consents. The petitioner shall also attach to the petition any written consents obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.
004 Submission and Service of Declaratory Order Petition .
004.01 The original petition for declaratory order shall be filed with the agency director by mail or in person during the agency's normal business hours.
004.02 The petition shall be deemed as filed when it is actually received by the agency. The agency shall date stamp all petitions upon receipt.
004.03 At the same time the petition is filed with the agency, the petitioner shall serve a copy of the petition, by certified mail, return receipt requested, on all necessary parties, including all persons, political subdivisions, corporations, organizations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the agency.
005 Disposition of the Petition .
005.01 Generally. Upon the filing of a petition, the agency director may consider the petition, refer the petition to an appropriate licensing or governing board, or delegate the matter to a designated hearing officer, board, or agency employee to consider the petition and recommend a decision to the agency director. In reviewing the petition, the agency may, in its discretion, do one or more of the following:
005.01A Require that additional information be submitted before the petition will be further considered;
005.01B Require a petitioner to provide notice to persons or entities who may be necessary parties and other persons that a request for a declaratory order has been filed with the agency;
005.01C Schedule a date, time, and location at which the petitioner and any other parties to the proceeding may make an oral presentation on the petition;
005.01D Consider the petition and any attachments without oral presentation.
005.02 Within thirty (30) days after the petition is filed, the agency shall, in writing:
005.02A Issue an order declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or
005.02B Agree to issue an order by a specified time declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or
005.02C Set the matter for specified proceedings as set forth in subsection 005.01 of this Chapter; or
005.02D Decline to issue a declaratory ruling, stating the reasons for the agency’s decision.
005.03 Notwithstanding section 005.02 of this rule, the agency may determine at any time that it will not issue a declaratory order if issuance of an order under the circumstances would be contrary to any provisions of section 009 of this Chapter. The agency shall notify the petitioner and, if applicable, any intervenor or necessary party in writing when the agency determines not to issue a declaratory order.
006 Intervention in Declaratory Order Proceeding .
006.01 Intervention by any person or entity in a declaratory order proceeding shall be allowed when the following requirements are met:
006.01A. A petition for intervention must be submitted in writing to the agency. Copies must be mailed to all parties to the proceeding.
006.01B. The contents of the petition must be as specified in 006.02.
006.01C. The agency must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
006.02 Contents of Petition. The petition for intervention shall be submitted to the agency, in writing, on 8 1/2" x 11” white paper, and shall include each of the following:
006.02A The statute, regulation, rule, or order that may apply to or effect the person, property, entity, or facts at issue in the matter;
006.02B A statement of facts sufficient to show the intervenor's interest;
006.02C A statement of facts which demonstrate that the intervenor’s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the intervenor may intervene pursuant to a provision of law;
006.02D All propositions of law or contentions asserted by the intervenor; and
006.02E A statement of the specific relief requested by the intervenor.
006.03 The agency may, at its discretion, invite any person or entity to file a petition for intervention.
006.04 The agency shall grant a petition for intervention if the requirements of § 006.01 and § 006.02 are satisfied.
006.05 The agency shall deny a petition for intervention upon determining that the interests of justice or the orderly and prompt conduct of the proceedings would be impaired by allowing the intervention.
006.06 The agency's decision to grant or deny a petition for intervention shall be in writing and served upon all parties.
007 Declaratory Order Proceedings .
007.01 Oral Argument, When. Oral argument shall be had only on specific order of the agency. A petitioner, intervenor, necessary party, or the agency may submit a motion for oral argument to the agency director. If opportunity for oral argument is granted, then argument shall be scheduled to be conducted not more than forty-five (45) days after filing of the petition. Petitioner and all other parties or, when represented, their attorneys, shall be served by the agency with a notice of the date, time, and location for oral argument. The agency shall provide each of the parties with notice of the proceeding not less than seven (7) days in advance of the scheduled date. Service shall be made by certified mail, return receipt requested.
007.02 Oral Argument, Procedure. Oral argument will be made before a hearing officer or before any representative of the agency who is authorized to render or to recommend a decision to the agency. The hearing officer or agency representative shall be in control of the proceeding and shall:
007.02A Identify the proceeding and introduce himself or herself and identify each party for the record;
007.02B Hear the oral argument of the petitioner, intervenor, or necessary parties;
007.02C Close the proceedings.
007.03 At the declaratory order proceeding, agency staff shall have the right to present oral argument.
007.04 The hearing officer or representative may impose reasonable time limits on the amount of time allocated to each party for oral argument.
007.05 The parties and agency staff may file briefs in support of their respective positions. The hearing officer may fix the time and order of filing briefs and may direct that briefs be submitted prior to the date of oral argument.
007.06 The oral argument may be conducted either in person or by telephone conference call.
008 Issuance of Declaratory Order .
008.01 The agency shall issue its declaratory order within sixty (60) days of the date on which the petition was filed.
008.02 The declaratory order shall be in writing and shall include the following:
008.02A The names of all parties to the proceeding upon which the order is based;
008.02B The facts upon which the order is based;
008.02C The statute, regulation, rule, or order at issue in the matter;
008.02D The agency’s conclusion as to the applicability of the statute, regulation, rule, or order to the facts;
008.02E The agency’s conclusion as to the legal effect or result of applying the statute, regulation, rule, or order to the facts; and
008.02F The reasons relied upon by the agency to support its conclusions.
008.03 A copy of the declaratory order shall be served upon each party by certified mail, return receipt requested.
008.04 Effect of Declaratory Order. A declaratory order shall have the same status and binding effect as any other order issued in a contested case.
008.05 No Response within 60 Days. If the agency has not issued a declaratory order within sixty (60) days after the petition has been filed, then the petition shall be deemed to have been denied by the agency.
009 Circumstances Under Which Agency will not Issue Declaratory Orders .
009.01 Grounds upon which the agency shall refuse to issue a declaratory order include, but are not limited to, the following:
009.01A The petition requests a declaratory order on a matter that is outside the scope of authority of the agency;
009.01B The petition requests review or appeal of a decision made by the agency in a contested case;
009.01C The petition requests a declaratory order on the effect of past conduct;
009.01D An investigation for purposes of a formal adjudication, a contested case, or a petition to issue, amend, or repeal regulations is pending before the agency involving the petitioner on substantially the same or similar facts or issues raised in the petition;
009.01E The petition seeks a declaration that a statute or rule or regulation is unconstitutional or invalid;
009.01F The issue raised in the petition has been settled by a change in circumstances or other means so as to render moot the need for a declaratory order;
009.01G An order would substantially prejudice the rights of a person or entity who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding;
009.01H An order would not resolve the controversy or uncertainty; or
009.01I The question posed or facts presented are insufficiently specific, overly broad, or are otherwise inappropriate as a basis upon which to decide the matter.
009.02 Grounds upon which the agency may determine to refuse to issue a declaratory order include, but are not limited to, the following:
009.02A Refusal is necessary to assure adequate allocation of agency resources are available for issuing rulings on petitions raising questions of greater urgency or significance;
009.02B The question presented is of such complexity that the agency has had insufficient opportunity or resources to develop a fully matured ruling;
009.02C The petitioner fails to submit any additional information requested by the agency or submits such information after the date established by the agency;
010 Appeal .
A declaratory order is subject to review in the manner provided for review of contested cases by the Administrative Procedure Act, Neb. Rev. Stat. § 84-901 - § 84-920. Specific procedures for appeal are set forth in Neb. Rev. Stat. § 84-917.
History
- Effective 1995-08-21
Chapter 12 Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency
Neb. Admin. Code tit. 237, ch. 12 Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency {#sec-237-nac-12 omnilex-key=us-ne-regs-official--title-237--237 NAC 12}
001. General .
001.01. Application of Model Rules. Pursuant to Neb. Laws 1994, LB 446, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency’s explanatory statement the reasons why the relevant portions of the Attorney General's model rules are impracticable under the circumstances.
001.02 Definitions. The following definitions shall apply as used throughout Chapter 4 of these rules and regulations.
001.02A Agency shall mean each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulations, except the Adjutant General’s office as provided in Chapter 55 of the Nebraska Revised Statutes, the courts including the Nebraska Workers' Compensation Court, the Commission of Industrial Relations, the Legislature and the Secretary of State with respect to the duties imposed by the Administrative Procedure Act.
001.02B Contested case shall mean a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.
001.02C Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Ex parte communication shall not include:
001.02C1. Communications which do not pertain to the merits of a contested case;
001.02C2. Communications required for the disposition of ex parte matters as authorized by law;
001.02C3. Communications in a ratemaking or rulemaking proceeding; and
001.02C4. Communications to which all parties have given consent.
001.02D Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title designation.
001.02E Party means the person by or against whom a contested case is brought or a person allowed to intervene in a contested case.
001.02F Petition means the initial document filed by or with an agency that sets forth a claim and request for agency action.
002 Prohibitions against ex parte communications .
002.01 Prohibitions; when applicable. The prohibitions found in this section shall apply beginning at the time notice for hearing is given. An agency may designate an earlier time, but such earlier time shall be required to be set forth in the agency’s rules of procedure.
002.02 Prohibitions; to whom applicable.
002.02A Parties and public. No party in a contested case or other person outside the agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to an agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
002.02B Persons in decisionmaking roles. No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the agency having an interest in the contested case.
002.02C Investigators. No agency head or employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
002.03 Disclosure of contacts. The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subsections 002.02A through 002.02C shall file in the record of the contested case:
002.03A. All such written communications;
002.03B. Memoranda stating the substance of all such oral communications; and
002.03C. All written responses and memoranda stating the substance of all oral responses to all the ex parte communications.
002.03D. The filing shall be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.
002.03E. Filing and notice of filing provided under subsection 002.03D shall not be considered on the record and reasonable notice for purposes of the definition of ex parte communication.
003 Intervention in a contested case .
003.01. Intervention in a contested case shall be allowed when the following requirements are met:
003.01A. A petition for intervention must be submitted in writing to the hearing officer or designee at least five days before the hearing. Copies must be mailed by the petitioner for intervention to all parties named in the hearing officer's notice of the hearing;
003.01B. The petition must state facts demonstrating that the petitioner’s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and
003.01C. The hearing officer or designee must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
003.02. The hearing officer or designee may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.
003.03. If a petitioner qualifies for intervention, the hearing officer or designee may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Those conditions may include:
003.03A. Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;
003.03B. Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and
003.03C. Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.
003.04. The hearing officer or designee, at least 24 hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order.
003.04A. The hearing officer or designee may modify the order at any time, stating the reasons for the modification.
003.04B. The hearing officer or designee shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.
004 Commencement of a contested case
004.01. The contested case begins with the filing of a petition and request for hearing, if applicable, with the agency. The petition is the initial document filed by or with an agency that sets forth a claim and request for agency action.
004.02. The parties to a contested case shall be the petitioner or person by whom a contested case is brought and the respondent or person against whom a contested case is brought.
004.03. A party may appear on his or her own behalf in a contested case proceeding or may be represented by an attorney or other representative as permitted by law.
004.04. The pleadings in a contested case may include a petition, answer, reply, notice, motion, stipulation, objection or order or other formal written document filed in a proceeding before an agency. Any pleading filed in a contested case shall meet the following requirements:
004.04A. The pleading shall contain a heading specifying the name of the agency and the title or nature of the pleading, shall state material factual allegations and state concisely the action the agency is being requested to take, shall contain the name and address of the petitioner, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney.
004.04A1. Attorneys shall also include their address, telephone number and bar number.
004.04A2. The initial petition shall also contain the name and address of the respondent.
004.04B. All pleadings shall be made on white, letter-sized (8½ x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a pleading must be written in ink.
004.05. All pleadings shall be filed with the agency at its official office. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the agency.
004.06. The agency shall serve a copy of the petition on each respondent listed in the petition personally or by first-class or certified mail. Written proof of such service shall be filed with the agency. Each respondent who chooses to file a responsive pleading must do so within 20 days from the date of personal service or the date of agency mailing of the petition.
004.07. All pleadings subsequent to the initial petition shall be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service shall be made personally or by first-class or certified mail. Written proof of such service shall be filed with the agency.
004.08. Unless state law provides that a hearing is not required, a hearing date shall be set by the agency in accordance with statutory requirements. A written notice of the time and place of hearing and the name of the hearing officer, if known, shall be served by the agency upon all attorneys of record or other representatives of record and upon all unrepresented parties. The notice must include a proof of such service and will be filed with the agency.
004.09. In computing time prescribed or allowed by chapter 12 of these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or state holiday, the period shall include the next working day.
005 Hearing officer; criteria
005.01. An agency may be authorized by law to delegate to a hearing officer other than the agency head or governing board the functions of conducting a prehearing conference and/or a hearing and submitting a recommended decision to the agency.
005.02. A person who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding except as provided in subsection 005.04.
005.03. A person who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or advise a hearing officer in the same proceeding except as provided in subsection 005.04.
005.04. If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a hearing officer in the preparation of orders.
005.05. A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as hearing officer or assist or advise a hearing officer in the same proceeding.
005.06. A person may serve as hearing officer at successive stages of the same contested case.
006 Prehearing Procedures .
006.01 Prehearing conferences and orders. A hearing officer designated to conduct a hearing may determine, subject to the agency’s rules and regulations, whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
006.01A. If a prehearing conference is conducted:
006.01A1. The hearing officer shall promptly notify the agency of the determination that a prehearing conference will be conducted. The agency may assign another hearing officer for the prehearing conference; and
006.01A2. The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The agency shall give notice to other persons entitled to notice.
006.01A3. The notice referred to in subsection 006.01A2 shall include the following:
006.01A3(a). The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;
006.01A3(b). The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency;
006.01A3(c). The official file or other reference number, the name of the proceeding, and a general description of the subject matter;
006.01A3(d). A statement of the time, place, and nature of the prehearing conference;
006.01A3(e). A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;
006.01A3(f). The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;
006.01A3(g). A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and
006.01A3(h). Any other matters that the hearing officer considers desirable to expedite the proceedings.
006.01B. The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matter as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.
006.01C. The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.
006.02. Discovery in contested cases.
006.02A. The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.
006.02B. Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:
006.02B1. Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition;
006.02B2. State the reasons supporting the motion;
006.02B3. Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and
006.02B4. Be filed with the agency. The moving party must serve copies of all such motions to all parties to the contested case.
006.02C. Other than is provided in subsection 006.02B4 above, discovery materials need not be filed with the agency.
006.03. Continuances. The hearing officer may, in his or her discretion, grant extensions of time or continuances of hearings upon the hearing officer’s own motion or at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.
006.03A. Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:
006.03A1. Illness of the party, legal counsel or witness;
006.03A2. A change in legal representation; or
006.03A3. Settlement negotiations are underway.
006.04. Amendments.
006.04A. A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a petitioner must request permission to amend from the hearing officer.
006.04B. A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.
006.05. Informal Disposition. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
007 Conducting a contested case hearing .
007.01 Order. At the discretion of the hearing officer, the hearing may be conducted in the following order:
007.01A. The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.
007.01B. Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.
007.01C. Presentation of evidence.
007.01C1. Evidence will be received in the following order:
007.01C1(a). Evidence is presented by the petitioner;
007.01C1(b). Evidence is presented by the respondent;
007.01C1(c). Rebuttal evidence is presented by the petitioner; and
007.01C1(d). Surrebuttal evidence is presented by the respondent.
007.01C2. With regard to each witness who testifies, the following examination may be conducted:
007.01C2(a). Direct examination conducted by the party who calls the witness;
007.01C2(b). Cross-examination by the opposing party;
007.01C2(c). Redirect examination by the party who called the witness; and
007.01C2(d). Recross-examination by the opposing party.
007.01D. After the evidence is presented, each party may have opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.
007.02. Evidence.
007.02A. In contested cases an agency or hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.
007.02B. Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefore. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing.
007.02C. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.
007.02D. All evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.
007.02E. A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.
007.02F. An agency shall give effect to the rules of privilege recognized by law.
007.02G. An agency may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency.
007.02G1. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.
007.02G2. Parties shall be afforded an opportunity to contest facts so noticed.
007.02G3. The record shall contain a written record of everything officially noticed.
007.02H. An agency may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.
007.03. Conducting the hearing by electronic means. The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.
007.04. Official record.
007.04A. The agency shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation.
007.04B. An agency shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.
007.04C. The agency record shall consist only of the following:
007.04C1. Notices of all proceedings;
007.04C2. Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;
007.04C3. The record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and
007.04C4. The final order.
007.04D. As provided in 53 NAC 4 Section 002.03 the hearing officer or agency head, or employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.
007.04E. Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof.
007.05. Costs. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.
008. Decision and order in a contested case .
008.01. Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.
008.02. The decision and order should include:
008.02A. The name of the agency and name of the proceeding;
008.02B. The time and place of the hearing;
008.02C. The names of all parties or their attorneys who entered an appearance at the hearing;
008.02D. The findings of fact consisting of a concise statement of the conclusions upon each contested issue of fact;
008.02E. The conclusions of law consisting of the applications of the controlling law to the facts found and the legal results arising therefrom; and
008.02F. The order consisting of the action taken by the agency as a result of the facts found and the legal conclusions arising therefrom.
008.03. Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party or his or her attorney of record.
009. Appeals .
009.01. Any person aggrieved by a final decision in a contested case is entitled to judicial review under the Administrative Procedure Act or to resort to such other means of review as may be provided by law.
009.02. Parties desiring to appeal an agency decision must file a petition for review in the district court of the county where the agency action is taken within thirty days after the service of the final decision by the agency. The thirty day period for appeal commences to run from the date of mailing of the notice of order and decision to the parties or their attorneys of record. Service of the petition and summons must be made in accordance with Nebraska law.
009.03. Unless otherwise provided by statute, the procedures of Neb. Rev. Stat. § 84-917 govern the procedure for taking an appeal.
History
- Effective 1995-08-21
Chapter 13 Farm Wineries/Craft Breweries/Micro Distilleries
Neb. Admin. Code tit. 237, ch. 13 Farm Wineries/Craft Breweries/Micro Distilleries {#sec-237-nac-13 omnilex-key=us-ne-regs-official--title-237--237 NAC 13}
01 Waiver of 60%/40%
01.01 The Commission may grant an exemption under 53-123.13 for a natural disaster only.
01.02 Agricultural product under 53-103(32) shall mean any grapes, fruit, berries or honey whether in whole cluster, whole berry, crushed, uncrushed or pressed to juice form, liquid or frozen, as long as the product has not been altered or added to in any way (other than skin removal). “Agricultural product” shall not mean any product that already contains alcohol, produced from outside this state.
01.03 The 60% limitation will be calculated based on the number of gallons of finished wine produced from Agricultural Products grown in this state. The remaining 40% will be based on the number of gallons of finished wine produced from Agricultural Products imported from outside the state. The licensee may import an agriculture product from outside the state of Nebraska during a calendar year in an amount needed to produce a quantity of finished wine not exceeding 40% of the finished wine produced by the licensee from the same Nebraska-grown agricultural product during the prior calendar year.
02 Signs, Advertising
02.01 Any bottle(s) containing more than forty percent of products from outside the state shall not be labeled to imply the product is a Nebraska product.
03 Record Keeping/Documentation
03.01 Production records/documentation shall be kept on each product to include the amounts and type of raw material used, source of raw materials and amount produced. These records shall be maintained for a period of not less than three years and open to audit/inspection by any agent or employee of the Nebraska Liquor Control Commission.
04 Branch Outlet/Sampling
04.01 A farm winery desiring the branch outlet allowed for sampling in 53-123.11(d) need not apply for a separate license but shall seek prior approval of the location from the Commission and the local governing body.
05 Place of Fermentation
05.01 The fermentation of Agricultural Products shall take place on the licensed premises. This does not include any natural fermentation of product being shipped into the farm winery under 001.03.
06 Satellite Locations :
Craft Breweries, a holder of a Class L Craft Brewery liquor license under Neb. Rev. Stat. 53-123.14, a holder of a manufacturing license under Neb. Rev. Stat. 53-123.01(2), a holder of a Class Z Micro Distillery license under Neb. Rev. Stat. 53-123.16, and a holder of a Class Y Farm Winery License under Neb. Rev. Stat. 53-123.11, may hold additional retail licensed locations as authorized by Neb. Rev. Stat. 53-123.14 and 53-123.01(2), hereinafter called Satellite Locations. A Satellite Location must be licensed for the sale of alcohol at retail and conform to all other requirements for a retail license. To qualify as a Satellite Location, it must be wholly owned in common by the holder of the Class L brewery license under Neb. Rev. Stat. 53-123.14, the holder of the manufacturing license under Neb. Rev. Stat. 53-123.01(2), the holder of a Class Z Micro Distillery license under Neb. Rev. Stat. 53-123.16, or a holder of a Class Y Farm Winery License under Neb. Rev. Stat 53-123.11.Such Class L brewery licensee under Neb. Rev. Stat. 53- 123.14, manufacturing licensee under Neb. Rev. Stat. 53-123.01(2), Class Z Micro Distillery license under Neb. Rev. Stat. 53- 123.16, or Farm Winery License under Neb. Rev. Stat. 53-123.11 may transfer product produced at the licensed brewery to its Satellite Locations without the use of a Nebraska Wholesaler. However, proper documentation of all quantities of transfers shall be maintained by such Class L brewery licensee under Neb. Rev. Stat. 53-123.14, manufacturing licensee under Neb. Rev. Stat. 53-123.01(2), Class Z Micro Distillery license, under Neb. Rev. Stat. 53-123.16 or Farm Winery License under Neb. Rev. Stat. 53-123.11.
07 Farm Winery/Craft Brewery/Micro Distillery Off – Site Storage Facility
07.01 A farm winery, craft brewery, and micro distillery licensee desiring an off-site storage facility shall seek prior approval from the Commission. The written request must include but not limited to the following:
- Address of the proposed facility;
- Dimensions of the facility;
- Security measures in place.
07.02 Off-site storage facility requirements:
- Copy of license;
- Perpetual inventory record of finished products;
- No consumption or tasting allowed on or about the facility:
- No alcoholic beverages other than those produced by licensee can be stored in the facility.
08 Distribution
08.01 Farm wineries, Craft breweries, and Micro distilleries may wholesale to licensed retailers on and off site.
08.02 Farm wineries, Craft breweries, and Micro distilleries may ship by common carrier to licensed wholesalers.
08.03 Farm Wineries
- Farm Wineries may self-distribute wine if the overall production for the farm winery is less than 50,000 gallons per year.
- Only distribute products produced onsite of the farm winery.
- May not grant credit for sale of self-distributed product in excess of 30 days.
- Dock sales are permitted.
- Farm wineries with annual production not exceeding 30,000 gallons in the prior calendar year may also ship wines by common carrier to licensed retailers, and to consumers.
08.04 Craft Breweries
- Craft breweries may not exceed 250 barrels of self-distributed product.
- All sales to retailers can only be made to retailers in areas where the craft brewery has no territory agreement.
- Deliveries must be made with vehicles owned or leased by the brewery.
- Only employees employed by the single craft brewery may deliver beer.
- Only distributes beer manufactured at the craft brewery’s licensed location.
- Collect payment for beer from retailers as laid out in the Acceptable Means of Payment rule.
- Payment for beer must be made upon delivery.
- Dock sales are permitted.
08.05 Micro Distilleries
- Micro distilleries may not exceed 500 gallons of self-distributed product.
- Deliveries must be made by an employee employed by the microdistillery.
- Only distributes products manufactured on the licensed premise.
- May not grant credit for sale of self-distributed product in excess of 30 days.
- Dock sales are permitted.
History
- Effective 2024-06-02
Chapter 14 Minimum Standards for Alcohol Server Training Programs
Neb. Admin. Code tit. 237, ch. 14 Minimum Standards for Alcohol Server Training Programs {#sec-237-nac-14 omnilex-key=us-ne-regs-official--title-237--237 NAC 14}
001 Minimum Standards for Alcohol Server Training Programs
Certified alcohol server training courses, regardless of delivery format, shall incorporate the following content:
001.01 Legal Information
001.01A Responsibilities of licensees and their employees as they pertain to selling alcohol
001.01B Penalties and consequences associated with irresponsible alcohol sale or service
001.01C Delineation of what constitutes reasonable efforts to ensure responsible alcohol sales, including 3rd party sales
001.01D Proper ID Checking Techniques including but not limited to acceptable forms of ID, what to check on an ID, and underage warning signs
001.01E Documentary proof of age book and its correct use
001.01F Nebraska specific information such as age to consume, legal BAC limit, legal hours of sale, illegal activities, liability laws and penalties
001.02 Alcohol Information
001.02A How alcohol affects people including but not limited to physiological effects of alcohol, visible signs of intoxication, factors influencing rate of intoxication, blood alcohol content, and tolerance.
001.02B Types and quantities of alcohol including but not limited to measured drinks, alcohol purity/concentration, and drink equivalencies.
001.03 Intervention Information
001.03A Guidelines for ensuring responsible alcohol sales including, but not limited to, safe customer service, prevention of confrontation and avoiding the escalation of a situation.
001.04 Delivery Standards of Program
001.04A The course must adhere to standard, accepted instructional design techniques and methodology, including presentation, application and feedback. Presentations may include, use of interactive computer programs, video, live training and role playing. A minimum of two hours is required for training.
001.04B The program must administer a comprehensive exam to test the participant’s understanding and retention of the content. A passing grade shall not be less than 70%, testing shall be done in the presence of the certified trainer. Trainees shall not have access to any written or video material nor have any discussions with another person during the exam, unless the instructor authorizes the use of an interpreter. Questions by a student to clarify test content are permitted.
001.04C Exam records must be verified by an independent third party to prevent falsification of records.
001.04D Written documentation of program attendance by/for each attendee must be provided.
001.04E If presented by trainers, those individuals must meet minimum standards for qualifications as presented in the application for certification.
001.05 Program Trainers
Any program utilizing a trainer shall submit their requirement for training at the time it applies to be a certified program. Such requirement shall be reviewed by the Commission prior to becoming a certified program. Such requirements shall include minimum initial and ongoing training criteria and methods to update the course materials.
002 MANAGEMENT TRAINING PROGRAM
002.01 Programs intended to be training for management and supervisory staff in shall contain the same content as a server training program and in addition shall contain:
002.01A Methods for conducting a risk assessment of their establishment
002.01B Developing policies and practices for responsible beverage service
002.01C Procedures specifying when to contact law enforcement
002.01D Recommendations for establishment of ongoing training for staff
003 APPLICATION TO BE A CERTIFIED PROGRAM
003.01 Any program wishing to become certified shall submit to the Nebraska Liquor Control Commission the following:
a) A copy of all training materials to be used in the course.
b) A listing of all approved trainers of that program located within Nebraska.
c) An explanation of updating the program in a timely manner
d) The methods used to become/removed as a trainer of the program.
e) Certificate of Completion that is issued for successful completion of the course.
Such applications shall be reviewed by the Commission’s Executive Director or his designee and the Nebraska State Patrol Coordinator for Alcohol Compliance. If necessary, a hearing before the Executive Director may be ordered to allow any questions or concerns of the Commission to be addressed by the applicant.
If the course is found to be insufficient after review, the applicant shall be informed of any deficiencies and allowed to revise its proposal to comply.
If the application meets the minimum requirements of the Commission the applicant shall be notified in writing by the Commission.
004 TERM OF CERTIFICATION
004.01 Certification of servers/managers shall be valid for a maximum of three years. Recertification shall consist of the same elements of any other program approved by the Commission.
Certified trainers shall provide to the Commission for each individual wishing to be documented as a certified server/manger the following:
004.01A Documentation of the date of the trainee’s attendance
004.01B Documentation of a satisfactory test score
004.01C A fee of fifteen dollars ($15.00) per trainee. This fee shall be used to maintain a list of certified servers and managers and to support the Commission’s own online program.
History
- Effective 2018-11-24
Chapter 15 Requirements for Cigar Shop Certification
Neb. Admin. Code tit. 237, ch. 15 Requirements for Cigar Shop Certification {#sec-237-nac-15 omnilex-key=us-ne-regs-official--title-237--237 NAC 15}
001 Cigar Shop
001.01 Cigar shop means an establishment operated by a holder of a Class C liquor license which:
001.01A Does not sell food.
001.01B Annually receives ten percent or more of its gross revenues from the sale of cigars and other tobacco products and tobacco-related products.
001.01B1 Cigar is defined as any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco, other than any roll of tobacco which is a cigarette as defined in Neb. Rev. Stat. § 69-2702.
001.01B2 Other tobacco products shall include, any Tobacco, other than cigarettes, intended for Consumption by smoking, chewing, or snuff.
001.01B3 Tobacco related products shall include, lighters, and lighter supplies (fluid, flints, wicks, etc.) cigar humidors, cigar cutters, cigar punches, tobacco pipes, tobacco jars, tobacco pouches, ashtrays, and other non-cigarette related smoking paraphernalia.
001.01C Has a walk-in humidor on the licensed premise. A walk-in humidor shall mean a separate room or enclosure with a door that has the necessary mechanical devices to maintain the humidity and temperature at the appropriate level to store and display cigars. The room shall be large enough to allow two or more adults the ability to enter the humidor and to retail display the cigars and other tobacco products.
001.01D Does not permit the smoking of cigarettes.
001.01E A sign shall be posted on all entrances to the business, on the outside of each door, in a conspicuous location slightly above or next to the door with the following statement: “SMOKING OF CIGARS AND PIPES IS ALLOWED INSIDE THIS BUSINESS. SMOKING OF CIGARETTES IS NOT ALLOWED.”
002 Application for Cigar Shop Certification
002.01 Any one desiring a cigar shop certification shall file an application for such on a form adopted by the Commission.
002.02 Such applicant shall either be a current holder of a Class C Liquor License or have an application for a Class C Liquor License on file with the Commission.
003 Enforcement
003.01 The holder of a cigar shop certification shall file quarterly reports with the Commission showing revenue received from the sale of cigars or other tobacco related products other than cigarettes on forms approved by the Commission. Such reporting dates shall be January 31st, April 30th, July 31st, and October 31st. Tax reports must be filed within 30 days from the reporting date.
003.02 After at least one complete year of successful filings, the reports shall be filed on an annual basis. Said annual reports must be filed on or before October 31st.
003.03 The holder of a cigar shop certification shall be subject to unannounced audits and or inspections by the Commission and failure to comply with said audit or inspection may result in suspension, cancellation or revocation of the liquor license as well as termination of the cigar shop certification.
003.04 Failure to comply with any provisions of these rules or falsification of any of the required documents may result in the suspension, cancellation or revocation of the liquor license of the certification holder. The Certification may also be terminated.
History
- Effective 2018-11-24
Chapter 16 Requirements for Wholesalers and Shippers
Neb. Admin. Code tit. 237, ch. 16 Requirements for Wholesalers and Shippers {#sec-237-nac-16 omnilex-key=us-ne-regs-official--title-237--237 NAC 16}
001 Mandatory ACH Rule
001.01 All industry members or licensees other than a holder of a S1 (Direct Shipper) License under the Nebraska Liquor Control Act required to submit state excise taxes levied on alcoholic beverages as set forth in statutes 53-160 & 53-164 shall remit by means of automated clearinghouse (ACH) credit. The Commission will provide all necessary forms and information to licensees to enable the process. Under any unforeseen circumstances, the Commission reserves the right to make any exceptions to the ACH requirements.
History
- Effective 2012-08-28
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.