(A) (1) Notice. Notice of a hearing held pursuant to Neb. RS 53-134 shall be given to the applicant by the Municipal Clerk and shall contain the date, time and location of the hearing. Two or more proceedings which are legally or factually related may be heard and considered together unless any party thereto makes a showing sufficient to satisfy the governing body that prejudice would result therefrom.
(2) Procedure.
(a) Hearings will be informal and conducted by the City Attorney and/or Deputy City Attorney. The intent is an inquiry into the facts, not an adversarial action. Each witness may present his or her testimony in narrative fashion or by question and answer.
(b) The governing body or the applicant may order the hearing to be recorded by the Clerk, at the expense of the applicant(s).
(c) The governing body and its representatives shall not be bound by the strict rules of evidence and shall have full authority to control the procedures of the hearing including the admission or exclusion of testimony or other evidence. The governing body may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent individuals. The Municipal Attorney may limit testimony where it appears incompetent, irrelevant or unduly repetitious. If there is opposition to any application and such opposition desires the opportunity to present arguments and to cross-examine the applicant and any witnesses in favor of such application, he or she shall choose a spokesperson to perform such function who shall notify the Municipal Attorney of his or her representation prior to the start of the hearing.
(d) The order of the proceeding is as follows:
1. Exhibits will be marked in advance by the Clerk and presented to the Municipal Attorney during the presentation;
2. Presentation of evidence, witnesses and arguments by applicant;
3. Testimony of any other citizens in favor of such proposed license;
4. Examination of applicant, witnesses or citizens by City Attorney, City Administrator, governing body or duly appointed agent;
5. Cross-examination of applicant, witnesses or citizens by spokesperson for opposition, if any;
6. Presentation of evidence and witnesses by opposition;
7. Testimony of any other citizens in opposition to such proposed license;
8. Presentation of evidence by municipality and law enforcement personnel;
9. Cross-examination by applicant;
10. Rebuttal evidence by both parties and by municipality administration and agent; and
11. Summation by applicant and opposition spokesperson, if any.
(e) In all cases, the burden of proof and persuasion shall be on the party filing the application.
(f) All witnesses shall be sworn.
(g) The governing body may make further inquiry and investigation following the hearing.
(h) The governing body or the applicant may order the hearing to be recorded by the Clerk, at the expense of the applicant(s).
(2005 Code, § 10-123)
(B) (1) The City Council shall consider the following licensing standards and criteria at the hearing and an evaluation of any applicant for a retail alcoholic liquor license, for the upgrading of a license to sell alcoholic liquor, or for the expansion or change in location of the premises, and for the purpose of formulating a recommendation from the governing body to the state’s Liquor Control Commission in accordance with the state’s Liquor Control Act, being Neb. RS 53-101 to 53-1,122:
(a) The adequacy of existing law enforcement resources and services in the area;
(b) The recommendation of the Police Department or any other law enforcement agency;
(c) Existing motor vehicle and pedestrian traffic flow in the vicinity of the proposed licensed premises, potential traffic and parking problems and the proximity and availability of on-street and off-street parking;
(d) Zoning restrictions and the municipality’s zoning and land-use policies;
(e) Sanitation or sanitary conditions on or about the proposed licensed premises;
(f) The existence of a citizen’s protest and any other evidence in support of or in opposition to the application;
(g) The existing population, and projected growth, both municipality-wide and within the area to be served;
(h) The existing liquor licenses, the class of such license and the distance and times of travel to such licenses;
(i) The nature and needs of the neighborhood or community where the proposed premises are located as well as its projected growth;
(j) Whether the type of business or activity proposed to be operated in conjunction with the proposed license is and will be consistent with the public interest;
(k) Whether the applicant can ensure that all alcoholic beverages, including beer and wine, will be handled by persons in accordance with Neb. RS. 53-102 of the state’s Liquor Control Act, being Neb. RS 53-101 to 53-1,122;
(l) Whether the applicant has taken every precaution to protect against the possibility of shoplifting of alcoholic beverages, which must be displayed, kept and sold from an area which is secured to the greatest extent possible;
(m) Whether the applicant is fit, willing and able to properly provide the service proposed in conformance with all provisions, requirements, needs and regulations provided for in the state’s Liquor Control Act, being Neb. RS 53-101 to 53-1,122;
(n) Whether the applicant has demonstrated that the type of management and control exercised over the licensed premises will be sufficient to ensure that the licensee can conform to all the provisions, requirements, rules and regulations provided for in the state’s Liquor Control Act, being Neb. RS 53-101 to 53-1,122;
(o) The background information of the applicants established by information contained in the public records of the state’s Liquor Control Commission and investigations conducted by the Police Department;
(p) Past instances of discrimination involving the applicant(s) as evidenced by findings of fact before any administrative board or agency of the municipality or any other governmental board or agency of the municipality or any other governmental unit or any court of law;
(q) Past compliance with state laws and liquor regulations and municipal ordinances and regulations;
(r) If the application is for an on-sale license, whether it is adjunct to a legitimate food service operation as evidenced by percent of gross income allocated to food and liquor and the type and extent of kitchen facilities;
(s) Whether the applicant or its representatives has suppressed any fact or provided any non-factual information to the local governing body or its employees in regard to the license application or liquor investigations. The applicant is required to cooperate in providing a full disclosure to the investigating agents of the municipality;
(t) Whether the application will provide an improvement to the neighborhood, a betterment to the municipality or a true increase in service to the public at large;
(u) Proximity of and impact on schools, hospitals, libraries and public institutions;
(v) Whether the type of entertainment to be offered, if any, will be appropriate and non- disruptive to the neighborhood where the premises are located and to the community at large;
(w) Whether the application is for a business, and the sole purpose for which is the sale of dispensing of liquor, or when the sale or dispensing of liquor is a substantial integral part of the business, and not just incidental thereto;
(x) Applications for Class B, C and D licenses (as defined by Neb. RS 53-124) must be for premises which are separate and distinct from any other business activity. Premises shall be deemed separate and distinct only when located in a building which is not adjacent to any other building, or when located within the same building, they shall be so separate by walls (floor to ceiling), that access cannot be had directly from the area of alcoholic liquor sales to any other business activity by mean of doors or other openings; provided, nothing herein shall prevent the construction or maintenance of doors that are used by employees; further, any non-conforming premises in existence on the effective date of this article may be continued for the life of the license. Such non-conforming premises may not be enlarged, extended or restored after damage during interim. For the purposes of this section,
OTHER BUSINESS ACTIVITY shall mean the sale or display of any food, produce, mercantile product, item or service other than keeping or selling of alcoholic liquors at retail for consumption off the premises and the sale or display of ice, drink mix, tobacco, cups or carbonated beverages;
(y) Whether or not applicant has ever forfeited bond to appear in court to answer charges of having committed a felony, or charges of having violated any law or ordinance enacted in the interest of good morals and decency, or has been convicted of violating of forfeiting bond to appear in court and answer charges for violating any law or ordinance relating to alcoholic liquors;
(z) The City Council may fix certain requirements and prescribe certain conditions upon a license when it is granted or permitted to continue in full force and effect whether such requirements or conditions are imposed at a formal hearing, by a written notice, or in a written stipulation, and such requirements or conditions shall be deemed to be a part of the license as though fully endorsed therein; and any violation or breach of any requirement or condition is prohibited; and
(aa) Other information and data that may reasonably be considered pertinent to the issuance of the license.
(2) The preceding standards are not necessarily of equal value that can be computed in a mathematical formula. Rather, they are standards which can be weighed and cumulated positively and negatively. The burden of proof and persuasion shall be on the party filing the application. When applicable, the term “applicants”, as used herein, is synonymous with “license”.
(2005 Code, § 10-124)