Sec. 3-1.  Definitions. 

 

Unless the context otherwise requires, the words and phrases herein defined are used in this chapter in the sense given them in the following definitions:

 

Alcohol shall mean the product of distillation of any fer­mented liquor, whether rectified or diluted, whatever may be the origin thereof, and the term includes synthetic ethyl alcohol.  It does not include denatured alcohol or wood alcohol.

 

Alcoholic liquors shall include alcohol, spirits, wine, beer, and every other liquid or solid, patented or not, containing alcohol, spirits, wine or beer and capable of being consumed as a beverage by a human being.  The provisions of this chapter shall not apply to:

 

(1)        Alcohol used in the manufacture of denatured alcohol pro­duced in accordance with acts of Congress and regulations promulgated thereunder;

 

(2)        Flavoring extracts, syrups, medicinal, mechanical, scien­tific, culinary, or toilet preparations, or food products unfit for beverage purposes, but the provisions of this chapter shall not be construed to exclude or not apply to alcoholic liquors used in the manufacture, preparation, or compound­ing of such products;

 

(3)        Wine intended for use and used by any church or religious organization for sacramental purposes; or,

 

(4)        Any beverage with less than five-tenths of one (0.5) percent of alcohol by volume.

 

Beer shall mean a beverage obtained by alcoholic fermentation of an infusion or concoction of barley, or other grain, malt, hops in water and shall include, among other things, beer, ale, stout, lager beer, porter, and the like.  Beer shall not include any bever­age with less than five-tenths of one (0.5) percent of alcohol by volume.

 

Cancel shall mean to discontinue all rights and privileges of a liquor license.

 

Club shall mean a corporation organized under the laws of this state, nor for pecuniary profit, solely for the promo­tion of some common object other than the sale or consumption of alcoholic liquors, kept, used and maintained by its members through the payment of annual dues, and owning, hiring or leasing a building or space in a building, of such extent and character as may be suitable and adequate for the reasonable and comfortable use and accommodation of its members and their guests and provided with suitable and adequate kitchen and dining room space and equipment and maintaining a suf­ficient number of servants and employees for cooking, pre­paring, and serving food and meals for its members and their guests; provided, that such club files with the clerk at the time of its application for a license under the Nebraska Liquor Control Act two (2) copies of a list of names and residences of its members, and similarly files within ten (10) days of the election of any additional members his name and address; and provided further, that its affairs and manage­ment are conducted by a board of directors, executive com­mittee or similar body chosen by the members at their annual meeting, and that no member or any officer, agent, or em­ployee of the club is paid, or directly or indirectly receives, in the form of salary or other compensation, any profits from the distribution or sale of alcoholic liquor to the club, or the members of the club or its guests introduced by members, and that no member, officer, agent, or employee of the club is paid, or directly or indirectly receives, in the form of salary or other compensation any profits from the distribu­tion or sale of alcoholic liquor to the club or the members of the club or the members of the club's guests introduced by members beyond the amount of such salary as may be fixed and voted at any annual meeting by the members or by its board of directors or other governing body out of the general revenue of the club.

 

Commission shall mean the Nebraska Liquor Control Com­mission.

 

Distributor, distributorship, wholesaler, or jobber shall mean the person importing or causing to be imported into the state, or purchasing or causing to be purchased within the state, alcoholic liquors for sale or resale to retailers licensed under the Nebraska Liquor Control Act, whether the business of the distributor, distributorship, wholesaler, or jobber is conducted under the terms of a franchise or any other form of an agreement with a manufacturer or manufacturers, or has caused alcoholic liquors to be imported into the state or purchased in the state from a manufacturer or manufacturers and was licensed to conduct such a business by the commission on May 1, 1970, or has been so licensed since that date.

 

Hotel shall mean every building or other structure kept, used, maintained, advertised and held out to the public to be a place where food is actually served and consumed and sleeping accommodations are offered for adequate pay to travelers and guests, whether transient, permanent or resi­dential, in which twenty-five (25) or more rooms are used for the sleeping accommodations of such guests, and having one or more public dining rooms where meals are served to such guests, such sleeping accommodations and dining rooms being conducted in the same building in connection therewith and such building or structure being provided with adequate and sanitary kitchen and dining room equipment and capacity.

 

Manufacture shall mean to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor, and includes blending but does not include the mixing or other preparation of drinks for serving by those persons authorized and permitted in this chapter to serve drinks for consumption on the premises where sold.

 

Manufacturer shall mean every brewer, fermenter, distiller, rectifier, winemaker, blender, processor, bottler or person who fills or refills an original package and others engaged in brewing, fermenting, distilling, rectifying or bottling alco­holic liquors as herein defined, including a wholly owned affiliate or duly authorized agent for a manufacturer.

 

Minor shall mean an person, male or female, under twenty-one (21) years of age, regardless of marital status.

 

Nonbeverage user shall mean every manufacturer of any of the products set forth and described in subsection (9) of section 53-160 of the Nebraska Liquor Control Act, when the same contains alcohol, and all laboratories and hospitals and sanatoria using alcohol for nonbeverage purposes.

 

Original package shall mean any bottle, flask, jug, can, cask, barrel, keg, hogshead or other receptacle or container, whatsoever, used, corked or capped, sealed and labeled by the manufacturer of alcoholic liquor, to contain and to convey any alcoholic liquor.

 

Restaurant shall mean any public place kept, used, main­tained, advertised and held out to the public as a place where meals are served, and where meals are actually and regularly served, without sleeping accommodations, such space being provided with adequate and sanitary kitchen and dining room equipment and capacity, and having employed therein a suf­ficient number and kind of employees to prepare, cook, and serve suitable food for its guests.

 

Retailer shall mean a person who sells, or offers for sale, alcoholic liquors for use and consumption and not for resale in any form.

 

Revoke shall mean to permanently void and recall all rights and privileges of a liquor license.

 

Sale shall mean any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes all sales made by any person, whether principal, proprietor, agent, servant, or employee.

 

Sell at retail and sale at retail refer to and shall mean sales for use or consumption and not for resale in any form.

 

Spirits shall mean any beverage which contains alcohol obtained by distillation, mixed with water or other substance in solution, and includes brandy, rum, whiskey, gin, or other spirituous liquors and such liquors when rectified, blended or otherwise mixed with alcohol or other substances.

 

Suspend shall mean to cause a temporary interruption of all rights and privileges of a liquor license.

 

To sell includes to solicit or receive an order for, to keep or expose for sale and/or to keep with intent to sell.

 

Wine shall mean any alcoholic beverage obtained by the fer­mentation of the natural contents of fruits or vegetables, contain­ing sugar, including such beverages when fortified by the addi­tion of alcohol or spirits.  Wine shall not include any beverage with less than five-tenths of one (0.5) percent of alcohol by volume. 

 

Source: Code 1962, § 5-15-1; Ord. No. 3598, § 1, 11-7-88

State law reference--Similar provisions, R.R.S. 1943, 53-103.

 

Sec. 3-3.  Unlawful possession.

 

(a)   It shall be unlawful for any person to have possession of any alcoholic liquors which shall have been acquired otherwise than from a licensee duly licensed to sell same to such person under the provisions of the Nebraska Liquor Control Act.

 

(b)   Nothing herein contained shall prevent:

 

(1)       The possession and transportation of alcoholic liquor for the personal use of the possessor, his family and guests;

 

(2)       The making of wine, cider or other alcoholic liquor by a person from fruits, vegetables or grains, or the product thereof, by simple fermentation and without distillation, if it is made solely for the use of the maker, his or her family and guests;

 

(3)       Any duly licensed practicing physician or dentist from pos­sessing or using alcoholic liquor in the strict practice of his profession, or any hospital or other institution caring for the sick and diseased persons, from possessing and using alcoholic liquor for the treatment of bona fide patients of such hospital or other institution, or any drug store em­ploying a licensed pharmacist from possessing or using alcoholic liquors in the compounding of prescriptions of duly licensed physicians;

 

(4)       The possession and dispensation of wine by an authorized representative of any church for the purpose of conducting any bona fide rite or religious ceremony conducted by such church;

 

(5)       Persons who are sixteen (16) years old or older from car­rying beer from grocery stores when they are accompanied by a person not a minor;

 

(6)       Persons who are sixteen (16) years old or older from han­dling beer containers and beer in the course of their em­ployment in grocery stores;

 

(7)       Persons who are sixteen (16) years or older from removing and disposing of alcoholic liquor containers for the conve­nience of the employer and customers in the course of their employment as waiters, waitresses, or busboys, by any res­taurant, club, hotel, or similar organization;

 

(8)       Persons who are nineteen (19) years or older from serving or selling liquor in the course of their employment. 

 

Source: Code 1962, § 5-15-12; Ord. No. 3654, § 1, 6-19-89; Ord. No. 4026, § 1, 5-16-94

State law reference--Similar provisions, R.R.S. 1943, 53-175, 53-102.

 

Sec. 3-4.  Minors and incompetents.

 

(a)   No person shall sell or give any alcoholic liquor to, or procure any such liquor for, or permit the sale or gift of any liquor to, or the procuring of any liquor for, any minor or any person who is mentally incompetent or any person who is physi­cally or mentally incapacitated due to the consumption of such liquor.  No minor shall purchase, attempt to purchase or other­wise procure, consume or have in his possession any alcoholic liquor, except that a minor may possess or have physical control of alcoholic liquor in his permanent place of residence.  No minor shall misrepresent his age for the purpose of obtaining alcoholic liquor.

 

(b)   No licensee under the Nebraska Liquor Control Act shall allow or permit any minor to loiter on the premises of such lic­ensee. 

 

Source: Code 1962, §§ 5-15-3, 6-1-7; Ord. No. 3654, § 2, 6-19-89

Sec. 3-5.  Hours of sale.

 

(a)  Consumption off the premises.

 

            Alcoholic liquor, including beer and wine, may be sold for consumption off the premises where sold, on any day from 6:00 a.m. until 2:00 a.m. the following day.

 

(b)  Consumption on the premises.

 

            Alcoholic liquors, including beer and wine for consumption on the premises may be sold at retail or dispensed on any day from 6:00 a.m. until 2:00 a.m. the following day.

 

Source: Code 1962, § 5-15-4; Ord. No. 3001, § 1, 7-20-81; Ord. No. 3032, § 1, 12-21-81; Ord. No. 3140, § 1, 6-20-83; Ord. No. 3254, § 1, 10­1-84; Ord. No. 3654, § 4, 6-19-89; Ord. No. 4505, § 1, 12-18-00; Ord. No. 4544, § 1, 9-4-01; Ord. No. 5104, § 1, 2-1-10; Ord. No. 5515, § 1, 12-4-17; Ord. No. 5646, § 1, 2-18-20;

State law reference--Hours of sale, R.R.S. 1943, 53-179.

 

Sec. 3-13.  Open containers prohibited.

 

(a)   It shall be unlawful for any person to transport any alcoholic liquor in an opened container in a motor vehicle upon any street, highway, alley, road, municipal parking area, public parking area,  or upon property owned by any governmental subdivision, unless the package or container is locked in the rear trunk or rear compartment of the vehicle.  An opened container shall include any package or container where the original seal of the package or container has been broken.

 

(b)   It shall be unlawful for any person to possess any alcoholic liquor in an opened container upon any street, highway, alley, road, municipal parking area, public parking area, or upon property owned by any governmental subdivision.  An opened container shall include any package or container where the original seal of the package or container has been broken.

 

(c)   This section shall not be applicable to the following:

 

(1)    On the grounds of the Elkhorn Lodge located within the boundaries of Ta-Ha-Zouka Park; or

 

(2)    Where open alcoholic containers have been authorized by the governing body having jurisdiction over the affected property; or

 

(3)    Persons who are passengers of, but not drivers of, a limousine or bus being used in a charter or special party service.  Such passengers may possess open alcoholic beverages while such limousine or bus is in a public parking area or on any highway in this state if the (a) driver of the limousine or bus is prohibited from consuming alcoholic liquor and (b) alcoholic liquor is not present in any area that is readily accessible to the driver while in the driver's seat, including any compartments in such area.

 

Source: Ord. No. 4127, § 1, 10-2-95; Ord. No. 5310, § 2, 8-18-14

 

 

Sec. 3-28.  Consideration to be given applicants for liquor licenses.

 

(a)   It is hereby declared to be the policy of the City of Norfolk, Nebraska to adopt the policy of the Nebraska Legislature as set forth in Section 53-101.01 N.R.S. 1943, as the same may from time to time be amended, which is within the authority of the City of Norfolk, Nebraska to exercise as granted by the laws of the State of Nebraska.

 

(b)   The mayor and city council shall only consider the criteria set forth in Section 53-134 (2) N.R.S. 1943, as the same is from time to time amended, regarding the issuance, renewal or revo­cation of all liquor licenses within the City of Norfolk, Nebraska.  Those criteria being:

 

(1)       The adequacy of existing law enforcement resources and services in the area;

 

(2)       The recommendation of the police department or any other law enforcement agency;

 

(3)       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 onstreet and offstreet parking;

 

(4)       Zoning restrictions and the local governing body's zoning and land use policies;

 

(5)       Sanitation or sanitary conditions on or about the proposed licensed premises;

 

(6)       The existence of a citizen's protest and similar evidence in support of or in opposition to the application;

 

(7)       The existing population and projected growth within the jurisdiction of the local governing body and within the area to be served;

 

(8)       The existing liquor licenses, the class of each such license, and the distance and times of travel between establish­ments issued such licenses;

 

(9)       Whether the proposed license would be compatible with the neighborhood or community where the proposed pre­mises are located;

 

(10)      Whether the type of business or activity proposed to be operated or presently operated in conjunction with the pro­posed license is and will be consistent with the public in­terest as declared in Section 53-101.01 N.R.S. 1943, as amended;

 

(11)      Whether the applicant can ensure that all alcoholic bever­ages, including beer and wine, will be handled by persons in accordance with Section 53-102 N.R.S. 1943, as amended;

 

(12)      Whether the applicant has taken every reasonable precau­tion to protect against the possibility of shoplifting of alco­holic liquor, which alcoholic liquor shall be displayed and kept in and sold from an area which is reasonably secured;

 

(13)      Whether the applicant is fit, willing, and able to properly provide the service proposed in conformance with all pro­visions and requirements of and rules and regulations adopted and promulgated pursuant to the Nebraska Liquor Control Act;

 

(14)      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 and requirements of and rules and regulations adopted and promulgated pursuant to the Nebraska Liquor Control Act;

 

(15)      The background information of the applicant established by information contained in the public records of the Ne­braska Liquor Control Commission and investigations con­ducted by law enforcement agencies;

 

(16)      Past evidence of discrimination involving the applicant as evidenced by findings of fact before any administrative board or agency of the local governing body, any other governmental board or agency of the local governing body, any other governmental unit, or any court of law;

 

(17)      Whether the applicant or the applicant's representative suppressed any fact or provided any inaccurate informa­tion to the Nebraska Liquor Control Commission or local governing body in regard to the license application or li­quor investigations.  The applicant shall be required to co­operate in providing a full disclosure to the investigating agents of the local governing body;

 

(18)      Proximity of and impact on schools, hospitals, libraries, parks, and other public institutions;

 

(19)      Whether activities proposed to be conducted on the li­censed premises or in adjacent related outdoor areas will create unreasonable noise or disturbance; and

 

(20)      Compliance with state laws, liquor rules and regulations, municipal ordinance and regulations and whether or not the 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 or has forfeited bond to appear in court to answer charges for violating any law or ordinance relating to al­coholic liquor.

 

Source: Ord.  No. 3093, § 2, 10-4-82; Ord.  No. 3403, § 1, 5-19-86; Ord.  No. 3425, § 1, 9-2-86; Ord.  No. 3654, § 3, 6-19-89

Editor's note--Ord. No. 3654, § 3, adopted June 19, 1989, renumbered § 3-5 as § 3-28 and amended the same to read as herein set out.  See the Code Comparative Table for a detailed analysis of inclusion of Ord.  No. 3654.

 

Sec. 3-29.  Procedure for handling liquor license applications.

 

(a)   Upon receipt of notification by the Nebraska Liquor Control Commission that an application for a liquor license within the City of Norfolk has been applied for, the city clerk shall give notice of hearing as provided for in section 53-134 N.R.S. 1943, as amended, which shall fix the date, time and place of said hearing, and also which shall be sent to applicant by first-class mail along with a copy of this section.  Said notice shall be published in a legal newspaper in or of general circulation in the city, one time not less than seven (7) nor more than fourteen (14) days before the time of the hearing.  Said notice shall include, but not be limited to, a statement that all persons desiring to give evidence before the city council in support of or in protest against the issuance of said license may do so at the time set for the hearing either orally or if by written affidavit, the affidavit is filed with the city clerk at least three (3) business days prior to the date and time set for said hearing.  Said hearing shall be conducted within forty-five (45) days after receipt of the notice from the Nebraska Liquor Control Commission.

 

(b)   The applicant for a liquor license or his, her, their or its representative shall be required to attend the public hearing on the liquor license application.  At the hearing on the application, the mayor, or in his or her absence the president of the city council, shall act as hearing officer.  The hearing officer may limit testimony where it appears incompetent, irrelevant, immaterial or unduly repetitious.

 

(c)   The hearing on the application shall be conducted informally.  The intent of the hearing is to inquire into the factual basis for the application and qualifications of the applicant to meet the criteria set forth in section 3-28 of the Official City Code, not to be an adversary action.  Two (2) or more proceedings which are legally or factually related may be heard and considered together unless any party thereto makes a sufficient showing to the mayor and city council that prejudice would result therefrom.  The hearing may be reported by a certified court reporter, at the request of the city council or applicant, whose cost shall be borne by the applicant.  If the hearing is reported by a certified court reporter, a copy of the transcript of the hearing shall be filed with the city clerk by the court reporter as soon as the same is transcribed, and if said hearing is conducted in conjunction with a regular city council meeting, said copy shall become part of the official minutes of said meeting.  Each witness may present his or her testimony in narrative fashion or by question and answer, and shall state his or her name and address prior to commencing his or her testimony for the record.  The mayor and city council shall not be bound by the strict rules of evidence in the conduct of the hearing and may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons.  The burden of proof and persuasion with regard to the application shall be on the applicant.  The mayor or any member of the city council may question any witness, call witnesses or request information. For purposes of obtaining desired information, the hearing officer may authorize the city administrator, city attorney, and/or other agent to act on his or her behalf.

 

(d)   The order of proceedings for the conduct of the hearing is as follows:

 

(1)        Exhibits, if possible, will be marked in advance of the hearing by the city clerk and presented to the hearing officer during the hearing.

 

(2)        Presentation of evidence, witnesses and argument by the applicant.

 

(3)        Testimony of any other citizens in favor of the application.

 

(4)        Questioning of applicant, witnesses or citizens by city attorney, city administrator, governing body, or duly appointed agent.

 

(5)        Questioning of the applicant, witnesses or citizens in favor of the application by anyone in opposition to the license, if any.

 

(6)        Presentation of evidence, witnesses and argument by citizens in opposition to the application, if any.

 

(7)        Presentation of evidence by the city and law enforcement personnel.

 

(8)        Questioning of citizens in opposition, city personnel or law enforcement personnel by the applicant.

 

(9)        Rebuttal evidence by applicant and opposition, if desired.

 

(10)      Summation by applicant and opposition, if desired.

 

(11)      Close of hearing and consideration by mayor and city council.

 

(e)   After the hearing, the mayor and city council shall cause to be spread at large in the minute record of its proceedings a resolution approving or denying the issuance of such license.  Said approval or denial shall be made within forty-five (45) days of the city clerk's receiving a copy of the license application from the Nebraska Liquor Control Commission.  If the mayor and city council denies the retail or bottle club license within said forty-five-day period, such denial shall be final and shall be subject to review as provided in Sections 25-1901 to 25­-1908 N.R.S. 1943, as amended.  The mayor and city council shall by resolution issue the final order of denial to the applicant or licensee in writing and deliver or mail a copy by first-class mail postage prepaid to the Nebraska Liquor Control Commission within ten (10) days of the date the application was denied.  If the mayor and city council approve an application by resolution within said forty-five-day period, the mayor and city council shall within ten (10) days of the date the application was approved notify the Nebraska Liquor Control Commission by first-class mail postage prepaid or delivery of the resolution of the action taken.

 

(f)    No license shall be denied by the mayor and city council except after a hearing with reasonable notice to the applicant and an opportunity to appear and present evidence.  Any resolution denying or failing to renew an application or license rendered by the mayor and city council shall be in writing or stated in the record and shall be accompanied by findings.  The findings shall consist of concise statements of the conclusions upon each contested issue.  The applicant or licensee shall be notified of the decision in person or by mail.  A copy of the decision and order and accompanying findings shall be delivered or mailed upon request to the applicant or licensee.

 

Source: Ord. No. 3399, §§ 2-6, 5-5-86; Ord. No. 3469, § 1, 4-20-87; Ord. No. 3513, § 1, 11-2-87; Ord. No. 3598, § 3, 11-7-88; Ord. No. 3654, §§ 5, 7, 6-19-89; Ord. No. 5038, § 1, 10-20-08; Ord. No. 5820, § 1, 2-6-23;

Subsequently, Ord. No. 3654, § 5, adopted June 19, 1989, renumbered § 3-28 as § 3-29, and § 7 of the same ordinance amended the same to read as herein set out.

 

Sec. 3-32.  Revocation and suspension of liquor license.

 

A retail license to sell alcoholic liquors, which this council is legally empowered to revoke, may be either revoked or suspended by the city council whenever it shall find, after notice and hear­ing as provided by law that the holder of any such license has violated any of the provisions of said Nebraska Liquor Control Act or of this chapter, or rule or regulation of the Nebraska Liquor Control Commission, or any statutory provision or ordi­nance of the city now existing or hereafter passed, enacted in the interest of good morals and decency; or for any one or more of the following causes:

 

(a)   It shall be cause for revocation or suspension as herein provided if the licensee, his manager or agent, shall allow any live person to appear, or have reasonable cause to believe that any live person shall appear in any licensed premises in a state of nudity, to provide entertainment, to provide service, to act as hostess, manager or owner, or to serve as an employee in any capacity.

 

(b)   For the purposes of this chapter, the term "nudity" shall mean the showing of the human male or female genitals, pubic area or buttocks or the human female breast includ­ing the nipple or any portion below the nipple with less than a full opaque covering.

 

(c)   Any place where alcoholic liquor is sold in violation of the provisions of the Nebraska Liquor Control Act or of this chapter, is hereby defined to be a nuisance and may be abated and suppressed after charges are made by the council and a hearing has thereon, pursuant to reasonable notice by registered or certified mail to the parties charged with maintaining such nuisance by any manner authorized by law or in equity. 

 

Source: Ord. No. 3373, § 1, 1-6-86; Ord. No. 3654, § 5, 6-19-89