City of Omaha v. C.A. Howell, Inc. ( 2013 )

Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 711
Cite as 20 Neb. Ct. App. 711
City Omaha, Nebraska, et al., appellants,
of
v.C.A. Howell, Inc., doing business as
Howell’s BP, and the Nebraska Liquor
Control Commission, appellees.
___ N.W.2d ___
Filed April 23, 2013. No. A-11-1116.
1. Administrative Law: Liquor Licenses: Appeal and Error. Appeals from orders
or decisions of the Nebraska Liquor Control Commission are taken in accordance
with the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920
(Reissue 2008 & Cum. Supp. 2012).
2. Administrative Law: Final Orders: Appeal and Error. Proceedings for review
of a final decision of an administrative agency shall be to the district court,
which shall conduct the review without a jury de novo on the record of
the agency.
3. ____: ____: ____. Under the Administrative Procedure Act, an appellate court
may reverse, vacate, or modify a district court’s judgment or final order for errors
appearing on the record.
4. Administrative Law: Judgments: Appeal and Error. When reviewing an
order of a district court under the Administrative Procedure Act for errors
appearing on the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision made by the
court below.
6. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear a case.
8. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
9. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, the appellate court acquires no jurisdiction.
10. Administrative Law: Jurisdiction: Appeal and Error. Where a district court
has statutory authority to review an action of an administrative agency, the dis-
trict court may acquire jurisdiction only if the review is sought in the mode and
manner and within the time provided by statute.
11. Administrative Law: Words and Phrases. An administrative agency is a neutral
factfinding body when it is neither an adversary nor an advocate of a party.
12. Administrative Law: Parties. When an administrative agency acts as the pri-
mary civil enforcement agency, it is more than a neutral fact finder and is a
required party.
Decisions of the Nebraska Court of Appeals
712 20 NEBRASKA APPELLATE REPORTS
13. Administrative Law: Parties: Appeal and Error. An agency which is charged
with the responsibility of protecting the public interest, as distinguished from
determining the rights of two or more individuals in a dispute before such agency,
is a necessary or indispensable party in a judicial review of an order of an admin-
istrative agency.
14. Administrative Law: Liquor Licenses. Within the Nebraska Liquor Control
Commission’s power is the authority to issue licenses subject to certain restric-
tions or conditions as reasonably necessary to protect the health, safety, and wel-
fare of the people of the State of Nebraska and to promote and foster temperance
in the consumption of alcohol.
15. Administrative Law: Jurisdiction: Appeal and Error. The filing of the petition
and the service of summons are the two actions that are necessary to establish
jurisdiction pursuant to the Administrative Procedure Act.
16. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exer-
cise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or
question, an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
17. Jurisdiction: Dismissal and Nonsuit: Motions to Vacate: Appeal and Error.
When an appeal is dismissed because the lower court lacked jurisdiction to enter
the order appealed from, an appellate court may nevertheless enter an order
vacating the order issued by the lower court without jurisdiction.
Appeal from the District Court for Lancaster County: Karen
B. Flowers, Judge. Vacated and dismissed.
Thomas O. Mumgaard, Deputy Omaha City Attorney, for
appellants.
Michael L. Lazer and Kevin J. McCoy, of Smith, Gardner,
Slusky, Lazer, Pohren & Rogers, L.L.P., for appellee C.A.
Howell, Inc.
Jon Bruning, Attorney General, and Milissa Johnson-Wiles
for appellee Nebraska Liquor Control Commission.
Inbody, Chief Judge, and Sievers and Riedmann, Judges.
Inbody, Chief Judge.
INTRODUCTION
The City of Omaha, Nebraska, and three citizen protes-
tors, Sharon Olson, James Rawlings, and Tracy King (col-
lectively the City), appeal the order of the Lancaster County
District Court affirming the decision of the Nebraska Liquor
Control Commission (the Commission) granting a retail
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 713
Cite as 20 Neb. Ct. App. 711
class D liquor license to C.A. Howell, Inc. (Howell), doing
business as Howell’s BP.
STATEMENT OF FACTS
On June 1, 2010, Howell submitted an application with the
Commission for a liquor license for Howell’s BP, a gas sta-
tion, located on North 30th Street in Omaha. The application
indicated that Howell sought the issuance of a retail class D
license for the sale of beer, wine, and distilled spirits, off sale
only. A petition was filed with the Commission indicating that
several residents protested the issuance of a liquor license to
Howell’s BP. On June 22, the Omaha City Council reviewed
and considered Howell’s application for a license and recom-
mended that the application be denied. The city council con-
cluded that Howell was not able to properly provide for the safe
sale of liquor as proposed, and in consideration of the petition-
ing citizens’ protests, the existence of other licenses in the area,
the impact on law enforcement, and the public interest, the
council recommended that the application be denied.
On August 27, 2010, a hearing was held before the
Commission on Howell’s application for a retail class D
liquor license. At the hearing, Olson, a citizen protestor and
member of the “Miller Park-Minne Lusa Neighborhood citi-
zen’s patrol,” testified that there were other liquor stores
in the vicinity of Howell’s BP. Olson testified that the area
was not in need of another liquor store and that she was
concerned because “young people” frequently “hang[] out”
at Howell’s BP. Olson requested that the Commission deny
Howell’s application because of the increase in crime and vio-
lence, in addition to police calls, that would follow.
Craig Howell, the owner of Howell’s BP, testified that he
had operated the Howell’s BP station on North 30th Street for
7 or 8 years. He testified that in that time, he had never sold
alcohol at the store. During those years, customers requested
almost daily that Howell engage in the sale of alcohol at that
location. He testified that if the license is granted, he plans
on remodeling the location to add more store area by taking
away two of the three automobile repair bays. He testified that
at previous locations, the businesses held liquor licenses and
Decisions of the Nebraska Court of Appeals
714 20 NEBRASKA APPELLATE REPORTS
did not have any violations during the time he operated them.
Howell submitted a large document which contained numerous
pages of signatures by customers of the store in support of the
issuance of a liquor license.
In response to an exhibit submitted by the City, which
indicated that in December 2009, a store clerk had been
shot and killed by an individual with whom the clerk had
“exchange[d] . . . words,” Craig Howell testified that an
employee of his was the victim of a homicide. He explained
that prior to the shooting, the employee had been working for
Howell for only 1 week; that there was no indication that the
shooting was connected with an attempted robbery; and that
the shooter had never been apprehended. Craig Howell testi-
fied that nothing was taken from the store and that that was
the only incidence of violence which had occurred inside of
the store.
Craig Howell also testified in response to two Omaha Police
Department crime analysis unit reports for the intersection
where Howell’s BP is located, for June through December
2009 and January through August 2010. The reports are gen-
erated from the police department’s computers via the 911
emergency dispatch service’s communication center. For each
emergency call, the report gives the type of call and the date,
time, and disposition. Many of the calls took place between
midnight and 3 a.m. Craig Howell testified that while he cur-
rently operates Howell’s BP on a 24-hour basis, he anticipates
that he would close the business in the early morning hours if
the license were granted. He testified that he has the store open
for 24 hours a day only because the income he generates now
requires those business hours and that he hopes alcohol sales
will increase the income so that he is not required to stay open
24 hours a day.
Craig Howell explained that in accordance with the police
department, he was instructed to contact the police if there
were any incidents at or near his property during the early
morning hours, and that he instructed his employees to do the
same. He testified that he and his employees work as night
watchmen, since the business is open on a 24-hour basis. He
testified that he would also be hiring a security guard if the
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 715
Cite as 20 Neb. Ct. App. 711
license were granted. He also testified that all of the emer-
gency calls indicated on the crime analysis unit reports had
nothing to do with the sale of alcohol because the store did not
have a liquor license.
Craig Howell testified that a convenience store much like
Howell’s BP had previously applied for a liquor license,
was denied the license, and thereafter closed its doors to all
business. He recognized that there were two large grocery
stores in the area which held class C liquor licenses, but
explained that he was trying to obtain a different market than
those stores.
On September 1, 2010, the Commission entered an order
finding that Howell was fit, willing, and able to properly pro-
vide the service described in the application; that Howell was
able to conform to the rules and regulations of the Nebraska
Liquor Control Act; that Howell demonstrated the proper man-
agement and control of the premises to ensure conformation
to the Nebraska Liquor Control Act; and that the issuance
of the license was or would be required by present or future
public convenience and necessity. The Commission approved
the application by a vote of 2 to 1 and issued Howell a retail
class D liquor license.
On September 27, 2010, the City filed a petition for judicial
review of the Commission’s decision granting Howell a liquor
license. The petition indicated that the Commission was not
made a party of record because it was a neutral factfinding
body and alleged that the Commission did not comply with the
Nebraska Liquor Control Act in its decision to grant Howell a
liquor license.
On October 18, 2010, the City filed an amended petition
which included the Commission as a named party and the
same allegations as the original petition, without the language
regarding the Commission’s being a neutral party. On October
20, the Commission acknowledged receipt of a copy of the
amended petition naming it as a party and filed a waiver of
service by summons.
On November 4, 2010, Howell filed a motion to dismiss
with prejudice, alleging that the Commission was a neces-
sary party and was not timely made a party until after 30 days
Decisions of the Nebraska Court of Appeals
716 20 NEBRASKA APPELLATE REPORTS
from its order, contrary to the requirements of Neb. Rev.
Stat. § 84-917 (Cum. Supp. 2012). On that same day, the
Commission filed an answer generally denying all of the alle-
gations in the amended petition. Judges’ notes indicate that
the district court denied Howell’s motion to dismiss in March
2011. On June 28, 2011, Howell filed an answer and renewed
his motion to dismiss which had been previously denied.
On November 30, 2011, the district court filed an order
affirming the Commission’s issuance of the liquor license. The
district court found that the City did not dispute Howell was
fit, willing, and able to provide for the sale of alcohol and
would conform to the rules and regulations of the Nebraska
Liquor Control Act, but that the City sought a reversal of the
license because the Commission reached its decision on an
improper basis and because the evidence failed to support that
the issuance of the license was required by present or future
public convenience and necessity.
The district court found that a remark made during the
hearing by an individual commissioner, which the City argued
constituted findings of fact and the basis for the improper
basis argument, did not modify the actual written findings
of fact and that the City’s argument was without merit. The
district court further found there was no issue regarding zon-
ing restrictions, sanitary conditions, traffic, or the existing
populations or projected growth thereof. The court found that
the City’s allegations of police calls to the Howell’s BP loca-
tion in 2009 or 2010 provided the court with no evidence to
support that existing law enforcement is inadequate or would
become so, or that the liquor license would attract “people
who want to cause trouble.” The district court also found that
although there were two class C licenses in the area, there was
no corroborative documentation that Howell’s license resulted
in an undue concentration of licenses in one area. The district
court concluded that Howell met its burden to show that the
issuance of a license is required by present or future public
convenience, in accord with the daily requests by customers
for the sale of alcohol. The district court affirmed the issuance
of the license to Howell, and it is from this order that the City
has appealed.
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 717
Cite as 20 Neb. Ct. App. 711
ASSIGNMENTS OF ERROR
The City assigns that the district court erred by affirming
the Commission’s grant of a liquor license, because the license
was granted under an unlawful and unauthorized purpose. The
City also assigns that the district court erred in concluding that
Howell met its burden of showing the statutory standards nec-
essary to obtain a liquor license.
STANDARD OF REVIEW
[1,2] Appeals from orders or decisions of the Commission
are taken in accordance with the Administrative Procedure Act
(APA), Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 &
Cum. Supp. 2012). See Lariat Club v. Nebraska Liquor Control
Comm., 267 Neb. 179, 673 N.W.2d 29 (2004). Proceedings for
review of a final decision of an administrative agency shall
be to the district court, which shall conduct the review with-
out a jury de novo on the record of the agency. DLH, Inc. v.
Nebraska Liquor Control Comm., 266 Neb. 361, 665 N.W.2d
629 (2003).
[3,4] Under the APA, an appellate court may reverse, vacate,
or modify a district court’s judgment or final order for errors
appearing on the record. See id. When reviewing an order of a
district court under the APA for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id.
[5] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. Lariat Club v. Nebraska
Liquor Control Comm., supra.
[6] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. O’Hara v. Department of Motor Vehicles, 14 Neb. Ct. App.
709, 713 N.W.2d 508 (2006).
ANALYSIS
During the pendency of this appeal, this court ordered the
parties to address the issue of jurisdiction pursuant to the
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718 20 NEBRASKA APPELLATE REPORTS
provisions of the APA found at § 84-917. Appeals from orders
or decisions of the Commission must be taken in accordance
with the APA. Neb. Rev. Stat. § 53-1,116 (Reissue 2010)
(appeal from any “order or decision of the [C]ommission grant-
ing, denying, suspending, [or] canceling” license or permit for
sale of alcoholic liquor in accordance with APA). See DLH,
Inc. v. Nebraska Liquor Control Comm., supra (appeals from
orders or decisions of Commission are taken in accordance
with APA).
Section 84-917, which provides for the right to appeal the
final decision in a contested case pursuant to the APA, has
been amended several times, including in 2009. However, the
substance of the particular subsection at issue in this case,
§ 84-917(2)(a)(i), remains unchanged, and it provides, in per-
tinent part:
Proceedings for review shall be instituted by filing a
petition in the district court of the county where the
action is taken within thirty days after the service of
the final decision by the agency. All parties of record
shall be made parties to the proceedings for review. If
an agency’s only role in a contested case is to act as a
neutral factfinding body, the agency shall not be a party
of record. In all other cases, the agency shall be a party
of record.
The City contends that the Commission was properly
included as a party in the amended petition and that the dis-
trict court and this court properly have jurisdiction over this
case. Conversely, Howell alleges that the City failed to name
the Commission as a necessary party in the original petition
and that the amended petition was not filed within the allot-
ted time pursuant to § 84-917. The Commission, in its brief,
adopts Howell’s arguments, but also contends that it was a
necessary party and that the City’s failure to include it in the
original petition deprived the district court of subject matter
jurisdiction to hear the appeal. The determination regarding the
Commission’s role as a party of record has not been addressed
prior to this appeal.
[7-9] Subject matter jurisdiction is a court’s power to hear
a case. State ex rel. Lamm v. Nebraska Bd. of Pardons, 260
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 719
Cite as 20 Neb. Ct. App. 711
Neb. 1000, 620 N.W.2d 763 (2001). Lack of subject matter
jurisdiction may be raised at any time by any party or by the
court sua sponte. Betterman v. Department of Motor Vehicles,
273 Neb. 178, 728 N.W.2d 570 (2007). If the court from which
an appeal was taken lacked jurisdiction, the appellate court
acquires no jurisdiction. Anderson v. Houston, 274 Neb. 916,
744 N.W.2d 410 (2008).
[10] Where a district court has statutory authority to review
an action of an administrative agency, the district court may
acquire jurisdiction only if the review is sought in the mode
and manner and within the time provided by statute. Nebraska
Dept. of Health & Human Servs. v. Weekley, 274 Neb. 516,
741 N.W.2d 658 (2007); Essman v. Nebraska Law Enforcement
Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997). In the
case before us, we must first determine whether the district
court lacked subject matter jurisdiction by determining whether
the Commission was a neutral factfinding agency or a party of
record pursuant to § 84-917(2)(a)(i).
What Is Commission’s Role?
The Commission argues that Neb. Rev. Stat. § 53-1,115
(Reissue 2010) answers the question of whether it is a party
of record in the instant case. Section 53-1,115 provides, in
pertinent part: “(4) For purposes of this section, party of record
means: (a) In the case of an administrative proceeding before
the [C]ommission on the application for a retail, craft brewery,
or microdistillery license: . . . (iv) The [C]ommission.”
Section 84-917(2)(a)(i) provides that the Commission, as a
party of record, shall be made a party to the proceedings for
review, but that if the agency’s only role in the contested case
was to act as a neutral factfinding body, the agency “shall not
be a party of record.” Thus, we must determine whether the
Commission was a “neutral factfinding body.” See id.
[11-13] An administrative agency is a neutral factfinding
body when it is neither an adversary nor an advocate of a
party. Metropolitan Util. Dist. v. Aquila, Inc., 271 Neb. 454,
712 N.W.2d 280 (2006); In re Application of Metropolitan
Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005). However,
when an administrative agency acts as the primary civil
Decisions of the Nebraska Court of Appeals
720 20 NEBRASKA APPELLATE REPORTS
enforcement agency, it is more than a neutral fact finder and
is a required party. Metropolitan Util. Dist. v. Aquila, Inc.,
supra; In re Application of Metropolitan Util. Dist., supra.
Further, an agency which is charged with the responsibility of
protecting the public interest, as distinguished from determin-
ing the rights of two or more individuals in a dispute before
such agency, is a necessary or indispensable party in a judicial
review of an order of an administrative agency. Tlamka v.
Parry, 16 Neb. Ct. App. 793, 751 N.W.2d 664 (2008). See, also,
Beatrice Manor v. Department of Health, 219 Neb. 141, 362
N.W.2d 45 (1985); Leach v. Dept. of Motor Vehicles, 213 Neb.
103, 327 N.W.2d 615 (1982).
Both the Nebraska Supreme Court and this court have previ-
ously analyzed the roles of various agencies as either neutral
fact finders or required parties. See, Becker v. Nebraska Acct.
& Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995)
(Nebraska Accountability and Disclosure Commission was
required to be party to proceedings for judicial review of set-
tlement agreement between itself and University of Nebraska
Board of Regents); Tlamka v. Parry, supra (inmate’s failure to
timely include Nebraska Department of Correctional Services
as party in initial petition deprived trial court of jurisdiction
over his petition for review). The line between an agency’s
roles is by no means clear, as evidenced in two separate cases
through which the Nebraska Public Service Commission was
found in one instance not to be a neutral factfinding body
and in a second instance to be acting as a neutral factfind-
ing body. See, Metropolitan Util. Dist. v. Aquila, Inc., supra
(Nebraska Public Service Commission was acting as factfind-
ing body and not as certifying agency, primary civil enforce-
ment agency, or adversarial party or enforcing previous order);
In re Application of Metropolitan Util. Dist., supra (under
authority given to Nebraska Public Service Commission, it was
not acting as neutral factfinding body and was proper party
to action).
In the case of In re Application of Metropolitan Util. Dist.,
270 Neb. 494, 704 N.W.2d 237 (2005), the Metropolitan
Utilities District of Omaha (MUD) appealed to the dis-
trict court from a decision of the Nebraska Public Service
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 721
Cite as 20 Neb. Ct. App. 711
Commission (PSC) dismissing its application for certifica-
tion as a competitive natural gas provider. The district court
“‘affirmed,’” finding that the PSC lacked jurisdiction. Id. at
495, 704 N.W.2d at 240. The PSC appealed to the Nebraska
Supreme Court, contending that it had jurisdiction over MUD.
MUD argued that the PSC did not have standing to appeal
and was not a proper party to the action. Id. The statute in
issue at that time, Neb. Rev. Stat. § 66-1804(1) (Reissue
2003), provided:
The [PSC] shall have full power, authority, and jurisdic-
tion to regulate natural gas public utilities and may do
all things necessary and convenient for the exercise of
such power, authority, and jurisdiction. . . . [S]uch power,
authority, and jurisdiction shall extend to, but not be lim-
ited to, all matters encompassed within the State Natural
Gas Regulation Act and sections 57-1301 to 57-1307.
The Nebraska Supreme Court found that the statutes setting
forth the PSC’s powers and authority concerning natural gas
utilities gave it powers to act as more than a neutral factfinding
body and concluded that the PSC was a required party. In re
Application of Metropolitan Util. Dist., supra.
In the case of Metropolitan Util. Dist. v. Aquila, Inc., 271
Neb. 454, 712 N.W.2d 280 (2006), MUD appealed the decision
of the PSC ordering MUD to cease and desist the construc-
tion of a natural gas main extension as a result of a formal
complaint filed by another utility company asserting that the
extension was not in the public interest. The PSC was made
a party to the appeal. Id. The Nebraska Supreme Court held
that the PSC had acted as a neutral factfinding body and, as
such, was not a necessary party to the appeal. In making that
determination, the court found that pursuant to § 66-1804(1),
the PSC’s jurisdiction extended to Neb. Rev. Stat. §§ 57-1301
to 57-1307 (Reissue 2004), but that those statutes limited the
PSC’s role by specifically including a provision in § 57-1306
stating that the PSC “shall have no jurisdiction over a metro-
politan utilities district or natural gas utility beyond the deter-
mination of disputes brought before it under sections 57-1301
to 57-1307.” In concluding that the PSC was not a necessary
party to the action, the court found that the PSC was not acting
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722 20 NEBRASKA APPELLATE REPORTS
as a certifying agency, as a primary civil enforcement agency,
or in the role of an adversarial party or enforcing a previous
order, but was acting as a factfinding body to determine the
validity of the cease-and-desist order. Metropolitan Util. Dist.
v. Aquila, Inc., supra.
[14] In this case, the Commission is empowered to prom­
ulgate rules and regulations to carry out the provisions of
the Nebraska Liquor Control Act, Neb. Rev. Stat. §§ 53-101
to 53-1,122 (Reissue 2010). See, JCB Enters. v. Nebraska
Liq. Cont. Comm., 275 Neb. 797, 749 N.W.2d 873 (2008);
Lariat Club v. Nebraska Liquor Control Comm., 267 Neb.
179, 673 N.W.2d 29 (2004). Section 53-116 sets forth that
the Commission has exclusive vested “power to regulate all
phases of the control of the manufacture, distribution, sale,
and traffic of alcoholic liquor.” Section 53-117 also provides,
in part, that the Commission has the power to receive, issue,
suspend, cancel, and revoke liquor licenses; promulgate rules
and regulations; govern the traffic of alcoholic liquor and
“enforce strictly” the Nebraska Liquor Control Act; inspect
premises where liquor is located; hear and determine appeals;
conduct audits; and investigate the administration of laws in
relation to alcoholic liquor. This court has also concluded
that within the Commission’s power is the authority to issue
licenses subject to certain restrictions or conditions as rea-
sonably necessary to protect the health, safety, and welfare
of the people of the State of Nebraska and to promote and
foster temperance in the consumption of alcohol. See F & T,
Inc. v. Nebraska Liquor Control Comm., 7 Neb. Ct. App. 973,
587 N.W.2d 700 (1998). Clearly, under the statutory authority
given to the Commission, it has a broad range of powers and
plays a significant role in the administration of the Nebraska
Liquor Control Act.
Howell’s application for a liquor license was submitted
to the Commission and forwarded to the city council for
review. The city council requested a denial of the license.
The Commission, under the broad authority given to it pur-
suant to § 53-117, decided against the recommendation and
issued Howell a liquor license, which made the Commission
an adversarial party. Furthermore, the Commission is also
Decisions of the Nebraska Court of Appeals
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Cite as 20 Neb. Ct. App. 711
charged with the responsibility of protecting the public inter-
est through its regulation of all phases of alcoholic liquor
and, as such, is not merely a neutral factfinding body. See,
Beatrice Manor v. Department of Health, 219 Neb. 141, 362
N.W.2d 45 (1985); Leach v. Dept. of Motor Vehicles, 213 Neb.
103, 327 N.W.2d 615 (1982); Tlamka v. Parry, 16 Neb. Ct. App.
793, 751 N.W.2d 664 (2008). Therefore, in this case, pursuant
to § 84-917(2)(a)(i), the Commission was required as a party
of record and should have been included in the City’s origi-
nal petition.
Were Statutory R equirements
for Jurisdiction M et?
Having determined that the Commission was required as a
party of record and should have been included in the City’s
original petition, we must now determine whether the statutory
requirements for jurisdiction were met.
[15] The filing of the petition and the service of summons
are the two actions that are necessary to establish jurisdiction
pursuant to the APA. Essman v. Nebraska Law Enforcement
Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997); Tlamka
v. Parry, supra. However, Howell claims that the Commission
was not made a party to the proceedings within the allotted
time set forth in § 84-917(2)(a)(i), which provides, in part:
Proceedings for review shall be instituted by filing a peti-
tion in the district court of the county where the action
is taken within thirty days after the service of the final
decision by the agency. All parties of record shall be
made parties to the proceedings for review. If an agency’s
only role in a contested case is to act as a neutral fact-
finding body, the agency shall not be a party of record.
In all other cases, the agency shall be a party of record.
Summons shall be served within thirty days of the filing
of the petition in the manner provided for service of sum-
mons in section 25-510.02.
Neb. Rev. Stat. § 25-510.02(1) (Reissue 2008) provides that
summons be left at the office of the Attorney General “with the
Attorney General, deputy attorney general, or someone desig-
nated in writing by the Attorney General, or by certified mail
Decisions of the Nebraska Court of Appeals
724 20 NEBRASKA APPELLATE REPORTS
service addressed to the office of the Attorney General.” See,
also, Concordia Teachers College v. Neb. Dept. of Labor, 252
Neb. 504, 563 N.W.2d 345 (1997) (when § 25-510.02 applies,
summons must be served on Attorney General in order to insti-
tute judicial review under APA).
Since the City failed to include the Commission as a party
of record, the requirements of § 84-917(2)(a)(i) were not met.
However, the City argues that any jurisdictional defect was
cured with the filing of the amended petition. We find that
the City’s reliance upon that argument is flawed. If we were
to accept that argument, it would essentially alleviate the
statutory requirement of timeliness in § 84-917(2)(a)(i), which
requires that the necessary parties to an APA proceeding be
included in a timely petition. See Tlamka v. Parry, supra. The
statutory timeliness in § 84-917(2)(a)(i) is that the petition be
filed with the district court “within thirty days after the service
of the final decision by the agency.”
Here, the Commission made its determination on August 27,
2010, and its order on September 1. The City filed its original
petition on September 27, and did not include the Commission
as a party of record. On October 18, the City filed an amended
petition, including the Commission as a party of record and
including the Attorney General’s office on the certificate of
service. On October 19, the Commission, via the Attorney
General’s office, filed a waiver of service by summons. The
record contains only one summons, filed on October 10 with
regard to the original complaint, which was to be served on
Howell only.
The Commission was a necessary party and was not
timely included as such in the original petition. Therefore,
the City’s petition did not meet the statutory requirements of
§ 84-917(2)(a)(i) and the district court lacked jurisdiction, and
that in turn deprives this court of jurisdiction.
CONCLUSION
[16,17] The City failed to seek district court review in the
mode and manner and within the time provided by the statute.
By failing to include the Commission as a party in the initial
petition, the City failed to timely petition the district court for
Decisions of the Nebraska Court of Appeals
CITY OF OMAHA v. C.A. HOWELL, INC. 725
Cite as 20 Neb. Ct. App. 711
review as to a necessary party. The district court lacked subject
matter jurisdiction of the APA proceeding. When a lower court
lacks the authority to exercise its subject matter jurisdiction
to adjudicate the merits of the claim, issue, or question, an
appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court.
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581,
748 N.W.2d 66 (2008). However, when an appeal is dismissed
because the lower court lacked jurisdiction to enter the order
appealed from, an appellate court may nevertheless enter an
order vacating the order issued by the lower court without
jurisdiction. Id. Therefore, the judgment of the district court is
vacated and this appeal is dismissed.
Vacated and dismissed.