Candyland, LLC v. Nebraska Liquor Control Comm.
306 Neb. 169
| Neb. | 2020Background
- Candyland, LLC applied for a retail Class C liquor license in Omaha; the Omaha City Council recommended denial and hundreds of citizens protested before the Nebraska Liquor Control Commission.
- The Commission denied Candyland’s application; Candyland sought judicial review under the Administrative Procedure Act (APA) in Lancaster County district court.
- Candyland named the Commission, the City of Omaha, and the citizen protestants as respondents, but served summons only on the Commission and the City and moved to serve the citizen protestants by publication.
- The district court denied service by publication, later concluded the citizen protestants were parties of record under the Nebraska Liquor Control Act, and found Candyland failed to serve all parties within the time required by the APA.
- The district court dismissed the petition for lack of subject matter jurisdiction; Candyland’s motion for a new trial was denied and it appealed to the Nebraska Supreme Court.
- The Supreme Court held the district court lacked jurisdiction because Candyland did not serve all parties of record within the statutory 30-day period and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether citizen protestants are "parties of record" required to be made parties in APA review | Citizen protestants were not necessary parties and thus did not require summons service | Protestants are parties of record under the Liquor Control Act definition and must be made parties for APA review | Protestants are parties of record under §53-1,115(4) and had to be served |
| Time to serve non-governmental parties after filing petition (30 days v. 180 days) | Candyland argued a 180-day period applied | City argued 30 days; Commission briefly argued 180 days at oral argument | Service on nongovernmental parties must be made within 30 days of filing under §84-917(2)(a)(i) |
| Denial of motion for service by publication | Candyland sought publication due to large number of protestants | City/Commission opposed publication and required proper service | Denial proper: motion lacked the required affidavit under §25-517.02 and court correctly required personal service |
| Constitutional challenge to service statute (§25-508.01) | Candyland argued service requirement denied access to courts (constitutional) | State defended statutory requirements | Challenge not preserved in district court; Supreme Court declined to consider it |
Key Cases Cited
- Retroactive, Inc. v. Nebraska Liquor Control Comm., 298 Neb. 936 (Neb. 2018) (jurisdictional review is a question of law and party-of-record definition controls APA review)
- Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938 (Neb. 2017) (Liquor Control Act’s definition of “party of record” governs who must be made parties in APA review)
- J.S. v. Grand Island Public Schools, 297 Neb. 347 (Neb. 2017) (petitioners must file petition and serve summons to confer district court jurisdiction under the APA)
- Northern States Beef v. Stennis, 2 Neb. App. 340 (Neb. Ct. App. 1993) (interpreting APA to require summons served within 30 days of filing)
- Leach v. Dept. of Motor Vehicles, 213 Neb. 103 (Neb. 1982) (discussing 180-day service rule in earlier context)
- Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93 (Neb. 2011) (identifying statutory confusion concerning manner and timing of service)
- State v. Lotter, 301 Neb. 125 (Neb. 2018) (a court cannot create jurisdiction by its own order)
- In re Estate of Evertson, 295 Neb. 301 (Neb. 2016) (if district court lacks subject matter jurisdiction, appellate court also lacks jurisdiction)