RES 2010-0250 - Protest of automatic renewal of off sale beer lic at MIdtown Gas & Grocery PROTEST AGAINST AUTOMATIC RENEWAL
OF RETAIL LIQUOR LICENSE
The persons signing below protest the automatic renewal of the retail liquor license held
by ► t4 ttzlA Elva 5 at 17E-} j� \/ A\A.
in Omaha, Nebraska, for the 20 tp - 20 l‘ license year.
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Protest is made for the following reasons: (Please state in detail all facts which you
believe show the licensed business is not operated properly or should not be operated in its
present location. Give all relevant dates known to you. Attach additional pages if necessary)
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In the event protests are filed on or before the statutory deadline by three or more
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residents of Omaha, hearings may be held to determine whether the liquor license should be
renewed:
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Date
atje S x,7e �
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Please return to the Omaha City Clerk
1819 Farnam Street, Suite LC-1 ttwJJ
Omaha, NE 68183
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• PROTEST AGAINST AUTOMATIC RENEWAL
OF RETAIL LIQUOR LICENSE
The persons signing below protest the automatic renewal of the retail liquor license held
by .kAA-ou.:A. (lac at 2,3C.;'Z
in Omaha, Nebraska, for the 20 44 - 20 11 license year.
Protest is made for the following reasons: (Please state in detail all facts which you
believe show the licensed business is not operated properly or 'should not be operated in its
•present location. Give all relevant dates known to you. Attach additional pages if necessary)
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In the event protests are filed on or before the statutory deadline by three or more
residents of Omaha, hearings may be held to determine whether the liquor license should be
renewed:
Name Address Date
e �c�>�1P I 3/r s 5-n7A 1-l I- /0
eu 1 i �5 /- i /C
Li-Fa I
Please return to the Omaha City Clerk
1819 Farnam Street, Suite LC-1
Omaha, NE 68183
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INTEROFFICE MEMORANDUM
l FiJ i v i,"
Law Department
DATE: February 16, 2010
TO: Buster Brown, City Clerk
FROM: Thomas O. Mumgaard, Assistant City Attorney
SUBJECT: Protest Petition—Liquor Licenses of 7ih Heaven, Inc., dba Midtown Gas &
Grocery (three locations)
I have reviewed the protest petitions filed against the automatic renewal of two Class `B'
(off-sale beer) and one Class 'D' (off-sale package) liquor licenses held by 7th Heaven, Inc., dba
"Midtown Gas&Grocery" at 1222 South 24th Street,2302 South 13th Street,and 1349 Park Avenue.
One of the reasons stated in the petitions is sufficient to require a City Council hearing; one is
insufficient; and the third may be moot.
If a written protest to automatic renewal is filed by three or more residents of the City on or
before February 10th(in the case of Class `B' and Class'D'licenses)of the renewal year,the Liquor
Control Act requires a hearing must be held to "determine whether continuation of the license should
be allowed." The City Council may then request the licensee submit a long-form application and
undergo a formal hearing before renewal. Thus, when a qualifying protest is filed, a hearing to
consider whether a long-form application should be filed is mandatory; a request for a long-form
application and further hearing is discretionary.
Every protest might not trigger the mandatory hearing. A long-form application cannot be
demanded without"a showing that [the licensee] did not meet one of the renewal criteria." .Grand
Island Latin Club, Inc., v. Nebraska Liquor Control Commission, 251 Neb. 61 (1996). These
include whether all the material information submitted in the last previous application remains the
same and whether the licensee remains qualified to receive a license. This showing should be made
at the initial hearing and may consist of the protestors' testimony. That is, at the initial hearing the
City Council should consider whether there is reason to believe something material about the
licensee or the location has changed from when the license was last issued or to believe the licensee
no longer meets the criteria in effect when the license was granted.
These protests present identical alleged reasons for non-renewal: (1) an employee of the
corporation sold alcohol at one of the locations at a time when the location didn't have a liquor
license; (2) the "licensee" is required to be a resident of the state and has not done the things that
evidence residency;and(3)the designated manager has not done the things that evidence Nebraska
residency.
Buster Brown, City Clerk
February 16, 2010
Page 2
SUBJECT: Protest Petition—Liquor Licenses of 7th Heaven, Inc., dba Midtown Gas &
Grocery (three locations)
(1) Sale of alcohol without a license: The challenged licenses are held by a corporation. An
employee's sale of alcohol at a corporation's location that did not have a license is not alone
sufficient reason to deny renewal of the corporation's license. More must be shown. The sale may
be a criminal violation by the employee but not a criminal violation by the corporation. Further,no
criminal citation was issued for this alleged sale so no prosecution occurred. And, a conviction for
such a sale does not disqualify anyone as a matter of law.
But this allegation can indirectly be the basis for requiring a long-form application. You may
require a long-form application on this basis only if you decide that the employee's conduct shows
(a) the corporation is not"fit, willing, and able"to properly sell alcohol or(b)the corporation will
not in the future exercise sufficient"management and control"to insure that violations of liquor laws
and regulations will not occur. See,Neb. Rev. Stat. § 53-132. Although these allegations may be
weak evidence of these statutory standards, in my opinion they are sufficient to require the initial
protest hearing.
(2) The corporation and its owner are not Nebraska residents: The protestors' claim that the
"licensee" must be a state resident is not correct. The corporation is the licensee and corporations
and their owners do not have to meet any residency requirement. See,Neb.Rev. Stat. § 53-125(10).
Therefore, Commission regulation 006.01, cited in the protest, does not apply to this corporation;
registering to vote or registering a car in Nebraska is required only if residency is required.
In my opinion, this stated reason is not a legal basis for requiring a long-form application.
(3)The corporate manager is not a Nebraska resident: Although a corporation and its owners
do not have to be state residents, the corporation must appoint a manager who is a state resident.
See,Neb.Rev. Stat. § 53-125(10)&(11). Regulation 006.01,stating tests for residency,does apply
to this corporation's manager, Mr. Raja.
The allegations against Mr. Raja's residency are sufficient to require a protest hearing.
However,the corporation recently filed an application to appoint a new manager for these locations.
These new applications will be before the Council March 2nd and, if approved, will remove the
complaints against Mr. Raja. Until that decision is made the protest is valid and requires a hearing.
Conclusion: A hearing is required but there is no deadline on when the protest hearing must
be held. Renewal of this license is not due until May 1,2010,and we need only complete any long-
form review before then. You can hold this protest until after the new manager's application is
reviewed on March 2nd
Buster Brown, City Clerk
February 16, 2010
Page 3
SUBJECT: Protest Petition—Liquor Licenses of 7th Heaven, Inc., dba Midtown Gas &
Grocery (three locations)
I will prepare a resolution and cover letter to be presented to the City Council in response to
the portion of the protest claiming the corporate licensee permitted an illegal sale of alcohol.
You should notify the Liquor Control Commission that the protest has been received and
request that the license not be automatically renewed until the City Council has an opportunity to
consider the protest. Omaha Municipal Code section 15-32(a)requires that you notify the licensee of
the protest hearing and I suggest all protesters should also be notified. This notice can be either in
writing or by telephone. If a long-form is requested, section 15-33(a) requires you to give the
licensee written notification of the application hearing.
Please let me know if you have any questions.
Respectfu ubmitted,
homas O. Mumgaard
Deputy City Attorney
and control"to insure that violations of liquor laws
and regulations will not occur. See,Neb. Rev. Stat. § 53-132. Although these allegations may be
weak evidence of these statutory standards, in my opinion they are sufficient to require the initial
protest hearing.
(2) The corporation and its owner are not Nebraska residents: The protestors' claim that the
"licensee" must be a state resident is not correct. The corporation is the licensee and corporations
and their owners do not have to meet any residency requirement. See,Neb.Rev. Stat. § 53-125(10).
Therefore, Commission regulation 006.01, cited in the protest, does not apply to this corporation;
registering to vote or registering a car in Nebraska is required only if residency is required.
In my opinion, this stated reason is not a legal basis for requiring a long-form application.
(3)The corporate manager is not a Nebraska resident: Although a corporation and its owners
do not have to be state residents, the corporation must appoint a manager who is a state resident.
See,Neb.Rev. Stat. § 53-125(10)&(11). Regulation 006.01,stating tests for residency,does apply
to this corporation's manager, Mr. Raja.
The allegations against Mr. Raja's residency are sufficient to require a protest hearing.
However,the corporation recently filed an application to appoint a new manager for these locations.
These new applications will be before the Council March 2nd and, if approved, will remove the
complaints against Mr. Raja. Until that decision is made the protest is valid and requires a hearing.
Conclusion: A hearing is required but there is no deadline on when the protest hearing must
be held. Renewal of this license is not due until May 1,2010,and we need only complete any long-
form review before then. You can hold this protest until after the new manager's application is
reviewed on March 2nd
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