JCB Enters. v. Nebraska Liq. Cont. Comm.

CoNCLUsIoN
We decline to recognize a cause of action for an insured’s
allegations against an insurance agent acting solely on behalf
of a disclosed insurer that the agent breached an agreement
to procure the insured’s requested coverage. We do, however,
recognize such a claim against an insurance broker acting on
behalf of the insured.
We also decline to decide whether an insured’s failure to
read a policy is a valid defense in a contract action against a
broker for failure to procure requested insurance coverage. a
threshold factual issue regarding the agency relationship has
not been resolved. therefore, we reverse the district court’s
summary judgment and remand the cause for further proceed-
ings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings .
JcB enteRpRises , inc ., doing Business as B ill ’ s liQuoR
W est , appellant , v . neBRaska liQuoR contRol
commission , appellee .
749 N.W.2d 873
Filed May 30, 2008. 	No. s-06-1373.
1. Administrative Law: Judgments: Appeal and Error. a judgment or final order
rendered by a district court in a judicial review pursuant to the administrative
procedure act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. 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.
3. Administrative Law: Presumptions. administrative adjudicators serve with a
presumption of honesty and integrity.
4. Administrative Law. administrative adjudicators must avoid an appearance
of impropriety.
5. Administrative Law: Liquor Licenses: Evidence. the Nebraska Liquor Control
Commission’s decisions in contested cases are to be decided on the evidence
adduced during the proceedings involving those contested cases.
6. Administrative Law: Liquor Licenses: Public Meetings: Due Process. the
Nebraska Liquor Control Commission should conduct its proceedings in such a
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

798 	275 Nebraska reports
manner as to avoid due process challenges due to a perception that commentary
offered during the public meeting portion of the commission’s agenda improperly
impacted the commission’s decision in a contested case.
7. Administrative Law: Liquor Licenses: Appeal and Error. When the district
court conducts its review of a final decision of the Nebraska Liquor Control
Commission, it is required to make independent factual determinations.
8. ____: ____: ____. In its proceedings for review of a final decision of the Nebraska
Liquor Control Commission, the district court shall conduct the review de novo on
the record of the agency.
9. Due Process: Notice: Words and Phrases. the central meaning of procedural
due process is that parties whose rights are to be affected are entitled to be heard,
and, in order that they may enjoy that right, they must first be notified.
10. Administrative Law: Due Process: Notice. Due process requires that an
administrative adjudication be preceded by notice and an opportunity for the
agency hearing.
11. Administrative Law: Liquor Licenses: Revocation. the Nebraska Liquor
Control Commission has broad discretion in deciding whether licenses should be
suspended or revoked upon violations of the liquor law.
12. Administrative Law: Liquor Licenses: Statutes. the Nebraska Liquor Control
act and the Nebraska Liquor Control Commission’s rules and regulations give
the commission discretion in the imposition of penalties for violations of the act
and rules.
13. Statutes: Presumptions: Words and Phrases. When “may” is used in a statute,
permissive or discretionary action is presumed.
14. Records: Appeal and Error. It is incumbent on the party appealing to present a
record that supports the errors assigned; absent such a record, as a general rule,
the decision of the lower court as to those errors will be affirmed.
appeal from the District Court for Lancaster County: J odi
nelson, Judge. affirmed.
Daniel L. Lindstrom and Justin r. Herrmann, of Jacobsen,
orr, Nelson, Wright & Lindstrom, p.C., for appellant.
Jon bruning, attorney General, and Milissa Johnson-Wiles
for appellee.
heavican, C.J., WRight, connolly, stephan, mccoRmack,
and milleR-leRman, JJ.
milleR-leRman, J.
NatUre oF Case
JCb enterprises, Inc. (JCb), appeals from the decision of the
district court for Lancaster County that affirmed the decision of
the Nebraska Liquor Control Commission (Commission) that

had revoked the liquor license of JCb, doing business as bill’s
Liquor West (bill’s). the Commission had determined that JCb
had violated Neb. rev. stat. § 53-180 (reissue 2004) and 237
Neb. admin. Code, ch. 6, § 019.01a (1994), of the rules and
regulations of the Commission by selling alcoholic liquor to a
minor. because competent evidence supports the decision of
the district court, and the decision is neither arbitrary, capri-
cious, nor unreasonable, we affirm.
FaCts
there is essentially no dispute with regard to the facts rele-
vant to our decision in this appeal. JCb was the holder of a
class D liquor license for the operation of bill’s, a liquor store
in kearney, Nebraska. on the evening of February 5, 2005, a
sales clerk at bill’s sold alcoholic liquor consisting of a bottle
of Jim beam whiskey, a 30-pack of busch Light beer, and a
30-pack of Miller High Life Light beer to t.b. at the time of
the sale, t.b. was 18 years of age, and the clerk did not ask
for identification. the clerk estimated that t.b. had purchased
alcohol from bill’s approximately 10 to 20 times prior to
February 5 and that on three or four prior occasions, t.b. had
shown the clerk a Canadian identification card that indicated
a date of birth that would make the bearer at least 21 years of
age. the record does not specify the nature of the Canadian
identification. there is some evidence that t.b. also presented
his brother’s driver’s license to purchase alcohol at some point
in the past. there is no suggestion that t.b. represented in any
other form of writing that he was age 21 or older.
During the early morning of February 6, 2005, t.b. was killed
while riding in the rear passenger side of a 1998 Volkswagen
Jetta driven by k.W. at the time of the accident, k.W. was also
18 years of age. the record reflects that k.W. had been drinking
Jim beam whiskey prior to the accident, and officers investigat-
ing the accident reported finding nine unopened cans of Miller
High Life beer in the car at the accident scene. Following the
accident, k.W. was given a breath test indicating an alcohol
level of .211. according to the record, the Jetta was traveling
approximately 75 miles per hour in a residential area when it
collided with a parked pickup truck. the Jetta was extensively
JCb eNters. v. Nebraska LIq. CoNt. CoMM. 	799
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800 	275 Nebraska reports
damaged in the collision, including significant metal tearing and
exposure of the rear passenger side. t.b. died from blunt force
trauma to his head, neck, and trunk.
In May 2005, bill’s failed a compliance check and admitted
to this violation of selling liquor to a minor. bill’s had a previ-
ous violation in 1997.
In a certified letter dated august 8, 2005, the Commission
notified JCb that the Commission was charging it with violat-
ing § 53-180 and 237 Neb. admin. Code, ch. 6, § 019.01a, as
a result of the February 2005 incident. section 53-180 provides
that “[n]o person shall sell . . . or permit the sale . . . of any
alcoholic liquors, to or for any minor . . . .” section 019.01a
states that “[n]o . . . employees of any licensee shall sell any
alcoholic liquors to any person who is a minor . . . .”
JCb denied the charges, and a contested hearing was held
before the Commission on october 19, 2005. Four witnesses
testified at the hearing, and seven exhibits were received into
evidence, including approximately 50 pages from the police
investigation of the accident. proof of the two prior violations
was included in this evidence.
In an order dated November 4, 2005, the Commission found
that on February 5, 2005, bill’s sold alcoholic liquor to a per-
son under the age of 21, which the Nebraska Liquor Control
act defines as a “minor.” see Neb. rev. stat. § 53-103(22)
(supp. 2007). the Commission found that at the time of this
sale, t.b. was not asked to show proof of identification of age.
the Commission found that t.b. had “on multiple occasions
previously purchased alcoholic liquor from [bill’s].” Finally,
the Commission determined that there was no evidence that
the “alberta, Canada” identification constituted valid proof of
identification of age under Nebraska law. the Commission
determined that these facts demonstrated that JCb was “unable
to comply with the requirements of the Nebraska Liquor Control
act,” and the Commission ordered that the liquor license of
“JCb enterprises Inc dba ‘bill’s Liquor West’” be revoked.
JCb filed a motion for rehearing before the Commission.
JCb effectively raised two arguments in its motion. First, JCb
noted that immediately prior to its contested hearing, which had
commenced at 9:58 a.m., the Commission had held a public

meeting that had commenced at 9 a.m. During the public meet-
ing, Diane riibe, the executive director of an advocacy group,
addressed the Commission and made unsworn comments seek-
ing the revocation of JCb’s liquor license. specifically, in
her comments, riibe urged the Commission to revoke JCb’s
liquor license because bill’s had sold liquor to t.b., a minor,
on February 5, 2005, and because t.b. had “paid a price that
far exceeds any that will be imposed today on” JCb. JCb
argued on rehearing that riibe’s comments were unsworn ex
parte comments that had been improperly considered by the
Commission when it reached its decision to revoke the license
of JCb.
For its second argument, JCb claimed that the Commission’s
decision to revoke the license of JCb was inappropriate and too
severe. In support of this argument, JCb offered the affidavit of
Hobert rupe, the executive director of the Commission. In his
affidavit, rupe stated that there were a total of 1,057 “sale to
Minor Convictions” of licensees in the time period from 2001
through 2005 and that during that time period, the Commission
had imposed revocation as a penalty twice, including the revo-
cation of JCb’s license in the instant case.
on January 26, 2006, the Commission overruled JCb’s motion
for rehearing and again ordered JCb’s liquor license revoked.
on February 23, 2006, JCb filed a petition for review with
the district court. In its petition, JCb effectively raised two
arguments. First, JCb claimed that in reaching its decision, the
Commission had improperly considered riibe’s unsworn ex
parte comments made during the public meeting portion of the
agenda prior to the contested hearing in this matter. second,
JCb claimed that the revocation of its liquor license was an
inappropriate penalty.
on september 27, 2006, a hearing was held on JCb’s peti-
tion. the district court received into evidence the transcript and
the bill of exceptions from the Commission hearing. at JCb’s
request, the district court also agreed to take judicial notice of
the Commission’s rules and regulations.
on November 2, 2006, the district court filed its order
affirming the revocation order of the Commission. With regard
to riibe’s ex parte comments, the district court stated that
JCb eNters. v. Nebraska LIq. CoNt. CoMM. 	801
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802 	275 Nebraska reports
there [was] no evidence that anything outside the evi-
dence adduced at the hearing was relied upon . . . by the
Commission. Further, in this court’s de novo review of this
case, this court specifically has not considered any evi-
dence which was not received at the actual hearing in this
matter which took place before the Commission . . . .
as for the appropriateness of the revocation order, the district
court determined that
the evidence is undisputed that [t.b.], an 18-year-old with
a date of birth of January 17, 1987, went into bill’s . . . on
February 5, 2005 and was allowed to purchase a 12-pack
[sic] of beer, an 18-pack [sic] of beer, and a bottle of whis-
key without showing or being asked for any identification
by the employee who sold to him.
the district court also determined that although the Nebraska
Liquor Control act allowed for an “absolute defense” when a
licensee could show that the purchaser had presented “documen-
tary proof” that he or she was of legal age to purchase alcoholic
liquor, see Neb. rev. stat. § 53-180.07 (reissue 2004), the evi-
dence adduced in this case “fail[ed] to show that the Canadian
identification was a valid driver’s or operator’s license which
would make it a valid form of documentary proof of age.”
the district court affirmed the Commission’s revocation order,
concluding that
[u]nder the facts of this case . . . the determination of
the . . . Commission, revoking the Class D license of JCb
. . . doing business as bill’s . . . was neither arbitrary nor
capricious. the evidence supports a finding that [JCb]
did sell alcoholic liquor to a minor on February 5, 2005
and based upon the record, the sanction of revocation
is appropriate.
JCb appeals.
assIGNMeNts oF error
on appeal, JCb claims, restated and renumbered, that the
district court erred in affirming the Commission’s revocation
order, first, because the Commission improperly considered
unsworn ex parte comments in rendering that order and, sec-
ond, because the Commission’s finding of a violation was

unwarranted and the revocation order was an inappropriate
penalty for a variety of reasons.
staNDarDs oF reVIeW
[1,2] a judgment or final order rendered by a district court
in a judicial review pursuant to the administrative procedure
act may be reversed, vacated, or modified by an appellate court
for errors appearing on the record. Neb. rev. stat. § 84-918
(reissue 1999); Schwarting v. Nebraska Liq. Cont. Comm.,
271 Neb. 346, 711 N.W.2d 556 (2006). 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.
Schwarting v. Nebraska Liq. Cont. Comm., supra.
aNaLYsIs
For 	its 	first 	assignment 	of 	error, 	JCb 	argues 	that 	the
Commission improperly considered riibe’s statements made
during the public comment portion of the Commission’s meet-
ing held immediately prior to the contested hearing portion
of the proceedings and that the district court erred in affirm-
ing the Commission’s order. JCb claims that it was unfairly
prejudiced by the Commission’s receipt of riibe’s unsworn ex
parte comments directed at JCb’s case. although riibe’s com-
ments directed at a contested case are problematic and we are
concerned with the procedure followed by the Commission in
the instant case, given the district court’s exclusion of riibe’s
remarks in its de novo review of the Commission’s order, we
determine there is no merit to this assignment of error.
the public and contested proceedings at issue in this appeal
were conducted by the Commission pursuant to statute and the
rules and regulations of the Commission. see, Neb. rev. stat.
§ 53-114 (reissue 2004); 237 Neb. admin. Code, ch. 1, § 001
(1994). We have noted that the Commission is empowered to
promulgate rules and regulations to carry out the provisions
of the Nebraska Liquor Control act (hereinafter the act), Neb.
rev. stat. §§ 53-101 to 53-1,122 (reissue 2004). Lariat Club
v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d
JCb eNters. v. Nebraska LIq. CoNt. CoMM. 	803
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804 	275 Nebraska reports
29 (2004). those rules and regulations provide for public meet-
ings of the Commission, which are held at the Commission’s
headquarters, and further provide that “[p]ublic presentation(s)
before the Commission at a public meeting shall be allowed at
the start of a scheduled meeting . . . .” 237 Neb. admin. Code,
ch. 1, § 001. a purpose behind the public presentation portion
of the meeting is to permit the public to comment on issues of
general concern relating to the business of the Commission.
the record in the instant case indicates that the Commission
commenced the public meeting portion of its agenda at 9 a.m.
and that the contested case portion of the meeting, including
the case involving JCb, began at 9:58 a.m. the record further
reflects that during the public meeting portion of the proceed-
ings, riibe commented on underage drinking in general and
in particular made unsworn comments before the Commission
that, in summary, urged the revocation of JCb’s liquor license
because of the incident that led to the charge in the instant case.
Nothing in the record suggests that riibe was a fact witness
who had information directly relevant to the merits of the JCb
contested matter.
[3-6] the Commission’s receipt of riibe’s unsworn com-
ments during the public meeting portion of the Commission’s
agenda, which were directed to the merits of a contested matter
set to be heard by the Commission immediately following the
public meeting, was inappropriate. although “administrative
adjudicators serve with a presumption of honesty and integ-
rity,” see Barnett v. City of Scottsbluff, 268 Neb. 555, 564,
684 N.W.2d 553, 560 (2004), they must nonetheless avoid
an appearance of impropriety, see Sussel v. City & County,
71 Haw. 101, 109, 784 p.2d 867, 871 (1989) (stating that “an
administrative adjudicator should [not] be allowed to sit with
impunity in a case where the circumstances fairly give rise to an
appearance of impropriety and reasonably cast suspicion on his
impartiality”). the Commission’s decisions in contested cases
are to be decided on the evidence adduced during the proceed-
ings involving those contested cases. see § 53-117 (authoriz-
ing Commission to hear testimony and take proof material for
its information). see, also, Schwarting v. Nebraska Liq. Cont.
Comm., 271 Neb. 346, 711 N.W.2d 556 (2006); Lariat Club v.

Nebraska Liquor Control Comm., supra. Further, it is prudent
that the Commission conduct its proceedings in such a man-
ner as to avoid due process challenges due to a perception that
commentary offered during the public meeting portion of the
Commission’s agenda improperly impacted the Commission’s
decision in a contested case.
[7,8] When the district court conducts its review of a final
decision of the Commission, it is required to make independent
factual determinations. see Schwarting v. Nebraska Liq. Cont.
Comm., supra. In its proceedings for review of a final deci-
sion of the Commission, the district court shall conduct the
review de novo on the record of the agency. Id. In this case,
the district court stated in its order that when it conducted
its de novo review, it “specifically ha[d] not considered any
evidence which was not received at the actual hearing in this
matter which took place before the Commission.” thus, any
irregularities before the Commission were cured when the dis-
trict court ignored riibe’s comments in its de novo review of
the record in the instant case. see MAPCO Ammonia Pipeline
v. State Bd. of Equal., 242 Neb. 263, 265, 494 N.W.2d 535,
537 (1993) (stating that although board erred in failing to con-
sider all evidence, that error was “cured” by appellate court’s
de novo review of record). accordingly, because our consid-
eration of this appeal is limited to the propriety of the district
court’s ruling, we conclude that JCb’s first assigned error is
without merit.
encompassed in its second group of claimed errors is JCb’s
assertion, for numerous reasons, that the district court erred in
affirming the Commission’s penalty of revocation. JCb raises
several arguments to the effect that the Commission errone-
ously considered JCb’s character and reputation in reaching
its decision that a violation occurred and that the revocation of
JCb’s license was an inappropriate penalty. We have considered
JCb’s arguments and determine that none of these arguments
have merit.
JCb notes that in the Commission’s august 8, 2005, charge,
it was notified that it had been charged with selling alcohol
to a minor, and as a result, a hearing would be held at which
it would be determined if JCb’s license should be suspended,
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806 	275 Nebraska reports
canceled, or revoked. JCb asserts that riibe’s comments at the
public meeting prior to the contested hearing injected char-
acter and reputation as an issue before the Commission, and
because JCb had not been notified that character and reputa-
tion were in issue, its due process rights were violated by the
Commission’s ruling. Contrary to JCb’s assertions, neither the
record nor the Commission’s order suggests that JCb’s char-
acter and reputation were at issue with respect to either the
alleged violation or the penalty to be imposed. to the extent
JCb claims that riibe’s comments caused the Commission to
consider JCb’s character and reputation and reached an errone-
ous decision, such a claim is without merit because, as we have
explained above, the district court expressly ignored riibe’s
comments when it conducted its de novo review and affirmed
the Commission’s decision.
the evidence offered by the state at the contested hearing
in support of the Commission’s charge addressed t.b.’s age on
February 5, 2005, the alcoholic liquor purchased by t.b. on
February 5, and JCb’s efforts or lack thereof to review t.b.’s
identification to determine his age prior to his making this pur-
chase. None of this evidence goes to JCb’s character and repu-
tation. the Commission’s order gives no indication that JCb’s
character and reputation were considered by the Commission.
Compare Lariat Club v. Nebraska Liquor Control Comm., 267
Neb. 179, 673 N.W.2d 29 (2004). Instead, the Commission’s
findings of fact and conclusions of law are limited to JCb’s sale
of alcoholic liquor to t.b., who was under the age of 21 at the
time of the sale.
[9,10] the central meaning of procedural due process is that
parties whose rights are to be affected are entitled to be heard,
and, in order that they may enjoy that right, they must first be
notified. In re Interest of Natasha H. & Sierra H., 258 Neb. 131,
602 N.W.2d 439 (1999). Due process requires that an adminis-
trative adjudication be preceded by notice and an opportunity
for the agency hearing. see Lariat Club v. Nebraska Liquor
Control Comm., supra. the record here shows that JCb was
notified of the only violation at issue and decided and had a fair
opportunity to be heard with respect to that issue. Due process
was met.

as its next argument in support of its claim that the district
court erred in affirming the Commission’s revocation order,
JCb asserts that the penalty imposed by the Commission was
contrary to the act and the Commission’s “Violations/penalty
schedule.” brief for appellant at 29. JCb refers us to the stat-
utes and a certain penalty schedule and asserts that the viola-
tion resulting from its February 5, 2005, sale of alcohol to t.b.
constitutes its second violation in addition to the May 2005
compliance check within a 1-year period, for which JCb claims
its license should have been merely suspended, not revoked.
JCb’s claim is without merit.
[11,12] this court has long stated that the Commission “has
broad discretion in . . . deciding whether licenses should be
suspended or revoked upon violations of the liquor law.” see
Eleven Eighteen Co. v. Nebraska Liquor Control Commission,
191 Neb. 572, 574, 216 N.W.2d 720, 721 (1974). With the
exception of § 53-1,104(3)(a), which we discuss below and
conclude is not controlling, JCb has not directed this court
to any provision of the act that JCb claims would result in a
different penalty. to the contrary, the act provides that “[n]o
person shall sell . . . alcoholic liquors, to or for any minor,”
§ 53-180, and that the Commission is authorized to “suspend[],
cancel[], or revoke[]” the “license of any licensee who violates
any of the provisions of the . . . act,” § 53-117.08. section
53-1,104 further provides that “[a]ny licensee which sells or
permits the sale of any alcoholic liquor not authorized under the
terms of such license . . . shall be subject to suspension, cancel-
lation, or revocation of such license by the commission.” these
statutory provisions authorize the Commission in its discretion
to revoke a license when a licensee makes an unauthorized sale
of alcohol. the rules and regulations similarly provide that
“[n]o licensee . . . shall sell any alcoholic liquors to a person
who is a minor,” 237 Neb. admin. Code, ch. 6, § 019.01a, and
that entities “holding licenses issued pursuant to the provisions
of [the act] will be subject to citation and possible administra-
tive sanction to include suspension or revocation” for selling
alcohol to minors, 237 Neb. admin. Code, ch. 6, § 019.01. We
read the rules and regulations as giving the Commission discre-
tion in the imposition of penalties for violations of the rules.
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JCb relies upon the provisions of § 53-1,104(3)(a) as support
for its argument that its license should have been suspended
rather than revoked. section 53-1,104(3)(a) provides in part
as follows:
For a second suspension for violation of section 53-180
or 53-180.02 occurring within four years after the date
of the first suspension, the commission, in its discretion,
may order that the licensee be required to suspend sales of
alcoholic liquor for a period of time not to exceed forty-
eight hours and that the licensee may not elect to pay a
cash penalty.
although we recognize that § 53-1,104(3)(a) permits a graduated
scheme of penalties, in view of the provisions of § 53-117.08,
JCb’s reliance on § 53-1,104(3)(a) is misplaced.
[13] We have previously noted that when “may” is used in
a statute, permissive or discretionary action is presumed. see
In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638
(2007). see, also, Neb. rev. stat. § 49-802(1) (reissue 2004)
(stating that “[w]hen the word may appears, permissive or dis-
cretionary action is presumed. When the word shall appears,
mandatory or ministerial action is presumed”). thus, the exer-
cise of the Commission’s authority to suspend a license under
§ 53-1,104(3)(a) is optional and does not serve as a limitation
on the broader discretion otherwise granted to the Commission
to suspend, cancel, or revoke a licensee’s license for a violation
of the act. see §§ 53-117.08 and 53-1,104.
as noted above, JCb also relies upon a “Violations/penalty
schedule” prepared by the Commission as support for its argu-
ment that the Commission’s penalty in the instant case was
inappropriate. the schedule is not in the record on appeal.
Given the record, JCb’s reliance is misplaced.
[14] this court can take judicial notice of the Commission’s
rules and regulations. see Neb. rev. stat. § 84-906.05 (reissue
1999). However, the “Violations/penalty schedule” is not part
of the Commission’s rules or regulations and, as noted, is not
included in the record on appeal. It is incumbent on the party
appealing to present a record that supports the errors assigned;
absent such a record, as a general rule, the decision of the lower

court as to those errors will be affirmed. see Worth v. Kolbeck,
273 Neb. 163, 728 N.W.2d 282 (2007).
at oral argument in this case, the parties informed the
court that a version of the Commission’s “Violations/penalty
schedule” as of september 12, 2007, is currently available
on the Commission’s Web site. at this time, this court has no
method by which to determine the accuracy of matters located
on the Web site or, more particularly, to verify the contents of
the version of the schedule that may have been in effect dur-
ing the time relevant to the matters now on appeal. We decline
to take judicial notice of the current schedule. see, generally,
State v. Bush, 254 Neb. 260, 265, 576 N.W.2d 177, 180 (1998)
(discussing appellate courts’ refusal to take judicial notice of
ordinances, stating such courts “‘cannot undertake to notice
the ordinances of all the municipalities within its jurisdiction,
nor to search the records for evidence of their passage, amend-
ment or repeal. a party relying upon such matters must make
them a part of the bill of exceptions, or in some manner pre-
sent them as a part of the record’”). JCb’s argument requires
that this court review the Commission’s “Violations/penalty
schedule,” which is not appropriate. because no such schedule
was included in the record on appeal, JCb’s argument relying
on the schedule is unavailing.
as noted above, the Commission has broad discretion when
imposing punishment for the violation of a liquor law. Eleven
Eighteen Co. v. Nebraska Liquor Control Commission, 191
Neb. 572, 216 N.W.2d 720 (1974). proceedings for review of a
final decision of the Commission are to the district court, which
shall conduct the review de novo on the record of the agency.
Schwarting v. Nebraska Liq. Cont. Comm., 271 Neb. 346, 711
N.W.2d 556 (2006). In a review de novo on the record, the dis-
trict court is required to make independent factual determinations
based upon the record, and the court reaches its own indepen-
dent conclusions with respect to the matters at issue. Id. Upon
an appeal from the district court, this court’s review is limited to
error on the record, in which our inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. see id.
JCb eNters. v. Nebraska LIq. CoNt. CoMM. 	809
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810 	275 Nebraska reports
the record in the instant case supports the district court’s
factual determination that on February 5, 2005, bill’s sold
alcoholic liquor to t.b., a minor, in violation of the provisions
of the act and the Commission’s rules and regulations, as
charged. With respect to the penalty to be imposed, the evi-
dence showed that at some point in the past, bill’s had seen an
unspecified Canadian identification presented by t.b. and that
on this basis, had sold liquor to t.b. on 10 to 20 occasions. the
Canadian identification served as a poor foundation for estab-
lishing t.b.’s age, as the district court noted. see § 53-180.06
(listing proper documentary proof of age). bill’s did not check
t.b. for proof of age on February 5. after February and before
the october 2005 hearing in this case, bill’s failed a compli-
ance check and admitted to a violation for selling liquor to a
minor in May 2005. the district court determined that based
upon the record, the sanction of revocation imposed by the
Commission was appropriate.
based on the record before the district court and our stan-
dard of review, we conclude that the district court’s order
following its de novo review, which affirmed the order of the
Commission, is supported by competent evidence and is neither
arbitrary, capricious, nor unreasonable. We affirm.
CoNCLUsIoN
We conclude that the district court did not err when it
affirmed the order of the Commission that revoked JCb’s liquor
license. accordingly, we affirm.
affiRmed .
geRRaRd, J., not participating.
don duane nielsen , peRsonal R epResentative of the estate
of B aRBaRa J ean nielsen , appellant and cRoss - appellee ,
v . donald e. nielsen , appellee and cRoss - appellant .
749 N.W.2d 485
Filed May 30, 2008. 	No. s-07-312.
1. Motions to Vacate: Proof: Appeal and Error. an appellate court will reverse
a decision on a motion to vacate or modify a judgment under Neb. rev. stat.