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McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM

Cite as 303 Neb. 56

McManus Enterprises, Inc., doing 

Heidelberg’s, appellant, v. Nebraska Liq

Control Commission, appelle

___ N.W.2d ___

Filed May 3, 2019. No. S-18-699.

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. Judgments: Appeal and Error. An appellate court, in reviewing a district court’s judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent 

evidence supports those findings.

4. Administrative Law: Judgments. Whether an agency decision conforms to the law is by definition a question of law.

5. Administrative Law: Judgments: Statutes: Appeal and Error. To the 

extent that the meaning and interpretation of statutes and regulations 

are involved, questions of law are presented which an appellate court 

decides independently of the decision made by the court below.

6. Administrative Law: Statutes. For purposes of construction, a rule or 

regulation of an administrative agency is generally treated like a statute.

7. ____: ____. Properly adopted and filed regulations have the effect of 

statutory law.

8. Administrative Law. Absent a statutory or regulatory indication to the 

contrary, language contained in a rule or regulation is to be given its 

plain and ordinary meaning.

9. ____. A rule is open for construction only when the language used 

requires interpretation or may reasonably be considered ambiguous.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/07/2019 09:07 AM CDT
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10. ____. A court will construe regulations relating to the same subject matter together to maintain a consistent and sensible scheme.

11. ____. A court must attempt to give effect to all parts of a regulation, 

and if it can be avoided, no word, clause, or sentence will be rejected as 

superfluous or meaningless.

12. Administrative Law: Intent. In determining the meaning of regulatory 

language, its ordinary and grammatical construction is to be followed, 

unless an intent appears to the contrary or unless, by following such 

construction, the intended effect of the provisions would apparently 

be impaired.

13. Administrative Law: Liquor Licenses. Under 237 Neb. Admin. Code, 

ch. 6, § 019.01F (2012), a licensee cannot be sanctioned for a violation unless the licensee has allowed an unreasonable disturbance 

to continue.

14. ____: ____. Under 237 Neb. Admin. Code, ch. 6, § 019.01F (2012), 

in order for “other activity” to be a disturbance, the dangerous activity 

itself must arise and be of such a nature that may place others in danger.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Reversed and remanded 

directions.

Charles D. Humble, of Erickson & Sederstrom, P.C., for 

appellant.

Douglas J. Peterson, Attorney General, and Milissa JohnsonWiles for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, and Freudenberg, J

Cassel, J.

INTRODUCTION

This appeal turns on the correct interpretation of the Nebraska 

Liquor Control Commission’s “disturbance rule.”1 The rule’s 

plain language applies only where a licensee “allow[s] any 

unreasonable disturbance; as such term is defined [in the 

rule], to continue without taking the steps, as set forth [in the 

1 237 Neb. Admin. Code, ch. 6, § 019.01F (2012).
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rule].”2 The commission and the district court on review3 disregarded that plain language: ignoring the words “to continue.” 

Although we must reverse this license cancellation, we emphasize that our decision does not preclude the commission from 

adopting a rule that would impose upon licensees a duty to take 

reasonable steps to prevent disturbances from occurring in the 

first instance. But its existing rule does not do so, and we are 

required to apply the rule as written.

BACKGROUND

Disturbance 

Because our decision turns upon the plain language of the 

disturbance rule, we recite it in full:

019.01F Disturbance: No licensee or partner, principal, 

agent or employee of any licensee shall allow any unreasonable disturbance; as such term is defined hereunder, 

to continue without taking the steps, as set forth hereunder, within a licensed premise or in adjacent related 

outdoor areas.

019.01F1 A “Disturbance” as used in this section shall 

mean any brawl, fight, or other activity which may endanger the patrons, employees, law enforcement officers, or 

members of the general public within licensed premises 

or adjacent related outdoor area. Such term shall include 

incidents involving, but not necessarily limited to: drug 

dealing; intoxicated individuals; soliciting of prostitution; 

or any physical contact between the licensee’s agents 

or employees and its customers, involving any kissing, 

or any touching of the breast, buttock or genital areas. 

Any brawl fight or other activity which results in serious injury to any patro[n], employee or members of the 

2 Id. (emphasis supplied).

3 See, Neb. Rev. Stat. § 53-1,116 (Reissue 2010) (appeal from commission 

order in accordance with Administrative Procedure Act); Neb. Rev. Stat. 

§ 84-917 (Reissue 2014) (judicial review under Administrative Procedure 

Act).
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general public shall be reported to law enforcement. 

Serious injury means any gunshot wou[n]d, knife or other 

stab wound or any other injury requiring medical treatment onsite or transportation to a medical facility for 

treatment. Licensees and their employees shall not prohibit or interfere in any way with a patro[n] who chooses 

to contact law enforcement in the event they are assaulted 

on the premises.

019.01F2 Unless there is reason to believe that a 

licensee or partner, principal, agent or employee of any 

licensee would endanger himself/herself or others, such 

person shall take such action as is reasonably necessary 

to terminate the disturbance. Physical force should be 

exercised only in extreme circumstances and should be 

limited to the force reasonably required to terminate the 

disturbance and remove the individual from the licensed 

premise, without endangering any patron or other person.

019.01F3 In the event efforts taken in accordance with 

the preceding subparagraph are not successful or if there 

is reason to believe that the licensee, partner, principal, 

agent or employee of any licensee may create a danger 

to himself/herself or others, th[e]n in such event, such 

person shall immediately contact law enforcement personnel to assist in properly handling the disturbance. 

In the event law enforcement and/or medical personnel are summoned, the directions and/or orders given 

by such law enforcement or medical personnel shall 

be followed.

019.01F4 A licensee who has conformed with the 

procedure as set forth in this section shall be deemed to 

have not permitted a disturbance to occur and continue. 

Licensees who wish to document their compliance with 

this rule may maintain a log in which they document disturbances or other unusual occurrences.4

4 § 019.01F.
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Even

John McManus is the owner of McManus Enterprises, Inc. 

(collectively McManus), which operates Heidelberg’s bar in 

Lincoln, Nebraska. In August 2017, a professional boxing 

match was held at an arena in Lincoln. The day before the 

match, an event promoter approached McManus, asking to host 

an event at Heidelberg’s after the match. McManus agreed. 

The promoter hired and paid a company to provide security for 

the event.

The Omaha Police Department informed the Lincoln Police 

Department (LPD) that an event following the last boxing 

match in Omaha, Nebraska, resulted in an “all call” disturbance. “All call” means a radio call directing all available officers to respond. LPD became concerned that “there could be a 

gang following and some violent problems.” An LPD officer 

testified that on the evening of the match, LPD approached 

John McManus, the owner, about its concerns and informed 

him of the incident following the last boxing match in Omaha. 

The owner testified that he was unaware of problems following 

the last boxing match in Omaha and that LPD never informed 

him about such issues.

After the match, LPD had 10 to 15 officers in the parking 

lot of Heidelberg’s. About 1:55 a.m., a small group of people 

clustered around the front door started a fight that rippled 

through the crowd. LPD entered the bar and began to break up 

the fights. One officer requested an all-available-unit call. A 

few of the security company’s guards aided LPD in breaking 

up the fights. Approximately 15 to 20 minutes later, all patrons 

were out of the bar.

License Proc

The commission charged McManus with “allow[ing] or 

permit[ting] a disturbance,” in violation of § 019.01F. Although 

the commission charged McManus with a second violation, it 

dismissed that charge at the close of the hearing.
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After the hearing, the commission found that McManus 

violated the disturbance rule when it (1) “allow[ed] or 

permit[ted] a disturbance in or about the licensed premises,” 

(2) “ignore[d] security concerns that were expressed to it by 

law enforcement and proceeded with the event despite the 

warning,” and (3) “willingly turn[ed] over a portion of [its] 

licensed business to the care and control of an unregulated 

third party and its security force,” and that (4) such willful 

actions “created an unreasonable threat to the health, safety 

and welfare of its patrons and first responders.” The commission canceled McManus’ liquor license.

District Cou

After McManus sought judicial review of the commission’s order, the district court concentrated its analysis on the 

“other activity which may endanger” language in the definition of “disturbance” in § 019.01F1. It reasoned that because 

McManus was aware of the Omaha “all call” and admitted 

to similar problems with previous events, it was aware of 

the potential danger. It reasoned that the actions of the security company and LPD could not be attributed to McManus, 

because McManus had no control over them. The court concluded that the record supported the commission’s findings that 

McManus violated the disturbance rule when it was aware of 

the danger and failed to take reasonable steps to terminate the 

disturbance. It affirmed the commission’s order.

McManus filed a timely appeal, which we moved to our 

docket.5

ASSIGNMENTS OF ERROR

McManus assigns, restated, that the district court erred 

in (1) failing to apply the plain meaning of the disturbance 

rule and thereby finding that McManus allowed a disturbance 

and (2) canceling McManus’ liquor license “on the basis 

that [McManus] failed to take actions required in the . . . 

5 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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disturbance rule to prevent the disturbance from continuing 

when the required actions already had been taken by third parties to prevent the disturbance from continuing.”

STANDARD OF REVIEW

[1-3] 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.6 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.7

An appellate court, in reviewing a district court’s judgment for 

errors appearing on the record, will not substitute its factual 

findings for those of the district court where competent evidence supports those findings.8

[4,5] Whether an agency decision conforms to the law 

is by definition a question of law.9 To the extent that the 

meaning and interpretation of statutes and regulations are 

involved, questions of law are presented which an appellate court decides independently of the decision made by the 

court below.10

ANALYSIS

The commission is empowered to adopt and promulgate 

rules and regulations to carry out the Nebraska Liquor Control 

Act,11 including provisions covering any and all details which 

6 Leon V. v. Nebraska Dept. of Health & Human Servs., 302 Neb. 81, 921 

N.W.2d 584 (2019).

7 Id.

8 Id.

9 Betty L. Green Living Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 

911 N.W.2d 551 (2018).

10 Leon V., supra note 6.

11 Neb. Rev. Stat. §§ 53-101 to 53-1,122 (Reissue 2010 & Cum. Supp. 2018).
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are necessary or convenient to the enforcement of the intent, 

purpose, and requirements of the act.12 McManus does not dispute that as a licensee, it is subject to the rules and regulations 

of the act, including the disturbance rule.

McManus instead contends that the district court erred when 

it agreed with the commission that the disturbance occurred 

when McManus hosted the event. It argues this is contrary 

to the plain reading of the regulation, because the regulation 

is designed to terminate disturbances that are occurring from 

continuing. It argues that nothing in the regulation places a 

duty on a licensee to take action against something that might 

or could happen. We agree.

[6,7] For purposes of construction, a rule or regulation of 

an administrative agency is generally treated like a statute.13

Indeed, we have often said that properly adopted and filed 

regulations have the effect of statutory law.14

[8,9] Absent a statutory or regulatory indication to the 

contrary, language contained in a rule or regulation is to be 

given its plain and ordinary meaning.15 A rule is open for construction only when the language used requires interpretation 

or may reasonably be considered ambiguous.16 Neither party 

argued that the disturbance rule is ambiguous. We agree that its 

plain and ordinary meaning controls our decision.

[10] A court will construe regulations relating to the same 

subject matter together to maintain a consistent and sensible 

scheme.17 Consequently, we read § 019.01F, which includes 

its subparagraphs, §§ 019.01F1 to 019.01F4, to determine the 

12 See DLH, Inc. v. Nebraska Liquor Control Comm., 266 Neb. 361, 665 

N.W.2d 629 (2003).

13 Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015).

14 See, e.g., Leon V., supra note 6.

15 In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d 

670 (2017).

16 Prokop v. Lower Loup NRD, 302 Neb. 10, 921 N.W.2d 375 (2019).

17 Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
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meaning of the disturbance rule as a whole. In discussing the 

rule, reference to § 019.01F will generally refer to the entire 

rule. But when quoting the rule, we will use a specific paragraph to enable a reader to easily locate our quotation.

By its plain language, § 019.01F dictates that no licensee 

shall allow any unreasonable disturbance to continue. The 

commission argues that the regulation also prohibits a 

licensee from allowing a disturbance to occur. Logically, in 

order for a disturbance to continue, it must first occur. But 

as we explain, under the plain language of the regulation, a 

licensee does not violate the disturbance rule until a disturbance has occurred.

[11] First and foremost, the first section of the disturbance 

rule compels this reading. It states that “[n]o licensee . . . shall 

allow any unreasonable disturbance; as such term is defined 

hereunder, to continue without taking the steps, as set forth 

hereunder, within a licensed premise or in adjacent related 

outdoor areas.”18 When quoting from this language, the district 

court decision simply omitted the words “to continue.” Given 

that we treat a regulation like a statute,19 a settled principle 

of statutory interpretation20 dictates this rule: A court must 

attempt to give effect to all parts of a regulation, and if it can 

be avoided, no word, clause, or sentence will be rejected as 

superfluous or meaningless. The district court’s reading disregarded this principle.

A plain reading of § 019.01F2 supports our conclusion. 

It requires the licensee and those who act for the licensee to 

“take such action as is reasonably necessary to terminate the 

disturbance.”21 “Terminate” means “[t]o bring to an end, put 

18 § 019.01F.

19 See Melanie M., supra note 13.

20 See Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 

(2019).

21 § 019.01F2 (emphasis supplied).
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an end to, cause to cease.”22 It seems evident that one cannot 

“terminate” something that has not occurred.

Section 019.01F3 reinforces this understanding. “In the 

event efforts taken in accordance with [§ 019.01F2] are not 

successful . . . , th[e]n in such event, such person shall immediately contact law enforcement personnel to assist in properly handling the disturbance.”23 Efforts cannot be either successful or unsuccessful until a disturbance has occurred and 

the licensee or its representative has attempted some “action 

. . . to terminate the disturbance.”24 And how, a reader of the 

regulation might reasonably ask, is one to request assistance 

from law enforcement in “properly handling the disturbance” 

until after a disturbance has commenced.25

[12] Finally, § 019.01F4 provides a safe harbor for licensees which have “conformed” to the disturbance rule. It states 

in part, “A licensee who has conformed with the procedure as 

set forth in this section shall be deemed to have not permitted a disturbance to occur and continue.”26 Another rule of 

statutory construction27 leads to this rule: In determining the 

meaning of regulatory language, its ordinary and grammatical construction is to be followed, unless an intent appears 

to the contrary or unless, by following such construction, 

the intended effect of the provisions would apparently be 

impaired. Under the interpretation urged by the commission, 

one would expect § 019.01F4 to read “occur or continue,” 

but it does not. The plain and ordinary meaning of “and,” in 

this context, means that a disturbance has both “occur[red]” 

and “continue[d].”

22 “Terminate,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/199426 (last visited Apr. 19, 2019).

23 § 019.01F3.

24 § 019.01F2.

25 See § 019.01F3.

26 § 019.01F4 (emphasis supplied).

27 See Patterson, supra note 20.
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[13] Within the disturbance rule, the word “occur” appears 

only in § 019.01F4. Under the commission’s interpretation, 

one would expect it to appear in § 019.01F. But it does not. As 

used in § 019.01F4, we understand it to support the ordinary 

and plain language of § 019.01F. Similarly, §§ 019.01F2 and 

019.01F3 support the plain language of § 019.01F by requiring 

licensees to take reasonable action to terminate a disturbance. 

Again, logically, in order to terminate a disturbance, it must 

occur and continue. We hold that under § 019.01F, a licensee 

cannot be sanctioned for a violation unless the licensee has 

allowed an unreasonable disturbance to continue.

The State agreed with McManus that merely hosting an 

event is not a violation of § 019.01F. However, it contends that 

McManus violated the disturbance rule when

[McManus] agree[d] to host the event by opening its 

doors to a third party promotor and the promotor’s security team over which [McManus] had no control, with 

knowledge that prior events by the same promotor had 

resulted in an “all call” for LPD, with no clear plan and 

adequate security tailored to the nature of the event and 

size of the expected “standing room only” crowd.28

The district court reasoned that McManus “violated the disturbance rule when it disregarded the security concerns 

expressed to it by law enforcement and proceeded with the 

event that placed the safety of the public at risk.” Both interpretations relied upon the phrase “other activity which may 

endanger”29 to craft a preventative interpretation of “other 

activity.” This interpretation inconsistently read into the regulation a preventative consideration that does not appear within 

the explicit language of the regulation.

Under the plain language, a “disturbance” applies a present temporal meaning.30 The rule utilizes the present tense 

28 Brief for appellee at 10.

29 § 019.01F1.

30 See id.
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when defining disturbance and does not place any conditional 

language on the existence of the disturbance. For example, a 

disturbance shall mean any brawl which may endanger others 

or any fight which may endanger others. It would fly in the 

face of the plain and ordinary language to read all other disturbances as occurring in the present and “other activity which 

may endanger” as preventative or precognitive. Effectively, the 

district court’s interpretation placed the proverbial cart before 

the horse when it placed the conditional language on the disturbance and not the consequences.

Moreover, the nonexhaustive list of examples of a “disturbance” in § 019.01F1—such as drug dealing, intoxicated individuals, soliciting prostitution, and physical contact between 

customers and employees or agents—further illustrates disturbances happening in the present. The list utilizes the present, present participle, and past tense to define disturbance. It 

does not place any conditional language on the existence of 

the disturbance.

[14] A licensee’s hosting an event with awareness of a 

potential disturbance will not be considered a disturbance. 

Unlike the several other examples of disturbances listed above, 

hosting an event, in and of itself (at least under the disturbance rule as now written), does not put others in potential 

danger. Some other activity must occur, like the brawl that 

broke out, to place others in danger for it to be considered a 

disturbance under the existing language. In this case, the disturbance did not occur until 1:55 a.m., when the brawl took 

place. At that point, LPD officers were immediately involved. 

Therefore, under § 019.01F, in order for “other activity” to be 

a disturbance, the dangerous activity itself must arise and be 

of such a nature that may place others in danger.

Under the plain and ordinary meaning of the disturbance 

rule, McManus did not have to take reasonable action to 

terminate the disturbance until 1:55 a.m., when it occurred, 

at which point the duty under § 019.01F to “[not] allow any 

unreasonable disturbance . . . to continue” sprang into effect. 
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Because the district court found that McManus did not take 

reasonable action before the disturbance occurred, its interpretation was inconsistent with the plain language of § 019.01F. 

Accordingly, the district court’s interpretation did not conform 

to the law, and we reverse.

Our holding does not preclude the commission from promulgating a preventative rule for disturbances. The problem is, the 

current rule simply does not do so.

CONCLUSION

Under the plain and ordinary language, a licensee does not 

violate the disturbance rule until a disturbance has occurred. At 

that point, the duty to “not allow” the disturbance “to continue” 

becomes effective. Because the district court’s analysis read 

into the regulation an interpretation inconsistent with the plain 

language, its decision did not conform to the law. We reverse 

the decision and remand the cause to the district court with 

directions to remand the matter to the commission with directions to dismiss.

Reversed and remanded with direct