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AGO Opinion 97035

Outdoor Addition to Licensed Premises
Opinion 97035

DATE: June 23, 1997

SUBJECT: Outdoor Addition to Licensed Premises

REQUESTED BY: Forrest D. Chapman, Executive Director

Nebraska Liquor Commission

WRITTEN BY: Don Stenberg, Attorney General

Marie C. Pawol, Assistant Attorney General




We are in receipt of your June 5, 1997, request for an

Attorney General's opinion regarding whether a "premises may be

licensed under the Liquor Control Act if the licensee has a lease

on the premises which permits ingress to and egress from the

premises by third parties." Upon further clarification of this

request, we understand that the Commission is reviewing a request

for the expansion of an existing license to include an adjacent

outdoor area. This outdoor area is described as an enclosed

courtyard that is also accessible to other adjacent businesses and

their patrons. The local governing body has given its approval to

the requested addition to the licensed premises.




Nothing contained in the Nebraska Liquor Control Act precludes

licensure of a clearly specified area, whether outdoors or indoors,

soley because it may be accessible by others, to include adjoining

business owners, their employees or their customers. Neb. Rev.

Stat. ยง 53-125(12) (Cum. Supp. 1996) requires that the licensee

either own the premises for which a license is sought or have a

lease or combination of leases on such premises for the full period

for which the license is to be issued. However, this provision

does not require that the licensee's lease be exclusive, preventing

reasonable easements by other businesses and their patrons, or use

by other third parties.




Rule 6.019.01V of the Nebraska Liquor Control Commission

further clarifies criteria for licensing outdoor areas. First, the

area may either be attached or not physically attached to the

licensed structure. Second, the licensee shall be responsible for,

and properly supervise, the area. Third, a retainer (fence, wall,

or hedgerow, etc.) must separate the outdoor area and prevent

uncontrolled entrance or exit from the outdoor area or easy access

to beverages within the licensed area by persons outside the area.

Last, all fire, health and liquor standards must be complied with.




According to the licensee's application, the outdoor area in

question is enclosed by a fence and other adjacent buildings.

There are identifiable entrances and exits. In view of the

foregoing, there is no "uncontrolled" ingress or egress to the

proposed licensed addition. Therefore, nothing contained in

Commission Rule 6.019.01V prevents approval of this proposed

addition.




Of course, the licensee is still responsible for ensuring that

all provisions of the Nebraska Liquor Control Act are adhered to

within the area of the licensed premises, as noted in Rule

6.019.01V. See also, Commission Rule 2.001.01: "The licensee

shall, at all times, be responsible for the licensed premises and

for the control, sale and dispensing of alcoholic liquors permitted

by the license."




Sincerely,




DON STENBERG

Attorney General




Marie C. Pawol

Assistant Attorney General