AGO Opinion 97035
Outdoor Addition to Licensed Premises
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. § 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
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."
Marie C. Pawol
Assistant Attorney General