Opinion
Johnson & McLachlan, George McLachlan, Lamar, for plaintiff in error.
Robert G. Rogers, Lamar, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
By this writ of error Best Bet Supers, Inc., seeks reversal of the judgment of the district court, which upheld the denial of an application for a fermented malt beverage license by the City Council of the City of Lamar.
Lamar, at the time of the hearing, had a population of 8,220 people and served a trade area of approximately 25,000 people, yet had but one outlet of the type for which application was made. This other outlet was located some 18 blocks away from the proposed outlet on U.S. Highway 285--287 on the other side of the city.
Applicant operated a supermarket in a shopping center on the east side of Lamar on U.S. Highway 50. Several persons from the area testified that there was a need for an additional outlet. Applicant's customers often asked to purchase beer. Petitions were presented with 409 signatures in which the persons signing favored the issuance of the license because the needs and desires of the neighborhood were not being adequately met. There was no evidence that this need was being reasonably and adequately served by the existing outlet.
We have read the full record of proceedings before the council and have reached the inescapable conclusion that, on the showing made, the action of a majority of the members of the city council denying the application amounted to an abuse of discretion. The overwhelming probative effect of the matters presented to the council requires a reversal of the judgment with directions to order the license to issue. This conclusion is reached from a consideration of the record as a whole and is not exclusively based upon the disparity in numbers between those favoring and those opposing issuance of the license. Bauer v. Board of County Commissioners of Logan County, 163 Colo. 568, 431 P.2d 863.
The judgment is reversed and the cause remanded with directions to enter judgment that the license shall issue as requested in the original petition filed before the council.
DWYER and DUFFORD, JJ., concur.