Opinion
No. 70-278 (Supreme Court No. 23884)
Decided September 1, 1970.
From district court affirmance of city trustees' denial of liquor license, applicant appealed.
Reversed
1. INTOXICATING LIQUORS — Town Trustees — Signed Petition — Against License Issuance — Indicated Preconceptions — Applicant — "Stacked Deck" — Denied — Fair and Impartial Hearing. Where every town trustee had signed petitions against issuance of liquor license prior to hearing thereon, and at hearing indicated that, while deciding on the merits, the applicant would be faced with overcoming these preconceptions, reviewing court concludes that, at best, applicant was working against a "stacked deck" and was denied the fair and impartial hearing to which she was entitled.
2. Applicant — Prior Liquor License — No Outlets in City — Thirty-Four Favored — License Issued to Another — Prima Facie Showing — Need for License — Substantial Support. Where evidence showed that, prior to state highway condemnation, applicant had held one of two liquor licenses in city, and as result of condemnation there were no longer any outlets in city, where the nearest outlet was two and one-half miles away, where thirty-four residents indicated the need for outlet in city, and where, after denial of applicant's application, similar license was issued to nearby establishment, the evidence constitutes a prima facie showing of need for the license and substantial support therefor.
Error to the District Court of Clear Creek County, Honorable Daniel J. Shannon, Judge.
Walter F. Scherer, for plaintiff in error.
Montgomery Little, David C. Little, for defendants in error.
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.
Plaintiff in error, referred to hereinafter as applicant, applied for a liquor license under C.R.S. 1963, 75-2-1, et seq., which application was denied by defendants in error, the local licensing authority, referred to hereinafter as the trustees. She obtained review in the District Court for Clear Creek County, which affirmed the trustees by order from which she now appeals, asserting that she was denied a fair and impartial hearing by the trustees because of certain allegedly prejudicial conduct on their part; that her application was arbitrarily and capriciously denied for reasons having no support in law or evidence; and that the district court erred in not so holding on review.
Applicant operated a bar and restaurant in Silver Plume for 14 years, but was forced to close it when the premises were condemned by the state for construction of an interstate highway. She relocated and commenced construction of a motel-trailer park complex that was to have an accompanying restaurant. It is in connection with this restaurant that she made the instant application.
After applicant took all necessary procedural steps, a hearing was held by the trustees where evidence adduced by the applicant established the following facts:
1. She was apparently qualified in all respects for a license;
2. No licensed outlet for liquor existed in Silver Plume, the nearest such outlet being located two and one-half miles to the east, in Georgetown, Colorado;
3. The land where her proposed outlet was to be located was properly zoned and provided sufficient parking facilities for 25 cars;
4. Thirty-four residents supported by petition issuance of a license to her on grounds of need therefor; one of these appeared at the hearing to testify in her behalf;
5. All members of the Board of Trustees had signed petitions objecting to issuance of the license prior to the hearing thereon.
6. One of the trustees had previously held a liquor license, but was forced out of business at the same time that applicant was forced out of her earlier business, because of state condemnation of his property.
Fifty-seven residents objected to issuance of the license by petition, ten of whom testified at the hearing. Their objections were predicated, for the most part, upon the location of applicant's proposed outlet (asserted to be in a residential area and in close proximity to a seldom, if ever, used church); possible detrimental effect on property values; possible detrimental effect on children living in, or visiting, homes near the proposed outlet; possible increased burden on the town's single, non-paid, special deputy sheriff (also a trustee); alleged inadequate parking; alleged increase in traffic; and alleged lack of need for the outlet.
On this evidence, the trustees denied the application on grounds that applicant had failed to make a prima facie showing of need for the license. The district court affirmed and, while noting that the action of the several trustees in signing petitions against the license prior to the hearing thereon was ill-advised, held that such did not constitute prejudicial misconduct by the trustees as a matter of law. We disagree, and, accordingly, reverse the district court and remand the case with instructions to order issuance of the license.
I.
It is undisputed that every town trustee signed petitions against issuance of the instant license prior to the hearing thereon. As such, they clearly expressed opinions in advance on a matter which, as they well knew, they would be called upon to decide. To be sure, each indicated at the hearing, when questioned by applicant's counsel, that he would decide the issue on its merits; but each did so by statements clearly indicating that applicant was confronted with not only the statutory burden of making a prima facie showing of need for the license, but also that of overcoming these preconceptions that no such need existed. This, in addition to the existence of a report submitted at the hearing by a committee of the trustees which had investigated the application, and which recommended against issuance of the license, constrains us to conclude that, at best, applicant was working against a "stacked deck" and was denied the fair and impartial hearing to which she was entitled.
II.
The stated reason for denial of the application was applicant's alleged failure to make a prima facie showing of need for the license. The record, however, shows that prior to condemnation by the state for highway purposes, there were two apparently successful outlets in Silver Plume; that because of the condemnation proceedings there were none at the time of the application; that the nearest such outlet was two and one-half miles away, in Georgetown, not within silver Plume, which was the area arbitrarily designated by the trustees as that to be served by applicant's sought license; that thus, as the trustees acknowledged, those seeking alcohol by the drink had to go to Georgetown or elsewhere; and that thirty-four residents indicated the need for such and outlet in Silver Plume.
We note further from the record in the district court that after denial of applicant's application, but prior to the district court's review thereof, the trustees issued a similar license to another establishment located approximately 1200 feet from applicant's premises. This, in itself, tends to belie the trustees' findings in the instant case.
We hold that this evidence constitutes a prima facie showing of need for the license and substantial support therefor. Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970.
The totality of circumstances in this case, as reflected by the record before us, indicates that denial of the application by the trustees was an abuse of discretion, and that the district court erred in not so holding. Accordingly, we reverse the order of the district court and remand the case to the court with instructions to order the issuance of the license applied for.
Judgment reversed and the case remanded with instructions.
JUDGE COYTE and JUDGE ENOCH concur.