Opinion
May 12, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Joseph Furer, Denver, for plaintiff in error.
Max P. Zall, City Atty., Lee G. Rallis, Denver, for defendants in error.
SILVERSTEIN, Chief 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.
The Den, Inc., plaintiff in error and plaintiff below, obtained a hotel and restaurant liquor license in 1959 for operation at 1440 Washington Street, Denver. The license was renewed annually through 1966, when the operation was destroyed by fire early in that year. As a result, its lease was terminated so that it was required to seek another location. One was found about two blocks away from its former place of business, and plaintiff filed an application with the defendant Capra, then Manager of Safety for the City and County of Denver, for transfer of its liquor license to the new location. The new location was across the street from an existing similar liquor outlet. The transfer was denied and, on appeal, the Denver District Court upheld the ruling. It found 'that this case comes within the general rule that the record does not show that the Manager of Safety abused his discretion or was arbitrary or capricious. * * *' From this determination the plaintiff asserts error.
The Den, Inc. advances two arguments for reversal of the trial court and the Manager of Safety. First, that the licensing authority has less discretion in granting or denying an application for the transfer of an existing license than it has for the issuance of a new license. Second, that the Manager of Safety abused his discretion in the present case. We find no merit in either argument.
As to the first assertion, CRS '63, 75--2--3(8)(a) makes unlawful the transfer of liquor licenses from one premises to another 'until permission so to do shall be granted by * * * the licensing authorities * * *.' CRS '63, 75--2--3(8)(b) sets out the criteria to be observed by the licensing authorities in such cases:
'In permitting such change of location such licensing authorities shall consider the reasonable requirements of the neighborhood to which the applicant seeks to change his location, the desires of the inhabitants as evidenced by petitions, remonstrances or otherwise and all reasonable restrictions * * * placed upon the new district by the council of the city, town, or city and county or by the board of county commissioners of any county.'
These criteria are identical to those set forth in CRS '63, 75--2--9(2) which regulate the issuance of new licenses. The question has already been decided by our Supreme Court in MacArthur v. Martelli, 127 Colo. 308, 255 P.2d 969. In that case, a liquor licensee wished to transfer his license directly across a major thoroughfare to escape leasing problems and to improve his location. The transfer was denied and the licensee appealed on the same grounds as are urged upon us. The Supreme Court, at page 310, 255 P.2d at page 969, determined that 'the requirements for change of license location are the same as those for obtaining a license, and the duties and authority of the Manager are the same. * * * (T)here is no vested right in a licensee to move the location of his license, and, upon application so to do, the (Manager) may, and should, consider the same as in case of application for a new license.'
The plaintiff next argues that the Manager of Safety acted capriciously and arbitrarily in denying he license upon the evidence submitted at the hearing. Upon review of the record, however, we find no abuse of discretion. Within the designated neighborhood, there were forty-four existing liquor outlets including twenty-six other hotel and restaurant licenses (excluding the plaintiff's). Plaintiff presented petitions with 250 persons expressing support of the transfer, but opponents presented petitions with 1164 signatures against the move. One person testified in favor of the move at the hearing, while four testified against it and 28 other opponents attended the hearing. There was, consequently, overwhelming opposition to the transfer with no showing by the plaintiff that it would fulfill any demonstrable need in the neighborhood. It utterly failed to meet the statutory requirements for a license transferral.
In the present case, there was an abundance of evidence to support the Manager's findings and conclusions.
The judgment is affirmed.
DWYER and ENOCH, JJ., concur.