Opinion
No. 74-189
Decided January 21, 1975. Opinion modified and as modified, petition for rehearing denied February 11, 1975.
Town board of trustees granted package liquor license to applicant and district court entered judgment approving that decision. Protestants appealed.
Reversed
1. INTOXICATING LIQUORS — Licenses — Courts — Not — Issue or Deny — May Order. Courts do not issue or deny liquor licenses; however, where licensing authorities have acted beyond their jurisdiction or exceeded their authority, courts can order issuance or denial of licenses.
2. Two License Applications — Less than Two Years — Contravene Statute — First Application — Not Formally Denied — Second Application — Void. Where two successive applications for liquor license were filed in less than two years in contravention of statute, the clear intent and effect of order issued by district court, as regards first application, was that the town would deny the application, and the fact that the town did not follow the directions of the court and formally deny the first application does not give it a basis for claiming that the statute does not apply; hence, by virtue of the two-year rule, the town lacked authority to act on the second application, and the license issued thereon is void.
3. License Proceedings — Question on Review — Prohibition Against Action — Violated — No Action — State Licensing Authority — Review — Not Premature. Where, in liquor license proceedings, the question on review is whether a statutory prohibition against action by the local authority has been violated and thus whether the local licensing authority had the power to act, the fact that no action had been taken on the application by the state licensing authority does not make a review of the action of the local authority premature.
Appeal from the District Court of the County of Larimer, Honorable E. Robert Miller, Judge.
Strahle Weinland, Ronald H. Strahle, for petitioners-appellants.
Hartwell Babcock, Colton W. Babcock, Jr., for Town of Estes Park, Harry B. Tregent, Mayor thereof, Board of Trustees of Town of Estes Park, Robert E. Burgess, H. Bernerd Dannels, N. T. Petrocine, Glenn Prosser, Rollen Sutter, and Robert E. Wagner, respondents-appellees.
Joseph P. Jenkins, P.C., for Louis Canaiy and Jean B. Canaiy, respondents-appellees.
Fazio, Smith, and Houston (Protestants) appeal from the district court's judgment approving the granting of a package liquor license on October 8, 1973, by the Board of Trustees of the Town of Estes Park (the Town) to Louis and Jean B. Canaiy (Applicants). We reverse.
In a prior application, the Town granted a package liquor license to the Applicants on January 22, 1973, and the state subsequently approved that action. On appeal by Protestants, the trial court on July 26, 1973, reversed the decision of the Town and found that "the evidence falls short of the law's requirement . . . of proving that the existing licensed outlets in the area are inadequate to serve the needs of the neighborhood." The judgment was in the following language:
"It is therefore ordered, adjudged and decreed that the order and action of the Town Board of Estes Park . . . granting a package liquor license . . . be and is hereby set aside, that said applicants are not legally entitled to said license, and their application should be denied."
This judgment became final and was res judicata as to the issue of the "reasonable requirements of the neighborhood [being] satisfied by the existing outlets."
The Town neither appealed that judgment nor entered a formal denial of the application. On August 27, 1973, Applicants reapplied to the Town for a package liquor license at the same location as in the previous application. At a public hearing, they presented considerable evidence in support of their position that the reasonable requirements of the neighborhood were not being satisfied by the existing outlets. On that evidence, the Town on October 8, 1973, approved the new application.
Protestants appeared at the hearing on the second application and unsuccessfully contended that by § 12-47-139(1) and (1)(a), C.R.S. 1973 (the two-year rule), the Town lacked jurisdiction to proceed in the matter at that time. This statute provides:
"(1) No application for the issuance of any license . . . shall be received or acted upon:
"(2) If, within the two years next preceding the date of the application, a licensing authority has denied an application at the same location for the reason that the reasonable requirements of the neighborhood were satisfied by the existing outlets."
On review, the district court in the instant case concluded "that the license restrictions or prohibitions as posed in [the two-year rule] are not applicable when the court has reviewed the approval of a licensing authority and has set the same aside." It then approved the granting of this new license. We do not agree.
[1,2] The Town (through its Board of Trustees) and the state (through the Department of Revenue), not the reviewing court, are the licensing authorities. Courts do not issue or deny licenses. However, where licensing authorities have acted beyond their jurisdiction or exceeded their authority, courts can order issuance or denial of licenses. See Board of County Commissioners v. Salardino, 136 Colo. 421, 318 P.2d 596. The judgment in the first license appeal case "that said applicants are not legally entitled to said license, and their application should be denied" overruled the local licensing authority. The clear intent and effect of that order was that the Town would deny the application. The fact that the Town did not follow the direction of the court and formally deny the first application does not give it a basis for claiming that the statute does not apply. Under such circumstances, and by virtue of the two-year rule, the Town lacked authority to act on the second application. The license issued thereon is void.
[3] Pointing out that the state has not yet acted upon this second license application, Applicants and the Town contend that the district court in the instant case lacked jurisdiction to review the action of the Town, and that therefore this appeal should have been and should now be dismissed. Had there been no two-year rule violation, we would agree that, where no action has been taken by the state, a review of the action of the local authority on a question of possible abuse of discretion is premature. See Moschetti v. Liquor Licensing Authority, 176 Colo. 281, 490 P.2d 299; Larson v. City County of Denver, 33 Colo. App. 153, 516 P.2d 448. Where, as here, the question on review is whether a statutory prohibition against action by the local authority has been violated and thus whether the local licensing authority had power to act. Moschetti and Larson do not apply.
The judgment is reversed and the cause is remanded to the district court with directions that it remand the cause to the Town with directions to dismiss the second application as having been filed at a time when § 12-47-139(1) and (1)(a), C.R.S. 1973 prohibited the Town from receiving or acting upon it. Further, under the circumstances presented here, the two-year rule shall be considered to have begun to run from the date the Town erroneously granted the first application, January 22, 1973.
JUDGE BERMAN and JUDGE KELLY concur.