Opinion
No. 22591.
Decided May 18, 1970.
From judgment of district court upholding Board of County Commissioners in their denial of applicant's request for license to operate retail liquor outlet, applicant brought error.
Reversed
1. INTOXICATING LIQUORS — License — Retail Outlet — Findings — Failure to Comport — Statute — Determination — Requirements — Absence. In proceeding before Board of County Commissioners for license to operate retail liquor outlet, reviewing court is in accord with contention of applicant that denial of license was arbitrary, capricious, and an abuse of discretion by board; especially, where board made four findings upon which to predicate denial, none of which comport with applicable statute and also significant was absence of determination of reasonable requirements of neighborhood for type of outlet requested.
2. Number — For or Against — License — Controlling — Negative. The number of signatures on petition for or against an applicant seeking a retail liquor license is not necessarily controlling in determining whether a license should be granted.
3. Findings — Needs — Lack of Support — Record — Remand — Negative. Where any findings by Commissioners that needs of neighborhood were being met by existing outlets would not be supported by record, cause would not be remanded to Board of County Commissioners for entry of findings supporting their denial of application for retail liquor license.
4. Finding — One — Vicinity — Needs — Package Store — Denial — Improper. Where Commissioners found that 3.2 establishment was in the vicinity, held, such an outlet did not meet the needs of the neighborhood for a package store and thus did not warrant denial of applicant's request for retail liquor license.
5. Retail Liquor License — Failure to File Plans — Interior of Building — Time of Application. With reference to application for retail liquor license, failure to file plans for interior of building intended to house proposed establishment at time of application was not fatal.
6. Building — Retail Liquor Outlet — Existence — Drawing of Architect — — Requirement — Statute — Negative. Where building proposed to be used for retail liquor outlet was already in existence, architect's drawing of building to be constructed was not, under such circumstances, a requirement of C.R.S. 1963, 75-2-40.
7. Retail Liquor License — Parking — Minimum Floor Area — Sanction — Law — Negative. With reference to application for retail liquor license, there is no sanction in the law requiring parking or minimum floor area.
8. Retail Liquor Outlet — Absence — Guidelines — Size — Zoning — Denial — Unlawful. In absence of lawful guidelines with reference to size of proposed retail liquor outlet in any state statutes and in absence of county zoning requirement for location involved, denial of license on such grounds was not lawful.
9. Retail Liquor Outlet — Toilet Facilities — Inadequate — Denial of License — Improper — Zoning — Compliance. There is no basis in law for denying application for retail liquor outlet where store involved had inadequate toilet facilities; and even if absence of such facilities violated county zoning resolution, yet, this would not be ground in and of itself for denial of application for liquor license where there was no basis in law for such criteria; actually, opportunity to comply with zoning laws and restrictions would of necessity be granted to anyone desiring to open a business.
Error to the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
March, March Sullivan, Arthur March, Jr., for plaintiff in error.
Harden, Olson Napheys, Waldine H. Olson, for defendants in error.
This writ of error is directed to a judgment of the Larimer County district court upholding the Board of County Commissioners of Larimer County in their denial of Goehring's application for a license to operate a retail liquor outlet.
Goehring proposed to locate the liquor store three quarters of a mile south of Fort Collins on U.S. Highway 287. At the hearing on the application, the owner of the sole liquor store in the area south of Fort Collins and his daughter were the only persons to appear in person to protest the issuance of the license.
The applicant Goehring contends that the denial of the license was arbitrary and capricious and an abuse of discretion by the Board.
We agree and reverse the judgment.
The County Commissioners made four findings upon which to predicate the denial of the liquor license. None of the findings comport with the statute — C.R.S. 1963, 75-2-42 — and significant was the absence of a determination of the reasonable requirements of the neighborhood for the type of outlet being requested.
In the realm of the requirements of the neighborhood was a statement by the Commissioners, to wit: "That a greater preponderance of residents [within a one-mile radius] desire that the application be denied." This finding is not supported by the evidence even if it were sufficient and in compliance with the statute. Before the petitions were filed at the hearing the neighborhood was undefined and the petitions covered a wider area. In the arguments before the court as to the accuracy of the finding it was shown that those who signed the petition — that ". . . the reasonable needs of the area require such an outlet . . ." — outnumbered those appearing on a petition circulated by the competitor-protestor who appeared at the hearing. We have heretofore indicated that the determination of whether a license should be granted cannot be predicated on the type of findings rejected by this court in KBT Corp. v. Walker, 148 Colo. 274, 365 P.2d 685. The number for or against an application therefore is not necessarily controlling. In this case the favorable petitions are contrary to the Commission's determination.
[3,4] As we view the record as made, it would be useless to remand the cause to the Commission for the entry of findings. Any findings by the Commissioners that the needs of the neighborhood are being met by the existing outlets would not be supported by this record. The Commissioners found that one 3.2 establishment was in the vicinity. As has been held heretofore, such an outlet would not meet the needs of the neighborhood for a package store.
[5,6] Other findings of the Commission were that the applicant failed to file with the Board plans and specifications for the interior of the building and failed to submit an architect's drawing of the building to be constructed. On this finding, if the plans and specifications were not filed at the time of the filing of the application, the Commission nevertheless accepted the plans and specifications at the hearing and admitted them into evidence. Failure to file plans at the time of the application is not fatal. There is no statutory prohibition against amending an application or supplying a deficiency prior to the consideration of the application. In this case, the hearing proceeded with the necessary plans and specifications. The building proposed to be used was already in existence. An architect's drawing of the building is therefore not a requirement of C.R.S. 1963, 75-2-40.
[7,8] Additionally, the commission stated that there were certain inadequacies as to parking and that the display area for the retail goods was too small. We can find no sanction in the law requiring parking or minimum floor area. In the absence of lawful guidelines with reference to size of a proposed outlet in any state statutes and in the absence of a county zoning requirement of the location involved, a denial based on such grounds is not lawful.
In a similar vein the Commission found that the store had inadequate toilet facilities. Here again we find no basis in the law for this criteria. If the absence of such facilities violated a county zoning resolution — which was not cited or introduced into the record — it would not be ground in and of itself for denial of the application for a liquor license. Rather, the Commission could require compliance with the zoning law before permitting the store to open. In this area, as in any zoning matter, opportunity to comply with the zoning laws and restrictions would of necessity be granted to anyone desiring to open a lawful business.
We find that the denial of this license was contrary to the rule laid down by this court in Van DeVegt v. Board of County Commissioners of Larimer County, 98 Colo. 161, 55 P.2d 703, as follows:
"Capricious or arbitrary exercise of discretion by an administrative board can arise in only three ways, namely: (a) By neglecting or refusing to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it. (b) By failing to give candid and honest consideration of the evidence before it on which it is authorized to act in exercising its discretion. (c) By exercising its discretion in such a manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions. 'The intendment of law which grants discretionary power to licensing officers, whether expressly or by necessary implication, is that the discretionary decision shall be the outcome of examination and consideration; in other words, that it shall constitute a discharge of official duty, and not a mere expression of personal will.' 19 R.C.L. 968, 265."
The judgment of the district court is reversed and the cause remanded to the court with directions that the case be remanded to the Board of County Commissioners of Larimer County to order it to grant the license.
MR. CHIEF JUSTICE MCWILLIAMS and MR. JUSTICE GROVES dissenting.