Opinion
No. 75-221
Decided November 6, 1975. Rehearing denied November 28, 1975. Certiorari granted February 9, 1976.
Trial court upheld Board of County Commissioners denial of plaintiffs' application for a retail liquor store license, and plaintiffs appealed.
Reversed
1. INTOXICATING LIQUORS — Denial of Application — Retail Liquor Store — Neighborhood Adequately Served — No Outlets — Finding Cannot Stand. Denial of Application for retail liquor store license based on conclusion that neighborhood needs were being met by nearby outlets could not stand where evidence indicated that no retail liquor establishment existed within neighborhood or within two miles of any of the neighborhood's boundaries.
2. Retail Liquor Store — Applicant — DWAI Conviction — Not — Crime of Moral Turpitude — Not Sufficient Basis — Denial of Application. Finding that one applicant for retail liquor store license was unfit by reason of a prior conviction for the misdemeanor of driving while ability impaired was not a sufficient basis for denial of the application; only convictions for crimes of moral turpitude, which that offense is not, can serve to justify denial of license.
Appeal from the District Court of Mesa County, Honorable William M. Ela, Judge.
Younge, Hockensmith, Griffin Robb, Kirk Rider, for plaintiffs-appellants.
Gerald J. Ashby, County Attorney for defendants-appellees.
Division III.
This is an appeal from a judgment of the district court which upheld the action of the defendant Board of County Commissioners in denying the application of plaintiffs, Verne and Joanne Hartman, for a retail liquor store license. We reverse.
Desiring to open a package liquor store in Clifton, a small unincorporated community in Mesa County, plaintiffs made application to the local licensing authority, in this case the Board of County Commissioners. See § 12-47-137(2)(b), C.R.S. 1973. Prior to the hearing, the Board designated an area to be considered as the "neighborhood." No retail liquor store existed within that neighborhood. The closest outlet of that type was located over two miles from the eastern boundary line of the designated neighborhood, a total of 4.2 miles from the location for which plaintiff sought a license. At the hearing before the Board, there were presented petitions containing some 800 signatures of residents of the neighborhood favoring, and petitions containing a slightly greater number of signatures of residents opposing, issuance of the license. Several witnesses testified in opposition to issuance of the license, including a minister who represented a large group of opponents and whose testimony indicated opposition to liquor in general, but who also alleged that issuance of the license in this unincorporated area would create a burden to the sheriff's office. Evidence was also presented that Mr. Hartman had pled guilty to a charge of driving a motor vehicle while his ability was impaired by alcohol. No other evidence was presented which in any way disparaged the character or reputation of the applicants.
Following the hearing, the Board rendered a written opinion denying the application and stating that:
"Recognizing that the issue is a close one, the Board determines that the application should be denied for the reasons that the needs of the neighborhood are being met by outlets near the neighborhood and the question of the fitness of one of the applicants indicated by the conviction of a misdemeanor related to the use of alcohol."
The plaintiffs sought review, and the district court upheld the action of the commissioners in denying the license.
[1] With respect to the first basis for denial, plaintiffs argue, and we agree, that since there are no retail liquor stores within the designated neighborhood, and since none exist for over two miles from any boundary of the neighborhood, the Board's conclusion that "the needs of the neighborhood are being met by outlets near the neighborhood" cannot stand. See Board of County Commissioners v. Whale, 154 Colo. 271, 389 P.2d 588; Booth v. Silver Plume, 28 Colo. App. 470, 474 P.2d 227. Such a finding, based upon the record before us, was arbitrary and capricious, and it would be useless to remand the case for further findings since "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." Goehring v. Board of County Commissioners, 172 Colo. 1, 469 P.2d 137.
The second basis for the Board's denial of the application was "the question of the fitness of one of the applicants indicated by the conviction of a misdemeanor related to the use of alcohol." The matter alluded to is Mr. Hartman's plea of guilty to a charge of "driving while ability impaired" which the commissioners contend, pursuant to § 12-47-141(2), C.R.S. 1973, is a "pertinent matter affecting the qualifications of the applicant for the conduct of the business proposed." We disagree.
By § 12-47-118(1)(a)(III), C.R.S. 1973, it is provided that liquor licenses may not be issued to or held by "any person who is not of good moral character," or by subparagraph (VIII), "any person, unless he is with respect to his character, record, and reputation satisfactory to the respective licensing authority." However, subparagraph (1)(b) states that "In making a determination as to character or when considering the conviction of a crime, a licensing authority shall be governed by the provisions of section 24-5-101, C.R.S. 1973." That statute relates to the effect of criminal convictions on employment rights and states that its intent "is to expand employment opportunities for persons who, notwithstanding the fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society." It also provides that:
"Whenever any state or local agency is required to make a finding that an applicant for a license . . . is a person of good moral character as a condition to the issuance thereof, the fact that such applicant has, at some time prior thereto, been convicted of a felony or other offense involving moral turpitude . . . shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application. (emphasis supplied)
[2] We conclude that the sections of Title 12 quoted above as "governed" and modified by Title 24 require that only those offenses involving "moral turpitude" can serve as justification for denial of a liquor license. We conclude further that while "driving a motor vehicle while ability is impaired" is a serious offense, nevertheless it does not rise to the magnitude of being one involving moral turpitude. Flowers v. Benton County Beer Board, 202 Tenn 56, 302 S.W.2d 335.
Since neither of the two bases upon which the commissioners relied in their denial of the license is valid, the judgment is reversed and the cause remanded with directions to the district court to order the issuance of this license by the Board of County Commissioners.
JUDGE PIERCE and JUDGE VAN CISE concur.