Summary
In Huerta v. Canjar, 37 Colo. App. 462, 550 P.2d 897 (1976), the court of appeals reversed the decision of the district court and ordered that the license be issued.
Summary of this case from Canjar v. HuertaOpinion
No. 75-478
Decided March 25, 1976. Rehearing denied April 15, 1976. Certiorari granted June 14, 1976.
In mandamus action to require Director of Excise and Licenses to issue wine and beer license to restaurant, plaintiff appealed trial court's denial of relief.
Reversed
1. INTOXICATING LIQUORS — No Other Licenses — Same Type — Consideration of Other Types — Determination — Requirements of Neighborhood — Erroneous. Where there were other establishments within the designated neighborhood licensed to dispense spirituous liquors in addition to beer and wine, but no licensed establishment of particular classification proposed by plaintiff, other types of license within the area should not be considered in passing on the application at issue, and only outlets of the same classification should be considered in determining whether the reasonable requirements of the neighborhood are already being met by existing outlets.
2. Licensing Authority — No Outlet in Neighborhood — Denial of License — — Abuse of Discretion. Refusal of a licensing authority to issue a specific type of liquor license where there is no outlet of that classification within the designated neighborhood is arbitrary and capricious and thus constitutes an abuse of discretion.
Appeal from the District Court of the City and County of Denver, Honorable Gilbert A. Alexander, Judge.
Harvey N. Winchester, for petitioner-appellant.
Max P. Zall, City Attorney, Lloyd K. Shinsato, Assistant City Attorney, for respondents-appellees.
Division III.
This is an appeal from an order denying issuance of a writ in the nature of mandamus under C.R.C.P. 106, which was sought by appellant, Delfino Huerta, to order the Director of Excise and Licenses for the City and County of Denver (the Director) to issue him a beer and wine license as an incident to his operation of a restaurant specializing in the service of Mexican food.
After full hearings, the Director found that the premises intended to be utilized were suitable in all respects, that the required notification of application had been made, that Huerta's character and reputation were satisfactory, and that there was no "beer and wine" license outlet in the designated neighborhood. See § 12-47-141(2), C.R.S. 1973. The record also adequately shows the existence of substantial support for the issuance of the license based on petitions in favor of its issuance. See Goehring v. Board of County Commissioners, 172 Colo. 1, 469 P.2d 137; Board of County Commissioners v. Whale, 154 Colo. 271, 389 P.2d 588.
The application was denied, however, on a finding that, although none of the other restaurants in the area were licensed to sell just beer and wine, petitioner had nevertheless failed to demonstrate that the needs of the neighborhood were being inadequately met by the existing licensees. The Director came to this conclusion on the basis that neighboring licensees who were offering their customers spirituous liquor, as well as fermented beverages, were sufficiently filling these needs. Huerta then filed his petition for mandamus in the district court.
His principal contention is that the Director abused his discretion in denying issuance of this license solely on the grounds of the adequacy of the existing outlets even though no license of the exact classification sought had been issued with the designated area at the time this application was considered.
The General Assembly has created a number of separate classifications for licenses for the sale of alcoholic beverages. Section 12-47-106 et seq., C.R.S. 1973. Among these classifications is one permitting sale by hotels and restaurants of "beer and wine," § 12-47-111, C.R.S. 1973. A license permitting such establishments to sell spiritous liquors in additions to beer and wine to their patrons is an entirely separate class of permit. Section 12-47-112, C.R.S. 1973. The need for separate classification is obvious in that an exclusively beer and wine license in a restaurant situation will serve a different clientele than that of a license which also provides for the service of spirituous liquors. Provision for these separate classifications was not an arbitrary or unreasonable act on the part of the legislature.
[1] Here it is conceded that although there were numerous establishments within the designated neighborhood licensed to disperse spirituous liquors in addition to beer and wine, there were no licensed establishments of the particular classification proposed by Huerta. Other types of licenses within an area are not to be considered in passing on an application for a license of a different classification. Only outlets of the same classification should be considered in determining whether the reasonable requirements of the neighborhood are already being met by existing outlets. Board of County Commissioners v. Skaff, 139 Colo. 452, 340 P.2d 866. See also Goehring v. Board of County Commissioners, supra.
The Director cites McIntosh v. Littleton, 145 Colo. 533, 360 P.2d 136, to support his contention that the license sought by Huerta is identical to those already issued within that area, because the merchandise to be offered by Huerta's proposed restaurant is included in that presently being offered by the other licensees. We find McIntosh to be inapposite. There a license for drug store retail sale of package liquors was sought. Denying the application, the local licensing authority considered all existing package liquor outlets, and did not confine its attention merely to drug stores engaged in retail sale of liquors. Our Supreme Court held that the licensing authority had not abused its discretion since the liquor merchandise to be sold, whether from drug or liquor stores, was identical. Here, however, the merchandise offered by the proposed outlet is not identical to that being offered by the existing outlets in that Huerta's restaurant would sell only beer and wine and would not offer its customers spirituous liquor.
[2] It is well settled that the refusal of a licensing authority to issue a license where there is no outlet of a given classification within the designated neighborhood is arbitrary and capricious and thus constitutes an abuse of discretion. Hence, the district court should have issued a mandate directing the issuance of the license. Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970.
Since the issues already treated in this opinion are dispositive of this case, we need not treat the other allegations of error raised by Huerta.
Judgment reversed and cause remanded with directions to the trial court to remand the cause to the Director for issuance of the license.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.