Opinion
No. 76-825
Decided September 8, 1977. Rehearing denied October 27, 1977. Certiorari denied January 9, 1978.
From a judgment affirming the denial of its application for a liquor license, applicant appealed.
Affirmed
1. INTOXICATING LIQUORS — Place of Business — Within 500 Feet — High School Athletic Field — Liquor License Application — Properly Denied. Where liquor license applicant's place of business was within 500 feet of high school athletic field, that field was "land used for school purposes," and thus the application was properly denied under statute barring issuance of liquor license to business located within that proximity to "any public . . . school . . . ."
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
Leo Gemma, Jr., for plaintiff-appellant.
Max P. Zall, City Attorney, Lloyd Shinsato, Assistant City Attorney, for defendants-appellees.
La Loma, Inc., appeals from a judgment affirming the denial of its application for a liquor license. We affirm.
La Loma's place of business is located within 500 feet of land owned by the Denver Public School District, which land is used as an athletic field for North High School. The high school is located six blocks from the field and is not contiguous thereto. The license was denied solely on the ground that the premises sought to be licensed were within 500 feet of "Denver Public School property owned and operated by the Denver Public Schools and in use."
Determination of this appeal rests on an interpretation of § 12-47-139, C.R.S. 1973, which provides in subparagraph (1)(d)(I), that no application for a liquor license shall be received or acted upon "if the building in which the liquor is to be sold is located within five hundred feet of any public . . . school . . . ." That statute further provides in subparagraph (1)(d)(III) that the distance of 500 feet is "to be computed by direct measurement from the nearest property line of the land used for school purposes to the nearest portion of the building in which liquor is to be sold . . . ." It is undisputed that the building in which the liquor was to be sold lies within 500 feet of the athletic field.
La Loma contends that the athletic field is not a "school," while the licensing authority argues that the land is being "used for school purposes," and that therefore the place where liquor is to be sold falls within the proscribed area.
La Loma relies on Rodgers v. Texas Liquor Control Board, 449 S.W.2d 292 (Tex.Ct.App. 1970), which holds that a high school stadium was not a "school" within the meaning of a statute which prohibited issuance of a liquor license to be used within three hundred feet of a school. That case is inapposite here since our statute requires that the licensee's place of business must be 500 feet from the nearest property line of "the land used for school purposes."
[1] The curriculums of the Denver Public Schools include programs for physical education and athletic activities. Such programs are authorized by statute. Section 22-32-110(1)(g), C.R.S. 1973, provides that boards of education have the power to procure supplies and equipment to carry on the athletic programs of the district. The legislative intent that physical education and athletics be a part of public school programs is apparent in the statutes. Section 22-25-102, C.R.S. 1973 (1976 Cum. Supp.) states: "The general assembly hereby funds and declares that health survival education is an essential element of public education in the state of Colorado." Section 22-25-103(1), C.R.S. 1973 (1976 Cum. Supp.) states: " 'Health and survival education' includes . . . personal health and physical fitness . . . ." Land owned by the school board and used for the purpose of carrying out the physical education and athletic programs of the school is, therefore, "land used for school purposes." See Moyer v. Board of Education of School District No. 186, 391 Ill. 156, 62 N.E.2d 802 (1945).
Since La Loma's place of business is within 500 feet of land used for school purposes, its application for a liquor license was properly denied.
Judgment affirmed.
JUDGE ENOCH and JUDGE RULAND concur.