Opinion
No. 21686.
Decided February 6, 1967. Rehearing denied February 27, 1967.
From a judgment of the district court affirming an action of the city council in granting retail liquor store license to applicant, competing license holder brings error.
Affirmed.
1. INTOXICATING LIQUORS — Sufficiency of Evidence — Retail License — Hearing — Investigation. Record reflects sufficient evidence to sustain action of city council in granting applicant retail liquor store license where its decision was based on evidence presented at hearing as well as on information gathered by investigation.
2. Retail License — Determination — Council — Discretion. Reviewing court does not find such an abuse of discretion as to warrant reversing determination of city council which granted retail liquor store license to applicant, notwithstanding fact that evidence was such that reasonable men might draw different conclusions.
3. Time Limitation — Presentation — Cross-examination — Restriction. There is no merit to competitor's argument that council erroneously limited time available for presentation of his case in opposition to granting of license and that he was restricted in his right to cross-examine.
4. Hearing — Adversary Proceeding. A liquor license hearing is not an adverse proceeding.
5. Competitor — Applicant — Witnesses — Cross-examination — Hearing. Neither competitor of applicant for liquor license, as a witness, nor any of the witnesses, had right to cross-examine all of the other witnesses at liquor license hearing.
Error to the District Court of Jefferson County, Honorable Martin C. Molholm, Judge.
Tinsley, Alperstein, Frantz Plaut, for plaintiff in error.
Robert H. Sonheim, for defendant in error The City Council of the City of Arvada.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John P. Moore, Assistant, for defendant in error Byron A. Anderson.
Harold D. Lutz, for defendant in error Howard Ainbinder.
This writ of error is directed to a judgment of the district court of Jefferson County, affirming the action of the Arvada City Council in granting a retail liquor store license to one Howard Ainbinder, doing business as Arvada Plaza Liquor Store, hereinafter referred to as applicant.
Plaintiff in error is a competing license holder and was one of the objectors to the granting of the license. He will be referred to as Lassak.
In his summary of argument Lassak has presented, among other points, the contention usually found in cases of this type, namely, that the findings of the City Council were insufficient; that the action of the Council was not supported by the evidence; and that the neighborhood was not sufficiently identified.
On these points, we hold that the Arvada Council did come to grips with the question of the neighborhood; particularly with regard to the nature of a shopping center as distinguished from the traditional concept of a neighborhood; it also considered the area which this particular shopping center proposed to serve and the traffic flow. There were in the record detailed maps and aerial photos of the area considered to be the neighborhood. As to whether the record is sufficient to sustain the Council action, we note that the Council's decision was based on evidence presented at the hearing as well as on information gathered by investigation.
The evidence is typical of cases of this nature in that reasonable men might draw different conclusions. However, we do not find such an abuse of discretion as to warrant reversing the determination made by the Arvada Council. See Board of County Commissioners of Adams County v. Bova, 153 Colo. 230, 385 P.2d 590.
[3-5] Other arguments raised by Lassak which this court has not heretofore passed upon concern the manner in which the City Council conducted the hearing, Lassak contends that the Council erroneously limited the time available for the presentation of his case in opposition to the granting of the license and also that he was restricted in his "right to cross-examination." These contentions are without merit. A hearing of this nature is not an adversary proceeding. Lassak, although opposing the license, was not a party but merely a witness, along with other witnesses, opposing the granting of a license for various reasons. Although Lassak had a more direct interest because of his own store in an adjacent shopping center and thus appeared at the hearing with counsel, neither he nor any of the witnesses had a "right" to cross-examine all of the other witnesses.
The Supreme Court of the United States in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307, (wherein is contained an exhaustive appendix showing the various provisions of statutes in numerous states on hearing procedures of administrative tribunals) has significantly defined the rights of persons appearing as witnesses before various such agencies. In the Hannah case the United States Supreme Court very aptly and cogently pointed out that:
"* * * the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings, and if persons who might be indirectly affected by an investigation were given an absolute right to cross-examine every witness called to testify. Fact-finding agencies without any power to adjudicate would be diverted from their legitimate duties and would be plagued by the injection of collateral issues that would make the investigation interminable. Even a person not called as a witness could demand the right to appear at the hearing, cross-examine any witness whose testimony or sworn affidavit allegedly defamed or incriminated him, and call an unlimited number of witnesses of his own selection. This types of proceeding would make a shambles of the investigation and stifle the agency in its gathering of facts.
We are completely in accord with the rationale of this statement.
The judgment is affirmed.
MR. JUSTICE McWILLIAMS not participating.