Opinion
Aug. 6, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1319
Mendenhall & Mendenhall, H. Barton Mendenhall, Cover Mendenhall, Rocky Ford, for plaintiff-appellant.
Jenkins & Sandstrom, P.C., Gene L. Breitenbach, Pueblo, for defendants-appellees.
KELLY, Judge.
Loaf 'N Jug, Inc., petitioned in the trial court under C.R.C.P. 106(a)(4) for review of the proceedings before the Walsenburg City Council which resulted in the denial of its application for a license for the sale of fermented malt beverages for consumption off the premises only. The trial court dismissed the petition. We affirm.
Loaf 'N Jug contends here, as it did in the trial court, that the council's denial was based on improper considerations and was unsupported by the evidence; that the proposed outlet was not similar to any outlet existing in the city of Walsenburg; and that the city council unreasonably restricted the designated neighborhood to the four-block radius of the proposed outlet.
Under s 12--46--107, C.R.S.1973, the local licensing authority is vested with wide discretion. See Big Top, Inc. v. Hoskinson, 158 Colo. 400, 407 P.2d 26. If there is competent evidence to support the city council's determination, it should not be set aside on review unless the council's actions were arbitrary and capricious. See Bailey v. Board of County Commissioners, 151 Colo. 115, 376 P.2d 519; City of Manitou Springs v. Walk, 149 Colo. 43, 367 P.2d 744.
In this case, the city council's denial of Loaf 'N Jug's application is supported by the evidence. Moreover, there is no showing that the council abused its discretion. It is true that the petitions in opposition to the outlet do not reveal that they were signed by residents of the designated neighborhood only. However, the record before us consists primarily of a stipulation between the parties of what occurred before the council and we are unable to determine to what extent, if any, the council relied either on the petitions of the opponents or the petitions of the proponents in reaching its conclusion. In view of the rule that all reasonable doubts of the correctness of the licensing authority's actions are to be resolved in favor of the authority, we are unable to conclude that the city council's determination was improper or that there was an abuse of discretion. See Board of County Commissioners v. Salardino, 138 Colo. 66, 329 P.2d 629.
It is also true that irrelevant factors, such as littering and vandalism, were before the council. Again, the extent to which it relied on these matters in reaching its conclusion is not clear from the record. It appears, however, that the council's primary considerations were based on the needs of the neighborhood, and desires of the inhabitants, as required by s 12--46--105(1) (c), C.R.S.1973, and thus, the possibility that irrelevancies were also considered does not constitute reversible error. See Mobell v. Meyer, 172 Colo. 12, 469 P.2d 414.
The record shows that there are two other outlets within the designated area for consumption of 3.2% Beer both on and off the premises and that the council recognized the difference between Loaf 'N Jug's proposed outlet and outlets selling for on the premise consumption only. Under these circumstances, the absence of other outlets of the specific type applied for within the designated neighborhood did not, of itself, render the denial of the application arbitrary. 'Where there are a number of licensed outlets in an area, their inadequacy, if any, to serve the needs of the neighborhood should be shown by the applicant.' Jennings v. Hoskinson, 152 Colo. 276, 382 P.2d 807. Here, the record does not reveal that the applicant sustained this burden. See McIntosh v. Council of the City of Littleton, 145 Colo. 533, 360 P.2d 136.
Loaf 'N Jug's contention that the designation of an area four blocks in each direction from the location of the proposed outlet was unreasonable is without merit. This is a matter within the discretion of the city council, and there has been no showing here of an abuse of that discretion. See Potter v. McClearn, 171 Colo. 334, 467 P.2d 54.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.