Opinion
French & Paynter, F. Lynn French, Crested Butte, for petitioner-appellant Mesa Pizza Hut, Inc.
Seraphine, Bratton, Alexander & Ranous, Charles Alexander, Gunnison, for petitioners-appellants Thomas J. Rais and Katherine A. Rais.
C. Patrick Carrico, Gunnison, for respondent-appellee.
COYTE, Judge.
This is a consolidated appeal from the denial of two applications for the issuance of two retail 3.2% Beverage licenses by the City of Gunnison and the subsequent dismissal of the applicants' complaint before the district court. We reverse.
Appellants, Mesa Pizza Hut and the Raises, applied separately for on-premises consumption 3.2% Beer licenses for their restaurants in Gunnison. The hearings on their applications were scheduled to be heard by the City Council on the same evening. They stipulated before the City Council that evidence as to needs and desires of the neighborhood presented by either party would be considered as going to each application so as to prevent duplication of testimony and that evidence in opposition to either application would be considered as applying to each application. However, the applications were to be considered separately by the City Council.
At a hearing before the Gunnison City Council on these applications, testimony and petitions were presented on the needs and desires of the community. At a later meeting, the application of Rais was denied by a four to one vote and the Mesa Pizza Hut application was denied by a three to two vote. The council members read their reasons for their votes into the record. Applicants filed a joint appeal to the district court which affirmed the decision of the City Council as to each application and dismissed their complaint. They filed a joint appeal in this court. There is no issue raised as to the priority of either application over the other.
Applicants contend that the Gunnison City Council acted in an arbitrary and capricious manner and abused its discretion in denying each of the licenses. We agree.
The only factors to be considered by the City Council in ruling on a beer application are 'the reasonable requirements of the neighborhood and the desires of the inhabitants as evidenced by petitions, remonstrances, or otherwise.' Section 12--46--105(1), C.R.S. 1973, See also Mobell v. Meyer, 172 Colo. 12, 469 P.2d 414. These needs and desires were evidenced by the petitions presented by the applicants at the hearing, and, while mere numbers are not determinative, See Vigil v. Burress, 157 Colo. 507, 404 P.2d 147, the evidence was overwhelming that the residents felt their needs were not being met. The verified signatures on the petitions presented at the hearing showed 357 people in favor of the Rais' application, and 85 against, while the Mesa Pizza Hut application had 623 in favor and 75 opposed. Also indicative of the needs of the city was the testimony as to the increase of the college population since the last 3.2% Beer license had been granted. The only similar outlet in the area was granted in 1968 and was located approximately one mile from the location of either applicant.
Hence, the evidence in favor of the granting of the licenses showed a Prima facie case for the issuance of the licenses. County Commissioners v. Skaff, 139 Colo. 452, 340 P.2d 866.
The record of the council as to reason for voting against the granting of the license by council members shows that they based their decision on matters outside the record and immaterial to the issues before the council. Mere suspicion that there might be future problems with noise, policing, and parking is not a valid reason to deny a license. Mobell v. Meyer, supra. See also City of Manitou Springs v. Walk, 149 Colo. 43, 367 P.2d 744. One council member stated that he had heard as many people speak against granting the license as there were names on the petitions. This cannot be supported by the record. Furthermore, most of those who testified in opposition to granting the licenses feared competition with their already existing businesses or thought that by granting the license the teenagers in the community would be deprived of a 'hang out.' Another councilman felt that the real desires of the students in the area had been demonstrated by their voting against on-campus beer four or five years before. However, the present, not past, desires of the community must be considered. See Vigil v. Burress, supra.
Once the applicants have presented a Prima facie case, there must be evidence in the record to rebut it. County Commissioners v. Skaff, supra. As the record is insufficient to rebut the Prima facie case made by the applicants, we must conclude that the City Council arbitrarily denied the issuance of the license. That is, it failed to consider the evidence presented, and instead refused the licenses for reasons insufficient as a matter of law. See Van De Vegt v. County Commissioners, 98 Colo. 161, 55 P.2d 703; See Goehring v. County Commissioners, 172 Colo. 1, 469 P.2d 137.
Judgment reversed and cause remanded with directions to the trial court to remand to the City Council of the City of Gunnison with directions to grant the licenses requested.
PIERCE and BERMAN, JJ., concur.