Opinion
Nov. 8, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1112
Walter L. Wagenhals, City Atty., Douglas H. Brown, Asst. City Atty., Boulder, for defendant-appellant.
No appearance for plaintiff-appellee.
ENOCH, Judge.
This is a liquor license case. The Fermented Malt Beverage Licensing Authority, Boulder, Colorado (Authority) appeals from a district court judgment that reversed the Authority's denial of a license to Gary Schoenbeck (Applicant). Applicant had applied for a license to sell 3.2 beer for consumption on and off the premises pursuant to C.R.S. 1963, 75--1--1 et seq., as amended. We reverse the judgment of the district court. The Applicant did not enter an appearance in this appeal.
At the time of his application, applicant had leased a building in the 'Hill' area of Boulder, and he planned to operate a restaurant called 'The Keg.' Although there were other restaurants and 3.2 establishments in the same area, Applicant anticipated that he could provide a unique service by offering his customers a combination of fast service and low prices. At the hearing before the Authority, Applicant presented both oral testimony and documentary evidence in support of his application. Local citizens, primarily potential competitors, appeared in opposition to the application.
I.
The Authority's first contention is that the Applicant failed to disclose on his application all of the required information. Applicant stated on both the State and City license applications that he was the only person who had an interest in the license.
It is necessary that all parties having an interest in the license be identified in the application in order for the Authority to make a determination as to character and reputation as required in 1965 Perm.Supp., C.R.S. 1963, 75--1--5(1)(c). Applicant's own testimony revealed that another individual owned forty per cent of a corporation, Collegiate Services, Inc., in which Applicant had a similar interest. It was further disclosed that the other individual had transferred $14,000 through Collegiate Services to be used by Applicant in the business venture for which the license was sought. There was a conflict in the evidence as to whether this $14,000 was a bona fide loan to Applicant or whether it represented an investment interest by the other individual.
There is sufficient evidence in the record to support the finding of the Authority that Applicant had not made a full disclosure of the parties directly interested in the license application. Where the evidence is such that reasonable minds might well differ, the local licensing authority is not chargeable with any arbitrary or capricious action in its denial of the application, and the appellate court will not substitute its judgment for that of the local licensing authority. Howard v. Ewing, 160 Colo. 246, 416 P.2d 367.
II.
The Authority's other contention is that the district court erred in holding that the Authority acted arbitrarily in determining that the reasonable requirements of the neighborhood were sufficiently served by existing outlets. We agree.
To comply with C.R.S. 1963, 75--1--5(1)(d), the burden is on the Applicant to show the 'requirements' of the neighborhood as well as the 'desires' of its inhabitants for the proposed additional license. Jennings v. Hoskinson, 152 Colo. 276, 382 P.2d 807. There were six existing similar licenses within the 'Hill' area, and there was evidence that holders of several other licenses had gone out of business in recent years. Although the testimony and evidence presented by Applicant could be construed to show a Desire by residents of the neighborhood for the license, such a desire falls short of establishing the 'requirements' of the neighborhood. Vigil v. Burress, 157 Colo. 507, 404 P.2d 147, Tavella v. Eppinger, 152 Colo. 506, 383 P.2d 314. There is ample evidence to support the findings and conclusion of the Authority.
Judgment is reversed and cause remanded with directions to reinstate the Authority's order denying the license.
SILVERSTEIN, C.J., and DWYER, J., concur.