Opinion
Oct. 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 960
Bradley, Campbell & Carney, Vincent K. Turner, Evergreen, for plaintiff-appellant.
Leonard R. Liss, County Atty., Joyce K. Herr, Asst. County Atty., Golden, for defendant-appellee.
ENOCH, Judge.
Plaintiff-appellant (Tincani) made application to the Jefferson County Board of County Commissioners (Commission) for a license to sell fermented malt beverage for consumption off premises. The application was denied. The District Court after review of the record affirmed the findings of the Commission. We affirm.
Tincani is the operator of a Conoco Travel Shoppe in Golden. His business is selling both petroleum and nonpetroleum products. The Travel Shoppe is located near the intersection of West Colfax and Interstate 70, allowing Tincani to attract patrons from highway travel as well as from the immediate neighborhood. The distance to the nearest similar license is 8/10 of a mile.
The only evidence at the hearing before the Commission was presented by Tincani in support of his application. No witnesses appeared in opposition to the application, and no remonstrances against the license were filed. Tincani contends that he had established all statutory prerequisites to entitle him to a license and that he had made a prima facie showing that the needs of the neighborhood and the desires of the inhabitants required the issuance of the license. He contends that the denial of his application under these circumstances was arbitrary, capricious, and an abuse of discretion by the Commission.
Tincani relies primarily on a petition in favor of the license signed by 235 persons at his place of business. Although the petition is evidence of Tincani's effort to sustain the burden of proof that a license is both desired and needed, it does not, by itself, necessarily constitute a prima facie showing of that fact. The Commission is only bound to accept it as one part of the whole evidentiary picture, and the validity and weight which the Commission assigns to the petition is within its reasonable discretion.
Upon examination of the petition, it is found that many of the signatures belong to persons not only living in other areas of Colorado, but also in many other states as far away as Rhode Island. These persons certainly do not reflect the 'requirements of the neighborhood,' nor the 'desires of the inhabitants.'
Though the petition does contain some signatures of persons residing within the neighborhood contiguous to the Travel Shoppe, the Supreme Court has held that the issuance of liquor licenses shall depend on the judgment of the licensing authority and not on that of the residents. MacArthur v. Presto, 122 Colo. 202, 221 P.2d 934. In MacArthur, petitions with a thousand signatures in support of a license were submitted. The court reasoned that while the petitions seemed to constitute an accurate reflection of the desires of the inhabitants, this expression of opinion is not controlling as regards the requirements of the neighborhood. See also Board of County Commissioners v. Bova, 153 Colo. 230, 385 P.2d 590. It is also noted that in this case no petitions were circulated among the residents of the neighborhood and the petition filed is insufficient to show the needs of the neighborhood and the desires of the inhabitants. Tincani, at best, presented a marginal case. It is true that no persons testified in opposition to the license, but conversely, no persons testified in favor of the license other than Tincani and one of his employees. This case is similar to Howard v. Ewing, 160 Colo. 246, 416 P.2d 367, in that it lies within a 'vast middle ground' where the Commission could have either granted or denied the issuance of a license to Tincani.
The local licensing authority is vested with a wide discretion and all reasonable doubts as to the correctness of its findings are to be resolved in its favor. Potter v. McClearn, 171 Colo. 334, 467 P.2d 54.
We conclude that the Commission acted within its reasonable and lawful discretion.
Judgment affirmed.
COYTE and DWYER, JJ., concur.