Opinion
July 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 512
Carroll, Bradley & Ciancio, P.C., Gene A. Ciancio, Denver, for plaintiffs-appellees.
S. Morris Lubow, Larry W. Berkowitz, Brighton, for defendants-appellants.
SMITH, Judge.
Appellant Board of County Commissioners denied to appellees Claude and Alice Webster, d/b/a Denver-North KOA Kamp-Ground, a license to sell 3.2% Fermented malt beverages. The Websters sought review pursuant to C.R.C.P. 106 in the district court, which found that the Board had abused its discretion in denying the license, and ordered that the requested license be issued. We affirm the court's order.
On January 31, 1973, the Websters filed an application for a fermented malt beverage license, for consumption both on and off the premises. The proposed site for the license is a commercial campground owned and operated by the Websters. The 'neighborhood' delineated by the Commission comprised 18 square miles of rural Adams County. Testimony disclosed that most of the beverage customers are likely to be temporary residents of the Websters' campground and that the beverages are to be sold in the campground's small grocery store. It was clear from the evidence that no beverages were to be sold by the drink or were to be consumed in the store, and presumably most of the beverages would be consumed on that portion of the campground leased by temporary residents for the purpose of parking their campers or erecting their tents.
At a hearing before the Board, on October 17, 1973, petitions were presented which showed that approximately 150 individuals living in the immediate vicinity indicated that they supported the issuance of a license at the campground. Eleven individual petitioners were opposed to the issuance. Several witnesses were called to testify in favor of issuance and two opponents also testified. However, these latter individuals admitted that they were, respectively, the wife and a sister-a-law of the owner of the only other alcohol beverage outlet of any type in the neighborhood, which was located more than a mile from the campground.
Some of the witnesses who testified in favor of the issuance of the license stated that while they probably would not buy beer at the campground, they believed there was a definite need for the license because individuals patronizing the campground had difficulty in driving to other locations to purchase beer because of both distance and remoteness. The only other alcoholic beverage outlet within the 18 square mile 'neighborhood' is located at the intersection of State Highway 7 and a section line road more than one miles east of I--25 (U.S. 85), the only major arterial in this part of Adams County. Applicants' campground is located adjacent to I--25 at a point where an intersection has been constructed to allow ingress and egress to this limited access highway.
After taking the matter under advisement, the Board denied the license. The Board concluded that: (1) The Websters failed to establish that the reasonable requirements of the neighborhood are not being met; (2) that the needs of the neighborhood are being met by the other outlet; and, (3) that the testifying witnesses would not patronize the campground outlet and only signed the petition as a favor to the Websters.
Section 12--46--105(1)(c), C.R.S.1973, states:
'In considering the issuance of licenses, the licensing authority, either state or local, shall consider the reasonable requirements of the neighborhood and the desires of the inhabitants as evidence by petitions, remonstrances, or otherwise.'
In the instant case, patrons of the campground constitute an integral part of the neighborhood and their needs and desires clearly can and should be considered in making the statutorily required determinations. Cloverleaf Kennel Club v. Board of County Commissioners, 136 Colo. 441, 319 P.2d 487. Since the Websters obtained, by petition, the signatures of 150 inhabitants of the neighborhood who were unequivocally in favor of issuance of the license, as opposed to only 11 who were opposed, and since there was no evidence that any of the proponents signed only as an accommodation or favor to the Websters, the applicants have sufficiently met their statutory burden of establishing that the needs of the neighborhood and desires of the inhabitants favored issuance of the license. The fact that some of the local inhabitants who signed the petition had no intention of purchasing beer at the campground store does not logically support the Board's denial. The crucial issue is the inhabitants' evaluation of the needs of the neighborhood and their desire for the outlet, regardless of whether they intend to avail themselves of the licensed facility.
At the hearing, the Board was also apparently concerned about the prospect of the beer being consumed by the drink in the public area of the grocery store. This concern was unfounded since the undisputed evidence established that the beer was to be consumed in private campers or on the land leased to the campground's customers.
The decision of an administrative board is arbitrary or capricious where it is based upon evidence from which reasonable men, fairly and honestly considering the evidence, could only reach a conclusion contrary to that reached by the Board. Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606; Van DeVegt v. Board of Commissioners, 98 Colo. 161, 55 P.2d 703. From our examination of the record, we conclude that the Board disregarded the evidence presented at the hearing, and thereby, did not properly consider the needs of the neighborhood and desires of the inhabitants. We therefore also conclude, as did the trial court, that the decision of the Board was arbitrary and capricious.
Judgment affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.