Opinion
Sept. 12, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bruce L. Jarchow, Steamboat Springs, Wesley H. Doan, Denver, for plaintiff-appellee.
Nicholas Magill, Roy S. Kullby, Steamboat Springs, for defendant-appellant.
COYTE, Judge.
The Town Board of Steamboat Springs seeks reversal of a judgment of the district court rendered on certiorari proceedings setting aside the Board's findings and conclusions denying a hotel and restaurant liquor license to the plaintiff for premises located at 738 Lincoln Avenue, Steamboat Springs, Colorado.
The applicant proposed the operation of a restaurant with a so-called three-way restaurant liquor license which permits the holder to sell beer, wine and spirituous liquor to its customers by the drink only for consumption on the premises.
At the commencement of the hearing on December 1, 1970, the geographic extent of the neighborhood was, by motion of the Board, determined to be within a five-mile radius surrounding the proposed location.
At the hearing, petitions bearing the signatures of 323 persons who favored the granting of the license, were admitted in evidence. These petitions which show the type of license for which application was made, name of applicant and location of the proposed outlet also state:
'The undersigned believe that there is a reasonable need for the license in the neighborhood.'
Remonstrances bearing the signatures of 96 persons were introduced into evidence. These remonstrances stated:
'The undersigned persons appeal to the Steamboat Springs Town Board to vote NO for the proposed liquor license for The 'Side Step' establishment at 738 Lincoln Ave, Steamboat Springs, Colorado.'
Fourteen witnesses, including two of petitioner's competitors, testified in favor of applicant to the effect that there was a need for the outlet and that the inhabitants desired the issuance of the license.
Four persons testified in opposition to the granting of the license. One was a next-door competitor whose father was on the City Council; two were of the opinion that existing outlets were serving the needs of the people. All were concerned primarily with the parking problem that might be created.
There was evidence that the Steamboat Springs area constituted a rapidly-growing and expanding area with a great influx of temporary residents interested in skiing and recreation, as well as a great number of new permanent residents.
In its decision denying the application the Board stated:
'Although the purported signatures on the petition favoring issuance of the license numerically preponderate over those on the petition opposing the issuance of the license, the Board is not satisfied that the desires of the inhabitants of the neighborhood favor the issuance of the license. No satisfactory showing was made that all of the purported signatories on the petition favoring the license are inhabitants of the neighborhood, and there are many names thereon unknown to the Board, and the Board is unable through recognition of names to make a determination as to whether such persons are inhabitants of the neighborhood . . ..
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'On the other hand the petition of those opposing the issuance of the license shows names, with few exceptions, recognizable to the Board as the names of persons who are inhabitants of the neighborhood . . ..
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'The Board is more impressed with the petition of the protestants than that of the proponents as representing the desires of the inhabitants of the defined neighborhood. The numerical preponderance of the names on the proponents' petition has little significance where the Board has neither knowledge nor evidence as to whether many of the signatories are inhabitants of the defined neighborhood . . ..'
At the conclusion of the hearing the matter was continued to a day certain so that the Council could have time to examine the names on the petition and determine the residence of the signatories. Many signatories show the address as Steamboat Springs or give a postoffice box in Steamboat Springs. However, when the Council reconvened on that day certain it had made no record and had taken no testimony as to whether the signers lived within or without the area, and it announced its decision denying the applicant a license on the basis that the reasonable requirements and needs of the neighborhood did not warrant the issuance of the license and that the desires of the inhabitants of the neighborhood were opposed to the issuance of the license.
Applicant appealed to the District Court of Routt County, which held that the City Council had acted in an arbitrary and capricious manner in denying the license to petitioner and ordered that the Town Board forthwith issue a license to petitioner. The Board appeals from that decision. We affirm.
The testimony relative to need is essentially undisputed in favor of the applicant. There was evidence of other outlets in the five-mile radius area, but no evidence to refute petitioner's evidence as to need. The existence of other outlets in the area does not in itself establish that the needs of the neighborhood are being met. Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606.
Despite significant evidence indicating that the signatories on applicant's petitions were residents of the designated neighborhood, the Board, without evidentiary support, discounted these petitions on the basis that some of the signers were not shown to be inhabitants of the neighborhood. On the other hand, the Board gave substantial weight to the submitted 'remonstrances'. These documents were not addressed to any relevant issue as regards the issuance of the liquor license, except possibly an expression of the desires of the signers.
As stated in Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970:
'Consistency should not be the hobgoblin of the law. Not only should rulings be correct, but courts and boards should be consistent in their rulings. Different rules on a question should not be applied, one for the affirmative of the issue and another for the negative; such procedure is destructive of the fairness with which hearings should be conducted.'
Considering the record as a whole, it is apparent that the Board acted in an arbitrary and capricious manner in denying petitioner's application for a license. The trial court was correct in so finding and in ordering the issuance of the license.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.