Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 578
F. T. Henry and William T. Eckhart, Colorado Springs, for plaintiff in error.
Donald E. La Mora, Colorado Springs, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This appeal was brought by the City of Colorado Springs from a District Court decision which reversed the city's denial of Texas Southland's application for a Fermented Malt Beverage License. We will refer to the plaintiff in error as the City and the defendant in error as the Applicant.
The City alleges two errors by the District Court: first, that the Court erred in its conclusion that the Applicant had made a prima facie showing that a license should issue; second, that the Court erred in its conclusion that the City acted arbitrarily and capriciously in denying the license.
We affirm the District Court.
The trial court found that the Applicant made application in proper form and in all other procedural matters conformed to the law. At the hearing before the City Council it was shown that, within the neighborhood designated by the City, (a circle with a 1500 foot radius) there were no 3.2 beer outlets, and that the nearest such outlet was 1.6 miles away. At trial in the District Court the parties stipulated that at the time of the Council hearing no retail grocery store had ever been issued a license in Colorado Springs. Further, it was shown by the Applicant through petitions signed by 290 persons (40 of them residents of the neighborhood and the remainder customers of the store) that the license was necessary to meet the reasonable requirements of the neighborhood. The City conducted its own survey and found that within the defined neighborhood sixty-eight persons favored issuance of the license, thirty-nine were opposed to it and twenty-eight had no opinion. At the Council hearing the Applicant presented testimony as to the large number of requests made by store customers for 3.2 beer. No one appeared at the hearing in opposition to the license nor were any remonstrances or petitions filed with the City opposing such action.
Under this set of facts the Applicant had clearly established a prima facie showing that the license should issue.
The findings of the trial court, substantiated by the record, clearly support the trial court's conclusion that the City acted in an arbitrary and capricious manner in denying the license. As noted above, the Applicant established a prima facie case for issuance of the license. This case was not controverted or overcome by any competent evidence offered in opposition. Further, as noted above, there were no outlets of this kind in the designated neighborhood. Under these circumstances it was arbitrary not to grant the license. Board of County Commissioners v. Johnson, Colo., 460 P.2d 770.
Finally we note that one of the Councilmen admittedly disregarded some of the evidence in reaching his conclusion, stating,
'The comment I would like to make about the objectors, that I think we should take into consideration, is the fact that the home owners, when you consider the owners who are probably going to be there much longer than the actual tenants and perhaps apartment houses and so forth, we cut the ratio down to pretty close to 50--50, and I think there's enough objection from the home owners that I * * * it would substantiate my being against the license.'
There is no statutory basis for giving the desires of 'home owners' more weight than resident 'tenants'. Such a weighting is clearly contrary to the controlling statute, C.R.S.1963, 75--1--5(d), which provides:
'In considering the issuance of licenses the licensing authority * * * shall consider the reasonable requirements of the neighborhood and the desires of the Inhabitants * * *.' (emphasis supplied)
Tenants, as well as home owners, are inhabitants, and their desires must be given equal consideration. See Pike v. School District No. 11, Colo., 474 P.2d 162.
Judgment affirmed.
COYTE and DUFFORD, JJ., concur.