Opinion
No. 77-1108
Decided December 21, 1978. Rehearing denied January 11, 1979. Certiorari granted March 19, 1979.
Dog race tracks seeking review of racing commission action appealed from an order denying their motion for leave to file an amended complaint and granting respondents' motion to dismiss.
Affirmed
1. CERTIORARI — Dog Race Tracks — Allegations of Complaint — Administrative Action — Favored Economic Competitor — No Standing — Seek Review — Dismissal Proper. Where, in action by dog race tracks, complaint alleged that result of administrative action was to favor an economic competitor over the petitioners, the petitioners failed to show that they had been adversely affected or aggrieved by the agency action and any possible injury was indirect and incidental; thus, petitioners lacked standing under C.R.C.P. 106(a)(4) or the Administrative Procedure Act to seek review of the administrative action, and trial court's dismissal of the complaint was proper.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Jr., Judge.
Cogswell, Chilson, Dominick Whitelaw, John H. Chilson, James E. Heiser, Rector, Retherford Mullen, Leo W. Rector, for petitioners-appellants.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Jeffrey G. Pearson, Assistant Attorney General, Rothgerber, Appel Powers, James M. Lyons, for respondents-appellees.
Petitioners appeal from an order denying their motion for leave to file an amended complaint and granting respondents' motions to dismiss. We affirm.
Petitioners' complaint sought judicial review, under C.R.C.P. 106(a)(4), of a decision by the respondent Racing Commission to grant additional racing days in 1977 to the respondent Mile High Kennel Club, Inc. (Mile High). See § 12-60-106(8), C.R.S. 1973 (1976 Cum. Supp.). Upon the filing of motions to dismiss by the respondents, and a motion by the petitioners for leave to file an amended complaint under the Administrative Procedure Act, the district court denied petitioners' motion because it was not timely, and granted respondents' motions on the ground that petitioners, as economic competitors of Mile High, lacked standing. See Kornfeld v. Perl Mack Liquors, Inc., 193 Colo. 442, 567 P.2d 383 (1977); Woda v. City of Colorado Springs, 40 Colo. App. 173, 570 P.2d 1318 (1977).
[1] The disposition of this case is controlled by Kornfeld, supra. There, in an action under C.R.C.P. 106(a)(4), our Supreme Court held that "economic injury from lawful competition does not confer standing to question the legality of a competitor's operations." Here, in regard to standing, petitioners' complaint alleged that "the result [of the Commission's action] was to favor Respondent Mile High Kennel Club over Petitioners." Since this allegation relates to petitioners' position as competitors of Mile High, the district court correctly held that petitioners had no standing under Kornfeld, supra.
Petitioners' complaint also alleged that Mile High was permitted to operate on more days than were petitioners. Exactly how this fact adversely affects petitioners, however, is not stated. And there is nothing in the record which indicates that petitioners applied for additional racing days, see § 12-60-106(8), C.R.S. 1973 (1976 Cum. Supp.), or operated on any of the days which were granted to Mile High. See § 12-60-108(5), C.R.S. 1973 (conflicts in racing dates between racetracks are to be avoided "whenever possible"). Thus, petitioners did not show that they were "adversely affected or aggrieved." See Kornfeld, supra.
Under the general law of standing, the first requirement is injury in fact, and indirect and incidental injury is insufficient. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). Assuming, arguendo, that petitioners here were injured at all, that injury was indirect and incidental. Thus petitioners did not have standing.
One must also be "adversely affected or aggrieved" by agency action in order to bring an action for judicial review under the Administrative Procedure Act, § 24-4-106, C.R.S. 1973; see Utah International, Inc. v. Board of Land Commissioners, 41 Colo. App. 72, 579 P.2d 96 (1978), and, as we stated above, petitioners were not so affected or aggrieved. Thus, petitioners could not have commenced such an action, and therefore we need not address petitioners' argument regarding the denial of their motion for leave to file an amended complaint.
Judgment affirmed.
JUDGE COYTE and JUDGE RULAND concur.