Opinion
No. 18,556.
Decided January 26, 1959.
From a judgment affirming denial of a liquor license the plaintiff brings error.
Affirmed.
1. INTOXICATING LIQUORS — Licensing Authority — Discretion. There is no inherent right to carry on the business of selling alcoholic beverages, and the licensing authority in the exercise of its administrative discretion may determine whether in the light of all the evidence and surrounding facts and circumstances, the granting of a particular license is or is not justified.
2. Licensing Authority — Findings. All reasonable doubt must be resolved in favor of the findings of the licensing authority, and unless it clearly appears that upon the whole record the action of the authority was arbitrary and capricious, it will not be disturbed.
3. Licensing Authority — Discretion. It is within the discretion of the licensing authority to determine the facts and to conclude that an application should be denied.
Error to the District Court of the City and County of Denver, Hon. H. Joe Rawlinson, Jr., Judge.
Mr. LOUIS G. ISAACSON, Mr. JAY E. LUTZ, Mr. JAMES D. McKEVITT, for plaintiff in error.
Mr. JOHN C. BANKS, City Attorney, Mr. TY R. WILLIAMS, Mr. HERMAN J. ATENCIO, Assistants, for defendant in error.
GEM BEVERAGE CO., to whom we will refer as plaintiff, applied to defendant in error for the issuance of a license to operate a retail liquor store. Following a hearing the request was denied and appropriate proceedings instituted in the district court with the result that the action of defendant in error was upheld and judgment entered accordingly. Plaintiff seeks review by writ of error.
It appears from the evidence produced at the hearing before defendant in error that plaintiff desired to lease 1000 square feet of space in premises described as a warehouse located at 5200 Smith Road in Denver. The entire warehouse had been leased to two corporations who were subletting space to various merchants to be partitioned out of the whole. The liquor store was to be operated as a part of, and in connection with, the business center known as the Government Employees Mutual Store, being operated at the warehouse.
The over-all operation of the Government Employees Mutual, or G.E.M. as it is called, is that portions of the warehouse are leased to various merchandising enterprises; the commodities in which they deal are sold to members of the G.E.M. ; five per cent of the gross sales is paid for the use of the space occupied by such merchants; only members of the G.E.M. are permitted to make purchases in this warehouse store and prices prevailing at the G.E.M. store are substantially below prevailing retail prices elsewhere. The condition of eligibility to membership in the G.E.M. is that such member be a city, county, state or federal employee, either active or retired, or a member of a military reserve, active or retired.
The witness Dodge testified that he supervised the circulation of petitions in connection with plaintiff's application for license. He said that 519 persons, representing 63.8% of the residents contacted in the area, and 93.3% of the business owners contacted, were in favor of issuance of the license. His testimony was that of the 519 persons who signed the petition for the license 140 were members of G.E.M.; that 287 persons contacted in the neighborhood refused to sign the petition and an estimated 415 persons residing in the designated area had not been contacted. It further appears that no other package liquor store existed within the limits of the neighborhood which was fixed as the area affected by the application.
In denying the application for the license defendant in error stating his reasons as follows:
"1. In my opinion, the provisions of the Liquor Code establishing Retail Liquor Store Licenses require that an establishment so licensed be open for general patronage from residents living within the neighborhood in which it is located.
"This type of operation is similar to the operation of liquor licensed clubs, for which the legislature provided, where alcoholic beverages may be served only to members and their guests for consumption on the premises. In failing to provide for a similar type of license for the sale of liquor by the package to a restricted group, we believe that the legislature did not intend to permit such sales.
"2. The issuance of this license would not in my opinion satisfy the needs and requirements of the neighborhood since only those residents who are governmental employees and members of Gem would be permitted to patronize the outlet. There was a failure to show how many, if any, residents of this neighborhood were members, or eligible to become members of this group. Therefore, we can only assume that not all the residents could patronize this outlet and therefore, what, if any, need or requirement did exist could not be satisfied in full and whether it would satisfy a partial need is conjectural."
Under applicable statutes and opinions of this court it is settled that there is no inherent right to carry on the business of selling alcoholic beverages. It is a general rule that the licensing authority may, in the exercise of his administrative discretion, determine whether in the light of all the evidence and the surrounding facts and circumstances, the granting of a particular license is or is not justified. The licensing authority has the duty and authority to consider the reasonable requirements of the neighborhood and the desires of the inhabitants as evidenced by petition, remonstrances or otherwise.
In the final analysis the power of decision rests with the licensing authority. In MacArthur v. Presto, 122 Colo. 202, 221 P.2d 934, we said:
"The statute requires that the issuance of licenses shall depend on the judgment of the licensing authority and not on that of other citizens."
We further stated in this case: "* * * in our opinion it was the intention of the legislature to vest a wide discretion in local licensing authorities in the issuance of licenses for sale of alcoholic beverages * * *."
All reasonable doubt must be resolved in favor of the findings of the licensing authority and unless it clearly appears that under the whole record the action of that authority was arbitrary and capricious we may not order a different result.
It was within the discretion of defendant in error in this action to determine the facts and to conclude that the application should be denied. We find nothing in the record to support a claim that the entry of that order by him was either arbitrary or capricious. The trial court was correct in upholding the denial of the application.
The judgment is affirmed.
MR. JUSTICE SUTTON, MR. JUSTICE HALL AND MR. JUSTICE FRANTZ specially concur.