Opinion
Walter F. Scherer, Denver, for plaintiff in error.
Wells & Snydal, Fort Morgan, for defendants in error.
DWYER, 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.
The district court upheld the denial by the Board of County Commissioners of an application for a hotel and restaurant liquor license and the applicant is here on writ of error.
Plaintiff in error, Ivan-Doyle, Inc., will be referred to as the 'applicant' and the defendants in error, Board of County Commissioners of Morgan County, will be referred to as the 'board.'
For six years, Doyle Grooms, applicant's president, owned and operated a restaurant on Highway 6 and 34 approximately two and a half miles west of Fort Morgan, Colorado. Applicant sought to obtain a hotel and restaurant liquor license (C.R.S.1963 75--2--22) for the sale of liquor by the drink at this location. At the hearing held by the board on September 6, 1966, applicant established compliance with all formal requirements of C.R.S.1963 75--1--5. Mr. Grooms testified that 70% Of his business was transient, and that tourists and patrons from a nearby motel frequently requested service of beverages with their meals. The operators of businesses in the immediate vicinity of the restaurant signed petitions in favor of the license. Only two witnesses testified in opposition to the application and both admitted that they objected to the sale of any type of alcoholic beverages. Petitions favoring and opposing the license were received in evidence.
In denying the application, the board made the following findings:
'Testifying on behalf of applicant, Doyle Grooms, Lela Grooms and Ivan Mesmer testified that there was a need for this type of outlet and they expected approximately 70 per cent transit (sic) or people who would be coming in from outside Morgan County and that they had had requests from motel owners and the like who desired such an outlet. The testimony also indicated that the building would be at least 50 feet from the East property line and 225 feet from the nearest residence.
'Several protestants explained their views to the Commissioners and William Krening of Route 2, Fort Morgan, Colorado, the nearest property owner advised that his home adjoins the property and objected to the issuance of the license.
'The Board having heard the testimony of all the witnesses and having considered the reasonable requirements of the neighborhood and desires of the inhabitants finds:
'That there is one outlet of this type, a distance of three miles and another such license 11 miles West. That the proposed complex housing and building appears to be in good order; however, due to the lack of police protection and considering the fact that the proposed site borders a highway with few cross streets, the best interests, needs and requirements of the neighborhood would not be served by granting this Application.'
The applicant contends that in denying its application the board acted arbitrarily and capriciously and abused its discretion.
The statute by which the legislature has delegated to the Board of County Commissioners the authority to issue liquor licenses provides:
'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 evidenced by petitions, remonstrances or otherwise.'
The board acting pursuant to this statute had discretionary power to grant or withhold this license based upon its determination of the reasonable requirements of the neighborhood and the desires of the inhabitants. But the board had no authority, under the pretext of discretion, to set up standards of its own not sanctioned by the statute.
The board disregarded the evidence in support of the application and denied the license on the basis of (1) the lack of police protection, and, (2) the fact that the proposed site borders a highway with few cross streets. In denying the application on these grounds, the board acted arbitrarily and capriciously and beyond its statutory authority. Kerr v. Board of County Com'rs of County of Douglas, Colo., 460 P.2d 235 (Nov. 3, 1969) and Board of County Com'rs of Boulder County v. Johnson, Colo., 460 P.2d 770 (Nov. 3, 1969).
The judgment of the district court is reversed and this cause is remanded with directions to issue the license to the applicant.
ENOCH and DUFFORD, JJ., concur.