Opinion
June 22, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Sonheim, Whitworth & Helm, Robert H. Sonheim, Arvada, for plaintiffs in error.
Davis & Michael, Robert L. Pitler, Denver, for defendant in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This case involves an application for a liquor license. The City Council of Arvada, Colorado, denied defendant in error's application for a 3-way liquor license, and he appealed under R.C.P.Colo. 106 to the district court, which found the Council's action in denying this application to be arbitrary and capricious. It ordered issuance of the license. The Council now appeals requesting a reinstatement of its original order.
The applicant applied for this 3-way liquor license for use in his proposed restaurant and lounge. A petition containing 627 signatures of persons who favored the issuance of the license was submitted to the Council. Four additional persons favoring the application signed a petition which was circulated at the hearing on the application. Applicant testified as to the need for a 3-way license in the area. No petitions, testimony or other evidence were offered in opposition to the issuance of the license.
The Council defined the neighborhood to be served, and informed the applicant that he had failed to prove that there was a need in the neighborhood for the license. The trial court found the denial of this application to be arbitrary and capricious because no evidence was in the record to support the City's denial. We agree with the trial court.
The City Council has attempted to by-pass the fact that no evidence was offered in opposition to this license by pointing to the wording of the petition itself, which states that the signers support and favor the issuance of the license. The argument presented by the Council is that the people who signed this petition did not state that the neighborhood needed a 3-way liquor license of the type being sought.
Applicant established a prima facie case for the issuance of the license when he presented petitions from 627 people who favored the granting of the license, in addition to his own testimony as to the need for the outlet in the area. There were no outlets similar in type to the license for which applicant had applied within a mile of the proposed outlet, even though the neighborhood was a metropolitan area.
After a prima facie case is presented, the Council, in order to deny a license, would have to refer to evidence in opposition to the granting of the license in order to support its decision. In the instant case no such evidence is present. All the evidence is positive and in favor of the issuance of the license.
The licensing authority's discretion is not without limit. There must be some facts to substantiate a denial in face of overwhelming evidence indicating a desire by inhabitants of the neighborhood for the issuance of a liquor license, especially where a need for the outlet is also shown. Where no such evidence exists, we must conclude the denial was based upon factors not shown, and constitutes an abuse of discretion. Capra v. Davenport, 158 Colo. 537, 408 P.2d 448.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.