Opinion
Sept. 1, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Allott & Rogers, Robert G. Rogers, Lamar, for plaintiff in error.
Schmidt & Schmidt, Howard M. Schmidt, Springfield, for defendant in error.
COYTE, 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.
Plaintiff in error will hereafter be referred to as plaintiff and defendant in error will hereafter be referred to as defendant or 'The Board.'
At the conclusion of the hearing before the Board of County Commissioners of Baca County concerning plaintiff's application for a 3.2 beer license, The Board denied the application on the basis that the applicant had failed to sustain the burden of proof in establishing that the needs of the community and the desires of the inhabitants required the issuance of the license. The District Court of Baca County affirmed the action of The Board in denying the license.
In its findings of fact, The Board found that the 'neighborhood' to be served by this 3.2 beer outlet was to be within a radius of fifteen miles of plaintiff's store at Midway, Colorado, but that the nearest outlet for the sale of 3.2 beer was approximately sixty-five miles from plaintiff's store. In support of this application, a petition was offered into evidence signed by 121 residents of the neighborhood desiring an outlet for the sale of 3.2 beer. A petition with the signatures of 186 residents opposed to the location of a 3.2 beer outlet in the area was also introduced.
Merely because a majority opposes the issuance of a license is no reason to deny the same when there is substantial support in favor of its issuance; particularly, where the evidence clearly discloses that there is no existing outlet in the entire neighborhood to be served to meet the needs and desires of those favoring the issuance of the license. Farmer v. City Council of City of Wray, 153 Colo. 306, 385 P.2d 596.
The evidence clearly establishes that plaintiff has met his burden of proof, and that The Board erred in its denial of this license.
Judgment reversed and remanded with directions that the District Court order the Board of County Commissioners of Baca County to grant a 3.2 beer license to plaintiff.
DWYER and DUFFORD, JJ., concur.