Summary
In Londer, a statute prohibited issuance of a liquor license where the building in which the liquor was to be sold was located within 500 feet "`of any public or parochial school.
Summary of this case from Bailey, v. Illinois Liquor Control CommissionOpinion
No. 76-098
Decided November 4, 1976. Rehearing denied November 18, 1976. Certiorari granted January 31, 1977. Certiorari withdrawn March 29, 1977.
Action to challenge issuance of liquor license to defendants. District court upheld action of the licensing authority and plaintiff appealed.
Affirmed
1. INTOXICATING LIQUORS — Issuance of Liquor License — Evidence Sufficient — Only One Outlet — Substantial Population Growth — Considerable Supportive Testimony. In an action challenging the issuance of a liquor license, where the evidence showed that plaintiff owned the only existing liquor outlet in the designated area and that there had been substantial recent population growth in the neighborhood, and where considerable testimony was adduced regarding the need for an additional liquor outlet, such evidence was sufficient to support the issuance of a liquor license to defendant.
2. Statute Forbidding Liquor License — Within Proximity — Principal University Campus — Public School — Inapplicable — CU Medical School — Child Development Center. Although statute forbids issuance of a liquor license where the liquor is to be sold within five hundred feet of any public school or the principal campus of any university, the statute does not apply to a medical school of state university which school is located apart from the university and which has not been declared to be a separate institution with a principal campus; nor does the statute apply to a child development center of that medical school which merely voluntarily participates in a cooperative pre-school program; hence, issuance of a liquor license to an establishment within five hundred feet of such institutions was not precluded by statute.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
Brenman, Sobol Baum, Leo T. Zuckerman, for plaintiff-appellant.
Butler, Lepore, Landrum Pierce, P.C., Richard C. Landrum, for Zelda Friednash Estelle Levitt, d/b/a College Inn Liquors, defendants-appellees.
Max P. Zall, City Attorney, Lloyd K. Shinsato, Assistant City Attorney, for George A. Canjar, defendant-appellee.
J. D. MacFarlane, Attorney General, Chris J. Eliopulos, Special Assistant Attorney General, for Joseph Dolan, defendant-appellee.
Plaintiff, Nathan Londer, initiated this C.R.C.P. 106 action to challenge the issuance of a liquor license to defendants. The district court upheld the action taken by the issuing authority. We affirm.
Londer's initial contention is that the applicants failed to sustain their burden of establishing that the needs of the designated neighborhood would not be adequately served by existing liquor outlets, and hence that the licensing authority abused its discretion in issuing the license. We disagree.
[1] It was undisputed that Londer owned the only existing liquor outlet in the designated area. A number of witnesses, including Longer himself, testified to substantial recent population growth in the neighborhood, and considerable testimony was adduced regarding the need for an additional liquor outlet, based on the inaccessibility and limited business hours of the existing outlet. Since this constitutes substantial evidence supporting the action taken by the licensing authority, we must affirm. Jennings v. Hoskinson, 152 Colo. 276, 382 P.2d 807 (1963). See also Board of County Commissioners v. Salardino, 138 Colo. 66, 329 P.2d 629 (1958).
Londer also contends that issuance was foreclosed by § 12-47-139(1)(d), C.R.S. 1973, which forbids issuance "where the building in which the liquor is to be sold is located within five hundred feet of any public or parochial school or the principal campus of any college, university, or seminary . . . ." He argues that issuance was precluded since the building for the proposed outlet was located within 500 feet of the University of Colorado Medical School and the John F. Kennedy Child Development Center. This contention is without merit.
The issue raised with regard to the University of Colorado Medical School is whether it constitutes a principal campus of the University of Colorado. Longer contends that Colo. Const. Art. VIII, Section 5, establishes the medical school as a principal campus of the University. This constitutional provision states:
"The following educational institutions are declared to be state institutions of higher education: The university at Boulder, Colorado Springs, and Denver; the university at Fort Collins; the school of mines at Golden; and such other institutions of higher education as now exist or may hereafter be established by law if they are designated by law as state institutions. The establishment [and] management . . . of the state institutions shall be subject to the control of the the state . . . except that the regents of the university at Boulder, Colorado Springs, and Denver may, whenever in their judgment the needs of that institution demand such action, establish, maintain, and conduct all or any part of the schools of medicine, dentistry, nursing, and pharmacy of the university, together with hospitals and supporting facilities and programs related to health, at Denver . . . ."
This section does not support Londer's assertion that the medical school is a principal campus of the university. The effect of this constitutional provision is to fix permanently the location of the state universities, establishing their principal campuses as a matter of law. In re State Institutions, 9 Colo. 626, 21 P. 472 (1886); see also People ex rel. Jerome v. Regents, 24 Colo. 175, 49 P. 286 (1897).
Formerly, the University of Colorado had only one principal campus, located in Boulder. See, In re State Institutions, supra. By a 1972 amendment, principal campuses were authorized in two other locations, including Denver. See Colo. Sess. Laws 1972, p. 644, House Concurrent Resolution No. 1003. Pursuant to this amendment, the University of Colorado at Denver, located at 14th and Arapahoe, was established as a principal campus in the Denver area. However, the medical school, presently located elsewhere within Denver, was not and has not been declared to be a separate state institution with a constitutionally established principal campus, and its location remains entrusted to the discretion of the regents.
[2] Therefore, we conclude that the University of Colorado Medical School is not a principal campus of the University of Colorado for the purposes of § 12-47-139(1)(d), C.R.S. 1973, and hence, issuance of the challenged license was not in violation of that statute. See generally Vanoli v. Munro, 147 Cal. App. 2d 179, 304 P.2d 722 (1956).
Londer also contends that issuance of the license was precluded by the site's proximity to the John F. Kennedy Child Development Center (the Center), which he asserts is a public school for the purposes of § 12-47-139(1)(d), C.R.S. 1973. He argues that the hearing officer improperly used personal knowledge of the character of the Center in passing on the applicability of the statutory section, rejecting an exhibit proffered by Londer in that regard. We uphold the determination that the Center is not a public school within the purview of this statute.
Londer does not dispute that the Center is associated with the medical school, and does not contend that it is subject to open enrollment by the public. He argues, however, that the Center qualifies as a public school as evidenced by an exhibit outlining a program of pre-school instruction provided certain children in coordination with a local school district, and he further asserts that the hearing officer's statements regarding personal knowledge of the Center's operations constituted improper administrative notice, compelling reversal of the decision of the district court upholding issuance. Again, we disagree.
The Center is not a sovereign entity. The pre-school program, as attested to by the tendered exhibit, constitutes a collateral cooperative effort removed from the Center's principal educational projects. The hearing officer's statements to this effect were preserved for our perusal and were within the permissible scope of administrative notice. See Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606 (1957). Even when Londer's disputed exhibit is considered, however, there is no evidence in the record that the Center is a public school other than the fact of its voluntary participation in a cooperative pre-school program. Under these circumstances, issuance was not precluded by § 12-47-139(1)(d), C.R.S. 1973, and the district court's order upholding issuance will not be disturbed on review. See Board of County Commissioners v. Salardino, supra.
Judgment affirmed.
JUDGE COYTE and JUDGE RULAND concur.