Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bradley, Campbell, Carney & Johnson, Golden, for plaintiff in error.
Bernard V. Berardini, Englewood, 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.
The parties appear before this court in the same order as they appear at trial and shall be referred to in the same manner.
Plaintiff appeals the lower court order upholding defendant's denial of plaintiff's application for a license to sell 3.2 beer in its store. Plaintiff argues that the City Council acted in an arbitrary and capricious manner in denying its application for a license. A verbatim transcript of the proceedings is not available, but counsel for both parties have stipulated to a reconstructed record of the hearing.
According to this record, plaintiff's store is located in an area populated by 37,000 people. There is but one other supermarket located at a distance of over two miles from this supermarket selling 3.2 beer for consumption off the premises. Petitions in favor of the issuance of this license were submitted signed by 741 patrons of plaintiff's store. The petitions stated that the license was necessary in order to serve the reasonable requirements of the neighborhood and that the petitioners desired the issuance of the license. A majority of these persons lived within a ten-block radius of plaintiff's store. Many customers of the store orally requested the sale of 3.2 beer.
In opposition to plaintiff's evidence, petitions were offered signed by 320 persons whose only statement in opposition to the granting of the license was:
'We feel that the sale of 3.2 beer at this location would be injurious to the health, peace and safety of the residents of this community.'
In addition to this statement contained in the papers designated as remonstrances, two persons testified in opposition to the granting of the license.
Defendant erred when it held that the community was being adequately served by the existing outlet.
In its findings, defendant stated that although plaintiff's petitioners favoring the outlet numbered 741, and those in opposition numbered only 320, that:
'* * * in view of the testimony induced upon public hearing, as well as the fact that there are several package liquor stores, three-way liquor establishments and at least one 3.2 outlet within a relatively short distance of the location requested in the application, it is the finding and the conclusion of this Council that the reasonable requirements of the neighborhood are presently being met by the existing outlets.'
The mention of the other types of outlets in the decision of the Council is irrelevant. Only outlets of a similar nature and type may be considered in determining the reasonable needs and requirements of the neighborhood. Board of County Commissioners v. Skaff, 139 Colo. 452, 340 P.2d 866. In this case, the only other outlet of a similar nature and type was another supermarket located over two miles distant from plaintiff's location. Distance of course is relative and what constitutes a reasonable distance between outlets of a similar nature in a sparsely populated mountain community, might constitute an unreasonable separation in a densely populated urban area. In this case we find that one supermarket with a license for the sale of off-the-premises 3.2 beer in a community of 37,000 people, separated from plaintiff's store by over two miles, is not sufficient in itself to serve the needs and desires of the neighborhood where plaintiff has established that a substantial number of persons in the community favor its application. Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970.
The statute, C.R.S.1963, 75--1--5(d) 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 record clearly establishes that plaintiff has met its burden of proof, and that the City Council arbitrarily denied this license. Board of County Commissioners v. Bickel, 155 Colo. 465, 395 P.2d 208.
Judgment is reversed and remanded with directions that the District Court order the City Council of Englewood to grant plaintiff in error the license for which it made application.
SILVERSTEIN, C.J., and DUFFORD, J., concur.