Opinion
May 11, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bradley, Campbell, Carney & Johnson, Leo Bradley, Golden, for plaintiff in error.
William T. Eckhart, Colorado Springs, for defendant in error.
PIERCE, Judge.
This is an appeal from a district court decision upholding the denial by defendant in error (hereafter called 'City' or 'council') of a liquor license application filed by plaintiff in error (hereafter called 'Safeway' or 'applicant').
The record indicates that Safeway applied to the City on April 4, 1969, for an off-premises-consumption fermented malt beverage license. Pursuant to proper notice, a public hearing was held before the City Council. There were no appearances in opposition to the application at the hearing.
Testimony at the hearing included a statement by the store manager that petitions had been circulated in the store and that there were over 900 signatures on these petitions favoring the application. The manager also testified that there had been numerous requests for fermented malt beverages by customers in his store and that these requests were 'increasing all the time.' A survey of the neighborhood where Safeway was located (defined by the City as a circle with a 1500 ft. radius from the store's location) showed that the majority of residents favored the issuance of a license. Further testimony disclosed that although Colorado Springs had a population of $130,000, there were, at that time, no supermarkets with fermented male beverage licenses in the city. It was also shown that there were no outlets of a similar nature within the neighborhood defined by the Council.
Safeway contends that the Council's refusal to grant said license was arbitrary and capricious. We agree.
While we realize that the burden is upon the applicant to show a need in the neighborhood and that the licensing authority has broad discretionary powers, there is a limit to what can be required of the applicant and a limit to the discretionary powers of the City Council. See Capra v. Davenport, 158 Colo. 537, 408 P.2d 448.
The record clearly indicates that the applicant established a prima facie case for the requested license. Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606.
Having considered the entire record of proceedings before the Council, we have reached the inescapable conclusion, particularly in view of the fact that there were no other outlets in the neighborhood as designated, that the action of the majority of members of the City Council in denying the application amounted to an abuse of discretion. The overwhelming probative effect of the matters presented to the Council requires a reversal of the judgment of the district court, with directions to order the license to issue. See Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970.
Judgment reversed and remanded with directions.
COYTE and DUFFORD, JJ., concur.