Opinion
Feb. 1, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Jerry Quick, La Junta, for plaintiff-appellee.
Ralph N. Wadleigh, La Junta, for defendant-appellant.
Page 682
PIERCE, Judge.
This is an appeal by the City Council of the City of La Junta from a district court judgment reversing the council's denial of a 3.2% Fermented malt beverage license to Southland Corporation, hereinafter referred to as applicant. It is the city's position that the trial court erred in finding that the council, acting in its capacity as the local licensing authority, arbitrarily and capriciously abused its discretion in failing to grant the license. We cannot agree.
The record herein discloses that the applicant sought a 3.2% License for off-premises consumption. At the hearing before the city council, the applicant offered uncontroverted testimony that the reasonable needs of the community were not being met by existing similar outlets, the closest of which was twenty-six blocks away. The applicant presented petitions, bearing 1,374 valid signatures, requesting that the license be granted on the grounds that the reasonable requirements of the neighborhood were not being met. Petitions containing 370 signatures opposing issuance of the license were filed, specifying no reasons therefor and making no reference to the reasonable requirements of the defined neighborhood. Eight witnesses appeared at the hearing in opposition to the application. Subsequent to denial of the license by the city council, applicant appealed to the district court pursuant to 1967 Perm.Supp., C.R.S.1963, 75--1--7(7).
We find that in reversing the council's denial of the license the district court properly applied the law to the facts of this case. The record fully supports the finding that under C.R.S.1963, 75--1--5(d), applicant made a prima facie case that a license should issue. Board of County Commissioners v. National Tea Co., 149 Colo. 80, 367 P.2d 909. Testimony of witnesses opposing the granting of the license indicated that their objections were based upon a basic abhorrence to alcoholic beverages and to the granting of any liquor license and a fear that future disturbances might occur in the area. The trial court properly determined that this testimony was insufficient, as a matter of law, to support a denial of a license. Mobell v. Meyer, 469 P.2d 414; McQuate v. Boulder, 161 Colo. 190, 420 P.2d 823; Ladd v. Board of County Commissioners, 146 Colo. 366, 361 P.2d 627.
The council's primary argument is that the denial of a liquor license could not be an abuse of discretion where evidence showed that applicant's premises were within 450 feet of a junior college campus. The issuance of a 3.2% License for off-premises consumption at locations within 500 feet of colleges or universities is not prohibited by statute. The council, however, citing MacArthur v. Sierota, 122 Colo. 115, 221 P.2d 346, as authority, urges us to hold that proximity to a college or university is a legitimate consideration in denial of such a license. This contention is without merit. MacArthur has no application to a license solely for off-premises consumption. Geer v. Rabinoff, 138 Colo. 8, 328 P.2d 375. We therefore find no error in the district court's determination that this factor was an improper consideration upon which to base denial of the license.
Where, as here, a prima facie case for issuance of a license has been made and there is no evidence from which it could be determined that the reasonable needs of the community were being met, the district court properly ruled that the council's failure to grant the license was an abuse of discretion. Anderson v. Spencer, 162 Colo. 328, 426 P.2d 970; Board of County Commissioners v. National Tea Co., Supra.
Judgment affirmed.
COYTE and DWYER, JJ., concur.