Opinion
Donald E. LaMora, Colorado Springs, for plaintiff in error.
Tarter & Tarter, James E. Tarter, Weldon M. Tarter, William R. Tiedt, Colorado Springs, for defendant in error.
DWYER, 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, Texas Southland Corporation, will be referred to as the 'applicant.' The defendant in error, Board of County Commissioners in and for the County of El Paso, will be referred to as the 'board.'
The applicant is engaged in the retail grocery business under the trade name of '7-Eleven.' In 1966 it applied to the board for licenses to sell 'fermented malt beverages' (3.2 beer) at three of its retail stores. Hearings were held bye the board and the applications were denied. Approximately one year later the applicant brought this action in the district court to review the decisions of the board. The trial court upheld the decisions of the board and the applicant by this writ of error seeks reversal of that judgment.
In denying the applications the board specifically found, in each case, that the reasonable requirements of the neighborhood were adequately served by similar existing outlets. The applicant contends that the board's action was arbitrary and capricious in that no substantial evidence in opposition to the applications was presented at the hearings.
The three applications involved are:
First Application: The applicant's store is located at 217 East St. Elmo Street, El Paso County. The location is south of Colorado Springs and north of the Broadmoor area near South Nevada, in or adjacent to the Ivywild area. The evidence at the hearing showed existing 3.2 beer outlets at distances of 0.3 of a mile, 0.9 of a mile, 1.0 mile, and 1.1 miles.
Second Application: The applicant's store is located at 1787 B Street, El Paso County. The location is north of the north entrance to the military reservation known as Fort Carson and southwest of the Security-Widefield-Fountain area. The evidence at the hearing showed that a similar license had already been approved 300 feet from the applicant's store.
Third Application: The applicant's store is located on the northwest corner of Weber Street and Mt. View Lane, El Paso County. The location is north of Colorado Springs, adjacent to or near what is known as the Cragmoor area. The evidence at the hearing showed seven existing 3.2 beer outlets in distances varying from 0.1 of a mile to 2.0 miles, including one outlet owned by the applicant herein.
The statute, C.R.S.1963, 75--1--5(d), by which the legislature has delegated to the board the authority to issue a fermented malt beverages license 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 board acting pursuant to this statute had discretionary power to grant or withhold these licenses based upon its determination of the reasonable requirements of the neighborhood and the desires of the inhabitants. See Vigil v. Burress, 157 Colo. 507, 404 P.2d 147; Quedens v. J. S. Dillon & Sons Stores Co., 146 Colo. 161, 360 P.2d 9849
The applicant established compliance with all formal requirements of the statute. However, there was evidence before the board of existing similar licenses near the applicant's stores. The record also reflects that the board considered those petitions presented by the applicant in favor of the granting of the licenses and that the board also considered remonstrances against the granting of the licenses. It thus appears that the board in exercising its authority considered the relevant statutory criteria and its determination that each of the licenses should be denied was neither arbitrary, capricious, nor in excess of its jurisdiction.
Judgment affirmed.
DUFFORD and PIERCE, JJ., concur.