Southland Corp. v. City of Westminster City Council

746 P.2d 1353, 1987 Colo. App. LEXIS 793, 1987 WL 499
CourtColorado Court of Appeals
DecidedMay 28, 1987
DocketNo. 86CA0043
StatusPublished
Cited by1 cases

This text of 746 P.2d 1353 (Southland Corp. v. City of Westminster City Council) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southland Corp. v. City of Westminster City Council, 746 P.2d 1353, 1987 Colo. App. LEXIS 793, 1987 WL 499 (Colo. Ct. App. 1987).

Opinion

BABCOCK, Judge.

Applicant, the Southland Corporation, seeks review of the district court judgment affirming the decision of the Westminster City Council denying its application for a fermented malt beverage license. We reverse and remand with directions.

Applicant applied for a license to sell 3.2 beer, see Colorado Beer Code, § 12-46-101, et seq., C.R.S (1985 Repl.Vol. 5), at its 7-11 convenience store in Westminster. Pursuant to § 12-46-117(3), C.R.S. (1985 Repl. Vol. 5), a public hearing was held before Westminster’s Special Permit and Licensing Board, which found that the applicant was of good character, see § 12-46-108(l)(b), C.R.S. (1985 Repl.Vol. 5), that the reasonable requirements of the neighborhood were not being met by existing 3.2 beer outlets, and that the neighborhood inhabitants desired an additional outlet. See § 12-46-108(2), C.R.S. (1985 Repl. Vol. 5). The Special Permit and Licensing Board recommended issuance of the license.

The city council rejected this recommendation, however, and, pursuant to Westminster Municipal Code § ll-3-2(K)(2) (1979), held a second public hearing to determine whether applicant should be granted a license.

At that hearing, applicant presented testimony from six neighborhood residents concerning the needs and desires of the neighborhood. They testified that a 3.2 beer license at applicant’s convenience store would fill a neighborhood need because it was more convenient to purchase beer there than at local supermarkets, and because applicant’s store stayed open later. Applicant also presented petitions signed by 180 patrons of the store favoring issuance of the license. The store manager testified that he received approximately five requests for beer each weekday, and between 18 and 25 requests on weekends.

A representative from a scientific survey firm retained by the City to conduct a needs-and-desires-petition survey on the application testified that, based on a sample of 149 adult neighborhood residents, 53% favored issuance of the license, 9% were opposed, and 38% either had no opinion or would not sign the petition. Of those who were willing to sign, 82% favored the license, a figure the pollster stated was “very high.”

A Westminster police detective testified that a background check of the applicants revealed nothing that the police could recommend as a reason against granting the license. The detective also testified that there were five other 3.2 beer outlets in the neighborhood, four supermarkets and a convenience store four blocks away from applicant’s store. One supermarket was located within the same block as applicant’s [1355]*1355store, but testimony indicated that it kept shorter hours.

Over applicant’s objection, three representatives from the Career Enrichment Park, a developmental and vocational school located across the boulevard from applicant’s store, testified in opposition to the license. An assistant principal testified that a quarter of her students were 18 and, thus, could purchase 3.2 beer at applicant’s store, and she expressed her concern that these students would buy beer for underage students, or that the store would sell beer to minors. Another assistant principal testified that many of the students were handicapped and on medication, and that she was afraid they would drink beer while on medication. Finally, the school’s principal, after commenting generally on the negative effects of alcohol on youth, testified that his vocational students worked with high-powered machinery, and expressed his fears about students working with such equipment while under the influence of alcohol.

Although the city council found that applicant had the requisite good character pursuant to § 12-46-108(l)(b), based on the school’s proximity to applicant’s store and its conclusion that the neighborhood’s reasonable requirements were being met by existing outlets, the council found that there was sufficient good cause to deny the license, “in order to avoid an unreasonable risk of danger to the handicapped students” at the school. The application was subsequently denied.

Pursuant to § 12-46-118, C.R.S. (1985 RepLVol. 5) and C.R.C.P. 106(a)(4), applicant sought judicial review of the decision in district court, which affirmed the denial of the license.

Applicant contends that the trial court erred in ruling that the city council did not act arbitrarily and capriciously in denying its license. We agree.

In acting on an application to sell 3.2 beer, the local licensing authority is vested with wide discretion. Board of County Commissioners v. National Tea Co., 149 Colo. 80, 367 P.2d 909 (1962). This discretion is not unbridled, however, and the authority’s action is subject to judicial review. National Convenience Stores, Inc. v. City of Englewood, 192 Colo. 109, 556 P.2d 476 (1976). If the decision was arbitrary or capricious, or otherwise without good cause, see § 12-46-106(7)(a), C.R.S. (1985 RepLVol. 5), it is subject to reversal. Section 12-46-118; Buddy & Lloyd’s Store No. 1, Inc. v. City Council, 139 Colo. 152, 337 P.2d 389 (1959).

Here, a prima facie case for issuance of the license was established. This included a showing that applicant was of good moral character, that neighborhood needs were not being met, and that the neighborhood inhabitants desired the license. See Board of County Commissioners v. Salardino, 136 Colo. 421, 318 P.2d 596 (1957). Once a prima facie case has been made, the obligation is on the protestants to present evidence sufficient to justify denial. Absent such evidence, a denial of the license becomes arbitrary and capricious and cannot stand. See Board of County Commissioners v. Skaff, 139 Colo. 452, 340 P.2d 866 (1959); Buddy & Lloyd’s Store No. 1, Inc. v. City Council, supra.

The only evidence in the record against issuance of the license is the showing of five other outlets in the neighborhood and the testimony of the school officials. We conclude that this was insufficient to defeat applicant’s prima facie case.

Mere existence of other outlets is an inadequate basis upon which to deny a license. See National Convenience Stores, Inc. v. City of Englewood, supra. No evidence was presented indicating that the other outlets met the needs of the neighborhood, and the testimony of applicant’s manager about the frequency of customer requests for beer tended to show that they did not. See Board of County Commissioners v. National Tea Co., supra. The survey and petitions presented to city council overwhelmingly established neighborhood support for the license. See Bauer v. Board of County Commissioners, 163 Colo. 568, 431 P.2d 863 (1967). Residents testified that convenience of access and operating hours were of primary concern, [1356]*1356and that current neighborhood needs were not being adequately met. See Potter v. McClearn, 171 Colo.

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Bluebook (online)
746 P.2d 1353, 1987 Colo. App. LEXIS 793, 1987 WL 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southland-corp-v-city-of-westminster-city-council-coloctapp-1987.