Le Pore v. Larkin

Mr. Justice Sutton

delivered the opinion of the Court.

Plaintiff in error was plaintiff in the trial court and will be so designated here. Defendants in error, defendants below, will be referred to as the council. Plaintiff applied for a hotel and restaurant liquor license pursuant to the Liquor Code of 1935 (C.R.S. ’53, 75-2-1 et seq.). The application was made to the City Council of'the City of Longmont. A hearing was held before the council at which time evidence was taken, at the conclusion of which the council denied the application. Thereafter plaintiff sought review in the nature of certiorari in the District Court of Boulder County where after argument, denial of the application was affirmed. Plaintiff is here by writ of error seeking reversal.

The evidence offered on behalf of plaintiff at the hearing before the council consisted of a stipulation of facts. Among the pertinent recitations were the following, to-wit: that plaintiff operates a restaurant known as Le-Pore’s Italian Food, located at 30 South Main Street, Longmont, Colorado, on U. S. Highway No. 287, a principal north-south highway through Longmont; applicant anticipates that a substantial portion of her business during the summer months will be derived from tourists using said highway; the premises are located in an area zoned for business and the immediate neighborhood consists predominantly of business establishments; there are no other licenses for the public sale of malt, vinous and spirituous liquors within a five-mile radius of applicant’s premises.

At the hearing plaintiff presented a petition, with eighteen signatures, requesting the council’s favorable consideration of her application. All of the signers of this petition operate business establishments within a three block radius of plaintiff’s restaurant. From the minutes of the council it appears that the testimony of several witnesses, some favoring and some opposed to the granting of the license, was heard. It was not shown whether these persons resided in the neighborhood of plaintiff’s restaurant. A remonstrance opposing the granting of a license to plaintiff, signed by 645 persons, was presented. As to some signatures appearing thereon no proper addresses were given; for example, a few showed “Boulder County”; some showed only street addresses with no town, but most of them showed addresses in the City of Longmont but not within what could be called the neighborhood involved here. Only two lived within a three block radius of applicant’s business, and 36 within a six block radius. The remonstrances stated, inter alia:

“We believe the application should be denied. We oppose the granting of any such license as creating a public nuisance, tending to lower the moral standard of our community and being contrary to established public policy within the community. We feel there are suitable sources currently existing for those desiring spirituous liquors through the several club licenses and package liquor stores.”

Applicant objected to such remonstrances being considered by the council on the ground that the signers thereof were not residents of the neighborhood involved.

Testimony was presented to the effect that there were five club licenses in Longmont, but no outlets open to the public. At the conclusion of the hearing, a resolution to grant the application was rejected and the application denied. Plaintiff’s counsel presented a request in writing for a statement of council’s reasons for denying the license. Evidently two resolutions had been prepared in advance for the council’s consideration, one granting and one denying the application. He was furnished a copy of the one denying the license and was referred to the City Attorney for further information.

The statute (C.R.S. ’53, 75-2-9) provides that local licensing authorities have authority to refuse to issue any licenses for “good cause,” subject to review by the courts. It is provided that upon review, the court shall determine “whether said refusal was arbitrary and without good cause.” C.R.S. ’53, 75-1-7.

From the record before us it does not appear that the statute has been satisfied by the council’s action in this case. No findings based upon the documents and evidence before it were made. No cause for denial of the application, other than the desire of some members to submit the question of whether such license should be granted to a vote of the people, appears from the record. It is not required that the council make findings of fact equivalent to that of a trial court, but they must be sufficient to furnish a basis for judicial review if the statutory requirements are to be fulfilled. See Geer v. Stathopulos (1957), 135 Colo. 146, 309 P. (2d) 606.

Commissioners v. Salardino (1958), 138 Colo. 66, 329 P. (2d) 629, is relied on by defendants. There denial of a license was affirmed upon findings of the Board of County Commissioners which adequately supported its determination; and the Board made a specific determination of the “neighborhood” involved, a major requirement of the statute with which these defendants apparently made no effort to comply.

This record indicates that the only licenses presently existing in the City of Longmont are for private clubs and package liquor stores, thus under this record, where more favor than disfavor the license in the immediate neighborhood, there is no basis upon which the application of plaintiff may legally be denied since there are no licenses of the type sought within a five mile radius. See Cloverleaf Kennel Club. v. Commissioners (1957), 136 Colo. 441, 319 P. (2d) 487; Buddy and Lloyd’s Store No. 1, Inc. v. Aurora (1959), 139 Colo. 152, 337 P. (2d) 389, and compare Gem Bev. v. Geer (1959), 138 Colo. 420, 334 P. (2d) 744.

The votes of the members of the council who opposed granting of the application, appear to have been grounded on the view that the public policy of their city opposed such a license. The fact is, however, that the legislature has already established the public policy for the entire state and it is to the contrary. This cannot be overridden by local governments by mere fiat nor ignored by the courts.

If a majority of the qualified voters of the City of Longmont are opposed to the sale of intoxicating liquor, a means is at hand of enforcing their desires. See C.R.S. ’53, 75-2-30. However, we are not confronted with a local option situation here, and licensing procedures must not be used as a means of establishing local option and circumventing statutory requirements. See Maurer v. Boggs, 103 Colo. 72, 82 P. (2d) 1099; Colorado Springs v. Graham, 143 Colo. 47, 352 P. (2d) 273.

The judgment is reversed and the cause remanded to the trial court with directions to enter an order directing the city council to issue the license to plaintiff.

Mr. Justice Moore not participating.

Mr. Justice McWilliams dissents.