Bunzel v. City of Golden

Mr. Justice McWilliams

dissenting:

The majority holds that once a fermented malt beverage license issues it can only be revoked under the authority provided by C.R.S. ’53, 75-1-12 and 14.

More specifically, the majority holds that except for a proceeding brought under C.R.S. ’53, 75-1-12, a fermented malt beverage license may never be revoked unless the licensee is first convicted in a criminal proceeding of violating either the provisions of C.R.S. ’53, 75-1-1 through 15 or the rules or regulation lawfully promulgated by the licensing authorities. With this I am in strong disagreement. I regard C.R.S. ’53, 75-1-14 as a penal statute which provides an additional means of punishing the licensee who violates the provisions of C.R.S. ’53, 75-1-1 through 15, or the rules and regulation of the licensing authorities.

The Bunzels applied to the City of Golden for a fermented malt beverage license and the City of Golden granted the application. It is a well-recognized rule that the power to issue a license carries with it the power to revoke. See 30 Am. Jur., p. 632. So, assuming there is no specific authority empowering the City Council of Golden to revoke a fermented malt beverage license, the fact that Golden granted Bunzels a license and that before the .Bunzels could sell fermented malt beverage it was necessary for them to obtain such license, clearly points up the fact that the City of Golden also had the power to revoke it. And this power to revoke, in my opinion, is independent of C.R.S. ’53, 75-1-12 and 14. This power to revoke can only be for good cause, of course, and after notice, and cannot be exercised in an arbitrary or capricious manner.

In the instant case the Bunzels were given notice of the hearing and were represented by capable counsel at the hearing. The hearing was an extended one at the conclusion of which the Council took the matter under advisement. The Council then made extensive and specific findings of fact which in my view clearly supported and justified their ultimate action. In this regard I subscribe to the recital and evaluation of the evidence before the City Council as made by the learned and experienced trial judge. He said:

“We have admitted satisfactory evidence that malt beverage was served to minors (under 18 years); that hard liquor (rum) was consumed on the premises; that beer over the content of 3.2 was consumed on the premises. (Hienbrau); that the officers were called many times to answer disturbance charges; that loud noises were permitted to occur; that indecent acts were observed; that insults were used and a female accosted.

“One observer noted the carrying away of a teen-ager in an intoxicated condition. Drag racing and other acts which make the exercising of the police power of the municipality mandatory by revoking the license to operate.”

Recapitulating, I hold that Golden, having issued the Bunzel license, had the power to revoke it; that this power to revoke is independent of and in addition to the power to revoke under C.R.S. ’53, 75-1-12 and 14; and that the evidence before it amply justified the revocation.

I am authorized to say that Mr. Justice Hall and Mr. Justice Pringle join in this dissent.