Board of County Com'rs In and For Fremont County v. Salardino, 18743

• Decision Date: 08 September 1958
• Docket Number: No. 18743,18743
• Citation: 329 P.2d 629,138 Colo. 66
• Parties: The BOARD OF COUNTY COMMISSIONERS IN AND FOR COUNTY OF FREMONT and State of Colorado, Plaintiff in Error, v. Doris I. SALARDINO, Defendant in Error.
• Court: Colorado Supreme Court

Page 629

329 P.2d 629

138 Colo. 66

The BOARD OF COUNTY COMMISSIONERS IN AND FOR COUNTY OF FREMONT and State of Colorado, Plaintiff in Error, v. Doris I. SALARDINO, Defendant in Error.

No. 18743.

Supreme Court of Colorado, En Banc.

Sept. 8, 1958.

Rehearing Denied Sept. 22, 1958.

Stinemeyer & Stinemeyer, Canon City, for plaintiff in error.

H. R. Harward, Canon City, for defendant in error.

HALL, Justice.

In this opinion we shall refer to the plaintiff in error as the Board and to the defendant in error as the Applicant.

Applicant seeks a retail liquor store license for the premises known as 801 Cyanide Avenue--Capitol Hill, a nine block subdivision in Fremont County, Colorado. The location of the proposed outlet is in a subdivision which is not a part of any incorporated town or city; it lies to the south of and is almost immediately adjacent to South Canon City, an incorporated town having a population of 2800 to 3500; it is on the south side of the Arkansas River, which separates Canon City from South Canon City.

Applicant filed her application December 20, 1956, and shortly thereafter the Board, after proper notice but without proper hearing, findings or record, denied the same. On certiorari to the District Court of Fremont County, the court reversed the action of the Board and ordered the license to issue. The Board brought the matter to this court by writ of error and the judgment was reversed and the matter referred back to the Board for complete hearing, findings and record. Board of County Commissioners In and For Fremont County v. Salardino, 136 Colo. 421, 318 P.2d 596.

Pursuant to said remand and in compliance therewith a full hearing on the application was had before the Board on March 7, 1958, and on March 10, 1958, the Board entered its 'findings and judgment' again denying the application. The Applicant and all parties interested were given an opportunity to be heard under oath, all exhibits offered were received in evidence, and a full and complete record made of the proceedings.

On March 20, 1958, the Applicant filed her complaint under Rule 106(a)(4), R.C.P.Colo., in the nature of certiorari in the District Court of Fremont County, seeking review of the judgment of the Board. The trial court again reversed the findings and order of the Board and directed the issuance of the license applied for. The Board is here by writ of error, seeking review and reversal of the judgment of the trial court.

Five witnesses testified, urging granting of the application; nine testified in opposition. About one hundred persons wrote letters or signed petitions requesting the Board to grant the application; a few living in or owning property in proximity to the location of the proposed outlet, though not advocating the issuance of the license, stated they had no opposition to its issuance, several only vouched for the good character and qualifications of the Applicant.

Written petitions opposed to the granting of the license, signed by about 250 residents of the area described in the petitions as:

'all in the neighborhood of 801 Cyanide Avenue * * *'

were presented to the Board, and nine witnesses testified in opposition to the granting of the license.

The evidence is undisputed that within a very limited area surrounding the proposed location there are three bars where liquor is sold and three where 3.2 beer is sold. The proposed outlet is next door to a bar and restaurant operated by Applicant's husband. There are no licensed outlets of any kind in South Canon City, which lies immediately to the south of the Arkansas River and north of Capitol Hill.

South Fourth Street and South Ninth Street of South Canon City are the only means of ingress and egress to Capitol Hill wherein the proposed location is situate.

The Board's findings consist of twenty folios and it found and determined in substance that:

(1) The 'neighborhood' immediately affected by the application is the area bounded on the east by Ninth Street, on the west by Fourth Street (these are the two access streets), on the north by Griffin Street, and on the south by Elm Street, which is the south boundary line of 'Capitol Hill Subdivision.' The area consists of about fifteen acres, about one half of which is platted; the other half unplatted and apparently largely unoccupied. The Board also found that granting of the license would create a new type of liquor license in a new area and that a much larger district, substantially all of South Canon City, would be affected by issuance of the license.

(2) Licenses already granted 'in this locality,' four in Canon City proper, about one and a half miles from the proposed location, serve the reasonable requirements of the neighborhood; that all of the Canon City outlets make free deliveries to the area of the proposed outlet and which area is much nearer to existing outlets in Canon City than is much of Canon City.

(3) The location is in an unincorporated area and subject to policing by the sheriff only, and he has insufficient personnel to do the job.

(4) The streets in Capitol Hill are inadequately lighted and the area surrounded by vacant and unimproved land, which would attract loiterers, young people, and create added police problems.

Based on these findings of fact, the Board denied the application.

The trial judge, prior to the entry of written findings and judgment, made oral comments on the facts and the law which take up sixty-six folios of the record. He did not agree with the Board's determination of the area constituting the neighborhood, but offered no solution of the problem; he stated he could find no evidence that the neighborhood is adequately served, but made no finding that it was inadequately served. His written judgment held that the denial of the license was arbitrary and capricious and directed that the license issue forthwith.

The Board is by statute charged with the duty and task of determining whether the license should be granted or denied. The only statutory guide provided for the Board in...