Kornfeld v. Yost, 75--346

• Decision Date: 15 April 1976
• Docket Number: No. 75--346,75--346
• Parties: Irwin Harold KORNFELD, Plaintiff-Appellee, v. Jerry L. YOST et al., Defendants, and Perl Mack Liquors, Inc., Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 219

551 P.2d 219

37 Colo.App. 483

Irwin Harold KORNFELD, Plaintiff-Appellee, v. Jerry L. YOST et al., Defendants and Perl Mack Liquors, Inc., Defendant-Appellant.

No. 75--346.

Colorado Court of Appeals, Div. II.

April 15, 1976.

Rehearing Denied April 29, 1976.

Certiorari Granted June 21, 1976.

Brenman, Sobol & Baum, Martin Zerobnick, Stephen N. Berkowitz, Denver, for plaintiff-appellee.

Edward B. Towey, James J. Zak, Denver, for defendant-appellant.

STERNBERG, Judge.

Plaintiff's application for a retail liquor store license was denied by the Adams County Board of Commissioners. The applicant then filed an action under C.R.C.P. 106, joining both the Board and Perl Mack Liquors, Inc. which operated a retail liquor store in the designated neighborhood and which had appeared at the hearing opposing the license. The district court ordered the Board to issue the license. The Board did so, but Perl Mack appeals. We reverse.

At the hearing on the application an investigator selected by the Board reported that his canvass of the neighborhood previously designated by the Board disclosed eighty-one people in favor of issuance of the license, thirty-seven opposed, and forty-nine neutral. The applicant submitted petitions containing approximately 1,000 signatures of those favoring issuance of the license. Attorneys representing Perl Mack produced petitions containing approximately 300 signatures of those opposing the license.

The record shows that there is one licensed package store within the neighborhood, located three-tenths of a mile from applicant's proposed site. Three other package liquor store licenses are located just beyond the edge of the boundaries of the neighborhood, and twelve more within a two mile radius of the premises under consideration.

The Board denied the application on the dual grounds that there had been no proof that 'the reasonable needs and desires of the neighborhood are not adequately served . . .' and that 'the reasonable needs and desires of the neighborhood are presently met by existing outlets.'

In liquor license cases, the authorities must consider 'the reasonable requirements of the neighborhood, the desires of the inhabitants . . ..' Section 12--47--116(2), C.R.S.1973. By § 12--47--141(2), C.R.S.1973, the local licensing authority is also directed to consider 'the reasonable requirements of the neighborhood for the type of license for which application has been made, the number, type, and availability of liquor outlets located in Or near the neighborhood under consideration . . ..' (emphasis supplied)

Applying these statutory standards to the evidence before the Board, the conclusion is inescapable that 'the instant case is security rooted in the 'vast middle ground' where the licensing authority may in its sound discretion grant or deny the license without being properly or lawfully charged with arbitrary, capricious or unreasonable acts or conduct.' Big Top, Inc. v. Hoskinson, 158 Colo. 400, 407 P.2d 26. Here, the Board was not capricious in concluding from the evidence that the needs of this neighborhood were served by the establishments located within the neighborhood and nearby. Also, there was credible evidence that a significant number of inhabitants of the neighborhood did not desire this license.

The fact that a greater number of inhabitants had signed petitions favoring issuance of the license does not of itself mandate issuance thereof. As stated in MacArthur v. Sanzalone, 123 Colo. 166, at 168, 225 P.2d 1044 at 1045:

'(T)he...