Moschetti v. Liquor Licensing Authority of City of Boulder, s. 24056

• Decision Date: 01 November 1971
• Docket Number: Nos. 24056,24313,s. 24056
• Citation: 490 P.2d 299,176 Colo. 281
• Parties: Bauldie MOSCHETTI, individually and for all other persons similarly situated, Plaintiff in Error, v. LIQUOR LICENSING AUTHORITY OF CITY OF BOULDER, Defendant in Error. Bauldie MOSCHETTI, individually and for all other persons similarly situated, Plaintiff in Error, v. John H. HECKERS, Executive Director of the Department of Revenue, as the State Liquor Licensing Authority of the State of Colorado, and Mountain-Vu Liquors, a Colorado corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 299

490 P.2d 299

176 Colo. 281

Bauldie MOSCHETTI, individually and for all other persons

similarly situated, Plaintiff in Error, v. LIQUOR LICENSING AUTHORITY OF CITY OF BOULDER, Defendant in Error.

Bauldie MOSCHETTI, individually and for all other persons

similarly situated, Plaintiff in Error, v. John H. HECKERS, Executive Director of the Department of

Revenue, as the State Liquor Licensing Authority of the

State of Colorado, and Mountain-Vu Liquors, a Colorado

corporation, Defendants in Error.

Nos. 24056, 24313.

Supreme Court of Colorado, En Banc.

Nov. 1, 1971.

Rehearings Denied Nov. 29, 1971.

Hollenbeck, King & French, Peter C. Dietze, Guy A. Hollenbeck, Boulder, for plaintiff in error.

Hutchison, Black & Hill, James W. Buchanan, William H. Nikkel, Walter L. Wagenhals, Lawrence C. Rider, Boulder, for defendant in error in No. 24056.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Chris J. Eliopulos, Asst. Atty. Gen., for defendants in error in No. 24313.

DAY, Justice.

Two writs of error have by this decision been consolidated. The appeals involve the same issue--the validity of a transfer of a liquor license granted by the Boulder City Council, the local authority, and the Colorado Director of Revenue, the State Authority.

Plaintiff in error, Moschetti, hereinafter referred to as 'protestant' has a package liquor store in the vicinity of Mountain-Vu Liquors, herein referred to as 'applicant.' The latter obtained authority for a competing package liquor store by transfer of a license held by it from another location. The previous liquor license was for an outlet in a northeast sector of the city. The transfer was authorized to a shopping center in the southern sector of Boulder, and adjacent to the University of Colorado campus.

The application for the transfer was granted by the local authority after public hearing. One of the issues decided at the hearing was whether the proposed new outlet for Mountain-Vu Liquors was less than 500 feet from the campus in violation of C.R.S.1963, 75--2--39(5)(a). The city of Boulder in permitting the issuance of the license, among other things, made a determination that applicant's store was more than 500 feet from the campus and thus in compliance with the statute. Protestant appealed to the Boulder district court the validity of the local authority's ruling which permitted the transfer of the license, filing its certiorari action prior to any action taken by the state liquor authority. The district court approved the transfer--though on different findings--and from that judgment writ of error was brought to this court. That writ of error, Supreme Court No. 24056, will be discussed under I.

Meanwhile, with litigation pending on certiorari to review the action of the local authority, the administrative process to effect the transfer by obtaining the necessary concurrence of the state authority was in progress. The protestant obtained permission for a hearing from and appeared before the state authority. Subsequently, that body approved the transfer. The action of the state authority was then appealed to the Boulder district court, but that certiorari proceeding was dismissed. Protestant then brought separate writ of error directed to that judgment which will be discussed under II.

I.

(Supreme Court No. 24056)

Taking up first the appeal to the Boulder district court from the action of the city of Boulder in granting application of the transfer of the license, we hold that the trial court lacked jurisdiction over the subject matter of the certiorari proceeding there. (C.R.C.P. 12(b)(1).) Although this point ws not raised by the parties, we take note of this lack of jurisdiction on our own motion. Lien v. Gertz, 158 Colo. 416, 407 P.2d 328 (1965); McKinnon v. Hall, 10 Colo.App. 291, 50 P. 1052 (1897). We deem it necessary to treat this plain error and defect in the appellante process in the interest of bringing some semblance of order to the chaotic record which has resulted from the two piecemeal reviews now before us, plus a desire to compel orderly process in the administrative field.

Under C.R.S.1963, 75--2--3(8), 75--2--38 and 75--2--42(5), it is necessary before there can be any issuance of a liquor license or a transfer thereof at the local level that the state authority approve the action of the local authority. The concurrent action of the two authorities is mandatory. If the local authority denies the license, appeal therefrom to the district court would lie because the state alone could not authorize the issuance. But where there is approval at the local level, it is of no force and effect without also the state approval. Absent the latter administrative procedure, the entire administrative process is not complete. It is axiomatic that before there can be any recourse course to the courts in an administrative matter, there must be an exhaustion of the administrative remedies. This salutory rule of law prevents piecemeal application to, or interference by, the judiciary.

There is also another reason why the appeal to the district court was premature and jurisdiction did not lie to that court. The state, before granting its concurrent approval, may hold an additional hearing, as was done in this case. Consequently, a review of the entire record was impossible at the stage when it was first presented to the district court. On the other hand, if the state authority had denied the application for the transfer, this particular certiorari review brought by the protestant would have been moot.

Accordingly, in the writ of error No. 24056 we reverse the trial court and remand the action with directions that the particular certiorari proceedings initiated in that case be dismissed.

II.

(Supreme Court No. 24313)

Addressing ourselves to the problem posed in certiorari proceedings following action by the state authority, we note the trial court failed to rule on any of the erros assigned and made no finding as required by C.R.S.1963, 3--16--5, as to whether there was or was not any error in the administrative...