Opinion
March, March & Sullivan, John-David Sullivan, Fort Collins, for plaintiffs in error.
Hammond & Chilson, Lynn A. Hammond, John H. Chilson, Loveland, for defendants in error, City of Loveland, The City Council of City of Loveland, as the licensing authority for retail liquor licenses in City of Loveland, Dennis Garrett, J. Paul Cornett, Lucile Erwin, Jean Gaines, Ivan H. Harris, Warren Green, Byron H. Findling, Harold Kester and Wilmina Overturf, as members of the City Council of City of Loveland.
Warberg, Dressel & Mast, Sonja E. Warberg, William F. Dressel, D. Chet Mast, Fort Collins, for defendants in error, Jack A. Greeno and Elvera S. Greeno, doing business as 34 Liquors, a partnership.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute.
Plaintiffs in error seek reversal of a district court judgment which affirmed an order of the liquor licensing authority of The City of Loveland granting a liquor license and which dissolved an injunction which restrained the issuance of such license. We affirm.
Plaintiffs in error, all of whom are owners or previous owners of liquor licenses, objected to the granting of the license. They will be referred to as opponents. Defendants in error are The City of Loveland and The City Council of the City of Loveland as its liquor licensing authority (Council) and the Greenos, the applicants.
The opponents assert that applicant failed to prove that the requirements of the neighborhood and the desires of the inhabitants were not being met by existing outlets. The licensing authority found othwise and this finding is supported by the evidence. Wide discretion is vested in the local licensing authority and all reasonable doubts as to the correctness of its decision are to be resolved in its favor. This court cannot substitute its judgment for that of the local licensing authority. Potter v. McClearn, 171 Colo. 334, 467 P.2d 54.
Opponents further assert that the Council was capricious and arbitrary in defining the neighborhood. We disagree. In Potter v. McClearn, Supra, it was held that absent a clear showing of abuse in delineating the neighborhood, the determination of the licensing authority will not be disturbed. No such abuse is shown here.
The delineation of the neighborhood is significant for two purposes. The first is to determine who are parties in interest as defined in 1967 Perm.Supp., C.R.S. 1963, 75--2--41(5)(b). The second is to determine the needs and desires of the defined area.
In the within case the record discloses that all opponents, whether within or without the designated neighborhood were given an opportunity to be heard and to present proof as to the need or lack of need of the designated neighborhood as later determined by the Council. The actions of the Council in this regard were clearly not arbitrary or capricious.
Opponents further state that the license should not have been granted because the notice of the hearing did not comply with the statute and the regulations of the director of revenue. The evidence established that notice was properly published in a local newspaper, that the posted notice was proper in all respects, that the ten-day period was complied with as to the newspaper notice, however the posted notice was not erected fifteen days before the hearing as required by the regulation. At the hearing the opponents were twice offered a continuance by the Council but elected to proceed. The error did not affect the substantial rights of the parties and we must therefore disregard it. R.C.P. Colo. 61.
Opponents further seek reversal on the ground that none of the witnesses were sworn prior to testifying at the hearing. No objection to this irregularity was raised at the hearing and this asserted error was therefore waived. The trial court correctly upheld the issuance of the license.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.