Opinion
No. 77-051
Decided March 2, 1978.
Having acquired premises adjacent to its liquor license location, licensee filed application for enlargement of its premises, but city council denied the application. On certiorari review, trial court treated the matter as an application for change of location and remanded. Licensee appealed.
Reversed
1. INTOXICATING LIQUORS — Liquor Licensee — Obtained Adjacent Premises — Application — Enlarge Premises — Not Equivalent — Change of Location Provisions. Where liquor licensee obtained premises adjacent to its location and filed application for enlargement of its premises into that area, and where the diagram accompanying that location showed one of the licensee's bars in the same location and one moved from one location to another, the application to enlarge the premises into the adjoining room to the south could not be treated under the change of location provisions of the liquor licensing statute.
2. Enlargement of Premises — Liquor Licensee — Required Decision — Licensing Authorities — No Guidelines — Regulation Void. Since Department of Revenue regulation pertaining to the expansion or enlargement of a liquor licensee's premises required a decision on the proposed expansion or enlargement to be made by local and state licensing authorities, but provided no guidelines for those authorities to use in either granting or denying such a proposal change, that regulation is void.
Appeal from the District Court of the County of El Paso, Honorable Bernard R. Baker, Judge.
Agee, Ewing Goldstein, Ron E. Ewing, for plaintiff-appellant.
Gordon D. Hinds, City Attorney, Tad S. Foster, Deputy City Attorney, M. Allen Ziegler, Jr., Deputy City Attorney, for defendants-appellees.
Allan F. Asher, David E. Williams, for intervenor-appellee.
Plaintiff is the holder of a hotel and restaurant license regulating the sale of malt, vinous, and spiritous liquors located at 118 No. Tejon in Colorado Springs. It leased the adjoining room at 116 No. Tejon in the same building and filed an application with the city council to enlarge the area of the licensed premises. The application was made on a form supplied by the Department of Revenue as required by Regulation 18 E of the Department, which provides as follows:
"No retail licensee shall expand, enlarge, or modify the premises at which he is licensed to do business or the plans and specifications originally submitted at the time of obtaining the original license, until he obtains written permission to do so from the local and state licensing authorities. Forms for this purpose will be furnished upon requested by the Department of Revenue, Liquor Enforcement Division."
After a hearing, the city council denied the request to expand "on the basis that the expansion of the premises would not be of any benefit to the downtown area in this location nor to the health, safety and welfare of the citizens."
On certiorari review, the district court ruled that the matter was one for an application for change of location and remanded for plaintiff's filing a petition for change of location. We disagree and reverse.
[1] We do not see how the application to enlarge the area of the licensed premises can be construed as an application for change of location. The diagram accompanying the application shows one of the bars in the same location as before the proposed enlargement and one of the bars in the new area. No bar is moved from one location to another; therefore, absent a directive to that effect from the General Assembly, or the Director of Revenue, the application to enlarge the premises into the adjoining room to the south is not to be treated under the change of location provisions of the statute.
Section 12-4-105, C.R.S. 1973, provides that the executive director of the Department of Revenue shall make such rules and regulations as he deems necessary for the proper regulation and control of the sale of malt, vinous or spiritous liquors. Regulation 18 E provided that no retail licensee may expand or enlarge his premises until he receives written permission to do so from the local and state licensing authorities. However, there are no guidelines for either the local or state licensing authorities to determine whether to grant or deny the application.
[2] Without guidelines, it is impossible for either the public or the applicant to know in advance which evidence might be considered material to any particular application by the licensing authorities. Likewise, without proper guidelines it is impossible for the courts to make any meaningful review of the decision of the licensing authority. See Elizondo v. State of Colorado, 194 Colo. 113, 570 P.2d 518. Since Regulation 18 E requires a decision to be made by the licensing authorities but provides no guidelines to them to use in either granting or denying the application to expand or enlarge the licensed premises, the regulation is void.
Accordingly, the judgment of the trial court in remanding the application for the filing of an application for change of location is reversed, and the cause is remanded to the trial court for remand to the city council for further proceedings as hereinafter provided.
The executive director of the Dep't of Revenue in Rosenthal v. Department of Revenue, 40 Colo. App. 422, 579 P.2d 1176 has been directed to comply with § 12-4-105, C.R.S. 1973, and promulgate rules and regulations so that a meaningful review of the application to expand or enlarge the premises may be properly administered.
After publication of said rules and regulations, the city council of the City of Colorado Springs shall hold a hearing on plaintiff's application for expansion or enlargement in accordance with said rules and regulations. Plaintiff shall be allowed to operate its restaurant in the expanded area until such time as a final determination has been made based on the new rules and regulations.
JUDGE ENOCH and JUDGE PIERCE concur.