Posted by: Patricia Salkin | July 22, 2008

City May Not Regulate Hours That Restaurant May Serve Alcoholic Beverages

Thunderbird Burgers is located in a BMS-X zoning district where the operation of businesses after 11pm is prohibited.  In 2002, the restaurant applied for and received a liquor license from the City’s Beverages Licensing Authority, after which they regularly stayed open past 11pm, in violation of the zoning designation.  In December 2004, the City warned Thunderbird Burgers that it was operating in violation of the zoning, and that it could not remain open after 11pm unless the City were to grant a use review.  Thunderbird Burgers then applied to the City for the use review, and the planning board recommended approval subject to the condition that while the normal hours of operation shall be 10am to 2am daily, there will be no consumption of alcohol after 11pm.   The City Council declined to consider the decision upon Thunderbird’s request, so Thunderbird filed an action alleging that the City exceeded its jurisdiction or abused its discretion in granting the use review subject to the condition.  The district court agreed with Thunderbird and the City appealed.

 

The appeals court, reviewing state constitutional and statutory provisions, agreed with the district court.  Noting that pursuant to Article XXII, section I of the State constitution, the regulation of the manufacture, sale and distribution of intoxicating liquor is a matter of statewide concern, and a city has no constitutionally derived authority to legislate in these areas. The Colorado State Legislature, acting pursuant to the State Constitution, has declared it unlawful to serve alcohol between 2am and 7am.  While the City relied on a different statutory provision (C.R.S. 12-47-313(1)(c )) which provides that an application for the issuance of a liquor license shall not be acted upon “For a location in an area where the sale of alcoholic beverages as contemplated is not permitted under the applicable zoning laws of the municipality, city, and court…”  In applying rules of statutory construction, the Court agreed with Thunderbird Burgers that this last quoted section does not give the City the authority to regulate the hours a business may serve alcoholic beverages through conditional use review where, as here, the decision does not concern the application for a liquor license.  The City could have said that no alcoholic beverages could be served in a particular zoning district, but that also was not the case here. The Court said, that the statute “does not convey any power or authority to regulate liquor sales after a liquor license has been granted,” and that “no statute authorizes municipalities to regulate the hours during which liquor license establishments may serve alcoholic beverages.”  The Court concluded, “ Though the City could have denied the use review outright, it did not.  Having granted the use review, it could not regulate the hours during which Thunderbird Burgers could serve alcoholic beverages pursuant to its previously-issued liquor license.” 

 

 

Berger v. City of Boulder, 2008 WL 2684119 (Colo. App. 7/10/2008 )

 

The opinion can be accessed at: http://www.cobar.org/opinions/opinion.cfm?opinionid=6717&courtid=1

 

 


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