No. 82CA1006Colorado Court of Appeals.
Decided September 13, 1984. Rehearing Denied October 11, 1984. Certiorari Denied January 14, 1985.
Appeal from the District Court of the City and County of Denver Honorable Daniel Sparr, Judge
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Law Offices of Worstell Wyatt, David L. Worstell, Louis A. Weltzer; Neal Dunning, for Plaintiff-Appellant.
Max P. Zall, City Attorney, Lee G. Rallis, Assistant City Attorney, Howard E. Willner, Assistant City Attorney, Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard Forman, Solicitor General, Roger M. Morris, Assistant Attorney General, Robert L. Patterson, Assistant Attorney General, for Defendants-Appellees.
Division I.
Opinion by JUDGE PIERCE.
[1] Plaintiff, Price Haskel, Inc. (Haskel), appeals a district court decision, under C.R.C.P. 106(a)(4), affirming the denial by the Denver Department of Excise and Licenses of Haskel’s application for renewal of its tavern liquor license. We reverse and remand. [2] Haskel held a license to operate a tavern issued pursuant to § 12-47-106, C.R.S. The term of its most recent license expired December 6, 1981. Upon timely application for renewal of the license for the year 1981 to 1982, the Director of the Department of Excise and Licenses ordered Haskel to appear at a hearing and show cause why renewal should be granted. After hearing, the director issued an undated order denying the renewal application for violations of Colorado Department of Revenue Regulations 47-105.1 and 47-128.8, and because Haskel had failed to show that renewal was needed and desired by the inhabitants of the area. I.
[3] Haskel first argues that § 12-47-106, C.R.S., is unconstitutionally vague and is an unconstitutional delegation of authority.
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Its constitutional challenges, however, are not within the scope of review under C.R.C.P. 106(a)(4). Challenges of improper delegation of authority and vagueness are facial constitutional challenges which concern a general rule or policy applicable to an open class of individuals, and, as such, are legislative acts subject to review under C.R.C.P. 57, rather than C.R.C.P. 106(a)(4). Two G’s, Inc. v. Kalbin, 666 P.2d 129 (Colo. 1983); Tri-State Generation Transmission v. City of Thornton, 647 P.2d 670 (Colo. 1982). Accordingly, we do not reach the question whether the standard of good cause set by the statute is sufficient as concerns legislative delegation of authority to an administrative agency.
[4] The Director’s disposition does, however, remain subject to judicial review with respect to whether the decision was arbitrary or capricious Van DeVegt v. Commissioners, 98 Colo. 161, 55 P.2d 703 (1936).II.
[5] Haskel also argues that because the Director admitted evidence concerning allegations of which it had no notice, it was denied due process. We agree.
(1961). [8] Here, Haskel was not given notice that evidence would be taken as to the needs and desires of the neighborhood, and thus, those matters could not be considered at the hearing. See Spears Hospital v. State Board of Health, 122 Colo. 147, 220 P.2d 872 (1950). Accordingly, since the Director based his decision, at least in part, on evidence of needs and desires of the neighborhood, the matter must be remanded to the Director for reconsideration of his order without this factor considered. [9] Because of our disposition, we need not reach the other issues raised by Haskel. [10] The judgment is reversed, and the cause is remanded with directions that, in reaching his decision, the Director consider only the evidence alluding to the issues raised by the notice. [11] JUDGE SMITH and JUDGE TURSI concur.