A town can't be forced to grant a restaurant liquor license against its will, a state judge said Wednesday.
The ruling came in a lawsuit filed last year by Boulder Mountain Lodge against Boulder, Garfield County, over a town ordinance barring liquor sales in restaurants."Local consent means what it says," wrote 6th District Judge K. L. McIff. "It is not the court's prerogative to usurp the discretionary function of the local authority."
If the Boulder Mountain Lodge wants to change the town's ordinance, it must use the political rather than the legal process, McIff added. "It will have to persuade the Town Council if it is to receive the requested local consent."
Under state law, a restaurant cannot sell liquor without a license from the state Alcoholic Beverage Control Commission, and a prerequisite for the issuance of that license is the written consent of the local authority.
Boulder first tackled the issue in 1994, when another restaurant, the Burr Trail Cafe, applied for a liquor license. Though the town has issued two licenses for the retail sale of beer for off-premises consumption, it had no policy governing on-premises consumption.
Officials decided to survey public opinion before drafting a policy. However, the issue became moot when the Burr Trail Cafe was evicted, but only temporarily.
In 1995, the Boulder Mountain Lodge revived the issue with a new application for local consent. Following two hours of debate, the council adopted the ordinance. After the state Alcoholic Beverage Control Commission refused to intervene, the lodge turned to the courts. McIff said the lodge had no case.
"The Alcoholic Beverage Control Act of 1985 is clear, direct and concise in the delegation of power to the governing bodies of cities, towns and counties," the judge wrote. "The delegation includes the power of complete prohibition of the retail sale of beer or the power to regulate sales for on-premises and off-premises con-sump-tion."
McIff declined to ask the town to reconsider its ban, suggesting the lodge can do that itself through the legislative process.
"The town has a new mayor and an entirely new council. It is within their power to change the law if they deem that to be in the best interest of the local citizenry," the judge wrote.