DISTRICT COURT, BOULDER, STATE OF COLORADO

1777 6th Street

Boulder, Colorado
(303) 441-3750
Plaintiff: REGAL CINEMAS, INC. d/b/a REGAL TWIN
PEAKS 12 & RPX
v.
Defendants: The CITY OF LONGMONT, in its capacity as
the Local Licensing Authority; and the HONORABLE
DIANA VANDEHEY, in her official capacity.
COURT USE ONLY
Attorneys for Plaintiff:
Brian C. Proffitt (SBN 31101)
Chip G. Schoneberger (SBN 41922)
FOSTER GRAHAM MILSTEIN & CALISHER, LLP
360 S. Garfield Street, 6th Floor
Denver, Colorado 80209
Phone: (303) 333-9810
brian@fostergraham.com
cschoneberger@fostergraham.com

Case No.:
Division:

COMPLAINT FOR JUDICIAL REVIEW UNDER C.R.C.P. 106(a)(4)

Plaintiff Regal Cinemas, Inc., through its attorneys Foster Graham Milstein & Calisher
LLP, states for its Complaint as follows:
PARTIES, JURISDICATION, AND VENUE
1.
Regal Cinemas, Inc. (Applicant) is a Delaware corporation authorized to do
business in Colorado.
2.
Upon information and belief, the Town of Longmont (Longmont) has
established a local licensing authority vested with the authority to grant or refuse licenses for the
sale at retail of malt, vinous or spirituous liquor as provided by Articles 46, 47 and 48 of Title 12,
C.R.S. and the Regulations adopted pursuant thereto.
3.
Upon information and belief, Longmont has appointed or otherwise designated its
Municipal Judge, the Honorable Diana VanDeHey (Judge VanDeHey), to sit as the local
licensing authority.
{00235990.DOC / 1 }

4.
This Court has subject matter jurisdiction over this Complaint pursuant to C.R.S.
13-6-104, Colorado Constitution Article VI, Section 9, Rule 106 of the Colorado Rules of Civil
Procedure (C.R.C.P.), or otherwise.
5.
Venue is proper herein pursuant to C.R.C.P. 98(c) because: (a) Boulder County,
Colorado, is the county in which the Defendant resides at the commencement of this action; and
(b) the administrative proceedings giving rise to this action took place in Boulder County,
Colorado.
FACTUAL BACKGROUND
6.
On or about September 29, 2015, Applicant filed its Colorado Retail Liquor
License Application (Application) with Longmont seeking a Tavern liquor license pursuant to
C.R.S. 12-47-412.
7.
Applicant sought to license its newly-constructed movie theater premises located
at 1250 South Hover Street, Bldg. 1-Ste. D, Longmont, CO 80501.
8.
The Application was deemed complete and accepted by Defendants in a written
Administrative Order dated October 28, 2015. That Administrative Order further accepted the
proposed neighborhood boundaries as proposed by Applicant and set the matter for public
hearing on November 20, 2015
9.
The matter was heard at public hearing before Judge VanDeHey on November 20,
2015 (Public Hearing).
10.
Defendants issued Preliminary Findings regarding the Application on November
17, 2015. Those Preliminary Findings determined:
a.

That the Application and supporting documents were complete and in

order;

b.

That, pursuant to an investigation by the Longmont Department of Public

Safety, the Applicant and its officers were determined to be of satisfactory
character, record, and reputation;

c.

That proper statutory notice of the hearing through posting of the premises
and publication in a newspaper of local circulation was accomplished;

d.

That all state and local fees were paid;

e.

That the necessary plans and specifications were filed with Defendants;

{00235990.DOC / 1 }

f.

That the sale of alcohol as contemplated by Applicant was in compliance

with local zoning code, fire code, and building code regulations;

g.

That the proposed premises were not within 500 feet of any school,
college, university, or seminary;

h.

That the Applicant had the legal capacity to apply for, and engage in, the
license business;

i.

That no license had been denied for this location within the prior two
years due to a finding that the adult inhabitants were satisfied with the
existing outlets; and,

j.

That the Applicant was entitled to possession of the premises by virtue of

a lease agreement.

11.
At Public Hearing, Applicant appeared through its counsel and elicited testimony
from its District Manager, Mr. Tim Campbell, the General Manager of a business in the
neighborhood, Mr. Nicholas Parry, and a professional petitioning company, Esquire Petitioning,
Inc., through its representative Ms. Carol Johnson.
12.
Applicant submitted evidence, either through unopposed oral testimony or by
administrative notice of evidence within the Application, to Defendants that:
a.

Posting of the property was accomplished as required by C.R.S. 12-47311 and the Longmont Local Licensing Authority Rules of Procedure Rule
9(d)(1);

b.

Publication of the public hearing was accomplished as required by C.R.S.

12-47-311 and Longmont Local Licensing Authority Rules of Procedure
Rule 9(d)(1);

c.

That the relevant officers and owners of the Applicant are of good
character, reputation, and citizenship as required by C.R.S. 12-47307(1)(a) and Longmont Local Licensing Authority Rules of Procedure
Rule 9(d)(2);

d.

Applicants finances for the acquisition and outfitting of the establishment

are in order as required by Longmont Local Licensing Authority Rules of
Procedure Rule 9(d)(3);

e.

Applicant has possession of the building in which the business is to be

conducted as required by C.R.S. 12-47-301(3)(b);

{00235990.DOC / 1 }

f.

The building in which the business is to be conducted is suitable for this

type of license as required by C.R.S. 12-47-309(3) and Longmont Local
Licensing Authority Rules of Procedure Rule 9(d)(4);

g.

The reasonable requirements of the neighborhood are not currently being

met by existing liquor-licensed establishments in the neighborhood as
required by C.R.S. 12-47-312(2)(a) and Longmont Local Licensing
Authority Rules of Procedure Rule 9(d)(5); and,

h.

The desires of the adult inhabitants of the neighborhood are compatible

with the granting of a Tavern liquor license as required by C.R.S. 12-47312(2)(a) and Longmont Local Licensing Authority Rules of Procedure
Rule 9(d)(5).

13.
Following the Public Hearing, Judge VanDeHey, in an oral ruling, denied the
Application stating As the liquor licensing authority since 1998, I know people ignore the signs
and ignore the rules. Certainly the people who are under 21 who come through my court dont
care that they are not allowed to drink alcohol. ... Im not comfortable granting the license and
Im going to deny it."
14.
Judge VanDeHeys ruling was arbitrary and capricious and is contrary to
Colorado law.
15.
Applicant has no plain, speedy, and adequate remedy provided by law. Applicant
has no other legal remedy, nor other ability to appeal the grant of the Application.
CLAIM FOR RELIEF
(C.R.C.P. 106(a)(4))
16.
Applicant incorporates the allegations set forth in Paragraphs 1 through 15 above
as through fully set forth herein.
17.
At all times relevant hereto, Defendants Longmont and Judge VanDeHey were
exercising quasi-judicial functions within the meaning of C.R.C.P. 106 with respect to the
Application, the ruling thereon, and related matters.
18.
Defendants Longmont and Judge VanDeHey exceeded their jurisdiction in
denying the Application.
19.
Defendants Longmont and Judge VanDeHey abused their discretion in denying
the Application based on the evidence in the record.
20.
Defendants Longmont and Judge VanDeHey violated their own procedures and
Colorado law by denying the Application.

{00235990.DOC / 1 }

RELIEF REQUEST
WHEREFORE, Applicant requests that this Court enter an order and judgment in its
favor and against Defendants as follows:
(a)

Determining that Defendants abused their discretion and exceeded their authority
in denying the Application;

(b)

Reversing the Defendants denial of the Application and granting the Application;

(c)

For the costs and expenses incurred by Plaintiff herein, including recoverable
attorney fees;

(d)

For such other and further relief as this Court deems just and proper.

DATED this 14th day of December, 2015.

Respectfully submitted,
FOSTER GRAHAM MILSTEIN
& CALISHER LLP
Original signature on file at the offices of Foster Graham
Milstein & Calisher LLP pursuant to C.R.C.P. 121 1-26(7)

s/ Brian C. Proffitt
Brian C. Proffitt
Chip G. Schoneberger
Attorneys for Plaintiff

{00235990.DOC / 1 }