A state judge in Boulder has ruled that only the state, and not municipalities, can regulate the hours that alcohol may be served.
Boulder County District Judge Gwyneth Whalen ruled last week that Thunderbird Burgers, a restaurant in the popular University Hill area near the University of Colorado campus, could continue selling alcohol until 2 a.m. despite a city zoning condition calling for it to stop selling alcohol at 11 p.m.
The judge agreed with Thunderbird’s attorneys that only the state can regulate the hours during which alcohol is served.
The city and CU formed an advisory committee in August to study ways zoning regulations could be used to help reduce alcohol abuse.
The committee was part of an effort the city and the university launched to curb binge drinking following the alcohol-poisoning death of a CU freshman in September 2004.
Thunderbird’s owners sought permission in 2004 from Boulder’s Planning Board to stay open until 2 a.m. The restaurant won a zoning variance to stay open that late under the condition it stop selling alcohol at 11 p.m, prompting the lawsuit.
Cities cannot use zoning ordinances to make their own alcohol policy, Whalen wrote in her ruling Friday.
“Zoning restrictions may indirectly affect the sale of alcohol as an incidental consequence of the regulation, while primarily intended to address another issue,” the ruling said. “Here the effect on the sale of alcohol is direct and immediate.” Thunderbird’s attorney, Richard Lopez, said the ruling should “clarify and limit” the advisory committee’s ability to regulate alcohol sales.
City Attorney Ariel Calonne said he hasn’t decided whether to recommend that the City Council appeal the ruling.
The ruling doesn’t affect the Planning Board’s right to reject outright a business’ application to stay open longer than allowed under zoning regulations. The city’s zoning regulations require University Hill businesses to close at 11 p.m. unless they obtain an exemption.
“I appreciated the court recognizing that the balance that the city is trying to strike is laudable,” Calonne said. “I think that means the court was trying to look hard at the law and give us its best guess about what it means. By The Same Token, We Have To consider whether we need the appellate court to do the same thing.”
