1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                           ADVANCE SHEET HEADNOTE
7                                                                        April 24, 2017
8
9                                          2017 CO 33
0
1   No. 15SA215, Rocky Mountain Retail Management v. City of Northglenn—
2   Vagueness—Medical Marijuana Licensing.
3
4         The supreme court reviews the district court’s order declaring a provision of the

5   City of Northglenn’s medical marijuana licensing ordinance unconstitutionally vague

6   and finding that the City’s denial of a medical marijuana center license to an applicant

7   in reliance on that provision was arbitrary and capricious.

8         The supreme court holds that Northglenn City Code section 18-14-7(h), which

9   allows the local licensing authority to consider the “number, type, and availability” of

0   existing medical marijuana facilities near the proposed facility before approving or

1   denying an application for a local license, is not unconstitutionally vague. The phrase

2   “number, type, and availability” provides sufficient notice to applicants and reasonably

3   constrains the exercise of the City’s discretion. The supreme court further holds that the

4   City’s decision to deny the license application in this case was supported by substantial

5   evidence in the record, and therefore was not arbitrary and capricious.

6
1

2

3                       The Supreme Court of the State of Colorado
4                         2 East 14th Avenue • Denver, Colorado 80203


5                                        2017 CO 33

6                          Supreme Court Case No. 15SA215
7                             Appeal from the District Court
8                     Adams County District Court Case No. 14CV30842
9                           Honorable Mark D. Warner, Judge

0                                    Plaintiff-Appellee:
1           Rocky Mountain Retail Management, LLC, d/b/a Rocky Mountain High,
2                                             v.
3                                   Defendant-Appellant:
4                 City of Northglenn, acting by and through its City Council.

5                                   Judgment Reversed
6                                         en banc
7                                       April 24, 2017
8
9   Attorneys for Defendant-Appellant:
0   Hoffmann, Parker, Wilson & Carberry, P.C.
1   Corey Y. Hoffmann
2   Elizabeth R. Cross
3    Denver, Colorado
4
5   Attorneys for Amicus Curiae The Colorado Department of Revenue:
6   Cynthia H. Coffman, Attorney General
7   Glen E. Roper, Deputy Solicitor General
8   Claudia Brett Goldin, First Assistant Attorney General
9    Denver, Colorado
0
1   Attorney for Amicus Curiae The Colorado Municipal League:
2   Rachel L. Allen
3    Denver, Colorado
4
5   No appearance on behalf of Plaintiff-Appellee Rocky Mountain Retail Management,
6   LLC.
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7   JUSTICE MÁRQUEZ delivered the Opinion of the Court.

                                          2
¶1     Rocky Mountain Retail Management, LLC, d/b/a Rocky Mountain High, filed

an application for a license to operate a medical marijuana center in the City of

Northglenn. The Northglenn City Council, acting as the City’s medical marijuana local

licensing authority, denied Rocky Mountain’s application after receiving evidence at

two public hearings. Rocky Mountain sought judicial review of the City’s decision in

the district court, arguing that the denial was not based on substantial evidence in the

record and was therefore arbitrary and capricious and an abuse of discretion. Rocky

Mountain also asked the district court to declare certain licensing provisions of the

Northglenn City Code unconstitutionally vague, including section 18-14-7(h), which

sets forth factors a local licensing authority may consider before approving or denying a

medical marijuana center license. The district court ruled that section 18-14-7(h) is

unconstitutionally vague, and that the City’s denial of the license in reliance on that

invalid provision was arbitrary and capricious. The City appeals these rulings.

¶2     Section 18-14-7(h) of the Northglenn City Code, which contains language

identical to a provision in the Colorado Medical Marijuana Code, permits the local

licensing authority to consider the “number, type, and availability” of existing medical

marijuana facilities before approving or denying an application for a local license. We

are asked to decide whether section 18-14-7(h) is impermissibly vague. We are also

asked to determine whether the City’s decision to deny Rocky Mountain’s application

was supported by substantial evidence.          Because the phrase “number, type, and

availability” in section 18-14-7(h) provides sufficient notice to applicants and reasonably

constrains the exercise of the City’s discretion, we hold that section 18-14-7(h) is not


                                            3
void for vagueness. We further hold that the City’s decision to deny Rocky Mountain’s

license application was supported by substantial evidence in the record, and therefore

was not arbitrary and capricious.

¶3     To provide background for our analysis, we first explain the framework for

medical marijuana licensing at the state and local level and then provide the factual and

procedural history of this case.    We then consider the vagueness doctrine and its

applicability to the licensing framework at issue here and hold that the district court

erred in concluding that the Northglenn Code provision was unconstitutionally vague.

Finally, we consider the City’s decision to deny Rocky Mountain’s license application

and conclude that the decision was supported by substantial evidence. Accordingly, we

reverse the judgment of the district court.

                                    I. Background

¶4     In 2010, the General Assembly enacted the Colorado Medical Marijuana Code,

sections 12-43.3-101 to -1102, C.R.S. (2016), which sets forth “the exclusive means by

which manufacture, sale, distribution, and dispensing of medical marijuana may occur

in the state of Colorado.” § 12-43.3-103(e).1 The Medical Marijuana Code authorizes

local governments to prohibit the operation of medical marijuana centers or to adopt

licensing standards and requirements that may be in addition to, or more restrictive

than, the standards set forth in state law. See §§ 12-43.3-301(2)(b), -310(1). The local



1The question of whether Colorado’s marijuana laws are preempted by federal law is
not raised in this case.



                                              4
governing body may serve as the local licensing authority or designate an authority to

serve this role. § 12-43.3-104(5).

¶5     A medical marijuana center must obtain licensing approval from both the state

and local licensing authorities, and the denial of an application by a local licensing

authority shall be considered a basis for the state licensing authority to revoke any state-

issued license. §§ 12-43.3-305(2), -310(2). Licensing decisions made by the state and

local licensing authorities are subject to judicial review under section 24-4-106, C.R.S.

(2016), of Colorado’s Administrative Procedure Act (“state APA”). § 12-43.3-801.

¶6     To implement the provisions of the Medical Marijuana Code, the City of

Northglenn adopted Article 14 of the Northglenn Code, sections 18-14-1 to -44.

Northglenn, Colo., Code § 18-14-2 (2017). Under the Northglenn Code, applicants for a

license to operate a medical marijuana facility must submit an application and fee to the

City showing that they meet several basic requirements and are not otherwise

prohibited from receiving a license under the Northglenn Code.2 See id. § 18-14-7(a),

(e). After the City receives an application for a new license, the local licensing authority

must schedule a public hearing on the application and must disclose the findings of its



2 For example, Northglenn Code section 18-14-12 prohibits certain individuals from
holding a license (e.g., any person under twenty-one years of age or any person
convicted of a felony for drug possession, distribution, or use). Northglenn Code
section 18-14-11 prohibits medical marijuana facilities in certain locations (e.g., within
1,000 feet of any educational institution, within 1,000 feet of any other marijuana
business, or within any building or structure that contains a residential unit). The
Medical Marijuana Code has similar provisions. See §§ 12-43.3-307(f),
(h)(II), -308(1)(d)(I), C.R.S. (2016).



                                             5
preliminary investigation regarding the application in advance of that hearing. Id.

§ 18-14-7(f)–(g).

¶7      Relevant here, section 18-14-7(h) of the Northglenn Code contains language

identical to section 12-43.3-303(2) of the Medical Marijuana Code.           This language

describes the information the local licensing authority may consider before entering a

decision approving or denying an application for a local license, including the “number,

type, and availability” of existing medical marijuana centers located nearby:

       Before entering a decision approving or denying the application for a local
       license, the local licensing authority may consider, except where this
       Article specifically provides otherwise, the facts and evidence adduced as
       a result of its investigation, as well as any other facts pertinent to the type
       of license for which application has been made, including the number,
       type and availability of medical marijuana centers, optional premises
       cultivation operations, or medical marijuana-infused products
       manufacturers located in or near the premises under consideration, and
       any other pertinent matters affecting the qualifications of the applicant for
       the conduct of the type of business proposed.

Northglenn, Colo., Code § 18-14-7(h) (2017); § 12-43.3-303(2) (emphases added).3 As

noted by the Colorado Municipal League in its amicus brief, other Colorado



3 The Northglenn City Council denied Rocky Mountain’s application in 2014. Since
then, the City has amended section 18-14-7(h) to include additional factors the licensing
authority must consider:
       In addition, the local licensing authority shall consider whether approval
       of the application would result in any of the following demonstrable
       negative impacts on the surrounding neighborhood: (1) an undue
       concentration of a certain class of medical marijuana business that would
       require the use of additional law enforcement resources; (2) an increase in
       traffic congestion; (3) a shortage of available parking; or (4) other
       demonstrable negative impacts caused by the new medical marijuana
       business.



                                             6
municipalities have adopted local licensing ordinances derived from section

12-43.3-303(2) that similarly permit consideration of the “number, type, and

availability” of existing marijuana businesses.4 With this legal framework in mind, we

turn to facts of this case.

                              II. Facts and Procedural History

¶8     In November 2013, Rocky Mountain submitted an application to the City of

Northglenn for a medical marijuana center license.      The City issued a preliminary

report finding that the application met preliminary requirements and that Rocky

Mountain was eligible to operate as a medical marijuana center subject to, among other

things, a public hearing before the City Council (acting as the Northglenn Marijuana

Licensing Authority).

¶9     At the hearing in January 2014, the City Council heard evidence regarding Rocky

Mountain’s application for a medical marijuana center license under the criteria set

forth in the Medical Marijuana Code and the Northglenn Code. This evidence included

testimony from Rocky Mountain’s principal regarding the type of products and services


Northglenn, Colo., Ordinance 1695 (Feb. 23, 2015). The amended provision is not before
this court.
4 See, e.g., Breckenridge, Colo., Code § 4-14-20 (2017) (“[T]he local licensing authority
shall consider, among the other relevant factors described in the applicable codes, the
number, type, and availability of medical marijuana businesses and retail marijuana
establishments located in or near the premises for which the application has been
submitted.”); Englewood, Colo., Code § 5-3D-6(B) (2016) (“[T]he Local Licensing
Authority may consider . . . the facts and evidence adduced as a result of its
investigation, as well as any other facts pertinent to the type of license for which
application has been made, including the number, type, and availability of Medical
Marijuana outlets located in or near the premises under consideration.”).



                                             7
it would offer and its experience in the industry in other jurisdictions. City Council

members asked Rocky Mountain to address whether, given the existence of another

medical marijuana facility roughly a block away, there was a need for Rocky

Mountain’s business at the proposed location.        Rocky Mountain testified that the

genetics of its product are different and that it would offer unique strains of marijuana

and a superior product. When pressed by a City Council member to substantiate a need

for another facility in Northglenn in addition to the three already in operation, Rocky

Mountain’s representative said that he could not “say with certainty” that the City

needed another facility or demonstrate such a need at the time of the application.

¶10   Another City Council member noted that the local licensing authority may

consider the number, type, and availability of existing marijuana centers. She opined

that Rocky Mountain’s proposed location was too close to an existing center and that

there were sufficient centers in Northglenn, considering the City’s small square mileage.

A representative from an existing medical marijuana facility in Northglenn testified that

Rocky Mountain’s proposed location was very close to his facility and other existing

facilities. After hearing testimony in support of and in opposition to the application, the

City Council voted to deny Rocky Mountain’s license application.            In its written

findings, the City Council concluded that the evidence presented at the hearing showed

that the number, type, and availability of medical marijuana centers in proximity to

Rocky Mountain’s proposed location and within the boundaries of the City were

sufficient to serve the needs of the Northglenn community.




                                            8
¶11     Rocky Mountain requested a rehearing, as permitted by Northglenn Code

section 3-7-12, seeking to provide additional evidence regarding the adequacy of the

number, type, and availability of medical marijuana facilities in Northglenn.

¶12     At the second public hearing on March 10, 2014, Rocky Mountain offered

testimony of a private investigator who discussed his observations of the existing

medical marijuana centers in Northglenn. He testified that he observed a wait line of

approximately thirty people at the medical marijuana facility closest to Rocky

Mountain’s proposed location and that customers appeared to be waiting for

approximately thirty minutes to one hour. Upon further questioning, he clarified that

he observed the wait line within approximately five to ten minutes of the facility’s

opening in the morning and that he did not see wait lines at other facilities. Rocky

Mountain also presented three medical marijuana patients (including a Rocky

Mountain employee) who testified that when the facility closest to Rocky Mountain’s

proposed location began selling recreational marijuana, the wait times increased

significantly, and that the facility reduced the number of strains of medical marijuana it

was selling.    Rocky Mountain’s technical director testified about the company’s

development and testing processes and about certain products it sold that did not

appear to be widely offered, based on his review of the websites of other Northglenn

facilities.

¶13     Representatives from two existing facilities in Northglenn also testified. These

representatives contradicted Rocky Mountain’s assertions that its products were




                                            9
unique, stating that similar products were offered in their stores. They also testified

that the wait time for medical marijuana customers is generally five to ten minutes.

¶14    After the rehearing, the City issued Resolution 14-31, making findings of fact

supporting its decision to deny Rocky Mountain’s application.         The City Council

concluded that the number, type, and availability of existing medical marijuana outlets

and other pertinent factors under the Medical Marijuana Code and section 18-14-7(h) of

the Northglenn Code precluded issuance of the license. Specifically, the City Council

found that Rocky Mountain’s testimony regarding the uniqueness of its products, when

weighed against contradictory testimony from representatives of existing marijuana

businesses in the City, was insufficient to show that the number, type, and availability

of medical marijuana outlets was not meeting Northglenn’s needs. It reasoned that

evidence regarding what occurred at another facility within the first few months of

selling both recreational and medical marijuana was not dispositive of need, nor did it

establish that the number, type, and availability of medical marijuana outlets was

insufficient.

¶15    The City Council found that the testimony of a representative of one existing

facility was particularly credible on these issues because she neither supported nor

opposed Rocky Mountain’s request for a license.       This representative testified that

Rocky Mountain’s products and strains were not unique in the Northglenn market.

Conversely, the City Council gave no particular weight to testimony from

representatives of another existing facility because such testimony was motivated by an

apparent desire to prevent a competitor—Rocky Mountain—from receiving a license.


                                           10
Finally, the City Council expressed concern regarding the testimony of Rocky

Mountain’s private investigator, whose testimony “indicated an apparent bias which

affected his credibility.”

¶16    Rocky Mountain sought judicial review of the City’s decision by filing a

complaint in Adams County District Court under section 24-4-106 of the state APA.

Rocky Mountain requested a declaratory judgment that: (1) the City’s denial of Rocky

Mountain’s application for a medical marijuana license was not based on substantial

evidence in the record; (2) the City Council applied an improper legal standard; (3) the

City’s decision to deny the license was arbitrary and capricious; and (4) sections

18-14-5(a) and -7 of the Northglenn Code are unconstitutionally vague. In a written

order issued April 1, 2015, the district court ruled that Northglenn Code section

18-14-7(h) is unconstitutionally vague and ordered that provision be stricken from the

Code. The court concluded that because the City Council’s decision relied upon section

18-14-7(h), its decision was arbitrary and capricious.

¶17    The City sought appellate review of this ruling in the Colorado Court of Appeals.

However, because the district court held that Northglenn Code section 18-14-7(h) was

unconstitutionally vague, the court of appeals referred the case to this court, and we

accepted jurisdiction. See § 13-4-102(1)(b), C.R.S. (2016) (providing the court of appeals

with initial jurisdiction over appeals from final judgments of district courts except in

cases in which a statute or ordinance has been declared unconstitutional);

§ 13-4-110(1)(a), C.R.S. (2016) (directing the court of appeals to refer cases not within its

jurisdiction to the supreme court, which shall decide the question of jurisdiction). The


                                             11
City filed a brief in this case, and the Colorado Department of Revenue and the

Colorado Municipal League filed amicus briefs in support of the City. Before the City

filed its opening brief in this court, counsel for Rocky Mountain withdrew from the

case, and no other entry of appearance was filed on behalf of Rocky Mountain.

                                     III. Vagueness

¶18    This court reviews the constitutionality of a municipal ordinance de novo. Town

of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO 37, ¶ 22, 325 P.3d 1032,

1038. Generally, such ordinances are presumed to be constitutional, and the party

challenging the ordinance bears the burden to prove its unconstitutionality. See id.

¶19    We first discuss the vagueness doctrine and its applicability to the licensing

framework at issue here.        We then consider whether Northglenn Code section

18-14-7(h) is unconstitutionally vague.       Because the phrase “number, type, and

availability” in section 18-14-7(h) provides sufficient notice to applicants and reasonably

constrains the exercise of the City’s discretion, we hold that it is not void for vagueness.

                                             A.

¶20    The vagueness doctrine is rooted in principles of procedural due process. People

v. Graves, 2016 CO 15, ¶ 17, 368 P.3d 317, 324. Due process requires laws to give fair

warning of prohibited conduct so that individuals may conform their actions

accordingly; it also demands that a penal statute establish standards that are sufficiently

precise to avoid arbitrary and discriminatory enforcement. See id. Thus, the doctrine

prohibits laws that forbid or require conduct in terms so vague that persons of common

intelligence must necessarily guess as to their meaning and differ as to their application.



                                             12
Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 309 (Colo. 1992). The Supreme Court

has explained that in a vagueness inquiry, the level of specificity required depends on

the type of enactment challenged: “[t]he degree of vagueness that the Constitution

tolerates—as well as the relative importance of fair notice and fair enforcement—

depends in part on the nature of the enactment.” Vill. of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 498 (1982).      The Constitution permits “greater

tolerance of [vague] enactments with civil rather than criminal penalties because the

consequences of imprecision are qualitatively less severe.” Id. at 498–99. In contrast,

where a statute threatens to inhibit speech or expressive conduct protected by the First

Amendment, the vagueness doctrine demands a greater degree of specificity. Graves,

¶ 18, 368 P.3d at 324.

¶21    A law is not unconstitutionally vague simply because it could have been drafted

with greater precision. Id.; see also People ex rel. City of Arvada v. Nissen, 650 P.2d

547, 550 (Colo. 1982) (“[D]ue process of law has never required mathematical exactitude

in legislative draftsmanship.”). Rather, a law is unconstitutional only if it “is vague, not

in the sense that it requires a person to conform his conduct to an imprecise but

comprehensible normative standard, but rather in the sense that no standard of conduct

is specified at all.” Bd. of Educ. of Jefferson Cty. Sch. Dist. R-1 v. Wilder, 960 P.2d 695,

703 (Colo. 1998) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)). Overall,

“[t]he vagueness doctrine is not an exercise in semantics to emasculate legislation;

rather, it is a pragmatic means to ensure fairness. Where fairness can be achieved by a

commonsense reading . . . we will not adopt a hypertechnical construction to invalidate


                                            13
the provision.” Ams. United for Separation of Church & State Fund, Inc. v. State, 648

P.2d 1072, 1086 (Colo. 1982) (quoting People v. Garcia, 595 P.2d 228, 231 (Colo. 1979)).

                                            B.

¶22   Here, the district court concluded that Northglenn Code section 18-14-7(h) fails

to provide sufficient definiteness so that “ordinary people can understand what

conduct and conditions are required to avoid having the request [for a license] refused.”

The court relied on Squire Restaurant and Lounge, Inc. v. City and County of Denver,

890 P.2d 164, 170 (Colo. App. 1994), for the principle that some limit must guide a

licensing board’s discretion to grant or refuse a license. The court also concluded that

because section 18-14-7(h) is permissive rather than mandatory (i.e., “the local licensing

authority may consider” certain factors) this provision gives applicants insufficient

notice regarding the factors to be considered. The district court therefore concluded

that section 18-14-7(h) is unconstitutionally vague and ordered that it be stricken from

the Northglenn Code.

¶23   For several reasons, we conclude that the district court erred in concluding that

section 18-14-7(h) is unconstitutionally vague.    First, the ordinance at issue neither

penalizes nor criminalizes any conduct. Rather, it provides a framework within which

the City Council exercises its broad discretion to grant or deny a license application. To

the extent Rocky Mountain argues, and the district court concluded, that the

Northglenn Code grants the City Council unfettered discretion and thereby allows for

arbitrary application, we disagree. The factors listed in section 18-14-7(h)—“number,

type, and availability” of other facilities “located in or near the premises under


                                            14
consideration”—provide sufficient notice to applicants regarding what information the

licensing authority will consider.      Persons of ordinary intelligence can readily

understand the meaning of “number, type, and availability” of existing medical

marijuana facilities near the premises under consideration.

¶24   Second, although the licensing authority retains discretion under the ordinance

to consider other pertinent matters, and “may” consider the factors listed, such

discretion does not render the ordinance impermissibly vague. The district court noted

that Colorado’s liquor licensing statute requires licensing authorities to consider several

factors when deciding whether to grant a liquor license. See § 12-47-312(2)(a), C.R.S.

(2016).5 But, the court reasoned, the liquor statute uses the mandatory language “shall

consider,” whereas the Northglenn Code (which mirrors the provision in the Medical

Marijuana Code) uses the permissive language “may consider.” However, the use of


5The statute permitting the sale of alcoholic beverages contains language similar to the
provision at issue here. It provides that in an application proceeding for a license to
operate an establishment selling alcoholic beverages, a local licensing authority shall
consider, among other factors, the “number, type, and availability” of existing
establishments:
      Before entering any decision approving or denying the application, the
      local licensing authority shall consider, except where this article
      specifically provides otherwise, the facts and evidence adduced as a result
      of its investigation, as well as any other facts, the reasonable requirements
      of the neighborhood for the type of license for which application has been
      made, the desires of the adult inhabitants, the number, type, and
      availability of alcohol beverage outlets located in or near the
      neighborhood under consideration, and any other pertinent matters
      affecting the qualifications of the applicant for the conduct of the type of
      business proposed . . . .
§ 12-47-312(2)(a), C.R.S. (2016) (emphasis added).



                                            15
permissive language such as the phrase “including but not limited to” does not render

the legislative definition of a term impermissibly ambiguous or vague. Regency Servs.

Corp. v. Bd. of Cty. Comm’rs of Adams Cty., 819 P.2d 1049, 1055 (Colo. 1991). Here, the

use of permissive rather than mandatory language in the medical marijuana licensing

framework does not render section 18-14-7(h) unconstitutionally vague. In the criminal

context, the doctrine of vagueness protects against the exercise of unfettered discretion

by a decision maker but does not foreclose the exercise of discretion altogether. See

People v. Rosburg, 805 P.2d 432, 439–40 (Colo. 1991) (neither the licensing board nor the

prosecutors were “left with the unfettered discretion that the doctrine of vagueness

seeks to avoid”); see also People v. Beruman, 638 P.2d 789, 793 (Colo. 1982) (an

impermissibly vague statute was “totally without parameters for the determination of

guilt or innocence, thus allowing the exercise of unbridled discretion by the police,

judge, and jury”). Here, section 18-14-7(h) contains objective standards that reasonably

constrain the exercise of the City Council’s discretion.

¶25    Third, the district court’s reliance on Squire Restaurant is misplaced. Squire

Restaurant concerned a due process analysis, not an impermissible vagueness analysis.

In that case, the only standard guiding the city’s decision to renew the applicant’s liquor

license was “good cause,” a term the city had not further defined. 890 P.2d at 166. The

court of appeals concluded that “[s]uch a standard, without more, provides no way for

a licensee to know in advance what evidence might be considered relevant to a request

for renewal.” Id. at 167. Here, by contrast, the standards outlined in Northglenn Code

section 18-14-7(h) provide specific guidance to an applicant regarding what evidence


                                            16
the City will consider—namely, the “number, type, and availability” of other medical

marijuana facilities located near the premises under consideration.

¶26   Finally, to the extent the district court may have believed that the City Council’s

decision to deny Rocky Mountain’s application was arbitrary and, therefore, necessarily

the consequence of a vague ordinance, such a conclusion is incorrect.             Rocky

Mountain’s complaint seeking judicial review argued principally that the City’s

decision was arbitrary and capricious—not that the phrase “number, type, and

availability” of existing marijuana facilities is so indeterminate that persons “of

common intelligence must necessarily guess at its meaning.” See Broadrick v.

Oklahoma, 413 U.S. 601, 607 (1973). The district court’s order appears to conflate the

danger of arbitrary or discriminatory enforcement created by impermissibly vague

laws, see Graves, ¶ 17, 368 P.3d at 324, with the allegedly arbitrary application of an

otherwise clear law. Although vague laws violate due process because they pose the

danger of arbitrary enforcement, the arbitrary application of a given law does not

necessarily mean that the law itself is unconstitutionally vague.

¶27   In sum, we conclude that Northglenn Code section 18-14-7(h) is not

unconstitutionally vague. Moreover, as we explain below, the City’s interpretation of

the ordinance was reasonable, its decision was supported by substantial evidence, and

its denial of Rocky Mountain’s license application was not arbitrary and capricious.

                          IV. The City Council’s Decision

¶28   The district court concluded that the City Council’s decision to deny Rocky

Mountain’s license application was arbitrary and capricious because it was based on a


                                            17
provision it deemed unconstitutionally vague.       As discussed above, we hold that

Northglenn Code section 18-14-7(h) is not unconstitutionally vague. To the extent

Rocky Mountain argued to the district court that the City’s decision to deny the license

application was arbitrary and capricious because (1) the City improperly considered the

“need” for another facility in Northglenn, and (2) the City’s decision was unsupported

by substantial evidence in the record, we disagree. We hold that the City properly

considered the need for another facility, and that its decision was supported by

substantial evidence and therefore was not arbitrary or capricious.

¶29    As noted above, decisions by a local licensing authority regarding the issuance of

medical marijuana licenses are subject to judicial review under the state APA.

§ 12-43.3-801. Judicial review under the state APA is limited to a consideration of

whether the administrative action is

       arbitrary or capricious, a denial of statutory right, contrary to
       constitutional right, power, privilege, or immunity, in excess of statutory
       jurisdiction, authority, purposes, or limitations, not in accord with the
       procedures or procedural limitations of this article or as otherwise
       required by law, an abuse or clearly unwarranted exercise of discretion,
       based upon findings of fact that are clearly erroneous on the whole record,
       unsupported by substantial evidence when the record is considered as a
       whole, or otherwise contrary to law.

§ 24-4-106(7). Under this standard of review, the appropriate consideration for an

appellate court is whether there is sufficient evidentiary support in the record for the

decision of the administrative tribunal. Ross v. Fire & Police Pension Ass’n, 713 P.2d

1304, 1309 (Colo. 1986).




                                           18
                                             A.

¶30     Rocky Mountain argued below that “[t]he City erroneously used ‘needs’ rather

than the more specific standards in its ordinance of number, type, and availability of

existing facilities.” It further contended that the City incorrectly read the “number,

type, and availability” requirement in the Northglenn Code as equivalent to a “need”

for the facility, akin to the finding required for liquor license applications. It maintained

that because the Northglenn Code does not require a “needs of the neighborhood”

showing, the City’s use of that standard was error because Rocky Mountain was not on

notice that the issue of “need” would be addressed at the hearing.

¶31     Although the City Council used the term “need” in its discussions and written

findings, the evidence it considered at the hearings and discussed in its written findings

reflects that its decision was grounded in the factors expressly outlined in the code:

“number, type, and availability” of existing facilities in Northglenn.           Regarding

“number,” the preliminary findings issued by the City found that four medical

marijuana business licensees existed in the City, with three in operation, and the City

Council referred to the existing facilities during the first hearing. Regarding “type,” the

City Council received evidence from Rocky Mountain about the type of products it

proposed to sell and the type of products offered by other facilities.           Regarding

“availability,” the City Council considered evidence regarding wait times at existing

facilities.

¶32     Further, the City Council’s consideration of “need” is a reasonable interpretation

of its authority to consider the “number, type, and availability” of existing facilities


                                             19
under Northglenn Code section 18-14-7(h). If other medical marijuana facilities of a

similar type are located near the premises under consideration, and are available to

consumers, then no need exists for the proposed facility.             In other words, a

consideration of “need” is simply a different way of expressing, “number, type, and

availability” of existing facilities near the proposed new location. In any event, the City

Council questioned Rocky Mountain regarding the need for its facility in Northglenn

during the first hearing, and allowed Rocky Mountain to present additional evidence of

need at the rehearing. Thus, Rocky Mountain was given notice and an opportunity to

offer testimony on this point.

¶33     To the extent Rocky Mountain contends that the City Council incorrectly applied

the “needs of the neighborhood” standard from the liquor licensing framework, that

contention is misplaced. The “needs of the neighborhood” requirement in the liquor

licensing context is a legal inquiry specific to that type of license, based on the language

of the relevant statutes. See Canjar v. Huerta, 566 P.2d 1071, 1072–73 (Colo. 1977);

§ 12-47-312(2)(a) (“[T]he local [liquor] licensing authority shall consider . . . the

reasonable requirements of the neighborhood for the type of license for which

application has been made, the desires of the adult inhabitants, the number, type, and

availability of alcohol beverage outlets located in or near the neighborhood under

consideration . . . .” (emphases added.)). Here, the City Council properly considered the

need for another facility in Northglenn based on the factors listed in the Northglenn

Code.




                                            20
¶34    Finally, we note that Northglenn Code section 18-14-7(h) broadly permits the

local licensing authority to consider “any other facts pertinent to the type of license for

which application has been made.”        Although we conclude that “need” is simply

another way to express “number, type, and availability” of other facilities in the area,

the “need” for a new facility also qualifies as “any other [pertinent] fact[]” that may be

considered under section 18-14-7(h).

¶35    For these reasons, we conclude that the City Council correctly interpreted the

language in Northglenn Code section 18-14-7(h).           The City Council heard and

considered evidence regarding the “number, type, and availability” of medical

marijuana facilities in Northglenn, and the City Council’s consideration of need was

tethered to the factors expressly stated in the Northglenn Code.

                                            B.

¶36    We conclude that the City’s decision to deny Rocky Mountain’s license was

supported by substantial evidence when the record is considered as a whole.            See

§ 24-4-106(7). The City held two public hearings on Rocky Mountain’s license. The

length of and number of witnesses at the second hearing show that the City received

and considered a great deal of evidence before making its final decision to deny Rocky

Mountain’s license. Cf. Lawley v. Dep’t of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001)

(an administrative board acts in an arbitrary and capricious manner “[b]y neglecting or

refusing to use reasonable diligence and care to procure . . . evidence” (quoting Van

DeVegt v. Bd. of Cty. Comm’rs of Larimer Cty., 55 P.2d 703, 705 (Colo. 1936))). As

discussed above, the evidence considered by the City Council correlated with the


                                            21
factors in section 18-14-7(h), namely, the “number, type, and availability” of existing

facilities near the proposed facility.

¶37    The City explained its decision in its written findings, specifying why it found

certain testimony helpful and reliable, or not helpful.      For example, it found the

testimony of a representative from one existing facility particularly credible because she

was neither in favor of, nor opposed to, Rocky Mountain’s license request. It found the

testimony of representatives from another facility to be unhelpful in its determination

because the testimony was motivated by an apparent desire to prevent Rocky Mountain

from obtaining a license. And it concluded that the testimony of Rocky Mountain’s

investigator “indicated an apparent bias which affected his credibility.”             An

administrative agency, not the reviewing court, has the task of weighing conflicting

evidence and determining the credibility of the witnesses.         McClellan v. Meyer,

900 P.2d 24, 34 (Colo. 1995).     Similarly, the City Council had the task of weighing

conflicting evidence and determining the credibility of witnesses in this license

application proceeding.

¶38    Specific evidence in the record supported the City Council’s conclusion that the

availability of existing medical marijuana stores in Northglenn was sufficient. The City

Council considered that three other medical marijuana facilities operated in

Northglenn; two witnesses testified that wait times at the existing facilities were

approximately five to ten minutes. The City Council found the testimony of Rocky

Mountain’s investigator concerning longer wait times was not credible because of his

apparent bias. The City Council also rejected Rocky Mountain’s argument that its


                                            22
proposed products were sufficiently unique to create a need for its new facility in

Northglenn. This court will not substitute its judgment for the City Council’s where the

City Council received substantial evidence and adequately explained its consideration

of that evidence in written findings. When the record is considered as a whole, we

conclude that the City Council’s decision to deny Rocky Mountain’s license application

was supported by substantial evidence.

                                   V. Conclusion

¶39    We hold that the district court erred in concluding that Northglenn Code section

18-14-7(h) is unconstitutionally vague. We further hold that the City Council’s decision

to deny Rocky Mountain’s license application was supported by substantial evidence,

and therefore was not arbitrary or capricious. We therefore reverse the judgment of the

district court.




                                          23
