dissenting:
Respectfully, I dissent. The majority admits that the testimony before the Council was insufficient but refuses to take the next step — which would seem to follow — and hold that the Council abused its discretion in denying the license. Specifically, my colleagues acknowledge that the “Council acted without the benefit of a reasonably developed evidentiary or factual presentation.” Their opinion then concludes that the Council’s decision calls for a new public hearing “in order for the Council to fully consider factual information pertaining to the impact or effect” of Von Goerken’s application for a liquor license.
I submit the foregoing rationale is a somewhat euphemistic way of reluctantly recognizing that the action of the Council was, in fact, wrong because it was arbitrary and capricious. If they *445recognize that the decision was not supported by substantial evidence, it must inexorably follow then that there was an abuse of discretion.
This court has clearly said that there must be substantial evidence in the record for us to uphold the decision of a licensing body. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 439, 683 P.2d 960, 962 (1984); Henderson v. Henderson Auto, 77 Nev. 118, 123, 359 P.2d 743, 745 (1961). Here, the only evidence before the Council was Councilman Higginson’s opinion that he would never support a bar in this commercially-zoned location because it was in the heart of a residential area.
A board member’s opinion may be considered as one factor in the licensing body’s determination. McKenzie v. Shelly, 77 Nev. 237, 240-41, 362 P.2d 268, 269-70 (1961). However, statements by interested parties or their counsel and opinions of council members alone do not justify the denial of a special use permit. Travelers Hotel, 100 Nev. at 439, 683 P.2d at 961.
Clearly, in this case, there was not substantial evidence upon which to base the denial of a license to Von Goerken. I respectfully submit that the City Council should not be given another bite at the apple. There is no precedent for such preferential treatment and we should not create one in this case.
If substantial evidence does not exist to support the determination, we have repeatedly upheld the issuance of a writ of mandamus compelling the licensing body to issue the license. Id. at 436, 683 P.2d at 960; County of Clark v. Atlantic Seafoods, 96 Nev. 608, 615 P.2d 233 (1980); State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973); Henderson, 77 Nev. at 118, 359 P.2d at 743 (1961). In Atlantic Seafoods, we stated: “Mandamus is an appropriate remedy when discretion is exercised arbitrarily or capriciously.” Atlantic Seafoods, 96 Nev. at 611, 615 P.2d at 235 (citations omitted). In Gragson, we ordered the district court to issue a writ of mandamus to the Las Vegas Zoning Board of Adjustment compelling it to reinstate a home occupation permit. Gragson, 89 Nev. 483, 515 P.2d at 68.
It has been well said, “Of all the words of tongue or pen, the saddest are, it might have been.” Opponents of issuing a license to Von Goerken might have offered more evidence to support denial — but they did not. Sending the case back for more testimony would probably, in baseball parlance, be a soft pitch — with a very predictable result.
I cannot agree with my colleagues that it is appropriate to afford the City Council in this case a second opportunity to justify its action. When we reverse a criminal conviction for insufficient evidence, we do not send the case back so the State can regroup and charge again. In a workmen’s compensation case, we do not *446send an arbitrary denial of benefits back so that SIIS may have a still further opportunity to buttress its denial.
In the case before us, the Council’s action was arbitrary and capricious because, admittedly, it was not based on substantial evidence. Our proper course is not to send it back but to uphold the district court’s writ of mandamus, which compels the Council to issue the license.
Justice Cardozo stated, “One of the most fundamental social interests is that the law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent.” The Nature of the Judicial Process 112 (1922).
I respectfully submit that by sending the case back for additional testimony, we depart from sound precedent and create bad precedent. Therefore, I cannot join my colleagues in holding that: (1) the district court erred; and (2) the Council should have another chance to undergird the denial.