Aspen boutiques claim city’s solicitation laws are unconstitutional
October 18, 2016
Two Aspen retailers have filed a federal complaint that accuses the city government of quelling their rights to free speech by forbidding them to distribute product samples or talk to potential customers outside of their doors.
Kristals Cosmetics Aspen and NGH Cosmetics, both under the same ownership, filed the lawsuit against the city of Aspen on Thursday in the U.S. District Court of Denver. Additionally, the boutiques filed a separate complaint for a permanent injunction to abolish two solicitation ordinances they claim are arbitrarily enforced by the city. The two codes (15.04.350 and 15.04.360) in part prohibit people from soliciting customers or promoting their business on public streets.
The litigation comes after the city received resident complaints about the business practices of Kristals and NGH, which also goes by the name of Adore. Kristals and Adore have sold beauty products from stores located at 525 E. Cooper Ave. and 430 E. Hyman Ave., respectively.
Two of the complaints, which The Aspen Times obtained Monday through an open-records request with the city, said employees of the two retailers tried to solicit customers outside of their stores. A complaint dated July 28 by the Hyman Avenue retailer Intermix accused Adore of "soliciting people on the mall and luring them into their store. Many of our clients are complaining and it is deterring business as clients say they are avoiding our side of the mall and that it is tacky and offensive."
The complaints prompted Jim Pomeroy, the city's zoning enforcement officer, to issue a written warning to Adore and Kristals on Aug. 8.
"In layman's terms, neither you nor your employees are to conduct any sales or sampling activities beyond the doors of your businesses," Pomeroy's letter stated. "There are to be no samples given away or sales conversations with prospective customers on any city of Aspen right-of-way, including the mall or the sidewalk in front of your stores."
Each retailer also faced fines of as much as $2,650 and one night in jail, the letter said. Each day the infractions occurred constituted a single violation, the letter said.
Both businesses tried to obtain an agreement with the city that would allow them to continue courting potential patrons outside of their doors, but the city told them only restaurants were entitled to such agreements, the suit said.
The warning ultimately led employees of both stores to quit because they did "not wish to risk incarceration for carrying out the ordinary speech tasks which are a necessary part of their jobs," the suit said. The stores also closed in mid-September "because of the fear that they would be cited immediately, … and are afraid of reopening their stores because of the threatened enforcement of the subject Ordinances," the suit alleged.
Both boutiques were closed Monday with no signs saying when or if they would reopen. A phone message left with The Contiguglia Law Firm PC in Denver, which along with two Florida attorneys filed the suit, was not immediately returned. Commercial property broker Karen Setterfield said Adore and Kristals have long-term leases. Kristals opened in December and Adore in June.
The lawsuit goes into lengthy details about why the city's codes are unconstitutional and why they should be abolished. It also claims that employees who handed out free samples to passersby were not soliciting business but were doing so "for the benefit of the public or to educate the public that products exist which would improve their lives, without specifically advertising for plaintiffs' stores."
Employees also did not "physically impede pedestrians as they pass by. Neither do plaintiffs berate or intimidate passersby or follow or chase after them," the suit said.
The two ordinances the plaintiffs want injunctive relief from demonstrate an arbitrary practice of solicitation enforcement by the city government, the suit suggested.
"The city objects to the content of plaintiffs' speech," the suit said. "The city has utilized its ordinances to stifle the plaintiffs' ability to advertise their products. The city has also utilized its ordinances to censor the non-commercial messages plaintiffs seek to convey regarding personal grooming, beauty tips and skin care."
However, the city allows non-commercial messages from politicians, religious groups, charities and panhandlers to conduct "face-to-face solicitations, distribution of leaflets and gratuitous samples (such as free Bibles or religious icons)" on Aspen's streets, the suit said.
"Plaintiffs' speech rights have been chilled now, and in the future, as they risk fines, incarceration and the loss of their business if they ever engage in the kind of speech to which the city objects; to-wit: personal, face-to-face solicitation and communications with pedestrians."
City Attorney Jim True said he had seen the suit but had not given it a thorough examination. Even so, he said, "Their factual allegations in the complaint we strongly disagree with."