Aspen liquor store, Clark’s Market at standoff in beer battle | AspenTimes.com

Aspen liquor store, Clark’s Market at standoff in beer battle

Aspen Wine & Spirits filed a complaint after business hours Tuesday asking a Pitkin County District Court judge to vacate the Aspen Local Licensing Authority’s decision allowing Clark’s Market to sell lower strength beer with 3.2 percent alcohol content.
Anna Stonehouse/The Aspen Times

With opening briefs now filed in the beer battle between an Aspen grocery store and liquor store, a sticking point has emerged over a lease agreement from January 2000.

That’s when Clark’s Market, a defendant in the lawsuit along with the city of Aspen, reached a lease agreement giving Aspen Wine & Spirits exclusive rights to sell full-strength beer from the shopping complex at North Mill and Puppy Smith streets.

Plaintiff Aspen Wine & Spirits, which sued the city and Clark’s in September, is seeking permission from 9th Judicial District Judge Jonathan Pototsky to add that claim to its lawsuit.

In its current form, the suit seeks a ruling from Pototsky to determine whether the Local Licensing Authority, a city board of volunteers who review applications to sell liquor and marijuana, properly approved an application from Clark’s to sell lower-strength beer with 3.2 percent alcohol content.

That approval, made in August, paved the way for Clark’s to sell full-strength brews Jan. 1, which marked the debut of a Colorado law allowing existing grocers and convenience stores to sell the same-strength beer offered by liquor stores.

Both parties have provided written arguments, as opposed to making them in open court, to Pototsky, who is weighing whether Aspen Wine & Spirits can amend its complaint with the breach-of-contract claim against Clark’s.

The plaintiff, in a Jan. 30 pleading asking Potosky to allow the new claim, said Clark’s is “selling full-strength beer … in the Puppy Smith Building in direct competition with and to the financial detriment of (Aspen Wine & Spirits).”

Attorneys for Clark’s countered in a Feb. 20 ruling that adding the claim “would unnecessarily complicate this case.”

And in a Feb. 15 brief, Clark’s said the state’s definition of “fermented malt beverages” is no longer limited to 3.2 beer because of the new law, which gives the supermarket the legal right to sell beer no matter what its strength. That’s in contrast to Aspen Wine & Spirits’ position that the liquor license belonging to Clark’s should restrict it to selling the weaker suds. Clark’s has countered that local licensing authorities don’t have the power to restrict liquor licenses “in a matter that conflicts” with state law.

Another issue is the availability of 3.2 beer in Colorado.

Since the law took hold, roughly 5 percent of wholesale beer throughout the state is 3.2 strength, according to Steve Findley, president of the Colorado Beer Distributors Association. Findley also said that Clark’s “technically” is selling beer under Colorado’s new definition of fermented malt beverages. In fact, brew with more than 0.5 percent alcohol is now considered beer by the state.

“You can still get those lower-strength beers,” he said, “but they won’t be marketed as 3.2 beers.”

Glenwood Springs-based Neiley Law Firm LLC is representing Aspen Wine & Spirits.

Grand Junction firm Hoskin Farina & Kamp is handling the defense for Clark’s Market, while Boulder-based Berg Hill Greenleaf Ruscitti LLP is arguing on the city’s behalf.

rcarroll@aspentimes.com


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