City, Aspen boutiques hatch settlement over solicitation |

City, Aspen boutiques hatch settlement over solicitation

An employee at Kristals Cosmetics on Cooper Avenue offers free product samples to potential customers in 2017.
Anna Stonehouse/The Aspen Times

Two boutiques have found a way to get their feet in the door of Aspen’s retail arena, and a federal court agreement will require them to keep it that way.

California-based Aspen Retail Management and the Aspen government have reached a court settlement that awaits the City Council’s blessing Monday.

The deal comes after Aspen Retail, which operates the Kristals Cosmetics and Adore downtown beauty boutiques, sued the city because it forbade their employees from handing out free product samples to passersby from public sidewalks on the Hyman Avenue pedestrian mall and East Cooper Avenue.

Responding to citizen complaints, the city issued written warnings in August to both stores, which faced fines as high as $2,650 if the practice continued. Employees also faced potential jail time.

The suit claimed the city’s practice was unconstitutional because it infringed on the store workers’ free speech rights.

The city prohibits retailers from pitching products or having sales conversation in its right of ways, including those on the downtown sidewalks and malls. Restaurants are exempt from the law as they have an agreement with the city.

And now, “as long as we don’t step out the doorway,” an employee at Adore on 430 E. Hyman Ave. told The Aspen Times, the products can be handed out. For at least the past two months, workers at both stores, usually in black attire, have been seen asking pedestrians to try their samples and visit the boutiques, but they haven’t been on the sidewalks or mall way when soliciting business.

Workers at both stores would comment no further, referring questions to Aspen Retail’s corporate office, which didn’t respond to an interview request Thursday.

“Essentially, they are allowed to stand within their private property within the door threshold,” city Assistant Attorney Andrea Bryan said. “They can make solicitations as long as they’re not aggressive.”

Aspen Retail also filed a separate complaint for a permanent injunction to abolish two solicitation ordinances it claimed the city arbitrarily enforced.

The lawsuit alleged that employees who handed out samples to passersby on city-owned sidewalks 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.”

The settlement agreement states, “Solicitation may consist of oral and written communications as well as the distribution of product samples, leaflets, cards and brochures. While engaged in such solicitations, plaintiffs, and their employees, contractors and agents, shall remain at the front doorway to their business and shall not go beyond the threshold of that doorway.”

The agreement goes into further detail about how the employees position themselves while trying to drum up business, noting that they “may extend their arms and torsos past the threshold of the doorway to give such items to passersby, but the heels of both of their feet shall remain within the threshold at all times when soliciting.”

Their methods of communication with potential customers also is addressed in the settlement, which states they cannot “intimidate another person” or “touch a pedestrian without their consent except for incidental contact associated with the handing out of product samples, leaflets, cards and brochures.”

In a memo to City Council in advance of its Monday meeting, when it is scheduled to review the settlement, City Attorney Jim True said the agreement “is a fair and appropriate resolution and addresses all of the city’s concerns regarding the conduct of retailers.” True’s memo also suggests that further litigation might not be favorable to the city because “we believe that this (settlement) allows for greater enforcement of conduct than would be allowed under a court order if the case were to move forward.”

The lawsuit was filed in October in the U.S. District Court of Denver.


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