Judge gives mixed ruling over Aspen Skiing Co.’s ban of Lee Mulcahy
A judge ruled Thursday that Aspen Skiing Co. can no longer ban Lee Mulcahy from public lands where it runs its recreational operations, though the mayoral candidate is still prohibited from setting foot on its commercial properties.
Both sides met Pitkin County District Judge Chris Seldin’s mixed ruling with suggestions of victory on Friday.
“We are pleased with the court’s ruling and to reach resolution,” Skico said in a statement. “We are happy to move forward knowing that Mr. Mulcahy does not have access to ASC’s private property including ski lifts, and that any action he takes on the public lands under our special-use permits are very limited. No harassment of our guests or employees or interference with our business operations will be permitted.”
Mulcahy said, “I am humbled and honored by the court’s injunction against Aspen Skico’s ban on free speech and a whistle blower from public lands. Most importantly, I am most grateful to God, my late dad, family and friends for their prayers for the last nearly seven years.”
Seldin’s ruling was the latest development in the Mulcahy-Skico feud dating back to at least 2010.
That summer, Mulcahy, who was a 15-year employee of Skico and one of the top-ranked instructors at Snowmass Ski Area, went public with his criticism of Skico with a letter to local newspapers.
Tensions mounted, and Skico fired Mulcahy in January 2011 over what the company said was over his performance and violation of company policies. Mulcahy, now 53, said it was because he talked to other ski instructors about starting a union.
Skico also banned Mulcahy from entering its property and the federal land it leases for its ski areas when he distributed flyers advertising a meeting over Skico’s treatment of rookie ski instructors.
The ban prompted Mulcahy to sue Skico contending that it stymied his First Amendment rights.
In an email to The Aspen Times, Mulcahy wrote that his “living wage flyer” was protected free speech. “Retaliation by companies against protected free speech is illegal,” Mulcahy said. “But as we all know, banks and giant corporations in America operate above the law.”
Skico’s ban has prohibited Mulcahy from setting foot on the public land it manages and its private property, such as The Little Nell Hotel, Limelight Hotel and Gondola Plaza.
Seldin’s order says it does not “entitle Mulcahy to purchase lift tickets or use other Ski Company amenities,” and adds that the ruling “does not mean Mulcahy is now free to wreak havoc on the Ski Company’s business operations.”
Seldin’s reasoning behind lifting a portion of the ban was that it compromised Mulcahy’s rights to exercise free speech on the U.S. Forest Service lands that the Skico operates. The Forest Service did not involve itself in Skico’s decision.
“There is no indication that the government encouraged, or assisted in enforcing, the ban here,” the order says.
Mulcahy also argued that Skico’s commercial properties could be constituted as public venues as well because they frequently play host to such public events as political debates, discussions and demonstrations.
Seldin disagreed, noting that “a governmental entity books a conference room at a hotel does not, in the Court’s view, rise to the level required to transform the hotel operator into a public entity for purposes of constitutional regulation.”
The dispute is not entirely settled, however.
Seldin set May 5 — three days after the mayoral and City Council elections — as the trial date concerning Mulcahy’s status with Skico’s Four Mountain Sports retail stores.
One of those stores, located at Aspen Highlands, sells tickets to ride Roaring Fork Transportation Authority public buses to the Maroon Bells, which the Forest Service manages.
Because two governmental entities — RFTA and the Forest Service — have ties to the Four Mountain Sports at Highlands, Seldin noted that Mulcahy’s ban from the store must be settled in court.
“Nowhere in the record does the Ski Company indicate where else Maroon Bells Bus tickets may be purchased, and the RFTA website indicates they are available only at Four Mountain Sports,” the ruling says. “In this sense, it would appear that the Four Mountain Sports stores are in fact performing a virtual public function on behalf of both RFTA and the Forest Service: they are, apparently, the only place someone can purchase a ticket to ride the public bus to the Maroon Bells.”
Due to his past behavior, Mulcahy remains banned from the Aspen Art Museum and the offices of the Aspen-Pitkin County Housing Authority. However, the Colorado Supreme Court ruled in his favor when it lifted his ban from the campuses of the Aspen Music Festival and School and the Aspen Institute, where he attended the Aspen Chamber Resort Association’s Community Breakfast on Thursday.
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