Judge to rule Thursday whether beer and Clark’s Market legally mix
A Pitkin County judge said he will rule Thursday over whether Clark’s Market can rightfully sell full-strength beer at its Aspen location.
Attorneys and witnesses poured over contracts, ledgers and lease agreements in a one-day trial Wednesday where the sale of beer at Clark’s Market is being challenged by its neighboring liquor store.
Aspen Wine & Spirits and the supermarket both rested their cases in a virtual bench trial presided over by Pitkin County District Judge Chris Seldin. The trial was scheduled to go through Friday, but each side was able to make its case and present its witnesses Wednesday over the course of roughly seven hours.
“We had this scheduled for three days of trial,” Seldin said after the final witness testified. “Congratulations.”
Aspen Wine & Spirits’ chief argument was the lease agreement Clark’s Market has with Puppy Smith LLC, which owns the building, prohibits it from selling full-strength beer so long as the weaker brew, which used to be known as 3.2 before state law changed, was available.
Prior to Jan. 1, 2019, grocery and convenience stores in Colorado could sell only beer with no more than 3.2% alcohol. State lawmakers, however, in June 2016 passed legislation allowing supermarkets and convenience stores to sell full-strength beer, making the weaker version less marketable. Liquor stores in Colorado, however, still have exclusivity when it comes to packaged liquor and wine.
Both Clark’s Market’s former president and CEO, Tom Clark, and the Aspen store manger, David Clark, said they understood the language of their lease to mean the Aspen grocer can sell full-strength beer because the 3.2 market has gone virtually dry ever since grocery stores could sell the stronger stuff.
The national brewers no longer make 3.2 beer, which these days is geared toward a niche audience not of great interest to Clark’s Market. The everyday beers, like Coors, are what grocery shoppers are seeking, the two Clarks said.
“Coors Light used to make a specific 3.2 beer that was made in Colorado,“ testified David Clark. ”That is no longer available, so I carry the equivalent, which is Coors Light.“
Tom Clark said it was only a matter of time before Colorado would fall in line with the rest of the country with supermarkets stocking their shelves with full-strength beer.
“It was always anticipated that we would be able to sell full-strength beer,” Clark said of the slow-to-change Colorado laws.
In advance of Jan. 1, 2019 — when grocers could full-strength beer — Clark’s Market obtained a license to sell 3.2 beer in August 2018 so it could make the seamless transition to selling the stronger suds.
“When the law changed and our competitors were allowed to sell full-strength beer, it was critical to us that we also are able to sell full-strength in order to be competitive,” said Tom Clark.
The store sold full-strength beer for all of 2019 and through 2020 until Seldin, in a July ruling that year, remanded Clark’s application to sell full-strength beer to the Local Licensing Authority, which in July 2018 originally voted 4-1 in the application’s favor. Again, the LLA approved the application in November. Clark’s received its reinstated liquor license in April and returned to selling full-strength beer, hard ciders and seltzers May 1.
The liquor store is seeking of $33,872 for the full-strength beer the grocer sold in 2019 and disgorgement of $38,813.38 in net profits Clark’s made through the sale of full-strength Clark’s fermented malt beverage products for a portion of 2020.
Aspen Wine & Spirits also lost business because of the beer sales at Clark’s, its general manager testified.
“Aspen Wine & Spirits has been damaged by the conduct of Clark’s Market, and they need to be compensated for it,” said attorney Rick Neiley in closing arguments.
Neiley, who represents the liquor store, said the lease agreement was clear through its different amended versions that Clark’s could not sell beer higher than 3.2 grade. The leases did not mention potential changes to beer laws and the people at Clark’s were clear on the lease’s language, he said.
“Clark’s Market breached the restriction in the lease,” Neiley argued. “Aspen Wine & Spirits is the clear third-party beneficiary of the limitation in the lease. It was even attached to their own lease.”
Aspen Wine & Spirits originally filed suit in September 2018 against Clark’s Market and the Aspen government, which is no longer a party to the case.
Finding a restaurant operator to go into the former Taster’s Pizza space across from Rio Grande Park wasn’t a priority for Aspen’s elected officials earlier this year but now it is.
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