Another lawsuit in foamy feud between Aspen liquor store, grocer


Clark’s supermarket anchors the shopping complex at North Mill and Puppy Smith streets; Aspen Wine & Spirits is located across the hallway from Clark's.
Aspen Times file photo

One thing the pandemic hasn’t ended is the neighborhood beer battle between Clark’s Market and Aspen Wine & Spirits, which spilled into court in September 2018.

Last week, the liquor store again took the supermarket, the city of Aspen and the Local Licensing Authorities to court, as well as the Colorado Department of Revenue and its liquor enforcement division. The complaint challenges the legitimacy of the grocer’s license to sell beer.

Aspen Wine & Spirits’ suit seeks a judicial review of the Local Licensing Authority’s Nov. 18 approval of an off-premise beer license for Clark’s Market. The complaint aims to have a judge vacate that approval and pending approval by the Liquor Enforcement Division, which is part of the Colorado Department of Revenue.

For Aspen Wine & Spirits, the Dec. 16 filing in Pitkin County District Court again alleges the city’s Liquor Licensing Authority — the volunteer board empowered to reject and approve retail applications to sell marijuana and alcohol — OK’d the license under questionable circumstances.

Represented by attorney Richard Neiley Jr., the store prevailed in its initial lawsuit, also submitted in the local district court, on its claim the LLA didn’t fully review the application by Clark’s when it approved it in July 2018. Two years after that approval, Pitkin County District Judge Chris Seldin, in a July 14-dated written order, determined comments made by two LLA members during the hearing revealed a board policy to automatically OK applications without weighing “the needs of the neighborhood.”

The most damning comment at the hearing came from board chair Bill Murphy, who said: “We’ve never in the past denied somebody a license because it’s been perceived that the desires of the neighborhood haven’t been met, because we don’t know that.”

The vote wound up 4-1 in favor of the application. One of those yes votes came from Phil Golden, who agreed with Murphy’s sentiment, which was enough for Seldin to find the vote was tainted because at least two members cast theirs partly on the basis of an illegal policy.

“The vote here was 4 to 1,” Seldin’s ruling said. “Thus, if the illegal policy tainted two votes, it affected the outcome. The record demonstrates two votes were, in fact, so tainted. The City itself does not dispute that the illegal policy tainted Chairman Murphy’s vote. The Court finds the record also supports, beyond a reasonable doubt, that member Golden’s vote was also tainted.”

With the application back in the city’s purview, the LLA reviewed and approved it 3-1 at the last month’s hearing. The newest lawsuit from Aspen Wine & Spirits argues the license should be nullified because the same evidence used in the July 2018 hearing was used in the November hearing, and state liquor laws from 2018 — which have changed since then to allow supermarkets to sell full-strength beer — also were used instead of current ones. As well, the city would not allow the LLA to consider 270 petition signatures collected by Aspen Wine & Spirits opposing the sale of beer at Clark’s.

The suit argues the “City and the Local Licensing Authority misapplied the law, considered the application under statutory provisions no longer in effect, failed to apply the current statutory provisions related to the issuance of fermented malt liquor licenses, and such approval must be vacated and nullified.”

City Attorney Jim True said it is his position the court remanded the case back to the LLA retroactive to 2018 — meaning new evidence could not be admitted in the hearing and 2018 law was applicable to the LLA’s decision.

Clark’s Market has not sold beer since Seldin’s July order. The supermarket anchors the shopping complex at North Mill and Puppy Smith streets; Aspen Wine & Spirits is located across the hallway from Clark’s.