| AspenTimes.com

Business Monday: ADN, ex-employee settle work dispute lawsuit

An Aspen newspaper and a former staff photographer have settled a lawsuit for undisclosed terms, according to court papers.

Filings made last week in the U.S. District Court of Denver showed a confidential agreement had been reached between the Aspen Daily News and ex-staffer Craig Turpin, most recently the publication’s chief photographer until he quit in May.

In a joint stipulation pleading filed Jan. 21, parties on both sides said they “have resolved this action, and agree to the dismissal of this action, and all claims alleged by any party in this action, with prejudice.”

That means claims from Turpin and the Daily News’ counterclaims are no longer in play and both sides have gone their separate ways in the dispute.

Local disputes and disagreements brought on by coronavirus pandemic have sparked a number of court actions, including the Pitkin County Restaurant Alliance’s attempt to undo the board of health’s Red level health restrictions and an Aspen restaurant’s lawsuit against its insurance carrier over unpaid claims related to lost business from public orders, for instance.

In this case, it was Craig Turpin versus Silver City News and the media company’s respective managing director-publisher and executive producer-publisher, David Cook and Spencer McKnight.

Neither side returned messages Sunday seeking comment on the settlement.

Turpin was represented by the Denver-based Sawaya & Miller Law Firm, which took the defendants to federal court Oct. 12 amid allegations that management told newspaper staff March 26 to keep working as they collected benefits. Part of the plan also allegedly included the Daily News’ paying them 25% of what they collected in unemployment benefits, while employees reported that pay as contract labor, or 1099 income, to the labor department.

In a formal answer dated Dec. 29, Daily News attorney Jason C. Astle of the Denver firm Springer & Steinberg said Turpin’s suit misrepresented Cook’s presentation given to employees. Cook also did not believe the plan was illegal, yet Turpin’s attorney Adam Harrison previously argued the scheme violated the law.

The ADN’s answer also included civil-theft counterclaims against Turpin that he stole a company-owned hard drive containing photos worth $800.

“ADN states that Turpin has 
not returned a hard drive that is and contains ADN’s property, despite a demand for its return,” the counterclaim said.

The Daily News addressed the matter in an Oct. 15 editorial published the same day the litigation was reported in The Aspen Times. The Daily News editorial, entitled “A series of unfortunate events,” called Turpin’s allegations “wild” while standing by the newspaper’s “decisions made during an impossibly difficult time wrought by a pandemic.”

Turpin began work at the Daily News on March 1, 2017.

rcarroll@aspentimes.com

Aspen restaurant alliance turns up pressure on challenge to Red-level restrictions

Attorneys for a group of restaurants mounting a legal challenge to overturn Pitkin County’s new health order have introduced new arguments in an attempt to get the issue before a judge by the end of the week.

Written pleadings filed Monday in district court by the Pitkin County Restaurant Alliance seek a court decision requiring the defendants — the county, the board of health and interim public health director Jordan Sabella — to answer the group’s complaint by Thursday so the matter can advance to a judge as early as Friday.

Ninth Judicial District Judge Anne Norrdin signed an order Monday afternoon giving Pitkin County until noon Wednesday to contest the motion.

The push by the nonprofit alliance comes after Norrdin denied its motion for a temporary restraining order that would have stalled the 12:01 a.m. Sunday rollout of the Red phase, which prohibits restaurants from serving diners indoors.

Since then, restaurants also have been restricted to serving outdoor meals and providing takeout, with closing time at 10 p.m. Last call for alcohol is 8 p.m.

This week’s pleadings argue the Red order will negatively affect not only restaurants’ bottom lines, but it also will have wide-ranging consequences on laid-off employees creating social welfare issues ranging from inability to pay rent to increased anxiety and depression.

“Every day that passes is another day that Pitkin County restaurant workers are without work and that restaurants are unable to operate in an economically viable manner,” said a motion to expedite the case because of its urgency. “Most troublesome is the mass unemployment and the public health crisis that will result.”

Aspen attorneys Chris Bryan and Jason Buckley of Garfield & Hecht filed the pleadings. One seeks approval for an expedited hearing regarding its second motion for preliminary injunction to lift the Red order and put the county in the less restrictive Orange phase, which allows indoor dining at a 25% capacity with last call at 9:30 p.m.

“The Order is the product of Defendants’ desire to be seen as doing something — anything — to curb the two-week incidence rate in Pitkin County despite the mass- unemployment public health crisis that the Order will create and compound,” said the motion for preliminary injunction. “It is not the product of a complete investigation and incontrovertible data that proves a correlation — much less the scientifically required causation — between the incidence rate and indoor dining, the sale of alcohol for on-premises consumption between 8:00 p.m. and 9:30 p.m., or the sale of take-out items after 10:00 p.m.”

In an interview Tuesday, Bryan emphasized the need for what already was expressed in this week’s motions and last week’s lawsuit — the county’s production of clear proof the board of health’s decision was informed by scientific data. The county has not been able to satisfy Bryan’s request for the information, he said.

“We want them (the defendants) to show us what scientific evidence this was based on,” Bryan said.

The Red order is in place for an indefinite period of time, and was adopted by the county after the board of health voted for its approval Jan. 11.

“Delaying the Alliance’s day in court harms untold thousands of people with little (if any) benefit to the public interest; given the mass-unemployment public health crisis that the Order creates, the public interest will be hurt every day the Order is in effect,” said the motion to expedite.

County manager Jon Peacock said Tuesday the defense will be ready to make its case if Norrdin decides to hear it.

“Obviously, we disagree with them,“ Peacock said, ”but we’ll let the judge make that decision.“

For Pitkin County to ease restrictions, it must show a 14-day decline in its incidence rate — the state’s highest — before the county will go back to Orange-level restrictions.

The county also has been regularly cracking The New York Times list of American hot spots that’s updated daily.

On Tuesday morning, Pitkin County was considered the 20th hottest spot in the country due to its rate of 186 cases per 100,000 people, according to the Times’ data. Pitkin County was the sole Colorado county in the top 20 hot spots.

Peacock said he realizes the difficulty the Red phase places on the restaurant industry and its widespread effect on the community’s social welfare. Yet the community must persist, he said.

“I think what we can all do is double-down through this fatigue and slow the spread of the virus so our businesses can get back open, and I really encourage the community to support our local businesses and do what we can — get takeout, get delivery,” he said.

Multiple studies have shown that adults dining at restaurants face increased likelihood of catching the coronavirus. According to a case-control study issued in September by the Centers for Disease Control and Prevention, adults confirmed with COVID-19 were twice as likely than a person without the virus to have dined at a restaurant within 14 days of getting sick.

“In addition to dining at a restaurant, case-patients were more likely to report going to a bar/coffee shop, but only when the analysis was restricted to participants without close contact with persons with known COVID-19 before illness onset,“ the study says. ”Reports of exposures in restaurants have been linked to air circulation. Direction, ventilation, and intensity of airflow might affect virus transmission, even if social distancing measures and mask use are implemented according to current guidance. Masks cannot be effectively worn while eating and drinking, whereas shopping and numerous other indoor activities do not preclude mask use.”

Bryan, however, said the same public officials who have closed indoor dining are overlooking what is happening elsewhere in Pitkin County, where over-sized gatherings continue and health orders are routinely being disregarded by business sectors. At the same time, hotels can operate at guest-capacity levels, commercial airlines continue to fly, and the Aspen airport remains open. Add it up, Bryan said, and the board of health’s decision to close indoor dining didn’t square.

“Travel can increase your chance of spreading and getting COVID-19. Postponing travel and staying home is the best way to protect yourself and others from COVID-19,” according to the CDC.

rcarroll@aspentimes.com

Aspen restaurant takes on insurance carrier over business losses from pandemic

An Aspen restaurant is suing over financial losses it suffered due to business interruptions related to the coronavirus.

L’Hostaria is the first Aspen restaurant to seek a court’s declaratory judgment that its general-coverage insurance policy applies to its business-loss claims. Attorneys for the downtown Italian restaurant sued its carrier, Cincinnati Insurance Co., last week in Pitkin County District Court before the case transferred to federal court Wednesday.

“From our standpoint, people spend money on these premiums under the expectation that if they incurred business losses other than no fault of their own, then they had coverage,” said Denver attorney Bradley Levin, who with Susan S. Minamizono represent L’Hostaria in the lawsuit.

In March when dining establishments were being shut down because of public heath orders, restaurant owners lamented their insurance coverage excluded viruses as a payable claim.

As a result, disagreements over policy coverage and denied claims related to pandemic-fueled business disruptions and interruptions have spilled into American courthouses.

As of Dec. 7, businesses had filed 1,432 coronavirus-related lawsuits against insurance carriers in American courts, whether at state or federal levels, according to a litigation tracker managed by the Carey Law School at the University of Pennsylvania.

The food services and drinking places accounted for 541 of those complaints, the most of any industry.

Cincinnati Financial Corp., the parent of Cincinnati Insurance, which is the defendant in the L’Hostaria lawsuit, has been targeted in 146 of those business-loss cases, second to the 220 complaints against Hartford Financial Services Group. Inc., according to the law school’s most recent report.

Messages sent to the company’s attorneys defending the L’Hostaria lawsuit were forwarded to Cincinnati Insurance’s communications department.

“We respect the rights of all parties to have their issues heard and resolved in a court of law,” the company said in an email to The Aspen Times. “For that reason, we do not comment on pending litigation. Cincinnati Insurance remains committed to doing our part to support the families and businesses in our agents’ communities, helping them to proactively manage risks and promptly paying covered claims.”

Levin and Minamizono said they recognize the work cut out for them. Out of those 1,400-plus coronvairus-related cases, 105 have been decided, of which 83 were dismissed or thrown out on summary judgment, according to the litigation tracker.

Yet a ruling by a North Carolina court gave hope to the restaurant industry that litigation is not a lost cause. A judge in Durham, N.C., ruled Cincinnati Insurance was responsible for paying claims to 16 restaurants for business losses because their closure were forced by public health orders.

Insurance companies have argued physical damage to the restaurants — which can be inflicted by a tornado or fire, for example — did not occur and that’s why their claims were denied. The judge in Durham, however, disagreed by noting the companies endured a “direct physical loss.” Cincinnati Insurance has appealed the ruling.

“The prevailing view by courts around the country has been that economic loss alone doesn’t qualify as direct physical damage or loss to property, which is the trigger for business interruption coverage,” Cincinnati Financial CEO Steve Johnston reportedly said in an October conference call to investors.

The L’Hostaria suit is taking a similar legal tact as the one under appeal in North Carolina, arguing the public health orders triggered the restaurant’s civil authority coverage. The suit cites county and state heath orders limiting restaurant service, as well as the county’s affidavit program for overnight visitors.

The accumulation of all of those orders has financially damaged the restaurant, the suit said.

“L’Hostaria ceased its business operations on March 16, 2020, pursuant to the applicable Executive and Public Health Orders,” the suit said. “Although L’Hostaria reopened on April 27, 2020, it resumed with only limited curbside pickup and dining, in accordance with the applicable Executive and Public Health Orders. … L’Hostaria incurred, and continues to incur, business interruption losses of approximately $40,000 per month as a result of the suspension of its operations caused by direct loss to property at its premises due to the presence of COVID-19.”

Cincinatti Insurance denied claims from L’Hostaria in April and affirmed the denial in November, the suit said.

L’Hostaria’s suit makes claims for breach of contract and bad faith, and also seeks a declaratory judgment that the restaurant’s “losses incurred due to the COVID-19 pandemic and government-mandated closure of its property are insured losses under the Policy; and Cincinnati is obligated to pay L’Hostaria for the full amount of the losses it has incurred in connection with the COVID-19 pandemic and government-mandated closure of L’Hostaria’s property.”

L’Hostria’s owner declined comment when reached Friday.

rcarroll@aspentimes.com

Business Monday: Property sales a windfall for Aspen housing program, Wheeler

Free-market and commercial property sales totaling $1.8 billion within Aspen city limits last year resulted in $17.6 million in real estate sales tax collections for the city’s housing program and another $9.5 million for its downtown performing-arts venue.

Those record-setting figures came from the city Finance Department’s latest monthly tax report, issued Friday, and represented a majority chunk of the more than $3 billion in total sales volume recorded in Pitkin County in 2020. Last year’s record-breaking dollar volume included all sales agriculture, commercial and residential, among other types of property transfers and transactions.

The city requires buyers of property within Aspen — which doesn’t include Castle Creek Road, McLain Flats, Old Snowmass, Red Mountain, Redstone, Starwood, Woody Creek, and other surrounding, unincorporated residential areas in Pitkin County — to pay the 1.5% voter-approved 1.5% real estate transfer tax upon closing.

Two-thirds of the tax benefits the city’s worker housing program; the remainder goes to the Wheeler Opera House account.

“Housing real estate transfer tax collections for December were up 155.6% and are 108.4% above collections from the prior year,” said the city’s report. “Wheeler real estate transfer tax collections for December were up 149.9% and are up in total compared to the prior year’s collections by 114.5%. Market activity continues to exceed expectations and has driven collections past double annual forecasts.”

RETT tax collections in 2020 amounted to a grand, unrounded total of $17,589,652 for the city’s housing program, which last year fetched $8.44 million in RETT proceeds.

The Wheeler Opera House also benefited to the tune of $9.48 million in 2020, more than double the amount of $4.42 million collected in 2019.

The overall total in RETT collections in 2020 was $27.1 million, according to the report. In 2019, Aspen’s RETT accounted for $12.9 million.

The RETT also was lucrative for Snowmass Village in 2020. From January through November 2020, Snowmass Village’s 1% real estate transfer tax created $5.34 million in revenue for the town. That figure reflects more than $530 million in property sales where the RETT was applied in Snowmass.

December transactions in Snowmass put its year-end sales totals over $600 million, bolstered by the $70 million change in ownership of the Westin, Snowmass Conference Center and Wildwood Lodge. As well, there were nearly $20 million in residential closings at Building 8 in Base Village, according to county property records.

Even from January through November 2020, Snowmass Village’s RETT collections surpassed the full calendar years 2015 through 2019. That included the most lucrative year in the bunch — 2018, which generated $4.02 million in RETT proceeds, according to town tax reports.

On RETT tax collections alone, Aspen and Snowmass Village combined for $2.4 billion in sales in 2020, but not all properties transfers are subject to the RETT.

Exemptions in Aspen, for instance, include when a property is transferred between trusts and beneficiaries for estate planning purposes, or when a government entity is the buyer or seller of the property.

The RETT also isn’t required when a charity or nonprofit buys real estate, or when a property is gifted to another party “where no consideration other than love and affection, charitable donation or nominal compensation is evidenced by the terms of the instrument of transfer,” according to city records. Other examples include property inheritance or when a property is transferred in the event of a corporate restructure among the ownership.

Land Title Guarantee, which releases monthly, county-by-county real estate reports throughout Colorado, reported total property sales in Pitkin County in 2019 at just over $1.8 billion.

The same company put total sales volume in Pitkin County at nearly $3.5 billion in 2020 — not including December.

Those totals — gleaned from January through November — include $21.5 million in deed-restriction transactions, which don’t trigger the RETT. As well, fractional sales amounted to $84.7 million through November.

Beyond Aspen and Snowmass Village, the Carbondale portion of Pitkin County generated $10.1 million in property sales last year; the Basalt part had more than $70.7 million in sales; Redstone recorded $28.9 million; and dollar volume totaled $104.9 million in Old Snowmass, according to Land Title Guarantee.

rcarroll@aspentimes.com

 

What’s the Big Deal: $24.1M for home on Hallam Street in Aspen

What’s the Big Deal runs Mondays is based on the prior week’s most expensive property transaction recorded in the Pitkin County Clerk & Recorder’s Office.

Price: $24,127,537.50

Date recorded: Jan. 15

Buyer: Angelina Anisimova-Freedman and Ryan Freedman

Seller: 201 W. Hallam Holdings

Address: 201 W. Hallam St.

Neighborhood: West End

Property type: Single-family home

Year built: 2013

Total heated area: 6,679
 square feet

Lot size: 9,000 square feet

Assessor’s office actual value: $15,655,900

Assessor’s office assessed value: $1,119,400

Property tax bill: $40,326.40

Source: Assessor’s Office and Clerk & Recorder’s Office, Pitkin County

 

Murdoch’s has eye on former AFW space at Roaring Fork Marketplace

The old American Furniture Warehouse building sits empty in south Glenwood, but perhaps not for long if Murdoch’s Ranch & Home Supply follows through on plans to open there in the spring.
Chelsea Self / Post Independent

The Roaring Fork Marketplace commercial center in south Glenwood Springs is preparing to welcome Murdoch’s Ranch & Home Supply as a new tenant, coming in spring 2021 if all goes as planned.

The Murdoch’s store would occupy the space that formerly was home to an American Furniture Warehouse outlet, until spring 2019 when it closed. Recently, the neighboring Office Depot store also vacated.

Glenwood Springs City Council recently approved a sales tax incentive agreement with Pegwood LLC, a division of Pegasus Development and Investment, which now owns the store space. Pegasus handles leasing for the Roaring Fork Marketplace.

The tax incentive allows for a rebate on future sales taxes in order to assist with renovations needed for the interior store space in order to accommodate Murdoch’s, according to the agreement. The deal was approved 7-0 at council’s Dec. 17 meeting.

“We’re excited (to have) council’s support in getting a great tenant in there that would provide a good service not just to Glenwood Springs, but the whole valley,” said Matthew Sanger from Pegasus.

Representatives for Murdoch’s did not immediately respond to a request for comment on the planned Glenwood location, but Sanger said a spring 2021 opening is possible.

Murdoch’s is a regional farm and ranch supply store, with locations across Colorado, including Craig and Clifton, as well as in Wyoming, Idaho, Montana and Nebraska. Murdoch’s stores also carry clothing, tools and hardware, hunting and camping gear, lawn and garden supplies, and pet/livestock supplies.

Under the “enhanced sales tax incentive agreement,” the city would rebate 50% of new sales tax dollars generated by tenants occupying the space, per year, with a total rebate cap of $750,000 or a period of seven years, whichever occurs first.

“These types of incentive programs are not uncommon in Colorado, and are often times used as a way to encourage redevelopment of existing space,” according to a city staff memo explaining the program. “It is a format that could be used in other locations in the community to encourage new economic growth, as well as redevelopment.”

By filling the former AFW space, it could make finding a tenant for the now-vacant Office Depot space easier to fill, city and property managment officials also said.

“This is an economic development piece that doesn’t just happen in communities, unless you have economic development people focused on things,” Mayor Jonathan Godes said, commending city economic development staffers Jennifer Ooton and Matt Nunez.

“Nothing attracts a crowd like a crowd, and having a little vitality up there is going to make that Office Depot space … more attractive to a tenant in the future,” Godes said.

jstroud@postindependent.com

’Business as usual’ for local shops during ski resorts’ opening week

Snowmakers blow snow onto the Little Nell run as people make their way down Aspen Mountain on opening day on Wednesday, Nov. 25, 2020.

Given the circumstances — a one-day-early opening at Aspen Mountain and Snowmass, COVID-19 restrictions controlling crowds and gatherings, limited open terrain on the mountains and, of course, the Thanksgiving holiday — it might seem inevitable that businesses would experience an unusual start to the season to meet the trends of an especially unusual year.

Not exactly. In a twist of normalcy, a number of local businesses saw little change in opening week goings-on, aside from the now-familiar optics of social distancing and mask-wearing, this year’s season debut stuck to the status quo.

“As far as actual customer traffic, it’s been business as usual,” said Tyler Moore, a manager at Pitkin County Dry Goods on East Cooper Avenue. “It’s felt like a typical year.”

Moore said foot traffic for opening week at the resorts was consistent with what might be expected in a normal year unaffected by COVID-19 restrictions. Even with social distancing and mask mandates in place, “everybody’s been following the rules and going with the flow.”

A number of other businesses were busy — though not abnormally so — with opening week bringing more foot traffic through Aspen and Snowmass.

“Business has been good, steady, kind of busy,” said Betty Rivera, a manager at JUS Aspen on East Hyman Avenue. “It’s been going really great.”

Skiers and snowboarders on the slopes this weekend brought a new wave of mid-afternoon business to the juicery, plus a boost in foot traffic compared with earlier in the month. This weekend, the shop was “really busy for a Sunday,” Rivera said, but there were no curveballs for the business during the first week of the ski season.

Meat and Cheese, a market and restaurant on East Hopkins Avenue, also saw a solid customer turnout last week.

“We definitely got a pop the days leading up to Thanksgiving,” said Jaila Jafarabadi, a manager at Meat and Cheese.

“The day before Thanksgiving was really, really busy,” Jafarabadi said, with “a little bit more foot traffic” throughout opening week. Friday, however, was quieter for the shop — perhaps more an indication of Thanksgiving eating habits than overall business trends.

“I believe everybody was just eating leftovers Friday,” Jafarabadi said. “Honestly, every day is different.”

The base of Aspen Mountain was packed with skiers and snowboarders the morning of Saturday, Nov. 28, 2020, with a line for the Silver Queen Gondola extending to Dean Street. Extra safety precautions, including social distancing, remains in place because of the coronavirus pandemic. (Photo by Austin Colbert/The Aspen Times)

High Q, a marijuana dispensary located in the Snowmass Mall, likewise saw strong numbers during opening week, manager Alex Malacoff said. The increased foot traffic in the Snowmass Mall, which has been mostly quiet during the offseason, helped High Q experience “one of our biggest days of business since COVID,” Malacoff said.

“For it being COVID and everything, it was pretty busy this year,” Malacoff said. High Q has only been open for about a year, so the business doesn’t have years of sales data to analyze, but this week’s sales were in line with a typical week during the pre-COVID 2019-20 ski season.

“It’s making us hopeful,” Malacoff said.

Despite the relatively typical week for businesses as the mountains opened, it’s hard to say whether the winter season will continue on an uneventful path or be altered by ever-changing COVID-19 restrictions and rising case rates.

“I’m hoping it will kind of stay the course,” Moore said.

“I’m optimistic,” he said — with a caveat amid the unpredictability of this year. “With 2020, you just never know.”