| AspenTimes.com

A ‘traumatizing’ dispute over Aspen rentals commission shows the paper trail matters

An Aspen luxury rental firm’s termination letter to an employee has come back to haunt its founder.

The favorable court ruling for an ex-contract employee of Aspen Luxury Vacation Rentals (ALVR) didn’t end with the March 11 order from Pitkin County Judge Erin Fernandez-Ely. Instead, it provided the springboard for more fighting between ex-broker Victoria Cooke and Tricia McIntyre, who started The Aspen Agency Inc. and ALVR in the mid-2000s, over a commission payment of $7,250.

Cooke was terminated from her job as a broker with ALVR on Oct. 21, 2020, after starting the job three weeks earlier Sept. 30. Following her termination, McIntyre accused Cooke of leaving the job with an office computer and rental leads that weren’t hers.

Yet it is Cooke who has come out triumphant in small claims court over her former superior, McIntyre, winning a judgment of $7,305 for unpaid commission and interest following a trial in February. McIntyre also was unsuccessful in her attempt to appeal the order.

McIntyre said the March 11 ruling from Judge Erin Fernandez-Ely was rooted in a lack of understanding of how commission agreements work in the vacation rental business. McIntyre also said she plans to challenge District Judge Anne Norrdin’s refusal to listen to her appeal.

Both Cooke and another former employee, Sarah Thompson, “have traumatized me and I mean that seriously,” McIntyre said. “And I was so shocked by the ruling by Judge Ely that I don’t even trust the court system.”

While Cooke has taken legal action against McIntyre and her company, Thompson has not. Thompson, however, testified in support of Cooke at the February trial and said she also had difficulties receiving commission she was due.

According to the two ex-employees, McIntyre misled them about their commission and withheld full payment from them for as long as she could. McIntyre said they weren’t entitled to their commission because they performed poorly at their jobs and didn’t complete rental commitments.

“I know where the cracks were in my business, and I’ve adjusted them,” said McIntyre. “It’s been traumatic for me, this whole thing.”

Cooke and Thompson said they are the ones who have been traumatized — whether it has been through their ongoing efforts to get fully compensated or the difficulty they’ve had paying off personal bills like rent as a result.

McIntyre also has made them out to be the catalysts for the dispute when she was the one who forced their hands to take action, they said.

“She needs to be held accountable, and I don’t want her to keep doing this to people,” Thompson said. “It’s not a good look for this town.”

Where it started

Cooke sued McIntyre individually in Pitkin County small claims court in December, seeking $7,250 for a 10% disbursement agreement, or commission, for her work brokering a $72,500 vacation rental as a contract employee for Aspen Luxury Vacation Rentals.

Cooke’s one-page complaint was straight forward and based on what she claimed she was due: “$7,250 is my commission check I have not received,” said the suit, which Cooke filed pro se and without an attorney.

McIntyre’s formal answer to the complaint, filed in February, also was terse. “A transaction was not done, we had no formal executed agreement,” was the sole line of defense in her response.

After hearing both sides make their cases in a virtual trial in February, Fernandez-Ely ruled that although Cooke did not have it in writing from McIntyre or ALVR that she would receive 10% commission for brokering the vacation rental, she “relied on the representation and procured the rental for the company.”

The judge’s order also said an Oct. 21, 2020-dated termination email from Aspen Luxury Vacation Rentals sufficed as evidence that Cooke was due commission. The email said, “Please send me a mailing address or a place where I can send your commission.”

Yet McIntyre, writing in a March 29 appeal brief to the judge’s decision, said the court did not comprehend the commission structure that called for half of the 10% commission to be paid to the rental broker at the time the rental agreement is signed, and the remaining half after the guest has checked out.

Cooke was fired before the guests in the East Cooper Avenue rental she brokered completed their Aspen stay, and McIntrye said she handled most of the details of the vacation rental.

“Tricia (ALVR’s owner) completed the rest of the rental requirements, from drafting the rental agreement, obtaining required signatures, greeting the guest, collecting funds, getting the house rental ready, addressing guest’s needs during their stay, a check-out inspection, returning the guest’s security deposit, among the many requirements needed to earn full commission on a rental. A draft of the rental agent’s job description is given to all new agents and was given to the court. Victoria understood what was required to earn commission as she admitted she read the contract,” McIntyre’s appeal brief said, noting that Cooke also refused to sign an at-will agreement to work for Aspen Luxury Vacation Rentals.

“Victoria refused to sign ALVR’s agreement, despite numerous attempts and reminders asking her to do so. Despite this, Victoria started working on leads, even though she was not officially a representative of ALVR,” the brief said.

McIntyre also argued that Fernandez-Ely based her order on incorrect information that was inadvertently attached to an email sent to the court and then submitted as evidence.

Thompson eventually settled out of court with McIntyre over commission. Thompson worked with ALVR from Aug. 4, 2020, through Nov. 2, 2020, and said the company held off paying her the remaining half of her commission for bookings she originated because it fired her before the guests checked out.

“Refusing to pay agents their entire commission is a predatory business practice if employers can simply terminate employees for no cause just before the guests arrive,” Thompson wrote in an email summarizing her experience with the company.

Meanwhile, McIntyre’s appeal gained no traction with the courts because it was filed after the 14-day deadline.

“Here, the notice of appeal was filed on March 29, 2021, which was 18 days after the entry of judgment that had occurred on March 11, 2021 — so it was 4 days late,” Norrdin wrote in an Aug. 31 dismissal of the appeal. “The filing was accompanied by a letter signed by Trisha McIntyre, a plaintiff who appears to be the corporate representative of the other plaintiff, Aspen Luxury Vacation Rentals, Inc. The letter purports to explain what it terms a 2-days late filing based on ‘unforseen emergencies with business and health.’ The letter lacks specifics about what the emergencies were. It also does not account for the fact that the appeal was actually filed 4 days late.”

The order became official Sept. 28 when Norrdin released the $250 appeal bond.

Theft allegations

Cooke and McIntyre also have accused each other of criminal acts.

McIntyre’s allegation that Cooke left with a work computer after she was fired didn’t hold up. Cooke returned the computer two days later, saying it was taken by mistake.

Cooke, meanwhile, asked the Aspen Police Department to investigate a bank transaction after the judge’s order in March. Aspen Luxury Vacation Rentals deposited $7,305 into her account after the judgment, on March 24, but somehow took $7,305 from the Cooke’s account the next day, on March 25.

For now, Cooke said the matter is being treated civilly, and she plans to sue ALVR for treble damages over the money allegedly taken from her bank account. She claims it was taken through an act of forgery; McIntyre said it was a clerical error resulting in a charge reversal.

In the meantime, ALVR did pay her the $7,305 after taking out the money, but it wasn’t until the middle September.

“The amount of time,” Cooke said discussing the issue with police and Wells Fargo fraud department, “I think it’s fair enough to say that I need to be paid for that pain and suffering.”

McIntyre said she her reputation is being sullied by two vindictive employees who don’t understand the business.

“The way she has made me feel, that I’ve done something terribly wrong to try and screw these girls,” McIntyre said.

McIntyre said she’ll make sure brokers in the future fully understand they only get full commission after the guest has completed and paid for their stay.

“In hindsight, we didn’t get it in writing,” she said. “I’m not a litigious person. I don’t make a living out of fighting people in court. My job is to give a people a happy vacation. I didn’t get in it for this drama.”

For their part, Cooke and Thompson said it’s impossible to get paid full commission when you’re fired before the guest’s vacation you brokered ends.

“She knew what she did,” Cooke said. “The judge tells you to do one thing, and you decide to do something tricky the next day.”


Grocery wars? Not so much in Basalt and Carbondale

The new City Market in Carbondale opened in August 2020.
John Stroud/Glenwood Post Independent

When the new, larger City Market in Carbondale opened in late August, there was speculation it would eat into Basalt’s sales tax revenues, but early returns indicate grocery stores in both towns continue to flourish.

For the four full months since the Carbondale’s 62,000-square-foot City Market opened, Basalt has experienced growing rather than stagnating retail food sales. Cumulative sales tax collections from retail food sales for those four months were $890,544 — up $44,194, or 5%, from the same period in 2019.

Sales tax reports don’t identify taxes paid by individual businesses, so information isn’t available on sales by the El Jebel City Market or Whole Foods.

Basalt Mayor Bill Kane said his gut feeling is both Basalt grocers are on solid ground despite the addition of a large, new store in Carbondale. There was already a City Market in Carbondale, so it’s not like the new store is breaking ground, he noted. While some Carbondale shoppers might be more inclined to shop in their hometown now that there is a greater selection, City Market and Whole Foods in Basalt are rooted with shoppers, Kane said.

Midvalley residents are unlikely to head to Carbondale to shop when two stores are so close in Basalt and upper valley residents are in the habit of going to Whole Foods for specialty products and El Jebel City Market for staples, he said. He doesn’t see that changing.

“I think the upper valley shoppers are somewhat adverse to driving beyond the El Jebel City Market,” Kane said.

Kane and Basalt Town Manager Ryan Mahoney said more time is needed to see how the new City Market in Carbondale affects shopping patterns.

Mahoney pointed out the COVID-19 has decreased the amount of time people are eating at restaurants, out of personal choice or mandatory capacity limits. That’s driven up grocery sales because people are cooking more at home and buying prepared foods. Clear patterns of spending might not emerge until after the pandemic.

However, like Kane, Mahoney said the Basalt stores would continue to draw from Aspen and Snowmass Village.

“Upvalley folks aren’t going to defect,” he said.

Where people buy their groceries is more than a trivial point. Retail food sales tax generates a major portion of Basalt town government’s budget.

In 2019, Basalt collected a record $6.67 million in sales tax revenue. Of that, $2.34 million, or about 35%, came from retail food sales, which primarily reflects sales by the two grocery stores.

Preliminary figures show Basalt topped $7 million in total sales tax revenues in 2020. Of that amount, $2.54 million was from retail food sales.

While Carbondale might not be eating into Basalt’s grocery sales, its retail food sales tax collections are growing. The town collected nearly $1.3 million in retail food sales tax revenues in 2020, an increase of 15% over 2019, according to the year-end sales tax report. Retail food accounted for 25% of total sales tax revenues.

Carbondale Mayor Dan Richardson said none of the current council members were on the board when City Market was approved, so he couldn’t speak first hand about exact expectations for increased sales tax revenues.

“It’s always packed. Clearly it’s been successful,” he said. “Everybody I’ve talked to is giving this City Market a try.”

The town government’s 2021 budget anticipates a 3% to 5% increase in sales tax revenues, according to Richardson. A relatively new tax on online sales is fueling growth for many Colorado governments. The larger City Market also is expected to boost sales compared with the old store, he said.

Richardson said a segment of Carbondale residents will continue shopping at Whole Foods in Basalt for organic food and specialty products. How shopping patterns shake out remains to be seen.

“I’m not hanging my hat on any data yet,” Richardson said.


Business Monday: Pitkin restaurants show appetite for 5-Star program

At least 33 businesses in Pitkin County, including 30 restaurants, had applied by Friday afternoon for membership into the 5 Star State Certification Program that eases restrictions and will be administered locally, a county official said.

On Monday, the county will start reviewing the applications giving restaurants priority, according to Laryssa Dandeneau, the COVID-19 program administrator with Pitkin County Public Health. Gyms and offices will be next in line.

The goal is to have eligible restaurants certified by Friday, she said. Restaurants will need to submit a business safety plan with the county; businesses that filed plans after Nov. 13 do not need to submit another one. Business filing plans before that date are required to submit another one for certification.

Dining establishments aiming for 5-Star certification must adhere to requirements that include employees doing daily symptom and exposure checks and recording customer names for contract-tracing purposes. Restaurants also will be required to space tables 10 feet apart and operate on reservations only.

As of last week, Pitkin County — while accepting 5-Star applications — was still not eligible to install the program because it didn’t meet all of the criteria.

Even so, it is processing applications for the 5-Star program so once the county is eligible, certified businesses can immediately enjoy the benefits of a color level down.

Red counties like Pitkin can participate in the 5-Star State Certification Program once they meet all of the following criteria:

— A two-week sustained decline in incidence, and a percent positivity under 10%; or 10 cumulative days of decline in positivity in the previous rolling 14-day period;

— Less than 90% of regional ICU hospital beds in use in addition to 10 cumulative days of decline in the previous 14-day period for hospitalizations.

On Friday, Pitkin County had met those metrics except one — 90% of regional hospital ICU beds were in use.

Satisfying that criteria would allow certified businesses in Red counties to operate under Orange-level guidelines that allow indoor dining at a 25% capacity.

Pitkin County went under Red-level restrictions that ban indoor dining at all restaurants Jan. 17. Outdoor dining, also with restrictions, is allowed under Red, and takeout is permitted.

The county’s incidence rate was down to 732 on Sunday, and it needs go down to 700 or lower for the county to reduce health restrictions under the Orange level.

Certified businesses could operate under yellow guidelines — which includes 50% capacity for restaurants and 6 feet between tables — if Orange trends hold for a week. The state’s COVID-19 dial dictates what color restrictions are used during implementation of the 5-Star program. All three metrics must be simultaneously satisfied under the state’s COVID-19 dial for the 5-Star program to take and remain in effect.

“Depending on where the county falls on the state COVID-19 dial metrics, certified businesses may be eligible for less restrictive capacity caps,” according to the county’s 5-Star FAQ section. “For example, if Pitkin County case and hospitalization metrics all move to Orange for at least seven days, certified businesses would be eligible for level Yellow restrictions.”


What’s the Big Deal: Red Mountain the home of $27M sale

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: $27,371,000

Date recorded: Jan. 29

Buyer: Vistajax LLC

Seller: RM Development LLC

Address: 12 Salvage Circle

Subdivision: Ridge of Red Mountain

Property type: Single-family residential

Year built: 2020

Total heated area: 7,272 square feet

Lot size: 31,000 square feet

Assessor’s office actual value: $9,231,300

Assessor’s office assessed value: $660,040

Property tax bill: $20,416

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


Aspen, Snowmass mayors lack votes to loosen rules

The mayors of Aspen and Snowmass Village on Thursday failed to persuade fellow members on the Pitkin County Board of Health to reopen restaurants to indoor dining under the less restrictive Orange level.

Saying they had majority support from their respective boards, Aspen Mayor Torre and Snowmass Mayor Bill Madsen sprang separate motions on the seven-member board to remove the Red-level limitations that took effect Jan. 17. Other board members could not go along with the proposals.

“I don’t think this should happen today,” said Greg Poschman, who as an elected commissioner represents Pitkin County on the board. “I really don’t.”

Despite Torre and Madsen’s unrealized attempts to recharge the restaurant sector, COVID-19 trends point to numbered days in the Red if the county’s incidence rate keeps dropping. By next week, the county could revert to Orange, said Jordana Sabella, interim public health director.

Put simply, if the county records an average number of seven positive COVID-19 cases per day, the incidence rate will go below 700 on Monday, county officials said. A 10-case daily average moving forward would have the county under 700 and in the Orange by Feb. 3, according to projections from county health officers. Public health set the threshold at 700 based on its capacity to contract trace and remain faithful to the “box-it-in strategy.”

Pitkin County’s incidence rate, which reflects the number of COVID-19 cases per 100,000 population, was the highest in Colorado and one of the 20 highest in the U.S. when it hit 3,108 on Jan. 15. It had tumbled to 929 Thursday, according to Pitkin County’s daily epidemiology report. On Wednesday, the figure was 1,222.

Meanwhile at the meeting, Torre and Madsen made their motions following the board’s private talk, in executive session, concerning the Pitkin County Restaurant Alliance’s litigation.

The alliance, a collection of restaurants and other supporters, is suing the county, its public health department and interim public health director to bring back Orange-level restrictions.

On Wednesday and in advance of the board’s meeting, alliance attorney Chris Bryan submitted a letter to the county saying the health board’s decision to go Red has created more harm than good because of lost jobs and societal impacts. Local residents are suffering from economic uncertainty, mental struggles, domestic violence and substance abuse because of the pressures associated with business closures and “draconian” public health orders, the letter said.

“Not only has the County created a mass-unemployment public health crisis, but its health order actually makes COVID-19 worse,” said the letter, which also accused the county of hypocrisy by keeping the airport restaurant open to indoor customers. The county runs the airport.

Bryan’s letter concluded with a reference to Black civil rights leader Martin Luther King Jr., saying “the words of Dr. King are as true today as they have ever been: ‘The time is always right to do what is right.’ The Board of Health has the opportunity now to do the right thing.”

Madsen was more forceful with his remarks, some of which also referenced Black America.

“To harken back to the George Floyd incident, we have put our foot on the throat of the restaurant industry and they can’t breathe,” he said.

The newly elected mayor also said would-be guests aren’t booking stays in Pitkin County because of a perception that it is under lock down. Hotels and the airport remain open, and restaurants remain allowed to serve diners outside and provide takeout service.

Madsen’s motion to allow indoor dining under the Orange level, effective immediately, failed to advance without a second from another board member.

More discussion prompted Mayor Torre to introduce a motion directing county public health to ease the county down to level Orange, which allows restaurants a 25% indoor seating capacity. Torre initially proposed an 11 p.m. curfew for restaurants before adjusting the time to 10 p.m. He had the support of Madsen, but that was it. The motion failed 5-2, prompting Torre to note that Orange levels don’t have curfews. His proposal would have included a 10 p.m. cutoff.

As board members debated the motion, Poschman was texting his BOCC colleagues to see where they stood. One of them, Patti Clapper, an alternate on the Board of Health, suggested officeholders on the health board face political forces that non-elected members don’t.

“For the rest of the board members, it’s easier to make your decision, but for those elected officials on this board, they really need to vote with the consensus of the boards they represent,” Clapper said.

Poschman, after calculating Clapper’s comments with his text messages, said the BOCC appeared to be 3-2 against going into Orange.

“I’m uncomfortable with the way this is going,” he said. “And in any event, if we’re going to make changes like this, my personal feeling is they need to be referred back to public health staff, because we need to analyze it.”

Dr. Jeanne Seybold, a Board of Heath member, said restaurants aren’t the only ones suffering. She also voted against Torre’s motion.

“We want to get the incidence rate down,“ she said. ”We need to get our kids back in schools. We need to get this virus out of this community so people will stop being exposed. The restaurants are not the only businesses and I love restaurants; I want them to open. I’ve been supporting them through gift certificates, but people who have concerts or gyms, they have not been able to operate at all, and our high school has been remote for weeks. We need to get this down because we need our kids back in school. They’re getting ’D’s and ’F’s. And some kids cannot learn remotely.“

Of the three public health metrics that inform the board’s public health orders — which include the percent positivity of COVID-19 tests and impacts on hospitalization in the central region of Colorado — Pitkin County’s incidence rate has been followed the closest.

Its high level was the catalyst for the Board of Health’s Jan. 11 decision to move from Orange to Red. And if it continues to go down, it will be the reason the county returns to Orange, a decision that can be made administratively and without board approval.

Returning to Red would take the county’s incidence rate holding above 700 for 14 days. It also would be forced into Red if one of the three metrics is red for 14 days and another metric goes Red for any period of time.

In a related development, the county officials said they have all but received clearance from Colorado to participate in the 5-Star State Certification Program, which loosens restrictions for participating businesses.

The county is confident enough it will receive approval that it is currently accepting applications from local businesses wanting 5-Star certification.


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.


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 Jordana 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.


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.


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.



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