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Erik Burgess, Published May 05 2013

Local liquor shop protests planned Cash Wise location

FARGO – City Commissioner Brad Wimmer believes it’s time to change a “convoluted” city law that dictates where liquor stores can be located.

The issue came up at last week’s commission meeting when Mike Nicholson, operations manager for The Spirit Shop, an off-sale store at 1404 33rd St. S., asked commissioners to prevent a new Cash Wise Liquor from going up next to Cash Wise at 1401 33rd St. S. – just 800 feet from Nicholson’s store.

The proposed move would move Cash Wise Liquor from a strip mall about a mile away at 4101 13th Ave. S. to an empty lot to the west of the grocery store.

“There’s no getting around the fact that at a minimum 50 percent of your business is going to be impacted,” Nicholson said Friday. “They’re going to be splitting that little area with us.”

This isn’t just a private tussle between two businesses. City ordinance requires that the commission look into Nicholson’s concerns.

Whenever a liquor license is issued or transferred, such as when a liquor store moves, the city must consider a slew of items to insure that the license issuance or transfer is in the “best interests of the public health, safety, morals, and general welfare of the community,” according to city ordinance.

First, the hard-and-fast rule: a new liquor store cannot be within 100 feet of a grocery store, gas station or drug store. Cash Wise says the new location would be over 100 feet from the nearest pump at its gas station and even farther from the grocery store, but the Spirit Shop is questioning where the law requires that they measure from.

The commission must also consider a number of not-so easily defined factors when issuing a liquor license, like the “proximity” of other businesses licensed to sell alcohol, protests of nearby property owners, and the “economic impact” upon other such licensed premises.

It’s this gray area in the law that Wimmer says he wants to eliminate.

“I don’t know that it’s going to be resolved to the Spirit Shop’s liking, but I think we need to put some clarity to the law and maybe even change the law,” Wimmer said on Friday.

“Everybody was confused on Monday night,” Wimmer added. “When we look at some of these things, we need to be able to look at them and make a decision.”

Commissioners discussed the Cash Wise issue at length Monday before voting unanimously to give City Attorney Erik Johnson until May 13 to look into whether or not the new liquor store would actually be 100 feet from the Cash Wise gas pumps.

The other issues – if the new liquor store negatively affects the Spirit Shop – are policy questions, Johnson said.

Jim Hornecker, real estate director of Coborn’s, Inc., which owns Cash Wise, told the commission Monday that they have been planning to move the liquor store next to the grocery store for a couple years. He said the proposed liquor store would be 109 feet from the nearest Cash Wise gas pump.

“We think it’s a very important part of our customer presentation,” he said. “We’re trying to be competitive with some of the strong competitors that are in this market, Costco and others.”

Nicholson said they aren’t trying to snub out competition, but in North Dakota, law dictates that all off-sale liquor stores buy from the same pool of wholesalers.

City Auditor Steve Sprague said there are other bars or stores licensed for off-sale that are close to each other, such as the Empire Tavern and Steve’s Package Store downtown, which are separated by about two blocks.

But Nicholson said it’s unfair to compare bars with off-sale to stores that can only sell off-sale.

“Two bars next to each other can feed off each other and bring in more overall business. Where two liquor stores selling the exact same thing, you’re really limited,” he said.

Some communities have established laws defining how close off-sale stores can be, sometimes requiring as much as a 1,000-foot buffer, said Jade Rosenfeldt, an attorney representing The Spirit Shop.

Nicholson said his shop has been in its current location for 18 years and in another nearby site for the 18 years prior. His father opened up shop the day Nicholson was born.

“We’re not just trying to be selfish or greedy,” Nicholson said. “It’s just we’ve spent a lot of time building up our business, and we’d like to keep it in the family if possible.”

Mayor Dennis Walaker said these kinds of protests are uncommon, but the bigger issue of Fargo having “restrictive” liquor laws did prevent the city from landing a big fish.

“In reality that’s why we lost Costco,” he said, referring to the portion of the law that requires off-sale stores to be 100 feet away from grocery stores.

The big-box store, which includes a pharmacy and also sells alcohol, opened in West Fargo last fall.

Wimmer was unwilling to put full blame on Fargo’s liquor laws for losing Costco, but he said it was definitely a factor.

“This is the second time it’s come up within a year,” Wimmer said. “So yes, I think we need to look at it and find out if our proximity rules are relevant today.”

Readers can reach Forum reporter Erik Burgess at (701) 241-5518