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Erik Burgess, Published July 20 2013

Fargo liquor law on chopping block

FARGO – With what the mayor once called an “awfully ambiguous” liquor law on the chopping block, Cash Wise Liquor will try again to set up shop in south Fargo.

The liquor store was denied the chance to build next to the Cash Wise grocery at 1401 33rd St. S. in May. It would have put the liquor store about 800 feet from The Spirit Shop off-sale, 1404 33rd St. S.

Representatives of the locally owned Spirit Shop argued that having a competitor so close would be financially devastating and that, based on city law, commissioners should deny the request.

The City Commission sided with The Spirit Shop, voting 3-2 to deny Cash Wise Liquor, but some commissioners at the time said they wanted to look at adjusting what Mayor Dennis Walaker called the city’s “awfully ambiguous” liquor laws that allowed The Spirit Shop to make such a request.

On Wednesday, the Liquor Control Board did just that, recommending in a 4-1 vote that commissioners change the law.

Based on the liquor board’s actions, Coborn’s, the Cash Wise parent company, will again propose a liquor store at the same location in the near future, president and CEO Chris Coborn said Friday in a prepared statement.

“It is our deep desire to move forward with a new store. We love the area,”

Coborn said. He didn’t specify when Cash Wise might try again.

The City Commission will consider a first reading of the amended ordinance Monday. It requires two readings to become law.

An attorney representing The Spirit Shop, which has been in the area for 36 years, said they plan to be at the commission meeting Monday night to make their case again.

Law was ‘so subjective’

City ordinance 25-1508 states that the City Commission should consider 13 factors before granting liquor licenses, including “protest of neighboring property owners,” “proximity of other businesses licensed to sell alcoholic beverages” and “economic impact upon other such licensed premises.”

When Cash Wish Liquor proposed a move in May from its current location at 4101 13th Ave. S. to an empty lot west of the grocery store, The Spirit Shop latched onto that “economic impact” factor.

Mike Nicholson, the shop’s operations manager, argued at the time that if Cash Wise Liquor was allowed to move across the street, his store would lose at least 50 percent of its business.

The “economic impact” provision has been eliminated in the proposed amended city law, drafted by City Attorney Erik Johnson, and the 13 factors were whittled down to eight. In proposing the changes, Johnson studied liquor laws from 16 other cities in the state and nationwide.

The “proximity” and “protest” factors remain, but “economic impact” was too difficult to measure, Commissioner Mike Williams said.

“The idea was: Take the things that we really don’t have good answers for out,” Williams said. “And economic impact was one of them because that was so subjective.”

Williams, who voted against letting Cash Wise Liquor move, said he plans to vote for the changes on Monday.

Nicholson has also said state law requires off-sales to purchase from the same wholesalers, making it difficult for two off-sales next to each other to differentiate product.

But Commissioner Brad Wimmer, who voted against The Spirit Shop the first time and said he’d do it again, doesn’t buy that argument.

“You could make that case in almost every business,” he said, citing gas stations as one example.

In a voicemail left late Thursday, Nicholson said they only heard about the changes after the liquor board meeting. He did not respond to requests for comment Friday.

Jade Rosenfeldt, an attorney who represents The Spirit Shop, said she still sees economic impact as an “important factor” to be considered. Rosenfeldt said The Spirit Shop also has other arguments to make.

“The question that the city commissioners have to consider is whether or not they want there to be four or five off-sale businesses located within the same block,” she said.

Wimmer said that’s not an issue for him, adding he’d like to eventually eliminate the proximity provision, too. It doesn’t make sense, he said, to control proximity with liquor stores, but no other businesses in Fargo.

“I think (Police Chief Keith Ternes) was a little bit afraid of clustering of off-sales, but I just don’t have a concern at all with that,” Wimmer said.

Ternes was the sole dissenting vote on the five-person liquor board Wednesday. He did not return calls seeking comment Friday.

City law also states that a liquor store must be 100-feet from a grocery store, pharmacy or gas station. The amended law doesn’t change that, but makes it clear that commissioners have final say in determining if the 100-foot rule has been satisfied.

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