Montana’s, Hoffmanns locked in lease dispute
July 30, 2014
EAGLE — A Chicago real estate developer wants to boot an Avon restaurant because a marijuana vending machine was displayed for two days, and says that damaged the company's reputation.
However, the attorney for Montana's says the landlord's lawsuit is part of a pattern of harassment dating back more than a year, all designed to force the restaurant out.
The vending machine, a Zazzz machine, was at Montana's for two days in April. The Hoffmann company says the media and social media attention the Zazzz machine attracted damaged the Benchmark Plaza's reputation and implied that the machine would be installed at Montana's, which violates the lease. The Hoffmanns, through their company Benchmark Investors, are suing Montana's owners Thomas Beaver and Andrea Burrows.
But Tracy Ashmore, the attorney for Montana's, says the Zazzz display did no damage to the Hoffmanns' reputation or anything else. She argued in Monday's court trial that the lawsuit is one of many methods the landlord is using to try to cut Montana's out of their lease, which has eight years remaining. Ashmore said the case is about working people fighting a wealthy real estate developer.
"This lawsuit is one of more than 15 things Benchmark has done to try to get my client out of the lease," Ashmore said. "This is a case about working people trying to make a success of a restaurant. They've put everything they have and then some into this restaurant."
The Hoffmanns' vision for Avon is "elite," and they just don't like a family restaurant, Ashmore said.
The case is not about money. Montana's rent is $11,000 per month, and they've made every lease payment, Ashmore said.
Montana's also had permission from the Avon Town Council to display the machine, Ashmore said.
The Hoffmanns bought and are renovating much of the commercial real estate in the older part of Avon, including the Benchmark Plaza where Montana's is located. Jonathan White, president of their commercial real estate division, said they strive to be a family-oriented company.
All that Zazzz
The Zazzz machine was at Montana's April 11-12 for a private shareholder party hosted by American Green, the publicly traded company that manufactures it. American Green paid Montana's $10,000 to host the event and to close the restaurant to the public.
The event attracted considerable media and social media attention.
"The machine was only on the premises for 48 hours, but the images are still out there on the Internet," said Jim Berdelle, the Hoffmanns' attorney in the case. "It is our contention that this has gone international. Reuters even picked up the story."
For display purposes at Montana's, the machine was stocked with a liquid digestive enhancer and an energy drink, but no marijuana products, said Stephen Shearin, American Green COO, who hosted the event.
Berdelle argued that, under the terms of the lease, Montana's is not allowed to engage in any promotions without the permission of the landlord.
Spreading the word
Tuesday's court trial was argued before District Court Judge Fred Gannett.
Gannett said the media and social media surrounding the event did what it was supposed to do — attract attention to the business.
"The idea that a commercial entity's reputation is damaged by attracting attention to it seems odd to me," Gannett said. "He (Hoffmann Commercial Real Estate) is in the business to rent to people who make money. The businesses make money if people come. People come when the business is promoted."
However, Gannett said it is conceivable that the Benchmark's reputation was damaged, especially based on the testimony of some other Avon and Eagle-Vail businesspeople, who spoke highly of the Hoffmanns as landlords.
The company owner, David Hoffmann, was in New York City when he heard about the promotional event the next day, White said.
He started reading articles and posts and watching news clips about it.
"I was appalled," White said.
Hoffmann saw it as an obvious lease violation. The Hoffmann company has been outspoken about its support of Avon's marijuana moratorium, White said.
"This is a big deal for us," White said. "I'm bothered that a marijuana-selling machine was on our property without our knowledge."
The ongoing social media asserts that the company supports and participates in selling marijuana, which it certainly does not, White said.
The case will conclude this afternoon.
Staff Writer Randy Wyrick can be reached at 970-748-2935 and rwyrick@vail