First the Denver Nuggets got flushed in the first round of the playoffs.
Now one of Aspen’s oldest art galleries is suing its former landlord — an ownership group that the lawsuit says includes Nuggets and Colorado Avalanche owner and part-time resident Stanley Kroenke — alleging that the building owner “astronomically” overcharged for things like toilet and other water usage.
Ken Johnson, the owner of the E.S. Lawrence Gallery, said Friday that he didn’t want to sue Wheeler Block Building, LLC (WBBL).
“I’m doing this more to support small businesses,” he said.
Before relocating to the Hyman Avenue Mall on April 30, E.S. Lawrence Gallery had been in the Wheeler Block Building on South Galena Street for more than 30 years, the lawsuit says. The building was built in 1900, wrote Aspen attorney Matt Ferguson. He filed the suit Thursday in Pitkin County District Court.
Johnson said a city employee informed him in early 2012 that the building’s water meter had been broken for two years. That meant he and the owner of a condominium upstairs from the fine-art outlet were being charged a default flat rate for water usage, at “exponentially higher” charges than those used to assess actual use, Ferguson wrote.
Under the lease terms, filed as an exhibit in the lawsuit, Johnson was to pay $13,585 a month in rent and a fixed monthly charge of $1,507 for common area maintenance, property taxes, insurance and utilities.
The latter amount reflected the tenant’s share of the total of such expenses for the building, which the lease spells out as about 68 percent, the lawsuit says.
The gallery had “a single toilet and sink,” Ferguson wrote.
A footnote in the complaint says that with “1 1/2 people” occupying the art gallery for 12 hours a day and flushing five times a day, it would equal 112.5 flushes per month.
Given that Johnson was being charged $370 to $384 a month for water and sewer use, “it is possible that the cost was well over $1 to flush at this ... building,” the lawsuit says. “Upon information and belief, the cost of a flush should be in the range of 1-4 pennies.
“Regardless how the overcharges are measured, they were astronomical.”
The lawsuit says WBBL bought the building for $1.5 million in 1995. Kroenke or entities controlled by him are members of WBBL, as are Aspen shareholders Greg Wisener and Mark Haldeman, Ferguson wrote.
Wisener said Friday he had not seen the lawsuit and declined further comment. Efforts to reach Haldeman were not successful. A message seeking comment left with a company owned by Kroenke, who also owns the St. Louis Rams, was not returned.
The lawsuit says WBBL ignored the city after the employee informed it of the broken water meter. Johnson alleges that his landlord continued to overcharge him until he paid to have the meter repaired himself.
“While it is not clear what the upstairs condominium occupants were charged under any lease, under no conceivable measurement could [the] gallery’s sink and toilet have consumed” twice as much as a 2.5-bath condo, Ferguson wrote. “Johnson even asked if they were emptying and refilling the hot tub and causing incredibly high water bills.”
He contends he is owed $16,231 for water and sewer charges since signing the 2011-12 lease and $2,700 for having the meter fixed. He also said he was improperly charged $10,675 for management fees; $3,230 for snow removal for the upstairs condo; and nearly $3,000 for maintenance and repair fees.
The management fees were not part of the lease, Johnson said. The two sides failed to agree on terms for a new lease, prompting Johnson’s move on April 30.
“They kept charging me and kept charging me,” he said. “There was always a debt ... I couldn’t catch up.”
The lawsuit’s claims are for breaches of lease and the implied covenants of good faith and fair dealing, and unjust enrichment.