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The Slippery Slope

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A notoriously anti-free-market ordinance passed October 6 by three Clark County commissioners—Erin Kenny, Myrna Williams and Yvonne Atkinson Gates—won’t be doing the job that they (and the Wal-Mart-hating labor union bosses they wanted to please) intended. U. S. District Judge Philip Pro ruled Dec. 1 that the law could not be used to block construction in Clark County of two Wal-Mart SuperCenter stores. Pro’s preliminary injunction stopped retroactive application of the law, but did not address its constitutionality, which remains under litigation. The ordinance is also the subject of a citizen petition drive intended to place repeal of the law on next fall’s ballot. On the orders of Commissioner Kenny, county staffers had custom-written the ordinance to conform exactly to wording specified by national Culinary union boss John Wilhelm and longtime Culinary lawyer Richard McCracken. Also in on the scheme was legal counsel procured by GOP powerbroker Sig Rogich, who was now representing the county’s existing grocery oligopoly. Like the bosses of the Culinary and the United Food and Commercial Workers Union, Rogich’s clients wanted to use government to prevent nonunion Wal-Mart from giving Clark County consumers a choice—and themselves market competition. The dramatic Oct. 6 meeting of the Clark County Commission—where the servants of “juice” were scheduled to do their deed—was closely covered by Las Vegas media. Several writers found much to admire in the presentation to commissioners by attorney Christopher L. Kaempfer. “The most eloquent remarks were offered by attorney Chris Kaempfer,” wrote Las Vegas Review-Journal columnist John L. Smith following the commission vote. Political analyst Jon Ralston similarly observed, “[A]ttorney Chris Kaempfer gave one of the finer, braver speeches I’ve seen at a government hearing.” Following are Mr. Kaempfer’s remarks to the Clark County Commission.

 

ood morning, Mr. Chairman, members of the commission. I’m Chris Kaempfer of Kummer, Kaempfer Bonner & Renshaw and while I cannot say I’m the spokesman for this particular position, I’m certainly here on behalf of several developers and individuals who feel very strongly that the ordinance before you today is unwarranted and inappropriate and not in the best interests of Clark County.

What is a Valid Ordinance?

An ordinance by its nature is designed to create a benefit or address a problem. To be valid, it must be:

1. Properly motivated;

2. Based on real evidence and facts, and

3. Uniformly applied.

It is invalid, illegal, unconstitutional and unenforceable:

1. If its primary purpose is to restrict competition;

2. If its factual basis is unsupported or flawed; or

3. If it discriminates against parties similarly situated or is designed to affect one person or entity alone.

While it may be easier or more polite or proper to sidestep it, the underlying motivation for this ordinance is clear by looking around this room and by examining in our hearts and heads the various and substantial pressures that have been placed upon you. I do not envy you. You are people of character and conscience and decisions like this are very hard. But the question must be asked, and more importantly must be answered truthfully: Would these fine people be here, would you have received all of the letters and calls you did, would all of the endless, grueling, repetitive meetings you have endured been necessary and would this ordinance have been introduced in the first place if Wal-Mart were a union shop?

And if the answer is “no, these things would not have occurred,” then you must question the motivation behind the ordinance, and issues such as public health and safety, pedestrian and vehicular traffic concerns, and loss of property values must stand on their own.

Because when the motivation is stripped away, there must be substance. There still must be facts and evidence to support what you do. To support your ordinance. And quite candidly, that evidence is simply not here. You know better than anyone that this is not a case where facts and circumstances have operated to justify and then ultimately create an ordinance. In this case, the ordinance was first conceived and then the facts and circumstances were created to justify it. That is not the facts and evidence the law requires.

After me, you will hear from Lucy Stewart, former head of current planning for Clark County and an undisputed planning and zoning expert. She will address the planning and zoning issues raised by the ordinance. After Ms. Stewart, we will hear from Ken Ackeret of Kimley-Horn. Mr. Ackeret has his Ph.D. in transportation engineering and has been doing impact studies in Clark County since they have been required by the county. He is a nationally certified professional traffic operations engineer and his firm does work for both public and private clients including Clark County in traffic and transportation evaluations including work on the beltway and the RTC fixed guideway project. He will address several issues relating to supposed traffic and design concerns.

Following Mr. Ackeret, we have Mr. Michael Gleason, Jr., owner ROI Commercial Real Estate, Inc. Mr. Gleason will address the real impact which big box stores and other commercial developments have in our city and the truth as to how big boxes such as Wal-Mart really affect small business operations in cities of our size and diversity.

This leads to my final area of discussion, the intended applicability of this ordinance.

What’s Been Said ... vs What Is

When this ordinance was first proposed, we were told clearly and plainly that it was directed at the Wal-Mart superstore and the Wal-Mart superstore alone, and from the badges that have been handed out at the last several county commission hearings saying “Stop Wal- Mart,” that would seem to be the case.

We were told that the proponents of the ordinance had gone as far as to measure the aisles of the non-Wal-Mart stores to be sure that these other stores were not inadvertently caught in the anti-Wal-Mart web.

We were also told that this ordinance did not intend to prohibit in any way existing Wal-Mart operations, just the Wal-Mart superstore, and that we would be free to build Wal-Marts and Sam’s clubs in Clark County where the zoning otherwise permitted.

Unfortunately, intentions and reality do not square.

In truth and in fact, your proposed ordinance will affect many other businesses, including Costco, the Target Greatland, K-Mart superstores and perhaps even Nordstrom with its aisles upon aisles of specialty foods. And there may be others. Certainly, that cannot be the message which we want to send to businesses outside our state. I can see the disclaimer in our NDA (Nevada Development Authority) brochures now—“Attention. Before you come to Las Vegas, please check our local ordinances. You may not be welcome.”

Additionally, it is not true that this ordinance would allow Wal-Marts and Sam’s Clubs to be built as presently constituted. Under the wording of this ordinance, the Wal-Mart and Sam’s Club at Spring Mountain and Rainbow arguably would not be permitted as they may be in the same shopping center. Is that what you intend? And if so, how can it be said that the Wal-Mart/Sam’s Club operation at Spring Mountain and Rainbow adversely affects anyone when we have a Target, a K-Mart and a Lucky all successfully operating at the other three corners of that intersection?

Those Poor Billionaires

And who are you supposedly protecting by this ordinance? Billion-dollar grocery store chains, small businesses, neighborhoods? There is not one single shred of evidence that in Clark County a Wal-Mart superstore would adversely affect anyone. It’s just the opposite, because for those of us who have lived here for any period of time, we remember the Gemcos and before that Vegas Village. And there was no adverse impact which we suffered either individually or as a community from either of those businesses.

I can tell you what there is evidence of, however.

There is evidence that 30 years ago grocery store chains at then 40,000 square feet in size were said to be responsible for closing down literally thousands of mom and pop stores nationwide which simply could not compete. The grocery chains were not so worried then about unfair competition.

There is evidence that the Smith’s on the southwest corner of Tropicana and Jones (and seemingly without concern for the other tenants or the neighborhood adjacent to it) closed its doors so it could open a Smith’s Superstore immediately across the street on the northwest corner of Tropicana and Jones. And this was all accomplished without a Wal-Mart being anywhere in sight.

There is evidence that we will never see in Las Vegas the new Lucky/Sav-on combined store prototype popular elsewhere. And not because this new proposed ordinance would otherwise prohibit it, but because by keeping their two stores separate in our community, each store can have its own 15 slot machines.

And most importantly, there is evidence that anchor grocery stores do not promote and protect small businesses as the preamble to the new ordinance would have us believe. In fact, walk through your new, improved grocery store. Observe the bakery, the flower shop, the yogurt store, the fast food, the photo developing, the video store, the greeting card area, the post office, the drug store, the bank.

The Terribly Slippery Slope

These additional ancillary uses are not a benefit to our small business community, especially when as part and parcel of their agreeing to be an anchor tenant in a center, these grocery store chains often require that these other uses not be allowed to compete with them in the same center, and I don’t see any outpouring of sentiment to stop these grocery chains from doing what they’re doing, nor do I think there should be, because the bottom line is that ordinances such as the one before you today offer a terribly slippery slope.

Where do you begin? Where do you end? Who do you protect and from whom? Like it or not, we have theaters in casinos, flower shops in grocery stores and a little bit of everything in our drug stores. But that is the nature and basis of our economic system.

This proposed ordinance is anti-competitive, anti-consumer and in this particular case, as you are about to bear from our expert witnesses, without any foundation in fact. That makes it illegal and removes this ordinance from its presumption of constitutionality. It should not be adopted. It is bad for Clark County. It is bad for business. It is bad for all of us.  NJ

Christopher Kaempfer is a senior partner with Kummer Kaempfer Bonner & Renshaw of Las Vegas. He represented Eastern Beltway, Ltd., developers of the Eastern Beltway Center, planned site of Wal-Mart’s new Las Vegas SuperCenter store.


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