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Cover StoryThe Slippery Slope
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.
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:
It is invalid, illegal, unconstitutional and unenforceable:
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. NJChristopher 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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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.