April 11, 2017

Ex-business owners say ABQ minimum wage ordinance is invalid

The ex-owners of an Albuquerque restaurant and bar want a state district court judge to throw out a wage theft lawsuit against them and argue the ordinance that raised the city’s minimum wage is invalid. If a judge were to rule the ordinance was not validly enacted, it would lower the minimum wage to the […]

Andy Lyman

The ex-owners of an Albuquerque restaurant and bar want a state district court judge to throw out a wage theft lawsuit against them and argue the ordinance that raised the city’s minimum wage is invalid.

If a judge were to rule the ordinance was not validly enacted, it would lower the minimum wage to the state’s rate of $7.50 per hour. Currently, the Albuquerque minimum wage is $8.80 per hour.

The current owners are not part of the lawsuit.

“Santa Fe Dining purchased Kelly’s in August of 2016 and since that time all Kelly employees are paid by the rate required by law, including the Albuquerque ordinance at issue in the lawsuit between the former owner of Kelly’s and some of its employees,” Jim Hargrove, president of Santa Fe Dining, wrote in an email to NM Political Report Tuesday. “Unlike the former owner of Kelly’s, Santa Fe Dining is not attacking the ABQ minimum wage ordinance but this is not clear in your piece posted last night.”

Hargrove said that Santa Fe Dining pays the current employees “more than the ordinance requires.”

More than a dozen former employees of Kelly’s Brew Pub and Restaurant filed suit against the former owners Dennis and Janice Bonfantine for not properly paying waitstaff the city’s minimum wage by withholding a percentage of their tipped wages. Now, lawyers for the Bonfantines argue the city’s minimum wage is invalid because the language on the ballot included only a summary instead of the entire initiative.

In February, the Bonfantine’s lawyers filed a motion to dismiss the case, arguing the voter-initiated ordinance only had partial information on the ballot.

“The law is designed to provide voters with maximum information given that voter-initiated legislation has not been vetted by City Council staff to the same degree as other legislation,” the court filing read. “Here, voters were provided only a summary of the ordinance’s intended effect as opposed to the full text of its terms, as required by law.”

The summary-versus-full-text argument is not a new one. Last year, an attempted voter initiative that would have required employers to provide paid sick leave was successfully challenged in district court. Albuquerque District Judge Alan Malott ruled in September that ballot initiatives must be printed in full and cannot be summarized. That issue is currently awaiting a ruling from the New Mexico Supreme Court.

Now Malott, who is the judge in the minimum wage case, will have to make a ruling on whether the 2013 minimum wage increase is valid.

The worker’s advocacy group, Organizers in the Land of Enchantment (OLE), are at the forefront of both the sick leave and minimum wage issues. OLE Executive Director Matthew Henderson said overturning the wage increase “would mean at the very least, 20,000 employees would get a serious wage cut.”

The Bonfantines told the Albuquerque Journal last year that Santa Fe Dining, which operates a number of restaurants in the state, would be taking over Kelly’s.

Shane Youtz, the attorney for the 16 former wait staff, would not comment on the case other than to say he’s confident the ordinance will be upheld.

Lawyers for the Bonfantines could not be reached for comment but have maintained through court filings that tipped employees shared their tips with other employees.

In a counterclaim, the Bonfantines accused Youtz of defamation when he mentioned wage theft in media interviews. Malott dismissed that claim.

Malott granted Youtz’s request for additional time to respond to the allegation that the wage ordinance is invalid.

It’s still unclear when the state’s high court will make a ruling on whether ballot summaries are sufficient to pass ordinances.

Correction: This piece originally said the Bonafontines were the owners of Kelly’s. They sold the company but continue to own the building. Santa Fe Dining, which runs the company, is not involved in any way with this lawsuit.