June 1, 2017

Judge strikes down attempt to roll back ABQ min wage increase

An Albuquerque district judge rejected challenges to the city’s minimum wage ordinance this week, saying it was simply too late to reverse something voters decided on and approved nearly five years ago.

“Each and every exercise of voters’ rights and expression of voters’ choice involves our inherent and cherished rights and is entitled to the same degree of deference and protection whatever its source,” Judge Alan Malott wrote in his Wednesday decision.

His decision came in a wage-theft lawsuit alleging that the former owners of Kellys Brew Pub, including Dennis Bonafontine, violated the city’s minimum wage ordinance by making workers pay $3 per hour from tips to the owners.

The current owners of Kellys Brew Pub did not challenge the minimum wage and have not been named in the suit.

The allegations date back to when the city’s tipped minimum wage had just spiked from $2.13 per hour to $5.16 per hour as a result of a 2012 city ballot initiative. That initiative, which passed with 66 percent of city voters who cast ballots, also increased the regular minimum wage from $7.50 an hour to $8.50 an hour.

The former Kellys Brew Pub workers are being represented by the Center on Law and Poverty as well as the Youtz & Valdez law firm. Attorney Geoffrey Rieder is representing Bonafontine and other former owners.

In the lawsuit, Bonafontine’s attorneys argued that the use of a summary question instead of printing the entire ordinance change on the 2012 ballot, coupled with some typographical errors, should have invalidated the wage increase.

This argument was not timely, Malott said in his ruling, and should have been filed within 30 days of the certified election result, per city code. But even if it was timely, Malott indicated it wouldn’t have made a difference. Malott said the two arguments from Bonafontine’s attorneys “are not sufficiently serious failings to warrant overturning 66 [percent] of participating voters.”

Bonafontine also claimed that the minimum wage statute amounted to illegal “logrolling,” or cramming too many unrelated issues on the 2012 ballot question. Such an argument, Malott ruled, is “inapplicable” to city elections under the state constitution.

As a whole, Mallot even called Bonafontine’s arguments to strike the minimum wage and dismiss the lawsuit against him “fatally flawed.”

Meanwhile, the allegations against Bonafontine and others who used to run Kellys Brew Pub can continue in court.

Another lawsuit by the New Mexico Association of Commerce and Industry with similar challenges against the city’s minimum wage is also before district court.

Read the judge’s ruling below:

(80) Order-Ds MTD Denied-2017-05-30 by New Mexico Political Report on Scribd