STATE OF
FIRST JUDICIAL DISTRICT COURT
NEW MEXICANS FOR FREE ENTERPRISE,
THE
MARK KIFFIN, MARK C. MILLER, MAURICE ZECK,
PEPPERS FOOD & BEVERAGE CO., INC.,
PRANZO, ZUMA CORPORATION,
ROBBIE DAY, JOSEPH HOBACK, and
PINON GRILL AT THE HILTON OF
Plaintiffs,
v. No.
D-101-CV-2003-00468
THE CITY OF
Defendant.
CITY OF
DECLARATORY
JUDGMENT AND INJUNCTIVE RELIEF
The City of
1. As to the allegations of Paragraph 1 the City is without knowledge or information sufficient to form a belief as the truth of the allegations contained therein and therefore denies the same.
2. As
to the allegations of Paragraph 2 the City is without knowledge or information
sufficient to form a belief as the truth of the allegations contained therein
and therefore denies the same except that the City admits that the named
Plaintiffs are businesses licensed by the City of
3. As to the allegations of Paragraph 3 the City is without knowledge or information sufficient to form a belief as the truth of the allegations contained therein and therefore denies the same.
4. As to the allegations of Paragraph 4 the City admits the same.
5. As to the allegations of Paragraph 5 the City admits the same.
6.
As to the allegations of Paragraph
6 the City admits the City of
7. As to the allegations of Paragraph 7 the City denies the same and further states that the ordinance speaks for itself with respect to coverage.
8. As to the allegations of Paragraph 8 the City denies the same.
9.
As to the allegations of
Paragraph 9 the City denies the same but states that Paragraph 9 sets out a
portion of the purposes for the ordinance and further states that the ordinance
speaks for itself as to its purposes.
10. As to the allegations of Paragraph 10 the City admits that it determined the matters cited in subparagraphs a-k but denies that there is no credible empirical evidence relied on by the City to support these statements and further states that the City had credible empirical evidence to support each of the listed statements.
11. As to the allegations of Paragraph 11 the City denies the same and further states the ordinance sets forth the City’s authority.
12. As to the allegations of Paragraph 12 the City admits the same.
13. As to the allegations of Paragraph 13 the City admits the same.
14. As to the allegations of Paragraph 14 the City is without knowledge or information sufficient to form a belief as the truth of the allegations contained therein and therefore denies the same.
15. As to the allegations of Paragraph 15 the City admits that the Paragraph summarizes the claims made by Plaintiffs.
16. As to the allegations of Paragraph 16 that paragraph sets forth a prayer for relief requiring no response and is denied solely on that basis.
17. As to the allegations of Paragraph 17 the City denies the same.
18. As to the allegations of Paragraph 18 the City denies the same.
19. As to the allegations of Paragraph 19 the City realleges and reasserts its Answers to Paragraphs 1 through 18 as if fully set forth herein.
20. As to the allegations of Paragraph 20 the City admits that the ordinance states that, in part, it has the power to enact the ordinance at issue due to the powers conferred upon it by Article X, §§ 6(D) and 6(E) of the New Mexico Constitution.
21. As to the allegations of Paragraph 21 the City admits the same.
22. As to the allegations of Paragraph 22 the City denies the same.
23. As to the allegations of Paragraph 23 the City denies the same.
24. As to the allegations of Paragraph 24 the City denies the same.
25. As to the allegations of Paragraph 25 the City denies the same.
26. As to the allegations of Paragraph 26 the City admits that Section 3-38-1 has been correctly cited.
27. As to the allegations of Paragraph 27 the City denies the same.
28. As to the allegations of Paragraph 28 the City denies the same.
29. As to the allegations of Paragraph 29 the City realleges and reasserts its Answers to Paragraphs 1 through 28 as if fully set forth herein.
30. As to the allegations of Paragraph 30 the City admits the same.
31. As to the allegations of Paragraph 31 that Paragraph is so ambiguous that no rational response can be formed and it is denied on that basis.
32. As to the allegations of Paragraph 32 the City is without knowledge or information sufficient to form a belief as to the truth of the allegations concerning citizenship and therefore denies that paragraph.
33. As to the allegations of Paragraph 33 that paragraph sets forth a legal conclusion requiring no response and is denied on that basis.
34. As to the allegations of Paragraph 34 the City denies the same.
35. As to the allegations of Paragraph 35 the City denies the same.
36. As to the allegations of Paragraph 36 the City denies the same.
37. As to the allegations of Paragraph 37 the City admits that there are businesses that operate in the City of Santa Fe that are not required to possess a business license and are not subject to the requirements of the Minimum Wage Ordinance and that state and federal employers are not subject to the Ordinance.
38. As to the allegations of Paragraph 38 the City denies the same.
39. As to the allegations of Paragraph 39 the City admits the same.
40. As to the allegations of Paragraph 40 the City denies the same.
41. As to the allegations of Paragraph 41 the City denies the same.
42. As to the allegations of Paragraph 42 the City denies the same.
43. As to the allegations of Paragraph 43 the City denies the same.
44. As to the allegations of Paragraph 44 the City denies the same.
45. As to the allegations of Paragraph 45 the City admits the same to the extent of covered employers and employees.
46. As to the allegations of Paragraph 46 the City denies the same.
47. As to the allegations of Paragraph 47 the City admits the same to the extent that the assistance relating to economic development in the form of grants, subsidies, loan guarantees or industrial revenue bonds in excess of $25,000 is received from the City.
48. As to the allegations of Paragraph 48 the City denies the same.
49. As to the allegations of Paragraph 49 the City admits that such contractors with the City who are covered employers with covered employees are required to comply with the wage requirements established by the Minimum Wage Ordinance.
50. As to the allegations of Paragraph 50 the City denies the same.
51. As to the allegations of Paragraph 51 the City denies the same.
52. As to the allegations of Paragraph 52 the City admits the same.
53. As to the allegations of Paragraph 53 the City denies the same.
54. As to the allegations of Paragraph 54 the City admits the same.
55. As to the allegations of Paragraph 55 the City denies the same.
56. As to the allegations of Paragraph 56 the
City realleges and reasserts its
Answers to Paragraphs 1 through 55 as if fully set forth herein.
57. As to the allegations of Paragraph 57 the City admits the same.
58. As to the allegations of Paragraph 58 that paragraph is so ambiguous that no rational response can be formed and it is denied on that basis.
59. As to
the allegations of Paragraph 59 the City admits that citizens of the State of
60. As to
the allegations of Paragraph 60 that paragraph sets forth a legal conclusion
requiring no response and is denied on that basis.
61. As to
the allegations of the first sentence of Paragraph 61 the city denies the
same. The City admits the second
sentence of Paragraph 61 sets out one of the purposes of the Ordinance. The City denies the allegations
of the last sentence of the paragraph insofar as it purports to describe the
likely and foreseeable consequences of, and the rational response to, the
Minimum Wage Ordinance and further avers that based on the most credible and
persuasive evidence, the likely and foreseeable consequence of the Minimum Wage
Ordinance will be to promote the public welfare, health, safety and prosperity
of Santa Fe by ensuring that workers can better support their families through
their own efforts and without financial governmental assistance, and will
benefit employers and the economy as a whole by improving employee
performance, reducing employee turnover, lowering absenteeism, and thereby
improving productivity and the quality of services provided by employees, but
denies knowledge or information sufficient to form a belief as to what actions
these particular plaintiffs will take to protest, undermine, or otherwise
respond to the Minimum Wage Ordinance.
62. As to
the allegations of Paragraph 62 the City denies the same.
63. As to the allegations of Paragraph 63 the City realleges and reasserts its Answers to Paragraphs 1 through
62 as if fully set forth herein.
64. As to the allegations of Paragraph 64 the City admits the same.
65. As to the allegations of Paragraph 65 is so ambiguous that no rational response can be formed and it is denied on that basis.
66. As to
the allegations of Paragraph 66 the City admits that citizens of the State of
67. As to the allegations of Paragraph 67 the City denies the same.
68. As to the allegations of Paragraph 68 the City admits the same with respect to covered employers.
69. As to the allegations of Paragraph 69 the City denies the same.
70. As to the allegations of Paragraph 70 the City admits that a violation of
the Minimum Wage Ordinance can result in criminal prosecution but denies all other
allegations of that paragraph.
71. As to the allegations of Paragraph 71 the City admits the same.
72. As to the allegations of Paragraph 72 the City admits that the Ordinance sets forth no definition of “customarily” but denies all other allegations of that paragraph.
73. As to the allegations of Paragraph 73
the City realleges and reasserts its Answers to
Paragraphs 1 through 72 as if fully set forth herein.
74. As to
the allegations of Paragraph 74 the City admits the same.
58. As to
the allegations of the second paragraph numbered Paragraph 58 the City admits
that increasing wages to ensure a decent and healthy life for workers is one of
the City Council’s stated reasons for passing the Minimum Wage Ordinance.
75. As to
the allegations of Paragraph 75 the City denies the same.
76. As to the allegations of the first sentence of Paragraph 76 the City denies the same. The City denies the allegations of the last sentence of the paragraph insofar as it purports to describe the likely and foreseeable consequences of, and the rational response to, the Minimum Wage Ordinance and further avers that, based on the most credible and persuasive evidence, the likely and foreseeable consequence of the Minimum Wage Ordinance will be to promote the public welfare, health, safety and prosperity of Santa Fe by ensuring that workers can better support their families through their own efforts and without financial governmental assistance, and will benefit employers and the economy as a whole by improving employee performance, educing employee turnover, lowering absenteeism, and thereby improving productivity and the quality of services provided by employees, but denies knowledge or information sufficient to form a belief as to what actions these particular plaintiffs will take to protest, undermine, or otherwise respond to the Minimum Wage Ordinance.
77. As to
the allegations of Paragraph 77 the City denies the same.
78. As to the allegations of Paragraph 78 the City realleges and reasserts its Answers to Paragraphs 1 through 77 as if fully set forth herein.
79. As to the allegations of Paragraph 79 the City admits the same.
80. As to the allegations of Paragraph 80 the City admits the same.
81. As to
the allegations of Paragraph 81, Paragraph 5 of the Complaint has nothing to do
with the stated purpose of the City of
82. As to
the allegations of Paragraph 82 the City denies the same.
83. As to
the allegations of Paragraph 83 the City admits the same.
84. As to the allegations of Paragraph 84 the City admits that this paragraph correctly cites §50-4-29 NMSA 1978.
85. As to the allegations of Paragraph 85 the City denies the same.
86. As to the allegations of Paragraph 86 the City denies the same.
87. As to
the allegations of Paragraph 87 the City denies the same.
88. As to the allegations of Paragraph 88 the City admits the same.
89. As to the allegations of Paragraph 89 the City admits that the New Mexico Minimum Wage Act exempts certain types of employees from the Act but denies all other allegations of that paragraph.
90. As to the allegations of Paragraph 90 the City admits the same.
91. As to the allegations of Paragraph 91 the City admits that the language of § 50-4-22(B) has been correctly cited but denies all other allegations of that paragraph.
92. As to
the allegations of Paragraph 92 the City denies the same.
93. As to the
allegations of Paragraph 93 the City realleges and
reasserts its Answers to Paragraphs 1 through 92 as if fully set forth herein.
94. As to the allegations of Paragraph 94 the City admits the same.
95. As to the allegations of Paragraph 95 the City admits the same.
96. As to
the allegations of Paragraph 96 the City denies the same.
97. As to
the allegations of Paragraph 97 the City denies the same.
98. As to the allegations of Paragraph 98 the City realleges and reasserts its Answers to Paragraphs 1 through
97 as if fully set forth herein.
99. As to
the allegations of Paragraph 99 the City admits the same.
100. As to
the allegations of Paragraph 100 the City denies the same.
101. As to
the allegations of Paragraph 101 the City denies the same.
102. As to
the allegations of Paragraph 102 the City denies the same.
103. As to the
allegations of Paragraph 103 the City denies the same.
104. As to the allegations
of Paragraph 104 the City realleges and reasserts its
Answers to Paragraphs 1 through 103 as if fully set forth herein.
105. As to
the allegations of Paragraph 105 the City admits that the language is correctly
quoted, but denies all other allegations of that paragraph.
106. As to
the allegations of Paragraph 106 the City denies the same.
107. As to
the allegations of Paragraph 107 the City denies the same.
108. As to
the allegations of Paragraph 108 the City denies the same.
109. All
allegations of the Complaint not specifically admitted or denied above are
hereby denied.
FIRST AFFIRMATIVE DEFENSE
On
information and belief, some or all of the Plaintiffs lack standing to bring
some or all of the claims.
WHEREFORE the City prays that the Complaint be dismissed with prejudice, that attorneys’ fees and costs be awarded pursuant to §57-1-17 NMSA 1978, the New Mexico Antitrust Act, and for such other relief as this Court may deem proper.
Respectfully
Submitted:
THE
CITY OF
__________________
Bruce
Thompson
City Attorney
(505) 955-6511
at NYU School of Law
161 Avenue of the
(212) 998-6328
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Answer was
mailed this ____ day of ________, 2003 by regular first class mail, postage
prepaid to:
GREGORY L. BIEHLER
ZACHARY S. RIGDON
Attorneys for Plaintiffs
_____________________________
Bruce Thompson