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.
PLAINTIFFS’ RESPONSE TO DEFENDANT CITY OF SANTA FE’S
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The City is not entitled to summary judgment for any of the reasons cited in its motion. The City is not entitled to summary judgment as a matter of law because 1) the ordinance violates Article X, §6 of the Constitution of New Mexico by attempting to enact a law which governs civil relationships; 2) the general laws of the state expressly deny the city the authority to enact the ordinance; 3) the ordinance violates the Equal Protection Clause of the State Constitution; 4) the ordinance violates the Due Process Clause of the State Constitution; and 5) the ordinance violates Article II, §20 of the New Mexico Constitution by taking Plaintiffs’ private property.
Plaintiffs
do not significantly dispute the history of the ordinance as set forth in
Defendant’s “Statement of Undisputed Material facts”. The history of the ordinance and the identity
of the speakers supporting or opposing the ordinance are irrelevant. The ordinance violates the several sections
of the Constitution of the State of
FACTS
Facts as alleged by
the City of
1. For purposes of this Motion for Summary
Judgment, Plaintiffs do not dispute the allegations contained in paragraphs 1,
2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 18, 19, 21, 22, 27, 28, 29, and 30 of the
City’s motion. These allegations state
the history of the ordinance and attempt to establish that the ordinance is
supported by low income workers, union representatives and the City
itself. These allegations are immaterial
in that they do not address the ordinances’ conflict with the Constitution of
the State of
2. With respect to the allegations contained in paragraph 4 of the City’s “Undisputed Material Facts,” Plaintiffs deny that the Committee considered materials on the ordinance’s fiscal impact on private industry. (See Exhibit D, DA-399, to City’s Motion for Summary Judgment where Roundtable stops work on the study, and Exhibit J, DA 242-260).
3. Plaintiffs deny the allegations
contained in paragraph 5 of the “Undisputed Material Facts” insofar as they are
vague as to which version of the ordinance did not apply to private
business. Plaintiffs admit that the
4. With respect to the City’s “Undisputed
Material Fact number 11,” Plaintiffs state that the City heard no testimony
concerning the working conditions in
5. With respect to the City’s “Undisputed Material Fact number 12,”
a. The City did not receive and review
information concerning business characteristics in
b. The economic research on the impact of minimum wage in other studies was limited to those cities that have adopted wage ordinances that apply to that city itself and to its contractors. The record is void of any economic research pertaining to the impact of the ordinance on private business in other cities. Other cities have attempted to impose wage ordinance on private ordinance but those ordinances have been invalidated.
6. Plaintiffs deny the allegations contained in paragraph 17 of the “Undisputed Material Facts” insofar as they are vague as to which version of the ordinance applied to private business with ten or more employees and non-profits with 25 or more employees. That version of the ordinance was not adopted and the allegation is irrelevant.
7. With respect to paragraph 20 of the City’s “Undisputed Material Facts,” Dr. Bowles presented no objective data and only spoke in general terms.
8. With respect to paragraph 23 of the City’s “Undisputed Material Facts,” the fiscal impact report only considered the fiscal impact on the City. It failed to consider the fiscal impact on private business. (See Exhibit D, DA-399, to City’s Motion for Summary Judgment where Roundtable stops work on the study and Exhibit J, DA 242-260).
9. With respect to the testimony of Robert Pollin, Ph.D., Economics, as contained in paragraph 24, a comparison of gains to low income workers to costs to business does not confer legality on the ordinance. Further only 8.7% of the businesses will bear the additional expense. (See Exhibit N, DA-448 and Exhibit X, DA-725 to the City’s Motion for Summary Judgment).
10. With respect to paragraph 25, few businesses supported the ordinance and whether they did or not is irrelevant.
11. With respect to the City’s “Undisputed
Material Fact” number 26, Plaintiffs agree that David A. Macpherson, Ph.D.,
Economics, testified that the increased wage would result in 154 workers being
laid off by private businesses in
12. With respect to the allegations in paragraph 31, Plaintiffs state that the New Mexico Minimum Wage Act preempts the ordinance and the state legislature did not need to preempt it again. The allegation is immaterial and irrelevant.
Plaintiffs’ Undisputed Material Facts
13. Plaintiff
14. Plaintiffs, The Pinon Grill, Pranzo, Zuma Corporation, and Robbbie Day pay all or a portion of the medical insurance premiums of some of their employees. The Pinon Grill, Pranzo, Zuma Corporation, and Robbie Day also give their employees paid sick leave and paid vacations. (See Affidavit of Ron Rockline, attached hereto as Exhibit 2; Affidavit of Gregory Atkin, attached as Exhibit 3; Affidavit of Robbie Day, attached as Exhibit 4; and Affidavit of Susan Murashima attached as Exhibit 5).
15. Prior to enactment of the ordinance, Plaintiff Zuma Corporation had a rate of return of approximately 35%. Once the ordinance goes into effect, it will have a rate of return of less than 5 %. A rate of return of 5% is substantially less than Zuma Corporations’ investment backed expectations. (See Affidavit of Susan Murashima, attached as Exhibit 5).
16. Prior to enactment of the ordinance, Plaintiff Robbie Day had a rate of return on investment of 8%. Once the ordinance goes into effect, he will have a negative rate of return of 2% (-2%). A rate of return of negative 2% represents a 10% decrease in his rate of return and will compel him to close his businesses. A negative 2% rate of return interferes with his investment backed expectations. (See Affidavit of Robbie Day attached as Exhibit 4).
17. Prior to enactment of the ordinance, Plaintiff Pinon Grill had a rate of return on investment of 22.5%. Once the ordinance goes into effect, it will have a rate of return of 5.29%. Plaintiff Pinon Grill will lose 17.21% of its rate of return. A rate of return of 5.29% interferes with the Pinon Grill’s investment backed expectations. (See Affidavit of Ron Rockline attached as Exhibit 2).
18. Prior to enactment of the ordinance, Plaintiff Pranzo had a rate of return on investment of 29%. Once the ordinance goes into effect, it will have a rate of return of 19%. Plaintiff Pranzo will lose 10% of its rate of return. A rate of return of 19% interferes with Pranzo’s investment backed expectations. (See Affidavit of Gregory Atkin attached as Exhibit 3).
19. The national average rate of return for a restaurant is 30.60%. (See Affidavit of Tom Burrage, C.P.A., attached as Exhibit 6).
20. According to the City, the ordinance will require less than 8.7% of the businesses to pay the higher wages. Those businesses employ as many as 57.29% of the employees within the area. (See Exhibit N, DA-448 and Exhibit X, DA-725 to the City’s Motion for Summary Judgment).
21. One-fifth of every dollar in wage increases will go to low-wage employees in families earning more than $40,000 per year. (See The Effects of the Proposed Santa Fe Minimum Wage Increase, Dr. David Macpherson, February 2003, P. ii, attached as Exhibit 7[1]).
22. 34.9% of the affected workers are under 24 years of age. (See The Effects of the Proposed Santa Fe Minimum Wage Increase, Dr. David Macpherson, February 2003, P. 2, and Table 1, P. 10, attached as Exhibit 7).
23. 39.4 % of the affected workers have not graduated from high school. (See The Effects of the Proposed Santa Fe Minimum Wage Increase, Dr. David Macpherson, February 2003, P. 2, and Table 1, P. 10, attached as Exhibit 7).
24. 41.9% of the affected workers have never been married and 64.0% of the affected workers are Hispanic. (See The Effects of the Proposed Santa Fe Minimum Wage Increase, Dr. David Macpherson, February 2003, P. 2, and Table 1, P. 10, 11, attached as Exhibit 7).
25. Only 18.8% of the affected workers are in families with an income less than $12,500. Over one-quarter of the affected workers are in families with an income of $40,000 or more. (See The Effects of the Proposed Santa Fe Minimum Wage Increase, Dr. David Macpherson, February 2003, P. 2, Tables, P. 11, attached as Exhibit 7).
26. Approximately two-fifths (40%) of the
affected workers are part-time employees while only 16.7 % of
27. On the night of
28. The ordinance will cause employers to lay off employees and select new employees that are better qualified and more experienced. (See An Analysis of the Proposed Santa Fe Living Wage Ordinance by Dr. Allen M. Parkman, Ph.D., J.D., P. 3, attached as Exhibit 8).
29. The higher wages offered in Santa Fe will attract more and often better qualified workers from adjacent markets such as Albuquerque, Espanola, Los, Alamos, and Las Vegas. The more qualified workers from adjacent markets will displace the less qualified local workers. (See An Analysis of the Proposed Santa Fe Living Wage Ordinance by Dr. Allen M. Parkman, Ph.D., J.D., P. 4, attached as Exhibit 8).
30. Approximately 80% of the non-government jobs in the Santa Fe Metropolitan Statistical Area are wholesale/retail trade and services. If low skilled workers in those jobs are displaced, they will have few alternative industries to enter. (See An Analysis of the Proposed Santa Fe Living Wage Ordinance by Dr. Allen M. Parkman, Ph.D., J.D., P. 5, attached as Exhibit 8).
31. Many of the beneficiaries of the ordinance would not come from low-income families. (See An Analysis of the Proposed Santa Fe Living Wage Ordinance by Dr. Allen M. Parkman, Ph.D., J.D., P. 6, attached as Exhibit 8).
32. Higher quality workers will replace low skilled workers in the job market. The most vulnerable of Santa Fe’s citizens will be to last to be employed. (Testimony of Kristin Lopez Eastlick, Director of policy analysis for the Employment Policies Institute in Washington, D.C., P DA-691-693, Exhibit X to the City’s Motion for Summary Judgment).
STANDARD ON SUMMARY
JUDGMENT
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶¶ 7, 122 N.M. 537, 928 P.2d 263. "In deciding whether summary judgment is proper, a court must look to the whole record and view the matters presented in the light most favorable to support the right to trial on the merits." Cunningham v. Gross, 102 N.M. 723, 725, 699 P.2d 1075, 1077 (1985). Summary judgment is a drastic remedy to be used with extreme caution. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 12, 738 P.2d 129, 130 (Ct. App.1987). The nonmoving party need not convince the trial court that the nonmoving party has evidence to "support all the elements of his case." The nonmoving party must merely show that "one or more factual issues appear from the materials submitted to the court in connection with the motion" are contested. Eoff v. Forrest, 109 N.M. 695, 699, 789 P.2d 1262, 1266 (1990). Even if the materials submitted to the court do not establish all the elements of the claim, it is enough if the materials are "sufficient to give rise to several issues of fact." Id. at 700, 789 P.2d at 1267. In short, " [s]ummary judgment should not be granted when material issues of fact remain or when the facts are insufficiently developed for determination of the central issues involved." Vieira v. Estate of Cantu, 1997-NMCA-042, ¶¶ 17, 123 N.M. 342, 940 P.2d 190. Further, summary judgment is only appropriate if the moving party is entitled to judgment as a matter of law. Where movant is not entitled to judgment as a matter of law, he is not entitled to summary judgment.
POINT I
The Ordinance Violates Article X, Section 6 of the Constitution
of the State of
The City tells the Court that it need not address the question of whether the ordinance constitutes a “civil or private law governing civil relationships” within the meaning of Art. X, §6D of the Constitution of New Mexico. The City then asserts that the ordinance is not a law governing “civil relationships” and that the ordinance is incident to the exercise of an independent municipal power. It is noteworthy that the City cites no authority for either proposition. The City’s somewhat inconsistent arguments ignore a well established and time-tested body of jurisprudence established by appellate courts in 15 different states across this country, including New Mexico.
The City also asks the court to subjugate the Constitution of New Mexico to its municipal charter and other state legislation. If the Court were to concede to the City’s request to skip over the “civil relationship” question, and hold the City’s charter and state legislation supreme over the Constitution, it would do great harm to the underlying principles of jurisprudence and violate the principles stare decisis. Ignoring the “civil relationship” question in not in accord with legal precedent. Further, all municipal ordinances must give way to the Constitution.
A. The
Ordinance Violates Article X, §6 of the New Mexico Constitution by Purporting
to Govern Civil Relationships Between Private Employers and Employees.
Article X of the Constitution of the State of New Mexico creates county and municipal corporations. Article X, §6 provides for the creation of home rule municipalities. Paragraph D of that section defines the powers a properly created home rule municipality may exercise. Article X, § 6D provides:
A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter. This grant of powers shall not include the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent municipal power, nor shall it include the power to provide for a penalty greater than the penalty provided for a petty misdemeanor… (emphasis added).
Thus, pursuant to the New Mexico Constitution, the City’s authority to enact ordinances must not transgress laws governing civil relationships. The question before this Court is whether the ordinance transgresses the prohibition against enacting laws pertaining to civil relationships. Plaintiffs respectfully contend that it does.
The City of Santa Fe adopted a charter on December 9, 1997, and it is therefore a “home rule” municipality. Santa Fe Charter, Article 1. Yet, Ordinance 28 violates the very section of the Constitution that allows Santa Fe to adopt its Charter. It also violates the Equal Protection and Due Process clauses of Article II, §18 of the Constitution, Article II, §20 of the New Mexico Constitution, The Minimum Wage Act, The Antitrust Act, and The Eminent Domain Act, as more particularly addressed later in this brief.
1. New
Mexico and Other Jurisdictions Define “Civil Relationship” as Contractual Relationships Which Includes
Employer/Employee Relationships
Even though numerous other states have construed “civil relationship,” only one reported New Mexico case construes the term. In Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322, (1980), parties who had lived together in a nonmarital relationship brought suit seeking return of property. The trial court found that during their period of cohabitation, they “pooled their financial resources for their mutual benefit, shared household chores and expenses, bought property for joint use and ownership, and acquired personal property which they agreed would be jointly owned.” 95 N.M. at 1, 617 P.2d at 1322. Upon dissolution of the relationship, Mr. Dominguez claimed that there was no agreement to pool resources or jointly own property. The Court disagreed.
It stated that marriage is a form of civil contract and, relying on Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976), recognized that marriages, contracts between cohabiting adults, and contracts between business associates are “civil relationships.” Thus, New Mexico recognizes that parties to a contract share the legal status of a “civil relationship.”
The Constitutions of many states contain provisions identical or similar to Article X, §6D of the New Mexico Constitution. Many of those states have construed “civil relationship” and, while the context of each case varies, every state that has looked at the issue has concluded that an employer/employee relationship is a “civil relationship.” The Louisiana Supreme Court recently interpreted “civil relationship” to include employer/employee relationships in the very context at issue here[2]. In New Orleans Campaign for a Living Wage, et al. v. City of New Orleans, et al. Consolidated with The Small Business Coalition to Save Jobs, Et. Al. v. the City of New Orleans, No. 2002-CA-0991 (La. 9/4/02), 825 So.2d. 1098., the Louisiana Supreme Court struck down a City of New Orleans ordinance which purported to require private employers to pay their employees a minimum wage of $6.15 per hour, $1.00 above the federal minimum wage.
Like New Mexico’s Constitution, Article VI, §9.(A) of the Louisiana Constitution prohibits local governmental subdivisions from enacting ordinances governing civil relationships. Article VI, §9.(A) of the Louisiana Constitution provides in pertinent part:
Section 9.(A) Limitations. No local governmental subdivision shall (1) define and provide for the punishment of a felony; or (2) except as provided by law, enact an ordinance governing private or civil relationships. (emphasis added).
In his concurring opinion and relying on a long line of cases, Chief Justice Cologero stated specifically, “[p]lainly, the contract of labor between an employer and employee is a private and civil relationship.” Id at P. 2 of concurring opinion. See also Hughes v. Goodreau, No. 2001 CDA 2107, (La.App.1 Cir. 12/31/02), 836 S. 2d 649, 655, where the court held, “The employment relationship is both a private and civil relationship; it is a private relationship because the parties to the relationship are private individuals, and it is a civil relationship because it is a relationship established by the civil law.”
A cursory review of reported cases in other states reveals that, in addition to New Mexico and Lousiana, the following states define contracting parties as sharing a “civil relationship:” Massachusetts, California, North Carolina, Delaware, Illinois, Georgia, Indiana, Iowa, Missouri and New York[3]. Many more states have held that husband and wife share a civil relationship.
2. The Ordinance is Not Incident to the Exercise of an
Independent Municipal Power
A city’s “independent municipal power” is determined by reference to its enabling legislation. In New Mexico the power of a home rule municipality derives from Article X, §6, Chapter 3, Article 15 of the Laws of New Mexico and the general laws of the state. Article X, § 6D of the Constitution of New Mexico provides that a home rule municipality “may exercise all legislative powers and perform all functions not expressly denied by general law or charter.” (emphasis added). A city cannot through its charter grant itself more power than contemplated in the Constitution. “[A] municipality can do no act for which authority is not expressly granted or which may not be reasonably inferred from those conferred upon it.” Baker v. State ex rel. Napoleon, 39 N.M. 434, 49 P.2d 246, (1935). “Counties, cities, and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides. They have no inherent jurisdiction to make laws or to adopt governmental regulations, nor can they exercise any other powers in that regard than such as are expressly or impliedly derived from their charters or other statutes of the State.” Mount Pleasant v. Beckwith, 100 U.S. 514, 524, 25 L.Ed.699 (1879). “It is well settled that municipalities have no inherent right to exercise police power; their right must derive from authority granted by the State.” Temple Baptist Church, Inc., v. City of Albuquerque, 98 N.M. 138, 646 P.2d 565 (1982) citing City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964). The Charter of the City of Santa Fe explicitly recognizes this principle. Section 1.02B of the Charter, titled, “Acceptance of devolution of powers,” states:
By enacting this Charter pursuant to the provisions of Article X, Section 6 of the New Mexico Constitution, and pursuant to the New Mexico Municipal Charter Act, the City of Santa Fe accepts the full and complete devolution of home rule powers granted in the constitution and the laws of the State of New Mexico to each municipality and adopts a municipal power. Accordingly, the city shall have all powers possible for a home rule municipality to possess under the New Mexico Constitution and the laws of the State of New Mexico, including all implied powers and all powers necessary to implement all express powers of the city, as if each and every one of the city’s implied powers were fully, completely and expressly enumerated in this Charter.
In addition to the constitutional limitations and prohibitions, New Mexico’s Legislature, in accordance with its authority, enacted statutes pertaining to the powers of home rule municipalities. In NMSA 1978, §3-15-7, the Legislature repeated the language in the Constitution and specifically prohibited municipalities from adopting charters inconsistent with the Constitution itself. In NMSA 1978, §3-15-13, the Legislature paraphrased the language of Art. X, §6D and E, again stating that a charter municipality shall not exercise powers or perform functions denied charter municipalities by general law or charter.
In NMSA 1978, §3-17-1, et seq., and NMSA 1978, § 3-18-1, et seq, the Legislature specified the powers nonhome rule municipalities have and it specified the proper purpose of ordinances. None of the enumerated powers and none of the enumerated purposes for ordinances allow municipalities to regulate the employer/employee relationship, engage in price fixing or set a minimum wage. In fact, regulation of trade and price fixing is specifically prohibited in the Anti Trust Act, NMSA 1978 §57-1-1, et. seq., and the employer/employee relationship is specifically regulated in Chapter 50 of the Laws of New Mexico.
Many Courts of many other states have examined a municipality’s attempt to enact ordinances affecting “civil relationships” under the guise of their independent municipal power. Those courts look to the powers given to municipalities by the Constitution or State Legislature. Nationwide, many of the cases involve typical municipal powers such as the duty and authority to maintain landfills, the authority to regulate water run-off, the authority to enact zoning ordinance, the authority to enact dog-bite ordinances, the authority to limit outdoor advertising, particularly as they pertain to advertising of adult bookstores, etc. With the exception of rent control laws[4], no municipality has endeavored to fix the price of private labor or otherwise engage in price fixing. Therefore, rent control cases that began to appear in the 1970s, provide the most instruction. They are similar to this matter because they typically involve home rule municipalities attempting to require private persons to relinquish interests in their private property under the guise of “public necessity.”
In Marshall House, Inc. v. Rent Review and Grievance Board of Brookline, 357 Mass. 709, 260 N.E.2d 200, 205 (1970), several property owners challenged a rent control bylaw as being a private or civil law governing civil relationships that was not incident to an exercise of independent municipal power. The Court first construed “private or civil law governing civil relationships,” and stated:
The term ‘private or civil law governing civil relationships is broad enough to include law controlling ordinary and usual relationships between landlords and tenants. The language is not so confined as clearly to apply only to general legislation like the Uniform Commercial Code, or the laws governing marriage or intestate succession to property. [citations omitted]
Next, the court determined that the
ordinance was not “incident to an exercise of an independent municipal
power.” The Court rejected the City’s
argument that rent control is a purely local function and agreed that a city
could adopt by-laws requiring landlords to take steps to protect tenants
against injury from fire, bad lighting and similar hazards as an exercise of an
independent municipal power. However, it
could not regulate the principal aspects of the landlord/tenant relationship. It held that the rent control ordinance did
not arise out of an independent municipal power and the bylaw was void[5].
Similarly, in City of Bloomington v Chuckney, 165 Ind.App. 177, 331 N.E.2d 780 (1975), the Court of Appeals for the State of Indiana construed an identical clause appearing in paragraph IC 1971, 18-1-1.5-19 (a) in the Indiana statutes. The Court stated:
Paragraph (a) is a recognition of the fact that laws governing relationships between private entities are more properly the subject of statewide legislation which would produce a desired uniformity in treatment of such interests, than municipal legislation which could result in an endless variety of private law. For example, a city should not be able to enact its own separate law of contracts or domestic relations since these areas are unsuited to less than statewide legislation.
331 N.E. 2d at 783. The ordinance dictated the terms of the landlord-tenant relationship including but not limited to: the amount of the security deposit landlords could require; the effect of the landlords' failure to supply and inventory and damage list; entry into the premises; etc. The court held that “Many of these terms are wholly unrelated to city housing and safety codes and cannot, therefore, be incident to the city police powers in those areas.” 331 N.E 2d at 783. The Court concluded that “[t]he city exceeded its powers as a municipal corporation under Indiana law in passing those sections of Ordinance 72-76 held invalid by the trial court.” 331 N.E. 2d at 784. See also Schwartz, The Logic of Home Rule and the Private Law Exception, 20 U.C.L.A. L. Rev. 671, 695 (1972-1973). The common theme in these cases is that an ordinance is “incident to the exercise of an independent municipal power” if it protects the health, safety and welfare of its inhabitants. “Health, safety, and welfare” do not include imposing prices on contracting parties. A City may not encroach on matters which are the subject of uniform statewide legislation under the guise of its police power.
Section 28-1.5A(4) of the ordinance is clearly unlawful under Article X, §6 of the Constitution of New Mexico. It seeks to govern civil relationships. New Mexico and numerous other states construe “civil relationship” to include employers and employees, domestic partners, parties to contracts, business partners, landlords and tenants, and agents. The relationship between employer and employee is clearly a form of “civil relationship” and the Constitution of the State of New Mexico specifically prohibits a home rule municipality from enacting laws governing that relationship. Further, the ordinance is not incident to the exercise of an independent municipal power. Cases construing whether an ordinance is “incident to the exercise of independent municipal power” uniformly define those powers as advancing safety issues (such as police protecting and lighting requirements), health issues (such as regulation of landfills and water runoff) and welfare issues (such as zoning and outdoor advertising[6]). An ordinance requiring private employers who employ more than 25 workers (that are not related to persons possessing an ownership interest in the business by blood or marriage and do not attend and work for accredited schools) to pay those workers $10.50 per hour is not a matter of safety, health, or welfare of the public.
POINT II
The General Laws of New Mexico Expressly Deny the City
the Authority to Enact the Ordinance
Article X, §6D of the Constitution of New Mexico also prohibits a home rule municipality from enacting laws that conflict with the general laws of the state. It provides in pertinent part:
A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter. (emphasis added)
Ordinance 28 conflicts with numerous general laws of the state and is therefore unconstitutional. Specifically, the Ordinance conflicts with numerous provisions of the New Mexico Minimum Wage Act (NMSA 1978, §§ 50-4-1 et seq.), the New Mexico Antitrust Act (NMSA 1978, §§57-1-1 et seq.) and the Eminent Domain Act (NMSA 1978, §§42-1-1, et seq.)
In Qwest Corp. v. City of Santa Fe, 224 F. Supp.2d 1305 (2002), the Federal Court for the District of New Mexico stated the test for determining whether a state law is a general law and whether the general law preempts a municipal ordinance. The Court stated the test as follows:
[T]he first question that must be answered is whether the state law at issue is a general law. A “ ‘general law’ [is] a law that applies generally throughout the state and is of statewide concern as contrasted to ‘local’ or ‘municipal’ law’.” Bonem, 114 NM. at 632, 845 P.2d at 154 (quoting Apodaca, 86, N.M. at 521, 525 P.2d at 881)
. . .
The second question that must be answered to determine whether a state law preempts a home-rule municipality’s ordinance is whether the state law at issue expressly denies the power of home-rule municipalities to regulate in that area. (citations omitted). A state law need not use the exact words, ‘expressly denie[d],’ in order to preempt a home-rule municipality’s ordinance. “[W]ords or expressions which are tantamount or equivalent to such a negation are equally effective.” (citations omitted) (emphasis added).
244 F. Supp2d at 1320. Thus, a law is a general law if it applies throughout the state and is of statewide concern. “[A]ny New Mexico law that clearly intends to preempt a governmental area should be sufficient without necessarily stating that affected municipalities must comply and cannot operate to the contrary.” Casuse v. City of Gallup, 106 N.M. 571, 573, 746 P.2d 1103 (1987) citing Westgate Families v. County Clerk of Los Alamos, 100 N.M. 146, 667 P.2d 453 (1983) (emphasis added.) In order to preempt the area of law, the statute need not contain a declaration such as “Municipalities are expressly denied the power to enact ordinances setting minimum wages, governing the employee/employee relationship or fixing prices.”
A. The
Ordinance is Preempted by The Minimum Wage Act
In the New Mexico Minimum Wage Act, NMSA 1978, §§50-4-1 et seq., New Mexico enunciated that public policy required it to set compensation standards for all workers in the state. In so doing, the legislature pre-empted any municipality from enacting laws on this issue. NMSA 1978, §50-4-19, titled “Declaration of state public policy,” provides:
It is declared to be the policy of this act (1) to establish minimum wage and overtime compensation standards for all workers at levels consistent with their health, efficiency and general well-being, and (2) to safeguard existing minimum wage and overtime compensation standards which are adequate to maintain the health, efficiency and general well-being of workers against the unfair competition of wage and hours standards which do not provide adequate standards of living. (emphasis added).
The act is intended to apply to New Mexico workers as a whole, as a statewide regulation of minimum wages. The act specifically declares that the state minimum wage is “adequate to maintain the health, efficiency and general well-being of workers.” Thus the state has spoken. The State Legislature has determined that its minimum wage of $5.15 per hour (NMSA 1978, §50-4-22) is adequate to maintain the health, efficiency and general well-being of workers. It is noteworthy that the legislature very recently increased the wage[7] to $5.15 to conform to the federal minimum wage. In doing so, it established for the state that a uniform minimum wage of $5.15 is a matter of state wide concern over which it has spoken.
“All workers” is tantamount to a denial of power to any other regulatory authority. If the legislature had intended that municipalities or home rule municipalities could enact their own minimum wage laws, the statute would say, “all workers except those residing in home rule municipalities.” The statute does not say that; the Legislature clearly intended that the state minimum wage apply to all workers all over the state. If individual municipalities, regular or home rule, were allowed to enact their own minimum wage laws, there would be tremendous discrepancy across the state and individuals would be denied equal protection of the laws based on their city of employment. As observed by the Court in City of Bloomington v Chuckney, (supra), such matters are more properly the subject of statewide legislation because they require uniformity in treatment. An endless variety of private law would lead to chaos.
The setting of
wages is a matter of statewide concern.
To ask the question posited in Bonem,
(supra): “Of what concern is it statewide that the City of Santa Fe may
require private businesses that employ more than 25 persons to pay a minimum
wage other than the wage set by the state?”
The answer is simple. Citizens of
this state have the right and expectation that all governmental entities will
act within the confines of the Constitution of the State. Citizens of this state have the right and
expectation that cities will not disregard the Constitution of the State of New
Mexico by enacting laws that control their private business relationships; that
impose arbitrary classifications on employers based on the number of workers
they employ; that grant privileges to employees that work for businesses with
more than 25 employees while depriving those privileges to employees that work
for business with less than 25 employees; that confiscate a businesses’ profits
and give them to low income workers as a substitute for the social services
which properly should be born by the City as a whole.
The Ordinance also conflicts with other provisions of the Minimum Wage Act as follows:
Employment of Handicapped Workers. In NMSA 1978, §50-4-23, the legislature has stated that, as a matter of public policy, individuals “whose earning or productive capacity is impaired by physical or mental deficiency or injury” should nonetheless be given the opportunity for employment. Therefore, upon proper application and certification, employers may employ handicapped workers at a lower wage, not less than 50% of the minimum wage. The Ordinance makes no exception for employment of individuals with impaired productive capacity. As a result, employers will be less likely to hire handicapped individuals. The ordinance violates the public policy set forth in NMSA 1978, §50-4-23, and is void.
Definition of Employer. NMSA 1978, §50-4-21B specifically defines “employer” to include individuals, partnerships, association, corporation, businesses trusts, legal representative, or any organized group of persons employing one or more employees at any one time, acting in the interest of an employer. The Ordinance contains no definition of “employer.” Rather, 28-1.5A (4) provides in pertinent part that the following shall pay the minimum wage:
Businesses required to have a business license or business registration from the city of Santa Fe who, during any given month, have twenty-five (25) or more workers, or in the case of not-for-profit organizations, who have twenty-five (25) or more workers shall pay the minimum wage to their workers for all hours worked within the city of Santa Fe that month. (emphasis added)
The State Minimum Wage Act requires employers who employ one or more employees to pay the state minimum wage whereas the ordinance pertains to “businesses” whom employ more than 25 workers. The Ordinance conflicts with the State Minimum Wage Act and is void.
Definition of Employee. NMSA 1978, §50-4-21C, states that employee includes all individuals employed by any employer except the following summary:
(1) individuals employed for domestic service in a private home
(2) individuals employed in a bona fide executive, administrative or professional capacity and foreman, superintendents and supervisors;
(3) individuals employed by the United States or by the state or any political subdivision thereof;
(4) individuals engaged in the activities of an educational, charitable, religious or nonprofit organization working on a voluntary basis and individuals engaged in rehabilitation by the same organization even if the individual receives a stipend;
(5) salesmen or employees compensated on a piecework, flat rate or commission basis;
(6) primary and secondary school students working after school or on vacation;
(7) registered apprentices;
(8) children under the age of 18 who are not students in a primary, secondary vocational or training school;
(9) persons under the age of 18 who are not graduates of a secondary school;
(10) persons employed by ambulance services;
(11) G.I. bill trainees while under training;
(12) Seasonal employees of any employer holding a valid certificate from the state labor commissioner;
(13) Employees employed in agriculture under certain circumstances;
(14) Employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by the organization for mentally retarded, emotionally or developmentally disabled persons; and
(15) The Minimum Wage Act applies to a differently defined set of “employees” than the ordinance.
In contrast the ordinance, 28-1.5 A (4), excludes a completely different class of individuals including persons related by blood or marriage to any person who posses an ownership interest in the business that employees them. The ordinance, 28-1.5 A (4), provides in pertinent part:
For purposes of this paragraph, worker shall not include any person who is related by blood or by marriage to any person who may have or possess any ownership interest in the business that employs them. For purposes of calculating the number of workers under this ordinance and identifying persons entitled to be paid the minimum wage, all individuals employed by or providing work to the business for compensation, whether on a part-time[8], full-time or temporary basis, during a given month shall be counted as a worker. This definition shall include contingent or contract workers, and persons made available to work through the services of a temporary services, staffing or employment agency or similar entity. However, interns working for a business for academic credit in connection with a course of study at an accredited school, college or university or persons working for an accredited school, college or university while also attending that school, college or university, or persons working for a business in connection with a court-ordered community service program such as teen court or workers who are in an apprenticeship program in a 501C(3) organization (such as the Santa Fe Opera) shall not be counted as a worker for such purposes. (emphasis added)
The State Minimum Wage Act does not exclude employees related by blood or marriage from the minimum wage. The State Minimum Wage Act does not exclude contingent or contract workers[9] from the minimum wage. The State Minimum Wage Act does not exclude interns working for a business for academic credit at a college or university while also attending that school from the minimum wage. Those provisions of the Ordinance which violate state law are void.
Exceptions for tipped employees. NMSA 1978, §50-4-22B, as amended in Chapter 262 §1, Laws of 2003, provides that employees “who customarily and regularly receive more than thirty dollars ($30.00) a month in tips shall be paid a minimum hourly wage of two dollars twelve and one-half cents ($2.125). The employer may consider tips as part of wages, but such a wage credit shall not exceed fifty percent of the minimum wage.” In contrast, the Ordinance, 28-1.5 B., provides:
For workers who customarily receive more than $100 per month in tips or commissions, any tips or commissions received and retained by a worker shall be counted as wages and credited toward satisfaction of the minimum wage provided that, for tipped workers, all tips received by such workers are retained by the workers, except that the pooling of tips among workers shall be permitted.
Under the ordinance, it is possible that a worker who earns tips totaling more than $10.50 per hour be paid no wage whatsoever. 28-1.5 B. conflicts with NMSA 1978, §50-4-22B and it is therefore void.
Exceptions for employers who provide items to employees. NMSA 1978, §50-4-22A provides that employers that provide food, utilities, supplies or housing to an employee who is engaged in agriculture may deduct the reasonable value of items furnished from the minimum wage paid. The Ordinance contains no such provision and is therefore in conflict with the general law.
Enforcement Mechanisms. NMSA 1978, §50-4-26 of the Minimum Wage Act states that the state labor commissioner shall enforce and prosecute violation of the act by instituting an action in the district court of the county where the offending employer resides or maintains his business. The district attorney of the county may assist in the prosecution.
The Ordinance’s enforcement mechanism not only conflicts with the state law but also turns the concept of due process on its head as more thoroughly discussed in Point IV of this brief. The ordinance provides that the city manager or his designee shall investigate violations of the ordinance. It also contemplates that he conduct some sort of proceeding to conclude whether a violation has occurred. After he has investigated the alleged violation and held a hearing, he “may issue orders to the employer appropriate to effectuate the complaining person’s rights, including but not limited to back pay and reinstatement. The city manager also has the power to order termination of any and all economic benefit derived by any offending party from the city and has the power to revoke the employer’s business license or registration.” (28-1.8A.). Thus the city manager is the investigator, judge, and executioner. In addition to being a blatant violation of due process guaranteed by the State and Federal Constitutions, 28-1.8A violates the Minimum Wage Act and is therefore void.
Criminal Penalty Provision. NMSA 1978, §50-4-26A provides that any
employer who violates the Minimum Wage Act shall be guilty of a
misdemeanor. That employer and shall be
punished by a fine of not less than $25
and not more than $300 or by imprisonment of not less than 10 nor more that
90 days in jail or both. In contrast,
28-1.8B imposes fines and imprisonment set forth in Section 1-3 SFCC 1987. Section 1-3, SFCC1987 imposes a fine of up to
$500 and not more than ninety days
imprisonment, or both. It further
provides that “A person violating any of the requirements of this ordinance
shall be guilty of a separate offense for each day or portion thereof and for
each worker or person as to which any such violation occurred.” 28-1.8 B contains penalties substantially in
excess of those created by the Minimum Wage Act and is therefore void.
Collective Bargaining. NMSA 1978, §50-4-28 states that nothing in the Minimum Wage Act shall interfere with, impede or diminish the right of employees to bargain collectively to establish wages or other conditions in excess of the minimum wage. In contrast, the Ordinance, 28-1.7, divisively provides that “[c]ompliance with any or all of the provisions of this ordinance, or any part thereof, may be obtained by recognizing an exclusive representative for employees and executing a bona fide collective bargaining agreement by and between an employer and its employees.” By exempting businesses that employ unionized workers, the ordinance almost compels the unionization of private business[10]. To the extent 28-1.7 conflicts with the minimum wage act, it is invalid.
The City argues that the Minimum Wage Act allows the City to enact the ordinance through NMSA 1978, §50-4-29. §50-4-29 provides:
Any standards relating to minimum wage, maximum hour or other working conditions in effect at the date of the passage of this act by or under any other law of this state, which are more favorable to employees than those applicable to such employees under this act, shall not be deemed to be amended, rescinded or otherwise affected by this act but shall continue in full force and effect.
The Minimum Wage Act only retains statutory standards in place as of the time of passage of the Act, 1955. No other minimum wage standards are provided for by the Minimum Wage Act. The City’s argument is without merit.
B.
The
Ordinance Violates the New Mexico Antitrust Act
The Ordinance violates the New Mexico Antitrust Act because it results in a restraint on trade. The City’s argument to the contrary disregards 60 years of carefully considered antitrust precedent See Fisher v. City of Berkeley, 475 U.S. 260, 274, 106 S.Ct. 1045 (1986), rehearing denied, 475 U.S. 1150, 1065 S.Ct. 1806 (1986), (dissenting opinion of Justice Brennan), and in so doing, misleads the Court. The purpose of the Anti-Trust Act is to prevent price fixing of any nature because price fixing is against the system of free competition in which we live. In a gasoline price fixing case, the United States Supreme Court discussed the policy behind the Sherman Act, it observed:
The elimination of so-called competitive evils is no legal justification for such buying programs. The elimination of such conditions was sought primarily for its effect on the price structures. Fairer competitive prices, it is claimed, resulted when distress gasoline was removed from the market. But such defense is typical of the protestations usually made in price-fixing cases. Ruinous competition, financial disaster, evils of price cutting and the like appear throughout our history as ostensible justifications for price-fixing. If the co-called competitive abuses were to be appraised here, the reasonableness of prices would necessarily become an issue in every price-fixing case. In that event the Sherman Act would soon be emasculated; its philosophy would be supplanted by one which is wholly alien to a system of free competition; it would not be the charter of freedom which its framers intended.
United States v. Socony-Vaccum Oil, 310 U.S. 150, 220, 60 S.Ct.811 (1940).
In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, (1943), the United States Supreme Court addressed conflicts between state laws and antitrust law. Virtually every case decided thereafter looks back to the principles established therein. Among other things, Parker established that the Sherman Anti-Trust Act does not preclude a State Legislature from adopting laws that would otherwise violate the Act. In Fisher v. City of Berkeley, supra, the Supreme Court stated that the authority must derive from the state itself. “The ultimate source of that immunity can be only the State, not its subdivisions.” 475 U.S. at 265. Thus, in order for the City of Santa Fe to enjoy immunity from the Anti-trust laws, it must identify a State law which gives it the authority to fix wages paid by employers with more than 25 employees. It cannot do so because none exists. Further, the City may not grant itself that authority. The authority must derive from the state itself.
Consistent with this reasoning, California Retail Liquor Dealers Ass’n. v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937 (1980) stated a two-prong test for determining whether a governmental entity is entitled to antitrust immunity under Parker. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised by the State itself.” 445 U.S. at 105 citing City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123 (1978). The California practice at issue in Midcal (wine pricing) was in place pursuant to state statute and therefore the practice met the first test. However, the state did not supervise the practice and therefore the practice failed the second test. The state was denied anti-trust immunity.
In Fisher v. City of Berkeley, (supra), the City of Berkley enacted an ordinance which imposed rent ceilings on residential real property in the City. Landlords brought suit against the City alleging the Ordinance violated their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial court upheld the ordinance but was reversed by the Court of Appeals. While that appeal was pending, the United States Supreme Court issued an unrelated opinion which led to the filing of amicus briefs challenging the ordinance on antitrust grounds. As pointed out in the concurring opinion of Justice Powell, a clearly articulated state policy allowed the City to control rent[11]. The Court’s analysis focused on whether the City engaged in concerted action and determined “[a] restraint imposed unilaterally by government does not become concerted-action within the meaning of the statue simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy.” 474 at 267. The City claims that this passage establishes, as a matter of law, that the City may fix wages. The City’s argument ignores the two central inquiries in state action analysis as established in California Retail Liquor Dealers Assn. v. Midcal Aluminum (supra): 1) the existence of a clearly articulated policy established by the State itself, not merely one of its subdivisions; and, 2) active supervision by the State itself.
Whether a
unilateral governmental enactment is insufficient to establish a conspiracy is
irrelevant here[12]. The City enacted a minimum wage ordinance
which attempts to govern civil relationships in violation of the State
Constitution; which substantially conflicts with numerous provisions of the
Minimum Wage Act; which confiscates the property of private businesses without
just compensation in violation of the State Constitution and the Eminent Domain
Act; which treats businesses differently based upon the number of workers they
employ in violation of the Equal Protection Clause of Article II, §18 of the
New Mexico Constitution; and which has no rational relationship to its stated
goals. The City does not act pursuant to
a “clearly articulated policy established by the State itself.” It acts in violation of many clearly
articulated constitutional and general laws. The City’s reasoning is flawed and misleads
the Court.
The City also misstates the meaning of the first sentence of NMSA 1978, §57-1-4 (the State equivalent of the Clayton Act). NMSA 1978, §57-1-4, is titled “Organizations exempted” and it exempts natural gas marketing, labor, and agricultural or horticultural organizations from anti-trust laws. This includes labor unions. The first sentence states that “[t]he labor of a human being is not a commodity or article of commerce.” The City claims this language exempts the City’s minimum wage ordinance from anti trust laws. The statement evidences a complete misunderstanding of the Anti Trust Act, the Clayton Act and the Fair Labor Relations Act. Nationally, there are hundreds of cases addressing this issue. Those cases establish that, generally, labor unions that are engaged in conduct pertaining to their bargaining units are exempt from anti trust laws. See e.g. United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585 (1965). Non-labor groups do not enjoy exemption from the anti-trust laws and union action “seeking to prescribe labor standards outside the bargaining unit” is clearly prohibited by anti trust laws. See e.g. United Mine Workers of America v. Pennington, at 668; Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 800, 65 S.Ct. 1533, (1945) where court stated “Congress never intended that unions could, consistently with the Sherman Act, aid non-labor groups to create business monopolies and to control the marketing of goods and services.” at 808; Los Angeles Meat & Provision Drivers Union, etc. v. United States, 371 U.S. 94, 83 S.Ct. 162, (1962). This language shields labor unions from anti trust laws, only when they seek to set labor standards within their bargaining unit. They enjoy no immunity when they act outside the particular bargaining unit, however. The language grants conditional immunity to labor unions. It grants no immunity to the City.
C.
The
Ordinance is Preempted by the Eminent Domain Act
As more fully addressed in Point V of this Brief, the ordinance constitutes a taking of Plaintiffs’ property. The Eminent Domain Act, NMSA 1978, §§42-1-1 through 42-1-40, sets forth the purposes for which private property may be taken for public use, and it sets forth the procedure the State and its subdivisions must follow in order to take private property for public use. No governmental entity has the authority to take property for purposes other than those enumerated in the statute.
The first section of the Eminent Domain Act, NMSA 1978, §42-1-1, grants to railroad, telephone, and telegraph companies the power of eminent domain (condemnation) in order to erect and maintain facilities. NMSA 1978, §§41-1-25, and 41-1-27, grant the power of Eminent Domain (condemnation) to State institutions including the State universities and agencies to acquire land only for the institution’s use. NMSA 1978, §41-1-31, grants the power of eminent domain (condemnation) to establish rights-of way to mine and oil well owners, mill owners, and drilling corporations for the purpose of transporting coal, oil, ores, etc. NMSA 1978, §42-1-28 grants to cities, towns, and villages the power to condemn ditches, canals or acequias for the express purpose of extending, widening, or otherwise improving alleys, street or avenues.
The broadest grant of condemnation authority to the State and cities appears in NMSA 1978, §42-1-16. That section gives the State, counties, municipalities, or school districts the power of condemnation in very specific circumstances as follows:
for the use of the state, county, municipality or school district for public buildings and grounds; for canals, aqueducts, reservoirs, tunnels, flames, ditches, conduits for conducting or storing water for drainage; the raising of banks of streams, the removing of obstructions; for roads, streets, alleys, thoroughfares; for public parks, playgrounds; for ferries, bridges, aqueducts and conduits for irrigation; for electric lines, for the production of sand, gravel, caliche and rock used or needed for building, surfacing or maintaining streets, alleys, highways or other public grounds or thoroughfares, for public airports or landing fields incident to the operation of aircraft. (emphasis added)
The statute allows the state, and those agencies to whom it has delegated the authority, the authority to condemn property for their own use for the enumerated purposes only. It does not allow the state to take or condemn the income of private businesses, give it to low income individuals for the purpose enhancing their personal incomes (Ord 28-1.2)[13]. The state does not have that power and it did not delegate that power to cities or any other political subdivision. It is clear from the plain meaning of the statute that the legislature clearly intended that governmental takings be limited to very specific purposes. Property may not be taken for other purposes.
POINT III
The Ordinance
Violates the Equal Protection Clause of Article II, Section 18
of the New Mexico
Constitution
The Ordinance creates different classifications of businesses based only on the number workers they employ and the status of those workers. The classifications do not treat all businesses that are in like circumstances and situations equally and they are arbitrary and capricious. The classifications give Plaintiffs’ competitors a financial advantage and deny Plaintiffs’ due process of law.
A.
Article II,
§18 of the New Mexico Constitution Prohibits Denial of Equal Protection of the
Laws
Article II, §18 of the New Mexico Constitution states:
No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall by July 1, 1973. (emphasis added).
NMSA 1978, §3-15-7, requires a home rule municipality’s charter to conform to the Constitution. Thus, a City’s charter must be consistent with Article II, §18, of the New Mexico Constitution and the City itself may not deprive any person of due process or equal protection of the laws.
B. The
Ordinance Creates Arbitrary Classifications Based on the Number of Workers,
Whether the Workers Own an Interest in the Business and Whether the Workers are
Interns or Students Working for Their School
The ordinance creates numerous classifications of employers, numerous classifications of employees, and provides disparate treatment between those classifications even though the workers work in the same conditions and circumstances. Section 28-1.5A(4) provides that the following shall pay the City’s minimum wage:
Businesses required to have a business license or business registration from the city of Santa Fe who, during any given month, have twenty-five (25) or more workers, or in the case of not-for-profit organizations, who have twenty-five (25) or more workers, shall pay the minimum wage to their workers for all hours worked within the city of Santa Fe that month. For purposes of this paragraph, worker shall not include any person who is related by blood or by marriage to any person who may have or possess any ownership interest in the business that employs them. For purposes of calculating the number of workers under this ordinance and identifying persons entitled to be paid the minimum wage, all individuals employed by or providing work to the business for compensation, whether on a part-time, full-time or temporary basis, during a given month shall be counted as a worker. This definition shall include contingent or contracted workers, and person made available to work through the services of a temporary service[s]sic, staffing or employment agency or similar entity. However, interns working for a business for academic credit in connection with a course of study at an accredited school, college or university or persons working for an accredited school, college or university while also attending that school, college or university, or person working for a business in connection with a court-ordered community service program such as teen court or workers who are in an apprenticeship program in a 501C(3) organization (such as the Santa Fe Opera) shall not be counted as a worker for such purposes.
This provision provides that all businesses with 25 or more workers are required to pay the City’s minimum wage. Businesses with less than 25 workers are not. Businesses that do not employ persons related by blood or marriage to a person that has or possesses an ownership interest in the business are required to pay the City’s minimum wage. Businesses who do employ persons related by blood or marriage to a person that possess an ownership interest in the business, are not. Thus, businesses who do not employ relatives of stockholders have to pay the City’s minimum wage. Businesses who do employ relatives of stockholders do not. Businesses who employ interns do not have to pay the City’s minimum wage. Businesses who do not employ interns do. Businesses who employ students who also work at their accredited school, college or university do not have to pay the City’s minimum wage. Businesses who do not employ students who also work at their accredited school do.
With respect to employees, a worker that works for a business having 25 or more employees is entitled to the City’s minimum wage but a worker that works for a business having less than 25 employees is not. A worker related to a person that has an ownership interest in the business for whom he or she works is not entitled to the City’s minimum wage. A worker not related to a person that has an ownership interest in the business is entitled to the City’s minimum wage. Thus, workers who are not relatives of stock holders are entitled to the City’s minimum wage but workers who are relatives of stock holders are not, even if they work for the same employer. Interns are not entitled to the City’s minimum wage although persons performing the same work are. Students who also work for the accredited school, college or university that they attend are not entitled to the City’s minimum wage but students who do not work for the accredited school, college or university they attend, are entitled to the City’s minimum wage.