Judge expected to rule on constitutionality of Wal-Mart ordinance

Tuesday, Nov. 16, 1999 | 10:09 a.m.

A ruling on a controversial Clark County ordinance that limits the amount of grocery space in large retail stores is expected next week.

Attorneys for Wal-Mart claim the ordinance is unconstitutional and should not be retroactively applied to two stores already being developed.

U.S. District Judge Philip Pro postponed a ruling on whether to grant Wal-Mart and Eastern Beltway Ltd. a preliminary injunction, which would overturn the controversial ordinance and allow building permits to be issued for the two proposed "supercenters." The ruling could be issued as early as next week.

Wal-Mart attorneys are fighting the ordinance, passed Oct. 6, on two fronts: On one hand, they believe it is retroactively being enforced on two locations at which the retailer has already invested millions of dollars in acquisition and site-preparation. They also claim that the ordinance violates the interstate commerce clause of the Constitution, and constitutes state-sanctioned protectionism that favors local grocers.

It is possible that Pro could uphold the constitutionality of the ordinance, but still allow the two supercenters to be built.

Wal-Mart believes that Clark County acted retroactively in asking a judge on Oct. 14 to rule whether the building permits could be issued. The ordinance was not supposed to take effect until Oct. 21.

Assistant District Attorney Michael Davidson said the county in seeking the ruling merely was trying to prevent problems from arising down the road.

"All we've ever wanted was to be fair to both sides," he said. "Our concern is that nobody goes forward with doing something that can ultimately be found to have been in error."

Davidson added that the constitutional argument lacks merit.

"They're trying to create an argument where there isn't one," Davidson said. "We're not saying Wal-Mart or anybody else can't come into this state and do business. They can come in. ... We're saying that we won't let them do business exactly the way they want to do business. Local government has the right to determine how and where certain business will be transacted. (Wal-Mart) is kind of like the kid who says, 'I'm going to take my ball and go home."'

Opponents claim the stores will have a negative impact on the quality of life in the valley by forcing competing companies out of business.