Judge postpones Wal-Mart ordinance

Kim Smith

Tuesday, Nov. 16, 1999 | 11:15 a.m.

Wal-Mart can open all of the grocery stores it wants in Clark County, it just can't sell clothes along with them.

That was the argument Deputy District Attorney Rob Warhola pitched to U.S. District Judge Philip Pro Monday during a hearing to discuss Wal-Mart's lawsuit over a new Clark County ordinance banning "big box" retail stores.

On Oct. 6 the Clark County Commissioners voted 3-2 in favor of an ordinance that bans stores in excess of 110,000 square feet from devoting more than 7.5 percent of their space to groceries. The ordinance was supposed to go into effect Oct. 21, but Pro ordered the county not to enact it when Wal-Mart and Eastern Beltway Ltd. filed a lawsuit against the county on Oct. 18 claiming the ordinance is unconstitutional.

On Monday Pro heard Clark County's response to the lawsuit and further arguments from Wal-Mart and Eastern Beltway. He is expected to make a ruling in the near future. He also extended the temporary restraining order that delays the implementation of the ordinance.

According to the Wal-Mart suit, even though the county and state had already issued virtually all of the necessary permits for a supercenter on Nellis Boulevard and the expansion of a Wal-Mart on Eastern Avenue, county commissioners passed the ordinance because members of the United Food and Commercial Workers Union placed pressure on them. Wal-Mart is nonunion company.

Warhola argued Monday, however, that Clark County doesn't want to stop Wal-Mart from selling groceries.

"They're free to sell all of the groceries they want in Clark County, just not necessarily in the type of building they want," Warhola said.

As for Wal-Mart's argument that they are being discriminated against, Warhola said the decision to pursue superstores is a corporate one and therefore the company is not protected as a class under discrimination laws. Most "classes" are protected because there is something inherent about them that they can't change.

Christopher Kaempfer, an attorney for Eastern Beltway also argued that Wal-Mart and Eastern Beltway, which holds the lease on Wal-Mart's Eastern Avenue store, have already invested thousands of dollars on the projects and would have already broken ground if it hadn't been for the ordinance.

Warhola countered, however, that Wal-Mart should not have relied on the issuance of zoning permits when proceeding with its projects. Instead, the company is only truly "vested" after building permits are issued.

Daphne Davis, a Wal-Mart spokeswoman, said she is optimistic Pro will decide in Wal-Mart's favor.

"We're optimistic," Davis said. "We believe the ordinance was approved for all the wrong reasons. It's anti-competition and it's anti-consumer."