Nechero seeks A.G. opinion on alcohol proposal

By Zsombor Peter
Staff Writer

GALLUP — A city councilman with mounting doubts about the legality of Gallup's March 28 referendum on pre-noon alcohol sales is waiting on an opinion from the state attorney general, Patricia Madrid.

Her answer could determine whether some local liquor dealers decide to file a formal challenge.

Councilman Bill Nechero said he called Madrid's office on March 11, the day after the City Council set the date for the vote. Nechero wanted the state's opinion on whether its statutes allow municipalities to restrict the hours of alcohol sales, as the referendum proposes. As approved by the council, the ballot will ask voters whether they want to ban the sale of alcohol, by the drink and by the package, within city limits before noon.

Nechero said he turned to the attorney general's office after receiving several phone calls from local liquor dealers and attorneys from around the state insisting that the referendum was proposing something illegal.

"What I'm being told," he said, "is that we can't legislate the hours of operation of a liquor establishment."

More than one local liquor license owner will also be keen to find out what the attorney general thinks.

Art Diaz, who owns Pal Joey's Kitchen and Lounge, said he spoke with an officer of the state's Alcohol and Gaming Division who he won't name who told him the very same thing that Nechero's been hearing. He and some other local liquor license owners believe that the hours of sale are for the state and state alone to regulate.

Diaz said the group had yet to hire an attorney to press its case. The attorney general's opinion could affect their decision.

According to City Attorney George Kozeliski, who suspects the referendum is OK by state law, the courts could potentially postpone the vote in the face of a legal challenge.

Nechero said he expected to hear back from Madrid's office any day.

There are more than just a few local liquor dealers who have concerns about municipalities regulating the hours of liquor sales.

According to Kozeliski, the question even has the state's legal community divided.

The state statute on local option elections which the March 28 referendum falls under speaks of the right for a municipality to vote for or against "the sale, service or public consumption of alcohol."

By some interpretations, Kozeliski said, that means that voters can only decide to ban alcohol sales on Sundays already the case in Gallup or to make their municipality completely dry.

"This kind of is a gray area," he said. "There's no doubt about it."

Although members of the Gallup Alcohol Action Team, the local non-profit group pushing for the pre-noon ban, said from the very start they expected to be challenged, they're convinced the law is on their side.

Meanwhile, Nechero, who admits he says he hasn't made up his mind about how he will vote on the referendum, has another reason to wonder about the city's ability to regulate the hours of sale.

He's proposing an ordinance that would let downtown bars start selling package liquor at 3 in the afternoon instead of 5, and, in seven years, ban downtown package liquor sales altogether.

Nechero planned on introducing his ordinance during the last City Council meeting, but tabled it, he said, in order to wait for the attorney general's opinion.

Kozeliski, who helped Nechero draft the proposal, said the councilman shouldn't be concerned with Madrid's answer so far as his ordinance is concerned. There's no question the city can restrict sales by region, he said. The city ordinance banning downtown package sales before 5 has been on the books for years.

The confusion, Kozeliski said, arises when people start talking about restricting the hours of sale citywide.