State questions legality of referendum

By Zsombor Peter
Staff Writer

GALLUP — The New Mexico Alcohol and Gaming Division wants the city to explain what right it has to set its own alcohol sale hours as the city's March 28 referendum proposes before certifying it.

In a letter to Gallup City Clerk Patricia Holland last week, Deputy Division Director Lillian Martinez echoes the earlier doubts of a division attorney about the proposal's legality under the New Mexico Liquor Control Act.

"It is (the division's) position," the two-page letter reads, "that the act does not allow a local option district, by referendum, the authority to either limit or expand the hours of operation of liquor licensed establishments."

The March 28 ballot will ask Gallup voters whether they want to ban alcohol sales by the drink and by the package before noon within city limits. The City Council unanimously approved a resolution setting the referendum's date Jan. 10.

"It is (the division's) position," the deputy director's letter reads, that the resolution "may be unconstitutional, unenforceable and illegal."

The letter does not go so far as to order the city to call off the vote; however, it does ask the city explain itself by Feb. 10.

City Attorney George Kozeliski says lawyers across the state are divided over the question of whether the Liquor Control Act lets cities set their own hours. He admits it's a "gray area."

He focused in on Martinez's use of the words "may be" to make his point.

"It's nice to work in the theoretical realm," Kozeliski said.

But when the Gallup Alcohol Action Team the local non-profit groups pushing for the pre-noon ban turned up at City Hall with enough signatures to trigger a public referendum, he added, "I had to make a call, and I made it."

Kozeliski's best professional guess is that the state's statutes should allow the city to set its own hours for liquor sales. The Alcohol and Gaming Division's interpretation suggests it can't.

Kozeliski says that's not enough to stop the vote. Only a court order can do that now, he said, and he's advising the City Council to proceed with the referendum until that happens.

If that's what the division wants, Kozeliski said, there should be nothing to stop it from filing a lawsuit.

The division may be contemplating just that.

Without elaborating on the specifics, Martinez writes that she will forward a copy of her letter to the Secretary of State's Office and the Attorney General's Office "for their analysis and action, if necessary, regarding the upcoming March 2006 election."

The letter actually raises two questions about the referendum.

It states that the Liquor Control Act nowhere "either expressly or impliedly" gives a city the authority to set its own hours. Without that authority, it claims, the business is left to the Legislature alone.

The letter also takes issue with the petition used the gather the signatures for the referendum. While the resolution the council approved splits the question of pre-noon alcohol sales in two, one for sale by the drink and the other for sale by the package, the petition, the division claims, did not include a separate question about package sales. Kozeliski said the petition combined the two questions into one.