AlamogordoTownNews.com Update Post Commission Meeting Business Registration Policy Revision Alamogordo City

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End of story is an update to original story post Commissioner Meeting 10-11-22.

The city of Alamogordo is reviewing and modifying the city ordinance around the issuance of business licenses. While a majority of the code is just cleanup, there is one section 17-01-035 in the ordinance, that being vague in nature, could result in interpretation that could be discriminatory based upon interpretation by a city manager or city employee. 

17-01-035. Application process.
Upon the receipt of an application for a business registration and approval forms, the city clerk’s department shall review application, and if approved, within 2 (two) business days a business license certificate will be issued.

If, as a result of the review, it is determined that the issuance of a business registration is not in the interest of the health, safety and general welfare of the public, the applicant shall be given notice of denial. The applicant may present to the city manager reason for obtaining a registration. If the city manager determines that issuance of the registration is not in the best interest of the public health, safety, or welfare, the denial shall stand.

A concerned Alamogordo Citizen (Devil of the Desert Msc) today asked the question in a twitter post today, stating that "this seems loose and may open up the city to deny licenses such as cannabis stores?"  Good question!

Is this potentially an end run around attempting to deny other forms of business. Cannabis stores are receiving licenses and thriving in Alamogordo, however what other businesses would be an example of denial? It would be good for the question to be asked and the city attorney respond.

The Fourteenth Amendment to the United States Constitution, applicable to the states, and Municiple governments, provides that no person may be deprived by the state of life, liberty, or property without due process. 

The code revision reads,"If the city manager determines that issuance of the registration is not in the best interest of the public health, safety, or welfare, the denial shall stand."

This appeals process seems one sided and gives sole discretion and power to the "city manager" in approving or denying city business registrations and without appeal to another party for review. This in itself could potentially set the city up for potential litigation, if a city manager was in position, and the applicant showed a personal bias against a certain kind of business. 

The city has a pro-business, pro-growth professional in place as city manager at present and the administration of Mayor Susan Payne is also pro-business and each, presently are without bias, but will that always be the case under a new administration or a different city manager?

As a general proposition, due process of law is deprived by arbitrary or unreasonable openly vague regulations.

It is undisputed that an individual or a corporation has an inherent right to engage in a lawful business or trade. It is also axiomatic, however, that a municipal corporation (as an arm of the state) may impose reasonable restrictions upon the conduct of such activities in the interest of the public peace, health, or general welfare, so long as such regulation is exercised reasonably, within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate. 

Of course, a municipality may not, under the guise of protecting the public, arbitrarily interfere with, or unnecessarily restrict, a lawful business or occupation. In every case, a court, to determine the validity of certain regulations as applied to certain business, must consider both the general character or scope of the business and whether the limitations on its conduct have a reasonable relation to a legitimate public purpose. In most litigation cases the business prevails if it is a legal enterprise to commerce.

A court case, "specific to a denial of a business license" in another municipality, found that the reasoning for denial by a city of a business registration was insufficient and arbitrary.  In that case the city used, "the excuse of inadequate police protection" based on the court found that the town simply could not attempt to solve the problems of an inadequate police force by regulating legitimate businesses so as to reduce the need for such protection. In effect, the court found that the public had a right to adequate police protection and that the town could not use a restrictive ordinance on business to avoid the additional expense that would be required to provide it.

The issuance of business registrations is a delicate balance for any Municiple government. The city of Alamogordo has done a good job to date this year in reviewing city ordinances that are restrictive to business. The best regulation is less regulation and keeping government out of the way of business. A businesses success or failure should not be determined by regulation but by its viability as ultimately the public will decide to either support it and it prosper or not. Free enterprise is the cornerstone of the American dream, and any regulation that could restrain free enterprise or is open to subjective opinions on issuance of licenses is bad to the concept of free enterprise.

We support the ordinance with the wording, "in the interest of the health, safety and general welfare of the public" stricken from the ordinance.

10:43 pm post commission meeting update. 
Good dialog was presented at the city commission meeting around the ordinance. Not a single legitimate business license has been denied in Alamogordo to date that pass zoning and fire inspections. The commissioner had good dialog asked good questions and the ultimate policy revisions are pro-business and ensure the public safety all the while moving business forward with a streamlined process that expedites licensing with fewer roadblocks or delays. 

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