morning council good morning your honors may please the court theatre butros for the appellant nevada restaurant service is doing business is daddy's and i'd like to reserve three minutes for a bottle this case in some ways present every business is worst nightmare we had local government regulators at the behest of big casino interests over a period of almost seven or eight years passing regulations targeting daddy's business and seeking to drive it out of business in c county and the question the key question here and those regulations were retroactive they were haphazardly applied the key question for the court today is whether those governmental actions deprive dottie's of property retrofitted income went into compliance with these arduous regulations that went to the physical nature of the property within seven months then they would be reduced they would be would lose their license status as a class a gaming establishment that could have fifteen  machines so they were saying we're going to win to take away your license to do what they never did they the company ultimately did retrofit in so remains licensed in the county has sort of i think waiting to see what happens in this it's in the future well it property interest is a loss of property but not a property interest well it's it's a burden that has been imposed because of the the governmental action which we submit was irrational arbitrary and retroactive and let me address the property interest from the licensing so with the licenses the company have the right to have fifteen in under the regulation under the grandfathering clause this court in the wedges ledges decision which really from this court lays out all the principles and i think really requires that the court reverse talked about the test so the question is whether there was a property interest in the tavern licenses is whether there was a reasonable expectation of entitlement deriving tavern the grandfather tavern regulations and page eleven are a denim to our brief the terms are mandatory in the grandfather provision and it says that a tavern that has been determined to be a grandfather tavern and had laid out the criteria right above that shall be considered to be a primary business for all purposes of the gaming code to which the operation of fifteen or fewer slot machines shall be presumed to be incidental and then the next sentence on page eight  the tavern shall not be require nothing grandfather owner exactly and that was the so the new interpretation that came after the closed really is sort of right out of the movies the closed door meeting with the board commissioner who'd been against  along the county council the casino lobbyist in the casino or the casino we are in this is in the record says no change your interpretation focus on when the owner was approved health is your argument that the language at the statute created a property interest in the grandfathered status tavern yes that we got is an owner yes exactly and then when the grandfathering provision was inactive and it says shall it created that sort of reasonable expectation of an entitlement and then your honor there's another reason that if we go to the question of when a license can be revoked because this is theirs i don't think the county really h for imposing conditions on the license and why isn't that where we are instead of the revocation rail why aren't we in the condition we respectfully submit that that provision if one looks at the the provisions once granted not retrospective conditions without due process that aren't rational and reasonable and non arbitrary here that's that's the core issue but he but your are so if it comport with due process then potentially there could be condition are you relying upon to support your argument that no conditions could be imposed upon an existing license i think the wages ledgers decision is it really goes through all the upon a showing of cars creates a property and we're not talking about revocation we're talking about a condition as opposed to a real revocation of course there has to be due process and a showing of cause but what about imposing a condition what case do you have that supports the notion that for and for government agency to impose conditions on a license that there has to be due process i think you are just  general notion that if there is a property interest in the government in burdening the property here this devalued the property these conditions so it had an impact on the property we're talking about real property i'll get back to your argument that there is a does your argument on conditions only work if we agree with you that there's a property interest yes your honor i have to buy i have to demonstrate to you that there's a property or liberty interest and so there's a property interest because this regulation whether it's talked about as a condition or revocation was having an impact it was it was taking value from the physical property of these taverns kryten if you look at it there is it's almost uncomprehensible what they were requiring dieties to do it to the angle of the park top slot machine the number the limits on seating that could be compliant with the americans with disability act it was clearly meant to just keep torturing them so they would they would go out of business but the other point that i wanted him to make was was that the or federal question so i know my friend on the other side is going to say that some of the provisions talk about the the broad authority the code does say that it's not creating a liberty or property interest but it's a federal question whether specific provisions of the law one of the things we look at in terms of determining whether or not there is a property interest is whether or not there is legislation mandatory that say shall grandfather these casinos and then are taverns and are the kind of embedding of an expectation and then i have two more points that i think sealed the deal on the property right  director holloway the agent of the county wrote the letters in january of two thousand and fifteen saying these in one thousand taverns are grandfather because their applications were approved before the particular date that was identified and so for eight months she for the county was reassuring the audience that they were grandfathered in and of course there is the issue of whether or not she could bind the county commission because of course the county commission is the body that has the authority to give or take away and so there's a question as to whether or not one government employee can speak for the attack mission but but she was the director of business licenses not authorized agency acting within her authority did have a vote on the county commission she she didn't pitch he was then the person who was rolled out to say in in the fall you're like we've we've revised our interpretation or they are a member the exact formulation after the closed door meeting saying that we're taking a different provision and they're now going to look at the owner in a sense the county commissions authority the county commissioner can say this employee did that interpretation was not the interpretation of the county commissioners we are the ones who who we are the ones who passed the law we're the ones who determine what we know when we said that and and what she said wasn't what we intended when we passed the ordinance why send those letters out when there was a commission hearing they add they turned to her for her view on how to interpret the grandfathering clauses and then she went on for eight months and since sent these letters and in she said she intended in the county intended for  rely on those so that puts us into the perry versus interment line of cases where mutually explicit understanding this is the supreme court's decision and agreements implied from a promise or is words and conduct in the light of surrounding circumstances can create that expectation of a property right and then the the finance one more question about in your brief you claim that you had your client had been  interest as the count would the county denied your applications for a package liquor license how is that so well there that's really the argument there is that this was discriminatory and again part of this this bill pattern over a period of years where dottie's applied for thirty package licenses the county said no we're not giving out any more of the record reflects and we supplemented with our judicial notice request that the court granted the other package licenses were being granted and so it's part of our case that the regulatory activity is not focused on the public welfare it's part of an economic protectionist effort by the county and  criteria that it will it will be granted and you won't be treated arbitrarily and discriminate against it's really more of an equal protection argument on the packages issue but in the last point before i sit down i wanted to make is that there's a whole nother property and liberty interest at stake here and the county does not dispute it we laid out under wedges ledges and the need any case from this court the liberty and property interest in perform in conducting your occupation or business and in wedges ledges the court in footnote four noted that it was a gaming case it was about amusement games and whether it was a game of chance or a game of skill it was licensing and the court held that the right to pursue your business  occupation under beneath the supreme court's decision in the famous where case creates a liberty and or a property interest that is that a corporation can invoke in here been any case it was a tavern owner and the police the this court found the jury verdict was to be upheld for damages where the police had excessively in unreasonably targeted to drive the tavern owner out of business the government the county doesn't address that i think they've conceded by not addressing it and on that basis alone the court could reverse and should reverse i think thank you has been now three district court judges that have determined based on state law under interests for sixty three that a gaming license is not a right is not a vested right it is a privilege and and as well as multiple considerable language in the clark county code it is indeed a privilege in the county has virtually on cabin discretion to grant or deny such a privilege to impose conditions  limitations and this is not an action against as is your honor pointed out this particular license this was a legislative act to amend its own code to regulate with respect to gaming as it had to the board determined that many casinos or what they called slot parlors were having an adverse impact upon the overall gaming in the vadra  based on paying considerably less taxes then those holding a restricted license if we took a two hundred thousand dollars amount would pay to those unrestricted license would pay two dollars times the amount so the government interest here was the fact that these licenses that are intended for the holder to use gaming incidental to their business not the essence of their business but incidental to their business to elevate gaming to the paramount feature of their business and then with that privilege elevated to that level pay considerably less taxes then those holding unrestricted licenses and having frankly your honour's considerable advantage over traditional tavern holders who employ a bartender who employ a hostess who can run a restaurant with a waitstaff washing a dishwasher etc and the record is clear from the person most knowledgeable on the part of dieties that one person could run this operation in large part did rand this gaming arcade  with this with with a snack bar and perform janitorial services so that was the this record in nevada has three times indicated that that was a rational basis to legislate and indeed the two thousand and sixteen panel that considered the two thousand and eleven legislation found that the county has the power to regulate with respect to these incidental license holders  with that that unbridled privilege no property right attaches a tall and that is dispositive on the due process claim procedural and substantive there's been a lot you're hon interpretation need be revised it doesn't reflect the intent of the board nor the plain language of the statute with respect to what is a grandfather tavern under that amended ordinance not in  it has a considerable record of an enforcement and we speak to that because i think it your question goes to this going to come back argument made in the briefs that there are some promissory estoppel based notion of due reflects that it in provided difficult visually infin forcible criteria and so the board sought to close that loophole and i'm in the code again to give object of visual basis to determine whether a tavern looked like a tavern walk like a tavern talk like a tavern or was a mini casino so throughout that time dottie's has written has has ran their operation  and had to retrofit well that's outside this record it's outside this record because that's and that evidence if a deed stablish is that was produced after disclosure after the ex after th the discovery period was over there was a motion in limine pending to exclude that for late disclosure and therein came the motion to extend discovery which the magistrate judge found was on timely and and that's not a basis  for appeal so that's a lengthy answer that i don't know that there's been any enforceable action other then the belated evidence disclosed suggesting that they retrofitted but that was outside of discovery and i don't know are the briefs cited several cases with respect to the government affords a benefit in the past a property right does not attach that benefit in the future and no more is that line of cases  to the privilege of running a casino or using a gaming license so the position the briefs that the initial interpretation by the director  created a property right doesn't has no merit for a number of bases one of which judge rawlinson pointed out i think that that director under state law does not bind the county does not speak for what the code says the united states supreme court has made it clear what the this court looks at and determine who the policy maker is is state law and the state law is  i've lost my page come back to that citation if i can find it before i conclude i apologize but it indicates the board itself is the policy maker and not the director of business license so even accepting that is true  that that's what happened that was her interpretation and it was erroneous that she had no ability to bind the county because she was not the policy maker under state law the other issue with respect to the enforcement or excuse me the that the director's change in policy created a property interest is the district court found that her revised interpretation of the statute did reflect its plain language in other words the initial interpretation was not well founded in the revised interpretation that proper look at the word application as it was used in the code overall that an application for a gaming license attaches to a person not to place in other words a place does not get a gaming license and keeps it in perpetuity that each new owner an opt in occupy or operator of that gaming of that tavern if they have  restricted gaming license must apply and receive it so that the distinction with that revised interpretation was she initially looked at the original owner o his client has a property interest in pursuing a business deal agree that the county does not dispute the i don't your honor in fact the record reflects that that argument was not made the district court level at all that they had a liberty interest in running a mini casino i've litigated that issue before i'm happy to speak to it but your position is that argument was not  and the arguments not when it was waived and th circuit law makes it clear that in terms of having a having a liberty interest in occupation it must basically abyssal rate the occupation not in this case you have fifteen slots you can either choose to use seven of them or if you want all fifteen put eight of them in the bar that does not deprive them of an occupation across the board with respect to running a tavern especially and they hold a tavern license to sell liquor not package liquor but liquor and they hold a restricted gaming license that they must comply with the restrictions and imposed by his representation is well founded but i've never saw argued with a district level or here that there was a denial of occupational liberty interest and that goes much much further than this type of limited rational based interest i would suggest that this case at this point it is been found by the three district court judges and the panel that the county did have a rational basis to regulate in this area there's been a lot of argument about subjective intent i want to make clear the rational basis the rational basis was slot parlors paid appreciably less taxes  then big casinos that as many casinos used a restricted license to run a a gaming centric business which wasn't the intent of their license and they played it in as a consequence of pa priest less taxes and afforded considerably less economic opportunity opportunities for the citizenry of clark county and that was made clear by this record of nevada judge now the issue is not whether there's a summary judgment issue about how many employees they have or or how much taxes they have the issue is whether from this court's vantage point under the very deferential rational basis scrutiny whether the county had a basis to regulate in this area and i think that's that's undisputable and indeed might be the law of the case at this point at least with respect to the the tw extend discovery after the summary judgment motion filed after the motion in limine a saudi seeking to exclude evidence was filed who then add an expert to the case the district court made a prudent decision that if the pla ff want an expert they were put on notice that that should have been done during the discovery period elected only to do that frankly in the face of orders that were adverse thank you thank you  if i may just start back with the liberty and property interests we did not articulate it as clearly as we did on appeal but below dottie's argued that this was an effort to put it out of business and regulate out of business but at page forty three  liberty interest in can in doing business the point is how discreetly was that argument meet in the district court so that was the question i was going to ask you to point me to the record in the district court where this precise argument  discretion to decide yes and i just think that's what i was going to ask for just going to have thirty seconds more to say we just want to shot to prove this to a jury go back if the court rules we have there's a property or a liberty interest here at least there's factual issues here the county was bound by its own regulations to do what it said the county admitted in in the bolo and it's a page in our additional excerpts a record thirty one  holloway was charged with enforcing the rules and licensing laws she had authority and she did and we think that this is the kind of case that is the arbitrary irrational act and that this singling out one group that violates due process and we think equal protection and just want to shot back in the trial court to prove that i think thank you very much i thank you counsel for your helpful arguments in this case the case