the city building inspector told him that the city was out to put him out of business we could see no rational basis for the city's action against him it would have been this was treated that way and the seemed no explanation his wife is as it rolled member of an indian tribe and he'd been he had in racial insults against him in the community and told he shouldn't marry outside of his race he felt that the lawsuit and the racial discrimination were the reasons that he was being discriminated against his site is located in a heavy industrial zone area and that and according to the code those sites those areas are for the least desirable types of businesses including things like you know paper mills wrecking yards manufacturing plants things that produce a pleasant odors and have pleasant you know appearances and so forth he can see no reason and then has been offered problem is we think we have a state statute right here too to continue the expectation to operate the business there's no discretion in it really knowing that certificate the state fans will state last appears to open the door to the city to he ends at the end of the year if you follow the statute and compassionate rules he has the right to renewal and that's a question of fact whether he complies with the rules or does this not to say that yes and this think the kind of rules of the city can adopt  established and so that the question of fact has to be decided under due process rules and they are not because they take a suspension before they make their decision whether the facts are valid or whether he's complying with the with the rules they can do in a way that doesn't shut him down and the judge jones his reasoning was that they they were giving him the chance jones route rule that they were given discretion to adopt a procedure that they any where they want they don't have the discretion under the due process clause to take away rights before a hearing is granted i submit that's not the kind of discretion any legislative body has to break to violate the constitution the discretion is a question of making a legally val same thing once the fact is determined that this machine or diffusion device is a game of skill then they have to give him the permit and the same in this case once the decision is made that he has you have he's in for compliance with his permits then you have lawsuit and somebody in the city wants to put him out of business with fact we think we can draw an inference that he's a subject of some kind of invidious discrimination because they try to shut him down unreasonably so we think that there was a question of fact on there for the for a jury to attorney argued that they were well they weren't really granted immunity there was a question of discretionary immunity and again he dismissed them because of discretionary immunity i'm sorry he just repeats missed them the first time for discretionary and then i was trying to a notice that it would not be in this because they want if there is a sports stadium there's nothing that would be very unreasonable that would be like me saying we can take away u s banks right to have their to their tower down here on burnside because where we want to have i'm paying for it this morning so i'll do my best the plaintiff arguments in this case have been somewhat of a moving target for the defendant from day one  and as we move through the district court first in the state court and in the district court and now here are still kind of difficult to pin down exactly what the concern and so in our briefs which i i hope we're comprehensive we try to address all of them and offer many alternatives and might i have some comments i would like to make  i think they are not members of the city council they are not members of the city council as far as i'm the only way to legislate immunity apparently no one knew intil after everything was over that they were not councillors plaintiff's council states that they presented evidence that they weren't but they never presented argument that they weren't and we moved for summary judgment the city moved for summary judgment on the basis of legislative immunity for the individuals and the plaintiffs response was not particular individuals are not entitled to legislative immunity because of who they are the response was legislative immunity doesn't count in this case and it shouldn't be applied we went through all the arguments and court ruled in the individuals favor saying yes they're out because of legislative immunity told plaintiff you could come back and again but did not fight any specific individual acts by them other than their participation in the an act and an application of this ordinance so again it was unclear what what he was claiming against them at this point we moved to have been dismissed because the court had ordered and just missed originally but we also did make the argument that discretionary immunity applied to them as individuals applying an ordinance that had been adopted within the city's discretionary powers so i understand was no because that's not that wasn't the issue the issue before this course is whether the ordinance that was passed by the city and applied by the city was constitutional in terms of the process that was provided to the plaintiffs for the renewal of his certificate the state was very clear that that in order to get the annual renewal a wrecking yard owner must get local government approval the statute then goes on to provide that the local government may adopt such regulations  it was not an issue of noncompliance and they did not shut him down and what happened was the way the ordinance worked it's that in order to get city approval local government approval they passed a regulation that required the wrecking yard to be in compliance with land use regulations and they also passed an ordinance that allowed for anyone much like other land use ordinances that allowed for anyone who believe they might be regulation he was each time each year that we are talking about here the eventual decision was that the approval should be granted that he was it could take the state a while to get their renewal back to him but that the city can't control what the state is doing that the city is allowed under the statute to adopt regulations to ensure that the clients and that's what was going on now in the past there have been a number of times when the wrecking yard was not in compliance but it's my understanding reading various in the record there are a number of letters and your letters was a partner of motor vehicles because your driver's license was about to fire and you went through the process of the new one and they took several months to send it back to you during that time you can't drive i don't know that you'd be inclined to do that  through the system and it must be especially frustrating for him to do that when you're not arguing at this point and having i guess for the last several years that transgression is a violation is reason not to approve o regulations to ensure compliance and that's what the city has done it has a process by which it ensures this compliance in order to ensure each time that he's in compliance it does need to go through this process the city does go through it as quickly as but the facts in the record show when this city approval was granted what we don't have and what was plain to see the burden to prove w when he submitted that to the department of motor vehicles and when he got here we had when he finally got your certificate that's from the department of motor vehicles but in a number of cases he hasn't established when he did get those certificates to the d m v after getting them back from the city and in their records are these letters from the city telling him ok here's your approval and they have all been before the end of the year they've all been within a short time after getting the request from the plaintiffs and so i would  that even if there is a question of fact he hasn't provided it he hasn't provided any facts to  case the issue was the permit for the gaming machine had to be granted once there was a determination made that it was a game of skill and not a game of chance and so there were that is that a game of skill yes it is therefore you must have the permit there was no discretion at all in this case the state statute has built into it a provision that allows the local government to adopt whatever regulations they want to essentially to fall under the section state local government  stadio county government body shall grant approval record certificate or a new will when requested under the section if the governing body then you go down just d s s approved the location and determines that the location complies with any regulations adopted by  legit also states and i don't have the case in front me so i tend to quote it for you but it talks about that if there is if there is discretion in any decision making would be that the city has the discretion allowed for its five state statute to adopt and use regulations that may or may not apply to the wrecking yard and w which the wrecking yard may or may not be in compliance and because of that because the city has the discretion to adopt regulations that may result and non renewal of the license then there is no property had claimed that the city had absolutely no right to regulate his business at all because it was preempted by state law that the d m v regulations about wrecking yards preempted any attempt by the city to regulate his business and that plane which he argued all the way through the appellate process we've included the appellate briefing for the courts benefit to see how those arguments were framed is essentially the same argument that he had made to the district court originally that the city can't regulate him and we moved to have that affidavit it was actually march eighth according to the ninety eight which is the actual permit when the recent years where there were more substantive issues and then there's a series of years where  that took there was that if the state grants that right you have to have the right to park the number of cars there and it was his position in that lawsuit that the city couldn't adopt a land use ordinance that conflicted with the state law the judge dismissed decades without citing that question different doesn't make any difference i don't think we need to even have that decision on that question but i think that that right by counsel statements she's indicated she has i think there's a question of fact i'm a question of whether or not he's been delaying and she's trying to blame it