morning your honor please the court of session sports bar and grill and joan ortiz has sued the city of rochester for interfering with her state issued liquor license and her property right and liberty right in that license by shutting her down during prime revenue generating hours without the capacity to do so without the right to do so and without a hearing such as one that would be required under that state license this is fundamentally different from the cases that talk about employment or executive action where there is no license involved if the city of rochester passed a law saying that there was no law practice between ten o'clock in the morning and twelve o'clock in the morning on tuesdays i would be out maybe lawyers would like a regulation we  might it might give us a break judgments but at least it would be our choice if we had decided to take a break i don't think the city could do that any more than they could take away ms ortiz's liquor license the city might say we want to keep the neighborhood quiet so we don't want anyone driving in the city or rochester after eleven o'clock at night are you aware of another case in which a similar effectively zoning make elation was deemed to give rise to a sixth circuit the goose island case is probably closest to that but admittedly it was administrate of action that was the unconstitutional conditions case where the town said we're going to let you pm without any prior procedure that action clearly would have violated goose islands constitutionally protected property rights i don't think it has to be conscious shocking and that's course for procedural due process that's not even known as substance process so for substantive due process judge this would be arbitrary or irrational and i believe the disjunctive is used in most of the cases it doesn't have to shock the conscience although i think any of us might be shocked to find that a general generally applicable regulation no judgement this the particular regulation subsection also dealt with bars and restaurants yet far as in restaurants not just a restaurant that didn't have a liquor license would be subject to the same regulation would it not yes i know this was first of all this was not specifically directed at one particular place such as an administrative action that might require a hearing this was a law of general application to all restaurants and bars right now the fact that they did this to many people i don't think makes it any better for the city but it does for procedural due process because if you're asking for hearing what you're really asking is for re examination  the legislation i mean that's the only kind of hearing because there's nothing case specific about obsession bar you don't care how many customers you have and how big you are they're going you're just going to be questioning the validity of the legislation correct so what with that hearing look it would look like exactly what the alcohol beverage control law enacted by the state supposed to look like it would be a hearing to determine whether this license should be in some way tampered with whether it should be in any way revoked or curtailed and the state has occupied this entire field but that would be that would be a different procedure that would be a procedure directed individually at this particular establishment yet in that case you would be entitled to a hearing the question is what kind of hearing is any individual citizen entitle to before a municipality adopts a generally applicable regulation and the case law it seems to me is pretty clear that the answer is they're not that's not the kind of thing the procedural due process is about your honor i believe where they're tampering with the license and they know that there is at least a good chance that they are they have to say that no one gets to try this this  regulation will not apply well when you say why simpering with a license that goes back to my earlier question would this ordinance not apply to for example a mcdonald's that did not have a liquor license your honor it would although it would still be improper because zoning deals with land use and not hours of operation but that's not the case and i didn't really yes you're really there's no role in deciding about land use to say that in a residential neighborhood certainly that you can have for example garbage contractors running in the middle of the night in a residential neighborhood well i would be not as zoning regulation because about hours of operation if your are if they let a garbage compact in company into a residential neighborhood they've made that decision i think and they have to let them operate in the way that's necessary they can be a noise ordinance in addition that's separate from zoning but this is a licensure all right if that's your argument i have your argument i'm trying what i'm trying to figure out is the standard for substantive due process seems to be that something is old for viruses entirely and i'm not i'm having a lot of trouble understanding why if a municipality adopts something that facially is within its power it is conscience shocking totally ultraviolet is because a state court later decides that this was inconsistent with a state free emption as applied to some of the people to whom the ordinance applied and why should we conclude that because first this is not a preemption case we won that fight but more particularly the city was not going to court it was a preemption case that's what the state court decided and that's what gives you any leg to stand on here right you're here because you're here by because the state court decided that this ordinance was a violation of new york state law no your honor we're here because  the city did not have the right to be legislating in this area at all they did not have the right because that was inconsistent according to the state courts with a state wide regulatory program  no judge but let's take to jesus to hey suits the case that that started all this that case involved patrons and they were the legislation by the city rochester was targeted patrons who were prosecuted for going to after our social clubs and the court of appeals of new york said they can't legislate in this area at all but those patients would not have had a substantive or procedural due process right they don't have that client even though it was preempted their prosecutions are preempted there's no property right to going to an after hours club there is a property right in a license and the city had no capacity this was not of zoning law they had the right to make zoning laws but you cannot take away someone's state issued license i do you say this was not as zoning law and why do you say it takes away a state issued license if it applies to people who have no licenses at all for those people judge it would not obviously take away their license but it does take away  license and they had to know that there would be some people when they're targeting bars who would have a state license and they were taking it away and the fact they put it in the zoning code does not make it ok it's it's arbitrary because they didn't have the right to do it this would be like saying that i couldn't come down here today and argue this case because the city passed a law that was going to regulate my law license maybe they apply to every business all businesses will be closed on to a whit if the the if  i mean wouldn't that depend on the state law if the state delegated to the city the regulation of lawyers there wouldn't be a problem that's right judge but they have not done that what the state can do is very different from what the city can do and that's the point that's why this is deprivation the state gives a hearing before they take away your liquor license or compromise your liquor license the same with the state bar the city can't do that and that's why it's a fundamental deprivation and the city could have easily drafted this ordinance to say if this affects a state license you'll first get notice an opportunity to be heard before it applies to you but they couldn't but you'd say that would be wrong too because the city doesn't have the right to give a hearing that then takes away a liquor license only the state alcoholic beverage commission can do that the city has the right to give the hearing the city i maintain doesn't have the right will be no point having a jet would not help in other words it would because they would have heard about this before they toss us i'm sorry for the profit of the process and they would have heard about all of this where resorts he's won before they took away her revenue she had to fight this case without the revenue she would have been getting from twelve o'clock at night until two o'clock in the morning and that was no easy feat she shouldn't have had to do that i thought the part of the argument was that the district court failed to really consider in the first instance the point that it couldn't have been pled because it would have been futile and while that's the problem with that member this is an ordinance that the city created it might have been futile because they weren't allowed to ultimately in a few with a license the hearing itself would have prevented that interference or could have because look this case was heard and it was decided in ms ortiz's favor and had that all played out before she lost her liquor license then this case would not have been necessary because there wouldn't have been the damages for reven complaint to address the possible chill of the of the possible issues with the procedural due process judge i did not the first time that i even realized that that was what the lower court felt that it was not properly planned or that it couldn't have been played was when i read the decision which not only dismissed with prejudice but ordered the clerk to close the case both parties argued procedural due process it was clearly before the court in fact the court's first question to me is is there procedural due process and i said yes there was no pre deprivation hearing on page one ninety nine of the record of the pending i there was briefing that followed up oral argument i believe under rule fifteen the the correct question is not whether this was properly pled in the first instance noting that the fourteenth amendment doesn't use the word procedural either went on proceeded to consider the claim it did your honor and in fact we got to talking about damages which i thought in the lower court was a good sign that the city conceded at the of the appendix that very in fact was a pretty depravation violation a two thirty two line twelve the court she i'm just picking up the middle the sentence she was entitle to some type of minimal but some type of pre death progression hearing do you agree with that or not my adversary mr camp leader for the city at line fifteen yes that's correct i had no reason to believe at that point that we were even still talking about whether it was appropriate to have some minimal level of hearing for someone whose license was not only about to be taken but if the state itself took the license the state would have given a hearing and the state had the power at least to do something about it as taking the license that's not what's happening here if if the city takes passes a generally applicable zoning ordinance nobody gets or has a procedural due process right to a hearing that's bimetallic that's nine hundred fifteen just as holmes that's always been the law this is not the same kind of situation is it and i don't even stand what hearing you're asking for because there wouldn't have been the hearing would have to be about whether this ordinance is preempted or not by state law right no your honor it would be whether this ordinance interferes with a state issued property right that is outside the scope of what the city of rochester is allowed to regulate but isn't that what that's what the legislative process does and sometimes the legislature goes too far and does something unconstitutional but that doesn't mean that the legislative body has to give individual ised hearings to anyone who might be affected by legislation at which those individual people rather than the usual lobbyists and people with an interest to show up and try to argue against the legislation have a right to a specified individual ised hearing this isn't that which is not about that individual it's about whether this whole thing is unconstitutional and this is a novel situation just because they should have been legislating in this area to begin with and so at city or substantive argument what is it that novel money wouldn't we see hundreds of these cases so back in vermont if they decide we're not going to maintain any class for roads and it's going to be in the entire county we're not going to give every one of those people a hearing even if the state of vermont says wait a minute we're in charge of the roads will decide what you're going to maintain you're not going to have a hearing for each of those people through judge reese and that price is not a lot rice i'm sorry that's all right and i asked about how to pronounce gentle yeah and i did not and you know that the number one if apparently if you implicated there judge and also localities musicology vermont can likely legislate in the area a vehicle in traffic so they're not off the grid entirely when they're passing laws like that here the city of rochester simply should have been doing this with respect to a liquor license and they didn't know that they were taking this ortiz's license or not take it you're a judge laughs but if i tell it but they certainly knew that they were going to do this to some people more than one person was it confusion perhaps although they were a party to or at least they passed a law issue and people against a serious there was even someone in the record who stood up at the zoning hearing a citizen named alex white who said wait you can't do this i don't i don't think you guys are even allowed to consider a variance because you shouldn't have the underline in effect ms ms ortiz would otherwise have no recourse your honour's there is no way that she can  recoup for the damage that was done to her business so there is no state law cause of action against the city for adopting a preempted liquor ordinance munity judge this is it this is her court last resort thank you very much we've taken you will pass your time