as the panel is aware this case involves the application of the local city ordinance against an entity that applied to operate a mobile hot dog cart in downtown monroe michigan  the operation of the ordinance set forth a general licensing provision and then at the end of the ordinance indicated that if the operator intended to be on any city sidewalk city street in the downtown area and that was defined as a restricted area that the operator needed to obtain permission from the mayor in the city council to operate within the restricted area now the the application in the timing in this case is important with respect to some of the assignments of error that we've we've made in this particular case because after the lawsuit was filed and one of the claims made in the lawsuit was that the restricted area portion of the ordinance did not have any specific standards as to to guide anyone relative to when the mayor or the city council would approve the ability to operate within the restricted area so the lawsuit was filed in two thousand and nine july two thousand and nine there was a motion that was filed in september of two thousand and nine there were significant settlement discussions that occurred over a period of time and there were some delays in the case for as a result of some extraneous issues but ultimately the city of monroe before that issue was decided elect to amend its ordinance to remove the restricted area component of the organs so in this particular case the argument that was advanced by the appellant that the particular ordinance with the addition of the restricted area section did not have any specific standards was never ruled upon but it was still relevant to a determination in the case because there was a two year period two particular summers where the appellant's were not able to operate within their restricted area or after it's played what is it you know like honor we are also challenging well there's two things number one i believe that the definition of the distinction between what a hawker and peddler is and what a transit merchant is is fairly vague and i we is our position that the city has been a little circumspect circumspect about wanting to tell us which one we are we hop or pedler are we a transit and what what turns on that well the issue then becomes if you're a hawk or an peddler there's a ten minute restriction that would limit any particular operator from being in one location within ten minutes our other argument if it's applied if it applies would be that the ordinance doesn't indicate how longer haul far in particular how far you would have denied it was in late two thousand and twelve but there was a one year period of time where my client didn't didn't get a commissary application from the department of health so there's actually a two year period of time didn't get an apple didn't get a permit they didn't apply for they didn't submit it for it i mean within that it did just as stated ministry commissary permit sounds like you know health and safety regulation you can appeal that through some state administrative process right and more to do with the having an available kitchen you actually have a table that's not part of this it only explains why there's a period of time for where we're requesting damages and then there's actually a one year break where in fairness they didn't complete the application process but then what did the judge do with that claim i don't i don't think he addressed it i interestingly in when he denied the t r o was being moved as a result of the amendment of the ordinance he specifically stated in the opinion that the issue of damages was still alive controversy when he grant ultimately granted the motion for summary judgment that was filed in two thousand and twelve there was no discussion about it at all if you  my we did not ask for reconsideration we just filed the appeal and on a brief before us and help me if i'm wrong all that i see about damages is just your statement in the summary that th brief where we set forth the factual underpinnings ok i'm just i'm just having it in the you know the third of general rule about some attempted developed argumentation is there anything you know you're right that's before you get to the summary of a argument  use the word damages on page seventeen and then i don't find anything there after is that fair i don't i don't think that's a fair reading of the brief your honor because i know that we even compared the earlier opinion on the t r o application to the later review just moving to the table i'm not sure that there's any real argument and there's not anything about damages was what i was focusing on predicate of the motion for summary judgment was that there was no that he dismissed our legal claims but i am noting that the court never addressed many of the constitutional arguments with respect to the that two year period notably with respect to the lack of standards argument had to if there was a determination and then we believe would be favorable to the appellant there would be then a finding that there were that the ordinance as it existed before the amendment was constitutionally invalid if it's constitutionally invalid then we're entitled to present our claims to the to the trier of fact give me the connection between the existence of the restricted area and the lack of standards is that the that even though the area was restricted some businesses could operate within it actually any any business would have to just get permission from the mayor and the city council but it was ever asked for that her maid did and it was denied and when it was denied the city council was written was pacific in the comments that that the reason they were denying it is that they felt it was unfair for the local merchants who were paying real estate taxes to have someone with a mobile business operating in the same area and therefore not having the burden of taxes there are two council individuals who specifically express that they felt it would be an unfair proposition and therefore they expressed their intent to protect local merchants versus the mobile any mobile vendor who would want to operate your for your dormant commerce clause argument though where is the interstate out of state in the sense that a a business owner you know might be you know wal mart from somewhere and not be local in your transients merchants could be either out of state or in state  the i mean it seems to me i can understand your saying protectionism of bricks and mortar but that doesn't intrinsically tie it to in state out of state which is what the dormant commerce clause is about the connection to interstate commerce we felt was best established through the purchase of a hot dog cart that came from out of state the hotdog cart itself cost nearly eight thousand dollars but but a storefront bricks and mortar could have bought a similar product from out of state so that again the dormant commerce clause requires something that based on citizenship discriminates between in state and out of state people it's not that there's not a connection to commerce in order to get jurisdiction but i'm asking you where in it is there anything that says for example that a out of state hotdog vendor would not be able to operate or maybe violation rather than the issue of citizenship with respect with respect i think the dharmic commerce clause isn't about impact it's about discrimination between the two not that you're just impacting it because otherwise everything that restrict businesses in any way would affect interstate commerce because almost everybody buys something from out of state so you know i don't know that i would if i could use the words case out of puerto rico as an as a way of addressing that ordinance that significantly taxed any any out of area brewers or any out of area brewers and there was a local connection with respect to the brewers as well who had distributorships  within the province of puerto rico so but the issue was is because the beer wasn't brewed in puerto rico that they then were subject to higher taxes so in that particular case i think it demonstrates that  it that you can have local individuals who may have the same citizenship but based upon their relation to you that's what judge boggs is getting at because there if you look at the situation you have an ordinance that burdens that distinguishes between locally produced in foreign produced beer but here this ordinance doesn't say if you are from within ninety miles of monroe you don't need a permit but any further you do and might my assertion is that the discriminatory you list your evidence of damages reminds me was that submitted to the district court in the form of an affidavit it was around it was actually a spreadsheet that went along with the  without having the opportunity to review the briefing in significant detail your honor i can't tell you that i have the page number ready for that but i will note ok and the spreadsheet you're referring to is this exhibit two page id seven seventy three to seven seventy five that's correct your honor all right thank you calculate your behavior time for  don't behalf of the defendant affably so why did the judge just miss the the damage claim where the judge stated pretty clearly that he believed there was no factual support for the damages claim there was a deposition taken of the owner of the dog pound and she stated several different times in several different ways several different beliefs that she had of what kind of damages she would be able to have we're talking mostly about projected losses here because there was no actual loss that she could substantiates and she didn't operate her car for two years but i'm page twenty four ever deposition she indicated she thought she would make about one hundred thirty dollars a week net on page twenty five she thought maybe one hundred ninety dollars a week gross on thirty she then change that page thirty she change it to about one hundred dollars a day net on page thirty five she decided it would be two hundred dollars a week gross and page thirty eight she believed again one hundred dollars so sales obviously being different than the net so i think what the judge basically determined was plaintiff had no idea and couldn't establish a claim for damages or what her damages might be and because the burden was on her to do that in light of our motion page of his opinion of two thousand and twelve granting our motion for summary judgment he states the second amended complaint may be fairly read as asserting some claim for damages for that five month period under the one nine yes and we goes on to state although it does not plausibly develop any factual or legal arguments in support of its conclusory claims so i believe that's the basis for the judge's decision ok that before or after this was submitted that table that you referred to your honor and her deposition itself which as i stated the deposition was unclear at best as to what her damages may have been does suggest that there is potentially damages for a two year period two thousand thousand and ten arguably she also didn't file an application with the city to get a license in two thousand and ten so while she alleges that we would have been what's the distinction between your what you just said about not applying for a license and what he says about asking the mayor and city council for permission to operate in the restricted area plaintiff was issued a license in two thousand and nine she was hired for a license she was issued that license and that meant that she could sell with her cart however in at that time in two thousand nine prior to the amended ordinance you also needed to see if you wanted to sell in downtown monroe a special permission from the met from the mayor and the city council that allowed you to do that in the restricted area as we've noted in two thousand and seven that ordinance was amended and that restricted area was removed and subsequent to that you could sell in the downtown area which the dr now is but in two thousand and two thousand and ten they remain just restricted areas so there is a license application process and then so you do say she did get a permit and she did ask the city council and it was denied is that fair in two thousand and nine she received a license requested to sell in the restricted area and was denied the restricted area she was not denied sales she could sell anywhere else around but not at least in principle she was not able to sell in the restricted area because of the effect of the ordinance plus the effect of the city council not allowing her to the city council and as plans council pointed out at the city council meeting one of the reasons that she was not allowed to sell in the restricted area was because there was this concern about him and on the taxpaying brick and mortar business there is their evidence in the record as to whether others had been given permission to operate in the restricted area my understanding is no one else had ever been given permission to operate there and still has not i believe she's the only vendor that operates out of the well but now she doesn't need permission to operate the restricted area there is no restricted area correct one of the other reasons given by the city council was that there was a concern for congestion and traffic flow she has it's a very large cart it's substantial  fact and there was some response from the city that look our sidewalks are only so big if you put it on the sidewalk people are going to have to move around you into the streets etc and so there was some concern about that and the district court found that that was a legitimate purpose for the city and it had a rational basis to restrict or what and what about the distinction between transients merchants on the one hand and hawkers and does the application distinguish between them do you private property and they're on public property and i don't deny going to every turn so if they are on public property they have to move every ten minutes is that the distinction which is at least i can understand why you might say that is that embodied in any document regulation ordinance anywhere i think it could be loosely interpreted from the ordinance but i'm not i wouldn't say that it's crystal clear but then you both say that she has been operating has she been on problem what kind of private property has she been on he's been on public property and she has been subject to the ten minute rule and my understanding is that she has not always followed it and the city has tried to be not a hawker or well you know arguably there are transient merchant which means that she can operate anywhere but if she apparatus on private property she's protected from the ten minute rule and she's not doing that but wait a minute if she's a transit worker then she's not subject to the rules i mean you're you're ordinance doesn't distinguish between private and public property does it not not i don't it's words but in crystal clear language no it's not it's more of an application of the ordinance as the city is currently a plain well ho while she's been in discussions with the city numerous times and so she's and has full understanding of the city's the way that the city is implemented at least thus far you know whatever discussions there has been you haven't i mean if you said we're going to throw you out because you're violating the ten minute rule and you're not a trans am merchant then we might have a different lawsuit but at least at the moment that hasn't happened i take it at this point they have on occasion when she has occasion she has moved and us the problem has been averted but but there really is no definition i mean from from language maybe we all i don't know with you we're making the same thing that a hawk or a pebble or you know is like somebody that's you know got a shoeshine box around their hand or is you know walking around saying by the by the street sense magazine and a transience merchant would be something a little more stable than that which would seem if you ask me as a linguistic matter i would say she's not a hawk or a pebble or she's you know one step up from that and i have my understanding with the way that you read the ordinance that that is a good interpretation there but then your way of harassing her is to say that there's also a private property limitation which doesn't seem to be in any written document anywhere act ok that seems to be what's happening current on the record but so so what do we do with that i mean well outside the re is unfortunately this is all into the record and so i we can i can i father say what's in the record is essentially plaintiff filed a lawsuit alleging that the city had violated her constitutional rights by creating this restricted area that did not permit her to sell in the downtown the city then amended that ordinance and that restricted area is no longer there and so she is permitted to sell in the downtown area she did not file an application for four of the years that she's claiming she's entitled to damages well for a  license so knew that she was facing this ten minute limitation she did arguably she did i guess i can't speak for her i don't know that she knew that but yes arguably she knew there was a ten minute violation and so the amended complaint in the second verify complaint then moved their argument to more of a well there's still a ten minute rule and the ten minute rule is unconstitutional well being that was the was the contours of the ten minute rule with the distinction between markers was has that been consistent or was th distinction added in twenty eleven i don't believe any distinction was added in twenty eleven i believe only pieces were removed ok regarding their strict area if she believes she was a transit merchant then from the very beginning she wouldn't of thought she was subject to the when correct now we believe that the district court correctly decided that the ten minute rule is constitutional there are numerous cases that suggest that you can completely ban sales in a downtown area for a legitimate purpose in the gym reasons if you don't violate the objection and due process which we believe there was no violation here and so the tenant rule is constitutional and so whether or not she feels harassed whether or not she has to move a little bit in her mobile hotdog cart which she states is a mobile card and how far do you have to well that interesting the honor has never been argued or discussed until today there was no discussion in any brief or in any legal argument or factual argument as to a clear that outside the record and you say she has in fact moved to times do you have any memory of how far she moved on those occasions i understand from my conversation with the city was that she moved off of the sidewalk onto a grassy area on the county property and that was sufficient and and we were done we're talking five to the dust fire that's how it's been applied i think everyone sort of wondering is the ten minute rule legal and constitutional and then can we apply it and if so they will apply it i believe an argument is and the district court found we believe properly that the ten minute rule is a constitutional is constitutionally supported there is no violation of any due process or the protection or dharma commerce clause with the plaintiff in this case based simply on the ten minute rule its application is a little shady as you've noted and that is crystal clear as it should be and again we can amend ordinances and try to clarify that but that's outside the scope of what's before this court what's before this court is saying she only applied in twenty thirteen i thought both your adversary and some of the record indicated that she had filed pieces of paper that were applications on some other times and you had said they were insufficient to be your real application to apply in two thousand and nine i was awarded a license and was not permitted to sell in the strict area that's the one your we may be talking about regarding damages but as we've discussed plantain substantiate her damages for that year she process she knew what she had to do to get her license and so anybody who wants an application for anything in the city has to meet those requirements was there not in the ordinance they are not in the order they need to meet up for this for the  principle you're saying that you told her the application is deficient and she never attempted to cure correct correct in two thousand and eleven she then never applied in two thousand and twelve nor in two thousand  again through two thousand and ten two thousand and twelve she didn't even have a commissary to support her hotdog stand so our argument is if there are damages they're limited to potentially one summer in two thousand and nine play it didn't factually support illegally support her argument that she suffered those damages or what those damages were and thus the district court was proper in granting our motion for summary judgment as to damages as well as the other claims and that even if she is restricted now by the ten minute rule that  peppers any other application in the ordinance to such a rule not to my understanding it applies only to hard peddlers who by the city's understanding are people who are operating on a public and a public area ok thank you ok it's commercial yes it's commercial sale goods and and i am sorry i don't have it specifically have they thank you counsel thank with with the remaining time here i have it here first i do want to address the issue and i understand this may be a little bit outside of the record but i'm offering this as a comparison to the existing ordinance that we're looking at with respect to the city of mineral the issue of moving every ten minutes this this specific ordinance does not indicate as i indicated before that how far you do have to was that one of the objections that was litigated because we've never gotten to it i think it's probably correct to say that the city who has not been happy about the hotdog cart being there has been some dustups during the summer but you know no citations have been issued no one has moved in that regard for that so it hasn't been litigated because they court of michigan in that case we had a it's an older case in one thousand nine hundred five but we have a situation where we had in ordinance that dealt with restricting the operation of  truly unregulated vendors in private parking lots floors and things such as that the ordinance that was adopted indicated that they could not stay in one spot but him importantly within the ordinance indicated that they that they actually had to move within a particular period of time i'm sorry and so with respect to the particular ordinance and we're left wondering how far do you have to move and i understand that isn't exactly but by since it's been discussed i want to give us what is your claim that the ten minute rule is unconstitutional it's unconstitutional because it creates  of the class discrimination between local versus local versus permanent residents that if you did anything to create a a burden on it would be unconstitutional to discrimination under the equal protection clause of the united states by noting that in the living case the basis was this there were there was evidence in the record that there had been significant problems and the police had to be regularly involved with these parking lots and they made  important distinction that it was held because of the police issues and in contrast to the cases we cited in our brief not for the financial benefit of a few in our case it's very clear that their decisions are based upon protecting a few people only now it's one minute rules based on yes correct because it it it is a it makes it in it makes it difficult if not impossible to operate within the city of monroe the heart it's obviously protects the restaurant if somebody can't set up a restaurant out on the sidewalk in front of them that is correct but let me ask you this because i've discovered in the briefs there is a selling offering for sale or taking orders for any kind of edible item good where merchandise and so on and so on so that does sound like you're a hawker peddler transience merchant is to find a person engaged temporarily in the sale from any lot premises building or structure is that your understanding and is that has that been discussion about that difference because it does sound private although a lot is a sidewalk different from a lot otherwise it sounds like a pop up you know kind of a pop up store you're a transience merchant if you operate from any premises building or structure it was raised in discussions with judge lawson off the record but that the distinction was never actually ruled upon in the can even when i was listening to both of you she actually seemed to be saying they were harassing you more than you did  you said she had operated apparently relatively successfully you have any view on that and i i will say that there were individuals within the city who were going to other elected officials in the county in the city asking those elected officials to take certain actions that were within their discretion and within their authority the county clerk the city clerk and fortunately for my client those individuals declined to take any a very close at least from your point of view she really did operate relatively successfully she moved occasionally but it didn't grossly interfere with her business that is correct ok what  about her deposition regarding damages their position well the deposition has some some items and i'm i'm sure that in if she was cross examined in front of a fact finder that they they could probably make some points on but  the posture of the case was a summary judgment and you know they they can cite to things where they can argue that she was inconsistent with respect to you know certain dollar amounts and things such as that but i think that's cross examination i don't think