ethiopian restaurant versus the cap county determination that although the county was going to treat as a grandfathered use for a late night establishment it was not going to do so as far as a night club and so we looked at the definition a night club  obviously that's embedded in the to the section that addresses the slop process and we just we said well it's true it is true as this cour written order from a few weeks ago said we didn't apply for slop when i said we sheba sheba didn't apply for slab but it's very clear that mr baker and others in the county were enforcing or  ordinance as being a violation of the st amendment if if what what you want is to be subject to if you want to be a non conforming entity not subject to the or why i don't it is just as simple as this week you're right that it wants to be recognized as a nonconforming use that is true but in the event that doesn't happen as the board is zoning and the zoning board of appeals has determined it wants the alternative argument to say well that's fine you're you're now you're subject to me to a prior restraint and that's just lakewood vs plain dealer publishing that's the reason so we you know we're being told she was being told it has to apply for the sl and the response to that is number one we're grandfather we don't need to but in the alternative it's an unlawful private straight you don't have any business applying it to us so that's that is it and i will say that this case is really in the main it's an equal protection case the answer to that is yes when the cabbie are being you know at the c p a hearing you get five minutes five minutes you can't call witnesses you can't cross examine witnesses you you know it's not much of a hearing but you could waive in those five minutes you can raise you can say anything you want about it but the problem in that case to your nd question would it if that were the case that i it just boils down to this if you read the complaint start to finish which i understand the panel hash you can't count on is if those facts are true is that's a prerequisite for bringing the claim to the superior court isn't that right where it could be fully and fairly limited it's a judge prior it's a yes to the georgia superior court and in fact they did it's not in the  not in the complaint but that zoning attorney did submit written objections and did raise it litigate the claim before the board we when you say litigate i'm going to raise that argument before the court right you could go back to yes it has to be a meaningful hearing and i'm saying it wouldn't be a meaningful effort to litigate this type of claim before the zoning board kept county is just not but judge prior to answer your question yes that is a condition precedent conceivably could be litigated before a board and then on into a search warrant proceeding if i had a facial challenge to assign an ordinance for example that didn't quite in the evidence discovery things like that there were no damages for example let's just say it was that it was a sign revocation case would have been cheaper one sheeple one could they have been let me ask the same question could these constitutional claims without having to go through an administrative process because none at app and at that point could they have been raised there they could've been raised there that's true and it's not problematic if we find aid to dismissal issue where there is certainly the fact that you could have raised it in cheap wine would be problematic right just like when you say could have raised it the constitutional claims that are raised in federal court i apologize for not being specific no that's fine you know the ca count it defense to applaud for it to be the same cause of action if they have the claims have to share the entire set of operative facts and that your claim  if those kinds are not barred but registered it got to your appy i'm delighted i'll go to the site and how do we square which prior just read with our decision in starship which i understand to be applying georgia law which said that quote one resolving that issue being rescued or kata ga courts look to see whether the claims arise from the same subject matter and then later in applying that saying that wagner's denial of the starship's application for business there was a proper revocation of the c e o in the business license but it is much bigger than that it's not just we're not just tip for tat on whether we do or don't get the business license back to the business license is a denial without prejudice i see most of my time good morning ma'am please the court when it was bennett bryant on behalf of the county and the individual county officials named in this case and georgia law bars this action and georgia law does not violate due process and this court should not hold the georgia law violates due process for for several reasons one because art i mean listen let's talk about whether joe georgia law bars the entire action court did litigate and equal provide all that doesn't georgia law require that all the operative facts be the saying and that they've got allegations of racial discrimination and worn it issue and the state facts that were being alleged there had nothing to do with racial discrimination well your honor i would i would respectfully disagree with that because what what the facts that were raised in those and those in those cases were  actions of the county and actions of county officials and in issuing citations and conducting inspections and and in issuing administrative decisions and the question was whether or not i those officials were properly applying the law and whether their decisions were arbitrary whether those decisions and actions were targeting shiba so i'm hearing in new to this maybe my confusion and correct me please m my confusion yes here i'm hearing something judge pryor keeps quoting georgia law to say the operative facts and if that's the standard i want you to say so what conclusions will draw from that we might disagree with but whether that's a standard but i'm looking at starship  and the georgia law that is its sights and it doesn't mention anything about operative facts what it does say is that georgia courts look to see whether the claims arise from the same subject matter and quoting from lawson versus watkins  one decision of the georgia supreme court quote one must assert all claims for relief crews concerning and this is actually highlighted there the same subject matter in one lawsuit and any claims for believe concerning the same subject matter which will not be raised it's that maybe it's the same maybe it's not but all operative facts would seem to be different then arising out of the same subject matter yet and what is the proper test so the proper test is whether it arises out of the same set of facts and that is crow v elder that was a two thousand and take cohen versus c d c software court case from the georgia supreme court in twenty eight that neither side which says where some of the operative facts necessary to the causes of action are different in the two cases the latter suit is not upon the same cause of action as the former all the subject matter maybe this same and even though the causes of action arose out of the same transaction yes one of the georgia supreme court said two years ago that's true your honor and again the way the manner in which that that particular issue comes up in most of georgia case law is when there are new for acts that have occurred after the previous adjudication before those those are necessarily arise from a different set of facts if the facts occurred after the after the previous adjudication and that was the issue in morrison the the morrison and and so again it's it is it is the court did say that it was it was an overruling many previous cases that that applied the subject matter test however it did just clarify that we're looking at generally the same set of facts and the same set of facts are are present in each one of the cases here says subject matter is not the sa it's not enough same transactions not enough it has to be the same entire set of facts and mark my concern is they didn't alleging anything about racial discrimination in the state action well certainly within the same that is the exact same facts that would apply to a targeting claim would apply to an equal protection claim i mean targeting really is saying that there is an equal protection issue here and the court and the zoning board specifically said you know there's been allegations here that the county has targeted shiba and so it's because because those same facts would apply to targeting two to equal protection discrimination those do come from the same from the same facts they arise out of the same set of facts and just just so i understand the clarification here and i think this is what you said if new facts arise from litigation one the litigation two and the allegations don't have the same set of operative facts then that wouldn't be covered by the cohen case that judge priors had from but if the facts were the same from litigation one litigation to and they just decided to allege some more in litigation to and i believe that cohen was you know relying on that line of cases that said that facts that arise out of that arise subsequent to the initial lawsuit but also of course that isn't that isn't a bright line rule that's not the only time that colin would apply however that is generally the way in which it is it is a resin in georgia case law and in this case there are especially when we consider the rd voluntary dismissal that extends that time frame in which the previous judgment would preclude later facts that have arisen after the initial lawsuit has a president your opposing counsel said that we learned after this litigation arises thing developed that there were e mails between the citizen and and the commissioners and based on this new information that would seem to be more broad about targeting ethiopian restaurants in this neighborhood as opposed to other restaurants we now can allege these other facts isn't that what what has been argued alleged it has your honor and the facts that the facts that have been alleged subsequent to the  and sixteen of the southeastern reporter nd series although both of cohen's lawsuits are related to the determination of is employment was c d c the two suits are based on different wrongs and different sets of operative facts accordingly suits contain different causes of action and the nd state's not barred by register to connor in the st sued to and raised contractual claims against c d c for failing to pay amount to do under its employment contract and the entire set of facts falling it doesn't have to do with the later discovered facts or anything like that this distinction that the supreme court of georgia drew was to me kind of a claim by claim distinction and your breach of contract claiming it had facts to support yet that don't necessarily are not necessarily coextensive with the claim the tort claims that you're bringing in the current suit and therefore this suits not conduct and it seems to me very similar to this problem in this case where there is no claim of racial discrimination and the earlier sit again your honor the the facts that would support  equal protection claim are the same facts that would be applicable to the claims that were actually raised and great to disappoint the due process and mandamus claims that you would have to prove that there was there had been racial discrimination and that  it to prove that the actions of the county were arbitrary and were targeting that and would necessarily e could say that it's arbitrary without it being racially discriminatory well that's true your honor however if the if she but one i the is the hang up here and we can just focus on she two and she before because we have to evolve and you know we have we have more about if the court were to determine that she but one does not apply to this analysis because it's too different we at least decision and at the z b a hearing the at the z b a hearing the facts that were raised there and the the attention brought to the county officials actions would have the same factual overlap targeting targeting a business would be the same facts as treating a business differently than other businesses and and so it would be it would arise out of the same facts your honor and  again i would say that you know we have a georgia supreme case mccracken versus city of college park that specifically says that claims that could have been raised in a petition for sir bars later claims to me is the latest clarified what the what the standard was it didn't it didn't it didn't overrule other cases and mccracken is more on point because it's an authoritative construction of georgia law that binds us as to how to understand all those earlier for and for other types of of relief if those if the claims could have been raised in the petition for certain other thing your honor i think that it's important to keep in mind here is that is that this is a two dismiss case actually it's really a three dismissal case and so this this this this this raises slightly different issues because if you look at the text of the rule forty want under federal law and under state law it specifically says that  that you know they involuntary dismissal that you know for lack of subject matter jurisdiction is not an adjudication on the merits and there isn't a similar there isn't a similar provision in the voluntary dismissal part of either statute and that shows because of because there are less concerns there are less due process concerns and fairness concerns when the playing to visit is in control when the plaintiffs chooses the venue and georgia law this case is barred by red judicata and and as to the standing argument i can address them briefly we have i think the case that is most on point is unpublished case that starship enterprise of atlanta versus fulton county two the county determined that a business had more than twenty five percent of his merchandise was was adult and therefore it needed to apply for a special permit the plaintiffs said no we don't have to it doesn't apply to us we're not an adult establishment and therefore we don't need the permit and the in the th circuit held that there was no standing to challenge the provision that required them to have a special land use permit thank you but here here they say they of that case was whether the ordinance itself caused the violation or whether it was the county officials actions that caused the violation and in that case the court said because the plaintiff alleged that it was not subject to or did not need a special land use permit and in this case says we do not need a special land use permit then the and they don't have standing to challenge that provision you're on what about is turning to argument  again we have to look at how it's played and in in the face of the complaint they plead and say that they are not subject to four dot to dot thirty two and so we have to assume at this reflect a constricting of the idea of what a cause of action is under georgia's richard case law and i agree with court one hundred percent on the way to interpret ing it one thing justice melton said in the cohen case which nightclub the evidence of that hearing and that's a doc twenty seven dash one that's a transcript talked about there were pictures and you know what post about dancing in customer music at the at the business