mccullough and his immunity to that client and with time allowed i may try to address the taking his client and the rightness or lack of rightness as to the city this case came came to this court once before it is a situation where mr mccullough who was the city's building official revoked a certificate of occupancy for mr jabari is business these are different occupancy allowed the business to be a his sinks throughout the building were blocked and operable and there was tobacco and tobacco preparation devices scattered throughout the kitchen the magistrate judge determined that these undisputed facts a permanent revocation on circumstances where the court found that there was a reasonable basis for determining if your records have a long history of dealing with public health there was no case cited by the district or or by the district of bahrain where if both of those factors existed a court found that the government interested in taking the restaurant that he wasn't serving any food that's correct it's thought he had on the premises spoiled unexpired but if he's not running a restaurant me if he's really not operating as a restaurant or making his money some other way then why is there an emergency that would necessitate shutting it down without going through the process  about here that's what he said when the guy asked about a sandwich ok it's got a gotcha question ok but the fact is that he was not operating a restaurant at the time he had a permit but he wasn't doing it so the so if any other customer came in the door and wanted to buy food the risk is mr job i will do exactly the same thing either of a fact i don't know that there really was a risk of that and i thought that that's what the district court that it says that it's a fact issue created by the testimony of mccullough himself to determine which version of the facts is stated as  situation sounds to me that you're arguing that the district court were drawn to found that there was any violation of the law not i mean like him and when the circumstances at that time i am was a violation of the constitutional right and i think vincent addresses that directly you have to find specific facts in a case to put  was unconstitutional and that hasn't been done here that wasn't done in the district courts analysis although the district court agreed that the facts that i've pointed out or a sufficient basis for finding mccaw was facing a public health emergency rather i couldn't put my finger on an emergency issue and so he's not saying there is a public health emergency so that facts which were determined to be a reasonable basis for finding the emergency you know there was a reasonable basis clearly there was a reasonable basis to find that there was a violation of the law question is whether that the solution was made to revoke mr bari permit before mr mccullough ever came to the baris doorstep on the day he left the hang tag there is ample evidence inside the record that illustrates there was a plan of action this is a coordinated plan of action it permeated the entirety of the city of allen every high ranking official every the chief of police police officers it spread across the board they had made their mind up prior to and even if he was not making fifty one percent food sales which is the argument that they raise inside the record inside those emails to form the basis of the revocation even if he wasn't doing that that did not apply to question was whether or not that he had to have a hearing well and certainly and there's adequate procedures if that was the basis for the revocation the cited in the record at believe it's twenty nine thirty eight at three twenty nine forty five that is a different city ordinance raised by the defendants that will it illustrates if it is the basis of an emergency on the food safety issues then not only must you get notice but you must get informed of that right to a hearing that's the statute are the ordinance goes on to say that the people that are going to make up the panel are going to be practical they're going to be one of the code inspectors and they're going to be a number of other people appointed by the people inside the city of allen that was raised by the city of allen as the correct ordinance of what they should have done they should have gone through that but had they gone through that then the revocation would have gone through appropriate channels it would have gone through an appropriate mechanism that jabari would have had the knowledge of and the benefit of going through and at least trying to find a lawyer before he knew that his permit was going to be revoked they didn't follow that  out it might not necessarily be that we didn't dispute the facts but because on testimony disputed the facts when this is washed through a lawyers office going through on a on preparing affidavit or a declaration it becomes much more refined when you're looking at testimony of that individual during deposition i could put my finger on it i couldn't put my finger on that issue i don't know what that emergency issue was could put my finger on it i would like to turn to issue because that is partially intertwined and it was not not addressed entirely by by mr jeffrey on the first time you would like us to dismiss for lack of jurisdiction is that correct on the first claim the one that you were just arguing about about that the big facts issue because we we can't when there's a fact issue we don't have the right to not believe in reviewing the record and we have made contradictory arguments and i will admit to that but there is a fact if you that fact issue and i believe the takings issue it does underpin a bit of the due process claim because it forms the basis of why we're in the position we're in we're in the position we're in on the taking his claim because the city of allen ignored the proper procedure had the fall the ordinance had they followed up the avenue had the fall of that where they gave him notice mr jabari would have been able to show up and present some kind of meritorious defense and then once they decided that mr mccullough is not any more capable of making that determination on whether or not he should have the certificate of occupancy at that hearing then we would in different stance procedurally in this case were not because that underlying ordinance was inadequate to provide the remedy requested which is also damages but it's also inadequate to provide appropriate review of the taking to claim this court i believe it was in the what should we do about it as from your point of view we we've we've done what  your honor jolly's indicated we went back and attempted to write down the claim which is i believe what is required under williamson county and this court's decision in vulcan materials both of those cases speak of right being a claim  williamson county talks about right in the claim by proceeding to a state court remedy vulcan materials talks about the inadequacies of the on availability of the underlying state court remedy which is what i believe we have in the circumstances we have a state court that smith on right because there's an argument started dismissed on sovereign immunity but those can't possibly be the law in the state of texas that the state retains in unity for taking place that is something that is constitutionally waived by the texas constitution and the federal constitution the takings but why isn't your case nonetheless blocked if the state court lawsuit was dismissed for failure to comply with the reasonable state law exhaustion requirement in your claim is not right under liberty mutual it's not right under texas law i believe it has right been for the purposes of federal law we don't quite raise to the level of being blocked by a a c and remote type instance because in the in the sand rem position they had the opportunity to have their day in court and to determine whether or not that remedy was available they ultimately lost after a trial and several appeals we never got to the point of making any determination besides that trial court making the decision two separate avenues of exhaustion in futility that need to be illustrated as far as the state court process it's a question of futility whether or not the futility avenue is available and whether or not that futility issue comes up and says sufficient enough to prevent the claimant from from going through the proper rightness channels which we argue would be the case because the correct ordinance once it's looked at indicates that the people that are going to perform the decision overworking the the takings claim is going to be the very people that perform revocation cells mr mccullough but in addition the underlying ordinance either one of them does not provide for money damages which this court in bowlby indicated that money damages are necessary component of providing appropriate complete relief in a takings claim if you're not going to be able to get money damages then that relief is inadequate and if that relief is inadequate then we district court and you ask the far compensation for the deprivation of the property and the the remedy federal district court when it was making its decision it was looking at the issues of whether rightness for state court purposes or whether in unity for state court purposes provided a bar for reentry to the federal court the immunity issues don't apply because texas is clear that it requires no additional waivers beyond that there are contained in the constitution as far as the rightness requirements the rightness requirements in the state court are one vein of this process and the other vein of that process is if those are inadequate are unavailable then we should be able to return to federal court there is i've watched philosophically about it i've tried for major financial analysis of it i have been dealing with this case since i constitutional law and looking at those processes as much as i can and recognizing i've been not as well educated and as knowledgeable about the law as the panel sitting before me looking at those issues looking at those separating out and having a right to your certificate of occupancy having that right being taken and then having no avenue to seek redress because of the failures of the statute to provide that redress or because of the decision of the court now been futile but the exhaustion requirement at the federal court level is something that was not squarely addressed by the underlying court of appeals so i believe that issue is separate anough from the futility argument which may have been decided but it's something that should be exhausted at the federal trial court level because it's now clear that the state court remedies and i could run available through really interesting can you explain the contours of the takings claim that you would actually try to make out is and regulatory taking a physical taking or something else the exact nature of what's happened is mr barr lost a certificate of occupancy he was barred from his lease so he couldn't return there  the landlord it up throwing him out once he lost that certificate of occupancy the shopping center and through the city's mechanism reassigned some additional certificate of occupancy to a no ten at the he couldn't do three part of the record but mr false to mr mccullough said let's agree that there's not fifty one percent food sales and then pull the c e o once we pull the c e o he then says then leave has suggested not to receive the c e o at on a main use as a smoke shop which is not commit so they've already made up their mind they've come down on him with force of the city of allen they have made up their mind before it showed up at this that mean main use as a necessary the question was whether or not a smoke shop in the specific designation of the city would be permitted the full smoking rush wrong seem to best fit his who callao and which also serve food or serve other drinks or whatever the case may be it was allowing it provided that that operating basis in the smoke shop concept is a lot of other places in the city of allen but not in that specific zone special use district for that specific district that is known for whatever the basis they used was it a regulatory tax i believe it's partially both because from what we've been able to establish on the regulatory side there is no regulation that actually says any of this so we're struggling with if it's a pure regulatory taking because there's no regulation that specifically says fifty one percent food sales is required in order not to be a smoke shop or fifty one percent food sales is required in order to be a restaurant so where it would traditionally be a regulatory taking based on the use of a regulation we now have something that's more or less a hybrid type regulatory taking where it's it's a regulation that they think exists but they've already said we don't think this is exist as a requirement interest and that's the best explanation i believe i can provide based on what we have so far i believe i've walked through most of what i wanted to address there were some questions before i returned my time there were some questions that were raised related to the sufficiency of the clearly established right i believe jux jolley in his prior opinion in this case citing two bowlby identified that as a clearly established right at that industry this issue about the underlying ordinances and i had a quote that was first raised in the appeal briefing following this court was never raised in a district court was never raised and that the state court proceedings it's too late to raise that now and it's unfair for the city to try to address that for the first time and appellate proceed the issue that i think is very important on this white  and it's severance and you patterson case decided a few years ago that case involved in a dispute over the texas high powered line and that case also had an administrative appeal process that did not allow for compensation and this court said that the court has never required you that has never required that sidestepping such a proceed your that doesn't allow compensation is sufficient to right then the client now the words in the severance case in this court said that under the that the takings and due process argument that a claim the procedure don't allow for the resort the state court prevents ever really getting to litigate to federal plans in federal court and again that was you help me very sickly on this how is the state courts judgment based on sovereign immunity if texas is waived sovereign immunity for the properly treated type of crime i'm sorry there's just a basic can we start the first principles if you don't have a waiver of sovereign immunity the court doesn't have jurisdiction and in this case we asserted the court didn't have jurisdiction i'm sorry a waiver of sovereign immunity as to the taking slam because it wasn't right and the proper court in the court of appeals agreed the this circuit in its flores case has already held twenty two years ago exact result except they commented that that would be an unfair result in that case because the plaintiff in that case hadn't had an opportunity to amend the pleadings i see i'm out of time i can reference one more