[00:00:00] Speaker 04:
And we'll proceed to hear argument in the last case on the calendar for this morning, which is 24-6499 Norma Thornton versus City of Bullhead.

[00:00:26] Speaker 04:
And we will hear first from Ms.

[00:00:28] Speaker 04:
Simpson.

[00:00:29] Speaker 04:
Proceed when you're ready.

[00:00:39] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:41] Speaker 00:
Diana Simpson on behalf of Appellant Norma Thornton.

[00:00:44] Speaker 00:
I'm going to try to reserve three minutes for rebuttal.

[00:00:47] Speaker 00:
It is perfectly legal for everyone to share homemade food with others in Bullhead City parks unless they have a charitable motivation.

[00:00:54] Speaker 00:
Charitably motivated people are singled out for worse treatment than anyone else who shares food in public parks.

[00:00:59] Speaker 04:
Now, you're not raising any kind of a First Amendment claim.

[00:01:03] Speaker 04:
This is purely a substantive due process claim.

[00:01:05] Speaker 04:
Is that correct?

[00:01:06] Speaker 00:
There is no First Amendment claim, Your Honor.

[00:01:08] Speaker 00:
It's a 14th Amendment claim.

[00:01:09] Speaker 00:
We have both due process of law and equal protection.

[00:01:13] Speaker 00:
And so this is the opposite of the law in Grants Pass, where everyone was prohibited from sleeping in public parks, but some people wanted a special exemption.

[00:01:21] Speaker 00:
Norma is not asking for an exemption from a generally applicable law.

[00:01:24] Speaker 00:
Instead, she is asking to be able to engage in conduct that is legal for everyone else, but is illegal for her because she is engaging in the thousand- Is there any generally applicable regulation for food sharing in Bullhead?

[00:01:42] Speaker 00:
No, Your Honor.

[00:01:43] Speaker 00:
Food sharing is specifically identified by the motivation at

[00:01:48] Speaker 00:
the heart of the food sharers.

[00:01:50] Speaker 02:
So we have to look inside people's heart and mind to determine if they have a charitable intent in order to then criminalize that.

[00:02:00] Speaker 00:
That's exactly right, Your Honor.

[00:02:01] Speaker 00:
And so I think a hypothetical exemplifies what's going on.

[00:02:05] Speaker 00:
So on Monday, Norma can have a quilting bee where she invites everybody to come quilt, and then she will provide lasagna.

[00:02:13] Speaker 00:
That's perfectly acceptable, no permits required.

[00:02:16] Speaker 00:
On Tuesday, she can have a political rally where she invites everybody to come share, she'll provide lasagna.

[00:02:21] Speaker 00:
That's perfectly acceptable, no permits required.

[00:02:24] Speaker 00:
On Wednesday, she provides the same lasagna, but this time it's to people who are hungry, people who have nowhere to go and are in need,

[00:02:30] Speaker 00:
and all of a sudden she can't do that.

[00:02:32] Speaker 00:
She has to go through this very burdensome permitting requirement that all but bans what she's doing.

[00:02:39] Speaker 00:
And so this violates both due process of law under the history and tradition test and equal protection under Cleburne.

[00:02:48] Speaker 04:
How do you define the right?

[00:02:51] Speaker 04:
Because the Supreme Court has made clear that the right has to be defined carefully and with precision.

[00:02:58] Speaker 04:
How exactly do you

[00:03:00] Speaker 04:
define the alleged fundamental right that you claim meets the Glucksburg's test?

[00:03:07] Speaker 00:
Your Honor, I think this court's recent case in Regino gives guidance to how to define the right.

[00:03:12] Speaker 00:
And under Regino, formulating the right requires the court to consult both the scope of the challenge regulation and the nature of the plaintiff's allegations.

[00:03:20] Speaker 00:
And here, the ordinance

[00:03:22] Speaker 00:
Because it turns on charitable motivation, that provides the court really what it needs to know.

[00:03:27] Speaker 00:
And so I think Norma has a right to not be singled out for her charitable motivation in order to share food.

[00:03:34] Speaker 00:
And so whatever the scope is of the broader right to perform charity, we know that within it, encompassed within that right, is this narrower right to not be burdened based on her charitable motivation.

[00:03:47] Speaker 01:
Council, if we recognize a right to perform charity as a fundamental right, is our analysis under the rational basis test the same for the due process claim?

[00:03:57] Speaker 00:
No, Your Honor, if it is a fundamental right, if this court recognizes it as such, I think strict scrutiny would then apply.

[00:04:03] Speaker 00:
And the city hasn't met even close to its burden under strict scrutiny.

[00:04:11] Speaker 00:
And I think there is no doubt that a right to perform charity is fundamental under Glucksburg, under the test in Dobbs, under the test in Bruin.

[00:04:19] Speaker 00:
And we know that because it's deeply rooted in history and tradition.

[00:04:22] Speaker 01:
Do you also argue that you prevail under the rational basis test that would apply if we were not to recognize a fundamental right, correct?

[00:04:29] Speaker 01:
That's right, Your Honor.

[00:04:30] Speaker 01:
So is there any other than of course this is an interesting and novel theory that you're arguing on behalf of your client.

[00:04:39] Speaker 01:
Is there any reason why we wouldn't reach the lesser

[00:04:43] Speaker 01:
less novel issue here and just conduct an analysis under rational basis if we were to agree with you there.

[00:04:49] Speaker 00:
Your Honor, I think equal protection is perhaps an alternate way to resolve it and the rational basis test as applied by Cleburne really charts the path forward under that one.

[00:04:58] Speaker 00:
And so the ordinance here irrationally distinguishes between people who share food in the park for charitable purposes

[00:05:05] Speaker 00:
and those who share food in the park for any other purposes.

[00:05:08] Speaker 00:
And identifying this distinction at issue is easy because it's the text of the ordinance itself.

[00:05:13] Speaker 00:
It goes through and does the exact singling out that is forbidden.

[00:05:18] Speaker 02:
Well, the city can say we have a rational basis for this particular regulation.

[00:05:23] Speaker 02:
We wanted to prevent, I think food safety was one of the reasons they've given

[00:05:30] Speaker 02:
They also, safety and security, I believe, safety was another.

[00:05:35] Speaker 02:
They gave several reasons.

[00:05:38] Speaker 02:
Why aren't those reasons

[00:05:40] Speaker 02:
that are rationally related to the restriction that they've implemented here.

[00:05:44] Speaker 00:
Your honor, the court in Cleburne, what it did is it faced a host of arguments from the government saying that this action in Cleburne was rational.

[00:05:54] Speaker 00:
And so what the court did was it went through each argument and saw that that particular interest was not actually tied to the government action.

[00:06:03] Speaker 00:
And that's exactly what we have here.

[00:06:04] Speaker 00:
And so this law does not promote food safety at all.

[00:06:07] Speaker 00:
And we know that.

[00:06:08] Speaker 04:
What do you make of the

[00:06:10] Speaker 04:
fact that it has an exception for sealed prepackaged foods.

[00:06:17] Speaker 00:
So your honor, that certainly I think that that decreases the government's interest in the trash argument that they that they put forward because nobody could hand out seal prepackaged food even for charitable purposes, correct?

[00:06:32] Speaker 04:
Yes, your honor.

[00:06:33] Speaker 02:
But it also has an exception.

[00:06:35] Speaker 02:
All right, go ahead.

[00:06:36] Speaker 04:
You have a fundamental right

[00:06:38] Speaker 04:
that it has to be my home cooking as opposed to prepackaged food?

[00:06:43] Speaker 00:
So I don't think that's how I would define the right, Your Honor.

[00:06:45] Speaker 00:
And it's because everybody else can, of course, share the prepackaged food, but everybody else can also serve that homemade food.

[00:06:52] Speaker 00:
They can share that homemade food.

[00:06:53] Speaker 00:
And the only reason Norma can't share that homemade food is because of the motivation that's in her heart.

[00:07:01] Speaker 00:
And so going back to that food safety interest, state law allows Norma to serve all of this homemade food completely exempt from any state regulation.

[00:07:10] Speaker 00:
And she can also serve that exact same food on private property.

[00:07:13] Speaker 04:
But it sounds like it's ultimately a discrimination claim.

[00:07:17] Speaker 04:
I mean, because even your fundamental, it's not a fundamental right to present charity because you can't present charity so long as you don't use homemade food and you use prepackaged food.

[00:07:26] Speaker 04:
It's that the people who can use

[00:07:30] Speaker 04:
homemade food are those with one purpose and here it's another.

[00:07:36] Speaker 04:
I think that goes to the heart of the equal protection argument.

[00:07:39] Speaker 04:
It seems like it's your only argument because I don't see how when there is a means to carry out the charity and it's used prepackaged food as opposed to using homemade food and it specifically

[00:07:54] Speaker 04:
says it's prepared, not just any prepared food, but prepared food requiring distribution in a timely manner or temperature control for safe consumption.

[00:08:03] Speaker 04:
So it is tying it to the public health concern.

[00:08:07] Speaker 00:
So your honor, the point I would make in response to the kind of food safety concern is, as I just said, state law allows the sharing of that food by norma to anybody without any regulation.

[00:08:18] Speaker 00:
State law has exempted from regulation that type of food sharing.

[00:08:22] Speaker 01:
So I think to Judge Collins point, each of the reasons that the city is given for making this restriction, whether it's food safety, public nuisance,

[00:08:35] Speaker 01:
ensuring use of the parks, et cetera, that the distinction really goes to the equal protection treatment of charitable sharing of food and non-charitable sharing of food.

[00:08:46] Speaker 01:
So, I mean, I understand that distinction.

[00:08:48] Speaker 01:
What I am also sort of not completely understanding is how that distinction is now

[00:08:56] Speaker 01:
giving rise to your your claim for a fundamental right.

[00:09:01] Speaker 00:
Your honor so the the fundamental right question is sort of about the distinction but it's really more about the fact that the government has prohibited certain it has prohibited people from engaging in food sharing in the public parks and

[00:09:16] Speaker 00:
it cannot do that.

[00:09:17] Speaker 00:
To the extent that your honors are skeptical of that claim, then equal protection is a perfectly valid route through to rule for Norma in this case.

[00:09:27] Speaker 04:
I want to make sure I correctly understand your reading of the ordinance.

[00:09:33] Speaker 04:
Is it correct that it excludes not just seal prepackaged foods, but also prepared food that doesn't present timing or temperature control safety issues?

[00:09:49] Speaker 00:
Yes, Your Honor.

[00:09:50] Speaker 04:
Okay.

[00:09:53] Speaker 00:
Judgment does it, you'd asked about kind of one of the safety concerns that the government had raised before, and I think the public nuisance concern that Judge Desai had raised.

[00:10:03] Speaker 00:
And we know that the government, the law doesn't promote this kind of interest of threatening behavior, and the government can't really enact ordinances in a way that is based on stereotype and invective about people.

[00:10:16] Speaker 00:
We know that from Cleburne, and we know that this law isn't about even

[00:10:20] Speaker 00:
homeless people generally norma homeless people are allowed to use the park.

[00:10:24] Speaker 00:
The city agrees with that.

[00:10:26] Speaker 01:
Um, and and the city articulated that basis for enacting this ordinance.

[00:10:32] Speaker 01:
What would that do to your claim?

[00:10:35] Speaker 01:
Pardon?

[00:10:36] Speaker 01:
If the city had just come out and said that they are trying to avoid the massing of homeless people in the park, would that have been without have satisfied the rational basis?

[00:10:45] Speaker 00:
I don't think so your honor under under cleaver because government cannot form rules and regulations based on stereotype and based on effective and to the extent that everyone is allowed to use the public park.

[00:10:57] Speaker 00:
That is a generally applicable rule and everyone is entitled to use the park.

[00:11:00] Speaker 00:
They're held in common for the public use.

[00:11:03] Speaker 00:
And so to carve out a group of people not based on the actions of a single person, but based on stereotype about that group of people that happens to be a pariah group is directly contrary to the to the holding in Kleber.

[00:11:19] Speaker 00:
And so without kind of the government interests at issue here, without the food safety, without the trash and litter, all of which are otherwise illegal, and without this threatening behavior, all that's left is the ordinance's true aim, which is to punish homeless people and to remove them from the park.

[00:11:36] Speaker 00:
And the city admits that it can't do this, but that's all that's left once you do this Cleburne's analysis and go through.

[00:11:43] Speaker 00:
And that's illegitimate.

[00:11:46] Speaker 00:
And so unless this court has any other questions, I'd like to save the remainder of my time for rebuttal.

[00:11:50] Speaker 04:
Thank you, counsel.

[00:11:51] Speaker 04:
We're here now from Mr. Crown.

[00:12:20] Speaker 03:
Please the court.

[00:12:23] Speaker 03:
This is titled a food sharing events ordinance.

[00:12:27] Speaker 01:
So, counsel, before you even get into your argument, I'd really like to understand so that we're all on the same page.

[00:12:34] Speaker 01:
What are the government's specific interests that justify the food sharing events ordinance?

[00:12:40] Speaker 03:
Well, they're multiple.

[00:12:41] Speaker 03:
And that the answer to your question goes right to the heart of the facts of this case, supported by the evidence in this case.

[00:12:48] Speaker 03:
that is in the record for summary judgment.

[00:12:50] Speaker 01:
I would like just a list of the interests.

[00:12:52] Speaker 03:
Absolutely.

[00:12:54] Speaker 03:
You have protecting the public at large from receiving food that is unhealthy either because it wasn't prepared in a properly licensed controlled kitchen from improper storage, improper handling,

[00:13:13] Speaker 03:
It also is the regulation in a reasonable way.

[00:13:17] Speaker 04:
What about her point that if you're handing out the food at, you know, like a yoga class or a political meeting, you can do exactly the same thing so long as it's not, and you can give it out for free, so long as it's not for a charitable purpose, which equally implicates the interests you just articulated.

[00:13:39] Speaker 03:
Again, there's a whole body of permits and regulations in the public parks of Bullhead City.

[00:13:45] Speaker 01:
And so when you have other events... So do I disagree with the premise that if the plaintiff wanted to hand out lasagna at a yoga class or at a quilting class, that that would be subject to a different ordinance?

[00:14:00] Speaker 03:
A yoga class isn't the public at large.

[00:14:02] Speaker 03:
If it fits the definition of this ordinance, then it comes within the food sharing event because the

[00:14:08] Speaker 03:
These food sharing events are non-social gatherings.

[00:14:12] Speaker 03:
So by definition, the yoga class is analogous to that private birthday party or a graduation party.

[00:14:20] Speaker 03:
It's a controlled group where there's accountability.

[00:14:23] Speaker 04:
You have in this... What work does the phrase for charitable purposes do?

[00:14:28] Speaker 04:
Does any free distribution of food fall within this ordinance that is offered to the general public?

[00:14:37] Speaker 04:
Does any free distribution of food in the park to the general public as opposed to a closed meeting or group, does that fall within the ordinance or is it a narrow subset, only distribution of food to the general public for a charitable purpose?

[00:14:59] Speaker 03:
No, no, no.

[00:15:01] Speaker 03:
As you see in the section 5.36.020 definitions, food sharing event

[00:15:07] Speaker 03:
is multifactorial.

[00:15:09] Speaker 03:
Non-social gathering is one factor.

[00:15:11] Speaker 03:
Then it has to be planned, organized, promoted or advertised by a private group or organization.

[00:15:17] Speaker 03:
It has to be at a public park where prepared food requiring distribution in a timely manner or temperature control for safe consumption is served or distributed and for charitable purposes is further defined at no cost or nominal charge

[00:15:33] Speaker 04:
And the last factor is... Okay, so you actually kind of implicitly answered my question.

[00:15:39] Speaker 04:
You were treating the phrase charitable purpose as essentially equivalent to at no cost or for a nominal charge.

[00:15:47] Speaker 04:
Yes.

[00:15:48] Speaker 04:
So that any redistribution of food that otherwise meets the requirements is covered

[00:15:55] Speaker 04:
regardless of the subjective purpose, it's the fact that food is being given out to the general public for free under these conditions.

[00:16:02] Speaker 03:
Sure, or nominal clause.

[00:16:06] Speaker 02:
Having a party there and giving out free food to the homeless person that's at the corner wanting a plate of food, that would be a need for a permit?

[00:16:17] Speaker 03:
at a corner and not in the public park.

[00:16:20] Speaker 02:
Well, in the park, in the park.

[00:16:21] Speaker 02:
Let's say they're in the park.

[00:16:22] Speaker 02:
Let's say they're on the bench.

[00:16:23] Speaker 03:
If somebody were to give a person there, they're at a birthday party.

[00:16:28] Speaker 02:
Yeah.

[00:16:29] Speaker 03:
And somebody walks over and says, we have some leftover and you give it to a homeless person.

[00:16:34] Speaker 03:
Totally fine.

[00:16:35] Speaker 02:
That's not this why it's it's free.

[00:16:37] Speaker 02:
It's giving it to someone for charitable purpose.

[00:16:42] Speaker 02:
Under the statute, I need a permit.

[00:16:46] Speaker 03:
Your example

[00:16:47] Speaker 03:
is not a planned, organized, promoted, or advertised event for the purpose of feeding people at no cost.

[00:16:55] Speaker 02:
Can you have dual purposes?

[00:16:57] Speaker 03:
I'm sorry?

[00:16:58] Speaker 03:
What if you had dual purposes?

[00:16:59] Speaker 03:
Well, if it doesn't come within the statute, then it's going to be proper and reasonable.

[00:17:06] Speaker 02:
But if it comes within the statute, and that's what Bullhead City... So if the person decided to have a party and have a purpose of, I'm going to have

[00:17:17] Speaker 02:
my friends over and have a party.

[00:17:20] Speaker 02:
And by the way, I'm also going to feed the homeless at the same time.

[00:17:25] Speaker 02:
Would that not be allowed?

[00:17:27] Speaker 03:
Well, Your Honor, now you get into more the enforcement aspect, and that's no longer looking at just the plain language.

[00:17:35] Speaker 03:
If the purpose is a guise to violate the permit,

[00:17:38] Speaker 03:
Then you'd be but you'd be violating the ordinance.

[00:17:41] Speaker 03:
I didn't mean that apartment.

[00:17:42] Speaker 03:
Violating the ordinance.

[00:17:44] Speaker 01:
I want to make sure that you have the opportunity to provide me with every reason justification that the city believes supports this ordinance started with protecting the public at large.

[00:17:56] Speaker 01:
And and I I think Judge Collins asked an important question that I would probably ask for every single purpose that you list, which is why is the focus on

[00:18:06] Speaker 01:
the charitable nature of the giving of food.

[00:18:09] Speaker 01:
But I want to hear the list also.

[00:18:10] Speaker 03:
So what are the reasons?

[00:18:12] Speaker 03:
So again, when the list is there was a lot of community complaints about crime, about indecent behavior, about waste, about people defecating in the park.

[00:18:28] Speaker 03:
And that triggered a extensive over 10 year analysis with the Homeless Task Force and every

[00:18:35] Speaker 03:
community organization with Bullhead City working to address this problem on a global multi-factor basis.

[00:18:43] Speaker 03:
So that led to that.

[00:18:44] Speaker 03:
You have land that's on the Federal Bureau of Land Management.

[00:18:48] Speaker 03:
It is owned by the federal government.

[00:18:50] Speaker 03:
And as part of the general plan, you have to be able to have multiple uses.

[00:18:54] Speaker 04:
Does this ordinance apply to federal land?

[00:18:59] Speaker 03:
It applies because we lease it from the federal land.

[00:19:02] Speaker 03:
So yes, all the parks in Bullhead City are owned by the United States government.

[00:19:06] Speaker 03:
It is all part of the Bureau of Reclamation and it is administered by the Bureau of Land Management and that's in the record.

[00:19:13] Speaker 03:
So you have a lease and you have to identify the development of these parks with the multiple uses from baseball fields to tennis courts to boating activities.

[00:19:23] Speaker 03:
So you have beachfront property to ramadas to children's play areas.

[00:19:27] Speaker 03:
You have the Mojave County Health Department and they require food safety and you have in the record.

[00:19:34] Speaker 01:
Why for this particular justification does there need to be a distinction between charitable food sharing and non charitable food sharing?

[00:19:42] Speaker 03:
Because that was the essence of the problem that was studied for over 10 years.

[00:19:47] Speaker 01:
What was the essence of the problem?

[00:19:49] Speaker 03:
I'm sorry, I didn't mean to interrupt, but you had you had people that were making the parks of Bullhead City proprietary.

[00:19:57] Speaker 03:
They were coming and serving food, breakfast, lunch, and dinner.

[00:20:02] Speaker 03:
They were taking over bathrooms.

[00:20:03] Speaker 03:
They were taking over ramadas.

[00:20:04] Speaker 03:
They were taking over the picnic tables.

[00:20:06] Speaker 03:
They were taking over areas and saying, we're here.

[00:20:09] Speaker 03:
You can't be here.

[00:20:11] Speaker 03:
And so part of this, and again, I say it's a global totality of the circumstances approach.

[00:20:16] Speaker 03:
And the case law says we look at the facts.

[00:20:18] Speaker 01:
So if you had a group of school children who decided to go to the park and hand out food,

[00:20:26] Speaker 01:
one Saturday afternoon, would that be something that falls into the charitable food sharing ordinance?

[00:20:35] Speaker 03:
If it's planned, organized, promoted, and advertised, where it's going to draw a large crowd.

[00:20:40] Speaker 01:
So if they just showed up, if a group of them got together on a Friday afternoon after school and said, hey, tomorrow on Saturday we should go to the park and we should hand out food, that would or would not meet?

[00:20:53] Speaker 03:
Again, if the food is prepared and not prepackaged,

[00:20:56] Speaker 03:
So you have that element, and you have people coming, and it's promoted.

[00:21:01] Speaker 03:
So you're going to draw a big crowd.

[00:21:02] Speaker 03:
And they're going to cook at home in an unregulated condition with no controls, no accountability, no requirements.

[00:21:11] Speaker 03:
And if it comes within this definition, it would fall that you would need a permit.

[00:21:16] Speaker 02:
The judge decides questions because I also want to understand the interest.

[00:21:21] Speaker 02:
It was protecting for food safety, the crime,

[00:21:24] Speaker 02:
waste and litter and identified.

[00:21:27] Speaker 03:
There's more to it.

[00:21:29] Speaker 03:
You have to I have a long list and I appreciate you asking.

[00:21:33] Speaker 03:
So you have the Mojave County Health Department requirements that the food has to be you have to have a food handlers license.

[00:21:41] Speaker 03:
You have to know what you're doing.

[00:21:43] Speaker 03:
It's not just Norma Thornton.

[00:21:44] Speaker 03:
What if you had someone that is has a

[00:21:47] Speaker 03:
ill will towards homeless people.

[00:21:49] Speaker 02:
Which she had, right?

[00:21:50] Speaker 02:
I'm sorry?

[00:21:51] Speaker 03:
She had.

[00:21:52] Speaker 03:
I didn't say she had an ill will.

[00:21:53] Speaker 02:
I thought she had a food handler's permit.

[00:21:56] Speaker 03:
You wouldn't know that because without the application, you wouldn't know that.

[00:22:01] Speaker 03:
There'd be no accountability.

[00:22:02] Speaker 04:
Is it facial or as applied challenge or both?

[00:22:05] Speaker 03:
Well, they're making a facial and as applied challenge and neither one has merit because at the end of the day, this is both constitutional under a substantive due process analysis and procedural.

[00:22:16] Speaker 03:
But let me continue with the global analysis.

[00:22:19] Speaker 03:
When Catholic charities built their shelter, and it's an absolutely beautiful facility, that is a license-regulated kitchen.

[00:22:26] Speaker 03:
It serves 6,000 meals a month.

[00:22:29] Speaker 03:
And the city gives free bus passes.

[00:22:31] Speaker 03:
So it is very simple from anywhere, not just people going to Community Park, which is the name of one park, there are several parks.

[00:22:38] Speaker 03:
And you get on the bus, you get off right there, you walk up the hill, 150 yards, you unlimited.

[00:22:43] Speaker 02:
I don't understand what that how that matters.

[00:22:46] Speaker 03:
Well, the reason it matters is part of the global effort.

[00:22:50] Speaker 02:
It is also to move homeless people.

[00:22:53] Speaker 03:
No, a homeless person can go in the park all day long.

[00:22:57] Speaker 03:
A homeless person can go get food that's given.

[00:22:59] Speaker 03:
And that's why when you asked about the sidewalk, the reason is if you get it in the sound of public park and they bring it in, no problem eating it.

[00:23:06] Speaker 03:
There's no discrimination here.

[00:23:07] Speaker 03:
There's no ill ill intent at all.

[00:23:10] Speaker 03:
But if Bullhead City is going to allow just indiscriminate use of food that might be unsafe and someone gets injured,

[00:23:18] Speaker 03:
As they said, they're facing liability.

[00:23:20] Speaker 03:
Plus, Bullhead City is located in an isolated part of the state.

[00:23:25] Speaker 03:
They need to have their limited resources always at the ready.

[00:23:30] Speaker 03:
So, by having an application process, they're able to know what events are coming.

[00:23:35] Speaker 03:
If 100 people show up for this, and they're also doing a little league tournament for the weekend,

[00:23:40] Speaker 03:
and they're having some other event along the Colorado River, how much police, how much fire, how much paramedics do you need to marshal the city?

[00:23:48] Speaker 03:
But if people could just show up and be proprietary, you don't have the ability to manage resources.

[00:23:55] Speaker 04:
Does the record say, if anything, about how many people would show up at Ms.

[00:24:00] Speaker 04:
Thornton's food distribution events?

[00:24:03] Speaker 03:
Well, it wasn't just her events.

[00:24:04] Speaker 03:
The record as the testimony by Toby Cotter, which is extremely compelling,

[00:24:09] Speaker 03:
And candidly, it's extremely overwhelming.

[00:24:11] Speaker 03:
You could have 50 to 100 or more people.

[00:24:15] Speaker 03:
That is taking control of a park.

[00:24:18] Speaker 03:
And without any regulation, it was three times a day, breakfast, lunch, and dinner.

[00:24:22] Speaker 03:
And so what they did was they created within the context of the other uses for the global community as a whole, they created a reasonable balance.

[00:24:33] Speaker 03:
And that's why when you look at this park, it would be the worst thing to do with the

[00:24:39] Speaker 03:
District court said, they cherry picked the record.

[00:24:43] Speaker 03:
You could cherry pick case law, you could cherry pick a thousand years of history, but what you're never going to be able to do is the Supreme Court said in Grants Passes, a few judges, and I say this very respectfully, does not have the collective wisdom of the community.

[00:24:58] Speaker 03:
This is an extremely impressive display.

[00:25:01] Speaker 03:
I would say that when you compare what Bullhead City has done in this community with other communities around, they stand at the top of the list.

[00:25:09] Speaker 03:
It's very humane, it's very balanced, it's very reasonable.

[00:25:13] Speaker 01:
How do you distinguish this case from the Supreme Court case in the city of Cleveland?

[00:25:17] Speaker 03:
I'm sorry?

[00:25:17] Speaker 01:
How do you distinguish this case from city of Cleveland?

[00:25:22] Speaker 03:
This case provides, first of all, you're dealing with the rational or reasonable basis test.

[00:25:29] Speaker 03:
And when you have the type of record you have, and again, it's a compelling record.

[00:25:34] Speaker 03:
So when you look at the multiple factors that have been balanced in a reasonable way,

[00:25:38] Speaker 03:
It is not just let's send it back and let's re-edit this.

[00:25:42] Speaker 03:
At some point, when the community comes together with the multitude of groups that all weighed in, and you have this, and again, no one's depriving anyone of the right to use the bar.

[00:25:51] Speaker 01:
I think the reason that this case, and I think your friend on the other side noted it several times, is because the distinction in that case, and it would have satisfied rational basis.

[00:26:02] Speaker 01:
it had applied to everyone.

[00:26:05] Speaker 01:
And like here, this isn't an ordinance that applies to everyone.

[00:26:09] Speaker 01:
There is a carve out for people who are sharing food for a charitable purpose.

[00:26:16] Speaker 03:
So I'm going to read from their brief, which concedes the very point you just asked.

[00:26:21] Speaker 03:
On page 31 of their brief, they state the following, and I set it out on page 52 of mine.

[00:26:26] Speaker 03:
They say the city may regulate park food sharing generally.

[00:26:29] Speaker 03:
It may distinguish among park gatherings of certain sizes.

[00:26:33] Speaker 03:
It may more aggressively enforce its existing laws that already prohibit littering and other nuisances.

[00:26:39] Speaker 03:
It may in short address park nuisances in the same manner the government across the entire country has addressed park nuisances for hundreds of years.

[00:26:46] Speaker 03:
Norma does not object to that.

[00:26:48] Speaker 03:
She does not suggest that her good intent exempts her from general applicable laws governing conduct such as a ban on littering in the open hours of the park.

[00:26:56] Speaker 03:
And as this court already observed, when you apply the standard, it has to be clearly defined, it has to be concrete.

[00:27:05] Speaker 03:
and specific.

[00:27:06] Speaker 03:
You just don't create some generalized right that in the name of charity we get to do anything.

[00:27:11] Speaker 03:
There is no such thing as an unfettered right to do whatever, however, and whenever you want.

[00:27:17] Speaker 03:
This is a reasonable regulation and whether you analyze it under the substantive due process clause or the equal protection clause, it meets the constitutional standards.

[00:27:29] Speaker 03:
I urge you to affirm Bullhead City.

[00:27:31] Speaker 03:
I urge you to

[00:27:33] Speaker 03:
embrace what they've done in a reasonable way, provide the judicial deference, and affirm summary judgment.

[00:27:41] Speaker 03:
Thank you.

[00:27:42] Speaker 04:
Thank you, counsel.

[00:27:42] Speaker 04:
We'll hear rebuttal now.

[00:28:02] Speaker 00:
So 1 thing I'd like to mention is that the exceptions to the special events permit show that food can be distributed to public in the parks for free.

[00:28:11] Speaker 00:
And so there are 3 different types of regulations about food sharing generally in the parks.

[00:28:17] Speaker 00:
There's the food sharing ordinance that we challenge here.

[00:28:19] Speaker 00:
There's the special events permitting system, and then there's mobile food vendors and so special events systems are these are the temporary activities that are intended for purposes of entertainment education cultural patriotic religious ethnic or political expression.

[00:28:35] Speaker 00:
And that.

[00:28:37] Speaker 00:
Exempted from those events, which is to say exempted from permitting completely are things like holiday craft boutiques and political rallies and organized league sport activities like little league, which is what we talk about in our briefing.

[00:28:50] Speaker 00:
And so special events, they're able to share far more often.

[00:28:54] Speaker 00:
than food sharing events can and the charitably motivated food sharing events.

[00:28:58] Speaker 00:
They can serve up to five times a month and no one else is barred from hosting in the same location as the food sharing ordinance does here.

[00:29:05] Speaker 00:
And so the food sharing ordinance limits each host to once monthly regardless of location.

[00:29:10] Speaker 00:
It limits each location to once monthly, regardless of host, which means that Norma's ability to exercise her right is limited by someone else's ability to exercise their own rights and vice versa.

[00:29:23] Speaker 00:
And so we have these kind of three groups here.

[00:29:25] Speaker 00:
And so mobile food vendors or commercial food operations, they can operate in the park with a licensing agreement by the city.

[00:29:31] Speaker 00:
And so this first group of people who are distributing food are people who have no permit restrictions at all.

[00:29:37] Speaker 00:
These are people who are sharing for reasons other than charitably motivated purposes.

[00:29:42] Speaker 00:
These are political rallies.

[00:29:43] Speaker 00:
These are the things exempted from the special events permit.

[00:29:45] Speaker 00:
They have no limitation on any of the things they can do.

[00:29:48] Speaker 00:
The second group is this intermediate permit restriction, so the special events.

[00:29:52] Speaker 00:
They have some restrictions on them, but not nearly as many as NormaFace is.

[00:29:58] Speaker 00:
And the third group is the harshest permit restrictions, which is the charitably motivated people.

[00:30:03] Speaker 00:
And so the food sharing ordinance defines the food sharing event as something that is planned, organized, promoted, or advertised, not and.

[00:30:13] Speaker 00:
And so any time that Norma goes and plans to share food with people in the park, there's nothing more formal than that.

[00:30:20] Speaker 00:
As soon as she does that, takes her food to the park and shares it with people with a charitable intent,

[00:30:24] Speaker 00:
she is suddenly facing that permit restriction.

[00:30:28] Speaker 00:
And this applies without regard to the number of people that she serves, whether she serves three people, whether she serves 30 or 300, which she doesn't do.

[00:30:36] Speaker 00:
She serves about 40 people, give or take, at dinner a few times a week.

[00:30:41] Speaker 00:
And that's in the supplemental excerpts of record at 362 to 663.

[00:30:45] Speaker 00:
We know that Norma has her food handler's permit, and this is the only part of the ordinance that addresses food safety at all.

[00:30:51] Speaker 00:
And so ultimately, Norma is challenging no generally applicable laws.

[00:30:56] Speaker 00:
She's not challenging the ban on camping, which the city has and is free to enforce after grants pass.

[00:31:01] Speaker 00:
She's not banning the she's not challenging the city's ban on littering, which is generally applicable.

[00:31:07] Speaker 00:
or any reservation system that the city could set up to kind of dictate how the park is used.

[00:31:12] Speaker 00:
She's not challenging the restriction on threatening behavior, which is already illegal.

[00:31:16] Speaker 00:
She's not challenging the restriction on public hours of the park.

[00:31:20] Speaker 00:
She simply wants to use the park in the exact same way that everyone else can who has a slightly different motivation.

[00:31:28] Speaker 00:
So unless your honors have any other question, we request that the court reverse the decision below.

[00:31:32] Speaker 00:
All right.

[00:31:33] Speaker 04:
Thank you, counsel.

[00:31:34] Speaker 04:
The case just argued.

[00:31:36] Speaker 04:
Will be submitted and that completes our calendar for this morning and the court will stand in recess.