[00:00:07] Speaker 05:
Mr. Claybrook for the appellants, Mr. Love for the police.

[00:01:06] Speaker 03:
Good morning.

[00:01:08] Speaker 03:
May it please the court.

[00:01:09] Speaker 03:
My name is Brendan Clapperoth, and I represent the plaintiffs below, Mark Schuyhill and HRH Services LLC.

[00:01:16] Speaker 03:
This is a civil rights case brought by the plaintiffs against the District of Columbia in connection with conditions, unconstitutional conditions, that were placed on a liquor license.

[00:01:27] Speaker 03:
Specifically, in May 2016, the alcoholic beverage.

[00:01:30] Speaker 04:
Can I ask you about HRH standing?

[00:01:32] Speaker 04:
Do you have a better argument for standing than

[00:01:35] Speaker 04:
than the one you've offered in your brief, which I understand it is that the district court's order was ambiguous, so therefore not conclusive.

[00:01:44] Speaker 04:
Am I stating that right?

[00:01:45] Speaker 04:
Maybe I'm not doing justice to your argument, but what is your argument that HRH has standing and that the district court was wrong?

[00:01:52] Speaker 03:
I'm happy to address that.

[00:01:54] Speaker 03:
So with respect to HRH's standing, the court below found that HRH had initially filed an administrative petition for review that was ruled to, that was dismissed for lack of standing.

[00:02:06] Speaker 03:
And the court applied issue preclusion and said lack of standing because, what, what were the grounds for that?

[00:02:15] Speaker 03:
From our perspective, it's unclear from the D.C.

[00:02:18] Speaker 03:
Court of Appeals decision.

[00:02:20] Speaker 03:
It was very short order.

[00:02:21] Speaker 03:
It said it's dismissed.

[00:02:23] Speaker 03:
And there was a parenthetical that cited that standing requires an injury in fact.

[00:02:29] Speaker 03:
But it's our position that that's not enough to actually show that there was a finding that HRH lacked an injury in fact.

[00:02:38] Speaker 03:
But the important thing with standing for HRH is that

[00:02:41] Speaker 03:
subsequent to that original dismissal by the D.C.

[00:02:45] Speaker 03:
Court of Appeals, there was a separate and distinct injury that did occur.

[00:02:51] Speaker 03:
And under the curable defect exception, it tells us... When did you all argue that?

[00:02:57] Speaker 03:
So that was argued on a motion for reconsideration.

[00:03:01] Speaker 04:
There's a procedure to do that, isn't there?

[00:03:03] Speaker 04:
There's Rule 15B, don't you?

[00:03:05] Speaker 04:
Isn't there a way to supplement your pleadings when subsequent factual developments address the issue?

[00:03:14] Speaker 03:
So with the motion for reconsideration, we also sought leave to amend the complaint.

[00:03:20] Speaker 03:
Oh, is that okay?

[00:03:20] Speaker 03:
And in that amendment, it included that separate and distinct injury.

[00:03:24] Speaker 03:
But that wasn't granted, right?

[00:03:25] Speaker 03:
That was not granted.

[00:03:27] Speaker 03:
But it was before the court that there was, in fact, a $4,000 fine issued by the board, which was based on a violation of the liquor license conditions.

[00:03:39] Speaker 03:
So it's our position that that violation constitutes standing separate apart from the original DC Court of Appeals dismissal.

[00:03:52] Speaker 03:
So one other point with respect to standing is that the court below did not look at the proposed Second Amendment complaint, but instead looked at the status of the parties at the time the lawsuit was filed.

[00:04:09] Speaker 03:
overwhelming law across numerous circuits.

[00:04:14] Speaker 03:
The D.C.

[00:04:15] Speaker 03:
Circuit does not address this issue, but numerous circuits have, which basically states when you're analyzing standing in jurisdiction, you look towards the operative complaint that's before the court.

[00:04:29] Speaker 03:
So the court did not address the merits of HRH's unconstitutional conditions claims.

[00:04:38] Speaker 05:
So let me be clear.

[00:04:41] Speaker 03:
The operative complaint language refers here to what?

[00:04:44] Speaker 03:
The second proposed complaint.

[00:04:47] Speaker 03:
The proposed second invited complaint.

[00:04:50] Speaker 03:
Why was that operative?

[00:04:51] Speaker 03:
It should have been operative because

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Our position is the court should have granted leave to amend.

[00:04:59] Speaker 03:
And had it done so, that issue, that fact regarding the injury that occurred, would have been before the court.

[00:05:07] Speaker 05:
And it was an impulsive discretion because of an error of law?

[00:05:13] Speaker 03:
It was an impulsive discretion to not grant leave.

[00:05:17] Speaker 03:
Is that the question?

[00:05:17] Speaker 03:
I'm sorry.

[00:05:26] Speaker 05:
Yes, Your Honor.

[00:05:33] Speaker 03:
So the court did not get to the merits on the unconstitutional conditions claim for HRH or the First Amendment freedom of speech claim.

[00:05:45] Speaker 03:
Nonetheless, those claims were sufficiently pled.

[00:05:48] Speaker 03:
Here we have a situation where the DC Alcoholic Beverage Control Board conditioned the license on a relinquishment of HRH's constitutional rights.

[00:05:59] Speaker 03:
Namely, it's First Amendment freedom of speech.

[00:06:02] Speaker 01:
Which First Amendment freedom of speech issue?

[00:06:04] Speaker 01:
What's a First Amendment freedom of speech issue?

[00:06:07] Speaker 03:
So the First Amendment freedom of speech issue for HRH involves one of the conditions on the license required the company to notify the Metropolitan Police Department within 24 hours if Mr. Scott Hill was present at the restaurant, even as a customer.

[00:06:26] Speaker 03:
HRH was required to notify the Metropolitan Police Department and report him for a trespass.

[00:06:34] Speaker 02:
So this is compelled speech that... The requirement that they report to the government, is that what you're saying is compelled speech?

[00:06:40] Speaker 02:
Yes.

[00:06:41] Speaker 02:
So why isn't this completely resolved by our opinion and full value advisors versus SEC?

[00:06:48] Speaker 03:
I'm sorry?

[00:06:49] Speaker 02:
Why doesn't full value advisors versus SEC render this argument not cognizable, at least in the circuit?

[00:06:57] Speaker 02:
Let me just refer to that.

[00:07:00] Speaker 02:
That's the case in which we held that compelled disclosure to the government is not compelled First Amendment speech and is subject instead only to a rational basis test.

[00:07:14] Speaker 02:
That's the case in which required reporting to the SEC

[00:07:19] Speaker 02:
was held that way in which we said that, for example, people are required to report to the IRS their taxes, all of which could be considered compelled speech, but in fact is not.

[00:07:32] Speaker 02:
I don't understand why that holding doesn't eliminate this particular argument.

[00:07:35] Speaker 03:
Well, I think that's a different circumstance where that's the government carrying out its function.

[00:07:41] Speaker 03:
You know, as far as reporting to the IRS, we have statutes that require citizens to pay taxes and to report their income.

[00:07:49] Speaker 03:
Here we have a situation where it's within the discretion of the government to – the Alcoholic Beverage Control Board certainly does have the ability to regulate the sale and consumption of alcohol.

[00:08:01] Speaker 03:
That's not in dispute.

[00:08:02] Speaker 03:
But in doing so, it can't then compel a business, one business, just one, targeting one business, not everybody, to compel... That's not really the compel one.

[00:08:16] Speaker 02:
It's not a compelled speech argument.

[00:08:18] Speaker 02:
That might be some kind of equal protection or due process argument, but it's not a compelled speech argument.

[00:08:25] Speaker 02:
Why is it any different than, yes, the IRS, the government would like to make sure it has revenues so that it can make other expenditures.

[00:08:34] Speaker 02:
And its method of doing that is compelling people to report their income.

[00:08:38] Speaker 02:
The alcohol control board is required by statute to make sure that everyone who gets a license follows the law.

[00:08:47] Speaker 02:
And one method by which they do that is where there's been concern in the past, they require reporting.

[00:08:54] Speaker 02:
Now, that's exactly what we said is subject to rational basis tests.

[00:09:00] Speaker 03:
Well, I mean, here we have a situation where you have a private entity and it's on its own property being compelled to report to the government.

[00:09:09] Speaker 02:
Hey, I'm on my own property, minding my own business, and I have to file an income tax return.

[00:09:13] Speaker 02:
I don't understand why that's different, and I'm a private entity.

[00:09:17] Speaker 03:
Well, as to who you do business with and who's on your property.

[00:09:22] Speaker 02:
Well, I do have to report who I do business with because it requires me to report all the income I get from any investment I have.

[00:09:30] Speaker 02:
every exchange I make.

[00:09:33] Speaker 02:
I hope this isn't only me.

[00:09:34] Speaker 02:
I hope everybody else has the same requirements.

[00:09:36] Speaker 02:
Of course, Your Honor.

[00:09:37] Speaker 02:
All transactions in which I make or lose money, all those things have to be reported.

[00:09:44] Speaker 02:
So you can go ahead and move on to the next argument.

[00:09:49] Speaker 02:
For constitutional conditions, there has to at least be a constitutional violation, right?

[00:09:53] Speaker 02:
If there were no constitutional violations here, constitutional conditions would add nothing.

[00:09:57] Speaker 02:
Is that fair?

[00:09:58] Speaker 03:
I don't think there actually has to be a constitutional violation itself, because in the audit decision, the, for example, six lobbyists were sued.

[00:10:09] Speaker 03:
Maybe I should put it the other way around.

[00:10:10] Speaker 02:
There has to be a constitutional right involved, right?

[00:10:12] Speaker 02:
That is correct, Your Honor.

[00:10:13] Speaker 02:
So go through the other constitutional rights.

[00:10:16] Speaker 03:
Well, so even accepting, if we were to accept it's a rational basis review, there's still a First Amendment right that's being implicated here.

[00:10:26] Speaker 04:
What's your freedom of association claim?

[00:10:28] Speaker 04:
I didn't understand that.

[00:10:30] Speaker 03:
So the freedom of association claim is based on the fact here that the Alcoholic Beverage Control Board has prohibited

[00:10:39] Speaker 03:
Mr. Skyhill and the restaurant from entering into any type of relationship, whether it's a customer, business owner, or employer-employee.

[00:10:49] Speaker 04:
But they're all commercial relationships, right?

[00:10:51] Speaker 04:
That is correct, Your Honor.

[00:10:52] Speaker 04:
So you're saying the Constitution guarantees an associational right in the commercial context.

[00:11:01] Speaker 04:
The Supreme Court hasn't said that yet, right?

[00:11:03] Speaker 04:
It hasn't said that you want us to be the first to say that and you want us to say that this is what the Supreme Court has said is there's a category of intimate relationships.

[00:11:13] Speaker 04:
That is correct.

[00:11:14] Speaker 04:
And you're saying that the relationships here are which are commercial fall within that under that rubric of intimate relationship.

[00:11:22] Speaker 03:
Well, with Justice O'Connor's concurrence in the J.C.'

[00:11:25] Speaker 03:
's decision, it does recognize that there is some protection for a commercial association, even if it's minimal.

[00:11:33] Speaker 03:
So here, yes, we are asking that the court expand the body of law to recognize this commercial association as a right, even if it is just a rational basis review.

[00:11:45] Speaker 02:
Can I ask you to pause over that?

[00:11:46] Speaker 02:
When you mentioned Justice O'Connor's concurrence, there was a majority opinion.

[00:11:51] Speaker 02:
That is correct.

[00:11:51] Speaker 02:
The majority opinion said there's only minimal constitutional protection of the freedom of commercial association, right?

[00:11:58] Speaker 02:
So you're not asking us to say something for the first time.

[00:12:02] Speaker 02:
You're asking us to overrule Roberts versus J.C.'

[00:12:05] Speaker 02:
's, which is a Supreme Court opinion.

[00:12:10] Speaker 03:
Not overrule, but essentially expand upon.

[00:12:14] Speaker 02:
Well, this expand upon isn't exactly the same thing as they said, you get only minimal protection.

[00:12:20] Speaker 02:
You want us to get more than minimal protection.

[00:12:22] Speaker 03:
Well, even minimal protection.

[00:12:23] Speaker 02:
So that's rational basis.

[00:12:25] Speaker 02:
Yes.

[00:12:25] Speaker 02:
So you think you win under a rational basis.

[00:12:28] Speaker 02:
That is correct, Your Honor.

[00:12:31] Speaker 02:
So it's not rational for the government to

[00:12:39] Speaker 02:
decide that in order to ensure that the applicants are the true applicants and not a pawn for Mr. Scahill, that they should be sure Mr. Scahill

[00:12:53] Speaker 02:
isn't in the restaurant.

[00:12:55] Speaker 02:
That's not even rational?

[00:12:57] Speaker 02:
It's not, Your Honor.

[00:12:58] Speaker 03:
And the reason why is the board here put the cart before the horse.

[00:13:02] Speaker 03:
There's never been a finding at all as to whether Mr. Skyhill is qualified as a licensed city.

[00:13:09] Speaker 03:
In fact, he's been deemed qualified to manage any bar in Washington, D.C., in the entire District of Columbia.

[00:13:17] Speaker 03:
So there's never been a finding as to his actual qualifications.

[00:13:19] Speaker 04:
I thought he was implicated in the underage drinking violations.

[00:13:23] Speaker 04:
There were six of them, weren't there?

[00:13:25] Speaker 03:
There was never actually any findings of that that's referenced in the opinion itself, which was hearsay upon hearsay upon hearsay documents that was not even disclosed during the actual hearing itself through testimony.

[00:13:37] Speaker 03:
But there's actually, he's never found to be in violation.

[00:13:40] Speaker 03:
He still has a manager's license.

[00:13:41] Speaker 02:
Wait, weren't there fines for the previous company that he controlled?

[00:13:46] Speaker 03:
He was an 8% owner.

[00:13:49] Speaker 03:
So there were fines.

[00:13:50] Speaker 03:
And they were not even paid, right?

[00:13:52] Speaker 02:
He tried to pay them.

[00:13:54] Speaker 02:
I'm not sure what that means, but there was a finding that there were $26,000 of unpaid fines, something like that.

[00:14:00] Speaker 03:
And he made efforts to pay them and actually dropped off a check, and that's not in the record.

[00:14:04] Speaker 03:
It's not in the record.

[00:14:07] Speaker 03:
So it's not rational.

[00:14:09] Speaker 02:
They come in, they say, don't worry, we're not him.

[00:14:14] Speaker 02:
We're a completely different company.

[00:14:16] Speaker 02:
And so you don't have to worry that somebody who was a previous owner in a bar that served repeatedly underage drinkers in order to make sure that that doesn't happen again, we, your client, will not allow Mr. Skahill, I got the pronunciation obviously wrong, Skahill.

[00:14:39] Speaker 02:
Skahill.

[00:14:39] Speaker 02:
Skahill Inn.

[00:14:42] Speaker 02:
You don't think that's a rational decision by the,

[00:14:47] Speaker 03:
Well, I think it's overreached to say that he cannot even go into the restaurant with his family to get a meal.

[00:14:55] Speaker 03:
I don't think that's rational.

[00:14:59] Speaker 03:
And there's also never been any findings as to whether he was the owner of this business or not.

[00:15:04] Speaker 03:
So I think what the board should have done was if they do think there's a violation, they have investigators that can investigate this.

[00:15:14] Speaker 03:
Or at the same time, HRH will have to be before the board again to renew its application, at which point those issues can be explored.

[00:15:21] Speaker 03:
But to issue these prophylactic measures to prevent and infringe upon these rights goes too far.

[00:15:28] Speaker 03:
So I see I'm running out of my time.

[00:15:30] Speaker 03:
If the court has any other questions, I'm happy to address them.

[00:15:35] Speaker 03:
Thank you.

[00:15:51] Speaker 00:
Good morning.

[00:15:52] Speaker 00:
May it please the court, Richard Love from the District of Columbia.

[00:15:56] Speaker 00:
First of all, all but the plaintiff's retaliation claims are precluded by the decisions of the D.C.

[00:16:03] Speaker 00:
Court of Appeals.

[00:16:04] Speaker 00:
But even if issue of preclusion is inapplicable to any or all of the claims, the district court did consider on the merits and correctly dismissed all of Mr. Scahill's claims, which are essentially identical to HRH's claim.

[00:16:22] Speaker 00:
Further, it correctly found, the district court correctly found that it was implausible to find that the board's enforcement action against HRH was retaliatory.

[00:16:35] Speaker 00:
On the standing issue, I would like to make four points in addressing this curable defect exception.

[00:16:42] Speaker 00:
First of all, the subsequent sanction didn't cure the defect that the DC Court of Appeals found, which was that HRH wasn't injured from the conditions that it enforced, the barring notice that it had issued against Mr. Scahill.

[00:17:03] Speaker 04:
here.

[00:17:04] Speaker 04:
They can't.

[00:17:05] Speaker 04:
I didn't quite follow it.

[00:17:06] Speaker 04:
HRH was fine was imposed upon them, right?

[00:17:10] Speaker 00:
Well, that's the subsequent injury, but that didn't cure

[00:17:15] Speaker 00:
the injury that the D.C.

[00:17:18] Speaker 00:
Court of Appeals found, H.R.H.

[00:17:20] Speaker 00:
lacked.

[00:17:21] Speaker 04:
If they brought the case today, would they have standing?

[00:17:23] Speaker 04:
If they brought a challenge to the fine today, would H.R.H.

[00:17:27] Speaker 04:
have standing today?

[00:17:29] Speaker 04:
Today?

[00:17:30] Speaker 00:
To challenge the fine, yes.

[00:17:33] Speaker 00:
But that doesn't give them standing to challenge the conditions in and of themselves.

[00:17:38] Speaker 02:
Where did the D.C.

[00:17:39] Speaker 02:
Court of Appeals say that?

[00:17:41] Speaker 00:
Oh, it's on page 74 of the record.

[00:17:47] Speaker 00:
It's the court's order.

[00:17:49] Speaker 02:
H-74 just says Exhibit C on it, unlike others.

[00:17:55] Speaker 00:
Well, I think this is the order dismissing HRH's appeal from the DC Court of Appeals.

[00:18:00] Speaker 02:
Yes, fair enough.

[00:18:02] Speaker 02:
But where does it say the point that you just said?

[00:18:05] Speaker 02:
How do we know that the problem with respect to standing was that nobody had to pay any fine yet?

[00:18:13] Speaker 02:
How do you know that wasn't the problem?

[00:18:16] Speaker 00:
Well, I think when you look at the order to show cause, which is referenced in the first paragraph, which indicates whether there was injury resulting from the condition that the petitioner enforced the barring notice it had issued against Mr. Skater.

[00:18:36] Speaker 00:
I'm sorry, where are you?

[00:18:38] Speaker 00:
That's the first paragraph on page 74 of the order.

[00:18:41] Speaker 02:
And where's the words that you just said?

[00:18:44] Speaker 00:
Third line down.

[00:18:46] Speaker 02:
Subject to the condition that the petitioner enforce the burying notice that it issued yet.

[00:18:51] Speaker 00:
Right.

[00:18:51] Speaker 02:
You're making an argument that this was really voluntary and not an injury.

[00:18:56] Speaker 02:
Is that your argument you're making now?

[00:18:57] Speaker 00:
Well, I think that's the conclusion of the DC Court of Appeals.

[00:19:01] Speaker 02:
I don't see that conclusion.

[00:19:02] Speaker 02:
I mean, the court doesn't really give any reasoning.

[00:19:05] Speaker 02:
I think it's completely fair to say that there was no injury in fact.

[00:19:10] Speaker 02:
But we don't know which ground there was no injury in fact.

[00:19:14] Speaker 02:
It seems like the reasonable one is that no costs had yet been attached to it.

[00:19:20] Speaker 02:
Now they have a fine.

[00:19:25] Speaker 00:
I disagree.

[00:19:26] Speaker 00:
I think you can infer from this order that the DC Court of, and this is how the district court interpreted it, that the District of Columbia Court of Appeals was concerned that how is HRH injured

[00:19:44] Speaker 00:
from conditions that merely require them to enforce what it had served on Mr. Statham.

[00:19:52] Speaker 00:
That was why they ordered HRH to show cause why the case shouldn't be dismissed.

[00:19:57] Speaker 02:
Can you have that?

[00:19:58] Speaker 02:
Can you point me to that one?

[00:19:59] Speaker 00:
And then the concluding paragraph... Excuse me.

[00:20:04] Speaker 02:
Can you tell me what page the order to show cause is?

[00:20:07] Speaker 02:
Do we have that?

[00:20:08] Speaker 00:
No, I don't believe that.

[00:20:10] Speaker 00:
I'm not sure that that is in the record.

[00:20:12] Speaker 00:
It's clearly

[00:20:13] Speaker 02:
Did it make the point that you're making now?

[00:20:17] Speaker 02:
I'm not saying it didn't, I just asked.

[00:20:19] Speaker 00:
Yes, it asked HRH to show cause why the case should not be dismissed for basically for lack of an injury in fact.

[00:20:34] Speaker 02:
But did it note the point that you're raising, which is that it was

[00:20:39] Speaker 02:
HRH's own proposed order?

[00:20:42] Speaker 00:
I think it did, and I think it does in the first paragraph of the order that is in the appendix.

[00:20:55] Speaker 00:
So, I mean, when you read the first paragraph, you know, it describes what is sought to be reviewed.

[00:21:03] Speaker 00:
that on August 12th the court asked the petitioner to show cause why it should not be dismissed for lack of standing, because it does not appear petitioner is agreed by the order identified for review.

[00:21:19] Speaker 00:
I mean, so the issue is encapsulated right in that first paragraph.

[00:21:24] Speaker 00:
And we don't have the response to the Chaucot's order in the record, but the court considered it and determined to dismiss the appeal because they didn't find there was injury, in fact.

[00:21:37] Speaker 00:
I don't think you can read that order any differently.

[00:21:40] Speaker 00:
That's how the district court interpreted it, and I would submit that it was reasonable and correct interpretation.

[00:21:49] Speaker 00:
But the second point, I think, is that

[00:21:55] Speaker 00:
The subsequent sanction didn't demonstrate standing when the suit was filed.

[00:22:02] Speaker 00:
And the third point is even if

[00:22:04] Speaker 00:
The case law was that an amended complaint could cure lack of standing when the suit was filed.

[00:22:10] Speaker 00:
The second amended complaint was not the operative complaint when the court assessed standing here.

[00:22:16] Speaker 00:
And it didn't abuse its discretion in denying leave when the law on whether it could even cure the defect is unsettled.

[00:22:26] Speaker 00:
And we went on to say in our brief that any error is harmless because the court did here consider all of the claims, albeit in the context of Mr. Skahill's constitutional claims, which, as we've said, are essentially identical.

[00:22:43] Speaker 00:
On the speech, three points.

[00:22:46] Speaker 00:
First of all, the speech was voluntary.

[00:22:49] Speaker 00:
Second of all, HRH was not compelled to endorse a position contrary to its belief.

[00:22:56] Speaker 00:
It was merely required to report a fact.

[00:22:59] Speaker 00:
And the board here was really regulating HRH's conduct, ensuring that it operated independently of Mr. Scahill, not at speech.

[00:23:09] Speaker 00:
And as we've set forth in our brief, there is, you know, the board clearly would satisfy intermediate or rational basis review, even if there was some constitutional protection here.

[00:23:25] Speaker 00:
There is a clear government interest in restricting liquor traffic to persons of good moral character who aren't acting on behalf of an undisclosed third party and to safeguard the community against indiscriminate sale of alcohol, including to minors.

[00:23:42] Speaker 00:
On association, there's no alleged infringement on intimate or expressive association, political speech, religious expression.

[00:23:51] Speaker 00:
And again, any review that would, any standard that would be applicable is satisfied for the same reasons.

[00:24:04] Speaker 00:
Just one point on the second amended complaint, the retaliation issues which the court did found there was standing for and we would submit the court did properly consider the board's order.

[00:24:20] Speaker 00:
First of all,

[00:24:20] Speaker 00:
The plaintiffs submitted the board's order as an exhibit to their Motion 2 that were filed.

[00:24:27] Speaker 00:
The second amended complaint is based on and refers to that board order and of course the board order is a record from a proceeding that the court could take judicial notice of.

[00:24:39] Speaker 00:
There's numerous cases that

[00:24:40] Speaker 00:
allow consideration of that on a motion to dismiss, including EEOC, the St.

[00:24:47] Speaker 00:
Francis Xavier case, Earl v.

[00:24:51] Speaker 00:
D.C., which allows the court to take judicial notice of facts of records and other proceedings, the veg mix of the U.S.

[00:25:00] Speaker 00:
Department of Agriculture case, which we cited in our brief.

[00:25:08] Speaker 00:
Freedom of movement, I did want to point out an issue with regard to the

[00:25:14] Speaker 00:
the sidewalk and first of all, the barring notice that HRH served on Mr. Skate Hill prohibits Mr. Skate Hill from accessing their property or premises, not public spaces.

[00:25:30] Speaker 00:
Second of all, there are regulations that clearly indicate that the sidewalk cafe is not a public area.

[00:25:38] Speaker 00:
In fact,

[00:25:39] Speaker 00:
The municipal regulations require that any establishment that has a certificate of use for a sidewalk cafe, as the alibi does and did, must maintain what they call a clear sidewalk space of a minimal of 10 feet that's measured from the edge of the sidewalk cafe to the curb.

[00:26:01] Speaker 02:
What's the site for the regulation?

[00:26:03] Speaker 00:
Those are at 24 DCMR section 204.1.

[00:26:08] Speaker 00:
and 311.1, and then there's a definition, I believe it's at 399, that defines this clear sidewalk space.

[00:26:21] Speaker 00:
So the sidewalk cafe is not the sidewalk.

[00:26:27] Speaker 04:
So at the hearing, correct me if I'm wrong, at the hearing at which the conditions barring Mr. Skahill from showing up at the restaurant, was he present?

[00:26:43] Speaker 04:
No, he was not present.

[00:26:46] Speaker 04:
Did he ever have an opportunity to challenge those?

[00:26:50] Speaker 00:
Well, he did have an opportunity and he did challenge.

[00:26:53] Speaker 00:
He challenged the conditions in the D.C.

[00:26:55] Speaker 00:
Court of Appeals.

[00:26:56] Speaker 04:
But before the licensing agency, did he have notice of these?

[00:27:02] Speaker 00:
Well, these are the relevant facts.

[00:27:06] Speaker 00:
Their board issued a very comprehensive qualifications, an order for a qualifications hearing.

[00:27:14] Speaker 00:
They clearly identified that one of the issues was what was Mr. Scahill's involvement, his history with the running the My Brother's Place.

[00:27:24] Speaker 04:
And was he given notice of that?

[00:27:28] Speaker 00:
Well, that qualifications notice wasn't served on him, but it was served on HRH.

[00:27:38] Speaker 00:
then served the barring notice on Mr. Scahill, which he signed two days earlier.

[00:27:44] Speaker 00:
I would argue that that's certainly an inference that he knew the hearing was taking place.

[00:27:50] Speaker 04:
These are two days before?

[00:27:52] Speaker 00:
Two days before the hearing.

[00:27:54] Speaker 00:
In addition, HRH was free to call Mr. Scahill or even to subpoena him.

[00:28:01] Speaker 00:
It was clearly a central issue in the qualifications issue.

[00:28:05] Speaker 00:
Instead, they voluntarily chose to serve him with the barring notice.

[00:28:08] Speaker 00:
Nothing prohibited him from coming forward.

[00:28:11] Speaker 00:
He was served with his barring notice.

[00:28:14] Speaker 00:
So I would submit that he did have notice.

[00:28:17] Speaker 00:
Further in the D.C.

[00:28:18] Speaker 00:
Court of Appeals decision on the merits of Mr. Skate Hill's

[00:28:22] Speaker 00:
petition for review there, the court found that he wasn't entitled to notice the board's, you know, the subject of the board's hearing was whether or not HRH was qualified for a license.

[00:28:43] Speaker 00:
Lastly, on the procedural due process, just on the one argument that the board's order interfered with Mr. Scahill's right to pursue his chosen profession, one we would argue that that was forfeited, it was never raised.

[00:28:59] Speaker 00:
Yeah, it's a due process argument, but it has to be raised with some particularity.

[00:29:06] Speaker 00:
And just because they raised a due process argument doesn't encompass this claim, which was never raised, even if it was raised.

[00:29:15] Speaker 00:
It lacks merit because the board didn't revoke Mr. Scahill's manager's license, and thus he's not foreclosed from working at any establishment other than the alibi.

[00:29:26] Speaker 00:
And his status as a guarantor does not confer a property interest protected by the due process clause.

[00:29:36] Speaker 00:
He's cited no authority in support of that, and the district court did identify authority contrary to that position.

[00:29:44] Speaker 00:
For all those reasons, we would ask this court affirm the district court's decision.

[00:29:49] Speaker 00:
Unless the court has any other further questions, I would rest there.

[00:29:54] Speaker 00:
We don't.

[00:29:55] Speaker 00:
Thank you.

[00:29:58] Speaker 03:
Your Honor, with respect to HRH's First Amendment retaliation claim, what this boils down to is that the district court did find that the allegations were sufficient to make a prima facie claim for First Amendment retaliation.

[00:30:22] Speaker 03:
However, the court looked towards the board's order.

[00:30:25] Speaker 03:
And Marshall County Health Care tells us, the circuit tells us that when you're challenging an administrative agency's conduct on the basis of whether it's constitutional or not, you cannot take judicial notice of agency documents on a motion to dismiss.

[00:30:44] Speaker 02:
Is this on the question of whether he was in the alibi?

[00:30:49] Speaker 02:
Is that what this is in connection with?

[00:30:52] Speaker 03:
So, yes.

[00:30:53] Speaker 03:
So the first amendment retaliation was after HRH engaged in a protective activity, filing its administrative appeal, subsequently joining this lawsuit, was that the board started sending investigators immediately thereafter within the 30-day span, which creates a presumption of retaliation.

[00:31:15] Speaker 03:
With respect to... Is it correct there's no dispute that he was in the bur?

[00:31:23] Speaker 03:
There actually is.

[00:31:25] Speaker 03:
Looking at the actual administrative record, one of the investigators said that she never saw him there.

[00:31:29] Speaker 03:
That's not what she said.

[00:31:31] Speaker 03:
You want to be careful about that.

[00:31:33] Speaker 02:
She said...

[00:31:35] Speaker 02:
She recalled investigator Rashir's telling her that one of the people in the sidewalk cafe was Mr. Skyhill and indicate that she has no reasonable basis to doubt his investigation, his identification.

[00:31:48] Speaker 03:
I'm not sure if that's the direct quote from her testimony itself or if it's the board's order characterizing it.

[00:31:53] Speaker 03:
Oh, I know that's fair.

[00:31:54] Speaker 03:
I'm quoting from the order.

[00:31:55] Speaker 03:
Is the testimony itself also in the record?

[00:31:57] Speaker 03:
It's not.

[00:31:59] Speaker 03:
But that's the problem with the board, you know, relying on hearsay, well, on hearsay, creating these orders without actual a record of these documents.

[00:32:08] Speaker 03:
So.

[00:32:10] Speaker 02:
Did you represent below that he wasn't present?

[00:32:12] Speaker 02:
I'm sorry?

[00:32:12] Speaker 02:
Did you represent below that he wasn't present?

[00:32:15] Speaker 02:
Did you represent, not you personally, but on his behalf in the district court, was there a claim, factual claim that he wasn't present?

[00:32:24] Speaker 03:
So that's actually never been explored, right, because we've never had discovery in this case.

[00:32:29] Speaker 02:
This wouldn't require discovery, it's your own client.

[00:32:32] Speaker 02:
I mean, if this goes back down,

[00:32:34] Speaker 02:
And the first interrogatory is, was he present?

[00:32:37] Speaker 02:
Is he going to say he wasn't?

[00:32:40] Speaker 02:
I can't answer that, Your Honor.

[00:32:41] Speaker 02:
Can't answer that because it's privileged or can't answer because you don't know?

[00:32:46] Speaker 03:
Well, because I don't want to become a witness here on behalf of my own client.

[00:32:50] Speaker 03:
What we can base on is what's in the record.

[00:32:53] Speaker 05:
So you don't know if it's raised?

[00:32:58] Speaker 03:
Whether it was raised?

[00:32:59] Speaker 03:
Well, in the administrative hearing, it was the board's burden, and I don't believe there was any evidence offered from HRH in that hearing.

[00:33:12] Speaker 05:
It was just challenging the board's evidence.

[00:33:15] Speaker 03:
I'm sorry?

[00:33:16] Speaker 05:
And raised before the district court?

[00:33:18] Speaker 03:
It was not before the district court.

[00:33:21] Speaker 03:
Whether he violated the conditions or not, it's just challenging the actual conditions that was before the district court.

[00:33:26] Speaker 02:
Can I tell you the same thing with respect to whether he knew about the hearing?

[00:33:30] Speaker 03:
No.

[00:33:31] Speaker 03:
Regarding the procedural due process claim, I mean notice of being served with a barring notice isn't being served with notice of a hearing of the actual call of questions here.

[00:33:39] Speaker 02:
On the question of whether he knew a hearing was going on.

[00:33:43] Speaker 02:
You need notice really only if you don't know that the hearing is going on.

[00:33:48] Speaker 02:
Is he going to represent below that he had no idea that the barring notice was going to be up at the hearing and when the hearing was going to be?

[00:33:58] Speaker 03:
Without that information, I can't say one way or the other.

[00:34:01] Speaker 03:
But what I can say is that I would be surprised if he knew the extent of which he would be the subject of that hearing.

[00:34:09] Speaker 03:
I mean, the decision his name was mentioned.

[00:34:12] Speaker 03:
I'm sorry?

[00:34:12] Speaker 05:
That's speculation.

[00:34:16] Speaker 03:
He said you don't know.

[00:34:17] Speaker 03:
Yeah, that is correct, Your Honor.

[00:34:20] Speaker 03:
I'm out of time.

[00:34:20] Speaker 03:
If there's any other questions, I'm happy to address them.

[00:34:25] Speaker 03:
Thank you.

[00:34:25] Speaker 03:
We'll take the matter under submission.

[00:34:26] Speaker 03:
Appreciate it.