Nevada Restaurant Services, Inc. v. Clark County

FILED
NOT FOR PUBLICATION JAN 05 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEVADA RESTAURANT SERVICES, No. 13-17252
INC., DBA Dotty’s,
D.C. Nos. 2:11-cv-00795-APG-
Plaintiff - Appellant, PAL
2:11-cv-00824-APG-
And PAL

JACKPOT JOANIES FP, LLC,
Consolidated Plaintiff; JACKPOT MEMORANDUM*
JOANIES DF, LLC, Consolidated
Plaintiff; ECLIPSE GAMING SHMP,
LLC, Consolidated Plaintiff,

Plaintiffs,

v.

CLARK COUNTY, a Municipal
Corporation; BOARD OF COUNTY
COMMISSIONERS OF CLARK
COUNTY,

Defendants - Appellees.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NEVADA RESTAURANT SERVICES, No. 13-17253
INC., DBA Dotty’s,
D.C. Nos. 2:11-cv-00795-APG-
Plaintiff, PAL
2:11-cv-00824-APG-
And PAL

JACKPOT JOANIES FP, LLC,
Consolidated Plaintiff; JACKPOT
JOANIES DF, LLC, Consolidated
Plaintiff; ECLIPSE GAMING SHMP,
LLC, Consolidated Plaintiff,

Plaintiffs - Appellants,

v.

CLARK COUNTY, a Municipal
Corporation; BOARD OF COUNTY
COMMISSIONERS OF CLARK
COUNTY,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding

Argued and Submitted December 11, 2015
San Francisco, California

Before: BYBEE and CHRISTEN, Circuit Judges and CHEN,** District Judge.

**
The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
 Appellants Nevada Restaurant Services, Inc. and Jackpot Joanies FP, LLC

(collectively “Plaintiffs”1) appeal two district court orders granting Defendant

Clark County’s (“the County”) motion for partial judgment on the pleadings and

motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and

review the district court’s orders de novo. See Lyon v. Chase Bank USA, 656 F.3d

877, 883 (9th Cir. 2011); Harris v. Cty. of Riverside, 904 F.2d 497, 500 (9th Cir.

1990). For the reasons outlined below, we affirm.

Constitutional Claims

1. Plaintiffs’ procedural due process challenge fails. Because Clark County

Ordinance L-252-11 (“the Ordinance”) was legislative rather than adjudicatory in

nature, “due process [was] satisfied when the legislative body perform[ed] its

responsibilities in the normal manner prescribed by law.” Halverson v. Skagit Cty.,

42 F.3d 1257, 1260 (9th Cir. 1994), as amended on denial of reh’g (1995) (citation

1
Unless otherwise noted, this disposition addresses common claims raised
by both Plaintiffs.

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omitted); see also Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,

445 (1915).2

Alternatively, Plaintiffs have not shown that the process afforded to them by

the County fell below the constitutional threshold. See Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 313 (1950). Plaintiffs received multiple notices

from the County informing them of the proposed legislation, and were extended

repeated opportunities—via the submission of written comments and at public

hearings—to make their concerns known to the County.

2. Plaintiffs’ substantive due process challenge also fails. When, as here,

plaintiffs “rely on substantive due process to challenge governmental action that

does not impinge on fundamental rights,” courts “merely look to see whether the

government could have had a legitimate reason for acting as it did.” Halverson, 42

F.3d at 1262 (internal quotation marks omitted). The County has put forward a

rational justification for the retroactive nature of the Ordinance—ensuring

compliance with Clark County Code § 8.04.040(B)(3)’s requirement that the

gambling permitted by Class A Slot Machine Licenses remains merely “incidental”

2
Even accepting Plaintiffs’ argument that the County did not follow Nevada
law precisely, the deviation did not amount to a constitutional violation. See
Samson v. City of Bainbridge Island, 683 F.3d 1051, 1060 (9th Cir. 2012) (“It is
axiomatic . . . that not every violation of state law amounts to an infringement of
constitutional rights.”).

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to the licensee’s primary business purpose. See Pension Benefit Guar. Corp. v.

R.A. Gray & Co., 467 U.S. 717, 730 (1984) (holding that retroactive aspects of

legislation must satisfy due process, a burden “met simply by showing that the

retroactive application of the legislation is itself justified by a rational legislative

purpose”).

3. The Ordinance does not violate the Equal Protection Clause. First,

because the Ordinance—a legislative action of general applicability that applies to

hundreds of taverns—does not single out Plaintiffs for regulation, Plaintiffs’ “class

of one” argument fails. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000). Second, the provision of the Ordinance that exempts taverns licensed prior

to December 22, 1990, is rationally related to the County’s economic goals. See

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (noting that when a

challenged legislative action does not involve “fundamental personal rights” or

“inherently suspect distinctions such as race,” local governments are “accorded

wide latitude in the regulation of their local economies”).

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 4. Jackpot Joanies’s facial vagueness challenge lacks merit, as the language

of the Ordinance is not “impermissibly vague in all of its applications.” Vill. of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).3

5. The district court properly dismissed Jackpot Joanies’ freestanding

§ 1983 claim. 42 U.S.C. § 1983 is “not itself a source of substantive rights,” but

rather a “method for vindicating federal rights elsewhere conferred by those parts

of the United States Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979).

Nevada Statutory Claims

1. We agree with the district court that the County’s preparation and

publication of the Business Impact Statements substantially complied with the

provisions of Nev. Rev. Stat. §§ 237.080, .090.

2. We reject Plaintiffs’ claim that Nev. Rev. Stat. § 244.187 forecloses the

County’s ability to regulate gambling within its jurisdiction. See Clark Cty. Liquor

& Gaming Licensing Bd. v. Simon & Tucker, Inc., 787 P.2d 782, 783 (Nev. 1990)

3
Plaintiffs have filed motions asking this court to take judicial notice of
County legislative materials, video recordings of County hearings, and citations
issued to Plaintiffs by the County. We GRANT Plaintiffs’ motions, Lee v. City of
Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001), and DENY the County’s
motions to strike portions of Plaintiffs’ reply briefs. Our decision to grant
Plaintiffs’ motions for judicial notice, however, does not change our conclusion
that the Ordinance is not unconstitutionally vague.

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(“The power to license, regulate, and prohibit gambling is within the discretion of

the municipal agency empowered to govern gambling and such agency has a wide

margin of discretion.”).

AFFIRMED.

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