353 F.3d 650 (9th Cir. 2003), 01-16303, Talk of the Town v. Department of Finance and Business Services

Docket Nº:01-16303
Citation:353 F.3d 650
Party Name:Talk of the Town v. Department of Finance and Business Services
Case Date:September 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 650

353 F.3d 650 (9th Cir. 2003)

TALK OF THE TOWN; Video Treasures, Inc.; Video Treasures, Ltd.; Raymond Pistol, President, Secretary and Treasurer, Plaintiffs-Appellants,

v.

DEPARTMENT OF FINANCE AND BUSINESS SERVICES, on Behalf of City of Las Vegas, Defendant-Appellee.

Talk of the Town; Video Treasures, Inc.; Video Treasures, Ltd.; Raymond Pistol, President, Secretary and Treasurer, Plaintiffs-Appellees,

v.

Department of Finance and Business Services, on behalf of City of Las Vegas, Defendant-Appellant.

Nos. 01-16303, 01-16390.

United States Court of Appeals, Ninth Circuit

September 10, 2003

Argued and Submitted Feb. 11, 2003.

Amended Dec. 22, 2003.

Allen Lichtenstein, Las Vegas, Nevada, argued the cause for Talk of the Town and submitted briefs.

Peter M. Angulo, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, Nevada, argued the cause for the City of Las Vegas and filed briefs. Thomas D. Dillard, Jr., also was on the briefs.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CV-98-00910-LDG/RJJ.

Before CANBY, O'SCANNLAIN, and FLETCHER, Circuit Judges.

ORDER

The opinion filed September 10, 2003 is hereby amended as follows:

Slip. Op. at 13377 n. 14: Add, as a new paragraph at the conclusion of current footnote 14, the following text:

After we issued our decision in this case, TOT filed a petition for rehearing alleging--for the first time ever--that it was punished for conduct sanctionable only under LVMC § 6.35.100(F), and therefore that it was not prosecuted under a generally applicable statute at all. We consider any such argument waived. See Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 726 (9th Cir. 1992) ("We will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant's opening brief."). TOT itself argued in briefing to this court that "The constitutionality of LVMC § 6.35.100(F) is not now, nor it has ever been [sic] an issue in this case," and it repeatedly conceded that it was prosecuted under a generally applicable statute (e.g.,...

To continue reading

FREE SIGN UP