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Jefferson County Occupational Tax Order

Jefferson County Occupational Tax Order

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Published by Kyle Whitmire

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Published by: Kyle Whitmire on Dec 01, 2010
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12/01/2010

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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMABIRMINGHAM DIVISION
WEISSMAN JEFFREY D.D.S.,)Plaintiff,))V.)Case No.: CV-2009-904022.00)JEFFERSON COUNTY,)Defendant.)
FINAL ORDER
This matter is before the Court on the Cross Motions for Summary Judgment filed byPlaintiffs Jeffrey Weissman, D.D.S., Jeffrey Weissman D.D.S., P.C., and Keith Shannon andDefendant Jefferson County (“Jefferson County”). The motions were set for hearing onNovember 5, 2010, at which all parties were represented by counsel and presented arguments.The issue here is not novel to this venue.Upon review of the pleadings, submissions of the parties, arguments by counsel, and theapplicable law, taken
in pari materia
, the Court finds that there is no genuine issue of materialfact as to Plaintiffs’ claims as to the constitutionality of Act No. 2009-811 of the AlabamaLegislature (“the 2009 Act”) and Plaintiffs’ claims for injunctive relief. As such, the Court findsthat Plaintiffs are entitled to a judgment as a matter of law. The Court finds that the 2009 Act, alocal act, is unconstitutional because the published notice of the 2009 Act does not comply withArticle IV, Section 106 of the Alabama Constitution and applicable case law. Specifically, theCourt finds that the notice of the 2009 Act does not accurately describe numerous material andsubstantial elements of the bill, including that the 2009 Act is to be retroactively applied or thatthe 2009 Act confers enabling authority to impose a new occupational tax on both previously-taxed taxpayers and on a new class of “licensed professionals” which was exempt from the “old”
ELECTRONICALLY FILED12/1/2010 9:50 AMCV-2009-904022.00CIRCUIT COURT OFJEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
 
Jefferson County’s Occupational Tax. The Court notes that the omission or misstatement of anyone material and substantial element of the 2009 Act with respect to the notice would, standingalone, be sufficient to render the 2009 Act unconstitutional under Section 106. The Court findsunpersuasive Jefferson County’s argument that Section 106’s notice requirements do not applybecause the 2009 Act was passed by the Alabama Legislature during a special session. TheCourt also finds unpersuasive Jefferson County’s argument that publishing simply the “generalnature” of the Act’s Substantive features satisfies the notice requirements imposed under Section106.Accordingly, having determined that the 2009 Act is unconstitutional, the Court alsofinds that Plaintiffs are entitled to summary judgment on their claim to enjoin Jefferson Countyfrom imposing or collecting any and all taxes imposed under Ordinance Jefferson Countyordinance No. 1791 pursuant to the authority conferred by the 2009 Act.Though the Court finds that the 2009 Act is unconstitutional and that Jefferson County isto be enjoined from collecting taxes imposed under the authority of the 2009 Act, the Court alsofinds that Plaintiffs have not shown that the undisputed facts support their request for aretroactive refund of collected taxes as a matter of law. Considering the factors set out inRoberts v. M&R Props., Inc. 612 So.2d 432 (Ala. 1992), the Court finds that this Order shallhave only
prospective
application and that a refund of collected taxes is neither appropriate nor justified (for additional clarity see Ex parte Coker, 575 So.2d 43, 51-52 (Ala. 1990)).WHEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED as follows:1.Plaintiffs’ Motion for Summary Judgment is GRANTED, as described herein, andsummary judgment is hereby entered in favor of the Plaintiffs and againstJefferson County on Plaintiffs’ claims for declaratory relief and on Plaintiffs’

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