By: Lydia Crawley
The Parsons Advocate
The Tucker County Commission’s two percent Special Ambulance Fee has won its first legal battle in court, according to Tucker County Commission President Mike Rosenau. “With our two percent fee, we have been challenged,” Rosenau said.
A Notice of Filing was issued December 31st in Circuit Court which included a Request for Preliminary Injunctive Relief and and Order Granting a Declaratory Judgment on behalf of Taylor Hospitality, Inn at Canaan, LLC. Rosenau said that Taylor Hospitality only operate the Inn at Canaan and do not own the establishment and that the owners of the Inn at Canaan were not named in the lawsuit. “The owner’s not mentioned in the lawsuit, just the operating company,” Rosenau said.
According to County Administrator Sheila DeVilder, the case remains ongoing due to no action being taken by Judge Hilary Bright January 21st on the default judgment. The matter that was taken up by the court during the hearing was on the motion for an injunction, according to DeVilder. “There was a court filing for a default summary judgment which included a motion for an injunction,” DeVilder said. “Our attorneys have responded to the motion for an injunction. We had a hearing yesterday. They still have to respond to the default request so its still ongoing.”
In the request for the injunction, Taylor Hospitality asked the court for a declaratory judgment that included a stay in any and all actions on the Ordinance; a declaration that the County exceeded the limited scope of authority granted by WV Code; declare the Ordinance null and void and contrary to the WV Code; issue a declaration enjoining Tucker County from enforcing the Ordinance; award Taylor Hospitality attorney’s fees and costs incurred and any other further relief deemed appropriate by the court.
Taylor Hospitatly Attorney Alexander Macia stated in his filing that the County could return to the $50 fee should the Ordinance be repealed and used the previous fee as an argument that the Ordinace should be injuncted. “Before implementing the Ordinance, Tucker County charged a $50 flat fee to households in the county,” Macia wrote. “Should this Court order a preliminary injunction, the Tucker County Commission could bring back the flat fee to fund emergency services.”
In a response filed by the County’s Attorney Jeffrey S. Zurbuch, the County asserted that the plaintiff’s preference to an outdated and repealed ordinance, mainly the repealed $50 fee to homeowners in the County, had no bearing on the current ordinance. “As with its decision to enact the current Ordinance, the Commission’s decision to rescind any ordinance is within its authority and presumptively correct,” Zurbuch writes. “Petitioner’s second guessing the Commission on that and its preferences for a different approach for establishing a fee for ambulance services in this County provides no basis to enjoin operation…”
In the original filing, Taylor Hospitality claimed that the fee constituted double taxing due to the already established Hotel/Motel Tax by the County. Zurbuch addressed the issue in his filing by stating, “…the Ordinance is for a ‘fee’ pursuant to W.Va. Code 7-15-17, rather than a ‘tax.’ Accordingly, the fees generated as a result of the Ordinance provide for a special fund to be used solely for Tucker County’s Emergency Ambulance System.”
Taylor Hospitality also stated in their filing that the increased administrative costs and assorted tasks would constitute harm. In the filing they listed the increased demands to bookkeeping and changes to accounting, as well as reservations and revamping of wording on reservations. Taylor Hospitality also stated they felt that many guests would choose to stay outside the County due to a viewpoint of a “hidden fee.” “Once customers learn of the Ordinance Fee, they will seek cheaper accommodations in neighboring counties, causing an erosion of Taylor Hospitality’s customer base,” Macia writes. “ Additionally, Taylor Hospitality risks losing credibility with regular customers who may see the additional fee as a dishonest ‘hidden fee.’”
Zurbuch addressed the issue in his response that he felt that the administrative costs in no way constituted real harm to the company. “The administrative inconvenience and costs that Petitioner contends it will incur as a result of its role in collecting fees under the Ordinance do not in any respect constitute a clear showing of irreparable harm to justify enjoining operation of the Ordinance,” Zurbuch writes.
According to Rosenau, the motivation behind the suit was to avoid payment of the fee. However, the response by Zurbuch clearly states that all the businesses, including Taylor Hospitality, are required to do is collect the fee from their customers and submit the money to the County on a quarterly basis. “They wanted to stop so they didn’t have to pay,” Rosenau said.
DeVilder said that judgment in the case was rendered in favor of the County and the Ordinance, including collection of the fee, will proceed unencumbered. “We prevailed,” DeVilder said. “She denied their request for an injunction and we can continue to move forward and collect the fees.”
DeVilder made the statement that the attorney for Taylor Hospitality insinuated that the fee was not be collected in the county by any of the businesses, which is in noncompliance with the ordinance that went into effect January 1st. DeVilder also stated that by finding in favor of the County, the court was reinforcing that the ordinance was lawful and in accordance with the best interest of the citizens of Tucker County. “In his statement actually, their attorney statement says, well nobody is collecting this fee anyway,” DeVilder said. “Which by no collecting it they are already in noncompliance with our ordinance, which essentially the judge ruled yesterday by denying the motion, was legal and lawful and in the best interest of the public and the public welfare of Tucker County.”
Taylor Hospitality Attorney Alexander Macia issued a statement on the case. “To be clear, we do not dispute the need for emergency ambulance services; nor do we dispute that everyone in the county should contribute to support the same. What we do dispute is the manner and method used by the County Commission to impose this unprecedented 2% special recreation tax such that it falls disproportionately on those businesses who already provide significant tax revenue and employment opportunities for the county. We don’t believe the Commission has been transparent, fair, and reasonable about this special tax and we believe that such will be revealed during the course of this case.”
Tucker County Attorney Jeffrey S. Zurbuch declined to comment on ongoing cases.
