Friday, March 27, 2009

Refuse Fee Continuing Update

RE: “REFUSE FEE” City of Toledo

963.03. Frequency of collection; garbage and rubbish disposal fee.
(b) After April 30, 2008 for the periodic disposal of garbage and rubbish from any dwelling, restaurant, retail store, apartment house or office building, the property owner shall pay a monthly refuse fee based on the following schedule, provided that where the structure consists of multiple units, the monthly fee shall be per unit:

The City of Toledo passed this ordinance through council as a “FEE” and refused to classify it as a tax which requires passage by vote of the residents in an election. Now in court documents, the City is referring to it as a “TAX” in an attempt to enforce RC2723.3 of the Ohio Revised code. Had the protest been filed, the City could argue it was not allowed as a protest because this is a “FEE” and would not refer to it in court documents as a “TAX”. This is a purposeful misrepresentation of the Ordinance designed to prevent any action by any citizen against the “FEE”.

Rather than determine the merits of the Ordiance and whether it is a legal form of revenue for the City, the courts, attorneys and City Law department prefer to focus on the technicallity of RC2723.3 and whether a protest was required. It is not addressing the issue of the revenue.

As a resident of Toledo, I followed the regulations which offer no requirement to file a protest under the written regulation of RC2723.3 to protest a “FEE”. Though I contend it is a “TAX”, the written ordinace by which I must act states it is a “FEE” and the written Code does not address a fee. Therefore, I refuse to file a formal protest against the City of Toledo in accordance with RC2723.3 which states:

Action to enjoin the collection of taxes and assessments must be brought against the officer whose duty it is to collect them. Actions to recover taxes and assessments must be brought against the officer who made the collection, or if he is dead, against his personal representative. When they were not collected on the county duplicate, each corporation or board which is entitled to share in the revenue so collected must be joined in the action. If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall not be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid.
Effective Date: 10-01-1953

Now the court is citing a lawsuit from 1963 stating a “licensing fee” fits in the context of RC2723.03 which therefore also regulates “fees”.
The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a"tax," fall within the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v. Tracy (1963), 75 Ohio St.55,56-57, 191 N.E.2d839.

This is not a “licensing fee”, this a a revenue grab by the City, wrapped in a cloak of a broad reaching “fee”. This regulation does not afford me that privilege against a “FEE”. Further, it is obvious that RC2723.03 exits to make it virtually impossible for a citizen to counter illegal revenues by a municipality of the type passed by the City of Toledo.

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