The previous Mayor and the current Mayor are trashing Toledo over trash collection, we have been under siege for 5 years and it is reaching of level of ridiculous. Here are the travails of Toledo trash as it has evolved:
Former Mayor:
· Eliminated recycle programs, as they were expensive and useless.
· Fined if trash put to the line before 7:00 p.m. (he thought it unattractive)
· Pick ups moved from alleys to streets (alleys were too cluttered but he would not clean them)
· Collection routes consolidated, employees cut
· "Leap forward" program initiated to eliminate Saturday pick ups after holidays
· Automated trash collection equipment purchased to replace old, antiquated trucks and further reduce crews. Now one-man crews rather than 3 man crews
· 2007 added trash "fee" in budget
· Council approved the "fee".
· Extolled the fee as a way to increase recycling from residents.
· Extolled the fee as a way to maintain our "Cadillac service"
· 2008, Council moved the "fee" from the budget to an ordinance.
Current Mayor
· Raised the refuse "fee" to bump up the general fund coffers
· Council approved the increase.
· Said he would discard "Leap forward" program, too confusing, but has not, we continue to live with color coded calendars.
· Residents must call for bulk pick up (24 hours in advance changed to 72 hours notice,)
· Proposed change to bulk pick up per quarter only, $50 fee for additional
· No longer pick up bulk trash from evictions sites.
· Proposed $300 fine for overfilling refuse bins
· Allow residents to purchase another bin for $75; however may incur an additional fee for pick up.
· Proposed a fine if a resident says they recycle but they do not
Since passage of the trash "fee", the amount of the fee has been a moving target adjusted to reconcile a bloated general budget, which is out of control. These are the expenditures for trash in years 2004 through 2008:
· $10,324,386/ 2004 Expenditure
· $10,840,653/ 2005 Expenditure
· $11,348,331/ 2006 Expenditure
· $11,716,547/ 2007 Expenditure
· $11,348,181/ 2008 Budget
Where is the justification for the fees charged for trash in addition to the income taxes paid into the general fund? Resolve the budget, not with more taxes, fees and fines; but through hard decisions, which must be made. The current direction of this Administration as with the previous Administration is trashing Toledo over trash collection.
Showing posts with label trash tax. Show all posts
Showing posts with label trash tax. Show all posts
Wednesday, June 23, 2010
Tuesday, May 25, 2010
Class Action - Take Action
Contact Common Pleas Court and let them know you believe 100,000 residences being billed for the trash tax should be included in the lawsuit... just let them know..
Common Pleas Phone # is: 419-213-4484
CASE: G -4801 -CI -200802348-000
For questions contact:
Scott Ciolek, Attorney, 419-491-7270
Common Pleas Phone # is: 419-213-4484
CASE: G -4801 -CI -200802348-000
For questions contact:
Scott Ciolek, Attorney, 419-491-7270
Citizen Advisory - Trash Tax and Class Action
There are two issues regarding the refuse fee and this Citizen’s Advisory is an alert to all residents of Toledo who pay the fee. It is to address the request for class action, which was denied once, but will be heard again by the Common Pleas Court. Would you want to be included if the “fee” is determined to be illegal?
Let me start with some numbers:
* $28,000,000 – revenue received or projected from the Trash Tax in 3.5 years
* 100,000 –approximate number of residences being bill quarterly for the Trash tax.
* 122 – number of residents identified who protested the fee to the Dept. of Public Utilities.
* 50 – number of protest letters the City can find.
* 1 – number of persons included at this point by Common Pleas Court in the class action.
Let’s say a robber robbed a bank and got away to ½ a million dollars. As he flees the scene, a local citizen stops the thief who is then arrested and the money is recovered. Now the citizen had a checking account with the bank with $500 in it, and the courts tell him, you get your money back because you caught the thief, but the other 5000 investors whose money was stolen… they don’t get their money back because they didn’t catch the thief, in fact, the thief gets to keep the rest of the money.
Preposterous, ridiculous, you say!
Well, it’s happening with the request for class action in this lawsuit.
The original decision by the court was that only those who file a formal protest could be included.
In essence we did that on behalf of everyone when we filed the lawsuit 2 years ago. It was to serve as the official protest against the tax and read as follows (CASE: G -4801 -CI -200802348-000):
1. This class action seeks … compensatory damages, …. a preliminary and permanent injunction, …. for unjust enrichment due to Defendant’s wrongful taxation of Plaintiff and Plaintiff’s class by administratively approving an additional tax to collect refuse without the approval of Toledo City Council and without the approval of voters by referendum as this is a tax on property owners.
8. On information and belief, Plaintiffs’ class includes over 100,000 housing units, but this class is limited only to those who pay this tax.
9. This action is properly maintained as a class action because in all pertinent aspects the Plaintiff and all other similarly situated individuals have predominately identical claims.
10. This tax is not completely identical for all members of the Plaintiffs’ class because some individuals own multiple unit apartment buildings, and some individuals receive a discount for recycling.
11. Each member of the Plaintiffs’ class is required to pay this tax or face the following penalties by the city: (1) terminate water service; (2) forward the account to an outside collection agency; (3) transfer the delinquency to any other property owned by the account holder; (4) bring an action at law for collection; (5) or place a lien on the property.
What constitutes class action? As defined by © 1999 Timothy E. Eble: Standards For Class Certification Under the Ohio Rules of Civil Procedure: A Concise Summary http://www.classactionlitigation.net/library/ohio.html
Ohio Rule of Civil Procedure 23(a) contains five explicit requirements that must each be satisfied when seeking class certification.
First, the plaintiff must establish that an identifiable class actually exists
Second, the named representatives must be members of that class
* Thereafter, the plaintiff must demonstrate:
a) the class is so numerous that joinder of all members is impracticable;
b) there are questions of law or fact common to the class;
c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
d) the representative parties will fairly and adequately protect the interests of the class;
e) Common questions predominate over questions effecting only individual members; and, that a class action is superior to other available methods of resolving the claims.
The City has already demonstrated they are unable to record and maintain protests submitted by concerned residents. When I asked for copies of protests received in an open records request, they sent 54 protests letters; of those 9 matched emails received stating a protest was filed; however, there were no letters for an additional 68 protesters who notified us they had filed.
One must conclude it is obvious that class action is necessary to ensure everyone is included according to point
a): the class is so numerous that joinder of all members is impracticable
If the City cannot account for 68 protest letters we know exist, how many more were submitted that just disappeared? How would the city manage 100,000 protests?
We residents of Toledo must stand up and make our will known, class action is essential to ensure the city does not profit from this illegal tax. They must be held accountable.
As the thief who robs a bank, we would never allow him to keep his booty, so likewise we must demand the same decision for a government who blatantly disregarded the Ohio Revised Code when it legislated this tax.
I suggest further that every resident of Ohio should watch the case and brace himself if the courts do not rule in favor of residents of Toledo, for as Toledo goes, so likewise will other desperate governments of Ohio as this is easy revenue with no limits.
Take action now, quickly and with conviction as the Courts are soon to rule on class action. I suggest you call the Common Pleas Court and ask that every resident be included in the class action.
Common Pleas Phone # is: 419-213-4484
CASE: G -4801 -CI -200802348-000
For questions contact:
Scott Ciolek, Attorney, 419-491-7270
Let me start with some numbers:
* $28,000,000 – revenue received or projected from the Trash Tax in 3.5 years
* 100,000 –approximate number of residences being bill quarterly for the Trash tax.
* 122 – number of residents identified who protested the fee to the Dept. of Public Utilities.
* 50 – number of protest letters the City can find.
* 1 – number of persons included at this point by Common Pleas Court in the class action.
Let’s say a robber robbed a bank and got away to ½ a million dollars. As he flees the scene, a local citizen stops the thief who is then arrested and the money is recovered. Now the citizen had a checking account with the bank with $500 in it, and the courts tell him, you get your money back because you caught the thief, but the other 5000 investors whose money was stolen… they don’t get their money back because they didn’t catch the thief, in fact, the thief gets to keep the rest of the money.
Preposterous, ridiculous, you say!
Well, it’s happening with the request for class action in this lawsuit.
The original decision by the court was that only those who file a formal protest could be included.
In essence we did that on behalf of everyone when we filed the lawsuit 2 years ago. It was to serve as the official protest against the tax and read as follows (CASE: G -4801 -CI -200802348-000):
1. This class action seeks … compensatory damages, …. a preliminary and permanent injunction, …. for unjust enrichment due to Defendant’s wrongful taxation of Plaintiff and Plaintiff’s class by administratively approving an additional tax to collect refuse without the approval of Toledo City Council and without the approval of voters by referendum as this is a tax on property owners.
8. On information and belief, Plaintiffs’ class includes over 100,000 housing units, but this class is limited only to those who pay this tax.
9. This action is properly maintained as a class action because in all pertinent aspects the Plaintiff and all other similarly situated individuals have predominately identical claims.
10. This tax is not completely identical for all members of the Plaintiffs’ class because some individuals own multiple unit apartment buildings, and some individuals receive a discount for recycling.
11. Each member of the Plaintiffs’ class is required to pay this tax or face the following penalties by the city: (1) terminate water service; (2) forward the account to an outside collection agency; (3) transfer the delinquency to any other property owned by the account holder; (4) bring an action at law for collection; (5) or place a lien on the property.
What constitutes class action? As defined by © 1999 Timothy E. Eble: Standards For Class Certification Under the Ohio Rules of Civil Procedure: A Concise Summary http://www.classactionlitigation.net/library/ohio.html
Ohio Rule of Civil Procedure 23(a) contains five explicit requirements that must each be satisfied when seeking class certification.
First, the plaintiff must establish that an identifiable class actually exists
Second, the named representatives must be members of that class
* Thereafter, the plaintiff must demonstrate:
a) the class is so numerous that joinder of all members is impracticable;
b) there are questions of law or fact common to the class;
c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
d) the representative parties will fairly and adequately protect the interests of the class;
e) Common questions predominate over questions effecting only individual members; and, that a class action is superior to other available methods of resolving the claims.
The City has already demonstrated they are unable to record and maintain protests submitted by concerned residents. When I asked for copies of protests received in an open records request, they sent 54 protests letters; of those 9 matched emails received stating a protest was filed; however, there were no letters for an additional 68 protesters who notified us they had filed.
One must conclude it is obvious that class action is necessary to ensure everyone is included according to point
a): the class is so numerous that joinder of all members is impracticable
If the City cannot account for 68 protest letters we know exist, how many more were submitted that just disappeared? How would the city manage 100,000 protests?
We residents of Toledo must stand up and make our will known, class action is essential to ensure the city does not profit from this illegal tax. They must be held accountable.
As the thief who robs a bank, we would never allow him to keep his booty, so likewise we must demand the same decision for a government who blatantly disregarded the Ohio Revised Code when it legislated this tax.
I suggest further that every resident of Ohio should watch the case and brace himself if the courts do not rule in favor of residents of Toledo, for as Toledo goes, so likewise will other desperate governments of Ohio as this is easy revenue with no limits.
Take action now, quickly and with conviction as the Courts are soon to rule on class action. I suggest you call the Common Pleas Court and ask that every resident be included in the class action.
Common Pleas Phone # is: 419-213-4484
CASE: G -4801 -CI -200802348-000
For questions contact:
Scott Ciolek, Attorney, 419-491-7270
Thursday, April 22, 2010
Refuse Fee and Prompt Response
At this juncture, I want to know how many residents of Toledo filed the protest against the refuse fee enacted by the City of Toledo, so I made a couple phone calls to City Hall and asked for the correct contact for such a request. Several calls later, people in meetings, or the responder did not know, I email the request to the following public servants. I realize it will take a few days to assemble the information, but I would like an acknowledgement that this request was received. However, no one has responded.
I also made a few phone calls to find out what happened to the protest letters as they were received and I was told by a reliable source that they were sent in bundles of 10 or 20 at a time and as of last year, they were more than 200 received. I continue to wait for a response.
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Tue, Apr 20, 2010 at 12:17 PM
subjectRequest for Public Records
April 20, 2010
TO WHOM IT MAY CONCERN
This is a request for public records related to the Refuse Fee, Toledo, OH. I am requesting a complete list with the names, addresses, telephone numbers and date of protest which have been filed by residents of Toledo since the enactment of the fee by the City of Toledo of Ohio on or about April 28, 2007 to the present date. Specifically:
"the protests opposing: the City of Toledo, enacted Sections 208-210, of Appendix B, Rules and Regulations Issued by the Director of Public Service, Regulations Governing
Refuse Collection, under the authority of T.M.C. § 963.23 and Section 104 of the Toledo City Charter, to go into effect May 28, 2007. Section 208, entitled “Fees,” states the following: For the collection of refuse from any dwelling, building or other property permitted her within these regulations.."
If a list is not readily available, please scan and email copies of all protests to the Refuse fee to: Shanahanselect@gmail.com. Please utilize the quickest method possible.
It is requested all protests be provided under the “open records” regulations in a timely, fast manner.
Thank you
Karen Shanahan
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
from
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Wed, Apr 21, 2010 at 12:17 PM
subject Re: Request for Public Records
I have not received confirmation of this request. Would someone please advise the following:
Who will handle the request
Time frame for completing the request
Format that will be used for providing the information; i.e.
List of protests on spreadsheet with details requested in the initial email
Copies of all requests via pdf file emailed
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>.
from
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Thu, Apr 22, 2010 at 3:06 PM
subject
Re: Request for Public Records
Dear Public Servants,
I am again requesting a response to this request. I realize our City Goverment employees are busy and the time to complete the request may take several days, I am only asking (now for the 2nd time) for the following information on the records request so I can plan accordingly. Please respond:
Who will handle the request
Time frame for completing the request
Format that will be used for providing the information; i.e.
List of protests on spreadsheet with details requested in the initial email
Copies of all requests via pdf file emailed
I also made a few phone calls to find out what happened to the protest letters as they were received and I was told by a reliable source that they were sent in bundles of 10 or 20 at a time and as of last year, they were more than 200 received. I continue to wait for a response.
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Tue, Apr 20, 2010 at 12:17 PM
subjectRequest for Public Records
April 20, 2010
TO WHOM IT MAY CONCERN
This is a request for public records related to the Refuse Fee, Toledo, OH. I am requesting a complete list with the names, addresses, telephone numbers and date of protest which have been filed by residents of Toledo since the enactment of the fee by the City of Toledo of Ohio on or about April 28, 2007 to the present date. Specifically:
"the protests opposing: the City of Toledo, enacted Sections 208-210, of Appendix B, Rules and Regulations Issued by the Director of Public Service, Regulations Governing
Refuse Collection, under the authority of T.M.C. § 963.23 and Section 104 of the Toledo City Charter, to go into effect May 28, 2007. Section 208, entitled “Fees,” states the following: For the collection of refuse from any dwelling, building or other property permitted her within these regulations.."
If a list is not readily available, please scan and email copies of all protests to the Refuse fee to: Shanahanselect@gmail.com. Please utilize the quickest method possible.
It is requested all protests be provided under the “open records” regulations in a timely, fast manner.
Thank you
Karen Shanahan
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
from
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Wed, Apr 21, 2010 at 12:17 PM
subject Re: Request for Public Records
I have not received confirmation of this request. Would someone please advise the following:
Who will handle the request
Time frame for completing the request
Format that will be used for providing the information; i.e.
List of protests on spreadsheet with details requested in the initial email
Copies of all requests via pdf file emailed
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>.
from
Karen Shanahan
to
steve.herwat@toledo.oh.gov,
david.welch@toledo.oh.gov,
thomas.crothers@toledo.oh.gov,
jeffrey.pax@toledo.oh.gov,
amy.wood@toledo.oh.gov,
clarence.coleman@toledo.oh.gov,
jane.boone@toledo.oh.gov,
carmen.watkins@toledo.oh.gov,
doris.dvorack@toledo.oh.gov
date
Thu, Apr 22, 2010 at 3:06 PM
subject
Re: Request for Public Records
Dear Public Servants,
I am again requesting a response to this request. I realize our City Goverment employees are busy and the time to complete the request may take several days, I am only asking (now for the 2nd time) for the following information on the records request so I can plan accordingly. Please respond:
Who will handle the request
Time frame for completing the request
Format that will be used for providing the information; i.e.
List of protests on spreadsheet with details requested in the initial email
Copies of all requests via pdf file emailed
Thursday, November 19, 2009
Trash Thanks
I want to also thank Maggie Thurber for all her help and support on the issue of the trash tax, it had been going on now for 2 very stressful years. Had Maggie not offered her support 2 years ago, there would not be a case, she gave the referral which ultimately connected the lawsuit, the attorneys and me. No one else would touch it. It takes strength, knowledge, determination and believe to do this. Each of you should give it a try sometime... and stay with it year after year.
Trashing the Messengers
When I questioned the “refuse fee”, the City was very careful to define it as a fee and not an assessment nor a tax. If a tax, the city is required to put it on the ballot as a levy for additional taxes and if approved by the voters, they would be required to go back to the voters to increase the tax.
After several weeks of studying the “fee” and several more weeks of searching for an attorney who was willing to “fight city hall”, Kurt Wicklund agreed with my conclusion that it was not legal. However, we had the dilemma of how to proceed. Since the ordinance reference a “fee” the lawsuit was filed against the city ordinance regarding the “fee”. The court has to decide if this is a fee or a tax since it is legal to pass an ordinance for a fee, but not for a tax. How could we file a lawsuit against the city for a “tax” which does not appear in the Municipal Code? It had to be filed as against the “fee” and have the courts decide, fee or tax.
R.C. § 2723.01 requires each person protesting an assessment must file a protest or a tax… it does not state the protest must be filed against a fee. However, we believe filing a civil complaint in court meets the requirement regardless of what the City called it.
I’m distressed by the negative comments regarding Attorney Ciolek and the actions taken. The is a complicated case which does not have clearly defined parameters or history to follow, nor any clear cut cases to research. The attorneys working on this case have a huge battle being waged on our behalf and if any attorney out there has case law that could help the case, please offer it. I reached out to a number of attorneys, legal agencies, activists groups, professors and law schools and all I received were “lots of luck” until Wicklund and Ciolek took up the challenge.
Attorney Ciolek has taken on a number of cases against a city administration which rules by punitive, unreasonable action, cases that no one else would touch, and he has received more rulings in his favor than against him. He is deliberate, thoughtful and thorough. I challenge any attorney out in blogland to offer assistance in the case, which has profound impact on every community in Ohio. The power of this “fee” is huge as can readily be seen by a call to raise the “fee” to $16.00 per month. When we elect our leaders we elect with the hope they will comply with the law. I say they have not and it is costing us millions of dollars a year in illegally gained taxes.
Please visit the following blogs for more information: http://trashtax.blogspot.com/ and
http://shanahanselect.blogspot.com/. As the courts denied class action, I suggest you file your protest today and let the attorneys know by emailing: Trashtax@gmail.com to ensure there is a record you filed. To date we have 75 who have let us know they filed. That leaves 89,925 to go.
After several weeks of studying the “fee” and several more weeks of searching for an attorney who was willing to “fight city hall”, Kurt Wicklund agreed with my conclusion that it was not legal. However, we had the dilemma of how to proceed. Since the ordinance reference a “fee” the lawsuit was filed against the city ordinance regarding the “fee”. The court has to decide if this is a fee or a tax since it is legal to pass an ordinance for a fee, but not for a tax. How could we file a lawsuit against the city for a “tax” which does not appear in the Municipal Code? It had to be filed as against the “fee” and have the courts decide, fee or tax.
R.C. § 2723.01 requires each person protesting an assessment must file a protest or a tax… it does not state the protest must be filed against a fee. However, we believe filing a civil complaint in court meets the requirement regardless of what the City called it.
I’m distressed by the negative comments regarding Attorney Ciolek and the actions taken. The is a complicated case which does not have clearly defined parameters or history to follow, nor any clear cut cases to research. The attorneys working on this case have a huge battle being waged on our behalf and if any attorney out there has case law that could help the case, please offer it. I reached out to a number of attorneys, legal agencies, activists groups, professors and law schools and all I received were “lots of luck” until Wicklund and Ciolek took up the challenge.
Attorney Ciolek has taken on a number of cases against a city administration which rules by punitive, unreasonable action, cases that no one else would touch, and he has received more rulings in his favor than against him. He is deliberate, thoughtful and thorough. I challenge any attorney out in blogland to offer assistance in the case, which has profound impact on every community in Ohio. The power of this “fee” is huge as can readily be seen by a call to raise the “fee” to $16.00 per month. When we elect our leaders we elect with the hope they will comply with the law. I say they have not and it is costing us millions of dollars a year in illegally gained taxes.
Please visit the following blogs for more information: http://trashtax.blogspot.com/ and
http://shanahanselect.blogspot.com/. As the courts denied class action, I suggest you file your protest today and let the attorneys know by emailing: Trashtax@gmail.com to ensure there is a record you filed. To date we have 75 who have let us know they filed. That leaves 89,925 to go.
Friday, October 02, 2009
Scream, yell and stamp your feet in protest!
As City Council again weighs the issue of the "Refuse Fee" and again contemplates raising it, the issue is not if it should be raised, but that it is not legal.
Each time the "refuse fee" is discussed, there is a whimper of protest from Toledoans which quickly dies away. The residents are lulled into believing Toledo City must have this money.
Outraged, we should be outraged; it is not legal and is nothing short of a thief breaking into your homes, stealing your money.
Toledo: Scream, yell and stamp your feet in protest! This is a tax disguised as a fee that the Ohio Revised Code forbids unless passed by a majority vote of the residents,
I repeat, the real issue is that this "fee" is legal, not whether Council should raise the "fee". The courts ruled this is a "tax" and as such, is unconstitutional. Now the question is whether the City keeps the illegally collected taxes.
Will the City be required to return the funds? That is the question before the 6th District Court of Appeals, should this be a class action suit and include every resident who pays the "fee"?
Once again, I implore City Council to avoid the temptation to raise more easy money from residents with this "fee" which is, in fact, an illegal "tax".
Once again, I implore the residents of Toledo to file a protest against the fee.
1, Go to Shanahanselect.blogspot.com
2. Click "Trash Tax Protest Form"
3. Print the form
4. Fill it out the form
5. Mail the completed form to the Department of Public Utilities
6. Email Trashtax@gmail.com to notify the Attorneys representing you in this lawsuit that you filed.
Every thief justifies his actions claiming he had no other option. Don't let the city get away with this theft. Fight it, don't relent, make your voice heard. If the City needs money, then get it legally.
Each time the "refuse fee" is discussed, there is a whimper of protest from Toledoans which quickly dies away. The residents are lulled into believing Toledo City must have this money.
Outraged, we should be outraged; it is not legal and is nothing short of a thief breaking into your homes, stealing your money.
Toledo: Scream, yell and stamp your feet in protest! This is a tax disguised as a fee that the Ohio Revised Code forbids unless passed by a majority vote of the residents,
I repeat, the real issue is that this "fee" is legal, not whether Council should raise the "fee". The courts ruled this is a "tax" and as such, is unconstitutional. Now the question is whether the City keeps the illegally collected taxes.
Will the City be required to return the funds? That is the question before the 6th District Court of Appeals, should this be a class action suit and include every resident who pays the "fee"?
Once again, I implore City Council to avoid the temptation to raise more easy money from residents with this "fee" which is, in fact, an illegal "tax".
Once again, I implore the residents of Toledo to file a protest against the fee.
1, Go to Shanahanselect.blogspot.com
2. Click "Trash Tax Protest Form"
3. Print the form
4. Fill it out the form
5. Mail the completed form to the Department of Public Utilities
6. Email Trashtax@gmail.com to notify the Attorneys representing you in this lawsuit that you filed.
Every thief justifies his actions claiming he had no other option. Don't let the city get away with this theft. Fight it, don't relent, make your voice heard. If the City needs money, then get it legally.
Monday, July 20, 2009
“Revenue Enhancement” Keeping is Alive, Legal or Not
Again the Mayor is calling for City Council to increase the Refuse Fee to balance the budget. My attorneys, Ciolek and Wicklund, filed a lawsuit against the City in February of 2008 Lawsuit disputing the legality of the refuse fee on behalf of all residents and property owners of Toledo. It is still in the courts pending a decision by the 6th District Court Appeal of our appeal of the denial for class action by the Lucas County Common Pleas Court. Let me state unequivocally, this “fee” is a tax and as such it is not legal. When the Courts finally decide in our favor, it will be decided in the favor of every resident and property owner of Toledo. It may take a couple more years until the case is decided and no one in the City is anxious for a resolution, as they believe the revenue is essential to maintain services.
As City Council again weighs the recommendations of the Mayor to increase the fee, Council should consider the effect of having to reimburse the millions of illegally assessed taxes to the residents, which the courts will require. Continuing and increasing the “fee” will be a temporary repair to the budget and though it may seem wise at this time to assess these “fees”, Council would be prudent to resist the temptation, as it is only a temporary measure.
Until the District Court hears the case on class action, all residents paying the refuse “fee” are encourage to file the letter of protest with the Department of Public Utilities. The form can be accessed through the blog: Shanahanselect.blogspot.com and follow the instructions within the blog.
To the Mayor, this is folly to continue assessing an illegal tax, which is protested in the courts. To City Council, when the Courts decide in favor of the residents of Toledo on this illegal tax, the required refunds will be painful; to increase them would not be prudent. The residents of Toledo have faith that Scott Ciolek, Attorney, and I will continue to fight the battle on your behalf.
As City Council again weighs the recommendations of the Mayor to increase the fee, Council should consider the effect of having to reimburse the millions of illegally assessed taxes to the residents, which the courts will require. Continuing and increasing the “fee” will be a temporary repair to the budget and though it may seem wise at this time to assess these “fees”, Council would be prudent to resist the temptation, as it is only a temporary measure.
Until the District Court hears the case on class action, all residents paying the refuse “fee” are encourage to file the letter of protest with the Department of Public Utilities. The form can be accessed through the blog: Shanahanselect.blogspot.com and follow the instructions within the blog.
To the Mayor, this is folly to continue assessing an illegal tax, which is protested in the courts. To City Council, when the Courts decide in favor of the residents of Toledo on this illegal tax, the required refunds will be painful; to increase them would not be prudent. The residents of Toledo have faith that Scott Ciolek, Attorney, and I will continue to fight the battle on your behalf.
Sunday, April 19, 2009
Thursday, April 16, 2009
Trash Tax and Class Action
To all in Toledo, if the Trash Tax is deemed unconstitutional by the courts (will take about another 2 to 3 years) would you want a refund? Or would you say, "gee, the City stole that money from me, it was not legal, but they need to keep the money, I don't want a refund". How many of you go back to the checkout at the store when they charge you too much for an item? Well, if you want a refund if the tax is deemed unconstitutional, you need to fill out and mail a protest form... today! If you do, let us know so we can keep a list to join you in the class action. Here is a link to the form: TRASH TAX PROTEST
Then email and advise you protested: TRASHTAX@GMAIL.COM
Then email and advise you protested: TRASHTAX@GMAIL.COM
Friday, March 27, 2009
RC 2723.03 (Ohio Revised Code)
Here is the Code... note, no mention of FEE
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
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
Lawsuit Ruling 2/23/2009
IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY, OHIO
Karen Shanahan,
Plaintiff, Case No. CI0200802348
vs. OPINION AND JUDGMENT ENTRY
The City ofToledo, Hon. Charles J. Doneghy
Defendant.
This proposed class-action matter is before the Court on: 1) the motion of the
plaintiff for class certification; and 2) the motion of the plaintiff to stay a decision on class certification and for partial summary judgment. Upon review of the amended pleadings, memoranda and representations of the parties,and applicable law,the Court finds that it, first, should over rule the plaintiffs motion for partial summary judgment, second, should overrule at this juncture the plaintiffs motion for class certification, and, third, should overrule the motion to stay as moot.
I. FACTUAL BACKGROUND The defendant, the City ofToledo ("City"), first by administrative decision and later by action of the City's council, enacted It an additional tax to collect refuse" (the "Tax"). At all times relevant,the plaintiff, Karen Shanahan,was a property owner in the City who was required to and did pay the Tax. (A.CompLparas.4-5,7-8,16.) The plaintiff alleges that the City's enactment of this Tax was and is unlawful and unconstitutional. (A.Compl.para.2.)The plaintiff seeks certification of a proposed class of approximately 100,000 members who are: current and past property owners and tenants who are, were or will be required to pay a tax on their property (owned or leased) for refuse collection without voter approval by referendum and/or without lawful and constitutional action by City council. (A.Compl.paras.710,21-23,35-37.) The plaintiff now asks the Court to stay ruling on her class-certification motion until the Court issues a summary judgment decision addressing whether the Tax is properly classified as a "tax" or instead as a "fee.'
II. DISCUSSION
A. SUMMARY JUDGMENT: "TAX" OR "FEE"
In opposing class certification, the City argues that the plaintiff has failed to comply with the jurisdictional requirements which R.C. 2723.03 places on any plaintiff who seeks to recover payments of, or to enjoin operation of, illegal or unconstitutional "taxes or assessments." In her summary judgment motion, the plaintiff argues that the Tax is, in reality, a fee. Thus,the plaintiff contends that R.C. 2723.03 has no impact on the instant action.
In relevant part, R.C. 2723.03 reads as follows: "* **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 no be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid." (Emphasis added.) The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a "tax," fall with in the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v.Tracy(1963), 75Ohio St.55,56-57, 191N.E.2d839. See, also, Gottlieb
v. S.Euclid, 157OhioApp.3d250,2004-0hio-2705,810N.E.2d970,at'30 (finding R.C.2723.03 applies to license "fees").Accordingly,the Court finds that the plaintiffs motion for partial summary judgment is not well-taken.
B. CLASS CERTIFICATION
Civ.R. 23 governs when a court properly may certify a class. Gottlieb v. S. Euclid, 157 Ohio App.3d250,2004-0hio-2705, 810 N.E.2d970,at ..] O. The rule sets forth the following seven requirements:
"(1) an identifiable class must exist and the definition of the class must be unambiguous; (2)the named representatives must be members of the class; (3)the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5)the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class;and(7)one of the three Civ.R.23(B)requirements must be satisfied." (Emphasis
added.) Id.
In an action for damages, lithe trial court must specifically find, pursuant to Civ.R. 23(8), that questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Emphasis added.) Id. The proponent of the class must establish all these factual and legal requirements. Id. at ~ 11. The trial court has broad discretion, but must apply carefully and rigorously the requirements, when determining whether to certify a class. Id.at'9,citing Hamilton v.Ohio Sav. Bank, 82 Ohio St. 3d67, 70,1998-0hio-365, 694 N.E.2d 442.
In this case, the plaintiff asserts that she satisfies all the requirements of Civ.R. 23. The City counters that the plaintiff has failed to establish the requirements of R.C. 2723.03 for challenging the Tax in this case, that she fails to propose a class that is limited to property owners who have satisfied those requirements, and, thus, she is not entitled to class certification at this juncture. The Court agrees.
The court in, Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-0hio-2705, 810
N.E.2d970,ruled that R.C. 2723.03 is the proper vehicle to challenge the collection of "taxes and assessments." Id.at28. In order to maintain a damages action for recovery of surcharges,the statute "requires a plaintiff to allege and prove that he filed a written protest and notice of intention to sue at the time of paying the tax or assessment." (Emphasis added.) Id. If the taxpayer fails to comply with these requirements, courts will bar his her recovery action. Id. And,if the taxpayer does not limit the proposed class to other taxpayers who also have complied with the statute, the court should not certify the class as the class does not meet the numerosity requirement.
Additionally, Ohio courts find that claims for injunctive and/or declaratory relief relating to improper taxes and assessments are unnecessary if a trial court finds that the case not properly maintainable as a class-action for damages. Id. at ....... Ordinarily, Ohio courts require that actions seeking only to enjoin allegedly unlawful or unconstitutional taxes and fees should be brought as individual actions, because class certification is not the "superior method for dealing with such claims. Id.
"[C]ertification of the cause as a class action prior to the determination of the constitutionality of the statute may result in unnecessary discovery procedures and the unjustified and unnecessary expenditure of judicial time and energy needed to determine a class action. ***We must be ever mindful of the policy behind a class action lawsuit, Le., to simplify the resolution of complex litigation,not complicate it unnecessarily." (Citation omitted.) Id.
In the instant case, the Court finds that the plaintiff has provided no evidence that she has complied with R.C. 2723.03. Accordingly, the Court finds that it should not certify even a properly proposed class at this juncture.
JUDGMENT ENTRY
The Court hereby ORDERS that the plaintiffs motion for partial summary judgment is overruled. The Court further ORDERS that the plaintiffs motion to stay ruling on class certification is overruled as moot. The Court further ORDERS that the plaintiffs motion for class certification is overruled. The Court further ORDERS that this case is assigned for pretrial on
pc: Keith J. Wicklund/Scott A. Ciolek
Anthony J. DeGidioKeith J. Winterhalter
Karen Shanahan,
Plaintiff, Case No. CI0200802348
vs. OPINION AND JUDGMENT ENTRY
The City ofToledo, Hon. Charles J. Doneghy
Defendant.
This proposed class-action matter is before the Court on: 1) the motion of the
plaintiff for class certification; and 2) the motion of the plaintiff to stay a decision on class certification and for partial summary judgment. Upon review of the amended pleadings, memoranda and representations of the parties,and applicable law,the Court finds that it, first, should over rule the plaintiffs motion for partial summary judgment, second, should overrule at this juncture the plaintiffs motion for class certification, and, third, should overrule the motion to stay as moot.
I. FACTUAL BACKGROUND The defendant, the City ofToledo ("City"), first by administrative decision and later by action of the City's council, enacted It an additional tax to collect refuse" (the "Tax"). At all times relevant,the plaintiff, Karen Shanahan,was a property owner in the City who was required to and did pay the Tax. (A.CompLparas.4-5,7-8,16.) The plaintiff alleges that the City's enactment of this Tax was and is unlawful and unconstitutional. (A.Compl.para.2.)The plaintiff seeks certification of a proposed class of approximately 100,000 members who are: current and past property owners and tenants who are, were or will be required to pay a tax on their property (owned or leased) for refuse collection without voter approval by referendum and/or without lawful and constitutional action by City council. (A.Compl.paras.710,21-23,35-37.) The plaintiff now asks the Court to stay ruling on her class-certification motion until the Court issues a summary judgment decision addressing whether the Tax is properly classified as a "tax" or instead as a "fee.'
II. DISCUSSION
A. SUMMARY JUDGMENT: "TAX" OR "FEE"
In opposing class certification, the City argues that the plaintiff has failed to comply with the jurisdictional requirements which R.C. 2723.03 places on any plaintiff who seeks to recover payments of, or to enjoin operation of, illegal or unconstitutional "taxes or assessments." In her summary judgment motion, the plaintiff argues that the Tax is, in reality, a fee. Thus,the plaintiff contends that R.C. 2723.03 has no impact on the instant action.
In relevant part, R.C. 2723.03 reads as follows: "* **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 no be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid." (Emphasis added.) The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a "tax," fall with in the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v.Tracy(1963), 75Ohio St.55,56-57, 191N.E.2d839. See, also, Gottlieb
v. S.Euclid, 157OhioApp.3d250,2004-0hio-2705,810N.E.2d970,at'30 (finding R.C.2723.03 applies to license "fees").Accordingly,the Court finds that the plaintiffs motion for partial summary judgment is not well-taken.
B. CLASS CERTIFICATION
Civ.R. 23 governs when a court properly may certify a class. Gottlieb v. S. Euclid, 157 Ohio App.3d250,2004-0hio-2705, 810 N.E.2d970,at ..] O. The rule sets forth the following seven requirements:
"(1) an identifiable class must exist and the definition of the class must be unambiguous; (2)the named representatives must be members of the class; (3)the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5)the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class;and(7)one of the three Civ.R.23(B)requirements must be satisfied." (Emphasis
added.) Id.
In an action for damages, lithe trial court must specifically find, pursuant to Civ.R. 23(8), that questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Emphasis added.) Id. The proponent of the class must establish all these factual and legal requirements. Id. at ~ 11. The trial court has broad discretion, but must apply carefully and rigorously the requirements, when determining whether to certify a class. Id.at'9,citing Hamilton v.Ohio Sav. Bank, 82 Ohio St. 3d67, 70,1998-0hio-365, 694 N.E.2d 442.
In this case, the plaintiff asserts that she satisfies all the requirements of Civ.R. 23. The City counters that the plaintiff has failed to establish the requirements of R.C. 2723.03 for challenging the Tax in this case, that she fails to propose a class that is limited to property owners who have satisfied those requirements, and, thus, she is not entitled to class certification at this juncture. The Court agrees.
The court in, Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-0hio-2705, 810
N.E.2d970,ruled that R.C. 2723.03 is the proper vehicle to challenge the collection of "taxes and assessments." Id.at28. In order to maintain a damages action for recovery of surcharges,the statute "requires a plaintiff to allege and prove that he filed a written protest and notice of intention to sue at the time of paying the tax or assessment." (Emphasis added.) Id. If the taxpayer fails to comply with these requirements, courts will bar his her recovery action. Id. And,if the taxpayer does not limit the proposed class to other taxpayers who also have complied with the statute, the court should not certify the class as the class does not meet the numerosity requirement.
Additionally, Ohio courts find that claims for injunctive and/or declaratory relief relating to improper taxes and assessments are unnecessary if a trial court finds that the case not properly maintainable as a class-action for damages. Id. at ....... Ordinarily, Ohio courts require that actions seeking only to enjoin allegedly unlawful or unconstitutional taxes and fees should be brought as individual actions, because class certification is not the "superior method for dealing with such claims. Id.
"[C]ertification of the cause as a class action prior to the determination of the constitutionality of the statute may result in unnecessary discovery procedures and the unjustified and unnecessary expenditure of judicial time and energy needed to determine a class action. ***We must be ever mindful of the policy behind a class action lawsuit, Le., to simplify the resolution of complex litigation,not complicate it unnecessarily." (Citation omitted.) Id.
In the instant case, the Court finds that the plaintiff has provided no evidence that she has complied with R.C. 2723.03. Accordingly, the Court finds that it should not certify even a properly proposed class at this juncture.
JUDGMENT ENTRY
The Court hereby ORDERS that the plaintiffs motion for partial summary judgment is overruled. The Court further ORDERS that the plaintiffs motion to stay ruling on class certification is overruled as moot. The Court further ORDERS that the plaintiffs motion for class certification is overruled. The Court further ORDERS that this case is assigned for pretrial on
pc: Keith J. Wicklund/Scott A. Ciolek
Anthony J. DeGidioKeith J. Winterhalter
Refuse Fee Lawsuit - CALL to ACTION
If you believe the Refuse Fee is not a legal form of revenue for the City or if you want to protest this additional fee, it is requested you file a formal protest when you pay the bill or send it to the City. Join the fight, be included, let your voice be heard. Here is the format for the protest:
Date _________________
Pursuant to Ohio Revised Code § 2723.03, I hereby notify the City of Toledo that I am paying the “refuse fee” under protest. Whether construed as a “tax,” “fee,” or “assessment,” the “refuse fee” is unlawful for the following reasons:
The “refuse fee” essentially functions as a property tax; and
The Ohio Constitution requires a referendum before such an assessment may be levied.
For the reasons stated above, I intend to sue under Revised Code §§ 2723.01-2723.05 for the purpose of recovering this unlawful appropriation in its entirety.
Sincerely,
___________________________
Name
___________________________
___________________________
___________________________
Street Address
Date _________________
Pursuant to Ohio Revised Code § 2723.03, I hereby notify the City of Toledo that I am paying the “refuse fee” under protest. Whether construed as a “tax,” “fee,” or “assessment,” the “refuse fee” is unlawful for the following reasons:
The “refuse fee” essentially functions as a property tax; and
The Ohio Constitution requires a referendum before such an assessment may be levied.
For the reasons stated above, I intend to sue under Revised Code §§ 2723.01-2723.05 for the purpose of recovering this unlawful appropriation in its entirety.
Sincerely,
___________________________
Name
___________________________
___________________________
___________________________
Street Address
Refuse Fee and Court
Another court date today and I wonder if, as before, the attorneys will meet in chamber with the Judge, return to the courtroom and we leave with no action. The request for class action was denied at this point as "moot" and I have no idea what is next. The original attorney on the case, KURT WICKLUND has moved on to another firm and had to remove himself from the case. He spent a tremendous amount of time working on the case and we owe him a debt of gratitude for taking on the case that no one else wanted to touch. SCOTT A CIOLEK continues to carry the torch along with the newest attorney to the case, ANTHONY J DEGIDIO. They have now filed an appeal on the class action decision:
3/24/2009: Title : PLD:DOCKETING STATEMENT, PURSUANT TO APP R 3(G) AND 6TH DIST LOC APP R 3(C)
Today is about:
THE COURT HEREBY ORDERS THAT THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS OVERRULED. THE COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION TO STAY RULING ON CLASS CERTIFICATION IS OVERRULED AS MOOT. COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS OVERRULED. FURTHER ORDERED THAT THIS CASE IS SET FOR
A PRETRIAL CONFERENCE ON MARCH 27, 2009 AT 2:00 P.M.
If anyone would like to come and observe the legal system at work, you are welcome.
LUCAS COUNTY COURT OF COMMON PLEAS, JUDGE: CHARLES J. DONEGHY
3/24/2009: Title : PLD:DOCKETING STATEMENT, PURSUANT TO APP R 3(G) AND 6TH DIST LOC APP R 3(C)
Today is about:
THE COURT HEREBY ORDERS THAT THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS OVERRULED. THE COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION TO STAY RULING ON CLASS CERTIFICATION IS OVERRULED AS MOOT. COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS OVERRULED. FURTHER ORDERED THAT THIS CASE IS SET FOR
A PRETRIAL CONFERENCE ON MARCH 27, 2009 AT 2:00 P.M.
If anyone would like to come and observe the legal system at work, you are welcome.
LUCAS COUNTY COURT OF COMMON PLEAS, JUDGE: CHARLES J. DONEGHY
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.
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.
Wednesday, October 22, 2008
Refuse Fee LAWSUIT, UPDATE
Another court date... at this rate I'm going to run out of vacation days to attend!
If you have any spare time... stop by and watch democracy in action.
Title : HRG:PRETRIAL SET
Pursuant to the telephonic conference call on this date,
the hearing regarding the issue of class certification is
scheduled for NOVEMBER 7, 2008 AT 3:00 P.M. All counsel
notified.
LUCAS COUNTY COURT OF COMMON PLEAS
J. BERNIE QUILTER, CLERK
700 ADAMS STREET
TOLEDO, OHIO
JUDGE: CHARLES J. DONEGHY
If you have any spare time... stop by and watch democracy in action.
Title : HRG:PRETRIAL SET
Pursuant to the telephonic conference call on this date,
the hearing regarding the issue of class certification is
scheduled for NOVEMBER 7, 2008 AT 3:00 P.M. All counsel
notified.
LUCAS COUNTY COURT OF COMMON PLEAS
J. BERNIE QUILTER, CLERK
700 ADAMS STREET
TOLEDO, OHIO
JUDGE: CHARLES J. DONEGHY
Friday, August 22, 2008
Refuse Collection Performance
If you have a problems with the refuse collection at your home, it does make a difference if you call the Refuse Department and complain. So if you are frustrated or unhappy with the performance, call and let the City know, request a Supervisor to come out and inspect. The employees receive a bonus for each 2 week period they work of .80 per hour. If there are complaints, it impacts the bonus:
2121.117 Weekly Unlimited Refuse Pay
“The rate of incentive pay during the life of the contract will be established at eighty cents (.80) per hour.
The incentive pay will be made to employees by means of a separate check being issued quarterly to the employee for the number of hours for which the employee is entitled to receive the pay.
(b) Each crew will be evaluated as to the performance of its duties for each two (2) week pay period. A system will be established to keep record of bona fide complaints which have been investigated by the Foreman and are determined to have been justified. The complaints for which a crew's pay will be reduced are as negotiated between the City and the Union and are entitled, bona fide complaints for which incentive pay will be reduced. When bona fide complaints against a crew have been determined to be justified, the incentive pay of the crew will be reduced in accordance with Table 1.
TABLE 1
Bona Fide Complaints - Percent Reduction of Incentive Pay In 2-Week Period - For That 2-Week Period
0 - 4 0%
5 - 6 20%
7 - 8 40%
9 - 10 60%
11&over 80%"
2121.117 Weekly Unlimited Refuse Pay
“The rate of incentive pay during the life of the contract will be established at eighty cents (.80) per hour.
The incentive pay will be made to employees by means of a separate check being issued quarterly to the employee for the number of hours for which the employee is entitled to receive the pay.
(b) Each crew will be evaluated as to the performance of its duties for each two (2) week pay period. A system will be established to keep record of bona fide complaints which have been investigated by the Foreman and are determined to have been justified. The complaints for which a crew's pay will be reduced are as negotiated between the City and the Union and are entitled, bona fide complaints for which incentive pay will be reduced. When bona fide complaints against a crew have been determined to be justified, the incentive pay of the crew will be reduced in accordance with Table 1.
TABLE 1
Bona Fide Complaints - Percent Reduction of Incentive Pay In 2-Week Period - For That 2-Week Period
0 - 4 0%
5 - 6 20%
7 - 8 40%
9 - 10 60%
11&over 80%"
Thursday, August 21, 2008
REFUSE FEE Lawsuit.. thoughts
I read a few blogs about how silly this lawsuit was and a waste of time, I should spend my time doing something significant. I so completely disagree and want to say this to all the naysayers:
Interesting dialogue about the “Refuse Fee” and I wonder if the impact of the power of this illegal form of revenue enhancement has impacted the taxpayers of Toledo. According to the Toledo Municipal Code and the Ohio Revised Code, the voters must approve any additional tax in the form of a levy. Why is this? When we recently voted again to approve the ¾% “temporary tax”, had it not passed, our desperate politicians had the ability to change the “Refuse Fee” to $50 per month instead of $5.50 or $7.00 or $10.00 and the revenue would have equaled the millions achieved from the ¾% “temporary tax” (91000 households x $50 per month x 12 months $54,600,000) with the simple stroke of a pen and 7 yeas. Would Council do this? I don’t know, but the question remains, should they have the power to do this. I say NO; they should not have the power and both the TMC and ORC agree.
Also, ask this question: is this tax (not legal) or is this a fee (legal)? Through other court cases, the description of a fee has been defined: 1. Must be transactional (if you take a load of trash to the dump, you pay for that load only); 2. Must be based on usage (when you take the trash to the dump, you pay a fee based on the amount you take based on lbs. Or volume); 3, must be able to opt out of the fee (I only pay when I go to the dump, if I don’t go to the dump, I don’t pay.) Consider the other fees we pay: fee for a dog license; fee for a marriage license; fee for a drivers license; fee for a building permit; etc., and it becomes obvious this is a tax not a fee.
If this is a legal form of revenue enhancement, the City of Toledo would never need to put a tax levy on the ballot again, they would only need to increase the “Refuse Fee”. If anyone out there believes that next year it will remain $8.00 / $1.00 and the following year $10.00 / $0, then you are fooling yourself. The city spent a great deal of time patting themselves on the back at how much money they were pulling in, even over budget, and were so very proud of themselves. If done incrementally, we would become even more complacent then we are now as we justify the amount as only “$66” per year, and then only $96 per year, and then only $120 per year. When we think in this way, we make a molehill out of a mountain and that is how we ended up with a tax, which was passed as a fee.
In essence, City Council is stealing from the taxpayers through this illegal “fee”. If a shop owner catches a shopper stealing a $10 garment, they yell “thief” and want restitution… for a mere “$10” because of the accumulating effect of 1000’s of stolen $10 garments. We have laws to protect us from theft; we pay taxes for police, prosecutors, judges and jails so the “perps” can be prosecuted. And yet you cry “fowl” – a “molehill, a waste of time and effort, after all it’s only $66 per year… accumulating to $4,200,000 a year. I ask, is that really ok? Have taxpayers been harmed. You bet we have, so far in the amount of over $6,000,000!
Interesting dialogue about the “Refuse Fee” and I wonder if the impact of the power of this illegal form of revenue enhancement has impacted the taxpayers of Toledo. According to the Toledo Municipal Code and the Ohio Revised Code, the voters must approve any additional tax in the form of a levy. Why is this? When we recently voted again to approve the ¾% “temporary tax”, had it not passed, our desperate politicians had the ability to change the “Refuse Fee” to $50 per month instead of $5.50 or $7.00 or $10.00 and the revenue would have equaled the millions achieved from the ¾% “temporary tax” (91000 households x $50 per month x 12 months $54,600,000) with the simple stroke of a pen and 7 yeas. Would Council do this? I don’t know, but the question remains, should they have the power to do this. I say NO; they should not have the power and both the TMC and ORC agree.
Also, ask this question: is this tax (not legal) or is this a fee (legal)? Through other court cases, the description of a fee has been defined: 1. Must be transactional (if you take a load of trash to the dump, you pay for that load only); 2. Must be based on usage (when you take the trash to the dump, you pay a fee based on the amount you take based on lbs. Or volume); 3, must be able to opt out of the fee (I only pay when I go to the dump, if I don’t go to the dump, I don’t pay.) Consider the other fees we pay: fee for a dog license; fee for a marriage license; fee for a drivers license; fee for a building permit; etc., and it becomes obvious this is a tax not a fee.
If this is a legal form of revenue enhancement, the City of Toledo would never need to put a tax levy on the ballot again, they would only need to increase the “Refuse Fee”. If anyone out there believes that next year it will remain $8.00 / $1.00 and the following year $10.00 / $0, then you are fooling yourself. The city spent a great deal of time patting themselves on the back at how much money they were pulling in, even over budget, and were so very proud of themselves. If done incrementally, we would become even more complacent then we are now as we justify the amount as only “$66” per year, and then only $96 per year, and then only $120 per year. When we think in this way, we make a molehill out of a mountain and that is how we ended up with a tax, which was passed as a fee.
In essence, City Council is stealing from the taxpayers through this illegal “fee”. If a shop owner catches a shopper stealing a $10 garment, they yell “thief” and want restitution… for a mere “$10” because of the accumulating effect of 1000’s of stolen $10 garments. We have laws to protect us from theft; we pay taxes for police, prosecutors, judges and jails so the “perps” can be prosecuted. And yet you cry “fowl” – a “molehill, a waste of time and effort, after all it’s only $66 per year… accumulating to $4,200,000 a year. I ask, is that really ok? Have taxpayers been harmed. You bet we have, so far in the amount of over $6,000,000!
Monday, August 18, 2008
REFUSE FEE LAWSUIT - 8-15-08
Went to court on the 15th as the Court was to decide whether the case qualified as a class action suit. The opposing attorneys can question whether my attorneys have enough experience to represent a class action suit and rather than run the risk of a decision on behalf of the opposing counsel, my attorneys brought in another attorney to join the team representing all of the residents of Toledo in the lawsuit.
I mentioned we had heard from others in the community who wanted the refuse fee reversed as they, too, believed it was wrong. If you have been "harmed" by the lawsuit, please email the attorneys and voice your view. They are interested in hearing from you. Email address to use: info@cw.law.pro
After waiting for a short time in the court room, the attorneys were called into the Judge's chambers, the Attorney representing the City of Toledo requested a continuance for a month so they could review the credentials of the new attorney, the extension was granted. So, we wait again for a new court date.
I mentioned we had heard from others in the community who wanted the refuse fee reversed as they, too, believed it was wrong. If you have been "harmed" by the lawsuit, please email the attorneys and voice your view. They are interested in hearing from you. Email address to use: info@cw.law.pro
After waiting for a short time in the court room, the attorneys were called into the Judge's chambers, the Attorney representing the City of Toledo requested a continuance for a month so they could review the credentials of the new attorney, the extension was granted. So, we wait again for a new court date.
Saturday, June 28, 2008
REFUSE FEE LAWSUIT - update
The attorneys put their heads together on JUNE 27, 2008 AT 10:30 A.M for a pretrial conference and decided on a court date in mid-August.
One must be very patient when dealing with the courts.
One must be very patient when dealing with the courts.
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