$32 fee will have its day in courtSep 21st, 2012 | By Jessica Gonzalez | Category: News
“This ordinance is fraught with nullity, is unconstitutional on its face and as applied, constitutes the imposition of a tax requiring the vote of the people, violates the Louisiana Local Government Budget Act, and threatens any modicum of separation of powers.”
The argument is summed up in Item 26 on Page 7 of Peter Rupp’s law suit against Parish President David Peralta and the entire council, filed on Wednesday afternoon.
The suit seeks to declare the $32 fee now on residents’ water bills with the explanation of “Fire
Protection” actually a “tax;” it seeks to impose an injunction on the fee, halting it from being collected;
and to prohibit water from being turned off as a violation of not paying the $32.
On August 21, the council voted to impose a $32 fee on all water bills in the parish. They said the
sales tax projections that formed the 2012 budget were much higher than those actually collected—
leaving a shortfall in the millions.
Although St. Bernard Parish Government has laid off parish employees in response, they say that
to keep from laying off any more parish employees, specifically fire fighters, $32 must be collected on
each water bill for the remainder of 2012.
Many have sited that the St. Bernard Parish Home Rule Charter mandates that any new tax be put
up for vote before it is enforced.
“If you let any sector of government get away with creating an ordinance by convoluting a law,
it’s going to happen over and over again,” said Rupp.
However, an Attorney General opinion from 2009 on a garbage collection fee gave the council enough confidence to approve the $32 ordinance.
That confidence was misplaced, according to Rupp’s attorney Henry L. Klein. The lawsuit points out that the garbage fee was specifically for the cost of garbage collection, but the $32 is actually a tax.
The difference between a “fee” and a “tax” can be decided by the “Ultimate Use” test: “What is the purpose of the assessment and what is its ultimate use?”
“If the funds are used to benefit the community as a whole and not a discrete group, it is a ‘tax’ and not a ‘fee,’” the suit states.
“If the impost is the result of a general need for the common good, it is a ‘tax’ and not a ‘fee.’” The $32 would benefit the community as a whole in offsetting the sales tax shortfall. Also, the $32 is needed to correct a
general need, first the sales tax shortfall, since renamed as “fire
Rupp explained a fee as what one would pay to have his or her child play summer ball. The parish can collect a fee for costs associated with a “discrete group,” in this example athletes and their parents. Those without children do not pay this fee.
The case also cites, Tardo v. Lafourche Parish Council. In that case, a judge ruled that just because
economic circumstances changed in a parish, that does not give the parish the right or ability
to override the parish charter.
“I feel kind of relieved,” said Council Chairman Guy McInnis. And if Rupp wins this case, “the administration is going to have to make the cuts they have to make,” said McInnis.
Parish President Peralta was not able to be reached for comment by presstime.