City Service Fee Ordinance PDF

AN ORDINANCE OF COUNCIL CREATING AND ENACTING ARTICLE 772
OF THE CODIFIED ORDINANCES OF THE CITY OF HUNTINGTON
AS REVISED, TO IMPOSE A CITY SERVICE FEE AND TO PROVIDE FOR
ADMINISTRATIVE AND ENFORCEMENT PROVISIONS FOR THE
IMPLEMENTATION AND COLLECTION OF SAID FEE.
(AS AMENDED)

BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HUNTINGTON, CABELL AND WAYNE COUNTIES, WEST VIRGINIA, that the Council does hereby CREATE and ENACT Article 772 of the Codified Ordinances of the City of Huntington, as revised, which shall read as follows:

ARTICLE 772

CITY SERVICE FEE .

772.01 STATEMENT OF POLICY AND FINDINGS.
Council finds that the City of Huntington provides to all persons in its borders certain services, whether they be residents employed within the City, or persons living outside the City and employed within the corporate boundaries of the City or persons visiting within the City. Such services include police protection and traffic and street maintenance and other valuable services associated with the police department and public works department. Such services are within the authority and are the responsibility of the municipal government as provided under the general laws of the State of West Virginia and, since such services are essential to the creation and maintenance of those jobs which provide livelihood to all persons employed within the City, as well as to the property interests of residents and visitors to the City, it is, therefore, reasonable to derive a portion of the cost of providing and maintaining such services from said individuals. Additionally, the Council finds that an individual who is a resident and employed has a greater interest and direct benefit from such municipal services. West Virginia Code Section 8-13-13 provides that every municipality has the plenary power and authority to provide by ordinance for the installation, continuance, maintenance or improvement of such services, to make reasonable regulations with respect thereto, and to impose by ordinance upon the users of such services reasonable rates, fees and charges to be collected in the manner specified in the ordinance.

Council further finds that all of those who actually use, enjoy and benefit from these services should bear an equitable share of the cost thereof. Council acknowledges that the Supreme Court of Appeals of West Virginia has recognized that no system of assessing the costs to all users will be absolutely perfect, and that municipalities are only required to install a reasonable system of distributing the costs to all of the users that it can reach through reasonable and prudent means and legislation.

Council further acknowledges that the Legislature of the State of West Virginia has conferred upon municipalities the plenary power to enact reasonable administrative provisions to ensure the efficient, orderly and equitable implementation and collection of the service fees from all possible users.

Council further finds that it has determined that it is in the best interests of the citizens of the City of Huntington and the users of all City services to enact this Article to impose a city service fee.

Council further finds that there are thousands of persons who use and benefit from municipal services who are not owners of property or residents of the City of Huntington, but who are employed within the City.

Council further finds that employers located within the City of Huntington possess important employment information necessary to properly enforce certain aspects and provisions of this Article. Therefore, reasonable regulations concerning obtaining certain information from such employers shall be a necessary and important part of the administration of the city service fee.

772.02 DEFINITIONS.
(a) "User" shall mean any person who is employed within the City by an employer located within the City and whose conduct is consistent with that of an employee benefiting from the use of municipal services as stated in section 772.03 of this Article.
(b) "Municipal service or municipal services" shall mean any valuable service provided by the City of Huntington, its departments, boards, commissions and agents, which shall include, but not be limited to, fire protection, flood protection, police protection, street maintenance and improvement, street lighting, providing a public park, and other valuable City services.
(c) "User of municipal services" shall mean any person, as defined in this section, who uses any municipal service, as defined in this section, and who is found or declared to be such a user in section 772.03 of this Article.
(d) "Fee" shall mean the city service fee to be imposed by the provisions of this Article.
(e) "Director" shall mean the Director of the Division of Finance as designated and defined in section 9.4 of the Official Charter of the City of Huntington, as amended.
(f) "Business" shall mean all activities engaged in or caused to be engaged in with the object of gain or economic benefit, either direct or indirect.
(g) "City" shall mean the City of Huntington.
(h) "Employer" shall mean one who employs the services others; one for whom employees work and who pays their wages or salaries.
(i) "Employee" shall mean one who works for an employer; a person working for salary, wages or compensation.
(j) "Transient Employee" shall mean an employee who remains for a short period of time and their principle office is not within the Huntington municipality.

772.03 DECLARATION AS TO CONDUCT EVIDENCING THE USE OF A MUNICIPAL SERVICE.
Council finds that holding employment with an employer with a place of business located within the City of Huntington during a calendar year is legal and valid proof of the use of one or more municipal services sufficient to assess and collect a city service fee from the person engaging in the activity stated. However, a transient employee whose principal office is out of the City of Huntington and either pays an employee user's fee or makes renumeration to another municipality for services based upon employment shall be exempt. For purposes of this Article, "employer" shall include all for-profit and not-for-profit entities and all local, county, state and federal governmental entities.

772.04 IMPOSITION OF CITY SERVICE FEE.
(a) Effective July 1, 2002, and thereafter, there is hereby imposed a city service fee to help defray the cost of providing and maintaining City services within the City. The fee is hereby imposed upon any person who is employed within the City and meets the requirements of a user of municipal services as defined in section 772.02(a) of this Article. Such person or persons shall be required to pay a city service fee of ONE DOLLAR ($1.00) PER CALENDAR WEEK. (Revised to Two Dollars ($2.00) per calendar week)
(b) The Director of the Division of Finance shall place all fees collected under this Article in a separate account and shall not disburse any monies during the first one hundred (180) days of this Article.

772.05 ADMINISTRATIVE REGULATIONS: INVESTIGATIONS AND
POWER TO AUDIT.
(a) Pursuant to West Virginia Code Section 8-13-13, the Director shall have the authority and responsibility to promulgate reasonable regulations for the collection of the fees imposed by this Article. Said regulations shall include, but not be limited to: 1) regulations setting due dates for all fees; 2) regulations setting forth guidelines for the orderly collection of the fees; 3) regulations requiring employers employing persons within the City of Huntington to collect and remit said fees and supply to the Director any and all information which may include the following: the number of total employees; the number of transient employees; the number of full-time/part-time employees; hire dates and termination dates for new employees or those who have left employment; names, social security numbers and addresses; 4) regulations requiring employers to collect from their employees and to remit to the Division of Finance the fee imposed herein. Such rules, regulations and procedures shall be reduced to writing and shall take effect upon being filed in the Office of the City Clerk; 5) the Director of Finance may, upon his discretion, allow employees to submit information on an annual basis, however, payment of fees shall be made monthly; and 6) the method of reporting can be done by any means found to be acceptable by the Director of Finance.
(b) For the purpose of ascertaining the correctness of any information submitted to the Director as required by subsection (1) of this section, and for the further purpose of conducting hearings as provided for in section 772.11 of this Article, the Director, or his designee, shall have the power to examine or cause to be examined, any books, papers, records, memoranda, documents and any other payroll data and information, and may take testimony and require material proof with power to administer oaths to any person or persons from whom testimony may be taken. The Mayor or Mayor's designee shall further have the power to issue subpoenas and subpoenas duces tecum in the name of the City of Huntington to compel the attendance of witnesses and the production of books, papers, records, memoranda, documents and testimony at the time and place specified. Every such subpoena and subpoena duces tecum shall be served at least five (5) days before the return date thereof by either personal service made by any credible person over eighteen (18) years of age, or by registered or certified mail, return receipt requested. A return receipt shall be required to prove service by registered or certified mail. The Mayor or Mayor's designee shall have plenary power and authority to further enforce the provisions of this Article by instituting the appropriate civil action in any court of competent jurisdiction pursuant to West Virginia Code Section 8-13-15.

772.06 DELINOUENT ACCOUNTS.
Each installment of the city service fee shall be due within thirty (30) days from the last day of the reporting period. Fees not received within thirty (30) days of said due date shall be considered delinquent. There shall be added to each delinquent account a penalty of five percent (5%) of the balance thereof on the thirty-first day after the bill has been sent. Thereafter, a penalty of two percent (2%) shall be added to the total outstanding balance at the end of each quarter.

772.07 ENFORCEMENT.
The Director of Finance is charged with enforcement of this Article and may institute appropriate legal proceedings in the corporate name of the City and against any employer who fails to collect or remit the fee imposed herein pursuant to West Virginia Code Section 8-13-15.

772.08 APPEAL BOARD.
There is hereby established a City Service Fee Appeal Board consisting of five (5) members to include the Director of Administration and Finance, who shall serve ex officio, and four (4) persons employed within the City, two (2) of whom shall be chosen by the Council, and two (2) of whom shall be chosen by the Mayor, and all of whom shall serve a two (2) year term to commence on July 1 and end on June 30 of the second year following their appointments, Provided, That the initial appointees shall serve a term to commence on July 1,2002, the effective date of this Article, and to end on June 30, 2003. Any member appointed to fill a vacancy shall serve for the remainder of the unexpired term. The Board shall have the power to correct the amount of fees charged whenever there has been an error of fact in the calculation or billing based upon evidence presented at a protest hearing as provided in this Article. The decision of the Board shall be by a majority vote of all its members. The Board may, as to questions of law arising in the course of a hearing, request a written opinion from the City Attorney.

772.09 PROTEST AND APPEAL.
Any user who feels aggrieved by any charge to his city service fee account may protest the same by filing written notice of such protest with the Director setting forth his objections thereto and remitting the payment of the assessed amount. The Director shall review such user's account, render a decision on the protest and forthwith notify the user of such decision in writing within fifteen (15) days of the filing of the protest. If the user is still aggrieved, he may, within fifteen (15) days of the date of the Director's decision, petition the City Service Fee Appeal Board, which shall set a date and time for hearing on the protest, which hearing shall be held within thirty (30) days from the filing of such appeal. The Appeal Board shall hear evidence relevant to the protest and shall render its decision on the issues raised at such hearing within twenty (20) days after the hearing, giving notice of its decision in writing to the user and to the Director. The user may, within thirty (30) days from the date of the decision of the Appeal board, file a petition, duly verified, with a court of competent jurisdiction, requesting review of the Board's decision. If no such petition is filed within thirty (30) days, the decision of the Appeal Board shall become final and conclusive. Nothing herein shall be construed to prohibit the accrual during the course of the appeal process of any penalty upon the balance of any account ultimately found to be properly charged. A user's appeal shall not be deemed to be upheld if the City or Board fails to meet a deadline contained herein.

772.10 EMPLOYER RESPONSIBILITY.
It shall be the responsibility of all persons or firms employing persons subject to the city service fee pursuant to section 772.04(a) of this Article to make monthly payment and complete reports when required to the Director pursuant to regulations promulgated by the Director and pursuant to the provisions set forth in this Article.

772.11 SEVERABILITY.
If any section, subsection, subdivision, paragraph, provision, sentence, clause or word of this Article is for any reason held invalid or unconstitutional, such holding shall not affect the validity, constitutionality, legality or application of any other portion of this Article.

772.12 CONDITIONAL REPEALER OF CERTAIN PROVISIONS.
In the event of the enactment of a statute by the Legislature of the State of West Virginia enabling municipalities in said State to impose a gross wage tax upon all persons employed in such municipalities, or to impose any other tax of a similar nature; and further, in the event that the City of Huntington shall thereafter impose, by ordinance, such a tax, such ordinance shall also provide for the immediate repealer of this Article, and such repealer shall operate to discontinue the imposition of the city service fee imposed by said Article.

772.13 DEDICATION OF REVENUES.
All revenues generated by the city service fee imposed herein are hereby dedicated to and shall be utilized for police protection and traffic and street maintenance.

772.14 FEE ADDITION TO MUNICIPAL SERVICE FEE IN
ARTICLE 773.
The fee imposed herein shall be in addition to and independent and exclusive of the Municipal Service Fee for fire and flood protection services imposed under Article 773 of these Ordinances.

772.15 EFFECTIVE DATE: PROVISIONAL EXPIRATION.
The provisions of this Article shall become effective on July 1, 2002, (Revised) and shall remain in full force and effect until June 30,2004, (Revised to be in effect until rescinded by further ordinance of Coucil) on which date the provisions of said Article shall cease to be of any further legal force and effect, unless re-enacted by further Ordinance of this Council.