Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance
| Decision Date | 20 October 1998 |
| Citation | 720 So.2d 1186 |
| Parties | 98 0601 La |
| Court | Louisiana Supreme Court |
Avis M. Russell, Errol B. Conley, Deborah L. Wilson, Andrew P. Schmutz, New Orleans, for Applicant.
Justin A. Zitler, Mitchell J. Landrieu, New Orleans, for Respondent.
[98 0601 La. 1] KNOLL, Justice. *
This case is before us on a direct appeal from a judgment of the district court declaring unconstitutional a series of ordinances by the City of New Orleans that exempted and imposed amusement taxes on certain events and admissions pursuant to enabling legislation in La.R.S. 4:41 et seq. See LA.CONST. art. V, § 5(D). Although the City Council subsequently amended the ordinances at issue after this appeal was filed to delete the alleged offending exemptions, we conclude that the recent amendments did not render this appeal moot. However, we are unable to reach the constitutional issues raised because we find the lower court prematurely determined the constitutionality of the ordinances without first determining if the City had the authority under its Home Rule Charter to enact the challenged ordinances and failed to find whether the plaintiffs had a right of action in enforcing the rights asserted. Accordingly, we remand this matter to the district court for further proceedings.
This appeal arises out of a claim by three French Quarter establishments, Cat's Meow, Lucky Pierres, and Wild Bar/River Rats, and a nominal plaintiff, Douglass Castro ("plaintiffs"), seeking a [98 0601 La. 2] declaratory judgment that the City of New Orleans' ("City") amusement tax 1 was unconstitutional because it was inconsistent with the state enabling legislation and because it violated the Equal Protection and Due Process Clauses of the Federal and State Constitutions, and demanding a refund of the amusement taxes paid.
The Louisiana Legislature in 1938 La.Acts 212, § 1 enacted La.R.S. 4:41-46 authorizing any parish or municipality of more than three hundred thousand inhabitants to levy a tax of not more than five percent on various amusements to provide funds for public and quasi-public charitable institutions operated by the parish or municipality. 2 Additionally, Act 212 exempted from the amusement tax several classes of admission, stating:
No tax shall be levied under this chapter with respect to any admission to any church fair, church card or lotto party, church lecture, church picnic, or any religious festival, all of the proceeds of which inure to the benefit of a religious institution. No such tax shall be levied with respect to any admission to any charitable benefit, the proceeds of which inure exclusively to the benefit of charitable institutions; nor with respect to any admission charged the students or members of the faculty of any school or university which charges an admission fee in connection with the activities of the school or university; nor with respect to any admission of ten cents or less charged children under the age of twelve.
Pursuant to these enabling statutes, the City of New Orleans on August 20, 1940, enacted Chapter 6, section 1 et seq. (now codified at Chapter 150, Article IV, sections 150-241 et seq.) of the Code of the City of New Orleans. As originally enacted, the City's ordinances were substantially similar to the State enabling statutes in both the amusements taxed and the amusements exempted. Beginning in 1967 and over the next thirty-one years, however, the City began to enact additional exemptions beyond those listed in La.R.S. 4:43. The subsequently added exemptions to the amusement tax included live entertainment events held in facilities with fixed seating capacity of at least 1,800; aerial gondolas operated under a city franchise; bona fide jazz establishments located within the Vieux Carre or operating as a sightseeing steamer, which is not licensed for gaming activities; purchases at any museum that receives $700,000 or less from admission fees; admission [98 0601 La. 3] to the Audubon Zoo or Aquarium of the Americas; and live music performances. 3 See Chapter 150, Article IV, section 150-243 of the Code of the City of New Orleans.
In 1985, the Louisiana Legislature for the first time in Act 2, §§ 1-2 enumerated additional exemptions to the amusement tax. In La.R.S. 39:467, the legislature exempted from the amusement tax any event held in any domed stadium facility owned and operated by or for the state that has a seating capacity of at least seventy thousand. Additionally, La.R.S. 39:468 exempted any event conducted in any publicly-owned facility owned and operated by or for the state, provided that the local taxing authority first exempted such events from any tax it levied occurring in all publicly-owned facilities within its taxing jurisdiction. 4 Pursuant to these two enabling statutes, the City enacted sections 150-528 through 150-530 of the Code of the City of New Orleans that exempted from amusement taxes admission to publicly-owned facilities that had a seating capacity of least 2,000 and admission to the Louisiana Superdome for events other than trade shows at which the sale of goods is the primary purpose of the event.
Plaintiffs are three French Quarter establishments who are obligated to collect and remit to the City amusement taxes under Chapter 150, Article IV, sections 150-241 et seq., and a nominal plaintiff who paid the 5% amusement tax upon his admission to and upon his being served a refreshment at the Cat's Meow. On November 19, 1996, plaintiffs filed suit in the Civil District Court for the Parish of Orleans, asserting that the City's amusement tax was unconstitutional under the Federal and State Constitutions as enacted and as applied, seeking declaratory relief and seeking a refund of the amusement taxes paid. 5 Initially, plaintiffs asserted that the City's ordinances adding additional exemptions to the amusement tax were ultra vires because they were inconsistent with the exemptions enumerated by La.R.S. 4:43 and 39:467-68 and that the City was without authority from the state enabling statutes to grant additional exemptions. Additionally, plaintiffs alleged that [98 0601 La. 4] the City's additional amusement tax exemptions violated the Due Process Clause and Equal Protection Clause of the Federal and State Constitutions as applied in that the City was arbitrary, capricious, and unreasonable in the manner in which it granted the exemptions. Plaintiffs further alleged that the ordinances violated equal protection because the amusement tax treated persons similarly situated in a dissimilar manner. Finally, plaintiffs asserted that the City's licensing and enforcement ordinances violated due process and equal protection as applied by the City's selective enforcement of their provisions.
The plaintiffs and the City filed cross motions for summary judgment and memoranda in support thereof. The lower court granted the plaintiffs' motion for summary judgment and denied the City's motion for summary judgment. In the Amended Reasons for Judgment, the lower court declared the City's amusement tax unconstitutional in part; however, the court held that the entire ordinance was unconstitutional "because not to do so would destroy the unchallenged remainder."
The lower court reasoned that while La.R.S. 4:43 and 39:467 were the only exemptions enacted by State law, 6 the City had enacted several "amendments which are inconsistent with the State enabling legislation." Additionally, the court found As for the City's ordinances relating to public facilities, the lower court found them inconsistent with State law in that the City's selective exemption scheme was "inconsistent with the all or nothing" State legislation. Based upon these written findings, "as well as those ably argued by the plaintiffs in their memorandum and oral argument," the lower court found that "the City must begin again within the parameters set forth by the legislation enacted by the Louisiana legislature."
Initially, the City argued that the lower court erred in holding the City ordinance unconstitutional and finding that it was prohibited from enacting additional exemptions not enumerated in the State legislation. The City maintained that pursuant to Article VI, Section 4 of the Louisiana Constitution of 1974 and the City's Home Rule Charter, it had the right to levy, impose, and collect any and all kinds and classes of taxes, provided the Louisiana Constitution does [98 0601 La. 5] not prohibit the same. The City further urged that the plaintiffs lacked standing to maintain a cause of action because the amusement tax ordinance provides that the tax "shall not be assumed by the person or entity providing the amusement, [rather] it shall be mandatory on that person or entity to collect such tax from the purchaser for remittance to the Department of Finance." In support of their arguments, the City cites this Court's opinions in City of New Orleans v. Board of Commissioners, 93-0690 (La.7/5/94), 640 So.2d 237 (); Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890 (La.1993) (...
To continue reading
Request your trial
-
Lynch LLC v. Putnam County
... ... the appellees, Putnam County, Tennessee and City of Cookeville, Tennessee ... 2 million in general obligation bonds to finance" the design and infrastructure ... \xC2" ... Indian Rights, Inc. v. Nicely, 182 S.W.3d at 338; 1 Ronald D ... wary of adopting an approach to mootness through voluntary cessation that treats government ... , 848 N.E.2d 668, 673-74 (Ind.2006); Cat's Meow, Inc. v. City of New Orleans ex rel. Dep't of ... ...
-
State v. Rochon
... ... Orleans Public Defenders, Emily Voshell, for Appellee ... See United Airlines, Inc. v. McDonald, 432 U.S. 385, 400, 97 S.Ct. 2464, ... City of Newaygo , reasoning that to hold this case ... In [75 So.3d 886 Sims v. State of Fla., Dept. of Highway Safety and Motor Vehicles , the ... Cat's Meow, Inc. v. City of New Orleans Through Dept. of ... ...
-
Bize v. Larvadain
... ... section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to ... 6/21/02), 820 So.2d 467, 470 ; Cat's Meow, Inc. v. City of New Orleans Through Dept. of ... ...
-
State v. Malone
... ... , and was subsequently tried in Lake Charles City Court on April 4, 2008. Following the trial, the ... with respect to such controversies." Cat's Meow, Inc. v. City of New Orleans, 98-0601, p. 8 ... Malone, faced with a criminal conviction through which he can avoid incarceration by the expedient ... ...
-
Therapeutic Jurisprudence in the Appellate Arena-a Louisiana Jurist's Response
...2d 908 (La. 1971). 24. Couvillion v. James Pest Control, Inc., 729 So. 2d 172 (La. 1999). 25. Cat's Meow, Inc. v. City of New Orleans, 720 So. 2d 1186, 1195 n.lS (La. 26. Dennis P. Stolle et al., Integrating Preventative Law and Therapeutic Jurisprudence, 34 CAL. W. L. REV. 15(1991). ...