Kelleys Island Caddy Shack, Inc. v. Zaino, 2001-1102.

• Decision Date: 02 October 2002
• Docket Number: No. 2001-1102.,2001-1102.
• Citation: 96 Ohio St.3d 375,2002 Ohio 4930,775 N.E.2d 489
• Parties: SHACK, INC., Appellant, v. ZAINO, Tax Commr., Appellee.
• Court: Ohio Supreme Court

775 N.E.2d 489

96 Ohio St.3d 375

2002 Ohio 4930

SHACK, INC., Appellant, v. ZAINO, Tax Commr., Appellee.

No. 2001-1102.

Supreme Court of Ohio.

Submitted June 5, 2002.

Decided October 2, 2002.

Michael J. Yemc, Jr. and John L. Alden, Columbus, for appellant.

Betty D. Montgomery, Attorney General, and James C. Sauer, Assistant Attorney General, for appellee.

COOK, J.

{¶ 1} In Am.Sub.H.B. No. 327, 145 Ohio Laws, Part III, 5409, 5410-5411, the General Assembly enacted R.C. 5739.101, which permits a municipal corporation or township to declare itself to be a "resort area" if it meets certain statutory criteria. As a resort area, the legislative authority of the municipal corporation or township may levy an excise tax on vendors for the privilege of making sales in, or transporting persons or property to or from, the municipality or township. R.C. 5739.101(B). Finding that it met the statutory criteria, the village of Kelleys Island declared itself to be a resort area and levied the resort-area tax.

{¶ 2} Appellant, Kelleys Island Caddy Shack, Inc. ("Caddy Shack"), a vendor in the village of Kelleys Island, paid the resort-area tax and filed a refund request with the Tax Commissioner under R.C. 5739.104, contending that R.C. 5739.101 violated the Uniformity Clause of Section 26, Article II of the Ohio Constitution. The Tax Commissioner denied the request for refund, and Caddy Shack appealed to the BTA. Because the Board of Tax Appeals ("BTA") does not have jurisdiction to declare statutes unconstitutional, it affirmed the Tax Commissioner. See Cleveland Gear Co. v. Limbach (1988), 35 Ohio St.3d 229, 231, 520 N.E.2d 188.

{¶ 3} The matter is now before the court upon an appeal as of right.

{¶ 4} For the reasons that follow we find that R.C. 5739.101 does not violate Section 26, Article II of the Ohio Constitution.

{¶ 5} R.C. 5739.101(A) sets forth the following three criteria that must be met for a municipal corporation or township to declare itself a resort area:

{¶ 6} "(1) According to statistics published by the federal government based on data compiled during the most recent decennial census of the United States, at least sixty-two per cent of total housing units in the municipal corporation or township are classified as `for seasonal, recreational, or occasional use';

{¶ 7} "(2) Entertainment and recreational facilities are provided within the municipal corporation or township that are primarily intended to provide seasonal leisure time activities for persons other than permanent residents of the municipal corporation or township;

{¶ 8} "(3) The municipal corporation or township experiences seasonal peaks of employment and demand for government services as a direct result of the seasonal population increase."

{¶ 9} According to Caddy Shack, based on the 1990 Census of Population and Housing issued by the United States Department of Commerce, a total of three municipalities and townships in Ohio meet the 62 percent seasonal-housing requirement set forth in R.C. 5739.101(A)(1): the village of Kelleys Island (Erie County) and the village and the township of Put-in-Bay (Ottawa County).

{¶ 10} Caddy Shack contends that R.C. 5739.101 violates the Uniformity Clause of the Ohio Constitution, which requires that "[a]ll laws, of a general nature, shall have a uniform operation throughout the State * * *." When we consider the constitutionality of this or other legislation passed by the General Assembly, we presume it to be constitutional and will not declare it to be unconstitutional unless it "appear[s] beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.

{¶ 11} In order to determine the constitutionality of legislation under Section 26, Article II of the Ohio Constitution, we must answer two questions: "(1) whether the statute is a law of a general or special nature, and (2) whether the statute operates uniformly throughout the state." Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 541, 706 N.E.2d 323.

{¶ 12} The subject matter of R.C. 5739.101 is an excise tax. "Historically, tax statutes have been viewed by this court to be of a general nature." State ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 138, 568 N.E.2d 1206; see, also, State ex rel. Wilson v. Lewis (1906), 74 Ohio St. 403, 78 N.E. 523 ("That taxation as the subject of legislation is of a general nature is established by a uniform course of decisions"). Thus, in accordance with well-established precedent, we consider R.C. 5739.101 to be of a general nature.

{¶ 13} We next determine whether the resort-area tax legislation operates uniformly throughout the state. We have described the uniformity required by Section 26, Article II as follows:

{¶ 14} "This section of the constitution requires that laws of a general nature shall have not only an operation, but a uniform operation throughout the state. * * * [T]hat is, [a] law must operate uniformly on the named subject-matter in every part of the state, and when it does that it complies with this section of the constitution." State v. Nelson (1894), 52 Ohio St. 88, 98, 39 N.E. 22.

{¶ 15} Uniformity does not require that the statute actually have current application in every county. "If a law is sufficiently general in its terms to comprehend all localities, persons, and things, it is not defeated and rendered void because there are certain localities in the state where conditions are such that there is no person or thing to which the law can be applied." State ex rel. Stanton v. Powell (1924), 109 Ohio St. 383, 386-387, 142 N.E. 401. As we explained in State ex rel. Wirsch v. Spellmire (1902), 67 Ohio St. 77, 86, 65 N.E. 619, "`[u]niform operation throughout the state' means universal operation as to territory; it takes in the whole state. And, as to persons and things, it means universal operation as to all persons and things in the same condition or category. When a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state."

{¶ 16} In State ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 568 N.E.2d 1206, the statute in question applied a special property-tax distribution formula to power plants with an initial equipment cost exceeding $1 billion. At the time, there was only one power plant in the state with equipment costing more than $1 billion. Nevertheless, we stated that "a statute is deemed to be uniform despite applying to only one case so long as its terms are uniform and it may apply to cases similarly situated in the future." Id. at 138, 568 N.E.2d 1206.

{¶ 17} Here, although there are only three areas in the state that currently qualify for resort-area status under R.C. 5739.101(A)(1), there are no limitations or restrictions to prevent other municipal corporations or townships from qualifying in the future. The terms of R.C....