To protest your 'trash tax'

Attorney Scott Ciolek was my guest last night on Eye On Toledo with an update on the trash tax lawsuit. As we've previously learned, the city has continued to maintain that the amount charged for 'garbage and recycling' on your water bill is a 'fee.'

However, when Ciolek sought class-action status for the 'fee,' the city claimed that class-action wasn't applicable because the charge is a 'tax.'

The trial court has ruled that the suit does not qualify for class-action status and Ciolek has appealed that ruling to the Court of Appeals. The trial court will await a ruling on the the appeal of this point before going any further.

In the meantime, and to protect the rights individual property owners regarding the charge, he is suggesting that all who object to the tax include a notice of such objection with their water bill (or sent to the water department if you pay on-line).

If you'd like to record your objection with Ciolek, you can send your contact information and the date of your objection letter to him: trashtax@gmail.com

Here is the recommended language:

Date

Pursuant to the Ohio Revised Sec. 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:

1. The 'refuse fee' essentially functions as a property tax; and
2. 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 Sec. 2723.01-2723.05 for the purpose of recovering this unlawful appropriation in its entirety.

Sincerely,

name
address

If you pay online, you can send your letter to:

Department of Public Utilities
420 Madison Ave. Suite 100
Toledo, OH 43667-0001

or to:

Mayor's Office
City of Toledo
1 Government Center, Suite 2200
Toledo, OH 43604

City ordered to pay attorney fees in convenience store licensing suit

U.S. District Court Judge James Carr has granted a motion for the payment of attorney fees in the lawsuit against the City of Toledo. The amount of the order is $29,999.00

Scott Ciolek is the attorney representing the Midwest Retailers Association who sued the city over the original law. The MWRA was granted a restraining order which prevented the city from implementing the law. Toledo then repealed the law and passed a new one, but has not yet implemented it, pending the outcome of the lawsuit.

The issues in the case are complex, but common sense dictates that this is not a business-friendly action on behalf of the city. Now, it's becoming expensive as well.

Having won the attorney fees for the first portion of the case, is it likely the MWRA will prevail on the amended complaint, especially because the revised law is essentially the same as the repealed one? And, if so, would Toledo and the taxpayers be better off if they didn't fight it?

The amended complaint is in the discovery phase, so stay tuned.

NOTE: I'll add the link for my WSPD Eye On Toledo interview with Scott Ciolek as soon as it's available.

Convenience stores fight licensing law (thank goodness!)

It's official. In a lawsuit filed yesterday in Federal Court, the Midwest Retailers Association, Ltd. is seeking to overturn a convenience store licensing law passed in December by Toledo City Council.

The attorney for the case, Scott Ciolek, has set up a website to track the case events and includes a .pdf of the actual complaint. My on-air discussions of this law are available on the WSPD pod cast page (December 4, 6, 7, and 12). You can also search this blog for 'convenience store licensing fees' for the many posts I made on the issue.

For quick background, our council gets a lot of complaints about illegal activity around convenience stores. Because the laws are not enforced by the police department (due to lack of staff or low priority), the elected officials decided to make the owners of such property responsible for the activity. Of course, the only way to do so would be to create a license for them and then threaten them with revocation of their license if other people do bad things on or near their property. It originally went so far as to require these owners to clean up litter within a one-block radius, even though that specific requirement was not included in the final version.

This is one of the most anti-business pieces of legislation Toledo has considered in ages. While the elected officials said they had several meetings on the issue, the final draft of the law wasn't circulated to store owners and many onerous and costly requirements were never shared with the majority of convenience stores.

As a result of the coverage of this by me and WSPD, there were some changes to the law made at the last minute. But even those were not shared with the public nor the owners prior to the actual vote on the law.

Now that the law is scheduled to take effect next month and store owners are learning all the details, they have joined together to fight it - and, it appears, with a very strong case.

One of the many points of contention, from the web page on the case:

Section 722.11 part 2:

Once a reasonable opportunity to cure the problems has been afforded to the licensee without substantial success, a license should be revoked even though the license holder has taken all reasonable measures to achieve compliance.

“Problems” specifically listed for which the business owner is now held accountable include gambling, prostitution, drug dealing, weapons possession, disorderly conduct, loitering, public nuisance, and obstructing legal process. (721.15)

A business owner doesn’t have the authority to take action to personally stop any of these activities. Unless the city of Toledo intends to force business owners to take up arms and dispense vigilante justice, then the most responsible action business owners could take to curb illegal activities on their property would be to notify the police of the activity. If a business owner has contacted the Toledo P.D. and criminal activity continues on the premises, isn’t that a reflection on the police department? Why are we punishing the business owner because the police are incapable of eliminating crime? Basically, the business owner is being held accountable for the failures of the police department.

Perhaps the section should read:

Once a reasonable opportunity to cure the problems has been afforded to the Toledo Police Department without substantial success, all officers and administrators will be terminated, even though the department has taken all reasonable measures to achieve compliance.

Obviously that would be ridiculous, too, but at least you’d be holding the people who are actually responsible for reducing crime accountable, as opposed to just transferring responsibility to private citizens. If police—who legally carry weapons, arrest and detain citizens, and are authorized to use deadly force,—can’t eliminate crime at these locations, why would anyone think a convenience store owner can do it?

I'll be talking with Scott Ciolek today at 4:30, so tune in as I sub for Brian Wilson and the Afternoon Drive 3-6 p.m. And check back for updates on the case!