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Archive for April, 2009|Monthly archive page

Jefferson County Senators Play Switcheroo with Pending Bills

In Uncategorized on April 30, 2009 at 9:56 pm

In a closed door session this afternoon, Local Legislative Committee #2 substituted Senate Bill 488 for House Bill 811.  Senate Bill 488 was defeated in committee yesterday, April 29.  The full House of Representatives passed House Bill 811.  Senator Coleman, who sponsored Senate Bill 488, serves on Local Legislative Committee #2.  This substituted Bill will now go before the full Senate for a vote.  If it passes, it will go before a conference committee which will be made up of three Jefferson County House delegates and three Jefferson County Senators.  All three of the Senators who will be on the conference committee will be members of Local Legislative Committee #2 – the same Senators who made this substitution.  Senator Coleman is expected to be one of those Senators.                       

While within the procedures of the Alabama Legislature, this substitution of the defeated Senate Bill for the passed House Bill is yet another attempted end run around the Courts and a flagrant attempt to deny the taxpayers of Jefferson County the relief awarded to them by Judge Rains.   This is not the fix Jefferson County needs and the taxpayers of the county will be the ultimate losers of this game.


Jeff Co Occupational Tax – the Taxpayer is Lost in the Shuffle

In Legal News on April 29, 2009 at 2:45 pm

Debate in the Alabama Legislature has returned to the issue that led to the repeal of the original occupational tax – who should pay.  Lost in the debate are the taxpayers who paid the old tax after the repeal.  Judge Rains ordered those taxpayers receive refunds.  The bills going before the local legislation committee – one from the House of Representatives and one from the Senate – try to make the new occupational tax apply back to 1999 and take away the refunds ordered by Judge Rains.  We think this aspect of the pending bills is illegal and if either is passed “as is,” we will challenge it in court.  We know these bills are unfair to the taxpayers.  Whichever bill comes out of this process needs to protect the taxpayers who have been taken advantage of under the old illegal tax.

The taxpayers of Jefferson County need to let the members of Local Legislation Committee Number 2 know that they need these refunds.  Either the legislators are for tax refunds and will apply the bill going forward only, or they are against tax refunds and will attempt to pass legislation that tries to apply the new tax back to 1999.  The members of Local Legislation Committee Number 2 are Senators Smitherman, French, Beason, Bishop, Coleman, Erwin and Waggoner.  Contact information from the Alabama Senate Bios for each of these Senators is provided below.  Please let them know how important these refunds are to the taxpayers of Jefferson County.

LOCAL LEGISLATION NO. 2 

Rodger Smitherman – Chairperson – (334) 242-7870; (205) 322-3768; (205) 322-0012; rodger.smitherman@alsenate.gov

Steve French – Vice Chairperson – (334) 242-7851; (205) 871-3881; (205) 414-7544; steve.french@alsenate.gov

Scott Beason – (334) 242-7794

Charles Bishop – (334) 242-7894; (205) 221-4950

Linda Coleman – (334) 242-7864; (205) 798-1045; (205) 254-2079; lindacoleman60@bellsouth.net

Henry “Hank” Erwin – (334) 242-7873; (205) 620-0116; (205) 621-6681; senatorerwin@aol.com

J. T. “Jabo” Waggoner – (334) 242-7892; (205) 822-7443; (205) 978-7405; jabo.waggoner@alsenate.gov


An Open Letter to People Working in Jefferson County

In Legal News on April 21, 2009 at 1:59 pm

As class counsel for the people who paid the old Jefferson County occupational tax, it is our obligation to keep you advised of developments affecting this case.  There has been significant news coverage of Judge Rains’ Order, holding that the repeal of the Jefferson County occupational tax in 1999 was valid and that the tax has been collected illegally since.  Judge Rains has stayed enforcing his order to allow the Alabama Legislature the opportunity to create a solution for the County to move forward.  There are competing bills pending in both the Alabama House of Representatives and Senate to address the occupational tax.  The Jefferson County Commission has raised the specter of irreparable financial harm and various political pundits and editorial writers have had their say – now it is your turn.  As tax payers, your voices should be heard by the Jefferson County legislative delegation regarding these pending bills.

House Bill 811 re-enacts the occupational tax on a going-forward basis with a 10% decrease in the tax rate.  The bill removes all exclusions for people who did not pay the old occupational tax, and earmarks money for the Birmingham-Jefferson Civic Center Authority, the Birmingham Jefferson County Transit Authority, the Cultural Alliance of Birmingham, the Alabama Sports Festival, and UAB.   All remaining collections would go into the Jefferson County general fund.  However, the Birmingham News reported last week that Representative John Rogers, the primary sponsor of this Bill, stated that he will remove the earmarks in order to pass this legislation.  This Bill does not try to undo the Order entered by Judge Rains and retroactively find that the old occupational tax was valid after the repeal.  We believe that the taxpayers will be entitled to the refunds ordered by Judge Rains under this Bill.

Senate Bill 488, sponsored primarily by Senator Linda Coleman, seeks to retroactively apply the old occupational tax as if Judge Rains’ Order had never been entered.  This bill leaves in place the exceptions for certain categories of professionals who do not pay the occupational tax.  Those exceptions include the lawyers writing this letter.  This Bill also would allow the Jefferson County Commission to collect the occupational tax at “the rate of license or privilege tax levied by the largest municipality of the county on the same or similar type of business activity.” (Section 6 of Senate Bill 488)  Currently, the City of Birmingham, the largest municipality in Jefferson County, collects an occupational tax at the rate of 1.0%.  Thus, under this Bill, the Jefferson County Commission could collect the new tax at double the old tax rate.  Also, under this Bill, the taxpayers of Jefferson County would not receive the refunds ordered by Judge Rains.

The levy and collection of a new occupational tax is an important matter that concerns all people working in Jefferson County. In our estimation, attempting to retroactively validate the collection of the old tax by the Jefferson County Commission violates the Alabama Constitution, unfairly attempts to deny the taxpayers their refunds, and will prolong litigation over the occupational tax.  House Bill 811 does not have this problem.  Amending Senate Bill 488 to remove the retroactive application will cure this problem and create a legally sound Bill. We have listed below the contact information for each member of the Jefferson County legislative delegation.  Please contact your representatives and let your voice be heard on this very important matter.

 

Sincerely yours,


Samuel M. Hill, Esq.                                     

James H. McFerrin, Esq.

Class Counsel for the Plaintiffs in the matter of Jessica Edwards, et al., v. Jefferson County, et al.

Circuit Court for Jefferson County, Alabama – Civil Action Number 2007-900873

 

Jefferson County State Senate Delegation:

Scott Beason – (334) 242-7794

Charles Bishop – (334) 242-7894

Linda Coleman – (334) 242-7864

Henry “Hank” Erwin – (334) 242-7873

Steve French – (334) 242-7851

Edward B. “E.B.” McClain – (334) 242-7867

Rodger Smitherman – (334) 242-7870

J. T. “Jabo” Waggoner – (334) 242-7892

 

Jefferson County State House of Representatives Delegation:

Greg Canfield – (334) 242-7763

Merika Coleman – (334) 242-7755

Paul DeMarco – (334) 242-7740

Owen Drake – (334) 242-7727

Mary Sue McClurkin – (334) 242-7682

Priscilla Dunn – (334) 242-7702

Earl Hilliard, Jr. – (334) 242-7684

Mary Moore – (334) 242-7608

Pat Moore – (334) 242-7775

Demetrius Newton – (334) 242-7663

Arthur Payne – (334) 242-7753

Oliver Robinson – (334) 242-7769

John W. Rogers, Jr. – (334) 242-7761

Roderick Scott – (334) 242-7752

Elwyn Thomas – (334) 242-7762

Patricia Todd – (334) 242-7718

Benjamin “Allen” Treadway – (334) 242-7685

Jack Williams – (334) 242-7600


Jefferson County Occupational Tax Update

In Legal News on April 16, 2009 at 2:20 pm

On April 15, 2009, the Jefferson County delegation to the Alabama House of Representatives held a public hearing on House Bill 811. The delegation heard from Jefferson County employees, commissioners, and lawyers Sam Hill and Jim McFerrin, the attorneys representing the class of tax payers who successfully challenged the prior occupational tax.

The result of the hearing was an amended bill that passed out of the House committee to re-enact the occupational tax at a lower tax rate, but expanding the base of tax payers to include those professionals who have previously been carved out of the occupational tax. The bill, as amended, also cures the constitutional problems of the original HB811 by not attempting to retroactively validate the prior tax. If passed by the Senate, this bill would become effective upon Governor Riley’s signature and, in our view, the tax payers of Jefferson County would be entitled to refunds for the period of time between Judge Rains January 12, 2009, Order and the effective date of the new Act.

This Bill is a tax cut for the majority of workers in Jefferson County. The prior occupational tax was collected at the rate of 0.50%. The new tax rate would be 0.45%. However, more classes of workers would pay the tax – which leads to a net income increase for the County. The amended Bill earmarks money for the Birmingham -Jefferson Civic Center Authority, the Birmingham Jefferson County Transit Authority, the Cultural Alliance of Birmingham, the Alabama Sports Festival, and UAB. All told, the amended HB811 earmarks $20,250,000.00 of tax revenues to these entities. All remaining collections would go into the Jefferson County general fund.

This Bill will now go before the Alabama Senate. We will update this blog with any information that becomes available as the Bill works its way through the legislature. Though not perfect, HB811 as amended appears to provide the best alternative so far offered by the Alabama Legislature to fix the Jefferson County occupational tax.


Consumer News April 13, 2009

In Legal News on April 13, 2009 at 8:14 pm

Wal-Mart Shoe Recall

The CPSC has reported recalls of two types of shoes sold exclusively at Wal-Mart.  The first are Buster Brown & Co., CARS fleece clogs for children.  These shoes have decorative wheels on them than can detach easily, causing a choking hazard.  They were sold in infant sizes 4 to 6 and toddler sizes 7 to 11.  Wal-Mart will give a full refund for returned shoes.

 The second Wal-Mart shoe recall involves women’s George brand sling-back, pointed toe shoes, in grey, black or purple, sizes 5 ½ to 11.  These shoes were manufactured by Joyfair Footwear.  The heel of these shoes detaches easily, causing a fall hazard to women wearing them.  The shoes should be returned for a full refund.

 

For additional information, please visit the CPSC website at www.cpsc.gov.

 

Victoria’s Secret Bra Litigation

 On April 8, 2009, the AP reported that litigation over injuries allegedly related to Victoria’s Secret bras is heating up.  The claims involve burn, rash and scarring injuries caused by the possible release of formaldehyde resins in the bras.  Cases are currently pending in Federal courts in four states, and a motion to consolidate the cases into a Multi-District Litigation proceeding has been filed.  Limited Brands, Inc., the parent company of Victoria’s Secret, has defended the safety of its products.  

If you, a family member or friend have been injured by a defective product, please visit our About Us page and contact HILL | TURNER LLC with any questions you may have about protecting your rights as a consumer.

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Recent Recalls

In Legal News on April 7, 2009 at 6:29 pm

From the U.S. Consumer Product Safety Commission, the following products have recently been recalled:

Atico coffeemakers sold exclusively at Walgreens due to fire hazard. The coffeemakers in question are the Signature Gourmet 12-cup Programmable Coffeemaker (model XQ-673BT or CM4193D) and Kitchen Gourmet 10-cup Coffeemaker (model XQ-673K). The manufacturer has received reports of the coffeemakers igniting.

Stanley Stud Sensors 200 and Stanley FatMax Stud Sensors 400 have been recalled due to a shock hazard caused by the sensor failing to calibrate properly and not detecting AC electrical wires behind the wall. They are manufactured by Solarwide Industrial Ltd. Model numbers are 77-720 and 77-730.

Best Buy has announced two recalls. The first is of Insignia 26 inch flat panel LCD televisions with the model number IS-LCDTV26. The power supply can fail, causing fire and burn hazards. These TVs were sold at Best Buy, in stores and on-line, from August 2005 through June 2006. The second is for Rocketfish Model RF-INV80 Universal AC/DC/USB portable power sources. While charging the battery, the power source can ignite. These were sold in stores and on-line from July 2008 through February 2009.

Healthtex Zoo Pacifiers have been recalled for failing to meet federal safety standards. The nipple can separate from the body of the pacifier, causing a choking hazard.

Simplicity Travel Tender Play Yards have been recalled due to unexpected rail collapsing problems. This can cause entrapment hazards for young children. The recalled models were portable play yards with a bassinet, changing table and mobile features, and bear the “Simplicity” logo. These were sold at Burlington Coat Factory, Babiesrus.com, Target.com and Khols.com.

For more information about these and other recent recalls, please see www.cpsc.gov. If you or someone you know has been injured by a defective product and are seeking more information, please go to our “about us” page and contact HILL | TURNER LLC.

The Alabama Legislature’s Flawed Attempts at Fixing Jefferson County Occupational Tax

In Legal News on April 2, 2009 at 3:07 pm

 

Since January 12, 2009, when the Judge David Rains held that the repeal Jefferson County occupational tax was valid and the taxpayers of Jefferson County were owed a refund, the Jefferson County legislative delegation has attempted to craft statutory fixes for the tax.  Each bill has been constitutionally and procedurally flawed.  Beyond those flaws – each bill tries to take away the refunds granted to the taxpayers of Jefferson County.  And – as if to add insult to injury – two of the bills attempt to increase the occupational tax.  Although they do not come right out and say it – from all appearances the Jefferson County legislative delegation is trying to fix the sewer debt problems by increasing the occupational taxes paid by workers in Jefferson County. 

While a legislative solution is clearly needed, any bill that gets passed granting the Jefferson County Commission the authority to levy an occupational tax needs to be one that is not only fair to the tax payers of Jefferson County, but also constitutionally and procedurally sound. 

Here is a summary of the three bills currently pending before the Alabama Legislature regarding the ability of the Jefferson County Commission to levy an occupational tax:

Senate Bill 488 was introduced by Senators Coleman, Waggoner, Smitherman and French.   This bill attempts to “repeal the repeal” of the occupational tax, which effectively takes away the relief awarded to the taxpayers of Jefferson County by the Court.  It attempts to allow the Jefferson County Commission to proceed as if that lawsuit never existed.  Additionally, this bill allows the tax to be levied at the same rate as the occupational tax collected by the city of Birmingham, which is one percent.  The tax that Judge Rains correctly held was repealed was levied at the rate of one-half of one percent.  Effectively, this bill would give the Jefferson County Commission the authority to raise the occupational tax by one-half of one percent – doubling the tax they have been illegally collecting since April of 2000.

Senate Bill 542 was introduced by Senators Waggoner and French.  This bill also attempts to “repeal the repeal” of the Jefferson County occupational tax.  Under this plan, the occupational tax that the Jefferson County Commission has been collecting since April of 2000, with all of its exceptions and carve-outs, would be affirmed and there would be no relief for the taxpayers who won the lawsuit which found the repeal to be valid.  The tax rate of one-half of one percent would continue to be collected by the Jefferson County Commission as if the lawsuit won by the taxpayers never happened.

House Bill 811 was offered by Representatives Rogers, Robinson, Dunn, Moore and Scott.  This bill takes elements of both Senate Bills, and combines them into a bill attempting to “repeal the repeal,” effectively taking away the refunds awarded the taxpayers of Jefferson County, while allowing the Jefferson County Commission to increase the rate at which the occupational tax is levied.  This bill also earmarks funds to be paid from the increased tax to the BJCC and the Transit Authority.

Each of these bills suffers from major constitutional flaws.  First, under Article IV, Section 70 of the Alabama Constitution, “All bills for raising revenue shall originate in the house of representatives.”  Any bill relating to raising revenues that is introduced through the senate violates this provision of the Alabama Constitution.  As each of the Senate Bills was introduced through the wrong chamber of the Alabama Legislature, neither can stand constitutionally.    

Further, Article IV, Section 95 of the Alabama Constitution provides, “[T]he legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state.  After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.”  The taxpayers of Jefferson County won the lawsuit and were awarded refunds.  The repeal of the occupational tax is valid.  The legislature cannot now “repeal the repeal” and make valid the Jefferson County Commission’s right to levy the old occupational tax.  That right was barred by statute and that statute was upheld by Judge Rains.  Further, the legislature cannot take away the lawsuit from the taxpayers of Jefferson County.  These bills provide nothing more than an attempted end-around by the Jefferson County legislative delegation past the Courts of this State.  Each of these bills violates this constitutional provision. 

Particularly disturbing is the Alabama Legislature’s attempt to not only take away the refunds awarded to the taxpayers, but through Senate Bill 488 and House Bill 811 actually increasing the occupational taxes the Jefferson County Commission can levy.  Under the current economic situation facing the taxpayers of Jefferson County, to potentially double the existing invalid occupational tax is obscene.  

If the Alabama Legislature wants to create a fix for the Jefferson County occupational tax, then a new tax bill – one that is fair to the taxpayers working in Jefferson County – should be offered in the house of representatives.  While the Jefferson County legislative delegation may have acted imprudently in repealing the original occupational tax in 1999, their actions were legal and valid.  The Alabama Legislature must recognize the validity of the repeal and any authority given to the Jefferson County Commission to levy an occupational tax must be under a new, fair and legally valid bill. 

There is no question that Jefferson County is in a treacherous financial position.  Whether or not a new occupational tax is a solution to the problems created by out-of-control spending and lack of fiscal responsibility is yet to be seen.  However, should the Alabama Legislature choose to put the ability to levy a new occupational tax in the hands of the Jefferson County Commission, then such authority should be given careful consideration so that any new tax that is levied is fair and legally sound.  As taxpayers and voters in Jefferson County, we should accept nothing less.

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