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“Available for Use” and “Actual Use” the Same According to Kentucky Circuit Court Judge

By Erica Horn and Maddie Schueler

Last summer, Campbell County in Northern Kentucky joined the ranks of other Kentucky counties seeking to fund 911 services by non-traditional means. Historically, 911 services in Campbell County have been funded by a $3.00 per month subscriber charge imposed upon landline telephones. Like other counties, Campbell County has experienced a decrease in funding due to the replacement of landlines with wireless telephones and other new technology. The Campbell County Fiscal Court concluded the $3.00 subscriber charge is no longer sufficient to provide reliable emergency communication services.

As a result, on August 7, 2013, the Campbell County Fiscal Court adopted Ordinance O­04-13, which replaces the subscriber charge with an annual fee of $45.00 imposed upon each occupied individual residential and commercial unit located on real property in Campbell County. The ordinance has sparked considerable criticism, and on September 12, 2013, a civil action was commenced in Campbell Circuit Court challenging the legality of the ordinance. See Greater Cincinnati/Northern Kentucky Apartment Ass’n, Inc. et al. v. Campbell County Fiscal Court, et al., Campbell Cir. Ct. Case No. 13-CI-00956. The lawsuit was filed by the Greater Cincinnati/Northern Kentucky Apartment Association, in conjunction with multiple owners of individual commercial and residential units located in Campbell County.

The lawsuit sought to have the ordinance declared void ab initio because it levies an unauthorized and unconstitutional fee or tax. The plaintiffs asserted there are four legally prescribed methods by which a political subdivision in Kentucky, such as Campbell County, may collect funds from its residents: (1) special assessments; (2) regulatory fees and taxes; (3) user fees; and (4) revenue-raising fees and taxes, and the imposition of a flat fee (of $45.00 on owners of real property), does not satisfy the criteria of any of the four methods. The lawsuit sought to have the 911 fee declared unconstitutional and to enjoin Campbell County from collecting the fee.

The County defended the lawsuit by arguing the 911 service charge is a valid user fee. The County argued all real property owners are “users” of 911 service because the service is available to everyone in the county and confers a benefit upon society at large. The plaintiffs countered that a valid user fee must be based upon actual use of the service, and owners of real property may never dial 911 and thus may never use the service for which they pay a fee.

The Court adopted the County’s broad definition of “use” and found the plaintiffs are “users” of 911 service because the service is available to them should they need it. See Greater Cincinnati/Northern Kentucky Apartment Ass’n, Inc. et al. v. Campbell County Fiscal Court, et al., Campbell Cir. Ct. Case No. 13-CI-00956 (Order, June 6, 2014). The Court declined to define “use” as “actual use”, finding real property owners are “users” of 911 service even if they never dial 911. The Court concluded that, although a user fee can be based upon actual use, a valid user fee also may be based upon the availability of a service, or a conferred benefit. The plaintiffs have thirty days to appeal the Circuit Court’s ruling.

The author’s law firm represents the plaintiffs in this litigation.