Sims Denies B&O Restraining Order

WHEELING – A ruling this morning by Ohio County Circuit Judge David Sims clears the way for Weirton City Council to proceed with a vote tonight on the proposed business and occupation tax.

In a one-page ruling, Sims said he does not have the authority to stop council’s action because no ordinance has been enacted into law.

“Therefore, the matter is not ripe for consideration,” the ruling stated. “The court further finds that it is without proper statutory or constitutional authority to lawfully intervene in the ongoing legislative process of the defendant.”

Sims’ order is in response to a motion filed last week by Weirton Attorney Kevin Pearl on behalf of Tri-State Medical LLC, Ocean-Air International Inc. and Startrans International Inc. The motion asked for a restraining order to prevent City Council from meeting in a second special session at 6:30 p.m. today to consider the second and final reading of an ordinance to enact the tax.

The B&O tax, when coupled with a proposed 20-percent reduction in the city’s police and fire service fee, would bring in an additional $1.7 million in revenue, city officials have said – more than enough to fill the anticipated budget shortfall for the 2015-16 fiscal year.

The proposed tax would be 0.375 percent for retail on gross receipts above $500,000 annually; 0.65 percent for services on receipts above $100,000 annually; and 2 percent on contractors, with a $100,000 per-project exemption.

The ordinance passed the first reading on June 13 by a vote of 3-2 with Councilman George Gaughenbaugh abstaining. George Ash, David Dalrymple and Chuck Wright voted in favor of the tax. Fred Marsh and Terry Weigel opposed.

The resignation of Councilman Ronnie Jones, who is moving out of his ward, appears to have paved the way for passage of the tax. A similar proposal was voted down in May, with Jones joining Marsh and Weigel in voting no. With Gaughenbaugh abstaining from that vote, too, Mayor George Kondik voted no to break a 3-3 tie.

At last week’s hearing before Sims, Pearl argued passage of the ordinance without a First Ward councilman amounts to taxation without representation since the ward is home to several affected businesses.

He also suggested assessment of the tax would be politically motivated with different pay structures being issued to different business.

Pearl contended three members of council violated West Virginia’s Sunshine Laws by meeting in private to discuss the tax. He said with seven council seats, a gathering of four or more council members is considered a quorum, which must be open to the public to avoid violation of Sunshine Laws. Weirton Council has six of its seven council seats filled following Jones’ resignation. With Gaughenbaugh abstaining from the vote, Pearl said meetings held with three council members are prohibited by state Sunshine Laws.

He also also claimed council violated Robert’s Rules of Order when it scheduled two special council meetings in a row. Pearl asked Sims to restrain council from meeting to allow more time for litigation.

“What we want is to explore the issue so we do not have to go back and try to fix it after it is passed,” Pearl said.

Neither Pearl nor Weirton City Attorney Vince Gurrera were available for comment at press time,