The Honorable Eugene M. Simmons
AGO 100617
No. 100617
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
October 6, 2017
The
Honorable Eugene M. Simmons
Prosecuting
Attorney
Office
of the Prosecuting Attorney of Pocahontas County
900
Tenth Avenue
Marlinton,
WV 24954
Dear
Prosecutor Simmons:
You
have asked for an Opinion of the Attorney General regarding
whether Pocahontas County may use its hotel occupancy tax to
pay expenses relating to free public libraries. This Opinion
is being issued pursuant to West Virginia Code § 5-3-2,
which provides that the Attorney General "may consult
with and advise the several prosecuting attorneys in matters
relating to the official duties of their office." To the
extent this Opinion relies on facts, it is based solely upon
the factual assertions set forth in your correspondence with
the Attorney General's Office.
In your
letter, you explain that Pocahontas County imposes and
collects a hotel occupancy tax from visitors of the Snowshoe
resort. You further explain that the County distributes funds
collected from the hotel tax for certain permissible
expenditures defined by statute. In particular, the
Pocahontas County Commission has been transferring part of
its revenue derived from the hotel occupancy tax to the to
the County's free libraries since 2007. You indicate that
the principal basis on which the libraries claim that they
are entitled to these funds is that they operate as
"tourist information centers," which are
permissible recipients of the hotel occupancy tax. You
further explain that the libraries "serve as the
principal resource in meeting the informational needs of all
citizens of Pocahontas County and its visitors." You
also state that the five libraries in the County "serve
as secondary, well-marked tourism offices providing
information to visitors." Specifically, you indicate
that the libraries provide free computer service, free Wi-Fi,
free maps and flyers, and staff members who provide
information to visitors. According to your letter, visitors
also participate in yoga classes, story time, author
readings, and the local farmer's market.
Your
letter raises the following specific legal question:
Does
a county commission have authority to distribute hotel
occupancy tax funds to free libraries?
We
conclude that, under the facts you have provided, the
Pocahontas County Commission may provide permissible amounts
of the hotel occupancy tax to the Pocahontas County free
libraries, as long as the funds are allocated and used for a
permissible statutory purpose. Specifically, the libraries
may permissibly spend the appropriated money for the
"construction, operation or maintenance" of
"recreation facilities" and "tourist
information centers," as well as for the "promotion
of the arts." W.Va. Code §§ 7-18-14(c)(4),
(5).
In
general, the West Virginia Code authorizes any county or
municipality to "impose and collect a privilege tax upon
the occupancy of hotel rooms located within its taxing
jurisdiction." W.Va. Code § 7-18-1 (a). The Code
provides that the proceeds of the tax "shall be
deposited into the General Revenue Fund of such municipality
or county commission" and expended only as provided by
statute. Id. § 7-18-14.
The
statute provides for both mandatory and permissible
expenditures for the hotel occupancy tax. In the case of a
county, at least fifty percent of the net revenue received
during the fiscal year must be allocated to a convention and
visitor's bureau if one is located in the county or
region. Id. $ 7-18-14(b)(2). If more than one is
located in the county, the county commission may allocate the
funds between them as it determines in its sole discretion.
Id. § 7-18-14(b)(2)(B). If there are no
convention and visitors' bureaus in the county or region,
"any hotel located in [the]...
