Howard Jarvis Association pursuing litigation challenging state fire fee

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While the state suspended the controversial State Fire Prevention Fee, the Howard Jarvis Tax Association is continuing its litigation over the legality of the fee.

In August, when the Legislature approved Gov. Jerry Brown’s package of programs to improve air pollution throughout California, a suspension of collecting the fee until Jan. 1, 2031, was included.

Nevertheless, HJTA recently filed for a summary judgment to declare the fee a tax. If it is a tax, its collection would be prohibited because it was not approved by two-thirds of the Legislature and HJTA wants previous fee payments refunded to those who made them.

More than a year ago, the Sacramento court authorized HJTA to proceed with the litigation as a class action. During the interim, HJTA’a legal team has been reviewing state documents and interviewing state residents within the State Responsibility Areas who are subject to the fee.

Late last month, HJTA filed the papers requesting a summary judgment, along with hundreds of pages of testimony and backup to support its argument that the fire prevention “tax” is masquerading as a fee.

In its Sept. 18, filing, HJTA told the court, “… the State Responsibility Area Fire Prevention Fee passed via [Assembly Bill] 29 in the 2011-12 legislative session … was an illegal tax … did not receive a 2/3 vote of each house [and] … the class are therefore entitled to refunds of the [fee] payments…”

As part of its case, HJTA has collected numerous declarations from residents with the SRA. For example, Roger Brown of Alpine, San Diego, provided a statement attesting to his payment of the FPF for six years, beginning in 2011-12. However, he states that, during this period, his property has not received a fire inspection from Cal Fire or any other fire agency.

With no inspection, HJTA argues, how can Brown be charged a fee for specific services? He must be paying a general tax. If so, it was not approved by the requisite legislative two-thirds majority.

While the state claims this is a fee for services, HJTA argues that the state treats the overdue and unpaid fees as taxes when a property owner declares bankruptcy.

“In this way, the State attempts to have its cake and eat it, too,” HJTA wrote in its support for the summary judgment. Then it quoted a California deputy attorney general who wrote in a federal bankruptcy filing, “… the Fire Prevention Fee is a fixed assessment levied against the owner of the properties in specific areas which does not depend on the owner’s specific use of that property.”

HJTA concluded, “Independence from specific use of the property means no specific benefit, privilege, product, or service is directly provided to each payor.”

Consequently, HJTA takes the position that fire prevention is a general government service any homeowner within the jurisdiction should expect. These are financed through taxes, which are compulsory and do not grant any specific benefit.

As of Oct. 6, the state had not responded to the HJTA motion nor other filings. A hearing on the motion for summary judgment has been scheduled for Dec. 8 in the Sacramento County Superior Court.

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