TAXATION - PUBLIC FUNDS - COUNTIES - CITIES AND TOWNS - TOURISM - USE OF EXCISE TAXES LEVIED UNDER RCW 67.28.210 FOR PRODUCTION AND SALE OF SHIRTS PROMOTING LOCAL COMMUNITY EVENT

TAXATION - PUBLIC FUNDS - COUNTIES - CITIES AND TOWNS - TOURISM - USE OF EXCISE TAXES LEVIED UNDER RCW 67.28.210 FOR PRODUCTION AND SALE OF SHIRTS PROMOTING LOCAL COMMUNITY EVENT

1.         The term "tourist expansion" as used in RCW 67.28.210 refers to activities designed to increase tourism and tourist activity in a given geographical area.

2.         RCW 67.28.210 does not generally permit counties or cities to use tax revenues generated thereunder for the production or resale of shirts containing the logo of an annual community event; however, the proviso added to the statute by Laws of 1995, Ch. 290, section 1 does permit the proceeds to be used for advertising and promotional materials, which might include promotional shirts, where the conditions set forth in the proviso are met.

3.         RCW 67.28.210 governs the expenditure of revenues authorized by its language; RCW 35.21.700 is a more general statute covering expenditure by cities of other available revenues.

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                                                                 August 24, 1995

The HonorableBarry Sehlin
Washington State Representative
PO Box 40600
Olympia, WA   98504-0600

                                                                                                            Cite as:  AGO 1995 No. 10

Dear Representative Sehlin:

            By letter previously acknowledged, you have asked for our opinion on three questions concerning the authority of cities to spend funds to promote tourism.  Your questions are:

            1.         What is contemplated by “tourist expansion” in the expenditure of special excise taxes under RCW 67.28.210?

            2.         Would expenses associated with the production and resale of shirts, with the logo of an annual community event, which have the intent to promote and publicize such event, be considered lawful under RCW 67.28.210?

            3.         How does the authority given municipalities in RCW 35.21.700 interact, affect, limit, or expand the authorization to expend monies authorized by RCW 67.28.210?

                                                                    ANALYSIS

            RCW 67.28.210, the first statute about which you inquire, authorizes cities and counties to spend special excise tax revenues for certain purposes.  The special excise tax is levied on the furnishing of short-term lodging by hotels, motels, and similar facilities and commonly is referred to as hotel/motel tax.

            The purposes for which this tax may be levied and spent include the construction and operation of certain facilities, including stadiums, convention centers, and performing arts centers, and also include certain activities promoting tourism.  In addition to these purposes authorized for cities and counties generally, some cities and counties, depending on their size, location, and geographical characteristics have special authority to use hotel/motel tax revenues for additional purposes.  RCW 67.28.210(1) provides:

                        All taxes levied and collected under RCW 67.28.180, 67.28.240, and 67.28.260 shall be credited to a special fund in the treasury of the county or city imposing such tax.  Such taxes shall be levied only for the purpose of paying all or any part of the cost of acquisition, construction, or operating of stadium facilities, convention center facilities, performing arts center facilities, and/or visual arts center facilities or to pay or secure the payment of all or any portion of general obligation bonds or revenue bonds issued for such purpose or purposes under this chapter, or to pay for advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion when a county or city has imposed such tax for such purpose, or as one of the purposes hereunder, and until withdrawn for use, the moneys accumulated in such fund or funds may be invested in interest bearing securities by the county or city treasurer in any manner authorized by law.  In addition such taxes may be used to develop strategies to expand tourism:  PROVIDED, That any county, and any city within a county, bordering upon Grays Harbor may use the proceeds of such taxes for construction and maintenance of a movable tall ships tourist attraction in cooperation with a tall ships restoration society, except to the extent that such proceeds are used for payment of principal and interest on debt incurred prior to June 11, 1986:  PROVIDED FURTHER, That any city or county may use the proceeds of such taxes for the refurbishing and operation of a steam railway for tourism promotion purposes:  PROVIDED FURTHER, That any city bordering on the Pacific Ocean or on Baker Bay with a population of not less than eight hundred and the county in which such a city is located, a city bordering on the Skagit river with a population of not less than twenty thousand, or any city within a county made up entirely of islands may use the proceeds of such taxes for funding special events or festivals, or for the acquisition, construction, or operation of publicly owned tourist promotional infrastructures, structures, or buildings including but not limited to an ocean beach boardwalk, public docks, and viewing towers:  PROVIDED FURTHER, That any county which imposes a tax under RCW 67.28.182 or any city with a population less than fifty thousand in such county may use the proceeds of the tax levied and collected under RCW 67.28.180 to provide public restroom facilities available to and intended for use by visitors:  PROVIDED FURTHER, That any county made up entirely of islands, and any city or town that has a population less than five thousand, may use the proceeds of the tax levied and collected under RCW 67.28.180 to provide public restroom facilities available to and intended for use by visitors:  PROVIDED FURTHER, That any city or county may use the proceeds of such taxes for funding a civic festival, if the following conditions are met:  The festival is a community-wide event held not more than once annually; the festival is approved by the city, town, or county in which it is held; the festival is sponsored by an exempt organization defined in section 501(c)(3), (4), or (6) of the federal internal revenue code; the festival provides family-oriented events suiting a broad segment of the community; and the proceeds of such taxes are used solely for advertising and promotional materials intended to attract overnight visitors.

            With this background, we now consider your questions about this statute.

QUESTION 1:

            What is contemplated by ‘tourist expansion’ in the expenditure of special excise taxes under RCW 67.28.210?

            The term “tourist expansion” appears only once, and in the following context, in RCW 67.28.210 (emphasis added):

            Such taxes shall be levied only . . . to pay for advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouragingtourist expansion when a county or city has imposed such tax for such purpose, or as one of the purposes hereunder[.]

            Where, as here, words in a statute are not statutorily defined, they are given their ordinary meaning.  Dictionaries are an appropriate source for determining that meaning.  Davis v. Department of Employment Sec., 108 Wn.2d 272, 737 P.2d 1262 (1987).  In its ordinary sense, the term “tourist expansion” generally would contemplate growth in tourism.[1]

            This is not to suggest, however, that the language of RCW 67.28.210, quoted immediately above, authorizes use of hotel/motel tax revenues to pay for any and all activities that encourage growth in tourism.  The context in which the term “tourist expansion” appears in the statute makes it evident that only a more limited range of activities is authorized.[2]  This statutory language allows cities and counties to use the tax to pay for “advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion”.  In sum, it merely authorizes the use of hotel/motel tax revenues to disseminate information designed to attract visitors and encourage growth in tourism.

            This conclusion finds support not only in the statutory language quoted immediately above, but also in other language of the statute.  As RCW 67.28.210 reflects, cities and counties also may use hotel/motel tax to “develop strategies to expand tourism”—i.e., essentially a planning function.  RCW 67.28.210 also contains a series of provisos authorizing specific activities to promote tourism.  If the above-quoted language referring to “tourist expansion” contemplated the full spectrum of activities that could promote tourism, these provisions would be unnecessary.[3]

QUESTION 2:

            Would expenses associated with the production and resale of shirts, with the logo of an annual community event, which have the intent to promote and publicize such event, be considered lawful under RCW 67.28.210?

            In our opinion, for most cities and counties and under most circumstances, the answer to this question likely will be “no”.  On the other hand, we believe that the statute authorizes such a use of hotel/motel tax by a limited class of cities and counties.

            If the only language in RCW 67.28.210 bearing on this question was the language discussed in Question 1, that authorizes use of hotel/motel tax for “advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion”, we likely would have advised that at least under some circumstances, use of hotel/motel tax to pay for the production and sale of shirts carrying the logo of a community event would be permissible.  Certainly, it is not at all uncommon for clothing to serve an advertising or promotional function in today's society.  Thus, we likely would have concluded that the answer to your question would turn on the information contained in the logo and the circumstances surrounding distribution of the shirts.

            But other language in RCW 67.28.210 is relevant to your inquiry and leads us to conclude that for most cities and counties, the answer to your question likely will be “no”.  Specifically, we refer to a proviso added to RCW 67.28.210 in the 1995 regular legislative session (the “1995 proviso”).  See Laws of 1995, ch. 290, § 1, p. 1200.  This new language states:

            PROVIDED FURTHER, Thatany city or county may use the proceeds of such taxes for funding a civic festival, if the following conditions are met:  The festival is a community-wide event held not more than once annually; the festival is approved by the city, town, or county in which it is held; the festival is sponsored by an exempt organization defined in section 501(c)(3), (4), or (6) of the federal internal revenue code; the festival provides family-oriented events suiting a broad segment of the community; and the proceeds of such taxes are used solely for advertising and promotional materials intended to attract overnight visitors.

(Emphasis added.)

            Ordinarily, a statutory proviso removes something from or restricts the operation of an enacting clause, but provisos are not always so used.  Sometimes provisos introduce new or independent matters into a statute, rather than limit or explain existing provisions.  McKenzie v. Mukilteo Water Dist., 4 Wn.2d 103, 102 P.2d 251 (1940); 73 Am. Jur. 2dStatutes § 318 (1983); Sutherland, Statutory Construction § 47.08, at 156 (1992).  The provisos in RCW 67.28.210 are of this latter type.  They are not written as exceptions to or restrictions on authority otherwise granted.  Instead, they provide authority to spend hotel/motel tax that does not exist under other terms of the statute.

            This 1995 proviso is relevant to your question in two respects.  First, its very existence implies that other language in RCW 67.28.210 does not authorize such an expenditure of hotel/motel tax.  Thus, the 1995 proviso means that that portion of RCW 67.28.210 allowing hotel/motel to be spent for “advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion” does not include the authority to spend such tax revenues to advertise civic festivals.  If it did, the 1995 proviso would serve no purpose.

            Second, the 1995 proviso strictly conditions the circumstances under which cities and counties may use hotel/motel tax and strictly limits the use to which such revenues may be put.  Only if the festival satisfies each of the conditions set forth in the proviso, may hotel/motel tax be used to fund it and even then, the tax revenues may be used “solely for advertising and promotional materials intended to attract overnight visitors”.

            Thus, for most cities and counties, RCW 67.28.210 would authorize expenditure of hotel/motel tax to fund shirts carrying the logo of a community event, only if the event is of the nature described in the 1995 proviso and even then, the tax revenues could be used only for “advertising and promotional materials intended to attract overnight visitors”.  Although it is not terribly difficult to envision circumstances under which sale of clothing bearing a logo for a community event might constitute “advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion”, it seems much more difficult to envision a logo containing advertising and promotional information intended to attract overnight visitors.  Thus, while we do not rule out the possibility that a logo could satisfy the 1995 proviso, we believe it unlikely that one would.

            On the other hand, it appears to us that certain cities and counties may use hotel/motel tax under RCW 67.28.210 for the purpose about which you inquire.  In our view, this stems from another proviso in RCW 67.28.210.  This proviso states:

            PROVIDED FURTHER, That any city bordering on the Pacific Ocean or on Baker Bay with a population of not less than eight hundred and the county in which such a city is located, a city bordering on the Skagit river with a population of not less than twenty thousand, or any city within a county made up entirely of islands may use the proceeds of such taxes for funding special events or festivals[.]

This proviso authorizes limited categories of cities and counties to use hotel/motel tax to fund special events or festivals.  Unlike the 1995 proviso, this proviso is quite general in authorizing expenditure of hotel/motel tax for special events and festivals.  Under it, such revenues need not be used solely for advertising or promotional purposes.  Nor does this proviso restrict expenditure to festivals of the nature described in the 1995 proviso discussed above.  Consequently, as to the cities and counties it describes, we believe that this proviso authorizes the expenditure of hotel/motel tax to fund the production and sale of shirts bearing the logo of a community festival as part of such an event.[4]

QUESTION 3:

            How does the authority given municipalities in RCW 35.21.700 interact, affect, limit, or expand the authorization to expend monies authorized by RCW 67.28.210?

            Your final inquiry concerns the relationship between RCW 35.21.700 and RCW 67.28.210.  RCW 35.21.700 states:

                        Any city or town in this state acting through its council or other legislative body shall have power to expend moneys and conduct promotion of resources or facilities in the city or town, or general area, by advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion.

            As a general rule, statutes relating to the same subject matter are to be construed together giving effect and meaning to each.  Only when their provisions conflict and may not be harmonized will a court give effect to one over the other.  Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993).           

            RCW 35.21.700 and RCW 67.28.210 relate to the same subject matter to the extent that each gives to cities authority to spend certain revenues to distribute information designed to attract visitors and encourage growth in tourism.  Indeed, we see no significant difference between the activities that may be funded under RCW 35.21.700 and those that could be funded under the language of RCW 67.28.210, authorizing hotel/motel tax to be used “to pay for advertizing, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion”, if this language stood alone.  In many respects, the language is identical and even where it differs, it does not appear to differ in any significant respect.

            In our view, however, these two statutes essentially operate independently.  Neither purports to, nor is intended to, affect, limit, or expand the authority provided by the other.[5]  Instead, RCW 67.28.210 addresses the permissible uses to which a city may put hotel/motel tax revenues.  RCW 35.21.700, on the other hand, addresses the uses to which a city may put other available revenues.[6]

            We trust we have fully responded to your inquires and hope this will be of assistance to you.

                                                                        Sincerely,

                                                                        MAUREEN HART
                                                                        Senior Assistant Attorney General
                                                                        (360) 753-2536