Can a Mississippi town use hotel and restaurant tax money raised for tourism to mow and maintain a public cemetery?

Plain-English summary

The Town of Sardis collects a special tax under 2022 Senate Bill 2998 on hotel sales and restaurant gross proceeds. The bill says the funds are "for the purpose of providing funds for the enhancement of tourism and for the provision of parks and recreational facilities."

The Town wanted to use that money to pay a third-party contractor to cut grass and maintain a public cemetery that gets visitors from inside and outside Sardis. Cemetery maintenance is not a typical line item for a tourism budget, so the Town's attorney asked: is this a permissible use of SB 2998 funds?

The AG punted the question back to the Town. The opinion lays out the relevant rule and then says the application is a factual call:

• SB 2998 doesn't define "tourism." Merriam-Webster defines it as "the practice of traveling for recreation; the guidance or management of tourists; the promotion or encouragement of touring; or the accommodation of tourists."
• Whether maintaining the cemetery falls within that definition depends on facts: do tourists actually visit the cemetery? Does its maintenance promote, accommodate, or guide tourist activity?
• The Attorney General's office can only opine on prospective questions of state law (§ 7-5-25). It cannot make factual determinations.
• If the Town's governing authority finds, on the facts, that maintaining the cemetery enhances tourism, then the SB 2998 funds may be used for that purpose.

The AG also flagged a footnote-level alternative: the Town might also analyze whether the cemetery qualifies as a "park" under SB 2998. Merriam-Webster defines a park as "a piece of ground in or near a city or town kept for ornament and recreation; an area maintained in its natural state as a public property." That, too, is a factual call for the Town.

So the practical answer: Sardis can use the funds if its board makes the appropriate finding. The AG didn't say no, but it also didn't bless the spending without the Town doing the underlying analysis.

What this means for you

If you are a city attorney advising a Mississippi municipality on tourism-tax spending

Build a factual record. When the city decides that a non-obvious expenditure (cemetery maintenance, road work, public art) qualifies as "enhancement of tourism" under its local/private tourism legislation, document the specific tourism-related characteristics: visitation data, marketing materials, tourist guide listings, historical or cultural significance to visitors. The board's finding is reviewable by courts, and a paper trail matters.

If you are a mayor or town board member

You have authority to make this kind of factual finding, but be deliberate. Your tourism-tax legislation is not a slush fund. Voters and the State Auditor will look at whether the expenditure is genuinely tourism-related. Cemetery maintenance is plausibly tied to historical tourism (visitors researching family history, military memorial visits, photo tourism), but the connection should be specific and supported.

If you live in Sardis or another Mississippi tourism-tax town

The hotel and restaurant taxes you and visitors pay are dedicated to tourism enhancement under local/private legislation. The town board has discretion to decide what counts. If you think a particular expenditure stretches that purpose past breaking, the path is to (a) attend board meetings and ask, (b) request public records on the board's findings, or (c) seek a State Auditor review.

If you are at the Mississippi State Auditor's office

This kind of opinion is exactly why agency-level audit work matters. The AG explicitly leaves factual judgments to local boards but does not bless the spending. An auditor's review is the practical check on whether a town's "enhancement of tourism" finding is colorable or pretextual.

If you operate a hotel or restaurant collecting the tax

You're collecting and remitting the tax under SB 2998. The town then spends it on tourism. You have an interest in the funds going to actual tourism promotion that drives more visitors to your business; you can advocate for tourism-strategic spending through your local CVB, chamber of commerce, or directly to the board.

Common questions

Q: What is SB 2998?
A: 2022 Mississippi Senate Bill No. 2998 is local and private legislation that authorizes the Town of Sardis specifically to levy a tax on the gross sales of hotels and motels and on the gross proceeds from restaurant sales, dedicated to "enhancement of tourism and for the provision of parks and recreational facilities."

Q: What's "local and private legislation"?
A: It's a state law that applies to a specific city, county, or district rather than statewide. Mississippi has many local/private bills authorizing specific towns to levy specific taxes for specific purposes. They are usually negotiated and passed individually each session.

Q: Why doesn't the AG just answer yes or no?
A: § 7-5-25 limits AG opinions to prospective state-law questions. Whether a particular factual scenario fits a statutory term ("enhancement of tourism," "park") is a factual call. The AG provides the legal framework; the board makes the factual application.

Q: Could the Town use these funds for road repairs, sidewalks, or other infrastructure?
A: Same analysis. If the board finds the infrastructure project enhances tourism (e.g., improving access to a tourist site, repaving streets to a historical district), it could fit within the statutory purpose. If the project is general municipal infrastructure with no tourism nexus, it would be outside the statute.

Q: What if the cemetery is a Civil War or veterans cemetery?
A: That makes the tourism nexus much stronger. Veterans' cemeteries draw visitors from across Mississippi and beyond, and Civil War history is a major Mississippi tourism category. A board finding that maintaining a historically significant cemetery enhances tourism would be reasonable.

Q: Who polices whether the Town's finding is reasonable?
A: Several layers. Voters at the next election; the State Auditor through routine audits; courts on judicial review of a specific challenge; and the Legislature can amend or repeal the local/private bill. The AG cannot.

Q: Does this analysis apply to other Mississippi tourism taxes?
A: It applies to any local/private tourism tax legislation that uses similar "enhancement of tourism" language. The AG's reasoning is generic: when a statute uses an undefined term that requires factual application, the local board makes that call subject to judicial review.

Background and statutory framework

Mississippi has scores of local and private tourism-tax authorizations, each enabling a specific city or county to levy a hotel/restaurant tax for specific purposes. SB 2998 is one of these for the Town of Sardis. The general pattern:

• The Legislature authorizes a specific local tax.
• The local governing authority (here, the Sardis Board of Aldermen) decides whether to actually levy and collect it.
• The local governing authority spends the proceeds for the statutorily defined purposes.

The defining feature of these laws is the spending limitation. Funds collected under a tourism-purpose authorization cannot be spent on general municipal operations. They must be tied to whatever purposes the authorizing legislation specifies.

When the spending fits the statutory category cleanly (a tourist information center, marketing campaigns, tourism events), there is no controversy. When the spending is non-obvious (cemetery maintenance, library hours, certain types of infrastructure), the board has to make a finding that the expenditure fits the statutory purpose.

The AG's framework here is standard: provide the legal definition (here, the dictionary definitions of "tourism" and "park" because the statute doesn't define them), confirm that questions of factual application belong to the local board, and decline to substitute the AG's judgment for the board's.

A footnote in the opinion is also useful. The AG suggested the Town might also analyze the cemetery as a "park" under the bill. The "park" definition in Merriam-Webster includes both ornamental/recreational use and "an area maintained in its natural state as a public property." A maintained municipal cemetery, especially one with public access and visitor traffic, plausibly fits.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25 (AG opinions limited to prospective questions of state law)
- 2022 Mississippi Senate Bill No. 2998 (local and private bill authorizing Sardis tourism tax)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/01/T.Heck-December-28-2023-Tourism-Funds-Used-for-Municipal-Cemetery-Maintenance.pdf

Original opinion text

December 28, 2023

Taylor A. Heck, Esq.
Attorney, Town of Sardis
214 South Ward Street
Senatobia, Mississippi 38668

Re: Tourism Funds Used for Municipal Cemetery Maintenance

Dear Ms. Heck:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

May the town of Sardis use tourism funds, collected pursuant to Senate Bill 2998, to pay a third-party contractor to cut and maintain a municipal cemetery that is visited by citizens of Sardis as well as visitors from out of town?

Brief Response

2022 Mississippi Senate Bill No. 2998 ("S.B. 2998") authorizes the governing authorities of the town of Sardis to levy and collect certain taxes "[f]or the purpose of providing funds for the enhancement of tourism and for the provision of parks and recreational facilities." Whether paying a third-party contractor to cut and maintain a municipal cemetery constitutes an action "for the enhancement of tourism and for the provision of parks and recreational facilities," as provided in S.B. 2998, is a factual determination that must be made by the governing authorities of the town of Sardis.

Applicable Law and Discussion

S.B. 2998 is local and private legislation that authorizes the town of Sardis (the "Town") to levy and collect a tax on the gross sales of hotels and motels and on the gross proceeds from restaurant sales "[f]or the purpose of providing funds for the enhancement of tourism and for the provision of parks and recreational facilities." S.B. 2998 does not define "tourism." However, Merriam-Webster defines "tourism" as "the practice of traveling for recreation; the guidance or management of tourists; the promotion or encouragement of touring; or the accommodation of tourists." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/tourism (last visited December 27, 2023).[^1]

Whether paying a third-party contractor to cut and maintain a municipal cemetery constitutes an action "for the enhancement of tourism" as provided in S.B. 2998, is a determination of fact that must be decided by the governing authorities of the Town. The Attorney General may only opine upon questions of law and cannot make such factual determinations. Miss. Code Ann. § 7-5-25.

This said, it is the opinion of this office that if the governing authorities of the Town determine that cutting and maintaining a municipal cemetery, visited by citizens of Sardis as well as visitors from out of town, enhances tourism, then the funds collected pursuant to S.B. 2998 may be used for such purpose.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General

[^1]: The Town may also want to consider whether the cemetery qualifies as a "park" under the bill. While S.B. 2998 does not define "parks," Merriam-Webster defines "park" as "a piece of ground in or near a city or town kept for ornament and recreation; an area maintained in its natural state as a public property." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/park (last visited December 27, 2023). Whether the cemetery qualifies as a park under the bill and thus entitled to funds for the provision of such is a determination of fact to be made by the governing authorities of the Town.