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

Town officials and city attorneys

The opinion holds that whether paying a 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." It then states 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."

What the AG would and would not decide

The opinion is explicit that "[t]he Attorney General may only opine upon questions of law and cannot make such factual determinations," citing § 7-5-25. It supplies the legal framework (including the dictionary meaning of the undefined term "tourism") and leaves the application to the Town.

On the "park" alternative

In a footnote, the opinion suggests the Town "may also want to consider whether the cemetery qualifies as a 'park' under the bill," again describing that as "a determination of fact to be made by the governing authorities of the Town."

Common questions

Q: Can Sardis use SB 2998 tourism funds to maintain a public cemetery?
A: The opinion does not give a flat yes or no. It holds the funds "may be used for such purpose" if the Town's governing authorities determine that maintaining the cemetery, which is visited by residents and out-of-town visitors, "enhances tourism."

Q: What does SB 2998 say the money is for?
A: The opinion quotes the bill: the tax is levied "[f]or the purpose of providing funds for the enhancement of tourism and for the provision of parks and recreational facilities."

Q: Why didn't the AG just answer yes or no?
A: The opinion explains that whether the cemetery work fits the statutory purpose "is a determination of fact that must be decided by the governing authorities of the Town," and that under § 7-5-25 the Attorney General "may only opine upon questions of law and cannot make such factual determinations."

Q: How does the opinion define "tourism"?
A: Because SB 2998 does not define it, the opinion quotes Merriam-Webster: "the practice of traveling for recreation; the guidance or management of tourists; the promotion or encouragement of touring; or the accommodation of tourists."

Background and statutory framework

The opinion describes SB 2998 as "local and private legislation that authorizes the town of Sardis... 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.'"

Because the bill does not define "tourism," the opinion supplies the Merriam-Webster definition and frames the question as whether maintaining the cemetery fits that purpose. It treats that as a factual determination for the Town's governing authorities, not the Attorney General, and concludes that the funds "may be used for such purpose" if the Town so finds. A footnote adds the same analysis for whether the cemetery qualifies as a "park" under the bill, quoting Merriam-Webster's definition of "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."

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