Can a West Virginia county collect its emergency ambulance service fee from people who live in public housing, even though the housing project itself is tax-exempt?

Official title

Opinion of the Attorney General Regarding Emergency Ambulance Service Fees and Public Housing Residents

Plain-English summary

Hampshire County imposed a $100/year emergency ambulance service fee on each residential unit. The ordinance exempts public housing agencies from the fee but applies it to "occupants" of public housing. The county prosecutor asked whether that approach is consistent with state law, given that public housing authorities and their property are tax-exempt under W. Va. Code § 16-15-14(a).

The AG concluded the approach is consistent. The emergency ambulance fee is a user fee, not a property tax. The statute (W. Va. Code § 7-15-17) authorizes counties to "impose upon and collect from the users of emergency ambulance service ... a special service fee." That language puts the fee on people, not on real estate. Public housing residents are users (or at least potential users) of emergency ambulance services. The housing authority's tax exemption protects the authority and its property; it does not give residents personal exemption from county user fees.

The opinion reasons through three angles. First, the statute itself says "users." Second, West Virginia Supreme Court of Appeals cases (Citizens for Fair Taxation v. Clay County Commission and Randy Waugh's Mobile Home Park) treat the fee as falling on users, including non-owner occupants. Third, the housing authority's exemption is property-based; resident-level taxes and fees are a separate question.

What this means for you

For Hampshire County and other West Virginia counties

Based on this opinion, charging emergency ambulance service fees to public housing residents directly (while exempting the housing authority itself) is a defensible structure under W. Va. Code § 7-15-17. Key requirements: (1) the ordinance must be cast as a user fee, not a property tax; (2) the fee must be applied uniformly to "users" of the service; and (3) the housing authority itself, as a public corporate body, should not be billed.

For public housing authorities

The opinion confirms your tax exemption. The housing authority is not on the hook for ambulance service fees on the project's residential units. But the opinion also makes clear that you do not extend that exemption to your tenants. Tenants pay county user fees on the same terms as anyone else.

For public housing residents

If you live in a public housing project in a West Virginia county that has an emergency ambulance service fee, you may be billed for the fee personally. That conclusion holds even though the housing authority is exempt from the fee. The opinion treats this as the normal application of a user fee.

For attorneys representing public housing residents in fee disputes

The opinion is careful to note that the housing authority is exempt from "all taxation," including user fees attached to its property. If the fee is structured as a property tax in substance (regardless of label), the analysis would be different. Cases like Clay County Citizens for Fair Taxation rejected an ad valorem property characterization, but the ruling turned on the per-unit-flat-rate structure of the fee. A fee that varied by property value or that scaled with owner equity might be re-characterized as a property tax.

Common questions

Q: Why isn't the housing authority's tax exemption enough to shield residents?
The exemption in W. Va. Code § 16-15-14(a) covers the housing authority itself and the "property of an authority." Residents are not "the property of" the authority. Chapman v. Huntington Housing Authority (1939) explained that public housing projects "do not belong to the tenants therein" but are held by the authority for a public purpose. The same logic that makes the property exempt from property tax also keeps the residents on the hook for personal user fees.

Q: What if a resident never actually uses ambulance service?
The opinion follows Citizens for Fair Taxation: the fee can apply to "any bona fide owner or occupant of a living unit" because every occupant is a potential user. Actual use is not required, only that the fee be "reasonably related to use of the service."

Q: Could the housing authority absorb the fee on residents' behalf?
Not addressed in this opinion. That is a question of housing authority's discretion in setting tenant rents and lease terms.

Q: What if a county adopts a fee that varies by income?
The opinion notes that the statute "imposes [no] restrictions on a county's ability to collect this fee based on income, housing type, or any other factor present here." So variability based on income may be permissible, but the opinion does not endorse it. Counties should keep the user-fee character clear; income-graduated fees can start to look more like a tax.

Q: Does the opinion apply to municipal ambulance fees?
The opinion is grounded in W. Va. Code § 7-15-17, which is the county-level authorization. Municipal ambulance fees would arise under different statutes and should be analyzed separately.

Background and statutory framework

The Emergency Ambulance Service Act of 1975 (W. Va. Code § 7-15-1 et seq.) authorizes counties to fund emergency ambulance services through a "special service fee" on users. The statute is to be liberally construed to achieve its purpose.

Section 7-15-17 is the operative provision: it lets the county commission "impose upon and collect from the users of emergency ambulance service within the county a special service fee." A fee on users, not a tax on property.

The state Housing Law (W. Va. Code ch. 16, art. 15) creates housing authorities and exempts the authority itself and its property from "taxation, special assessments, and licenses or fees" under § 16-15-14(a). That exemption is property-focused. The exemption does not flow through to residents.

The Supreme Court of Appeals has consistently treated the ambulance service fee as a user fee. Citizens for Fair Taxation (1994) upheld the fee against an ad valorem property tax challenge, holding that a per-household flat fee is reasonably related to use. Waugh (2015) extended the fee to renters, who are "users" even though they are not owners.

A 1976 AG opinion (56 W. Va. Op. Att'y Gen. 308) made the user-fee point cleanly: "the Legislature did not intend the 'special emergency ambulance service fee' to be a general tax to be imposed upon property owners, but rather intended it to be a 'special service fee' to be imposed upon the users of an essential service." The 2022 opinion treats that earlier opinion as still good law.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority for prosecuting attorneys)
• W. Va. Code §§ 7-15-1 et seq. (Emergency Ambulance Service Act of 1975)
• W. Va. Code § 7-15-2 (purpose / liberal construction)
• W. Va. Code § 7-15-17 (county user-fee authority)
• W. Va. Code § 16-15-2 (housing authorities as public corporate bodies)
• W. Va. Code § 16-15-14(a) (housing authority tax exemption)
• W. Va. Code R. § 110-3-35 (housing authority property exemption regulation)
• Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 452 S.E.2d 724 (1994)
• Randy Waugh/Waugh's Mobile Home Park v. Morgan Cnty. Emergency Med. Servs. Bd., Inc., 236 W. Va. 468, 781 S.E.2d 379 (2015)
• Chapman v. Huntington, W. Va. Hous. Auth., 121 W. Va. 319, 3 S.E.2d 502 (1939)
• 56 W. Va. Op. Att'y Gen. 308 (1976)

Source

• Landing page: https://ago.wv.gov/media/17601/download?inline
• Original PDF: https://ago.wv.gov/media/17601/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General

(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

September 19, 2022

Honorable Rebecca L. Miller
Hampshire County Prosecuting Attorney
50 South High Street
Romney, WV 26757

Dear Ms. Miller:

You have asked for an Opinion of the Attorney General on whether Hampshire County may charge emergency ambulance service fees to residents of a public housing project operated by a public housing authority. 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 depends solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your request explains that the Hampshire County Commission passed an Emergency Ambulance Service Fee Ordinance ("Ordinance") in April 2018. Generally, the Ordinance applies to all of Hampshire County at a rate of $100 per year per residential unit. But the Ordinance includes some exemptions. As relevant here, the Ordinance specifically exempts public housing agencies from the fee, instead, the fee applies to any "occupants" of public housing. The Ordinance explains that Hampshire County included these occupants because they are potential users of emergency ambulance services. Thus, the county intends to impose the emergency ambulance service fee on the residents of Valley View, a public housing project operated by the Romney Public Housing Authority.

Your request raises the following legal question:

Under West Virginia Code § 7-15-17, is an emergency ambulance service fee applicable to the residents of public housing units operated by a public housing authority?

We conclude that emergency ambulance service fees may apply to the residents of public housing units. As W. Va. Code § 7-15-17 contemplates, the Ordinance imposes a user fee. Its text appropriately encompasses people who live in a public housing project. Cases confirm the same. And nothing in the statutes defining the powers and privileges of public housing authorities says otherwise.

DISCUSSION

To begin, W. Va. Code § 7-15-2(e) provides that the Emergency Ambulance Service Act of 1975 "shall be liberally construed" to achieve its purpose of providing emergency ambulance services. West Virginia Code § 7-15-18 likewise says that "provisions of this article shall be construed to accomplish its purpose." "[I]n the absence of language in the statute showing a contrary intent on the part of the legislature," "the word 'shall' ... should be afforded a mandatory connotation." Bd. of Educ. of Cnty. of Grant v. Townshend, 187 W. Va. 249, 251, 418 S.E.2d 359, 361 (1992). So we start with an understanding that we must apply the broadest justifiable understanding of the statute that would advance its purpose to provide emergency ambulance services through the use of "public money." W. Va. Code § 7-15-2(d).

With this construction in mind, we "look to the relevant and controlling language" of the statute. State ex rel. Dep't of Health and Hum. Res., Child Support Enf't Div. v. Baker, 210 W. Va. 213, 216, 557 S.E.2d 267, 270 (2001).

West Virginia Code § 7-15-17 empowers a county commission to "impose upon and collect from the users of emergency ambulance service within the county a special service fee." (emphasis added). Thus, this fee is by its express terms a user fee. It is not a fee or tax on property itself, but rather on persons who use the emergency ambulance services. See 56 W. Va. Op. Att'y Gen. 308 (1976) ("[I]t is clear from the language of the Act itself that the Legislature did not intend the 'special emergency ambulance service fee' to be a general tax to be imposed upon property owners, but rather intended it to be a 'special service fee' to be imposed upon the users of an essential service.").

No language in the statute imposes restrictions on a county's ability to collect this fee based on income, housing type, or any other factor present here. The statute requires only that the county impose fees on "users" of emergency ambulance services. Id.; see also Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 411, 452 S.E.2d 724, 728 (1994) (holding that a per-household flat fee appropriately tied "the burden of the fee to the usage of the service in a sufficiently reasonable way" and was not an ad valorem property tax).

Thus, the Ordinance follows the statute by imposing the emergency ambulance service fee on the "occupants" of public housing as "potential users" of such services. The Ordinance does not impose a fee on the housing authority itself. Because the residents' status as potential users of emergency ambulance services is certain, the statute's "plain meaning ... answers the interpretative question." State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 630, 474 S.E.2d 554, 560 (1996) (citation omitted). The "clear and unambiguous" text of W. Va. Code § 7-15-17 empowers a county commission to collect a fee from users of emergency ambulance services, and the statute must "be given full force and effect." Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).

This outcome aligns with the Supreme Court of Appeals' view. The Supreme Court has explained that even residents who do not own the property remain "users of the emergency ambulance service" under W. Va. Code § 7-15-17. Randy Waugh/Waugh's Mobile Home Park v. Morgan Cnty. Emergency Med. Servs. Bd., Inc., 236 W. Va. 468, 479, 781 S.E.2d 379, 390 (2015). And in Clay County Citizens for Fair Taxation, the Supreme Court upheld an emergency ambulance service fee that applied to "any bona fide owner or occupant of a living unit." 192 W. Va. at 409, 452 S.E.2d at 725 (emphasis added). There, the ordinance defined a living unit to include "taxpayers in any place of residence," including "residential homes, mobile homes, apartments, personal care facilities, nursing homes and correctional facilities." Id. The Court explained that the fee requirement must only be "reasonably related to [the] use of the service," and extending the fee to all residents met that requirement. Id. at 411, 452 S.E.2d at 727. As in that case, the Ordinance here is specifically collected from the users of the services and is thus reasonably related to the use of the service.

Finally, the State Housing Law's provisions on housing authorities do not change the outcome. West Virginia Code § 16-15-14(a) exempts the housing authority itself and the "property of an authority" from taxes and fees. But the "public corporate bodies" constituting the housing authorities, W. Va. Code § 16-15-2, are distinct from the residents that occupy the homes that the authorities may provide. See also W. Va. Code R. § 110-3-35 (explaining that "[t]he property, bonds, notes, debentures and other evidences of indebtedness of a housing authority" are exempt from taxation, but not exempting occupants or residents from taxation). We see nothing in W. Va. Code § 16-15-14(a) or any other statute, for that matter, that suggests the Legislature intended to exempt the residents of the authorities from all taxation and fees. Indeed, as the examples cited in your letter reflect, that understanding would be a substantial break from present practice; residents currently pay similar service fees. Because we should not "arbitrarily read into a statute that which it does not say," we cannot assume that the residents of a housing authority are exempt from taxes and fees, including the emergency ambulance service fee. State v. Butler, 239 W. Va. 168, 178, 799 S.E.2d 718, 728 (2017).

Here again, precedents confirm our reading of the statute. The Court has explained that public housing projects do "not belong to the tenants therein" but are instead "held by the housing authority for a public purpose." Chapman v. Huntington, W. Va. Hous. Auth., 121 W. Va. 319, 3 S.E.2d 502, 516 (1939). So, these projects are "public property," and they "should be exempt from taxation." Id. It is this public property that is tax- and fee-exempt. See id. But, as we have already explained, the emergency ambulance service fee is not a fee or tax against the property itself. Cf. 56 W. Va. Op. Att'y Gen. at 308 ("There is nothing in this language to suggest that the Legislature intended such service fees to be imposed only on property owners."). So none of the considerations that justify the State's Housing Act tax-exemption provision would apply here.

In short, an emergency ambulance service fee can be applied to the residents of public housing units operated by a public housing authority.

Sincerely,

Patrick Morrisey
West Virginia Attorney General

Michael R. Williams
Senior Deputy Solicitor General

Caleb A. Seckman
Assistant Solicitor General