Arcadia Municipal Code Part 7 Utilities Tax

Footnotes:

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(Former Part 7 entitled "Cigarette Tax" consisting of Sections 2671 through 2673.9, added by Ord. 1340 adopted 3-30-67, repealed by Ord. 1356 adopted 8-15-67. Also former Part 7 entitled "Parking Tax" consisting of Sections 2671 through 2671.7, added by Ord. 1387, adopted 9-17-68, repealed by Ord. 1403 adopted 11-18-69)

Part 7 added by Ord. 1415 adopted 6-30-70

The definitions given in this section govern the construction of this Part.

(a) "Person" shall mean any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership or any kind, joint venture, club, Massachusetts business or common-law trust, society, individual, or municipal corporation.

(b) "City" shall mean the City of Arcadia.

(c) Electrical corporation", "gas corporation", "water corporation", and "cable television corporation" shall have the same meanings as defined in Sections 218, 222, 241 and 215.5, respectively, of the Public Utilities Code of the State of California, as said sections existed on January 1, 1970, except that "water corporation" shall not mean or include the City of Arcadia.

(d) "Tax Administrator" shall mean the Finance Director of the City of Arcadia.

(e) "Service supplier" shall mean a person required to collect and remit a tax imposed by this Part.

(f) "Service user" shall mean a person required to pay a tax imposed by this Part.

(g) "Month" shall mean a calendar month.

(h) "Ancillary telecommunications services" shall mean services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including but not limited to the following services:

(1) "Conference Bridging Service" means an ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service does not include the telecommunications services used to reach the conference bridge.

(2) "Detailed Telecommunications Billing Service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.

(3) "Directory Assistance" means an ancillary service of providing telephone number information, and/or address information.

(4) "Vertical Service" means an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

(5) "Voice Mail Service" means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.

(i) "Billing Address" shall mean the mailing address of the service user where the service supplier submits invoices or bills for payment by the service user.

(j) "Communication Services" shall mean telecommunications services and ancillary telecommunication services.

(k) "Mobile Telecommunications Service" shall have the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder.

(l) "Municipal Organization" shall mean an organization or association created by statute or by voluntary action, whose purpose is to facilitate the development and dissemination of uniform rulings or interpretations regarding the application of utility users taxes to communications services in the State of California.

(m) "Place of Primary Use" shall mean the street address representative of where the customer's use of the communications service primarily occurs, which must be the residential street address or the primary business street address of the customer.

(n) "Post-paid Telecommunication Service" shall mean the telecommunication service obtained by making a payment on a telecommunication-by-telecommunication basis either through the use of a credit card or payment mechanism such as a bank card, travel card, credit card, or debit card, or by charge made to a service number which is not associated with the origination or termination of the telecommunication service.

(o) "Prepaid Telecommunication Service" shall mean the right to access telecommunication services, which must be paid for in advance and which enables the origination of telecommunications using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.

(p) "Private Telecommunication Service" shall mean a telecommunication service that entitles the customer to exclusive or priority use of a telecommunications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels. A telecommunications channel is a physical or virtual path of telecommunications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the telecommunications).

(q) "Service Address" means any of the following:

(1) The location of the service user's telecommunications equipment from which the telecommunication originates or terminates, regardless of where the telecommunication is billed or paid; or,

(2) If the location in subsection (1) of this definition is unknown (e.g., mobile telecommunications or VoIP service), the service address means the location of the service user's place of primary use, or

(3) For prepaid telecommunication service, "service address" means the location associated with the service number.

(r) "Streamlined Sales and Use Tax Agreement" shall mean the multi-state agreement commonly known and referred to as the Streamlined Sales and Use Tax Agreement, and as it is amended from time to time.

(s) "Communications Services" shall mean the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, whatever the technology used. The term "communications services" includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (VoIP) services or are classified by the Federal Communications Commission as enhanced or value added, and includes video and/or data services that is functionally integrated with "communications services". "Communications services" include, but are not limited to the following services, regardless of the manner or basis on which such services are calculated or billed: ancillary telecommunication services; mobile telecommunications service; prepaid telecommunication service; post-paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Communications Commission); 900 service (or any other similar numbers designated by the Federal Communications Commission for services whereby subscribers who call in to pre-recorded or live service).

(t) "VoIP" (Voice over Internet Protocol) shall mean the digital process of making and receiving real-time voice transmissions over any Internet Protocol network.

(u) "800 Service" shall mean a "communications service" that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed under the name "800", "855", "866", "877", and "888" toll-free calling, and any subsequent numbers designated by the Federal Communications Commission.

(v) "900 Service" shall mean an inbound toll "communications service" purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded announcement or live service. "900 service" does not include the charge for: collection services provided by the seller of the "telecommunications services" to the subscriber, or service or product sold by the subscriber to the subscriber's customer. The service is typically marketed under the name "900" service, and any subsequent numbers designated by the Federal Communications Commission.

(Ord. No. 2259, § 1, 6-9-2009)

(a) There is hereby imposed a tax upon every person in the City, using intrastate, interstate and international communications services, including cellular telephone services, and the telephone services that gain access to the Public Switched Network (PSN), by means of various technologies, by every person in the City using such services. The tax imposed by this section shall be at the rate of five percent (5%) of all charges made for such services and shall be paid by the person paying for such service. There is a rebuttable presumption that communications services, which services are capable of terminating a call to another person on the general telephone network, and which are billed to a billing or service address in the City, are used, in whole or in part, within the City's boundaries, and such services are subject to taxation under this chapter. If the billing address of the service user is different from the service address, the service address of the service user shall be used for purposes of imposing the tax.

(b) "Mobile Telecommunications Service" shall be sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124). The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this Part, sourcing rules for the taxation of other communication services, including but not limited to post-paid telecommunication services, prepaid telecommunication services, and private telecommunication services, provided that such rules are based upon custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation (e.g., Streamlined Sales and Use Tax Agreement).

(c) As used in this section, the term "communications services" shall not include "private mobile radio service" [as defined in Part 20.3 of Title 47 of the Code of Federal Regulations], or "private mobile service" [as defined in 47 U.S.C.A. Section 332(d)(3)], which is not interconnected with the PSN. As used in this section, the term "communications services" shall include, but shall not be limited to charges for: connection, reconnection, termination, movement, or change of communications services; late payment fees; detailed billing; central office and custom calling features (including but not limited to call waiting, call forwarding, caller identification and three-way calling); voice mail and other messaging services; directory assistance; access and line charges; universal service charges; regulatory, administrative and other cost recovery charges; local number portability charges; and text and instant messaging. "Communication services" shall not include digital downloads such as, music, ringtones, games, and similar digital products.

(d) As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the communications services.

(e) The Tax Administrator, from time to time, may issue and disseminate to communications service suppliers that are subject to the tax collection requirements of this Part, an administrative ruling identifying those communications services that are subject to the tax of subsection (a) above. This administrative ruling shall not impose a new tax, revise an existing tax methodology as stated in this Part, or increase an existing tax except as allowed by California Government Code Section 53750(h)(2), as it may be amended from time to time.

(f) To facilitate the uniform interpretation and application of similar ordinance provisions in other local jurisdictions in the state, the Tax Administrator may, prior to issuing and disseminating a sourcing rule or an administrative tax ruling, submit his or her proposed sourcing rule or administrative tax ruling to a Municipal Organization for review and comment, according to the rules and procedures of that Municipal Organization, or its successor organization.

(g) To prevent actual multi-jurisdictional taxation of communications services subject to tax under this section, any service user, upon proof to the Tax Administrator that the service user has previously paid the same tax in another state or city on such communications services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city; provided, however, the amount of credit shall not exceed the tax owed to the City under this section.

(Ord. No. 2259, § 2, 6-9-2009)

Editor's note— Ord. No. 2259, § 2, adopted Jun. 9, 2009, amended § 2671, in its entirety and enacted new provisions to read as herein set out. Prior to amendment, § 2671 pertained to telephone tax. See Ordinance List and Disposition Table for derivation.

(a) There is hereby imposed a tax upon every person in the City using electrical energy in the City. The tax imposed by this section shall be at the rate of seven percent (7%) of the charges made for such energy and shall be paid by the person paying for such energy. "Charges," as used in this section, shall include charges made for (1) metered energy, and (2) minimum charges for service, including customer charges, service charges, demand charges, standby charges, and annual and monthly charges.

(b) As used in this section the term "using electrical energy" shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery or device apart from the premises upon which the energy was received, provided however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries. The term shall not include electricity used in water pumping by water corporations; nor shall the term include the mere receiving of such energy by an electrical corporation at a point within the City for resale.

(Amended by Ord. 1645 adopted 6/30/78)

(a) There is hereby imposed a tax upon every person in the City using gas in the City which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of seven percent (7%) of all charges made for such gas and shall be paid by the person paying for such gas.

(b) There shall be excluded from the base on which the tax imposed in this section is computed (1) charges made for gas which is to be resold and delivered through mains or pipes; (2) charges made for gas to be used in the generation of electrical energy by an electrical corporation; and (3) charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities.

(Amended by Ord. 1645 adopted 6/30/78)

There is hereby imposed a tax upon every person in the City using water in the City which is delivered through mains or pipes of a water corporation. The tax imposed by this section shall be at the rate of seven percent (7%) of the charges made for such water and shall be paid by the person paying for such water.

(Amended by Ord. 1645 adopted 6/30/78)

If any nontaxable charges are bundled with and not separately stated from taxable service charges on the customer bill or invoice of a service supplier, the combined charge is subject to tax unless the service supplier identifies, by reasonable and verifiable standards, the portions of the combined charge that are nontaxable and taxable through the service supplier's books and records kept in the regular course of business, and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper apportionment of taxable and non-taxable charges. If the service supplier offers a combination of taxable and non-taxable services, and the charges are separately stated, then for taxation purposes, the values assigned the taxable and non-taxable services shall be based on its books and records kept in the regular course of business and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper valuation of the taxable and non-taxable services.

(Ord. No. 2259, § 3, 6-9-2009)

Editor's note— Ord. No. 2259, § 3, adopted Jun. 9, 2009, enacted new provisions to read as herein set out. Prior to this amendment, § 2671.4 was repealed by Ord. 1418 adopted 9-1-70.

(Repealed by Ord. 2311 adopted 7-2-2013)

Editor's note— Ord. No. 2311, § 1, adopted July 2, 2013, repealed § 2671.5, in its entirety. Prior to this amendment, § 2671.5 pertained to "Water Tax Suspended." See Ordinance List and Disposition Table for derivation.

The utility users tax shall be reviewed annually by the City Council and the City Council may, by ordinance or resolution, adjust the rate or temporarily suspend all or a portion of the tax, as appropriate to the financial condition of the City. No adjustment to the rate or temporary suspension of the tax shall constitute a decrease in a tax, or an increase in a tax requiring voter approval under California Constitution Article XIIIC (Proposition 218); provided the City Council's action does not increase the tax beyond the maximum rate or methodology set forth in this voter-approved ordinance. To the extent that any aspect of a rate adjustment or temporary tax suspension is found to invoke such a requirement under Proposition 218, the entire City Council action shall be deemed null and void ab initio, and there shall be no entitlement to adjustment or suspension for any service user.

(Added by Ord. 1704 adopted 6-3-80)

(Ord. No. 2259, § 4, 6-9-2009; amended by Ord. 2311 adopted 7-2-2013)

Editor's note— Ord. No. 2311, § 2, adopted July 2, 2013, retitled § 2671.6 from "Indefinite Suspension of a Portion of the Utility User Tax Rate" to "Adjustment to or Suspension of the Utility Users Tax."

Each fiscal year after the City's 1980-1981 fiscal year, the City Council may by resolution instruct the tax administrator to order all service suppliers to not collect the tax imposed by this Part for such period of time the tax administrator determines necessary to limit the total tax revenue received by the City pursuant to this Part for the fiscal year to not more than the total tax revenue received by the City pursuant to this Part for the prior fiscal year plus, approximately, an additional ten percent (10%) of said prior fiscal year.

(Added by Ord. 1735 adopted 11-17-81)

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by state and federal law, and as it may change from time to time by judicial interpretation or by statutory enactment. A service supplier shall be deemed to have sufficient activity in the City for tax collection and remittance purposes if its activities include, but are not limited to, any of the following: maintains or has within the City, directly or through an agent or subsidiary, a place of business of any nature; solicits business in the City by employees, independent contractors, resellers, agents or other representatives; solicits business in the City on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter with the City or distributed from a location within the City; or advertises in newspapers or other periodicals printed and published within the City or through materials distributed in the City by means other than the United States mail; or if there are activities performed in the City on behalf of the service supplier that are significantly associated with the service supplier's ability to establish and maintain a market in the City for the provision of services that are subject to a tax under this Chapter.

(Ord. No. 2259, § 5, 6-9-2009)

Nothing in this Part shall be construed as imposing a tax upon any person if imposition of such tax upon that person would be in violation of the Constitution of the United States or the Constitution of the State of California.

The tax imposed by this Part 7 shall not apply during any calendar year to any of the following:

(a) Any service user who has an income adjusted for family size, at or below fifty percent (50%) of the area median income as determined under the Section 8 Income Limits for Los Angeles County as published by the United States Department of Housing and Urban Development and applicable to the Community Development Block Grant Programs; and

(b) Any service user who meets the criterion of disability as established by the Social Security Administration's Supplemental Income program for the Aged, Blind and Disabled. (Title XVI of the Social Security Act as amended.) (Added by Ord. 1506 adopted 7-16-74, amended by Ord. 1695 adopted 3-18-80)

(Ord. No. 2259, § 6, 6-9-2009)

(a) An exempt person may apply for and receive an exemption from such taxes from the office of the Finance Director of the City of Arcadia upon presentation of proof of adjusted gross income or proof of qualification under Social Security Supplemental Income to the satisfaction of the office of the Finance Director.

(b) Any application for an exemption as above allowed shall be upon forms supplied by the Finance Director and statements made therein shall be under oath and subject to the penalties of perjury.

(c) The Finance Director shall review each application and if he determines that an exemption is allowable in accordance herewith, he shall process the application for exemption and shall effectuate the exemption by transmitting the necessary determination and information to the applicable utility companies. Upon receipt thereof, the utility companies shall refrain from billing such exempt user in accordance with this Section. If the Finance Director determines that the application is faulty or that the applicant has failed to truthfully set forth such facts, he may deny such application by giving written notice to the applicant. The applicant shall thereafter have the right to appeal the Finance Director's decision to the City Council within a ten (10) day period after the date of mailing of the rejection by the Finance Director; or in the alternate, the applicant may file an amended application for exemption for reprocessing.

(Added by Ord. 1506 adopted 7-16-74)

(a) An application for an exemption for the first full calendar year of 1975 shall be submitted to the Finance Director during the month of October, 1974, but not later than October 31, 1974. Exemptions so allowed shall commence from the first billing period following December 31, 1974, and shall continue until the close of the billing period following December 31, 1975.

(b) An application for any subsequent calendar year shall be submitted during the month of October preceding said calendar year, but not later than October 31, and shall be effective for the subsequent calendar year in the same manner as set forth in subsection (a) of this section.

(c) Applications for exemptions may be filed for the remaining portion of a calendar year, but such application shall be filed not later than the sixtieth day prior to the commencement date of the billing period for the affected utility companies for which the exemption is to commence and shall be valid through the remainder of that calendar year, as set forth in subsection (a) of this section.

(Added by Ord. 1506 adopted 7-16-74)

In the event no exemption is applied for all right to claim such exemption or refund for the period prior to the time an exemption is allowed and is to commence shall be considered to be void and extinguished permanently.

(Added by Ord 1506 adopted 7-16-74, amended by Ord. 1695 adopted 3-18-80)

The Director of Finance shall furnish the affected utility companies from time to time with a list of persons who are qualified for exemption from the imposition of utility users' tax under this Section.

The list will indicate:

(a) Service users continuing to qualify for exemption.

(b) Persons no longer qualified for exemption who had been previously exempt. This list will be the official determination by which the service supplier will provide exemption from the utility users' tax.

The list provided to the service supplier shall include the name, service address, billing address, and utility service.

Exemptions during the calendar year shall be forwarded to the affected utility companies forty-five (45) days and shall not be effective until the next complete billing period following said forty-five day period.

(Added by Ord. 1506 adopted 7-16-74, amended by Ord. 1695 adopted 3-18-80)

(a) Every person receiving payment of charges from a service user shall collect the amount of tax imposed by this Part from the service user.

(b) The tax shall be collected insofar as practicable at the same time as and along with the collection of charges made in accordance with the regular billing practice of the service supplier. If the amount paid by a service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid, unless the full amount of the charge is paid or the service user gives notice that he refuses to pay the tax.

(c) Where the remittance of taxes collected is based upon an estimated percentage collected of the total amount billed, the service supplier may submit a payment plan to the Tax Administrator for his approval.

(d) The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after September 1, 1970. Where a person receives more than one (1) billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period.

Each service supplier shall, on or before the twentieth of each month, make a return to the Tax Administrator on forms provided by him stating the amount of taxes billed by the service supplier during the preceding month. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. The Tax Administrator is authorized to require such further information as he deems necessary to properly determine if the tax here imposed is being levied and collected in accordance with this ordinance. Returns and remittances are due immediately upon cessation of business for any reason.

(a) Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this Part are delinquent.

(b) Penalties for delinquency in remittance of any tax collected shall attach and be paid by the person required to collect and remit at the rate of fifteen percent (15%) of the total tax collected.

(c) The Tax Administrator shall have power to impose additional penalties upon persons required to collect and remit taxes under the provisions of this ordinance for fraud or negligence in reporting or remitting at the rate of fifteen percent (15%) of the amount of the tax collected or as recomputed by the Tax Administrator.

(d) Every penalty imposed under the provisions of this Section shall become a part of the tax required to be remitted.

Any tax required to be paid by a service user under the provisions of this Part shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has not been remitted to the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this Part shall be liable to an action brought in the name of the City for the recovery of such amount.

Whenever a service user has failed to pay the amount of the tax for a period of two (2) or more billing periods, or whenever the Tax Administrator deems it in the best interest of the City, he may relieve the service supplier of the obligation to collect taxes due under this Part from certain named service users for specified billing periods. The Tax Administrator shall notify the service user that he has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier or, should the service user have changed his address, to his last known address. If a service user fails to remit the tax to the Tax Administrator within fifteen (15) days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent (25%) of the amount of the tax set forth in the notice shall be imposed, but not less than Five Dollars ($5.00). The penalty shall become part of the tax herein required to be paid.

It shall be the duty of every person required to collect and remit to the City any tax imposed by this Part to keep and preserve for a period of three (3) years all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times.

(a) Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Part, it may be refunded as provided in this Section.

(b) A person required to collect and remit taxes imposed under this Part may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Tax Administrator that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit.

(c) No refund shall be paid under the provisions of this Section unless the claimant establishes his right thereto by written records showing entitlement thereto.

(d) Notwithstanding other provisions of this Section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this Code on the amount of such refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this Code is repealed, the amounts of any refundable taxes will be borne by the City.

(Amended by Ord. 1826 adopted 1-21-86)

Unless specifically provided otherwise, any reference to a state or federal statute in this Part shall mean such statute as it may be amended from time to time, provided that such reference to a statute herein shall not include any subsequent amendment thereto, or to any subsequent change of interpretation thereto by a state or federal agency or court of law with the duty to interpret such law, to the extent that such amendment or change of interpretation would require voter approval under California law, or to the extent that such change would result in a tax decrease (as a result of excluding all or a part of any utility service, or charge therefor, from taxation). Only to the extent voter approval would otherwise be required or a tax decrease would result, the prior version of the statute (or interpretation) shall remain applicable; for any application or situation that would not require voter approval or would not result in a decrease of a tax, provisions of the amended statute (or new interpretation) shall be applicable to the maximum possible extent.

To the extent that the City's authorization to collect or impose any tax imposed under this Part is expanded or limited as a result of changes in state or federal law, no amendment or modification of this Part shall be required to conform the tax to those changes, and the tax shall be imposed and collected to the full extent of the authorization up to the full amount of the tax imposed under this Chapter.

(Ord. No. 2259, § 7, 6-9-2009)