Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-713
of :
: January 5, 1998
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE KENNETH L. MADDY, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
In addition to its receipt of a designated portion of the Del Mar Track parimutuel
wagering handle, may the City of Del Mar impose an admissions tax on events held at the
Del Mar Fairgrounds that do not involve live horse racing or satellite wagering?
CONCLUSION
In addition to its receipt of a designated portion of the Del Mar Track parimutuel
wagering handle, the City of Del Mar may not impose an admissions tax on events held
at the Del Mar Fairgrounds that do not involve live horse racing or satellite wagering.
ANALYSIS
Since 1960 the City of Del Mar ("Del Mar") has imposed an admissions tax on
persons attending certain activities within the city. The party conducting the event is not
subject to the tax but is responsible for its collection and transmission to the city.
The question presented for resolution is whether Del Mar may impose an admissions
tax on events held at the Del Mar Fairgrounds ("Fairgrounds") that do not involve live
horse racing or satellite wagering when it has previously elected to receive a designated
portion of the Del Mar Track parimutuel wagering handle. We conclude that such an
election precludes the collection of an admissions tax with respect to the events in
question.
The 22nd District Agricultural Association ("Association") conducts the Del Mar
Fair in June and July and contracts with the Del Mar Thoroughbred Club, a California
corporation, to operate a separate horse racing meeting in July, August, and September.
The Association's staff operates a satellite wagering facility throughout the year. (See.
Bus. & Prof. Code, §§ 19400-19667; Food & Agr. Code, §§ 3801-4363.) Footnote No. 1
The Association also contracts with various organizations to conduct events at the
Fairgrounds, such as antique shows, art shows, and toy shows, again throughout the year.
The Association's property is located in Del Mar.
Three statutes require our analysis. Section 19610.3 provides:
"In addition to the amounts required or allowed to be deducted from the parimutuel
pools as provided by this chapter, and except as otherwise provided in this section, every
association that conducts a racing meeting may elect permanently to deduct an additional
amount up to 0.33 of 1 percent from the total parimutuel wagers within its inclosure. This
election is not available to the California Exposition and State Fair or to a county or
district agricultural association fair unless, prior to January 1, 1984, the city or county in
which the fair meeting was being conducted levied a license fee or excise tax pursuant to
Section 19495 or imposed an admission tax on track patrons.
"The amounts deducted pursuant to this section shall be retained by the association
or fair for the payment of possessory interest taxes, if any, assessed against the
organization described in Section 19608.2, the racing association, or fair, and after
payment of these taxes shall be distributed to the city in which the racing meeting is
conducted or, if the meeting is conducted outside the limits of any city, to the county in
which the racing meeting is conducted. If a city or county has elected by ordinance to
receive a distribution from a racing association under this section, it shall not at any time
thereafter assess or collect, with respect to an event conducted by that racing association,
or an event conducted by or by contract with that association or fair, any license or
excise tax or fee, including, but not limited to, any admission, parking, or business tax, or
any tax or fee levied solely upon the racing association conducting a racing meeting or
any racing patron, participant, service-supplier, promoter, or vendor thereof. Further, a
city or county electing to receive a distribution under this section shall continue to
provide ordinary and traditional municipal services, such as police services and traffic
control, in connection with racing meetings. `Ordinary and traditional services,' as used in
this section, means those services provided by the city or county at no charge to the
racing association in 1981. If an eligible city or county does not elect to receive a
distribution under this section, the amount remaining after payment of possessory interest
taxes, if any, as provided in this section shall be paid to the state as an additional license
fee." (Italics added.) Footnote No. 2
Section 19610.4 states:
"Notwithstanding Section 19610.3, any association that conducts a racing meeting
pursuant to Section 19549.3 or 19549.9, or any fair that operates a satellite wagering
facility, may elect to deduct an additional amount of 0.33 of 1 percent from the total
parimutuel wagers placed within its inclosure or at its satellite wagering facility.
"The amounts deducted pursuant to this section shall be retained by the association
or fair for the payment of possessory interest taxes, if any, assessed against the
organization described in Section 19608.2, the racing association, or fair, and after
payment of these taxes shall be distributed to the city or county in which the racing
meeting or wagering is conducted, at the option of the association or fair. If a city or
county has elected by ordinance to receive a distribution from a racing association or
fair under this section, it shall not at any time thereafter assess or collect, with respect to
an event conducted by that racing association or, an event conducted by or by contract
with that fair, any license or excise tax or fee, including, but not limited to, any admission,
parking, or business tax, or any tax or fee levied solely upon the racing association or
fair conducting a racing meeting or satellite wagering, or any patron, participant,
service-supplier, promoter, or vendor thereof. Further, a city or county electing to receive
a distribution under this section shall provide ordinary and traditional municipal services,
such as police services and traffic control, in connection with the racing meetings or
satellite wagering. If an eligible city or county does not elect to receive a distribution
under this section, the amount remaining after payment of possessory interest taxes, if
any, as provided in this section shall be paid to the state as an additional license fee."
(Italics added.) Footnote No. 3
Section 19610.6 provides:
"Notwithstanding Section 19605.71, and in lieu of any deduction under Section
19610.3 or 19610.4, the 22nd District Agricultural Association shall deduct an additional
amount of 0.33 of 1 percent from the total parimutuel wagers placed at its satellite
wagering facility.
"Forty percent of the amount deducted pursuant to this section shall be distributed to
the City of Del Mar and 40 percent shall be distributed to the City of Solana Beach, if the
respective city has elected to receive a distribution under this section. The remaining
amounts deducted pursuant to this section shall be distributed to the San Dieguito River
Valley Regional Open Space Park Joint Powers Authority, which is established for the
enhancement of the San Dieguito River Valley and Lagoon. If the San Dieguito River
Valley Regional Open Space Park Joint Powers Authority is dissolved, the distribution of
the remaining amounts deducted pursuant to this section shall be distributed to the
County of San Diego. If the City of Del Mar or the City of Solana Beach has elected by
ordinance to receive a distribution from a fair under this section, it shall not at any time
thereafter assess or collect, with respect to an event conducted by that fair, any license or
excise tax or fee, including, but not limited to, any admission, parking, or business tax, or
any tax or fee levied solely upon the fair conducting satellite wagering or any patron
thereof. Furthermore, a city electing to receive a distribution under this section shall
provide ordinary and traditional municipal services, such as police services and traffic
control, in connection with the satellite wagering. If an eligible city does not elect to
receive a distribution under this section, the amount deducted shall be paid to the state as
an additional license fee." (Italics added.) Footnote No. 4
We are not dealing here with whether Del Mar could impose an admissions tax on
events held at the Fairgrounds that do not involve live horse racing or satellite wagering.
(See The Pines v. City of Santa Monica (1981) 29 Cal. 3d 656; Weekes v. City of Oakland
(1978) 21 Cal. 3d 392; Oakland Raiders v. City of Berkeley (1976) 64 Cal. App. 3d 623;
Board of Trustees v. City of Los Angeles (1975) 49 Cal. App. 3d 45; Century Plaza Hotel
Co. v. Los Angeles (1970) 7 Cal. App. 3d 616; 68 Ops.Cal.Atty.Gen. 114 (1985); 31
Ops.Cal.Atty.Gen. 46 (1958); 15 Ops.Cal.Atty.Gen. 67 (1950).) Rather, Del Mar has
elected to receive the designated portion of the parimutuel wagering handle specified in
sections 19610.3 and 19610.6. As a consequence of these elections, is Del Mar precluded
from collecting the admissions tax in question?
Because Del Mar "has elected by ordinance to receive a distribution from a racing
association under" section 19610.3,
". . . it shall not at any time thereafter assess or collect, with respect to an event
conducted by that racing association, or an event conducted by or by contract with that
association or fair, any license or excise tax or fee, including, but not limited to, any
admission, parking, or business tax . . . ." (§ 19610.3.)
The Association constitutes a "fair" for purposes of section 19610.3, since the operation
of the Del Mar Fair is one of its primary functions. In this context, "fair" must mean a
district agricultural association that conducts a fair. Does the phrase "an event conducted
by that racing association, or an event conducted by or by contract with that association
or fair" require that the event take place during and in conjunction with the operation of a
horse racing meeting or fair in order to qualify under the terms of section 19610.3? We
have examined the legislative history of section 19610.3, particularly with respect to its
amendment in 1995 (Stats. 1995, ch. 959, § 3) which added the phrase "or an event
conducted by or by contract with that association or fair," and have found no such
limitation. Rather, the legislative committee reports refer to "any other taxes or fees that
might otherwise be assessed." Use of the indefinite article "an" in "an event" means any
event without limitation or qualification. We may not add the phrase "involving live
horse racing or satellite wagering" in the guise of statutory construction. (See Wells
Fargo Bank v. Superior Court (1991) 53 Cal. 3d 1082, 1097 ["a statute `. . . is to be
interpreted by the language in which it is written, and courts are no more at liberty to add
provisions to what is therein declared in definite language that they are to disregard any
of its express provisions'"].) Accordingly, no event conducted under contract with the
Association may be subject to an admissions tax by Del Mar.
Our analysis of section 19610.3 thus answers the question presented. In return for
receiving the specified distribution of the wagering proceeds under this statute, Del Mar
must forego imposing its own taxes and fees upon events operated by the Association or
conducted under contract with the Association. The choice is Del Mar's and may be made
in consideration of its best economic interests.
While section 19610.3 controls the distribution of wagering proceeds at the horse
racing meeting conducted on the Association's property, sections 19610.4 and 19610.6
control the distribution of wagering proceeds from the operations of a satellite wagering
facility. With respect to the satellite wagering facility on the Association's property, the
more recent and specific language of section 19610.6 controls over the more general
language of section 19610.4. (See Code Civ. Proc., § 1859; Woods v. Young (1991) 53
Cal. 3d 315, 325; Freemont Comp. Ins. Co. v. Superior Court (1996) 44 Cal. App. 4th 867,
873.) Hence, Del Mar receives only 40 percent of the special deduction rather than 100
percent. Both statutes have restrictions on imposing local taxes and fees similar to the
language of section 19610.3:
". . . If a city . . . has elected by ordinance to receive a distribution from a racing
association or fair under this section, it shall not at any time thereafter assess or collect,
with respect to an event conducted by that racing association or, an event conducted by or
by contract with that fair, any license or excise tax or fee, including, but not limited to,
any admission, parking, or business tax, . . ." (§ 19610.4.)
". . . If the City of Del Mar . . . has elected by ordinance to receive a distribution
from a fair under this section, it shall not at any time thereafter assess or collect, with
respect to an event conducted by that fair, any license or excise tax or fee, including, but
not limited to, any admission, parking, or business tax, . . ." (§ 19610.6.) Footnote No. 5
We conclude that in addition to its receipt of a designated portion of the Del Mar
Track parimutuel wagering handle, Del Mar may not impose an admissions tax on events
held at the Del Mar Fairgrounds that do not involve live horse racing or satellite wagering.
*****
Footnote No. 1
All references hereafter to the Business and Professions Code are by section number only.
Footnote No. 2
"Section 19495" generally prohibits the collection of a license tax, excise tax, or fee in excess of $100 per
racing day from the operator of a horse racing meeting. "The organization described in Section 19608.2" is
one that is formed by an association or fair to operate the audiovisual signal system for satellite wagering.
Footnote No. 3
Sections 19549.3 and 19549.9 authorize the allocation of additional racing days to certain county fairs in
the northern zone of the state and to the Los Angeles County Fair.
Footnote No. 4
Section 19605.71 prescribes the amounts and distribution of deductions from wagers at satellite wagering
facilities in the central and southern zones of the state.
Footnote No. 5
Since we find the language of section 19610.3 to be controlling with respect to the question presented, and
have found from the legislative histories of sections 19610.4 and 19610.6 that neither of the latter statutes
was intended to control the distribution of wagering proceeds from live horse racing meetings pursuant to
the provisions of section 19610.3, we need not analyze in detail the provisions of sections 19610.4 or
19610.6.