Opinion Number ( 2005 )

Dear Mr. Speed:

You requested an opinion from the Attorney General regarding the implementation of a special tax on cigarette papers in Tangipahoa Parish, Louisiana pursuant to the provisions of Louisiana Revised Statute 33:2740.25 as amended by Act 853 of 2004. Specifically, you question whether a tax implemented pursuant to the provisions of R.S. 33:2740.25 needs to be approved by a majority vote of the electorate in Tangipahoa Parish, Louisiana. Please be advised as follows:

R.S. 33:2740.25 authorizes the governing authority of certain parishes to levy a tax of not more than one dollar and fifty cents per pack upon the sale at retail of cigarette papers. R.S.33:2740.25(D) was added by Act 853 of 2004 and provides as follows:

D. Subject to the provisions of Article VI, Section 29 of the Constitution of Louisiana, the governing authorities of Acadia Parish, Allen Parish, Assumption Parish, Avoyelles Parish, Beauregard Parish, Calcasieu Parish, Caldwell Parish, Cameron Parish, Catahoula Parish, Concordia Parish, Evangeline Parish, Franklin Parish, Grant Parish, Jefferson Parish, Jefferson Davis Parish, Lafayette Parish, Lafourche Parish, Lasalle Parish, Natchitoches Parish, Ouachita Parish, Plaquemines Parish, Rapides Parish, Red River Parish, Richland Parish, Sabine Parish, St. Bernard Parish, St. Landry Parish, St. Mary Parish, Tangipahoa Parish, Terrebonne Parish, Vermilion Parish, Vernon Parish, West Feliciana Parish, and Winn Parish and the governing authorities of the city of Alexandria and the city of Pineville may levy a tax of not more than one dollar and fifty cents per pack upon the sale at retail of cigarette papers in the parish and within each municipality. This tax shall not be levied on cigarette papers packaged with tobacco. This tax shall be in addition to any other sales tax levied by the state or any other taxing authority. In the event a tax on cigarette papers is levied by one or more of the governing authorities, all proceeds from the tax shall be dedicated in the following manner:

(1) Fifty cents of the tax collected on the sale of each pack of cigarette papers shall be dedicated to the sheriff of the parish to be used solely for the purpose of developing or continuing the Drug Abuse Resistance Education (D.A.R.E.) programs.

(2) The remaining one dollar collected on the sale of each pack of cigarette papers shall be used by the governing authority of the local governmental subdivision levying the tax for cooperative endeavors to benefit the youth of the respective local governmental subdivision.

R.S. 33:2740.25(D) specifically states that the imposition of the tax at issue is subject to La. Const. Art. VI, Sec. 29. Incidentally, any sales or use tax levied by a local governmental subdivision is subject to La. Const. Art. VI, Sec. 29. Art. VI, Sec. 29 authorizes local governmental subdivisions to levy sales, use and consumption taxes, but the rate of the tax cannot exceed three percent. Additional sales, use and consumption taxes may be imposed if authorized by the legislature and approved by a majority of the electors. See Circle Food Stores, Inc. v. City ofNew Orleans, 620 So. 2d 281, 283 (La. 1993) ("Although additional sales taxes are constitutionally authorized, municipalities may not impose a sales, use, or consumption tax in excess of three percent without legislative authorization and approval by a majority of the electors at an election for that purpose."). Seealso Reed v. City of New Orleans, 593 So. 2d 368, 370 (La. 1992) ("Additional sales and use taxes may be imposed if authorized by the legislature and approved by the electors.").

Accordingly, it is the opinion of this office that the implementation of a tax on cigarette papers in Tangipahoa Parish, pursuant to the provisions of R.S. 33:2740.25, must be approved by a majority vote of the electorate at an election for that purpose.

Trusting this adequately responds to your request, we remain

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

By: ______________________

KENNETH L. ROCHE, III Assistant Attorney General

CCF, JR./KLR, III;mjb