ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING LICENSE AND OCCUPATION TAXES. BECAUSE YOUR QUESTIONS MAY BE ANSWERED BY REFERENCE TO CONTROLLING STATUTES, CASE LAW, AND ATTORNEY GENERAL OPINIONS, THE ISSUANCE OF A FORMAL OPINION IS UNNECESSARY. THE DISCUSSION WHICH FOLLOWS IS, THEREFORE, NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL BUT REPRESENTS THE OPINION OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
YOUR LETTER OF MAY 4, 1993, ASKS THE FOLLOWING QUESTIONS:
1. IS AN INCORPORATED CITY OR TOWN PROHIBITED FROM ENACTING AN ORDINANCE IMPOSING A LICENSE OR OCCUPATION TAX ON BUSINESSES, OCCUPATIONS OR PROFESSIONS SUCH AS PHYSICIANS, LAWYERS AND ACCOUNTANTS?
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2. DOES THE PHRASE "MERCHANTS OF ALL KINDS" AS CONTAINED IN TITLE 11 Ohio St. 22-106(A) REFER TO ANYONE THAT SELLS ANY KIND OF PRODUCT?
AS TO QUESTION NUMBER 1, ATTORNEY GENERAL OPINION NO. 83-297 IS DISPOSITIVE. PHYSICIANS, LAWYERS AND ACCOUNTANTS ARE NOT SPECIFICALLY LISTED IN TITLE 11 Ohio St. 22-106(A) AND QUESTION NUMBER 1 WOULD THEREFORE BE ANSWERED IN THE AFFIRMATIVE. (A COPY OF A.G. OPIN. NO. 83-297 IS ENCLOSED FOR YOUR CONVENIENCE.)
AS TO QUESTION NUMBER 2, CASE LAW HAS DEFINED THE TERM "MERCHANT" NARROWLY TO INCLUDE ONLY THOSE WHO BUY TO SELL OR BUY AND SELL GOODS OR MERCHANDISE IN A STORE OR SHOP. MAGNOLIA PETROLEUM COMPANY V. CITY OF BROKEN BOW, 87 P.2D 319 (OKLA.1939). IN GRANTHAM V. CITY OF CHICKASHA, 9 P.2D 747 (OKLA.1932), THE TERM "MERCHANTS OF ALL KIND" WAS FURTHER DEFINED AS FOLLOWS:
"THIS EXPRESSION `MERCHANTS OF ALL KIND' MUST BE CONFINED WITHIN REASONABLE BOUNDS AND LIMITED TO THE USUAL GENERALLY ACCEPTED MEANING AND SCOPE OF THE LAW APPLICABLE TO THAT EXPRESSION AND BE FREE FROM DOUBTFUL INTERPRETATION."
EACH INDIVIDUAL SITUATION IS UNIQUE AND MUST BE ANALYZED INDIVIDUALLY. WHILE IT IS DIFFICULT TO FORMULATE A TEST THAT CAN BE USED IN ALL SITUATIONS AND THE ANALYSIS IS FACT SPECIFIC, IT IS MY OPINION THAT THE TERM "MERCHANTS OF ALL KINDS" MAY NOT BE READ TO REFER TO ANYONE WHO SELLS ANY KIND OF PRODUCT. WHETHER A PARTICULAR OCCUPATION OR PERSON IS A "MERCHANT" WITHIN THE MEANING OF 11 Ohio St. 22-106(A) DEPENDS UPON AN ANALYSIS OF A GREAT NUMBER OF FACTS AND CIRCUMSTANCES. A CITY OR TOWN WISHING TO ENACT A LICENSE TAX ON A PARTICULAR CATEGORY OF OCCUPATION MUST RELY ON ITS OWN LEGAL COUNSEL, WHO WILL BE RESPONSIBLE FOR DEFENDING ANY PROTEST OF SUCH A LICENSE TAX, IN DETERMINING WHO SHOULD BE TAXED.
(DOUGLAS F. PRICE)
