                                                                                       ACCEPTED
                                                                                  03-14-00660-CV
                                                                                          4513311
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             3/16/2015 2:30:04 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                       Cause No. 03-14-00660-CV

__________________________________________________________________
                                                        RECEIVED IN
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL     3rd COURT
                                                         REGIONOF APPEALS
                                                                      OF
                                                       AUSTIN, TEXAS
                              TEXAS                3/16/2015 2:30:04 PM
                                                     JEFFREY D. KYLE
__________________________________________________________________
                                                                Clerk

                   Craig Zgabay and Tammy Zgabay

                                   v.

                  NBRC Property Owners Association

__________________________________________________________________

    AMICUS BRIEF OF THE TEXAS CHAPTERS OF COMMUNITY
                    ASSOCIATIONS INSTITUTE
__________________________________________________________________

                                 Darryl W. Pruett
                                 Texas State Bar No. 00784795
                                 darryl@weichertlaw.com

                                 George V. Basham, III
                                 Texas State Bar No. 01868000
                                 george@weichertlaw.com

                                 Glenn K. Weichert
                                 State Bar No. 21076500
                                 glenn@weichertlaw.com

                                 The Weichert Law Firm
                                 3821 Juniper Trace, Suite 106
                                 Austin, Texas 78738
                                 (512) 263-2666
                                 (512) 263-2698 - Facsimile
                                 ATTORNEYS FOR AMICI CURIAE
                                                Table of Contents



Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Identity and Interest of Amicus Curiae ...................................................................... v
Issues Presented ...................................................................................................... vii
Summary of the Argument......................................................................................... 1
Argument.................................................................................................................... 5

    I. Short-Term Rentals Are Not A Residential Use ............................................ 5

         A. The Proper Interpretation of Restrictive Covenants ................................... 5
         B. Transient Rentals Are A Commercial Enterprise....................................... 7
         C. The Hotel Occupancy Tax Questionnaire ................................................ 18

    II. The Deleterious Effects Of Transient Rentals ............................................... 19
    III. Conclusion and Prayer ................................................................................... 21




                                                              ii
                                          Index of Authorities

Cases

Allstate Ins. Co. v. Sylvester, No. 07-00360, 2008 U.S.Dist. LEXIS 42386, at **16-
  20 (Dist. Hawaii May 21, 2008)……………………………………………… 17
Benard v. Humble,
   990 S.W.2d 929, 931 (Tex.App.—Beaumont 1999, pet. denied). ......... 2, 7, 8, 13
Cowling v. Colligan,
   312 S.W.2d 943 (Tex. 1958) .................................................................................7
Environmental Processing Sys., L.C. v. FPL Farming Ltd.,
   No. 12-0905, 2015 Tex. LEXIS 113, at *9 (Tex. Feb. 6, 2015)..........................10
Four Seahorses, LLC v. Spanish Grant Civic Ass'n, Sections 1 & 2, Inc.,
   Nos. 14-04-00638-CV, 14-04-00982-CV, 2005 Tex. App. LEXIS 9081 (Tex.
  App.—Houston [14th Dist.] Nov. 3, 2005, pet. denied). .......................................8
Friendswood Dev. Co. v. Smith-Sw. Indus., Inc.,
   576 S.W.2d 21, 29 (Tex. 1978). ..........................................................................10
Grain Dealers Mut. Ins. Co. v. McKee,
   943 S.W.2d 455 (Tex. 1997) .................................................................................5
Hagemann v. Worth,
   782 P.2d 1072 (Wash. Ct. App. 1989)...................................................................7
Hyatt v. Court,
   No. 2008-CA-01474-MR, 2009 Ky. App. Unpub. LEXIS 738, at *10-*11 (Ky.
  Ct. App. Aug. 28, 2009)........................................................................................17
Mills v. Bartlett,
   377 S.W.2d 636 (Tex. 1964) ...........................................................................8, 13
Munson v. Milton,
   948 S.W.2d 813 (Tex. App.—San Antonio 1997, pet. denied).............................6
Owens v. Ousey,
   241 S.W.3d 124, 129 (Tex. App.—Austin 2007, pet. denied) ..............................5
Pilarcik v. Emmons,
   966 S.W.2d 474 (Tex. 1998) .................................................................................5
Quinn v. Harris,
   No. 03-98-00117-CV, 1999 Tex.App. LEXIS 1576, at fn. 3 (Tex. App.—Austin
  March 11, 1999, pet. denied) (not designated for publication) ..............................6



                                                        iii
Reagan National Advertising of Austin, Inc. v. Capital Outdoors, Inc.,
   96 S.W.3d 490, 493 fn. 2 (Tex. App.—Austin 2002, vacated w/o ref. to merits
  and remanded for settlement) .................................................................................6
Southampton Civic Club v. Couch,
   322 S.W.2d 516 (Tex. 1959) ...................................................................... 8, 9, 12
Southampton Civic Club v. Foxworth,
   550 S.W.2d 152 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ denied n.r.e.) .9
Southland Royalty Co. v. Humble Oil & Ref. Co.,
   249 S.W.2d 914, 916 (Tex. 1952) .......................................................................10
Vonderhaar v. Lakeside Place Homeowners Assoc., Inc.,
   No. 2012-CA-002193-MR, 2014 Ky. App. Unpub. LEXIS 637, at *11 (Ky. Ct.
  App. Aug. 8, 2014) ...............................................................................................13
Wasson Interests, Ltd. v. City of Jacksonville,
   No. 12-13-00262-CV, 2014 Tex. App. LEXIS 7377 (Tex. App.—Tyler July 9,
  2014, pet. filed) (mem. op.) ..................................................................................18
Wein v. Jenkins,
   No. 03-04-00568-CV, 2005 Tex.App. LEXIS 7477 (Tex. App.—Austin Sept. 9,
  2005, no pet.) (mem. op.)............................................... 1, 7, 10, 11, 12, 14, 15, 16


Statutes

TEX. PROP. CODE § 202.002. ..................................................................................1, 5
TEX. PROP. CODE § 202.004 .......................................................................................6
TEX. TAX CODE § 156.001 ...................................................................................3, 15
TEX. TAX CODE § 156.101 ...................................................................................3, 15


Other Authorities

ATTORNEY GENERAL OPINION NO. WW-182 (1960)…..……………………3, 16, 17
MERRIAM-WEBSTER ONLINE DICTIONARY .................................................................8




                                                         iv
                  IDENTITY AND INTEREST OF AMICUS CURIAE

          This brief is filed on behalf of the Texas chapters of the Community

Associations Institute (“CAI”), which is an international organization. CAI has

four chapters in Texas—Austin, Dallas/Fort Worth, Greater Houston and San

Antonio. The cost for preparation of this brief is being borne solely by these

chapters.       There are more than 5 million people living in the 25,000-30,000

community associations in the State of Texas.1 CAI serves its members by

providing information and education, connecting communities with service

providers, and advocating on behalf of those neighborhoods.              CAI helps

communities to protect their property values, preserve the character of the

communities, and meet the expectations of their residents. CAI submits this brief

to address the following central issue: Whether an owner’s transient rental of his or

her residence violates the community’s single-family residential use restrictions.

          One of the most important benefits offered to residents by their community

association is the preservation of the characteristics and qualities of the

community. And the most important attribute for the vast majority of communities

is their residential character. Like zoning laws, the restrictive covenants for many

communities contain provisions which attempt to restrict the use of property for

purposes that are believed to be incompatible with the character of the community.

1
    http://www.txcaa.org/facts-about-poas



                                            v
Having an owner utilize his or her property for commercial purposes can be

extremely detrimental to the community. Commercial uses can attract customers

and clients to the community, increase traffic and parking on the community’s

roads, and create other nuisance issues such as noise and odors. All these issues

can detract from the residential nature of a community.

      Transient rentals can present their own set of additional issues for the

community. Non-resident owners sometimes fail to exercise the same level of care

and concern for their properties as that of resident owners. Transient renters have

little incentive to care for the property or behave neighborly toward homeowners

and resident families.    An inattentive owner may lease the property without

discretion, attracting criminals and other unsavory characters to the community,

and potentially endangering the health, safety and welfare of residents.

      Without the ability to regulate commercial activity within a community,

community associations are wholly unable to protect the residential character of

the community, which is deleterious to property values. The outcome of this case

critically impacts the interests of the above-described CAI constituents.




                                         vi
                           ISSUES PRESENTED

I.     Transient Rentals Are Not A Residential Use

       A.   The Proper Interpretation Of Restrictive Covenants

       B.   Transient Rentals Are A Commercial Enterprise

       C.   The Hotel Occupancy Tax Questionnaire

II.    The Deleterious Effects On Neighborhoods Of Short-Term Rentals

III.   Conclusion and Prayer




                                      vii
                       SUMMARY OF THE ARGUMENT

      Restrictive covenants are unambiguous if they can be given a definite or

certain legal meaning. They are only ambiguous if they are susceptible to more

than one reasonable interpretation. The primary concern for a court in interpreting

restrictive covenants is to ascertain and then give effect to the intention of the

parties as expressed in the instrument. By statute, a restrictive covenant must be

liberally construed to give effect to its purposes and intent. TEX. PROP. CODE §

202.002.    Given that neither party here contends that the Restrictions are

ambiguous, the Court need not strictly construe the Restrictions.

      Transient rentals are a non-residential use of property. Property that is

restricted to single-family residential purposes cannot be used for transient rentals

because: (a) such rentals are a commercial use of the property; and (b) the

transients do not have any intent to remain, and thus their use of the property is not

residential. Business is the antonym or opposite of residential. Engaging in

transient rentals and otherwise operating restricted property as a business in the

nature of a hotel is a prohibited business or commercial use. Wein v. Jenkins, No.

03-04-00568-CV, 2005 Tex. App. LEXIS 7477 (Tex. App.—Austin Sept. 9, 2005,

no pet.) (mem. op.) Using restricted property for weekend rentals is “more aptly

described as temporary, or for retreat purposes, or transient housing, rather than for




                                          1
residential purposes.” Benard v. Humble, 990 S.W.2d 929, 931 (Tex. App.—

Beaumont 1999, pet. denied).

      The single-family residential-purposes restriction here restricts the use of the

house, not merely the consanguinity of the renters. The argument that any use of

the house by a single family is per se residential is groundless, as that would mean

any rental of a hotel room for any length of time, even by the hour, would also be

residential.

      Appellants’ proposed interpretation should be rejected for numerous reasons.

This Court has never adopted such a strained reading of a single-family residential

restriction. This Court has actually held one individual in contempt for violating a

permanent injunction prohibiting him from operating his transient rental business

when he rented the entire house for a family reunion weekend (and therefore

presumably to a single family). Appellants’ interpretation would allow rentals

with no durational constraints, in direct contradiction to Texas law interpreting a

“residential” use to require physical presence and an intent to remain, which a

transient tenant does not have. Appellants do not offer any principled reason why

their presence or absence from the house while it is rented for transient purposes

makes any difference. The consanguinity of the renters and whether the owner is

present may affect whether the rental violates the “single family” restriction, but

they have no relevance to determining whether the rental is a residential use. The



                                          2
relevant nature of a hotel is not that it might limit rentals to unrelated individuals or

that the owner or manager is off-site. The relevant nature of a hotel is that it is a

place for transient stays.

      As a matter of state law, a transient rental of a house means that such house

is a “hotel” for purposes of collecting the hotel occupancy tax. See TEX. TAX

CODE § 156.001 (“In this chapter, ‘hotel’ means a building in which members of

the public obtain sleeping accommodations for consideration. The term includes a

hotel, motel, tourist home, tourist house, tourist court, lodging house, inn, rooming

house, or bed and breakfast . . .”). The hotel occupancy tax is imposed on transient

renters, and is not imposed on renters who rent for at least a 30 day term. See TEX.

TAX CODE § 156.101 (tax is not imposed on “a person who has the right to use or

possess a room in a hotel for at least 30 consecutive days . . .”). These Tax Code

provisions evidence Texas public policy regarding transient rentals—such rentals

are “in the nature of a hotel,” regardless of the consanguinity of the renters.

      Moreover, the Texas Attorney General has recognized that transient rental of

property “is an enterprise that is commercial in nature.” Tex. Att’y Gen. Op. No.

WW-821 (1960), at fn. 1. Therefore, when the Restrictions were adopted, the

declarant could not have intended “single family residential purposes” to include

transient rentals of residential property because transient rentals of less than 30




                                            3
days (the rentals subject to the hotel occupancy tax) were considered to be “an

enterprise that is commercial in nature.”

      The Hotel Occupancy Tax Questionnaire makes clear that transient rentals

are a business in the nature of a hotel.

      Transient rentals have a deleterious effect on neighborhoods. The problems

relate to the transient nature of the occupancy, not to the lack of consanguinity of

the renters. One way of keeping these commercial businesses from infiltrating

single-family residential zones is simply to enforce the restrictive covenants as

written, and find—consistent with Texas law—that transient rentals are a

commercial, or at least non-residential, use.

      Many municipal governments have chosen to regulate these transient-rental

businesses. The City of Austin, for example, limits the density of non-owner

occupied transient rentals so as to preserve the residential character of its

neighborhoods.

      Transient rentals operate in a defined marketplace for their commercial

services and many times operate outside the rules. Moreover, they undermine

neighborhoods.




                                            4
                                  ARGUMENT

I.    Short-Term Rentals Are Not A Residential Use

      A.     The Proper Interpretation Of Restrictive Covenants

      The Declaration of Covenants, Conditions and Restrictions River Chase Unit

Three (“Restrictions”), in the Section entitled “Use Restrictions,” restricts the

Zgabays’ use of their property to “single family residential purposes.” Clerk’s

Record (“CR”) 70.      Restrictive covenants are interpreted in accordance with

general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478

(Tex. 1998). Like a contract, covenants are “unambiguous as a matter of law if

[they] can be given a definite or certain legal meaning.” Id. (citing Grain Dealers

Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997)).            Covenants are

ambiguous only if they are susceptible to more than one reasonable interpretation.

Id. The primary concern “is to ascertain and give effect to the true intention of the

parties as expressed in the instrument.” Owens v. Ousey, 241 S.W.3d 124, 129

(Tex. App.—Austin 2007, pet. denied). By statute, a restrictive covenant must be

liberally construed to give effect to its purposes and intent. TEX. PROP. CODE §

202.002. Moreover, an exercise of discretionary authority by a property owners’

association concerning a restrictive covenant is presumed reasonable unless the

court determines by a preponderance of the evidence that the exercise of




                                          5
discretionary authority was arbitrary, capricious, or discriminatory. TEX. PROP.

CODE § 202.004.

        Restrictive covenants should therefore be liberally construed to determine

the framers’ intent, and only if there is any ambiguity as to that intent should the

covenant be strictly construed. See Munson v. Milton, 948 S.W.2d 813, 816 (Tex.

App.—San Antonio 1997, pet. denied). This is the standard used by this Court in

interpreting restrictive covenants. Quinn v. Harris, No. 03-98-00117-CV, 1999

Tex. App. LEXIS 1576, at fn. 3 (Tex. App.—Austin March 11, 1999, pet. denied)

(not designated for publication) (“The Fourth Court of Appeals [in Munson] has

employed both [section 202.003(a)’s liberal and the common law’s strict]

standards to review a restrictive covenant, finding that the covenant should be

liberally construed to determine the framers’ intent, and if there is any ambiguity

as to that intent, the covenant should then be strictly construed in favor of the free

and unrestricted use of the premises. We believe the Fourth Court of Appeals has

found the proper balance between the two standards that does not conflict with

precedent or the Texas Property Code.”).2


2
  While this Court subsequently held that the statute “does not conflict with the longstanding common-
law rule that if there is ambiguity or doubt as to the drafter’s intent, a covenant is to be strictly construed
against the party seeking to enforce it and in favor of the free and unrestricted use of land”, See Reagan
National Advertising of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W.3d 490, 493 fn. 2 (Tex. App.—
Austin 2002, vacated w/o ref. to merits and remanded for settlement), it cited Munson for that proposition.
Therefore, the currently applicable rule appears to be the same as that articulated by the Munson court and
by the Third Court of Appeals in the Quinn case. That is, restrictive covenants are to be strictly construed
if there is any ambiguity, but in determining whether there is any ambiguity in the first instance the
restrictive covenants are to be liberally construed to give effect to their purposes and intent.


                                                      6
      Significantly, neither party here contends that the Restrictions are

ambiguous. This Court should affirm the granting of the injunction against the

Zgabays because their short-term rentals are not a single family residential

purpose.

      B.      Transient Rentals Are A Commercial Enterprise

      A residential-use restriction prohibits business or commercial use on the

restricted property. Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958) (rendering

judgment that covenant restricting use to residence purposes prohibited use of the

tract for business and commercial purposes). “The term business is the antonym of

residential and to provide residence to paying customers is not synonymous with a

residential   purpose.”     Hagemann      v.   Worth,    782    P.2d   1072,   1075

(Wash. Ct. App. 1989) (affirming injunction against use of residentially restricted

property as an elder care home). This Court has similarly recognized that engaging

in transient rentals and otherwise operating restricted property as a business in the

nature of a hotel is a prohibited business or commercial use. Wein v. Jenkins, No.

03-04-00568-CV, 2005 Tex.App. LEXIS 7477 (Tex. App.—Austin Sept. 9, 2005,

no pet.) (mem. op.). Moreover, weekend rentals are “more aptly described as

temporary, or for retreat purposes, or transient housing, rather than for residential

purposes.” Benard, 990 S.W.2d at 931-32. Transients never establish a residence




                                          7
because they do not have any intent to remain. Id. at 932 (quoting from and citing

Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964)).3

        “Commercial” means “of or relating to commerce.” MERRIAM-WEBSTER

ONLINE      DICTIONARY,         http://www.merriam-webster.com/dictionary/commercial

(last visited March 13, 2015). “Commerce” means simply “activities that relate to

the buying and selling of goods and services.”                      MERRIAM-WEBSTER ONLINE

DICTIONARY, http://www.merriam-webster.com/dictionary/commerce (last visited

March 13, 2015).

        In accord with this understanding of the prohibition on commercial uses, the

Texas Supreme Court held more than fifty years ago that residentially-restricted

property could not be used primarily for financial gain. In Southampton Civic

Club v. Couch, 322 S.W.2d 516 (Tex. 1959), the Texas Supreme Court held that if

an owner of residentially restricted property is: (a) operating a rooming or boarding

house on his premises as a business; or (b) is using an establishment on his

premises, separate and apart from his dwelling house, for renting as a source of

financial gain; or (c) is renting space to others in his dwelling house as a separate

housekeeping unit; or (d) is using his dwelling house primarily as a source of

financial gain rather than as a residence for himself and his family and domestic

3
  In a subsequent case, the County Court at Law No. 3. Galveston County, Texas, enjoined transient
rentals because the property was restricted to single family residential purposes. Four Seahorses, LLC v.
Spanish Grant Civic Ass'n, Sections 1 & 2, Inc., Nos. 14-04-00638-CV, 14-04-00982-CV, 2005 Tex.
App. LEXIS 9081 (Tex. App.—Houston [14th Dist.] Nov. 3, 2005, pet. denied).



                                                   8
servants, that activity should be enjoined.                      Couch, 322 S.W.2d at 520.4

Significantly, the Texas Supreme Court did not declare that any of these uses were

more violative of the restriction than any other. They were simply equivalent

commercial uses of the property that were prohibited by a single-family residential

use restriction.

        The “financial gain” referenced by the Texas Supreme Court need not be

through any formal business entity, nor need it be significant to qualify such use as

a prohibited commercial use. In Southampton Civic Club v. Foxworth, 550 S.W.2d

152 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ denied n.r.e.), the court

enjoined the rental of residentially-restricted property. It rebuffed the defendants’

argument that they were not making any profit on the rentals, holding that “[t]he

fact that the Foxworths used each month’s rental for residential maintenance does

not alter the fact that this income was a source of financial gain.” Foxworth, 550

S.W.2d at 153. The Zgabays do not reside at the property and are using the

property primarily for financial gain. This is and has been a prohibited non-

residential or commercial use under Texas law for more than half a century.

        It is important to apply these decisions to the transient rentals at issue.

According to the Texas Supreme Court, it “adhere[s] to prior decisions that have

established rules relating to property rights unless, or until, the Legislature
4
 The Court did find that uses that were merely incidental to the owner’s use of the property as a residence
for the owner and his family were allowed. Couch, 322 S.W.2d at 520.



                                                    9
modifies those rules.” Environmental Processing Sys., L.C. v. FPL Farming Ltd.,

No. 12-0905, 2015 Tex. LEXIS 113, at *9 (Tex. Feb. 6, 2015). This is because the

“doctrine of stare decisis has been and should be strictly followed by [the Texas

Supreme Court] in cases involving established rules of property rights.”

Friendswood Dev. Co. v. Smith-Sw. Indus., Inc., 576 S.W.2d 21, 29 (Tex. 1978).

This is so, “even though good reasons might be given for a different holding.”

Southland Royalty Co. v. Humble Oil & Ref. Co., 249 S.W.2d 914, 916 (Tex. 1952)

(citations omitted). Thus, the fact that someone has created a new income stream

from selling a particular service (whole-house rentals for transient stays) does not

mean that the single-family residential purposes restriction does not apply to that

new operation.

      Moreover, the restriction is clear and unambiguous. In Wein, this Court

affirmed a Travis County district court’s entry of a permanent injunction

prohibiting operation of a bed and breakfast on a lot that was restricted to “single-

family, private residential purposes.” Wein, 2005 Tex.App. LEXIS 7477, at *1-*2.

The court affirmed the trial court’s determination that use of the property for a

“bed & breakfast,” for a “commercial business in the nature of a hotel,” or for a

“venue for parties, business meetings, or retreats” was a business use, and therefore

violated the provision restricting use of the property to “single-family, private

residential purposes.” Wein, 2005 Tex.App. LEXIS 7477, at *7-*8. The court



                                         10
stated that the trial court’s determination was “consistent with both the plain

language and the underlying purpose of the Lot Use Restriction as it existed at the

time the injunction was issued.” Wein, 2005 Tex.App. LEXIS 7477, at *7-*8. In

other words, the term “single-family, private residential purposes” was

unambiguous and prohibited using the property for a “bed & breakfast,” for a

“commercial business in the nature of a hotel,” or for a “venue for parties, business

meetings, or retreats.”

      There is no significant difference between the restrictive language in the

Wein case and the present one (“single-family, private residential purposes” versus

“single family residential purposes”).      Here, the restriction to “single family

residential purposes” prohibits commercial or business uses, including, but not

limited to, using the property as a “bed & breakfast,” as “a commercial business in

the nature of a hotel,” or as a “venue for parties, business meetings, or retreats.”

      The Zgabays contend that the “single family residential purposes” restriction

only prohibits multiple families staying in the same building. The Court should

reject the Zgabays’ interpretation for the following reasons.

      First, the Zgabays’ interpretation does not give effect to the term

“residential.” The restriction at issue is not simply and solely a restriction that only

a single family at a time can occupy the house. The use of the house must be

residential, rather than non-residential. The Zgabays’ interpretation is that any use



                                          11
of the house by a single family is per se residential. The Zgabays argue that using

the house for activities such as brushing one’s teeth and sleeping makes the use

residential. If that were the case, any rental of a hotel room for any length of time,

even by the hour, would also be residential. The Zgabays’ interpretation is simply

untenable.

      Second, this Court has never adopted such a strained reading of a single-

family residential use restriction. This Court, in an ancillary order in Wein, found

the homeowner to be in contempt of the injunction prohibiting him from operating

his transient rental business when he rented the entire house for a family reunion

weekend. See Contempt Order, attached hereto in the Appendix. According to this

Court’s rationale, renting an entire house for a family reunion (and therefore

presumably solely to members of a single family) constitutes using the property for

a business or commercial, not residential, purpose. This rationale is consistent

with the Texas Supreme Court’s holding in Southampton Civic Club v. Couch, 322

S.W.2d 516 (Tex. 1959). Nothing in this Court’s opinion in Wein nor in its

contempt order suggests that the injunction against Mr. Wein impliedly authorized

transient rentals so long as the rental was to a single family.

      Third, the Zgabays’ interpretation would allow rentals with no durational

constraints, in direct contradiction to Texas law interpreting a “residential” use to

require physical presence and an intent to remain—which a transient tenant does



                                           12
not have. Benard, 990 S.W.2d at 932 (quoting from and citing Mills v. Bartlett,

377 S.W.2d 636, 637 (Tex. 1964)). Again, the Zgabays argue that doing things

such as brushing one’s teeth and sleeping, for whatever amount of time,

necessarily means that you are using that location (whether it be a house, a hotel,

or other lodging) for residential purposes.                 The Zgabays’ argument is simply

wrong. While there may be many things that people can do in a house they rent

only for a weekend getaway, “it is not what the individuals do to occupy their time

while on the property that is forbidden; it is the fact that the property is being held

out for remuneration in much the same manner as a hotel or motel.” Vonderhaar v.

Lakeside Place Homeowners Assoc., Inc., No. 2012-CA-002193-MR, 2014 Ky.

App. Unpub. LEXIS 637, at *11 (Ky. Ct. App. Aug. 8, 2014).5

        Fourth, the Zgabays offer no principled reason why their presence or

absence from the house while it is rented for transient purposes makes any

difference. The Zgabays’ position is that the “single family residential purposes”

restriction only applies if the Zgabays are present in the house along with their

renters. The Zgabays concede that the restriction prohibits them from renting

Bedroom A in the house to a student and Bedroom B in the house to another,

unrelated, person. The Zgabays contend, however, that the far more commercially


5
  Unpublished opinions of Kentucky appellate courts may be cited, per Kentucky Rule of Civil Procedure
76.28(4)(c), “for consideration by the court if there is no published opinion that would adequately address
the issue before the court.” Ky. R. Civ. P. 76.28(4)(c). A copy of the opinion is attached in the appendix.
.


                                                    13
intensive act of moving completely out of the house, not using it as their residence,

and renting the entire house for transient stays for financial gain are somehow not a

commercial use of the property. Whether the use is residential or commercial does

not turn on whether the Zgabays are present during the rental. Their presence or

absence during the rental simply has nothing to do with determining whether the

Zgabays’ transient rentals are single-family residential purposes. Again, nothing in

this Court’s opinion in Wein nor in this Court’s contempt order suggests that the

result in the case depended upon whether Mr. Wein was renting to more than a

single family or whether he was also present at the house along with the renters.

      Fifth, the consanguinity of the renters and whether the owner is present may

affect whether the rental violates the “single family” restriction, but they have no

relevance to determining whether the rental is a residential use. The single-family

residential purposes restriction does not allow non-residential or transient rentals,

regardless of whether the tenants are a single family or a group of college buddies,

and regardless of whether the owner stays in the house or is absent. This court has

made clear that operating restricted property as a business in the nature of a hotel

is a prohibited business or commercial use. Wein, 2005 Tex. App. LEXIS 7477.

The relevant nature of a hotel is not that it might limit rentals to unrelated

individuals. There are often times that entire hotels or lodging establishments are

fully rented by a single family (for reunions, weddings, etc.). The relevant nature



                                         14
of a hotel is not that the owner or manager is off-site (there are numerous examples

of hotel owners or managers who also live at the establishment). The relevant

nature of a hotel is that it is a place for transient stays. The fact that a single family

is staying at the hotel does not change the relevant nature of the hotel, because the

consanguinity of the renters does not affect the basic nature of what a hotel is.

      In any event, this Court made clear in Wein that a single-family residential

use restriction prohibits not only using the restricted property as an actual hotel,

but operating it as a business “in the nature of a hotel.” Wein, 2005 Tex. App.

LEXIS 7477 (emphasis added). This Court should hold that the Zgabays’ transient

rentals are, at the very least, “in the nature of a hotel” and therefore prohibited by

the restriction limiting use of the property to “single family residential purposes.”

      As a matter of state law, a transient rental of a house means that such house

is a “hotel” for purposes of collecting the hotel occupancy tax. See TEX. TAX

CODE § 156.001 (“In this chapter, ‘hotel’ means a building in which members of

the public obtain sleeping accommodations for consideration. The term includes a

hotel, motel, tourist home, tourist house, tourist court, lodging house, inn, rooming

house, or bed and breakfast . . . .”). The hotel occupancy tax is imposed on

transient renters, and is not imposed on renters who rent for at least a 30 day term.

See TEX. TAX CODE § 156.101 (tax is not imposed on “a person who has the right

to use or possess a room in a hotel for at least 30 consecutive days . . . .”). These



                                           15
Tax Code provisions evidence Texas public policy regarding transient rentals—

such rentals are “in the nature of a hotel,” regardless of the consanguinity of the

renters.

      Moreover, immediately after passage of the first hotel occupancy tax, the

Texas Attorney General recognized that transient rental of property “is an

enterprise that is commercial in nature.”      Tex. Att’y Gen. Op. No. WW-821

(1960), at fn. 1 (courtesy copy attached hereto in the Appendix). That opinion

dealt specifically with the hotel occupancy tax, and was in response to a question

whether the State Parks Board was a “person” required to collect the tax for its

transient cabin rentals. In order to determine whether the State was a “person”

required to collect the tax, Attorney General Will Wilson had to determine the

exact nature of the activity in question (transient rentals). Specifically, Attorney

General Wilson had to determine whether “the sovereign entity involved is acting

not in its sovereign capacity but rather is engaging in commercial and business

transactions such as other persons, natural or artificial, are accustomed to conduct .

. . .” Id. He noted in regard to the transient rentals: “Though the renting of cabins

in this case may, perhaps, be a non-profit activity, or designed to foster the

esthetic, it nevertheless is an enterprise that is commercial in nature.” Id. He

concluded that the State was a “person” and was required to collect the Hotel

Occupancy Tax assessed on its transient renters specifically and precisely because



                                          16
the State was engaging in an enterprise (transient rentals) that was commercial in

nature. Id.; See also Hyatt v. Court, No. 2008-CA-01474-MR, 2009 Ky. App.

Unpub. LEXIS 738, at *10-*11 (Ky. Ct. App. Aug. 28, 2009) (being required to

pay the same taxes as is required of motels and hotels “only emphasizes the

business-related nature” of transient rentals).6

          Therefore, when the Restrictions were adopted in 1999, the declarant could

not have intended “single family residential purposes” to include transient rentals

of residential property because transient rentals subject to the hotel occupancy tax

were considered to be “an enterprise that is commercial in nature.”7 See also

Wasson Interests, Ltd. v. City of Jacksonville, No. 12-13-00262-CV, 2014 Tex.

App. LEXIS 7377 (Tex. App.—Tyler July 9, 2014, pet. filed) (mem. op.) (lease

limited use of the property to residential use only; City terminated lease when

lessee engaged in transient rentals).8



6
    See fn. 5, supra. A copy of the opinion is attached in the Appendix.
7
  One of the largest players in the transient rental industry (what they term the “vacation rental industry”)
concedes that transient rentals are commercial activity. HomeAway, Inc., states in its latest annual report
(10-K, Part I, Item I) that HomeAway, Inc. and its subsidiaries operate “the world’s largest online
marketplace               for              the             vacation             rental             industry.”
https://www.sec.gov/Archives/edgar/data/1366684/000119312515062554/d846217d10k.htm.                 Needless
to say, a marketplace presumes commerce. The Zgabays’ transient rentals are a part of that market and
are a commercial, or at least non-residential, use of the property.
8
  Transient renting is also typically excluded from coverage under a homeowners policy through the
exclusion of “business pursuits.” Allstate Ins. Co. v. Sylvester, No. 07-00360, 2008 U.S.Dist. LEXIS
42386, at **16-20 (Dist. Hawaii May 21, 2008)(granting summary judgment to insurer that “business
use” exclusion applied when the property was rented by owners to transient renters as part of a vacation
rental business).


                                                      17
         C.    The Hotel Occupancy Tax Questionnaire

         The Hotel Occupancy Tax Questionnaire makes clear that transient rentals

are a business in the nature of a hotel. A person seeking to engage in transient

rentals must represent to the State:

         a.    the person’s “principal type of business”;
         b.    the person’s “business location name and address”;
         c.    whether the person’s “business” is located within city limits;
         d.    the nature of the person’s “business activities for [the] location”; and
         e.    the “date of the first business operation in the above location that is
               subject to hotel occupancy tax.”

Form AP-102, Texas Questionnaire for Hotel Occupancy Tax (attached hereto in

the Appendix). There is simply nowhere on the form for the person engaging in

transient rentals to dispute the State’s characterization of those transactions as

constituting a “business.” And, again, the statute defines such transient rental

house as a “hotel.” The transient-rental business is at least “in the nature of” a

hotel.

         The State also requires each person seeking to engage in transient rentals to

classify that transient-rental business activity by stating the North American

Industry Classification System (“NAICS”) number applicable to their transient-

rental business.     See Form AP-102, Item 12.        The North American Industry

Classification System “is the standard used by Federal statistical agencies in

classifying business establishments for the purpose of collecting, analyzing, and

publishing statistical data related to the U.S. business economy.” UNITED STATES

                                           18
CENSUS BUREAU, http://www.census.gov/eos/www/naics/ (last visited March 13,

2015). Given that the Questionnaire relates solely to transient-rental activities, it

becomes clear that the State of Texas recognizes transient rentals of single-family

residences to be commercial activity that may be classified using the NAICS. The

NAICS number for transient rentals of single-family dwellings is 721199 (“All

Other          Traveler          Accommodation”).                     SICCODE.COM,

http://siccode.com/en/naicscodes/721199/all-other-traveler-accommodation          (Last

visited March 13, 2015). In contrast, the NAICS number for residential rentals is

531110.      SICCODE.COM, http://siccode.com/en/naicscodes/531110/lessors-of-

residential-buildings-and-dwelling#tab-pane-group_naicscode_product-element

(Last visited March 13, 2015).

II.     The Deleterious Effects Of Transient Rentals

        Transient rentals have a deleterious effect on neighborhoods. Some of the

most egregious examples are homes that are purchased by investors, never lived in

by the investor, and simply rented out to a steady stream of different weekend

transient renters.   When Asheville, North Carolina, was looking at regulating

transient rentals, they discovered numerous deleterious effects of such transient

rentals, such as transients’ intensity of activities such as car trips, late-night noise

and light, and trash generation; the fact that transient rentals tend to attract large

numbers of people, either requiring paved yards or creating parking shortages in



                                          19
the area; and potentially leading to escalation in area home prices, which may

encourage speculative investors to purchase properties while creating conditions

that are inhospitable to permanent residents.9                      These problems relate to the

transient nature of the occupancy, not to the lack of consanguinity of the renters.

        Many municipal governments have chosen to regulate these transient rental

businesses. One example is the City of Austin, Texas. In order to preserve the

residential character of their neighborhoods, the City of Austin limits non-owner

occupied transient rentals such as the Zgabays to no more than 3% of the single-

family, detached residential units within the census tract of the property. CITY OF

AUSTIN CODE § 25-2-791(C)(3).10

        One way of keeping these commercial businesses from infiltrating single-

family residential zones is simply to enforce the restrictive covenants as written,

and find, consistent with Texas law, that transient rentals are a commercial, or at

least non-residential, use.


9
 http://www.ashevillenc.gov/Portals/0/city-
documents/cityclerk/mayor_and_citycouncil/boards_and_commissions/planning_and_zoning/PAS%20Re
search%20Response.pdf (last visited March 13, 2015).
10
  Found at
https://www.municode.com/library/tx/austin/codes/code_of_ordinances?nodeId=TIT25LADE_CH25-
2ZO_SUBCHAPTER_CUSDERE_ART4ADRECEUS_SPCRESHRMREUS_S25-2-791LIRE (last
visited March 16, 2015). Many times, however, government regulation of these commercial businesses
are simply ignored. A simple Google search for “Austin short-term rental ordinance” (without the quotes)
shows the fourth result is “5 Ways to Beat Austin’s Short Term Rental Licensing Ordinance.” That web
page, http://republicofaustin.com/2013/02/19/5-ways-to-beat-austins-short-term-rental-licensing-
ordinance-during-sxsw/ (last visited March 9, 2015), advises transient rental owners to “hide your home”
and not allow the street view of your unlicensed transient rental listing so as to make it harder for the City
of Austin to uncover that illegal activity.


                                                     20
III.   Conclusion and Prayer

       Transient rentals operate in a defined marketplace for their commercial

services and many times operate outside the rules. Moreover, they undermine

neighborhoods.    A single family residential purposes use restriction prohibits

transient rentals because such rentals are either commercial activity, which is the

opposite of residential, or because the transient nature of the rentals are more aptly

described as temporary, or for retreat purposes, or transient housing, rather than for

residential purposes. In any event, what the Zgabays are doing is using their

residentially-restricted property primarily for financial gain, which the Texas

Supreme Court has determined violates a residential use restriction. This Court

should confirm the common sense understanding of single family residential

purposes—it prohibits transient rentals. Because transient rentals are not a single

family residential purpose, but are a commercial use in the nature of a hotel, the

trial court’s judgment should be affirmed.




                                          21
                                      Respectfully submitted,


                                      The Weichert Law Firm
                                      3821 Juniper Trace, Suite 106
                                      Austin, Texas 78738
                                      (512) 263-2666
                                      (512) 263-2698 - Facsimile


                                By:           /s/ Darryl W. Pruett

                                              Darryl W. Pruett
                                              Texas State Bar No. 00784795
                                              darryl@weichertlaw.com

                                              George V. Basham, III
                                              Texas State Bar No. 01868000
                                              george@weichertlaw.com

                                              Glenn K. Weichert
                                              State Bar No. 21076500
                                              glenn@weichertlaw.com

                                      ATTORNEYS FOR AMICI CURIAE

             CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

      I, Darryl W. Pruett, hereby certify that this brief (exclusive of the portions
excepted by rule) contains, according to the computer program used to prepare the
document, 5,109 words.

                                               /s/ Darryl W. Pruett
                                                    Darryl W. Pruett




                                         22
                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of Brief of Amici Curiae has
been electronically served on the following counsel for Appellants and Appellee on
this 16th day of March, 2015:

J. Patrick Sutton
1706 W. 10th Street
Austin, Texas 78703
Telephone: (512) 417-5903
Telecopier: (512) 355-4155

ATTORNEY FOR APPELLANTS

Wade C. Crosnoe
Brian D. Hensley
Thompson, Coe, Cousins & Irons, LLP
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 708-8200
Telecopier: (512) 708-8777

Tom L. Newton, Jr.
Allen, Stein & Durbin, P.C.
6243 IH-10 West, 7th Floor
P.O. Box 101507
San Antonio, Texas 78201
Telephone: (210) 734-7488
Telecopier: (210) 738-8036

ATTORNEYS FOR APPELLEES



                                                   /s/ Darryl W. Pruett
                                                   Darryl W. Pruett




                                        23
APPENDIX
                TABLE OF CONTENTS FOR APPENDIX

1.   Contempt Order in Wein v. Jenkins

2.   Vonderhaar v. Lakeside Place Homeowners Assoc., Inc., No. 2012-CA-
     002193-MR, 2014 Ky. App. Unpub. LEXIS 637, at *11 (Ky. Ct. App. Aug.
     8, 2014)

3.   Tex. Att’y Gen. Op. No. WW-821 (1960)

4.   Hyatt v. Court, No. 2008-CA-01474-MR, 2009 Ky. App. Unpub. LEXIS
     738, at *10-*11 (Ky. Ct. App. Aug. 28, 2009)

5.   Form AP-102, Texas Questionnaire for Hotel Occupancy Tax
CONTEMPT ORDER
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-04-00568-CV



                                    Marc Wein, Appellant

                                                v.

                    Maureen Jenkins and William E. Sherman, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
        NO. GN103548, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                                           ORDER

PER CURIAM

               Appellees Maureen Jenkins and William E. Sherman sued their neighbor, appellant

Marc Wein, alleging that Wein had trespassed and encroached on their property, building stairs and

a boat dock partially on their land, and was operating out of his home a commercial bed and

breakfast, violating the neighborhood’s restrictions and covenants. In late May 2004, a jury found

largely in favor of appellees. On July 28, 2004, the trial court signed a final judgment awarding

appellees monetary damages and attorney’s fees, ordering Wein to remove the offending structures

from appellees’ property, and permanently enjoining Wein from operating the bed and breakfast,

effective immediately. The trial court’s judgment was clear and unambiguous in its order that Wein

cease operating his commercial business from his home.

               On September 2, Wein filed his notice of appeal; appellees received notice of his

appeal on September 7. Also on September 2, appellees filed a motion for contempt in the trial
court, asserting that Wein was violating the injunction and continuing to use his home as a bed and

breakfast. On September 20, the trial court held a hearing on appellees’ motion. At that hearing,

Wein raised the issue of the trial court’s jurisdiction, asserting that the trial court lost jurisdiction

when he filed his notice of appeal. The court conducted an evidentiary hearing, but declined to enter

an order or assess sanctions, leaving that to this Court.

                On October 4, appellees filed in this Court a “motion for judgment on plaintiffs’

motion for contempt,” asking that Wein be jailed until he “purged himself” of his contempt. Wein

asserts that (1) the evidence put forth in the trial court’s hearing should be disregarded because the

trial court lacked jurisdiction, (2) he should not be jailed because there was no evidence that he is

currently violating the order, and (3) appellees should not be awarded attorney’s fees because they

did not act with due diligence in filing their motion for contempt and proceeding with the hearing

before the trial court. We held a show-cause hearing on October 27 to address this issue.

                The supreme court has stated, “For appealable orders in the nature of an injunction,

in which the validity of the order alleged to have been violated is itself in issue in the appeal, the

appellate court alone is vested with jurisdiction to enforce the injunctive provisions by contempt.”

Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex. 1991). In such

a case, this Court “may exercise that jurisdiction by referring to the trial court the fact finding burden

of hearing testimony and taking evidence, but the appellate court where the appeal is pending must

exercise jurisdiction to actually issue the contempt judgment.” Id. at 740-41; see In re Goldblatt,

38 S.W.3d 802, 804 (Tex. App.—Fort Worth 2001, orig. proceeding); Roosth v. Daggett, 869

S.W.2d 634, 636-37 (Tex. App.—Houston [14th Dist.] 1994, orig. proceeding); see also In re



                                                    2
Taylor, 39 S.W.3d 406, 410-11 (Tex. App.—Waco 2001, orig. proceeding) (in family law case,

portion of order allegedly violated was not mentioned in direct appeal and therefore trial court

retained jurisdiction to enforce that portion of order by contempt). Unless the injunction is void, its

propriety is not an issue—the only issue is whether the injunction was violated. See Fort Worth

Driving Club v. Fort Worth Fair Ass’n, 121 S.W. 213, 216 (Tex. Civ. App.), rev’d on other grounds,

122 S.W. 254 (Tex. 1909).

                Wein urges that this Court must disregard evidence heard by the trial court because

the court lacked jurisdiction over the issue of contempt once Wein filed his notice of appeal.1 Wein

argues that instead we should remand the cause to the trial court to hold a second hearing on the

issue, essentially granting the trial court jurisdiction to hold a specific hearing. We disagree. Wein

acknowledges that we have the authority to refer the cause to the trial court for fact finding, see




       1
          Wein points to Morrison v. State, 132 S.W.3d 37 (Tex. App.—Houston [14th Dist.] 2004,
pet. ref’d), and Hagens v. State, 979 S.W.2d 788 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d),
both criminal cases concerning hearings on motions for new trial conducted after the trial courts lost
jurisdiction of the cases. In Hagens, the court stated:

           While we may have the authority to reverse a judgment and remand the cause for
           ineffective assistance of counsel manifestly appearing in the record at the hearing
           on a defendant’s motion for new trial, we have no authority to extend the
           deadlines for filing a motion for new trial. Because we have no authority to order
           the trial court to conduct a hearing on an out-of-time motion for new trial, we
           have no authority to consider the record prepared at such a hearing.

979 S.W.2d at 792 (citation omitted). In Morrison, the court refused to consider evidence brought
forth at a hearing held after the trial court denied the timely filed motion by written order and after
the motion for new trial would have been overruled as a matter of law. 132 S.W.3d at 48. Morrison
does not answer the question raised by Hagens of whether the court could extend the deadline for
the hearing in spite of the order overruling the motion and the running of the time in which the
motion would otherwise have been overruled as a matter of law.

                                                   3
Schultz, 810 S.W.2d at 740, and we have the authority to conduct our own evidentiary hearing on

a motion for contempt, although referring a cause to the trial court for fact finding generally is

preferred. In re Werblud, 536 S.W.2d 542, 544-45 (Tex. 1976); In re Reed, 901 S.W.2d 604, 610-11

(Tex. App.—San Antonio 1995, orig. proceeding). Although the trial court held an evidentiary

hearing, it did not take any “action” that would be void for lack of jurisdiction aside from verbally

finding that Wein was in contempt.2 Because we may perform a fact finding on the issue of

contempt, see Werblud, 536 S.W.2d at 544-45, we will make our own finding of contempt based on

this record. Accordingly, we disregard the trial court’s verbal finding of contempt and will consider

the evidence brought forth at the hearing before the trial court. To refer the cause to the trial court

for a second hearing on the same issues, as urged by Wein, would accomplish nothing but a waste

of time and judicial resources.

               At the hearing, appellees presented evidence that Wein had continued to operate his

business after the trial court permanently enjoined him from doing so. Appellees presented

information taken from Wein’s website on September 20, 2004, still advertising his bed and

breakfast as a “unique luxury retreat.” The evidence shows that the bed and breakfast had at least

six rooms and provided breakfasts and other amenities and services. Appellees brought forth

evidence that Wein rented the entire house for a family reunion the weekend of August 6 through

August 8, billing the family about $7,000. The man who rented the house for the reunion testified

that Wein told him that the residence “was busy,” and that “some sort of wedding party . . . was


       2
         The jurisdictional issue appears to have been first raised in Wein’s response to appellees’
motion for contempt, filed on September 20, 2004. The trial court was faced at the time with a
motion for contempt filed before appellees learned that Wein had appealed.

                                                  4
coming in after us.” Appellees also introduced portions of Wein’s May deposition, during which

he testified about a wedding that was planned for August 11. The record does not reflect whether

that wedding was actually held at Wein’s bed and breakfast. Disregarding the trial court’s legal

conclusion that Wein had committed contempt, we find and conclude, based on the uncontroverted

evidence,3 that Wein continued to operate his bed and breakfast well after the trial court signed its

order and thus was in contempt of court.

               The government code provides a limit of $500 in fines per instance of contempt. Tex.

Gov’t Code Ann. § 21.002(b) (West 2004); In re Long, 984 S.W.2d 623, 625 (Tex. 1999). In

assessing a penalty, we may not divide a single act of contempt into separate acts and assess

punishment for each allegedly separate act. Long, 984 S.W.2d at 625. Nor may we assess attorney’s

fees as sanctions for contempt. Wallace v. Briggs, 348 S.W.2d 523, 525-26 (Tex. 1961); In re

Wieses, 1 S.W.3d 246, 251 (Tex. App.—Corpus Christi 1999, orig. proceeding); Ex parte Dolenz,

893 S.W.2d 677, 680 (Tex. App.—Dallas 1995, orig. proceeding). A person in contempt may be

confined to jail “to vindicate the court’s authority,” Dolenz, 893 S.W.2d at 677, but the term of

imprisonment must be for the lesser of 18 months or end upon compliance with the court order. Tex.

Gov’t Code Ann. § 21.002(h)(2).




       3
          We note that, at the show-cause hearing before this Court, Wein and his attorney admitted
that Wein had rented the house for the family reunion and stated that the website had been taken
down. At the time of the show-cause hearing before this Court, Wein’s website was still operational,
and on November 8, appellees’ counsel informed the Court that as of November 5, the website was
still operating and soliciting reservations. The website has since been changed to show only a
message that states, “Site Temporarily Unavailable.” These facts alone, admitted by Wein before
this Court, are grounds for holding Wein in contempt.

                                                 5
               There is no evidence that Wein is still operating his bed and breakfast and therefore

there is no evidence that he is currently in contempt of which he must be “purged.” Thus, we will

not commit Wein to jail, as requested by appellees. See id. Nor may we award attorney’s fees

incurred by appellees in pursuing these contempt proceedings. See Wallace, 348 S.W.2d at 525-26.

We may assess a fine, capped at $500 per instance of contempt. See Long, 984 S.W.2d at 625.

During August, Wein continued to operate his bed and breakfast and rented out the entire house for

at least one full weekend. Leading up to the weekend, Wein corresponded with the would-be guests,

emailing them and telling them how to get directions to the house and providing a gate code to gain

entry to the neighborhood and information about use of the boat dock. Wein continued to solicit

business through his website well into the fall of 2004. In our view, Wein’s actions amount to four

instances of contempt in total—one for each day during which Wein allowed his house to be used

in August as a bed and breakfast in violation of the trial court’s order, and one for his continuing to

solicit bed and breakfast reservations through his website after the court signed its order.

               Accordingly, the Court hereby ORDERS, ADJUDGES, and DECREES that Marc

Wein is in contempt of court for violating the trial court’s order of July 28, 2004, by having let out

his home as a commercial bed and breakfast on August 6, 2004.

               For this violation, the Court orders that Marc Wein shall be fined $500.00.

               The Court further ORDERS, ADJUDGES, and DECREES that Marc Wein is in

contempt of court for violating the trial court’s order of July 28, 2004, by having let out his home

as a commercial bed and breakfast on August 7, 2004.

               For this violation, the Court orders that Marc Wein shall be fined $500.00.



                                                  6
               The Court further ORDERS, ADJUDGES, and DECREES that Marc Wein is in

contempt of court for violating the trial court’s order of July 28, 2004, by having let out his home

as a commercial bed and breakfast on August 8, 2004.

               For this violation, the Court orders that Marc Wein shall be fined $500.00.

               The Court finally ORDERS, ADJUDGES, and DECREES that Marc Wein is in

contempt of court for violating the trial court’s order of July 28, 2004, by continuing to operate his

website and solicit business for several months after the issuance of the trial court’s order.

               For this violation, the Court orders that Marc Wein shall be fined $500.00.

               We thus order Wein to pay a fine of two thousand dollars ($2,000) to the Clerk of the

Third Court of Appeals no later than 5:00 p.m. on March 17, 2005. If Wein fails to pay the fine

timely, it shall be collectible in the manner provided by law.

               It is further ordered that all costs be adjudged against Marc Wein.

               It is ordered on February 15, 2005.



Before Chief Justice Law, Justices B. A. Smith and Pemberton




                                                  7
Vonderhaar v. Lakeside Place Homeowners Assoc.,
                      Inc.
No Shepard’s Signal™
As of: March 12, 2015 8:53 PM EDT


                   Vonderhaar v. Lakeside Place Homeowners Ass'n
                                            Court of Appeals of Kentucky
                                              August 8, 2014, Rendered
                                              NO. 2012-CA-002193-MR

Reporter
2014 Ky. App. Unpub. LEXIS 637; 2014 WL 3887913

PATRICK VONDERHAAR; CAROLEE VONDERHAAR; Opinion
RONALD ADAMS; AND LISA ADAMS, APPELLANTS v.
LAKESIDE PLACE HOMEOWNERS ASSOCIATION, INC., AFFIRMING
APPELLEE
                                                          CAPERTON, JUDGE: The Appellants, Patrick and Carolee
Notice: THIS OPINION IS DESIGNATED "NOT TO BE             Vonderhaar and Ronald and Lisa Adams, appeal from the
PUBLISHED." PURSUANT TO THE RULES OF CIVIL                October 5, 2012, findings of fact, conclusions of law, and
PROCEDURE PROMULGATED BY THE SUPREME                      summary judgment/injunction issued by the Russell Circuit
COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE          Court in favor of Appellee, Lakeside Place Homeowners
PUBLISHED AND SHALL NOT BE CITED OR USED AS               Association, Inc. (hereinafter "Lakeside"), based upon the
BINDING PRECEDENT IN ANY OTHER CASE IN ANY                finding that Appellants had violated the Declaration of
COURT OF THIS STATE; HOWEVER, UNPUBLISHED                 Covenants and Restrictions of Lakeside Place in light of the
KENTUCKY APPELLATE DECISIONS, RENDERED                    fact that they utilized their property for commercial
AFTER JANUARY 1, 2003, MAY BE CITED FOR                   purposes. Upon review of the record, the arguments of the
CONSIDERATION BY THE COURT IF THERE IS NO                 parties, and the applicable law, we affirm.
PUBLISHED OPINION THAT WOULD ADEQUATELY
ADDRESS THE ISSUE BEFORE THE COURT.                       The Appellants, the Adamses and Vonderhaars, are co-
OPINIONS CITED FOR CONSIDERATION BY THE                   owners in fee of a single family home located in the
COURT SHALL BE SET OUT AS AN UNPUBLISHED                  Lakeside subdivision, in Russell County, Kentucky.
DECISION IN THE FILED DOCUMENT AND A COPY OF              Lakeside Place Homeowners Association is a homeowners
THE ENTIRE DECISION SHALL BE TENDERED ALONG               association designated to preserve and protect the interest
WITH THE DOCUMENT TO THE COURT AND ALL                    of the real property owned by its
PARTIES TO THE ACTION.                                    members [*2] in Lakeside Place subdivision located in
                                                          Russell County, Kentucky.
Prior History: [*1] APPEAL FROM RUSSELL CIRCUIT
COURT. HONORABLE VERNON MINIARD, JR., JUDGE. The Declaration of Covenants and Restrictions of Lakeside
ACTION NO. 09-CI-00537.                         Place was executed on July 20, 1988, by developers
                                                Donald H. Byrom and Larry Kinnett. These restrictions were
Counsel: BRIEF FOR APPELLANTS: Harlan E. Judd, recorded in the Russell County Clerk's Office on January
Bowling Green, Kentucky.                        20, 2002. Lakeside instigated litigation to seek injunctive
                                                relief against Appellants, based upon the assertion that they
BRIEF FOR APPELLEE: M. Gail Wilson, Jamestown, were in violation of the Declaration of Covenants and
Kentucky.                                       Restrictions because the Declaration restricted the use of
                                                the land in the subdivision to single family residential
Judges: BEFORE: CAPERTON, COMBS, AND DIXON, purposes only, and there were to be no business,
JUDGES. ALL CONCUR.                             commercial, trade, or professional uses permitted.

                                                          Article VII of the Declaration, entitled Building and Use
Opinion by: CAPERTON
                                                          Restrictions, stated as follows:
                                                                                                                   Page 2 of 5
                                           2014 Ky. App. Unpub. LEXIS 637, *3
                                                                 disturbance, played loud music, and left trash in the
    Section 1. Single Family Residential Use. Each lot           roadway, in addition to leaving cars parked in the
    (including land and improvements) shall be used              roadways, which created problems for traffic movement on
    and occupied for single family residential purposes          the subdivision roads.
    only. No owner or other occupant shall use or
    occupy his lot, or permit the same or any part               As noted, on October 5, 2012, the Russell Circuit Court
    thereof to be used or occupied, for any purpose              entered a judgment restricting the Appellants from any
    other than as a private single family residence for          rental or lease activity on their property. It is from that
    the Owner or his tenant and their families. As used          judgment that Appellants now appeal to this Court.
    specifically, but
                                                                 As their first basis for appeal, Appellants argue that the
    without limitation, the [*3] use of Lots for duplex
                                                                 trial court erred in determining [*5] that the Declaration
    apartments, garage apartments, or other
                                                                 prevents rentals because it specifies a "tenant" as a
    apartment use. No lot shall be used or occupied for
    any business, commercial, trade, or other                    permissible party and provides no specific detail as to
                                                                 length of time that the property can be rented. Appellants
    professional purpose either apart from or in
                                                                 assert that Article VII of the Declaration plainly states that
    connection with the use thereof as a private
    residence, whether for profit or not.                        the use of the property by "tenant" for single family
                                                                 purposes is acceptable, and notes that in order to preclude
The Appellants originally purchased their first lot in           the Appellants' rental activities, the Declaration would have
Lakeside Place, Lot 22, in the early 1990s. At that time, the    had to use the term "tenant" to clearly and specifically
Adamses sought an opinion letter from the developer, Don         prohibit any "rental or leasing" of the properties subject to
Byrom, granting them the ability to rent their property in the   the Declaration. Appellants assert that restrictive covenants
neighborhood on a short-term basis. That letter was written      should be strictly construed against those seeking to
by Byrom. After a home was constructed on this lot, the          enforce them, and that in this instance the covenant was
Appellants engaged in renting the home on Lot 22 for             not specific enough to restrict rental activity of the
several years prior to the purchase of the second lot, Lot       properties at issue. Appellants also assert that Kentucky
13. Appellants subsequently purchased Lot 13.                    should move toward accepting a more modern approach
                                                                 which favors an unfettered use of land, and urge this Court
Other homeowners in Lakeside became concerned when               to find accordingly.
the Appellants built a house on Lot 13 in Lakeside that they
immediately began to use as a short-term rental facility,        In conjunction with their argument that the trial court erred
rather than as a single family residence. The Appellants         in determining that the Declaration prevents rentals,
advertised the property for rent on various websites,            Appellants argue that the trial court erred because it
including for periods of time as short as three nights.          "refused to see" that Article VII was subject to
                                                                 more than one [*6]          interpretation and is therefore
In his deposition, Ronald Adams confirmed that the tax           ambiguous. Appellants assert that though the court
returns for the [*4] years 2007 and 2008 indicated that the      attempted to distinguish a "lease" from a "rental," the
rental property was listed as a "motel." The Appellants'         Declaration itself makes no such distinction and is at best
income tax returns were submitted into evidence below and        ambiguous on this point. Appellants assert that if ambiguity
indicated the rents received as income as well as                on this issue exists, the facts make clear that the drafters of
expenses, including cleaning, maintenance, repairs,              the Declaration clearly intended to allow rental
supplies, utilities, insurance, legal and professional fees,     arrangements and that no specification was made as to
and depreciation of the property. Additionally, Appellants       how long the property could be rented or leased.
paid the required Russell County Tourist and Convention
Commission Transient Room Tax and the Kentucky Sales      Further, Appellants argue that the trial court erred in
Use and Transient Room Tax, as is required of motels,     determining that Appellants' rental was a "business use," or
                                                          that, alternatively, this creates a second ambiguity in the
hotels, and persons renting their property for a short period
of time.                                                  Declaration. While the court found that the short-term
                                                          rentals of Appellants' property were a "business use,"
Lakeside asserted that Appellants made short-term rentals Appellants argue that merely receiving money for the
to large groups of people who created a noise             rented property did not mean that the property was being
                                                          utilized for "non-residential," or
                                                                                                                              Page 3 of 5
                                                 2014 Ky. App. Unpub. LEXIS 637, *6
"business use" purposes. Alternatively, Appellants argue we focus solely on interpretation of the Declaration as a
that the Declaration was at best ambivalent on this point.    matter of law.1 In so doing, we turn first to applicable
                                                              precedent. It is clearly established that when attempting to
In response to the first four arguments made by Appellants, construe ambiguous restrictive covenants the party's
Lakeside argues that the trial court properly determined that intention governs. See Glenmore Distilleries v. Fiorella, 273
the rental of the house located on Lot                        Ky. 549, 554, 117 S.W.2d 173, 176 (1938). If known, the
13 of Lakeside was [*7] in violation of Article VII of the surrounding circumstances of the development are likewise
Declaration. Lakeside asserts that by virtue of an important consideration when ambiguous language
advertisements on the internet, tax returns indicating that creates a doubt as to what the creators intended to be
the business use for the property was a "motel," and by prohibited. Brandon v. Price, 314 S.W.2d 521, 523 (Ky.
payment of the hotel and motel tax of Russell County, the 1958). Thus, the construction may not be used to defeat the
Appellants could present no proof that they were not obvious intention of the parties though that intention may
engaged in a commercial enterprise in the rental of their not be precisely expressed. Connor v. Clemons, 308 Ky. 9,
home.                                                         213 S.W.2d
                                                              438 (1948) [*8] .
In addressing this issue, we note that interpretation of a
restrictive covenant is a matter of law appropriate for de Furthermore, we note that Kentucky has approached
novo review by this Court. Colliver v. Stonewall Equestrian restrictive covenants from the viewpoint that [*10] they are
Estates Ass'n, Inc., 139 S.W.3d 521, 522-23 (Ky. App. to be regarded more as a protection to the property owner
2003). Upon review, we note that there are no factual and the public rather than as a restriction on the use of
disputes between the parties and, accordingly,                property, and that the old-time doctrine of strict construction
                                                                       no longer applies. Highbaugh Enterprises


1 In addressing this issue, we also direct the parties to our previous unpublished opinion in Hyatt v. Court, 2009 Ky. App. Unpub. LEXIS
738, 2009 WL 2633659 (Ky. App. 2009), which we cite pursuant to Kentucky Rules of Civil Procedure 76.28(4), and which we believe
to be directly on point in this matter. In Hyatt, as was the case with the Appellants sub judice, the Hyatts advertised their home on the
internet, and charged a cleaning fee, security deposit, and a charge for Kentucky sales tax.

This Court ultimately found that the Hyatts were using their property as a business, stating:

        Merriam-Webster's 2009 Online Dictionary defines commercial as of or relating to commerce, which is defined as the
        exchange or buying or selling of commodities on a large scale involving transportation from place to place, and is
        synonymous with business. There can be no doubt that the Hyatts define their rental enterprise as a business. The Hyatts
        cannot label the rental of their vacation home one thing to the Internal Revenue Service and characterize it to the contrary
        to this Court.

        The Hyatts urge us to note that the people who rent their property engage in the very same recreational activities as do the
        owners or their guests who reside in the dwellings within the Sherwood Shores subdivision. While this
        may indeed be the [*9] case, it is not what the tenants do to occupy their time while on the property that is
        forbidden, it is the fact that the property is being held out for remuneration in much the same manner as a
        hotel or motel that is restricted.

        The creators of the subdivision plainly intended to restrain deed-holders from engaging in anything more than recreation
        while using their property. Such is the privilege of the creators. That the other property owners seek to enforce the
        protections of the restrictive covenants is their right.

        What is equally clear is that the Hyatts have gone to a great deal of trouble to treat their vacation property as a business.
        The rental agreement, copyrighted web-site, check-in and check-out times, and the supply of various sundries to tenants,
        underscore the appropriateness of this commercial classification. Further, the fact that the Hyatts are required to pay the
        same taxes as is required of motels and hotels only emphasizes the business-related nature of their endeavor. It is
        unmistakable that the Hyatts have violated the restrictive covenant as the trial court found.

    Hyatt, 2009 Ky. App. Unpub. LEXIS 738, [WL] at *4.
                                                                                                                   Page 4 of 5
                                            2014 Ky. App. Unpub. LEXIS 637, *10
Inc. v. Deatrick and James Construction Co., 554 S.W.2d other property owners seek to enforce the protections of the
878, 879 (Ky. App. 1977).                                        restrictive covenants is their right. We are in agreement with
                                                                 the court below that Appellants have violated the restrictive
Indeed, in 1952, our Supreme Court noted:                        covenant and, accordingly, we
                                                                 believe the trial court appropriately granted summary [*12]
      [W]e are among the jurisdictions which adhere to           judgment.
      the concept that such restrictions constitute mutual,
      reciprocal, equitable easements of the nature of           Having so found, we now turn to the Appellants' fifth basis
      servitudes in favor of owners of other lots of a plot      for appeal, namely that the trial court erred in ordering the
      of which all were once a part; that they constitute        Appellants to produce their income tax returns which they
      property rights which run with the land so as to           assert are confidential, privileged materials. Appellants
      entitle beneficiaries or the owners to enforce the         assert that they stipulated the fact that they were renting the
      restrictions, and if it be inequitable to have             property for profit as a single-family rental and that,
      injunctive relief, to recover damages. Crutcher v.         accordingly, their tax returns were not relevant to any
      Moffett, 205 Ky. 444, 266 S.W. 6; Starck v. Foley,         material issue in this matter, particularly because there is
      209 Ky. 332, 272 S.W. 890, 41 A.L.R. 756; Doll v.          no claim for punitive damages.
      Moise, 214 Ky. 123, 282 S.W. 763; Bennett v.
      Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d            In response, Lakeside argues that the trial court properly
      910, 61 A.L.R. 453.                                        ordered Appellants to provide their tax returns. Lakeside
                                                                 asserts that as part of discovery, it had requested income
Ashland-Boyd County City-County Health Dept. v. Riggs, tax returns from Appellants which, when provided, indicated
252 S.W.2d 922, 924-25 (Ky. 1952).                               that the "business purpose" for the house rental was
                                                                 designated as "motel" on the Schedule C for tax year 2007,
Having thus expressed the state of the law in the that expenses were deducted, and that the property was
Commonwealth concerning restrictive covenants, we now depreciated. Accordingly, Lakeside argues that the tax
turn to the factual scenario before us. Sub judice, the returns were clearly relevant as to the use of the property.
Appellants have labeled their home as a "motel," for tax We agree.
purposes, have treated it as a business, have advertised it
on various websites, have a rental agreement along with Pursuant to Kentucky Rules of Evidence 401, "relevant
check-in and check-out times, and pay taxes required of evidence" is that which has a tendency to make the
hotels and motels. Upon review of the record, it is clear that existence of any fact that is of consequence to the
the Appellants define                                            determination of the action more [*13] probable or less
their rental enterprise as a [*11] business, and have indeed probable than it would be without the evidence. Sub judice,
stated as much to the Internal Revenue Service. They we are in agreement with Lakeside and the court below that
cannot now characterize it to the contrary to this Court.        the designation of the property for tax purposes was
                                                                 relevant and, accordingly, we decline to reverse on this
While the Appellants argue that the individuals who rent basis.
their property engage in the very same recreational
activities as do the owners or their guests who reside in the As their sixth and final basis for appeal, Appellants argue
dwellings permanently, or as is the case for long-term that the trial court erred in depriving them of a jury trial on
rentals, we do not find the activities of the occupants to be their "waiver" argument. Appellants assert that they had
determinative. Indeed, it is not what the individuals do to rented or leased their two properties in the subdivision for
occupy their time while on the property that is forbidden; it is years without contest from the homeowner's association.
the fact that the property is being held out for remuneration They assert that they asked Attorney Byrom if the property
in much the same manner as a hotel or motel.                     in the subdivision could be rented and he agreed.
                                                                 Moreover, Appellants note that Byrom sent them a letter,
Upon review of the record and the testimony of the parties, which has since been misplaced, indicating that the
we believe that the creators of the subdivision did not intend property could be rented. Appellants assert that their
for properties in the subdivision to be                          testimony as to the contents
utilized as motels or hotels in the manner in which
Appellants are currently utilizing their property. That the
                                                                                                                 Page 5 of 5
                                          2014 Ky. App. Unpub. LEXIS 637, *13
of this letter was uncontroverted. Accordingly, they argue          of substantial value to those entitled to benefit by
that this permission, in conjunction with the length of time        its provisions, they are still entitled to enforce it
they had rented the properties without objection, amounted          insofar as they were not affected by the principles
to waiver of any right that might otherwise have existed.           of estoppel and waiver.

In response to Appellants' argument concerning waiver,
                                                    We agree with Lakeside and the court below that there is a
Lakeside argues that the trial court properly held that
                                                    significant difference between a long-term rental of a
there [*14] was no waiver of the Declaration. Lakeside
                                                    property by one family in contrast to short-term rentals by
asserts that while other homeowners may have rented their
                                                    different individuals or families every weekend. While the
property to other parties for long-term periods of time, this
                                                    restriction may not have been rigidly enforced with respect
was different than the short-term rentals sub judice and in
                                                    to long-term rentals, Lakeside retained the right
no way constituted a waiver of the covenants and    to do so with respect to the short-term rentals because [*15]
restrictions contained in the Declaration. Again, we agree.
                                                    the continued enjoyment of the subdivision by all
                                                    homeowners was an ongoing interest of substantial value.
As our Kentucky Supreme Court previously held in
                                                    Accordingly, we affirm.
Hardesty v. Silver, 302 S.W.2d 578, 582 (Ky. 1956):
                                                                Wherefore, for the foregoing reasons, we hereby affirm the
    Where the restrictive covenant has not been rigidly         October 5, 2012, findings of fact, conclusions of law, and
    enforced, and where certain structures and uses             summary judgment/injunction issued by the Russell Circuit
    have been tacitly permitted which are violative of          Court granting summary judgment in favor of Appellees, the
    the strict terms, but where, in spite of such               Honorable Vernon Miniard, Jr., presiding.
    relaxation, there still remains something
                                                                ALL CONCUR.
Attorney General Opinion WW-821
                    March 25, 1960

Mr. E. B. Camiade         Opinion No. Wk-821
State Parks Board
Austin, Texas             Re:   Under House Bill 11, Acts
                                of the 56th Legislature,
                                Third Called Session, 1959,
                                is the Texas State Parks
                                Board required to collect the
                                Hotel Occupancy Tax on rooms,
                                cabins and camping shelters
                                owned and operated by the
Dear Mr. Csmiade:               Parks Board.
     By your letter dated January 11, 1960, you request an
opinion on four questions relating to the application
of the Hotel Occupancy Tax to rooms, cabins and camping
shelters owned and operated by the State Parks Board.
     In describing the subject accomtmdations,you state:
          "The revenue derived from the charges
        made for the use of said rooms, cabins and
        camping shelters is deposited by the employee
        of the Texas State Parks Board handling said
        rentals In a local bank fund, called a Con-
        cession Account. Out of said Concession
        Account, the employee pays for all expenses
        incurred in operating and maintaining said
        rooms, cabins and camping shelters. The
        Parks Board authorizes the employee to re-
        tain 204%of the money left in the Concession
        Account after paying all expenses of opera-
        tion and maintenance, as compensation for
        his work in handling said rentals. This
        compensation Is handled as wages, and is
        reported accordingly for social security
        and withholding tax purposes by the Texas
        State Parks Board. The other 80% of the
        money left in the Concession Account IS
        deposited in the State Treasury In the State
        Parks Fund, and used for operation, maintenance
        and repairs to the State Parks of Texas."
     Your first question is whether the State Parks Board is
required~to collect the Hotel Occupancy Tax.
Mr. E. B. Camlade, Page 2      Opinion NO. ww-821


      The tax in question is imposed upon the occupant (except
 "permanent residents") of any building or buildings in
which the public may, for a consideration, obtain sleeping
accomodations where the cost of occupancy of the space
 furnished is at the rate of two dollars ($2.00) or more per
       See Art. 23.01 (a) Art. 23.02 (a) and Attorney General's
g&ion    No. ~-706 (Sept&ber 21 1959). Only hospitals,
 sanitaPiums and nursing homes &e excepted from the definition
of "hotels ' Every "person" owning, operating, managing or
 controlling a "hotel" is required to collectthe tax and make
remittance to the State. Arts. 23.03 and 23.04. 'Person"
 is defined to mean any Individual, company, corporation, or
association owning, operating, managing or controlling any
hotel.
     The term "person" as extended to Include "corporation"
may include the State (thereby, obviously, including all State
components or "functioning arms") where such an Intention is
manifest. The fact that a State is, In the generic sense, a
corporation is a proposition having roots In judicial antiquity.
Witness the following statement from Chlsholm, Executor, v.
Geor ia 1 U.S. (Curtis) 17, 36, 2 U.S. (Dali.) 419, 447
Tide
           "The word 'corporation', in Its largest
         sense, has a more extensive meaning than
         people generally are aware of. Any body politic,
         sole or aggregate, whether its powers be re-
         stricted or transcendent, is In this sense 'a
         corporatlon8. The king, accordingly, in England,
         is called a corporation, 10 Ce. 29, b. So also,
         by a very respectable author (Sheppard, in his
         abridgement, (Vol. 431) is the parliament itself.
         In this extensive sense, not only each State
         singly, but even the United Statesmay without
         lmproprletv be ~tezmed 'corporations'. I have,
         therefore, in contradistlnctien ko this large
         and indefjnite term, used the term 'subordinate
         corporations'; meaning to refer to such only (as
         alone capable of the slightest application, for
         the purpose of the objection) whose creation and
         whose powers are limited by law."
     The United
          _     States Supreme Court haa not departed from the
foregoing Interpretation. See Cotten v';~United States, 11 How.
229, 231-232, 52 U.S. 229 (1850); Ohio v. Helverin    2
360 (1934); Georgia v. Evans, 316 U,S. 159 (1942);%eeg%~oS.
United States v. Cooper Corporation, et al., 312 U.S. 600
(1941); Stanley v. Schwalby, 147 U S 508 (189 ); Helverlng
v. Stockholms Enskilda Bank, 293 U:S: 84 ($9343 ; Far East
MP. E. B. Camiade, Page 3     Opinion NO, ww-821


Conference v, United States, 342 U.S. 570 (1952); Res ublica
v. Sweeps9 1 U.S. Dali. 41 (1779) and Relverl;g v.*
American Tobacco Company, Ltd., 69 F.2d 528 ( .C.A. 2nd
Cir. 1934) ff'd, 293 U S 9 95    In Georgiav. Evans, supra,
the wordinaaof the deflnition'of nerson was. lnsof‘aras pertinent.
identical go the definition in Issue. There the question was     -.
whether the State of Georgia was a "person" within the meaning
of the Sherman Anti-Trust Act (26 State. 209, 210) for the
purpose of instituting a civil action for treble damages.
Section 8 of the act defined "person" as "corporations and asso-
ciations existing under or authorized by the laws of any of
the territories, the laws of any State, or the laws of any
foreign country." The Court, speaking through Justice Frankfurter,
pointed out that whether 'person" includes a State or the
United States depends upon its legislative environment, and
that the following may be considered in construing the term:
 1 the structure of the Act; (2) its legislative history;
t3 1 the practice under It; (4) past judicial expressions.
Applying these principles, the Court held that the State of
Georgia was a "person" within the foregoing definition.
      Other authorities less imcressive t&n the Supreme Court
have held that the State Is a corporation. See Burke v.
Railroad Retirement Board, 165 F.2d 24 (C.C.A., D,C. 1947)
{in which it was held that the Allegheny County, PennsylvanIa,
drphans Court was a person within the meaning of the Rail-
road Retirement Act (50 Stat. 309) because the context and
purpose of thz Act required the terms as extended to Include
 'corporation, to incltie a governmen+.albody); Isner v.
Thterstate Commerce Commission, 90 F.Supp. 361 (U.S.D.C    S.D.
kich. 1950) in which the Court, relying on T. & P. Ry.'&o.
v. I.C.C., 1 2 U.S. 197; RRD. Labor Board, 258 U.S. 158, and
  tah State Building Comamissionv. Great American Indemnity Co.,
            -_ , held that the I.C.C. Is a "corporation"):
140 P .2d 763
Indiana State Toll-Bridge Commission v. NSnor, 132 N.E:2d 282
   95b) (in which it was held that the Toll-Bridge Commission,
a body politic and corporate, was a corporation); and Indiana
v. worsm, 40 Am.Dec. 378 (holding the State to be a'corporatlon"
and a "person" within the%&eaning of the statute providing‘that
all notes in writing and signed by any "person" are negotiable).
     The case of United States v. Coumentaros, 165 F.Supp. 695
(U.S.D.C., Md. 1958) contains an exhaustive review of authorities
on this subject.--It is even pointed out9 in a quote from
Helvering v. Stockholms Enskllda Bank, supra, that Blackstone,
the eminent authority on all matters pertaining ,to law, had
this to say (1 Bl. 123):
           "Persons are divided by the~~~law
                                           Into
         either natural persons9 or artLflcia1.
MP. E. B. Csmiade, Page 4     Opinion NO. ww-821


        Natural persons are such as the God of
        nature formed US; artificial aressuch as
        are created and devised by human-laws-for
        the purposes of society and government,
        which are called corporations or bodies
        politic." (Emphasis added.)
Based on its lengthy discussion, the Court concluded that the
United States Is a 'person" and "body corporate" within a
Maryland statute providing that every person and body corporate
that has the right to become a plaintiff In any action or
proceeding shall have,,,the
                          right to become a plaintiff in an
attachment against a non-resident. In so holding, the Court
makes the following statement which Is particularly appropos
to the instant situation:
          "By analyzing those decisions holding that
        the sovereign 1s a person or body corporate,
        it may be found that one or more of the follow-
        ing factors are present and It may be con-
        cluded that their presence determines the
        reasonableness of such a construction of the
        statute in question and the manifestation of
        legislative intent to include the sovereign.
        Generally the sovereign entity involved is'
        acting not In Its sovereign capacity but
        rather is engaging in commercial and business
        transactions such as other persons, natural
        or artificial, are accustomed to conduct,
        usually in addition, when a statute is construed
        ~80 as to include the sovereign within Its terms,
        no impairment of sovereign powers results
        thereby and rights and remedies are given
        rather than taken away-"
     Analysis of the Hotel Occupancy Tax Act In light of the
foregoing principles makes it clear that the State Is a "person"
required to collect the tax, In line with the reasoning in the
Coumantaros case, the State Parks Board is, In effect, given
a right or remedy (I.e., collection of the tax from the
occupant) In reference to an activity "such as other persons,
natural or artificial, are accustomed to conduct."1 This
position is also fortified by reference to another extrinsic
aid to statutory Interpretation, i.e., "past judicial expression."
(See discussion of Georgia v.,~
                              Evans, supra.)
1
 Though the renting of cabins in this case may, perhaps, be a
non-profit activity, or designed to foster the esthetic, It
nevertheless Is an enterprise that is commercial In nature.
Mr. E. B. Camlade, Page 5       Opinion No. ww-821


     It Is specifically noted   that by the statute in question
the tax is not imposed on the   State itself, rather Instead
the State merely collects the   tax from those occupying the
sleeping accomodatlons. Your    first question Is answered in
the affirmative.
     Conditioned upon an affirmative answer to the first
question, you ask:
           "Does the tax apply to a room or cabin
         where the cost of occupancy for one person
         is less than two dollars ($2.00) per day,
         but for two or more persons is more than two
         dollars ($2.00) per day?"
     The tax is imposed upon the total cost of occupancy of
a rental unit, or space", regardless of the number of people
who pay for or take advantage of the privilege of occupancy.
Consequently, where more than two dollars ($2.00).per day is
charged for the same rental unit, the tax is due.
     You next ask whether the tax applies "where group camp
facilities (consisting of dormitory buildings, service buildings
and showers, clothes washing equipment and sanitary facilities,
combination dining hall and kitchen, recreation hall and ad-
ministrative staff cottage) are rented to a group (that is not
exempt under paragraph (c) of Art. 23.02 of said H.B. 11) at
a charge of $35.00 a day for 50 persons,"
     Under the facts presented, it must be considered that the
entire "group camp facility" is the rental unit furnished, since
there is no indication that the rental price is divided according
to the number of 'rooms' or "spaces"; nor does there appear to
be any separation of the charge for the buildings used for
sleeping accomodations from charges made for service'buildings"
or "dining" or "recreation" halls. Therefore, It appears that
the tax Is due upon the entire cost of occupancy. (On this
point, attention is directed to Opinion No. w-706,  cited
supra, and In particular to Questions and Answers Nos. 1, 2 and
5 therein).

     The last question Is whether the tax is to be collected
on screened-in camping shelters where nothing is furnished, "not
even a bed."
     As pointed out above, a "hotel" is a building in which the
public may for a consideration, obtain "sleeping accomodations".
The term "sleeping accomodations' infers something more than
a mere overhead covering; it appears that some sort of bed,
cot, bunk, hammock, mattress, or at least a pallet, Is required.
’




     m.   E. B. Camiade, Page 6      Opinion No. WW-821


     A person who receives none of these articles (or a sub-specie
     thereof) Is not very well "accomodated" for sleeping. There -
     fore, this question is answered in th? negative.
                           SUMMARY

               The Hotel Occupancy Tax is due on the
           cost of occupancy of rooms, cabinsf,camping
           shelters, and "group camping units owned
           by the Texas State Parks Board where the
           price charged for such occupancy exceeds
           two dollars ($2.00) per day per individual
           rental unit. However, the tax is not due
           on screened-in camping shelters where
           nothing is furnished, "not even a bed."
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas




     JNP:cm
     APPROVED:
    ~.OPINION COMMITTEE:
      W. V. Geppert, Chairman
     Richard Wells
     Robert A. Rowland
     'Ray Loftln
     Charles Cabaniss
     REVIEWEBFOR THEATTORNEYGENERAL
     By: Leonard Passmore
Hyatt v. Court
     Positive
As of: March 12, 2015 8:56 PM EDT


                                                                Hyatt v. Court
                                                           Court of Appeals of Kentucky
                                                            August 28, 2009, Rendered
                                                             NO. 2008-CA-001474-MR

Reporter
2009 Ky. App. Unpub. LEXIS 738; 2009 WL 2633659

SCOTT HYATT; SUSAN HYATT, APPELLANTS v. IVA                                    Opinion
COURT, APPELLEE
                                                                               AFFIRMING
Notice: THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF CIVIL                                     KELLER, JUDGE: This is an appeal from an order of the
PROCEDURE PROMULGATED BY THE SUPREME                                           Marshall Circuit Court which enjoined the appellants, Scott
COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE                               and Susan Hyatt, (hereinafter the Hyatts), from renting their
PUBLISHED AND SHALL NOT BE CITED OR USED AS                                    vacation home, located on Kentucky Lake. The court found
BINDING PRECEDENT IN ANY OTHER CASE IN ANY                                     that the Hyatts were in violation of a restrictive covenant
COURT OF THIS STATE; HOWEVER, UNPUBLISHED                                      contained in the deed prohibiting commercial or
KENTUCKY APPELLATE DECISIONS, RENDERED                                         manufacturing activity. In the appeal, the Hyatts argue they
AFTER JANUARY 1, 2003, MAY BE CITED FOR                                        have not violated the restrictive covenant as the rental of
CONSIDERATION BY THE COURT IF THERE IS NO                                      their vacation home does not rise to the level of a
PUBLISHED OPINION THAT WOULD ADEQUATELY                                        commercial purpose. Alternatively, the Hyatts assert that
ADDRESS THE ISSUE BEFORE THE COURT.                                            even if their behavior violates the deed, the character of the
OPINIONS CITED FOR CONSIDERATION BY THE                                        subdivision has so changed that to do equity, the restriction
COURT SHALL BE SET OUT AS AN UNPUBLISHED                                       should be nullified. We disagree with the Hyatt's
DECISION IN THE FILED DOCUMENT AND A COPY OF                                   contentions, and therefore affirm the Marshall Circuit
THE ENTIRE DECISION SHALL BE TENDERED ALONG                                    Court's judgment due to the reasons set forth below.
WITH THE DOCUMENT TO THE COURT AND ALL
PARTIES TO THE ACTION.                                                         FACTS

Prior History: [*1] APPEAL FROM MARSHALL CIRCUIT A bench trial was held in June of 2008. As the parties do
COURT. HONORABLE DENNIS R. FOUST, JUDGE. not dispute [*2] the facts found by the court, we will reiterate
ACTION NO. 07-CI-00002.                             those facts which are pertinent below. In the trial court, the
                                                    appellant, Iva Court, and ten others 1 (hereinafter the
Counsel: BRIEF FOR APPELLANTS: Dennis L. Null, Jr., owners), owned homes located in the Sherwood Shores
Mayfield, Kentucky.                                 Subdivision. Citing various complaints against renters of the
                                                    Hyatt's home, including blocking access to driveways,
BRIEF FOR APPELLEE: G. Eric Long, Benton, Kentucky. trash, and vulgar language, the owners sought to enforce a
                                                    restrictive covenant found in their collective deeds. The
Judges:     BEFORE:      KELLER,   STUMBO,      AND relevant portions of the restrictions are set out as follows:
VANMETER, JUDGES. ALL CONCUR.
                                                                                     1. No building shall be erected or maintained on
                                                                                     any lot in Sherwood Shores other than a
Opinion by: KELLER


1 Due to the appellee's failure to name the additional parties in the notice of appeal, the additional persons associated with the case in the trial court are
not per se parties to this appeal, however, we shall refer to them in the plural so as to avoid confusion.
                                                                                                                    Page 2 of 4
                                             2009 Ky. App. Unpub. LEXIS 738, *3
    private residence and a private garage for the sole            Lastly, the court found that the subdivision's character had
    use of the owner or occupant, except those lots                not changed sufficiently to warrant waiver of the restrictive
    designated as commercial on the plat.                          covenant pursuant to Kentucky law. Therefore, the court
                                                                   enjoined the Hyatts from continuing to rent their property in
    2. No part of said premises shall be used for
                                                                   violation of the restrictions.
    commercial or manufacturing purposes, except
    those lots designated as commercial on the plat            As stated [*5] above, the Hyatts argue to this Court that
    map.                                                       their behavior in renting their property does not constitute
                                                               commercial activity, but that even if it did, the restriction
The court found that the Hyatts had created a
                                                               should not be enforced as there has been a change in the
copyrighted [*3] website at www.bestkylakevacation.com
                                                               character of the neighborhood such that it is no longer
advertising the rental of their fully-furnished home for up to
                                                               possible to accomplish the purpose intended by the
three (3) couples or two (2) families. The rental included the
                                                               covenant.
use of their home and private dock for periods of two (2)
nights up to one (1) week. The Hyatt's charged a security STANDARD OF REVIEW
deposit, a cleaning fee, an additional amount for pets, and
included a charge of 10% Kentucky sales tax. Tenants We agree with both parties that interpretation of the
entered into a written rental agreement, which included a restrictive covenant is a question of law appropriate for de
specific check-in and check-out time, a $ 300.00 damage novo review by this Court. Colliver v. Stonewall Equestrian
deposit, and a $ 10.00 per person charge for each Estates Ass'n, Inc., 139 S.W.3d 521, 522-23 (Ky. App.
additional person over the age of ten (10). The Hyatts 2004). Furthermore, as the parties agree that there are no
provided linens, paper products, and other amenities for factual disputes, we will concentrate our evaluation as to
which there were other fees. The form specifically whether the Hyatts were entitled to a judgment in their favor
designated that the "rental is for vacation purposes only."    as a matter of law.

In addition to producing a witness who testified that he also      ANALYSIS
advertised his Sherwood Shores property for rent, the
Hyatts testified that there were five (5) to six (6) other         The Hyatts urge us to look to other jurisdictions for our
properties, possibly in Sherwood Shores, that they believed        analysis of this matter, as they believe that there is not a
likewise rented on substantially the same basis as their           Kentucky case that resolves the specific question of
own. The court found that the Hyatt's tax returns for 2006         whether short-term rental of property is a "commercial
and 2007 listed the rents paid as                                  purpose." While we believe the cases from Oregon and
income, and deducted as expenses the [*4] cleaning,                Virginia cited by the Hyatts are noteworthy, we do not agree
maintenance, repairs, supplies, utilities, insurance, legal        that they reflect the state of the law in our
and professional fees, as well as depreciation of the              Commonwealth. Therefore, [*6] we look to our precedent,
property. Additionally, the Hyatts paid the required Marshall      where the essential rule when attempting to construe
County tourist and convention commission monthly                   ambiguous restrictive covenants is that the party's intention
transient room tax, and the Kentucky sales use and                 governs. See Glenmore Distilleries v. Fiorella, 273 Ky. 549,
transient room tax, as is required of motels, hotels, and          554, 117 S.W.2d 173, 176 (1938). If known, the
persons renting their property.                                    surrounding circumstances of the development are likewise
                                                                   an important consideration when ambiguous language
When analyzing the restrictive covenant, the court found           creates a doubt as to what the creators intended to be
that the phrase "commercial or manufacturing purposes"             prohibited. Brandon v. Price, 314 S.W.2d 521, 523 (Ky.
was not ambiguous and therefore there was no need to               1958). Thus, the construction may not be used to defeat the
scrutinize it further. The court stated, "[r]enting or leasing a   obvious intention of the parties though that intention be not
home on a daily or weekly basis, paying business taxes,            precisely expressed. Connor v. Clemons, 308 Ky. 9, 213
and depreciating the asset for income tax purposes are all         S.W.2d 438 (1948).
characteristics of a 'commercial purpose.' The court further
found that the fact that other                                         Kentucky has approached restrictive covenants
residents may be renting their property in the same way                from the viewpoint that they are to be regarded
that the Hyatts were, did not make the phrase ambiguous.
                                                                                                                Page 3 of 4
                                           2009 Ky. App. Unpub. LEXIS 738, *6
    more as a protection to the property owner and the        when read together raised an ambiguity, the Supreme
    public rather than as a restriction on the use of         Court reasoned:
    property, and that the old-time doctrine of strict
    construction no longer applies. Highbaugh                     When the grantor specifically prohibits the use of
    Enterprises Inc. v. Deatrick and James                        property for a particular purpose, the more
    Construction Co., 554 S.W.2d 878, 879 (Ky. App.               reasonable construction would be that no other
    1977).                                                        uses are prohibited. At least an intention to further
                                                                  extend the limitations is very doubtful. It is at this
Colliver v. Stonewall Equestrian Estates Ass'n, Inc., 139         point that we must apply the rule of strict
S.W.3d 521, 523 (Ky. App. 2003).                                  construction against a restraint on the free use of
                                                                  land.
Indeed, in 1952, our Supreme Court noted:
                                                              Id., 308 Ky. at 12, 213 S.W.2d at 440.
    [W]e are among the jurisdictions [*7] which adhere
    to the concept that such restrictions constitute          Only then, when faced with an ambiguity, did the Supreme
    mutual, reciprocal, equitable easements of the            Court opine that a church was not a business, and that its
    nature of servitudes in favor of owners of other lots     erection did not violate the restriction. Such is what we must
    of a plot of which all were once a part; that they        do in the instant matter; that is, decide if the restriction
    constitute property rights which run with the land so     and/or its language are ambiguous, define what is
    as to entitle beneficiaries or the owners to enforce      prohibited, and then decide if the actions
    the restrictions, and if it be inequitable to have        [*9] of the Hyatts rise to the level of behavior sought to be
    injunctive relief, to recover damages. Crutcher v.        prohibited.
    Moffett, 205 Ky. 444, 266 S.W. 6; Starck v. Foley,
    209 Ky. 332, 272 S.W. 890, 41 A.L.R. 756; Doll v.         The trial court found that the restriction is unambiguous and
    Moise, 214 Ky. 123, 282 S.W. 763; Bennett v.              that it clearly sought to prevent any commercial or
    Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d           manufacturing activity within the subdivision, except where
    910, 61 A.L.R. 453.                                       originally authorized. While we agree with the trial court on
                                                              this issue, we nevertheless undertake to further define the
Ashland-Boyd County City-County Health Dep't v. Riggs, term commercial as it is ordinarily used in legal documents.
252 S.W.2d 922, 924-25 (Ky. 1952).                            Black's Law Dictionary, 7th edition, 1999, does not define
                                                              commercial, but does use the term within its definition of
In Ashland-Boyd the question presented was whether or business:
not a governmental health clinic for indigents violated a
restriction against the erection of a "'business house of any      Business. A commercial enterprise carried on for
kind.'" The Supreme Court sought first to define business          profit; a particular occupation or employment
prior to holding that a health clinic is not a business:           habitually engaged in for livelihood or gain.

    The term 'business' has a broad meaning and               BLACK'S LAW DICTIONARY, 7th edition, 1999.
    significance and may be used with many different
    connotations. It refers generally to a trade or           Merriam-Webster's 2009 Online Dictionary defines
    occupation or to commercial, industrial                   commercial as of or relating to commerce, which is defined
    and professional [*8] engagements.                        as the exchange or buying or selling of commodities on a
                                                              large scale involving transportation from place to place, and
Id. at 925-26.                                                is synonymous with business. There can be no doubt that
                                                              the Hyatts define their rental enterprise as a business. The
In Connor v. Clemons, 308 Ky. 9, 213 S.W.2d 438 (1948),       Hyatts cannot label the rental of their vacation home one
the construction of a church was proposed on land where       thing to the Internal
the deeds prohibited a "building or structure to be used for  Revenue Service and characterize it to the [*10] contrary to
business purposes" and provided that "[n]ot more than one     this Court.
structure to be used for residential
purposes shall be erected on any one lot." Id., 308 Ky. at The Hyatts urge us to note that the people who rent their
10, 213 S.W.2d at 439. Holding that the two restrictions property engage in the very same recreational activities
                                                                                                                      Page 4 of 4
                                               2009 Ky. App. Unpub. LEXIS 738, *10
as do the owners or their guests who reside in the dwellings must be so drastic as to render the original purpose or
within the Sherwood Shores subdivision. While this may intent impossible:
indeed be the case, it is not what the tenants do to occupy
their time while on the property that is forbidden, it is the     The fact and circumstances must be examined to
fact that the property is being held out for remuneration in      determine whether the change of the character of
much the same manner as a hotel or motel that is                  the neighborhood is sufficient to vitiate the
restricted. The creators of the subdivision plainly intended      restrictions; or, to state the question in other terms,
to restrain deed-holders from engaging in anything more           whether        the     'scheme     of     development'
than recreation while using their property. Such is the           contemplated by the restrictions has been
privilege of the creators. That the other property owners         abandoned sufficiently to operate ipso facto as a
seek to enforce the protections of the restrictive covenants      vitiation of the restrictions.
is their right.
                                                              Logan v. Logan, 409 S.W.2d 531, 534 (Ky. 1966); see also
What is equally clear is that the Hyatts have gone to a great Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120
deal of trouble to treat their vacation property as a S.W.2d 1024 (1938).
business. The rental agreement, copyrighted web-site, 2
check-in and check-out times, and the supply of various Despite [*12] the other witnesses for the Hyatts, who
sundries to tenants, underscore the appropriateness of this testified that they are also engaged in renting property in
commercial classification. Further, the fact that the Hyatts Sherwood Shores, the trial court did not find evidence of
are required to pay the                                       such an abandonment of purpose as to render the
same taxes as is required of motels [*11] and hotels only restrictions obsolete. We discern no abuse of discretion in
emphasizes the business-related nature of their endeavor. this finding. The neighborhood has not abandoned the
It is unmistakable that the Hyatts have violated the original intention of a purely residential area, which is
restrictive covenant as the trial court found.                evident by simply counting the parties involved on either
                                                              side of this lawsuit.
Our analysis cannot stop here however; as the Hyatts have
alleged that the neighborhood's character has so changed For the foregoing reasons, we affirm the Marshall Circuit
that to enforce the covenants as written would violate Court's judgment enjoining the appellant's from any further
equity. Kentucky case law simply does not support their commercial activity, including the rental of their home.
argument. Before enforcement is prevented in equity,
                                                         ALL CONCUR.
change in the character of a neighborhood intended to be
created by restrictions


2 Presumably   the Hyatts are attempting to prevent competition from other businesses by the use of copyright laws.
AP-102
                           Texas Questionnaire for Hotel Occupancy Tax


                         GLENN HEGAR             TEXAS COMPTROLLER OF PUBLIC ACCOUNTS


                                                    GENERAL INSTRUCTIONS

          WHO MUST SUBMIT THIS QUESTIONNAIRE – You must submit this questionnaire if you are an individual,
          partnership, corporation or organization operating a hotel in Texas.

          DEFINITIONS –
            • HOTEL: A hotel is a building in which members of the public obtain sleeping accommodations for consideration.
              Examples include hotels, motels, bed and breakfasts, rooming houses, skid mounted bunkhouses, tourist
              houses, tourist courts, manufactured homes, residency inns, condominiums, cabins and cottages.
            • BUSINESS LOCATION: Any location where you provide sleeping accommodations for consideration.

          NOTE: If you have been in operation and have not submitted a questionnaire, you will need to file reports and pay
          tax, plus applicable penalty and interest for the period of time you have been in business.

          FOR ASSISTANCE – If you have any questions about this questionnaire, contact your nearest Texas State Comp-
          troller's field office or call 1-800-252-1385.

          AMERICANS WITH DISABILITIES ACT – In compliance with the Americans with Disabilities Act, this document
          may be requested in alternative formats by calling 1-800-252-5555. Hearing impaired taxpayers may call via
          1-800-RELAY-TX.

          FEDERAL PRIVACY ACT - Disclosure of your social security number is required and authorized under law,
          for the purpose of tax administration and identification of any individual affected by applicable law. 42 U.S.C.
          §405(c)(2)(C)(i); Tex. Govt. Code §§403.011 and 403.078. Release of information on this form in response to a
          public information request will be governed by the Public Information Act, Chapter 552, Government Code, and
          applicable federal law.

          If you are hiring one or more employees, please contact the Texas Workforce Commission (TWC) at 512-463-
          2699 or your local TWC tax office to determine if you are liable for payroll taxes under the Texas Unemployment
          Compensation Act.

          Complete this application and mail it to COMPTROLLER OF PUBLIC ACCOUNTS
                                                   111 E. 17th Street
                                                   Austin, TX 78774-0100

          Under Ch. 559, Government Code, you are entitled to review, request and correct information we have on file about
          you, with limited exceptions in accordance with Ch. 552, Government Code. To request information for review or
          to request error correction, contact us at the address or number listed on this form.



AP-102-1 (Rev.1-15/20)
                 AP-102-2
                 (Rev.1-15/20)




              Below is a listing of taxes and fees collected by the Comptroller of Public Accounts. If you are responsible for reporting or paying one of the listed
              taxes or fees, and you DO NOT HAVE A PERMIT OR AN ACCOUNT WITH US FOR THIS PURPOSE, please obtain the proper application by calling
              1-800-252-5555 or by visiting your local Comptroller Enforcement field office.


                 9-1-1 Emergency Service Fee/Equalization Surcharge - If you are                Off-Road, Heavy Duty Diesel Powered Equipment Surcharge - If
                 a telecommunications utility, a mobile service provider or a business          you sell, lease or rent off-road, heavy duty diesel powered equip-
                 service user that provides local exchange access, equivalent local exchange    ment, you must complete Form AP-201. This is in addition to the
                 access, wireless telecommunications connections or intrastate long-distance    sales tax permit. You are required to charge both the sales tax and
                 service, and you are responsible for collecting emergency communications       the surcharge.
                 charges and/or surcharges, you must complete Form AP-201.
                 Automotive Oil Sales Fee - If you manufacture and sell automotive oil          Hotel Occupancy Tax - If you provide sleeping accommodations to
                 in Texas; or you import or cause automotive oil to be imported into Texas      the public for a cost of $15 or more per day, you must complete Form
                 for sale, use or consumption; or you sell more than 25,000 gallons of          AP-102.
                 automotive oil annually and you own a warehouse or distribution center
                 located in Texas, you must complete Form AP-161.                               International Fuel Tax Agreement (IFTA) - If you operate qualified
                 Battery Sales Fee - If you sell or offer to sell new or used lead acid bat-    motor vehicles that require you to be licensed under the International
                 teries, you must complete Form AP-160.                                         Fuel Tax Agreement, you must complete Form AP-178.

                 Cement Production Tax - If you manufacture or produce cement in
                                                                                                Manufactured Housing Sales Tax - If you are a manufacturer of
                 Texas, or you import cement into Texas and you distribute or sell cement
                                                                                                manufactured homes or industrialized housing engaged in business
                 in intrastate commerce or use the cement in Texas, you must complete
                                                                                                in Texas, you must complete Form AP-118.
                 Form AP-171.
                 Cigarette, Cigar and/or Tobacco Products Tax - If you wholesale,               Maquiladora Export Permit - If you are a maquiladora enterprise
                 distribute, store or make retail sales of cigarettes, cigars and/or tobacco    and wish to make tax-free purchases in Texas for export to Mexico,
                 products, you must complete Form AP-175 or Form AP-193.                        you must complete Form AP-153, to receive the permit.
                 Coastal Protection Fee - If you transfer crude oil and condensate from
TAX TYPE(S)




                 or to vessels at a marine terminal located in Texas, you must complete         Motor Vehicle Seller-Financed Sales Tax - If you finance sales of
                 Form AP-159.                                                                   motor vehicles and collect Motor Vehicle Sales Tax in periodic pay-
                                                                                                ments, you must complete Form AP-169.
                 Coin-Operated Machine Tax - If you engage in any business dealing
                 with coin-operated amusement machines OR engage in business to own
                 or operate coin-operated amusement machines exclusively on premises            Motor Vehicle Gross Rental Tax - If you rent motor vehicles in Texas,
                 occupied by and in connection with the business, you must complete             you must complete Form AP-143.
                 Form AP-146 or Form AP-147.
                 Crude Oil and Natural Gas Production Taxes - If you produce and/               Petroleum Products Delivery Fee - If you are required to be licensed
                 or purchase crude oil and/or natural gas, you must complete Form               under Texas Water Code, sec. 26.3574, you must complete Form
                 AP-134.                                                                        AP-154.

                 Direct Payment Permit - If you annually purchase at least $800,000 worth
                 of taxable items for your own use and not for resale, you must complete        Sales and Use Tax - If you engage in business in Texas; AND you
                 Form AP-101 to qualify for the permit.                                         sell or lease tangible personal property or provide taxable services
                                                                                                in Texas to customers in Texas; and/or you acquire tangible personal
                 Fireworks Tax - If you collect tax on the retail sale of fireworks, you must   property or taxable services from out-of-state suppliers that do not
                 complete Form AP-201. This is in addition to the sales tax permit. You         hold a Texas Sales or Use Tax permit, you must complete Form
                 are required to charge both the sales tax and the fireworks tax.               AP-201.
                 Franchise Tax - If you are a general partnership or non-Texas entity
                 without a certificate of authority or certificate of registration, you must    Sulphur Production Tax - If you own, control, manage, lease or oper-
                 complete Form AP-114.                                                          ate a sulphur mine, well or shaft, or produce sulphur by any method,
                                                                                                system or manner, you must complete Form AP-171.
                 Fuels Tax - If you are required to be licensed under Texas Fuels Tax Law for
                 the type and class permit required, you must complete Form AP-133.
                                                                                                Texas Customs Broker License - If you have been licensed by the
                 Gross Receipts Tax - If you provide certain services on oil and gas wells      United States Customs Service AND want to issue export certifica-
                 OR are a utility company located in an incorporated city or town having a      tions, you must complete Form AP-168.
                 population of more than 1,000 according to the most recent federal census
                 and intend to do business in Texas, you must complete Form AP-110.
                                AP-102-3
                                (Rev.1-15/20)
                                                               Texas Questionnaire for
                                                                Hotel Occupancy Tax
                                                                                                                             • TYPE OR PRINT                              • Do NOT write in shaded areas.                                   Page 1
               SOLE OWNER IDENTIFICATION
            1. Name of sole owner (First, middle initial and last name)


            2. Social Security Number (SSN)                                      Check here if you DO NOT                   3. Taxpayer number for reporting any Texas tax OR Texas identification number if
                                                                                 have a SSN.                                   you now have or have ever had one.

             NON-SOLE OWNER IDENTIFICATION                                                       --- ALL SOLE OWNERS SKIP TO ITEM 9. ---
            4. Business Organization Type
                                Profit Corporation (CT, CF)                                                    General Partnership (PB, PI)                                             Business Trust (TF)
                                                                                                                                                                                                     Please submit a copy of the trust
                                Nonprofit Corporation (CN, CM)                                                 Professional Association (AP, AF)                                        Trust (TR) agreement with this application.
                                Limited Liability Company (CL, CI)                                             Business Association (AB, AC)                                            Real Estate Investment Trust (TH, TI)
                                Limited Partnership (PL, PF)                                                   Joint Venture (PV, PW)                                                   Joint Stock Company (ST, SF)
                                Professional Corporation (CP, CU)                                              Holding Company (HF)                                                     Estate (ES)
                                Other (explain)
            5. Legal name of corporation, partnership, limited liability company, association or other legal entity


            6. Taxpayer number for reporting any Texas tax OR Texas identification number if you now have or have ever had one. .....
                                                                                                                                                                                            1
            7. Federal Employer Identification Number (FEIN) assigned by the Internal Revenue Service .......................................
                                                                                                                                                                                                3
            8.                   Check here if you do not have an FEIN. .....................................................................................................................
                        9. Mailing address
                         Street number, P.O. Box, or rural route and box number
BUSINESS INFORMATION




                         City                                                                                      State/province                                ZIP code                       County (or country, if outside the U.S.)



                       10. Name of person to contact regarding day to day business operations                                                                                            Daytime phone


                       11. Principal type of business
                                   Agriculture                       Transportation                  Retail Trade                        Real Estate                   Mining                       Communications
                                   Finance                           Services                        Construction                        Utilities                     Insurance                    Public Administration
                                   Manufacturing                     Wholesale Trade                 Other (explain)
                       12. Primary business activities and type of products or services to be sold                                                                                                         NAICS



                          If you are a SOLE OWNER, skip to Item 18.
                                                                                                                                                                     File number                             Month      Day              Year
                       13. If the business is a Texas profit corporation, nonprofit corporation, professional corporation or
                           limited liability company, enter the file number issued by the Texas Secretary of State and date....
                       14. If the business is a non-Texas profit corporation, nonprofit corporation, professional corporation or limited liability company, enter the state or country
                           of incorporation, charter number and date, and if the corporation has a Texas Certificate of Authority, enter the file number and date.
                            State/country of inc.                      Charter number                              Month     Day         Year                Texas Certificate of Authority number           Month      Day              Year



                       15. If the business is a corporation, has the business been involved in a merger within the last seven years? .....                                               YES            NO If "YES," attach a
                                                                                                                                                                                                           detailed explanation.
                                                                                                                                                                                      State         Number
TAXPAYER INFORMATION




                       16. If the business is a limited partnership or registered limited liability
                           partnership, enter the home state and registered identification number. ............................................................
                       17. List general partners, principal members/officers, managing directors or managers (Attach additional sheets, if necessary.)
                                Name                                                                                       Title                                                         Phone (Area code and number)



                                Home address                                                                       City                                                     State                                     ZIP code



                                SSN or FEIN                                                                                                              County (or country, if outside the U.S.)
                                                                                         Percent of
                                                                                         ownership _______ %
                                Position held              Partner                 Officer         Director                        Corporate Stockholder                     Record keeper
                                Name                                                                                       Title                                                         Phone (Area code and number)



                                Home address                                                                       City                                                     State                                     ZIP code



                                SSN or FEIN                                                                                                              County (or country, if outside the U.S.)
                                                                                         Percent of
                                                                                         ownership _______ %
                                Position held              Partner                 Officer         Director                        Corporate Stockholder                     Record keeper
                                  AP-102-4
                                  (Rev.1-15/20)
                                                                  Texas Questionnaire for
                                                                   Hotel Occupancy Tax
                                                                                                                                 • TYPE OR PRINT                                  • Do NOT write in shaded areas.                         Page 2

18. Legal name of entity (Same as Item 1 OR Item 5)



                             19. Business location name and address (Attach additional sheets for each additional location.)
                                 Business location name



                                 Street and number (Do not use P.O. Box or rural route.)                       City                                                State                 ZIP code                     County



                                 Physical location (If business location address is a rural route and box number, provide directions – e.g., “2 miles west of Austin on FM 2222.”)              Business location phone
BUSINESS LOCATION




                             20. Is your business located inside the city limits? ...............................................................                YES                NO

                             21. Brief description of your business activities for this location.


                             22. Enter the date of the first business operation in the above location that is subject to hotel occupancy tax,
                                 or the date you plan to start such business operation (Date cannot be more than 90 days in the future.) ......................

                             23. Enter the number of rentable rooms .........................................................................................................................................................
                             24. Do you own or rent/lease property at this location? ........................................................................................                  OWN                    RENT/LEASE
                                 If you rent or lease the real property, enter the property owner's name and address.
                                 Property owner's name



                                 Property owner's address




                             If you purchased an existing business or business assets, complete Items 25-28.
                                                                                                                                                                                                         Previous owner’s taxpayer
PREVIOUS OWNER INFORMATION




                             25. Previous owner’s trade name.                                                                                                                                            number, if available


                             26. Previous owner’s legal name, address, and phone number, if available.
                                 Name                                                                                                                                                           Phone (Area code and number)



                                 Address (Street and number)                                                                            City                                                  State         ZIP code



                             27. Check each of the following items you purchased.
                                       Inventory                    Corporate stock                                               Equipment                                 Real estate                                  Other assets
                             28. Purchase price of this business or assets and the date of purchase.
                                                                                                                                                    Month    Day           Year

                                       Purchase price      $                                                                   Date of purchase


                             29. The sole owner, all general partners, corporation or organization president, vice-president, secretary or treasurer,                                                             Date of signature(s)
                                                                                                                                                                                                                   Month Day           Year
                                 managing director, or an authorized representative must sign. A representative must submit a written power of attorney.
                                 (Attach additional sheets if necessary.)

                                  I (We) declare that the information in this document and any attachments is true and correct to the best of my (our) knowledge and belief.
SIGNATURES




                                  Type or print name and title of sole owner, partner, or officer              Driver license number/state                                          Sole owner, partner, or officer




                                  Type or print name and title of partner or officer                           Driver license number/state                                          Partner or officer




                                  Type or print name and title of partner or officer                           Driver license number/state                                          Partner or officer




                                                                         FOR COMPTROLLER USE ONLY                                 USERID                             Date
