IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION

WEISSMAN JEFFREY D.D.S., )Plaintiff, )

)V. ) Case No.: CV-2009-904022.00

)JEFFERSON COUNTY, )Defendant. )

FINAL ORDER

This matter is before the Court on the Cross Motions for Summary Judgment filed by

Plaintiffs Jeffrey Weissman, D.D.S., Jeffrey Weissman D.D.S., P.C., and Keith Shannon and

Defendant Jefferson County (“Jefferson County”). The motions were set for hearing on

November 5, 2010, at which all parties were represented by counsel and presented arguments.

The issue here is not novel to this venue.

Upon review of the pleadings, submissions of the parties, arguments by counsel, and the

applicable law, taken in pari materia, the Court finds that there is no genuine issue of material

fact as to Plaintiffs’ claims as to the constitutionality of Act No. 2009-811 of the Alabama

Legislature (“the 2009 Act”) and Plaintiffs’ claims for injunctive relief. As such, the Court finds

that Plaintiffs are entitled to a judgment as a matter of law. The Court finds that the 2009 Act, a

local act, is unconstitutional because the published notice of the 2009 Act does not comply with

Article IV, Section 106 of the Alabama Constitution and applicable case law. Specifically, the

Court finds that the notice of the 2009 Act does not accurately describe numerous material and

substantial elements of the bill, including that the 2009 Act is to be retroactively applied or that

the 2009 Act confers enabling authority to impose a new occupational tax on both previously-

taxed taxpayers and on a new class of “licensed professionals” which was exempt from the “old”

ELECTRONICALLY FILED12/1/2010 9:50 AMCV-2009-904022.00

CIRCUIT COURT OFJEFFERSON COUNTY, ALABAMA

ANNE-MARIE ADAMS, CLERK

Jefferson County’s Occupational Tax. The Court notes that the omission or misstatement of any

one material and substantial element of the 2009 Act with respect to the notice would, standing

alone, be sufficient to render the 2009 Act unconstitutional under Section 106. The Court finds

unpersuasive Jefferson County’s argument that Section 106’s notice requirements do not apply

because the 2009 Act was passed by the Alabama Legislature during a special session. The

Court also finds unpersuasive Jefferson County’s argument that publishing simply the “general

nature” of the Act’s Substantive features satisfies the notice requirements imposed under Section

106.

Accordingly, having determined that the 2009 Act is unconstitutional, the Court also

finds that Plaintiffs are entitled to summary judgment on their claim to enjoin Jefferson County

from imposing or collecting any and all taxes imposed under Ordinance Jefferson County

ordinance No. 1791 pursuant to the authority conferred by the 2009 Act.

Though the Court finds that the 2009 Act is unconstitutional and that Jefferson County is

to be enjoined from collecting taxes imposed under the authority of the 2009 Act, the Court also

finds that Plaintiffs have not shown that the undisputed facts support their request for a

retroactive refund of collected taxes as a matter of law. Considering the factors set out in

Roberts v. M&R Props., Inc. 612 So.2d 432 (Ala. 1992), the Court finds that this Order shall

have only prospective application and that a refund of collected taxes is neither appropriate nor

justified (for additional clarity see Ex parte Coker, 575 So.2d 43, 51-52 (Ala. 1990)).

WHEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED as follows:

1. Plaintiffs’ Motion for Summary Judgment is GRANTED, as described herein, and

summary judgment is hereby entered in favor of the Plaintiffs and against

Jefferson County on Plaintiffs’ claims for declaratory relief and on Plaintiffs’

claim that Jefferson County is to be enjoined from imposing or collecting taxes

pursuant to the authority conferred by the 2009 Act.

2. The effect of this Order shall be and is hereby deemed to be prospective

commencing with the date of this Order.

3. Jefferson County’s Motion for Summary Judgment is DENIED.

DONE this 1st day of December, 2010.

/s CHARLES PRICECIRCUIT JUDGE