Alabama Advisory Opinions March 24, 2003: AGO 2003-110 (March 24, 2003)

AGO 2003-110.

Dear Mayor Oden:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Mountain Brook.

QUESTION 1

Where is a person's legal residence for the purpose of registering a motor vehicle?

FACTS, LAW, AND ANALYSIS

You state that the city officials of the City of Mountain Brook have become increasingly aware that many Mountain Brook residents do not have Jefferson County car tags, but rather have car tags from other counties. You further state that city officials have concluded that many Mountain Brook residents are using their addresses at their lake house, beach house, farm, etc., to register their vehicles rather than using their Mountain Brook addresses in Jefferson County. The city officials are apparently concerned about the impact this practice may have on the city and its school system, because the city government and school system depend on the funds from car tags to provide services to citizens.

On February 12, 2003, this Office issued an opinion regarding a similar question. In that opinion, No. 2003-077, issued to Randy Godeke, Director of the Jefferson County Department of Revenue, this Office was asked, "In which county should an individual properly register his motor vehicle?" The opinion quoted section 40-12-253(a)(4) of the Code of Alabama, which states as follows:

No license shall be issued to operate a motor vehicle on the public highways of this state, nor shall any transfer be made by the license issuing official under this article, until the ad valorem tax on the motor vehicle is paid in the county, as evidenced either by a receipt of the tax collecting official where the owner of the motor vehicle resides , if the motor vehicle is owned by an individual. . . .

Ala. Code § 40-12-253(a)(4) (1998) (emphasis added). The opinion stated that the place of residence, or domicile, is one of fact that is to be determined in the first instance by your office. An ultimate determination, however, can only be made by agreement or by a decision of a court of competent jurisdiction. The facts to consider, regardless of whether the vehicle owner has multiple residences in different counties, include, but are not limited to, the county where the vehicle owner claims homestead exemption, the place where the individual registers to vote, the place where they are issued a driver's license, and where the individual's children attend school.

It is the opinion of this Office that where an individual claims his or her homestead exemption is paramount in determining county of residence. There are several reasons for this. The first is that a person can only claim one homestead at one time. 40 C.J.S. Homesteads § 9 (1991). See also Boyle v. Shulman , 59 Ala. 566 (1877); Woodstock Iron Co. v. Richardson , 94 Ala. 629, 10 So. 144 (1891). Also, a homestead, as defined by Alabama courts, is where a person actually lives . It is a place where a person usually sleeps and eats and surrounds himself or herself with the ordinary insignia of home and where he may enjoy its immunities and privacy. Garrett v. Jones , 95 Ala. 96, 10 So. 702 (1892).

Section 40-9-19, et seq. , of the Code of Alabama exempts homesteads from certain ad valorem taxes. The definition of "homestead" for ad valorem tax purposes is the same as that used under the Constitution and laws of Alabama.

Ala. Code § 40-9-19 (1998).

It is the opinion of this Office that residence, for purposes of motor vehicle ad valorem tax and registration, is a question of fact that must be determined in the first instance by your office. An ultimate determination can be made by agreement or through a decision by a court of competent jurisdiction. Factors to be considered, however, include, but are not limited to, the county where a person is registered to vote, the place where an individual is issued a driver's license, the place where the individual's children attend school, and the county where an individual has claimed a homestead exemption from property taxes. It is also the opinion of this Office that where a person claims his or her homestead exemption is the best indication of residence.

If a person is determined to be a legal resident of the City of Mountain Brook under the analysis of Question 1 above, and they own or rent a second house in another county (i.e., lake house, beach house, farm, etc.), are they legally entitled to register their motor vehicle where the other house is located? FACTS, ANALYSIS, AND

Based on the answer to Question 1 above, if a person is factually determined to be a legal resident of the City of Mountain Brook, Jefferson County is the only lawful county where the person could register their vehicle. QUESTION 3

Can the City of Mountain Brook pass an ordinance that would require a Mountain Brook resident to register their motor vehicles in Jefferson County and provide for a fine for the failure to register said motor vehicle in Jefferson County?

FACTS, ANALYSIS, AND CONCLUSION

State law, as discussed above, currently requires a resident of a particular city in a particular county to register their motor vehicle in the county of residence. State law essentially provides two penalties for failure to register a motor vehicle in the county of residence. One is a 10 percent penalty for escape tax assessments.

Ala. Code § 40-7-23 (1998). The second is a class C misdemeanor for the owner of an automobile to furnish a false residence address with the intent to avoid municipal or county ad valorem tax.

Ala. Code § 40-29-115(b) (1998).

A municipality has the authority to adopt ordinances not inconsistent with state law and to enforce those ordinances by fine not exceeding $500 and by imprisonment or hard labor not exceeding 6 months, or both.

Ala. Code §§ 11-45-1 and 11-45-9 (1989). A municipality may also adopt an ordinance that makes the violation of a state misdemeanor statute, within the jurisdiction of a city or town, an offense against the municipality. See Sloss-Sheffield Steel & Iron Co. v. Smith , 175 Ala. 260, 57 So. 29 (1911) and City of Birmingham v. Edwards , 18 Ala. App. 459, 93 So. 233 (1922). Accordingly, a city may adopt the state law misdemeanor offense in section 40-29-115(b) as a municipal ordinance violation, or it may adopt a new ordinance that is not inconsistent with the state law.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Keith Maddox, Legal Division, Department of Revenue.

Sincerely,

BILL PRYOR

Attorney General

By: Carol Jean Smith

Chief, Opinions Division

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